Consilium de emendanda ecclesia (1537), Part II

[Update, 4/13/05: A commenter in the box below this post, pensans, pointed out some very helpful clarifications / qualifications on my points about benefices. I had hoped to rewrite my post to take into account what he said, but I do not have the time to do so. Readers who are interested in a fuller picture of benefices than what I present in the very rough sketch below should read pensans' comments.]

[Continued from Part I]

After the issue of ignorant and evil priests, the Consilium takes up the issue of the horrible abuses surrounding benefices:

Another abuse of the greatest consequence is the bestowing of ecclesiastical benefices, especially parishes and above all bishoprics, in the matter of which the practice has become entrenched that provision is made for the person on whom the benefices are bestowed, but not for the flock and Church of Christ. (Ibid., pg. 188)

A rough sketch of benefices may be helpful here. A benefice is a benefit specifically designed to meet the biblical notation of the need for temporal support of bishops and other clerics while they carry out their spiritual duties (cf. Matt. 10:10, 1 Tim. 5:18, 2 Tim. 2:4). In Medieval times, because of the prevailing idea of “Gelasian dualism”, namely that the spiritual and temporal Powers of Christendom were distinct entities not allowed to mesh their characteristics, the growth of the Church and its acquisition over time of significant temporal goods and properties required the development of a theory to account for these temporal benefits and the limitations of their use in spiritual contexts.

This theory became known as dominium (a difficult word to translate into English, but roughly “ownership / dominion”). It was expressly derived from the convergence of Latin thought forms with the authority language of the Bible in its Latin translation (i.e., Dominus=Lord, dominationes=masters, dominum=owner–and the necessary characteristic of the power of these offices, dominium=ownership). Originally the concept of dominium meant simply “right of ownership”, but as the Middle Ages wore on and the dominant strain of ecclesiology, papalism, subordinated everything to an explicitly “hierocratic” viewpoint, dominium mutated into a theory which supported the operative confusion of the Two Powers.

Specifically, with the boosts given to the hierocratic position by such worthies as Giles of Rome and Thomas Aquinas, the authority of the pope over benefices was progressively made nearly absolute. Particularly, the theory which described the pope’s power in terms of plenitudo potestatis (“fullness of power”) collapsed in daily practice the distinction between the Two Powers and afforded to the pope mastery over not merely the spiritual Power, but over the temporal Power as well. In time, following this trajectory, the pope as the ultimate reference point of the spiritual Power became the master of benefices in the temporal Power.

As the papal office became entangled in the affairs of temporal politics, particularly throughout the fourteenth and fifteenth centuries, the popes came to depend upon benefices for their very temporal survival and that of their “ecclesiastical domains.” This led to abusive behaviors such as popes filling benefices with their own creatures (nepotism), transferring benefices at will merely for financial gain (simony), leaving benefices empty for long periods of time so as to draw the monies accruing to them directly to the papal treasury (reservation), making benefices able to be “regained” by the one who originally gave them, and selling multiple benefices (plurality) to clerics so distant they rarely if ever exercised the spiritual functions which the benefices had been designed to support.

Obviously, the laws of the Church did not support, but rather condemned, such practices. But in papal hierocraticism at its worst, as we see in the final decades of the fifteenth and first few decades of the sixteenth, the ancient legal maxim princeps legibus solutus (“the prince is free from the laws”) became radicalized to the point where no one was allowed to say to the pope “Cur ita facis?” (“Why have you done this?”). To even ask the question was to presume the impossible ability to judge the very vicar of God himself, who could in theological and legal actuality be accountable to no one but God. Fortunately, a contrary scheme of theology and law had been under formation for quite some time, making it possible for abuses to be dealt with in the here and now and by other authorities outside of the abusive ones.

In terms of the abusive system of authority, cloaked as it was in the hoary mantle of “Apostolic Tradition”, these abuses, particularly the charge of simony, again reminds us not to forget the terrible irony of the papal system created in the eleventh century to destroy simony being itself charged with simony four and a half centuries later. In fact, nearly a century before the outbreak (with Luther) of the Protesting Catholic reform movement, a Spanish theologian had written a work called “A Mass for Simony” to Pope Martin V (the pope elected by the Council of Constance), in which he said: “the fumes of simony have ascended to heaven: and divine justice is so provoked that if the self-same Pope [Martin V] does not put into place a remedy for this, let him know that he himself ought to be beaten with great blows and in a short time he will fall.”

The impending fall of the papacy because of its simoniacal (and thus heretical on the terms of Medieval theological debate) character became the focal point of nearly every anti-papalist polemic for the rest of the fifteenth century, and reforming forces became increasingly frustrated with what they perceived as papal intransigence to very reasonable, very biblical, and very tradition-concerned reform proposals. Thus, the authors of the Consilium merely re-echo much of what had already been said before by such conservative reforming forces:

…care must be taken that payments can be reserved for no other reason and with no other justification than for alms which ought to be given for pious uses and for the needy. For income is joined to the benefice as the body to the soul. By its very nature then it belongs to him who holds the benefice so that he can live from it respectably according to his station and can at the same time support the expenses for divine worship and for the upkeep of the church and other religious buildings, and so that he may expend what remains for pious uses. (Ibid., pg. 189)

The Consilium recommends that the pope do all in his power to eliminate these egregious abuses as quickly as possible, noting the biblical examples of hypocritical leadership and men who try to serve two masters:

…For how can this Holy See set straight and correct the abuses of others, if abuses are tolerated in its own principal members?…the life of these men [cardinals and bishops] ought to be a law for others, nor should they imitate the Pharisees who speak and do not act, but Christ our Savior who began to act and afterwards to teach…We believe that this can easily be done, if we wish to abandon the servitude to Mammon and serve only Christ. (Ibid., pg. 191)

The next set of issues taken up by the Consilium pertain to church government.

[Go To Part III]

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3 Responses to Consilium de emendanda ecclesia (1537), Part II

  1. Tim Enloe says:

    [Repost of comment by "pensans," April 10, 2005]

    Very interesting post. A number of very techinical questions that perhaps you can help me with:

    First, as you observe, dominium is originally a basic term of Roman law, roughly equivalent to ownership. But a benefice is, as I understand it, not a species of dominium. Rather, with respect to the recipient, it is a limited usufruct, i.e. the right to enjoy certain income from a property. It is a lesser estate than dominium, which would entail in addition full usufruct (i.e. the right to use the land as well as enjoy its income) and the right to redirect the passage of the land (i.e. to someone other than the next holder of the ecclesiastical office). Do you know in what way “dominium” was applied to benefices? Whose rights in relation to a benefice were styled “dominium”: the recipient or the church? I would have that properly speaking that neither the church nor the recipient of the benefice would have had dominium, since neither enjoyed full right to the property. (The church’s interest would normally be labelled a proprietas, an ownership interest left after removal of the usufruct.)

    Second, you note that the “dominium” theory of the benefice emerged “to account for the temporal benefits and their limitation to spiritual uses.” But, as I observed above, treating the benefice as a dominium would tend to imply a lack of limitation on the uses of a benefice — insofar as dominium means undiluted right of ownership and control.

    If you know, how was the concept of dominium used to account for limitation?

    Third, you treat the motivations for the development of the dominium theory in the light of struggles between the church and state. Originally, however, the benefice emerged in the context of a “struggle” between the beneficiary and the bishop who held the property for the right to control income. That is, the bishops originally asserted the right to collect all income flowing into the church and then to redistribute from the common to the parts. The benefice was a check on this authority — leaving the bishop with the non-income producing proprietas in the land and giving the recipient office the permanent right to the income and the indiviudal holder of that office the life long right to the income. This was all in derogation of the powers of the bishop who otherwise would control the income. Hence, the bishops developed the various means of extracting income that you mentioned. (note some of these uses are arguably legitimate, as when multiple benefices are combined when income from a single property falls below the level necessary to sustain a single person.) But I am unclear as to how the abuses that you mention (which involve various scenarios for redirecting the benefice from the intended cleric to the papal coffers) involved a dispute between the church and the state. It would seem to involve primarily a dispute between the church hierarchy and the congregations deprived of pastors or the dead deprived of masses and prayers. The state would become involved only if it assumed a responsibility for the spiritual health of the people. So, how exactly did the dispute over benefices involved a dispute with the states?

    Finally, let’s assume that a case other than reservation of benefice, where the benefice is given to someone who does not exercise the spiritual case required of the benefice. Did the congregation have a suit under canon law against the cleric that was failing to perform his duties? One might understand why benefices were granted to people without inquiry into the propinquity to the charge if there was a remedy available to a congregation against a benefice holder who failed to perform the related charge.

    Incidentally, even the reservation could arguably be legitimate under many circumstances. For example, assume that a gift of a large estate in France had been given to the church to create a benefice for the care of parishes in Hungary. Subsequently, Muslims invade and cut off the Hungarian parishes. It would not be unreasonable given the change of cirumstance to reserve the funds from the French estate that were intended for Hungarian parishes and to use them for the general good.

    Thanks again for the interesting post and any answers you can suggest.

  2. Tim Enloe says:

    [Repost of comment by Tim Enloe, April 10, 2005]


    Your questions are good ones, and it was realizing the enormity of the issues that caused me to preface my remarks on benefices with the phrase “This is a rough sketch.” I didn’t want to get into issues of usufruct and proprietas, etc., or into the complicated distinctions drawn by men like Giles of Rome between dominium utile / dominium fructiferum / dominium potestativum, etc. Partly I didn’t want to get into those issues because I don’t consider myself a master of the distinctions or their varied applications at different periods in Medieval history, and partly I didn’t want to get into them because I’m trying to paint a rough sketch in “bite-sized” chunks.

    But I recognize that your questions and objections are good ones. I recognize a lot of the concepts you mention and their importance to the Medieval debates, certainly. I will have to think about them some more to see whether they indict my rough sketch as inadequate, or possibly even misleading.

    Do you think that’s the case? I would be grateful for any “iron sharpens iron” clarifications you might have at this point.

  3. Tim Enloe says:

    [Repost of comment by "pensans," April 11, 2005]

    Well, I am certainly don’t claim to judge any better than you, but I will offer two tentative, if rather long and winding, thoughts. Depending on how we answer some of these questions, it might impact rather strongly the following summaries you made:

    (1) “Obviously, the laws of the Church did not support, but rather condemned, such practices [regarding benefices as sale, plurality and reservation].”

    I think that the legitimacy of reservation, multiple benefices and selling of benefices probably turn out to be more permissible than you suggest at canon law. And you especially should appreciate this because it strengthens rather than weakens your overall point. See if you agree with me.

    My conclusion is that these techniques were indeed openly recognized to be perfectly valid equitable exceptions to the ordinary rules for benefices in exceptional cases, (like the hypothetical one that I laid out above where combination, reservation or sale should be allowed because a benefice could no longer serve its original purpose; another example might be where the revenues of several benefices fell to levels insufficient to support any single cleric).

    In other words, the universally perceived abuse of benefices was problematic precisely because it did not per se violate canonical rules. Rather, they were abuses of the equitable discretion given to the pope or bishop. The application of reservation of benefices, you will note is actually APPROVED in the portion you quoted from the CEE: �care must be taken that payments can be reserved for no other reason and with no other justification than for alms which ought to be given for pious uses and for the needy.� Reservation is allowed for approved reasons, but only for the right reasons.

    Reservation is not a per se violation; it is only a mala fidei reservation that is problematic. But the canons must have specifically allowed for it in some cases. The abuse was a bad faith violation of discretionary powers, not a per se violation of rules.

    Making this point would actually allow you to frame your issue more favorably. The limit on challenging the discretion of the pope, which seems to be your focus, is important in the case of benefices precisely because reservation and plurality did not violate canons by the act itself; it required an investigation of the good faith of the papacy. Everyone knew that the benefice system was corrupt; but no one could point to a canon that had been violated.

    The only remedy was to malign the bona fides of the papacy. Discretionary violations are much more problematic than canonical violations because they require the complaining party to focus on the �cur its facis� rather than the �quid facis.� It was impossible to say that the pope�s actions were void as ultra vires (beyond the legal limits of the corporate office of the papacy), as the conciliarists were wont to argue in other cases were clear violations of the canons occurred. There was no violation of a legal corporate limit, i.e. a canon. Here, the remedy for the corruption required an attack on the legitimacy of the officeholder in the performance of his direct discretionary pastoral duties. If the pope could be challenged in this regard, i.e. acting within his discretion, then he could not be the head in the medieval sense. The only one who can review a discretionary act is a superior, but the pope was obviously to have no superior. Hence complaints about discretionary acts are the most damaging kinds of complaints.

    Second, “But in papal hierocraticism at its worst, as we see in the final decades of the fifteenth and first few decades of the sixteenth, the ancient legal maxim princeps legibus solutus (“the prince is free from the laws”) became radicalized.”

    If my suggestions are credited, it is not the hierocraticist’s assertion about church-state relations that matter here. You don’t need to tell that part of the story to make your point. If the papacy admitted that the state occupied a separate and equally dignified sphere, this problem would still have arisen. The problem arises from the unreviewable DISCRETIONARY powers of a head. It occurs in any institution with an unreviewable head. It was the same problem that emerged in Western political theory. The early constitutionalist/conciliarists/civilians, both in church and state, turned to the Digna Vox law/canon as the rejoinder to cur ita facis law/canon: Digna vox maiestate regnantis legibus alligatum se principem profiteri: adeo do auctoitate iuris nostra pendet aucroritas. Et re vera maius imperio est submittere legibus principatum. Et oraculo praesentis edicti quod nobis licere non patimur indicamus” Read at its strongest, and least historical, by the civilians and conciliarists, it �prevented� a king from violating the law.

    But it does not reach discretionary judgments; it pertains to violations of leges. But discretion is never guided by leges. This awaited a much later development in political theory, the separation of powers, to address. The conciliarists/corporatist approach emphasized limitation by laws. But the separation of powers approach emphasizes that unless power is distributed � i.e. unless the headship of an entity is split � there can be no limitation of discretionary powers � because discretion by definition is ruleless. A limitation based on laws would work only with respect to nondiscretionary powers. But no government can be run solely through nondiscretionary powers. Discretionary powers are the key difference between a sovereign ruler (a lawmaker, a judge, a governor) and a subordinate officer (a scribe recording the law, a bailiff applying the orders, a soldier obeying commands). The only true limitation on power, on this later view, comes from abandonment of the model of headship uniting all powers in a single person or administrative entity. The discretionary powers must be split: he discretion of law making, given to a legislature; of fact-finding and application, given to a judge; of enforcement, given to the governor. This was still controversial at the time of our founding. It was argued strongly that some institution of government must be preeminent or all sovereignty will be lost and chaos will ensue. The need for the rejection of the idea of headship that the papacy took from Roman law and the classical tradition for the disaggregated powers of modern governments arises from problems of discretion not law.

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