The Question of Francia (400–816)

The consistency of the character of hospitals in law, as observed in Chapter 2, suggests a customary legal inheritance that preceded classical canon law. Part II turns now to the early middle ages to discover that inheritance. This chapter begins that process by unpicking the long-held model of the early medieval hospital. It surveys the many hypotheses for the origins of hospital law in the West, which claim that hospital law adopted from the East and accommodated via Frankish councils. The chapter confronts the latter of these claims and re-examines its twin pillars: a legal formula of ‘murderers of the poor’ (necator pauperum) and a hospital reform at Aachen (816). The first hinges on the council of Orléans (549), whose efforts were aimed at one royal foundation, King Childebert and Queen Ultrogotha’s xenodochium at Lyons. The council of Aachen’s (816) rules for canons and canonesses prescribed a way of common life for these religious, with different facilities for each for the poor. The chapter argues that the efforts of both councils were singular, and carefully circumscribed. Frankish councils were not to take an interest in xenodochia until c.850. Legal initiatives regarding hospitals began elsewhere.

The Council of Vienne (1311/2) and Late Medieval Hospitals

Clement V’s council of Vienne (1311/2) in its canon, Quia contingit (1317), offered the only substantial statement in canon law to address the management of welfare houses, which it defined as xenodochia, leprosaria, almshouses, and hospitals. The canon has long confused and disappointed historians, not least for its absence of any detail as to how a hospital should be arranged. The chapter explores possible sources for the council’s act and elucidates the choices made and procedures followed by the council, when drafting the canon. It provides a new reading of the canon, as the culmination of a long relationship between canon law and welfare houses. As had Carolingian councils, and Urban III’s Ad haec, Quia contingit legislated for hospitals as structures for the administration of gifts (alms) to the tasks of human welfare to which they had been assigned. What the canon did now was articulate a right by which bishops might act to ensure that, if failing, managers or patrons fulfil these obligations.

Carolingian Lombardy (780–860)

It was not in Francia but Lombardy that councils turned their attention to xenodochia, in what was to be the only sustained effort by Western law-makers to engage with welfare houses. This chapter explores their activity, which was the product of local concern, given voice through a new forum, the Carolingian council. It identifies a programme of reform initiated under Pope Hadrian I and then Charlemagne: restauratio, a call to restore the material inheritance of the landscape, especially buildings and public infrastructure. In Lombardy, the call brought xenodochia to the attention of councils who, over time, developed language and strategies by which to address these facilities. The Lombard capitularies offer a clear definition of xenodochia, one distinct from monasteries, which the chapter then teases out. It argues that a xenodochium was not a community but a material endowment, a gift dedicated in perpetuity to a specific task or tasks of Christian welfare. To councils, the central issue was its dispositio or institutio: the directives of a will-maker as enshrined in his or her testament. This provided a fixed constitution, particular to each xenodochium. A final section explores the implications for these findings on the character of a xenodochium’s endowment.

Introduction

This chapter redefines the problem of hospitals in the medieval church. It surveys the spread of welfare foundations to the West and, especially, the intensive foundation of welfare houses, in many forms, during the ‘charitable revolution’ of the twelfth and thirteenth centuries. This messy picture of hospitals on the ground, ‘between church and world’, has never conformed to the legal model that historians have long held for hospitals, as ecclesiastical houses under the bishop (a model that rests fundamentally on the sixth-century laws of Justinian, the East Roman/Byzantine Emperor). This gap between the ‘theory’ and ‘practice’ of hospitals, so familiar in scholarship, has long been attributed to lax enforcement—and a general lack of concern—by bishops, popes, and canonists. This chapter redefines the problem as the model itself, which was established by early twentieth-century historians. It unpicks this model, identifying the national agendas that produced it and the frameworks that have continued to shape the field. It argues for canon law as a European question and for the place of welfare at the heart of medieval Christianity. The overall approach and structure of the book is then introduced.

Robert de Courson and the Northern Reformers

This chapter, the first study of hospital reform under papal legate Robert de Courson, offers a new picture of the legation in preparation for Lateran IV. Courson’s hospital decree is well-known from his councils of Paris (1213) and Rouen (1214). The chapter begins by exploring the origins of the decree, finding that it did not emerge from Courson’s own moral theology, nor from the Parisian theological circle of which he was a leading member. Documentary evidence reveals an earlier iteration of the same decree and unearths a lost first council under Courson, at Reims (1213). Further investigation reveals that the legation was not launched at Paris, as has always been assumed, but with a preaching tour of Flanders and Brabant in June 1213, followed by the council at Reims. The new geography offers a new source for the hospital reform, which is explored through the spread of hospital rules, westward out of Brabant, in the late twelfth and early thirteenth century. It argues, finally, that the reform was closely tied to the beguine movement and, especially, to Jacques de Vitry. After Courson’s council at Rouen (1214), it was not adopted at any other council, including Lateran IV.

Roman Law and the Western Tradition

Having sketched the shape of the hospital in Carolingian Francia and Lombardy, the investigation now moves earlier, to uncover the legal foundations of welfare, as fostered under Roman law. This chapter redefines the tradition for welfare facilities in Roman law and identifies a distinctive Western legal model. It reappraises two extracts from Julian’s Epitome in the Collectio capitularium of Ansegis of Saint-Wandrille, the only evidence for Justinianic law in the West regarding hospitals. These are found not to relate to Carolingian welfare and new light is shed both on the palace’s use of these Roman law extracts and on the possible character of Ansegis’s book 2, on Louis the Pious’s ecclesiastical laws. The chapter then uses Justinian’s collections of law to explore the long development of welfare foundations in Roman law, finding them first accommodated under testamentary law. It argues that this basic testamentary model was moulded in the East, via the ‘pious promise’, into an institution under divine or public law. In the West, however, the early testamentary form was developed via the documentary practices that characterized Roman law in the West, c.400–800. These practices reveal a distinctive Western approach, which enshrined not the institution but the right to institute; that is, the right of the testator to prescribe and fix acts of human charity. A final section offers a new account of the development of welfare institutions in early Christianity, as East and West diverged and the West developed a vernacular Christian practice, one that was not owned by the church but enacted and developed by testators.

Conclusion

The conclusion reflects on some of the main findings from the book, especially its implications for a view of the relationship between church and world. It considers the changing efforts of law-makers to engage with welfare across a millennium, stressing what is most significant in their diverse responses: a consistent understanding of the character and role of a xenodochium or hospital, as something imagined and made by any of the faithful. It was a model not merely recognized but cultivated by law-makers and prelates. Welfare was an obligation incumbent on any Christian, not merely to see, but to recognize the humanity in even the most wretched stranger. This obligation, fundamental to salvation, lay at the heart of Christian society and so medieval Christianity itself.

Carolingian Claims and Innovations

How, then, was this Western form accommodated in Carolingian law and practice? This chapter explores the jurisdictions under which xenodochia sat and traces the development of mechanisms in Lombardy, Rome, and Francia to guard and police these facilities. It explores, first, the many potestates under which xenodochia might rest. Since the council of Chalcedon (451), the church had declined to take welfare houses under an ecclesiastical jurisdiction, depriving bishops of any general supervisory authority. This created unusual challenges for the palace, bishops, and councils, who had to craft means to prompt into action and admonish the many different people who were responsible for individual welfare foundations. The chapter then identifies initiatives to formulate statements in law and even policies for xenodochia. Most significant was a programme of reform laid down at the council of Olona (825) under Wala, abbot of Corbie, the product of Frankish agendas and Lombard practice. This initiative was then taken to Rome where Eugenius II fashioned a papal response in 826. The silence of councils in Western Francia was finally broken at Meaux-Paris in 845/6, where the early work of the Pseudo-Isidorian forgers is here detected. In its wake, the last Frankish councils offer several bold statements regarding hospitals.

Reading around the Edges

This chapter re-evaluates the place of hospitals in canon law by looking at the period c.1140–c.1275, the critical era that witnessed, simultaneously, the charitable revolution and the consolidation of classical canon law. It surveys the main—and conflicting—hypotheses for the development of hospitals in law at this time, to unearth an underlying problem: lack of explicit canon law for hospitals. The chapter goes on to argue that this absence of law provides the key to understanding welfare houses under the church. It was the consequence of the church’s inability to claim a general jurisdiction over hospitals and so to address them in canon law. This inability provides a key to reading law, as the general papal councils reveal. Lateran IV (1215) offered a call for alms to provide for the poor in hospitals, while Alexander III’s Lateran III (1179) offered Cum dicat Apostolus, an argument for the ecclesiastical defence of leper-houses that made no mention of the places themselves. In a similar fashion, Lateran II (1139) issued a decree against false nuns that aimed to stamp out a problem (and opportunity) fostered by the growing number of hospitals. Together, they reveal both the constraints and the imaginative legal activity of councils, who reached beyond the facilities themselves to solicit others to act. The implication, the chapter concludes, is that councils could act on people, not places, and that welfare facilities were places, not communities.

Canonists and Commentators at the Edges of Canon Law (1100–1260)

Part III returns to the high and later middle ages to explore the efforts of law-makers to confront what they could not simply claim in law. This chapter uncovers the legal work of popes, canonists, and commentators, as they navigated the problem of hospitals in canon law and, eventually, built a modest corpus in law to define (and develop) these foundations. The rare initiative by early canonists, notably Anselm of Laon and Ivo of Chartres, was succeeded by silence in Gratian and by the frustrated efforts of decretists to discuss a subject without law. Their lack was ended with the creation of Si hospitale, a statement crafted from a decretal of Alexander III, Ad petitionem (reconstituted in Appendix A), originally a rule for the Italian order of Cruciferi (c.1170). Its appearance was part of a wider concern with hospitals, brought to a head by Bernard of Pavia, who emerges as the unexpected radical of hospital law. The nature and consequences of Bernard’s activities form the substance of the final section. His cause was rejected, although the new category of ‘religious house’, which he created to redefine hospitals as belonging to the church, passed from his Breviarium extravagantium (Compilatio prima antiqua) to the Liber extra. The defining statement in law is discovered to be Urban III’s Ad haec (X 3.36.4), which found an ingenious means to dedicate a hospital in perpetuity to its own charitable duties.