CHAPTER VI

ON CONTINUITY AND CORPORATIONS

1. Continuity

UNDOUBTEDLY the concept of the “king’s two bodies” camouflaged a problem of continuity. This was less evident, or perhaps only more concealed, in the earlier Middle Ages. But the truly essential point became manifest as well as articulate when, as a result of the reception of the Aristotelian doctrine of the “eternity of the world” and its more radical Averroist interpretation, the question of perpetual continuity itself became a philosophic problem of the first order.

The revival of the doctrine of the eternity of the world, which captivated Western minds after the middle of the thirteenth century,1 coincided with analogous, if independent, tendencies towards “continuity” in the constitutional and legal-political spheres. For it would be a mistake to assume that the new philosophic tenet produced, caused, or created a new belief in the perpetual continuity of political bodies. Facts of chronology would preclude such a hypothesis anyhow, because the development towards continuity in the fields of law and politics was already in full swing before an influence of the new philosophy could have been effective. Practice, as usual, preceded theory; but existing practice made the minds all the more receptive for a new theory. However, simultaneity does not imply causality, and all that can be said is that the philosophy defending the infinite continuum of Time made its appearance as a concomitant of related trends in other fields; further, that the ground was peculiarly well prepared to receive a doctrine which confirmed and justified what one thought or did anyhow, and thereby intensified and accelerated existing conditions; finally, that both strands—the philosophic-scholastic theory and the politico-legal practice—together decisively influenced the general pattern of Western social and political thought in its formative period.

For all those restrictions it would be nevertheless inexcusable to ignore the impact of the new trends in philosophy, because such neglect would whittle down our capability of understanding more profoundly the corresponding phenomena in other sectors of thought—constitutional, legal, or political. The heated arguments between philosophers and theologians about meaning and effects of an infinite continuity contributed, to say the least, to the articulation of some phenomena which previously had been difficult to express, or had not been expressed at all because they had not penetrated the conscious mind. Now, in the wake of the Aristotelian revival, the Averroist extremists, the moderate Aristotelians, and the anti-Aristotelians had each to produce their reasons for and against an eternity of the world. The very fact that the definition of continuity, duration, perpetuity, sempiternity, eternity, and related notions formed, over and over again, a matter for discussion and argument seems telling enough: it reveals to the historian that something formerly stable and settled had become unstable and unsettled—or even questionable—and that some serious change was taking place within the realm of Time, and in man’s relation to Time.

Whereas the philosophic aspects of that change have been studied frequently and are known well enough, the historical inferences of that new attitude toward Time, difficult to substantiate as they are, have hardly been investigated.2 However, a new approach to Time and a new conception of the nature of Time must be considered not only as a philosophical but also as a historical factor of great moment. The new valuation of Time, which then broke to the surface, actually became one of the most powerful agencies by which Western thought, at the end of the Middle Ages, was transformed and energized; and apparently it still holds sway with unabated vigor over modern thought. After all (to mention only one item), the optimistic philosophy of unlimited progress, which the generations preceding the two World Wars saw fit to cherish, had its roots and premises in those intellectual changes which stirred the thirteenth century—stirred it no less profoundly than the combats between empire and papacy, or between spiritual and secular powers at large.

AEVUM

The great crisis in man’s approach to Time, while previously latent, came to a head when the doctrine of the uncreatedness and infinite continuity of the world was recovered from Aristotelian philosophy. This tenet dealt an all but mortal blow to the supremacy of the traditional Augustinian concepts of Time and Eternity. Time, under the influence of Saint Augustine’s teaching, had enjoyed a bad rather than a good reputation. Time, tempus, was the exponent of transitoriness; it signified the frailty of this present world and all things temporal, and bore the stigma of the perishable. Time, rigorously severed from Eternity, was of inferior rank. For whereas the Eternity of God was conceived of as a Now-and-Ever without Time, the fugitive Time showed all the weakness of the evanescent moment. As Saint Augustine pointed out in one of the most famous passages of the Confessions,3 Time—like sun and moon, plant, beast, and man—was created. It was created, not before, but together with the transitory world as a short span which, like a blind alley, was doomed to meet an abrupt end at any given moment, just as the whole created world might be overtaken at any hour by the Last Events. Time was finite. It covered no more than the hours from Creation to the Last Day, and words such as temporalis and saecularis, indicating the, so to speak, moral degradation of Time, were burdened to express the brevity of an only relatively important life of this world and the nearness of death in it.

The validity of the Augustinian teaching on Time and Eternity was broadly attacked, together with the most fundamental premises of the Christian faith, by the Averroists who carried Aristotelianism to sweeping conclusions; but even a moderate Aristotelian such as Aquinas had to admit at least the potentiality of a world without beginning.4 In the long lists of errores condemnati which Church authorities drafted to curb the Averroist plague, the tenet of the “eternity of the world” played a major part. The Church proclaimed it an error to maintain that motion had no beginning; that Time was eternal; that heaven was not created; that there would be no resurrection of the dead; that corruption and generation followed each other successively without a beginning or end; that there was no such thing as a first man, and that there would never be a last man; that there always was and ever will be a human race and a generation of man from man, and many similar or related maxims.⁵ All those condemned errors pointed in the same direction: they all asserted that there was neither Creation nor Last Day, that by corruption and generation the dispositions of the world might change but that the present world itself was permanent by the laws of nature, and that Time was infinite, a continuum of successive moments rolling forth perpetually from endlessness to endlessness.⁶ Tempus, the limited span of terrestrial Time, thereby lost its ephemeral frailty and limitation, and its character also changed morally: Time no longer appeared predominantly as the symbol of caducity, of Death; Time, to the Averroists, became a vivifying element, a symbol of endless duration, of Life.

To be sure, not the individual life was immortal; but immortal was the life of the genera and species which the mortal individual represented. Time now became the symbol of the eternal continuity and immortality of the great collective called the human race, of the species of man, of the seminal powers, of the forces of germination. It gained, through its connection with ideas of religious and scientific progress,7 an ethical value when one recognized that “the daughter of Time was Truth.”⁸ Finally, the unlimited continuity of the human race itself bestowed a new meaning on many things. It made meaningful, for example, the craving after worldly fame, the perpetuandi nominis desiderium, which increasingly became a decisive impulse for human actions. Perhaps this trail, too, was first trodden by the jurists: “Notice that the dead lives through glory,” says an Accursian gloss, while in another connection the glossator held that those who fell in battle for the respublica as well as those killed in tournaments lived forever in fame and glory.9 Other jurists wrote, and Frederick II, their pupil, built, for the perpetual fame of their names.¹⁰ The new continuity of Time did not create, but it intensified, the desire for the perpetuation of a man’s fame and name. Fame, after all, made sense only if this world and if mankind were believed to be, in one way or another, permanent and immortal; and if Time was Life, and not Death. We may consider, perhaps, “immortal fame” in this world as the equivalent of or secular substitute for the immortal beatitude of the other world, and Dante consequently was implored by the lost souls in Inferno to keep alive their memory and their fame on earth in order to compensate for the forfeited, and often even despised, eternal beatitude of the soul.¹¹

It would be tempting to understand the infinite duration of the Aristotelian uncreated “world without end” likewise in terms of some secularized Eternity. But if we were to proceed on that assumption, the difficult question arises immediately: What kind of Eternity was it that was secularized and became immanent in this world? It was certainly not the Eternity of the Divine Being which Augustine had set against the short span of created Time allotted to this world and to mankind. For the aeternitas of God was timeless; it was a static Eternity without motion, and without past or future; it was, as Augustine called it, “a Now ever standing still” (nunc semper stans), or, as Dante put it, “the point at which all times are present.”12 This was certainly not the continuously flowing mutable Time of permanently successive moments which the Averroists had in mind and defended.

The answer comes from scholastic philosophy. A readiness on the part of theologians and scholastic philosophers to revise the Augustinian dualism of Time and Eternity and to embark on the problem of an unlimited continuity which was neither tempus nor aeternitas, may be noticed as far back as the twelfth century. The revival of Pseudo-Dionysius, John the Scot, the theological writings of Boethius, and the reception of the works of Avicenna by the school of Gilbert de la Porrée produced, so it has been said, “a powerful whiff of dynamism.”¹³ It led, among other things, to the revival of the notion of aevum (“eon”), a category of endless infinite Time which Saint Augustine’s forcefully simplifying dualism had not really accounted for. Something comparable to a great intellectual clearing began, since it now became the task of scholastic philosophers to distinguish between the various categories of Time. It was not too difficult to explain the difference between aeternitas and aevum. Eternity, of course, was God’s timeless and motionless Now-and-Ever, knowing neither past nor future. Aevum, however, was a kind of infiniteness and duration which had motion and therefore past and future, a sempiternity which according to all authorities was endless. There was difference of opinion though, whether that sempiternity, which was created, was created before Time or together with Time; that is to say, whether aevum was infinite only in view of the future or also in view of the past. Whatever the correct answer may be, the fact remains that a third category had been worked into the former dualism of Eternity and Time, the aevum, which had a share in both Eternity and Time and which Aquinas later defined very accurately as something “placed in the middle between aeternitas and tempus.”14

Hence, scholastic philosophy had to distinguish between three categories: aeternitas, aevum, and tempus. But which belonged to whom? The distribution of aeternitas and tempus was self-evident. The timeless Now-and-Ever was identical with God alone; and the finite created Time of this world, lasting from Creation to the Last Day, belonged to man. And aevum? The answer must have been likewise self-evident to an age which began to discover the intellectual joy and stimulus emanating from angelological investigations: aevum, of course, belonged to the angels and celestial Intelligences, the “eviternal” beings which were placed between God and man. The angels, like man, were created; but man’s transitory tempus could not be theirs, since angels were eternal beings, bodiless, immortal, and outlasting the Last Day. On the other hand, being created they could not be coeternal with the Creator. It was, so to speak, true that the angels by their permanent vision of the divine glory participated, like the souls of the blessed, in the timeless Eternity of God. But the immortal spirits had a share also in terrestrial Time, not only because they could appear to men within Time, but also because they were created and therefore had, after their peculiar angelic fashion, a Before and an After. Aevum (in fact a far more complicated notion than can be demonstrated here), bridged the chasm between timeless Eternity and finite Time. If God in his Eternity was the Immutable beyond and without Time, and if man in his tempus was the Mutable within a mutable and changing finite Time, then the angels were the Immutable within a changing, though infinite, aevum.15

To summarize this brief excursus into meta-history, there existed indeed an otherworldly equivalent of the changing and infinite Time which the Averroists claimed for this present world: the aevum of the angels in heaven. This fact is less surprising than it may seem once we realize that the celestial Intelligences—Spirits without a material body—were the created Ideas or Prototypes of God. They were the transcendentalized Christian descendents, not really of the Platonic Ideas which had an independent status, but of the Aristotelian εἲδη, the immanent actualizations of the separate types. The revival of the Aristotelian “eternity of the world,” which presupposed and resulted in the immortality of the genera and separate species, was therefore indeed a “secularization” of the angelic aevum: an infinite continuum of Time was, so to say, transferred from heaven to earth and recovered by man. It was the secularization of the Christian concept of continuity perhaps even more than the classical belief in the circular motion of an infinite time, which the Averroists likewise endorsed, but which was one of the least acceptable of their theses. Public opinion quickly discarded this theorem implying a periodical recurrence of events, and replaced the circular continuity by the conventional linear continuity characteristic of Christian thought in general—and probably also of the angelic aevum.¹⁶

According to the teaching of Aquinas, every angel represented a species: the immateriality of the angels did not allow the individuation of the species in matter, in a plurality of material individuals.17 Little wonder then that finally the personified collectives of the jurists, which were juristically immortal species, displayed all the features otherwise attributed to angels; for the legal “fictitious persons” were, in fact, pure actualizations and thus appeared like the next of kin of the angelic fictions. In the center of the corporational doctrines of the jurists were the collective abstractions, or immortal and immutable species, in comparison with which the mortal, and ever replaceable, individual components appeared of lesser importance and in many respects negligible. The de-individualized fictitious persons of the lawyers, therefore, necessarily resembled the angels, and the jurists themselves recognized that there was some similarity between their abstractions and the angelic beings.¹⁸ In this respect, then, it may be said that the political and legal world of thought of the later Middle Ages began to be populated by immaterial angelic bodies, large and small: they were invisible, ageless, sempiternal, immortal, and sometimes even ubiquitous; and they were endowed with a corpus intellectuale or mysticum which could stand any comparison with the “spiritual bodies” of the celestial beings.

Undeniably the problem of Time and Continuity was close to the center of discussions carried on by both scholastic and secular philosophers. To maintain that the problem of Time had the effects of an activating intellectual undertow throughout the later Middle Ages and the Renaissance would probably be an understatement. Man’s new attitude in his relation to Time affected almost every sector of life. The world, of course, did not turn “Averroist” as a result of the teaching of a Siger of Brabant, Boethius of Dacia, and other masters in the faculty of arts at the University of Paris: the world remained Christian. Nevertheless, what had been epidemic in the thirteenth century became endemic in the fourteenth and fifteenth: one did not accept the infinite continuity of a “World without End,” but accepted a quasi-infinite continuity; one did not believe in the uncreatedness of the world and its endlessness, but one began to act as though it were endless; one presupposed continuities where continuity had been neither noticed nor visualized before; and one was ready to modify, revise, and repress, though not to abandon, the traditional feelings about limitations in Time and about the transitoriness of human institutions and actions.19

This, we may take it, marked the new approach to Life and to Time of the intellectual sector of society. One had not invented a new notion of Time, but accepted Time’s other aspect. Only in so far as another aspect of Time—its continuity and practical infiniteness—was emphasized, where previously the emphasis was laid on Time’s transitoriness, was there a change of man’s sense of the nature of Time. “If you want to govern for thousands and thousands of years,” ran a Sienese inscription referring to the images of classical and Christian heroes and virtues, “you who are ruling look upon these.”20 The change implied a revaluation of Time rather than some total revolution, a dialectical shift from Time’s fragility to its ever-flowing, vivifying dynamism.

PERPETUA NECESSITAS

No matter whether the Aristotelian and Averroist doctrines of a “World without End” were accepted, rejected, or modified, the debate itself left its unmistakable and easily traceable imprints on the thinking of the generations to come. Independently, however, the practical needs of kingdoms and communities led to the fiction of a quasi-infinite continuity of public institutions—a continuity, to be sure, of a far less philosophical pattern. The maxim of the inalienability of the royal demesne as well as the idea of an impersonal fisc “which never dies”²¹ stand out as landmarks of a new concept of institutional continuity inspired chiefly, it seems, by the two Laws, Roman and Canon. The factor of Time, however, started to permeate also in other respects the daily technique of public, financial, and legal administration—a phenomenon worth being rapidly outlined here by means of a few illustrative examples.

Public taxation, in the earlier Middle Ages, was always extraordinary and always ad hoc, for taxes fell due not on the return of a certain date, but on the return of a certain event. The feudal aids were due for ransom of the lord, knighting of his eldest son, dowry of his eldest daughter, and, haltingly since the twelfth century, for the defense of the realm in the case of a public emergency, the casus necessitatis. Those four cases referred each to an event: the first three were linked to the private and personal life of the lord, whereas the fourth case was, so to say, public and supra-personal, referring chiefly to regnum and patria.²² Ransom, knighting, and dowry were unrepeatable instances; an “emergency of the realm,” however, could be proclaimed, technically, year after year, at least until the Prince met with the resistance of his drained subjects. As is well known, the fourth case, the necessitas regis et regni, eventually flung the gates open to permanent, annual taxation dependent not upon an event, but upon Time. Frederick II, for example, in the last phase of his struggle against the Roman pontiffs, proclaimed almost regularly at the beginning of every year in beautifully phrased and almost apologetic manifestoes the dira et dura necessitas of the empire only to impose a new collecta on his Sicilian subjects, the clergy included.23 So did Charles of Anjou, later; so did Philip the Fair of France, and others. Indeed, the fiction of an unrepeatable event, of a singular emergency, and of the extraordinary character of the taxation still was maintained, and it would be maintained for some time to come; but the old fiction was to yield to a new fiction, and what remained was routine: an undisguised annual recurrence of financial requests.

It is true, of course, that the scholastic doctrines concerning taxation strictly denied the right of the state to any annual or even periodically recurrent taxation.24 However, by the casus necessitatis, which also the Church acknowledged, a new principle was set.²⁵ It was set for the permanent annual taxation such as finally became the recognized right of the sovereign state in order to meet the needs of the polity. By the fourteenth century, or even in the thirteenth, the pretense of an ad hoc taxation was occasionally dropped, and the fictitiously extraordinary became the overtly ordinary: public taxation, at least in many parts of the Continent, became synonymous with annual taxation. In other words, taxation, formerly linked to an unrepeatable event, now was linked to the calendar, to the eternally rolling wheel of Time. The state had become permanent, and permanent were its emergencies and needs, its necessitas.

The notion of necessitas, thereby, acquired another, in fact, a completely new meaning. As a ground for taxation, the casus necessitatis originally referred to emergencies arising chiefly from without: defense of the patria against a hostile inroad, a war against political or religious enemies, also against rebels, against heretics, even against the spiritual power. Around 1300, however, the notion of necessitas began to be focused also upon the ordinary and (so to speak) budgetary needs of administration; and to meet these administrative needs the governments arrived at the new fiction of a perpetua necessitas, implying (not unlike the modern tenets of “perpetual revolution”) the perpetuation of something that, by definition, indicated an exception, some singular condition or some momentary deviation from the rule.

The perpetuation of necessitas, of course, was noticed also by contemporaries, and a jurist of the early fourteenth century, Oldradus de Ponte (d. 1335), provides us with all the clues we may desire. In one of his legal opinions, dealing with the taxability of certain noblemen with regard to an annual tallage, Oldradus distinguished between the ancient singular necessity and the new perpetual necessity. The question posed to the legal expert is described in the title, as follows:

Is a person, that is held to contribute to taxes imposed for the sake of [public] utility or necessity, held also to pay taxes imposed for the sake of an habitual necessity, though [this be] not an actual necessity?26

The distinction made here between an habitual, that is, perpetual need (necessitas in habitu) and an actual emergency (necessitas in actu) is telling enough all by itself. Oldradus, of course, was fully aware of the fact that formerly the imposition of a direct tax for the sake of “public and common utility and necessity” was understood as an exception, an extraordinary taxation (indictio extraordinaria). He knows also that the reason (a case of necessity) for imposing a tallage as well as the king’s regalian right of imposing the emergency tribute agreed with old feudal custom, and he is honest enough to admit that “the imposition of an annual tallage is a new action: and in this respect the taxes are called ordinary (indictio ordinaria).”²⁷ However, ordinary and extraordinary taxes served the same idea: to meet a necessitas. Only, necessitas itself had in each case a different point of reference; and this too has been clarified by Oldradus.

The question laid before the jurist was whether certain noblemen could claim tax exemption if the King of France demanded annually a tallage “for the public and common utility and necessity.” There was no doubt, declared Oldradus, that the tallage served public utility and necessity and that the King of France was entitled to impose a tallage, for “he has imperial rights and he owns, by his imperial privilege, all that pertains to imperial service.”28 The jurist then turned to the evidence proving that in other respects the noblemen actually paid annual taxes which indeed served to meet some “habitual need.” And in that connection he discussed two ancient feudal obligations—alberga and cavalcata—which despite their original ad hoc character had likewise been converted into annual taxes and which the noblemen would not hesitate to pay “when the king, or his procurator, announced these contributions annually.”²⁹ He discussed, in the first place, the alberga or droit de gîte, meaning the obligation of quartering the feudal lord or king when he visited a district or province to hold court and hear the complaints of the people against their lords.³⁰ In former days, explained Oldradus, this obligation was due only when the suzerain visited the district in his proper person.

Today this [obligation] is paid annually in money.… For no one itinerates through the province to administer justice to the inferior grades against their lords: for there are judges in every single place, who do that very thing [administer justice], and they receive de publico a salary from the king.… Therefore, since such display of justice is in itself a public utility and necessity, it seems that also the noblemen … should be held to contribute, because [this taxation] is truly for the utility and the need of the province.³¹

In addition to the change—clearly outlined by Oldradus—from an ad hoc obligation to a permanent and ordinary taxation, it is evident that the meaning of necessitas has shifted from an outer emergency to an inner administrative need, that this inner need has been perpetualized, and that the perpetual administration of justice required an annual emergency tribute just as a singular emergency contribution was required for the defense of patria. But even the defense of patria was now perpetualized. There was, in the fourteenth century, as yet no permanent professional army of an individual government, although the companies of mercenary knights then roaming about Italy represented, so to speak, independent armies in permanence. There was, nevertheless, permanent taxation for military purposes. The cavalcata or chevauchée, originally the feudal obligation of performing military service, came to mean the commutation of this service into a fine or scutage paid annually. Oldradus de Ponte saw again the essential point.

Even though the army might not be summoned in every year, it is nevertheless advisable to look ahead that there be money in the treasury to pay the soldiers if [or when] an army be raised.… For, the purpose of an army is the public good.32

Oldradus, while conveying to us some foretaste of the approaching mentality of mercantilism, again demonstrates that a necessitas in actu has been commuted into a perpetual necessitas in habitu in order to meet potential needs in the future.³³ Annual taxation, at any rate, was rationalized by perpetuation of public needs, by a perpetua necessitas belonging either to the present as in the case of legal administration or to the future as in the case of military preparation.

The distinction between extraordinary and ordinary needs applies also to diplomatic communication. Mediaeval embassies always served momentary needs; they were despatched ad hoc for a special purpose—to present a message or a gift, offer friendship or terminate it, or any other purpose—and the envoys would always return to their lords when their negotiations had come to an end. Those embassies were always “extraordinary” delegations entrusted with a special order and serving a special purpose. The usage of keeping ambassadors at other courts for longer periods, not to mention permanently, was unknown in the Middle Ages, and the credit is usually given to fifteenth-century Venice for having inaugurated modern diplomacy. That, however, is not quite correct. Kings began to keep so-called procuratores, legally trained envoys, almost permanently at the papal court—from the time of Gregory IX (1227-41) onward—to take care of legal business in Rome where law-suits pended often for many years. Again, a principle was set. For around 1300, as the Acta Aragonensia have clearly revealed, kings began to appoint permanent representatives also to important secular courts where not legal but political business had to be observed. Moreover, the credentials of those ambassadors, formerly describing perhaps the special nature of the diplomatic business, now were not rarely drawn up for a specific time rather than for a specified singular purpose. Once more we notice a tendency to link an institution—the ambassadorial office—to Time.34

We may think also of the custom to record all administrative acts in permanent registers which, by their technical division into annual rolls or books, were linked indeed to the calendar and to Time.35 Nor would it be too difficult to add other examples illustrating a peculiar continuity of the administrative apparatus of the new monarchies and of governments at large. However, all that had to be said here was that practical needs produced institutional changes presupposing, as it were, the fiction of an endless continuity of the bodies politic. And while it cannot be claimed that any particular philosophy caused the new governmental practice, it cannot easily be denied that existing techniques of government found support, and were quickened in their development, by philosophic thought and legal theories which worked their way into administrative practice from many sides.

2. Fictio Figura Veritatis

IMPERIUM SEMPER EST

The climax of the eschatological mission of the Ecclesia militans was its disappearance on the Day of Judgment, the day when it merged with the Ecclesia triumphans. It was, therefore, a matter of dogma and faith to believe that the Church militant was to last until the end of Time. This belief in the continuity of the Church until the Last Day, however, not only had effects on spiritual matters, but also influenced quite profane issues of ecclesiastical administration and law. A canon (c. 70) of the Fourth Council of Toledo (633) became rather important in this respect; for the Council decreed that freedmen of the Church and their descendants could never be dismissed from the clientage of the Church because their patron, the Church, “never dies,”—nunquam moritur.³⁶ This sentence, after having passed through various canonical collections, found its way finally into Gratian’s Decretum where it was supported by a passage from Saint Augustine, inserted into a letter of Pope Pelagius, saying that “it cannot be that there be no Church”—ecclesia nulla esse non potest.37 Thus, the dogmatic sempiternity of the Church militant found its juristic equivalent in the maxim Ecclesia nunquam moritur, “the Church never dies.”

Sempiternity was attributed also to the Roman Empire. The belief in the continuity of the empire in finem saeculi was as common in the Middle Ages and as much an established fact as was the late-antique belief in the “eternity” of the city of Rome; and the struggle against Antichrist, expected to take place just before the End, bestowed upon the Christian empire an eschatological function related to that of the militant Church.³⁸ The belief in the sempiternity of the Roman Empire, to be sure, was not a matter of dogma. It rested, for one thing, on Jerome’s identification of Daniel’s vision of the Four World Monarchies the last of which, that of the Romans, was to continue till the end of the world; and the late-mediaeval jurists occasionally found it convenient to recall the popular argument.³⁹ This argument was not defeated by a thesis, popularized by Tolomeo of Lucca, the continuator of Aquinas’ tractate on Princely Government, and saying that the fourth monarchy had been followed by a fifth, the monarchy of Christ, “the true lord and monarch of the world,” whose first vicar was, if unwittingly, the Emperor Augustus.40 This new version played occasionally a role in legal thought, too. “With the coming of Christ, the empire of the Romans began to be the empire of Christ,” wrote Bartolus, and therefore “it is true if we maintain that everything belongs to the Roman Empire, which now is the Empire of Christ.”⁴¹ Though Bartolus merely wished to prove the universal jurisdiction of the emperor or rather the fact that “the whole world’s regularity rests in the emperor,”42 there followed nevertheless the obvious conclusion that the terrestrial Roman Empire of Christ would last until the End.⁴³ Tenets such as these, however, supported and were supported by the Justinian Law itself which asserted that the empire was founded by God directly;⁴⁴ that the empire was “forever”;⁴⁵ and that, therefore, as Andreas of Isernia put it, “the Church does not die and is forever, like the Empire.”⁴⁶

This transcendentally-founded continuity of the Roman Empire was buttressed by an argument in favor of an immanent continuity. The lex regia, it will be recalled, established—at least according to the defenders of popular sovereignty—the imprescriptible right of the Roman people to confer the imperium and all power on the Prince. If, however, Rome and the empire were “forever,” it followed a fortiori that the Roman populus likewise was “forever,” no matter who may have been substituted for the original populus Romanus or played its part at a given moment: there always would be men, women, and children living in Rome and in the empire and representing the Roman people. The interpreters of Roman Law specifically recognized the principle of “identity despite changes” or “within changes.”⁴⁷ Already the Accursian Glossa ordinaria acknowledged this principle when defending the identity and continuity of a law court even though individual judges may have been replaced by others.

For just as the [present] people of Bologna is the same that was a hundred years ago, even though all be dead now who then were quick, so must also the tribunal be the same if three or two judges have died and been replaced by substitutes. Likewise, [with regard to a legion], even though all soldiers may be dead and replaced by others, it is still the same legion. Also, with regard to a ship, even if the ship has been partly rebuilt, and even if every single plank may have been replaced, it is nonetheless always the same ship.48

It was, in fact, the continuity and invariability of “forms” which the glossator defended.⁴⁹ Baldus, glossing that gloss, was quite explicit on that point: “Notice, that where the form of a thing does not change, the thing itself is said not to change.” And in an additional example Baldus explained that an interdict of the Church, imposed on a community, even though all the individuals who had caused the interdict may have died, could nevertheless remain valid for a hundred years or more “because the people does not die”—quia populus non moritur.⁵⁰

For the sake of that immanent continuity of a populus qui non moritur the transcendental legitimation of continuity had not necessarily to be discarded. One combined the two “continuities”—that from above and that from below—with the result that the conferring of the imperium on a Prince became jointly a work of the eternal God and the sempiternal people. The briefest formula for that cooperation of God and people was perhaps the one introduced by John of Paris and repeated by him several times: populo faciente et Deo inspirante, “the people acts and God inspires.” John of Paris, who wrote his tractate around 1303, bolstered his statement by a reference to Averroes’ commentary on the Nicomachean Ethics where it is said that the king’s government “accords with nature” if he, or the dynasty, is constituted by the free will of the people.51 In other words, through the people electing him the king governed “by nature,” whereas the election itself of the specific individual, or the royal house, was effected by God as a causa remota and inspired “by grace.”⁵² The cooperation of God and people, however, had been established long before John of Paris. Accursius, glossing the words “God has established the empire from heaven,” added lapidarily: “or rather the Roman people from earth—immo populus Romanus de terra.” And he added the further explanation: “God has constituted the empire by his permission, and the people [have constituted it] by the dispensation of God; or else you might say: God constituted the empire by his authority; the people, by ministry.”53 Accursius thus recognized the transcendental foundation of the empire and preserved it by making the people ministers of the divine will. Another solution, distinguishing—as the canonists did—the emperor from the empire, was proffered by Cynus of Pistoia, who ruled: “Nor is it absurd that the empire should be derived from God and the people: the emperor is from the people, but the empire is called divine from God.”⁵⁴ In that case, the supra-personal body politic of the empire was from God, whereas the personal Prince as individual was nominated by the people which itself was sempiternal. But whatever the interpretations may have been like, the co-agency of an eternal God and a sempiternal people made the cooperation of the Church as superfluous as it had been in the fourth and fifth centuries: the Church was practically frozen out, as the continuity was achieved para-ecclesiastically by the powers of God and the people or “nature.”55

The lex regia, manifesting the inalienable rights of the people and thus proclaiming the perpetuity of the maiestas populi Romani, was not restricted to Rome alone, although the Romans served as the prototype of the perpetuity of a people. That fundamental law, of course, was universally applicable to the conditions of any regnum and every people, and it actually did appear in the legal writings of all European countries. The transfer, however, of the idea of the people’s perpetual majesty from the Romans to the nations and communities of Europe in general—we may recall Marsiglio of Padua’s Defensor pacis—was defined quite explicitly by Baldus, who said:

The commonweal [i.e. any commonweal] has its majesty after the example of the Roman people, provided that the commonweal be free [i.e. having no superior] and have the right to create a king.⁵⁶

By implication, therefore, any regnum and every people was legally granted the continuity of the Roman people and the perpetuity of its maiestas. We recognize that well known “cascading” from the empire to the regna and civitates, epitomized precisely and powerfully by the slogans Rex imperator in regno suo and Civitas sibi princeps.

Nevertheless, the perpetuity of kingdoms and communities “having no superior” rested on more than the transfer and secularization of the empire idea. The doctrine of the perpetual identity of forms despite changes, which had been used by the earlier glossators without the support of Aristotelian notions, was not rarely strengthened in the writings of the post-glossators by Aristotelian maxims. Baldus, for example, when discussing the emperor of former days as the lord of “provinces” which by now had become independent kingdoms, remarked:

Now, however, the dispositions of the world have changed, as says Aristotle in De caelo et mundo, not in the sense that the world will generate and corrupt, but its dispositions: and there is nothing imperishable under the sun. The cause of corruption namely is, all by itself, Time …; and although the empire is forever …, it nevertheless does not remain in the same status because it dwells in continuous motion.…57

Baldus, to say the least, assumed a relatively permanent duration of the world which lasted “forever” although its dispositions changed and were subject to corruption and generation. In this case, Baldus applied the doctrine of permanent duration to the imperium quod semper est; but he used the same argument also with regard to commonwealth and fisc in general when he said that “they cannot die,” that both were “something eternal and perpetual with regard to their essence, even though the dispositions change frequently.”⁵⁸ His formulations were even slightly bolder when talking about the perpetuity of kingdoms and peoples.

A realm contains not only the material territory, but also the peoples of the realm because those peoples collectively are the realm.… And the totality or commonweal of the realm does not die, because a commonweal continues to exist even after the kings have been driven away. For the commonweal cannot die [non enim potest respublica mori]; and for that reason it is said [D.2,3,4] that the “commonweal has no heir” because in itself it lives for ever, as says Aristotle: “The world does not die, but the dispositions of the world die and change and are altered and do not persevere in the same quality.”⁵⁹

We are confronted with a new version of the problem of a “double truth.” There is no reason to doubt that Baldus, in perfect honesty, would not have hesitated in the confessional to admit the createdness, and deny the eternity, of the world. Juristically, however, he needed the heuristic hypothesis of some infinite perpetuity, and it is easy to see how useful Aristotelian notions were to him and how useful to the lawyers in general who, on grounds totally different from those of the philosophers, defended the perpetuity of bodies politic and immortality of fictitious persons. For the same reasons the doctrine of the immortality and continuity of the genera and species was almost indispensable, since it was most convenient for the jurists to identify the immortal bodies corporate and other collectives with species. A law in the Digest recognized clearly the danger of making a municipium the usufructor of property because any collective usufructor had the tendency to usufruct “perpetually.” When glossing that law, Odofredus remarked that “a municipium cannot easily perish except on the day of Last Judgment,” because “genera cannot perish”—genera perire non possunt.60 Odofredus, who died in 1265, hardly meant to refer to Aristotle. Baldus, however, in his gloss on the instrument of the Peace of Constance of 1183, used a philosophically more refined language when he wrote “that something which is universal cannot perish by death, just as man in his species does not die.”⁶¹ In short, by the fourteenth century the Aristotelian tenets concerning perpetuity were deeply ingrained in legal thought. Little wonder then that Padua and the jurists at large—mostly, it seems, by popular misconception—were notorious and ill-famed for their “Averroism.”62

To summarize, the continuity of the people and the state derived from many sources, and in general it may be said that theory followed existing practice. Without depending on any broader philosophical outlooks the administrative technique of the state developed its own patterns of continuity. Theory, however, was effective in other respects. The lex regia asserted the perpetuity of the Roman people,⁶³ and by transferring that claim from the Romans to others as well, the perpetuity of any and every people was, so to speak, legally confirmed. Finally, the Aristotelian and Averroist doctrines brought about a consciousness of “natural” perpetuity in a philosophic sense, whereby the tenet concerning the eternity of the genera and species proved particularly useful to the lawyers who for purely juristic reasons defended the continuity of collective bodies and the immortality of juristic universals and species.

UNIVERSITAS NON MORITUR

Though probably rewarding, it would be nevertheless complicated and tiresome to try to build up a concordance of scholastic and juristic thought, or to hazard a decision as to whether the philosophic notions which the jurists used rather indiscriminately for defining their legal abstractions (forms, species, genera, universals, and their like), reflected any clearly determinable school concepts, nominalistic or other, as has occasionally been suggested.64 There is no doubt, however, but that the jurists borrowed abundantly from the vocabulary of scholastic philosophy, that they moved freely in the borderlands of theology, philosophy, and jurisprudence, and applied, more or less eclectically, the scholastic matrix to express their own ideas. According to language and content, for example, the jurists’ “fictitious” or “intellectual” persons are hardly distinguishable from the Universals which the nominalists liked to call fictiones intellectuales.⁶⁵ Moreover, the doctrine of the perpetual “identity despite change” of a community—Bologna, for instance—might be taken to refer to the eidos of Bologna, which was distinct from the material city at any given moment and detached from both the citizens living at present within Bologna’s walls and the bricks forming at present those very walls. We might also consider the great ease with which the philosophers following Duns Scotus formed abstract notions such as Socratitas to designate the principle of individuation by which the generic “man” became the individual Socrates. Though hardly depending upon the Scotists, the jurists nevertheless created something comparable. For between the generic communitas or universitas on the one hand, and the individual and material community of Bologna composed of mutable citizens and perishable buildings on the other hand, there arose a third entity different from both, an entity which was immaterial and invariable, though not devoid of individuation, which existed (as it were) in some perpetual aevum, and which appropriately might have been called Bononitas or “Bolognity,” had the lawyers not preferred to talk about the corporate universitas—that is, the juristic person or personified community—of Bologna. Nevertheless, that corporate, if incorporeal, Bononitas represented, like the angels, species and individuation at the same time.66

It might be mentioned parenthetically that the personifications of communities, cities, and kingdoms created by juristic speculation were not simply a revival of those toponymic personifications of classical Antiquity which had lingered on in the miniatures of Carolingian, Ottonian, and even later manuscripts.⁶⁷ In fact, the juristic personifications of cities and countries were not at all identical with their august predecessors of classical cults. The classical city goddesses, adorned with mural crown or halo, still belonged, in a broad sense, to the stratum of ancient anthropomorphism: they were the genius of a city and they could claim immortality and perpetuality simply because they were goddesses. The personifications of the jurists, however, were philosophical fictions belonging to the realm of speculation. The cities, instead of receiving, like Antique city goddesses at their epiphanies, a visible body, were actually deprived of their visible body and were granted by legal thought only an invisible one. This invisible body, to be sure, was immortal and perpetual; yet it was immortal, not because it was the body of a goddess, but precisely because it was invisible—the body of an immaterial being. Hence the lawyers were far from reviving classical ‘‘anthropomorphic” personifications; they created instead, in full agreement with the mediaeval scheme of thinking, what may be called “angelomorphic” personifications. In other words, legal corporations compared structurally with Christian angels rather than with pagan goddesses.

In his gloss on the Peace of Constance, Baldus called a city “something universal that cannot perish by death,” and he compared that “universal” with the genus or species of man which does not die either.68 It is possible that the term “something universal” (quoddam universale) evoked associations with the likewise immortal Universals of philosophic speech; but what the term universale really meant in legal language was quite unambiguous: it was synonymous with the technical term universitas deriving from Roman Law, the corporational collective at large which the early glossators defined as “a conjunct or collection in one body of a plurality of persons.”⁶⁹ On that basis, Bartolus could maintain that “the whole world is some kind of universitas,” not to mention kingdoms and cities.⁷⁰ Baldus could define a populus as “a collection of men in one mystical body,”⁷¹ or call a regnum “something total which both in persons and things contains its parts integrally,”⁷² or talk briefly about “some universal person.”⁷³ For to interpret a collective bluntly as a “person” was suggested by Roman Law itself, which, in the frequently quoted lex mortuo (D.46,1,22), called a municipality, law court, or guild—under certain conditions even an inheritance—“a person.”74

The underlying general idea was hardly different when Andreas of Isernia compared the patria to an ecclesiastical collegium.⁷⁵ For even before the civilians made their deductions and personified the universitas, the canonists had applied the legal notion of universitas to the various ecclesiastical collegia—chapters, congregations, and others—as well as to the whole Church. Being the universitas fidelium according to oldest definitions, the universal Church was also legally universitas without restriction; and through the fusion with the organological concept of corpus mysticum on the one hand, and the anthropomorphic designations of the Church as mater or sponsa on the other, the temptation to personify the ecclesiastical collective also juristically may have been present at an early date.⁷⁶ In any event, the general tendency to treat the various ecclesiastical collegia as though they were real persons who could be punished and excommunicated must have been far advanced when Innocent IV found it necessary to define unambiguously the character of those collective “persons.” At the Council of Lyon, in 1245, he forbade the excommunication of an universitas or collegium, and later interpreted his action and justified it on the grounds that universitates such as a chapter, a people, a tribe, were “names of Law” only and not of persons, and that names cannot be subject to excommunication. He pointed out that an universitas was a person without a body, a pure nomen intellectuale and thing incorporeal which, as later canonists were quick to point out, could not be condemned because it was lacking a soul, nor be decapitated because it was lacking a body.77 The personified universitas, therefore, was only an imaginary “represented person” (persona repraesentata) or a “fictitious person” (persona ficta).

Although Innocent’s epochal statement⁷⁸ about the universitas as a fictitious person was actually made in a negative sense, the definition itself created or articulated something very positive: the possibility of treating every universitas (that is, every plurality of men collected in one body) as a juristic person, of distinguishing that juristic person clearly from every natural person endowed with body and soul, and yet of treating a plurality of individuals juristically as one person. That this corporate person was fictitious detracted nothing from its value, especially its heuristic value; besides, the word fiction itself was not necessarily derogatory. In a descriptive sense, it will be recalled, the nominalists styled the Universals fictiones intellectuales.⁷⁹ Aquinas, actually following Augustine, could define “fiction” in a signally positive sense as figura veritatis.⁸⁰ And Baldus, elaborating glosses of Accursius and Bartolus, finally declared, with a slight twist of an Aristotelian tenet: “Fiction imitates nature. Therefore, fiction has a place only where truth can have a place.”⁸¹

What matters here, however, is merely the problem of continuity. It is significant that it was precisely this problem which prompted Innocent IV to decide most emphatically that the universitas was an intellectual person which cannot die, and not a real person. Hence, an excommunication which was extended to a whole body corporate, instead of being reserved for guilty individuals, would finally affect also innocent men joining the universitas as substitute members (subrogati) at a later date.82 It was a simple application to the future of the customary doctrine of “identity despite changes,” which more often referred to the past; and the later jurists argued accordingly:

The universitas is the same today which it will be a hundred years hence.… If, therefore, we would say that an universitas can fall delinquent, the children, infants, women, and their likes would be included, which would be absurd; and for these reasons Innocent concluded that an universitas cannot be excommunicated.83

The implications are obvious: the universitas thrives on succession; it is defined by the successiveness of its members; and owing to its successive self-regeneration the universitas does not die and is perpetual—as Bartolus said: “Nothing in this world can be perpetual … except by way of substitution.”⁸⁴

On a far broader scale, and in a completely different connection, Thomas Aquinas came to define the problem of successiveness within the corpus mysticum. He started by distinguishing between the mystical body of Christ and man’s natural body. In the human body, says Aquinas, the members are present “all at once” whereas to the mystical body the limbs accrue gradually in permanent succession “from the beginning of the world [Adam, of course, belonged to the ecclesiastical corpus mysticum] till the end of the world.” Therefore that mystical body embraces not only those actually in the fold but also those who potentially might join the fold now or in the future—that is, it extends to both the as yet unborn future generations of Christians and the as yet unbaptized pagans, Jews, or Mohammedans, since the mystical body of Christ, that is, the Church, grows not only by nature but also by grace.⁸⁵ What Aquinas said was certainly not new; but his neat formulation made it very clear that the corpus mysticum was composed not only of those living simultaneously in the ecclesiastical oikumene and within a universal Space, but that it encompassed also all members past and future, actual and potential, who followed each other successively in a universal Time. That is to say, not only the plurality of men living together in a community formed a “mystical body,” but the corporate plurality was achieved also in view of the successiveness of its members.

The principle expressed in Aquinas’ definition of the corpus mysticum of the universal Church was applicable, with slight variations, to any corpus mysticum, to any universitas large or small, ecclesiastical or secular. The canonists stressed time and time again that the church of this or that place or country remained the same church even if all its members were dead and replaced by others; or, that the collegium or chapter of a cathedral was “today the same as it was a hundred years ago although the persons were not the same.”86 With this chorus Bracton fell in: “Though abbot or prior, monks or canons successively die, the house will remain in eternity.”⁸⁷ The Glossa ordinaria, we recall, made the same statement about the identity of Bologna a hundred years ago with the present Bologna and, implicitly, with any future Bologna.⁸⁸ Bartolus argued that the same was true with regard to the universitas scholarium, the University.⁸⁹ Other civilians held that every populus or universitas “was the same as it had been a thousand years ago because the successors represent the same universitas.”90 It is true, of course, that minor communities could not claim—like the corpus mysticum of the universal Church—their identity ever since the creation of the world; but they could claim their identity within Time ever since their own creation or foundation, and thence onward to the end of the world or any other practically unlimited time. Baldus, for example, styled the Roman empire “that great universitas which encompasses in itself all the faithful of the empire both of the present age and of successive posterity,” and of course he included implicitly also the past.⁹¹ The empire, perhaps, could claim like the Church a universality also regarding Space: “… that every soul be subjected to the Roman Prince,” as Emperor Henry VII proclaimed.⁹² But the universality of the minor corporate bodies was restricted to the universality of Time, as far back as it went in each individual case.

In other words, the essential feature of all corporate bodies was not that they were “a plurality of persons collected in one body” at the present moment, but that they were that “plurality” in succession, braced by Time and through the medium of Time. It would be wrong, therefore, to consider the corporational universitas merely as the simul cohabitantes, those living together at the same moment;⁹³ for they would resemble, in Aquinas’ language, only the physical body of man whose members were present “all at once,” but they would not form the genuine corpus mysticum such as Aquinas had defined it. The plurality in succession, therefore, or the plurality in Time was the essential factor knitting the universitas into continuity and making it immortal.

We now recognize the flaw in the purely organological concept of state which regarded “head and limbs” mainly as they were represented at a given moment, but without projecting beyond the Now into Past and Future. The purely organological state became “corporate” only ad hoc, it was “quasi-corporate for some purposes of jurisdiction, taxation and administration,”94 or in a moment of national emergency and effervescing patriotism, but it was not corporate in the sense of that perpetual continuity characteristic of the universitas. That is to say, the organological concept all by itself—John of Salisbury’s analogy of the state with a human body—had not yet consciously integrated the factor of unlimited Time, which was absorbed only when the state organism became a “body” in the juristic sense: an universitas which “never dies.” It is not surprising, therefore, that the organological analogy, important as it was as an initial step during the age of transition, gradually became philosophically dispensable because it was superseded by the corporational concept of universitas which embraces “head and limbs” also in succession.

It shall not be denied, however, that notions such as patria or corpus morale et politicum contained by implication also the element of continuity in Time; but this conclusion was not drawn before the fourteenth century nor was it rationalized that a mystical body, such as that of the French patria, encompassed not only all the Frenchmen living at present, but also all those having lived in the past and going to live in the future. It naturally took some time before the findings of the jurists—the identity in succession and the legal immortality of the corporation—began to sink in and to be combined with the idea of the state as an ever-living organism or with the emotional concept of patria. And expressions of national flavor such as La France éternelle, “immortal France,” and others belonged definitely to a later period.

To say it once more, the most significant feature of the personified collectives and corporate bodies was that they projected into past and future, that they preserved their identity despite changes, and that therefore they were legally immortal.⁹⁵ The detachment of the corporate universitas from its individual components resulted in the relative insignificance of these mortal components who at any given moment constituted the collective; they were unimportant as compared to the immortal body politic itself which survived its constituents, and could survive even its own physical destruction.96 But granted that the universitas and the ever-changing limbs of the body corporate constituted an immortal entity, what about the “head” of the body politic which, after all, was a mortal individual man?

If the factors Time, Perpetuity, or Identity despite Change formed a decisive feature of the bodies corporate, and if further the present constituents of a body corporate were of relative unimportance as compared to the immortal universitas as such, then it might not appear too difficult to isolate, as it were, those decisive features and to arrive at a new construction: the corporation existing exclusively in Time and by succession. Normally the “plurality of persons” needed to form a collective body was constituted both ways: as it were, “horizontally” by those living simultaneously, and “vertically” by those living successively. Once, however, the principle was found that “plurality” or “totality” (totum quoddam) was—contrary, or even diametrically opposed, to the purely organological concept—not restricted to Space, but could unfold successively in Time, one could discard conceptually the plurality in Space altogether. That is to say, one constructed a corporate person, a kind of persona mystica, which was a collective only and exclusively with regard to Time, since the plurality of its members was made up only and exclusively by succession; and thus one arrived at a one-man corporation and fictitious person of which the long file of predecessors and the long file of future or potential successors represented, together with the present incumbent, that “plurality of persons” which normally would be made up by a multitude of individuals living simultaneously. That is, one constructed a body corporate whose members were echeloned longitudinally so that its cross-section at any given moment revealed one instead of many members—a mystical person by perpetual devolution whose mortal and temporary incumbent was of relatively minor importance as compared to the immortal body corporate by succession which he represented.97

This curious concept solved, as it were, the difficult problem of the perpetuity of the “head” of the body politic. It is on that basis and with that corporational plurality by succession in mind that we have to approach the problem of the King “who never dies.”

¹ Frederick II had already asked Ibn Sabin for the proofs of the eternity of the world; see Erg.Bd., 102,152.

² See, however, Hans Baron, “A Sociological Interpretation of the Early Renaissance in Florence,” South Atlantic Quarterly, XXXVIII (1939), 436ff, who called attention to the opposite trend of revaluating Time: the preciousness of Time. There may be other historians who dropped occasional remarks on that subject; on the whole, however, it is surprising how rarely the element of Time has been considered as a decisive historical factor in the innumerable studies on the genesis of the modern state and of modern economy.

³ Augustine, Confessions, XI. The literature on Christianity and Time is next to infinite, and the flood has been swelling constantly during the last years; see, e.g., J. Baudry, Le problème de l’Origine et de l’Eternité du Monde (Paris, 1931); Jean Guitton, Le temps et l’éternité selon Plotin et saint Augustin (Paris, 1933); Oscar Cullman, Christus und die Zeit (Zollikon-Zürich, 1948); Henri Marrou, L’Ambivalence du temps de l’histoire chez saint Augustin (Montreal, 1950); and, for a brief bibliographic survey of more recent publications, Paul Henry, “The Christian Philosophy of History,” Theological Studies, XIII(1952), 419ff. In general, see the useful study of Frank Herbert Brabant, Time and Eternity in Christian Thought (Bampton Lectures, 1936; London, 1937).

⁴ See the famous passage in Summa theol., 1,qu.46, art.2: “Respondeo dicendum, quod mundum non semper fuisse, sola fide tenetur, et demonstrative probari non potest.”

⁵ Best known is the long list of 219 errors drafted by Bishop Stephen Tempier of Paris (1277) and published by H. Denifle, Chartularium Universitatis Parisiensis (Paris, 1889), 1,544ff; but there were many other lists published as well; see J. Koch, “Philosophische und theologische Irrtumslisten von 1270-1329,” Mélanges Mandonnet (Paris, 1930), 11,305-329. Those lists were, in fact, the best propaganda for Averroism insofar as they condensed most difficult problems into easily conceivable slogans. No bibliography on Averroism will be required here; but Martin Grabmann’s Der lateinische Averroismus des 13. Jahrhunderts und seine Stellung zur christlichen Weltanschauung (Sitz.Ber., Munich, 1931, No.2), his Studien über den Einfluss der aristotelischen Philosophie auf die mittelalterlichen Theorien über das Verhältnis von Kirche und Staat (Sitz.Ber., Munich, 1934, No.2), as well as the studies collected in his Mittelalterliches Geistesleben (esp. vol. 11 [Munich, 1936]) may just be mentioned as a landmark of scholarship on mediaeval Aristotelianism during the last decades. Attention, however, should be called to the recently discovered tractate of Boethius of Dacia, ed. Géza Sajó, Un traité recemment découvert de Boèce de Dacie “De mundi aeternitate,” texte inédit avec une introduction critique (Budapest; 1954).

⁶ By rejecting the Aristotelian tenets concerning the infinity of Time and the impossibility of a spatial void, Bishop Tempier most curiously was compelled to defend the possibility of a plurality of worlds; see Alexander Koyré, “La vide et l’espace infini au XIV^e siècle,” Archives d’histoire doctrinale et littéraire du moyen âge, XXIV (1949), 45-91. The problem of primordial matter was discussed in the twelfth century in a scholarly fashion; see Heinrich Flatten, “Die primordialis materia in der Schule von Chartres,” Archiv für Geschichte der Philosophie, XL (1931), 58-65.

⁷ The problem of progress in the thirteenth century will be discussed separately on a broader basis and in another connection. For the religious aspect of the problem, which is inseparable from the doctrines of Joachim of Fiore and the Spiritualists, see most conveniently Ernst Benz, Ecclesia spiritualis (Stuttgart, 1934), 265ff, and passim; the ever increasing literature on Joachim (see Herbert Grundmann, Neue Forschungen über Joachim von Fiore [Marburg, 1950]) rarely fails to consider also the idea of progress as an implication of Spiritualist doctrines. The scientific idea of progress, stimulated very strongly by Priscian, Institutiones grammaticae, 1,1 (see above, Ch.v, n.187), has been briefly discussed by R. Klibansky, “Standing on the Shoulders of Giants,” Isis, XXVI (1936), 147f; cf. G. Sarton, “Query n.53,” Isis, XXIV (1935-6), 107ff; J. de Ghellinck, “Nani et gigantes,” Bulletin Du Cange, XVIII(1945), 25-29. The best source on that subject, however, has passed almost unnoticed; that is, the philosophical reflections of the jurists.

⁸ The phrase comes down from Gellius, Noctes Atticae, XII,11,7. For the earlier history of this maxim, often represented in Renaissance art and found also in Erasmus’ Adagia, see the remarks of F. Saxl, “Veritas filia Temporis,” Philosophy and History: Essays Presented to Ernst Cassirer (Oxford, 1936), 200, n.1. For the pre-Renaissance period the material has not yet been investigated; but it was probably again the jurists who equated Time aod Truth; see, e.g., Baldus, on D. 1,3,32, n.88, fol.23, discussing the validity of unwritten customary Law, that is, of custom “of which human memory is not to the contrary,” to which he remarks: tempus loco veritatis est.

⁹ See Post, “Two Notes,” 286,n.24. The essential place of reference is Inst.1,25,pr. (above, Ch.v,n.160) to which the Glos.ord., v. per gloriam vivere, says: “Nota, mortuum vivere per gloriam,” with an allegation of D.9,2,7,4 (no punishment if “in publico certamine alius alium occiderit …, quia gloriae causa et virtutis, non iniuriae gratia videtur damnum datum”), to which the Glos.ord., v. gloriae causa, remarks: “Per gloriam quis occiditur, ut hic [the one killed in publico certamine, interpreted as tournament]: et ideo post per gloriam vivere potest, licet sic mortuus dicatur.” Also Glos.ord., on D.3,2,25, v. ceciderit: “Qui per gloriam vivere intelligitur,” with allegation of Inst.1,25,pr.

¹⁰ Placentinus, Summa in Tres Libros, prooem., ed. Savigny, Geschichte des Römischen Rechts im Mittelalter (2nd ed., Heidelberg, 1850), IV,245: “Secundo, credidi multum expedire mihi ad memoriam meique nominis famam in perpetuum conservandam.…” See also the prooemium of the Margarita super Feudis (late 13th ccntury) of Dulius Gambarini: “… cunctos literatoriae scientiae amatores expedit dare operam studio indefesso ut sua in evum memoria relinquatur”; cf. Jean Acher, “Notes sur le droit savant au moyeo âge,” Nouvelle revue historique de droit français et étranger, XXX(1906), 125. See also Angelo de Ubaldis, on D.1,1,1,n.2 (Venice, 1630), fol.3^r (v. perpetui): “Vel die quarto quod Justinianus est perpetuus perpetuitate memoriae … [C.1,3,23].” The same jurist (loc.cit., v. Itaque procul dubio, n.7, fol.2^v) draws also an interesting parallel with saints: “Memoria no[ta]: post mortem quis salvatur in sua memoria. Item no[ta] quare omni anno celebrantur festa Sanctorum.” For Frederick II, see Huillard-Bréholles, V,907, the reconstruction of an aqueduct ad laudem et gloriam nostri nominis; see also the places quoted Erg.Bd., 181. See also Dante, Monorchia, I,1: “ut palmam … in meam gloriam adipiscar.” Or Andreas of Isernia, In usus feudorum, prooem.,n.11, fol.1^v, quoting Seneca: immortalis est ingenii memoria.

¹¹ Inferno, XIII,53 (Petrus de Vinea): “… tua fama rinfreschi/Nel mondo su …” Also Inferno, VI,88f; XVI,85; XXXI,127; cf. Burckhardt, The Civilization of the Renaissance in Italy, trans, by S. G. C. Middlemore (Vienna, n.d.), 307, nos.285-287. It is, of course, perfectly logical that per perpetuam gloriam vivere is desired by those in Inferno, since only the Inferno is of perpetual duration (Purgatory ends and Paradise is timeless), an idea expressed by the inscription of the Gate of Hell (Inf., III,7f:

Dinanzi a me non fur cose create

Se non eterne, ed io eterno duro.

See below, n.15.

¹² Paradiso, XVII,18.

¹³ See M. H. Vicaire, “Les Porrétains et l’Avicennisme avant 1215,” Revue des sciences philosophiques et théologiques, XXVI(1937), 449-482 (p.455: “un souffle dynamique puissant”); R. de Vaux, Notes et textes sur l’Avicennisme latin aux confins des XII^e et XIII^e siècles (Bibliothèque Thomiste, XX [Paris, 1934]); also J. M. Parent, La doctrine de la création dans l’école de Chartres (Publications de l’Institut d’études médiévales d’Ottawa, VIII [Paris and Ottawa, 1938]).

¹⁴ For aevum, see the survey by A. Michel, “Eternité,” Dictionnaire de théologie catholique, V:I, col.919. In general, Brabant, Time and Eternity, 74ff. Of course, the philosophers did not always interpret aevum in the same way; see F. Beemelmans, Zeit und Ewigkeit nach Thomas von Aquino (Beiträge zur Geschichte der Philosophie im Mittelalter, XVII,I; Münster, 1914), 52ff; E. Gilson, The Philosophy of St. Bonaventura (New York, 1938), 260ff; C. R. S. Harris, Duns Scotus (Oxford, 1927), II,141 ff; Gilson, Jean Duns Scot (Études de philosophie médiévale, XLII [Paris, 1952]), 401ff. The notion of aevum was certainly not unknown in the earlier Middle Ages; in 799, Alcuin defined it on the whole correctly (MGH, Epp. IV,263ff, No. 163). Philosophically and theologically, however, aevum gained new impetus by its integration into the angelologies of scholasticism. For the infinity of Time with regard either to past and future or to future alone, see Ambrose, Hexaemeron, 1,1,3, PL, XIV,135, who connects those differing concepts with Aristotle and Plato respectively; cf. Richard McKeon, “Aristotelianism in Western Christianity,” in Environmental Factors in Christian History (Chicago, 1939), 224, n.68.

¹⁵ See Brabant, Time and Eternity, 77. I am fully aware of the fact that aevum has many other aspects as well, and that the Time continuum of the angels is a most involved problem, discussed over and over again by the scholastic philosophers in their Quodlibet literature and elsewhere. That Hell belonged to aevum is suggested by Aquioas, Quodlibet, v,7, ed. P. Glorieux, La littérature quodlibétique de 1260 à 1320 (Bibliothèque Thomiste, v. [Kain, 1925]), 1,281: Utrum Lucifer sit subiectum aevi? See, above, n.11, for Dante, in whose system the three categories are represented: to the Paradise belongs aeternitas, to the Purgatory tempus, aod to Hell aevum. It would be senseless, of course, should the sinners be made to suffer in timelessness, since in that case there would not be an infinite succession of punishment and pain.

¹⁶ For the doctrine of eternal recurrence in periodical circles, see, in Bishop Tempier’s list of errors, No.6 (Denifle, Chartularium, 544). Whether the angelic aevum was always linear continuity or whether it was also simultaneity (changes without a succession of moments; see Beemelmans, Zeit und Ewigkeit nach Thomas von Aquino, 44f), is a different matter; it certainly had nothing to do with the cycles of 36,000 years which the Averroists defended.

¹⁷ It was against the angelic coincidence of species with individual, as defended by Aquinas, that Duns Scotus polemicized; see Gilson, Jean Duns Scot, 399ff, and, in general, F. Ueberweg and M. Baumgartner, Grundriss der Geschichte der Philosophie der patristischen und scholastischen Zeit (10th ed., Berlin, 1915), 498 and 580.

¹⁸ An Accursian gloss shows the familiarity of the glossators with the scholastic distinctions; see Glos.ord., on D.8,2,33 (“ut in perpetuum idem paries aeternus esset”—a perpetual easement for the upkeep of an eternal wall of a building), v. ‘aeternus’: “id est sempiternus. nam aeternum dicitur, quod semper fuit et est: ut Deus. sempiternum dicitur, quod incepit et non desinet: ut anima et angelus et haec servitus.” Shortly thereafter Odofredus, on D.8,2,33 (Lyon, 1550), fol.263r, implied that “nihil in hoc seculo potest esse perpetuum nisi per surrogationem,” and later glossators on that law, Bartolus (fol.222) or Baldus (fol.311), simply state that perpetuatio fit per successionem sive subrogationem. More eloquent is Angelus de Ubaldis, on D.8,2,33,rubr. (Venice, 1580), fol.185^v. He states: “Nota sub sole nihil possibile est [esse] aeternum, fit tantum aeternitas per successionem seu subrogationem, et ita est casus hic.” With the Glos.ord. of Accursius, he distinguishes between “eternal” and “sempiternal,” but feeling uneasy about the “equiparation” of servitus with anima and angelus and about some similarities with the Aristotelian doctrine of the Eternity of the World, he argues against Accursius: “Sed quod dicit glossa ‘et haec servitus,’ non dicit bene referendo ad extra predicta, quia impossibile est aliquid esse sub sole sine fine, et ideo mundus habebit finem secundum fidem, licet princeps philosophorum fuerit in opinione contraria motus rationibus naturalibus.” The notions of “eternal” and “sempiternal” were nevertheless often enough confused. For example, Innocent IV’s sentence against Frederick II at Lyon (1245) was published in the Liber Sextus (c.2 VI 2,14; ed. Friedberg. 11,1008) under the correct heading: Ad memoriam sempiternam. Durandus, however, establishing a general rule concerning the passing of sentences, refers to it wrongly (Speculum iuris, II, part.iii,§6,n.7, vol.II,790), when he says: “Sententia enim fertur ad aeternam rei memoriam, ut legitur … [c.2 VI 2,14] in superscriptione.” See below, Ch.VII,n.6.

¹⁹ G. de Lagarde, La naissance etc., II: Marsile de Padoue (Paris, 1948), 79 and 85ff, remarks correctly: “L’Averroïsme est moins une doctrine qu’une attitude.” See also Leclercq, Jean de Paris, 75.

²⁰ Theodor E. Mommsen, “Petrarch and the Decoration of the Sala Virorum Illustrium in Padua,” Art Bulletin, XXXIV(1952), 114.

²¹ Above, Chapter IV, nos.267, 292.

²² See Post, “Two Laws,” 420ff. See also above, Chapter V, n.127, for the connection with crusading taxes; in general, A. Gottlob, Die päpstlichen Kreuzzugssteuern des dreizehnten Jahrhunderts (Heiligenstadt, 1892).

²³ See, for Sicily, Erg.Bd., 193, 243. Most revealing, though hardly evaluated, is a letter of Pope Martin IV, written to Charles of Anjou after the Sicilian Vespers and dealing with the collecta as an ordinary tax; cf. Les registres du Pape Martin IV, ed. Olivier-Martin (Paris, 1913), 225, No.488; see also Les registres du Pape Honorius IV, ed. M. Prou (Paris, 1886), 75, No.96,§§3-7. Concerning the pre-Angevin history of the collecta Pope Martin IV asserted that “de modo subveotionum et collectarum, que in regno Sicilie tempore clare memorie Guillelmi regis Sicilie solvebantur, … nichil aliud potuit inveniri, nisi quod antiquorum habet relatio, quod quondam Fridericus Romanorum imperator tempore quo de ultramarinis partibus rediit, primo subventiones et collectas ordinarias in regno imposuit supradicto, et quod ante predictum tempus collecte et subventiones tantum fiebant, cum rex Sicilie pro defensione ipsius regni defensionem faciebat, ac in coronatione regis ipsius, necnon et quando filius eius suscipiebat cingulum militare, ac ipsius filia nuptui tradebatur.” This became the common opinion; for the papal verdict, unfavorable to Frederick II, was repeated very often, even in later times; see, e.g., Paris de Puteo (d.1493), De Syndicatu, 1,2,n.59 (Lyon, 1548), fol.8: “nam Federicus fuit depositus ab imperio, quia collectas in regno imposuit.…” For the oppressiveness, see E. Sthamer, Bruchstücke mittelalterlicher Enqueten aus Unteritalien (Abh. preuss. Akad., 1933, No.2; Berlin, 1933), 13, the quotation from Saba Malaspina, in,c.16, in Muratori, Scriptores, VIII,831f. The value of the papal statement should be sought in the fact that the Holy See noticed quite precisely that a taxation ad hoc had been changed into “ordinary taxation.” The date of this change, however, is certainly not correct, because it is hardly true that Frederick II introduced annual taxation as early as 1230, nor is it permissible to intimate that the introduction of annual collectae depended on “Oriental” influences. What exercised influence was Roman Law (see below, n.34) which, we are told, prompted Barbarossa at Roncaglia, in 1158, to try to exact from the Italian cities an annual imperial tribute. Cf. Rahewin, Gesta, IV,c.7, ed. Hofmeister, MGH,SS.r. Germ. (3rd ed., 1912), 240: The emperor demanded “nec de terra tantum, verum etiam de suis propriis capitibus census annui redditionem.” Also Ligurinus, VIII,V.574, ed. C. G. Diimge, Heidelberg, 1812: “capitolium certo sub tempore censum.” Barbarossa’s intentions, however, never materialized. See also P. W. Finsterwalder, “Die Gesetze des Reichstages von Roncalia vom 11. November 1158,” ZfRG, germ.Abt., LI (1931), 59ff.

²⁴ For the scholastic and theological doctrines on taxation, see Paul Kehl, Die Steuer in der Lehre der Theologen des Mittelalters (Volkswirtschaftliche Studien, 17, Berlin, 1927), 74ff and passim. It is true that in France, after 1314, the estates had the right to grant a special tallage; but the assumption began to develop later on that the tallage had been granted, perpetually. Cf. Holtzmann, Französische Verfassungsgeschichte, 408. In England, of course, every general subvention to the king had to be granted by Parliament.

²⁵ Langlois, “Philippe III,” in: Lavisse, Histoire de France (Paris, 1901), 111:2, 250f: “Le principe était posé.” See, for France, the numerous studies of Carl Stephenson, above all “Les ‘aides’ des villes françaises au Xlle et XlIIe siècle,” Moyen âge, 2e sér., XXIV(1922), 274-328, and “La taille dans les villes d’Allemagne,” ibid., XXV (1925), 1-43; further, Joseph R. Strayer and C. H. Taylor, Studies in Early French Taxation (Cambridge, Mass., 1939).

²⁶ Oldradus de Ponte, Consilia, 98 (Venice, 1621), fol.39: “Contribuere si unus tenetur ad munera, quae fiunt causa utilitatis vel necessitatis, tenetur praestare munera, quae fiunt causa necessitatis in habitu, licet non in actu.” It is not certain, of course, whether this summary is by the author himself or by a later editor. However, the distinction between necessitas in actu and necessitas in habitu covers precisely what Oldradus discusses in his Consilium.

²⁷ Ibid., n.4: “… quod, si contingat aliquam talliam indici quae fiet gratia publicae et communis utilitatis et necessitatis et cetera, quasi de futuris et extraordinariis indictionibus intellexerit. Sed huic respondetur.… Licet enim talliam indicendi causa et regalia sint antiqui actus: tamen indictionis omni anno est novus: et hoc respectu ordinariae praestationis indictiones appella[n]tur. Extraordinariae vero superindicta.…” See, for the distinction between ordinary and extraordinary taxations, also above, nos.23f.

²⁸ Ibid., rubr.2: “Quaeritur modo, si talliae, quas indicet rex seu eius curia, reputentur fieri gratia publicae utilitatis et necessitatis. Et est sciendum quod rex habet in dictis communitatibus et provincia iura imperialia et quae pertinent ad imperiale servitium ex privilegio imperiali.” This “privilege,” of course, does not refer to an emperor’s charter, but to the king’s imperial privilege as imperator in regno suo. Oldradus does not say expressis verbis that he is talking about the King of France; but since he lived in Avignon and styled the ruler dominus rex noster, he could not easily have referred to another king. Also, the fact that noblemen were supposed to contribute to the tallage, seems to hint that the consilium referred to Southern France; see Holtzmann, Französische Verfassungsgeschichte, 263f.

²⁹ Ibid.: “Item rex, seu eius procurator, bis in anno annuatim indicit in dicto castro duo munera: unum quod vocatur alberga, aliud cavalcata.”

³⁰ Ibid.: “Alberga praestatur ista ratione: quia solebant communes provinciae ire ad castra et audiebant querelas hominum de dominis suis: tunc homines solvebant expensas et illud vocatur alberga.”

³¹ Ibid., n.1: “Quae [alberga] hodie solvitur in pecunia annuatim … licet hodie nullus circumeat provinciam inferioribus de dominis suis iustitiam ministrando: quia tamen sunt iudices in singulis locis, qui hoc ipsum faciunt et de publico salarium a rege recipiunt.… Unde cum exhibitio talis iustitiae habeat in se publicam utilitatem et necessitatem, … videtur quod huiusmodi expensas nobiles, de quibus quaeritur, contribuere teneantur: quia verum est propter provinciae utilitatem et necessitatem.” See, for the annual payment of the droit de gite already in the 13th century, Holtzmann, Französische Verfassungsgeschichte, 257.

³² Ibid., n.1: “Cavalcata est pro exercitu regis: quae quamvis non fiat, solvitur in pecunia annuatim.” Ibid., n.3: “Et idem videtur de secunda [i.e. cavalcata] dicendum: licet enim non semper fiat exercitus, expedit uti provisione, ut cum locus fuerit, in aerario sit pecunia, ex qua militibus satisfiat.… Finis autem exercitus est ad bonum publicum.…” See above, Ch.v,n.222.

³³ Oldradus (ibid., nos.3-4) points out that those military general taxes had been customary in the Roman Empire and that Christ himself recommended the payment of the tribute: “Christus tributa Caesari monet reddi, quia per bella necessario militi stipendia praebentur [c.4, C.XXIII, q.1, ed. Friedberg, I,893], et ab huiusmodi contributione nullus excipitur. Si enim censum filius Dei solvit, quis tu tantus es qui non putas esse solvendum [c.28, C.XI, q.1, ed. Friedberg, I,634]?”

³⁴ R. von Heckel, “Das Aufkommen der ständigen Prokuratoren an der päpstlichen Kurie,” Miscellanea Fr. Ehrle (Rome, 1924), 11,315ff; Hermann Grauert, “Magister Heinrich der Poet,” Abh.bayer.Akad., XXVII (1912), 230ff; H. Finke, Acta Aragonensia (Berlin and Leipzig, 1908), 1, pp.cxxiiiff; Gaines Post, “Plena potestas and Consent in Medieval Assemblies,” Traditio, 1 (1943), 364ff. Frederick II, at least, had a nuntius consuetus accredited to England; see the author’s “Petrus de Vinea in England,” 65, n.81; for other appointments mentioning the continuity or time at large, see Calendar of Patent Rolls 1232-1247, pp.11, 32, 147 (Simon de Steland); Finke, op.cit., cxxxviiif and cxxxii; Luis Weckmann, “Les origines des missions diplomatiques permanentes,” Revue générale de Droit International Public (1952, No.2), pp. 17ff. See also Garrett Mattingly, “The First Resident Embassies: Mediaeval Italian Origins of Modern Diplomacy,” Speculum, XII (1937), 423-439, who (p.427) mentions as the first instance of permanent representation an envoy of Ludovico Gonzaga of Mantua at the court of Milan (1375), but fails to consider the evidence of the Acta Aragonensia.

³⁵ On the registers and their introduction by the secular states, see R. von Heckel, “Das päpstliche und sizilische Registerwesen,” ArchUF, 1 (1908), 445ff, and passim; H. Bresslau, Handbuch der Urkundenlehre (2nd ed., Leipzig, 1912), 1, lojff; also F. Kern, “Recht und Verfassung im Mittelalter,” HZ, CXX(1919), 34ff, and ibid., CXV(1916), 496ff, translated by S. B. Chrimes in Kingship and Law in the Middle Ages (Oxford, 1948), 149ff.

³⁶ See c.65,C.XII,q.2, ed. Friedberg, I,708: “Liberti ecclesiae, quia numquam eorum moritur patrona, a patrocinio ecclesiae numquam discedant.…” See Friedberg, loc.cit., n.734, for the transmission of c.70, Toledo IV, in canonical collections. The Glossa ordinaria, v. moritur, refers simply to the parallel from St. Augustine (see next note); but the passage is quoted frequently; see, e.g., Glos.ord. on c.24,D.LIV (Friedberg, I,214), v. fuerint: “quia eorum [libertorum] domina, scilicet ecclesia. nunquam moritur. ut 12.q.2.liberti.” Cf. Gierke, Gen.R., III,277,n.93.

³⁷ See c.33, C.XXIV, q.1, ed. Friedberg, I,978f.

³⁸ Baldus, Consilia, 1,328,11.8, fol.103: “[imperium] quod debet durare usque in finem huius saeculi.” The eternity of Rome was denied by Augustine insofar as the fall of Rome was supposed to signify the end of the world; but the old belief survived; see Theodor E. Mommsen, “St. Augustion and the Christian Idea of Progress,” Journal of the History of Ideas, XII(1951), 351; also J. Straub, “Christliche Geschichtsapologetik in der Krisis des römischen Reiches,” Historia, 1 (1950), 52ff, and, for the idea in general, esp. in the Middle Ages, F. Kampers, Die deutsche Kaiseridee in Prophetic und Sage (Munich, 1896). The basis of the whole speculation was II Thess. 2: 1-8, quoted already by Tertullian, Apol., XXXII,I, in connection with the prayer for the emperor and the Roman Empire; see Ladner, “Aspects,” 419.n.55 on the later interpretation of the Pauline epistle. The belief in the duration of the Empire, of course, was alive also in Byzantium; see, e.g., Endre von Ivanka, “Der Fall Konstantinopels und das byzantinische Geschichtsdenken,” Jahrbuch der Österreichischen Byzantinischen Gesellschaft, III(1954), 19ff.

³⁹ For the doctrine of the four empires, see C. Trieber, “Die Idee der vier Weltreiche,” Hermes, XXVII(1892), 321-342; F. Kampers, “Die Idee von der Ablösung der Weltreiche,” Hist.Jhb., XIX(1898), 423ff; and, for the most recent literature, Mommsen, “St. Augustine,” 350,nos.5-6; also Schramm, Kaiser, Rom und Renovatio, 1,244f. Interesting is Otto of Freising, Chronica, v, prol., ed. Hofmeister, 226f, who connects the idea of the four empires with that of “progress” as represented by Priscian, Inst.gram., 1,1 (above, Chapter v,n.187); see also Joseph Schmidlin, Die geschichts-philosophische und kirchenpolitische Weltanschauung Ottos von Freising (Freiburg, 1906), 28ff. For the jurists, see, e.g., Bartolus, on Ad reprimenda (Edict of Emperor Henry VII, in MGH, Const., IV,965, No.929), n.8, v. totius orbis, in Bartolus, Consilia, quaestiones et tractatus (Venice, 1567), fol.115^v, also in Corp.Iur.Civ., IV,124, where the Edict is among the Extravagantes of mediaeval emperors appended to the Libri feudorum. Bartolus, referring to Daniel 2: 39-40, talks about “Nabuchodonosor rex qui tunc erat universalis imperator,” and finally develops the full doctrine of the four (or five) empires (see note 41). Also Baldus, Consilia, 1,328,n.8, fol.103: “… et hoc apparet in mutatione quatuor principalium regnorum.”

⁴⁰ Aquinas, De regimine principum, III,12-13, ed. Mathis, 53ff: “… sed nos quintam [monarchiam] possumus addere (c.12).” The principatus of Christ began immediately on the day of his birth (c.14), and the census paid to Augustus universally (Luke 2: 1) was “non sine mysterio, quia ille natus erat, qui verus erat mundi Dominus et Monarcha, cuius vices gerebat Augustus, licet non intelligens, sed nutu Dei … (c.13).” Cf. Woolf, Bartolus, 318ff; Ladner, “Aspects,” 419, n.55.

⁴¹ Bartolus, on Ad reprimenda, n.8, v. totius orbis (above, n.39): “Quarto fuit imperium Romanorum. Ultimo adveniente Christo istud Romanorum imperium incepit esse Christi imperium, et ideo apud Christi vicarium est uterque gladius, scilicet spiritualis et temporalis.… Die ergo quod ante Christum imperium Romanorum dependebat ab eo [principe] solo et imperator recte dicebatur quod dominus mundi esset et quod omnia sua sunt. Post Christum vero imperium est apud Christum et eius vicarium et transfertur per papam in principem saecularem [reference to the Decretal Venerabilem: c.34 X 1,6]. Unde sic dicimus omnia sunt imperii Romani, quod nunc est Christi, verum est, si referamus ad personam Christi.…” It was customary to discuss the doctrine of the Two Swords in connection with the Decretal Venerabilem; see Post, “Unpublished Glosses on the translatio imperii and the Two Swords,” AKKR, CXVII (1937), 408,410f, and, above all, the unwieldy mass of excellent studies by A. M. Stickler on the Two Swords, enumerated in his article “Sacerdozio e Regno nelle nuove ricerche,” in Sacerdozio e Regno da Gregorio VII a Bonifacio VIII (Miscellanea Historiae Pontificiae, XVIII; Rome, 1954), 3,n.3; the posthumously edited study of Wilhelm Levison, “Die mittelalterliche Lehre von deo beiden Schwertern,” DA, IX (1951), 14-42, does not consider the Bartolus passage, whereas Joseph Lecler, “L’Argument des deux glaives,” Recherches de science religieuse, XXII (1932), 171, quotes the passage, but does not comment on it. It was customary also, in connection with the Two Swords, to point out that historically the empire preceded the papacy: “Ante enim fuit imperator quam papa, ante imperium quam papatus” (see, e.g., Stickler, “Der Schwerterbegriff bei Huguccio,” Ephemerides Juris Canonici, III [1947], 211, n.3; the argument is repeated, over and over again; cf. Friedrich Kempf, Papsttum und Kaisertum bei Innocenz III. [Miscellanea Historiae Pontificiae, XIX; Rome, 1954], 212f, nos.48ff), that therefore originally all power was in the hands of the emperor, but that after the advent of Christ the imperial and pontifical powers were separated, because only Christ himself had both powers. Bartolus, of course, followed that doctrine, but he preferred to connect it with that of Tolomeo of Lucca.

⁴² Bartolus, loc.cit., continues: “… verum est si referamus ad persnoam Christi. Si vero referamus ad personam imperatoris saecularis, non proprie dicitur, quod omnia sunt sua vel sub sua iurisdictione.… In hac ergo constitutione [sc. imperatoris Henrici VII], si se retulit ad imperium vel si se retulit ad personam suam: locutus est caute. Non enim dicit [imperator] quod totius orbis iurisdictio sit sua, sed quod totius orbis regularitas in eo requiescit.” Bartolus borrowed the word regularitas from Henry’s constitution itself: “… Romanum imperium, in cuius tranquillitate totius orbis regularitas requiescit” (MGH, Const., IV,965,25). The idea is similar to that of Dante, Monarchia, 1,14,7: “… humanum genus secundum sua communia, que omnibus competunt, ab eo [imperatore] regatur et communi regula gubernetur ad pacem: quam quidem regulam sive legem particulares principes ab eo recipere debent.…”

⁴³ Bartolus, loc.cit.: “… cuius [Christi] regnum non dissipabitur, de quo prophetavit Daniel in dicto c.9 [in fact, c.7], ubi haec omnia imperia describuntur expresse.”

⁴⁴ Nov.73, pr.1: “Quia igitur imperium propterea deus de coelo constituit.…” In Gratian’s Decretum, c.II,D.XCVI, ed. Friedberg, I,341, a similar idea is expressed, and the decretists (v. divinitus) referred sometimes to Nov.73; see Kempf, Innocenz III., 212,n.49.

⁴⁵ Nov.6, epil.: “(Licentiam damus) nobis et ad imperium quod semper est…”

⁴⁶ Andreas de Isernia, on Feud. 1,13 (De alienatione feudi), n.3, fol.49^v: “nam ecclesia non moritur et semper est, sicut imperium.”

⁴⁷ For the principle, see Gierke, Gen.R., III, 277, n.92; cf. 364, nos41-43, and 430, n.46; also, for the Romans, 571f.

⁴⁸ Glos.ord., on D.5,1,76, v. proponebatur: “Primum est, quia sicut idem dicitur populus Bononiensis qui erat ante-C-annos retro, licet omnes mortui sint qui tunc erant, ita debet etiam esse [idem iudicium] tribus vel duobus iudicibus mortuis, et aliis subrogatis. Secundum est, quod licet omnes milites moriantur et alii sint subrogati, eadem est legio. Tertium est in navi, quia licet particularatim fuit refecta, licet omnis tabula nova fuerit, nihilominus est eadem navis.” The glossator, Vivianus Tuscus of Bologna, a contemporary of Accursius (cf. Savigny, V,339f), adds laconically: “quia … non idem esset homo hodie qui fuit ante annum.” (See below, n.50.) For repetitions of those images, cf. Gierke, Gen.R., III,365,n.42, to whose collection there might be added Bracton, fol.374b, ed. Woodbine, IV,175: “In collegiis et capitulis semper idem corpus manet, quamvis successive omnes moriantur et alii loco ipsorum substituantur, sicut dici poterit de gregibus ovium, ubi semper idem grex, quamvis omnes oves sive capita successive decedant.” The source of all those examples (populus, legio, navis, grex) is D.41,3,30,rubr., and they descended, through the agency of the Roman jurist Pomponius writing under Severus Alexander, ultimately from Greek philosophy; see, on this law, the study of Alexander Philipsborn, “Der Begriff der juristischen Person im römischen Recht,” ZfRG, rom.Abt., LXXI (1954), 41-70.

⁴⁹ The “form” itself remains identical and, though existing as form only compositely with matter, it is yet independent of the variability of the component matter. See, e.g., Aquinas, Summa theol., I,q.g,a.I,ad 3: “Ad tertium dicendum, quod formae dicuntur invariabiles, quia non possunt esse subiectum variationis; subiiciuntur tamen variationi, in quantum subiectum secundum eas variatur.”

⁵⁰ Baldus, on D.5,1,76,n.4, fol.270: “Quarto, nota quod ubi non mutatur forma rei, non dicitur mutari res.” He then quotes the example of the interdict which may last a hundred years or more, “quia populus non moritur, licet sint mortui illi qui praestiterunt causam interdicto.” The principle has been formulated by Paulus de Castro (d.1441), who opined, likewise on D.5,1,76: “quod stante identitate formae, licet in substantia contingat mutatio, intelligitur eadem res,” which would be true also with regard to the metabolism of the human body (above, n.48); quoted by Gierke, Gen.R., III,430,n.46.

⁵¹ John of Paris, De potestate regia et papali, c.19, ed. Leclercq, 235: “populo seu exercitu [see, on exercitus, the literature quoted by Leclercq, 95, n.1; also Mochi Onory, Fonti canonistiche, 68, 87 (n.1), 238, 253; Kempf, Innocenz III., 214,n.55] faciente et Deo inspirante quia a Deo est [imperator].” Here (235,13) is also the reference to Averroes’ paraphrase of the Nicomachean Ethics, saying “quod rex est a populi voluntate, sed cum est rex, ut dominetur, est naturale.” See on that passage, also F. v. Bezold, Aus Mittelalter und Renaissance (Munich and Berlin, 1918), 22; Scholz, Publizistik, 331f. John of Paris expressed the same idea also in c.10, Leclercq, 199,23: “Potestas regia [non] … est a papa sed a Deo et a populo regem eligente in persona vel in domo,” an important passage because here the dynastic element comes into the picture. Moreover, not only the royal power derives from God directly without the mediatorship of the pope, but the same is true with regard to the prelates (199, 35): “Sed potestas prelatorum non est a Deo mediante papa, sed immediate, et a populo eligente vel consentiente.” See also 22, 5: “nam populus facit regem et exercitus imperatorem”; or 226, 15: “[potestas regia] cum sit a Deo et a populo consentiente et eligente.” Leclercq, 73-76, is probably correct when describing the “Averroism” of John of Paris as an averroisme théocratique, for that doctrine had many shades.

⁵² John of Paris, of course, was in no way exceptional (see below, nos.53f) but rather an exponent of the trends of his time. It is quite revealing, however, to find that fourteenth-century jurists frequently referred to John of Paris, sometimes together with “Dantes de Florentia … [qui] pulchre tractat … de necessitate monarchiae.” Cf. Nardi, “Nota alla ‘Monarchia,’” Studi Danteschi, XXVI(1942), 100-107; also, for the revival of John’s doctrine in the Songe du Vergier; cf. Lemaire, Lois fondamentales, 46ff; Schramm, König von Frankreich, 1,244, II,120.

⁵³ Glos.ord. on Nov.73, pr.1, V. De caelo: “Immo populus Rom. de terra, ut Inst. de iure naturali.§.sed et quod principi [Inst.1,2,6: lex regia], que est contra. Sed Deus constituit permittendo, et populus, Dei dispositione. Vel die, Deus constituit auctoritate, populus ministerio.” The teaching of the canonists moved along similar lines, since they too had to combine v. divinitus in c.11, D.XCVI (above, n.44), with the lex regia. See, e.g., Post, “Unpublished Glosses,” 414, for Silvester Hispanus (?), who claimed the imperium a Deo, but distinguished (as many others did) between iurisdictio and its executio, between imperium and imperator, who likewise referred to the lex regia, and who then declared: “Sed die, quod aliud est ipsa iurisdictio per se inspecta, que a deo processit, et aliud quod ipsius iurisdictionis executionem consequatur aliquis per populum …; nam populus per electionem facit imperatorem, sed non imperium, sicut cardinales per electionem preferunt aliquem sibi ad iurisdictionem, que a deo data est, exercendam.” The distinction between iurisdictio and gubernaculum, so strongly emphasized by McIlwain, Constitutionalism, 75ff (above, Chapter IV, n.177), belongs to this general compound of problems. For related places, see Kempf, Innocenz III., 213f, nos.52ff, 244f, hos.32ff; cf. 210,n.42. See also below, Ch.VII,n.25.

⁵⁴ “Nec est absurdum quod sit a Deo et a populo. Imperator est a populo, sed imperium dicitur divinum a Deo.” Cf. Theseider, L’Idea imperiale, 262. See also Ullmann, Lucas de Penna, 175,n.1, for a similar statement of Cynus on another occasion. Further, Andreas of Isernia, on Feud. 11,52 (De prohib. feudi alien.), rubr., fol.231^v: “Imperium quidem a Deo est: ideo dicitur divina gratia.” Otto of Freising, Chronica, IV, prol., ed. Hofmeister, 182,15, asks quo iure the rulers exercise power, and answers: “ex ordinatione Dei et electione populi.” For some opinions of canonists, see above, n.53, and below, Ch.VII,n.25; and, for other related utterances, Gierke, Gen.R., III,570,n.140.

⁵⁵ That the empire, like every kingdom, had been placed “auf eine vom Papst an sich unabhängige Grundlage,” has been recognized also by Kempf, Innocenz III., 226f. On the other hand, Pope Innocent IV’s famous formulation: “papa habet imperium a Deo, imperator a populo” (Gierke, Gen.R., III,570, n.142), rendered the emperor a completely profane power severed from God—unless consecrated by the Church. However, the devaluation of the imperial and royal consecrations, resulting from very many and often quite heterogeneous developments and trends of thought (see below, Chapter VII:1), is closely connected also with the prominence of the people. See Innocent IV, Apparatus, on C.1 X 1,7,n.2 (Lyon, 1578), fol.57^v.

⁵⁶ Baldus, Consilia, III,159,n.6, fol.46: “… nam ipsa respublica maiestatem habet ad instar populi Romani, cum libera sit et ius habeat creandi regem.”

⁵⁷ Baldus, Consilia, 1,328,n.8, fol.103: “Nunc autem dispositiones mundi mutatae sunt, ut ait Aristoteles in coeli et mundi, non utique mundus generabitur et corrumpetur, sed dispositiones ipsius: et nihil perpetuum sub sole. Corruptionis enim causa per se est tempus, IV.Physicorum. Licet imperium semper sit, in Auth. quomodo oportet episc.§.fi. [Nov. 6,epil.; supra, n.45], tamen non in eodem statu permanet, quia in continuo motu et perplexa tribulatione insistit, et hoc apparet in mutatione quatuor principalium regnorum.…” The reference to Aristotle is De caelo et mundo, 1,280a, 19-23: οὐκ ἂν ὁ κόσμος γίγνοιτο καὶ ϕθείροιτο, ἀλλ’ αὶ διαθέσεις αὐτοῦ. For the Latin text (quoted verbatim by Baldus) and Aquinas’ interpretation, see Thomas Aquinas, In Aristotelis libros de Caelo et Mundo, 1, lect.23, ed. Spiazzi (Turin and Rome, 1952), 110 and 112. See further, Aristotle, Physics, IV,12,221b,1: ϕθορᾶς γὰρ αἴτιος καθ’ μᾶλλον ὁ χρόνος; also 221a,30ff: καὶ γηράσκοι πάνθ’ ὑπὸ τοῦ χρόνου.

⁵⁸ Baldus, Consilia, 1,271,n.3, fol.81^v (see above, Chapter IV, n.292): “respublica et fiscus sint quid eternum et perpetuum quantum ad essentiam, licet dispositiones saepe mutentur.”

⁵⁹ Baldus, Consilia, III,159,nos.3,5, fol.45^v: “Nam regnum continet in se non solum territorium materiale, sed etiam ipsas gentes regni, quia ipsi populi collective regnum sunt.… Et etiam [non moritur] universitas seu respublica ipsius regni, quae etiam exactis regibus perseverat. Non enim potest respublica mori, et hac ratione dicitur, quod respublica non habet heredem, quia semper vivit in semetipsa …, sicut dicit Aristoteles: mundus non moritur, sed dispositiones mundi moriuntur, et mutantur, et alternantur, et non perseverant in eadem qualitate.” See above, n.57, and also Aristotle, Meteorologica, 1,14,352b, with Aquinas’ commentary, ed. Spiazzi, 459f; also for the Latin text.

⁶⁰ See D.7,1,56 and, for Odofredus, Gierke, Gen.R., III,365,n.43. Roman Law, by restricting the usufruct of a city to 100 years in order to avoid perpetuation (“Periculum enim esse videbatur ne [usufructus] perpetuus fieret”), anticipated, as it were, the anxieties of Henry VIII; for that king made the unpleasant discovery that trusts of lands in favor of corporations—guilds, fraternities, communities, and others—formed a great danger and a threat of perpetual alienation, because from them “there groweth to the King … the same like losses and inconveniences … as in case where lands be alienated into mortmain.” Cf. Maitland, Sel.Ess., 214.

⁶¹ Baldus, Liber de pace Constantiae (following after the Libri feudorum and the imperial Extravagantes of the Corpus iuris civilis [Venice, 1584] IV, App. 159ff), v. Nos Romanorum, p.161C: the Emperor [Frederick I] “vult istam pacem esse pernetuam. id est. quamdiu fides servetur … vel per praesentem mundi aetatem, et futuram et sine praefinitione temporis, quia Imperator facit hanc pacem nomine sedis, non nomine proprio tantum: et imperium non moritur …” (for nomine proprio, on the basis of c.14 X 1, 29, see below, Chapter VII, nos.232ff). Then, towards the end of the same long gloss (162D), Baldus states: “Item quia quod universale est non potest morte perire, sicut homo in genere non moritur.”

⁶² Grabmann, Mittelalterliches Geistesleben (Munich, 1936), II,239ff, and 261ff, in fact discovered two Averroist teachers at Bologna in the early fourteenth century, Taddeo da Parma and Angelo d’Arezzo, both professors of philosophy in the faculty of arts at Bologna, and concluded (270f) that the first cell of academic Averroism in Italy must be sought at the ancient stronghold of juristic studies, at Bologna itself, before it spread to Padua (also p.240f). For the problem and the latest publications on the subject, see Charles J. Ermatinger, “Averroism in Early Fourteeoth Century Bologna,” Mediaeval Studies, XVI(1954), 35-56. Petrarch, too, in his fight against the Averroists (cf. Grabmann, 240, n.4; Eppelsheimer, Petrarca, 194,n.6; P. O. Kristeller, “Petrarch’s Averroists,” Bibl. d’Humanisme et Renaissance, XIV [1952], 59-65), lashes at the jurists at Padua. However, Petrarch’s extreme irritability against scholastic philosophers, theologians, jurists, physicians, and non-humanists in general is well known, and his readiness to call anyone disagreeing with him an “Averroist” has its equivalent in modern habits. Petrarch’s testimony, therefore, is of doubtful value. Without denying the possibility that Averroism had adherents also among the lawyers (and Grabmann’s findings would support such a suggestioo), it nevertheless seems to me that the jurists, when developing and overdoing their corporational doctrines, may often have been mistaken for and erroneously labelled “Averroists” simply because those doctrines recalled the tabooed tenets. This is true with regard to the eternity of the world and of species, of which the jurists themselves were quite conscious (see above n.18, for Angelus de Ubaldis); it is true also with regard to the unity of the intellect (see below, Ch. vm, n.71); and it would be easy also to extract the dogma of double truth from their writings: what is true philosophically may not be true juristically (see above, p.282; also Bartolus, on D.48,19,16,10 [below, nos.64,89]; Gierke, Gen.R., III,365f). Hence, we should be careful with generalizations concerning “the Averroist jurists.” Not every person using the terms “subconsciousness” or “complex” is philosophically a Freudian or Jungian.

⁶³ See above, nos. 53f.

⁶⁴ It is probably correct if Gierke, Gen.R., III,281,365f,425f, and passim, indicates the affinity with nominalistic tenets; but as Gierke himself points out (365f), the juristic notions do not exactly coincide with the scholastic notions, and Bartolus (on D.,48,19,16,10, n.3, fol.228^v), when referring to the philosophi et canonistae, makes it perfectly clear that a juristic “fiction” is not identical with a philosophic “notion.”

⁶⁵ Überweg-Baumgartner, 579, 601; also 322.

⁶⁶ For the Socratitas, see Harris, Duns Scotus, II,20,n.3: “Et sicut Socratitas quae formaliter constituit Socratem, nusquam est extra Socratem, sic illa hominis essentia quae Socratitatem sustinet in Socrate, nunquam est nisi in Socrate, vel quae est in aliqui alio individuorum.” What Scotus seems to mean (see Harris, loc.cit.) is the “collection” of the concrete material object and of the universal in the “image” or “intelligible species.” See, e.g., Baldus, on c.3 X 1,31,n.14 (In Decretalia, fol.126), aod his definition of universitas: “Omnis universitas dicitur corpus, quia compositum et aggregatum, ubi corpora sunt tanquam materia; dicitur autem forma, id est, formalis status [see above, n.49].… Est igitur collegium imago quaedam quae magis intellectu quam sensu percipitur [D.41,3,30; 4,2,9,1; c.53 X 5,39].” Or see, for the intermediate stratum between the genus and the concrete individual, Baldus, on c.3 X 2,12,n.15 (In Decretalia, fol.178): “Est autem universale quod non distinguitur in species dialectico modo assumptas, sed in res. Generale autem est id, quod habet species sub se.…” In other words, the universale aod universitas is, in legal philosophy, itself a species ranging above the things in which it individualizes, but ranging below the generale which itself is divisible into species. It must be left, however, to the specialist to analyze the juristic terminology and to compare it to that of scholastic philosophy.

⁶⁷ See above, Chapter III, n.88.

⁶⁸ Baldus, De pace Const., p.162D (above, n.61).

⁶⁹ Gierke, Gen.R., III,193f.

⁷⁰ Bartolus, on D.6,1,1,3, fol.204: “[The emperor is lord of the world] Nec obstat quod alii sunt domini particulariter, quia mundus est universitas quaedam; unde potest quis habere dictam universitatem, licet singulae res non sint suae.” Cf. Woolf, Bartolus, 22,n.3; cf.123f, for the three kinds of universitates.

⁷¹ Baldus, on C.7,53,5,n.11, fol. 73^v: “[populus] debet intelligi de hominibus collective assumptis.… Unde populus proprie non dicitur homines, sed hominum collectio in unum corpus mysticum, et abstractive assumptum, cuius significatio est inventa per intellectum.” Cf. Gierke, Gen.R., 111432.

⁷² Baldus, Consilia, 1,333,n.1, fol.105: “regnum quoddam totum suas partes integraliter continens tam in personis quam in rebus, sicut omne nomen collectivum populorum et territorii.”

⁷³ Baldus, on C.6,26,2, n.2, fol.80^v: “Est et quaedam persona universalis … ut populus [lex mortuo: D.46,1,22; cf. next note], et haec persona similiter loco unius habetur, et individuum corpus reputatur.”

⁷⁴ D.46,1,22: “… quia hereditas personae vice fungitur, sicuti municipium et decuria et societas.”

⁷⁵ Andreas of Isernia, on Feud. 11,52 (De prohib. feudi alien. Loth.), n.1, fol.232: “Princeps est pater patriae, dicit Seneca primo de dementia [1,14,2]. ergo illorum, qui sunt in patria, idest subditorum. sicut arguit ipse [Seneca] secundo de ira [2,31,7]: ‘nefas est nocere patriae, ergo civi quoque.’ non enim est patria, nisi homines agentes in ea: sicut Ecclesia possidet et collegium, idest clerici et illi qui sunt in collegio.…” Although Andreas of Isernia admits that patria is nothing but the human beings acting in it, he nevertheless defends the corporate character of patria and its citizens, and fights against the atomization of this body; see his remarks on Feud. II,27 (De pace tenenda), n.9, fol.162^r-v, where he argues against Seneca’s opinion (De ira, loc.cit.) “quod unus homo de patria est pars patriae,” and declares: “Hoc iuristae non recipiunt, nisi quando universitas redigitur ad unum [D.34,7,2; see below, n.96] … Dividere ergo patriam in tot partes quot homines habet, concisio est, non divisio.” Andreas reproduces probably the doctrine of his fellow countryman Roffred of Benevento, who declared that “universitas est quoddam individuum, unde partes non habet,” since according to Aristotle an individual is indivisible; see Gierke, Gen.R., III,204; also below, n.89.

⁷⁶ Gierke. Gen.R., III,248,253,278, and passim.

⁷⁷ Ibid., 280ff. See Innocent, Apparatus, on c.57 X 2,20 (later equalling c.2 VI 2,19), n.5, fol.176^v (“cum collegium in causa universitatis fingatur una persona”); c.53[52] X 5,39,nos.1-3, fol.364; and (same title) c.64,n.3 (Innocent’s own decretal Romana Ecclesia, later equalling c.5 VI 5,11), fol.367^v. The relevant passages of Innocent’s next to inaccessible Apparatus have most gratifyingly been made accessible by I. Th. Eschmann, O.P., “Studies on the Notion of Society in St. Thomas Aquinas, 1. St. Thomas and the Decretal of Innocent IV Romana Ecclesia: Ceterum,” Mediaeval Studies, VIII (1946), 1-42, esp.8ff.29ff.

⁷⁸ That Innocent’s definition had certain antecedents has been noticed by Gierke himself; see, e.g., Gen.R., III,204.

⁷⁹ See above, n.65.

⁸⁰ Summa theol., III,q.55,a.4,ad 1, quoting Augustine, De quaestionibus Evangelistarum, II,c.51, PL, XXXV,1362: “non omne quod fingimus, mendacium est; … cum autem fictio nostra refertur in aliquam significationem, non est mendacium, sed aliqua figura veritatis. Alioquin omnia quae a sapientibus et sanctis viris, vel etiam ab ipso Domino, figurate dicta sunt, mendacia deputabuntur.”

⁸¹ Baldus, on D. 17,2,3,n.2, fol.120^v; “Nam ex hoc dicto glossae [sc. glos. ord.] nota quod ibi demum habet locum fictio, ubi est possibile quod habeat locum veritas.” Baldus then refers to a passage in the law of adoption (D. 1,7,16; see also Inst.I,11,4) “ubi textus dicit quod fictio imitatur naturam,” and, in summarizing, says: “Fictio ergo imitatur naturam. Ergo fictio habet locum, ubi potest habere locum veritas.” The law of adoption, to which he refers, says: “Adoptio enim in his personis locum habet in quibus etiam natura potest habere.” In his own gloss on D. 1,7,16, fol.38^v, Baldus (now quoting, in fact, Aristotle, Physics, 11,2, 194a21) states: “Ars naturam imitatur inquantum potest,” to which he makes an additio: “Nota quod fictio naturae rationem atque stylum imitatur.” See also Bartolus, on D. 17,2,3, fol.139, as well as Glos.ord. on that law, v. nominibus. Rather interesting is Oldradus de Ponte, Consilia, LXXIV,n.1 (Lyon, 1550), fol.27^ra, who proves that alchemy is permissible: “Cum ergo ars imitetur naturam (D. 1,7,16), non videntur isti alchimistae peccare.…” See also Consilia, XCIV, n.8, fol.33^r: “sic in natura videmus quod ars imitatur (Inst. 1,11,4).” Also Cynus, on C.7,37,3,n.5, fol.446^ra, demands that “civiles actus naturam habeant imitari.”

Obviously, the juristic formula Fictio imitatur naturam has to be considered in connection with the whole cluster of notions such as ars simia naturae, ars simia veri, and the Aristotelian ars naturam imitatur, catchwords so meaningful in Renaissance art and culture at large; see, for the problem, Ernst Robert Curtius, Europäische Literatur und lateinisches Mittelalter (Bern, 1948), 524f; H. W. Janson, Apes and Ape Lore in the Middle Ages and the Renaissance (Studies of the Warburg Institute, XX, London, 1952), 287ff. “Aping” was not only used in a derogatory sense as in Dante, Inf., XXIX,139 (the forger Capocchio confesses: fui di natura buona scimia); Dante himself calls art (Inf., XI,105) “as it were, the grand-child of God,” because according to Aristotle “art mimics nature,” and John of Jandun styles himself “the ape of Aristotle and Averroes” (Grabmann, Mittelalterliches Geistesleben, 11,239). Concerning “fiction” we might recall Petrarch’s definition of the officium poetae: to disclose and glorify the truth of things woven into a decorous cloud of fiction (“veritatem rerum decora velut figmentorum nube contextam”); see Attilio Hortis, Scritti inediti di Francesco Petrarca (Trieste, 1874), 33,n.I; Burdach, Rienzo, 509f; and, for the dependency of Macrobius (Saturnalia, 5,17,5; see also the scholion on Horace, Ad Pisones, 119), E. H. Wilkins, “The Corooation of Petrarch,” Speculum, XVIII(1943), 175. The jurists not only fell in with the literary and artistic theories, but may have had even the function of pathfinders, since they embarked on that theory—derived from the Roman laws of adoption—much earlier than others. At any rate, the hitherto apparently unnoticed strand should not be neglected.

⁸² In his decretal, published at the Council of Lyon (c.5 VI 5,11, ed. Friedberg, II,1095), Innocent IV declared it his intention to make the endangering of souls impossible “quod exinde sequi posset, quum nonnumquam contingeret innoxios huiusmodi sententia irretiri.” The commentator of the decretal was in that case Innocent IV himself whose opinion has been discussed by Gierke, Gen.R., III,280ff. The Glossa ordinaria on the Liber Sextus, composed by Johannes Andrea, indeed emphasizes (on c.5 VI 5,11, rubr.) that in the case of the excommunication of a collegium “illi qui erunt postea subrogati, debent se tenere pro excommunicatis.” The problem of the subrogati, however, seems to have been an afterthought; for the decretal itself thinks only of the members composing the collegium at that time among whom there might be innocent men. See n.84.

⁸³ See, e.g., Petrus de Ancharano (c.1330-1416), on c.53 X 5,39,n.8 (In quinque Decretalium libros facundissima Commentaria, Bologna, 1631), p.231: “Item, eadem est universitas hodie, quae erit usque ad centum annos, ut l.proponebatur.ff.de iud. [D.5,1,76]. Si ergo diceremus universitatem posse delinquere, includerentur isti [pueri, infantes, mulieres, et similes], quod esset absurdum, et ex his rationibus concludit In[nocentius] quod universitas non possit excommunicari.” These arguments, of course, were repeated over and over again.

⁸⁴ See above, n.18, for Bartolus, on D.8,2,33,n.1, fol.222.

⁸⁵ Summa theol., III,q.8,a.3, concl.: “… haec est differentia inter corpus hominis naturale et corpus Ecclesiae mysticum, quod membra corporis naturalis sunt omnia simul, membra autem corporis mystici non sunt omnia simul, neque quantum ad esse naturae, quia corpus Ecclesiae constituitur ex hominibus qui fuerunt a principio mundi usque ad finem ipsius, neque etiam quantum ad esse gratiae.… Sic igitur membra corporis mystici accipiuntur non solum secundum quod sunt in actu, sed etiam secundum quod in poteotia.…” This definition was often repeated; see, e.g., James of Viterbo, De regimine Christiano, c.3, ed. H.-X. Arquillière, Le plus ancient traité de l’Église (Paris, 1926), 110.

⁸⁶ See, e.g., Gierke, Gen.R., III,277,n.92.

⁸⁷ Bracton, fol.374b, ed. Woodbine, IV,175: “Et ideo si abbas vel prior, monachi vel canonici successive obierint, domus in aeternum permanebit.”

⁸⁸ See above, n.48.

⁸⁹ Bartolus, on D.48,19,16,10 v. nonnunquam, fol.228^v, makes it the main argument against the nominalists claiming “quod totum non differt realiter a suis partibus,” and that accordingly “nil aliud est universitas scholarium quam scholares.” He argues instead (like Andreas of Isernia before him; see above, n.75) that “universitas representat unam personam, quae est aliud a scholaribus seu ab hominibus universitatis [reference to lex mortuo D.46,1,22], quod apparet: quia recedentibus omnibus istis scholaribus et aliis redeuntibus, eadem tamen universitas est. Item mortuis omnibus de populo et aliis subrogatis, idem est populus.” The corporational aspect of the totum would have been admitted by the philosophi et canonistae whom Bartolus contradicts, though he admitted their “philosophical truth”; but Bartolus makes the element of succession and identity the axis of his argument—that is, he makes Time the essence of the “juristic truth,” of the fictio iuris which be defends.

⁹⁰ Gierke, Gen.R., III,365,n.41, quoting Albericus de Rosate (+ 1354): “populus, id est universitas cuiusque civitatis et loci, … idem qui fuit retro mille annis, quia successores representant eandem universitatem.”

⁹¹ Baldus, De pace Const., p.161A, V. universitas, speaks “de ista magna universitate (see above, n.70), quae omnes fideles imperii in se complectitur tam praesentis aetatis quam successivae posteritatis.…” See above, n.84.

⁹² Henry VII, in the edict Ad reprimenda (above, n.41), also MGH, Const., IV,965,No.929: “… divina praecepta quibus iubetur quod omnis anima Romano principi sit subiecta.” Cf. the bull Unam Sanctam: “Subesse Romano pontifici omni humanae creaturae declaramus … omnino esse de necessitate salutis.” Mirbt, Quellen, 211, No.372.

⁹³ This was the opinion of the early glossators who tried to define the collegium by distinguishing between simul cohabitantes and non cohabitantes; that is, they tried to find the essence of the collegium within Space, and not with regard to Time, and thereby missed the essential point. See Gierke. Gen.R., III.193.

⁹⁴ Post, “Quod omnes tangit,” 223, whose remarks about England are valid also for the Continent in that period.

⁹⁵ Ke Chin Wang, “The Corporate Entity Concept (or Fiction Theory) in the Year Book Period,” LQR, LVIII(1942), 500,n.13, and 504,n.37, stresses in his stimulating study the point that “continuity is not an essential test of the Fiction Theory.” While admitting that there may be fiction theories not involved with “continuity,” I should say nevertheless that the universitas as a fictitious person is essentially a body having continuity.

⁹⁶ A very popular and much discussed argument, often based on D.3,4,7,2 (above, n.75); see Gierke, Gen.R., III,236f,350 (nos.337ff), 411f (nos.240ff), 497f.

⁹⁷ This is not identical with the one-man corporation achieved “by devolution,” that is, when all members but one have passed away; see above, n.75, and Gierke, as quoted in the preceding note. See also Baldus, on c.36 X 1,6,n.8 (In Decretales, fol.79), speaking of a collegium or universitas which has been reduced to one person: “… verum est quod in uno non residet [universitas] primitive …, sed devolutive sic, quia pro pluribus habetur qui in plurium ius succedit, vel plures representat.”