Melodie Harris Eichbauer
James Arthur Brundage began his brilliant career in Nebraska. Writing a thesis under Edgar N. Johnson in 1951 with the title “The Chronicle of Henry of Livonia,” Jim earned his Master of Arts degree from the University of Nebraska. Ten years later he published his thesis with the University of Wisconsin Press. He completed his post graduate studies at Fordham University in 1955, writing the dissertation “The Compoti of Bursars of Whalley Abbey” under the direction of Jeremiah F. O’Sullivan. He began his academic career in 1957 in the History Department of the University of Wisconsin—Milwaukee where he taught until 1989. In that year he became the Ahmanson-Murphy Professor of History at the University of Kansas. He retired in 2000. Throughout his illustrious career at both universities, Jim has accumulated numerous distinctions: a Guggenheim fellow from 1963 to 1964, a Fulbright Senior Lecturer at the University of Madrid from 1967 to 1968, a National Endowment for the Humanities fellow at the Newberry Library from 1983 to 1984, and a recipient of the John Gilmary Shea prize from the American Catholic Historical Association in 1998. He became a fellow of the Royal Historical Society in 1978, a Life Member of Clare Hall at Cambridge in 1985, and a fellow of the Medieval Academy of America in 1990. He also has served as an associate editor of the Journal of Medieval History since 1974 and as an associate editor of the Journal of the History of Sexuality from 1993 to 1998.
His productivity has been prodigious and continues today on the eve of his eightieth birthday. In over 400 publications—consisting of monographs, articles, reviews, and contributions to dictionaries, encyclopedias, and collected essays—legal history has been the foundation of Professor Brundage’s work. He has added to our knowledge of legal theory and the evolution of the legal profession. He also has explained how legal developments influenced marriage and sexuality, and the crusade movement.
His work has been wide-ranging and has explored many nooks and crannies of the medieval church and society. In “The Decretalists and the Greek Church of South Italy” (1973) and “Canon Law as an Instrument for Ecclesial Reform: An Historical Perspective” (1984) he explored the inner workings of the Church.1 Works such as “The Limits of the War-Making Power: The Contribution of the Medieval Canonists” and “The Hierarchy of Violence in Twelfth- and Thirteenth-Century Canonists” have explored the theory of a just war.2 Professor Brundage brought these essays together in Medieval Canon Law (London, 1995). This book traced the changing concerns of the canonists from the maintenance of discipline during the first three centuries, to attempts to limit causal contact with unbelievers in the fifth and sixth centuries, to a period of looking inward from the seventh through the ninth centuries, and finally to the revival of canon law in the eleventh century.
In this volume the contributions of Chibnall, Izbicki, Pennington, and Reid focus on jurisprudence. In an “age before jurists,” Marjorie Chibnall offers Oderic Vitalis’s Ecclesiastical History as a source to be mined not only for its conciliar legislation, but also for legal and marital disputes, procedural norms, and any business conducted by that particular council or synod. The work illustrates the ways in which reform canons circulated and the “leisurely pace” at which Norman society integrated these changes, particularly with regards to the profession of obedience to the bishop and investiture. With the promulgation of Gratian’s Decretum, the canonists intensively commented on the “libri legales” that had become the standard texts in the law schools. Thomas M. Izbicki analyzes the Dominican theologian Juan de Torquemada’s understanding of diabolical phenomenon. As opposed to later theologians, such as Nider and Kramer, Torquemada’s strict reading of the canon Episcopi (C.26 q.5 c.12) suggests that he held a more conservative view regarding the nature of witchcraft. Commentary on the Bishop of Fulbert of Chartres’s letter to William V of Aquitaine (C.22 q.5 c.18) leads Kenneth Pennington to conclude that canonists distinguished both between secular and ecclesiastical fealty and also between fealty and homage. More importantly, the text offered an opportunity for canonists, such a Huguccio, to develop key norms of the secular oath of fealty and apply them to the ecclesiastical sphere. Broadening the scope, Charles J. Reid, Jr. examines how jurisprudence contributed to the right of self-defense and justified warfare in the works of Livy, Augustine, Gratian and the Decretists, and Decretalists. He found that the thirteenth-century canonists, such as Raymond of Peñafort and Hostiensis, used the language of rights—ius indicendi belli, the ius gladii, and the ius cognationis—to analyze and to justify just war-making theory.
Powell, Gervers and Hamonic, Robinson, and Makowski examine the application of legal thought. James M. Powell† compares the legal language used by Innocent III at the Parliament of Viterbo with that used by Frederick II in the Assizes of Capua. The similarities suggests to him that Innocent III’s consolidation of papal authority may have served as a model of Frederick II’s rebuilding of authority in Sicily. Michael Gervers and Nicole Hamonic make extensive use of the DEEDS Project at the University of Toronto to analyze the charters from the reign of King John. They find that the composition of charters mirrored contemporary events. For instance, grants made to the Church ebbed during the period in which Innocent III placed England under interdict (1207–1211) as compared with earlier and later periods. Furthermore, the language of the Curia regis reflects doubts about the administration of the country, doubts that reflect the contentious relationship between the king and his barons. Olivia F. Robinson examines the legal obligations of a debtor to a creditor. The borrowing habits of the Bishop of Exeter, coupled with his expenses at the curia, often left him unable to repay his loans. Negotiation, she found, played a vital role in resolving financial disputes and avoiding further complications. Finally, Elizabeth Makowski investigates the circumstances that brought cloistered nuns to the court of the Chancery. Intimidation by an influential member of society which made them afraid to seek a common law remedy, or an evidentiary lacunae which prevented a common law remedy caused religious women—acting as plaintiffs—to bring cases before this “court of conscience.” In other instances, religious women were defendants and in some of these cases their economic well-being might be safe-guarded or enhanced.
Tierney and Muldoon focus on the development of constitutional thought. Brian Tierney re-examines John Locke’s place in medieval concepts of corporatism and community by questioning the belief that Locke shifted toward a notion of “individualized consent” when he attributed political power to individuals. This shift marked a break with the medieval notion of “corporate consent” to government. Medieval thought did acknowledge, according to Tierney, the existence of political society by individual acts of choice. Because medieval corporate communities were not conceived of in a holistic fashion, they did not contradict Locke’s individualism. James Muldoon juxtaposes the theory of freedom of the seas espoused by Grotius in his Mare Liberum with that proposed by John Selden in his Mare Clausum (1635). While the latter argued that a secular ruler had control over the sea adjacent to his territory and thus could limit access to them, Grotius argued that the sea was free to all. Grotius rejected Alexander VI’s bull Inter caetera, which laid claim to universal jurisdiction over the seas, and commented upon European governments’ right to possess the seas, specifically Portuguese and Castilian claims to islands in the Atlantic, and English claims to the New World.
The evolution of the legal profession has been a special focus of Jim Brundage’s research. His 1973 article “The Ethics of the Legal Profession: Medieval Canonists and Their Clients,” explored what constituted appropriate professional conduct for lawyers.3 He has continued to examine these ideas in “The Teaching and Study of Canon Law in the Law Schools,” in “Legal Ethics and the Professionalism in the Ius commune,” and in “‘My Learned Friend’: Professional Etiquette in Medieval Courtrooms.”4 Jim brought together decades of research in his work The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, IL, 2008) where he traces the changes in the legal profession from the Roman Empire through the Middle Ages. He argues that with the eleventh century and the revival of canon law and Roman law, the legal profession adapted procedures, many of which advocates continue to follow to this day, and took on new considerations.
The contributions of Zutshi, Helmholz, Landau, and Peters likewise contribute to our understanding of the growth of the legal profession. As a necessary prerequisite, Patrick Zutshi explores the status and development of Cambridge University between 1209 and 1318, the point at which John XXII’s letter Inter singula conferred the status of studium generale. In spite of being long acknowledged as a studium generale, Zutshi maintains that the formal designation augmented the reputation of the university and enabled it to obtain ecclesiastical benefices from the pope. In his examination of the anonymous tract “Touching the Number of Proctors etc.,” written during the reign of Henry VIII, R.H. Helmholz raises the question of who should be admitted to the practice of law and how many lawyers does society need. The author called for reform of the principal ecclesiastical courts then existing in the City of London—the Court of Arches and the Archbishop of Canterbury’s Court of Audience—by reducing the number of lawyers, which in turn would limit opportunities to act in one’s own self-interest, reduce the number of delays in court, and enable judges to have control over the proctors. While the author may not have achieved his aim, the tract shows that some were thinking about the integrity of the profession. Peter Landau demonstrates that monasteries also could play an important role in the judicial process. An examination of the Collectio Fontanensis reveals the abbot’s commission as a papal judge delegate and the abbey’s legal concern for its subordinate churches. In addition to a number of decretals in the collection concerning property law and monastic law, nearly one-third of the decretals deal with questions of procedural law and nearly one-fifth of the decretals deal with marriage law. Finally, Edward Peters reassesses the role “legal humanism” played in the demise of the ius commune. He concludes that while Roman law fell out of use as law, it continued as a body of living law that both emphasized science of legal theory and became the focus of antiquarian pursuits.
In addition to legal theory and the evolution of the legal profession, James Brundage has focused heavily on how developments in legal thinking influenced marriage and sexuality. Fortunately, Variorum has published many of his articles together in the collection Sex, Law and Marriage in the Middle Ages (London, 1993). His monograph, Law, Sex, and Christian Society in Medieval Europe (Chicago, IL, 1987) examines ecclesiastical law regarding marital sex, adultery, homosexuality, concubinage, prostitution, masturbation, and incest from 500 to 1500. Like other aspects of law, he found that marriage law continued to change and evolve in step with developments in legal thinking. A number of recent essays have explored further the treatment of sex and marital issues before the law.5
The contributions of Kay, Donahue, and Olsen likewise delve into the intersection of law and marriage. Richard Kay analyzes the Visio of Wetti, an obscure monk at Reichenau who describes his vision of Charlemagne in hell. Having connections at the Carolingian palace, Wetti no doubt knew of Charlemagne’s numerous concubines. Kay thus places the work into the context of the prohibition of lay concubinage. Wetti’s vision served not only to allay his inner doubts about its inherent wrongs, but also served as warning. If the greatest emperor had to pay for his sins, so too did every layman. Relying on glosses of the marriage causae in Gratian’s Decretum, Charles Donahue, Jr. shows that Johannes Bassianus and Bazianus (or Basianus) were two different jurists. Bassianus was a first-class civilian jurist whose mastery of Roman law was comprehensive. He made subtle distinctions both regarding the moment a marriage was formed and regarding parental consent. The canonist Bazianus, on the other hand, did know some Roman law, though one would expect more if they were the same man. Unlike Bassianus, Bazianus drew citations not from Roman law but rather from the Bible, which was unusual in civilian literature. Furthermore, he did not address the issue of parental consent, a peculiar omission if he and Bassianus were the same man. Finally, Glenn W. Olsen employs a different approach by analyzing sexual sculpture found on Romanesque ecclesiastical structures in Occitania-Provence from the late eleventh to the early thirteenth century. He finds that in the high Middle Ages the vulgarity in humor offered a moral code contrary to Christianity while simultaneously employing a language of courtesy. With the new codes of propriety beginning in the early thirteenth century, Romanesque sculptural presentations of sexuality were viewed as obscene and inappropriate for church architecture.
The influence of legal thinking on the crusading movement roots Jim Brundage’s earliest interests. One of his first monographs, Medieval Canon Law and the Crusader (Madison, WI, 1969) traces the evolution of canonical thinking on matters that touched the crusading movement, a movement that went from one viewed as a pilgrimage to one the papacy used for its own political agenda. He continued to examine these issues in “Holy War and the Medieval Lawyers,” “Anslem, Ivo of Chartres, and the Ideology of the First Crusade,” and, most recently, “Voluntary Martyrs and Canon Law: The Case of the First Crusaders.”6 A Variorum volume collected his writings together in the volume The Crusades, Holy War and Canon Law (London, 1991).
The contributions of Riley-Smith and Somerville likewise focus on the intersection of law and the crusading movement. Jonathan Riley-Smith argues that while the retrais of the Templars contained some, though not all, of the order’s law, the Templars themselves found them almost unusable. The senior brothers were more at ease with an ad hoc system of justice, which the retrais only occasionally illustrate. By the last quarter of the thirteenth century, the Templars viewed the retrais more as a holy writ than as a body of static law. Robert Somerville examines how Urban II defined the role of the papal legate, Adhemar of Le Puy, in the First Crusade and questions the relationship between the bishop and the pope once the armies were on the march. Somerville points to three pieces of evidence that emphasize Adhemar’s leadership and suggest a close connection between Urban II and Adhemar. The first is a letter, dated in mid-October of 1097 and composed in the name of Patriarch Symeon II of Jerusalem and Adhemar. Its purpose was to appeal to potential recruits in the West. The second is a report in the third book of Fulcher of Chartres’ Historia in which he wrote that, at a council in Antioch, the Bishop of Le Puy reiterated a decision from the Council of Clermont regarding ecclesiastical arrangements in territory captured by the Western armies. The third is a text dated September 11, 1098 after the capture of Antioch and the death of Bishop Adhemar in which the crusaders, more specifically Bohemund, make an urgent appeal to the pope to come to Antioch and lead the march to Jerusalem.
James Brundage has shown that scholarship is in the subtle connections of events and thought, in other words in the understanding of how one factor has influenced and shaped another. His contributions have paved new roads and opened new doors for scholars who have benefitted from his work. James Brundage was also a great teacher and nurturing mentor. During his long career he inspired and guided a large number of students through the thickets of medieval history. The contributors to this volume pay tribute to his life of scholarship.
1 “The Decretalists,” in La chiesa greca in Italia dall’VIII al XVI secolo (3 vols, Padua, 1973), vol. 3, pp. 1075–1081; “Canon Law,” in Proceedings of the Forty-Fifth Annual Convention of the Canon Law Society of America, San Francisco, Calif., October 10–13, 1983 (Washington, DC, 1984), pp. 1–17.
2 “The Limits,” in Charles Reid (ed.), Peace and the Nuclear Age: The Bishops’ Pastoral Letter in Perspective (Washington, DC, 1986), pp. 69–85; “The Hierarchy,” International History Review, 17 (1995): pp. 670–681.
3 “The Ethics,” The Jurist, 33 (1973): pp. 237–248.
4 “The Teaching,” in Wilfried Hartmann and Kenneth Pennington (eds), The History of Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX (Washington, DC, 2008), pp. 98–120; “Legal Ethics,” in Troels Dahlerup and Per Ingesman (eds), New Approaches to the History of Late Medieval and Early Modern Europe (Copenhagen, 2009), pp. 231–249; “‘My Learned Friend’,” in Martin Brett and Kathleen Cushing (eds), Readers, Texts and Compilers in Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl (Farnham, 2009), pp. 183–196.
5 “Domestic Violence in Classical Canon Law,” in Richard Kaeuper (ed.), Violence in Medieval Society (Woodbridge, Suffolk, 2000), pp. 183–195; “Sex, Crime and the Pleasures of the Flesh: The Medieval Church Judges Sexual Offenses,” in Peter Linehan and Janet L. Nelson (eds), The Medieval World (London, 2001), pp. 294–307; “The Canon Law of Divorce in the Mid-Twelfth Century: Louis VII c. Eleanor of Aquitaine,” in Bonnie Wheeler and John Carmi Parson (eds), Eleanor of Aquitaine: Lord and Lady (New York, 2002), pp. 213–221.
6 “Holy War,” in Thomas Patrick Murphy (ed.), The Holy War (Columbus, OH, 1976), pp. 99–140; “Anslem, Ivo of Chartres,” in Raymonde Foreville (ed.), Les mutations socioculturelles au tournant des XIe–XIIe siècles: Études Anselmiennes (Paris, 1984), pp. 175–187, 197–200; “Voluntary Martyrs,” Cristianesimo nella storia, 27 (2006): pp. 143–160.