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MARSILIUS OF PADUA AND ‘ THE TRUTH OF HISTORY ’

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Marsilius of Padua and ‘the Truth of History’ GEORGE GARNET T

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Great Clarendon Street, Oxford ox2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With ofﬁces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © George Garnett 2006 The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2006 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging-in-Publication Data Garnett, George. Marsilius of Padua and ‘the truth of history’ / George Garnett. p. cm. – Includes bibliographical references and index. ISBN-13: 978–0–19–929156–4 (alk. paper) ISBN-10: 0–19–929156–X (alk. paper) 1. Marsilius, of Padua, d. 1342? Defensor pacis. 2. History–Religious aspects. 3. Church and state. 4. Canon law–History–Middle Ages, 600-1500. I. Title. JC121.M35G36 2006 261.5–dc 2006004644 Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by Biddles Ltd., King’s Lynn, Norfolk ISBN 0–19–929156–X

978–0–19–929156–4

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For A.

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Acknowledgements The argument advanced in this book began to take shape when I had to reread Marsilius properly, for the ﬁrst time since a memorable supervision on him with Walter Ullmann, in order to give some lectures in Cambridge on medieval political thought. I am grateful to those pupils who have helped me to reﬁne my interpretation over too many years. Some of them have, in addition, read and commented on ﬁtfully produced drafts of parts and of the whole: Annabel Brett (who generously supplied a typescript, and later the proofs, of her own translation), Alexandra Gooden, Caroline Humfress, Shelley Lockwood, and Magnus Ryan. I have two further important debts of gratitude: to Peter Linehan, for his sage and lapidary guidance around the later middle ages and much else; and to John Hudson, for his generosity in volunteering to comment on a ﬁnal draft. I have tried to acknowledge any help I have received with individual problems in the footnotes. The staffs of the Bodleian Library and of Cambridge University Library have behaved with their customary helpfulness and goodhumoured tolerance. Debbie Quare, librarian of St Hugh’s College, Oxford, continues to display, in addition, an antinomianism which is unusual in her profession. The staff of the Taylorian Institution merit a special mention for advising me to wear rubber gloves when reading the library’s copy of Alvarus Pelagius’s Collyrium, which had (as the catalogue intriguingly records) been attacked by fungus. The advice seemed peculiarly if perversely apposite, because it mirrored Alvarus’s response to the Defensor pacis, denounced in the Collyrium for the threat it posed to spiritual, rather than bodily, health. The canon archivist of Tortosa kindly allowed me to use a manuscript of the Defensor pacis which is almost certainly corrected in Marsilius’ own hand. Anne Gelling has been by turns encouraging and patient when some publishers would have given up. My colleagues at St Hugh’s and Lady Margaret Hall have enabled me to take sabbatical leave, and have been supportive in ways which neither they nor I could ever have envisaged. In particular, the book would not have been completed without the encouragement and resolve variously

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lent by Colin Matthew (and later, crucially, Sue Matthew) and John Robertson. Amongst my other colleagues in that obstinately civilized institution, the Faculty of Modern History at Oxford, Ian Archer, Rees Davies, Jane Garnett, Gervase Rosser, and Bryan Ward-Perkins deserve special thanks for the different types of help which they have so willingly given. I am also very grateful to the Faculty collectively for granting me a term of teaching relief in the ﬁnal stage of gestation. My children— Elinor, Edmund, and Gregory—have put everything in perspective. The dedication speaks for itself. GG 14 September 2005

Contents List of Abbreviations

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1. Introduction 2. Providential History from the Fall of Man to the Conversion of Constantine 3. Providential History from the Reign of Constantine 4. Christian Providential History: A Dialectic of Perfection and Perversion 5. The History of the Holy Roman Empire 6. Canon Law and the Conﬂict Between Emperor and Pope 7. The Historian’s Use of his Canon Law Sources

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146 160 172 179

Bibliography Index

196 210

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Abbreviations CIC Cod. Clem. CNRS CUP Dig. DM DP DTI EHR Extrav. Comm. Extrav. Ioh. XXII. Inst. JThS MGH Nov. PG PL TRHS VI. X.

Corpus iuris canonici, ed. A. Richter and E. Friedberg, 2 vols. (Leipzig, 1879) Codex Iustinani, in Corpus iuris civilis Clementinae or Constitutiones Clementinis P. V, in Corpus iuris canonici, ii. Centre National de la Recherche Scientiﬁque Chartularium universitatis Parisiensis, ed. H. Deniﬂe and A. Chatelaine, 4 vols. (Paris, 1889–94) Digestum Iustiniani, in Corpus iuris civilis Defensor minor Defensor pacis De translatione imperii English Historical Review Extravagantes communes, in Corpus iuris canonici, ii. Extravagantes Iohannis XXII, in Corpus iuris canonici, ii. Institutiones Iustiniani, in Corpus iuris civilis Journal of Theological Studies Monumenta Germaniae Historica Novellae Iustiniani, in Corpus iuris civilis Patrologia cursus completus, ed. J. P. Migne, series graeca Patrologia cursus completus, ed. J.P. Migne, series latina Transactions of the Royal Historical Society Liber sextus decretalium Bonifacii P. VIII, in Corpus iuris canonici, ii. Decretales Gregorii P. IX, seu Liber extra, in Corpus iuris canonici, ii.

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L’altro che segue, con le leggi e meco, sotto buona intenzion che fé mal frutto, per cedere al pastor si fece greco: ora conosce come il mal dedutto dal suo bene operar non li è nocivo, avvegna che sia ’l mondo indi distrutto. (Dante, Paradiso, xx. 55–60)

1 Introduction MODERN INTERPRETATIONS OF THE DEFENSOR PACIS In 1323 a conﬂict broke out between Louis, duke of Bavaria, king-elect of the Romans and claimant to the title of Roman emperor, and Pope John XXII. After the irascible John’s death in 1334, it continued almost unabated during the pontiﬁcates of Benedict XII and Clement VI. It was terminated only by Louis’s death in 1347. He died excommunicate, still bound by the sentence passed on him by John in 1324. Benedict had warned him in chilling terms what the inevitable consequences would be.¹ Papal severity remained unrelenting: he was not posthumously absolved. This demonstrates the irreconcilable nature of the conﬂict. It turned out to be the ﬁnal reprise of that ideological struggle between empire and papacy which had dominated the high middle ages. In the view of the great nineteenth-century historian of medieval Rome, Ferdinand Gregorovius, the conﬂict would have been ‘an utterly unendurable caricature of a great past’, had it not been for the concomitant ‘astounding testimony to the progress of human thought’.² It is clear that Gregorovius, like other scholars, considered that these theoretical advances had taken place chieﬂy on the anti-papal ¹ O. Raynaldus, Annales Ecclesiastici ab anno MCXCVIII. Ubi desinit Cardinalis Baronius, ed. J. D Mansi, 15 vols. (Lucca, 1747–56), vi. 158. ² F. Gregorovius, The History of the City of Rome in the Middle Ages, trans. A. Hamilton, 6 vols. (London, 1898), vi, pt. 1, p. 114.

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side. Pre-eminent amongst the treatises he had in mind was Marsilius of Padua’s Defensor pacis, which the most reliable manuscripts (including that which is almost certainly corrected by Marsilius in his own hand) record was completed on St John the Baptist’s Day (24 June) 1324.³ Even in the august company of Dante and William of Ockham, there appears to be scholarly consensus on Marsilius’s pre-eminence. In a highly inﬂuential course of lectures ﬁrst published in 1907, J. N. Figgis described the Defensor pacis as ‘one of the most remarkable books in the history of politics.’⁴ It was so exceptional because it had foreshadowed later developments in political thought. With Marsilius, he wrote elsewhere, ‘it is the omnicompetent, universal, all absorbing modern State, the great Leviathan of later teachers . . . not power divided, but power concentrated and uniﬁed’.⁵ This estimate of Marsilius’s signiﬁcance is also a common one. In 1920 Ephraim Emerton wrote that Marsilius ‘is the herald of a new world, the prophet of a new social order, acutely conscious of his modernness and not afraid to confess it’.⁶ According to one of his modern editors, C. W. Previté-Orton: ‘The glimmer of modernity, often to be seen elsewhere c. 1300, has suddenly given way [in the Defensor ³ DP III. iii; Gregorovius, History, 125–7. For the argument that Marsilius himself corrected Tortosa, Cathedral Chapter Library MS. 141, see DP, ed. Previté-Orton, p. xxxvii; ed. Scholz, pp. xxix–xxxii; Previté-Orton, ‘Review’ of Scholz, EHR, xlviii (1933), 655. On this manuscript, see E. Bayerri Bertomeu, Los Códices medievales de la catedral de Tortosa (Barcelona, 1962), 303–4 (I am indebted to Peter Linehan for this reference). The date is not a later correction, but concludes the main text: fo. 99r. ⁴ J. N. Figgis, Studies in the History of Political Thought from Gerson to Grotius, 2nd edn. (Cambridge, 1916), 33; cf. J. A. Watt, ‘Spiritual and Temporal Powers’, in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought, c.350–c.1450 (Cambridge, 1988), 416: ‘the most thorough and original treatise on the relation of the powers written by a medieval analyst.’ ⁵ Figgis, unpublished lecture III, in Figgis Papers, Borthwick Institute of Historical Research, York, quoted by D. Nicholls, The Pluralist State: The Political Ideas of J. N. Figgis and his Contemporaries, 2nd edn. (London, 1994), 30–1. ⁶ E. Emerton, ‘The Defensor Pacis of Marsiglio of Padua: A Critical Study’, Harvard Theological Studies, viii (1920), 1. Cf. R. L. Poole, Illustrations of the History of Medieval Thought and Learning (London, 1920), 241: ‘But for these reminders [scil. the discussions of evangelical poverty and the conﬂict between Louis of Bavaria and John XXII] we should be almost disposed to think [Marsilius’s] book a production of one of the publicists, or of one of the advocates of civil and religious liberty, of the seventeenth century.’

Introduction

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pacis] to a transitory daylight.’⁷ ‘Like the unﬁnished statues of Michelangelo, the state [Marsilius] conceives withdraws itself alive from the marble, and seems rather cloaked than shaped by the mass of medieval speculation from which it is hewn.’⁸ Marsilius was so ahead of his time that, far from confessing his ‘modernness’, as Emerton had asserted, he had lacked the modern terminology with which to express his modern thoughts: ‘Marsilius had to manipulate phrases and struggle to express the notion of the State when he had no thoroughly appropriate or exclusive term for it . . . His thought is always clearer than his words.’⁹ Previté-Orton’s implication is that we can express his thoughts more clearly than he could, because we now have the terms for which he was unsuccessfully groping. The starting-point for this book is that this is precisely what most modern historians have continued to do, although they no longer express themselves with Previté-Orton’s ingenuous candour. They have substituted their own modern words (and therefore thoughts) for Marsilius’s, in the mistaken belief that he somehow transcended his age. This unhistorical misrepresentation has been effected, for the most part, with subtlety. The subtlety masks the fact that such interpretations differ only in degree, not kind, from the clarion call with which Emerton concluded his study of 1920: ‘Certainly American democracy, if it is to work out the mission with which it seems to be entrusted, cannot afford to refuse the support or neglect the warnings it may derive from a study of Marsiglio’s ardent plea for a Peace of the world based upon a just balance of social classes.’¹⁰ He seems to have thought that President Wilson should have packed a copy of the Defensor pacis in his suitcase when he went to Versailles, although it is difﬁcult to ⁷ DP, ed. Previté-Orton, p. xv. ⁸ C. W. Previté-Orton, ‘Marsiglio of Padua, Part II. Doctrines’, EHR, xxxviii (1923), 1–18, at 2. ⁹ C. W. Previté-Orton, ‘Marsilius of Padua’, Proceedings of the British Academy, xxi (1935), separately paginated, p. 9; cf. W. Ullmann, Principles of Government and Politics in the Middle Ages, 4th edn. (London, 1970), 278: ‘However much the exposition by Marsiglio is marred by the inadequacy of linguistic terms and the incubus of traditional terminology, no doubt is permissible about his main point concerning the location of residual power in the people.’ ¹⁰ Emerton, ‘Critical Study’, 81.

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discern what the president might have learned from it about ‘the just balance of social classes’. Subsequent American scholars have not claimed to be responding to Emerton’s call. They might, nevertheless, be deemed to have done so, although without particular reference to the international role of the United States. During the last century they have been in the vanguard of the study of Marsilius. The most important and inﬂuential has been Alan Gewirth, who published the ﬁrst substantial book in English on Marsilius’s thought in 1951, followed in 1956 by the ﬁrst ever English translation of the whole of the Defensor pacis—indeed, the ﬁrst full modern translation into any language.¹¹ At the beginning of his monograph he pilloried some of the absurdly unhistorical claims made on behalf of Marsilius: that Marsilius had advocated the separation of morals from politics, or religious toleration, or socialism, or Marx’s materialist interpretation of ideology; that he was a totalitarian, that he was a democrat, that he had invented ‘Austinian’ sovereignty; and so on.¹² Gewirth claimed that, by contrast, he would ‘consider modern doctrines only at points where such consideration is particularly relevant to establishing important historical interrelations’.¹³ The vagueness of this self-denying ordinance affords Gewirth, a political philosopher rather than an historian, a great deal of latitude in his assessment of Marsilius’s role in the formulation of ‘modern doctrines’. He argues that many of these emerged from Marsilius’s ‘opposition to the theologism with which the papalists had identiﬁed politics’,¹⁴ by a process which Georges de Lagarde would later characterize as ‘a sort of ¹¹ A contemporary French translation does not survive; an Italian translation, dated 1363, records that it was made from a French translation: Marsilio da Padova, Difenditore della pace, ed. C. Pincin (Turin, 1966); DP, ed. Scholz, pp. xxiii–xxiv, lxix; J. G. Sullivan, ‘Marsiglio of Padua and William of Ockam’, American Historical Review, ii (1897), 409–26, 593–610, at 597. Under the auspices of Thomas Cromwell, William Marshall published in 1535 a partial English translation under the title The defence of peace lately translated out of laten in to englysshe, with the kynges moste gracyous privilege (London, 1535): see S. Lockwood, ‘Marsilius of Padua and the Case for the Royal Ecclesiastical Supremacy’, TRHS, 6th ser., i (1991), 89–119. ¹² A. Gewirth, Marsilius of Padua: The Defender of Peace, vol. i, Marsilius of Padua and Medieval Political Philosophy (New York, 1951), 3–6. ¹³ Ibid. 12. ¹⁴ Ibid. 310.

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materialist Hegelianism’.¹⁵ Thus, according to Gewirth, ‘[Marsilius’s] doctrine clearly marks . . . the point where the multiplicity of feudal and ecclesiastic jurisdictions, and the dualism of the traditional church–state allocation, gave way to the monism of authority in which the modern conception of the sovereign state consists’.¹⁶ How this differs in substance, rather than style, from Previté-Orton’s assertion that Marsilius had discovered ‘sovereignty in the Austinian sense long before Jean Bodin’—a statement mocked by Gewirth at the opening of his book—is unclear.¹⁷ ‘The outcome’ of Marsilius’s ‘project—viewed in the sense not so much of direct causal inﬂuence as of the conception of man in society which it exhibited—was the modern world.’ ‘[T]he Marsilian doctrine is thus prophetic and, what is more important, illuminative of basic aspects of the ideas and institutions we call “modern”. . .’ Thus, as Gewirth’s conclusion reaches its crescendo: ‘Marsilianism can be described by the same epithets customarily assigned to the modern era: naturalism, secularism, movement away from hierarchic controls and towards a libertarian individualism mingled with egalitarian collectivism.’¹⁸ It goes without saying that nothing corresponding to any of these ‘epithets’ appears in Marsilius’s text. Despite Gewirth’s mockery of earlier commentators for their unhistorical approach, he seems to have pursued to its logical conclusion Previté-Orton’s observation that Marsilius lacked the modern terminology to express his modern thoughts. He presumes to remedy the deﬁciency. He imposes on Marsilius’s text the categories and preoccupations of a political philosopher writing at the University of Chicago in the mid-twentieth century. This is even more evident in his translation than in his monograph. However scrupulous the translator, a translation is perforce an interpretation. Gewirth voices a philosopher’s concern with the resulting problems.¹⁹ In his view they ‘come to a head’ with the term ‘state’.²⁰ ¹⁵ G. de Lagarde, La Naissance de l’esprit laique au déclin du moyen âge, 3rd edn., vol. iii, Le Defensor Pacis (Louvain and Paris, 1970), 25. ¹⁶ Gewirth, Marsilius, 310. ¹⁷ Previté-Orton, ‘Marsilius’, 19, cf. p. 9; Gewirth, Marsilius, 4 and n. 6. ¹⁸ Gewirth, Marsilius, 315. ¹⁹ DP, trans. Gewirth, pp. lxvi–xci. ²⁰ Ibid., p. lxxvi.

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He nevertheless uses it to translate both Marsilius’s civitas and his regnum (except when they are conjoined in the phrase civitas sive regnum, which he translates as ‘city or state’).²¹ There are a number of respects in which his modern deﬁnition of the term contradicts Marsilius’s understanding of both these terms. A case in point is his deﬁnition of the ‘sovereignty’ of the ‘state’ as territorially restricted.²² Nowhere does Marsilius say anything of the kind; but Gewirth fails to notice this, because he forces modern categories upon him. It is hardly surprising, then, that Gewirth’s translation of the Defensor pacis exempliﬁes his assessment of the book’s role in the gestation of ‘the modern world’. Nor is it surprising that Gewirth’s translation has shaped much subsequent Anglophone interpretation of Marsilius. Much of it seems to have consisted in interpretation of Gewirth’s interpretation of Marsilius. A particularly striking example of this mediated interpretation is provided by the most recent American monograph, written by another political scientist.²³ In choosing his subtitle, Cary J. Nederman focuses on one of those modern ‘epithets’ which Gewirth used to deﬁne ‘Marsilianism’. While professing to give due attention to Marsilius’s ‘historical circumstances and consequent conceptual limitations’, Nederman’s avowed principal concern is to assess Marsilius’s ‘contribution to more global forms of theoretical discourse beyond his own time’. Thereby he aspires to make Marsilius’s arguments ‘as accessible to the political philosopher as to the historian’.²⁴ In truth, he seems more concerned with the former than the latter: ‘recognition of the important differences between past and present is not warrant to wallow in historical immediacy.’²⁵ The ambivalence which we have already detected in Gewirth’s analysis is here greatly accentuated. Starting from the assumption that ²¹ Cf. Previté-Orton, ‘Doctrines’, 18; see Lagarde, La Naissance, iii. 93, n. 53, for further comment. ²² DP, trans. Gewirth, p. lxxvii; cf. Previté-Orton, ‘Marsilius’, 18: ‘The supreme government, within its territory, is to be the ultimate court of judgement . . .’ (my italics). ²³ C. J. Nederman, Community and Consent: The Secular Political Theory of Marsiglio of Padua’s Defensor Pacis (Lanham, Md., 1995). ²⁴ Ibid. 2. ²⁵ Ibid. 147.

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Marsilius has a ‘secular political theory, which is contained primarily in the ﬁrst discourse of the Defensor Pacis’, Nederman asserts that Marsilius ‘divided his treatise into separate treatments of temporal politics and ecclesiology’. He intends to focus on the former, on ‘the secular aspects of [Marsilius’s] teaching that largely excludes his concerns about the governance of the church’. He attempts to justify drawing this distinction with the assertion that ‘Marsiglio himself clearly discriminated between temporal and spiritual elements of his argument’. His justiﬁcation for this assertion would seem to be the division between Discourse I and Discourse II. He claims that unless he draws the distinction, and arbitrarily excludes from consideration Marsilius’s allegedly ‘separate’ treatment of ‘governance of the church’, then ‘the continuing value of the Defensor Pacis to political theorists might be somewhat more conﬁned, since ecclesiology must rely more directly on a set of assumptions that do not ﬁt easily with our own secular principles of politics’.²⁶ In other words, it is necessary to draw the distinction because otherwise modern political theorists would be forced to grapple with ideas which would be difﬁcult to reconcile with modern secularism. There is no need to confront modern theorists with this forbidding and unaccustomed challenge because, allegedly, there is a happy coincidence between ‘the issues that interest political theorists today’ and the ﬁrst discourse of the Defensor pacis.²⁷ In it, Marsilius addressed modern concerns. Nederman is not alone in concentrating his attention on Discourse I, although the brazen character of his disregard of Discourse II is unusual. With almost exclusive reference to Discourse I, he eschews that tracing of Marsilius’s inﬂuence through subsequent thinkers to the modern age which characterizes all the earlier commentators at whom we have looked, including (initially) Gewirth.²⁸ Instead, he advocates using the Defensor pacis (more accurately, its ﬁrst discourse) as a ‘prism’: ‘Through the refractive power of Marsiglio’s text, the possibilities of politics in our time and place come into focus with special clarity.’ Modern political theorists can, as it were, overleap the ²⁶ Ibid. 3.

²⁷ Ibid.

²⁸ Gewirth, Marsilius, 303–4, 310.

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intervening centuries and engage in direct ‘dialogue’ with Marsilius about modern concerns. He can ‘serve not merely as an inspiration but even as a guide to contemporary political theory’.²⁹ ‘Inclusion, diversity, freedom, interdependence, reason, community, consent—these key terms’, Nederman assures us, ‘form the common currency of Marsiglio’s political thought.’³⁰ Small wonder, then, that he addresses himself to ‘the modern or postmodern audience’ (my italics). In response to the rhetorical question which immediately follows—‘Is this simply anachronism?’—the answer, contrary to that anticipated by Nederman, must be an unequivocal yes.³¹ From this anachronism follows, in my view, an almost complete misunderstanding of Marsilius’s thought. For all Nederman’s postmodernist patina, therefore, it is evident that his book ﬁts into a tradition of Marsilian scholarship which focuses on allegedly modern or proto-modern characteristics of the Defensor pacis, and more particularly that proposed application of Marsilius to modern American politics ﬁrst advocated by Emerton in 1920. European scholars, who have tended to be historians rather than political scientists, have avoided these egregious errors; but many of them have continued in the tradition of Figgis and Previté-Orton to interpret Marsilius as a prophet of modernity.³² More precisely, the vast majority have shared with Gewirth a stress on Marsilius’s alleged republicanism, which Gewirth characterizes as distinctively ‘modern’ in both ‘its secularism’ and ‘its distinction of political ends—the goods which living in a state enables men to achieve—from the maximal moral and intellectual values with which the medieval Aristotelians had equated them’. Although none of these scholars would repeat after ²⁹ Nederman, Community and Consent, 6, 147. Gewirth, Marsilius, 304, effects a similar shift, more elegantly. ³⁰ Community and Consent, 147. It would be interesting to know which words in Marsilius’s text, other than communitas and racio, are translated by these ‘key terms’. ³¹ Ibid. 2. ³² C. Condren, ‘Marsilius of Padua’s Argument from Authority: A Survey of its Signiﬁcance in the Defensor Pacis’, Political Theory, v (1977), 205–18, at 207, labels this the ‘authoritative-anticipatory tradition’; see also the survey of Anglophone scholarship in his ‘Democracy and the Defensor Pacis: On the English Language Tradition of Marsilian Interpretation’, Il Pensiero politico, xiii (1980), 301–16.

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Gewirth that ‘[i]t is thus in Marsilius that the bourgeois state ﬁnds its ﬁrst thorough spokesman’,³³ an unspoken assumption along these lines underpins their republican analysis. They have equated republicanism with the medieval Italian communes, and interpreted the communes—speciﬁcally that of Padua—as the context in which the Defensor pacis was conceived.³⁴ They fail to acknowledge the awkward fact that Padua’s allegiance was Guelph, that is, that the city acknowledged papal lordship.³⁵ They ignore the fact that one of the few contemporaries other than Louis of Bavaria held up for our admiration in the Defensor pacis was Matteo Visconti, who had killed communal government in Milan.³⁶ It is no accident that these scholars have tended to be historians of the renaissance. They have interpreted the Defensor pacis as a prolegomenon to the humanist political thought of renaissance Italy.³⁷ According to this interpretation, Marsilius provided, in Nicolai Rubinstein’s words, ‘the fullest and most coherent defence of Italian republicanism that had yet been made’.³⁸ These scholars do not, like Nederman, exclude Discourse II from consideration. Rather, they attempt to integrate it into their republican interpretation. In Quentin Skinner’s representative view, its purpose was to assert that ‘the Legislator in each independent kingdom or City Republic is the sole rightful possessor of complete “coercive jurisdiction” over “every individual mortal person of whatever status” ’.³⁹ But their main attention is focused on Discourse I, because, according ³³ Gewirth, Marsilius, 307–8, 236–59. ³⁴ Ibid. 23–31; N. Rubinstein, ‘Marsilius of Padua and Italian Political Thought of his Time’, in J. R. Hale et al. (eds.), Europe in the Later Middle Ages (London, 1965), 44–75; J. K. Hyde, Padua in the Age of Dante (Manchester, 1966), 210–11; Q. R. D. Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge, 1978), i. 53, 56–65; N. Rubinstein, ‘Marsilio da Padova e il pensiero politico Italiano del trecento’, Medioevo, v (1979), 143–62. ³⁵ G. Piaia, ‘The Shadow of Antenor: On the Relationship Between the Defensor Pacis and the Institutions of the City of Padua’, in M. Kaufhold (ed.), Politische Reﬂexion in der Welt des späten Mittelalters/Political Thought in the Age of Scholasticism: Essays in Honour of Jurgen Miethke (Leiden and Boston, 2004), 193–207, at 195. ³⁶ DP II. xvi. 17; see below, pp. 18 and 174. ³⁷ The subtitle of Skinner’s ﬁrst volume is ‘The Renaissance’; see also his ‘Political Philosophy’ in C. B. Schmitt and Q. R. D. Skinner (eds.), The Cambridge History of Renaissance Philosophy (Cambridge, 1988), 389–452, at 400–2, 408–9. ³⁸ Rubinstein, ‘Marsilius’, 70. ³⁹ Skinner, Foundations, i. 21; cf. 18–22.

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to Skinner, it was there that Marsilius had analysed and sought to vindicate ‘the form of popular sovereignty embodied in such Italian City Republics as his native Padua’.⁴⁰ The medieval Italian commune was not just the context of the Defensor pacis; it was with Italy that Marsilius was ‘exclusively concerned’.⁴¹ That Marsilius’s arguments were concerned with the city republics of early fourteenth-century Italy did not mean, however, that they were only relevant in that particular context. ‘It was only necessary for the same arguments to be applied in the case of regnum as well as civitas for a recognisably modern theory of popular sovereignty in a secular state to be fully articulated.’⁴² In Skinner’s view, this generalized application of Marsilius’s arguments was a later development. In Rubinstein’s, Marsilius himself had already broadened the scope by the time he wrote the Defensor minor.⁴³ In Gewirth’s, ‘the republicanism of Discourse I . . . undergoes serious absolutistic divergences in Discourse II and in the Defensor minor’—and by ‘absolutistic’, he means its application to monarchy, speciﬁcally the king of France and the Roman emperor.⁴⁴ By suggesting that the process of progressive generalization was ‘a gradual one’—and by identifying Ockham, Pierre d’Ailly, Jean Gerson, Jacques Almain, and John Mair as key ﬁgures in it—Skinner simply postpones the fulﬁlment of what all these historians see as the potential of the Defensor pacis’s republicanism. Other than in the (not inconsiderable) terms of time-scale and historical sensitivity, then, his interpretation of the book’s signiﬁcance does not differ greatly from Gewirth’s. In Skinner’s view, Marsilius’s republicanism could become a general theory of popular sovereignty as soon as it was applied to the term regnum as well as civitas. As we have already seen, Gewirth had imposed the common translation ‘state’ on both regnum and civitas in the Defensor pacis, thereby facilitating and accelerating the shift which Skinner suggests happened over the two centuries following the book’s publication. ⁴⁰ Skinner, Foundations, i. 53, n. 1; cf. 60; cf. Skinner, ‘Political Philosophy’, 400, n. 56: ‘Note that here and hereafter all chapter references in my text are to dictio I of the Defensor pacis unless otherwise speciﬁed.’ In fact, there are no references to Discourse II. ⁴¹ Rubinstein, ‘Marsilius’, 45. ⁴² Skinner, Foundations, i. 65. ⁴³ Rubinstein, ‘Marsilius’, 74–5. ⁴⁴ Gewirth, Marsilius, 251, 253.

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This interpretation of the Defensor pacis has, for the reasons given, been the prevalent one in the English-speaking world. It has not, however, been conﬁned to that world, as the example of Nicolai Rubinstein demonstrates. Perhaps unsurprisingly, Italian scholars continue to focus on the city republic as the context for the book.⁴⁵ Closely allied to this republican interpretation is a concentration on the ‘prehumanist’ aspects of Discourse I in particular.⁴⁶ But this republican interpretation has not been universally accepted. Other continental scholars have taken the lead in contesting it. Just as it is no accident that those historians who have propounded it have tended to be renaissance specialists, so it is no accident that those who have rejected it have tended to be medievalists.⁴⁷ The ﬁnal version of Georges de Lagarde’s study of Marsilius, published in 1970, includes a detailed account of previous Marsilian scholarship, and argues that it was an ‘anachronistic error’ to label Marsilius as a theorist of republicanism.⁴⁸ The Defensor pacis is not a theoretical treatment of the politics of fourteenth-century Italian city republics. Rather, ‘the authority of the legislator has been brought so high only in order to exalt that of the civil prince’,⁴⁹ and the prince Marsilius had in mind was the Roman emperor. ‘The reasoning presented with so much candid innocence by Marsilius in the Defensor minor, to justify the abandonment of supreme legislative power to the emperor, expresses with clarity what emerges from the Defensor pacis as a whole.’⁵⁰ There was, therefore, no shift between the Defensor pacis and the Defensor minor, as Rubinstein had argued.⁵¹ On the contrary, the apparent preference for monarchy in the Defensor pacis, which ⁴⁵ See e.g. C. Dolcini, Introduzione a Marsilio da Padova (Rome and Bari, 1995), with a full, recent bibliography. ⁴⁶ P. Marangon, ‘Marsilio tra preumanismo e cultura delle arti: Ricerca sulle fonti padovani del I discorso del “Defensor pacis” ’, Medioevo, iii (1977), 89–119. ⁴⁷ Not all of them, however: see Ullmann, Principles, 268–79, and his Medieval Foundations of Renaissance Humanism (London, 1977), 124–6. But his case might be deemed the exception which proves the rule, for he combines a characteristic nineteenthcentury German interpretation—cf. O. Gierke, Political Theories of the Middle Age, trans. F. W. Maitland (Cambridge, 1900), 5—akin to that of Gregorovius, with his own assessment of the origins of renaissance humanism. ⁴⁸ Lagarde, La Naissance, iii. 279, n. 13, cf. 93, 128, 154–5; for the survey of earlier interpretations, see pp. 10–30. ⁴⁹ Ibid. 155 ⁵⁰ Ibid. 268. ⁵¹ Rubinstein, ‘Marsilius’, 75; cf. Rubinstein, ‘Marsilio’, 162.

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caused Rubinstein and other republican interpreters some disquiet,⁵² made perfect sense, because Marsilius had been concerned with the Roman Empire from the start.⁵³ His ﬂight to Louis of Bavaria’s court at Nuremberg in 1326⁵⁴ had not been his political road to Damascus. He had simply presented his analysis more crisply when he summarized it much later in the Defensor minor. Lagarde’s interpretation of the Defensor pacis is broadly shared by Jeannine Quillet. In her view, ‘the doctrine of popular sovereignty developed in the Prima Dictio is merely an artiﬁce aimed at laying the theoretical foundations of the political power of the Empire, in opposition to the temporal monarchical structures of the papacy . . . ’.⁵⁵ The Defensor pacis is designed, ‘despite pseudo-republican appearances’,⁵⁶ to justify and reinforce the emperor’s authority. The contrast which Gewirth drew between a ‘republican’ Discourse I and an ‘absolutist’ Discourse II fails to recognize, she contends, that the Italian cities existed in an imperial context.⁵⁷ No stark contrast can be drawn between the internal government of the communes and their recognition of imperial overlordship. Both aspects coexisted. This is a point which Gewirth seems unable to grasp in his response to those he labels ‘Romanists’.⁵⁸ It suggests that, far from failing to appreciate ‘the circumstances in which [the ﬁrst discourse] was composed’,⁵⁹ the ‘Romanists’ have a more rounded understanding of those circumstances, because they have not focused exclusively on the internal political life of the Italian cities. The imperial dimension was an intrinsic aspect of the fourteenth-century Italian ‘civic context’.⁶⁰ ⁵² DP I. ix. 5; Rubinstein, ‘Marsilius’, 69; Gewirth, Marsilius, 237. ⁵³ Lagarde, La Naissance, iii. 93, 126–8. ⁵⁴ C. K. Brampton, ‘Marsiglio of Padua, Part I. Life’, EHR, xxxvii (1922), 501–15, at 508–9; further below, p. 14. ⁵⁵ J. Quillet, La Philosophie politique de Marsile de Padoue (Paris, 1970), 85. ⁵⁶ Ibid. 124; cf. pp. 18, 122. ⁵⁷ Ibid. 89. ⁵⁸ A. Gewirth, ‘Republicanism and Absolutism in the Thought of Marsilius of Padua’, Medioevo, v (1979), 23–48, at 27, 32. ⁵⁹ Skinner, Foundations, i. 60. He cites Lagarde, and M. J. Wilks, The Problem of Sovereignty in the Later Middle Ages (Cambridge, 1963), 195, which argues that Marsilius ‘was clearly thinking in terms of the universal Roman empire’ when he conceived of his legislator; see further ibid. 109–17. ⁶⁰ Skinner, Foundations, i. 61.

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Marsilius, like other contemporary theorists, was acutely aware of it. Bartolus of Sassoferrato’s celebrated formula civitas sibi princeps has traditionally been interpreted as a way of justifying a city’s autonomy with respect to the emperor.⁶¹ It has recently been argued, however, that the formula might more plausibly be interpreted as a juristic remedy for the internal problem of factional strife.⁶² Conversely, Marsilius has traditionally been seen as justifying the autonomy of the Italian cities from papal jurisdictional claims.⁶³ This does not mean, however, that he considered that they should exist in an autonomous sovereign vacuum, irrespective of the emperor. In their different ways, both thinkers recognized that a city’s internal political life could be understood only in the context of its relationship with the emperor. In the comparisons which have conventionally been drawn between Bartolus and Marsilius as theorists of ‘popular sovereignty’, this fundamental point has been overlooked.⁶⁴ The ‘Romanist’ interpretation of Marsilius’s thought, propounded for the most part by continental medieval historians, has therefore given a much fuller account of its context than that sketched by those scholars whom we might label ‘republicans’. It has also, as a consequence, moderated the more outlandish assertions about Marsilius’s allegedly prophetic powers which we have seen being made principally by Anglophone scholars. It is striking that Gewirth, in his attempt to defend his position against the ‘Romanists’, failed to reiterate any of the grandiloquent claims which he had previously made on Marsilius’s behalf.⁶⁵ Perhaps because he was responding to historians, he tried to stick much more soberly to the text. As the argument advanced in this book will demonstrate, however, this toning down of his interpretation does not, in my view, render it, or the ‘republican’ case in general, any ⁶¹ Bartolus on Digest 4. 4. 3, n. 1 (In primam et secundam Digesti veteris partem (Turin, 1577), fo. 133r); on Digest 49. 1. 1 (Super secunda parte Digesti Novi (Lyons, 1504), fo. 208rb); C. N. S. Woolf, Bartolus of Sassoferrato: His Position in the History of Political Thought (Cambridge, 1913), 155–60, 188–9, 197–8; J. Canning, The Political Thought of Baldus de Ubaldis (Cambridge, 1987), 96–7; Skinner, Foundations, i. 11–12. ⁶² M. J. Ryan, ‘Bartolus and Free Cities’, TRHS 6th ser., x (2000), 65–89. ⁶³ Skinner, Foundations, i. 18–22, ii. 351. ⁶⁴ Ullmann, Principles, 282, 286–8; Skinner, Foundations, i. 61–5 ⁶⁵ Gewirth, ‘Republicanism and Absolutism’, passim.

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more convincing. This does not mean that I shall simply recapitulate for an English-speaking audience what the continental ‘Romanists’ have argued. They have not proved immune to prophetic grandiloquence themselves: Lagarde, for instance, concluded that Marsilius was ‘the lay State[’s] ﬁrst theoretician’.⁶⁶ Instead, my starting-point is the curiously neglected issue of the contemporary response to the Defensor pacis. Almost from the beginning, the book provoked outrage. That outrage produced an exceptional amount of evidence for the book’s reception, in comparison with other controversial works of the period.⁶⁷ Difﬁcult as the evidence is, it reveals how the book’s ﬁrst readers understood it, and evokes something of the circumstances in which it was written and produced. In other words, an examination of this evidence uncovers neglected aspects of the book’s context. CONTEMPORARY RESPONSES TO THE DEFENSOR PACIS As we have seen, the best manuscripts record that the book was completed on 24 June 1324.⁶⁸ There can be no doubt that it was written in Paris, where Marsilius was at the time and as the colophon of one manuscript records.⁶⁹ According to the continuator of William of Nangis, it was not, however, until some time in 1326 that those two ‘sons of perdition’, Marsilius and John of Jandun (who is consistently recorded in the early sources as having joint responsibility for the book), ﬂed from Paris to Louis of Bavaria’s court.⁷⁰ The same source ⁶⁶ Lagarde, La Naissance, 2nd edn, ii. 346. ⁶⁷ J. Miethke, De potestate papae. Die papstliche Amtskompetenz im Widerstreit der politischen Theorie von Thomas von Aquin bis Wilhelm von Ockham (Tübingen, 2000), 232–5. ⁶⁸ Above, p. 2. ⁶⁹ Ulm, Stadtbibliothek MS. 6706–08 IX D. 4, a mid- or late ﬁfteenth-century manuscript collated by Scholz, but not Previté-Orton: ‘Compositus et completus est liber iste Anno domini MCCCXXIIII parisiis in vico sorbona in domo studentium in sacra theologia ibidem.’ ⁷⁰ Chronique latine de Guillaume de Nangis de 1113 a 1300, avec les continuations de cette chronique, ed. H. Géraud, 2 vols. (Paris, 1843), ii. 75; they are described as ‘sons of perdition’ in John XXII’s document of 3 April 1327: MGH. Constitutiones et Acta Publica, vi, pt. 1, no. 274, pp. 185–6.

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records that Louis himself was bafﬂed by their sudden arrival in Nuremberg: ‘For God’s sake, who moved you to come from a land of peace and glory to this war-stricken country, plagued with tribulation and anxiety?’, he is said to have asked them. It may be that their ﬂight was prompted by the threat of imminent exposure, in the light of the book’s burgeoning notoriety. But this is not certain, because the earliest evidence for the circumstances of the book’s publication and early dissemination records that the identity of the authors was revealed only after they had gone to Germany. The evidence is, however, problematic. It is the record of a trial in Avignon, on 20 May 1328, of a certain Francis of Venice, whom Pope John XXII himself had identiﬁed as a servant of Marsilius de Mainardinis of Padua.⁷¹ The pope had convened the trial ‘personally’, instructing the judge viva voce. The charges against Francis were detailed. He had associated with Marsilius ‘in the commission of many excesses and diverse, extraordinary acts’. He had assisted ‘in the composition or compilation of a certain book containing various, diverse and multiple errors against our aforesaid lord high pontiff, the holy Roman church and the Catholic faith’. He had helped to publish the book, and had made multiple copies of it. He had facilitated Marsilius’s ﬂight to Germany, and had conveyed books to Marsilius there, ‘especially the book containing the aforesaid errors’. He had corresponded with Marsilius in Germany. He had changed money with Marsilius. In the circumstances, Francis was likely to be less than candid about what he knew, particularly with respect to the already notorious book. He admitted that he had been acquainted with Marsilius—he had sometimes walked with him when Marsilius, who ‘knew medicine’ and ‘even occasionally practised’ as a physician, was visiting his patients— but he denied having been Marsilius’s servant. He had not shared lodgings with Marsilius, except in the sense that in the hostel where (by implication) they both lived, he had himself served ‘as a scholar’, by laying the table and putting wine on it, ‘sometimes and rarely, as several ⁷¹ S. Baluze, Miscellanea, ed. J. D. Mansi, 4 vols. in 2 (Lucca, 1761), ii. 279–80.

16

Introduction

other Italian scholars did’. He had, like a number of other scholars (whom he identiﬁes, and who included several Italians),⁷² lent Marsilius money, which Marsilius had borrowed ostensibly in order to ﬁnance a course in theology. Like the other creditors, he had still not been fully repaid. He implied that they had all been conned. He had indeed ‘heard it said by Parisian reading masters and certain hermits in regular orders’ that Marsilius and John had been the authors of the Defensor pacis, but only two months after Marsilius had ﬂed. ‘This was then the public rumour in Paris, at the time when Francis himself was there, namely after the ﬂight of the aforesaid Marsilius.’ It was therefore, by implication, impossible for him to have consorted with Marsilius and John after their authorship became public knowledge. He admitted that the book had been much discussed, but this too had happened only after Marsilius’s departure for Germany. He was himself still ignorant of its heretical contents. In so far as the inquisitor had described them at the trial, he claimed that if shocking ‘errors of this sort’ had come to his attention, he would undoubtedly have reported them ‘to the lord bishop of Paris’. He had not heard of anyone other than Marsilius and John having been involved in the production of the book. One senses that Francis was not telling the court the ‘pure and simple truth’, to which he swore. But in the absence of any corroboration, it is impossible to prefer the late ﬁfteenth-century account of Giorgio Merula, who reports that the university authorities had condemned the authors, burned copies of the book, and enjoined silence, before Marsilius and John boarded their sealed train.⁷³ Precisely when the identity of the author(s) leaked out is in any case a matter of far less moment than the impression these sources give of the atmosphere of fevered speculation which the book stirred up in Paris. It was and remained a sensation. That all contemporary sources agree that John ⁷² On these scholars, see W. J. Courtenay, ‘University Masters and Political Power: The Parisian Years of Marsilius of Padua’, in Kaufhold (ed.), Politische Reﬂexion, 209–23, at 222. ⁷³ Merula, Milanese History, in L. A. Muratori (ed.), Rerum Italicarum scriptores, xxv (Milan, 1751), 80. Brampton, ‘Life’, 509, suggests that Merula was misled by an erroneous passage in Giovanni Villani, to the effect that both authors were condemned on 13 July 1324.

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was co-author, when this allegation has been disproved by modern scholarship,⁷⁴ suggests how reliable university gossip then was on any matter of detail. It seems that John of Jandun had probably been active in the dissemination of the book, and that this was mistaken for co-authorship. Francis of Venice was, of course, accused of the former crime. The copy which he was alleged to have smuggled to Marsilius in Germany may—it has been tentatively suggested—be the very one which has been shown probably to have been repeatedly corrected and amended by Marsilius himself.⁷⁵ John XXII’s personal intervention to instigate the prosecution of Francis in 1328 conﬁrms what earlier ofﬁcial papal documents already indicate: that the pope was obsessed with bringing the author(s) to book. On 21 May, the day after the trial opened, he wrote to Giovanni Colonna, instructing him to arrest them.⁷⁶ John was one of those old men whom age does not mellow, but renders more intemperate: he was 70 when he was elected pope and 88 when he died. He always seems to have been incapable of maintaining in his own mind that traditional canonical distinction between person and ofﬁce to which so much attention was devoted in the offending book: never more so than with respect to the writer whom Clement VI would in 1343 categorize as the worst case of heresy he had ever come across.⁷⁷ John XXII’s response to the Defensor pacis suggests that this was not extravagant hyperbole, but a dispassionate assessment of the perceived threat to the papacy posed by the author. ⁷⁴ DP, ed. Previté-Orton, pp. xxv–xxvi (who is unwilling to rule John of Jandun out entirely); ed. Scholz, pp. li–liii; Previté-Orton, ‘Marsilius’, 7–8; id., ‘Review’, 656: ‘he comes to the conclusion—to which I fully subscribe—that the Defensor Pacis was virtually composed by one man, Marsilius of Padua’; A. Gewirth, ‘John of Jandun and the Defensor Pacis’, Speculum, xxiii (1948), 267–72. The close association between the two men means that there has been uncertainty also about the precise part which each of them played in the production of another work: R. Lambertini and A. Tabarroni, ‘Le Quaestiones super metaphysicam attribuite a Giovanni di Jandun. Osservazioni e problemi’, Medioevo, x (1984), 41–104, esp. 54–64. ⁷⁵ Previté-Orton, (DP, pp. xxxvi–xxxvii), tentatively makes both suggestions. Scholz, (DP, pp. xxix–xxxii, xlvii), ignores the former, but strengthens the latter. In response, Previté-Orton, ‘Review’, 655, accepts it as ‘the natural inference from the facts.’ The manuscript is Tortosa, Cathedral Chapter Library MS. 141; for an alternative hypothesis on its origins, see below, p. 24. ⁷⁶ Arch. Vat., secr. T. VI; a. XII, c. 116, ep. 1289, cited by C. Pincin, Marsilio (Turin, 1967), 163. ⁷⁷ Below, p. 25.

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The ﬁrst indication that John XXII was aware of that threat is provided by a citation of Louis of Bavaria for heresy, dated 3 April 1327. In it, the pope identiﬁed two ‘sons of perdition’ who for years past had been misleading their pupils at the University of Paris, and who had now sought refuge with Louis. Both were already well known to the pope, and Marsilius’s card had been marked. They had been the beneﬁciaries of papal presentations in 1316 and 1318; in his second one in favour of Marsilius, the pope had described him as his ‘dear son’.⁷⁸ In 1319, however, Marsilius had displayed that inconstancy for which his friend Albertino Mussato would later reproach him,⁷⁹ and gone over to the Ghibelline side, acting as an envoy for Matteo Visconti,⁸⁰ ‘general lord of the Milanese people’ (formerly imperial vicar) and ally of Cangrande della Scala, captain-general of the Ghibelline league and imperial vicar in Verona and Vicenza. We know this because John denounced ‘that Italian, who is called Marsilius’ for doing so in a letter dated 29 April 1319.⁸¹ In the 1327 citation for heresy, the pope claimed that Marsilius and John of Jandun had presented Louis with ‘a certain book’ which they had written, ‘full of various heresies’ according to those who had ‘examined that book in many articles’. ‘Several catholic men, learned in scripture, had explained to Louis that the doctrine was heresy, and that [Marsilius and John] should be punished as heretics.’⁸² According to the pope’s information, the book was too much even for some of Louis’s advisers to stomach. Marsilius and John were themselves cited on 9 April, together ⁷⁸ In a document of 14 October 1316 John responded to the pleadings of two ardently papalist cardinals, James Stefaneschi and Francis Caetan, by giving Marsilius a canonry of the church of Padua; on 5 April 1318 John reserved to Marsilius the ﬁrst vacant beneﬁce in the church of Padua: [S. Riezler,] (ed.), Vatikanische Akten zur deutschen Geschichte in der Zeit Kaiser Ludwigs des Bayern (Innsbruck, 1891), nos. 6, 100. For the grant, on 16 November 1316, of a canonry of Senlis to John of Jandun, see Deniﬂe and Chatelain, CUP ii. 186. Further, Pincin, Marsilio, 29–30, 34–5; Courtenay, ‘University Masters’, 215–18. ⁷⁹ Ep. xii, ed. Pincin, Marsilio, 37. ⁸⁰ See the encomium in DP II. xxvi. 17. ⁸¹ C. W. Previté-Orton, ‘Marsilius of Padua and the Visconti’, EHR, xliv (1929), 278–9; Piaia, ‘Shadow of Antenor’, 198–9; Courtenay, ‘University Masters’, 218–20. ⁸² MGH. Const. vi, pt. 1, no 274; Brampton, ‘Life’, 509, suggests that the publication in the diocese of Passau of papal processes against ‘Louis sometime duke of Bavaria’ and ‘Marsilius of Padua and John of Jandun heresiarchs’ should be dated to 6 September 1326, but this is corrected to 6 September 1328 in MGH. Const. vi, pt. 1, no. 489, p. 402.

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with various clerical supporters of Louis.⁸³ On 23 October, after the expiry of the terms of both citations, John issued separate but complementary condemnations of Marsilius and John and of Louis as heretics.⁸⁴ The condemnation of Marsilius and John, the constitution Licet iuxta doctrinam, alleged that they had persisted in spreading the book’s ‘erroneous and heretical doctrine’ in Louis’s territories, in deﬁance of certain ‘catholic men’ who had attempted to dissuade them. So shocked had many of the faithful been that they had supplied ‘certain articles excerpted from the aforesaid book’ to the pope, by sending them and by coming to the curia in person, in the hope that he would supply a remedy for the ‘cancer’. They had, in other words, demonstrated that vigilance in the defence of orthodoxy which Francis of Venice, at his trial in the pope’s presence, claimed would have led him to report the matter instantly to the ‘lord bishop’, had he heard such views being expressed during his time in Paris. In view of what John XXII learned, his disquiet was so great that he had convened at Avignon a meeting of ‘cardinals, archbishops, bishops, and other prelates, together with many masters of theology and professors of both laws’ to deliberate on these articles. In the event, however, the meeting had concluded that the errors were so manifest that they would be obvious ‘even to the totally inexpert’. Any demonstration would therefore have been redundant, ‘like adding to ﬂames with the sun’. Nevertheless, the pope proceeds to list and to refute the errors. This detailed, contemporary response to the Defensor pacis was further publicized in a number of letters to various recipients, all, apparently, with the incipit Certum processum.⁸⁵ Indeed, it is likely that a copy of Certum processum was ⁸³ MGH. Const. vi, pt. 1, no 277, pp. 192–6. ⁸⁴ Raynaldus, Annales, v. 347–53 (Marsilius and John); MGH. Const. vi, pt. 1, no. 361, p. 266 (Louis). Licet iuxta doctrinam is appended to a copy of the Defensor pacis, dated 1401, found in Biblioteca apostolica vaticana, MS. lat. 3974, designated ‘L’ by PrevitéOrton and Scholz: DP, ed. Scholz, p. ix. ⁸⁵ A letter with this incipit was sent to the bishop of Worcester on 26 October: P. N. R. Zutshi (ed.), Original Papal Letters in England, 1305–1415 (Vatican City, 1990), no. 150, pp. 74–5. A letter with the same incipit is copied in Admont, Stiftsbibliothek MS. 269, fos. 69r–77r. For the letter to the bishop of Paris which probably had the same incipit, see

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sent to every bishop in Christendom; hence the need to employ notaries-public, rather than overworked chancery scribes, to engross them.⁸⁶ The scale of the response indicates John XXII’s assessment of the scale of the threat. Yet these resolute papal measures have been almost entirely ignored in modern discussions of the Defensor pacis.⁸⁷ In Licet iuxta doctrinam John XXII addressed ﬁve heretical errors about which he had been informed: 1. That Christ had paid tribute to Caesar ‘out of necessity’, and therefore ‘that all the temporalities of the church are under the emperor, and he may take them as his own’. 2. That Peter had no more authority than the other apostles, and that he was not the head of the apostles; further, that Christ had established no head of the church, and had made no one his vicar. 3. That it pertains to the emperor’s remit to institute, depose, and punish a pope. 4. That all priests of whatever rank, including the pope, are, by Christ’s institution, of equal authority and jurisdiction. If one has more than another, that is because the emperor has conceded more or less to one or another; and what the emperor has conceded, he can also take away. 5. That the whole church gathered together cannot inﬂict coercive punishment on any man, except by the emperor’s concession. below, p. 43. I am indebted to Partick Nold for supplying me with both these references. Riezler (ed.), Vat. Akt. no. 967 (23 Jan. 1328), provides further evidence for the widespread publication of the processes against Louis of Bavaria and against Marsilius and John of Jandun, in this case in the diocese of Sion and the archdiocese of Besançon. I am indebted to Magnus Ryan for this reference. ⁸⁶ Zutshi, Original Papal Letters, p. lxix; P. N. R. Zutshi, ‘The Political and Administrative Correspondence of the Avignon Popes, 1305–1378: A Contribution to Papal Diplomatic’, in Aux origines de l’état moderne: Le Fonctionnement administratif de la papauté d’Avignon, Collection de l’École française de Rome, cxxxviii (Rome, 1990), 371–84, at 379–80; cf. MGH. Const. vi, pt. 1, no. 489, p. 402 (6 Sept. 1328), to the bishop of Pavia. I am indebted to Patrick Zutshi for this point. ⁸⁷ Pincin, Marsilio, 156–7, is an exception; see also G. de Lagarde, La Naissance de l’ésprit laique, 2nd edn., vol. ii, Marsile de Padoue, ou le premier théoricien de l’état laique (Paris, 1948), 305, 314, 324, 331–2, 339–40 (this discussion has been excised from the third edition of 1970). Nederman, Community and Consent, 12, n.18, is under the

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When, on 20 April 1329, the pope recounted the earlier proceedings against Marsilius and John of Jandun in his renewed condemnation of Louis’s heresies, it was the third error that he highlighted as most heinous of all.⁸⁸ I shall deal with the detail of the pope’s refutations as these matters are discussed below. Here it sufﬁces to note that although John does not appear to have read the Defensor pacis himself when he issued Licet iuxta doctrinam—there is still no indication that he had done so when he issued the renewed condemnation of 20 April 1329— he had been told a great deal about its contents. His preference for working from summaries is well attested:⁸⁹ perhaps his understandable sense of impending mortality gave an impatient edge to his senescent intemperance. He did not have the time to read through all this foul material himself. The reports he had received must have been based on his informants’ reading of copies of the book, allegedly disseminated by the likes of Francis of Venice, and on their listening to the preaching of its doctrine, denounced in this and other papal documents.⁹⁰ Marsilius was said to have done so himself in Bavaria,⁹¹ and may have continued to argue his case during Louis’s Italian expedition in 1327, when he preached in Trent and Milan.⁹² In the pope’s view, the reports were so alarming that they justiﬁed mentioning Marsilius and John of Jandun in the same breath as Arius, Manichaeus, Nestorius, and Dioscorus.⁹³ All the errors which John identiﬁes were extracted from Discourse II. This was where the most shocking arguments in the book were to be found, according to its professed target and, presumably, his informants and advisors. Those ‘catholic men, learned in Scripture’, who had allegedly described the book’s heretical contents to Louis of Bavaria, would almost certainly have alighted upon the same errors. erroneous impression that Pincin prints the entire text of ‘Licit [sic] iuxta’. The constitution was discussed by Sullivan, ‘Marsiglio and Ockam’, 594–5. ⁸⁸ MGH. Const., vi, pt. 1, no. 575, pp. 477–8. ⁸⁹ F. Petrarch, Rerum memorandarum, lib. II, in Opera (Basel, 1544), i. 429, quoted by P. Nold, Pope John XXII and his Franciscan Cardinal: Bertrand de la Tour and the Apostolic Poverty Controversy (Oxford, 2003), 35, n. 6. ⁹⁰ MGH. Const., vi, pt. 1, no. 274, p. 186, no. 277, p. 195, no. 361, p. 266, no. 428, p. 366, no. 575, p. 478, no. 814, p. 687. ⁹¹ Continuation to Chronique de Guillaume de Nangis, ii. 15. ⁹² Raynaldus, Annales v. 533. ⁹³ Ibid. v. 353.

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It was Discourse II which created a sensation among the book’s initial audience. Licet iuxta doctrinam is therefore a salutary corrective to those modern scholars who have seen Discourse I as the book’s principal claim to attention. This was not the view of hostile contemporaries. The reports forwarded to Avignon by the pope’s informants have not survived; but the text of a document circulated by him to his advisors is preserved as a preface to the opinions written at his request by two of them, Sybert of Beck, provincial of the Carmelites in Lower Germany,⁹⁴ and William Amidani of Cremona, general of the Augustinian Order.⁹⁵ Guido Terreni seems also to have responded to the papal circular.⁹⁶ It, or something similar, appears to lie behind Petrus de Lutra’s Tractatus contra prefatum Michaelem de Cesena et socios eius, which, despite its title, is primarily concerned with the Defensor pacis.⁹⁷ It is unclear whether the papal brieﬁng document was sent out before or after Licet iuxta doctrinam.⁹⁸ In view of the similarities between it and Licet iuxta doctrinam, it seems very likely that it was based on the same reports submitted to the papal curia. In conjunction with the constitution, it gives a clear summary of what was in those reports. John XXII consulted his advisors concerning six errors: 1. All ecclesiastical temporalities are under the emperor, and he may receive (accipere) them as his own. 2. It pertains to the emperor’s remit to correct, punish, institute, and depose the pope. ⁹⁴ R. Scholz, Unbekannte kirchenpolitische Streitschriften aus der Zeit Ludwigs des Bayern (1327–1354), 2 vols. (Rome, 1911–14), ii. 3–15 (selections); cf. i. 1–13, Lagarde, La Naissance, ii. 315–17; Pincin, Marsilio, 157–8. ⁹⁵ Scholz, ii. 16–28 (selections); cf. i. 13–22. There is now an edition of the entire treatise: Tractatus cuius titulus reprobatio errorum, ed. D. MacFhionnbair, Corpus scriptorum Augustinianorum, iv (Rome, 1977). ⁹⁶ Confutatio errorum quorundam magistrorum, in Biblioteca apostolica vaticana, MS. Vat. lat.10497, cited and discussed by Miethke, De potestate papae, 233, n. 714. I have not been able to consult this manuscript. ⁹⁷ Scholz, ii. 29–42 (selections); cf. i. 22–7. This deals with four errors: that all ecclesiastical temporalities are under the emperor; that the emperor can treat all ecclesiastical goods as his own; that Christ paid tribute to Caesar; and that the emperor can correct, punish, institute and depose a pope. ⁹⁸ Ibid. i. 6, and Lagarde, La Naissance, ii. 314, assert that it was circulated prior to Licet iuxta doctrinam.

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3. St Peter had been no more the head of the church than the other apostles. Christ had given no leader to His church and had constituted no vicar for Himself. 4. All priests, ‘whether pope or archbishop or simple priest are of equal authority and jurisdiction by Christ’s institution. That one has more than another is according as the emperor concedes more or less, and what he has conceded he can revoke. From which it follows, according to the blasphemies of these stupid heretics, that, during the ﬁrst three Christian centuries, when idolatry prevailed throughout the world and those holy popes cultivated the church like saints, there was no pope or pontiff . . .’ 5. That the pope and the Roman church could not inﬂict a coercive punishment on any man, howsoever wicked he might be, unless the emperor had given them the authority. 6. That any priest can absolve from any crime or wrong, just like the pope. What survives of the pope’s document for private circulation to his advisors conﬁrms the impression given by his public condemnation: that the danger of the Defensor pacis lay in Discourse II. There is, therefore, plenty of evidence for those who were alarmed by the book excerpting or summarizing the most offensive bits, both as reports submitted to the curia, and in papal memoranda distributed from Avignon. In accordance with his normal modus operandi, John XXII seems to have been in no hurry to track down a copy of the book itself; but as the reports demonstrate, other potential readers had been more eager to read Marsilius for themselves. Such was the demand⁹⁹ that the book remained in short supply. In 1350 Conrad of Megenberg admitted that he had not been able to lay his hands on a copy.¹⁰⁰ Indeed, ⁹⁹ For two recently discovered late fourteenth-century manuscripts of the French recension, see C. Jeudy, ‘Note sur deux manuscrits du groupe français du Defensor pacis de Marsile de Padoue’, Medioevo, vi (1980), 524–32. ¹⁰⁰ Yconomica, 2. 3. 1, in Konrad von Megenberg, Oekonomik, ed. S. Kruger, 3 vols., MGH. Staatsschriften III, 1–3 (Stuttgart, 1973–84), ii. 87.

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he almost seemed to make a pious virtue of the fact that he had not read the book, as if the heresy it contained might be potentially contagious. The carelessness of many of the extant manuscripts, particularly noticeable in the French group, may reﬂect the rapidity with which early copies were produced to satisfy demand.¹⁰¹ Conversely, it may reﬂect the distaste of orthodox scribes for the heretical matter which they were obliged to copy.¹⁰² Perhaps it reﬂects both. The earliest extant copy— the one which Marsilius himself may have corrected and supplemented—is not peppered with errors indicative of scribal haste or revulsion. But it has been putatively linked with the papal curia, in the sense that it is written in a hand similar to that found in contemporary papal registers. Scholz suggested that it might have been copied when Louis and John XXII were (unsuccessfully) attempting a rapprochement in 1331—a process which supposedly necessitated a thorough curial reinvestigation of the book’s contents—and sent to Avignon by Louis.¹⁰³ As we have seen, Previté-Orton had previously suggested that this might have been the very manuscript which Francis of Venice was accused, in 1328, of having conveyed from Paris to Nuremberg for Marsilius.¹⁰⁴ It would be difﬁcult to reconcile this hypothesis with Scholz’s, subsequently commended by Previté-Orton (without further reference to its implications for his own earlier suggestion). PrevitéOrton goes on to advance a third possibility: that the copy was written during negotiations between Louis and John’s successor, Benedict XII, and sent to Marsilius in Germany for correction.¹⁰⁵ None of these hypotheses is capable of proof. But whatever the precise date¹⁰⁶ and location of the manuscript’s production, the character of the hand is ¹⁰¹ It is impossible to prove this point, because the extant French manuscripts, which preserve the original text of 1324, are all later than the earlier German manuscripts, which preserve the revised text. ¹⁰² DP, ed. Previté-Orton, p. xxxiv. ¹⁰³ DP, ed. Scholz, p. xxix, xxxi, xlvii. If it was written in Germany at Louis’s command, then the curial hand requires further explanation. ¹⁰⁴ Above, p. 17. ¹⁰⁵ Previté-Orton, ‘Review’, 655. ¹⁰⁶ The apparent allusion to John XXII’s Quia vir reprobus (Nov. 1329) in one of the marginal additions (II. xiv. 8) had been considered to provide a terminus post quem for this manuscript, and therefore (probably) for the revisions attributed to Marsilius. But K. E. Spiers, ‘Pope John XXII and Marsilius of Padua on the Universal dominium of Christ: A Possible Common Source’, Medioevo, vi (1980), 471–8, shows that the allusion could be to a much earlier document.

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testimony to the developing papal obsession with the Defensor pacis. Benedict XII, formerly that relentless rooter out of heresy Jacques Fournier, bishop of Pamiers,¹⁰⁷ commissioned a further inquiry from Pierre Roger. The report does not survive, but shortly after Roger succeeded Benedict as Clement VI, the new pope referred to its ﬁndings in a collatio delivered on 10 April 1343. The inquiry had identiﬁed not ﬁve or six heretical errors, as speciﬁed in John XXII’s documents of 1327, but ‘more than 240’.¹⁰⁸ We may infer that they covered the same ground as John XXII’s ﬁve or six in much more detail, for subsequent denunciations of the book were no different from earlier ones (and, indeed, reafﬁrmed John XXII’s condemnations, rather than the ﬁndings of Benedict’s inquiry).¹⁰⁹ It was Discourse II which continued to stick in the papal craw, and which moved Clement to say ‘we have scarcely ever read a worse heretic than that Marsilius’. What is true of the ofﬁcial curial responses, including those of the pope’s advisors, is true also of the initial literary ones.¹¹⁰ The earliest is Petrus de Lutra’s pamphlet Tractatus, ostensibly directed against Michael of Cesena, but in fact concerned primarily with the Defensor pacis.¹¹¹ John XXII’s circular seems to provide a framework for the ¹⁰⁷ E. Le Roy Ladurie, Montaillou: Cathars and Catholics in a French Village, 1294–1324 (London, 1978). ¹⁰⁸ H. S. Ofﬂer, ‘A Political collatio of Pope Clement VI, O.S.B.’, Revue Benedictine, lxv (1955), 126–44, at 136. ¹⁰⁹ See the process of Clement VI against Louis (Apr. 1343), in Raynaldus, Annales, vi. 323; for the 1375 inquiry in the Faculty of Theology at the University of Paris, see below, p. 42. ¹¹⁰ Sullivan, ‘Marsiglio and Ockam’, 595, asserts that Marsilius was attacked by Petrus Paludanus (Pierre de Palu) in his De causa immediata ecclesiasticae potestatis, which he dates to1328 (cf. The Defensor Minor, ed. C. K. Brampton (Birmingham, 1922), p. xvii); he cites the Paris, 1506 edn., fo. 48, in which it was printed along with a number of earlier treatises, by Durandus de S. Porciano, John of Paris, and Herveus Natalis, together with the anonymous Rex paciﬁcus. Although many of the manuscripts attribute the treatise to Pierre, it has been shown to be the work of Guillaume de Pierre Godin, and to have been written in ‘mid-to-late 1318’: Guillaume de Pierre Godin, Tractatus de causa immediata ecclesiastice potestatis, ed. W. D. McReady (Toronto, 1982), 7–33 (authorship), 34–5 (date). Unsurprisingly in view of this date, it makes no reference to the Defensor pacis or to Marsilius. The 1506 edn. is unpaginated, but I have been unable to ﬁnd any interpolation concerned with Marsilius. What would be fo. 48 has a discussion of papal vacancies. ¹¹¹ Above, p. 22. N. Alexander, Selecta historiae ecclesiasticae capita, 25 vols. (Paris, 1677–86), saeculum xiii et xiv, pars prima, p. 394–6, cites Alexander of S. Elpidio,

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pamphlets of Hermann of Schildesche and Lambert Guerici of Huy, but they do not mention the Defensor pacis explicitly.¹¹² Much the most detailed contemporary attack, however, was mounted by Alvarus Pelagius, John XXII’s penitentiary, who left Avignon to become bishop of the Portuguese see of Silves in 1333. Alvarus is chieﬂy remembered for his intemperate and exhaustive De statu et planctu ecclesiae, completed (by his own account) in Avignon in 1332, and successively revised in 1335 and 1340.¹¹³ The short section which concentrates on Marsilius appears to have been an earlier work, which Alvarus spliced into De planctu.¹¹⁴ If so, it had been a very early response to the Defensor pacis. It attacks ‘Marsilius the Paduan, that new heresiarch’,¹¹⁵ on a number of grounds, most of which will by now be familiar. He had argued that because Pilate had judged Christ, all clerics, including the pope, were subject to the emperor’s jurisdiction.¹¹⁶ In truth, Pilate had judged Christ as a private person, not as a priest, and himself recognized that he had judged Him in vain. Even if a pope had fallen into heresy, the emperor could not summon him before a tribunal. Marsilius had ‘dogmatized that any priest has as much power as the pope’—an error which would lead to a monstrous, many-headed church.¹¹⁷ ‘This impious, cunning sophist’ had denied that the church could hold temporal goods, thereby resurrecting the ancient heresy of the Waldensians.¹¹⁸ He had claimed that when Christ had ascended into heaven, He had left no vicar to represent Him on earth.¹¹⁹ In truth, of course, ‘there is one vicar of God on earth, who is head of the church in Christ’s place’.¹²⁰ De iurisdictione imperii et auctoritate summi pontiﬁcis. But Alexander of S. Elpidio wrote no surviving work of this title, and died in 1326. I have been unable to establish what Noel Alexander had in mind. ¹¹² Scholz, Unbekannte Streitschriften, i. 50–60, ii. 130–53 (Hermann); i. 60–70, ii. 154–68 (Lambert); see Miethke, De potestate papae, 233–4. ¹¹³ Status et planctus ecclesiae. Estado e pranto da greja, ed M. Pinto de Meneses, 8 vols. (Lisbon, 1988), praef., i. 332; N. Iung, Un Franciscain, théologien du pouvoir pontiﬁcal au xiv siècle: Alvaro Pelayo, évêque et pénitencier de Jean XXII (Paris, 1931), 36–7. ¹¹⁴ Pt. I, arts 68–70, vol. iii. 322–417; speciﬁc mentions of Marsilius are conﬁned to art. 68; Raynaldus, Annales v. 353. Iung, Franciscain, 43. ¹¹⁵ De planctu I. art. 68, par. J, iii. 336. ¹¹⁶ Ibid., iii. 336–8; cf. art. 22, i. 366. ¹¹⁷ Ibid., art. 68, pars. L, M, iii. 338–44. ¹¹⁸ Ibid., par. Q, iii. 346–8. ¹¹⁹ Ibid., par. R, iii. 348–50. ¹²⁰ Ibid., art. 12, i. 344.

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Thus far, Alvarus’s allegations were akin to those of the pope whose penitentiary he was. But the climax of his list, tucked unobtrusively into the middle, is a charge which even John XXII did not make: that Marsilius claimed that during a papal vacancy, the emperor ‘succeeds to the papacy, and could then bind and loose’.¹²¹ ‘But whence he has this, and how he can say this, I do not know, for all of Scripture and all reason contradicts this position.’ It is likely that the pope does not allege this against Marsilius because Marsilius does not say it. Lagarde took Alvarus’s allegation as an indication that he had not read the Defensor pacis himself, but had, like the pope and some of Marsilius’s other critics, depended on the reports of others.¹²² Such an inference is undermined by the detailed nature of Alvarus’s attempted refutation of the book. It is more likely that he saw the culminating claim he foisted on Marsilius as the logical conclusion of the Defensor pacis, the converse of the papal claim (based on Innocent III’s decretal Venerabilem)—which Alvarus commends¹²³ and Marsilius repeatedly denounces¹²⁴—that the Empire reverts to the pope during an imperial vacancy. He displayed a polemicist’s readiness to extrapolate his opponent’s case, in order to dispatch it more effectively. Alvarus’s arguments are to a degree moulded by those he was attempting to refute, most notably those of Marsilius.¹²⁵ In this instance, however, it would be more accurate to say that Alvarus exploited the similar tendency in Marsilius’s writing, in order to impose upon him an outrageous logical conclusion which he never, in fact, voices. After Alvarus’s move to Silves, he redoubled his attempts to defend the imperilled church with his encyclopaedia of heresies, Collyrium ﬁdei adversus haereses, probably completed in 1334. All the threats he perceived, including vegetarianism and female transvestism, were lumped into the catch-all category.¹²⁶ Contemporary heresies are ¹²¹ Ibid., art. 68, par. P, iii. 344–6. ¹²² Lagarde, La Naissance, ii. 317–18. ¹²³ De planctu I. art. 37, par. S, i. 452; cf. art. 13, par. F, i. 358; he applies the same analysis to kingdoms at art. 45, par. B, fo. 20r. ¹²⁴ Below, p. 172. ¹²⁵ Iung, Franciscain, 146. ¹²⁶ P. A. Linehan, History and the Historians of Medieval Spain (Oxford, 1993), 605.

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catalogued in the ﬁfth part of the book. The ﬁrst target of this part is Marsilius,¹²⁷ conﬁrming the seriousness of the threat which he was deemed to pose; but Alvarus adds nothing of substance to De planctu. He concentrates on three of the errors he had already identiﬁed: that a pope may be judged and deposed by an emperor; that any priest has the same power as the pope; and that the emperor succeeds during a papal vacancy. It might be objected that, thus far, I have considered only hostile responses to the Defensor pacis. As is now clear, their authors were above all alarmed by Marsilius’s treatment of the papacy, the subject which, in explicit fashion, dominates Discourse II. Did those readers (and listeners)¹²⁸ who were attracted rather than repelled by the book’s arguments concentrate on other aspects? Did those who clamoured for the sloppily produced copies clandestinely distributed by the likes of Francis of Venice turn eagerly to Discourse I, in order to bone up on the novel doctrines which many modern historians have detected in it? Unsurprisingly, detailed records are lacking of the book’s immediate reception by those who were sympathetic to it. Louis of Bavaria was not likely to commission the sort of intensive inquiries which we have seen his opponent initiating, or at least not inquiries which would produce similarly detailed written assessments. It is clear that whoever produced the negotiating document in Louis’s name during the failed rapprochement between Louis and Benedict XII in 1336 used Licet iuxta doctrinam to detail the allegedly heretical doctrines contained in the Defensor pacis, for it reproduces John XXII’s list, in the same order.¹²⁹ Some of Louis’s actions during his Italian expedition, in which Marsilius played a not inconsiderable part, have been interpreted as an attempt to implement the doctrine of the Defensor pacis.¹³⁰ ‘[Marsilius] was perhaps the most damaging gift that the Lombard ¹²⁷ Alvarus Pelagius, Collyrium ﬁdei adversus haeresis. Colirio da fé contra as heresias, ed. M. Pinto de Meneses, 2 vols. (Lisbon, 1954–6), ii. 25–32; Iung, Franciscain, 60–1. ¹²⁸ Above, p. 21, for the preaching of Marsilius’s heretical doctrines; DP II. ii. 1, for Marsilius envisaging an audience for the book, in the literal sense of the word. ¹²⁹ Riezler, ed., Vat. Akt. no. 1841 (28 Oct. 1336). I am grateful to Magnus Ryan for pointing this out to me. ¹³⁰ Brampton, ‘Life’, 511; Previté-Orton, ‘Doctrines’, 4–5.

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Ghibellines ever slipped into Lewis’ pocket.’¹³¹ If that interpretation of Marsilius’ importance be correct, he was quite exceptional as a political theorist in that he was afforded the opportunity to put some of his theories into practice. But such an interpretation can only be suggestive; it is not incontrovertible evidence of how the book was understood by its sympathetic audience. According to Albertino Mussato, a friend of Marsilius who elsewhere provides much of the information about Marsilius’s life in two poetic epistles to him,¹³² Marsilius and Ubertino da Casale were constantly at Louis’s side during his Italian expedition. Indeed, they had jointly composed the process which justiﬁed the public deposition of John XXII in Rome on 18 April 1328,¹³³ by which time Marsilius was ‘posturing’ as spiritual vicar there.¹³⁴ But Marsilius’s involvement in John’s deposition does not amount to evidence of the book’s reception. The further suggestion that some of Louis’s acta—for instance, his deposition of John XXII¹³⁵ and subsequent mandate on the sentence of deposition,¹³⁶ or his letters of 27 October 1329 to the cities of Speyer and Worms¹³⁷—were based upon the Defensor pacis¹³⁸ turns out to mean no more than that Louis’s claim to judge the pope is compatible with the book’s argument.¹³⁹ There are no verbal echoes. For evidence of the book’s appeal, we must turn instead to those other imperialist writers who, together with Marsilius, have been generally acknowledged to constitute the most remarkable and novel aspect of the conﬂict between Louis and the papacy. How did they respond to the Defensor pacis? ¹³¹ H. S. Ofﬂer, ‘Empire and Papacy: The Last Struggle’, TRHS, 5th ser., vi (1956), 21–47, at 39. ¹³² Ep. xii, ed. Pincin, Marsilio, 37–40; ep. xvi, ed. J. G. Graevius, Thesaurus antiquitatum et historiarum Italiae, 9 vols. (Lyons, 1704–25), vi, pt. 2, col. 51. ¹³³ Ludovicus Bavarus, in J. F. Böhmer and A. Huber (eds.), Fontes rerum Germanicarum: Geschichtsquellen Deutschlands, 4 vols. (Stuttgart, 1843–68), i. 170–89, at 175–6; Pincin, Marsilio, 162. ¹³⁴ MGH. Const. vi, pt. 1, no. 439 (15 Apr. 1328). ¹³⁵ Ibid., nos. 436, 437 (18 Apr. 1328). ¹³⁶ Ibid., no. 528 (13 December 1328). ¹³⁷ Ibid., nos. 656, 657. ¹³⁸ The suggestion is made by Sullivan, ‘Marsiglio and Ockam’, 594; see now C. Dolcini, ‘Marsilio e Ockham 1328–1331: Il diploma imperiale “Gloriosus deus” per la deposizione di Giovanni XXII e la memoria politica “Quoniam scriptura” ’, Medioevo, vi (1980), 479–89, esp. 481–4; id., Marsilio da Padova, 42–3. ¹³⁹ Pincin, Marsilio, 162–3, n. 57.

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In a collatio delivered on 11 July 1343, which takes up a text invoked in that of 10 April (Proverbs 18: 3), Clement VI alleged that William of Ockham had ‘taught and still teaches diverse errors against the power and authority of the Holy See, and from William that Marsilius and many others learnt and received those errors’.¹⁴⁰ This reveals nothing other than that papal intelligence was no more infallible than Marsilius considered the pope to be. For it is certain that those works of William of Ockham which are concerned with the same subjects as the Defensor pacis were written long after it, and that some of them explicitly responded to it. What, however, did William learn from Marsilius? He must ﬁrst have learned about the Defensor pacis, as the pope had done, at second hand. Like Marsilius (and John of Jandun) before him, William, in May 1328, ﬂed to Louis’s court.¹⁴¹ Unlike Marsilius, it was only there that he began his career as a political writer. His ﬁrst polemic against John XXII, Opus nonaginta dierum (1332–4), contains two critical asides which may be directed at Marsilius.¹⁴² But there is no clear evidence of direct intellectual contact between him and Marsilius until William wrote the ﬁrst Tract of Part III of his Dialogus between Master and Pupil some time after 1334.¹⁴³ The Tract is concerned with ¹⁴⁰ H. S. Ofﬂer, ‘An Interpolated collatio of Pope Clement VI, O.S.B.’, Revue Benedictine, lxxxiv (1974), 111–25, at 123. Ofﬂer advances an ingenious case for this passage being part of an interpolation in an otherwise genuine document, designed to blacken William of Ockham’s reputation. His principal argument—that someone as well informed as Clement VI would not have got the relationship between Marsilius and William so wrong—begs the question I raise. Even if the passage is an interpolation, possibly, as Ofﬂer suggests, by Conrad of Megenberg, it still indicates that papalists were capable of getting hold of the wrong end of the stick, where the intellectual relationship between Marsilius and William was concerned. It also shows that any association with Marsilius was damning. Conrad of Megenberg quotes the collation in his Tractatus contra Willelmum Ockham: Scholz, Unbekannte Streitschriften, ii. 346–91. ¹⁴¹ For his ﬂight from Avignon in the company of Michael of Cesena, see G. Knysh, ‘Biographical Rectiﬁcations Concerning Ockham’s Avignon Period’, Franciscan Studies, xlvi, annual 24 (1986), 61–91. ¹⁴² Opus nonaginta dierum, in Guillelmi de Ockham Opera Politica, ed. R. F. Bennet et al., 4 vols. (Manchester and Oxford, 1940–97), vol. ii. p. xix; cap. 77, p. 633; cap. 93, p. 688. ¹⁴³ William of Ockham, A Letter to the Friars Minor and Other Writings, ed. A. S. McGrade and J. Kilcullen (Cambridge, 1995), p. xxxvi. The similarities between the Defensor pacis and certain arguments in Part I of the Dialogus, remarked upon by G. de Lagarde, ‘Marsile de Padoue et Guillaume d’Ockham’, Revue des sciences religieuses,

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the powers of the pope and the clergy. In it, William attempted to remedy what the Pupil presented, in the opening chapter of this Tract, as a deﬁciency in the earlier Part I, ‘on account of the remarks (dicta) of some people that were not available to us at that time’.¹⁴⁴ It is clear from what follows that the ‘remarks’ which had come to William’s attention in the interim were those of Marsilius, for in Books 3 and 4 of Tract 1 of Part III, the Master comments at length on two related propositions taken from the Defensor pacis. William may have used the version which had probably been revised by Marsilius himself, for in one instance a quotation from the Defensor pacis reproduces the wordordering found in one of the (allegedly autograph) marginal corrections in Tortosa, Cathedral Chapter Library MS. 141.¹⁴⁵ Although the Pupil opens Book 3 by raising the question of whether Christ had made Peter head of the apostles and of all the faithful, it is not overtly pursued in the book which follows. Instead, the Master begins to lay the ground for an eventual answer in Book 4. He narrows the focus of the inquiry by quoting Marsilius’s contention that a general council cannot err; whether its proceedings are, like Scripture, infallible.¹⁴⁶ This is the ﬁrst extant quotation—as distinct from brief paraphrase or summary—of the Defensor pacis. The Master carefully dissects Marsilius’s arguments and refutes the proposition.¹⁴⁷ Although he acknowledges the role of general councils in the deﬁnition xvii (1937), 168–85, 428–54, amount to no more than general similarities. He does not establish that William was responding to Marsilius’s text. ¹⁴⁴ III Dialogus i. 3, cap. 1, ed. J. Kilcullen et al., at http://www.britac.ac.uk/pubs/ dialogus, p. 142. Pincin, Marsilio, 183–4 suggests that William paraphrased the Defensor pacis in I Dialogus, see esp. DP II. xvi. 16 and I Dialogus, Bk. 5, cap. 17. But the similarities in phrasing are not sufﬁciently close to be conclusive. ¹⁴⁵ DP II. xvi. 9, at fo. 54v (and Vienna, Nationalbibliothek, MS. 464, which is copied from the Tortosa MS.), quoted at III Dialogus i. 4, cap. 1, p. 220: J. G. Sikes, ‘A Possible Marsilian Source in Ockham’, EHR, li (1936), 496–504, at 501, n. 4; DP, ed. PrevitéOrton, pp. xxxvii–xxxviii, 280, note d; ed. Scholz, pp. xxxii–xxxiv, 346, note a. The correspondence between the marginal amendments in the Tortosa MS. and the Dialogus is not otherwise exact. ¹⁴⁶ III Dialogus i. 3, cap. 1, pp. 142–3; cf. DP II. xix. 1–3. In DM xi. 3, p. 252, Marsilius shifted his ground: he acknowledged that a general council might revoke the decision of an earlier general council, either partially or totally. ¹⁴⁷ III Dialogus i. 3, caps. 8–11, pp. 156–67 (trans. in Writings, 207–19).

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of orthodoxy, he demonstrates that they are no more infallible than ‘the pope with the college of cardinals’.¹⁴⁸ Towards the end of Book 3 he returns to the next step in Marsilius’s discussion, which he also quotes at length: the contention that no writings other than Scripture and the proceedings of general councils are infallible.¹⁴⁹ He takes this to mean that no credence whatsoever should be given to such writings, a contention which he shows to be plainly absurd (and to have been ignored in practice by Marsilius).¹⁵⁰ Marsilius’s claims about which writings are infallible and which are not therefore enabled William of Ockham to broaden the question of the standing of general councils into a discussion of the reliability of all types of written evidence. Having established which sources might be used to answer any question, he could now begin to address that posed by the Pupil in the opening sentence of the book. At the start of the fourth (and ﬁnal surviving) book of this Tract of III Dialogus, therefore, the Master turned again to the Defensor pacis in order to answer that question, which the Pupil repeats: whether Christ had established ‘the blessed Peter as princeps and praelatus of the other apostles, and of all the faithful.’¹⁵¹ If the Defensor pacis bulked large in Book 3, it dominates Book 4. The Master again concentrates on a few passages in the Defensor pacis, which are again quoted extensively.¹⁵² Contrary to the view of Marsilius, he argues that Christ had indeed granted Peter power and authority over the other apostles. Given what Book 3 had already established about the acceptability of sources other than Scripture and the proceedings of general councils, the interpretation by early Christian writers of Christ’s words in Matthew’s gospel could not be dismissed.¹⁵³ Since Christians had accepted this interpretation ever since, all Catholics must continue to hold ﬁrmly to it. Reason as well as authority proved this.¹⁵⁴ The papacy had been ¹⁴⁸ Ibid., cap. 9, p. 163. ¹⁴⁹ Ibid., cap. 21, pp. 196–8; cf. DP II. xix. 4–6. ¹⁵⁰ III Dialogus i. 3, caps. 22–4, pp. 198–206. ¹⁵¹ Ibid., i. 4, cap. 1, p. 215. ¹⁵² Ibid., cap. 1 (DP II. xvi. 2–10); cap. 3 (DP II. xxvii. 2; II. xxviii. 8–9, 25–6); cap. 12 (DP II. xxviii. 5–6); cap. 21 (DP II. xxviii. 7). ¹⁵³ III Dialogus i. 4, caps. 13–18. ¹⁵⁴ Ibid., cap. 22, pp. 268–71 (trans. in Writings, 226–9); cf. J. Kilcullen, ‘Ockham and Infallibility’, Journal of Religious History, xvi (1991), 387–409, at 392.

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divinely instituted.¹⁵⁵ Of course, William did not accept many of the more extreme claims of the theorists of papal monarchy. Far from it: the Dialogus begins by setting them out for consideration,¹⁵⁶ and progressively undermines many of them. He sought to rein in the boundless hegemonic claims of John XXII by restoring what he presented as the original, divinely ordained, delimited function of the pope.¹⁵⁷ But by deﬁning his own position in opposition to Marsilius’s, he tried to steer a course somewhere in between. In other words, even the other major theorist writing at Louis of Bavaria’s court found Marsilius’s antithetical position to the papalists far too extreme. He continued to do so: in the brief, polemical recapitulation of his position, written shortly before his death in 1347, William was still contesting the way in which ‘some’ (again meaning Marsilius) had interpreted the Scriptural account of Christ’s commission to the apostles in general and to Peter in particular.¹⁵⁸ He must have turned in his (unconsecrated)¹⁵⁹ grave when Laurentius Aretinus, an auditor causarum palatii during the pontiﬁcate of Eugenius IV (1431–47), attributed to him the authorship of the Defensor pacis.¹⁶⁰ The care with which he differentiated himself from Marsilius may have been lost on those readers incapable of appreciating the precision and subtlety of his distinctions.¹⁶¹ And as ¹⁵⁵ J. Kilcullen, ‘Ockham’s Political Writings’, in P. V. Spade (ed.), The Cambridge Companion to William of Ockham (Cambridge, 1999), 302–25, at 313–15. ¹⁵⁶ I Dialogus i. 1, cap. 1. ¹⁵⁷ For instance, Ockham, Breviloquium de principatu tyrannico, in Opera politica, iv. 97–260; trans. as A Short Treatise on Tyrannical Government, ed. A. S. McGrade and J. Kilcullen (Cambridge, 1992); cf. A. S. McGrade, The Political Thought of William of Ockham (Cambridge, 1974), 151–61; A. S. Brett, in Ockham, On the Power of Emperors and Popes, ed. Brett (Bristol, 1998), 49–51. ¹⁵⁸ On the Powers of Emperors and Popes, ch. 7, p. 90. ¹⁵⁹ G. Gál, ‘William of Ockham Died impenitent in April 1347’, Franciscan Studies, xlii, annual 20 (1982), 90–5. ¹⁶⁰ The attribution is recorded in a copy of the French recension of the Defensor pacis, Biblioteca apostolica Vaticana, MS. Lat. 3974, and in a treatise by Laurentius: DP, ed. Scholz, p. viii; see also London, BL MS. Royal X. A. 15, fo. 3r: ‘Incipit doctoris Okkam fratris minoris in suo defensorio’; DP, ed. Scholz, p. xxii. For further comment, Lagarde, La Naissance, ii. 343–4. ¹⁶¹ The rubric to the copy of the anonymous Disputatio inter clericum et militem in Biblioteca apostolica Vaticana, MS. Borghese 29, fo. 24v, states that while the English attributed it to William of Ockham, the real author was Marsilius: see J. I. Catto, ‘Some English Manuscripts of Wyclif ’s Latin Works’, in A. Hudson and M. J. Wilks (eds.),

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we have seen, not everybody who thought they knew what Marsilius had said had read the Defensor pacis. The manuscript tradition of Ockham’s political works suggests that his readership was much more restricted.¹⁶² In terms of popular reputation, he and Marsilius were fated to be shackled together. It is likely that the intellectual hostility William felt towards Marsilius was amply reciprocated. At the beginning of Discourse II, Marsilius identiﬁed three impediments to the truth he was about to expound: the Roman bishops; the ingrained habit of listening to the lies peddled for so long by the Roman bishops and their accolytes; and ‘the bitterness of those who, although they believe we have told the truth, will nevertheless set themselves against this true opinion because they believe someone has unfolded it before them; prompted by the malignant spirit of smouldering envy to tear at it with the hidden fangs of slanderers or the loud barks of presumption.’¹⁶³ Of course, this was not written with William of Ockham in mind, because it was written long before Marsilius had met William, and before William had begun to write political theory. But it could be seen as a prophetic characterization, from Marsilius’s point of view, of the critique mounted by William in III Dialogus. It has been plausibly argued that the Defensor minor is Marsilius’s response to that critique.¹⁶⁴ As the most detailed, nearly contemporary response to the Defensor pacis, from someone who might be expected to be sympathetic to Marsilius’s stance, William of Ockham’s Dialogus therefore conﬁrms what we have already detected in the denunciations of opponents. What most interested (or shocked) Marsilius’s audience, friendly and hostile alike, was his comprehensive demolition of papal claims to From Ockham to Wyclif, Studies in Church History, Subsidia, v (Oxford, 1987), 353–9, at 358, n. 15. ¹⁶² H. S. Ofﬂer, ‘The “inﬂuence” of Ockham’s Political Thinking: The First Century’, repr. in id., Church and Crown in the Fourteenth Century: Studies in European History and Political Thought (Aldershot, 2000), ch. x, pp. 347–8. ¹⁶³ DP II. i. 1. ¹⁶⁴ Lagarde, ‘Marsile de Padoue et Guillaume d’Ockham’, 449–52; id., La Naissance, ii. 40–1; nouvelle édition, iv, Guillaume d’Ockham: Défense de l’Empire (Louvain and Paris, 1962), 35; Marsile de Padoue, Oeuvres mineures, ed. C. Jeudy and J. Quillet, CNRS (Paris, 1979), 158–62.

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plenitudo potestatis. As we shall see, Marsilius, at the opening of the Defensor pacis, had identiﬁed plenitudo potestatis as the principal contemporary threat to peace, and therefore as the book’s main target. It was in the second Discourse that he tried to demonstrate that what had become the traditional interpretation of the authorities on which these claims were based was totally (and wilfully) misconceived. These were the sections of the Defensor pacis on which William of Ockham, a fellow intellectual asylum-seeker at the imperial court, concentrated when drafting his most elaborate discussion of papal power. For William, unlike Marsilius, papal ofﬁce had been instituted by Christ. Marsilius’s arguments were so extreme that, on this central issue, they drove William to adopt a position closer to that of John XXII than of Marsilius, even though William, like Marsilius, considered John to be a heretic. A comparison of the opinions they later wrote for Louis of Bavaria on the subject of the proposed marriage between Margaret Maultasch, countess of Tyrol and duchess of Carinthia, and Louis’s son Louis, margrave of Brandenburg, again reveals William to be the more moderate counsellor.¹⁶⁵ A counterpart to William of Ockham in the papal camp is Guido Terreni, advisor of John XXII, who wrote his Concordia quatuor evangelistarum (1328–34) while successively bishop of Majorca (1321–32) and of Elne (1332–44). He had already, as we have seen, responded to the list of six errors from the Defensor pacis which John XXII had circulated to selected advisors in 1327.¹⁶⁶ He revisited the issue in this, his major work. Commenting on Matthew 16: 18, he denounced ‘the perverse and novel heresy’ propounded by ‘Marsilius and his accomplice John [of Jandun]’: that Christ had established no vicar as head of the church, that Peter had not therefore been the head of the church or the prince of the apostles, and that all priests had the ¹⁶⁵ Ockham, Opera politica, i. 270–86; Marsilius’s Forma dispensationis is printed by Pincin, Marsilio, 264–8, and his Tractatus consultationis . . . super divorcio matrimonii at 268–83 and in Oeuvres mineures, ed. Jeudy and Quillet, 264–9; see also pp. 147–54; K. J. Thompson, ‘A Comparison of the Consultations of Marsilius of Padua and William of Ockham Relating to the Tyrolese Marriage of 1341–1342’, Archivum Franciscanum Historicum, lxiii (1970), 3–43. For reservations about the attribution of these works to Marsilius, see Ofﬂer in Ockham, Opera politica, i. 272. ¹⁶⁶ Above, p. 22.

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same authority. According to Guido, Scripture had to be understood according to the interpretations of the church; Scripture itself proved this, for as recorded at Luke 22: 32, Christ had prayed for the faith of the church when he spoke to Peter. And the church taught that Peter was its head, prince of the apostles, and vicar of Christ.¹⁶⁷ But, contrary to the views of the extreme papalists, the other apostles and their successors the bishops derived their powers directly from Christ, not through Peter.¹⁶⁸ As this second point demonstrates, Guido, arguably like William of Ockham on the opposing side in the conﬂict, was a moderate, not an extremist. But there was no great difference between moderate and extreme papalist responses to the Defensor pacis, or indeed that of William. The allegedly heretical pope, his advisors, his penitentiary, and William were all in general agreement about what were the most arresting aspects of the book. Their mutually hostile near-unanimity explains its instantaneous notoriety, and gives the lie to those modern scholars whose interpretation has concentrated almost exclusively on Discourse I. Perhaps Marsilius and John of Jandun were recognized on their arrival in Nuremberg in 1326 because some of Louis’s courtiers had attended the University of Paris.¹⁶⁹ But by the time of Louis’s Italian expedition Marsilius had become more than just an academic celebrity: in December 1329 two witnesses testiﬁed before the papal inquisitor at Bologna that they had seen him riding with Louis in Parma on 28 November.¹⁷⁰ Marsilius had become as notorious as his book, and was instantly recognizable. This was not simply the counter-productive consequence of repeated papal denunciations. Marsilius had played a leading role in that expedition, as, according to his friend Mussato’s ¹⁶⁷ Guido Terreni de Perpiniano, Quatuor unum. Hoc est, concordia evangelica in quatuor evangelistas (Cologne, 1631), 563, 565. ¹⁶⁸ Ibid., 561–2; B. Tierney, The Origins of Papal Infallibility, 1150–1350, 2nd impression with a postscript (Leiden, 1988), 263. Marsilius, DP II. xxvii. 7, had attacked the papalist interpretation of Luke 22: 32: that Christ had made Peter prince of the other apostles. William of Ockham, III Dialogus i. 4, cap. 21, does not, in this instance, dissent from Marsilius’s position. ¹⁶⁹ Continuation to Chronique de Guillaume de Nangis, ii. 75. ¹⁷⁰ F. Bock, ‘Studien zum politischen Inquisitionsprozess Johanns XXII’, Quellen und Forschungen aus italienischen Archiven und Bibliotheken, xxvi (1936), 21–142, at 68.

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second poetical letter, the king’s chief advisor.¹⁷¹ As already suggested, in many respects the expedition could be interpreted as a systematic attempt to implement the book’s doctrine. On 16 January 1328 Louis was crowned in St Peter’s, Rome, by Sciarra Colonna, acting as delegate of the Roman people—the ﬁrst emperor, according to Giovanni Villani, to be crowned by anyone other than a pope or papal legate.¹⁷² The encyclical issued by Castruccio Castracani, ‘duke of Lucca, count of the sacred Lateran palace, and standard-bearer of the Roman Empire’, on the following day was less candid about the unprecedented nature of the proceedings: it recorded that the emperor had been crowned in St Peter’s ‘by the Roman people, according to the ancient rite’.¹⁷³ As we have seen, according to Mussato, Marsilius played a key role in the ceremonial deposition of John XXII in Rome on 18 April 1328.¹⁷⁴ On 12 May an assembly of the Roman populace was asked whether they wanted Peter of Corbara to be pope. On their resoundingly afﬁrmative response, a decree of Louis proclaimed him Pope Nicholas V.¹⁷⁵ Interpreted in this way, these events conﬁrm what contemporaries considered to be the most noteworthy aspects of the book, and underline why it and its author became so celebrated or reviled. In particular, the deposition of the pope explains why, on the ﬁrst anniversary of that outrage, John singled out the claim that the emperor had the power to do so as the most heinous error in the book.¹⁷⁶ No wonder that when Louis was forced to retreat to Germany at the end of 1329, Marsilius was the one advisor in his immediate entourage who merited individual mention.¹⁷⁷ As the thorough inquiry commissioned by Benedict XII later demonstrated, the sensation created by the Defensor pacis was not ¹⁷¹ Ed. Pincin, Marsilio, 150, n. 3; cf. Brampton, ‘Life’, 510. ¹⁷² G. Villani, Cronica (Florence, 1823), v., lib. X, cap. lv, p. 71; Pincin, Marsilio, 159–60; Brampton, ‘Life’, 511. Sciarra Colonna was already notorious for his assault on Boniface VIII at Anagni in 1303. ¹⁷³ MGH. Const., vi, pt. 1, no. 383, p. 286. ¹⁷⁴ Ludovicus Bavarus, in Fontes rerum Germanicarum, i. 176; above, p. 29. ¹⁷⁵ Villani, Cronica, v, lib. x, cap. lxxii, pp. 94–5. ¹⁷⁶ MGH. Const., vi, pt. i no 575 (20 Apr. 1329), cited above, p. 21. ¹⁷⁷ Iohannes de Victoria, Liber certarum historiarum, ed. F. Schneider, MGH. Scriptores in usum scholarum separatim editi, 2 vols. (Hanover, 1909–10), ii. 148.

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evanescent. In 1334 Louis negotiated with Cardinal Napoleon Orsini, head of a disaffected faction of Italian cardinals, about summoning a general council, ‘whether or not ille de Caturcho [John XXII] wants one’, as a way of dealing with John XXII. He shrewdly identiﬁed the pope’s unorthodox views on the Beatiﬁc Vision as the issue to be addressed by the council—on this, he and the cardinal’s supporters could ﬁnd common ground. He maintained a diplomatic silence about the pope’s other allegedly heretical opinion concerning apostolic poverty. But the cardinal was not duped: he refused to assist until Marsilius had been expelled from Louis’s court.¹⁷⁸ This appears to have been one of the irreconcilable differences on which the initiative foundered, despite the cardinal’s urgent desire to repatriate the papacy to Rome.¹⁷⁹ In 1336, with John dead and a new pope in ofﬁce, it seemed that Marsilius might no longer be the stumbling-block to a rapprochement. When Benedict XII raised the issue with Louis, Louis’s ostensibly abject reply, dated 28 October, claimed that he had hitherto considered Marsilius and John of Jandun to be good clerics. As a mere ‘knight, ignorant of the subleties of writing and letters’, he was ill-equipped to judge. If, as he was now informed, their opinions were contrary to the faith and the government of the church, then he of course rejected them. He had in any case never believed any of their errors, and he had kept the pair close by him only in order to reduce them to the will of the church (and, with a touch more honesty, because they were well versed in the ‘laws of the Empire’). It was true that he had allowed them to preach against John XXII, but he had done so solely in order to afford good Christians the opportunity of refuting their errors. He now endorsed John XXII’s condemnation of the ﬁve errors in the Defensor pacis. He would ‘extirpate’ any heretics, especially John of Jandun, Marsilius, Michael of Cesena, William of ¹⁷⁸ C. Hoﬂer, Aus Avignon, in Abhandlungen der königlichen böhmischen Gesellschaft (Prague, 1868), 11–13; Pincin, Marsilio, 180; H. S. Ofﬂer, ‘The Emperor Lewis IV and the Curia from 1330 to 1347: Canon Law and International Relationship in the First Half of the Fourteenth Century’, University of Cambridge Ph.D thesis (1939), 72–5. That this thesis was never published is regrettable: it still provides what is in many ways the best analysis of the conﬂict between Louis and the papacy. ¹⁷⁹ Ofﬂer, ‘Lewis IV and the Curia’, ch. 3, takes a different view.

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Ockham, and Bonogratia of Bergamo and Talheim, ‘if they would not return to the unity of the church’.¹⁸⁰ These expressions of contrition have been taken at face value.¹⁸¹ But the logical inconsistencies and casuistry make Louis’s disingenuousness clear, all the more so when it is recalled that John of Jandun had been dead since August 1328.¹⁸² Some expression of repentance was necessary because any reconciliation had to take the form of an absolution of Louis, as Louis well understood.¹⁸³ The threat from Marsilius was considered far too serious for John XXII’s successor simply to disregard it. Yet the literal sense of Louis’s letter is at odds with its implicit meaning. It suggests that he recognized that Marsilius had himself become a shibboleth in the dispute, and that he was not, in reality, willing to sacriﬁce his trusted advisor. The pope could either take Louis’s offer, in all its manifest insincerity, or leave it. The collapse of this round of negotiations in April 1337 has been attributed to other factors;¹⁸⁴ but it seems that, as in 1334, Marsilius was not just a valued imperial counsellor and an analyst of the dispute between pope and (self-styled) emperor; he had become a central factor in the dispute. The papal antipathy to him was not (just) personal, and it was not going to fade with the passage of time. Louis was well aware of this, but he was not willing to offer any more satisfying sops to Benedict XII and Clement VI in future negotiations. On 17 May 1338, during an assembly of the non-princely estates in Frankfurt, Louis made a speech in the house of the Teutonic Order, which reportedly addressed the issue of the proper relationship

¹⁸⁰ Riezler (ed.), Vat. Akt. no.1841, esp. pp. 639–41. ¹⁸¹ Lagarde, ‘Marsile de Padoue et Guillaume d’Ockham’, 182; Ofﬂer, ‘Empire and Papacy’, 40. ¹⁸² Brampton, ‘Life’, 513; Pincin, Marsilio, 165, n. 69. ¹⁸³ S. Riezler, Die literarischen Widersacher der Päpste zur Zeit Ludwig des Baiers (Leipzig, 1874), 328; Ofﬂer, ‘Empire and Papacy’, 39. ¹⁸⁴ The collapse is more conventionally attributed to the pope’s demand that Louis should be reconciled with the French king, Philip VI, and Robert of Naples. Philip could not accept this and, under pressure from him, the pope ceased to pursue a settlement: Ofﬂer, ‘Lewis IV and the Curia’, 127–30; id., ‘Empire and Papacy’, 42; P. Herde, ‘From Adolf of Nassau to Lewis of Bavaria, 1292–1347’, in M. Jones (ed.), The New Cambridge Medieval History, vi (Cambridge, 2000), p. 544.

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between pope and emperor.¹⁸⁵ It did not mark a ﬁrst step on his part towards compromise. The speech was probably drafted by William of Ockham,¹⁸⁶ and Louis’s confession of orthodoxy, Fidem catholicam proﬁtentes, also ghosted by his Franciscan advisers, was issued for the ﬁrst time on the following day.¹⁸⁷ There is no evidence that Marsilius was involved, but the subsequent course of events in 1338 conﬁrms that Louis’s heretical advisers remained indispensable to him. He was using them to fashion the gauntlet which he would throw down to Benedict XII. Their corresponding importance from the papal viewpoint was reafﬁrmed when Arnald of Verdalla, a papal emissary, put out feelers about another possible settlement in December 1338 or January 1339. Renunciation of Marsilius and John of Jandun, and denunciation of the heretical errors in the Defensor pacis, remained non-negotiable papal demands.¹⁸⁸ The initiative came to nothing. It was only on 18 September 1343, under a new pope whom Benedict had previously made chairman of a commission of inquiry into the Defensor pacis, that Louis again renounced his association with Marsilius, John of Jandun, and others,¹⁸⁹ in similar terms to those he had used in 1336. His repentance was reafﬁrmed at a consistory held on 16 January 1344, when his acceptance of and belief in the errors he had received from Marsilius was the ﬁrst charge against him.¹⁹⁰ But as in 1336, this was not a sincere expression of repentance. It was a ﬁg-leaf to cover papal embarrassment in the granting of absolution. By this time Marsilius, as Clement VI well knew, had already been dead for ¹⁸⁵ Raynaldus, Annales, vi. 158–9; E. E. Stengel (ed.), Nova Alamanniae. Urkunden, Briefe und andere Quellen, besonders zur deutschen Geschichte des 14. Jahrhunderts, i, ii pt. 1, (Berlin, 1921–30), ii pt. 2, ed. K. Schäfer (Hanover, 1976), i, no. 519. ¹⁸⁶ E. E. Stengel, Avignon und Rhens. Forschungen zur Geschichte des Kampfs um das Recht am Reich in der ersten Hälfte des 14. Jahrhunderts (Weimar, 1930), 108. ¹⁸⁷ H.–J. Becker, ‘Das Mandat Fidem Catholicam Ludwigs des Bayern von 1338’, Deutsches Archiv, xxvi (1970), 454–512, at 482, and for William of Ockham’s inﬂuence on the imperial reform programme of 1338, pp. 474–5; further, J. Miethke, Ockhams Weg zur Sozialphilosophie (Berlin, 1969), 101–4. For a more precise delineation of William’s role, see H. S. Ofﬂer, ‘Der Verfasser der Allegaciones de potestate imperiali’, Deutsches Archiv, xlii (1986), 555–619, at 558. ¹⁸⁸ Stengel (ed.), Nova Alamanniae i, no 597; Ofﬂer, ‘Lewis IV and the Curia’, 163. ¹⁸⁹ Riezler (ed.), Vat. Akt. no. 2167, p. 781; Riezler, Widersacher, 332. ¹⁹⁰ Hoﬂer, Aus Avignon, 22.

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several months.¹⁹¹ He would also have known that Louis had hardly kept Marsilius at arm’s length during the ﬁnal years of his life. A year or so before Marsilius’s death, he had, as we have seen, written for Louis a treatise on marriage and divorce, justifying the divorce of John Henry of Moravia and Margaret Maultasch of Tyrol, and a formula for an imperial dispensation from the impediment of afﬁnity, justifying her subsequent marriage to Louis’s son.¹⁹² Both were derived from the Defensor minor.¹⁹³ The intimate connection between Marsilius’s political writing and his involvement in imperial politics is again demonstrated. That Marsilius had remained indispensable to Louis even after the collapse of the Italian expedition was one of the great achievements of the Defensor pacis. It has been argued that the issue of the papal claim to approve any king-elect of the Romans as emperor was quite distinct from that of apostolic poverty. Louis of Bavaria had unwisely allowed the two to become entangled in the late 1320s, but came to regard the latter as a disposable bargaining-counter during the 1330s;¹⁹⁴ hence his apparent willingness, from time to time, to sacriﬁce Marsilius and his ilk. If my interpretation of Louis’s negotiating ploys in the 1330s and 1340s is correct, however, the Defensor pacis seems to have made the two issues indivisible for its dedicatee. It was that indivisibility which continued to make Marsilius indispensable. His death made no difference to papal attempts to staunch the poison suppurating from his book. Clement VI, as we have seen, reiterated the results of the inquiry which he had conducted under Benedict XII.¹⁹⁵ The assessment was presumably much more detailed and thorough than previous ones, but subsequent denunciations of ¹⁹¹ Ofﬂer, ‘Political collatio’, 136; Brampton, ‘Life’, 512. ¹⁹² Brampton (ed.), DM, p. x, dates them to December 1341 or January 1342; Brampton, ‘Life’, 515. Oeuvres mineures, ed. Jeudy and Quillet, 158, does not signiﬁcantly amend this dating. ¹⁹³ Pincin, Marsilio, 202–7; Oeuvres mineures, ed. Jeudy and Quillet, 150–4; for details, see above, p. 35, n. 165. In view of the date of the marriage, this means that the Defensor minor must have been written by the end of 1341. ¹⁹⁴ Ofﬂer, ‘Lewis IV and the Curia’, 13: ‘these heretics were simply the allies he had unwisely chosen to help him ﬁght his political battle.’ ¹⁹⁵ Ofﬂer, ‘Political collatio’, 136.

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Marsilius suggest that it was not a reassessment. The commission had continued to focus on the same general areas. And although the report must have been exhaustive, it did not mark an end to the papal obsession with the Defensor pacis. The pursuit of anyone suspected of peddling its doctrine continued to be relentless. In September 1375, for instance, a three-month long inquest began in the University of Paris to ascertain who had recently translated it into French.¹⁹⁶ It was suspected that a member of the Theology Faculty was the guilty party. Each member of the Faculty was made to answer on oath, ‘holding the book of the Gospel in his bare hand’, the following questions: 1. Whether he had translated the said book from Latin into French, or otherwise? 2. Whether he knew, or had known, who had done so, or had heard this said of anyone? 3. Whether he had any suspicion of anyone having translated the book? Some of the replies suggest the undiminished nervousness which even a suspicion of an association with the forbidden work could still engender, half a century after its publication. Richard Barbe denied that he had translated the book. He had never even seen it. He thought that the author had been responsible for the translation. John of Dyodona swore that he had never heard of the book. Several other masters testiﬁed that ‘the aforesaid Marsilius and John of Jandun were never doctors or even graduates in the aforesaid Faculty of Theology’. Thereby they demonstrated that interdepartmental back-stabbing in a crisis is not a recent development in university life, for both John of Jandun¹⁹⁷ and Marsilius had been masters of arts in the University of Paris—indeed, ‘Master’ Marsilius had been elected rector of the university in 1312,¹⁹⁸ ¹⁹⁶ Deniﬂe and Chatelain, CUP iii. 223–7, no. 1406. The account is abbreviated: the full text is in C. du Plessis d’Argentré, Collectio judiciorum de novis erroribus, qui ab initio usque ad annum 1632 in ecclesia proscripti & notati, 3 vols. (Paris, 1728), I, i. 397–400. ¹⁹⁷ N. Valois, ‘Jean de Jandun et Marsile de Padoue, auteurs du “Defensor pacis” ’, Histoire littéraire de la France, xxiii (1906), 528–623, at 530; Brampton, ‘Life’, 506. ¹⁹⁸ Deniﬂe and Chatelain, CUP ii. 158, no. 698; Brampton, ‘Life’, 504; Pincin, Marsilio, 22–3.

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and was well qualiﬁed to teach in the Faculties of Arts¹⁹⁹ and Medicine. The members of the Theology Faculty may also have perjured themselves, at least with respect to John of Jandun: he had probably been a master of theology since 1316²⁰⁰ and was almost certainly one by 1328.²⁰¹ We know that Marsilius had studied theology at some level, because Mussato reproaches him for having abandoned it,²⁰² and Francis of Venice had claimed at his trial that Marsilius had borrowed money in 1326 ostensibly to ﬁnance further theological studies.²⁰³The Faculty was shifty for the same reason that Francis of Venice had been evasive under cross-examination. The record of the inquiry does not say so, but it was later recorded that, under pressure from John XXII, their predecessors had in 1330 condemned four heretical errors in the book.²⁰⁴ The reading of the Defensor pacis had not altered over the intervening decades. The record of the inquest quoted a letter of John XXII concerning the book’s errors, addressed to the bishop of Paris.²⁰⁵ As far as the authorities were concerned in 1375, John’s original assessment of those errors remained as deﬁnitive as it was shocking. In 1350 Conrad of Megenberg had concentrated his attention exclusively on the ‘error’ which had most offended John: the claim that the emperor could constitute the pope.²⁰⁶ When Pope Gregory XI issued a series of letters, dated 22 May 1377, which condemned the heretical teachings of Wycliff at the University of Oxford, Wycliff was accused ¹⁹⁹ He had, for instance, introduced his friend John of Jandun to Peter of Albano’s Averroistic commentary of the Problems of Aristotle, as John reports in his own commentary on Peter’s work: Valois, ‘Jean de Jandun et Marsile de Padoue’, 555; Pincin, Marsilio, 23. ²⁰⁰ Deniﬂe and Chatelain, CUP ii. 186, no. 730 n. and p. 718 appendix. ²⁰¹ Riezler (ed.), Vat. Akt. no. 1004, in which Louis made him bishop of Ferrara, describes him as a doctor of theology; Deniﬂe and Chatelain, CUP iii. 227, n. 17. ²⁰² Pincin, Marsilio, 37. ²⁰³ Baluze, Miscellanea, ii. 280. ²⁰⁴ C. E. Bulaeus, Historia universitatis Parisiensis, 6 vols. (Paris, 1665–73), iv. 216, quoting the Theology Faculty’s Register for that year. But Deniﬂe and Chatelain, CUP iii. 227, n. 5, express some scepticism about whether this had happened. ²⁰⁵ According to Deniﬂe and Chatelain, CUP iii. 227, n. 5. The incipit given is Cum processum. Patrick Nold has pointed out to me that this is almost certainly an error for Certum processum, the incipit common to the papal letters addressed to the bishop of Worcester and copied in Admont, Stiftsbibliothek MS. 269, fos. 69–77: see above, p. 19. I have been unable to trace the letter to the bishop of Paris. The letter to the bishop of Sion (Riezler (ed.), Vat. Akt. no. 967) cited above, p. 20, n. 85, has the incipit ‘Processus’. ²⁰⁶ Yconomica 2. 3. 1, ii. 87–93.

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of borrowing his errors, ‘which attempt to subvert and enervate the status of the whole church and even the secular politia’, from Marsilius and John of Jandun ‘of damned memory’, whose heresies had long ago been condemned by John XXII ‘of happy memory’. The point was repeated in a letter addressed to King Edward III.²⁰⁷ Those who turned to the Defensor pacis for instruction, rather than in order to expose heresy, seem also to have been consistent in their reading of it. There is no direct evidence for what most appealed to those early extremists who read the book sympathetically—as we have seen, even someone of William of Ockham’s persuasion thought Marsilius had gone far too far. But shortly before the inquiry into the Parisian Theology Faculty’s possible role in the translation of the Defensor pacis began its work, King Charles V commissioned the composition of the Somnium viridarii, which spliced together a large number of authorities on the relationship between the spiritual and temporal.²⁰⁸ This scholarly king was probably prompted to commission the work by his confrontation with Gregory XI,²⁰⁹ the most recent in a long line of clashes between French kings and popes. About two years later, a revised French version appeared, entitled Songe du vergier.²¹⁰ The copy of the Songe presented to the king apparently once recorded, in his own hand, that he had ordered it to be ‘compiled, translated, and written’.²¹¹ In both versions of the compilation, which are the work of the same man—identiﬁed as Evrart de Tremaugon²¹²—extensive use is made of the Defensor pacis, lifting ²⁰⁷ Chronicon Angliae, ab anno domini 1328 usque ad annum 1388, auctore monacho quodam Sancti Albani, ed E. M. Thompson, Rolls Series (London, 1874), 173–81; K. B. McFarlane, John Wycliffe and the Beginnings of English Nonconformity (London, 1952), 79–80; J. I. Catto, ‘Wyclif and Wyclifﬁsm at Oxford, 1356–1430’, in id. and R. Evans (eds.), The History of the University of Oxford, vol. ii, Late Medieval Oxford (Oxford, 1992), 175–261, at 204–5, who produces evidence of the sources of papal intelligence, which prompted this unique papal intervention in teaching at Oxford. ²⁰⁸ Somnium viridarii, ed. M. Schnerb-Lièvre, 2 vols. CNRS (Paris, 1993–5), ii. 306, strongly implies that the author was commissioned by the king on 16 May 1374. ²⁰⁹ F. Olivier-Martin, L’Assemblé de Vincennes de 1329 (Paris, 1909), 404. ²¹⁰ Le Songe du vergier, ed. M. Schnerb-Lièvre, 2 vols. CNRS (Paris, 1982). ²¹¹ London, BL MS. Royal 19. C. IV; see G. F. Warner and J. P. Gilson, Catalogue of the Western Manuscripts in the Old Royal and King’s Collections, 2 vols. (London, 1921), ii. 334. ²¹² Somnium, i. xlvii–li; Songe, i. lxxxv–lxxxviii.

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arguments, and the authorities invoked to support them, from Marsilius’s text.²¹³ In view of the close interest which Charles V took in the process of compilation,²¹⁴ it is very likely that he was familiar with its contents. Regardless of Gregory XI’s attempt to put the wind up Edward III at the very time when the Somnium was being translated, it seems that the Defensor pacis had its royal admirers. With the exception of some extracts from the opening chapter of Discourse I, concerned with the conﬂict between the secular and the priestly power (but substituting French for Italian references) and inserted into the prologues of both Somnium and Songe,²¹⁵ all these borrowings are from Discourse II. They are concerned primarily with papal plenitudo potestatis, and to a lesser extent with the authority of general councils.²¹⁶ In other words, the compiler of the Somnium/Songe, and presumably the king who intervened in the editorial process, judged the Defensor pacis most useful for those very arguments which hostile readers thought most heretical and which William of Ockham thought most erroneous. Whatever their sympathies, fourteenth-century readers of Marsilius were and remained unanimous about what was most noteworthy in his book. It is a pity that many modern historians have tended to ignore this evidence.

THE DEFENSOR PACIS AS DENOUEMENT The conﬂict which for Gregorovius had been ‘an unendurable caricature of a great past’,²¹⁷ was for Previté-Orton the ‘ﬁnal bout of decrepit adversaries’:²¹⁸ Louis and John XXII ‘were garbed in the tarnished robes of their predecessors and were impelled to imitate them’.²¹⁹ As we have seen, these historians express a scholarly consensus when they go on to remark on the ‘singular’²²⁰ fact that this ﬁnal, ²¹³ Somnium, ii. 535–6; Songe, i. pp. xlvi–xlix, for details of the borrowings from the Defensor pacis. ²¹⁴ Songe, i. lxx. ²¹⁵ Somnium, i. 4; Songe, i. 4–5. ²¹⁶ J. Quillet, La Philosophie politique du Songe du Vergier (1378). Sources doctrinales (Paris, 1977), ch. 2. ²¹⁷ Above, p. 1. ²¹⁸ Previté-Orton, ‘Doctrines’, 2. ²¹⁹ Previté-Orton, ‘Marsilius’, 4. ²²⁰ Previté-Orton, ‘Doctrines’, 2.

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tired reprise of a dated drama should nevertheless have produced, in the shape of Marsilius, a prophet of modernity. I have tried to show that this assessment of the Defensor pacis is misconceived, not least because it is quite at variance with the response of Marsilius’s contemporary readers. The book’s afterlife in later centuries is another story, which remains to be told.²²¹ But if the response to the book changed, it took a long time to do so. The Italian translation of 1363, which purports to be based on a French translation (presumably not the one which prompted the inquest into the Theology Faculty in Paris in 1375), is the ﬁrst evidence that the Defensor pacis had an Italian audience.²²² Yet it betrays no sign that the translator was attempting to adapt its arguments to a speciﬁcally Italian context. Writing in the 1440s, Johannes de Turrecremata simply recapitulated Licet iuxta doctrinam.²²³ And the use to which the Defensor pacis was put in the Reformation would not have bafﬂed Marsilius or his contemporaries.²²⁴ The memorial plaque to Marsilius which was erected in the church of St Leonard in Padua sometime before the seventeenth century recorded his career as a political polemicist, and his denunciation for heresy. But it said nothing in detail about the content of his books. Instead, it concentrated on the inspirational role which he had played in Louis of ²²¹ Gewirth, Marsilius, 3–6, 300–4, provides a teleological sketch. In more detail, Valois, ‘Jean de Jandun et Marsile de Padoue’, 618–23; Previté-Orton, ‘Marsilius’, 28–35; J. Miethke, ‘Marsilius und Ockham. Publikum und Leser ihrer politischen Schriften im späteren Mittelalter’, Medioevo, vi (1980), 543–67; P. E. Sigmund, ‘The Inﬂuence of Marsilius of Padua on Fifteenth-Century Conciliarism’, Journal of the History of Ideas, xxiii (1962), 392–402; Lagarde, Naissance, 3rd edn., iii. 358–77. ²²² Marsilio da Padova, Difenditore della pace, ed. C. Pincin. ²²³ Summe de ecclesie (Rome, 1489), iv, pt. 2, cap. 37 (unpaginated). ²²⁴ The editio princeps was published in 1522: Opus insigne cui titulum fecit autor Defensorem pacis, quod qu[a]estionem illam olim controversam, De potestate Papae et Imperatoris excussissime tractet, profuturu[m] Theologis, Iureconsultis, in summa optimaru[m] literarum cultoribus omnibus. Scriptum quidem ante annos Ducentos ad Ludovicem Caesarem ex illustrissima Bavariae ducum familia progenitum, at nunc in lucem primum aeditum, per quam castigate & diligenter (Basel, 1522). The prefatory poem, attributed to ‘Philalethes’, and the lengthy preface, attributed to ‘Licentius Evangelus, sacerdos’, commend, above all, the contemporary relevance of the book’s anti-papal arguments. For a Catholic refutation, see A. Pighius, Hierarchiae ecclesiasticae assertio (Cologne, 1544). N. Alexander, Selecta historiae ecclesiasticae capita, 394–6, identiﬁes thirteen errors, rather than John XXII’s ﬁve or six; but these simply amplify the errors detected in the fourteenth century.

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Bavaria’s Italian expedition, culminating in Louis’s coronation and the creation of Nicholas V as (anti)pope.²²⁵ To deny that Marsilius was a prophet of modernity is not, therefore, to deny the exceptional importance of his book, which was universally acknowledged in the fourteenth and later centuries. And the fact that the Defensor pacis emerged from what turned out to be the ﬁnal act in the conﬂict to which the Investiture Contest had been the prologue is not an inexplicable paradox. Neither Louis of Bavaria nor John XXII realized that their conﬂict was the ﬁnal act, that they were posturing in antique garb. For them, it was not inevitable that when history repeats itself, it does so as farce. Although recent historians have tended to interpret the conﬂict as in reality about claims in Italy, and to regard its ideological manifestations as so much fancy-dress,²²⁶ this does not seem to have been the view of contemporaries, and was certainly not that of Marsilius. As I shall try to show, he came to see the conﬂict as ﬁnal in a different sense. In his view, it was the apocalyptic consummation of a struggle which had been developing not just since the pontificate of Gregory VII, but over the preceding millenium. Indeed, it presaged the imminent conclusion of that providential process which had begun with the Fall of man. As is clear from the various doctrinal documents which John XXII discharged at Christendom, he expressed the papal claims in an unprecedentedly uncompromising and extreme form. Marsilius, as we shall see, was very familiar with these documents, and this was precisely how he interpreted them.²²⁷ In response, he formulated the imperial case in a correspondingly uncompromising and extreme form. He expresses it with an unprecedented clarity and force. Like his opponent, his sense of impending cataclysm occasionally moves him to rhetorical ﬂights which are rare in scholastic Latin. His Defensor pacis demonstrates the truth of Hegel’s celebrated dictum: ‘The owl of Minerva begins its ﬂight only with the falling of dusk.’²²⁸ The rest of this book will attempt to show that this is how the Defensor ²²⁵ I. Cavaccia, Aula Zabarella, sive Elogia Illustrium Patavinorum (Padua, 1670), 153. ²²⁶ Ofﬂer, ‘Empire and Papacy’, passim. ²²⁷ Below, esp. Ch. 6. ²²⁸ G. W. F. Hegel, The Philosophy of Right, preface.

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pacis should be understood. As we have seen, it is what Marsilius’s audience, friendly and hostile alike, understood him to mean. It is now time to turn, therefore, from contemporary responses to the Defensor pacis to the book itself. Unlike other modern commentators, ‘republican’ and ‘Romanist’ alike, I shall argue that the key to understanding it lies in Marsilius’s conception of history as providentially ordained, and in the role which the papacy had come to play in that process.

2 Providential History from the Fall of Man to the Conversion of Constantine MARSILIUS’S SENSE OF HISTORY The Defensor pacis opens with a sketch of the grave discord which obtains in the early fourteenth-century regnum Italicum,¹ that area of northern Italy which had been a province of the (medieval) Roman Empire since the tenth century. Marsilius states that there are many causes of civil strife, most of which are interconnected, and almost all of which are described by Aristotle in the Politics. It would have been superﬂuous, in Marsilius’s opinion, to repeat the number and nature of those causes, for he was incapable of adding anything to Aristotle’s deﬁnitive discussion of them. But there is also, he says, a certain singular and completely concealed cause, under which the Roman Empire has long laboured, and continues to labour . . . Neither Aristotle nor any other philosopher of his time or earlier could have perceived this cause, and its origin and species. For it was and is a certain perverted opinion to be unfolded by us below, actually adopted opportunistically by some, following from a miraculous effect produced by the supreme cause long after Aristotle’s time; an effect beyond the possibility of lower nature and the usual action of causes in things. This sophistical opinion, wearing the guise of rectitude and utility, is utterly pernicious to the human race . . . ² ¹ DP I. i. 2. ² DP I. i. 3; cf. I. xix. 3–4. The key sentence reads: ‘Est enim hec et fuit opinio perversa quedam in posteris explicanda nobis, occasionaliter autem sumpta, ex effectu mirabili post Aristotelis tempora dudum a suprema causa producto . . .’ Much hangs on the preposition

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The professed purpose of Marsilius’s book was to expose, ‘with the assistance of God’, this recent, singular cause of strife. In the chaotic disorder of early fourteenth-century Italy, such an unmasking had become an urgent necessity, because those commentators who had come after Aristotle and who could, unlike him, have investigated this novel cause, had failed to do so.³ Close to the end of Discourse II, as he rounds off the book, Marsilius harks back to this initial undertaking: So we have now told the true beginnings of the matters under inquiry, and also how things developed, both properly and improperly, after them and on the basis of them; although due to the length of time, and the sloth and supine nature of men, these have slipped from men’s sight and memory, and in their place, on account of the custom of listening to certain falsehoods and ﬁgments, the opposite of the truth has been insinuated and inserted in the minds of most believers.⁴

Marsilius’s examination of the singular cause of strife was an historical one. It involved unearthing the true origins of what had been progressively perverted into that singular cause, and demonstrating how those true origins had been perverted. At the end of the book he concluded that he had ‘sufﬁciently cut out . . . the roots of that singular malignity which we mentioned so often in our prefatory remarks’.⁵ In the ﬁnal chapter of Discourse I, Marsilius had deﬁned the singular cause or malignity as ‘that wrong opinion of certain Roman bishops, and also perhaps their perverted desire for the rulership (principatus), which they assert is due to them on the basis of the plenitude of power given to them—so they say—by Christ’.⁶ This was the target of the book. ‘ex’: the ‘perverted opinion’ cannot be a consequence of the ‘miraculous effect’—Christ’s incarnation—since that would mean that the ‘supreme cause’—God—had caused the ‘perverted opinion’. Rather, as Marsilius proceeds to argue, the ‘perverted opinion’ is a subsequent, wilful misinterpretation of the signiﬁcance of that ‘effect’. I should like to thank Hugo Tucker for discussing this passage with me. I have often, as here, preferred my own translation to that in Gewirth; cf. now the rendering in Marsilius of Padua, The Defender of the Peace, ed. and trans. A. S. Brett (Cambridge, 2005), 6. The meaning of natura inferior—Aristotle’s sublunary nature—is explained in Marsile de Padoue, Le Défenseur de la paix, ed. and trans. J. Quillet (Paris, 1968), 52, n. 17. ³ DP I. i. 7. ⁴ DP II. xxvi. 18. ⁵ DP III. i. ⁶ DP I. xix. 12.

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In the ﬁrst discourse Marsilius attempted to investigate this singular cause and its pernicious effects ‘by certain methods devised by the human intellect, based upon propositions self-evident to any mind not corrupted by nature, custom or perverted emotion’. In the second, he aimed to conﬁrm what he has demonstrated in the ﬁrst on the basis of uncorrupted reason by reference to ‘testimonies of the truth founded in eternity, and also to the authorities of its saintly interpreters and of other approved teachers of the Christian faith. . . . From the same source too I shall refute the falsities opposed to my conclusions, and oppose the intricately constructed sophisms of my opponents.’⁷ As far as Marsilius was concerned, both discourses attacked the singular cause of strife in different, complementary ways. Both the attack based on reason, and that conﬁrming it based on Christian truth, had to be framed in historical terms, since Marsilius viewed his target as a deliberate perversion of the true interpretation, and thus of the proper course, of Christian history. His aim was to demonstrate how and why ‘the miraculous effect produced by the supreme cause’—Christ—could have come to be misrepresented as the origin of papal plenitudo potestatis, the supreme example of ‘how things had developed . . . improperly’. Marsilius’s reputation as an historian is not high,⁸ and for that reason, perhaps, the role of history in his argument has not received ⁷ DP I. i. 8. ⁸ C. W. Previté-Orton, ‘The Authors Cited in the Defensor Pacis’, in H. W. C. Davis (ed.), Essays in History Presented to Reginald Lane Poole (Oxford, 1927), 405–20, at 414–15, established that the ‘approved histories’ repeatedly invoked by Marsilius ‘reduce themselves almost to one’: Martinus Polonus’ Chronicon pontiﬁcum et imperatorum, MGH. SS xxii. 377–475, a late thirteenth-century pro-papal compilation which depends heavily on the Liber pontiﬁcalis. Marsilius puts the Pseudo-Isidorian decretal collection and Ivo of Chartres’ Panormia in the same category: DP II. xviii. 2; II. xxv. 9, discussed below, pp. 183, 187–8. Previté-Orton assessed Marsilius’s historical sense a little more positively in his ‘Marsilius’, 13–14, 33. For another critical view, see P. Brezzi, ‘Spunti di storia medioevale nel “Defensor Pacis” di Marsilio da Padova’, in A. Checcini and N. Bobbio (eds.), Marsilio da Padova. Studi reccolti nel VI centenario della morte (Padua, 1942), 210; for a more positive, recent sketch, which concludes that ‘[f ]or Marsilius, history was a tool, one of many in a kit’, see D. R. Carr, ‘Marsilius of Padua: The Use and Image of History in the Defensor pacis’, in C. Condren and R. P. Cooper (eds.), Altro Polo: A Volume of Italian Renaissance Studies (Sydney, 1982), 13–28, at 26.

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much scholarly attention.⁹ But as I have already intimated, he reveals a considerable historical sensitivity in laying out the framework for his analysis of the causes of the present disorders in Italy, which are ‘creeping up’ on other regna too.¹⁰ It is my contention that the Defensor pacis can only be understood in terms of Marsilius’s interpretation of history, and that this interpretation produced a paradox at the very core of the book’s argument. The paradox was that providential history had become, in the Christian era, both a process of perfection and a process of perversion. This dialectic had reached a climactic crisis in Marsilius’s own day, with the antithetical processes being represented, respectively, by Louis of Bavaria and John XXII. The conﬂict between them occasioned Marsilius’s writing of the book, or at least was the context in which it was completed,¹¹ and to which it was understood to refer. But in order to ascertain how, in Marsilius’s view, this crisis had come about, it was necessary to investigate the whole history of God’s saving work in the world, beginning with the Fall of man and looking forward to the Last Judgement, which, to Marsilius, seemed imminent. Only in this way could the emergence and development of the singular cause of strife—the agent of perversion, now embodied in John XXII—be satisfactorily explained. Much of what Marsilius has to say on this subject was utterly conventional, especially with regard to the period prior to Christ’s incarnation. Indeed, one of my contentions will be that it was the conventionality of many of Marsilius’s views on providential history which made him so grave a threat to the papacy. He attacked papal claims from within an historical ⁹ But see Quillet, Philosophie politique, 236–8; and her introduction to Marsilius’s De translatione imperii in Oeuvres mineures, 341–8. ¹⁰ DP I. xix. 12; cf. II. xxvi. 19. ¹¹ At DP I. i. 6 Marsilius claims to ‘have written down the sentences which follow after a period of diligent and intense study’. The book’s length and complexity would conﬁrm that it had been gestating for a very long time. I am not, however, convinced by the argument of Piaia, ‘Shadow of Antenor’, 203–5, that Marsilius had drafted ‘the primitive nucleus of the Defensor Pacis’ by 1318, and that he had originally intended to dedicate it to Cangrande della Scala. More plausible is Previté-Orton’s suggestion (DP, p. x) that ‘the conception of the Defensor Pacis’ is to be dated to the period when Marsilius was in the service of Matteo Visconti; cf. p. xxv.

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tradition which he shared with his ‘opponents’. What were the common grounds between them?

THE OLD L AW AND THE NEW Marsilius emphasizes that Christ had assumed a human nature ‘long after the time of Aristotle’. At that point in history, God had made one of His very rare direct interventions in the affairs of the world. Christ had become ‘true man, being at the same time God’, for a speciﬁc purpose: ‘to redeem the sin of our ﬁrst parents and, consequently, the Fall of the whole human race’.¹² This was what Marsilius termed ‘the miraculous effect produced by the supreme cause’. It had been necessary because God had created man, unlike any of the other species of corruptible things, in His own image, ‘so that he might be capable of participating in eternal felicity after the life of the present world. Also he was created in a state of original innocence or justice, and even of grace. . . .’¹³ Adam had corrupted that original innocence or justice and grace by disobeying God’s command. As a result of his disobedience, Adam had sunk suddenly into guilt and misery or punishment, ‘the punishment, I say, of being deprived of eternal felicity, to which he had been ﬁnally ordained by the beneﬁcence of glorious God’. On account of Adam’s transgression, all his posterity was propagated in lust, so that every man after him was conceived and born in original sin. ‘The only exception was Jesus Christ, Who was conceived of the Holy Spirit and born of the Virgin Mary without any kind of sin or lust.’¹⁴ In conventional fashion, Marsilius did not consider that the divinely willed process which would ultimately remedy original sin had begun with Christ’s incarnation. Long beforehand, the Old Testament recorded that God had handed down certain commands for men to observe, ‘which ought, as an antidote to the transgression, to cure the sickness of the guilt which issued from it. Like an expert ¹² DP I. xix. 4.

¹³ DP I. vi. 1.

¹⁴ DP I. vi. 2.

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physician,’ wrote Marsilius the experienced practitioner, ‘He proceeded in an orderly manner from the easier to the more difﬁcult remedies.’ Initially there had been a ‘rite of holocausts’, by which the ﬁrst-fruits and ﬁrst-born animals had to be sacriﬁced as a test of human penitence and obedience. This had been observed by the patriarchs down to the time of Abraham. To him God had given an additional command, to render the test more severe: circumcision. ‘These commands were observed by some until the time of Moses, through whom God handed down to the people of Israel a law in which He set forth fuller commands, in addition to the earlier ones, for the present and the future world, and also established priests and levites as ministers of this law.’ Through observing the earlier commands and the new Mosaic law which subsumed them, men would secure ‘a sort of purgation from sin or guilt, both original and actual or willingly committed, and also an escape or a sort of preservation from the eternal and temporal punishments of the other world’. But, he added, ‘by observing these commands men would not merit eternal felicity’.¹⁵ So far, so conventionally orthodox. With regard to prospective punishments in the future world, the Mosaic law thus embodied a providential remedy for sin, both original and voluntary, which fell short of securing eternal blessedness. That had only been made possible at a speciﬁc point in history by Christ’s incarnation, death, and resurrection. Adapting an Aristotelian cliché, Marsilius argues that there are two kinds of ‘living and living well’ which are appropriate to men: the temporal or earthly, and ‘what is usually called the eternal or heavenly’.¹⁶ The Mosaic law had been necessarily concerned with both. With respect to the temporal, the Mosaic law prescribed ‘what must be observed in . . . the present life in order to settle human disputes’. In order to enforce this aspect of the law, God Himself made Moses princeps and iudex coactivus of the Jews, so that ‘men were forced . . . to observe these commands in this world by Moses and the coercive ¹⁵ DP I. vi. 3.

¹⁶ DP I. iv. 3; cf. I. v. 2.

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judges who followed him’, but, signiﬁcantly, ‘not by any priest’.¹ Such direct institution by God, by which, Marsilius asserts, the ruler (pars principans) had been occasionally created in the past, operated very rarely. In fact, these examples from ancient Israel are the only ones he gives.¹⁸ In every other instance of the appointment of a ruler, God’s providence worked through the rational decisions of men. In the unique, exceptional case of ancient Israel, however, ‘with respect to this cause and its free action, as to why it did or did not operate in one way or another, we can say nothing through demonstration; we hold it by simple belief, independently of reason’.¹⁹ That is to say, belief must sufﬁce because this manner of institution of a ruler in sacred history has been revealed only in Scripture. Nothing could be said about it by (rational) demonstration because in these instances God did not act in His usual fashion, as a causa remota working through the minds of men, to whom He has conceded the free choice (arbitrium) to institute a principatus. The immediate character of God’s action in these instances rendered it inscrutable to rational human understanding. With respect to that aspect of the Mosaic law concerned with ‘what is usually called eternal or heavenly’, God had used a similar direct method to institute the priesthood, in the person of Aaron and his successors.²⁰ He had directly instituted these two ofﬁces—ruler and priest—amongst the Israelites with two distinct, but related, purposes. As we have seen, the function of principatus was to coerce in accordance with the Old Law for ‘living and living well’ in this world. The function of the priesthood was to act in accordance with the precepta of that law which ‘were to be observed for the status of the future world’. The precepts of the law which related to the future world emphatically had no coercive sanction in this world. ¹⁷ DP II. ix. 8, citing Exod. 18: 13–26. ¹⁸ Attention is drawn to this point, at DP I ix. 2, by a marginal hand with a bony, elongated index-ﬁnger in the manuscript which was probably corrected by Marsilius himself: Tortosa, Cathedral Chapter Library, MS. 141, fo. 7v. For the probable attribution of some or all of the corrections to Marsilius, see above, p. 2. There is no evidence, however, that these rare marginal hands are the work of the scribe or scribes who corrected the manuscript. ¹⁹ DP I. ix. 2; cf. I. xii. 1. ²⁰ DP I. ix. 2; cf. I. vii. 3, II. xxviii. 22.

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By deﬁnition, the priesthood was excluded from any part in the enforcement of the temporal aspect of the law.²¹ So Marsilius considered that principatus and priesthood in ancient Israel were divinely instituted, complementary devices in God’s providential scheme for the ultimate salvation of fallen man. Nevertheless, their implementation of the discrete parts of the law for which they were respectively responsible was insufﬁcient to secure that salvation. Salvation became possible only with Christ. How had the role of principatus developed as the divine plan unfolded during the period before Christ? Marsilius argues that if Adam had remained in the state of innocence and grace in which he had been created, ‘the institution and the distinction between civil ofﬁces would not have been necessary to him or his posterity, because nature would have produced for him the advantages and pleasures of the sufﬁciency of this life in the earthly or pleasurable paradise, without any suffering or punishment on his part.’²² It was sin which had created the need for government. Although government had been coercive from the beginning, the differentiation of ofﬁces had been slow to develop: Abraham, for instance, was princeps, but also a farmer or shepherd.²³ Whether coercive government was instituted immediately by God, as in the case of Moses and subsequent judges of the Israelites, or by God as a causa remota acting through the free choice of men, as seemed to have been the case everywhere else, did not alter the fact that God ultimately instigated it. It was from the beginning and in its development providentially ordained. In that respect it was no different from the priesthood, although its providential function was quite distinct. The ‘miraculous effect’ of Christ’s incarnation was the most important event since the Fall of man, with which providential history had begun. Christ handed down to mankind a new, ‘evangelical law’. It comprised both precepts (precepta) and counsels (consilia)²⁴—the former obligatory and the latter merely advisory—on what must be ²¹ DP II. ix. 11; cf. II. ix. 9. ²² DP I. vi. 1. ²⁴ For deﬁnitions, see DP II. xii. 3–4.

²³ DP I. iii. 4.

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believed, done, and avoided. By observance of these, not only were men preserved thenceforth from the type of punishments in the future world from which they were already freed by obedience to the Old Law, ‘but also through God’s gracious ordinance they merit, by a certain congruity, eternal felicity’.²⁵ Obedience to this New Law engenders merit, but salvation only becomes possible because this merit corresponds to, or—in Marsilius’s orthodox language—is congruent with, divine grace proclaimed in this law.²⁶ For this reason it is also called the ‘law of grace’, both because through the passion and death of Christ the human race was redeemed from guilt and the penalty of losing eternal felicity, which it had suffered as a result of the Fall or sin of its ﬁrst parents; and also because, by observing this law and receiving the sacraments instituted with it and in it, divine grace is conferred upon us. After it has been given it is strengthened, and when it has been lost, it is restored to us.

Although we cannot, due to original sin, achieve eternal felicity through meritorious obedience alone, whatever we still lack can be made up by divine grace, which man had forfeited at the Fall and which was reintroduced into the world by Christ.² Marsilius’s assessment of Christ’s providential role is, like his discussion of the Fall and its consequences, impeccably orthodox. And it necessarily had profound consequences for the roles he attributed to both principatus and priesthood from the time of Christ. The New Law was much more than the collection of precepts and counsels which had constituted the Old Law.²⁸ The Old Law had included precepts to be observed for the status of the future world, with coercive sanction only in the future world. That part of it which was concerned with settling human disputes was also coercive in the present one. The function of the principatus instituted directly by God in ancient Israel was to give coercive sanction to this part of the Old Law. The New Law, by contrast, had no coercive sanction whatsoever in this world,²⁹ only in the future world.³⁰ All the counsels and precepts of the ²⁵ DP I. vi. 4. ²⁶ Quillet, Philosophie politique, p. 140; DP, ed. Brett, 33, n. 4. ²⁷ DP I. vi. 4; cf. II. vi. 2. ²⁸ DP II. ix. 10. ²⁹ DP II. ix. 3. ³⁰ DP II. viii. 5.

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New Law were therefore deemed by Marsilius to be ‘analogous’ only to those precepts of the Old Law concerned with the future world.³¹ They were ‘analogous’ to, rather than identical with, those aspects of the Old Law, because voluntary observance of them merited, through grace, much more than the freedom from physical punishment which obedience to all the precepts of the Old Law had secured.³² Coercion could not assist anyone to eternal life.³³ Thus those who had obeyed the earliest precepts and the Mosaic law which had subsumed them were necessarily denied beatitude in the other world until, through Christ’s ‘advent, passion, death, and resurrection’, they were liberated from Limbo, in which they had been suspended during the interim, and received the promise of ultimate salvation given to them by God.³ Whereas the Mosaic or Old Law had supplemented and subsumed earlier precepts, the evangelical or New Law had replaced it. The New Law exempted the Christian faithful from observing many of the precepts of the Old Law, and forbade them to observe some—such as the ceremonial ones—under pain of eternal perdition.³⁵ The counsels and precepts of the New Law were ‘analogous’ only to those precepts of the Mosaic law which had had to be observed for the status of the future world, like those relating to sacriﬁces or hostages or offerings for the redemption of sins, especially those covert ones which are committed through immanent acts. This was because no one could have been coerced in the present world to obey those precepts.³⁶ God had, in Marsilius’s view, instituted the Old Testament priesthood to bear responsibility for this part of the Mosaic law.³ Christ excluded from the remit of the New Law any commands to settle men’s contentious acts, because such commands must by deﬁnition have coercive sanction in this world: ‘such matters must in future be dealt with by the human laws alone and by the judges according to these laws . . .’³⁸ The New Law guides, rather than coerces, us as to what ³¹ DP II. ix. 11. ³² DP I. vi. 4. ³³ DP II. v. 6; II. ix. 2. ³⁴ DP I. vi. 5. ³⁵ DP II. ix. 10; cf. DM iii. 8. ³⁶ DP II. ix. 11; in DM vi. 4 giving money to the poor is instanced as one of the counsels common to both the Old Law and the New. ³⁷ DP II. ix. 9. ³⁸ DP II. ix. 10.

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we should do or avoid in the present life, but only with respect to the future life. The ‘reduction of men’s contentious acts to due equality and proportion for . . . the present life’ was henceforth to be determined exclusively by human laws, ‘either those which have already been given or those which are going to be given’.³⁹ For the coercive precepts of the Mosaic law concerned with the present world, Christ ‘substituted precepts which were and would be given in human laws, and He commanded every soul to observe them and to obey those who ruled in accordance with them, at least in those precepts which were not opposed to the law of eternal salvation’.⁴⁰ In other words, Christ had encompassed all present and future human law within the divine providential scheme, while distinguishing it from the New Law. Christ’s incarnation therefore created a sharp distinction between the laws which were concerned, respectively, with ‘living and living well’ in this world, and in the next: between what Marsilius termed human and divine law. This deﬁnitively marked off the New Law from the Old, which, by God’s immediate ordinance, had comprised and combined both⁴¹ (although within the Mosaic law such a distinction had been foreshadowed in the discrete functions accorded to judges and priests).⁴² Since Christ had taken into account the precepts of existing human laws and of those to be formulated in the future, they still had a role in the divine providential scheme. But after Christ’s incarnation God no longer directly ordained laws with coercive sanction in this world, as He had in the Mosaic law. Henceforth, as Christ had envisaged, such laws would be made by men.

HUMAN L AW IN HISTORICAL PERSPECTIVE Yet human law was not, as far as Marsilius was concerned, created or clearly differentiated for the ﬁrst time in history by Christ’s promulgation of the New or evangelical law. If it had been, how could ³⁹ DP II. ix. 12. ⁴⁰ DP II. ix. 9. ⁴² DP I. ix. 2; II. ix. 9, cited above, p. 56.

⁴¹ DP I. x. 3.

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Aristotle provide him with the foundations for his analysis of human law, given the historical limitations on Aristotle to which he had drawn attention at the beginning of his argument, and which his book was intended, in one speciﬁc respect, to remedy? It was according to human law that the cities of pagan antiquity had been governed. Depending heavily on the ﬁrst book of Aristotle’s Politics, Marsilius showed how men had ﬁrst gathered into households, in which actions, ‘especially those which we shall henceforth call “civil”, were regulated by the elder amongst them . . . apart from laws and customs, because these could not yet have been discovered’. The same was true of the most primitive villages. In more developed ones, however, the elder had to ‘regulate matters of justice and beneﬁt by some rational ordinance or quasi-natural law, because thus it seemed appropriate to all by a certain equity, not as a result of prolonged inquiry, but solely by the common dictate of reason and a certain duty of human society’. Such villages later grew into ‘larger communities’, which were still ruled by an ‘elder or the man who was regarded as better, although the ordinances in these were less imperfect than those by which a single village or hamlet was ordered’. When these communities had increased in size, and the experience of men was greater, more perfect arts and rules and ways of living were discovered, and also the parts of communities were more fully differentiated. Finally those things which are necessary living and living well were brought to completion (ad complementum) by men’s reason and experience, and the perfect community called the civitas was instituted, with the differentiation of its parts . . . ³

The city was instituted at the instigation of a ‘weightier’ or ‘prevailing part’⁴⁴ (valentior pars) of those who were in agreement ‘about matters pertaining to the sufﬁciency of life’. When ‘men ﬁrst gathered together to ordain the civil community and the civil law . . . they were not summoned by a single man or by several having coercive authority over ⁴³ DP I. iii. 3–5; cf. I. iv. 5. Gewirth, Marsilius of Padua, 86–7, points out that whereas Aristotle concentrates on the progressively higher ends achieved by each form of association over the preceding one, Marsilius differentiates between them in terms of means rather than ends: how transient human acts were regulated in each successive social grouping. ⁴⁴ I owe this rendering to Annabel Brett: DP, ed. Brett, pp. xxiii, l–li.

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the others, but by the persuasion or exhortation of prudent and able men, whom nature had produced among the others with an inclination to this task . . .’ But the city was not perfect from the moment of its institution. Under the continuing guidance of these exceptionally able men, the rest of the citizens were then progressively brought ‘either by successive stages or simultaneously to the form of the perfect community, to which men are naturally inclined . . .’.⁴⁵ The ‘perfect ﬁnal cause’ of the city was, according to Marsilius, Aristotle’s ‘living and living well’: the city came into existence for the sake of living, but, having come into existence, it exists for the sake of living well, that is, explains Marsilius, ‘having leisure for those liberal functions in which are exercised the virtues of both the practical and the theoretic soul’.⁴⁶ This Aristotelian account of the formation and development of cities is as conventional as Marsilius’s Christian account of the early stages of providential history.⁴⁷ Because quarrels and disputes would arise in any congregation of men, it was necessary that there should be established a ‘rule of the just’ (iustorum regula) in the civitas. Otherwise ﬁghting would break out and eventually the city would be destroyed.⁴⁸ The existence of this regula, which is ‘called a statute (statutum) or custom (consuetudo) or by the common name law (lex)’, is assumed to be ‘almost self-evident by induction in all perfect communities’.⁹ Invoking the Nicomachean Ethics as his authority, Marsilius deﬁnes such law as ‘an ordinance made by political prudence concerning matters of justice and beneﬁt and their opposites, and having coercive force, that is, concerning the observance of which there is given a command which one is compelled to observe, or which is made by such a command’.⁰ Such law was and ⁴⁵ DP II. xxii. 15. ⁴⁶ DP I. iv. 1, quoting Aristotle, Politics i. 2, 1252b 27–9, from William of Moerbeke’s translation: Politicorum libri octo cum vetusta translatione G. de Moerbeke, ed. F. Susemihl (Leipzig, 1872), 6–7. ⁴⁷ I ﬁnd unconvincing the attempt of Nederman, Community and Consent, esp. 32–41, to draw a sharp distinction between Aristotle and Marsilius in this regard. For a more nuanced discussion, see DP, ed. Brett, pp. xix–xxi. ⁴⁸ DP I. iv. 4; cf. I. v. 7. ⁴⁹ DP I. x. 2; cf. I. xi. 1. ⁵⁰ DP I. x. 4; Aristotle, Nicomachean Ethics x. 9, 1180a 21; see Ethica Nicomachea, translatio Roberti Grosseteste Lincolniensis sive ‘Liber Ethicorum’, B. Recensio recognita, ed. R. A. Gautier, Aristoteles Latinus, xxvi. 1–3 (Leiden and Brussels, 1973), 584.

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is concerned with transient—as opposed to immanent—human acts which can be done to the beneﬁt or harm of others in this world.⁵¹ It is, accordingly, sanctioned by penalties in this world. Its ﬁnal cause is peace in this world, which is attained through ‘living well’ in this world. Its efﬁcient cause is the legislator humanus, a concept which Marsilius did not borrow from Aristotle, but devised himself. He deﬁnes the legislator humanus as ‘the universitas civium, or the valentior pars thereof, through its election or will . . . commanding that something be done or omitted with regard to human civil acts, under temporal penalty or punishment’.⁵² The law which the legislator makes requires a ‘guardian’ (custos) or ‘executor’ (factor) to enforce it. This enforcer Marsilius terms the ruling part (pars principans);⁵³ the law ‘is and ought to be [his] form’.⁵⁴ The law is an expression of human will, issuing ‘immediately from the decision of the human mind’; likewise the pars principans was instituted ‘immediately’ by the human will, because God had conceded ‘free choice’ (arbitrium) to the minds of men.⁵⁵ Marsilius draws an explicit contrast between this free election of law and ruler in ancient Greece and the ‘immediate act or oracle of God’ in the Mosaic law and the judges of Israel. Old Testament Israel had been a unique exception, because of its unique providential role. Everywhere else God’s providence with regard to ‘living and living well’ in this world worked exclusively through the decisions of men. The ‘glorious philosophers’ of pagan antiquity are said to have comprehended ‘almost completely’ through demonstration ‘living and living well or the good life’ in its ‘earthly’ sense. But its other sense—the ‘eternal or heavenly’—these philosophers were unable ‘to prove by demonstration, nor was it self-evident, and therefore they did not concern themselves with the means thereto’.⁵⁶ Some of them— Marsilius instances Hesiod and Pythagoras—feigned a belief in an ⁵¹ DP II. viii. 4–5. The distinction between immanent and transient acts is ﬁrst formulated at I. v. 4, cf. II. viii. 3. Whereas human law can only be concerned with transient acts, because immanent ones are inaccessible to human judgement, divine law is concerned with both categories of act: II. viii. 5. ⁵² DP I. xii. 3, citing Aristotle, Politics iii. 11, 1281a 39; William of Moerbeke, Politicorum libri octo, 191. ⁵³ DP I. iv. 4. ⁵⁴ DP I. x. 1. ⁵⁵ DP I. xii. 1; I. ix. 2–3. ⁵⁶ DP I. iv. 3.

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afterlife in order to frighten men into behaving well in those aspects of life which could not be touched by human law. By this cynical device the ‘sufﬁcient life of men for the status of the present world’ could be preserved with less difﬁculty.⁵⁷ This pagan deceit was rendered more effective by the fact that all races agreed that it was appropriate (although any necessity was neither demonstrable nor self-evident) to ‘institute a priesthood for the worship and honouring of God, and for the beneﬁt resulting therefrom for the status of the present or the future world’.⁵⁸ Priests had not been unique to ancient Israel. But Scripture proved that whereas the Israelite priests had been charged by God with maintaining that aspect of the Old Law which was concerned with the future world, the origin of pagan priests was purely human and their function with respect to the future world was illusory. Aristotle himself had recognized the importance of priests in the life of the city.⁵⁹ His view that priests, although chosen by lot, were to be regarded as distinct from political rulers is twice invoked by Marsilius in support of the exclusion of the priesthood from any coercive power.⁶⁰ In this respect Aristotle and the Old Law had been at one. Marsilius considered that some of the teachings of pagan antiquity with regard to the role of the priesthood, like this one, continued to be valid in the Christian era. But all religions ‘which are or were outside the Christian catholic faith or outside the Mosaic law which preceded it or outside the belief (credulitas) of the patriarchs which in turn preceded this—and, in general, all those outside their tradition, which is contained in the sacred canon, called the Bible—did not believe rightly concerning God’.⁶¹ This meant that the ancients, like other pagans, did not ‘believe rightly’ concerning the future life and its happiness or misery, nor ‘about the true priesthood established for its sake’. Hence not only were the ancients unable to comprehend the true ‘living and living well’ of the future world, but that inability ⁵⁷ DP I. v. 11. ⁵⁸ DP I. v. 10. ⁵⁹ DP I. v. 13. ⁶⁰ DP I. xix. 12; II. ix. 8; cf. Politics v. 15, 1299a 15–19; William of Moerbeke, Politicorum libri octo, 440. ⁶¹ DP I. v. 14 (this paragraph division is found in Scholz’s edition, but not PrevitéOrton’s); cf. II. viii. 4.

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rendered incomplete their understanding of man’s earthly end. For ‘the worship and honouring of God, and the giving of thanks for the beneﬁts received in this world and those to be received in the future one’ are ‘useful’ for the status of the present life.⁶² It is for this reason, perhaps, that Marsilius says that the philosophers of antiquity had comprehended ‘almost completely’ the ‘living and living well’ of this world.⁶³ Without true knowledge of the other world, available only through revelation, they were not equipped to understand this world ‘completely’. This deﬁciency could be remedied only in a Christian society. The deﬁciency begins to point to an unacknowledged difﬁculty with the Aristotelian language of perfection which we have already seen Marsilius adopting. He states at the outset that the civitas is the perfecta communitas. It follows that by examining the origin of the civitas we may see how men have ‘advanced from imperfect . . . to perfect communities, regimes and modes of living in them. For from the less to the more perfect (ex minus perfectis ad perfecciora) is always the path of nature and of its imitator, art.’⁶⁴ As the pre-political communities developed, ‘more perfect arts and rules and ways of living were discovered’, until ‘ﬁnally those things which are necessary for living and living well were brought to completion (complementum) by men’s reason and experience, and there was instituted the perfect community, called the civitas’.⁶⁵ In other words, the perfection of the community and of the regulation of life within it proceeded pari passu. The civitas and human law were established together, for the civitas was the legislator humanus. But as Aristotle had recognized, if the civitas was perfect by deﬁnition, it was not unchanging; nor was the human law which had superseded earlier and more primitive forms of social regulation in pre-political communities. With a battery of Aristotelian references, Marsilius argues that it is ‘by men’s mutual help and the addition of later to earlier discoveries, that all arts and disciplines have been perfected’. No single ⁶² DP I. iv. 4. ⁶³ DP I. iv. 3. ⁶⁴ DP I. iii. 2, paraphrasing Aristotle, Physics ii. 8, 199a 9; see Physica, translatio vetus, ed. F. Bossier and J. Brams, Aristoteles Latinus vii. 1 (Leiden and New York, 1990), 85. ⁶⁵ DP I. iii. 4–5; cf. I. iv. 5.

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man, and not even all the men of one era, could formulate a comprehensive and timeless body of human law. ‘This can be sufﬁciently seen from experience, in the additions, subtractions, and the diametrically opposed changes made in the laws in different eras, and at different times within the same era.’⁶⁶ Development in human law did not obviate the need for substantial changes and even deletions, just as in the parallel process in divine law.⁶⁷ In the Defensor minor he acknowledged that general councils—deemed infallible in the Defensor pacis—might revoke, either partially or in their entirety, the rulings of earlier general councils ‘in order to ﬁt in with the times or different conditions’.⁶⁸ In this respect at least, William of Ockham’s criticisms had compelled Marsilius to retreat from a position he had espoused in the Defensor pacis. If Marsilius was eventually forced to recognize that legal development was not a smooth progression in the case of general councils, he had always acknowledged that it was not in other respects. Neither the civitas nor the law by which it is regulated appear to have been fully perfected when the city was ﬁrst ‘instituted’ as a ‘perfect community’. It seems, then, that for Marsilius the historical development of a civitas and its legal system might be characterized as a continuing process of perfection. But it was not an inevitable process. It happened on the basis of ‘men’s reason and experience’, and neither was infallible.⁶⁹ Citing the Nicomachean Ethics as his authority, Marsilius deﬁned law as ‘an ordinance emerging from political prudence, concerning matters of justice and beneﬁt and their opposites, and “having coercive force” ’.⁷⁰ Without such sanction from a legislator, it could not be a law: ‘Not all true cognitions of civil justice and beneﬁt are laws, unless a coercive sanction has been given concerning their observance.’⁷¹ Such true cognition is, however, ‘necessarily required for a perfect law’. But it was possible for a false cognition of the ‘just and beneﬁcial’ to be given coercive sanction, and thus to be made a law. In that case the law would ⁶⁶ DP I. xi. 3. DP, ed. Previté-Orton, p. 42, n. 1 and, following him, DP, ed. Scholz, p. 54, n. 2, take this to be an allusion to the turmoil in contemporary Italian communes. It may also be interpreted as a more general point about legal development. ⁶⁷ Above, p. 56–9. ⁶⁸ DM xi. 3. ⁶⁹ DP I. iii. 5. ⁷⁰ DP I. x. 4. ⁷¹ DP I. x. 5.

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be ‘not absolutely perfect’; indeed, it would be ‘absolutely unjust’. For it would have the ‘due form’ of a law, the coercive sanction, but it would lack the ‘due condition, the due and true ordinance of what is just’.⁷² The ‘true cognition’ which is the ‘due condition’ of a perfect law must be anterior to the ‘due form’, and is based upon ‘men’s reason and experience’. The only example Marsilius gives of an ‘absolutely unjust’, and therefore ‘not absolutely perfect’, law is wergild regulations ‘in certain barbarian regions’. In other words, he conceives of an ‘absolutely unjust’ measure being made law only outside the Roman Empire, which, as we shall see, had come to mean outside Christendom, among pagans. In a pagan society, then, it was conceivable that ‘true cognition’ would not play its proper part in the formulation of the law. According to Marsilius, the capacity of the pagan philosophers of antiquity to comprehend the ‘living and living well’ of this world was in some way impaired by their ignorance of the truth about the future life. He seems to have considered that the absence of that ‘true cognition’ which was the ‘due condition’ of perfect law was only conceivable amongst pagans. In other words, ‘true cognition’ was only possible among Christians. Marsilius assumes that, in some unexplained way, the progressive perfection of human law owed something to Christianity. This is the source of the unacknowledged difﬁculty in Marsilius’s projection of Aristotelian notions of perfection onto providential history. But as we shall see, the progressive perfection of human law did not turn out to be inevitable even when the legislator had become Christian. Far from it. Faith was to prove as fallible as ‘reason and experience’; and its fallibility was providentially necessary, because it was so catastrophic.

THE ROMAN EMPIRE AND CHRIST As with the law, so with its maker: there was nothing smooth or inevitable about the perfection of the human legislator, which is the political community or civitas. Invoking Aristotle’s discussion of ⁷² DP I. x. 5.

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different types of kingship, Marsilius argues that in different times and places, different types of multitude have been inclined towards different types of constitution (politia) and government (principatus). He exhorts ‘legislators and institutors of governments’ to bear this fact in mind.⁷³ A certain multitude in a particular time and place may not be inclined to accept the best kind of temperate government—which, as we shall see, was in Marsilius’s view Roman imperial rule—and ‘so is prepared to fall back to trying, ﬁrst, that sort which is most appropriate to it’, in, we must understand, that particular context. The example he gives is of Rome, his only case study in the development of a legislator. The history of Rome is integrated into the conventional providential framework, based on Scripture, which I have already outlined. But that history is exiguous until the Republic was in its death throes. In the Defensor pacis, the coup of Julius Caesar is presented as the ﬁrst pivotal event in Roman history: before the monarchy of Julius Caesar, the Roman people was for a long time unwilling to bear any deﬁnite monarch (monarcham alique—terminatum), either one with hereditary succession or one who was named only for his own lifetime. The reason for this was perhaps that there was a multitude of heroic men worthy of rulership, in terms both of families or clans and individuals.⁷⁴

Marsilius’s position here is a complex one. It has to be teased out by reference to his De translatione imperii. In the Defensor pacis the Roman Republic is treated as a virtuous regime. The same is true of the more detailed account given in Marsilius’s complementary treatise De translatione imperii, based on Landulphus Colonna’s eponymous work, and written in close conjunction with the Defensor pacis.⁷⁵ The latter records that when the inhabitants of the ⁷³ DP I. ix. 10, citing Politics iii. 14, 1284b 37 and 1285a 19; William of Moerbeke, Politicorum libri octo, 213, 215. Here Aristotle considers whether ‘in order to be well governed a city should be under the rule of a king or some other form of government; and whether monarchy, although good for some, may be bad for others’. He demonstrates that there are many forms of kingship, and that the manner of government is not the same in all of them. ⁷⁴ DP I. ix. 10. ⁷⁵ See below, p. 69. There is an English translation in Marsiglio of Padua, Defensor Minor and De Translatione Imperii, ed. C. J. Nederman (Cambridge, 1993). I have preferred to give my own renderings.

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regnum Italicum lived peacefully together, they enjoyed the ‘sweet fruits of peace . . . and from and in those fruits they made such progress that they brought the entire habitable world under their sway’.⁷⁶ That this refers speciﬁcally to the republican period in Roman history, despite Marsilius’s anachronistic use of the medieval term regnum Italicum, is made clear at the beginning of his De translatione imperii, which reproduces verbatim what Landuphus Colonna had written: ‘The Roman people, through seven hundred years from King Romulus down to Caesar Augustus, bore its arms mightily and virtuously throughout the whole world, so that it wore down all the kingdoms of the world through its own virtue.’⁷⁷ Such was the conventional, ancient explanation for the spread of Roman imperium. So conventional was it, that it was echoed in Augustine’s De civitate Dei, where the expansion of Rome’s power was deemed to be a divine reward for the (pagan) virtues of the Romans.⁷⁸ Nevertheless, that Marsilius did not regard the constitution of republican Rome as the ‘best’, in his sense of the most developed or perfected, is indicated by his choice of the adjective ‘heroic’ to describe the characteristic which made the citizens of the Republic ‘worthy of rule’ and unwilling to accept any form of monarchy. Many Roman writers regarded this characteristic as deﬁnitive of the superiority of republican self-rule. But to term it ‘heroic’ was a deliberate echo of Aristotle’s account of ‘heroic’ kingship or rulership as the earliest, and therefore most primitive, of the various categories of kingship—an account to which Marsilius had already drawn attention.⁷⁹ In heroica tempora men were named as principes on account of their ‘exceeding virtues and beneﬁcial deeds’, which distinguished them from the multitude. In republican Rome, Marsilius considers that the multitude itself was ‘heroic’. In his view, which was at variance with that of those Roman writers like Sallust who held up the ⁷⁶ DP I. i. 2. ⁷⁷ DTI, cap. 1; for a parallel in the Defensor minor, see below, p. 73; cf. M. Goldast (ed.), Monarchia S. Romani imperii, sive tractatus de iurisdictione imperiali seu regia, et pontiﬁcia seu sacerdotali, 3 vols. (Frankfurt, 1611–14), ii. 89. ⁷⁸ De civitate Dei v. 15. ⁷⁹ DP I. ix. 4; Politics iii. 4, 1285b 4–19; William of Moerbeke, Politicorum libri octo, 217–18. According to Aristotle, such rule was exercised over voluntary subjects who, at a later date, had many royal powers ceded to them, and took others from their kings.

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Republic as a model and lamented its downfall,⁸⁰ ‘regal monarchy’, not republicanism, was ‘perhaps the most perfect’ form of temperate government.⁸¹ Moreover, Julius Caesar was the ﬁrst Roman who might conceivably be deemed to be such a monarch.⁸² ‘According to some,’ Marsilius wrote in De translatione imperii, the Roman Empire began with Julius Caesar, but it is truer to say that it took its origin from Octavius Augustus, the ﬁrst Roman emperor. For according to the truth of history, although Julius Caesar was the ﬁrst to snatch for himself the monarchy of the Romans, he was not an emperor, but a violator of the Republic and, rather, its usurper (non fuit imperator, sed rei publicae violator et illius potius usurpator). For this reason he was not included in the catalogue of principes Romanorum.⁸³

Julius Caesar could not, after all, be categorized as the ﬁrst regal monarch of Rome. This is not stated explicitly in the Defensor pacis, but given the explicitly interlocking nature of the two works, it must be implicit in the allusion to him.⁸⁴ As a usurper, who had ‘snatched the monarchy’, Caesar could not have been elected by the free choice of the people; he therefore ﬁtted Marsilius’s deﬁnition of a tyrant.⁸⁵ Just as the Roman people was ‘unwilling to accept any deﬁnite monarch’ prior to Caesar, so, by inference, it had been unwilling to do so under him. For the principatus he exercised could not, by deﬁnition, have been temperate. It was, rather, imposed upon an unwilling people. Professor Quillet’s interpretation of this passage in De translatione imperii as indicating the ‘decadence’, in Marsilius’s eyes, of a Roman ⁸⁰ Sallust’s explanation for the downfall of the Republic, Bellum Jugurthinum I. x, is invoked at DP I. i. 2. ⁸¹ DP I. ix. 5; cf. I. viii. 4; I. ix. 9. ⁸² DP I. ix. 10, quoted above, p. 67. Although Marsilius mentions in passing at the start of De translatione imperii (cap. 1, p. 376), that Rome had been a monarchia seu regalis principatus in origin, and Romulus its king, this is the only instance in this work or the Defensor pacis or the Defensor minor where he alludes to the early kings of Rome. If he considered them to be heroic kings, whose powers the people later took upon itself, he does not say so explicitly. His template for the De translatione imperii—Landulphus Colonna’s treatise, in Goldast, Monarchia ii. 89—describes Romulus as king, but does not refer to Rome as a regalis principatus. ⁸³ DTI, cap. 2, pp. 378–80; Marsilius inserts the word ‘monarchy’, and the reference to Julius Caesar as the violator and usurper of the Republic, but otherwise reproduces Landulphus’s model. ⁸⁴DP I. ix. 10. ⁸⁵ DP I. viii. 3; I. ix. 5.

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people which had lost its earlier ‘heroic’ virtue, thus misunderstands Marsilius’s point.⁸⁶ Julius Caesar’s ‘monarchy’ was one of those diseased governments established by fraus or violentia or both.⁸ It did not undermine the contention that regal monarchy was ‘perhaps the most perfect’ of all forms of government. Not long after this initial usurpation of monarchical power, the Roman people had elected a monarch, in the person of Augustus. Thus was the Roman Empire founded, as a temperate monarchy in which the monarch was, by deﬁnition, established by election. Marsilius rather disingenuously states that there is ‘room for doubt’ as to which of the temperate forms of government is best, but adds that there can be no doubt that ‘election is the more certain standard of government’, for this accords with ‘truth and the manifest view of Aristotle’.⁸⁸ Once established, this method of instituting a principatus is ‘more permanent in perfect communities. For at some time or other it becomes necessary to have recourse to this from among all the other methods, but not conversely’. The establishment of election as the means of instituting the pars principans is, therefore, a characteristic of a perfect legislator. By this method of ‘institution’ alone is the principans optimus obtained.⁸⁹ ‘Heroic’ rulers had been elected in heroica tempora,⁹⁰ but, by implication, the spread of ‘heroic’ virtues amongst the citizens of the Republic had removed the need for such ‘heroic’ monarchical rule.⁹¹ Marsilius fails to address himself to the crucial issue of why the constitutional structures of the Republic which were ‘appropriate’ to such widespread virtue among the citizen body could be and came to be subverted by Julius Caesar, as the ﬁrst stage in their transformation into those of the Empire. Indeed, this is as far as he goes in analysing the constitution of the Republic. He contents himself with repeating Landulphus Colonna’s bland assertion that, in the foundation of the Empire, humana virtus and fortuna vied with each other.⁹² This does not look like an implicit recognition of moral decadence in the late republican period, despite the glancing invocation, in the Defensor ⁸⁶ DTI, p. 379, n. 4. ⁸⁷ DP I. ix. 8. ⁸⁸ DP I. ix. 9. ⁸⁹ DP I. ix. 7. ⁹⁰ DP I. ix. 4. ⁹¹ DP I. ix. 10. ⁹² DTI, cap. 1, p. 378; Landulphus, in Goldast, Monarchia ii. 89.

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pacis, of Sallust’s statement that discord had undermined the Republic.⁹³ Marsilius’s most explicit and detailed examination of the establishment of the Empire is found in the Defensor minor.⁹⁴ As we have already seen, its much later date has encouraged some commentators to draw a sharp distinction between its argument and that of the Defensor pacis. It is conventionally termed an ‘imperialist’ work, by contrast with the ‘republican’ Defensor pacis.⁹⁵ But the Defensor minor’s elaborate system of cross-references to the earlier work makes it clear that Marsilius, at least, viewed it as a supplement to the arguments of the Defensor pacis. Indeed, he says as much in the ﬁnal words of the book.⁹⁶ Moreover, the opening sentence of De translatione imperii establishes that Marsilius considered that the Defensor pacis had dealt with the question of the ‘institution of the Roman and of any other principatus’.⁹⁷ With respect to the Roman one, the Defensor minor nevertheless ampliﬁed the analysis of the Defensor pacis. Marsilius embarks on his discussion in the Defensor minor with the bald statement that ‘the supreme human legislator, especially from the time of Christ up to the present, and perhaps for some time before then, was and is and ought to be that of the universitas hominum who ought to be subject to the coercive precepts of the law, or of their valentior pars, in individual regions or provinces’. This ‘supreme human legislator’ was and is the Romanus populus, which had and has the authority to legislate ‘over all the provinces of the world (super universas mundi provincias)’ because this ‘power or authority’ had been transferred to it, ‘on account of its outstanding virtue’, by the ⁹³ DP I. i. 2. ⁹⁴ DM xii. 1–3. ⁹⁵ Above, p. 10–11. Jeudy and Quillet, Oeuvres mineures, 157–60, date its completion to late 1340 or early 1341; Brampton (ed.), DM, p. x, dated it to 1342. For further discussion, see N. Rubinstein, ‘Review’ of Oeuvres mineures, Nottingham Medieval Studies, xxvii (1983), 88–9 (I am indebted to the late Prof. Rubinstein for supplying me with a copy). N. Rubinstein, ‘Marsilius’, 44, n. 2, 72, 75, distinguishes the ‘imperialist’ slant of the Defensor minor from the allegedly ‘republican’ one of the Defensor pacis; cf. Gewirth, Marsilius, i. 131. By contrast, Quillet, Philosophie politique, 19, 52, 84, 87–8, etc., Oeuvres mineures, 156–8, 162–3; cf. her DP, pp. 160–1, n. 22, demonstrates that it is best interpreted as a rather inelegant elaboration of some of the arguments of the earlier treatise. ⁹⁶ DM xvi. 4. ⁹⁷ DTI, cap. 1, p. 374.

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‘corporation of the provinces (universitas provinciarum)’ or their valentior pars.⁹⁸ The allusion to a transfer of legislative capacity by all the provinces to the Roman people is congruent with the views on the spread of Roman dominion under the Republic which we have seen being expressed in both the Defensor pacis and De translatione imperii. Marsilius suggests that such a transfer might have pre-dated Christ’s incarnation, had certainly been effected ‘from the time of Christ’, and was still current. He immediately adds that, if this people has transferred legislative authority to its princeps, it should similarly be said that their princeps has this sort of power, and that their legislative authority and power (that is, of the Roman people and its princeps) ought to last and reasonably will last for as long as they are not revoked by the universitas provinciarum from the Roman people or by the Roman people from its princeps.⁹⁹

On the revocable nature of the transfer of legislative power, Marsilius refers the reader to what he had established in the Defensor pacis I. xii: that the human legislator—the ‘primary and efﬁcient cause of the law’—is the people or universitas civium or its valentior pars, ‘through its election or will expressed by words in a general assembly of the citizens, commanding or determining that something be done or omitted with regard to human civil acts, under temporal penalty or punishment’. The universitas civium or its valentior pars is the legislator, ‘regardless of whether it makes the law immediately by itself or entrusts the making of it to some person or persons, who are not and cannot be the legislator simpliciter, but only for a certain purpose and at a speciﬁc time, and according to the authority of the primary legislator’.¹⁰⁰ That Marsilius considered this discussion to be relevant to the Roman people’s transfer of power to its princeps not only from the late perspective of the Defensor minor, but also when he was ⁹⁸ DM xii. 1; for discussion, see Quillet, Philosophie politique, 84–5. ⁹⁹ My translation of this passage reproduces the ambiguity in the original: the Roman people acts in the third-person singular, but the princeps to whom it transfers legislative power is on one occasion explicitly described as ‘theirs’; cf. DM i. 5: ‘the judge or princeps judges or pronounces the law by authority of the legislator with the power to coerce transgressors; this is not his own power simpliciter, but is given to him by another, and may be revoked by another.’ ¹⁰⁰ DP I. xii. 3; cf. I. xii. 9.

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writing the Defensor pacis, is revealed by the contexts of his crossreferences to this discussion in Discourse II of the Defensor pacis.¹⁰¹ In Marsilius’s view, the Roman people had been ‘supreme human legislator’ during the republican period.¹⁰² According to the Defensor minor, ‘especially from the time of Christ up to the present, and perhaps for some time before then’, it had revocably transferred its power, including that revocably transferred to it by the universitas provinciarum, to its princeps, identiﬁed in De translatione imperii as Augustus, ‘ﬁrst emperor of the Romans’.¹⁰³ Thus was the term Romanum Imperium transformed from its ﬁrst sense—the monarchy or regalis principatus of the city of Rome alone, as it was from its origin—into the more familiar, later meaning: ‘the universal or general monarchy of the whole world, or at least of most of the provinces, such as was the principatus of the city of Rome in its development’.¹⁰⁴ That Christ’s advent took place during the principate of Augustus was no mere coincidence: ‘in the time of Christ the Roman princeps had monarchical sway (monarchizabat) over all lands everywhere’.¹⁰⁵ Marsilius argues, in the Defensor minor, that it is clear ‘from approved histories (ex approbatis historiis)’ that the Roman people and its princeps had had legislative power conferred on them. The ‘approved histories’ he has in mind in this connection appear to be of only one type: with a general reference back to the Defensor pacis II. iv–v, where he claims to have shown from the words of Christ and St Paul that people and princeps did have this power ‘super universas mundi provincias’, he ¹⁰¹ DP II. xxv. 9; II. xxvi. 5; II. xxx. 8. ¹⁰² This is the implication of DM xii. 1, and also of DTI, cap. 1, although there the term used (not copied from Landulphus) is civitas. ¹⁰³ DM xii. 1; DTI, cap. 2, p. 378. Marsilius had in mind the so-called lex regia, by which the Roman people supposedly granted its legislative power to Augustus: Corpus iuris civilis, Dig. 1. 4. 1; Inst. 1. 2. 6, both of which mention a ‘concession’ of power. Allusions to it in Dig., ‘Deo auctore’; Dig. 1. 11. 1; and Cod. 1. 17. 1, 7, describe it as a ‘transfer’. Marsilius uses both terms interchangeably. For him a ‘transfer’ was a revokable ‘concession’. For this distinction amongst medieval civilians, see E. H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, 1957), 103; for different views of Marsilius’s interpretation, see Gewirth, Marsilius, i. 248–9; Rubinstein, ‘Marsilius’, 72; Quillet, Philosophie politique, 84–5. ¹⁰⁴ DTI, cap. 1, p. 376. The same distinction is found in Landulphus, cap. 1, Goldast, Monarchia ii. 89, but Marsilius expresses it slightly differently. ¹⁰⁵ DP I. xix. 10.

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proceeds to quote solely from Scripture.¹⁰⁶ He does not, however, repeat in the Defensor minor either of the scriptural accounts of the most important incident, concerning Christ, which are used in the Defensor pacis¹⁰⁷ in a way which, it may be recalled, aroused Alvarus Pelagius’s ire.¹⁰⁸ According to Matthew 27: 1, Christ had allowed Himself to be brought before Pontius Pilate, ‘who was vicarius . . . imperatoris Romani’¹⁰⁹ and therefore coercive judge. Pilate had judged Him and condemned Him to death. Christ had not denied that Pilate was a judge, although He had ‘perhaps indicated that He was suffering an unjust punishment’. According to John 19: 9–11, Pilate had told Christ that he had the power to crucify or to release Him, and Christ had replied: ‘You would not have any power against Me if it had not been given to you from above’. In other words, Christ recognized that He was subject to the coercive judgement of the secular princeps. John XXII denounced Marsilius for trying to use these scriptural accounts to support the imperial claim to ‘institute, depose, and punish a pope’, which, we have seen, was in his view the most heinous heretical error peddled by the Defensor pacis.¹¹⁰ But Marsilius’s interpretation of the incident was far more expansive than this. Following Augustine’s views on the passage in John’s gospel as excerpted in Thomas Aquinas’s Catena aurea, Marsilius takes it in conjunction with Romans 13: 1–7 as scriptural proof that the emperor’s power derived ultimately from God.¹¹¹ He had already cited both passages in support of his earlier claim, that when a principatus is ‘instituted immediately’ by the human mind, God is still the causa remota.¹¹² Christ had recognized that He was subject de iure, not simply de facto, to the coercive jurisdiction of the secular princeps; and that no greater jurisdiction could ¹⁰⁶ DM xii. 2; for Marsilius’s varying deﬁnitions of ‘approved histories’, see below, p. 187. ¹⁰⁷ See esp. DP II. iv. 12. ¹⁰⁸ De planctu I. art. 68, par. J, iii. 336–8, discussed above, p. 26. ¹⁰⁹ Pilate is also so described at DP I. xix. 4; II. iv. 4. Of course, the title had contemporary resonances. ¹¹⁰ Licet iuxta doctrinam, cap. 3, in Raynaldus, Annales v. 350, discussed above, p. 20. ¹¹¹ Aquinas, Catena aurea xii. 445. ¹¹² DP I. ix. 2, discussed above, p. 55.

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be had over Him or anyone else, ‘for which reason it is called merum imperium by the Roman legislator’.¹¹³ Merum imperium, conferred on Augustus by the ‘supreme’ or Roman human legislator, was derived ultimately from God, as its causa remota. It was by the judgement and command of the next emperor’s vicar that Christ had suffered the passion and death which, through grace, redeemed the human race from its guilt and from the penalty which it had incurred as a result of the Fall: the loss of eternal beatitude.¹¹⁴ The power of the ‘supreme human legislator’, transferred to Augustus and exercised by Pilate as the representative of Augustus’s successor, played a key role in the providential plan for mankind’s ultimate salvation through the New or evangelical law which Christ had proclaimed. This ‘divine procedure (deductio divina) was most appropriate’, wrote Marsilius, ‘for it went from the less perfect to the more perfect, and ﬁnally to the most perfect of things appropriate to human salvation’. God could, of course, have bestowed an instant, ‘perfect’ remedy for the Fall of man; but He chose to act instead in this way, gradually, through history, ‘lest a too easy remedy be the occasion for further sinning’.¹¹⁵ The supreme perfection of this ‘divine procedure’ seems, from this passage, to have been achieved through the cruciﬁxion of Christ at the command of the supreme human legislator. In this fundamental respect, Marsilius’s case is far closer than is generally recognized to that advanced by Dante in Monarchia. For if Christ had not been cruciﬁed by legitimate authority, the sin of Adam could not have been punished in Christ, and salvation therefore offered to fallen man.¹¹⁶ The closeness to Dante and Marsilius’s strict contemporary Engelbert of Admont¹¹⁷ has not been remarked upon, perhaps because Marsilius’s Roman imperial ¹¹³ DP II. iv. 12. The term merum imperium is taken from Dig. 2. 1. 3, where it originally meant something like capital jurisdiction. Medieval civilians used it in a wider sense to signify full powers of jurisdiction in public matters: M. P. Gilmore, Argument from Roman Law in Political Thought: 1200–1600 (Cambridge, Mass., 1941), 15–44. ¹¹⁴ DP I. vi. 4; cf. I. xix. 4; see above, p. 57. ¹¹⁵ DP I. vi. 6. ¹¹⁶ Monarchia II. xi; cf. II. x, III. xiii. ¹¹⁷ De ortu, progressu et ﬁne regnorum, et praecipue regni seu imperii Romani, in M. Goldast (ed.), Politica imperialia (Frankfurt a. M., 1614), 754–73. Engelbert does not

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providentialism is far more subtle and understated. It lacks their overt, Orosian candour. It is, however, no less intrinsic to his argument. According to Marsilius, Christ may have hinted that ‘He was suffering an unjust punishment’.¹¹⁸ On this issue, Marsilius and John XXII were at one.¹¹⁹ Nevertheless, it was certain, according to the Defensor minor, that ‘all the powers of that time were ruled justly, not tyrannically, by the authority of the Romans; for otherwise Christ and the aforesaid apostles [Paul and Peter] would not have enjoined on all the others the duty of submission to their principatus’.¹²⁰ It made no difference that the Roman people, its princeps, and all the other principes they had instituted throughout the whole world, including Jerusalem, were at that time inﬁdeles. Judas Maccabeus, his brothers, and the Jewish people had voluntarily submitted to Rome in the same way as the other provinces of the world.¹²¹ It followed that ‘there was and could be a single, just Empire among the inﬁdels’.¹²² According to the Defensor pacis, Christ and the apostles taught that all men, ‘of whatever status and condition they may be’, must be subject to the coercive judgement of secular principes, and ‘must obey them in all interpret Christ’s cruciﬁxion in this way, but, like Dante, Monarchia, II. x, he does see Christ’s birth under Augustus, and the fact that He was enrolled in the tax register which was compiled by imperial edict, as a sign of the Empire’s providential role: cap. xx, p. 770. Marsilius does not make this other conventional point, based on Luke 2: 1. For Engelbert’s providentialism, see K. Ubl, Engelbert von Admont. Ein Gelehrter im Spannungsfeld zwischen Aristotelismus und christliche Überlieferung (Vienna, 2000), 155–69. ¹¹⁸ DP II. iv. 12, discussed above, p. 74. ¹¹⁹ Raynaldus, Annales v. 350. ¹²⁰ DM xii. 3, referring back to the scriptural evidence for apostolic submission to imperial authority recited in xii. 2. The same point is made, using the same scriptural passages, in the Defensor pacis: II. iv. 4; II. iv. 13; II. v. 4; II. v. 7–9; II. ix. 8. ¹²¹ DM xii. 3. ¹²² DM xii. 3; for the argument that ‘unum’ should read ‘verum’—an argument not supported by the sole surviving manuscript—see Oeuvres mineures, 257, n. 6. H. S. Ofﬂer, ‘Notes on the Text of Marsilius of Padua’s “Defensor minor” ’, Mittellateinsiches Jahrbuch, xvii (1982), 212–16, at 215, prefers ‘verum’, on the grounds that ‘the issue was not the unicity of the pagan empire, but its legitimacy’. But it seems that the unicity of the Empire was indeed the issue, no less than its legitimacy. This key sentence is not found in Nederman’s translation. Although it is essential to Marsilius’s case that the Empire was ‘just’ at the time of Christ’s incarnation, we shall see that it would be inconsistent with the basic premises of his analysis to infer that a non-Christian empire could still be so.

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things which do not contradict the law of eternal salvation, especially when they are in accordance with human laws or honourable and approved customs (consuetudines)’.¹²³ As later in the Defensor minor, Marsilius expressly recognizes that such rulers might be inﬁdels; nevertheless all men, including the faithful, are bound to obey, subject to the caveat about the law of eternal salvation. All rulers, whether faithful or not, are ‘ministers of God’. What is prescribed in the New Testament will remain universally valid in perpetuity, whether under inﬁdel or faithful rulers, because Christ, when He framed the evangelical law, took into account what human law was in His own time and what it would be in the future.¹²⁴ We have already seen that although human law existed long before Christ—otherwise Aristotle could hardly function as a guide to it—its role had been permanently transformed by the New Law which Christ had proclaimed. That transformed role was providentially ordained. And so was the role of the Roman Empire as the universal human legislator, ‘especially from the time of Christ up to the present’.¹²⁵ It had been divinely sanctioned by Christ’s advent and His cruciﬁxion by authority of the Roman emperor. In this way Marsilius integrated providential history, based on Scripture, with the history of Rome. From Christ’s incarnation onwards, the two histories were intertwined and progressively uniﬁed. Within what became a single providential process, the Christian priesthood established by Christ would mediate grace to fallen man, making salvation possible for the ﬁrst time. The Christian priesthood was therefore quite different from the divinely instituted priesthood of ancient Israel. Unsurprisingly, its role in what Marsilius terms the primitive church, which grew within the Roman Empire, receives a great deal of attention from him. Indeed, he deﬁnes the term by reference to Roman history, as the church prior to Constantine’s conversion.¹²⁶ What, then, had been the original role of the Christian priesthood under the pagan emperors? ¹²³ DP II. v. 5; cf. II. v. 4; II. v. 7. ¹²⁵ DM xii. 1, discussed above, p. 73.

¹²⁴ DP II. ix. 9, discussed above, p. 59. ¹²⁶ DP II. xx. 13.

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THE ORIGINS OF THE CHRISTIAN PRIESTHOOD Christ and the apostles not only recognized that they were subject to the coercive judgement of the human legislator, they enjoined such subjection on all the ‘bishops and priests’ who were their ‘successors’.¹²⁷ Christian priests are the only ‘true’ priests, established for the sake of the future life, rightly understood.¹²⁸ Their ofﬁce is to teach the precepts and counsels of the New Law ‘to the end that the blessed status be attained in the future world, and the opposite avoided’.¹²⁹ Christ selected ‘colleagues’, called apostles, to teach the truth, and commanded them to preach it throughout the whole world. ‘By their utterances as by certain instruments immediately moved and directed by divine virtue’ the New Law was written down in Scripture. It is by reference to this law that we are able to know, in the absence of Christ and His apostles, what is necessary for salvation; ‘also, in this law, Christ made known the sacraments which wash away original and actual sin, which produce and conserve divine grace, which recover it when it is lost, and which institute ministers of this law’.¹³⁰Through the Holy Ghost, Christ bestowed on the apostles and on their ‘successors in this ofﬁce’ the ‘authority of this ministry, which is called priestly by the Christian faithful’. This comprised the ‘power’ of transubstantiating bread and wine into the true body and blood of Christ, under the form of the liturgy; the ‘authority to bind and loose men from their sins, which is usually called the power of the keys’; and that ‘to substitute other men in their place with the same authority’. The apostles duly bestowed this authority on their successors, ‘or rather God did it through the apostles when they prayed and laid their hands on other men’. In this way the ‘power’ and ‘authority’ would be passed down ‘until the end of the world’. This ‘priestly authority or authority of the keys’ is thus ‘a certain authority or form of the soul impressed through the immediate action of God’.¹³¹ Later in the book, Marsilius conceded that this involved an apparent contradiction with his argument that the human legislator, ¹²⁷ DP II. iv. 12; cf. II. viii. 7. ¹³⁰ DP I. xix. 4

¹²⁸ DP I. v. 14.

¹²⁹ DP I. vi. 7. ¹³¹ DP I. xix. 5.

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by itself or through its pars principans, was the efﬁcient cause of the establishment of all the ofﬁces or parts of the civitas, including the priestly one. For Christ had clearly renounced all secular rulership and was not the human legislator.¹³² But Marsilius shows that the apparent contradiction is illusory. Each ofﬁce had not one but two efﬁcient causes: as a disposition (habitus) of the soul—the mind and will of a man expressed through his thoughts and desires—and as a part of the civitas.¹³³ In every case except the exceptional one of Moses and his successors as judges in ancient Israel, the latter efﬁcient cause was the human legislator.¹³⁴ Uniquely in the case of the Christian priesthood, the former efﬁcient cause, ‘or essential maker, is God imprinting this quality upon the mind, although by means of a certain human ministry which prepares the way, as it were’. Christ was true God and true man. As a human priest, He performed the ministerial role which successive priests have performed. As God, He imprinted the ‘character’—the scriptural term for this particular disposition of the soul—upon the souls of those whom He appointed as priests, and, through their ministry, exercised in the ceremony of ‘laying on of hands’, upon those of all their successors.¹³⁵ Christ thereby combined both aspects of the former type of efﬁcient cause of the priesthood. Thus was the direct or immediate role which God had taken in the creation of the priests of the Old Law maintained in the Christian era. But it was conﬁned henceforth to the conferring of the ‘priestly character’ which Marsilius termed ‘essential’ or ‘inseparable’:¹³⁶ the sacramental power traditionally known as the potestas ordinis. It was through this ‘essential character’ of the priesthood of the New Law that the faithful could attain the supreme end of eternal felicity which had been inaccessible to the Israelites living under the Old Law.¹³⁷ ¹³² DP II. xv. 1. ¹³³ DP II. xv. 2; cf. I. vi. 10, I. vii. 3. On habitus, see Quillet, Philosophie politique, 155–8; DP, ed. Brett, p. xlv. ¹³⁴ Above, pp. 55–6. ¹³⁵ DP II. xv. 2; cf. II. xv. 10. ¹³⁶ DP II. xv. 4. ¹³⁷ DP I. vi. 3–4, discussed above, p. 54.

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Marsilius alludes on several occasions to the sacraments of baptism and the eucharist,¹³⁸ but the principal focus of his sacramental interest is penance. The sacraments had all been instituted for the sake of the ‘eternal salvation of mankind’. By penance, ‘the actual mortal and venal guilt of the human soul is destroyed, and God’s grace, corrupted by the guilt, is restored to the soul; human works without this grace, so God ordains, would not be deserving of eternal life’.¹³⁹ Penance made salvation possible by wiping out the guilt of sin. Penance was, Marsilius concedes, deemed to be distinct from the potestas ordinis by some. But he considers that whether or not Christ bestowed the penitential power on the apostles at the same time and with the same form of words as the other sacramental powers is irrelevant to his inquiry. For there is no doubt that Christ, by virtue of His own redemptive role, is the origin of penance as well as the other sacramental powers, and that they all have the same salviﬁc purpose.¹⁴⁰ By categorizing penance in this way, Marsilius subsumed the traditional potestas iurisdictionis of the priesthood into the potestas ordinis. Penance was the ‘same thing’ as the power of the keys or the power of binding and loosing,¹¹ and Christ had bestowed it equally, like the other sacramental powers, on all the apostles, not on Peter in particular. The guilt of sin, which obliterated the effects of divine grace ﬂowing through Christ, bound the sinner to ‘a debt of eternal damnation for the status of the future life’. Persistence in guilt would also lead to the sinner being ‘cut off from the society of the faithful in this world (a consorcio ﬁdelium in hoc seculo preciditur) by a certain correction which is called “excommunication” (excommunicacio) amongst the Christian faithful’. By repenting of his sin and making external confession to a priest—‘both of which, together and separately, are called penance’—the sinner was cleansed of his guilt and the grace of God was restored to him. Thereby, he was absolved from the debt of eternal damnation, to which his guilt had bound him; and he was reconciled to the church, ‘that is, he is or ought to be reunited with the ¹³⁸ DP II. vi. 2, 14; II. xv. 3; for marriage, see DM xv; Quillet, Philosophie politique, 194–5. ¹³⁹ DP II. vi. 2; cf. I. vi. 4, and above pp. 56–8. ¹⁴⁰ DP II. vi. 14; II. xv. 3. ¹⁴¹ DP II. vi. 3.

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society of the faithful (ﬁdelium consorcio)’. To ‘loose or bind’ a sinner in this way is to ‘minister the sacrament of penance’.¹⁴² Because penance springs from the contrition of the sinner, it is not necessary for him actually to confess to a priest: he need only have the intention to confess. Then God, in the person of Christ, expels the guilt, restores grace, and forgives the debt of eternal damnation before anything has been said to a priest.¹⁴³ The priest cannot do this himself; his function is to show, in the eyes of the church, whose sins God has retained or cancelled.¹⁴⁴ But a priest does exercise ‘rights of power’ over a sinner with regard to the commutation of the temporal penalty of purgatory, which a sinner would otherwise still have had to undergo regardless of his repentance and confession. The priest thus judges whether a man’s sins have been retained by God; he commutes the due penalty of purgatory into this-worldly satisfactions, and he reconciles the penitent sinner to the church, ‘that is, to the communion of the faithful’.¹⁴⁵ This priestly function is closely linked to the third way in which the penitential power—that most important aspect, in Marsilius’s eyes, of the ‘essential’ priestly character transmitted immediately by Christ as God—can be ‘ministered’: excommunication. In relation to the other two aspects the priest’s role was largely declaratory: he demonstrated to the faithful what God had done. In the case of excommunication, however, Marsilius argues that the power of judgement lies with the faithful, and the priests act simply as advisors learned in divine law. He considers excommunication to be a twofold penalty: the accused is judged as to his punishment for the status of the future life; and he also suffers a ‘grave penalty for the status of the present life, in that he is ¹⁴² DP II. vi. 4. ¹⁴³ DP II. vi. 5–6; DM v. 8. ¹⁴⁴ DP II. vi. 7; cf. II. vii. 3, where the priest’s role is deﬁned as that of a turnkey (claviger) of the heavenly judge. Of course, the sacramental act of laying on of hands which signiﬁed God’s immediate transmission of the essential, sacramental power at ordination was simply symbolic in the same way: II. xv. 10. Yet refusal on the part of a vicious priest to administer the sacrament of baptism (and, supposedly, of other unspeciﬁed sacraments, which cannot include penance) endangered souls: II. xvii. 12, 15. On this ‘nominalistic’ interpretation of the sacraments, see Wilks, Problem of Sovereignty, 90, n. 2. ¹⁴⁵ DP II. vi. 8.

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defamed and forbidden the society (consorcio) of others. Hence too he is deprived of civil communion and beneﬁts (Ex quo eciam civili communione atque commoditate privatur)’.¹⁴⁶ It is because someone who is unjustly punished in this way suffers harm for the status of the present life that judgement cannot be left to priests (whose unjust punishments in respect to the future life have no binding force, and therefore do no damage). Rather, a judge with the power of excommunication should be appointed by the universitas ﬁdelium in that community (communitas) in which the accused is to be judged. Marsilius fails to address explicitly the question of whether or not the universitas ﬁdelium is synonymous with this communitas. Christ is said to have deﬁned the church, ‘or the judge instituted for this purpose by its authority’, as a multitudo or universitas ﬁdelium seu credencium, and this continued to be the usage during the lifetime of the apostles and throughout the period of the primitive church.¹⁴⁷This deﬁnition may point to an implicit distinction, in that early Christian period, between consorcio with the faithful and ‘civil communion’ with the (civil) communitas, since the civil community was not then faithful.¹⁴⁸ Such a distinction would in turn imply that the universitas ﬁdelium had originally had the power of excommunication because being deprived of consorcio with the faithful was a this-worldly penalty, even if excommunication could not at that time have amounted to deprivation of ‘civil communion’. Only after the elision of the civil or political community with the faithful did excommunication become a civil (or political) penalty too. But this is to squeeze Marsilius’s words very hard on a sensitive spot. His discussion of the apostolic precedents for excommunication in the Defensor minor is of no assistance in probing this issue, because he does not address it there.¹⁴⁹ In the Defensor pacis, Marsilius proceeds to draw a parallel between the advisory role of priests in the case of excommunication and—doubtless ¹⁴⁶ DP II. vi. 12. ¹⁴⁷ DP II. vi. 13, interpreting Matt. 18: 15–17; cf. II. ii. 3. ¹⁴⁸ Elsewhere in this paragraph, Marsilius does describe someone who is excommunicate as being deprived of the consorcio ﬁdelium. Quillet, Philosophie politique, 196, paraphrases and discusses the passage, but her rendering of aliorum consorcio—‘la communauté des hommes’—fails to address the problem. ¹⁴⁹ DM x. 1–2.

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recalling his own medical experience—that of physicians when there is an outbreak of leprosy in the city. Priests cannot judge or appoint a judge, just as physicians cannot make a judgement or appoint a judge having coercive power to expel lepers. This power pertains only to the ‘civium ﬁdelium universitas or to the valentior pars of them, as was demonstrated in chapter xv of discourse I’.¹⁵⁰ Here, in the same paragraph in which he distinguished between consorcio with the faithful and civil communion, there is no longer any hint that the body of the faithful and the civil body are not identical. Marsilius seems to assume that the universitas of the citizens and that of the faithful is one and the same body, and, incidentally, to reveal that he had assumed this of the universitas civium or legislator humanus throughout Discourse I, although he never explicitly mentioned its Christian faith there. The two terms could refer to one and the same body only if the legislator were Christian. Yet Marsilius is quite clear that excommunication is one aspect of the power of ministering the sacrament of penance, itself part of the ‘essential’ priestly character originally conferred by Christ on all the apostles. Excommunication must, therefore, have long pre-dated the existence of a Christian legislator. Marsilius concedes that the universitas ﬁdelium might appoint either a priest or layman to act as judge in a case of excommunication. But if the chosen judge were a priest, his sacramental role would be quite distinct from his role as appointed judge. From the earliest stage of Christian history, his sacramental role in the process of excommunication was that of an expert advisor to the universitas. But he also had to act as a promulgator of the sentence passed by the judge, whoever had been appointed as such by the universitas, insofar as the sentence affected the criminal for the status of the future life.¹⁵¹ The universitas ﬁdelium had appointed judges in cases of excommunication before it had become synonymous with the universitas civium. Excommunication had never been a priestly responsibility, even in the earliest period of Christian history, prior to the conversion of the human legislator. It had always been a matter for all the faithful. ¹⁵⁰ DP II. vi. 12; cf. I. xv. 1–2. For the comparison between priests and physicians, see II. vii. 4–5; II. ix. 2. ¹⁵¹ DP II. vi. 13.

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Thus does Marsilius deﬁne the original ‘essential’ character of the Christian priesthood, which Christ had conferred on the apostles. It had from the very beginning been independent of the human legislator, and it remains so. It was and continues to be conferred immediately by God in Christ through the preparatory priestly ministry of laying on of hands. After the human legislator became Christian, one point of contact developed between the operation of this essential priestly character and the legislator: in the imposition of a sentence of excommunication—speciﬁcally in tendering advice before a judgement was reached, and in promulgating the sentence of the judge appointed by the human legislator. But prior to the elision between the legislator and the originally distinct universitas ﬁdelium, or church, the church must have appointed the judge with the coercive power to excommunicate, who would later be appointed by the (Christian) legislator. Whoever had in that period been chosen to exercise that judicial function, it had never had anything to do with the ‘essential’ or ‘inseparable’ priestly character.

THE CHRISTIAN PRIESTHOOD IN THE PRIMITIVE CHURCH Marsilius distinguishes, as we have seen, between the efﬁcient cause of the ‘essential’ character, which corresponds to a disposition of the soul, and the efﬁcient cause of the ofﬁce of priest as part of the civitas.¹⁵² The priests of ancient Israel had been immediately instituted by God, like its judges, so in that unique case there had been no involvement of the legislator in the creation of priests. But in all other cases—as evidenced by Aristotle—priests were a ‘part’ of the civitas, or legislator. They were appointed by it or its pars principans. Marsilius argues that the ‘accidental’, ‘separable’, or ‘secondary authority’ of Christian priests corresponds to this ‘human’ mode of priestly appointment, unknown only in ancient Israel, and (ultimately) that its ‘essential ¹⁵² DP II. xv. 2.

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efﬁcient cause’ is now the faithful human legislator.¹⁵³ But his decision to embark on his analysis of this secondary priestly authority by examining its origins in the primitive church shows that he was well aware that it had antedated the existence of a faithful legislator. What, then, was the efﬁcient cause of ‘accidental’ priestly authority during this period of Roman history, when the human legislator was still pagan? Marsilius focuses initially on the notion of episcopacy: ‘in the primitive church these titles, presbyter and episcopus, were synonymous.’ They might be applied to the same man, but for different reasons: the former on account of his age, the latter on account of his dignitas or cura over others. He demonstrates this by citing several passages from the New Testament which reveal the simultaneous existence, in apostolic times, of a number of ‘bishops’ in one city: ‘this was only because there was a plurality of priests, who were all called episcopi, because they had to be overseers (superintendentes) of the people, although this title was in the later church reserved only for him who was instituted as ﬁrst priest in a city . . . by the rest of the priests and the people’.¹⁵⁴ This change in the meaning of the term had occurred because the increase in the number of priests after the days of the apostles had necessitated the ‘election’ by the priests of one of their number to ‘direct’ (dirigere) and ‘order’ (ordinare) the others in the exercise of ‘ecclesiastical ofﬁce and service, in the distribution of offerings, and in the more proper arrangement of other matters’. Thus would the conﬂicting desires of the burgeoning numbers of individual priests be prevented from causing schism. The title bishop, which in the primitive church simply meant ‘overseer’ of the faithful, came by ‘later custom’ also to mean the overseer of all the other priests in a particular place.¹⁵⁵ Such an ‘election’ or ‘institution made by man’ gave the priest thus elected as bishop no

¹⁵³ DP II. xvi. 1; for advance notice of discussion of this topic, see I. xix. 6. ¹⁵⁴ DP II. xv. 5. ¹⁵⁵ DP II. xv. 6; here, for reasons of sense, I read ‘quia superintendebat reliquis conpresbyteris suis, propter quod talis athonomastice sibi soli nomen episcopi retinuit’, not ‘Antiochie’. This reading has manuscript support: D. Bigongiari, ‘Notes on the Text of the

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greater essential merit or priestly authority or power, but only a certain power of ordering the household in the house or temple of God: namely ordering and regulating the other priests, deacons, and the rest of the ofﬁcials, as today power is given to a prior over the monks. This power is not, I say, coercive except insofar as this may have been conceded to the elect by the human legislator . . . ¹⁵⁶

In origin, then, this power to direct and order the other priests was not coercive; but, Marsilius signals, it might have had a coercive element inserted into it by the human legislator at a later date. Having demonstrated that what came to be understood as the ofﬁce of a bishop consisted wholly in this accidental, human power, and that a bishop does not differ in his essential, sacramental power from any other priest, Marsilius goes on to deﬁne the secondary powers originally exercised by all Christian priests. These include ‘elections’ and ‘institutions’ to teach and minister the sacraments of the New Law to a particular people in a particular locality—also termed ‘assignment (determinatio)’—and ‘to distribute among themselves and other poor persons the temporal things which have been established and ordained by the legislator or by individual persons for the sustenance of poor preachers in a certain province or community, and for the other poor’.¹⁵⁷ Obviously, temporalities were not set aside by the legislator for such purposes until it had become Christian; but Marsilius indicates that these secondary functions were performed by priests long before that event. Again he looks to origins: ‘It will be expedient to narrate ﬁrst the mode by which bishops or priests were instituted and assigned at the establishment and beginning of the primitive church, whence the other practices were later derived (unde cetera postmodum derivata sunt).’¹⁵⁸ Christ assigned none of the apostles to a speciﬁc people or locality in such a way that he was not allowed to preach elsewhere. Some were so assigned by the direct revelation of God or by their own Defensor Pacis of Marsilius of Padua’, Speculum, vii (1932), 36–49, at 38. The word is used in precisely this sense at II. xxviii. 15. ¹⁵⁶ DP II. xv. 7. ¹⁵⁷ DP II. xv. 9. ¹⁵⁸ DP II. xvii. 2.

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‘immediate human ordination’, but it is certain that, whichever the mode of assignment, they thereby received no ‘perfection’ from the Holy Spirit which they had not had before.¹⁵⁹ Christ did, however, send the apostles out into the world, granting to each of them a ‘general administration’, and this sending out signiﬁed ‘the human election or institution whereby one of them is put over the others in an ecclesiastical household’. Christ made this necessary human ‘institution’ Himself because ‘at that time there was no multitudo ﬁdelium by which such an election could be effected, and even if there had been, no multitude could have made such an appointment as appropriately as did Christ.’¹⁶⁰ Direct divine revelation remained a feature throughout the primitive period of church history, although ‘human ordination’ was even then the more common mode. In ‘modern times’ the latter had completely replaced the former.¹⁶¹ ‘Prior to the conversion of the people’, the immediate efﬁcient cause by which the ‘ﬁrst successors of the apostles’ were given these deﬁnite assignments was the ‘express will of all or most of the apostles, if all or most of them were present at the same time in a locality or province in which a priest or bishop ought to be established’.¹⁶² Marsilius draws a direct parallel with the way in which the ‘apostles and elders’ gathered to settle the question of whether circumcision, instituted by God under Abraham,¹⁶³ was still necessary for salvation under the New Law.¹⁶⁴ By reference to Acts 6: 6, he argues that the apostles appointed deacons in this way ‘even with reference to that primary authority which we have called essential’. If all or most of the apostles were not present at the same time in a place where a bishop (in the original sense of the term) was to be put in charge of protecting a multitudo ﬁdelium and maintaining it in the faith, then a single one of them could ‘licitly’ do so, ‘especially where the multitudo ﬁdelium was few in number, uncultivated (rudis), and inexpert (imperitus) at discerning the more appropriate ¹⁵⁹ DP II. xvii. 2–3. ¹⁶⁰ DP II. xxviii. 2, quoting Matt. 28: 19, which is also quoted in this connection at II. xvii. 3. ¹⁶¹ DP II. xvii. 4. ¹⁶² DP II. xvii. 5. ¹⁶³ DP I. vi. 3, discussed above, p. 54. ¹⁶⁴ DP II. xvii. 6; cf. II. xvi. 5.

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person for episcopal ofﬁce’. The multitude’s weakness (imbecillitas) at that time in terms both of quantity and quality—‘especially outside Judaea’—meant that ‘election’ by it would have led to error. It was therefore ‘safer and wiser that this institution should be made by the election or determination of any one of the apostles, whose life and wisdom, on account of the disposition (habitus) of the Holy Spirit, outweighed those of all the rest together in such a multitude’.¹⁶⁵ Yet it would have been expedient, even at this early stage of church history, for such an apostle to consult the faithful multitude about the morals of the man he proposed to appoint, because it would know more about these than any individual apostle, however learned. For this reason the apostles are said to have ‘entrusted’ the ‘election’ and the secondary ‘assignment’ of deacons to the multitudo ﬁdelium, although it was minus perfecte. They then collectively appointed, in the essential sense, those whom the multitude had ‘elected’.¹⁶⁶ Here Marsilius subtly foreshadows a change in the grounds of his analysis of clerical appointment. Such an ‘election’ by the multitudo ﬁdelium was to be distinguished from ‘secondary’ institution or election, since in itself it conferred no ‘secondary’ appointment, but simply determined who should receive the laying on of hands (which was the ceremony used for the ordination of deacons as well as priests). Consultation of the faithful by the apostles about the appointment of deacons created a chink in the process of ordination in the primitive church. It enabled Marsilius to begin to distinguish between approval by the faithful (already termed ‘election’ here) for promotion to holy orders, and the preparatory ministry of laying on of hands which symbolized conferral of those orders. The multitudo ﬁdelium, including laymen, had a role in the former from apostolic times, at least as far as deacons were concerned. With regard to the ‘election’, in this sense, of priests—‘for whom it is more necessary to be virtuous and wise than for deacons’—in the primitive church, Marsilius says nothing directly at this point in the argument. He conﬁnes himself to the statement that such ‘election’ could be left to the communitas ﬁdelium when it had ¹⁶⁵ DP II. xvii. 7.

¹⁶⁶ DP II. xvii. 10; cf. II. xvii. 7.

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become ‘perfect’,¹⁶⁷ which means when it had become synonymous with the human legislator.¹⁶⁸ Then the ordaining priests, through the sacramental ministry of laying on of hands, could only signify God’s impressing the essential priestly character on those whom the legislator had already ‘elected’.¹⁶⁹ Such an ‘election and approval of anyone to be promoted to holy orders’ was necessarily distinct from the ‘secondary institution’ of which the human legislator had also become the efﬁcient cause when it had become faithful, or ‘perfect’.¹⁷⁰ Marsilius adduces in support of this analysis the arguments used in chapters xii, xiii, and xv of Discourse I with regard to the ‘election’ of the law or the pars principans by the universitas civium. On this basis he states that it is now possible to substitute for these terms the phrase ‘the election or approval of a person who is to be promoted to a holy order, and his institution or determination to the headship of a particular people and place . . .’. There were thus three elements in the appointment of a cleric in a perfect community: ﬁrst, a preliminary ‘approval’ or ‘election’, which determines who is to be promoted; second, the ceremony of ordination, which symbolizes the conferral by God of the ‘essential’ or ‘inseparable’ priestly character; and third, the appointment or ‘election’ to secondary, separable, or accidental priestly power. With the ‘perfection’ of the legislator—its conversion to Christianity—it had become the efﬁcient cause of the ﬁrst and the last of these. This meant that no priest was allowed, either by divine or human law, to ‘signify’ the bestowal of the essential priestly power on someone who had not been elected by the legislator.¹⁷¹ But Marsilius emphasizes that this only applies to communities of the faithful which were already ‘perfect’. When the legislator and its pars principans were inﬁdel, which was the case with many, and indeed almost all communities at the time of the establishment of the primitive church, the authority to approve or disapprove of persons to be promoted to ecclesiastical orders (together with the other aforesaid modes of institution and exercise of ofﬁce) would pertain ¹⁶⁷ DP II. xvii. 10. ¹⁷⁰ DP II. xvii. 11.

¹⁶⁸ DP II. xvii. 9. ¹⁷¹ DP II. xvii. 8.

¹⁶⁹ DP II. xvii. 8.

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to the priest or bishop with the sanior pars of the faithful multitude living in that place, or else to the priest alone, if he was the only one, without any consent or knowledge on the part of the pars principans. This was in order that such promotion and institution of prelates or curates might spread the faith of Christ and the doctrine of salvation; a result which would not be achieved, but rather prohibited, by the authority, endeavour, and command of an inﬁdel legislator or guardian of the law. This was the procedure which the apostles followed at the time of the origin of Christ’s church, which they were bound by divine precept to follow, and which their successors were bound to follow in default of the legislator.¹⁷²

Thus, in the primitive church, the initial approval, later to be characterized as election, of one to be promoted to the priesthood or other clerical order, together with the secondary mode of appointment, belonged to the priest or bishop together with the ‘wiser part’¹⁷³ of the faithful multitude. In certain circumstances this electoral body might be conﬁned to a solitary priest. But any lay members of the faithful multitude who could not be categorized as ‘uncultivated’ and ‘inexpert’—and such exceptional individuals were, Marsilius says in an aside, largely conﬁned to Judaea at a very early stage¹⁷⁴—would be included in its sanior pars for this purpose. During the lifetime of the apostles, and afterwards, when the faithful still lived under an inﬁdel legislator, Marsilius considered that Christian laymen had also taken part in decisions about the content of divine law.¹⁷⁵ And we have seen ¹⁷² DP II. xvii. 15. ¹⁷³ On the meaning of sanior pars for Marsilius, see DP, ed. Brett, pp. l–li. Maior et sanior pars is a canonical term concerned with electoral procedure in cathedral chapters: see B. Tierney, Foundations of the Conciliar Theory, 2nd edn. (Leiden, 1997), 111–12; K. Pennington, ‘Law, Legislative Authority, and Theories of Government, 1150–1300’, in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought, c. 300–c. 1450 (Cambridge, 1988), 424–53, at 444–7. Marsilius uses it in a sense closely related to this at DP II. vi. 12, where he says that a college of priests or its sanior pars should judge whether a crime merits excommunication. At II. xx. 5 he states that when priests disagree about what should be believed, then the valentior pars of the faithful should judge which is the sanior pars of the priests. But in the present instance, it is the faithful multitude, including the priests, rather than the priests as a distinct body, which has a sanior pars. For discussion of the relationship between sanior pars and valentior pars, see Gewirth, Marsilius, 193–4; M. J. Wilks, ‘Corporation and Representation in the Defensor pacis’, Studia Gratiana, xv (1972), 253–92. ¹⁷⁴ DP II. xvii. 7. ¹⁷⁵ DP II. xvi. 5; II. xxii. 12, 15.

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that Marsilius’s discussion of excommunication in the primitive church, although imprecise, seems to imply that the multitudo ﬁdelium, including its lay members, appointed judges with the coercive power to excommunicate. Indeed he considers that St Paul reprimanded all the faithful of Corinth, not just the priests, for quarrelling over civil and secular matters and summoning each other before ‘inﬁdel judges’, and warned them to appoint secular lay judges—deﬁnitely not priests or bishops—from amongst themselves to settle such disputes.¹⁷⁶ Marsilius never reconciles this incident with his stress on Christian subjection to the laws of an unfaithful legislator except in cases where they contradicted divine law; but it reveals him again attributing ‘political’ functions to a multitudo ﬁdelium which he considers was necessarily distinct, at that time, from the human legislator. Candidates for Christian priesthood during this period had to be ‘approved’ by the faithful multitude quite independently of such a legislator’s pars principans, since the legislator was directly opposed to the spread of the faith. Indeed, since Marsilius must be thinking here of the Roman Empire, the legislator was then persecuting the faithful.¹⁷⁷ It had made the profession of the Christian faith illegal. In this respect the inﬁdel legislator should deﬁnitely not be obeyed by Christians. The exhortations on the part of Christ and the apostles to obey could not apply, because the legislator was contravening divine law. By deﬁnition, the Christian priesthood did not form its pars sacerdotalis. The role of efﬁcient cause of the priesthood, in the second sense of the term corresponding to the priesthood’s role as a part of the civitas,¹⁷⁸ would later be ﬁlled by the legislator after its conversion to the faith, or by its pars principans, both in terms of initial approval for promotion and secondary appointment. But until the legislator became Christian, the priests themselves acted as this civil or political efﬁcient cause (in addition to preparing the way for the other efﬁcient cause, through the laying on of hands). And they did so ¹⁷⁶ DP II. xxix. 6–7; cf. II. v. 3; 1 Cor. 6. ¹⁷⁷ For the ‘persecution and even martyrdom’ suffered by members of the church ‘at the hands of inﬁdel rulers and subjects’, see DP II. xxix. 11. ¹⁷⁸ DP II. xv. 2; cf. I. vi. 10; I. vii. 3.

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together with any lay believers whose learning in the faith ﬁtted them to be members of the sanior pars of the faithful multitude. As in the case of excommunication, it seems that the church or multitudo ﬁdelium, while in this period quite distinct from the legislator, could and must itself perform some of the ‘political’ functions which a Christian legislator would later perform. The process by which ‘other practices were later derived’ from the original modes of ‘institution’ and ‘assignment’ of priests or bishops in the primitive church¹⁷⁹ was by no means straightforward, but is very revealing about the implicit premises of Marsilius’s argument. Not only did the primitive church of necessity perform for itself various ‘political’ functions in the absence of a Christian legislator, but Marsilius drew an explicit analogy between the scriptural account of its formation and Aristotle’s of the institution of the city: ‘the multitude of the apostles and faithful came together perhaps at the persuasion of one or more of the apostles, whose charity was more fervent.’ And what was true of its ﬁrst formation ‘perhaps remained the procedure after the time of the apostles, under inﬁdel legislators or rulers (principes)’.¹⁸⁰ The purpose of Marsilius’s analysis of the structure of the primitive church is, then, clear: to isolate the ‘true and simple origins’ of the doctrines concerning the matters under inquiry, which had been ‘effaced from men’s minds’ and replaced by ‘falsehoods’ which ‘had gradually been inserted, so that now men cannot distinguish the true from the false. For the custom (consuetudo) of listening to falsehoods is troublesome and most subversive of the truth in every discipline, as Aristotle attests in the second book of the Philosophy, last chapter.’¹⁸¹ The falsehood which Marsilius had identiﬁed as the sole target of the Defensor pacis was, it will be recalled, the claim to plenitudo potestatis on the part of the bishops of Rome, which had become such an impediment to peace and tranquillity because of its ‘customarily concealed ¹⁷⁹ DP II. xvii. 2, cited above, p. 86. ¹⁸⁰ DP II. xxii. 15; cf. above, p. 61. ¹⁸¹ DP II. i. 1, invoking Aristotle, Metaphysics ii. 3, 995a 1–20; cf. Metaphysica, lib. I–XIV, recensio et translatio Guillelmi de Moerbeka, ed. G. Vuillemin-Diem, Aristoteles Latinus, xxv. 3.2 (Leiden, New York, and Cologne, 1995), 47. DP, ed. Previté-Orton, p. 112, n. 1, comments: ‘It is not a verbal quotation, and travels somewhat outside Aristotle.’

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malignity’.¹⁸² Once the false accretions of the intervening centuries had been stripped away to reveal the original, true structure of the church, then the falsity of the traditional papal claim to plenitudo potestatis—allegedly founded in the primitive church—could be exposed for the perversion it was. The claim could be shown to be quite incompatible with that original structure. Marsilius begins to demonstrate this by unearthing the historical truth about St Peter.

ST PETER Marsilius located the ‘power of the keys’ in priestly potestas ordinis, rather than in the potestas iurisdictionis in which papal ofﬁce was traditionally deemed to consist.¹⁸³ Thereby he emphasized that all the apostles had received this power equally and immediately from Christ, just like their capacity to administer the sacrament of the eucharist. Whether Christ had given the power of the keys to all the apostles at the same time and by the same form of words as this capacity made no difference to the fact that it was also a sacramental power.¹⁸⁴ St Peter had no more of this ‘essential priestly authority’ than any other apostle.¹⁸⁵ This was how Marsilius had attempted to justify the second heretical error identiﬁed by John XXII in Licet iuxta doctrinam.¹⁸⁶ As we have seen, in William of Ockham’s view too, it was an error.¹⁸⁷ Marsilius speculated that Peter had probably received the power of the keys before the other apostles,¹⁸⁸ but that they had also received it ¹⁸² DP I. xix. 4; cf. above, p. 49. ¹⁸³ W. Ullmann, ‘Leo I and the Theme of Papal Primacy’, JThS, NS xi (1960), 25–51, esp. 36–51; M. J. Wilks, ‘Papa est nomen jurisdictionis: Augustinus Triumphus and the Papal Vicariate of Christ’, JThS, NS viii (1957), 71–91, 256–71. ¹⁸⁴ DP II. xvi 2; cf. II. xv. 3. ¹⁸⁵ DP II. xv. 4, 7; at II. xvi. 3 the point is made with speciﬁc reference to St Paul; cf. II. xvi. 6. ¹⁸⁶ Raynaldus, Annales v. 348–9, above, p. 20. ¹⁸⁷ Above, p. 32. ¹⁸⁸ DP I. xix. 7, quoting the locus classicus, Matt. 16: 19, and the glossa ordinaria to it. This is one of the rare passages picked out by a marginal ﬁnger in Tortosa, Cathedral Chapter Library MS. 141, fo. 21v; for the possible signiﬁcance of these marginal ﬁngers, see above, p. 55, n. 18. At II. vi. 1 Marsilius states that it is from these words especially,

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directly from Christ after His resurrection, not from Peter. St Jerome had said so in a passage which was inserted in the glossa ordinaria.¹⁸⁹ That Peter received it ﬁrst in time does not prove that he was prior to the others in dignity and authority.¹⁹⁰ Not only were they all equal in terms of essential priestly authority, they were also equal in terms of secondary priestly power, for Peter conferred this on none of them.¹⁹¹ As we have seen, their human appointment was ‘signiﬁed’ by Christ’s sending them out into the world.¹⁹² It followed that none of them had ‘accidental pastoral pre-eminence’ over the others.¹⁹³ Just as Peter had been ‘elected bishop at Antioch by the multitude of the faithful, not needing conﬁrmation or consecration by the other apostles, so the other apostles presided in other provinces without any knowledge, institution, or consecration on the part of Peter; for they had been sufﬁciently consecrated by Christ’.¹⁹⁴ There was only one sense in which Peter might be deemed to have had a special status, distinct from the other apostles: ‘he was prior to the others in age or ofﬁce, perhaps on account of length of time or election by the apostles, who duly revered him on this account; although no one can be convinced of this election on the basis of Scripture.’¹⁹⁵ Marsilius’s apparent evidence for positing some form of election of Peter by the other apostles is an alleged decree of ‘Pope Anacletus’ included in the ninth-century Pseudo-Isidorian decretal collection, which we shall see was Marsilius’s most important source of historical material: ‘ “The other apostles received honour and power in equal fellowship with him”, that is, Peter, “and wanted him to be together with Matt. 18: 18 and John 20: 23, that ‘the opinion and title of plenitudo potestatis, which the Roman bishop ascribes to himself, drew its origin’. At II. xxviii. 6 he draws attention to the fact that in Matt. 16: 18 Christ says that he ‘will give’ this power to Peter, possibly implying that He did not give the power to Peter at that point, whereas in John 20: 20–3, Christ speaks in the present tense to all the apostles alike. ¹⁸⁹ DP II. vi. 3; II. xxviii. 6. ¹⁹⁰ DP II. xxviii. 6. ¹⁹¹ DP II. xvi. 4. ¹⁹² DP II. xxviii. 2; cf. above, p. 87. ¹⁹³ DP II. xxviii. 25. ¹⁹⁴ DP II. xvi. 9; cf. I. xix. 7. Note the emphasis on Peter’s election as bishop of Antioch by the multitudo ﬁdelium there before he could have gone to Rome; for the election of bishops by the multitudo ﬁdelium, see above, p. 88. DP, ed. Previté-Orton, p. 503, n. 24, argues that Marsilius’s source here is not Martinus Polonus, MGH. SS xxii. 409, but ‘probably indirectly’, Pseudo-Clement, Recognitiones, x. 71, PG i. 1473. ¹⁹⁵ DP II. xvi. 4.

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their princeps.” ’¹⁹⁶ Marsilius makes explicit the parallel with secular rule implicit in this document: all the apostles are compared to secular counts, ‘none of whom are subject to any other in jurisdiction or authority, but all of whom are immediately subject to the king’, in this case, Christ. Yet in such circumstances it is quite common for ‘one count to be held in greater esteem by the others because of his greater age or virtue, or because of his greater services to the king or kingdom’.¹⁹⁷ It seems to be in this sense that any apostolic ‘election’ of Peter is to be understood, on the basis of a non-scriptural source. Marsilius probes the issue a little further: when the human legislator was ‘everywhere inﬁdel’, the call to assemble the faithful in a council to decide matters of faith would have come from all the priests or from those most fervent in divine love. Although he concedes that Scripture nowhere says so, he suggests that Peter might well have played this role among the apostles. But Peter would not thereby have had ‘any authority over the other apostles, unless perhaps they had given him such authority by their own election, as has been shown above in chapters xv and xvi of this discourse.’¹⁹⁸ So such a hypothetical election of Peter would have given him some authority over the other apostles. This authority is never precisely deﬁned, but is compared with that conferred in the election of an abbot or prior by the monks or, adopting a political analogy, of a ruler (praeses) by a populus. It clearly amounted to more than reverence,¹⁹⁹ although Marsilius deems it distinct from coercive power.²⁰⁰ Even if such an election had happened in Peter’s case—and no evidence can be adduced in support of the hypothesis—it would not follow ‘that his successors in the Roman or some other see, if he was bishop elsewhere, had this prioritas over the successors of the others [apostles], unless [his successors] had been elected to this by the ¹⁹⁶ DP II. xvi. 12; ‘Epistola Anacleti secunda’, cap. 24, in Decretales Pseudo-Isidorianae et Capitula Angilramni, ed. P. Hinschius (Leipzig, 1863), 79; cf. Projekt Pseudoisidor, ed. K.-G. Schon, currently in train at http://www.pseudoisidor.de/. I am grateful to Martin Brett for bringing this to my attention. For discussion of Pseudo-Isidore, see below, esp. pp. 186–90. ¹⁹⁷ DP II. xvi. 10; Marsilius also describes in what sense Peter might have been a princeps. ¹⁹⁸ DP II. xxii. 13; cf. II. xv. 10; II. xvi. 10–12. ¹⁹⁹ DP II. xxii. 14. ²⁰⁰ DP II. xvi. 6, 7, 11.

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successors of the rest’.²⁰¹ All priests are alike successors of the apostles in their essential priestly power.²⁰² This is the fourth heretical error identiﬁed by John XXII in Licet iuxta doctrinam, according to whom it had been invented by Aerius, when he had been denied promotion to the episcopate.²⁰³ Marsilius argues that the Roman bishop ‘is not and ought not to be described as the particular successor of St Peter (non est aut dici debet singulariter beati Petri successor)’ in his essential or intrinsic priestly authority, because St Peter had not laid hands especially on him, mediately or immediately. Nor could the bishop of Rome be so described in terms of his secondary or accidental priestly power, simply because he had held a certain see or had been assigned to a certain locality.²⁰⁴ None of the apostles had been assigned to a speciﬁc locality by Christ;²⁰⁵ but Scripture shows that the Roman bishops are, with regard to province and gens, the successors of Paul rather than Peter, ‘especially in the Roman episcopal see’.²⁰⁶ For Marsilius is able to prove to his own satisfaction from Scripture that Paul was Roman bishop specialiter, ‘because he exercised the ofﬁce of bishop or pastor there, having from Christ the authority for this, commanded thereto by revelation, and consented to by the election of the other apostles’. By contrast, he argues, there is no proof in Scripture that Peter was ever Roman bishop specialiter, or, indeed, that he had ever been in Rome.²⁰⁷ Scripture seemed to render either possibility highly unlikely, if not incredible. Scripture was, moreover, incompatible with the ‘most astonishing’ accounts given in what must be classiﬁed as ‘apocryphal writings’, which had been used to support such claims.²⁰⁸ If, therefore, any bishops were the particular successors ²⁰¹ DP II. xvi. 12. ²⁰² DP II. xvi. 13, where episcopus is used in the original sense already deﬁned by Marsilius: above, p. 85; II. xvi. 14: ‘What priest or bishop, then, most deserves to be called the successor of the apostles? It is certainly he who imitates them most in mores and deeds’; II. xviii. 5. ²⁰³ Raynaldus, Annales v. 351. ²⁰⁴ DP II. xvi. 14. ²⁰⁵ See above, p. 86. ²⁰⁶ DP II. xvi. 15. ²⁰⁷ DP II. xvi. 16; for the speciﬁc assignment of the apostles and their immediate successors, see II. xvii. 5, discussed above, p. 87. ²⁰⁸ DP II. xvi. 16–18; cf. I. xix. 7. DP, ed. Previté-Orton, p. 286, n. 1, demonstrates that Marsilius had in mind the Acta S. Petri attributed to St Linus in Acta Sanctorum, xxiv, Junii, v. 424–8; and the ‘Decreta de recipiendis et non recipiendis libris quae scripta sunt a

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of St Peter in terms of assignment (determinacio) to a certain see or province, it was the bishops at Antioch.²⁰⁹ Even if Peter was later in Rome together with Paul, Paul was, according to Scripture, Roman bishop singulariter et principaliter.²¹⁰ This does not imply that there was anything unique about the ofﬁce of Roman bishop during the apostolic period, or that there could then only have been one Roman bishop at a time, since, as we have seen, Marsilius considers that the terms ‘bishop’ and ‘priest’ were in that period synonymous.²¹¹ It merely reﬂects the absence of any scriptural evidence for Peter having been a bishop there. In another context, Marsilius expressed very considerable reservations about the authenticity of the Epistola Clementis,²¹² found at the beginning of the Pseudo-Isidorean decretal collection (and invoked by John XXII at the end of his refutation of Marsilius’s claim that Peter ‘had no more authority than the other apostles’).²¹³ Marsilius classiﬁed it as ‘apocryphal’. Nevertheless he invokes it in his discussion of the role played by the bishops and church of Rome in the primitive church from the time of ‘Pope Clement, who, as it is there written, was the ﬁrst bishop and successor of Peter or Paul or both, up to the time of . . . Constantine’.²¹⁴ The Epistola, the earliest version of which may Gelasio papa’, in Decretales, p. 635 (the latter being excerpted in Martinus Polonus, MGH. SS xxii. 409). Previté-Orton also shows that Marsilius had either misunderstood or misread the latter passage, both here and at I. xix. 7. ²⁰⁹ DP II. xvi. 15. Marsilius seems to have turned a blind eye to the address of Marcellus to Antioch, which was often used to distinguish between the Antiochene successors of Peter who succeeded him as bishop, and his Roman successors: Decretales, pp. 223–6, incorporated in Gratian: CIC, Decretum 24. 1. 15. ²¹⁰ DP II. xvi. 18. ²¹¹ DP II. xv. 5. ²¹² At DP II. xxviii. 4, Marsilius argues that neither the Epistola Clementis nor several other letters which purport to have been written by Clement I to James, the brother of Christ, all of which Marsilius knew from the Pseudo-Isidorian collection, could be used to support the claim—reported at II. xxvii. 1—that the dignity of a bishop is different from that of a priest. He points out the improbability of Clement, a successor of the apostles, informing James, who had known Christ and the apostles, and whom Marsilius equates with James the apostle, of what he, Clement, had heard about them. In Marsilius’ view, therefore, these letters ought to be classiﬁed amongst the ‘apocryphal writings’. Those who claim that Clement wrote them, and that he had greater authority than James because he was bishop of Rome, need to explain why James’s epistles, not Clement’s, were included in Scripture. ²¹³ Raynaldus, Annales v. 349. ²¹⁴ DP II. xviii. 6.

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date from the end of the second century, purports to record the testamentary dispositions of St Peter. It seeks to establish that, in succeeding Peter as bishop of Rome, Clement inherited direct from him the powers of binding and loosing conferred by Christ in the Petrine commission.²¹⁵ The compiler of the Pseudo-Isidorian collection clearly subscribed to this view, since the Epistola is there presented as the ﬁrst papal decretal.²¹⁶ Marsilius suppresses, at this point in his argument, his own doubts about the document’s authenticity in order to turn one of the most important justiﬁcations of traditional papal claims into a support for his own case. His characterization of the Epistola as showing that Clement was the ﬁrst successor ‘of Peter or Paul or both’, thereby implying that it might be taken as evidence that Clement succeeded Peter and/or Paul, appears to give a nod in the direction of those claims. But taken in conjunction with Marsilius’s evaluation of the respective strengths of the evidence for Peter and for Paul having been Roman bishops, it is clear that he thought the Epistola could be used to support the contention that Clement was the successor of Paul, who had been Roman bishop singulariter et principaliter,²¹⁷ rather than of Peter. Yet Paul is not even mentioned in the Pseudo-Isidorian text which Marsilius almost certainly had in front of him.²¹⁸ Nevertheless Marsilius attempted to twist the Epistola to establish that Clement had succeeded Paul in the restricted sense he had already deﬁned, and possibly Peter too, if Peter had ever been in Rome with Paul.²¹⁹ He does not deny that Peter had been bishop ²¹⁵ For the original forgery, see Die Pseudoklementinen I: Homilien, ed. B. Rehm, (Berlin, 1953), 5–22. For the document and its later use, see W. Ullmann, ‘The Signiﬁcance of the Epistola Clementis in the Pseudo-Clementines’, JThS, NS xi (1960), 295–317; for the probable date of its ‘primitive form’, pp. 316–17. ²¹⁶ Decretales, pp. 30–6, gives a version derived, ultimately, from Ruﬁnus of Aquileja’s Latin translation, by way of the Quesnelliana, a ﬁfth-century canonical collection. The compiler then added twenty-four extra chapters (pp. 36–46). For its derivation, see Ullmann, ‘Epistola’, 314–15; for its role in the Pseudo-Isidorian collection, see p. 303. ²¹⁷ DP II. xvi. 18. ²¹⁸ For Paul’s being denied any role in the original epistola, see Ullmann, ‘Epistola’, 299. For Marsilius’s general accuracy in transcribing documents, which suggests that, on the whole, he did not quote from memory, see Previté-Orton, ‘Authors’, 407, 410, 413, 417. ²¹⁹ DP II. xvi. 15, 18; discussed above, p. 96.

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there, but argues that, if so, he had probably followed rather than preceded Paul.²²⁰ Subsequent bishops of Rome, ‘elected to the bishopric by the Roman clergy and perhaps by the rest of the people in addition’, could not, then, be regarded as the successors of St Peter singulariter et principaliter.²²¹ Although Marsilius does refer elsewhere to ‘Peter’s successors in the episcopal see at Rome’,²²² they were not successors in this sense. They would not, by virtue of being bishops of Rome, have the prioritas which Marsilius argues the other apostles had conferred on Peter by election, ‘unless they had been elected to this by the successors of the others’.²²³ Such prioritas could not be succeeded to as part of the ofﬁce of bishop; it would have to be granted anew to each bishop by the successors of the apostles, however these might be deﬁned.²²⁴ What, then, was the position of the bishops of Rome in the period which followed the lifetime of the apostles?

THE ROLE OF THE BISHOP AND CHURCH OF ROME IN THE PRIMITIVE CHURCH With a general invocation of the Pseudo-Isidorian collection as his source, Marsilius argues that since, from the time of the apostles to that of Constantine, all clerics were subject to the coercive jurisdiction of secular principes (a principle which we have seen was actually circumscribed in several crucial ways), ‘during that whole period no bishop exercised coercive jurisdiction over any of the others’.²²⁵ Yet because, given the oppression of the church by those secular principes ²²⁰ DP II. xvi. 17–18; cf. II. xviii. 5: ‘for St Peter . . . is recorded to have sat at Rome as bishop, and likewise St Paul, of whom this is more certain, as was shown in chapter xvi of this discourse.’ ²²¹ DP II. xvi. 14. ²²² DP II. xvi. 8. ²²³ DP II. xvi.12; cf. above, p. 94. ²²⁴ Bishops are described as successors of the apostles in their ‘intrinsic, priestly dignity’ at DP II. xvi. 13; but immediately afterwards, at II. xvi. 14, the successors of Peter and the apostles are said to be ‘in a certain sense that person or persons who are most like them in life and mores’. In this second sense they must include laymen. At II. xviii. 5 they are deﬁned as ‘priests and bishops’. ²²⁵ DP II. xviii. 5

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during that period, the bishops of other provinces did not dare to gather publicly to deliberate on the scriptures and matters of ecclesiastical ritual: they consulted the bishop and church of the faithful then existing at Rome, because the multitude of the faithful there was perhaps larger (maior) and more experienced (pericior), inasmuch as the study of all the sciences was at that time vigorously pursued at Rome; and hence the bishops and priests at Rome were more experienced, and their church had a greater number of such experts than other churches.

In the church as a whole during this period, the Roman bishop and church, including both lay and clerical members, were therefore a substitute for the assembly of ‘priests and non-priests skilled in divine law’, termed a collegium. Under ‘inﬁdel legislators or rulers’, the members of this collegium had been ‘obliged by that same divine law to come together, if they conveniently can, to deﬁne and determine doubtful meanings of that law, and to ordain other measures which can advance the growth (augmentum), unity, and common welfare of the faith’.²²⁶ Since, on the whole, no such assembly of priests and nonpriests could conveniently meet during that period, the bishop and church of Rome had acted in their stead. The Roman bishop and church played a role in the church as a whole akin to that which Marsilius has already shown being played by the clergy and sanior pars of the faithful in individual churches in and after the time of the apostles. In both cases the Aristotelian concept of rational development, by reference to which the valentior pars had been deﬁned in Discourse I, clearly underlies the pre-eminence accorded to certain priests and laymen in matters of divine law or faith. Indeed, Marsilius makes the analogy explicit.²²⁷ In addition to the greater size and experience of the church of Rome, it was held in greater reverence because of its associations with Peter and Paul (its being, Marsilius again underlines, more certain that the latter had been a bishop there); and because the city was more important and famous than any other province in the world. Rome’s ²²⁶ DP II. xxii. 12, 13.

²²⁷ DP II. xxii. 15, quoted above, p. 61.

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secular reputation thus contributed to its ecclesiastical pre-eminence, even prior to the conversion of Constantine.²²⁸ The faithful looked to the Roman church not only for ‘counsel and help’ with regard to the faith and ecclesiastical ritual, but also to supply them with bishops, for ‘the church of the faithful at Rome had . . . many more persons who were suited to such positions’. Sometimes the bishops and church of Rome became more active in their proffering of advice, and ‘lovingly admonished the faithful of other provinces on hearing that strife and schism had broken out amongst them’.²²⁹ Thus, ‘from the beginning to the time of Constantine the bishop and church of the Romans obtained this prioritas lawfully’,²³⁰ which can only mean that they did so with the consent and voluntary obedience of other churches. It was because other churches regarded the advice (monita) of the bishops and church of Rome as more learned, that they accepted it. Later, they accepted decisions (ordinaciones) from the same source on matters of ecclesiastical ritual, ‘and ﬁnally came to obey their commands (mandata) under threat of the ecclesiastical censure of excommunication or interdict, in order to preserve the unity of the faithful’.²³¹ Marsilius proceeds immediately to emphasize that no such prioritas was accorded to the Roman bishop and church in the case of ‘contentious acts’, since there was a speciﬁc apostolic prohibition against priests judging such acts.²³² Nevertheless, the bishop and church of Rome gradually came to enforce what became commands with the sanction of excommunication. Moreover, as Marsilius had already implied, the scope of such commands began to extend far beyond the bounds of ecclesiastical ritual and the interpretation of Scripture. It was because the rectors and pastors of other churches were not ‘adequate (sufﬁciens)’ that Rome ﬁrst stepped in with admonitions, which were voluntarily and gratefully received. When disputes arose between the priests, bishops, deacons, or any other persons in such churches, and the fraternal admonitions of other members did not deter them ²²⁸ DP II. xviii. 5; cf. II. xxii. 8. ²²⁹ DP II. xviii. 5. ²³⁰ DP II. xxii. 16; for use of the term prioritas to deﬁne their position, see II. xviii. 7; II. xxii. 18. ²³¹ DP II. xxii. 16; cf. II. xxii. 18, II. xviii. 7. ²³² DP II. xxii. 17.

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from disturbing established practices or the faith, then perhaps some of the more astute (discreciores), who wished to live piously in Christ, took care to have the Roman bishop and his church (whose admonitions were more greatly respected by the faithful, for the reasons already given) pronounce sentences of excommunication and anathema against rebels, those who disturbed the rest, and other criminals; or the bishops of the Romans did this themselves, in their zeal for the faith.²³³

Those members of individual churches whose faith was more developed sought the intervention of the Roman bishop and church, backed up by these sanctions. They did so in order to secure the unity of the faith,²³⁴ and peace and quiet among themselves, ‘because they could not secure this by coercive power, nor in any more convenient way, inasmuch as in those times the human legislator was almost everywhere inﬁdel’.²³⁵ The bishops of the Romans might well have done so in some cases on their own zealous initiative, without any invitation (and perhaps, by implication, without the participation of their church). We have already seen that in the primitive church the universitas or multitudo ﬁdelium must have appointed judges in cases involving excommunication, since there was then no faithful human legislator to do so. Such a judge might be either a priest or a non-priest. If he were a priest, his powers of judgement could not have been restricted to the sacramental role of priests in cases of excommunication: that of advising on the content of divine law, and reiterating the sentence passed insofar as it affected the criminal for the life of the future world.²³⁶ Excommunication was a twofold penalty, involving punishment in the present and in the future life.²³⁷ In the absence of a faithful human legislator, such a judge was vested by the multitudo ﬁdelium with the power to inﬂict a penalty for the status of the present world, since an excommunicate would be denied any contact with them. In other words, the multitudo ﬁdelium necessarily took upon itself what ²³³ DP II. xxv. 3 ²³⁴ On the importance of unity of the faith, see DP II. xxii. 7. ²³⁵ DP II. xxv. 3; cf. II. xxii. 16. ²³⁶ DP II. vi. 13, discussed above, p. 83. ²³⁷ DP II. vi. 12.

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would later be governmental functions in a perfected, Christian society. It is difﬁcult to see how, in Marsilius’s terms, such powers of judgement, sanctioned by the capacity to inﬂict the penalties of excommunication which applied in the present world, could be regarded as not coercive. Yet when the bishop and church of Rome fulﬁlled this function with regard to individual churches in order to preserve the unity of the faith, issuing commands sanctioned by the threat of excommunication and interdict, excommunicating and anathematizing those who disturbed the peace of the church, Marsilius is adamant that these commands and sentences were also not coercive. The function which the bishop and church of Rome came to perform in the primitive church as a whole thus bore some resemblance to what became that of a bishop in an individual church. It will be recalled that bishops were only gradually differentiated from other priests, ‘by later custom’, in terms of their secondary, accidental power. Their new role was to ‘direct’ and ‘order’ the other priests as the church grew, and thereby to prevent the outbreak of schism.²³⁸ Bishops, in this later sense, were created by election. After the human legislator had become faithful, it would be the efﬁcient cause of episcopal ofﬁce, just as it would of other types of secondary priestly power. But in the primitive church, when an inﬁdel legislator was actively obstructing the spreading of the faith, the universitas or multitudo ﬁdelium was responsible for all types of ‘secondary institution’, just as it was for the initial approval, later to be termed election too, of those to be promoted to the priesthood or other clerical order.²³⁹ When the election was not an episcopal one, the bishop would also take part, together with the priests and the sanior pars of the faithful. St Peter had been elected by the other apostles to a prioritas, the nature of which Marsilius never deﬁnes precisely, but which was distinct from his episcopal status.²⁴⁰ It has already been shown that the bishops of Rome had emphatically not succeeded to this Petrine ²³⁸ DP II. xv. 6, discussed above, p. 85. ²³⁹ DP II. xvii. 15, quoted and discussed above, p. 90; for the election of St Peter as bishop by the multitudo ﬁdelium in Antioch, see above, p. 94. ²⁴⁰ Above, p. 95.

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prioritas;²⁴¹ nor had the bishop and church of Rome done so together. It is for this reason that the brieﬁng document by John XXII which lies behind the opinions produced by Sybert of Beck and William Amidani of Cremona asserts that, ‘according to the blasphemies of these stupid heretics, . . . during the ﬁrst three Christian centuries, when idolatry prevailed throughout the world and those holy popes cultivated the church like saints, there was no pope or pontiff . . .’.²⁴² The bishop and church of Rome did, however, come to exercise a prioritas, the nature of which Marsilius deﬁnes with some care. It was a role rendered necessary by the absence of a faithful human legislator, and the difﬁculties raised by the active hostility of an inﬁdel legislator. The bishop and church of Rome fulﬁlled, in the church as a whole, many of the functions which a bishop in an individual church, and its bishop or priest together with the sanior pars of the laymen, fulﬁlled in that church. The bishop and church of Rome received this prioritas through the voluntary consent and obedience of the faithful. Over the course of time, ‘through long custom’, this obtained ‘the force of an election’.²⁴³ Initially the ‘other churches and bishops of the faithful were not bound either by divine or human law to obey the commands or institutes of the Roman church or bishop of the Romans, any more than conversely’, since obedience was then voluntary. But gradually this ceased to be the case. The faithful consented to the progressively expanding scope and imperative nature of interventions by the Roman bishop and church in the affairs of individual churches. Eventually, since ‘the faithful then lacked a faithful legislator to reduce them to order and preserve them in unity’, they became ‘bound by divine law to this sort of obedience in lawful and honourable matters, as if they had established the aforesaid bishop and church by election to be their judge with regard to ecclesiastical ritual’, and, as is clear, much else.²⁴⁴ That the bishop and church of Rome had not actually ²⁴¹ Above, p. 99. ²⁴² Discussed above, p. 22. ²⁴³ DP II. xxii. 16; cf. II. xxii. 18. ²⁴⁴ DP II. xxii. 16; cf. II. xxviii. 12. When Marsilius considers in what senses a particular bishop or church might be said to have become head (caput) or leader (principalior) of

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been elected to perform such a role by the successors of the apostles, however deﬁned,²⁴⁵ underlined that their prioritas was distinct from that attributed to St Peter by the apostles. It was also distinct from the functions which any bishop was elected to perform, ‘by later custom’,²⁴⁶ in an individual church. Hence the use of the term ‘quasi election’ to describe the recognition accorded by the faithful to the bishop and church of Rome. In this sense, as we have seen, their role bore a resemblance to that of a bishop or priest together with the sanior pars of the lay faithful in an individual church. These were distinguished by their greater knowledge of divine law and were not, therefore, elected (unlike the bishop, who was). Together the bishop and church of Rome came to act as a collegium for the whole primitive church, by virtue of their greater knowledge of the faith. the others in pastoral care by the human legislator after the legislator had become faithful, he states that this is not commanded by divine law, ‘since the unity of the faith would be preserved without such a head, although not so easily’: II. xxii. 6. Earlier, in the absence of a faithful human legislator to reduce the church to order, the continuing voluntary obedience of the faithful meant that they eventually became bound by divine law to obey, since by that point the church’s unity could not be preserved in any other way. Even the requirements of divine law could therefore vary according to historical circumstance. ²⁴⁵ Above, p. 103. ²⁴⁶ DP II. xv. 6.

3 Providential History from the Reign of Constantine THE DONATION OF CONSTANTINE Since the bishop and church of Rome had originally to ﬁll the role of a collegium for the whole church because the legislator was then inﬁdel, the need for them to do so would, by inference, cease if the legislator became Christian. For instance, one of the principal reasons for the faithful to attribute prioritas to them was the impossibility of Christians assembling in a council, to settle matters relating to the faith, when the legislator was actively persecuting them. The chapter De primitiva ecclesia et sinodo Nicena in the Pseudo-Isidorian decretal collection showed that it was in the time of Constantine, ‘who openly accepted the Christian faith and baptism’, that believers ﬁrst foregathered in public, at the emperor’s behest, ‘to settle questions of faith and to regulate church ritual’.¹ At least this aspect of the prioritas hitherto exercised by the bishop and church of Rome in what this document deﬁned as the primitive church would therefore become redundant under a Christian emperor. Yet it was ‘especially from the time of Constantine’ that the bishops of Rome had declared and asserted ‘that they are over all the other bishops and priests in the world, with respect to every sort of jurisdictional authority’. Marsilius argues that they had done so on the basis of ‘a certain edict and gift which certain men say that Constantine ¹ DP II. xxii. 19, citing Decretales, p. 248; cf. II. xviii. 7, II. xxv. 4.

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made to St Sylvester, Roman pontiff ’, that is, the donation of Constantine.² Constantine ‘gave to the bishop and church of Rome a certain pre-eminence and authority over all other churches, bishops, and priests in the world’.³ He did so in accordance with the ‘ancient, praiseworthy custom’ which had grown up in the difﬁcult circumstances of the primitive church, but in a new context, created by his conversion, which had transformed those circumstances.⁴ Marsilius goes on to quote from a version of the donation found in the PseudoIsidorian decretal collection: ‘And we’—that is, we, the Roman emperor— ‘decide and ordain that it’— that is, the Roman church— ‘should hold the principatus, both over the four principal sees of Antioch, Alexandria, Constantinople, and Jerusalem, and also over all the other churches of God of the lands of the whole world; and that he who is at any time pontiff of that sacrosanct Roman church should be more eminent than and princeps of all the priests of the whole world, and that whatever relates to the worship of God or to the maintenance of the stability of the faith shall be regulated according to his judgement.’⁵

He stresses that ‘maintenance of the stability of the faith’ did not mean that Constantine ordained that the faith should ‘be determined in accordance with the views of the Roman pontiff or of his church or college alone’. It simply meant that the pontiff had prioritas in investigating new ‘opinions’ which might disturb the unity of the faith. He also had a duty to report on such opinions to the (now faithful) legislator ‘or to the one ruling by its authority (aut illius auctoritate principanti)’—the emperor—so that action might be taken to correct the situation, probably by the summoning of a council of the faithful.⁶ At least that was how the ‘ancient, praiseworthy custom’ of Roman prioritas might have been adapted to ﬁt the new circumstances. If such had been Constantine’s intention when he attempted to embody the existing ‘custom’ in human law, it was progressively ² DP I. xix. 8. ³ DP II. xvi. 9; cf. DM xii. 3. ⁴ DP II. xxii. 19. ⁵ DP II. xxii. 10. The recension of Pseudo-Isidore used by Marsilius—the so-called ‘längere Rezension’—is identiﬁed in Das Constitutum Constantini, ed. H. Fuhrmann, MGH. Fontes iuris Germanici antiqui in usum scholarum, x (Hanover, 1968), 37, n. 54; for the text, see pp. 82–3. ⁶ DP II. xxii. 10.

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undermined both by other aspects of the donation, and by the ways in which the whole document was interpreted, together with his other measures, by future bishops of Rome. Having subordinated all other churches to the ‘authorities and powers’ of the Roman one, Constantine ‘seemed’ to have exempted them from the coercive jurisdiction of (secular) principes.⁷ But Marsilius later argues that this is an incorrect inference, drawn from the Epistola vel praefatio Niceni concilii, also found in the Pseudo-Isidorian collection, which purports to quote Constantine’s very words. He establishes that, ‘regardless of whether or not the words were spoken by Constantine’, it does not follow that other bishops had thereby been subjected to the coercive jurisdiction of the Roman bishop.⁸ There was, he asserts, a distinction between the subordination of other churches to the Roman one, and placing them under its coercive jurisdiction. It was more difﬁcult for Marsilius to argue around the text of the donation itself. Out of ‘devotion’ Constantine had granted the Roman bishop and church ‘many other powers which by divine and human right he was not at all bound to give’.⁹ These ‘seem’ to have included ‘coercive jurisdiction over the ﬁelds, estates, and most of the possessions of the other bishops and churches, as well as secular dominium over certain provinces’.¹⁰ Indeed, although in some respects the wording of the document was obscure,¹¹ in this instance what seemed to be the case was ‘plain to anyone reading the aforesaid edict’.¹² Marsilius considered that the bishops of this time obtained from ‘faithful emperors and other principes’ grants both of judgement of secular acts, especially between clerics, and of the cura of administering certain temporalities (but ‘without possession or dominium’). The bishops were motivated by a desire to protect and nourish the faithful in a situation where the emperor had recently ceased to be a persecutor, and had become devout.¹³ The ‘faithful legislators and principes’ at that time granted bishops and ‘leading pastors of souls’ coercive jurisdiction over the persons and temporal goods of clerics, in order ⁷ DP II. xviii. 7. ⁹ DP II. xxii. 10. ¹² DP II. xviii. 7.

⁸ DP II. xxviii. 19, citing Decretales p. 256; cf. II. xxvii 7. ¹⁰ DP II. xvii. 7. ¹¹ DP I. xix. 9. ¹³ DP II. xxix. 11.

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that the latter ‘should not be distracted or disturbed from their divine functions’.¹⁴ Marsilius does not specify which particular bishops he has in mind, and the only case he discusses which might ﬁt these generalized descriptions is the donation of Constantine.¹⁵ But Scripture established that no bishop or priest, including the Roman one, could claim ‘coercive rulership (coactivus principatus)’ or ‘contentious jurisdiction over any cleric or layman’. Further, it proved that if such a principatus were ‘offered to them or conferred upon them by one having the authority to do so, they ought to refuse it’. These scriptural prohibitions applied ‘especially in communities of the faithful’.¹⁶ In exculpation of Sylvester, it might be argued that the administration of temporalities, hedged about with the qualiﬁcations already mentioned, did not amount to ‘coercive rulership’. But according to Marsilius’s account, the plain sense of the words of the edict showed that Constantine had granted secular dominium over certain provinces of the Empire to Sylvester, even if he had given only administration of temporalities to other (unspeciﬁed) bishops. And it would be impossible to distinguish between ‘judgement of secular acts, especially between clerics’ and ‘contentious jurisdiction’ over clerics. Marsilius attempts no explicit defence of Sylvester’s actions. In his opinion they did not need to be defended, in view of the circumstances in which Sylvester had found himself. The scriptural prohibitions applied ‘especially in communities of the faithful’. By implication, they did not apply as strictly when the community was not faithful. Yet Constantine’s conversion marked only the beginning of the process by which the legislator became faithful. The prohibitions should not, therefore, be applied strictly to the actions of the then Roman bishop, or indeed to those of any of the other (unspeciﬁed) bishops who are assumed to have accepted grants from secular rulers at this time. Sylvester’s acceptance, like Constantine’s grant, was made for the best of motives. Whether it had been wise for Constantine to do what he undoubtedly had the authority to do,¹⁷ ¹⁴ DP II. xxix. 9. ¹⁵ Cf. DP II. xxix 10. ¹⁷ DP II. i. 4; II. v. 9; II. x. 13; II. xxix. 9.

¹⁶ DP II. iv. intr.

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but what he was in no way obliged to do, and whether it had been wise for Sylvester to accept, were quite different matters. Only much later would the devastating consequences of their actions become clear. In attempting to institute in law the existing prioritas of the bishop and church of Rome, Constantine therefore unwittingly inaugurated the process of its transformation into something quite different: what had become, by Marsilius’s day, the principal cause of discord in the world. Marsilius shows that the transformation was rooted in aspects of the donation itself, not simply in later misinterpretations of it. The donation is the ‘source and beginning (ortus et inicium)’ whence ‘the Roman pope’ has come to ascribe to himself supreme coercive jurisdiction over ‘all secondary priestly institutions, termed non-essential, and the power of distributing all ecclesiastical temporal goods’.¹⁸ It is also the source of the pope’s claim to temporal jurisdiction, at least within the regnum Italicum. Small wonder, then, that the early ﬁfteenth-century scribe of the best copy of the original French recension of the book should have added in the margin, next to the chapter in which the donation is ﬁrst explicitly mentioned: ‘Although the words are beautiful, beware! The snake lurks in the grass.’¹⁹ In the account Marsilius gives of the donation in his De translatione imperii, he states that Constantine ‘entrusted to the administration (disponendam commisit) of the blessed Sylvester, then Roman pontiff, and to his successors, both Rome and certain provinces of Italy, as is recorded in certain histories’.²⁰ In fact Marsilius based his account on only one ‘history’, the donation of Constantine itself. And he used not the standard version familiar from Gratian’s Decretum,²¹ but that found in the Pseudo-Isidorian collection. This states that Constantine gave Sylvester and his successors ‘all the provinces, localities, and cities of Italy and the western regions’ in addition to Rome.²² Landulphus Colonna’s Tractatus de translatione imperii, which provides Marsilius with the template for his treatise, says much the ¹⁸ DP II. xviii. 1; cf. I. xix. 8. ¹⁹ Oxford, Magdalen College, MS. 86, fo.34r, at DP I. xix; ed. Previté-Orton, p. xxx; ed. Scholz, p. vii. ²⁰ DTI, cap. 2, p. 382. ²¹ CIC, Decretum 96. 14. ²² Constitutum Constantini, pp. 93–4.

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same.²³ Although Marsilius exploits the full text of the donation in Pseudo-Isidore, this is one occasion when Marsilius does not give a verbatim transcript of his source.²⁴ He does not do so because he wants to restrict the effect of Constantine’s grant of secular dominium over ‘certain provinces’ to the Italian ones, despite the fact that its true extent would have been ‘plain to anyone reading the aforesaid edict’.²⁵ Marsilius must have hoped that his readers would not bother. As far as he was concerned, the extension of papal claims to secular dominium well beyond Italy was one element in subsequent wilful misinterpretation of the donation, which it was his purpose to expose. But in this instance Marsilius was not above misrepresenting the donation. Those who had, in his view, subsequently perverted its meaning, were in this respect more faithful to the wording of his text than he was. Since Marsilius exposed the donation as the root of the current discord in the world, and since integrating it into his argument created so many difﬁculties for him, why did he not develop the hint of doubt about its authenticity, expressed when he ﬁrst mentions it,²⁶ and condemn it as one of the ‘apocryphal fables’? After all, he did as much with the Epistola Clementis when it suited his purpose.²⁷ The answer lies in the use made of the donation by theorists of papal monarchy. It had been one of the principal foundations of papal claims to dispose of imperial power since Carolingian times, as its inclusion in the Pseudo-Isidorian collection indicates. A short version is found in Gratian’s Decretum, the foundational and deﬁnitive canon law collection of the high middle ages;²⁸ it was accordingly much glossed by the canonists. The conventional view was that the donation was a devout confession by the emperor of his inferiority to the pope. It marked a recognition in human law of the authority which the pope was deemed already to have by divine ²³ Goldast, Monarchia ii. 89. ²⁴ Previté-Orton, ‘Authors’, 407, comments on the accuracy of Marsilius’s transcriptions; but see below, p. 134, for discussion of deliberately inaccurate ones. ²⁵ DP II. xviii. 7. ²⁶ DP I. xix. 8. ²⁷ DP II. xxviii. 4; cf. II. xviii. 6, discussed above, pp. 97–8. ²⁸ CIC, Decretum 96. 14.

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law.²⁹ According to Pope Innocent IV, writing in the mid-thirteenth century, Constantine had conceded nothing to Sylvester. On the contrary, because Christ had conferred supreme priestly and royal dignity on the apostolic see, and this principatus had therefore been inherent in the papacy from the beginning, Constantine had simply restored to the pope a power which had hitherto been exercised illegitimately by himself and his predecessors. When Constantine acknowledged the true source of his imperial power, his exercise of it was legitimized.³⁰ He who had ‘previously abused a potestas permissa, henceforth administered an auctoritas concessa’.³¹ Statements to similar effect were common amongst papal publicists of Marsilius’s own day, like Augustinus Triumphus,³² Ptolemy of Lucca,³³ Henry of Cremona,³⁴ and Marsilius’s favourite, Landulphus Colonna.³⁵ Marsilius was concerned to turn this interpretation of the donation on its head. This was a potential danger of which Innocent III may have had a premonition when he declined to justify papal intervention in temporal affairs by reference to a mere ‘human constitution’ because ‘our power is not from man but from God’.³⁶ Marsilius recognized in the donation a vulnerable spot in papal claims to ²⁹ W. Ullmann, Medieval Papalism: The Political Theories of the Medieval Canonists (London, 1949), 107–9, 164. ³⁰ G. Laehr, Die Konstantinische Schenkung in der abendländischen Literatur des Mittelalters bis zur Mitte des 14. Jahrhunderts (Berlin, 1926), 94–7. ³¹ Innocent’s view was trenchantly summarized in Eger cui lenia, a pamphlet of 1245–6 directed against Frederick II: P. Herde, ‘Ein Pamphlet der papstlichen Kurie gegen Kaiser Friedrich II von 1245/6’, Deutsches Archiv, xxiii (1967), 468–538; D. Maffei, La donazione di Constantini nei giuristi medievali (Milan, 1969), 80; B. Tierney, ‘The Continuity of Papal Political Theory in the Thirteenth Century: Some Methodological Considerations’, repr. in id., Church Law and Constitutional Thought in the Middle Ages (London, 1979), ch. v, pp. 239–40. ³² Summa de potestate ecclesiastica (Rome, 1584), I. i, p. 3. ³³ Determinatio compendiosa de iurisdictione imperii, auctore anonymo, ut videtur Tholomeo Lucensi O.P., ed. M. Krammer, MGH. Fontes iuris Germanici antiqui in usum scholarum (Hanover, 1909), 50–1, cf. 6–7, 14, 20–1, 25, 46, 48, 64; for further examples, see Wilks, Problem of Sovereignty, 543, n. 1. ³⁴ De potestate papae, in R. Scholz (ed.), Die Publizistik zur Zeit Philipps des Schönen und Bonifaz’ VIII. Ein Beitrag zur Geschichte der politischen Anschauungen des Mittelalters (Stuttgart, 1903), 467–8. ³⁵ DTI, cap. 1, Goldast, Monarchia ii. 89. ³⁶ Innocent III celebrated decretal Novit (Apr. 1204): Selected Letters of Innocent III Concerning England (1198–1216), ed. C. R. Cheney and W. H. Semple (Edinburgh, 1953), 63–8, at 65; the letter was included in CIC, X. 2. 1. 13.

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temporal jurisdiction, for he saw that, as Walter Ullmann expressed it, the donation ‘formed the link between [the] abstract philosophic reasoning [of the papalists] and the realities of life’.³⁷ As such, it was far too valuable to his argument for him to dismiss it either as a forgery or as in some other way invalid. It could provide him with proof of the human origin of papal temporal jurisdiction, and the subordination of the pope to the emperor. He says as much himself: What we have said is borne out by the decrees or histories of the pontiffs of the Romans. For there may be found, written and approved by them, a certain privilege of Constantine, emperor of the Romans, whereby he conceded to the blessed Sylvester, Roman pontiff, coercive jurisdiction over all the churches of the world and over all other priests or bishops. And since every Roman pope, as well as the rest of the priests or bishops, attests that this concession was valid, they must consequently concede that this same Constantine originally had this jurisdiction or power over them, especially since no such jurisdiction over any cleric or layman is known to belong to them by virtue of the words of Scripture.³⁸

Far from being ‘apocryphal’, Marsilius categorizes the donation as one of the ‘authentic human writings’.³⁹ It provided too valuable a weapon for Marsilius to be ambivalent about its authenticity, as he was in the case of the Epistola Clementis. With one brief, tantalizing exception,⁴⁰ comment on Marsilius’s use of the donation of Constantine has been largely restricted to this point, and it has been seen as no more than a detail in his argument.⁴¹ Professor Quillet, for instance, asserts that Marsilius ‘attached far less ³⁷ Ullmann, Medieval Papalism, 108. ³⁸ DP II. xi. 8. ³⁹ DM xii. 3. ⁴⁰ R. Black, ‘The Donation of Constantine: A New Source for the Concept of the Renaissance?’, in A. Brown (ed.), The Languages and Images of Renaissance Italy (Oxford, 1995), 51– 85, at 63, observes that for Marsilius, the donation was ‘the greatest historical turning point in world history’, but fails to say more. ⁴¹ Laehr, Konstantinische Schenkung, 137–8; Quillet, Philosophie politique, 236–8; C. F. Bertelloni, ‘Marsilio de Padua y la historicidad de la “donatio Constantini” ’, in Estudios en Homenaje a Don Claudio Sánchez Albornoz en sus 90 años, iv (Buenos Aires, 1986), 1–24; J. Quillet, ‘Autour de quelques usages politiques de la Donatio Constantini au moyen âge: Marsile de Padoue, Guillaume d’Ockham, Nicolas de Cues’, in Fälschungen im Mittelalter. Internationaler Kongress der MGH., München, 1986, 5 vols. (Hanover, 1988), ii. 536–44, esp. 538–40.

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importance to it than his adversaries’.⁴² On the contrary, however, it was precisely the weight attributed to it by his adversaries that made it still more signiﬁcant to Marsilius. It was the most important example of Marsilius’s technique of refuting contemporary papal claims by invoking, or at least exploiting, certain authorities deemed unimpeachable by the papal polemicists. Like the ‘histories’ he used, in which the donation was described, it was self-evidently ‘approved’ by the popes. Although Marsilius displays no great knowledge of civil, as opposed to canon, law in the Defensor pacis,⁴³ he would undoubtedly have been aware of the case against the legitimacy of the donation mounted by the civilians. They argued that the emperor was not empowered to alienate the Empire, or any part of it, to the pope.⁴⁴ This was the line taken by Dante in his Monarchia, with which we have already seen the Defensor pacis has revealing, if unremarked, parallels.⁴⁵ Yet Marsilius did not follow him or the civilians on this subject, even though he elsewhere invokes the oath to preserve the liberties of the Empire as one ground for Louis of Bavaria’s refusal to sanction the papacy’s ‘illicit and unjust occupation of certain provinces’.⁴⁶ One reason may have been the counterattack by the canonists. They argued that if the civilian objection were correct, and Constantine had had no authority to hand over the Empire to the pope, then the Roman people, from whom the emperor was deemed to derive his legislative capacity by virtue of the lex regia, had in turn had no authority to make such a concession to ⁴² Quillet, Philosophie politique, 238. ⁴³ Previté-Orton, ‘Authors’, 413; W. Ullmann, ‘Territoriality and Personality in the “Defensor Pacis”: The Problem of Political Humanism’, repr. in id., Law and Jurisdiction in the Middle Ages (London, 1988), ch. ix. As Brampton, ‘Life’, 505, pointed out, it is difﬁcult to reconcile this traditional view with the Defensor minor, which reveals considerable acquaintance with Roman law. ⁴⁴ The debate was initiated by Accursius in the glossa ordinaria on Corpus Iuris Civilis, Nov. vi, proemium; for discussion, see Ullmann, Medieval Papalism, 164; Maffei, La donazione, 66–70; J. Canning, ‘A State Like Any Other? The Fourteenth-century Papal Patrimony Through the Eyes of the Roman Law Jurists’, in D. Wood (ed.), The Church and Sovereignty: Essays presented to M. J. Wilks, Studies in Church History, Subsidia, ix (1992), 245–60, at 248–9. ⁴⁵ Monarchia III. x; for the parallels, see above, p. 75, below, p. 160. ⁴⁶ DP II. xxvi. 7.

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Augustus.⁴⁷ We have already seen the key role which the lex regia plays in Marsilius’s thought:⁴⁸ he would have been unwilling to countenance any argument which might cast doubt either on its legitimacy or on its authenticity. He was more exposed to another civilian line of attack on the document, in which no such dangers lurked for his argument: that whatever Constantine had granted, he could not have bound his successors to recognize what he had done. Marsilius repeatedly draws attention to the fact that later emperors might have—indeed had— revoked the grant.⁴⁹ In doing so he contradicted the papal publicists who stressed that, once made, the donation was irrevocable.⁵⁰ But, according to Marsilius, it had later been reinstituted by the successors of those who had revoked it—by Augustus Phocas, for instance, as Martinus Polonus recorded.⁵¹ Such a line of attack did not deny validity to the original document, and implicitly conﬁrmed Marsilius’s fundamental point: that the emperor, as pars principans, exercised the powers of the human legislator at the point when the legislator had begun to become faithful, and that it was as such that he had made the grant to Sylvester. Such an attack therefore represented no threat to Marsilius’s argument. His apparent ambivalence towards the donation of Constantine is thus explained. Stripped of subsequent accretions, the donation constituted both historical proof of the superiority of the emperor to the pope and the root of subsequent problems in Christian history. The pivotal role of the donation of Constantine in Marsilius’s argument was obvious to contemporary commentators. His critics were quick to exploit his acceptance of it, and the awkward problems which the pre-Constantinean church posed for him. How, John XXII ⁴⁷ See e.g. Hostiensis, Summa aurea (Lyons, 1568), IV, rubr. Qui ﬁlii sunt legitimi, nu. 10, quoted and discussed by Maffei, La donazione, 89–90; also Ullmann, Medieval Papalism, 165. ⁴⁸ Above, p. 73. ⁴⁹ DP II. xxiii. 4; elsewhere he speculates that ‘it had perhaps expired on account of later events’: I. xix. 9. ⁵⁰ See e.g. Augustinus Triumphus, Summa de potestate ecclesiastica (Rome, 1584), xliii, 1 ad 1, 2, pp. 237–8; xliii, 3, p. 239; Alvarus Pelagius, De planctu I., art. 13, par. E, i. 354–6. ⁵¹ DP II. xxii. 10, citing Martinus Polonus: MGH. SS xxii. 422.

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asked in Licet iuxta doctrinam, could Marsilius and John of Jandun argue that prelates ‘received coercive or any other power from the terrestrial emperor, when . . . the emperors down to Constantine the Great were almost all pagans, or idolators and persecutors, and even exterminators, in so far as they were able, of the holy church of God’?⁵² In his refutation of the third and (to both John and, subsequently, Conrad of Megenberg)⁵³ most dangerous error contained in the book, he argued that the ‘institution’ of popes had not pertained to emperors prior to Constantine’s conversion, and did not do so afterwards either.⁵⁴ For the newly baptized Constantine had recognized that Rome ‘had been instituted as the principatus of priests and the head of the Christian religion by the celestial emperor’. He had therefore ‘conceded the imperial seat’ to Sylvester, and had moved his capital to the East. It followed that it was absurd to claim that the institution of the pope belonged to this or any other emperor. Alvarus Pelagius interpreted the matter slightly differently, perhaps because he, unlike John XXII, appears to have read the Defensor pacis. The donation could be used to support the erroneous claim that the pope was the ‘feudatory or vassal’ of the emperor.⁵⁵ Marsilus had argued this. Alvarus also recognized that ‘that impious, cunning sophist’ had invoked the donation as evidence that the early church did not have property, and that its apostolic purity had been sullied by the emperor’s grant.⁵⁶ This particular application of the document to a major theme of the Defensor pacis again seems to have escaped John XXII. But whether Marsilius’s critics worked from the book itself, or simply (like the pope) from excerpts, the central importance of Constantine’s conversion, and therefore of the document which described his conversion and its aftermath, was clear to them all. ⁵² Raynaldus, Annales v. 352. ⁵³ Above, p. 43. ⁵⁴ Raynaldus, Annales v. 349; cf. 348 for Constantine’s recognition that St Peter was the ‘vicar of the son of God’; above, p. 21, for the claim that the emperor institutes the pope was the worst error in the Defensor pacis. ⁵⁵ De planctu I. art. 68 par. I, iii. 336. ⁵⁶ De planctu I. art. 68, par. Q; cf. Iung, Franciscain, 201.

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THE EARLY CONSEQUENCES OF CONSTANTINE’S CONVERSION Marsilius divides his authorities into two main categories: ‘divine and human scriptures’.⁵⁷ He had tried to demonstrate that the claims made on the papacy’s behalf in his own day owed nothing to Scripture, or to the practice of the apostolic or primitive church. He had also sought to establish precisely what Constantine had conceded to Sylvester in the ‘human writing’ which survived in the PseudoIsidorian decretal collection, despite the regrettable imprecision of its wording.⁵⁸ He overcame his normal distaste for sources other than Scripture and those dating (or purporting to date) from the early church to invoke with approval St Bernard of Clairvaux’s observation that, with respect to secular apparel and powers, the medieval popes had, as a consequence of the donation of Constantine, ‘succeeded not Peter, but Constantine’.⁵⁹ Indeed, St Bernard’s unique status in the Defensor pacis, as a modern authority repeatedly invoked with respect, may spring from Bernard’s unconventional treatment of the donation. Bernard had seen it as the source of the corruption which had progressively subverted the purity of the early church.⁶⁰ Marsilius was not alone in developing this analysis.⁶¹ William of Ockham, for instance, would soon use it in his Opus nonaginta dierum.⁶² Yet, as should be evident from Marsilius’s attempted reconstruction of the ⁵⁷ DP II. xxvi. 18. ⁵⁸ DP I. xix. 9. ⁵⁹ DP II. xi. 8, citing St Bernard, De consideratione IV. iii. 6, in S. Bernardi Opera, iii, Tractatus et Opuscula, ed. J. Leclercq and H. M. Rochais (Rome, 1963), 453–4. Marsilius quotes the passage again at II. xxvi. 2. ⁶⁰ G. Olsen, ‘The Idea of the ecclesia primitiva in the Writings of the Twelfth-century Canonists’, Traditio, xxv (1969), 61–86, at 82–4. Another passage from Bernard’s De consideratione I. vi. 7, who in turn quoted 1 Cor. 6: 5 to the effect that the rank of judge in the apostolic church was a lowly and contemptible one, is picked out by a marginal ﬁnger in Tortosa, Cathedral Chapter Library MS. 141, fo. 29r. For the possible signiﬁcance of these ﬁngers, see above, p. 55, n. 18. ⁶¹ P. de Vooght, ‘Du “De consideratione” de Saint Bernard au “De potestate Papae” de Wiclif ’, Irenikon, xxvi (1963), 114–32. ⁶² Opus nonaginta dierum, cap. 93, in Ockham, Opera politica ii. 697–8 (Ockham, Writings, 105); cf. 688–9.

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original form of the donation on the basis of the Pseudo-Isidorian text, Constantine’s act had not immediately given rise to any problems. These had developed gradually, over the ensuing centuries. Rather, the donation had marked the inception of a process of elision between human legislator and church or universitas ﬁdelium which, as we have seen, Marsilius characterized as a process of perfection. Constantine’s donation had therefore been the most important event in providential history since Christ’s incarnation. Far from denouncing the state of the church during Constantine’s reign, then, Marsilius’s account of it is in many respects an elegiac one. The ﬁrst general councils were held at Constantine’s behest.⁶³ Constantine’s role in presiding over the council of Nicaea, recorded in several documents preserved in the Pseudo-Isidorian collection, is, as we have seen, repeatedly held up as a model.⁶⁴ The councils had ‘deﬁned and determined ambiguous meanings of the sacred Scripture’. They had also ‘made ordinances (ordinaciones) concerning matters of church ritual . . . and established the manner and procedure whereby priests were to be appointed to ecclesiastical ofﬁces in speciﬁed places or provinces, both inseparable ofﬁces, which are called ordines, and the separable ones, which are called prelaciones or cures of souls . . .’. Councils thenceforth regulated the manner of conferring both the ‘essential’, or ‘inseparable’, sacramental power of potestas ordinis and the ‘accidental’, or ‘separable’, power on those chosen to be priests.⁶⁵ They further ‘determined or established the manner of distribution of temporal goods or beneﬁcia, such as offerings and other things both movable and immovable which had been given to [priests and deacons] for the sake of the ministry of the gospel’. When the council had made these determinations, the human legislator ‘or the principans by its authority’—in other words, the emperor⁶⁶—made them obligatory ‘by coercive precept or law . . . for every priest or ⁶³ DP II. xxv. 4. In fact only the council of Nicaea (325), the ﬁrst of the four ecumenical councils (II. xx. 1), was held under Constantine. Marcian’s summoning of the council of Chalcedon (451) is mentioned at II. xxi. 4. See further, DM xii. 4. ⁶⁴ Above, pp. 106–8. ⁶⁵ For the distinction, see above, p. 84. ⁶⁶ Constantine and the legislator are equated at DP II. xxi. 2.

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non-priest, according to the requirements laid on each’. In practice, these new laws applied more to priests than to laymen, because the former ‘more often gave cause for such edicts’.⁶⁷ With the beneﬁt of conciliar advice, Constantine was subjecting the Christian clergy as well as laity to legal regulation in the performance of their ofﬁces. With respect to the distribution of temporalia ‘among themselves and other poor persons’, for instance, we have already seen that this had been one aspect of the secondary, or separable, human power of all priests long before Constantine’s conversion.⁶⁸ Although most of the ‘successors of the apostles’, including the ‘Roman bishops’, had maintained an apostolic style of life, including apostolic poverty, some of them had ‘possessed estates’ long before the time of Constantine. The ﬁrst example Marsilius can ﬁnd—in, he claims, the ‘approved history’ of Martinus Polonus—is Urban I, ‘Roman bishop’ (222–30).⁶⁹ In truth, it is more likely that he was thinking of a decretal attributed to Pope Urban in the Pseudo-Isidorian collection.⁷⁰ It describes how, with the passage of time, early Christians ceased to sell everything they had in order to follow the life of apostolic poverty, and began to give their possessions to churches. The revenues from these ecclesiastical possessions could support the faithful in the common life. For this purpose, these possessions came under the control (in ditione) of individual bishops (but without any speciﬁc mention of the bishop of Rome).⁷¹ If this was what Marsilius had in mind, then he might have considered that Urban had done so for the same reason which, in Marsilius’s view, had led priests to assume some sort of responsibility for the distribution of temporalia—out of pity for the poor. Nevertheless, there was a clear distinction between distributing temporalities or their fruits, and assuming possession or dominium over them: if [Urban] assumed the power of laying claim to these estates or to their fruits before a coercive judge, or if, having power to sell them and to distribute the ⁶⁷ ⁶⁹ ⁷⁰ ⁷¹

DP II. xxv. 4. ⁶⁸ DP II. xv. 9, discussed above, p. 86. DP II. xxv. 2; cf. Martinus Polonus, MGH. SS xxii. 413. Decretales, ed. Hinschius, pp. 143–6. J. H. Claxton, ‘On the Name Urban II’, Traditio, xxiii (1967), 489–95, at 489–90.

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receipts to the poor, he did not do so, then he undoubtedly deviated from the aforesaid status of supreme poverty or perfection, whether he did so knowingly or ignorantly.

What in the decretal was a means of maintaining the common life in perpetuity, was in Marsilius’s view, in the case of the pope who had allegedly written the decretal, a betrayal of the common life. According to Marsilius, this practice was followed by several other bishops of the Romans—Marsilius names no others—‘up to the time of Constantine’. The general councils, which ‘truly represented by succession the congregation of the apostles and the elders and the other faithful of that time’,⁷² regulated the clerical distribution of temporalia, including those produced by landed estates, which had begun to exist in the primitive church. Constantine gave their regulations coercive legal sanction. The process thereby came, for the ﬁrst time, under the ultimate control of the human legislator. But as we have seen, in his donation Constantine granted to Sylvester and his successors as bishops of Rome coercive jurisdiction over the estates of all other bishops and churches.⁷³ He had also conceded dominium over certain provinces. Yet when grants of temporalia were made to other bishops during this period—Marsilius fails to give any examples—they were restricted to the cura of administration ‘without possession or dominium or the authority to claim them for themselves, in order that this might redound to the beneﬁt of the poor faithful’.⁷⁴ In instituting in human law the existing prioritas of the Roman bishop and church, Constantine also gave legal sanction to the development which, according to the ‘approved’ historical record, had been inaugurated by Urban I. This contravened the tradition of apostolic poverty, and therefore the evangelical law. But the regulations of the general councils concerning ecclesiastical temporalia, which received Constantine’s legal sanction too, prevented other clerics from adopting the practice ⁷² DP II. xix. 2. ⁷³ DP II. xviii. 7. ⁷⁴ DP II. xxix. 11, discussed above, p. 108.

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initiated by Urban I (and subsequently pursued by unnamed bishops of the Romans). They did so by prescribing legally binding rules for all clerics (as well as laymen). No longer did the actions of bishops in this respect depend upon their individual motives. Henceforth they were bound by law. There was, therefore, an implicit contradiction between what the donation did for the bishops of the Romans, and Constantine’s conﬁrmation of the decisions and decrees of the general councils with respect to ecclesiastical temporalia in general. But the contradiction remained implicit for some considerable time: PseudoIsidore and other ‘approved histories’ showed that the Roman and other bishops of this period ‘pressingly supplicated’ the principes for this sort of law,⁷⁵ to which the ‘Roman priests (antistites)’ in particular wished to be subject.⁷⁶ Marsilius refers the reader to his extensive discussion of documentary examples, chieﬂy from the council of Chalcedon (451), the third (589) and thirteenth (683) councils of Toledo in the Visigothic kingdom, and (although he discreetly avoids identifying it) the ‘Robber’ council of Ephesus (449). He claims to have extracted all of these from the Pseudo-Isidorian collection.⁷⁷ He uses these examples to support the contentions that the general councils regulated the modes of appointment to the two priestly powers—the ‘essential’ or ‘inseparable’ and the ‘accidental’ or ‘separable’—and that the legislator, in the person of the emperor, gave legal sanction to their decrees.⁷⁸ This change, consequent on Constantine’s conversion, could make no difference to the immediate divine bestowal of sacramental power, which continued to be symbolized by the laying on of hands by priests who performed ordinations. But it transformed the manner in which the ‘secondary authority’ of a priest ⁷⁵ DP II. xxv. 4; cf. II. xxi. 6. ⁷⁶ DP II. xvii. 17. ⁷⁷ DP II. xxi. 4–7. DP, ed. Previté-Orton, p. 334, n. 1, points out that Dioscorus of Alexandria’s letter summoning the ‘Robber’ council of Ephesus is not found in printed versions of Pseudo-Isidore. It is, however, found in the full proceedings of council of Chalcedon (451), which shortly afterwards reversed almost all of the decisions made at Ephesus: J. D. Mansi (ed.), Sacrorum conciliorum nova et amplissima collectio, 31 vols. (Florence and Venice, 1759–98), vi. 587–90. The version of Chalcedon preserved in printed editions of Pseudo-Isidore, and the new internet edition Projekt Pseudoisidor, do not contain it. It may, nevertheless, have been in the manuscript of Pseudo-Isidore which Marsilius used. ⁷⁸ DP II. xxv. 4; cf. II. xxi. 4.

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was conferred. As I have already demonstrated, Marsilius considered that during the ‘primitive’ period prior to Constantine, both the preliminary ‘approval’ or ‘election’ which determined who was to be made a priest, and the appointment or ‘election’ of such a person to secondary priestly powers,⁷⁹ pertained to ‘the priest or bishop with the sanior pars of the faithful multitude living in that place’.⁸⁰ The pars principans of that period could have had nothing to do with the process, because the inﬁdel legislator was then endeavouring to prevent the spread of the Christian faith. Now that the pars principans had become faithful, the legislator (with which he is often equated) could assume its proper (Aristotelian) role as efﬁcient cause of both these modes of priestly ‘election’, as it had always been of the law and of the pars principans.⁸¹ The transformation of the Christian priesthood into the pars sacerdotalis of the faithful human legislator was marked by the legislator’s giving legal sanction to the modes of appointment to ecclesiastical ofﬁces determined by general councils of the faithful. This was the logic which allowed Marsilius to cite Pseudo-Isidorian evidence associated with the council of Chalcedon, in the mid-ﬁfth century, in support of his contention that it had pertained to the authority of ‘the faithful legislator or princeps’ to appoint to the priesthood since the time of Constantine.⁸² What was true of the secondary appointment of all bishops and priests was necessarily true of the bishop of Rome: the ‘human legislator or the one ruling (principans) by its authority’ established ‘the form and mode of ordaining to the apostolic see or electing the Roman pontiff’. Indeed, two documents found in the Pseudo-Isidorian collection which purport to date from the early ﬁfth century are cited by Marsilius as proof that popes then ‘eagerly requested’ that the emperor should ‘constitute’ them according to the procedure which had already been given legal force by previous emperors.⁸³ This ‘deﬁnite form and mode ⁷⁹ For the distinction between the two modes of election, see above, pp. 88–92. ⁸⁰ DP II. xvii. 15. ⁸¹ DP II. xvii. 11, quoted above, p. 89. ⁸² DP II. xxi. 4, citing the edict of Valentinian and Marcian which conﬁrmed the proceedings of the council of Chalcedon: Decretales, pp. 288–9. ⁸³ DP II. xxi. 5, quoting a letter of Pope Boniface I (418–22) to the emperor Honorius and a reply from Honorius: Decretales, pp. 554–5.

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ﬁxed by law’, according to which the princeps, by authority of the legislator, could ‘institute’ the Roman pontiff, consisted of obtaining ‘the counsel of the priestly college and of other wise and studious men, and trusting to the decision of their valentior pars’. In a rare instance of overt disagreement with the ‘approved history’ of Martinus Polonus, Marsilius attacks him for characterizing this procedure, when it was followed in one eleventh-century papal election, as a ‘foul custom ( prava consuetudo)’. Martinus described it as foul, Marsilius says, only because he was ignorant of the true origin of the custom.⁸⁴ As Marsilius describes it, this custom preserved many aspects of the procedure of episcopal election from the primitive church. The ‘priestly college (collegium sacerdotalis)’ acted in conjunction with laymen learned in divine law, and the view of the valentior pars prevailed. But by embodying this procedure in human law, the Christian emperors (beginning, by inference, with Constantine) had taken upon themselves the power formally to ‘institute’ a bishop in accordance with what had become the ‘counsel’—no longer the constitutive election—of the valentior pars of the priests and the lay faithful of the city of Rome. Such a transformation of episcopal electoral procedure was true of other bishops too, with the elision of universitas ﬁdelium and universitas civium. Yet in addition to his episcopal ofﬁce, previously conferred by the church in Rome, and now by the emperor, the bishop of Rome had had a prioritas attributed to him in the pre-Constantinean period by all the faithful. Constantine had, as we have seen, attempted to give this prioritas legal sanction in the donation. Henceforth ‘election’ of a bishop of Rome by the faithful human legislator, in the person of the emperor, conferred an ofﬁce which combined both functions. These two functions were combined not only in the Christian emperor’s ‘election’ or ‘institution’ of the pope, but also in the counsel which he took from the valentior pars of the ‘priestly college’ and learned laymen. For the Roman ‘priestly college’ or clergy had existed in the pre-Constantinean church, and had then ‘elected to the ⁸⁴ DP II. xxv. 8; cf. MGH. SS xxii. 433.

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bishopric’, perhaps with ‘the rest of the people in addition’,⁸⁵ or more accurately, their sanior pars. Indeed, an assembly of ‘priests and nonpriests skilled in divine law’ meeting under an inﬁdel legislator is sometimes termed a ‘college’ by Marsilius.⁸⁶ The church as a whole— the universitas or multitudo ﬁdelium—had during that period attributed prioritas jointly to the bishop and the church of Rome which had elected him. The bishop and church of Rome obtained this prioritas by ‘quasi election’, not by election, for reasons I have already explained.⁸⁷ When Constantine had transformed the content of that prioritas in the process of embodying it in human law, it still applied to the bishop and church of Rome together. Hence Marsilius’s repeated references to the donation having being made to both jointly. The transformation in the meaning of that prioritas meant that just as Constantine had vested the bishop of Rome with coercive jurisdictional powers and dominium which, by evangelical law, no priest should exercise, so he had endowed the Roman priestly college with ‘the title of the dignity, and the prerogative and honour, which the senate had in the time of Constantine’. Thereafter these priests were called cardinals.⁸⁸ If Marsilius considered that this dignity gave any secular powers to the college of cardinals, he fails to spell out what they were. But as recipients of a transformed prioritas along with their bishop, the cardinals now counselled the author of these concessions, when an episcopal vacancy occurred, as to whom he should ‘elect’ to the combined functions of episcopal ofﬁce and prioritas. For the time being at least, the cardinals continued to do so in conjunction with learned members of the Roman lay faithful. But the clerics and laymen of the Roman church had been deprived of the capacity to elect their bishop themselves. The emperor, acting on behalf of the whole faithful human legislator, not just the church of Rome, instituted a candidate in episcopal ofﬁce together with prioritas by election. Institution in the prioritas was no longer a distinct result of ‘quasi election’. The newly faithful legislator had become the efﬁcient cause ⁸⁵ DP II. xvi. 14. ⁸⁶ DP II. xxii. 13. ⁸⁷ Above, p. 105. ⁸⁸ DP II. xix. 6; DTI, cap 2, pp. 382–4; cf. Constitutum Constantini, ed. Fuhrmann, pp. 88–9.

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of a unique secondary priestly ofﬁce, which would eventually become the principal cause of temporal discord in the world.

THE EARLY DEVELOPMENT OF PAPAL CL AIMS How and why did providence bring this consummation about? Marsilius begins to explain by examining the history of the papacy during the later Roman Empire. The activities of Urban I, almost a century prior to Constantine’s conversion, had been an omen, as we have seen.⁸⁹ In his De translatione imperii, Marsilius asserts that the college of cardinals was vested with senatorial dignity at Sylvester’s request. The allegation is not supported by the text of the donation, but is found in Marsilius’s template, Landulphus Colonna’s treatise.⁹⁰ For Marsilius, unlike Landulphus, it may imply that Sylvester’s motives were dubious. Marsilius had already explicitly doubted those of Urban I and other, unnamed pre-Constantinean bishops of Rome. But it was only after the time of Constantine that the consequences of those aspects of the donation at which we have been looking began to emerge. Initially ‘the Roman bishops and priests and the whole college of clerics, and those of other provinces, lived under the coercive rule of those who were principantes by authority of the human legislator’. In doing so, they continued to follow the example set by Christ and the apostles.⁹¹ At least for the time being, the Christianization of the legislator made no difference. But later on, ‘certain bishops of the Romans were led, or more accurately misled, into a path different from that of Christ and the apostles, by the persuasion and incitement of that princeps of this world, by that ﬁrst parent of pride and ambition, by that instigator of all other vices, the devil’.⁹² Cupidity and avarice invaded their souls, and expelled therefrom that supreme meritorious poverty planted and established by Christ. If this had ⁸⁹ DP II. xxv. 2; above, p. 119. ⁹¹ DP II. xxv. 7.

⁹⁰ DTI cap 2; cf. Goldast, Monarchia ii. 89. ⁹² DP II. xxv. 7; cf. II. xxvi. 18.

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indeed begun to happen prior to Constantine’s conversion, with Urban I, such deviation from the apostolic model could only have been encouraged by the terms of the donation of Constantine. Greed, planted by the devil and watered by the donation, was nurtured by ‘pride and ambition for secular rule’, which ‘expelled from their souls the supreme humility which Christ had enjoined and commanded the church or whole priesthood to maintain’. This too, as we have seen, was fostered by the terms of the donation. The ﬁrst extant evidence of a Roman bishop’s soul being perverted in this way is, according to Marsilius’s reading of Martinus Polonus, provided by Pope Simplicius (468–83). Simplicius’s vicious deviation manifested itself in his ordaining (statuit) that ‘no cleric should receive investiture from a layman’.⁹³ ‘Investiture’ meant, according to Marsilius, that investiture with ‘beneﬁces and ofﬁces’ which Simplicius’s predecessors, ‘wishing to show due humility and reverence to principes’, had been accustomed to receive from laymen. The ‘statute’ implies as much. This ﬁrst papal attempt at a prohibition of lay investiture revealed not so much the greed for temporal possessions of which Urban I might have been guilty, as the associated sins of ‘pride and ambition for secular rule’. For ‘primary authority over investitures was and is that of the princeps or the human legislator’.⁹⁴ Yet the human legislator had assumed this authority only with Constantine’s conversion. Although Marsilius recognizes that the lay faithful had made grants of beneﬁcia or temporalia to churches in the primitive or pre-Constantinean period, and had played a part in ‘electing’ candidates to clerical ofﬁces, the inﬁdel legislator had had ‘primary authority’ over neither type of investiture. Only at the point at which the legislator began to become faithful could it begin to assume this authority. Yet the legislator had delegated this authority at the very point at which it had ﬁrst assumed it. From what purports to be an ‘edict’ of Pope Leo VIII to Otto I, emperor of the Romans, which was forged during the Investiture Contest and quoted by Marsilius from the version found in Ivo of ⁹³ DP II. xxv. 7; cf. Martinus Polonus, MGH. SS xxii. 419.

⁹⁴ DP II. xxv. 9.

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Chartres’s early twelfth-century canon law collection Panormia, Marsilius infers that the princeps or (faithful) human legislator must originally have ‘granted to the pope the authority to invest bishops and archbishops’.⁹⁵ That grant was, in Marsilius’s view, evidenced by the document which recorded the original conversion of the princeps,⁹⁶ and which, in effect, invested Sylvester with a new ofﬁce, based upon his existing prioritas. This new ofﬁce included the delegated power to invest. Pope Simplicius’s denial that any layman could invest a cleric therefore amounted to an attempted usurpation by the bishop of Rome, on the basis of the donation of Constantine, of the supreme power of investiture exercised by the emperor, which underpinned the donation itself. The relationship between the donation and its subsequent exploitation by the bishops of Rome was a dialectical one. Marsilius singles out two other early popes for actions which betrayed ‘desire for secular rule’. Pelagius I (556–61) had decreed that ‘heretics were to be punished by the secular powers’.⁹⁷ Since, according to Marsilius, Pelagius must have known that Justinian had legislated against heretics, and since, as a bishop, Pelagius had no business making laws, he was attempting to ‘usurp for himself the authority of another’. Adrian III (884–5) had decreed that no ‘ “emperor was to interfere with the election of a pope”, to use the words of Martinus [Polonus]’.⁹⁸ In Marsilius’s view Pope Adrian’s ‘statute’ was void, because it was issued by someone who had no legislative authority. Moreover, its content was ‘patently wrong’,⁹⁹ for ‘the opposite has been conﬁrmed by long and laudable custom’. The emperor was required to intervene in papal elections—indeed to institute a new pope—for his was the supreme power of investiture with clerical ofﬁce and beneﬁcia. Adrian III, like Simplicius four centuries before him, and in a rather different way Pelagius, were all aspiring usurpers of secular power. Their greedy aspirations were demonstrably based, at least in part, upon the donation of Constantine. The papal attempt to ⁹⁵ ⁹⁶ ⁹⁷ ⁹⁸

DP II. xxv. 9, quoting Ivo of Chartres, Panormia, cap. 136, in PL clxi. 1337–8. Marsilius is thinking of the Constitutum Constantini, ed. Fuhrmann, pp. 82–3. DP II. xxv. 7; cf. Martinus Polonus, MGH. SS xxii. 421. DP II. xxv. 7; cf. Martinus Polonus, MGH. SS xxii. 429. ⁹⁹ Above, p. 50.

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prohibit investiture by any layman, including the emperor, ‘is and was the primary source of the present strife and discord between the emperors and the Roman pontiffs’.¹⁰⁰ Marsilius supports this contention with a brief reassessment of the relations between the papacy and the Carolingians, Ottonians, Salians, and Hohenstaufen. The reassessment is developed in greater detail in his De translatione imperii, in which he presented himself with the ticklish task of proving that the seat of the Empire had been transferred, or in technical language ‘translated’, back to the West from Byzantium, and then from the Carolingians to the Ottonians, without the papacy having played any signiﬁcant part in the process.¹⁰¹ In the Defensor pacis he is more concerned with the claims which ‘approved histories’ revealed that popes had begun to assert from the time of Simplicius, rather than with the history of their manifestation in the conﬂicts between popes and emperors. As we have seen, he tried to show that these claims might initially have been based upon, even instigated by, some of the concessions made by Constantine: ‘At the beginning it was these privileges, and nothing else, which sustained the bishops of the Romans in their acquiring and retaining of coercive jurisdiction.’¹⁰² In other words, they were based solely upon this particular ‘human scripture’.¹⁰³ It was ‘the source and beginning from which certain bishops and priests have come to have coercive jurisdiction, as well as all secondary priestly institutions, called non-essential, and the power of distributing all ecclesiastical temporal goods; and also from which the Roman pope ascribes to himself the highest of such powers’.¹⁰⁴ But the popes gradually came to place more weight on another form of justiﬁcation. Marsilius offers no view on whether the donation was Simplicius’s only justiﬁcation: Martinus Polonus provides him with no conclusive evidence. But he does assert that, even before the time of Constantine: Some Roman bishops implied in certain letters or decrees that the priority, which we have shown to belong to them over others by election or by the ¹⁰⁰ DP II. xxv. 13. ¹⁰¹ See below, pp. 167–71, for fuller discussion. ¹⁰² DP II. i. 5. ¹⁰³ DP II. xxvi. 18; cf. II. xix. 4–5. ¹⁰⁴ DP II. xviii. 1, quoted and discussed above, p. 110.

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constitutions of principes, was owed individually to them by divine law, without the request or consent of the faithful human legislator, or of any collegium or individual, whatever their pre-eminence or authority.¹⁰⁵

The only possible pre-Constantinean example of such a ‘letter or decree’ mentioned in the book is the Epistola Clementis, although Marsilius does not specify whether he thinks it was forged before or after Constantine’s conversion.¹⁰⁶ After ‘the time of Constantine I . . . certain Roman bishops wrote letters declaring that this priority belonged to them now by virtue of divine law, now by concession of the principes’.¹⁰⁷ Justiﬁcation of papal claims in terms of divine law seems progressively to have replaced that in terms of the donation of Constantine: ‘later on . . . the Roman bishops . . . substituted [for the latter] a different universal title, plenitudo potestatis.’¹⁰⁸ This happened when the regnum of the Romans was thrown into sedition, and especially when the imperial see was vacant, for in these circumstances the ‘concession of principes’ no longer seemed adequate.¹⁰⁹ It is to this second type of justiﬁcation for papal claims that I now turn.

THE ORIGIN AND DEVELOPMENT OF PLENITUDO POTESTATIS Plenitudo potestatis, proclaimed in the ‘human scripture’ or writings of popes and their supporters, purported to be based on Scripture. Given Marsilius’s views on the proper ofﬁce of priests, as prescribed in the New or evangelical law recorded in Scripture, it is clear that no claims of the sort advanced on behalf of the bishop and church of Rome on the basis of the donation of Constantine could possibly be justiﬁed by reference to Scripture, rightly interpreted. Scripture did not sanction the prioritas attributed to the bishop and church of Rome in the ¹⁰⁵ DP II. xxii. 19: as demonstrated above, p. 104, such priority was conferred upon the bishop and church of Rome in the ‘primitive’ period prior to Constantine by quasi election, not by election, so Marsilius makes a slip here. He is more consistent in the preceding paragraph. ¹⁰⁶ DP II. xxviii. 4, discussed above, p. 97. ¹⁰⁷ DP II. xxii. 20. ¹⁰⁸ DP II. i. 5. ¹⁰⁹ DP II. xxii. 20.

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primitive church, prior to Constantine;¹¹⁰ nor, of course, did it sanction the role they later came to assume. According to Marsilius, ‘canonical writings’ comprised Scripture itself and its ‘necessary consequences’, together with ‘those interpretations or deﬁnitions of doubtful meanings of the holy Scriptures which have been made by the general council of the faithful or catholic Christians’.¹¹¹ Those scriptural passages which Marsilius considered did not require ‘mystical exposition’ should be interpreted in ‘their manifest literal sense’. As for passages which required ‘mystical exposition’, the views of ‘the saints’ would on the whole be followed, but only when they were in harmony with Scripture.¹¹² Those scriptural passages which were traditionally invoked in support of the claim to plenitudo potestatis had been misinterpreted by some of the ‘saints and doctors’. These erroneous interpretations were not in harmony with Scripture,¹¹³ but were, rather, ‘ﬁctitious and foreign’.¹¹⁴ They must, therefore, be rejected. So plenitudo potestatis could not be founded in Scripture, correctly understood, only in Scripture misinterpreted. This applies even to the sense in which the ‘title’, as Marsilius terms it, had ﬁrst been assumed by the ‘Roman pontiff ’—that of a ‘general pastoral cure of souls, extending to all the peoples and provinces in the world’.¹¹⁵ A fortiori it applies to the progressive transformation of this original meaning of the term, through a claim on the part of the bishop of Rome to be the source of all penitential power, into what eventually became a claim to the ‘pinnacle of secular power (fastigia secularium)’.¹¹⁶ This transformation happened in two phases. In the ﬁrst phase, the term was ‘presumptuously transformed’ until the bishop of Rome claimed to be able to absolve sinners from penalties which they were bound to suffer in the next world ‘on account of the demerits of their sins’.¹¹⁷ In the subsequent phase, it was distorted further on the basis of ‘the privileges and grants of principes’,¹¹⁸ the ﬁrst of which was, of course, the donation of Constantine. On this basis the term ultimately ¹¹⁰ DP II. xxii. 18. ¹¹³ DP II. xxviii. 6, 25. ¹¹⁶ DP II. xxiii. 6–11.

¹¹¹ DP II. xix. 1, 6; II. xxviii. 1. ¹¹⁴ DP II. i. 3. ¹¹⁷ DP II. xxiii. 6.

¹¹² DP II. xxviii. 1. ¹¹⁵ DP II. xxiii. 3, 5–6. ¹¹⁸ DP II. xxiii. 7.

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embodied the claim to universal temporal jurisdiction which was ‘the root and origin of the pestilence besetting the regnum Italicum’ in Marsilius’s own day.¹¹⁹ Despite their basis in the privileges and grants of rulers, the claims progressively incorporated in the term during this second phase of its redeﬁnition came to be justiﬁed by a misinterpretation of Scripture. Although scriptural justiﬁcation for this redeﬁnition was presented as if it replaced justiﬁcation by reference to imperial privileges—¹²⁰or ‘human writings’—in truth that justiﬁcation remained rooted in the terms of the donation. This was one of the many reasons why Marsilius characterized it as ‘sophistry’.¹²¹ If ‘certain Roman pontiffs’ deliberately ‘confused’ Scripture with ‘human writings . . . hoping through this mixing up to impart to their own decrees that authority which belongs only to the sacred canon’,¹²² it was only on the basis of such ‘confusion’ with a particular ‘human writing’—Constantine’s donation—that Scripture could be misinterpreted so as to support papal claims to issue decrees or ‘decretals’, in the sense of binding laws.¹²³ Marsilius suggests several reasons why the Roman bishops might have wished to make it appear that their plenitudo potestatis was grounded in Scripture. The wording of the donation was imprecise. It might have expired or been revoked subsequently ‘on account of their faults’.¹²⁴ ‘The weakness of their pretexts and the truth about the jurisdiction now wrongly assumed by them’ might have become apparent.¹²⁵ This ﬁnal suggestion begins to point to the ways in which papal plenitudo potestatis transformed the claims which had been made on the basis of the donation of Constantine as it subsumed them. The ‘force of that privilege or grant did not extend to the other governments (principatus) of the world nor to that of the Romans in all its provinces’.¹²⁶ It was territorially restricted. But plenitudo potestatis was an ‘all-embracing’ title, because, according to the ¹¹⁹ DP II. xxiii. 11. ¹²⁰ DP II. i. 5. ¹²¹ DP II. xxiii. 2. ¹²² DP II. xxvi. 18. ¹²³ DP II. xxiii. 13. ¹²⁴ Above, p. 115. ¹²⁵ DP I. xix. 9; II. i. 5. ¹²⁶ DP I. xix. 9. Here I follow Previté-Orton’s suggested reading (p. 105, n. 1), rather than that of Scholz (preferred by Gewirth), which makes no sense in the light of DP II. i. 5.

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interpretation of ‘later bishops of Rome’, it was the power ‘over all kings, principes, communities, collegia, and individual persons’ of which Christ disposed. Christ had granted this power ‘to St Peter and his successors in turn in the Roman episcopal see, as vicars of Christ’.¹²⁷ By interpreting the universal plenitudo potestatis in terms of Constantine’s grant to Sylvester, plenitudo potestatis could be used to assert a ‘universal coercive jurisdiction’ on the part of a pope. At an earlier stage of the argument we saw that Marsilius, in his De translatione imperii, twisted the Pseudo-Isidorian text of the donation to restrict the extent of Constantine’s grant of dominium over certain provinces to Rome and Italy alone.¹²⁸ It followed that when ‘pride and ambition’ led the Roman bishops to aim at ‘the seizure of coercive jurisdiction over all regna’, the ‘aforementioned privileges’ could not support such a claim. The bishops therefore ‘substituted for the aforesaid title another, universal one—plenitudo potestatis—in order to subject to themselves all principantes and all those living a civil life’.¹²⁹ According to Marsilius, the original donation had granted the bishop and church of Rome a coercive jurisdiction over all clerics in the world.¹³⁰ With the disintegration of the Roman Empire, ‘and especially when the imperial seat was vacant, the Roman bishops came to assert that this power was granted to them by divine law’¹³¹—that is, that it was included in their plenitudo potestatis. It was no longer deemed to have anything to do with an imperial concession. But what had begun as universal jurisdiction over clerics, not laymen, was gradually transformed into a claim to dominium over all the provinces of the world, and therefore coercive jurisdiction over all Christians, both lay and clerical. By suppressing the evidence in the text of the donation for Constantine’s having granted Sylvester imperial authority throughout the West, Marsilius was able to accentuate the difference between the territorially restricted claims allegedly made by reference to the donation and the universal ones embodied in the title of plenitudo potestatis. He was also able to subsume the claim to universal jurisdiction over clerics, justiﬁed by the text of the donation, into an ¹²⁷ DP I. xix. 9; II. xxvi. 18. ¹²⁸ DTI cap. 2, discussed above, p. 110. ¹²⁹ DP II. i. 5. ¹³⁰ DP II. xvi. 9; II. xi. 8. ¹³¹ DP II. xxii. 20.

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assertion of universal dominium which included jurisdiction over laymen too. In the primitive church the authority of bishops had initially been over all the faithful, but had later been increasingly restricted to clerics.¹³² Plenitudo potestatis enabled the jurisdictional claims of the Roman bishops, and the Roman bishops alone, to develop in the opposite direction once the Empire had become Christian. Thereby plenitudo potestatis ultimately came to encompass supreme secular dominium: The more modern Roman bishops . . . have declared in their epistles and decrees that supreme authority or coercive jurisdiction over all governments (principatus), peoples, and individual persons in the world is due to them by divine law, so that no principans can lawfully exercise this coercive jurisdiction—which they call the ‘temporal sword’—without or against their consent or dictate.¹³³

Marsilius never deﬁnes at what point in Christian history bishops of Rome could begin to be categorized as ‘more modern’. Clearly he recognized that by his own day the authority of the Roman emperor had ceased to be universal de facto, as it had been from the time when universal authority had ﬁrst been vested in Augustus de iure¹³⁴ until the time when internal strife, discord, and sedition had begun to undermine the Empire.¹³⁵ Nowadays ‘certain principes perhaps claim exemption from the princeps of the Romans’.¹³⁶ In Italy, many of the cities had come to do so. Not long after the Defensor pacis was written, this was expressed in Bartolus of Sassoferrato’s classic formulation of the people or city which ‘recognized no superior’ de facto, and was therefore princeps to itself.¹³⁷ But in Marsilius’s view it was also true of principes outside Italy.¹³⁸ It was the Roman bishops who had sought to ¹³² DP II. xv. 6, discussed above, p. 85. ¹³³ DP II. xxii. 20. ¹³⁴ Above, p. 73. ¹³⁵ DP II. xxii. 20; cf. I. i. 2. Marsilius fails to say anything in detail about the disintegration of the Roman Empire in Defensor Pacis. For discussion of De translatione imperii’s account of the secession of the eastern provinces during the reign of Heraclius, see below, p. 166. ¹³⁶ DP II. xxv. 17. ¹³⁷ Woolf, Bartolus, 155–60, 188–9; cf. Ryan, ‘Bartolus’, 65–89. ¹³⁸ Marsilius recognizes that there are regna which are not subject to the Roman principatus at DP II. xxvi. 1.

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resurrect and usurp the universal imperial jurisdiction which had originally been held by Augustus, and which Constantine had held as his successor. But they did so by invoking Scripture, not Constantine’s donation. Their attempts at usurpation were, according to Marsilius, particularly ﬂagrant when there was no emperor, because in such circumstances the pope claimed to exercise all imperial powers directly.¹³⁹ This was one reason why John XXII was attempting to prevent the election of Louis of Bavaria from taking effect and to prolong the vacancy in the Empire. But other rulers—like those who ‘perhaps claimed exemption from the princeps of the Romans’—should not allow themselves to be lulled into a false sense of security. The intended scope of the papal usurpations was not restricted to the regnum Italicum, which was all that Marsilius admitted had been granted to Sylvester in the donation of Constantine,¹⁴⁰ and to those other areas, like Germany, over which modern Roman principes had de facto control as well as de iure authority.¹⁴¹ The bishops of Rome were not as ‘explicit’ about rulers other than the (modern) one ‘called the emperor of the Romans’.¹⁴² But the title plenitudo potestatis embodied their reassertion of the de iure universal authority of the Empire in ‘ancient times’, of which Constantine had disposed: ‘in this way this bishop creeps up on the regna of the world, one by one, so that eventually all of them should be subjected to his principatus, an end for which he yearns unrelentingly.’¹⁴³ The results were clear in Boniface VIII’s Unam sanctam (1302), characterized by Marsilius as ‘of all imaginable falsehoods, the most prejudicial to all those who lead a civil life’.¹⁴⁴ Boniface had allegedly declared in ‘his written document, called a “decretal” . . . that all secular principatus should be subject in coercive jurisdiction to each Roman bishop, “of necessity of salvation” ’.¹⁴⁵ But according to Marsilius’s deliberate misreading of the text of Constantine’s ¹³⁹ DP II. xxvi. 8. ¹⁴⁰ Above, p. 110. ¹⁴¹ DP II. xxvi. 15, 19; II. xxv. 16. ¹⁴² DP I. xix. 8; cf. II. xxvi. 14. ¹⁴³ DP II. xxvi. 15; cf. I. xix. 12–13. ¹⁴⁴ DP II. xx. 8. ¹⁴⁵ DP II. xxi. 13. As is clear when Marsilius quotes the bull at I. xix. 10 and II. xx. 8, Unam sanctam did not say ‘all secular governments’, but ‘every human creature’. He elides the two deﬁnitions at II. xxi. 9.

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donation, no one could argue that this was what Constantine had originally conceded to Sylvester.¹⁴⁶ It was for this reason that Boniface’s recent reassertion of papal universalism had to be disguised with a perverse misinterpretation of Scripture. The donation of Constantine, in what Marsilius presented as its original form, provided no basis for it. It was in this way that plenitudo potestatis had been ‘presumptuously transformed’.¹⁴⁷ It had not replaced Constantine’s concessions as a justiﬁcation for papal claims; rather, it came to subsume and develop them. This process of transformation had been almost imperceptibly gradual, and had been slyly concealed by successive bishops of Rome.¹⁴⁸ In its ‘development hitherto’ plenitudo potestatis had been ‘used by the Roman bishops progressively for the worse, and is still being so used’.¹⁴⁹ In Marsilius’s own day its abuse had become ﬂagrant, even violent.¹⁵⁰ As the principal cause of discord in the present world, plenitudo potetstatis was the most important—indeed, the summation—of all those ‘falsehoods’ which ‘for a long time have been disseminated by certain priests or bishops and their supporters, and which have taken root in the souls of most simple Christian believers’. The deception had been so successful that eventually believers had become incapable of distinguishing truth from falsehood.¹⁵¹ This particular ‘falsehood and ﬁgment’ which had its ‘origin and incitement (origo et fomes)’ in the ‘avarice or cupidity’ and the ‘ambition or pride’ planted by the devil in the souls of certain Roman bishops, was thus gradually transplanted into the souls of all the faithful, ‘with more than a little cultivation and tending from that execrable opinion and assertion whereby the Roman bishop and his coterie or college (coetus sive collegium) of priests declare that Christ gave plenitudo potestatis to the Roman bishop, even if in the person of St Peter’.¹⁵² By analysing plenitudo potestatis historically, Marsilius had ‘torn off its disguise’¹⁵³ and demonstrated that it was nothing more than a ¹⁴⁶ ¹⁴⁸ ¹⁵⁰ ¹⁵²

Above, p. 111. ¹⁴⁷ DP II. xxiii. 6; cf. above, p. 111. DP II. xxiii. 11; I. xix. 11. ¹⁴⁹ DP II. xxvi. 1; cf. II. xxvi. 19. DP II. xxvi. 13; cf. II. xxiii. 13. ¹⁵¹ DP II. i. 1; cf. II. xxvi. 18. DP II. xxvi. 18. ¹⁵³ DP I. xix. 13.

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‘fantastic dream’.¹⁵⁴ Had he failed to do so, when the true causes of the devastation in contemporary Italy were obvious to him, it could ﬁttingly have been said of him ‘along with the Apostle, that “he hath denied the faith, and is worse than an inﬁdel” ’.¹⁵⁵ If he had remained silent, colluding in the papally inspired distortion of history, he would have been as reprehensible as a heretic. No wonder he had felt impelled to supplement Aristotle’s discussion of the causes of discord with an analysis of the origin and development of the one cause of which Aristotle had been unavoidably ignorant. Writing the Defensor pacis was, in Marsilius’s view, his Christian duty. According to Marsilius’s account, Constantine’s grant had been made to the bishop and church of Rome. It had attempted to give legal sanction to their joint, pre-existing prioritas. But, as should be clear from the discussion above, the term church, which ‘according to the ﬁrst imposition of the word and the intention of those who ﬁrst imposed it’ meant all the members, both lay and clerical,¹⁵⁶ was progressively restricted ‘among the moderns’ to the clerics, and in the case of the church of Rome to the college of priests, newly termed cardinals.¹⁵⁷ The substitution of plenitudo potestatis for the donation of Constantine meant that claims arising from it were henceforth made solely on behalf of the bishop of Rome, not of the bishop and cardinals jointly. According to the traditional papalist interpretation, this title had been conceded by Christ to St Peter, and therefore to the pope as St Peter’s successor, alone. The pope was in no way obliged to follow ‘the counsel of his brethren, called cardinals’ for ‘through his plenitudo potestatis he can, so he says, do precisely the opposite of what his cardinals advise in all things, if he so wills’.¹⁵⁸ In any case, as the college of cardinals became increasingly dominated by ‘lascivious youths ignorant of divine letters’,¹⁵⁹ it functioned as no more than an adjunct of the pope. The college was associated with popes in their ¹⁵⁴ DP II. x. 13. ¹⁵⁵ DP II. xxvi. 20, quoting 1 Tim. 5: 8. ¹⁵⁶ DP II. ii. 3; II. vi. 13. ¹⁵⁷ DP II. ii. 2. ¹⁵⁸ DP II. xxvi. 4. At this point Marsilius is discussing papal approval of imperial elections, but says that this is merely one example of the pope’s claim not to be bound by the counsel of the cardinals in any respect. ¹⁵⁹ DP II. xxiv. 9.

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career of rapine,¹⁶⁰ and in issuing decretals,¹⁶¹ including those like John XXII’s Cum inter nonnullos (12 November 1323) which, in Marsilius’s view, heretically sought to justify such seizure of temporalities by denying the truth of apostolic poverty.¹⁶² As in the case of Boniface VIII’s attempt to assert supreme temporal jurisdiction in Unam sanctam,¹⁶³ Marsilius professed ignorance as to whether the pope had acted alone or in conjunction with the cardinals. It made no difference: if the cardinals had acted too, they had done so solely on the basis of the pope’s plenitudo potestatis. If plenitudo potestatis could not be shared even by the college of cardinals, it could hardly be shared by other clerics. Nevertheless, it had perverted the whole church, because, on the basis of it, papal inﬂuence had gradually undermined the process of election to clerical ofﬁce which had been established in apostolic and ‘primitive’ times. First, lay believers were excluded from the procedure; and then, starting from all the clergy of a particular province, it was progressively restricted to the canons of the cathedral chapter—‘young men . . . who are ignorant of divine law’. The apostolic model Marsilius cites is that of the election of deacons, on the prescriptive force of which we have already seen him laying considerable emphasis.¹⁶⁴ But thus far he discusses the papally inspired perversion of electoral procedure solely in terms of the election of bishops. ‘Finally’ the procedure had been almost completely abolished, and the Roman bishops had ‘reserved immediately to themselves’ the power of collating not only to episcopal ofﬁces, but to almost every sort of ecclesiastical ofﬁce, and of distributing the temporalities or beneﬁces on account of these ofﬁces. Marsilius had in his sights the practices of papal reservations and provisions, which were avowedly founded on plenitudo potestatis, and were greatly developed under John XXII.¹⁶⁵ Even when the electoral procedure had been duly performed, the Roman bishops might declare it null ¹⁶⁰ DP II. xi. 4. ¹⁶¹ DP II. xxiii. 13; II. xxv. 18. ¹⁶² DP II. xx. 7; cf. II. xiii. 32; Extrav. Ioh. XXII., 14. ¹⁶³ DP II. xxi. 9. ¹⁶⁴ DP II. xvii. 10, discussed above, p. 88. ¹⁶⁵ C. Morris, The Papal Monarchy: The Western Church from 1050 to 1250 (Oxford, 1989), 547–9; W. Ullmann, A Short History of the Papacy in the Middle Ages, 2nd edn.

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and void, and ‘by their plenitudo potestatis’—which in this instance is nothing other than a cloak for corruption—substitute their own, entirely inappropriate candidates.¹⁶⁶ Marsilius gives two recent examples, one an appointment by Boniface VIII, the other by John XXII.¹⁶⁷ He does not mention that he had once been a beneﬁciary of the system himself, as John XXII acidly pointed out.¹⁶⁸ Even when the popes did not make the appointments themselves, those whom they had previously instituted would ‘open to the ignorant and the perverse in behaviour that simoniacal or otherwise perverse door to church ofﬁces and beneﬁces by which they themselves have entered’.¹⁶⁹ Thus does plenitudo potestatis, by deﬁnition restricted to the pope, spread its cancerous inﬂuence through the whole church: because of it, ‘the mystical body of the church is contaminated and close to corruption in its matter or principal members, especially (in a word) the prelates’.¹⁷⁰ So not only the bishops of Rome, but ‘almost all other priests in modern times practise in almost every instance the opposite, as it were, of that the observance of which, in accordance with evangelical doctrine, they preach to others’. They seek the temporalia, the secular principatus, and all the other things which Christ ‘and His true imitators the apostles spurned, and taught and commanded other men to spurn, most particularly those who ought to preach to others the gospel of contempt for worldly things’.¹⁷¹ In the early years of the Christian Empire bishops had sought grants from emperors, including judgement of secular acts, especially between clerics, and the administration of temporalities, although—in accordance with the prescriptive apostolic model—without any claim to dominium. But they had done so on behalf of the poor faithful, ‘desiring to secure the (London, 2003), 245–7; G. Barraclough, Papal Provisions (Oxford, 1935); J. E. Lynch, ‘Some Landmarks in the Development of Papal Reservations’, The Jurist, xxx (1970), 145–81. ¹⁶⁶ DP II. xxiv. 2; cf II. xxiv. 11. ¹⁶⁷ DP II. xxiv. 3–4. The papal substitutes were Isarn Morlane, papal nuncio in Denmark, made archbishop of Lund by papal provision in 1302; and Rigaud (Reginald) Asser, papal nuncio in England, made bishop of Winchester by the same procedure in 1320: DP, ed. Previté-Orton, p. 370, n. 1; ed. Quillet, p. 444, n. 7. ¹⁶⁸ MGH. Const. vi, pt. 1, no 277. ¹⁶⁹ DP II. xxiv. 10; for simony in the modern church see also II. xi. 4. ¹⁷⁰ DP II. xxiv. 11. ¹⁷¹ DP II. xi. 6.

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safety, increase, preservation, and sustenance of their ﬂock’, not their own advancement.¹⁷² To the extent that the faith of the legislator was established with the passage of time, the need for bishops to secure such grants diminished. In ‘communities of the faithful’ it was, for instance, no longer necessary for ministers of the gospel ‘to beg or do manual work’, because the legislator and private individuals had set aside certain revenues for their support.¹⁷³ ‘Modern clerics’ might appropriately have renounced the ‘beneﬁces and ofﬁces’ they had secured from emperors in ‘ancient times’, since they were now adequately defended by the ‘rulers (principantes)’. On the contrary, however, they had fought for temporal possessions ‘even with armed force, not merely in order to hold on to what they have, but to usurp all the rest’.¹⁷⁴ They were no longer satisﬁed with the administration of temporalities, but sought dominium over them. The priests of the early, post-Constantinean church could not have taken up arms, or ordered others to do so on their behalf; and they would not have had any desire to do either of these things. They had needed ‘special favours and privileges in order to live in peace and safety and to avoid being harassed by pettifoggers’. But in ‘modern times’—the beginning of which Marsilius has still failed to deﬁne—the relationship of priests with laymen ‘has been transformed into the opposite quality’.¹⁷⁵ The progressive perversion of the clergy in the Christianized Roman Empire was therefore rooted in the powers claimed by popes on the basis of the donation of Constantine, later subsumed and expanded in the title of plenitudo potestatis. The vicious greed for temporal possessions and ambition for secular rule which led successive popes to interpret plenitudo potestatis as justifying what was in fact a perversion of the apostolically ordained process of clerical election, also infected the clerics who were elected in this perverted way. It was bound to spread throughout the whole clerical hierarchy. Although other clerics could not, by deﬁnition, claim plenitudo potestatis for themselves, many of their claims necessarily mirrored those made by ¹⁷² DP II. xxix. 11. ¹⁷⁵ DP II. xxv. 5.

¹⁷³ DP II. xiv. 7.

¹⁷⁴ DP II. xxix. 11.

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the popes who had, according to Marsilius, in effect appointed them, since the popes had reserved to themselves the collation to all ecclesiastical ofﬁces. As the term church was gradually redeﬁned to mean the clerics alone, or even, ‘especially amongst the moderns . . . the ministers, priests, bishops, and deacons who minister in and preside over the metropolitan or principal church’¹⁷⁶—a usage which was to be particularly associated with ‘the Roman pope and his cardinals’—so the lay faithful were excluded from any part in the process of clerical election. Yet it was more unwise ‘nowadays’ than it would have been formerly to assume that priests were better able to judge the qualiﬁcations of candidates for ecclesiastical ofﬁce than the multitude of the citizens, of which they should form a part.¹⁷⁷ For the priesthood had been corrupted. The ‘ecclesiastical regimen’ became increasingly corrupt, because those who were ignorant of divine law were appointed for corrupt reasons, most notably greed for the temporalia of beneﬁces which are attached to ecclesiastical ofﬁces. It thus became even more necessary than it had been in the time of the early Christian emperors that laymen should be present at general councils. They could act as a counterbalance to the corrupted clerics, because their understanding of divine law had not been perverted in this way.¹⁷⁸ Yet just as laymen had been gradually excluded from the role they had played in the primitive and the post-Constantinean church in the election of priests, so they were no longer allowed to take part in the deﬁnition of the faith in councils. Hence Marsilius’s (implicit) refusal to recognize the papally summoned Lateran councils of the high middle ages as general councils of the church. He never mentions them. The consequence was that in ‘cloisters’ as in civic communities (civilitates) ‘there are many men who are more perfect in the merit of their lives and sacred doctrine, or more outstanding in political virtue, who nevertheless are not principes or prelates of the less perfect, but most often their subjects’.¹⁷⁹ Marsilius ¹⁷⁶ DP II. ii. 2. ¹⁷⁷ DP II. xvii. 14. ¹⁷⁸ DP II. xx. 5, 13. ¹⁷⁹ DP II. xxii. 13. Marsilius uses the term civilitas—in classical Latin, the science of government or politics—as a synonym for civitas at I. i. 3; I. i. 7; II. xxvi. 13, 19; III. iii; see DP, ed. Brett, p. xlii.

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does not pursue the potentially subversive suggestion that those who are outstanding in political virtue are subject to the less perfect, except, perhaps, in the case of subjection to temporal rule by bishops, most notably the bishops of Rome.¹⁸⁰ But he adds, portentously, that ‘in these times this frequently happens with priestly ofﬁces, through what plague I know not, or perhaps I do.’¹⁸¹ It is clear that his affected reticence is mere rhetorical artfulness, for his whole argument is an attempt to diagnose that ‘plague’, and to prescribe a remedy for it.¹⁸² To the extent that the church had become equated, in modern times, with its clerical ofﬁcers, or even with those who ‘minister in and preside over the metropolitan or principal church’, it was distinguished from its lay members. With Constantine’s conversion, the church and the human legislator had begun to be elided. But the legal basis for that process of elision—Constantine’s donation—provided the basis for the subsequent division between the now faithful human legislator, and the church, which came to mean the clergy. It will be recalled that Marsilius particularly associated this new meaning of the word church with the ‘Roman bishop and cardinals’. Prior to Constantine, church and human legislator had been distinct bodies. After his conversion, the progressive Christianization of the legislator took place in a way which divided the lay faithful, now equated with the legislator, from the church, in the new, modern sense of the word. Church and legislator were progressively distinguished, but the redeﬁnition of the former and the faith of the latter meant that the distinction was quite different from that which had obtained in the ‘primitive’, that is, the pre-Constantinean church. This new distinction manifested itself in a disproportionate increase in the size of the Christian priesthood, and of the clerical order more broadly deﬁned. Marsilius had established in the ﬁrst discourse that the principans must determine the persons, the quantity, and the quality of the priesthood, as it must other ‘parts’ of the civitas, ¹⁸⁰ For popes subjecting to themselves ‘a not inconsiderable part of the civil multitude, removing them from the power of the principantes’, see DP II. xxiii. 9; cf. II. xxv. 14, for their doing this with ‘the temporalia of provinces belonging to the Empire’. ¹⁸¹ DP II. xxii. 13. ¹⁸² For a similar device, see DP II. xxv. 7.

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like the military. Otherwise there would result an ‘insufﬁciency’ to the civitas of what it required through its other ofﬁces, and the politia would eventually be destroyed ‘through an immoderate excess of one part in relation to the others’. He quotes Aristotle’s Politics in support of this view: just as a body will be destroyed if its parts do not grow in due proportion, so will a politia undergo revolution. For ‘ “a civitas is similarly composed of many parts, increase in some of which is often unnoticed, like the multitude of the poor in democracies”, and’— adds Marsilius, fulﬁlling his self-imposed brief to adapt Aristotle’s analysis to the modern world—‘the priesthood in the law of the Christians’.¹⁸³ Initially, the Christian Roman emperors had ‘established laws ﬁxing the number of priests in each province, and regulating their temporal and carnal goods . . . which had been given to them by Constantine and other Roman principes, as well as by many private individuals’. They had also established laws dealing with the civil or contentious acts of priests, ‘although these laws were moderated through special favours granted by grace of the human legislator’. The laws were accordingly less rigorous for priests than for laymen, because of the reverence due to the priestly dignity and the high moral stature of priests at that time.¹⁸⁴ I have already examined how it came about that the concessions of Constantine and his successors opened the way to the usurpation of secular jurisdiction and dominium by priests, most particularly by the bishops of Rome. It is clear from this passage that the leniency of early Christian emperors towards the clergy also played a part. It was exploited by later popes with increasing ruthlessness. Plenitudo potestatis justiﬁed the pope’s claim to be exempt from the coercive judgement of principes, to be himself such a judge ‘without the authorization of the human legislator’, and to ‘separate all ministers of temples, who are called by the common name “clerics”, from the jurisdiction of principes’. Modern popes had subjected all clerics to themselves; it followed, in view of the burgeoning numbers of clergy, that the jurisdiction of secular principantes was ‘almost completely ¹⁸³ DP I. xv. 10, quoting Politics v, 3 1303a 1–3; cf. William of Moerbeke, Politicorum libri octo, 507. ¹⁸⁴ DP II. xxv. 5; cf. II. xvii. 17, for Justinian’s legislation.

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annulled’.¹⁸⁵ Because they no longer had effective jurisdiction over the priesthood, they had lost control not only over the civil acts and temporal possessions of priests, but also over the number of clerics in any particular province. With the papally inspired subversion of the original process of clerical election, the legislator could no longer prescribe the quantity or quality of clerics, just when it was becoming qualiﬁed to do so by virtue of its Christian faith. The disproportionate growth in the clergy was one consequence of the legislator’s loss of jurisdiction over the clergy—of the church, in the new sense of the word, becoming a separate estate. The legislator’s jurisdiction was forced into retreat as the clergy, or to be more precise, the bishops of Rome gradually developed a body of laws distinct from it. Starting from the claim that the bishop of Rome alone could absolve sinners and exempt them from the penalties due for their sins for the status of the future world,¹⁸⁶ the popes had proceeded—‘supported by the privileges and concessions of principes’— to make certain laws over clerics regulating ecclesiastical ritual, which were, from the beginning, called decreta. They then persuaded laymen voluntarily to accept ‘ordinances’ in the form of exhortations to fast. When these had become established custom, ‘the Roman bishops began to proclaim them in the form of commands, and thus ventured, without leave from the human legislator, to frighten their transgressors with vocal threats of anathematization or excommunication’.¹⁸⁷ ‘Consequently the Roman bishops’ desire for domination (appetitus dominandi) grew stronger’, and ‘together with their coterie (coetus) of clerics they had the presumption to issue certain oligarchic edicts or ordinances concerning civil acts’.¹⁸⁸ These ‘edicts or ordinances’ were termed decretales—rather than decreta—by the Roman pontiffs. They were intended to replace those decrees of the Roman principes which had formerly dealt with such acts by clerics.¹⁸⁹ But the popes went further still, exploiting the greater moderation of the laws which had regulated the clergy in the early Christian Empire. They declared that ‘they and the clerical order ¹⁸⁵ DP II. viii. 9. ¹⁸⁸ DP II. xxiii. 9.

¹⁸⁶ DP II. xxiii. 6. ¹⁸⁹ DP II. ii. 7.

¹⁸⁷ DP II. xxiii. 7–8.

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or ofﬁce . . . were exempt from public burdens’. By incorporating any laymen they chose into the clerical order, they exempted them too from public burdens.¹⁹⁰ Marsilius gives as examples the Frati Gaudenti, Beguins, Knights Templar, Hospitallers, and the canons or knights of Altopascio.¹⁹¹ They thus subjected to themselves ‘a not inconsiderable part of the civil multitude’, thereby removing them from the ‘power of rulers (principantes)’.¹⁹² As more and more laymen secured for themselves in this way the privileges ordained for the clerical order in the decretals, the power of rulers would be rendered increasingly ineffective. Moreover, the number of those bearing civil burdens would be reduced ‘almost to nothing; which is the gravest inconvenience, and corruptive of the politia’.¹⁹³ Desiring to reduce the power of rulers still further, the Roman bishops issued edicts anathematizing anyone who inﬂicted personal injury on those ‘enrolled in the college of clerics’, and they excommunicated the culprits, demanding, in addition, that they be punished in accordance with human law too.¹⁹⁴ The speciﬁc ‘oligarchic edicts’ which Marsilius had in mind, to judge from his descriptions, were all recent decretals, incorporated in the Liber extra, the Liber sextus and the Constitutiones Clementis.¹⁹⁵ These edicts were ‘oligarchic’ in the Aristotelian sense of the word, for they were created by one group in its own interest, rather than by the whole human legislator in the common interest.¹⁹⁶ They served to swell the already disproportionate size of this oligarchy yet further, by tempting laymen into the clerical order with the prospect of material beneﬁts, ‘for everyone is prone to pursue his own advantage and to ﬂee what is to his disadvantage’.¹⁹⁷ Corrupting greed was therefore the motive which enlarged this quasi-lay element in the ‘college of clerics’, just as the ‘college’ had become the principal determinant in the election of priests, for clerical electors and candidates alike, in the modern church. The popes avoided calling these ‘edicts’ leges, because for a ¹⁹⁰ ¹⁹³ ¹⁹⁵ ¹⁹⁶

DP II. xxiii. 9. ¹⁹¹ DP II. viii. 9. ¹⁹² DP II. xxiii. 9. DP II. viii. 9. ¹⁹⁴ DP II. xxiii. 9. DP, ed. Previté-Orton, p. 365, n. 2; ed. Scholz, p. 448, n. 1. DP I. viii. 2–3; I. xiii. 5. ¹⁹⁷ DP II. viii. 9.

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long time they feared resistance on the part of the human legislator, if it should become obvious that the edicts were intended to be binding on men for the status of the present world, like laws passed by the legislator. They therefore termed them ‘decretals’ or ‘canonical rights (iura canonica)’, in order to deceive the faithful into respecting them.¹⁹⁸ Although the ‘decretals’ might initially have replaced those human laws concerned with the civil acts of clerics alone, they were clearly not restricted in scope to the clerical order, however broadly deﬁned. They were deemed by popes to bind all Christians in their relations with the church, in this modern sense of the word. The ‘oligarchic edicts’ therefore extended their inﬂuence far beyond the tumescent clerical oligarchy. They constituted high treason (crimen laesae maiestatis) against principantes and legislators, for by making laws distinct from the universitas civium, and decreeing that all clerics are exempt from the civil laws, the popes have ‘brought on civil schism and a plurality of supreme principantes’.¹⁹⁹ By citing laymen to appear before clerical judges for infringements of these laws, they ‘completely destroy’ the jurisdiction of principantes,²⁰⁰ for they assert jurisdiction over the universitas civium. This destruction is the most recent, and most extreme, manifestation of plenitudo potestatis,²⁰¹ leading ultimately to the ‘great insanity’ of the claims embodied in Unam sanctam.²⁰² It is ‘the singular cause, quite hidden in its origin, of civil strife or discord—the cause which it has been our intention since the very outset to reveal’.²⁰³ ¹⁹⁸ ²⁰⁰ ²⁰² ²⁰³

DP II. xxiii. 13. ¹⁹⁹ DP II. xxiii. 11, 13; II. xxviii. 29; II. viii. 9. DP II. xxvi. 19. ²⁰¹ DP II. xxiii. 13. DP II. xxv. 15; cf. above, p. 134, and below, pp. 173–4. DP II. xxvi. 19; cf. II. xxiii. 11; I. xix. 3–4, 12.

4 Christian Providential History: A Dialectic of Perfection and Perversion The history of the church—in the modern sense of the term—in the Christian Roman Empire is thus a history of gradual, papally inspired perversion. Marsilius’s views on the reasons for this, and the crucial role played by the donation of Constantine in seeding the process, should now be clear. Greed for temporal possessions and ambition for secular dominium meant that modern priests were, in this respect, the antithesis of that example of poverty which Christ and his apostles had set: ‘This condition, as the status of perfection, Christ taught those persons to choose (eligere) who, having duly observed the other commands and counsels, wish to be His closest disciples and imitators, and especially His successors in the ofﬁce which He had come in to the world to exercise.’¹ They should themselves set the example which Christ Himself had set, if they were not to contradict the teaching of the gospel. ‘The status of poverty and contempt for the world is that which beﬁts every perfectus, especially a disciple and successor of Christ in the pastoral ofﬁce.’² This mode of ‘meritorious poverty’—which ‘renounces . . . all acquired legal dominium, both private and in common, or the power to claim and to prohibit another from temporal things . . . before a coercive judge’—is termed ‘supreme poverty’ by Marsilius. It is meritorious because it involves a voluntary acceptance of the sorrows of this world.³ It enables one who ¹ DP II. xi. 2.

² DP II. xi. 3.

³ DP II. xiii. 23–5.

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has taken such a vow to observe ‘the commands and counsels of Christ . . . to the highest degree’.⁴ It renders him immune to most of the temptations of this world.⁵ Like the person who willingly undertakes this status, it is called ‘perfect’.⁶ Christ and the apostles provided the standard of ‘evangelical perfection’:⁷ when weighed against it, modern clerics were found gravely wanting. It was the antithesis of what John XXII was teaching in his attacks on the Franciscans, which Marsilius refutes at such length. The history of the church—in the modern sense of the clerical order—since Constantine’s conversion had been, then, the reverse of a process of perfection. It had been a process of corruption and degeneration, in which the papacy had been the catalyst. Although no perfectus could have ‘acquired legal dominium’ in the sense deﬁned by Marsilius, he could, indeed he must, secure the immediate needs of bare subsistence, as Christ had done. Otherwise he would commit a mortal sin by knowingly starving himself to death.⁸ He was obliged to set aside or ‘save’ any surplus from such ‘lawful daily acquisitions’, and to distribute it to the poor. If certain contemporary clerical communitates of monks and canons—which in any case were instances of those ‘collegia of persons which have dominium of temporalia in common’⁹—did likewise, they did so ‘for certain speciﬁc persons only’, whereas a perfectus did so for any of the poor. For this reason, such a communitas ‘is not a perfect communitas; for the perfect communitas, like that of Christ and His apostles, extends to all the faithful’. Indeed it would be all the more meritorious, and therefore perfect, if it extended to inﬁdels too.¹⁰ Christ and the apostles were perfect, because they practised supreme meritorious poverty, and together they formed a perfect community, because that community was then coterminous with the faithful. Marsilius seems to have shared the common Franciscan view that Christ and the apostles had re-created the natural life of the state of innocence, ⁴ DP II. xiii. 26. ⁵ DP II. xiii. 23. ⁶ DP II. xiii. 22. ⁷ DP II. xiii. 22; for Christ’s ‘supreme species or mode of meritorious poverty’, see II. xiii. 33. ⁸ DP II. xiii. 22–3; for Christ’s example, see II. xiii. 34–5. ⁹ DP II. xiii. 25. ¹⁰ DP II. xiii. 28.

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prior to the Fall.¹¹ All priests should embrace it, but on the contrary they have, under the pernicious inﬂuence of the papacy, increasingly done the opposite. As other commentators have pointed out, Marsilius thus appears to contradict his position in the ﬁrst discourse, where he parrots Aristotle to the effect that the civitas is ‘ “the perfect communitas having the full limit of self-sufﬁciency, which came into existence for the sake of living, but exists for the sake of living well” ’.¹² He thereby recognized the importance of the satisfaction of material needs in the formation of a perfect community, a position deemed irreconcilable with his characterization of the perfect poverty of the community of Christ and the apostles. Although his analysis of the process of human perfection in history does create a fundamental paradox in his argument, as we shall see, it does not do so in this respect. For Marsilius recognized that Christ—and following Him the apostles—‘lawfully or rightfully had temporalia as His own even while observing supreme poverty, and wanted them; and it was ﬁtting that He should want them’. These temporalia were the necessary minimum for subsistence, a precondition for living at all.¹³ Marsilius does not investigate Aristotle’s view of the necessary minimum for material self-sufﬁciency. It would certainly be greater than that compatible with the apostolic life of supreme poverty. Nor, of course, does he apply his strictures on apostolic poverty to laymen as well as clerics, despite asserting that the status of poverty beﬁts ‘every perfectus’.¹⁴ To have done so would have been to highlight the incompatibility of two different deﬁnitions of perfection which he wishes to elide. But the communitas of Christ and the apostles bore witness to a different standard of material self-sufﬁciency; it did not utterly refuse to satisfy any material need. The distinction between these two deﬁnitions of perfection in a communitas lies, then, partly in this difference of standard, and the ¹¹ See, e.g. Michael of Cesena’s Appelatio in forma maiori, in Baluze, Miscellanea, iii. 246–303, at 249, quoted in William of Ockham, On the Power of Popes and Emperors, ed. Brett, 17, n. 27; Miethke, Ockhams Weg, 467. ¹² DP I. iv. 1, quoting Politics i. 2, 1252b 27–30; Gewirth, Marsilius, 80–1; DP, ed. Quillet, p. 308, n. 57; DP, ed. Brett, pp. xix–xx; cf. above, p. 61. ¹³ DP II. xiii. 34. ¹⁴ DP II. xi. 3.

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apostolic example does not contradict Aristotle’s analysis, but begins to apply it in a Christian context. More importantly, the distinction lies in the fact that the communitas of Christ and the apostles had not been a civitas. It had existed long before the Christianization of the human legislator. Marsilius emphasizes that Aristotle’s formulation—‘came into existence for the sake of living, but exists for the sake of living well’—signiﬁes the ‘perfect ﬁnal cause’ of the civitas. The satisfaction of material needs is only one aspect of the ‘end of the civitas’,¹⁵ a precondition for living well: ‘having leisure for those liberal functions in which are exercised the virtues of both the practical and the theoretic soul’.¹⁶ While Aristotle was a peerless guide to the ‘temporal or earthly mode’ of ‘living and living well which are appropriate to men’, he was unavoidably deﬁcient when it came to ‘the eternal or heavenly mode’, given the preChristian context in which he wrote.¹⁷ Indeed, it was a particular aspect of that deﬁciency which, according to Marsilius, his book was intended to remedy. Marsilius states clearly that besides catering for the necessities of the present life, ‘there is something else which men associated in a civil community (communicantes civiliter) need for the status of the future world promised to the human race through God’s supernatural revelation, and which is useful also for the status of the present life. This is the worship and honouring of God.’¹⁸ Since only Christians have a correct understanding of the future world,¹⁹ since a truly ‘perfect’ community must cater for men’s needs for the status of the future world, and since satisfaction of those needs is also useful for the status of the present life, only a Christian community could be truly perfect. Conversely, because the communitas of Christ and the apostles was by deﬁnition not a civitas, it necessarily failed to secure many of men’s temporal needs, and was therefore not ‘perfect’ in this crucial respect. Aristotle’s civitas and the communitas of Christ and the apostles presented two different models of perfection. Far from being irreconcilable, it was when they were combined in the faithful human legislator that a new stage in the providentially ¹⁵ DP I. iv. 2. ¹⁶ DP I. iv. 1. ¹⁹ DP I. v. 14; I. x. 3; II. viii. 4.

¹⁷ DP I. iv. 3.

¹⁸ DP I. iv. 4.

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ordained process of human perfection could begin. The New Law was ‘quite sufﬁcient and perfect’ with respect to ‘those things which are necessary to men for the attainment of eternal salvation and the avoidance of misery’. It was not made to settle ‘litigious civil affairs for the end which men licitly want in worldly affairs’; to describe it as ‘imperfect’ on that account would be akin to criticizing it ‘because it does not enable us to heal bodily ills or measure distances or sail the ocean’. Only God is ‘absolutely perfect (simpliciter est perfecta)’.²⁰ The New Law is perfect with respect to its ordained purpose. Only by meritorious obedience to it can men regain, through the grace reintroduced into the world by Christ, that perfection which Adam had forfeited.²¹ As we have seen, Marsilius considered that when Christ framed the New Law, He providentially took into account all existing and future human laws.²² The purpose of human law is to secure the tranquillity or peace which is a necessary precondition for ‘living and living well’ in a political community. The process of its perfection has been by no means smooth or straightforward.²³ That perfection cannot be equated with meritoriousness, as perfection in the New Law can. But human law can best fulﬁl its purpose, or attain its end, when its perfection is most congruent with that of the New Law, to which men are providentially ordered. Such a congruence is most effectively achieved when church and human legislator are one and the same universitas. So true human perfection became possible only when the community embraced all the faithful, as that of Christ and the apostles had done, and when the community of which all the faithful were members was a civitas, which that original Christian community had not been. For it could only be in a faithful human legislator that the Christian priesthood might perform the function proper to priests within a civitas, meeting the needs of the faithful citizens for the status of the future world, correctly understood, which are useful also for the status of this world. They could do so only while the priesthood as a ‘part’ of the legislator was preserved in its due proportion to the whole. This was precisely ²⁰ DP II. ix. 13. ²² DP II. ix. 9; cf. above, p. 59.

²¹ DP I. vi. 4, 6; cf. above, p. 53. ²³ DP I. xi. 3, discussed above, p. 65.

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what the progressive perversion of its proper role had undermined. It is perhaps for this reason that Marsilius fails to consider the implications of the fact that perfection of the priesthood would take a quite different form from the perfection of the laity, respectively apostolic and Aristotelian. And this is the point at which the (unacknowledged) paradox at the heart of Marsilius’s argument about the historical development, or perfection, of the faithful human legislator, foreshadowed in the two different modes of perfection, becomes obvious. The history of the perfection, or Christianization, of the human legislator, or Roman Empire, was a history of gradual perversion in the Christian priesthood, for reasons already explained. That perversion affected only the secondary or accidental priestly ofﬁce, which was of human origin.²⁴ It could not touch the essential priestly ofﬁce because that was a ‘merit or perfection’ administered on each new priest directly by Christ, and signiﬁed by the sacramental act of laying on of hands.²⁵ Marsilius considers the Investiture Contest of the eleventh and early twelfth centuries at some length, as a particularly heinous instance of papal depravity. But however much it had accentuated the whole clerical order’s descent into depravity, he never seeks to argue that sacraments administered by morally unworthy priests were or are invalid. On the contrary, he holds that if such priests should for any reason refuse to administer the sacraments, ‘the legislator or principans by its authority . . . in perfect communities of the faithful’ should force them to do so, ‘lest by their perversity any believer should incur the danger of eternal death’.²⁶ However vicious the priest, his potestas ordinis had been conferred upon him immediately by Christ,²⁷ and his ministrations were necessary, if outward, signs of the transmission of divine grace to individual believers.²⁸ From its inception, potestas ordinis was therefore timeless. It had in no way been altered by subsequent developments. Christ remained its ²⁴ DP II. xvii. 5. ²⁵ DP II. xvi. 13. ²⁶ DP II. xvii. 15. Marsilius has in mind John XXII’s use of the weapons of interdict and excommunication. ²⁷ DP II. xv. 2. ²⁸ DP II. xvii. 12, 15.

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efﬁcient cause in the largely perverted church of Marsilius’s own day, just as He had been when He had ﬁrst conferred it on His apostles. But in other respects the Christian priesthood had been progressively corrupted pari passu with the perfection of the legislator. The model of priestly perfection which Marsilius presents purports to date from a time when Christian priests could not have formed the pars sacerdotalis of the legislator, and when the legislator of which they were not part was, according to his own deﬁnition, imperfect. He advocates the resurrection of a pristine priesthood from a time when the legislator was inﬁdel, and outlawed the faith. With the conversion of the citizens of Rome, and the progressive elision of universitas ﬁdelium with universitas civium, the clergy, increasingly termed the church, became less and less suited to their new role as pars sacerdotalis—the role which they should play in a perfect, faithful human legislator. Indeed, as we have seen, their perversion had in effect made them distinct from the legislator. The ﬂaw in the process of perfection gradually opened up a ﬁssure between church, in the modern sense of the clergy, and faithful human legislator. This ﬁssure was quite different from, and turned out to be more dangerous to the faith than, that which had existed when the legislator had been inﬁdel. It was a consequence of the way in which the human legislator had become faithful, by contrast with William of Ockham’s preservation of the distinction between the church and the ‘principate of the Gentiles’ into the Christian era.²⁹ This is the paradox at the heart of Marsilius’s analysis of providential history. The Defensor pacis is not merely an historical analysis of the roots of present-day problems. It is also a rather unwieldy clarion call.³⁰ Having exposed the ‘ﬁctions and falsehoods’ or ‘sophistries’ which had distorted modern men’s perceptions of the ‘true beginnings’ of the church, Marsilius seeks a restoration, by force of arms if necessary, of the original, ‘perfect’ priesthood of the early church. This perfect priesthood would embrace the life of apostolic poverty espoused by the Franciscans, in that respect restoring prelapsarian purity. It would then take its proper place as a part of the faithful human legislator. ²⁹ Ockham, On the Power of Emperors and Popes, ed. Brett, 48.

³⁰ DP I. xix. 13.

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He considers that there is only one way of doing so: by destroying the ‘pernicious pestilence’³¹ emanating from the modern Roman curia, that ‘horrible house of hagglers and den of thieves’, which ‘is a place “without any order, and where the light is as darkness” ’.³² For the papal curia is the source and principal agent of perversion. He professes himself willing to ‘drive away this pestilence from my brothers, the Christian faithful’, not only by teaching, but also ‘by external action, insofar as I am able’.³³ He was ready to take up his sword after he had laid down his pen. This may not have been just windy braggadocio. The ﬁrst poetic letter to him from his friend the historian Albertino Mussato suggests, if the allusion may be taken literally, that he had some military experience, or was at least capable of adopting soldierly disguise.³⁴ If the letter is dated c.1312, this had probably been in the service of Henry VII.³⁵ If it is dated later, as seems more likely, it could refer to his activities in the Ghibelline cause in 1319.³⁶ It has even been suggested that it could refer to his ﬂight to the court of Louis of Bavaria in 1326, shortly before the authorship of the Defensor pacis became publicly known.³⁷ Whether or not he enlisted in Louis’s service in a military capacity, it was now to Louis that he looked to restore peace or tranquillity by taking ‘external action’ against the papacy. This was what Marsilius and John of Jandun had allegedly explained to Louis in person on their arrival in Nuremberg: ‘The error which is menacing the church of God has made us seek exile. Unable to bear it any longer with a clear conscience, we have ﬂed to you, for to you the Empire is due by right. It therefore pertains to you to correct error, and to restore wrong to its proper state.’³⁸ At the beginning of the Defensor pacis, Marsilius claimed to have written ‘the sentences which follow’ in order to assist Louis in the task.³⁹ Now he and John enlisted in the imperial cause in a more active, if not a military, capacity.⁴⁰ ³¹ ³³ ³⁵ ³⁷ ³⁸ ⁴⁰

DP I. xix. 13. ³² DP II. xxiv. 16; cf. Matt. 21: 12–13, Job 10: 22. DP I. xix. 13. ³⁴ Ep. xii, ed. Pincin, Marsilio, 37. Brampton, ‘Life’, 504. ³⁶ Piaia, ‘Shadow of Antenor’, 201. DP, ed. Previté-Orton, p. xi. Continuation to Chronique de Guillaume de Nangis, ii. 75. ³⁹ DP I. i. 6. Brampton, ‘Life’, 508–15.

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Betraying the inﬂuence of the Spiritual Franciscans on him, Marsilius presents Louis in the Defensor pacis in the apocalyptic terms of the prophecies of the Book of Daniel: Louis is ‘the stone cut . . . without hands’ which will fall on and destroy the monstrous statue of Nebuchadnezzar’s prophetic dreams. That the statue could now be identiﬁed with the modern Roman curia had been obvious to Marsilius when he had himself visited Avignon and seen the place ‘with my own eyes’.⁴¹ Louis was the ‘king elected by the universitas hominum whom God will raise up through His grace, conferring power upon him, and whose kingdom will not be surrendered to anyone else’. In other words, God’s providence was at work in the world, mediated through the decisions of the electoral college of the Empire. From the alleged time of its foundation in 1004,⁴² elections had had force from the valentior pars of those having the right to elect,⁴³ who were given their authority by the ‘supreme human legislator of the Roman Empire’.⁴⁴ Through this mechanism, Louis was the chosen agent of divine providence. He was destined to destroy ‘this terrible, horrible, monstrous statue . . . more by the virtue or grace of the Trinity than by any deed or power of the hands of men’. His ﬁrst step would be to crush the feet ‘which improperly support it’ by unmasking the sophistry of the papal claims. He would refute them ‘by human demonstrations, and demolish . . . them by the truths of Holy Scripture’—a job which divine grace had already largely done for him through Marsilius’s pen, in (respectively) the ﬁrst and second discourses of the Defensor pacis.⁴⁵ Louis would then proceed to deal with all the ‘vices and excesses’ which rested on those feet of clay. John XXII’s attempt to keep the imperial ofﬁce vacant, and thereby to usurp imperial power, marked such an extreme in the expansion of papal claims that it had precipitated a cataclysm. The pope was forcing all those ‘principes, collegia, communities, and individuals subject to the Roman Empire’ to recognize his ultimate civil jurisdiction over ⁴¹ DP II. xxiv. 17; cf. Dan. 2: 34–5. The point about the inﬂuence of the mystical theories of Franciscans like Ubertino da Casale is made by DP, ed. Previté-Orton, p. 380, n. 3; ed. Scholz, p. 466, n. 1. ⁴² DTI cap. 11, discussed below, p. 176. ⁴³ DP II. xxvi. 5. ⁴⁴ DP II. xxx. 8. ⁴⁵ DP II. xxiv. 17.

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them, on pain of excommunication, interdict, condemnation for heresy, and conﬁscation of their temporal possessions. He was, in other words, seeking to enforce the claim asserted by Boniface VIII’s Unam sanctam.⁴⁶ Against those who refused to comply, he also proclaimed violent attacks in the form of crusades, and affected to absolve their subjects from the feudal oaths which they had taken or were to take.⁴⁷ In truth, it was the ‘so-called Roman pope’⁴⁸ who was the heretic,⁴⁹ not Louis. To comply with the pope’s teachings was ‘to allow the root of all principatus to be cut up, and the bond (vinculum) and nexus of every civil community (civilitas) or kingdom to be destroyed’.⁵⁰ The opposed processes of perfection of the faithful human legislator and degeneration of the papacy (causing in turn degeneration of much of the clerical order) had now reached a point where the consequent plurality of supreme governments was creating a situation analogous to the fall of the Roman Empire in the West.⁵¹ At present the visible effects were largely conﬁned to Italy, but the infection had already spread to the rest of Christendom,⁵² which it would rapidly undermine in turn if not checked. It had taken almost a millenium for papal distortions to reach this stage, but now that they had done so, ‘what is so contrary to nature, to human and divine law, cannot long endure’. Apocalyptically, Marsilius was certain that it would not do so. The cause he identiﬁes is very different, but in this prophetic mode he is again closer to the likes of Engelbert of Admont than is generally recognized. Engelbert also foresaw an imminent second fall of the Roman Empire, in which the constituent kingdoms would split away, the churches would defect from the Roman church, and the faithful would abandon the faith.⁵³ The advent of Antichrist would soon follow.⁵⁴ For Marsilius too a second fall of the Roman Empire, in his ⁴⁶ ⁴⁸ ⁵⁰ ⁵¹ ⁵³ ⁵⁴

Above, p. 134. ⁴⁷ DP II. xxvi. 8; for the crusades, see II. xxvi. 16. DP II. xxvi. 17. ⁴⁹ DP II. xxvi. 13. DP II. xxvi. 13; for Marsilius’s use of civilitas, see above, p. 140, n. 179. DP I. i. 2; cf. II. xxvi. 19. ⁵² DP II. xxvi. 19. De ortu imperii Romani, caps. xxii–xxiii, pp. 771–2. De ortu, cap. xxi, p. 770; cf. cap. xxiv, pp. 772–3.

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case resulting from papal usurpation of the functions of the emperor, would be far more catastrophic than the ﬁrst. It would be tantamount to the destruction of the human legislator. The means by which the papacy sought to effect that usurpation would entail the damnation of all those who ‘believe their words and who carry them out in practice’. These doomed men would be led into ‘manifest perjury, then into ﬂagrant treachery (proditio) and injustice, and consequently into rapine, homicide, and all kinds of crime, wherein they die unrepentant, misled by this most holy father and his ministers’. Their ‘crass ignorance’ would be no excuse before God, for reason and conscience should reveal to them the viciousness of ‘the cause which the Roman bishop pretends against the pious prince Louis, and against any other prince in similar circumstances . . .’. Christian subjects were obliged by the New or evangelical law to obey even inﬁdel lords (domini), but not when the commands of those lords were contrary to divine law. Then they were bound to disobey. The character of the pope’s commands meant that he was, as a heretic, worse than an inﬁdel, and that he was acting as a (secular) dominus. His commands were manifestly contrary to divine law, and should not be obeyed. Indeed, they should be resisted, for the pope’s acting as dominus was itself a breach of divine law. If they were obeyed, the papacy’s activities would deprive ‘all men who lead a civil life’ not only of ‘the sufﬁcient life in the present world (saeculum)’, but also, ﬁnally, would lead ‘those who subscribe to his doctrines straight to the eternal destruction of their souls’.⁵⁵ If this happened, the perfection of man in both temporal and spiritual terms would be aborted, and the saving work of divine providence in human history, which Marsilius believed God had initiated in response to the Fall,⁵⁶ would be thwarted. There would turn out to be no economy of salvation. This, for Marsilius, as for any faithful Christian, was inconceivable, because it was totally at odds with his fundamental, conventional assumption that human history was divinely orchestrated. Hence his certainty that Louis of Bavaria was the chosen agent of divine grace, of God’s providence, ⁵⁵ DP II. xxvi. 13.

⁵⁶ Above, p. 52.

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through whom the papally inspired abomination would at last be ‘wiped out’.⁵⁷ Thereby the most signiﬁcant remaining obstacle to the perfection of man, in both temporal and spiritual terms, would be removed. The progressive perversion of what had turned out to be the terrible mistake made by Constantine would at last be corrected by his current successor, Louis. The ﬂaw which Constantine’s donation had insinuated into the process of human perfection would at last be excised. With the resolution of the contradiction inherent in the process whereby the human legislator had become Christianized, the way would lie clear for that reversal of the effects of the Fall which God had envisaged when He had set human history in train. Without Constantine’s fatal (albeit, well-intentioned) mistake, the devil would not have been able, through the burgeoning inﬂuence of the bishops of Rome over the Christianized Empire, to afford so much scope to human sinful desires that an apocalyptic crisis became inevitable.⁵⁸ In the extravagant peroration which concludes Marsilius’s treatment of recent events in the second discourse, the pope is elided with ‘ “that great dragon, that old serpent” who is deservedly called “the devil and Satan” ’ in the Book of Revelation.⁵⁹ It was as if sin itself had been perfected, through the agency of the papacy, in order to destroy it. This was why Constantine’s terrible mistake had been providentially ordained. It had been necessary, if fallen man was ultimately to be saved. For Marsilius, the resulting apocalyptic crisis could have only one outcome: the reversal of the second fall of the Roman Empire and, ultimately, the wiping out of the effects of original sin. In other words, Louis’s victory in his conﬂict with John XXII—which was providentially inevitable—would mean that man could at last be perfected, in both temporal and spiritual terms. It would mark the apotheosis of human history and, by implication, herald the Last Judgement. In this respect, as in so much else, Marsilius was heavily inﬂuenced by Franciscanism. But unlike contemporary Franciscan theorists—for ⁵⁷ DP II. xxiv. 17.

⁵⁸ Above, p. 135.

⁵⁹ DP II. xxvi. 19.

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instance, Michael of Cesena,⁶⁰ in whose entourage William of Ockham had ﬂed from Avignon, or Marsilius’s fellow senior imperial counsellor on Louis’s Italian expedition, Ubertino da Casale⁶¹—his apocalypticism was not presented in the stark, eschatological terms of Joachimite mysticism.⁶² Instead, the chain of causation which had made the currently breaking apocalypse inevitable was grounded in a detailed, empirical analysis of human history, speciﬁcally of the perverting role of the papacy in the Christianization of the Roman Empire. It therefore lacked the Christocentric focus of much Franciscan history, evident in, for instance, the framework of the three Advents of Christ which Ubertino had adopted from Petrus Johannes Olivi (who had prophesied that Antichrist, in the guise of a pseudopope, would trigger the apocalypse by attacking the doctrine of apostolic poverty as deﬁned in Nicholas III’s decretal Exiit qui seminat).⁶³ There is more of a parallel between Marsilius and those Fraticelli who considered that Constantine’s donation had corrupted the church irredeemably. But the superﬁciality of the parallel is underlined by the conclusion which they went on to draw: that now they alone were the true church, the Ark of Noah which had been ordained to survive Antichrist’s ﬂood.⁶⁴ Marsilius’s political programme has nothing in common with justifying the eschatological exclusivity of a sect. The grounding of his analysis in human history rather than millenarianism does not, however, mean that the apocalypse was any less important in his thought. It means that he concentrates on its causes, rather than dwelling on the details of the imminent event itself. This is one reason why, as Previté-Orton pointed out long ago, ⁶⁰ See his letter to the Order of 9 July 1328, in C. Eubel (ed.), Bullarium Franciscanum, v (Rome, 1898), 346–8, at 347, quoted in William of Ockham, On the Power of Emperors and Popes, ed. Brett, 26 and n. 49. ⁶¹ Ubertino da Casale, Arbor vitae cruciﬁxae (Venice, 1485). ⁶² For a survey, see M. Reeves, The Inﬂuence of Prophecy in the Later Middle Ages: A Study in Joachimism, 2nd edn. (Notre Dame, Ind., 1993), 191–228; ead., ‘The Development of Apocalyptic Thought: Medieval Attitudes’, repr. in ead., The Prophetic Sense of History in Medieval and Renaissance Europe (Aldershot, 1999), ch. i, pp. 51–61. ⁶³ Reeves, Inﬂuence of Prophecy, 208; Tierney, Infallibility, pp. 115–30. ⁶⁴ Reeves, ‘The Development of Apocalyptic Thought’, 57; Inﬂuence of Prophecy, 213–14, 411–15.

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Marsilius uses even the apocalyptic passages of the Book of Daniel metaphorically rather than prophetically.⁶⁵ He was not predicting the apocalypse. It was already engulﬁng Christendom. To a faithful Christian like Marsilius, it was inconceivable that Satan would not be defeated in short order. ⁶⁵ DP, ed. Previté-Orton, p. 380, n. 3.

5 The History of the Holy Roman Empire This analysis of the historical perspective of Marslius’s argument brings out the parallels between the Defensor pacis and Dante’s Monarchia to which I have already drawn attention.¹ The two works are conventionally treated as belonging to different genres—indeed, different worlds—despite the mere decade which lies between them.² Indeed, their theories are said to be ‘astonishingly different’, given the ‘close parallels’ in their backgrounds and political experiences.³ But, as I have tried to show, an understanding of the providential role of the Roman emperor in human history is as fundamental to the Defensor pacis as it is generally thought to be to Monarchia. One reason why the parallels have remained unremarked by historians is that Marsilius’s providentialism is much less overt than Dante’s;⁴ and such explicit comments as he makes tend to be conﬁned to the relatively neglected Discourse II. Another is the stress in most of the scholarly literature on Marsilius’s supposed republicanism. As should be clear by now, however, the Defensor pacis offers no support to this conventional modern characterization of Marsilius’s position. A third reason is Marsilius’s statement towards the end of the ﬁrst discourse that whether or not there should be ‘one supreme principatus in number for the universitas of those living a civil life throughout the whole world’ is a question ‘distinct from our present concerns’.⁵ Although he does not, in this ¹ Above, pp. 75, 114. ² For instance, Rubinstein, ‘Marsilius of Padua’, 45. ³ M. Reeves, ‘Marsiglio of Padua and Dante Alighieri’, in B. Smalley (ed.), Trends in Medieval Political Thought (Oxford, 1965), 86–104, at 86. ⁴ On providence in Dante, see M. Reeves, ‘Dante and the Prophetic Vision of History’, repr. in ead., The Prophetic Sense of History, ch. viii. ⁵ DP I. xvii. 10.

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passage, say whether or not there should be such a supreme government, he seems to incline to the view that ‘it is at a certain time advantageous to have different principatus in different regions of the world’. When, in Discourse II, he refers back to this discussion, he concludes that it is ‘neither expedient nor true’ that there should be ‘a numerically single head (yconomus) in the entire world’. The earlier discussion had, he claimed, demonstrated that ‘it sufﬁced for human peace that there should be numerical unity of principatus in each province’.⁶ These passages have rightly been taken as proof of Marsilius’s ‘opposition to a world government’.⁷ They give the impression that he could have had little in common with Dante, for whom world government by the Roman emperor was not only a philosophical necessity if human potential were to be fulﬁlled, but the sole possible solution to the world’s ills. In truth, however, the positions of the Defensor pacis and the Monarchia on this issue too are much closer than has been recognized.⁸ Dante acknowledged that laws would vary from place to place, because ‘nations, kingdoms, and cities have their own special conditions’. But, he emphasized, in those things which are common to the whole human race, it was necessary that men should all be ruled by a ‘supreme princeps’, who is later shown to be the Roman emperor, ‘and guided by his common rule to peace. And this rule or law, the particular principes ought to receive from him.’⁹ Unlike Dante, Marsilius saw no need for a single ruler for the whole human race. The reason he gave in Discourse I why ‘the heavenly cause perhaps moved toward’ a plurality of principantes, rather than one supreme principans for the whole world, was that it sought to restrict the procreation of men, and this nature achieved by war and disease. But this rational justiﬁcation for the Averroist doctrine of eternal generation appears to be at odds with one of the main purposes of the book, encapsulated in its title: to remove the principal cause of strife within the Christian Roman ⁶ DP II. xxviii. 15. ⁷ Gewirth, Marsilius, 128–9; DP, ed. Previté-Orton, p. 94, n. 3. Contrast DP, ed. Quillet, pp. 160–1, n. 22, 511–12, n. 65. ⁸ For some suggested parallels with the Convivio, see DP, ed. Quillet, p. 511, n. 65. ⁹ Monarchia I, xiv.

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Empire, and to establish peace. The discrepancy is only apparent, however, because while warfare might, like disease, be a natural mechanism ordained to prevent human (and indeed animal) population growth from exceeding the earth’s limited resources, this applied to the world as a whole, not to the Holy Roman Empire in particular. Whereas there was no need within the church for a single supreme bishop in spiritual affairs, men’s ‘contentious acts’ made necessary ‘the numerical unity of the ﬁrst principans or of the principatus . . . as was demonstrated in chapter xvii of Discourse I’.¹⁰ In that earlier discussion, Marsilius had established that ‘a plurality of men’ were ‘truly said to be some one thing in number . . . because they are and are said to be related to some one thing in number, namely the principatus, towards which and by which they are ordered and governed’. Thus ‘the men of a single city or province are said to be a single city or kingdom because they wish one principatus in number’.¹¹ This is the argument he now invokes, in Discourse II, to support his claim that for men to live together in peace it was sufﬁcient for there to be ‘numerical unity of principatus [plural] according to provinces’.¹² Thereby he appears to imply that unity for the preservation of peace is not necessary on any supra-provincial scale. The implication seems to be conﬁrmed by the following sentence: that ‘it does not seem yet to have been demonstrated’ that there needs to be ‘one coercive judge for all [men] of necessity of eternal salvation’. But here Marsilius has shifted the discussion from unity for the preservation of peace to unity for the sake of salvation. Since all men are not Christian, no such need could be demonstrated. He immediately adds, however, that ‘the necessity for [such a judge] seems to be greater amongst the faithful than that for one universal bishop, in that a universal princeps can better keep the faithful in unity than can a universal bishop’. In other words, it was clear that unity among the faithful could best be maintained by a single princeps for all the faithful. And unity among the faithful could not be subdivided into unity for the sake of peace and unity for the sake of salvation. For without peace among the faithful, ¹⁰ DP II. xxviii. 14.

¹¹ DP I. xvii. 11.

¹² DP II. xxviii. 15.

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the unity which was necessary to salvation could not exist. Hence the need for a single coercive judge of all the faithful. The Roman Empire had always consisted of not one, but many provinces.¹³ Constantine’s donation, it will be recalled, had not applied to all the provinces.¹⁴ Nowadays, the cities of Romagna, Ferrara, and Bologna are said to be ‘provinces belonging to the Empire’.¹⁵ Each province or city had its own legislator and its own principatus. But the legislator of each province must be subordinate to the humanus ﬁdelis legislator superiore carens¹⁶ or supremus legislator ﬁdelis¹⁷ or ﬁdelis humanus legislator primus¹⁸ or Romani Imperii legislator humanus supremus.¹⁹ The pars principans or principatus of each province had to be subordinate to the single pars principans of the faithful human legislator, the emperor. Marsilius reiterates the point in the Defensor minor.²⁰ Otherwise that state of war which nature ordained between conﬂicting principantes, in order to limit population growth throughout the world, would exist within the conﬁnes of the Holy Roman Empire. This was precisely the catastrophic situation which currently obtained, as a result of papal usurpation of the faithful human legislator’s role. It had led John XXII to proclaim crusades, with specious promises of spiritual rewards, against the faithful, as if they were inﬁdel.²¹ That usurpation was ‘the gravest species of the crime of treason (crimen laesae maiestatis), for it is committed directly against the principatus, leading to the plurality of even the supreme principatus, and consequently by necessity to the dissolution of every polity (politia)’.²² That usurpation had destroyed the peace. It had also endangered salvation. Marsilius’s aim was to unmask and destroy it, and thereby to re-establish the unity of the ‘supreme principatus’, under ¹³ DP I. ii. 2; I. xvi. 16, 17; I. xix. 8; II. xvii. 1; II. xviii. 5; II. xx. 2, 8; II. xxiv. 4; II. xxiv. 12, etc. ¹⁴ DP I. xix. 9, discussed above, p. 131. ¹⁵ DP II. xxv. 14. ¹⁶ DP II. xviii. 8; cf. II. xix. 3; II. xxi. 1, 4; II. xxii. 6, 9. ¹⁷ DP II. xviii. 8; cf. DM xi. 3. ¹⁸ DP II. xxi. 8. Note that the adjective universalis, qualifying legislator in DP II. xxi. 11, is found only in manuscripts of the later ‘German’ recension. In Tortosa, Cathedral Chapter Library, MS. 141, fo. 66v, it is in the original text, not a later textual or marginal correction. ¹⁹ DP II. xxx. 8. ²⁰ DM xii. 1, quoted above, p. 72. ²¹ DP II. xxvi. 16. ²² DP II. xxviii. 29.

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Louis of Bavaria as pars principans. Marsilius differed from Dante not on the nature of the Roman emperor’s providentially ordained task of establishing peace and justice, but on its territorial limits. Although, as we have seen, Marsilius alluded in passing to the existence of cities and provinces within the Empire, each with its own legislator and principatus, he provides no detailed analysis of the nature of their subordination to the supreme legislator and pars principans. Its absence means that federalism is one of the few modern political concepts which has not been anachronistically foisted on Marsilius by modern scholars. The closest he comes to such an analysis is in his account of the election of a ‘general council of Christians’ by ‘all the notable provinces or communities of the world, according to the determination of their human legislator, whether one or many’. The members of the council are to act ‘as judges in the ﬁrst sense of the word, in place of the universitas ﬁdelium, representing by virtue of the said authority conceded to them by the universitates’.²³ In other words, he recognizes that there could be one legislator for all the provinces, or perhaps one for each of them, and that the universitas of each province was in some unspeciﬁed way subsumed in the universitas of all the faithful. The summoning, as distinct from the election, of such a general council pertains not to the individual provinces or their legislators, but to the ﬁdelis legislator humanus superiore carens (and the like).²⁴ It is this supreme legislator which gives coercive sanction to the decisions of the council.²⁵ Marsilius’s overriding concern is with this ﬁdelis legislator humanus, not with the relationship of lesser legislators to it. All he says of the latter is that they have certain obligations towards the general council, rather than to the ﬁdelis legislator humanus: to elect suitable members, and if necessary, to compel them to attend; and to provide them with the material support they would need.²⁶ His failure to explore the precise nature of the connection between the legislators ²³ DP II. xx. 2. ²⁶ DP II. xx. 3.

²⁴ DP II. xviii. 8; II. xxii. 6.

²⁵ DP II. xxi. 5.

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of individual cities or provinces and the supreme legislator which lacks a superior would be incomprehensible in a thinker who was concerned with the extent of the autonomy of Italian cities; that is to say (to use an anachronistic term), in a republican thinker. The failure allows Marsilius never to deﬁne the territorial extent of the jurisdiction of any legislator, including the supreme one. This is a characteristic of the Defensor pacis to which Walter Ullmann drew attention.²⁷ It explains Marsilius’s curious blind-spot about Clement V’s Pastoralis cura, which he repeatedly attacked as one of the most heinous examples of papal interference in temporal affairs, without ever mentioning its main purpose: the territorial restriction of Henry VII’s jurisdiction.²⁸ But the absence of explicit territorial deﬁnition for any legislator does not mean that for Marsilius, as for Dante, the (Roman) legislator’s jurisdiction was boundless. He recognizes in passing that there are principatus in the world which are distinct from that ‘of the Romans in all its provinces’.²⁹ The (Roman) ﬁdelis legislator humanus was, by deﬁnition, coterminous with the church, and, for Marsilius, the universal church had bounds. In the early stages of the Christianization of the Roman Empire, the bounds of the church were not identical with those of the Empire. Whereas those of the Empire were always territorial, those of the church were, at least for a time, not only territorial. The process of Christianization—or perfection—was, as we have seen, a gradual one. It was possible, for instance, for St Ambrose, bishop of Milan in the 380s, to appeal against the emperor Valentinian, who was supporting Arian heretics, to the plebs ﬁdelis, ‘by which he himself had been instituted as bishop’. For ‘in those times it was not safe to permit Roman principes to confer such ofﬁces—that is, cures of souls— because they were not then sufﬁciently conﬁrmed in the faith; indeed, some of those principes sometimes favoured heretical priests over true ²⁷ W. Ullmann, ‘Personality and Territoriality in the “Defensor Pacis”: The Problem of Political Humanism’, repr. in id., Law and Jurisdiction in the Middle Ages (Aldershot, 1988), ch ix, pp. 397–410. ²⁸ DP I. xix. 10; II. xxii. 20; II. xxiii. 11; II. xxv. 17. ²⁹ DP I. xix. 9. The distinction is drawn whether one follows DP, ed. Previté-Orton, p. 105, n. 1 or ed. Scholz, p. 132, n. 1, on the punctuation of the sentence.

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believers, as did that same emperor Valentinian’.³⁰ In the late fourth century, then, the process of elision between church, in its original, proper meaning of the faithful, and the legislator humanus, of which the emperor was pars principans, still had some way to go. If the princeps was acting against the interests of the church, not only was it inconceivable that he should play any part in instituting priests, it was also possible for a priest to appeal to the faithful for support in his deﬁance of the princeps. Later on, internal distinctions between the faithful and the legislator disappeared, and the bounds of the merged ﬁdelis legislator humanus became the territorial ones of the Empire. These boundaries are not detailed and are only obliquely acknowledged³¹ in the Defensor pacis; but changes in them are noticed in the historical narrative of the De translatione imperii, which on this subject accurately reproduces Marsilius’s template, Landulphus Colonna’s treatise of the same title. Here Marsilius records that from the reign of Constantine to the twentieth year of that of Heraclius (630–1), the emperors ‘held the East peacefully under their dominium’. At that point, the ‘Orientals—that is, the Persians, Arabs, Chaldeans, and other peoples round about—withdrew from the dominium of the Roman Empire’ on account of Heraclius’s ‘tyrannical principatus’. In order to make their withdrawal permanent, ‘on the advice of Mohammed . . . they adopted a different cult, so that on account of their different belief and faith or sect, they could not return to the original dominium’. Marsilius thought, still following Landulphus, that they had ‘perhaps followed the example of Jeroboam, who gave the ten tribes which followed him a different cult, so that they should not return to the original and proper dominium’.³² When Mohammed invaded the territory of the Empire, he forced the inhabitants to adopt his new religion on pain of death.³³ By the end of Heraclius’s reign, therefore, the power of the Empire had been ‘deformed’ with respect to its eastern dominium. The territories it had lost had been converted to Islam. ³⁰ DP II. xxviii. 17. ³¹ Above, p. 131. ³² DTI, cap. 3, p. 396; Landulphus Colonna, in Goldast, Monarchia ii. 90. ³³ DTI, cap. 4, p. 394; Landulphus Colonna, in Goldast, Monarchia ii. 90.

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When describing the secession of the Orient, Marsilius, again reproducing Landulphus Colonna, compares it with that of the Greeks. When they wished to separate themselves from obedience to the Roman church, they ‘accepted a different cult or rite’ and therefore fell into error.³⁴ He does not specify when he considers this break with the Roman church began. The Greek church is not speciﬁcally referred to in the Defensor pacis. In the Defensor minor, Marsilius implies that the occasion for the breach between the Greek and Latin churches was the dispute over the ﬁlioque clause, which began in the mid-seventh century. He denies that the Greeks were schismatics, ‘even though the Roman bishop together with the group of his brothers or cardinals seem to say so’, for the disagreement involved no difference ‘in reality and true belief, but only in appearance, in words’. In order to heal this still-current rift, he advocates the summoning, ‘by the Roman people and princeps’, of a council of both Latins and Greeks, ‘as the ﬁrst Constantine did’.³⁵ According to the Defensor minor, therefore, the Greeks had not really adopted a different cult from the Latins, whatever the Roman curia might allege. The De translatione imperii does not mention the dispute over the ﬁlioque clause, perhaps because Landulphus Colonna does not, but instead focuses on the doctrinal dispute over iconoclasm which broke out between Emperor Leo III and the Roman church in the early eighth century. This is not cited by Marsilius as the cause of the split between the western and eastern churches, but as ‘the ﬁrst occasion of the translatio of the Empire from the Greeks to the Franks’.³⁶ Did this amount, in Marsilius’s view, to a secession comparable with that of certain eastern provinces in the reign of Heraclius? Iconoclasm was not, like Islam, adopted in order to make a secession from the Empire irreversible. It was not a new cult, despite Marsilius’s copying of Landulphus’s words about a ‘different cult or rite’ being adopted by the Greeks. It was a doctrine. The emperor attempted to impose that doctrine on the Roman church. In response, Pope Gregory III (731–41) anathematized him and encouraged ‘all Apulia, all ³⁴ DTI, cap. 3, p. 388. ³⁵ DM xii. 4, pp. 258–60. ³⁶ DTI, cap. 5, p. 397; Landulphus Colonna, in Goldast, Monarchia ii. 91.

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Italy and the West to secede from the emperor’s dominium and obedience’. The Greeks were not, then, attempting to secede from the Empire; on the contrary, the pope was trying to incite the westerners to do so. There was no analogy with the secession of the Orientals during Heraclius’s reign. According to Marsilius in De translatione imperii, it was the persistence of this dispute under Leo III’s son and successor, Constantine V (741–75), which had prompted Pope Stephen II to ‘resolve to transfer to some extent (aliqualiter) the Roman Empire from the Greeks to the Franks’. With this obscure wording, Marsilius tried to fudge Landulphus’s straightforward statement that Stephen had translated the Empire.³⁷ Elsewhere in the treatise Marsilius ingeniously twisted Landulphus’s template to support a position diametrically opposed to Landulphus’s conventional, pro-papal interpretation of translatio imperii. Marsilius wanted to undermine historically one of the arguments which John XXII had advanced against Louis of Bavaria.³⁸ But, as is clear from his fudged account of Stephen II’s role, in doing so Marsilius could not quite avoid acknowledging that popes had played some part in the translation of the Empire from the Greeks to the Franks. Such was the inevitable consequence of trying to refute the papal case from within, by turning against it the sources on which that case was based. He had to argue against the grain not only of his model, Landulphus, but also against that of most of Landulphus’s sources. To some extent Landulphus gave him unwitting assistance. Marsilius preferred Aimonius of Fleury’s History of the Franks, cited by Landulphus, to the ‘false writings of clerics’ on the deposition of Childeric and the elevation of Pippin in 751, because Aimonius attributed these actions to the Frankish nobility alone. Landulphus had recognized the apparent discrepancy, but had nevertheless stuck to the traditional papal interpretation. For Marsilius, by contrast, Aimonius’s account exempliﬁed ‘what we have shown by demonstration in chapters xii, xiii, xv, and xviii of Discourse I of our Defensor ³⁷ DTI, cap. 5 p. 398; cf. Landulphus Colonna, in Goldast, Monarchia ii. 91. ³⁸ CIC, Clem. 2. 9. De iureiurando; monitorium, MGH. Const. v. no. 792 (8 Oct. 1323); see further below, pp. 174–5.

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pacis’, namely that ‘such deposition of a king and institution of another never pertains to any bishop or cleric or their college, but to the universitas of the inhabitants of a region, of citizens and nobles or their weightier multitude (valentior multitudo)’.³⁹ But dependence on Aimonius for the events of 751 simply deferred acknowledgement of papal involvement in the translation. For soon afterwards Marsilius states that Pope Stephen ‘procured the transfer of the Roman Empire from the Greeks to the Franks’, that ‘it was in his time that the translation was ordained’, and that this translation ‘was accomplished de facto’ during the pontiﬁcates of Adrian I and Leo III.⁴⁰ Yet the account which Marsilius gives of events during these two pontiﬁcates attempts to undermine the claim that the papacy was responsible for the translation. This was a difﬁcult feat to pull off, because Landulphus and his sources demonstrated the central role of both popes in the events which culminated in Charlemagne’s imperial coronation by Leo in St Peter’s on Christmas Day 800. Marsilius tries to do so by ignoring Landulphus’s conventional conclusion that the Roman church had effected the translation.⁴¹ In its place, he substitutes a cross-reference back to a discussion at the end of the ﬁnal chapter of Discourse II of the Defensor pacis. There (with a corresponding cross-reference forward to his projected De translatione imperii),⁴² he concludes that the Empire had been justly transferred from the Greeks to the Franks. He had to reach this conclusion, if the western Roman emperors were to be the true Roman emperors. If they were not, then his whole analysis of the unique role of the Roman emperor in human history would be worthless. So the stakes were high. But according to Marsilius, this transfer ‘was not done by the authority of the Roman pope, either alone or together with his clerical college’.⁴³ The authority to transfer the Empire, like ³⁹ DTI, cap. 6, p. 400; cf. Landulphus Colonna, in Goldast, Monarchia ii. 91–2. ⁴⁰ DTI, cap. 7, p. 406; cf. Landulphus, in Goldast, Monarchia ii. 92, whence Marsilius lifted the formulation that the translation had been ordained under Pope Stephen, and was effected under Pope Leo III. ⁴¹ Goldast, Monarchia ii. 94. ⁴² DP II. xxx. 7; at this point Tortosa, Cathedral Chapter Library MS. 141 fo. 96v has a long marginal ﬁnger pointing to the citation of the various papal documents which are also invoked in De translatione imperii. For the possible signiﬁcance of these marginal ﬁngers, see above, p. 55, n. 18. ⁴³ DP II. xxx. 7; cf. DTI, cap. 9, p. 422.

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the authority to institute an emperor and to make laws, could belong only to ‘the supreme human legislator of the Roman Empire’. If ‘the Roman pope either alone or together with his clerical college’ were said to have done either, ‘then it must be understood to mean that the pope and the cardinals made this translatio or institution by virtue of the authority granted to them for this purpose by the supreme human legislator of the Roman Empire, either directly or indirectly’; or alternatively, that they had simply ‘proclaimed or announced (but still by virtue of the above-mentioned authority) that the translatio or institution had been made’.⁴⁴ Marsilius does not say so, but in the absence of any evidence that Leo III acted in the former capacity on Christmas Day 800, he must have done so in the latter. The ﬁrst papal coronation of a Roman emperor, like all subsequent ones, had therefore been ‘for the sake of ceremony rather than on account of some necessity’.⁴⁵ For Marsilius, the translation of the Empire to the Franks did not result in any alteration in its territorial extent. It had been translated, not divided. Whereas Landulphus ends his treatise with a denial that there is ‘any empire nowadays among the Greeks’, and the assertion that the Greeks are ‘without the bosom of holy mother church’,⁴⁶ Marsilius simply fails to acknowledge the existence of any eastern emperors after Constantine VI (776–97), at whose request, ‘as certain histories relate’, Charlemagne had supposedly recovered the Holy Land. It was on Charlemagne’s victorious return to Rome that he had been crowned by Pope Leo and acclaimed as emperor by the Roman people.⁴⁷ It was the seat of the Empire which was transferred, by the decision of the Roman people rather than papal coronation; the Empire remained. Nor, as we have seen, did Marsilius consider in the Defensor minor that the Roman and Greek churches had really become two distinct entities because of the doctrinal disagreement over the ﬁlioque clause. His historical inquiries had established that the territorial extent of the ﬁdelis legislator humanus had remained unchanged since the defection of certain eastern provinces during the reign of Heraclius, and the rise of Islam. Small wonder, then, that in ⁴⁴ DP II. xxx. 8. ⁴⁵ DTI, cap. 12, pp. 430–2. ⁴⁶ Goldast, Monarchia ii. 95. ⁴⁷ DTI, cap. 9, p. 418.

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the Defensor pacis Marsilius never raises the issue of the eastern emperor and church. His acceptance of the concept of translatio imperii—albeit denying that the pope effected such translations— meant that the Empire remained the same whether the emperor was a Greek or a Frank or a German. The Holy Roman Empire of his own day was the same Empire the seat of which Constantine had transferred to Constantinople. That the Empire had lost some territory during the seventh century—an event not noticed in the Defensor pacis, and perhaps mentioned in the De translatione imperii only because Marsilius was prompted by Landulphus Colonna—made no difference to its continuity, or to the fact that the church had become coterminous with it. If the Roman Empire had had a continuous existence, it had not been a static one. The nature of its Christianization—its transformation into the ﬁdelis legislator humanus—had, as we have seen, created those internal tensions which appeared, even as Marsilius wrote, to be bringing about the providentially ordained apotheosis of human history. The consummation of progressive papal usurpation of secular jurisdiction consisted in John XXII’s attempts to make the vacancy in the Empire permanent, so that he (and his successors) could continue to exercise all the imperial functions in perpetuity.⁴⁸ Marsilius says so.⁴⁹ The apocalyptic crisis in human history therefore took the form of a conﬂict between John and Louis about which of them had ultimate authority within Christendom, which was synonymous with the Roman Empire. ⁴⁸ DP II. xxvi. 8; II. xxiii. 11.

⁴⁹ DP II. xxvi. 5.

6 Canon Law and the Conﬂict Between Emperor and Pope Marsilius correctly attributes the doctrine that the bishop of Rome administers the empire when it is vacant to Clement V’s bull Pastoralis cura (1314), subsequently included in the Constitutiones Clementis, which were promulgated (as Marsilius acidly remarks) as a collection by the ‘so-called successor’ whom Marsilius could never bring himself to name.¹ He did not explicitly mention the use which John XXII had made of the doctrine in Si fratrum et coepiscoporum of 31 March 1317,² but he knew that it had underpinned the pope’s attacks on Matteo Visconti, into whose service Marsilius had entered in 1319.³ And he was acutely aware of its role in the papal monitorium of 8 October 1323 against Louis.⁴ According to Marsilius, it ‘necessarily follows’ from this doctrine, apparently formulated in Pastoralis cura, ¹ DP II. xxv. 17, 20; cf. II. xxii. 20; II. xxvi. 3, 8; Clem. 2. 11. 2. Clement cited the doctrine in his appointment of Robert of Naples as papal vicar-general on 14 March 1314, which did not come into force until John XXII conﬁrmed it, because Clement died before it could be promulgated: MGH. Const. iv, pt. 2 no. 1164, pp. 1205–6; v. no. 443, pp. 367–8 (16 July 1317). It is also invoked in MGH. Const. iv, pt. 2, no. 1255, p. 1378 (after 24 Aug. 1313). For the history of the doctrine, see F. Baethgen, ‘Der Anspruch des Papsttums auf das Reichsvikariat’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, xli, kan. Abt., x (1920), 168–268. G. Sandri, ‘Vicariati imperiali perpetui di Enrico VII di Lussemburgo’, in G. Sandri, Scritti, ed. G. Sancassani, (Verona, 1969), 157–93. It originated in Innocent III’s decretal Licet ex suscepto: see below, p. 182. I should like to thank Magnus Ryan for his advice on this matter. ² CIC, Extrav. Iohan. XXII, 5.1 (⫽ MGH. Const. v. no. 401, pp. 340–1). ³ Above, p. 18; MGH. Const. v, nos. 897, 898 (12–16 Apr. 1324). ⁴ MGH. Const. v, no. 792, p. 617.

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that during such a vacancy the Roman bishop can compel all imperial feudatories to take oaths of fealty to him, bestow ﬁefs on them, and exercise ultimate civil jurisdiction over them.⁵ None of these alleged logical consequences is outlined in Pastoralis cura. Marsilius further asserts that the decree proclaims that the Roman princeps is bound to the bishop of the Romans by an ‘oath of fealty’,⁶ although this is in fact stated in another Clementine document, Romani principes, which is cited by Marsilius with respect to another issue, translatio imperii.⁷ But Romani principes, like Pastoralis cura, does not draw from this fact the conclusions drawn by Marsilius. Although he makes a pretence of distinguishing between these two documents, in practice he elides them and extrapolates from them. He does so because, in his view, they prepared the consummation of the papal usurpation, under John XXII, of the Roman emperor’s role. Marsilius shows that they were quoted in John XXII’s documents, because they underpinned John’s stance against Louis. But in Marsilius’s view, they did so in conjunction with the bull of a slightly earlier pope, Boniface VIII, to the importance of which I have already drawn attention. Although Boniface VIII’s two successors⁸—‘Clement V and his so-called immediate successor’—had concentrated on the Roman Empire, Marsilius, as we have seen, left little doubt that the claim allegedly embodied in Boniface’s Unam sanctam—that all souls, of necessity of salvation, had to be subject in coercive jurisdiction to the Roman bishop—encompassed all kingdoms.⁹ That Boniface’s bull had been directed against the French king Philip the Fair underlined the point. During Christ’s lifetime ‘the Roman princeps was monarch of all lands everywhere’; this meant that Christ’s supposed lordship over the emperor, expressed in Pastoralis cura, encompassed lordship over lesser rulers.¹⁰ The popes claimed to have been vested with these powers by Christ. By taking the three documents together, the doctrine which, in Marsilius’s view, was entailed by Pastoralis cura and Romani principes became synonymous with the culmination of the ⁵ DP II. xxvi. 8. ⁶ DP II. xxiii. 11. ⁷ DP II. iii. 14; II. xxx. 7. ⁸ Boniface’s immediate successor, Benedict XI, survived for less than a year. ⁹ DP II. xxii. 20; see above, p. 133. ¹⁰ DP I. xix. 10.

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papal plenitude of power, allegedly granted by Christ.¹¹ For this had been deﬁnitively expressed in Boniface’s bull, ‘of all imaginable falsehoods, the most harmful to those who live a civil life’.¹² Unam sanctam asserted that the subjection of every Christian soul to this papal superiority was ‘necessary for salvation’.¹³ Any ruler who disputed this superiority could be excommunicated and his lands subject to interdict, as had happened to Philip the Fair, the target of Unam sanctam, ¹⁴ and to Louis of Bavaria.¹⁵ The next step would be for the pope to indict Louis for heresy.¹⁶ Marsilius correctly prophesied that he would be condemned as a heretic,¹⁷ a fate which Marsilius and John of Jandun were, of course, destined to share.¹⁸ Those who had remained faithful to Louis had already suffered it.¹⁹ Marsilius identiﬁes only Matteo Visconti ‘of splendid memory, outstanding among Italians for his uprightness of character and his dignity’, as whose envoy he had acted when he had ﬁrst joined the Ghibelline cause.²⁰ The ﬁnal act would be the proclamation of a crusade against Louis.²¹ In Marsilius’s view, Unam sanctam provided the clearest basis for levelling the accusation of heresy against those who refused to accept papal plenitudo potestatis in its fully realized form. It also lent weight to his portentous warning to the other rulers of Europe that papal ambitions were not a threat to the emperor alone, but to all of them. For Marsilius, John XXII gave ﬁnal, strident voice to the logic embodied in these three recent papal documents. Boniface’s alleged declaration in Unam sanctam that ‘all secular principatus are subject in coercive jurisdiction to each Roman bishop’ is said to be ‘implicit’ in the ‘edicts of a certain so-called Roman bishop against the noble Louis’, which, by using the title plenitudo potestatis, comprehend all other rulers too.²² What Clement V had asserted about translatio imperii in Romani principes was stated ‘even more explicitly by the modern so-called bishop of the Romans, in an edict addressed to Louis, ¹¹ ¹³ ¹⁵ ¹⁸ ²⁰ ²²

DP II. xxii. 20. DP II. xxi. 13; cf. II. xx. 11, II. xxi. 9, 13. DP II. xxvi. 12, 13. ¹⁶ DP II. xxvi. 8. Above, p. 19. DP II. xxvi. 17; cf. above, p. 18. DP II. xxi. 13; cf II. xxii. 20.

¹² DP II. xx. 8. ¹⁴ DP II. xxi. 9. ¹⁷ DP II. xxvi. 12. ¹⁹ DP II. xxvi. 15. ²¹ DP II. xxvi. 12.

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duke of Bavaria, elected king of the Romans’.²³ The document to which Marsilius is referring—the monitorium of 8 October 1323, which also stressed that the pope should administer the empire during an imperial vacancy²⁴—receives close attention. Marsilius quotes from it a passage which reproduces the wording of Innocent III’s decretal Venerabilem (1202).²⁵ Although Marsilius does not identify John’s source, it is inconceivable that he did not know Venerabilem, because its inclusion by Pope Gregory IX in his Liber extra (1234) rapidly made it the deﬁning canonical text concerning relations between pope and emperor. It may be that Marsilius does not attack it directly because he wants to concentrate on the apotheosis of papal claims expressed in very recent papal documents. Nevertheless, as Marsilius must have known, its doctrine underpinned those documents. Beginning with Venerabilem, a close connection had been established between papal translatio of the empire and the pope’s coronation of the emperor. It asserted that the princes of Germany had ‘the right and power to elect a king who is afterwards to be promoted emperor’ only because the apostolic see had transferred the empire from the Greeks to the Germans, in the person of Charlemagne.²⁶ Innocent III had proclaimed that ‘the right and authority of examining the person elected as king and to be promoted to the empire belongs to us, who anoint, consecrate and crown him’. The pope had to subject the elected king to a scrutinium in order to establish his suitability; if the princes elected someone unsuitable as king—a heretic, for instance—then the pope was bound not to accept him as emperor. The royal election would have to be rerun. Innocent had used papal coronation of the emperor as a means of controlling royal election in Germany.²⁷ In his monitorium, John XXII told Louis that a king-elect was not to be ²³ DP II. iii. 14; cf. II. xxx. 7. ²⁴ MGH. Const. v, no. 792, pp. 616–19; it is referred to at DP II. iii. 14; II. xxiv. 9; II. xxvi. 2, 4, 6,12, 16; II. xxx. 7. ²⁵ DP II. xxvi. 6; X. 1. 6. 34. ²⁶ The phrase is reproduced in John’s monitorium, which Marsilius quotes at DP II. xxvi. 6; II. xxx. 7. ²⁷ W. Ullmann, ‘Dies ortus imperii: A Note on the Glossa ordinaria on C. III. 12. 7 (5)’, repr. in id., The Papacy and Political Ideas in the Middle Ages (London, 1976), ch. vi, pp. 666–74.

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deemed a king or even a nominated king unless and until his election had been approved by the apostolic see.²⁸ The document claimed that Louis had been elected rex Romanorum ‘in discordia’, and that he had assumed the royal title without papal approval.²⁹ In Marsilius’s view, the basis for these papal claims lay in a practice which had begun, like so much else, during the reign of Constantine. From that time, principes Romanorum had notiﬁed Roman pontiffs of their election, in order ‘to obtain through their intercession greater blessing and grace in governing their empire’. Moreover, some imperatores Romanorum had had their ‘royal diadems placed on their heads by the Roman pontiffs’.³⁰ Marsilius, perhaps recalling debates he had heard in the University of Paris during Philip the Fair’s reign, says that such an ‘imposition’ gives the Roman pontiff no more authority over the ‘Roman princeps’ than that which the archbishop of Rheims has over the French king: ‘For such solemnities do not confer authority, but only signify that it is held or has been bestowed.’³¹ It was on the basis of this ‘simplicity, not to say foolishness’ on the part of Roman principes that the bishops of the Romans had begun, orally and in writing, to call their ‘commendation (laudatio) and blessing of the elected person, their conﬁrmation of his election’. Initially, the Roman principes had failed to grasp the closet papal ambition behind this practice. Now that ambition was brazen: ‘no person, regardless of how duly he has been elected king of the Romans, should be called king, or have or exercise the authority of king of the Romans, unless he has been approved by the Roman bishop.’ The consequence would be that the ofﬁce of the seven electors of the empire would be rendered null.³² All they could do would be to ‘nominate’, and ‘this much authority could be granted to the Roman king by seven barbers or blind men’. In De translatione imperii, Marsilius, as usual taking his cue from Landulphus Colonna, described how the electors had been instituted in 1004, which he (like Landulphus) erroneously places during the pontiﬁcate of Gregory V (996–9). But unlike Landulphus, Marsilius did not say that they were ²⁸ DP II. xxvi. 6. ³⁰ DP II. xxvi. 4.

²⁹ MGH. Const. v, no. 792, p. 617. ³¹ Cf. DP I. xii. 3. ³² DP II. xxvi. 6.

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instituted by the pope, and he excised Landulphus’s reference to papal ‘conﬁrmation’ of elections. According to Marsilius, imperial coronation ‘by the bishop of Romans’ was simply ‘for the sake of ceremony rather than on account of some necessity’.³³ Because imperial coronation was no more than an unnecessary formality, papal refusal to perform the ceremony could not be used to invalidate a prior royal election. Yet, as he recognized, this was precisely what recent Roman bishops had tried to do. Although he does not say so, they had made the attempt by developing the doctrine of Innocent III’s Venerabilem.³⁴ It suited Marsilius’s purpose to ignore the longestablished practice of royal coronation of the rex Romanorum in Aachen, and to treat imperial coronation by the pope as the only ceremony consequent on royal election. For Marsilius, as for his future patron Louis of Bavaria, there was no distinction between rex and princeps Romanorum. Although he accords Louis the title Romanorum imperator only once, in his opening chapter,³⁵ in his view Louis as king disposed of all imperial powers. He applauds Louis for using the title rex Romanorum ‘ever since his election and proclamation by the electors’, and for ‘administering the imperialia and regalia in all respects, as he could do and was bound to do by right’.³⁶ It followed that, in Marsilius’s view, everything hung on the electors. This was why he attributed to John XXII the outrageous proclamation that ‘through their election the regal authority of the Romans could be conferred on no one’—a statement which is not found in John’s ‘Fourth Process’, despite Marsilius’s claim to quote it from there. Indeed, as one would expect, John stressed that he intended no harm to the right of the electors.³⁷ The ﬁctional quotation summarized Marsilius’s interpretation of John XXII’s true aim. According to Marsilius, John XXII had exploited the concept of translatio imperii from the Greeks to the Germans to claim that he ³³ DTI, caps. 11, 12, pp. 428–33; contrast the account of papal institution of the electors, and the pope’s role in conﬁrming the elect, in Landulphus Colonna, cap. 9, Goldast, Monarchia ii. 94–5. ³⁴ DP II. xxvi. 6. ³⁵ DP I. i. 6. Note that this reading is found in all manuscripts; it does not appear to be the result of a revision. ³⁶ DP II. xxvi. 11. ³⁷ DP II. xxvi. 6; MGH. Const. v, no. 944, pp. 779–88, at 787–8.

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alone had the authority to appoint electors—a claim also based on Venerabilem. This was the constitutional nub of the conﬂict between John and Louis, which marked the apotheosis of human history. It is no accident that the second discourse of the Defensor pacis concludes with the statement that the electors have ‘no other authority, and from no other source, than from the . . . supreme human legislator of the Roman Empire, nor can this authority be revoked or suspended by anyone other than that legislator’.³⁸ In making it, Marsilius does no more than reﬂect that recent papal concentration on the role of the prince electors which had been initiated by Innocent III in Venerabilem. Indeed, the electors were Marsilius’s rejoinder to the case originally mounted in Venerabilem, that the pope must be able to subject a candidate for imperial ofﬁce to a scrutinium, in order to assess his orthodoxy. According to Marsilius, this argument was nonsense, not because the orthodoxy of an emperor was unimportant, but because the seven prince electors included ‘three solemn Christian archbishops, each of whom receives from Christ episcopal or priestly authority equal to that of the Roman pontiff . . . together with four faithful secular princes’.³⁹ Together they were far better qualiﬁed to assess the orthodoxy of any candidate than was ‘the Roman bishop’. ³⁸ DP II. xxx. 8.

³⁹ DP II. xxvi. 9.

7 The Historian’s Use of his Canon Law Sources Marsilius affects, as we saw in the last chapter, to wear his modern canonical learning lightly. It is, however, clear that he was intimately acquainted with the recent canonical sources of the arguments directed against Louis of Bavaria by John XXII. Allusions and passing quotations litter the text of Defensor pacis.¹ They are not conﬁned to the pope’s struggle against Louis: they shape, for instance, Marsilius’s discussion of apostolic poverty.² It is equally clear, however, that he showed a polemicist’s readiness to read a lot more into the text than was on the page in front of him. He had no compunction about paraphrasing existing documents in order to make them ﬁt his argument better. He asserted, for instance, that Unam sanctam ‘contained, or rather ﬁnally concluded, that all the rulers, communities, and individual persons of the world are subject in coercive jurisdiction to the Roman pope’.³ Of course, it says no such thing. He claimed that in Pastoralis cura it ‘could be found plainly expressed, by anyone who reads the document’, that the emperor was subject, by an oath of fealty, in ¹ In addition to the instances already identiﬁed, see DP II. xxvi. 15 for echoes of John XXII’s condemnation of Louis’s Lombard envoys, issued on 12 April 1323: MGH.Const. v. no. 897, pp. 711–14. ² DP, ed. Previté-Orton, p. 226, n. 1, draws attention to the resemblance between John XXII’s Ad conditorem canonum (Extrav. Ioh. XXII, 14. 3, 8 Dec. 1322), which reversed previous papal doctrine on apostolic poverty, and Marsilius’s antithetical treatment of the issue at DP II. xiii. 6 ff.; cf. II. xxiii. 12, for another echo. ³ DP II. xxi. 9; cf. I xix. 10; II. xxi. 13. It seems that he could not quite bring himself to misquote the decree, the ﬁnal sentence of which is reproduced quite accurately at II. xx. 8.

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coercive jurisdiction to the pope.⁴ Yet no such statement can be found in the decretal, and it is clear that Marsilius knew the text well, because he reproduces part of it accurately elsewhere.⁵ We have already noted him amending the text of his most important piece of documentary evidence, the donation of Constantine, in order the better to ﬁt his argument.⁶ Not only did he misrepresent papal documents by paraphrase, on two occasions he made a pretence of quoting from documents which had not yet been issued by the time he claimed to have ﬁnished writing the book, on 24 June 1324. In doing so, his prophetic powers may have failed him on points of detail, albeit in ways germane to his case; but he nevertheless revealed an intimate knowledge of papal diplomatic. For in composing words to put in John XXII’s mouth, he makes demonstrable use of earlier papal documents. Reference has already been made to one of the ﬁctional quotations he attributed to the ‘Fourth Process’ against Louis, published on 11 July 1324, less than three weeks after the apparent completion of the Defensor pacis. This was concerned with the powers of the electors. Several possible sources have been identiﬁed for the other, a supposed profession by John that he had no desire to harm the rights of the electors.⁷ Marsilius may have been encouraged to fabricate passages in this way by the fact that the legally signiﬁcant documents of John’s pontiﬁcate had not been compiled and promulgated as an ofﬁcial collection akin to the Constitutiones Clementis.⁸ It would, therefore, have been very difﬁcult for readers of the Defensor pacis to discriminate between the authentic ⁴ DP II. xxiii. 11. ⁵ DP II. xxv. 17. ⁶ Above, p. 111. ⁷ DP II. xxvi. 6; further DP, ed. Previté-Orton, pp. 402–3, n. 2 and ed. Scholz, p. 493, n. 1; above, p. 177. Of course, John had expressed this view, but not in the words which Marsilius attributes to him. ⁸ The Extravagantes Iohannis XXII were a private, not an ofﬁcial, compilation, made in 1325. They were never ofﬁcially promulgated: J. Brown (Tarrant), ‘The Extravagantes communes and its Medieval Predecessors’, in J. Brown and W. P. Stoneman (eds.), A Distinct Voice: Essays in Honour of L. E. Boyle, O.P. (Notre Dame, Ind., 1997), 373–436, at 386–402 (Extravagantes Johannis XXII ) and 402–6 (Constitutiones Johannis XXII ). John did, however, compile and issue his bulls concerned with the dispute over apostolic poverty, and circulate them to a number of universities: Deniﬂe and Chatelain, CUP ii. no. 833, pp. 276–7; J. Tarrant, Extravagantes Iohannis XXII, Monumenta iuris canonici, Corpus collectionum, Series B, vi (Vatican City, 1983), 19.

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and the invented. In the case of Marsilius’s prediction that Louis would be condemned as a heretic, the use of the future tense in most manuscripts shows that he was in this instance more candid about the fact that he was prophesying the contents of a document which did not yet exist.⁹ In keeping with this exceptional candour, he does not pretend to quote the as yet hypothetical sententia—as he terms it—of John XXII. But he does predict in detail what the terms of the sentence would be, and these terms have been shown to echo closely those of Clement V’s bull of 27 March 1309, which condemned the Venetians for their annexation of Ferrara.¹⁰ Even in the process of composing ﬁctional papal documents to support his case, therefore, Marsilius reveals himself to be extremely well versed in the products of the modern papal chancery—products which he termed ‘diabolic (although he [John XXII] calls them “apostolic”)’.¹¹ In order to ﬁght the devil, it was necessary to know his ways. It is likely that Marsilius continued to pay careful attention to the pope’s latest utterances after he had ﬁnished the Defensor pacis. In the manuscript of the book which he had probably corrected himself, there is a later marginal addition, in the corrector’s hand, which may allude to John XXII’s Quia vir reprobus of 16 November 1329.¹² It is clear that Marsilius’s ⁹ DP II. xxvi. 12, predicting the terms of the condemnations of Louis as fautor hereticorum on 3 April 1327, and as a heretic on 23 October 1327. As in most manuscripts, the future tense is used in the one allegedly corrected by Marsilius himself, Tortosa, Cathedral Chapter Library, MS. 141, fo. 80r. According to Scholz (DP, p. 500, n. l), one verb has been altered ‘unclearly’ by a later corrector to the perfect tense. If so, this might reveal that the corrector worked on the manuscript after the documents had been issued. Previté-Orton, however, (DP, p. 408, n. i) does not agree with Scholz’s reading. He thinks that the verb remains in the future tense in the Tortosa manuscript. Both scholars worked from photographs. It is impossible to tell from the existing microﬁlm which of them is correct. The fact that Vienna, Nationalbibliothek, MS. 464, which has been shown to be a copy of the corrected Tortosa manuscript, retains the future tense, supports PrevitéOrton. If Scholz is nevertheless correct, this amendment in the body of the text (rather than the margin) could in any case be the work of a scribe other than the one who has been putatively identiﬁed with Marsilius. ¹⁰ DP, ed. Previté-Orton, p. 409, n. 1; ed. Scholz, p. 500, n. 1, citing the excerpt in A. Eitel, Der Kirchenstaat unter Klemens V (Berlin and Leipzig, 1907), 189. ¹¹ DP II. xxvi. 13. ¹² DP II. xiv. 8, in Tortosa, Cathedral Chapter Library, MS. 141 fo. 48r. See DP, ed. Previté-Orton, pp. xxix, xxxvi–xxxvii (with a photograph of the insertion facing p. xxxvi), xli; ‘Marsilius’, 8; DP, ed. Scholz, p. xxix, on the likelihood that the insertion is in

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knowledge of the workings of the curia was not limited to the one visit he mentions having made to Avignon.¹³ That is hardly surprising in someone sufﬁciently adept at working the system to be the beneﬁciary of two papal provisions, one of which, exceptionally and in the event ironically, was sponsored by two well-connected cardinals, both of whom were nephews of Boniface VIII.¹⁴ In the light of the use which Marsilius makes of this detailed knowledge of his adversary’s pronouncements, it is curious that his knowledge of recent papal documentation appears not to stretch back very far. I have already drawn attention to his striking failure even to mention Venerabilem, when he must have known how important a foundation it was for John XXII’s stance against Louis. Similarly, he must have known that the doctrine that the pope exercised imperial powers during an imperial vacancy had been originally formulated in Innocent III’s decretal Licet ex suscepto (1206), which, like Venerabilem, was included in the Liber extra.¹⁵ But, as we have seen, he repeatedly attributed the doctrine to Pastoralis cura, as if Clement V had invented it.¹⁶ Although what Marsilius writes on the subject of apostolic poverty suggests that he was very familiar with Nicholas III’s deﬁnitive Exiit qui seminat (1279), because he bandies its terms about, and even allows them to shape his argument, he never refers to it explicitly.¹⁷ It had been included in the Liber sextus (1298) by Boniface VIII. Moreover, as with papal documents, so with popes: at no point does Marsilius refer to any thirteenth-century pope prior to Boniface VIII, who was elected in 1294. With respect to popes, Marsilius’s survey of Christian history fades out with an exiguous account of Calixtus II’s (1119–24) relations with Henry V, adapted Marsilius’s own hand. Scholz (p. xxvi, n. 1) argues that the various correcting hands identiﬁed by Previté-Orton at DP pp. xxxvi–xxxvii are, in fact, identical, a view which Previté-Orton, reviewing Scholz ﬁve years after the publication of his own edition, does not contest in his ‘Review’, 655. Spiers, ‘Possible Common Source’, 471–8, cited above, p. 24, n. 106, argues that this passage alludes to another, earlier source. ¹³ DP II. xxiv. 17. ¹⁴ Courtenay, ‘University Masters’, 216–18; cf. above, p. 18. ¹⁵ CIC, X. 2. 2. 10. ¹⁶ Above, p. 172. ¹⁷ CIC, VI. 5. 12. 3; its terms are used in DP II. xiii. 3; as Previté-Orton pointed out (DP, p. 249, n. 1), they appear to distort Marsilius’s argument at II. xiv. 8.

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from Martinus Polonus.¹⁸ A glancing reference to emperors Otto IV and Frederick II fails even to identify their papal opponents.¹⁹ Papal history comes back into focus only with Boniface VIII. Since it was precisely during this period that the popes elaborated the theory of papal monarchy which, according to Marsilius, culminated under Boniface and his two inﬂuential successors, this yawning gap in Marsilius’s account is odd. It corresponds to another curious omission, to which I have already alluded. Marsilius’s knowledge of canon law during the most recent pontiﬁcates is impressive, but he fails to discuss explicitly any of the canon law of the twelfth and thirteenth centuries, even though he betrays, despite himself, considerable acquaintance with it.²⁰ Most strikingly of all, Gratian’s Decretum does not merit a single mention,²¹ even though one of its most notable commentators, Huguccio, is explicitly quoted, if only once; and that not on a point of law, but for a sententious platitude.²² The Decretum may have been the source from which Marsilius derived his reference to the Twelve Tables of Roman law and a few quotations from St Augustine,²³ although it is at least as likely that the latter were taken from an earlier canonical collection, the Panormia of Ivo of Chartres (d. 1116), which was Gratian’s source. In the case of a forged ‘edict’ in which Pope Leo VIII supposedly granted authority over investitures to the emperor Otto I, Marsilius, again claiming to be using ‘approved histories’, certainly took it from Ivo’s Panormia rather than from Gratian.²⁴ He links it with the election decrees of Stephen IX and Nicholas II in a way which Ivo does, but Gratian does not. ¹⁸ DP II. xxv. 11. ¹⁹ DP II. xxv. 12. ²⁰ Scholz (DP, p. 448, n. 1), identiﬁes some possible allusions to the Liber extra in DP II. xxiii. 10. ²¹ The reference, DP II. xi. 8, to the ‘decrees or histories of the pontiffs of the Romans’ when citing the donation of Constantine is not, as Previté-Orton implies, possibly to Gratian’s excerpts from the document, but to Pseudo-Isidore: see above, p. 113. ²² DP II. i. 2. This passage is, however, picked out by one of the rare marginal ﬁngers in Tortosa, Cathedral Chapter Library MS. 141, fo. 23r; for the possible signiﬁcance of these marginal ﬁngers, see above, p. 55, n. 18. ²³ DP II. xviii. 6; II. xix. 5, 6, discussed by Previté-Orton (ed.), pp. 308, n. 2, 314, n. 2, 315, nn. 1, 2; Scholz (ed.), p. 387, nn. 1, 2, 3; Previté-Orton, ‘Authors’, 410, 413. ²⁴ DP II. xxv. 9, ed. Previté-Orton, p. 389, n. 1; ed. Scholz, p. 476, n. 1; Panormia, cap. 136 (PL clxi. 1337–8); cf. above, p. 126. Further, Previté-Orton, ‘Authors’, 413–14, n. 6.

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Yet it is clear that the absence from the Defensor pacis of any modern canon law except the most recent cannot be explained by the conventional assertion that Marsilius’s legal knowledge was defective.²⁵ His works, and what we know of his life, prove otherwise. In 1336 Louis of Bavaria explained to Benedict XII that Marsilius and John of Jandun were too valuable to him as lawyers for him to relinquish their services, despite the fact that they were both excommunicated heretics.²⁶ The omissions are not evidence of Marsilius’s ignorance. They are deliberate. Why should Marsilius ignore legal evidence, other than the most recent, for burgeoning papal claims during the high middle ages? Why instead did he choose to use hopelessly outdated canonical collections from an earlier period, like (occasionally) Ivo of Chartres and, much more extensively, the much earlier PseudoIsidorian collection? To his critics, his choices must have seemed arcane in the extreme. When, in the prologue to William of Ockham’s III Dialogus ii, the Master laments that ‘I have any hope of obtaining only the Bible and the Decretum with the ﬁve books of decretals’, he may have been voicing William’s own frustration at the library resources in Munich, where, we may infer, only the basics were available. Yet Marsilius, writing in Paris, the intellectual capital of northern Europe, had almost entirely avoided one of those basics, preferring to cite canon law from books which must have lain virtually untouched for centuries on library shelves. Although there were several copies of Pseudo-Isidore still available in the rich holdings of Parisian libraries, the fourteenth century marks the lowest point in interest in the collection: only ﬁve extant copies are thought to have been made during that century, three of them in France.²⁷ From a ﬁfteenth-century ²⁵ The assertion is usually made with respect to Roman law: Previté-Orton, ‘Authors’, 413; Valois, ‘Jean de Jandun et Marsile de Padoue’, 566. ²⁶ Riezler (ed.), Vat. Akt. no. 1841. ²⁷ S. Williams, Codices Pseudo-Isidoriani: A Palaeographico-Historical Study, Monumenta iuris canonici, Series C, Subsidia, iii (New York, 1971), 125–7, 131 (for existing Parisian copies), 127–8 (for copies made in France in the fourteenth century); L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140): A Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), 103, gives a more extensive list, from which these ﬁgures are derived.

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perspective, Marsilius’s choice might have seemed prescient of that renewed interest in the collection which was prompted by conciliarism;²⁸ but at the time it must have appeared studiedly antiquarian. There are a number of possible explanations. One may be that some of the major decretals of the great lawyer popes prior to Boniface VIII carefully circumscribed, in a nuanced way, the exercise of papal power. They might have suggested a judiciousness and moderation on the part of these popes which had been recklessly cast aside at the beginning of the fourteenth century by the naked ambition of Boniface and his successors. Boniface, Clement V, and John XXII would therefore seem to have perverted papal claims, rather than to have pushed them to their logical, apocalyptic conclusion. Marsilius might therefore have judged detailed consideration of these documents to be potentially damaging to his case against the papacy as an institution.²⁹ Perhaps it was also for this reason that Marsilius did not make explicit use of his knowledge of thirteenth-century papal legislation on apostolic poverty, most notably Nicholas III’s Exiit qui seminat. He wanted simply to highlight John XXII’s Ad conditorem canonum, not to admit that it was a volte face which revoked Exiit (as Petrus Johannes Olivi had prophesied the pseudo-pope of the last days would).³⁰ To have treated thirteenth-century papal legislation on the matter would have been to acknowledge that the papacy had until very recently supported the doctrine. Such an acknowledgement would in turn have cast doubt on Marsilius’s characterization of the institution as the diabolical embodiment of greed. For polemical purposes, it was much more advisable to concentrate exclusively on the most recent, and most outrageous, manifestations of papal ambition. But, as we have seen, Marsilius was quite prepared to amend papal documents in order the better to support his argument, and it is easy to conceive of his making telling use of, say, Venerabilem, had he wished to do so. ²⁸ Williams, Codices Pseudo-Isidorianae, 128. ²⁹ Tierney, Foundations, 88–91; J. A. Watt, The Theory of Papal Monarchy in the Thirteenth Century: The Contribution of the Canonists (London, 1965), 44, 52–8 (the decretals of Innocent III), 61–2, 73 (Innocent IV), 110–25 (the decretalist Hostiensis); Morris, Papal Monarchy, 568–70. I owe this suggestion to Alexandra Gooden. ³⁰ Above, pp. 158, 182.

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A fortiori Marsilius could have had similar reservations about Gratian’s Decretum, to which collections of decretals, like the Liber extra, the Liber sextus, and the Constitutiones Clementis, were progressively appended by popes during the thirteenth and early fourteenth centuries. The Decretum could be said to have provided the main instrument with which the popes had attempted to subject Christendom to themselves, and it was doubtless encompassed in Marsilius’s repeated condemnations of decreta as well as decretales,³¹ otherwise termed ‘oligarchic edicts or ordinances’.³² But it was dialectical in form. It cited authorities on either side of a problem, and sought to resolve the apparent contradictions by drawing distinctions. It was an elaborate series of running arguments, not just a collection of documents or normative statements. For this reason it gave rise to differing views about the extent of papal jurisdiction in temporal matters.³³ Some of those which restricted the exercise of that jurisdiction informed the more nuanced decretals of the thirteenth-century popes.³⁴ Later, Gratian would be plundered for authorities to support arguments antithetical to papal claims.³⁵ The ostensible instrument of papal domination was, therefore, like the decretals issued by popes in the two centuries prior to Boniface, potentially more ambivalent than Marsilius might have been willing to admit. But its potential ambivalence means, of course, that Marsilius’s ingenuity could have turned Gratian against the papacy, as others, including William of Ockham, his later fellow asylum-seeker at Louis’s court, were to do. Marsilius seems to have chosen not to do this. Neither of these explanations is, therefore, entirely satisfactory. In any case, they may suggest why Gratian and all except the most recent decretal legislation is absent from the Defensor pacis. But they cannot explain why Marsilius preferred the Pseudo-Isidorian ³¹ DP II. ii. 7; II. xx. 10; II. xxiii. 7, 9, 13; II. xxv. 15; II. xxvi. 19; II. xxvii. 12, etc. For the distinction between the two, see above, p. 143. ³² DP II. xxiii. 9; cf. II. v. 5; II. xxv. 15. ³³ Watt, Theory of Papal Monarchy, 21–9. ³⁴ Watt, Theory of Papal Monarchy, 58, 62, 119. ³⁵ Tierney, Conciliar Theory, passim; B. Tierney, Religion, Law, and the Growth of Constitutional Thought, 1150–1650 (Cambridge, 1982), esp. 13–28, 60–5.

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decretal collection, which was by his day a work of antiquarian interest. His latching on to Pseudo-Isidore would have seemed idiosyncratic to any contemporary reader with a knowledge of canon law—and it is clear that, despite his affectations of ignorance, Marsilius knew a great deal about modern canon law. True, William Durant the Younger had recently, in his Tractatus maior, turned to Pseudo-Isidore to support his argument for regular general councils.³⁶ But he had used only the conciliar material in Pseudo-Isidore to supplement a case based ﬁrst and foremost on Gratian’s Decretum, not to the total exclusion of the Decretum.³⁷ Neither of these qualiﬁcations can be made with respect to Marsilius’s use of PseudoIsidore. It is to this ﬁnal puzzle with respect to the Defensor pacis that I now turn, because Pseudo-Isidore was Marsilius’s principal source on Christian history. Pseudo-Isidore provided him with the documentation with which to ﬂesh out the rudimentary summary of events provided by the terse annals of the other ‘approved history’ of Martinus Polonus.³⁸ The Pseudo-Isidorian decretals are a collection of documents, both genuine and forged, dating back to the earliest period of Christian history. Their ninth-century compiler gathered together many documents which exalted papal authority, because he saw this as the most effective protection for bishops, his principal concern.³⁹ The collection depicted the church as having been ruled by popes from the beginning. In the mid-eleventh century, when reformers attempted to use the papacy as the main instrument by which the church would be transformed, Pseudo-Isidore became an invaluable resource. With some tweaking, it could be used to justify the most extreme of papal ³⁶ C. Fasolt, Council and Hierarchy: The Political Thought of William Durant the Younger (Cambridge, 1991), 118–20; his arguments were considered at the council of Vienne in 1311: pp. 116–17, 290–3. I am indebted to Annabel Brett for alerting me to the partial parallel. ³⁷ Fasolt, Council and Hierarchy, 122. ³⁸ DP II. xviii. 2 categorizes the ‘Codex of Isidore’ as one of the ‘approved histories’. ³⁹ H. Fuhrmann, Einﬂuss und Verbreitung der pseudoisidorischen Fälschungen von ihrem Auftauchen bis in die neuere Zeit, 3 vols., MGH. Schriften, vol. xxiv (Stuttgart, 1972–4), i. 146; Robinson, ‘Church and Papacy’, in Burns (ed.), Cambridge History of Medieval Political Thought, 269, 286–7.

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claims.⁴⁰ It became the foundation for all the canon law collections produced by the reformers, including Ivo of Chartres’s Panormia, up to Gratian’s Decretum. Gratian also derived many texts from Pseudo-Isidore, but he differed from earlier canonists in the systematic application of a method which had been sketched by Ivo:⁴¹ he balanced authorities on either side of a question, and attempted to resolve the apparent discrepancies, rather than simply compiling documents.⁴² This simple fact is the main reason why Marsilius eschews Gratian, and focuses on Pseudo-Isidore. For Marsilius, Pseudo-Isidore was a convenient work of reference. It included all those forged and authentic documents purporting to date from the period up to the end of the seventh century which underpinned papal claims. Moreover, it arranged them in an ostensibly chronological order. It could therefore be read as a record of the progressive piling up of authorities over that period. The chronological arrangement—not maintained, for instance, in Ivo of Chartres’s more sophisticated Panormia—meant that the documents could easily be inserted into the rough chronological structure provided by Martinus Polonus. In view of Marsilius’s historical perspective on papal development, this crude, antiquarian arrangement of canonical material suited his purposes perfectly. He went so far as to assert that the donation of Constantine, taken from Pseudo-Isidore, was ‘inscribed . . . in the decreta or histories of the Roman pontiffs’, as if decreta could just as appropriately be termed histories⁴³ or narraciones.⁴⁴ And a further advantage of Pseudo-Isidore over Gratian was that Pseudo-Isidore gave the key documents in their entirety, not short excerpts as Gratian usually did. I have already identiﬁed the recension ⁴⁰ H. Fuhrmann, ‘Das Reformpapsttum und die Rechtwissenschaft’, in J. Fleckenstein (ed.), Investiturstreit und Reichsverfassung (Sigmaringen, 1973), 175–203; Robinson, ‘Church and Papacy’, 272–6. ⁴¹ R. Somerville and B. C. Brassington (eds.), Prefaces to Canon Law Books in Latin Christianity (New Haven, 1998), 132–58; B. Brassington, ‘The Nachleben of Ivo of Chartres: The Inﬂuence of his Prologue on Several Panormia-derivative Collections’, in P. Landau and J. Müller (eds.), Proceedings of the Ninth International Congress of Medieval Canon Law, Monumenta iuris canonici, Series C, Subsidia, x (Vatican City, 1997), 63–85. ⁴² A. Winroth, The Making of Gratian’s Decretum (Cambridge, 2003), 3–5. ⁴³ DP II. xi. 8; cf. II. xviii. 2. ⁴⁴ DP II. xxv. 17.

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of Pseudo-Isidore from which Marsilius took his text of the donation of Constantine;⁴⁵ the extracts inserted as additions (paleae) in the Decretum⁴⁶ would have been far less useful to him, given the central role of the donation in his argument. From Marsilius’s point of view, even the version of the donation found in Pseudo-Isidore was, as we have seen, regrettably imprecise in its wording, and had to be sharpened up.⁴⁷ Marsilius condemns the decretals preserved by Isidore in the same breath as all other decreta and decretales (albeit with the caveat that some of them may ‘contain very many teachings and counsels which are even useful both for the status of the present and the future world’).⁴⁸ Boniface VIII is, for instance, said to have reiterated in Unam sanctam what had been asserted many centuries before in the preface to the collection.⁴⁹ But Pseudo-Isidore is not condemned in its entirety, as later canonical collections are, at least by implication. On the contrary, Marsilius made selective use of it in order to demonstrate that even after Constantine’s conversion the church had not been the papal monarchy into which it was later to be transformed.⁵⁰ For Marsilius, not unlike William Durant the Younger shortly before him,⁵¹ Pseudo-Isidore provided evidence for the character of the early church in its pristine purity, before papal ambition had burgeoned. For instance, a letter attributed to Pope Melchiades and entitled (in Pseudo-Isidore) ‘On the primitive church and the Nicene council’ associated the primitive church with the common life, and made Constantine responsible for the ﬁrst acquisition of property by the church.⁵² It may have provided Marsilius with his deﬁnition of the term ‘primitive church’ as the pre-Constantinean church. Precisely because the Pseudo-Isidorean collection was old, and purported to be even older than it was, it could not also provide evidence for the ⁴⁵ Above, p. 107. ⁴⁶ CIC, Decretum 1. 96. 13, 14. ⁴⁷ DP I. xix. 9; above, p. 111. ⁴⁸ DP II. xx. 13; II. xxviii. 29. ⁴⁹ DP II. xx. 8, citing Decretales, ed. Hinschius, p. 18 and CIC, Extrav. Comm. 1. 8. 1. ⁵⁰ See e.g. DP II. xxi. 1–7; II. xxvii. 3, 7, 9; II. xxviii. 19, 20. ⁵¹ Fasolt, Council and Hierarchy, 117, 263. ⁵² Decretales, ed. Hinschius, pp. 247–9, cited by Marsilius in DP II. xviii. 7; II. xxii. 19. The importance of this passage is discussed by Olsen, ‘Ecclesia primitiva’, 69, 81–2.

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culmination of that excoriating process, which had come to pass in Marsilius’s own day. In certain respects, therefore, Pseudo-Isidore provided a model of what the church should be like, as well as preserving evidence for the origins of those perversions which had subsequently damaged it.⁵³ Some of this evidence—like the Epistola vel praefatio Niceni concilii—Marsilius condemned as erroneous,⁵⁴ and some of it—like the Epistola Clementis—as forged.⁵⁵ Even if it were accepted that a document had been written by the supposed author, that did not mean that what it said was true.⁵⁶ The evidence was not to be accepted unquestioningly, but tested critically. For instance, while the assertion of the Epistola Clementis that St Peter and his successors alone had the power of the keys could be disregarded, a letter of (Pseudo-) Anacletus to the effect that Christ gave the power to all of the apostles was, as we have seen, to be taken seriously.⁵⁷ In this way a compilation which had been designed originally to emphasize papal authority within the church, and which had for that reason been seized upon by the reformers of the eleventh century, could be turned against what it had been used to promote. This is why it becomes evident as Marsilius’s argument moves towards its conclusion that Pseudo-Isidore had more inﬂuence on him than any other source, with the arguable exceptions of Scripture and Aristotle. It is my contention that what becomes evident in the latter stages of Discourse II is in fact true of the whole Defensor pacis. For it was from Pseudo-Isidore that Marsilius took his text of the donation of Constantine, and it was the working out of the consequences of that document which, in Marsilius’s view, explained the apocalyptic crisis which was engulﬁng Christendom in his own day. Not unlike Marsilius’s treatment of Landulphus Colonna’s treatise in his eponymous De translatione imperii, Marsilius seems to have found it productive to write against the grain of his main source. As he put it with ironic understatement

⁵³ DP II. xxii. 10, 19. ⁵⁴ DP II. xxviii. 12; cf. above, p. 108. ⁵⁵ DP II. xxviii. 4; cf. II. xxviii. 1. ⁵⁶ DP II. xix. 8. ⁵⁷ DP II. xvi. 12, cf. II. xxviii. 27; Decretales, ed. Hinschius, p. 79; discussed above pp. 94–5.

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in the opening chapter of that treatise, his source’s ‘writings differ in some respects from our own opinion’.⁵⁸ But however critical he was in his assessment of Pseudo-Isidore, his understanding of Christian history was nevertheless inevitably shaped by it. For Marsilius shared with his main, papalist sources—Landulphus Colonna, Isidore Mercator (the supposed compiler of Pseudo-Isidore), and on a humdrum level the chronicler Martinus Polonus—the fundamental assumption that history was a providentially ordained process by which the ultimate salvation of fallen man would be brought about. These sources all attributed to the popes the central role, ordained by Christ Himself, in this soteriological process.⁵⁹ Marsilius, by contrast, considered that the bishops of Rome had, on the basis of Constantine’s almost fatal error, progressively become the pre-eminent agents of Satan. Marsilius and his sources held antithetical views about the nature of the papacy’s role, but they agreed on its centrality. It is in this vein that we should read the Defensor pacis. It was not the work of a secular, republican, legal positivist. If it had been, it would indeed, as many modern commentators have claimed, have transcended its time, and would therefore not have been understood by its audience. It was precisely because Marsilius addressed his prospective readers and—difﬁcult as it may be for modern readers to credit this—listeners⁶⁰ in familiar language, invoking familiar authorities, that the Defensor pacis was so effective, and quickly became so notorious. As we have already seen, this is amply demonstrated by Licet iuxta doctrinam, John XXII’s condemnation of Marsilius and John of Jandun for heresy.⁶¹ It was the novelty of Marsilius’s interpretation, not of his material, that led him to declare that he would proceed systematically through the issues, on account of the expected ‘slowness’ of his audience.⁶² ⁵⁸ DTI, cap. 1, p. 374. ⁵⁹ For a summary of this view as expounded by Pope Innocent IV, and developed by the decretalist Hostiensis, see Watt, Theory of Papal Monarchy, 67–8. ⁶⁰ DP II. ii. 1. John XXII reported that Marsilius and John of Jandun had preached the book’s doctrine in Louis of Bavaria’s territories: Raynaldus, Annales v. 347; MGH. Const. vi, pt. 1, no. 575, p. 478. ⁶¹ Raynaldus, Annales v. 347–53. ⁶² DP II. xviii. 1.

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Marsilius used sources ‘approved’ by his opponents, which were therefore unimpeachable. Indeed, in Licet iuxta doctrinam John XXII would denounce ‘those pestiferous men’, Marsilius and John of Jandun, for their interpretation of ‘approved histories’,⁶³ the very term used by Marsilius. On the basis of these and other ‘approved’ sources, Marsilius attempted to demonstrate how and why Christian history had gone so wrong, and to ‘cut out the roots of that singular malignancy’⁶⁴ which he had identiﬁed at the beginning of the book as unknown to Aristotle. The weight he attributed to his sources may be suggested by the fact that in the manuscript which he had probably revised, quotations have been underlined, apparently by one of the revising scribes—perhaps Marsilius himself.⁶⁵ Marsilius categorized the sources in chronological order. Scripture came ﬁrst, and this appeared to give it a conventional primary importance. As should be clear by now, by Scripture Marsilius meant overwhelmingly the New Testament. But infallible as he deemed Scripture to be, he added that it could throw light only on ‘origins’. According to his analysis, of course, Scripture recorded the church in its pristine state. Rightly interpreted, it provided a model for what the church should be, not what it had been perverted into long after the period when Scripture was written. It is evident, then, conventional piety aside, that Marsilius placed far more emphasis on his second type of source when demonstrating how Christian history had gone wrong. This category he described as what could ‘be gathered from approved histories, especially the Codex of Isidore’, because these sources bore on developments subsequent to the period covered by Scripture. Some of the documents preserved in these sources—the records of the proceedings of general councils—were, like Scripture, infallible; others, though not infallible, were genuine; others were forgeries. As William of Ockham pointed out, Marsilius did not disregard the latter two categories, but made extensive use of them.⁶⁶ Yet although Pseudo-Isidore was, for Marsilius’s purposes, more important than ⁶³ Raynaldus, Annales v. 349. ⁶⁴ DP III. i. ⁶⁵ Tortosa, Cathedral Chapter Library, MS. 141; DP, ed. Previté-Orton, p. xxxvi; ed. Scholz, p. xxviii. ⁶⁶ Above, p. 32.

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Scripture, it too was historically limited. It included no document which purported to have been written later than the seventh century, when Isidore Mercator was considered to have compiled the collection. This meant that, for the period subsequent to that covered by Pseudo-Isidore, it would be necessary to draw on a third type of source: ‘what we have been taught by “experience, the mistress of disciplines”.’⁶⁷ Both Pseudo-Isidore, and the records of ‘experience, the mistress of disciplines’, would have been included in the category which Marsilius elsewhere terms ‘human scriptures’.⁶⁸ Marsilius therefore appears to consider sources to be relevant to their particular period in the historical development of papal power, just as, at the beginning of the Defensor pacis, he recognized the historical limitations on Aristotle. And he invokes ‘experience’ as the key source for the period after Pseudo-Isidore, during much of the latter part of which—up to the pontiﬁcate of Boniface VIII— he almost avoided explicit mention of any particular papal documents. Other than those produced by the three recent popes, and setting aside Peter Lombard and Thomas Aquinas as authorities on theology in general and the interpretation of Scripture in particular, the records of ‘experience’ meant in practice (and in ascending order of importance) Ivo of Chartres, Bernard of Clairvaux, and Martinus Polonus. This trio would represent a curious choice of representative sources for the period from the eighth century to the end of the thirteenth, were it not for the submerged knowledge of modern canon law which we have seen only very occasionally breaking the surface of the text. A case in point—albeit a very recent one—is Marsilius’s very invocation of ‘experience, the mistress of disciplines’ as the key to understanding the most recent development of papal claims. The invocation is in fact a quotation, or more accurately, a slight misquotation from John XXII’s Ad conditorem canonum (8 December 1322),⁶⁹ which reversed previous papal policy by condemning the doctrine of apostolic ⁶⁷ DP II. xviii. 2. ⁶⁸ DP II. xxvi. 18; see above, p. 117. ⁶⁹ CIC, Extrav. Ioh. XXII, 14. 3; John was in turn quoting Gregory X’s Quam sit ecclesiis: VI. 1. 6. 6. Marsilius also quotes Ad conditorem at DP II. xxiii. 12.

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poverty, and which, as we have seen, appears to have shaped Marsilius’s emphatic reassertion of that doctrine in the Defensor pacis.⁷⁰ Marsilius clearly liked the tag, because he quoted it again, more accurately, when introducing one of his discussions of Unam sanctam,⁷¹ and a third time when denouncing the corruption inherent in papal provisioning⁷² (a practice from which, as John XXII indignantly pointed out, both he and John of Jandun had beneﬁted in their time).⁷³ I suggest that he liked repeating it because he was pointedly using a phrase familiar from John XXII’s recent condemnation of apostolic poverty to characterize not just his most recent category of source, but his whole approach to uprooting the ‘singular malignancy’ of the plenitudo potestatis. He relished damning his opponent out of his own mouth. The main novelty of the Defensor pacis lies in this approach. As I have tried to show, it means that the book has an historical framework. It gives the lie to the familiar denunciation of scholastic thinkers for their alleged lack of historical sensitivity. We should not accept unquestioningly the specious claim that it was the humanists who invented history,⁷⁴ not least because it was a characteristically tendentious piece of humanist self-promotion. Even if that claim is reﬁned to one about philological analysis of the shifting meaning of words, Marsilius had, as we have seen, shown himself acutely sensitive to the phenomenon, not unlike other scholastic thinkers later castigated by humanists for their lack of historical sense.⁷⁵ The historical framework of the Defensor pacis also gives the lie to most recent scholarly interpretations of the book. It is a work of Christian providential history, focused on the Roman Empire. As Marsilius was well aware, it was his reassessment of the role of the papacy in that history which made the book such a sensation in his own day, and for centuries afterwards. In his view, that reassessment ⁷⁰ DP II. xiii. 6–39; above, pp. 146–8. ⁷¹ DP II. xxi. 9. ⁷² DP II. xxi. 12. ⁷³ MGH. Const. vi, pt. 1, no. 277; see above, p. 138. ⁷⁴ D. R. Kelley, Foundations of Modern Historical Scholarship (New York, 1970). ⁷⁵ Above, p. 85; see e.g. Bartolus of Sassoferrato’s analysis of the changing meanings of the terms ‘Guelph’ and ‘Ghibelline’, in his treatise on faction: De Guelphis et Gebellinis, in D. Quaglioni (ed.), Politica e diritto nel trecento Italiano. Il ‘De tyranno’ di Bartolo da Sassoferrato (1314–1357) (Florence, 1983), 129–46.

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had itself been providentially ordained. He had been equipped to make it by ‘an understanding . . . granted to me by grace, and from a spirit of conﬁdence granted me too from above’. His part being concluded with the completion of the book, he now handed on the task to Louis of Bavaria. It was Louis’s ordained role ‘to give this work the ending which it hopes for’ in terms of external action. Marsilius calls on him to do so ‘as the minister of God’.⁷⁶ But Marsilius’s ‘work’ proved to be so inﬂuential that his own providentially ordained role turned out to involve more than writing the call to arms. As we have seen, he went on to play a central part in the attempt to implement in political reality ‘the ending which it hopes for’.⁷⁷ That ‘ending’ would, he prophesied, at last resolve the ultimately and necessarily catastrophic paradox on which the Christian Roman Empire had been founded. Thereby it would make possible the ‘ending’ of history itself—of the process during which divine providence had ordained that a remedy for the Fall would be worked out. Indeed, there is little reason to think that Marsilius distinguished between two such ‘endings’, or that he regarded the failure of Louis of Bavaria’s Italian venture in 1329 as anything other than a temporary setback. That he said his book embodied a hope did not reveal any uncertainty on his part about whether the ‘ending’ would indeed come to pass, but, on the contrary, an ineluctable faith in divine providence. This was the eschatological ‘truth of history’⁷⁸ which, in Marsilius’s own estimation, it had been his ordained role to ‘unfold’.⁷⁹ ⁷⁶ DP I. i. 6. I have followed the interpretation of this important passage in DP, ed. Brett, pp. xvii, 8, n. 24. ⁷⁷ Above, pp. 28–9. ⁷⁸ DTI, cap. 2. ⁷⁹ For Marsilius’s use of the verb explicare, see DP, ed. Brett, pp. xix, 6, n. 12.

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—— The Problem of Sovereignty in the Later Middle Ages (Cambridge, 1963). —— ‘Corporation and Representation in the Defensor pacis’, Studia Gratiana, xv (1972), 253–92. Williams, S., Codices Pseudo-Isidoriani: A Palaeographico-Historical Study, Monumenta iuris canonici, Series C, Subsidia, iii (New York, 1971). Winroth, A., The Making of Gratian’s Decretum (Cambridge, 2003). Woolf, C. N. S., Bartolus of Sassoferrato: His Position in the History of Political Thought (Cambridge, 1913). Zutshi, P. N. R., ‘The Political and Administrative Correspondence of the Avignon Popes, 1305–1378: A Contribution to Papal Diplomatic’, in Aux origines de l’état moderne: le Fonctionnement administratif de la papauté d’Avignon, Collection de l) École française de Rome, cxxxviii (Rome, 1990), 371–84.

Index Aaron 55 Abraham 54, 56, 87 Adam 53, 75, 150 Adrian I, Pope 169 Adrian III, Pope 127 Aerius 96 Aimonius of Fleury 168–9 Almain, Jacques 10 Altopascio, knights of 144 Alvarus Pelagius Collyrium ﬁdei adversus haereses 27–8 Status et planctus ecclesie 26–8, 74, 115 n.50; refutes Marsilius’s interpretation of donation of Constantine 116 Ambrose, St 165 Amidani, William, of Cremona 22, 104 Antioch 94, 97 ‘approved histories’ 51 n.8, 73, 114, 119, 123, 128, 187, 192 ‘apocryphal writings’ 96, 97, 113 apostles 20, 23, 31, 32–3, 35–6, 78, 80, 82, 84, 90; assignment by divine revelation or own immediate human ordination gives them no perfection 87; ﬁrst successors of 87; formation of church at instigation of 92; putative election of St Peter to a prioritas 94–5, 99; receive their power equally and immediately from Christ 93; standard of evangelical perfection provided by 147

apostolic poverty 38, 41, 119–20, (‘meritorious’) 125, 146, 193–4; necessity for subsistence 148; a status of perfection 146–7, 152 Aquinas, St Thomas 74, 193 Aristotle 53, 70, 136, 148, 190; on formation of city 60, 92; historical limitations on 49–50, 60, 193; historical sense of 64; on perfection 64, 66; on priests 63, 84 Metaphysics 92 Nicomachean Ethics 61, 65 Physics 64 Politics 49, 60, 61 n.46, 63, 66–7, 68, 142, 148 Arnald of Verdalla 40 Augustine, St, of Hippo 68, 74, 183 Augustinus Triumphus 112, 115 n.50 Augustus Phocas, Emperor 115 Avignon 15, 22, 23, 24, 26 Barbe, Richard 42 Bartolus of Sassoferrato 13, 133 Beguins 144 Benedict XII, Pope 1, 184; commissions inquiry into Defensor Pacis from Pierre Roger 25, 37, 41; failed rapprochements with Louis of Bavaria 24, 28, 38–9, 40 Bernard, St, of Clairvaux 193, see also Constantine, donation of

Index bishops in apostolic times 85, 96 n.202; in primitive church 85–8, 103; election of progressively perverted by popes 137; ofﬁce originally consisted wholly in ‘secondary’ or ‘human’ power 86; of Constantine’s time and after receive grants of temporalia and administration from emperor 108, 120, 138; episcopal vacancy 124 Bodin, Jean 5 Boniface VIII, Pope 138, 182–3, 185, 186, 193 Unam sanctam 134–5, 137, 145, 155, 173–4, 179, 189, 194 Bonogratia of Bergamo and Talheim 39 Caesar, (Octavius) Augustus, Emperor 68, 69–70, 73, 75–6, 115, universal authority of 133–4 Caesar, Julius 67, 69–70 cardinals see Roman priestly college Calixtus II, Pope 182 Castracani, Castruccio 37 Charlemagne, Emperor 169, 175; imperial coronation of 170 Charles V, King of France 44–5 Childeric III, King of the Franks 168 Christ 54, 57; analysis of his words to the apostles 94 n.188; attitude to Pilate 74; enjoins duty of obedience to legislator humanus (Roman emperor) 76, 78; hints that his punishment is unjust 76; human nature of 53; incarnation or advent of 52–3, 58, 59, 73, 76 n.122, 77; passion and death of 54, 57–8, 75, 77; resurrection of 54, 58, 94; role in priestly ordination 79, 84, 151–2;

211 sends apostles out into the world 87; standard of evangelical perfection provided by 147; subsistence of 147–8; time of 71, 73, 77 church Greek orthodox 167 primitive appointment of judges by in cases of excommunication 83, 102; appointment of priests in 90, 92; bishops in 85; deﬁned 77, 189; excommunication in 82; priests in 85 modern 136, 140–3, 146, 152 circumcision 54, 87 civitas 6; end of 149; formation of 60–1; historical development of 64–5; parts of 141–2; as perfect community 64, 148; Clement I, Pope 97–9 Clement V, Pope 172 n.1, 185 bull codemning the Venetians for their annexation of Ferrara 181 Pastoralis cura 165, 172–3, 179, 182 Romani principes 173–4 Clement VI, Pope 1, 39, 40–1 collatio of 10 Apr. 1343 17, 25, 30, 41 collatio of 11 Jul. 1343 30 community civic 140, 149; elision with the faithful 82; of faithful 88, 109, 139, 150; not faithful 109; Aristotelian perfect 61, 64, 66; Aristotelian pre-political 60–1, 65; Marsilius’s perfect 65, 70, 89, 149; Christ and His apostles perfect 147, 149 Conrad of Megenberg 23–4, 30 n.140, 43, 116

212 Constantine, Emperor alleged ipsissima verba of 108; alleged to have acquired ﬁrst church property 189; conversion of 77, 101, 106, 141; equated with the legislator 118 n.66; error 191; seems to exempt bishops of Rome from coercive jurisdiction 108; successor of Augustus 134; time of 120, 176; transfers capital to Constantinople 171 donation of (Constitutum Constantini) 106–8, 109, 146, 157, 188; interpretation of the Fraticelli 158; interpreted by bishops of Rome 108, see also plenitudo potestatis; St Bernard on 117; canonist defence of 114; civilian attacks on 114–15; grants secular dominium to Sylvester 109, 120, 132; Innocent IV on 112; institutes existing prioritas of bishop and church of Rome in law 110–11, 136; legal basis for elision between church and legislator humanus 141; Marsilius fails to dismiss as a forgery 113; pivotal in Marsilius’s argument 115; source of papal claims to control priestly appointments and distribution of temporalities 110, 120, 127; originally sole basis of claim to coercive jurisdiction by Roman bishops 128, 132; territorially restricted 108–11, 120, 131–2, 163; use of in transformation of plenitudo potestatis 130–1, 135; account of in De

Index translatione imperii 110–11; this account follows Landulphus Colonna, rather than the donation 125; text in Pseudo-Isidore 110–11, 132, 134, 189–90; text in Gratian 111; see also Alvarus Pelagius, John XXII Constantine V, Emperor 168 Constantine VI, Emperor 170 Cromwell, Thomas 4 n.11. d’Ailly, Pierre 10 Dante Alighieri 2, 75–6, 114, 160–1, 164, 165 deacons, appointed by apostles 87, 137; in primitive Church 86; involvement of the faithful in appointment of 88; laying on of hands in ordination of 88 decreta 143, 186, 189; termed ‘histories’ 188 decretales 143, 186, 189; constitute treason against secular rulers 145 de Lagarde, G. 4, 11, 14 Disputatio inter clericum et militem attributed to both William of Ockham and Marsilius 33 n. 161 ‘divine scriptures’ see Scripture Edward III, King of England 44–5 Engelbert of Admont 75–6, 155 Ephesus, ‘Robber’ council of 121 Epistola Clementis, invoked by John XXII in Licet iuxta doctrinam 97; see also Pseudo-Isidorian Decretals Eugenius IV, Pope 33 Evrart de Tremaugon 44 excommunication 80, 81–3, 92; judge in case of 83, 91, 102; threatened by Roman bishops 143

Index Fall 47, 52, 53, 57, 75, 156–7, 195; Christ and His apostles recreated the state of innocence prior to 147–8, 152 ﬁdelis legislator humanus 85, 89, 141; bounds become identical with the Empire 166; as ‘perfect’ 89; universal 163–4; see also legislator humanus Figgis, J. N. 2, 8 Frati Gaudenti 144 Francis of Venice, trial of 15–16, 19, 43; allegedly a servant of Marsilius 15; lends money to Marsilius 16; allegedly smuggles a copy of the Defensor pacis to Marsilius in Germany 15, 17, 24; allegedly distributes copies of the Defensor pacis 15, 21, 28 Franciscans 147, 152; Spirituals 154 Frederick II, Emperor 112 n.31, 183 general councils Chalcedon 118 n.63, 121 n.77; election of 164; exclusion of laymen from in modern times 140; ﬁrst held at Constantine’s request 118; to heal schism between East and West 167; infallibility of 31, 65; Marsilius’s views on quoted in Somnium viridarii/Songe du vergier 45; Nicaea 106–8, 118; proposal to prosecute John XXII before one 38; regulate distribution of temporalia 120–1; summoning of 164; William Durant the Younger’s views on 187 Germany modern Roman princeps has authority over 134; see also rex Romanorum

213 Gerson, Jean 10 Gewirth, A. 3–9, 10, on the ‘Romanist’ interpretation of Marsilius 12–13 goods, temporal 26, 86; bishops of Rome seem to have coercive jurisdiction over those of other churches 108; distribution of regulated by general councils 118; modern clerics have less need for these than their forbears 139; papal claim to distribute all ecclesiastical temporal goods 110 Gregorovius, F. 1–2, 45 Gregory III, Pope 167 Gregory V, Pope 176 Gregory VII, Pope 47 Gregory IX, Pope 175 Gregory X, Pope Quam sit ecclesiis 193 n.69. Gregory XI, Pope 43, 44–5 Guido Terreni 22 Concordia quatuor evangelistarum 35–6 Guillaume de Pierre Godin 25 Henry V, Emperor 182 Henry VII, Emperor 153, 165 Henry of Cremona 112 Heraclius, Emperor 133 n.135, defection of eastern provinces under 166–8, 170 Hermann of Schildesche 26 Hesiod 62 history, distortion of by popes 135–6; providential 48, 50–2, 66, 75, 118, 149–50, 156–8, 171, 191, 194–5; supposed humanist invention of 194 Holy Ghost/Spirit 78, 87, 88 Hospitallers 144 Hostiensis 115 n.47, 191 n.59 Huguccio 183

214 human scriptures/writings 117, 128, 129, 193; confused with Scripture 131–2 iconoclasm 167 Innocent III, Pope Licet ex suscepto 172 n.1, 182 Novit 112 Venerabilem 27, 175, 177–8, 182, 185 Innocent IV, Pope 112, 185 n.29, 191 n.59 Eger cui lenia 112 Investiture Contest 151 Islam 166, 170 Israel, ancient or Old Testament 62; judges in 56, 59; principatus in 54–5, 57 Italy 50, 52, 65 n.66, 110–11, 133, 136, 155, 168 regnum Italicum 49, 68, 110, 131, 134 Ivo of Chartres 184, 193 Panormia 51 n.8, 127, 183, 188 James, brother of Christ 97 Jeroboam 166 Jerome, St 94 Jerusalem 76 Jews, voluntarily submit to Rome 76 Johannes de Turrecremata 46 John XXII, Pope 1, 44, 47, 52; agrees with Marsilius 76; alleges that Marsilius and John of Jandun presented a copy of the Defensor pacis to Louis of Bavaria 18; attacks on Franciscans 147; on the Beatiﬁc Vision 38; commands of contrary to divine law 156; compares Marsilius and John of Jandun with infamous heretics 21; condemnations of Louis 181;

Index condemnation of Louis’s Lombard envoys 179 n.1; crusades against the faithful 163; denounces Marsilius and John of Jandun for denying the existence of popes prior to Constantine 104; deposition of 29, 37; ﬁrst response to the Defensor pacis 18, 43; a heretic 155; identiﬁes Francis of Venice as a servant of Marsilius 15; identiﬁes worst heresy in Defensor pacis 21, 43, 116; orders arrest of Marsilius and John of Jandun 17; presentations in favour of Marsilius and John of Jandun 18, 138, 194; pressurises University of Paris over the Defensor Pacis 43; prolongs imperial vacancy 154, 171; provisions and reservations under 137; failed rapprochement with Louis of Bavaria in 1331 24; real and alleged views on the electors 177–8; refutes Marsilius’s interpretation of donation of Constantine 116; usurpation of role of ﬁdelis legislator humanus 163, 171, 173 Ad conditorem canonum 179 n.2, 185, 193 Certum processum 19, 43 n.205 Cum inter nonnullos 137 ‘Fourth Process’ 177, 180 Licet iuxta doctrinam 19–22, 28, 46, 74, 93, 96, 116, 191–2 monitorium 172, 175–6 Quia vir reprobus 24 n.106, 181 Si fratrum et coepiscoporum 172 John of Dyodona 42

Index John Henry of Moravia, divorce from Margaret Maultasch 41 John of Jandun 14; alleged co-authorship of the Defensor pacis 17; cited for heresy 18; condemned for heresy 19, 174; commentary of, on Peter of Albano 43 n.199; death of 39; ﬂight into exile 35; member of the Theology Faculty, University of Paris 43; see also under John XXII, Licet iuxta doctrinam Judas Maccabeus 76 Lambert Guerici of Huy 26 Landulphus Colonna 67–8, 69 n.82, 70, 73 n.104, 110, 112, 125, 166–71, 176–7, 190–1 Last Judgement 52, 157 Laurentius Aretinus 33 law see also lex regia canon Gratian, Decretum 97 n.209, 110–11, 183, 186–9 Extravagantes Iohannis XXII 180 Liber extra 144, 175, 182, 186 Liber sextus 144, 182, 186 Constitutionis Clementis 144, 172, 180, 186 see also decreta, decretales, Ivo of Chartres, Pseudo-Isidorian decretals, and under individual popes and canonists divine 59, 89, 91; alteration of 105 n.244; deﬁned by laymen and clerics in a collegium 100; faithful gradually become bound by divine law to obey the bishop and church of Rome in pre-Constantinean period 104; ignorance of, on the part of modern cathedral

215 chapters 137; participation of laymen in deﬁnition of 90, 100; must be obeyed in preference to pagan legislator 91, 156; pope’s alleged authority by 111–12 human/civil Aristotelian foundations of 60; clerics exempted from by popes 145; encompassed within divine providence 59, 150; Marsilus’s analysis of 61–2, 64–6, 77, 89; perfection of 65, 150 New or evangelical/ ‘law of grace’ / ‘law of eternal salvation’ 56–8, 75, 76, 86, 87; broken by clerical departure from apostolic poverty 120; end of 150; in Scripture 129; ‘sufﬁcient and perfect’ 150; taught by priests 78 Old or Mosaic 54–5, 57–8, 63, 79 lay investiture ﬁrst assumed by the legislator/emperor after Constantine’s conversion 126; attempted papal prohibition of 127–8 legislator humanus 62, 64, 66, 72; 71 (‘supreme’) 73, 75 (‘supreme’) 141, (‘supreme human legislator of the Roman Empire’) 170; elision with church 166; imminent destruction of 156; perfection of 89, 118; when pagan 89–92, 100, 102–3, 122; see also universitas civium, ﬁdelis legislator humanus Leo III, Emperor 167 Leo III, Pope 168–9 Leo VIII, Pope 126, 183 lex regia 73, 75, 114–15

216 Louis, duke of Bavaria, king of the Romans, and self-styled emperor 1, 9, 47, 52, 174; agent of providence 156–7; apocalyptic presentation of 154; attempted rapprochement with Benedict XII 24, 28, 38; bewilderment at arrival of Marsilius and John of Jandun in Nuremberg 15; condemned for heresy in 1327 19, 174, 181; condemnation renewed 1329 21; deposition of John XXII 29; disingenuousness of 38–9, 40–1; election obstructed by pope 134; imperial coronation of 37, 46; imperial title used by Marsilius 177; Italian expedition of 28–9, 36–7, 41, 195; providentially ordained role 195; negotiations with Cardinal Napoleon Orsini 38; refusal to relinquish Marsilius and John of Jandun in 1336 184; refusal to sanction papal occupation of certain provinces 114; renunciation of Marsilius and John of Jandun in 1343–4 40; speech by, delivered in the house of the Teutonic Order in Frankfurt 39 Fidem catholicam proﬁtentes 40 Louis, margrave of Brandenberg, son of Louis of Bavaria 35, 41 Mair (Major), John 10 Marcian, Emperor 118 n.63 Margaret Maultasch proposed marriage with Louis, margrave of Brandenberg 35, 41

Index Marsilius accuracy in transcribing documents 98 n.218; selective inaccuracy 111, 134, 179–80; alleged republicanism of 9–12, 165; apocalyptic analysis of 135, 157–8, 171; as an historian 51; beneﬁciary of papal presentations 18, 182; cited for heresy in 1327 18; condemned for heresy 19, 174, see also John XXII, Licet iuxta doctrinam; death of 41; equates John XXII with Satan 157; fabrication of papal documents 177, 180–1; federalism not foisted on 164; Francis of Venice allegedly a servant of 15–16; introduces John of Jandun to the work of Peter of Albano 43 n.199; medical career of 15, 43, 54, 83; providentially ordained role of 195; putative membership of Theology Faculty, University of Paris 43; putative military career 153; rector of University of Paris 42; role in Louis of Bavaria’s Italian expedition 29, 36–7, 46; seeks asylum 12, 14, 15, 16, 35, 153; in service of Matteo Visconti 18, 172; shibboleth in the dispute with the papacy 39; visits Avignon 154, 182 Defensor pacis, editio princeps 46 n.224; manuscripts of 2 n.3, 14, 17, 23–4, 31, 55, 93 n.188, 110, 117, 163 n.18, 169 n.42, 177 n.35, 181–2, 192; Marsilius preaches doctrine of 21, 191 n.60; makes inseparable the issues

Index of papal right of approval of the election of the rex Romanorum and apostolic poverty 41; French translations 42, 46; Italian translation 46; knowledge of civil law in 114; relationship between Discourses I and II 50–1; written to assist Louis 153 Defensor minor 69 n.82; as a response to Ockham’s critique of the Defensor pacis 34; on general councils 65; on the establishment of the Roman Empire 71–2, 76; on excommunication 82; source for Marsilius’s treatises on the divorce of Margaret Maultasch and her subsequent marriage to Louis, margrave of Brandenberg 41; universality 72, 163 De translatione imperii 67, 69, 71–2, 110, 125, 128, 133 n.135, 166; twists template of 168, 176–7, 190, see also Landulphus Colonna Martinus Polonus 51 n.8, 94 n.194, 115, 119, 126, 127 nn.97, 98, 128, 183, 187–8, 191, 193; ignorance of 123 merum imperium 75 Michael of Cesena 22, 25, 38, 148 n.11, 158 Milan 9, 21 Mohammed 166 Moses 54, 56, 79 multitudo ﬁdelium 82, 87–8, 91–2, 94 n.194, 102; see also church, communitas ﬁdelium, universitas ﬁdelium Munich 184 Mussato, Albertino 18, 29, 36–7, 43, 153

217 Nederman, C. J. 6–8, 9 Nicaea, council of see general councils Nicholas II, Pope 183 Nicholas III, Pope Exiit qui seminat 158, 182, 185 Nicholas V, (anti-)Pope 37, 46–7 Nuremberg 12, 15, 24, 153 Ockham, William of 2, 10, 38, 186; Clement VI’s view of 30; Defensor pacis attributed to 33; probably drafts speech of Louis of Bavaria 40; grave of 33; ﬂight from Avignon 158; inﬂuence on imperial reform programme in 1338 40 n.187; preserves distinction between church and principate 152; response to the Defensor pacis 30–3, 44–5, 65, 93, 192 Breviloquium de principatu tyrannico 33 n.157 De imperatorum et pontiﬁcum potestate 33 Dialogus 30–4, 184 Opus nonaginta dierum 30, 117 Olivi, Petrus Johannes 158, 182, 185 Orsini, Cardinal Napoleon 38 Otto I, Emperor 126, 183 Otto IV, Emperor 183 Oxford, University of 43–4 Padua 9, 10 St Leonard’s Church 46 Paris 14, 16, 24, 184 University of 18, 36, 176; 1375 inquest in Theology Faculty of 42–3, 46; putative inquest in 1330 43 Parma 36 pars principans 55, 62, 70, 79, 84, 89–91, 115, 122; emperor as 163; Louis of Bavaria as 164

218 Paul, St 73, 76, 91, 93 n.185, 100; had no role in the original Epistola Clementis 98 n.218; probably succeeded Clement I as bishop of Rome 99; Roman bishop specialiter or singulariter et principaliter 96, 97, 98 Pelagius I, Pope 127 penance 80–1, 83, 143; see also power of the keys, sacraments Peter, St 20, 23, 31, 32–3, 35–6, 76, 80, 100; as bishop of Antioch 94, 103 n.239; had no more ‘essential priestly authority’ than any other apostle 93; no scriptural evidence that he was ever at Rome 96; possible translation to Rome 94 n.194; possibly in Rome together with Paul 97, 98; his ‘successors in the Roman or some other see’ 95 Peter of Albano, commentary on Aristotle’s Problems 43 n.199 Peter of Corbara, see Nicholas V Petrus de Lutra 22, 25 Petrus Paludanus (Pierre de Palu) 25 Philip IV, King of France 173–4, 176 Philip VI, King of France 39 n.184 Pierre Roger, see Clement VI Peter Lombard 193 Pilate, Pontius 26, 74 Pippin I, King of the Franks 168 plenitudo potestatis 35, 45, 50–1, 92–3, 129–30, 194; basis for papal perversion of the appointment of priests 137–9; culmination of 173–4; encompasses supreme secular dominium 133; historical fabrication 135; interpreted in terms of Constantine’s donation to assert coercive jurisdiction over all Christians 132; no

Index territorial limit to 131, 134; purports to be grounded in Scripture 93–4 n.188, 129–30; restricted to Roman bishop alone 136; subverts authority of legislator 142–3; transformed in two phases 130–1 pope see Roman bishop potestas iurisdictionis, subsumed into potestas ordinis 80, 93 potestas ordinis 79, 80, 93, 118, 151; see also priests, ‘essential power’ of power of the keys/binding and loosing 78, 93, 143; see also penance priests, Christian 77, 78; ‘accidental authority’ of 84–5, ‘accidental authority’ conferred in a new way as a result of Constantine’s conversion 118, 121–2; ‘accidental authority’ perverted 151; appointment of in a ‘perfect’ community 89; appointment of in primitive church 86, 122; appointment of regulated by general councils after Constantine’s conversion 121–2; appointment of progressively perverted by popes 137; ‘essential priestly character’ of 79, 81, 83–4, 118; see also potestas ordinis; ‘essential character’ not perverted 151; all alike in their ‘essential’ character 96; form pars sacerdotalis only of ﬁdelis legislator humanus 91, 150; modern ones practise the opposite of what the apostles taught 138; ordination of (‘laying on of hands’) 78–9, 84, 91, 121; ‘perfect’ priesthood 152

Index priests, Old Testament 55, 58, 63, 77, 84; priests, pagan 63 Pseudo-Isidorian Decretals 51 n.8, 99, 184, 186–93; characterised as ‘approved history’ 187 n.38, 192; ‘Isidore Mercator’ 191, 193; Address of Marcellus to Antioch 97 n.209; Constitutum Constantini (donation of Constantine) 110–11, 117–18, 131–2, see also Constantine; Council of Chalcedon 121, 122 n.82; III Council of Toledo 121; XIII Council of Toledo 121; Decreta de recipiendis et non recipiendis libris 96–7 n.207; Decretal of Pope Urban I 119; De primitiva ecclesia et sinodo Nicena 106, 189; Edict of Emperors Valentinian and Marcian 122 n.82; Epistola Anacleti secunda 94–5, 190; Epistle of Pope Boniface I 122 n.83; Epistola Clementis 97–8, 111, 113, 129, 190; Epistola vel praefatio Niceni concilii 108, 190; Rescript of Emperor Honorius 122 n.83 Ptolomey of Lucca 112 Pythagoras 62 Quillet, J. 12 rex Romanorum 175–6; coronation of 177; title attributed to Louis of Bavaria 177; see also Roman emperor Robert, King of Naples 39 n.184, 172 n.1 Roman bishop/pope appointment of prior to Constantine 99, 123–4; mode of appointment determined by human

219 legislator after Constantine’s conversion 122–3; papal vacancy 25 n.110, 27, 28; perverts process of clerical appointment in modern times 137–9; prioritas in the pre-Constantinean period not accorded to him as successor of St Peter 99, 103–4; prioritas accorded to him, together with the church of Rome, by the faithful 101, 124; nature of this prioritas prior to Constantine 101–2, 105; prioritas obtains ‘force of election’ over time 104–5, 124; prioritas comes to bind the faithful to obey by divine law 104, 105 n.244; prioritas not sanctioned in Scripture 129; distinct from the prioritas accorded by the apostles to St Peter 105; prioritas and episcopal ofﬁce combined when conferred by human legislator after Constantine’s conversion 123; Constantine transforms the meaning of the prioritas 124–5; after Constantine begin to claim prioritas by divine law, not the donation 129; same as any other bishop in the apostolic period 97; together with the Roman church, comes to act as a collegium for the whole church 105, 106; not a successor of St Peter in terms either of ‘essential’ or ‘accidental’ priestly power 96; successor of St Paul with respect to province 96; resurrect and usurp universal imperial jurisdiction 133–5, 163; role in ‘translation’ of Empire 168–71

220 Roman church 99–100; accorded prioritas, together with the bishop, by the faithful in the period prior to Constantine 101–5; Constantine institutes this prioritas in (human) law 110, 120 Roman Empire 12, 27, 37, 69–71, 77; Christian founded on paradox 195; decline of 132–3; eastern half not mentioned in Defensor pacis 171; electoral college of 154, 176; multiplicity of provinces in 163; perfection (Christianization) of 151; persecution of Christians in when pagan 91; second fall of 155–7; territorial extent of 131, 165–6, not altered by ‘translation’ 170; transformation in the meaning of the term 73; ‘translation’ of 128, 167–70, 173, 175; vacancy in 27, 129, 134, 154, 175 Roman emperor 10, 11, 13; allegedly subject by an oath of fealty to the pope 179–80; coronation of 37, 170, 175–7; deposes, institutes and judges pope 20, 22, 28, 37, 123–4, 127; extent of authority 134–5; instituted by ‘the supreme human legislator’ 170; institutes bishops 123; orthodoxy of 178; as pars principans of the ﬁdelis legislator humanus 118, 163; power from God 74; power from people 114; providential role of 160, 164; regulation of priests by 142–3; succeeds to pope during papal vacancy 27, 28;

Index temporalities of church under 20, 22; see also rex Romanorum Roman priestly college 123–4, 135; becomes adjunct of pope 136–7; becomes college of cardinals 124, 136; issues laws in association with pope 143 Roman Republic 67–8, 70–1, 72 Rome 1, 29, 37–8; fame of 100–1; pursuit of learning in, during the period prior to Constantine 100; instituted by God as ‘head of the Christian religion’, according to John XXII 116 Romulus, King of Rome 68, 69 n.82 Rubinstein, N. 9–12 sacraments 57, 78, 80, see also penance Sallust 68–9, 71 sanior pars 90, 92, 100, 103–5, 122, 124 della Scala, Cangrande, of Verona 18; as putative dedicatee of the Defensor pacis 52 n.11 Sciarra Colonna 37 Scripture 32, 63, 73–4, 77, 78, 96–7, 117, 130–1, 134, 190, 192; claimed as basis of plenitudo potestatis 129–30; contradicts Marsilius, according to John XXII 27; divine institution of ruler in 55; does not mention coercive jurisdiction by priests 113; Guido Terreni on 36; infallible 31–2; prohibits rulership and contentious jurisdiction to bishops and priests 109 Simplicius, Pope 126–8 sin, original 57 Skinner, Q. R. D. 9–10 Somnium viridarii/Songe du vergier 44

Index Stephen II, Pope 168 Stephen IX, Pope 183 Sybert of Beck 22, 104 Sylvester I, Pope 109–10, 112–13, 115, 120, 125, 132 Templars 144 temporalia distribution of by priests 86, 119 Ubertino da Casale 29, 154 n.41, 158 Ullmann, W. 3 n.9, 11 n.47, 165 universality 160–2, 165; in Defensor minor 72, 163 universitas civium 62, 72; becomes identical with universitas ﬁdelium 83, 123, 152; ‘election’ of law and pars principans by 89, 122; popes

221 assert jurisdiction over 145; see also legislator humanus universitas ﬁdelium 82, 118; not originally identical with universitas civium 83–4; see also ﬁdelis legislator humanus Urban I, Pope 119–21, 125–6 Valentinian II, Emperor 165–6 valentior pars 60, 62, 71–2, 100, 123, 154 Versailles Conference 3 Vienne, Council of 187 Visconti, Matteo, of Milan 9, 18, 52 n.11, 172, 174 William Durant the Younger 187, 189 William of Nangis 14 Wilson, Woodrow, President 3 Wycliff, John 43–4