WILUAM 00me AND NATURAL LAW Dissertation for the Degree of Ph. 0.. MiGHlGAN -STATE UNIVERSITY THOMAS G. CALLAHAN 1975 A 7‘ WE" H .h-\. . ~& M...“"-,Il"_;¥'“‘mfl . . M ‘3 é A V p. A. a ‘ .5 1. I i It? ‘9 ,. :. ."’" \.. ‘ , ‘. \. v ‘5' '5' BINEING BY um & sous mm mm mu. LIBRARY BINDERS c::::: :::? Illfll‘fill _-f23a‘ ABSTRACT [A I! A KJX‘ / f\ 1 WILLIAM OCKHAM AND NATURAL LAW BY Thomas G. Callahan It is the primary purpose of this dissertation to determine the truth of the recently resurrected, traditional dictum of scholarly interpretation that because Ockham was a nominalist in his philosophy, he was also a voluntarist in his legal theory, especially as regards his position on natural law. In Part I of this study, which comprises Chapters 1-6, a detailed analysis of the legal asPects of the con- troversy over the poverty of Christ and His apostles is presented. It was reflection on the issues raised in this conflict which not only launched Ockham into his polemical period against the Avignon papacy but also gave him an oc- casion to first employ natural law arguments. In this analysis in Part I, particular attention is given to nat- ural law arguments used by the antagonists in this conflict. With this background delineated in Part I, Part II of this work, which comprises Chapters 7—12, presents the “'4'.er K npflubr. .. , In. .1‘ rd s "A '\. . H.- a“. Thomas G. Callahan first detailed analysis of all significant natural law ar- guments employed by Ockham in the context of an investi- gation of all of his known polemical works. A number of specific conclusions are reached in Part II: (1) the heretofore, only suspected existence of a relationship between some of Ockham's standard natural law arguments and those of certain of his Franciscan prede- cessors who were involved in the poverty conflict is shown to be factual; (2) the thesis that Ockham was dependent for his position on natural law on his Franciscan com- panion, the civil and canon lawyer, Bonagratia of Bergamo, is shown to be very unlikely; and (3) the thesis that Ock- ham was a voluntarist in his philosophy of law and, specifically, in his position on natural law is shown to be erroneous, since this thesis lacks any textual foundation. In Part II as well, a detailed analysis and crit- icism of the arguments proffered by certain, more contem- porary Continental and American authors who support this voluntarist thesis are given. In Part III, which comprises Chapters 13—15, a thorough analysis of the criticisms offered by certain, more contemporary Continental authors against Ockham's position on natural law is presented. In view of a new and original interpretation concerning Ockham's actual inten- tions and methodology in his use of natural law arguments, offered by the writer of this dissertation, most of the . IIIIIIIIIIP I 215...... 4... raj“ Thomas G. Callahan former criticisms of these Continental authors are shown to be fundamentally unfair to Ockham. In this part as well, the marked influence of the actual legal doctrine which eventually formed Ockham's position on natural law is traced historically, with par— ticular attention being given to its effect on the theories of natural law of St. Thomas Aquinas and John Duns Scotus. A thorough criticism of Ockham's actual position on nat- ural law is then presented. This criticism indicates that, at best, Ockham's position is of only very limited, con- tinuing interest and value as an analysis of natural law. Finally, a summary of the conclusions reached in this dissertation is given. Some suggestions concerning matters requiring further study or scholarly exegesis are presented. And the Specific and general significance of the conclusions of this study are indicated. WILLIAM OCKHAM AND NATURAL LAW BY 1 ‘ .r-I Thomas G: Callahan A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of PhiIOSOphy 1975 GD Copyright by THOMAS GREYLISH CALLAHAN 1975 3.441.415... 9:3...»4 “Us ACKN OWLE DGMENT S I wish to particularly thank Professor Harold T. Walsh, my committee chairman, for his inspiration and en- couragement. I also wish to thank Professor William J. Callaghan, Professor Rhoda H. Kotzin and Professor Bruce L. Miller, the other members of my committee, for their assistance and guidance. I also want to express my gratitude to Mr. Walter W. Burinski, our Interlibrary Loan librarian, without whose unfailing diligence and cooperation, I would not have been able to obtain the great number of books, peri- odical articles and microfilms which were a necessary prerequisite for undertaking this study. ii TABLE OF CONTENTS LIST OF ABBREVIATIONS I O O O O O O I O O O O O O C C v INTRODUCTION 0 O O O I I O O O O O O O O O O O O O O 1 PART ONE. NATURAL LAW AND THE LEGAL ASPECTS OF THE POVERTY QUESTION 0 O O O I O O O I O O 5 CHAPTER ONE. POVERTY AS THE RENUNCIATION OF DOMINIUM: THE BIRTH OF A LEGAL CONFLICT . . 6 Footnotes to Chapter One . . . . . . . . . . 14 CHAPTER TWO. THE SECULARS V. THE MENDICANTS: THE THEORIZATION OF A LEGAL CONFLICT . . . . l7 Footnotes to Chapter Two . . . . . . . . . . 26 CHAPTER THREE. EXIIT TO EXIVI: AN ATTEMPT TO CLARIFY A LEGAL CONFLICT . . . . . . . . . 29 Footnotes to Chapter Three . . . . . . . . . 38 CHAPTER FOUR. SIMPLEX USUS FACTI: THE ULTIMATE FORMULATION OF A LEGAL CONFLICT . . 41 Footnotes to Chapter Four . . . . . . . . . . 52 CHAPTER FIVE. CUM INTER NONNULLOS: THE DOGMATIC RESOLUTION OF A LEGAL CONFLICT . . . 55 Footnotes to Chapter Five . . . . . . . . . . 65 CHAPTER SIX. MICHAEL OF CESENA AND WILLIAM OCKHAM: THE HERETICAL RENEWAL OF A LEGAL CONFLICT . . . . . . . . . . . . . . . . . . 68 Footnotes to Chapter Six . . . . . . . . . . 80 PART TWO. WILLIAM OCKHAM AND NATURAL LAW . . . . . . 84 CHAPTER SEVEN. THE OPUS NONAGINTA DIERUM . . . 85 Footnotes to Chapter Seven . . . . . . . . . 103 CHAPTER EIGHT. OTHER POLEMICAL WORKS AGAINST JOI'IN XXII O O I O O I O I O O O O O O O O O O 109 Footnotes to Chapter Eight . . . . . . . . . 119 iii CHAPTER.NINE. THE CONTRA BENEDICTUM, AN PRINCEPS AND DIALOGUS IIIT I . . . . . . . . Footnotes to Chapter Nine . . . . . . . . . CHAPTER TEN. DIALOGUS III II . . . . . . . . Footnotes to»Chapter Ten . . . . . . . . . CHAPTER ELEVEN. THE BREVILOQUIUM, OCTO QUAESTIONES, CONSULTATIO AND DE IMPERATORUM ET :PONTIFICUM POTESTATE . . . . . . . . . . Footnotes to Chapter Eleven . . . . . . . . CHAPTER TWELVE. COUNTER—INTERPRETATIONS CRITICIZED AND SUMMARY OF OCKHAM'S POSITION Footnotes to Chapter Twelve . . . . . . . . PART THREE. CRITICISM AND CONCLUSION . . . . . . . CHAPTER THIRTEEN. FORMER CRITICISMS ANALYZED Footnotes to Chapter Thirteen . . . . . . . CHAPTER FOURTEEN. CRITICISM OF OCKHAM'S POSITION O O O I I O O I O O O O O I O O 0 Footnotes to Chapter Fourteen . . . . . . . CHAPTER FIFTEEN. SUMMARY, SUGGESTIONS AND SIGNIFICANCE O O I O O O O O I O I O O O O BIBLIOGMPHY O O O O O O O O O I O O O O O O O O 0 iv 125 140 145 162 166 185 193 211 217 218 233 239 257 264 270 I? I”! ICE In» IE—« IE: I?“ Ag_princeps Brevilog. Bull. Franc. Consult. de -——_—F causa matrIm. Contra Benedict. Contra Ioann. 2.1.1 I 93:3}; III I E}.- III II Epitome Franz. SEEQ. Octo Quaest. 9.11.2. LIST OF ABBREVIATIONS Archivum Franciscanum Historicum Archiv ffir Literatur- und Kirchengeschichte des MIttelalters An princeps pro suo succursu, scilicet uerrae, possIt recipere bona ecclesIarum, etIam InvIto papa Breviloquium §g_principatu tyrannico Bullarium Franciscanum Consultatio de causa matrimoniali Contra Benedictum Tractatus Contra Ioannem Tractatus 22 imperatorum 2E pontificum potestate Dialogus, Part I Dialogus, Part III, Tract I Dialogus, Part III, Tract II Bullarii Franciscani Epitome Franziskanische Studien Octo quaestiones §g_potestate papae Opus Nonaginta Dierum r; I”; i Lilli -al I i ‘07.. v‘.‘ Han V'J‘d . INTRODUCTION In the past thirty years, there has been some renewed controversy over the traditional dictum of schol- arly interpretation that because Ockham was a nominalist in his philOSOphy, he was also a voluntarist in his legal theory, especially as regards his position on natural law. This dissertation proposes to try to resolve this con- troversy. With this purpose in mind, Part I of this disser- tation, which covers Chapters l-6, will investigate the development of the legal aspects of the conflict over the poverty of Christ and His apostles, with particular atten- tion being given to the use of natural law arguments by the antagonists in this controversy. This will lay a foundation for investigating the hypothesis that Ockham's position on natural law was actually derived from his companion, the civil and canon lawyer, Bonagratia of Bergamo. It will also provide the necessary background for us to determine whether, in fact, Ockham's natural law arguments were anti— cipated in the work of his Franciscan predecessors in the poverty conflict, a suSpected but a heretofore neither cor- roborated nor discredited thesis. It was reflection on the issues raised in this poverty controversy which provided the occasion for Ockham to initiate his polemical period against the Avignon popes who reigned during this time. Reflection on these issues also provided him with a sufficient reason to first become concerned with natural law arguments, about which he was silent during this earlier, non—polemical period. Through this foundation laid in Part I, we will, in Part II of this work, which comprises Chapters 7-12, undertake the first complete analysis of all significant natural law arguments proffered by Ockham in the context of an investigation of all of his known polemical works. Through this analysis, we will be able to determine the truth of the theses, mentioned above. We will also be able to determine the veracity of the traditional dictum of scholarly interpretation, noted above. This is the primary purpose of this study. Generally Speaking, this traditional dictum of scholarly interpretation proposes that, in his theory of natural law, Ockham emphasized the Divine Will as the source of the natural law. According to this interpretation, Ockham also maintained the radical contingency of the basic principles of the natural law because of their complete dependence on Divine fiat, which could change at any time. This supposed voluntarist interpretation is usually contrasted with a rationalistic interpretation of natural law. This latter interpretation usually emphasizes that the natural law has its source in Divine Wisdom or Reason and that it is grounded in the immutable Divine Essence. This rationalistic interpretation views the basic principles of the natural law as immutable and evidently knowable or discoverable through the light of natural reason. In Part II as well, we will analyze the specific proposals of those authors who have championed the tradi- tional voluntarist thesis concerning Ockham's position on natural law. We will also assess the soundness of their arguments. In Part III of this dissertation, which covers Chapters 13-15, we will analyze a number of specific crit— icisms concerning Ockham's position on natural law prof- fered by certain Continental authors. We will also try to determine not only their plausibility but also the fairness of these criticisms to Ockham as a polemicist. Further, we will offer a new and original hypothesis concerning Ockham's actual intentions, as far as his use of natural law argu— ments was concerned. Our analysis in Part III will include a brief tracing of the development and influence of the major legal doctrine which eventually formed Ockham's position on nat- ural law. Particular attention will be given to the in- fluence of this doctrine on Ockham's famous, medieval pre- decessors, St. Thomas Aquinas and John Duns Scotus. We will then evaluate and criticize Ockham's actual position on natural law, with a View to assessing its continuing inter- est and value as an analysis of the notion of natural law. Finally, we will summarize the conclusions reached in this study, suggest what further work might be done relating to the tOpic, and try to point to the particular and general significance of the results of this disserta- tion. PART ONE NATURAL LAW AND THE LEGAL ASPECTS OF THE POVERTY QUESTION CHAPTER ONE POVERTY AS THE RENUNCIATION OF DOMINIUM: THE BIRTH OF A LEGAL CONFLICT "If we arerto understand the Michaelist movement, we should, rather, turn our eyes from the voluminous products of the post-1328 conflict, and look back on the 1 Whether in course of Franciscan history before 1323." fact Lambert's statement is true of the whole Michaelist2 movement, it is at least clear that it would be difficult for an otherwise qualified reader in the philosophy of law to full grasp what William Ockham is proposing in some of his polemical works,3 for instance, his Opus Nonaginta Dierum, unless the reader has some understanding of the history of the development of the particular legal issues that were engendered in the controversy over the poverty of Christ and His apostles in the early years of the Francis- can Order. Thus, what will be given in Part I of this study is an analysis of the particular legal issues that arose in the context of this controversy. Moreover, special attention will be given to any use of natural law arguments by the protagonists in this conflict. It is hoped that this will more fully disclose the historical framework in which Ockham develOped at least part of his natural law position. However, it should not be assumed that the other central question which preoccupied Ockham in his polemical works, the nature and limits of papal power, especially as it relates to imperial prerogatives, was somehow a neces- sarily less fruitful ground for Ockham in the development of his position on natural law. Nevertheless, it is apparent that the development of the conflict between the popes and the emperors has had so extensive a history as to preclude a detailed analysis of its legal aspects in the context of this brief introduction. Further, this controversy has been much more thoroughly studied, as far as its legal and political aspects are con- cerned, than the much more historically-circumscribed contro- versy over the poverty of Christ and His apostles.4 Finally, although the conflicts between the popes and the emperors engendered some not very clear legal no- tions, nevertheless, a number of the legal concepts which were utilized in the context of the controversy over the poverty of Christ and His apostles, for instance, simplex u§u§_fagti, could be even more puzzling to the reader of Ockham's polemical works, unless he has a more adequate understanding of the historical genesis of such notions than an otherwise competent reader normally possesses. Even before his death, St. Francis of Assisi found his ideal of absolute poverty being gradually relaxed; and, eventually, the acceptance of privileges from Rome that he so dreaded became a more and more commonplace practice. Although we do not possess the original Rule of St. Francis, it is customary to accept the Rule of 1221 as the earliest known rendering. Chiefly under the influence of Cardinal Ugolino, the cardinal-protector5 of the Order and the future Pope Gregory IX, a redaction of this rule, the Regula Bullata of 1223, was produced. Moorman has commented that when this redaction is compared with the earlier Rule, one can already note changes that are indicative of a movement away from St. Francis' original intentions.6 Nevertheless, the Regula Bullata, which is still the official Rule of the Friars Minor,7 contains an explicit prohibition against the Friars Minor appropriating houses, settlements or any other thing.8 It is not until four years after St. Francis' death that Ugolino, now Gregory IX, declares in his bull Q22 elongati9 (September 28, 1230) that St. Francis' final appeal in his Testament is not binding since it was not sanctioned by a chapter-generallo of the Order. It is in his Testament that St. Francis expressed his dying wish that the Friars Minor not accept any buildings or seek any priv- ileges from the Holy See under any pretext whatsoever.ll 12 As Douie has noted, Quo elongati marked the starting point in a long series of papal bulls which gradually L' L.. "E constructed a superstructure over St. Francis' original Rule. Quo elongati also expanded the functions of the amicus spiritualis, who had been introduced in the amended Rule of 1223, in order that the Friars Minor, who were for- bidden by their earlier Rule to receive money, might have someone to buy clothing and provide for the necessities of 13 the sick. By papal decree the amicus Spiritualis was to also buy any "imminent necessities" the Friars Minor might require. Quo elongati also provided for another official, the nuntius, who was to be the agent of the benefactors of the Friars Minor or of those who gave alms to them. The nuntius was not supposed to be a Franciscan agent. He was instructed not to retain any alms given to him by the bene- factors of the Friars Minor; but he was to hand over any- thing left over from meeting the necessities of the Francis- cans to the amicus spiritualis.l4 Finally, in answer to the legally complex question, who had dominion over the movable goods of the Order if the Order was not supposed to have any corporate possessions, as the Rule of 1223 had specified, Gregory IX replied that neither in common nor as individuals ought the Friars Minor to have proprietas, that is, the legal right to hold property in common or individually; but of the utensils, books and movable goods that it is permitted for them to have, they have I minIS' these ments tain. them . sion 4 has a: was t] YEt, ' that ; not a; 10 have only the use. Also, the Friars Minor, according as the minister-general15 or the provincials16 specify, might use these things, relinquishing the dominion of their settle- ments and houses to those to whom it is understood to per- tain.l7 Gregory IX continued that in order to sell or ex- change any movable goods outside the Order or to alienate them in any way the Friars Minor had to obtain the permis- 18 As Lambert sion of the Cardinal-Protector of the Order. has argued,19 this might imply that the cardinal-protector was the owner of the Franciscans' movable goods; but, as yet, the matter was still not very clear. Thus, although the legal issue of common property, that is, the dominium or proprietas of the Friars Minor, did not arise as a significant point of contention during St. Francis' lifetime,20 it formed a significant precedent that the Holy See directly intervened to attempt to settle this problem when it did arise. It will become important later that the reader also notice that Gregory IX assumed in his bull Quo elongati that it was correct to make a distinction between the dominion and use of the goods held by the Friars Minor and that St. Francis had intended the Franciscans to be stripped of all forms of dominium.21 Some eleven years after its publication, Quo elongati elicited a legal reply from the Franciscan province of France. 11 In their Expositio Quatuor Magistrorum super Regulam Fratrum Minorum,22 the authors were concerned that papal intervention would not result in relaxation of the Rule.23 And, in a pro- phetic anticipation of the subsequent action of Innocent IV, they questioned the advisability of making the nuntius a pro- curator24 for the Order.25 In fact, Gregory IX actually created as many legal problems as he solved through Quo elongati. Further clar- ification became more and more pressing an issue. Innocent IV attempted to give this clarification in his bull Ordinem vestrum26 (November 14, 1245). However, the net effect of Ordinem vestrum was not a clarification of ng_elongati; rather, it was actually a re- laxation of the latter's provisions. Innocent IV greatly expanded the resources of Franciscan superiors by stipulat- ing that they might appeal to their agents not only for necessities, but also for that which was "commodus," that is, suitable or proper. This had the effect of giving the superiors the right to utilize their agents to receive alms whenever the superiors saw fit. Innocent IV also omitted the essential clause of Q32 elongati that had insured that the nuntius would turn over all unused alms to the amicus spiritualis. Thus, he effec- tively scuttled the restriction that the nuntius only be an 27 agent for the almsgiver and not of the Friars Minor. This entailed that the nuntius became a redundancy, since all his 12 functions were already being performed by the amicus spiritualis. Even more importantly, in order to clear up the prac- tical legal difficulties that had been occasioned by Gregory IX's system in which the rights of dominion were retained by the benefactors of the Friars Minor, Innocent IV decreed that all goods of the Friars Minor were received into the domain of St. Peter,28 that is, they became the legal property of the Holy See. As will be seen later, this was a move that was to engender much legal controversy. The extremely nebulous legal character of the property rights in fact obtained by the Holy See under this arrangement occasioned legal diffi- culties for some seventy years until this system was over- turned by Pope John XXII. Finally, in his bull Quanto studiosius29 (August, 1247), Innocent IV granted the right of appointing procura- tors to the Friars Minor, a move that the authors of the Expositio had strongly advised against. Although they were supposed to oversee the goods of the Friars Minor for the Holy See, these procurators were in fact agents of the Fran- ciscan superiors. They could sell, exchange or alienate any gifts given to the Friars Minor and with the money obtained buy both necessities and that which was "commodus" for them.30 Thus, what has tranSpired up to this point is a «gradual reinterpretation of the notion of poverty. From the 13 original emphasis of St. Francis on the simple renunciation of all material goods, there has been a movement toward con- sidering poverty in a legal sense as the abjuration of dominium, the divesting of the Friars Minor of any legal right to common property. Before this reinterpretation is fully matured, it will become more and more legally complex and, as we will see in the next chapter, academic and even more theoretical in nature. FOOTNOTES TO CHAPTER ONE 1 p. 243. M. D. Lambert, Franciscan Poverty (London, 1961), 2The term "Michaelists" refers to certain Francis- cans who broke away from the main body of the Order, then known as "Conventuals." This break, which occurred in 1328 and was led by Michael of Cesena, was in protest against the dogmatic decree of Pope John XXII on the question of the poverty of Christ and His apostles. Among the more noted Michaelists were the civil and canon lawyer, Bonagratia of Bergamo; the theologian, Francis of Ascoli; and our author, William Ockham. 3Ockham's works are divided into two groups: po- lemical and non-polemical. His non-polemical works include his earlier treatises on logic, philosophical and theolog- ical issues. These predate his polemical works, which include his voluminous political tracts, written after his embracing of the Michaelist cause. 4Among the works which could be recommended to the reader on the legal aspects of the conflict between the popes and the emperors, two works by Walter Ullman are particularly valuable: Medieval Papalism (London, 1949) and The Growth of __pal Government in Efie Middle Ages (London, 1955T— 5As the name implies, a cardinal-protector of a religious order, like the Franciscans, was a prelate desig- nated to look after the interests of the order, for instance, as regards its position with the Holy See. 6John Moorman, A History of the Franciscan Order from its Origins to the Year 1517 (Oxford, 1968), p. 58. 7Ibid., p. 57. At this time, the terms "Friars Minor" and "FranCIscans" are synonymous. 8Regula, chap. VI; cf. Livarius Oliger, "Regula S. Francisci anni 1223 fontibus locisque parallelis illustra," Storia e Letteratura Raccolta di Studi e Testi, 30 (Rome, 1950), p. 183, in Appendix. l4 15 9C. Eubel, ed., Bullarii Franciscani Epitome (Apud Claras Aquas, 1908), no._iv, pp. 229a-231a. The small, lower case "a's" or "b's" which frequently occur as part of the page numbers in the footnotes of this study indicate whether the passage being cited can be found in the first column, "a," or in the second column, "b," on the page of the work being cited. l0A chapter-general is a duly-constituted general meeting or assembly of the members or of the elected rep- resentatives of the members of a religious order. 11 Moorman, pp. cit., p. 78. 12Decima L. Douie, The Nature and Effect of the Heresy g: the Fraticelli (Manchester, 1932), p. 77 IBEEEELEI ChaP- IV; cf. Oliger, pp. cit., p. 181. 14Epitome, pp. 229b-230a. 15Aminister-general is the general superior of all the members of a religious order. He is elected by the chapter-general; see supra, n. 10. 16A provincial is the superior of the members of an order in a given geographical location, ex., the provincial of England. 17Epitome, p. 230a. It was understood that the ben- efactor was to retain legal dominion or ownership over the things given to the Friars Minor under Gregory Ix's system. 18Ibid. 19Lambert, pp, cit., p. 86. 20Ibid., p. 51. 21lbid., p. 86. 22Livarius Oliger, Expositio guatuor magistrorum super re ulam fratrum minorum, Storia g Letteratura Raccolta Qt Studi 2_Testi, 30 (Rome, 1950), pp. 123-168. 23 Expositio, chap. II; cf. ibid., pp. 129-130. 24In this context, a procurator would be someone, in all likelihood a layman, who was the official agent of a par- ticular religious order, like the Franciscans. l6 25Expositio, chap. IV; cf. Oliger, Expositio, pp, cit., p. 145. 2 6Epitome, no. xi, pp. 238a-239b. 27Ibid., p. 238b. 281bid., p. 239a. 29J. H. Sbaralea, ed., Bullarium Franciscanum, I (Rome, 1759), no. CCXXXV, pp. 487-488} 3OLambert, 9p, cit., p. 100. CHAPTER TWO THE SECULARS V. THE MENDICANTS: THE THEORIZATION OF A LEGAL CONFLICT The next phase of the historical development of the legal issues involved in the conflict over the poverty of Christ and His apostles finds its beginning in the dispute that raged between the seculars and the mendicants at the University of Paris in the latter half of the 13th century. The Opening broadside of what was to become a pam- phlet war between the seculars and the mendicants was de- livered by the secular master William of St. Amour in his Tractatus brevis de periculis novissimorum temporum. William cut to the heart of the matter by focussing on the theological position that had underlaid the legal stance of the Friars Minor. He simply denied that there was any Scriptural basis for the theory of evangelical poverty. Positively, he asserted that Christ and His apostles had pos- sessed prOperty in common and maintained that the possession of property in common in no way diminished the perfection of 2 the religious life. Although 29 periculis evidences a certain amount of confusion, it is, nonetheless, significant. It served as a 17 18 source both for argument develOpment and for critical counter-argument throughout the rest of this controversy.3 In analyzing the development of these arguments, central emphasis will again be given to legal issues and, especially, to the use of natural law arguments. The other aspects of this controversy, for instance, the theological and Scrip- tural points of conflict that arose, will not be able to be investigated here. In their answers to the 23 periculis, St. Bonaven- ture in his ggaestio disputata d3 evangelica paupertate4 and St. Thomas Aquinas in his Contra impugnantes Dei cultum 33 religionem5 concentrate on theological and Scriptural counter-arguments. However, in dealing with the question whether religious ought to work with their hands, St. Thomas asserts that not only religious but all men are enjoined by a precept of natural law to work with their hands. However, St. Thomas continues that even though this precept has as its goals the combatting of idleness and the controlling of sensuality, nevertheless, since it does not specify the particular means which have to be used to achieve these ends, the latter are left to individual dis- cretion. Although the precept obliges all men to help one another according to their abilities, it does not, in fact, 6 require that every individual must work with his hands. However, the Manus quae contra Omnipotentem tendi- tur,7 which was most probably the work of the Franciscan 19 Thomas of York,8 was more important to the mendicants' cause than these two pamphlets by St. Bonaventure and St. Thomas Aquinas. Next to the Ee_periculis, the Manus was the most important source for further polemical works in this contro- versy.9 Again, although the Manus is concerned mainly with theological and Scriptural issues, it does contain one very significant reference to natural law. In order to counter certain arguments offered by the seculars in support of the French bishops' endeavors to curb the activities of the men- dicants as preachers and confessors in their dioceses, its author appeals to the plenitudo potestatis of the pOpe. The Manus maintains that this plenitudo potestatis gives the pOpe the authority to grant to the friars the right to preach and hear confessions even in dioceses where permission had not been obtained from the bishOp.10 More Specifically, the author of the M3325 claims that the pope, as the supreme legislator of the Church, could reinterpret or alter any of the laws or canons cited by the seculars, as long as these reinterpretations were not at variance with Scripture, Tradition or the natural law.11 Actually, the argument is even more interesting than this. It specifically states that anyone who contradicts Scripture in effect contradicts natural law. Especially when one considers that this move is made in the context of a discussion of papal plenitudo potestatis, it very clearly 20 suggests that the author was influenced by a tradition in the interpretation of natural law embraced by the papal canonists, that is, natural law is taken to be divine law: "Jus naturale, id est, jus divinum."12 Indeed, it was an appreciation for this supposed plenitudo potestatis which afforded a legal justification for the intervention of Alexander IV in 1256. The pope con- demned the 23 periculis and banished its author, William of St. Amour, to Burgundy, because of his obdurate refusal to recent what he had said in this work.13 Thus, there was a temporary victory for the mendicants' position. However, this triumph was quite short-lived. In 1267, a renewed conflict arose when Clement IV regranted the privileges to the friars to preach and hear confessions in dioceses without first obtaining the permission of the local bishop. In the summer of 1269, Gerard of Abbeville, the archdeacon of Abbeville and Ponthieu, took up the cause of the seculars and published a reply to the Maggi, the Contra Adversarium Perfectionis Christianae. Gerard of Abbeville presents two very significant legal counter-arguments to the mendicants' position in his Contra Adversarium. First, he maintains that it is simply ridiculous to claim that there is a legal distinction between the dominion or ownership of, and the use of, consumable goods which are consumed in use.15 Second, he proposes that it is just unbelievable that, of the things given to the Friars 21 Minor for their use, the Holy See has a dominion which is of profit to the Friars Minor but in no way profitable to the reputed owners, the Holy See.16 Among the replies which were composed by the mendi- cants to the Contra Adversarium were St. Thomas Aquinas' 17 29|p§rfectione vitae spiritualis, St. Bonaventure's 18 Apologia pagperum and John Peckham's (Pecham) Tractatus l9 pauperis. Of these, St. Bonaventure's Apologia is of the greatest interest. St. Thomas' Qg_perfectione vitae Spirit- ualis is primarily concerned with theological matters. As Lambert notes,20 although it is quite similar to St. Bona- venture's Apologia in the arguments it contains, Peckham's Tractatus pauperis lacks the critical acumen found in the former work. The Apologia is not only a more fruitful source on which to concentrate, but it also had a much more lasting and pervasive influence than Peckham's work. In the Apologia St. Bonaventure attempts to counter the two major legal criticisms which Gerard of Abbeville had proposed in his Contra Adversarium. First, to the objection that use could not be separated from dominion in things con- sumed in use, St. Bonaventure denies that this principle is always true under law. He cites the case of the relation- ship of a son to the peculium. Although he has no right of dominion over the peculium, nevertheless, the son is held to have use of the pgculium; and the pgculium would encompass 21 things consumed in use. 22 St. Bonaventure is appleaing here to a principle of Roman Law, the peculium.22 This principle had been used by Justinian in his Digest23 to typify the legal status of a son as regards the retention, recovery or acquisition of any possession included in the pgculium. St. Bonaventure cites Justinian's rule, although not in its entirety. Second, to the objection that the papacy actually gains no temporal benefit from its dominion over the posses- sions of the Friars Minor, St. Bonaventure argues that civil law is being employed here out of its proper sphere of appli- cation. He claims that the Holy See's ownership of the Fran- ciscan goods is not unfruitful since its possession is of spiritual benefit.25 This is not a very adequate counter- argument from a legal point of view. It fails to address it- self to the legal criticism being posed and instead circum- vents the legal question by an appeal to extralegal consid- erations. Also, St. Bonaventure claims that what he has pro- posed is further sanctioned by a precept of natural law that is plainly expounded through civil law. He argues that the law provides, among other things, that a benefit is not able to be conferred on one who is unwilling to accept it.26 Thus, since the Friars Minor do not have the intention of acquiring dominion over their goods, but indeed a contrary wish, they are in fact not able to acquire dominion or ownership or to be spoken of as owners of the goods they use. 23 Without the intention of acquisition one is unable to . . . . 27 acquIre property, dominion or posseSSIons under law. Whatever limited legal merit this argument has in itself, what is disconcerting is that it is unclear pre- cisely what precept of natural law it is to which St. Bon- aventure is appealing that he feels is so "evidently explicated" through the civil law. In the Apologia, St. Bonaventure also claims that Christ's sanctioning of the principle of use without pos— session of temporal goods being of spiritual value is cor— roborated by natural, civil, canonical and divine law.28 But this reference is even less illuminating. However, it must not be assumed that so significant a medieval philOSOpher as St. Bonaventure did not have any specific position on natural law. He gives a much clearer exposition of his understanding of natural law in his Com- mentapy pp the Sentences 9: Peter Lombard.29 However, since this chapter of our historical analysis is primarily concerned with the controversy between the mendicants and the seculars, an analysis of this work, which was not part of the conflict being considered, would range beyond the purpose of this chapter. We are still primarily concerned with tracing the develOpment of the legal aspects of the question of the poverty of Christ and His apostles, since considering this issue was to so profoundly affect William Ockham. 24 In general then, St. Bonaventure's Apologia is actually weakest in its counter-arguments to Gerard of Abbeville's Contra Adversarium precisely in that aspect in which we are most interested, that is, in its reply to the legal criticisms of absolute poverty. Not only does St. Bonaventure become confused by assuming that in the Opp elongati rather than in the Ordinem vestrum the Holy See took over dominion of the goods of the Friars Minor; but throughout the Apologia he never precisely defines or dis- tinguishes most of the terms he uses when he is speaking about the rights of ownership.30 Although there were a number of polemical works of some significance added to this pamphlet war after St. Bon- aventure's Apologia, among them, St. Thomas Aquinas' Contra pestiferam doctrinam retrahentium homines g’religionis £3- gressu,31 John Peckham's Quaestio utrum perfectio evangelica consistat in renuntiando vel carendo divitiis propriis et communibus,32 commonly referred to as the Qg'paupertate, and his Qg’pgeris oblatis ip_Ordine Minorum,33 and Nicholas of Lisieux's 22 ordine ppaecgptorum 3g consilia,34 these did not add any new impetus to the development of the legal con- flict over the poverty of Christ and His apostles. It was St. Bonaventure's Apologia then that was to have the greatest influence on the continued development of the legal conflict in question. It was to serve as the model for the next papal intervention in the interpretation 25 of the Franciscan Rule. We will consider this intervention in the next chapter. FOOTNOTES TO CHAPTER TWO lGuillaume de Saint-Amour, Qpera Omnia (Coutances, 1632), pp. 17-72. By a secular master is meant a teacher or professor who, although he was a cleric, was not a member of a religious order, i.e., a member of the regular clergy, like the Friars Minor or the Dominicans, which were also mendicant orders. The two other major mendicant orders were the Carmelites and the Augustinian Hermits. 2De periculis, chap. 12; cf. Max Bierbaum, "Bettelor- den und WeltgeistlIchkeit an der Universitat Paris," Franz. Stud., 7 (1920), 35- 36. The theory of evangelical poverty proposed that Christ and His apostles had possessed nothing in common or as individuals. 3Decima L. Douie, The Conflict between the Seculars and the Mendicants at the UnIversity of Paris in the Thir- teenth Centupy (London, 1951), pp.849_ 4S. Bonaventura, Opera Omnia, V (Ad Claras Aquas, 1891), PP. 125-165. 58. Thoma Aquinatis, Opera Omnia, XV (New York, 1950): pp. 1-75. 6 Ibid., pp. 26-27. 7Bierbaum, pp, cit., 37-168. 8Franz Pelster, "Thomas of York, O.F.M., als Verfas— ser des Traktates 'Manus quae contra Omnipotentum tenditur,'" A'E'E. ' 15 (1922) , 3-22. 9Douie, pp, pip,, p. 14. 10Ibid., p. 15. By p_enitudo potestatis is usually meant the papal theory of plenitudo eccleSIasticae potestatis. This theory proposes that the pope is the source of all ecclesiastical power and in him all ecclesiastical power is comprised since he was invested with this fullness of power by God. 11 Manus, chap. XIV; cf. Bierbaum, pp, cit., 140. 26 27 ‘ 12Guido de Baysio [the 'Archdeacon' ], Rosarium seu su er Sexto decretalium commentaria (Venice, 15 77 5, in Comm. on DIst. I. 13Douie, pp, cit., p. 16. l4SOphronius Clasen, "Tractatus Gerardi de Abbatis- villa 'Contra Adversarium Perfectionis Christianae,'" A,F. H., 31 (1938), 276- 329 & 32 (1939), 89- 200. At this time an arch- deacon was, because of the scope of his ecclesiastical duties within a biShOpriC, considered to be next in importance after the diocesan bishop. 15Contra Adversarium, Bk. II, pt. IV; cf. Clasen, ibid., 32 (1939), 133. 16Ibid.; cf. Clasen, ibid., 135. 17S. Thoma Aquinatis, pd. cit., pp. 76-102. 18S. Bonaventura, Opera Omnia, VIII (Ad Claras Aquas, 1898). pp. 233- 330. 19As yet, the Tractatus p_uperis has not been pub- lished as a whole; however, the Prologue and chaps. I-VI have been published by A. van den Wyngaert in his Tractatus pa_peris a fratre Johanne de Peckham, O. F. M., Archiepiscopo Cantuarien- si, conscrIptus, et cum appgratu critico (Paris,1925). F. M. Delorme has published chaps. VII- IX in His "Trois chapitres de Jean Peckham pour la défense des Ordres mendicants," Studi Franciscani, 29 (1932), 54- 62 & 164- -l93, and chaps. XI-XIV in "Quatre Chapitres inédites de Jean de Pecham, O. F. M.," Collectanea Franciscana, 14 (1944), 84- —120, and chap. XV in his Fratris Richardi de Mediavilla, quaestio disputata de ri— vilepIo Martini a ae IV nunc prImum edita (Ad Claras Aquas, l 25 , pp. 79- 88. C aps. X an I have Been published by A. G. Little in his Fratris Johannis Peckham uondam Archiepiscopi Cantuariensis tractatus tres de p_upertate erdeen, 1910), pp. 21:90. 20Douie, pp, cit., pp. 19-20. 21Apologia, pp, cit., xi, 7, p. 312. 22"Peculium. Lat. In Roman law. Such private prop- erty as might be HEld by a slave, wife, or son who was under patria potestas, separate from the property of the father or master, and in the personal disposal of the owner." Black, Law Dictionary 1287 (4th ed. 1968). 23Justinian, Digest, Bk. L, tit. 17, pp Regulis iuris, regula 94. 28 24For some reason, St. Bonaventure leaves "ne ue adipisci" out of his rendering of the relevant rule; f Apologia, 2g. cit., xi, 7, p. 312. 25 Ibid. 261bid., xi, 9, p. 313. 27Ibid. 281bid., xi, 11, p. 314. 29If the reader is interested in investigating fur- ther St. Bonaventure' 3 position on natural law, he might consult the following texts: In IV Sent. dist. 33, art. 1, qu. l, 2, and 3, in S. Bonaventura, O era Omnia, IV (Ad Cla- ras Aquas, 1889), pp. 748- 752. Here fie dist1nguishes three notions of natural law: one in which, as in the case of some papal canonists, natural law is taken to be divine law in the Scripture; one in which he equates natural law with a law common to all nations, a ius gentium; and one in which he identifies natural law with ailaw instilled in all ani— mals, which for the medievals was often equated with what was supposed to be the Roman notion of natural law. Here St. Bonaventure expresses his preference for the supposed Roman concept of natural law as the most proper notion of natural law. And in In II Sent. dist. 39, art. 2, qu. 1 [ed. cit., II (Ad Claras Aquas, 1885), p. 911], he distin- gu1shes two senses of "natural law." In the first sense, the term stands for a habit of the soul which includes in- tellect and affect. In the second sense, it stands for a collection of the precepts of the natural law. The reader should also consult these works: A. H. Chroust, "The Phi- loaxhy of Law from St. Augustine to St. Thomas Aquinas," New Scholasticism, 20 (1946), 58-62, and Ludwig Baur, "Die EEHre vom Naturrecht bei Bonaventura," Studien zur Geschichte der Philosophie. Festgabe zum 60. Geburtstag_ETEmens Baeum- ker. Beitrage zur Gesch1chte der PhllOSO hie des MitteIalters. Supplementband _TMunster, 1913Y_’pp. 217-E39.— 30 M. D. Lambert, Franciscan Povertx (London, 1961), p. 139. 31$. Thoma Aquinatis, ed, cit., pp. 103-125. 32Livarius Oliger, "Die theologische Question des Johannes Pecham fiber die vollkommene Armut," Franz. Stud., 4 (1917), 139-176. 33Livarius Oliger, "De Pueris Oblatis in Ordine Minorum (cum textu hucusque inedito Fr. Iohannis Pecham)," A,§.fl., 8 (1915), 414-439. 34Bierbaum, op, cit., pp. 220-234. CHAPTER THREE EXIIT TO EXIVI: AN ATTEMPT TO CLARIFY A LEGAL CONFLICT Again, chiefly through the initiative of Nicholas III, a former Cardinal-Protector of the Order, the Holy See found it opportune to make another clarification of the Franciscan Rule in perhaps the most famous papal interven- tion, the bull Exiit gui seminatl (August 14, 1279). In this bull Nicholas III makes a pronouncement that is to be repeated for decades as a papal vindication of the position of the Friars Minor. Because of its importance it will be translated here in full: . . . we say that the renouncement of such owner- ship of all things both individually and in common for God is meritorious and holy and how much Christ taught disclosing the way of perfection in word and strengthened by His example, and how much the first founders of the Church Militant, according as they drank from this spring, in choosing to live perfect- ly, diverted through the channels of their doctrine and lives. It is interesting to note the marked doctrinal sim— ilarity which is evident both here and in a number of other passages between Nicholas III's assertions and those of St. Bonaventure in his Apologia.3 This similarity is so pro— nounced that the bull appears to be a papal underwriting of 29 30 St. Bonaventure's approach and hence a corroboration of the then-current Franciscan position on the doctrine of absolute poverty.4 Immediately subsequent to making this famous pro- nouncement, Nicholas III, in considering the possibility of the Friars Minor coming to the point of extreme necessity, maintains that the natural law does not forbid doing what is necessary to sustain life. He appeals to the principle that extreme necessity excepts one from all law.5 As the reader will note, this appeal to the idea of natural law sanctioning the doing of whatever is necessary to sustain life when one is at the point where his continued existence is in extreme peril will be appealed to in one form or another again and again by subsequent authors in this con- troversy, especially by those championing the Franciscan cause. Further, Nicholas III prOposes that the renunciation of dominion over their goods by the Friars Minor in no way entails that they have also renounced the use of these things.6 In further specifying his meaning, Nicholas III considers five legal concepts: "proprietas,"7 "possessio,"8 10 11 9 O I O O "usus fructus," "ius utendi," and "Simplex usus facti." These appear to be a further precising of St. Bonaventure's terms: "proprietas," "possessio," "usus fructus," and 12 "glgglg§.3§2§," These terms were employed by him in the only passage in which he really tries to come to grips with the terminological complexities of the legal aSpects of the 31 poverty problem in his Apologia.l3 Nicholas III proclaims that even though the Friars Minor do not have dominion over their goods, they, nonethe- less, have simplex usus fagti of them. He says that they have a use which should be tempered by a moderation that is in accordance with the maintaining of their lives and also with the carrying out of their functions.14 To the objection, raised by Gerard of Abbeville in his Contra Adversarium, that the dominion of the Holy See over the goods of the Friars Minor is unprofitable, Nicholas III gives essentially the same unresponsive answer that St. Bonaventure had offered. The pOpe maintains that such dominf ium_is fruitful because of its spiritual benefits for eter- nity.15 The bull gives no reply to the other legal objection, which was also raised by Gerard of Abbeville, that use can- not be separated from dominium in goods consumed in use. The commission that provided the material on which the bull was based had expert legal counsel. And, since, in another, context, the commission employed the two legal examples St. Bonaventure had given to try to counter this objection, it is clear that the members of the commission were not igno- rant of this objection or St. Bonaventure's attempted defense of the Franciscan position.l6 Possibly, the commission con- sidered this objection too damning. Finally, at the end of the bull, Nicholas III ordered 32 that there was to be no concordat, contrary, diverse or ad- verse Opinions or expositions of the bull, unless they dealt with purely verbal or grammatical matters that in no way im- paired the bull's being interpreted literally; and he enjoined all these prohibitions under the pain of excommunication and privation of both ecclesiastical position and benefice.17 For some time, this injunction was effective in sti- fling Open conflict over the specific issues defined in the bull. The scene shifted to another arena, the Spiritual- Conventual conflict.18 This was essentially a further pre— cising of the absolute poverty question rather than a new controversy. The Spiritual-Conventual conflict was concerned with a number of issues which are not in themselves of central importance to our legal analysis, such as the actual practice of poverty in the Order, the conflict over the doctrine of E§2§_pauper19 and other doctrinal disputes between the two factions. However, in the context of this controversy, the question of an oversight in Exiggfs not specifying a proce- dure for the use of the papal procurator granted to the Friars Minor in Quanto studiosius was raised. In order to remedy this defect, Martin IV issued a bull, Exultantes in Domino20 (January 18, 1283). Martin IV granted to the Friars Minor the right to appoint procurators without first consulting the bishop or the Holy See, to utilize the procurators as they saw fit, 33 and to deprive them of their office at their own discre— tion.21 Thus, although the procurators were nominally supposed to be the representatives of the papacy as far as the dominion of the Holy See over the goods of the Friars Minor was concerned, functionally they became the go-betweens of the Franciscans. Nevertheless, the internal struggle in the Order over the doctrine of u§3§_pauper raged on. This struggle was more fired by Exultantes than stifled by it. The chief protagonist of the Spiritual party, Petrus Johannes Olivi, pressed all the more forcefully for the acceptance of his doctrine of u§u§_pauper against the Conventual position that Franciscan poverty consisted, in essence, in the abjuration of dominion rather than with a concern that the use of goods be strictly limited to necessities. Exultantes had, in effect, provided a carte blanche from the Conventuals' point of view to use the goods of the Order in any way the superiors saw fit. Some superiors took full advantage of this privileged legal position in Spite of the chagrined outcries from the Spiritual party. Again, however, it is not our purpose to recount this whole controversy but to try to point out any legally relevant aspects it might exhibit. The next major protagonist for the Spirituals, Ubertino da Casale, seems to have influenced Clement V to issue his bull Dudum ad apostolatus22 (April 14, 1310). This bull was essentially favorable to the Spirituals' 34 position. Ubertino also had some legally relevant things to say in his work, Super Tribus Sceleribus.2 Ubertino insisted on the acceptance of the 3533 pauper and maintained that it was heretical for the Conven- tuals to hold that the E§E§_pauper was not included in the Franciscan vow of poverty.24 In the Sppgg Tribus Sceleri- bus in a discussion of usus pauper, he proposed that as far as the temperance and virtue of an act are concerned, it is a law of natural reason and divine precept that one obtain that which is necessary for one's time, state and place.25 Again, this is an appeal to a version of the notion of natural law's underwriting the obtaining of that which is necessary for one's existence. This kind of move is charac— teristic of those who are arguing against the papalist posi- tion among the Franciscans. However, here we see the further sophistication of a Spiritual using such an appeal against the Conventuals. By this time, the Conventuals had more thoroughly accepted the legal mentality in the papal inter- pretations of the Franciscan Rule than had the Spirituals. In accord with their view that poverty essentially consists in the renunciation of dominion, the Conventuals appealed to St. Bonaventure's arguments in the Apologia; and they utilized technical legal arguments to support their case.26 In the Circa materiam,27 their declaration con- cerning the usus pauper, the Conventuals proposed that a vow must be certain and determinate. Since the usus pauper 35 admits of no certain and determinate specification, it cannot be included under the vow of poverty.28 In another work sympathetic to the Conventuals' position, the Tractatus d§_Paup§rtate Fratrum Minorum,29 Richard of Conington gives another argument against the g§p§_pauper. The substance of the vow of evangelical pov- erty is, he maintains, the abjuration of dominion, sinCe the renunciation of dominion is not able to be dispensed even by the pOpe, whereas use can be so dispensed.30 Here we see an implicit denial of the principle of plena ecclesiasticae potestatis. As we noted above, this was supposed to characterize the pOpe's power in spiritual mat— ters. Above, the spokesman for the Friars Minor used this principle in his arguments against the secular masters at Paris. Here we see another Franciscan, a Conventual, deny- ing this principle in order to weaken the case of the Spir- itual party. He maintains that even the pOpe does not have the power to dispense one from some consideration, in this case the renunciation of dominion, that is presumably intrin- sically bound up with the Franciscan vow of poverty.31 We will see that Richard of Conington was a little precipitous in his assessment of what the pope could or could not do. This continuing controversy between the Spirituals and the Conventuals was raising more and more theological issues that had to be resolved. Therefore, a commission was appointed at the Council of Vienna (October 16, lBll-May 6, 36 1312) to look into the whole poverty conflict within the Franciscan Order. Although the commission seemed to sup- port Ubertino da Casale's condemnations of laxity in the Order, even to the point of mirroring Ubertino's list of infractions,32 it did little to resolve the central ques- tion of the observance of the Rule which was at issue. Again, the Holy See seems to have felt constrained to step in to try to finally resolve the significant doc- trinal issues in question. Clement V issued two bulls: 33 34 Exivi d3 Paradiso and Fidei catholicae fundamento (both, May 6, 1312). Of these two bulls the latter, Fidgi, is of less interest since its purpose was to resolve the more circumscribed issue of certain doctrinal errors sup- posedly contained in the works of the Spiritual Petrus Johannes Olivi. However, Exizi sought to clear up the doubts engen- dered by the controversy between the Spirituals and the Conventuals concerning the interpretation of the Rule. Again, the bull listed the infractions of the Rule in the same order as in Ubertino's Rotulus EEESJBS in much the same way as the commission of the Council of Vienna had done.36 Yet, the bull actually accepted neither the Spiritual nor the Conventual position on the observance of poverty. In— stead, Clement V concocted a compromise solution under which the Friars Minor were especially obliged to those narrow or "poor" uses of goods in the way in which these 37 uses were specified in the Rule.37 But again papal intervention in interpreting the Franciscan Rule proved to be inefficacious in actually re- solving the specific points at issue, in this case those between the Spirituals and Conventuals. In fact, it opened the door to more conflict and this time not only on a verbal, but also on the physical level. It was Clement V's successor, John XXII, who in- herited an even more serious problem than his predecessor had originally faced. And as we will see in the next chap— ter, John XXII dealt with the problem in his typical single- minded manner. FOOTNOTES TO CHAPTER THREE lC. Eubel, ed., Bullarii Franciscani Epitome (Apud Claras Aquas, 1908), no. XLVI, pp. 2955-3665. 2 Ibid. As Lambert has noted [Franciscan Poverty (London, 1961). p- 143], Eubel has made an error in the Epitome since he prints "vitam perfectionis" where the orig- inal reads "viam perfegpionis"; cf. J. H. Sbaralea, ed., Bullarium Franciscanum, III (ROme, 1765), p. 407b. 3Venantius Maggiani in his "De relatione scriptorum quorumdam S. Bonaventurae ad Bullam 'Exiit' Nicholai III (1279)," A.F.H., 5 (1912), 3-21, offers the reader a series of texts demofistrating the doctrinal relationship not only between Exiit and the Apologia but also between Exiit and a number of other works By St. Bonaventure, e.g., tHe Legendae duae, the Expositio super regulam Fratrum minorum, an t e Quaestio de paupertate. For specifics, see IZ-ZI of this article.-— 4Lambert, 9p, cit., p. 143. 5Epitome, p. 293a. 61bid., p. 293. 7PrOprietas. In this context, this would mean owner- ship. It Is rougth equivalent to dominium. 8Possessio. This would entail the ability to exer- cise power or control over some thing but would not entail dominium over the thing or the acquisition of dominium through usucapio, concerning which, see Black, Law Diction- ary 1712 (4th ed. 1968). 9Usus fructus or Ususfructus. This would be defined as the rigfit to enjoy something, although another possesses dominium, and to derive any fruits from the use which does not substantially alter the thing being so enjoyed. 1qus utendi. This is the specific right to use an object. It legitimizes the use of that object, whether or not the user does possess dominium over the object. 38 39 llSimplex usus facti. In the present context, this entails the license to use certain goods. This license is revocable at the will of the grantor at any time. 12Sim lex usus. This is equivalent to simplex usus facti in this context; see supra, n. 11. 13For the specific text involved, Apologia xi, 5, p. 312, see Maggiani, pp, cit., l7. l4Epitome, p. 293b. 15221923 see Maggiani. Op. cit., 17, for the paral- 1el aIgument, i.e., Apologia xi7—7,_ET'312, l6Lambert, 9p, cit., pp. 144-145. l7Epitome, pp. 299b-300a. A benefice was usually some Churc prOperty, ex., a monastery, that was endowed or invested on a cleric with the ecclesiastical office or posi- tion that went with it in order to provide for his living through its revenues. 18Spiritual-Conventual. These two terms refer to two factions within the FranciScan Order in the 13th and 14th centuries. The Spirituals endeavored to impose a rig- orous interpretation of the Rule on the Order, whereas the Conventuals, who were the majority party, followed the Rule as it had been interpreted by the Holy See. The Conventuals are also called the "Community." 19Usus pauper. In this context, this refers to an interpretation by the Spirituals that the Rule, through the vow of poverty, enjoined that the Friars Minor limit their use of goods to only those which were absolutely necessary. This term seems to have been conceived by the Spiritual Petrus Johannes Olivi. 20Epitome, no. XLIX, p. 301. 211bid., p. 301b. 22C. Eubel, ed., Bullarium Franciscanum, V (Rome, 1898), no. 158, pp. 65b-68a. 23A. Heysse, "Ubertini de Casali opusculum 'Super Tribus Sceleribus,'" A.§.§., 10 (1917), 103-174. 24Lambert, 9p, cit., p. 193. 40 25§ppp£ Tribus Sceleribus, Reply to the Fourth Objection; cf. Heysse, pp. cit., 171. 26 Lambert, pp, cit., pp. 193-194. 27Heysse, pp, cit., 116-122. 28Circa Materiam; cf. Heysse, ibid., 118. 29A. Heysse, "Fr. Richardi de Conington, O.F.M. Tractatus de Paupertate Fratrum Minorum et Abbreviatura inde a Communitate extracta," A,§,H., 23 (1930), 70-105 & 340-360. 0Qp'pappertate, III, XI, in responsio; cf. Heysse, ibid., 105. 31It is somewhat ironic that it is quite possible that Richard of Conington may have derived the basis for his position on the limits of the pOpe's power in this case from Olivi, the Spiritual. Although Olivi was a firm supporter of papal authority, he did not believe that the pope could dis- pense from the vow of poverty. He maintained that the pOpe's power had been given to him not for debasement but for edifi- cation. Thus, the pOpe could not entice a man to forsake a life of perfection; cf. Douie, pp, piE,, p. 98. 32Geroldus Fussenegger, "Relatio commissionis in con- cilio Viennensi institutae ad decretalem 'Exivi de paradiso' praeparandum," A.§,H., 50 (1957), 152. 33 Bull. Franc. V, no. 195, pp. 80a-86a. 34Ibid., no. 196, p. 86. éSFranz Ehrle, "Die von Ubertino Casale gegen die Communitat aufgestellten Anklageartikel und Raymunds von Fron- sac Widerlegung derselben," A,p,§,§., 3 (1887), 93-137. 36For reference to specific points of similarity be- tween the Rotulus and Exivi, see Lambert, pp. cit., p. 199, n. 4. 37Bull. Franc. V, p. 85a. CHAPTER FOUR SIMPLEX USUS FACTI: THE ULTIMATE FORMULATION OF A LEGAL CONFLICT Of the number of possible options Open to resolve the serious internal strife within the Order, John XXII chose what was perhaps the most direct, if not the most perspicuous, solution. He determined to support the Conven— tuals in crushing the Spirituals. To this end, John XXII promulgated Quorumdam exigitl (October 7, 1317). In Quorumdam exigit he ordered that all the Friars Minor were to submit to the decisions of their superiors--their Conventual superiors--on two central points of observance of the Rule to the Spirituals. The Spirituals had adopted the use of a shorter habit than that worn by the Conventuals.2 They were ordered to submit to the will of their Conventual superiors and wear the habit that was in general use by the Conventuals. Also, on the issue of the Rule's forbidding the Friars Minor to have cellars and gra- naries for the storing of food and wine, an observance on which the Spirituals were insistent, John XXII ordered all Friars Minor to submit to the decisions of their Conventual . 3 superiors. 41 42 John XXII ended his Quorumdam exigit with a lecture on obedience. One sentence of this is especially signifi- cant; he says, "Great indeed is poverty but unity is greater; 4 This obedience is the greatest good if it is keep intact." insistence on obedience is characteristic not only of his dealings with the Friars Minor but also of many other aspects of his resolving the problems of his pontificate. It is certainly one of the ironies of history that a future excommunicate, Michael of Cesena, the Minister— General of the Order, was at this time more than eager to help John XXII in crushing the Spirituals. He cleverly de- 'vised a set of questions5 to be posed to certain seized Spirituals which put them in the position of either sub- mitting to their Conventual superiors or being suspected of heresy. Four recalcitrants were finally burned by the In- quisitor of Provence.6 In two subsequent bulls, Sancta Romana7 (December 30, 1317) and Gloriosam ecclesiam8 (January 23, 1318), John XXII continued the suppression of the Spirituals and their lay supporters. However, his attention was eventually directed back to the root of the whole Spiritual-Conventual conflict, the question of the poverty of Christ and His apostles. In order to open up the whole question for theolog- ical discussion again, John XXII rescinded the penalties in- curred by anyone who dared to comment on the substance of Nicholas III's Exiit in his bull Quia nonnumquam9 (March 26, 43 1322). If it was not distressing enough to the Order that their most cherished doctrine was now open for theological investigation once more, John XXII further asserted that he had the right to change any specific canons issued either by himself or his predecessors, if he thought them to be more of a hindrance than useful.10 This seriously weakened the Fran- ciscan position, since their doctrinal stance on poverty de- pended on Nicholas III's EéilE- If John XXII could alter or abrogate any part of his predecessors' decrees, he could rescind the doctrinal basis of the Franciscan position in At this time also, John XXII directed Cardinal Napo— 1eon Orsini, a perennial supporter of the Spirituals, to ob- tain the views of his friend Ubertino da Casale on the matter of his suspension of certain parts of Exiip.ll Ubertino's reply is interesting since he claims that Christ and His apostles had temporal things by right of necessity and by a common right of fraternal charity and that this having of tem- poral goods for necessary sustenance was sanctioned by nat- ural law. Ubertino notes that the natural law, the ipp naturale, is also known as "ip§.ppli."12 This is again another appeal by a Franciscan, this time by one of the leaders of the Spirituals, to a notion of natural law's grounding the Obtaining of that which is neces- sary for the preservation of life as an absolute right. In reply to John XXII's Quia nonnumquam, the Order 44 issued two encyclicals to all the faithful from their Chapter-General meeting in Perugia at Pentecost of this same year (1322). In the first of these, the so-called "short version," the Friars Minor merely restated their position. They asserted that Exiip could not be rescinded, since not only had it been accepted by the whole Church but even John XXII himself had lauded Exiit in his bull Quorumdam exigit. As far as the Order was concerned, the question of the poverty of Christ and His apostles had already been settled in §§££E°l3 In another version of the encyclical, the so-called "long version," the Friars Minor gave a more detailed defense of their position.14 In this defense they tried to add fur- ther strength to their doctrinal position by claiming that Christ and His apostles in fact had simplex E§E§.£EEE£.°f 15 In this same context, the encyclical claimed their goods. that the Franciscans have a right based on natural and divine law to be provided with those things congruent with simplex pppp'fpppi that were necessities.16 Again, this is another version of the natural law argument that is grounded in the idea that one cannot be denied those things that are necessary for one's existence. But here it is being pressed into service to help to under- gird the simplex usus facti doctrine, which is so essential for holding together the Franciscans' legal case. Further, the Chapter-General appointed Bonagratia 45 of Bergamo, a doctor of both civil and canon law (doctor utriusque iuris), their procurator to set forth their legal case. He did this in his Tractatus dp_Christi pp aposto- lorum paupertate.l7 It is ironic that Bonagratia, who had been so acerbic in his criticism of the Spirituals that Clement V had him imprisoned,l8 now found himself defending the Conventuals against the encroachments of the papacy. In addition to trying to meet the objection that it was heretical to assert that Christ and His apostles did not have anything in common, Bonagratia tried to demonstrate that the Friars Minor had no dominion but only simplex pppp fpppi of the goods that they used. And, in this attempted demonstration, he relied heavily on appeals to natural law. Bonagratia maintained that simplex papa fpppi of those things necessary for natural sustenance was required by natural law. He said that this natural law originates from the promptings of reason and a natural instinct that is common to all men and everywhere in force.19 Bonagratia asserted that neither through law nor through renunciation, abdication nor in any other way are natural laws that are followed by all and constituted by Divine Providence to be always firm and immutable able to be abrogated or altered.20 He prOposed that property and possession or owner- ship of things are due to human law, and usufruct (usus- fructus) and right of use (ius utendi) are due to civil law. 46 It is certain, he argues, that all private law which is due to human institution is able to be renounced.21 In another argument he claims that no one is able to renounce the obligation of natural law to preserve one's nature through those things that are necessary for this pre- servation. No one is able to renounce this obligation, he asserts.22 Further, he argues that it is clear that what is natural is not able to be served unless one has usus facti of those things that are necessary for the preservation of human life, such as food and clothing, which, with other things, are consumed or worn out in their use.23 Finally, he concludes that property or dominion of things or food which is lawful is, nonetheless, not natural, since only usus facti is natural. Thus, dominion can always 24 and everywhere be renunciated but not use. This is again just a further tooling of the natural law argument, we have noted above, was based on the notion of one's being required to obtain those things necessary to preserve one's existence. Again, the argument is being used to justify the simplex usus facti position. In a further argument Bonagratia makes an appeal to another central natural law argument. He maintains that the use of things and food which falls under the precept of natural law is clear from Genesis, chap. 2, vs. 17. There it is read that from the promptings of reason of a creature 47 in a state of innocence, God gave two commands to man: "From every tree in paradise you may eat, but of the tree of the knowledge of good and evil you may not eat."25 He proposes that this shows that the use of food which is consumed in this use is according to natural law and falls under a divine precept. Bonagratia asserts that in a realm in which natural law is fully in force no one is able to say, "this is mine" and "this is yours."26 And he concludes that the use of those things that are consumed in use does not of necessity have to be con- nected with the notions of mine or yours. Consequently, it is clear, he feels, that the use of things that are consumed in use is able to exist without there being property or do— minion.27 The underlying principle of the natural law being appealed to here by Bonagratia is the notion that in the state of original innocence, the state of Adam and Eve in paradise before the Fall, there was no such thing as property or possessions. Property rights resulted from the necessity of dealing with man's debased nature after the Fall. This principle was well accepted even before the Middle Ages. For instance, Bonagratia appeals to what he believes to be Clement of Alexandria's statement that the terms "mine" and "thine" were introduced because of the in- 28 iquity and cupidity of nations through human institution. This notion that there was no property or right of 48 possession in man's state of original innocence will be appealed to again and again by the Franciscans as a prin- ciple of justification in their arguments based on natural law during this controversy over poverty. In another argument designed to meet a possible objection to this state-of-innocence hypothesis, Bonagratia argues that if one were to maintain that this state of innocence did not last long enough to show that use could be permanently separated from ownership or dominion, another could reply that the first man might not have sinned. If this were so, then the use of all things would have always and everywhere been separated from ownership or dominion.29 This argument involves a theoretically—interesting contrary- to-fact conditional, but it is not a very convincing legal counter-argument. Further, Bonagratia maintains that under both civil and canon law, in times of extreme necessity all goods per- ceived as necessary for sustaining life are held in common by all men of the world so that no one is able to say that this is his property.30 Finally, Bonagratia denies that either the principle of ususfructus or quasi ususfructus31 relate legally to simplex usus facti, since, in essence, the latter entails neither any kind of dominion or ownership nor any ius utendi, 32 which is implied by the former. 33 Thus, in his hastily written Tractatus pp Christi 49 pp apostolorum paupertate, Bonagratia of Bergamo used many of the natural law arguments that were to be frequently em- ployed in the Franciscan cause to support their position on the poverty of Christ and His apostles. John XXII, angered by the presumptuousness of the Chapter-General's issuing an encyclical to all the faithful designed to impinge on his papal prerogatives, issued an even stronger statement of his competence in the bull Ag conditorem canonum34 (December 8, 1322). In Ap_conditorem John XXII tried to undermine another central tenet of the Franciscan position by suspending the parts of Exiit in which Nicholas III had renewed the Holy See's taking over legal dominium of the goods used by the Friars Minor. The Franciscans had claimed that because of this arrangement, they had no dominion over the goods they used but merely nudus usus facti,35 the pope stated. He retorted that it was the actual dominion of the Holy See that was 36 Also, the Fran- ppppp, not the use by the Friars Minor. ciscans were able to sell, exchange or give away those things that were supposed to be under the dominion of the Holy See in certain instances. John XXII claimed that this was more indicative of dominion than it was of one's being . 37 a nudus usuarius. Further, John XXII argued that there could not be nudus usus in things that were consumed in use and that use 50 sanctioned by law (usus iuris) and factual use (usus facti) could not be separated from dominion. To assert that they could was contrary to both law and reason.38 John XXII con— tinued that it could not have been Nicholas III's intention to reserve such goods under the dominium of the Holy See since no sane person would believe that Nicholas III intend- ed the papacy to have dominion over "one egg or one bean or one crust of bread" that was frequently given to the Friars Minor.39 John XXII maintained that the Holy See's dominion over the Franciscans' goods was "naked, verbal and mathemat- ical." The ones who were deriving the advantages of such a setup were the Friars Minor and not the papacy; nor could the Holy See expect to obtain some benefit from this dominion in the future since this arrangement was originally supposed to have been for the profit of the Franciscans.40 Further, John XXII asserted that the dominion over the Franciscan goods had been the occasion of such evils as boasting, internal conflicts and harm to the Spiritual life of the Order. These would continue as long as the Holy See retained ownership of the possessions of the Friars Minor.41 Finally, the pOpe proposed that the Franciscans' use of their procurators, supposedly acting in the name of the papacy, had proved to be a source of agitation, vexation and perturbation as well as an occasion for copious injury to the good name of the Holy See.42 51 Thus, in bringing into question the plausibility of the notion of a total renunciation of dominium in A§_con- ditorem, John XXII had seriously weakened the Franciscan doc- trine of the poverty of Christ and His apostles. The Friars Minor claimed that Christ and His apostles had observed a total renunciation of dominion, that is, that they had lived a life of absolute poverty. If it was true that such an abjuration of dominion was not actually possible or was devoid of spiritual value, if possible, then the Order's po- sition would be undermined and so would be their claim to be the Order that uniquely imitated the poverty of Christ and His apostles.43 However, what is quite interesting to note is that the Holy See's renunciation of dominium over the Franciscan goods had little or no practical effect on the flow of every- day life in the Order; business went on pretty much as usual. This is perhaps the best evidence to indicate how specula- tive in nature were many of the basic issues preeminent in the poverty controversy by this time. This is then the point that had been reached in the renewed controversy over the poverty of Christ and His apos- tles by the end of 1322. Although he was seriously threat— ening the Franciscans' doctrinal position, John XXII had not yet had the final word. The new year brought yet another formal response from the Order concerning their embattled doctrine. FOOTNOTES TO CHAPTER FOUR C. Eubel, ed., Bullarium Franciscanum, V (Rome, 1898), no. 289, pp. 128a-130b. 21bid., p. 128b. 31bid., p. 130a. 41bid., p. l30b. 5Chap. xxiii; see Franz Ehrle, "Des Ordenprocurators Raymond von Fronsac (de Fronciacho) Actensammlung zur Ge- schichte der Spiritualen," A,E,§,§., 3 (1887), 30. 6Bull. Franc. v, no. 293, pp. 132b-133b. 7Ibid., no. 297, pp. 134b-135b. 81bid., no. 302, pp. 137b-l42b. 91bid., no. 464, pp. 224b-225b. loIbid., pp. 224b-225a. lDecima L. Douie, The Nature and Effect pf the Heresy pf the Fraticelli (Manchester, I932), p. 155. 12Bull. Franc. V, p. 234a (footnote). 13Littera Capituli Generalis celebrati in civitate Perusii de Paupertate Christi in the CEronicon—de Gestis con- tra FratIEellos Authore Joanne Minorita, which IE containgd— in E. Baluze, Miscellanea, III, J.D. Mansi, ed. (Lucca, 1762), p. 208. This is actually the Chronicon of Nicholas the Min- orite and not "John the Minorite." It would appear that Bal- uze called Nicholas the Minorite "John the Minorite" because of an error in a 15th century manuscript, where the copyist transcribed a "J" instead of an "N"; cf. Douie, _p, pip., p. 154, n. 1. This work will usually be referred to as "Baluze-Mansi, Miscellanea" hereafter. l4Baluze-Mansi, Miscellanea, pp. 208b-21lb. 15 Ibid., p. 210a. 52 53 l6Ibid., p. 210b. 17Livarius Oliger, "Fr. Bonagratia de Bergamo et ejus 'Tractatus de Christi et apostolorum paupertate,'" A.§,H., 22 (1929), 292—335 & 487-511. Here "procurator" Is bEing used in another of its senses. Above, we saw it used as a term to describe an official agent of the Friars Minor; see su ra, Pt. I. chap. 1, n. 24, p. 15. In this context, it is eing used to describe Bonagratia's position as an attorney or agent for the Friars Minor whose function was to present their legal case. As a matter of fact, Bonagratia was also the official legal agent or Procurator of the Friars Minor at Avignon. 18Bonagratia was ordered to be imprisoned in a con- vent named "Monte Caprario"; however, by some oversight, he was actually imprisoned at Valcabrére, near Cominges, in the province of Aquitaine. After a year's imprisonment, he was able to extricate himself on the legal technicality that he had been incarcerated in a place not specified in the papal bull ordering his confinement; of. Douie, pp, piE,, pp. 15, 16-17 & 131. 19Oliger, pp, cit., 503. ZOIbid. lebid. 22Ibid. 23Ibid. 24Ibid., 504. 251bid. 26Ibid. 27Ibid. 281bid. 29Ibid. Bolbid. 31Quasi ususfructus. This is a legal principle which had been developed from the concept of ususfructus; see supra, Pt. I, chap. 3, n. 9, p. 38. It replaced the requirement in ususfructus that the substance of the thing 54 being used be returned intact to the owner with one requir- ing that something equivalent to this thing be returned to the owner at the termination of the period of use. 3201iger, pp, cit., 508-510. 33John Moorman, A_Histor of the Franciscan Order from its Origins pp the Year 1517 SOxfOrd, 1968), p. 316. 34Bull. Franc. V, pp. 233b-237a (footnote). The first verSion of this bull is found in a footnote on the pages cited. The second version of the bull, which we will consider in the next chapter, is printed in the text above this extended footnote. In writing this bull, John XXII seems to have also been motivated by a desire to extricate the Holy See from the constant lawsuits that were being brought by both secular and regular clergy against the Friars Minor. Since the Holy See was the legal owner of the goods used by the Friars Minor, it was responsible for defending these things in any legal actions brought against the Franciscans; cf. Douie, pp, pip., p. 160. 35Nudus usus facti. In this context, this phrase should be taken as equivalent to simplex usus facti; see supra, Pt. I, chap. 3, n. 11, p. 39. 36Bull. Franc. V, p. 236a (footnote). 37Ibid. A nudus usuarius would be one who had the bare or mere use of something BEIOnging to someone else in order that the former, the usuary, might be able to meet his daily needs. 38 Ibid. 39Ibid. 40Ibid., p. 236b (footnote). 4lIbid. 42Ibid. "Procurator" is being used here in the sense in which it stands for an official agent [see su ra, Pt. I, chap. 1, n. 24, p. 15] not in the sense in whicfi it stands for a legal advocate; see supra, Pt. I, chap. 4, n. 17, p. 53. 43 p. 233. M. D. Lambert, Franciscan Poverty (London, 1961), CHAPTER FIVE CUM INTER NONNULLOS: THE DOGMATIC RESOLUTION OF A LEGAL CONFLICT On January 14, 1323, the Order responded to Ap’con- ditorem through Bonagratia of Bergamo's Forma Appellationis per Procuratorem ordinis interpositae.l Bonagratia appealed in his Appellatio to much the same kind of natural law argu- ments that he employed in his Tractatus pp Christi pp_apo - tolorum paupertate. He proposed that to assert that pppp facti of things consumed in use could be separated from ownership or do- minion was by no means contrary to law or reason but was congruent with both divine, natural, canonical and civil law, as well as with reason.2 Further, he maintained that both as far as use of those things which were either con- sumed or not consumed in use was concerned, there was no necessity that one have dominion or ownership according to both natural and divine law.3 Again, he based this claim on the notion of the original commonality of all things, that property or ownership arose from the wickedness and cupidity of nations through human institution, not from natural or divine law.4 55 56 Bonagratia also appealed to both civil and canon law in order to try to demonstrate that in those things that were consumed in use, use was able to be separated from dominion or ownership. In this attempted demonstra- tion, he appealed to the standard examples employed by St. Bonaventure in his Apolpgias: the servant, the filius fam- ilias and the monk. Presumably, all Of these have neither dominion nor ownership over those things which are consumed in their use; and, nonetheless, they have simplex usus facti. Bonagratia's Appellatio had a contrary effect on John XXII than the Order must have hOped for, since it even further intensifiedlfifisresolve. John XXII's response was to reissue an amended form of Ag conditorem, which was given the same date as that on which the first version of this bull had been promulgated (December 8, 1322). Although John XXII mollified his personal criticisms of the Friars Minor in this revised version and altered the original version of the bull by still retaining dominion over churches, oratories, convents, and certain movable goods of some value used by the Franciscans,7 nevertheless, he reaffirmed and further extended his criticisms of the legal position of the Friars Minor. John XXII proceeded to examine the civil law defi- nitions of usufruct, ipp utendi and simplex pppp_£pppi to try to show that it was not congruent with their legal na- tures to be held in things that were consumed in use. 6 57 He asserted that as far as usufruct was concerned, it was necessary that whatever was involved in the usufruct pro- vide some sort of fruit or utility for the one granted the usufruct without the essential substance of whatever was involved being altered; and this, he claimed, was simply 8 not the case in goods consumed in use. Further, John XXII maintained that ius utendi, since it was merely a personal right which properly required that from the thing involved in the ius utendi some utility be able to be provided in some way through its use and that in the use no substantial alteration can be affected in the thing involved, ius utendi could not be had in things con- sumed in use.9 Finally, John XXII argued that since it was neither a form of personal servitude10 nor comparable to ipp utendi, simplex usus facti was not able to be held in things consumed in use. He continued that some fruit or utility, in whole or in part, was not able to be derived without substantial al- teration of the things from such use.11 John XXII also proposed that for there to be legit- imate use of an object it was required that the user have ius utendi of that object, whether or not he had dominion over 12 it. Yet ius utendi as such could not be held in those things that were consumed in use unless there was also owner- ship or dominion over those things.13 Thus, there could be no simplex usus facti in things consumed in use separated from 58 ownership or dominion without ipp utendil4; and thus, the Friars Minor had no legal ground in civil law for their position. Finally, John XXII added that not only had simplex usus facti of an object without ius utendi of that object no basis in civil law but to act on such a baseless assumption would be to act unjustly.15 About the same time as the promulgation of Quia non— numguam, in March of 1322, John XXII had commissioned all the prelates and masters of theology at the papal curia in Avignon to submit a written Opinion on the issue of the pov- erty of Christ and His apostles.l6 And thus, during the en— suing controversy, a number of Opinions were delivered to the pope. Some of these are of interest not only because they provided the pope with the material on which he drew in making his final dogmatic pronouncement on the poverty question in 17 Cum inter nonnullos, which we will consider shortly, but also because of their use of natural law arguments. Among the replies John XXII received was one from a bishop whose opinion was identified as "Episcqpi Ulisbonnen- gip." The bishOp felt that it was not heretical to assert that Christ and His apostles had property in common, since the commonality of prOperty was according to natural law, which was not affected by a consideration of ownership as 18 individuals or in common. Further, the bishop proposed that to assert that 59 Christ and His apostles had nothing in common was true ac- cording to positive law. And to have everything in common is true according to natural law. But he left it to the Holy See to determine whether the prOposed position was he- retical.19 To suspend judgment on the question involved was not an imperspicuous thing for the bishOp to do, since, of the answers received by the pope, save for the replies sent by the five Franciscans queried, the other cardinals, bishops, and theologians who replied were convinced almost to a man that the Franciscan position was heretical.20 Nevertheless, in the replies from the Franciscans, there was some significant use of natural law arguments. In his response to an objection that use cannot be separated from dominion as far as simplex usus facti was concerned, Cardinal Vital du Four asserts that use could be separated from do- minion in things consumed in use as long as natural law was fully efficacious so that no one was able to say about any- thing that "this is mine" and "this is yours."21 Further, Cardinal Vital du Four proposes that in much the same way as the things that were used by Adam during the time before the Fall, when natural law was fully efficacious, were God's goods and not some other's, so Christ, wishing to bring the Apostolic College as much as possible to the state of a natural institution, gave the apostles the use of those things that were necessary for their maintenance without 60 granting to them possession or ownership over these goods.22 Cardinal Bertrand de Turre, another Franciscan em- ploying appeals to natural law in his reply to the pOpe, also gave a defense of the Minorite position. He reasoned that the life of Christ and His apostles restored the world, as much as was possible, to a state of innocence and natural law. Moreover, under natural law all things were the common property of all, so that men had use of all things from nat- ural law. And no one had prOperty or dominion. Nor was any- one able to say "this is mine," "this is yours," since, he maintained, this was due to ipp gentium and human custom and contrary to natural equity. But, as far as dominion or own- ership is concerned, all things are God's possessions, as in the words of the Psalmist: "The earth is the Lord's and the "23 fullness thereof. Indeed, Ag conditorem had provoked such widespread indignation among the Friars Minor that even some English Franciscans, who had otherwise not been greatly involved in the poverty controversy on the Continent, set out to respond to it, even though they had not been asked by the pope. Among the responses, the Responsiones fratris Richardi gp_ Conygtona pd Rationes papales24 is significant. In the Repponsiones Richard of Conington limits him- self to a rational defense of the usus facti, as it had been defined in Exiit by Nicholas III. He proposes that if before God had given to man dominion over the things of the earth 61 and conceded their use to him the necessity of eating had cropped up, then man could have justly eaten, since such an act would be underwritten by the natural law.25 Richard of Conington also speaks of what he terms an "improper and most bountiful sense of natural law." This, he says, not only stands for that through which all things were common in the state of innocence but also for whatever is supported by "a principle of natural reason."26 Finally, he attributes the division of the goods of the earth after the Fall to ius gentium and proposes that natural law still sanctions the commonality of all goods, as far as their "necessary rational uses" are concerned.27 Richard of Conington, like Bonagratia of Bergamo, denied that there could be any connection between usufruct and simplex usus facti, since the significance of the latter lay in its denial of any legal claim on the part of the user.28 His position on natural law is quite similar to Bonagratia's, as is that of Francois de Meyronnes, the Fran— ciscan theologian and pupil of John Duns Scotus.29 Francois de Meyronnes' chief merit is his rationalistic systematiza- tion of the customary Franciscan position mirrored in Bona- gratia's works; he accomplished this systematization in his work, pp_Dominio Apostolorum.30 However, John XXII was not impressed. Bolstered by an all but unanimous number of positive replies to his query of March, 1322, from his non-Franciscan curial cardinals, 62 bishops and theologians, indicating that the position pro- posed by the Friars Minor was heretical, and wishing to ef— fect a final reply to Bonagratia and the other Franciscans, he issued his bull Cum inter nonnullos31 (November 12, 1323). In this short bull, John XXII made two dogmatic pro- nouncements. First, he decreed that the proposition that Christ and His apostles did not have anything either pri- vately or in common was erroneous and heretical. He main- tained that it expressly contradicted Holy Scripture, which, in a great number of places, asserted that they did have some things. Further, he proposed that such an assertion Openly supposed that Holy Scripture itself, through which certainly the articles of orthodox faith are proved, contained the leaven for falsehoods and consequently by rendering it wholly lacking in credibility, as much as this was possible, made the Catholic faith doubtful and uncertain.32 Second, John XXII decreed that the assertion that Christ and His apostles in no way had a right to use those things which Holy Scripture declares that they had; or that they had no right to sell, give, or exchange these things, even though Holy Scripture testifies that they did this or expressly assumes that they were able to do so, this asser- tion, John XXII decreed, was erroneous and heretical. The pope maintained that this assertion evidently typifies the use of these things by Christ and His apostles as unjust and is thus characterizable as involving an impiety, contrary to 63 Sacred Scripture and inimical to Catholic doctrine. And, the pope prOposed, this assertion brings into question cer- tain words and actions of Christ and His apostles.33 Of these two dogmatic pronouncements, the first did not really address itself to the fully develOped position then being prOposed by the Franciscans. Only the second pronouncement adequately zeroed in on the Franciscans' fully develOped position. The bull first condemned an early, not-too-well- differentiated thesis that Christ and His apostles had noth- ing, individually or in common. However, more to_the point, it condemned the doctrine of simplex usus facti, as this was contained in the long version of the encyclical issued by the Chapter-General of the Order at Perugia, in its second dogmatic pronouncement. The net effect of the bull, then, was to condemn only the most advanced formulation of the Franciscan doctrine of absolute poverty. It is quite possible that John XXII's bull could still have been reconciled with the 13th century doctrine of poverty proposed by Nicholas III in §§i£5.34 There was an immediate reply from the Franciscans, the Responsiones pgoppositiones,35 most probably the work of Alvarus Pelagius.36 In this work the author again makes an appeal to natural law. He maintains that nothing is nec- essary for the conservation of human life save the use of things. And since the use of food is necessary for the 64 conservation of nature, to which conservation one is at all times indispensably obliged by a precept of natural and di- vine law, one is not able to renounce the use of these things. But ownership, since it is not necessary for the preservation of nature, is able to be renounced.37 However, the great majority of the members of the Order submitted to John XXII's decree, since to refuse to do so and to preach about the condemned doctrine on the absolute poverty of Christ and His apostles was to put one- self in jeopardy of being arrested and imprisoned. Nevertheless, there were some Franciscans who did not submit to John XXII. As Lambert has noted,38 the ultimate sequel to John XXII's Cum inter nonnullos was the revolt of the Michaelists. And, as we will see in the next chapter, one of the more important figures in this revolt was William Ockham. FOOTNOTES TO CHAPTER FIVE 1E. Baluze, Miscellanea, III, J. D. Mansi, ed. (Lucca, 1762), pp. 213a-221a. 2 Ibid., p. 216a. 31bid., p. 217a. 41bid. 5For the Specific comparisons, see S. Bonaventura, O era Omnia, VIII (Ad Claras Aquas, 1898), xi, 7, p. 312, and 8, p. 313. The "filius familias" example, appealed to here, involves the unemanprated son in a family, who was referred to in civil law as the "filius familias." It is the filius familias who is used by St. Bonaventure in his counter-argument involving the peculium; see supra, Pt. I, chap. 2, n. 22, p. 27. 6Baluze-Mansi, Miscellanea, p. 217b. 7Decima L. Douie, The Nature and Effect of the Heresy of the Fraticelli (Manchester, 1932), p. I62. An oratory-In this case would be a small chapel. In all like- lihood it would be in or attached to a Franciscan convent. 8C. Eubel, ed., Bullarium Franciscanum, V (Rome, 1898), no. 486, p. 239a. 9 Ibid., p. 239. 10The reference here is to personal servitudes (servi- tudes personarum), which is one of the four rights over an- OEHer's property (jura in re aliena) customarily recognized under Roman Law governiHE'EHings. "Personal servitudes. These were servitudes belonging to a man personally, not as owner of anything else, applying to movables as well as land, limited in duration, few in number (usufruct and two or three others derived from it), and giving indefinite rights, includ- ing physical possession of the prOperty subject to them." W. W. Buckland, A_Textbook p£_Roman Law from Augustus Ep_gpp- tinian (Cambridge, 1950), . 268. 65 66 11Bull Franc. V, p. 239b. lZIbid., p. 24Gb. l3Ibid., p. 241a. 14Ibid., p. 241. 15Ibid., p. 242. John XXII's interest in counter- ing the legaI position of the Friars Minor is not really surprising, which one realizes that he was a doctor of both civil and canon law (doctor utriusque iuris), like Bonagratia of Bergamo. As a matter of fact, he had been a professor of civil and canon law at the universities of Toulouse and Cahors before he became a bishop. l6John Moorman, p Histor of the Franciscan Order from its Origins Ethhe Year 151 (Oxford, 1968). p. 314. 17J. G. Sikes, "Hervaeus Natalis: De Paupertate - Christi et Apostolorum," Archives d'Histoire Doctrinale pp Littéraire pp Moyen Age, 11-12 (1937-1938), 217, 18Felice Tocco, pp guistione della overta nel pp: odk>XIV secondo nuovi documenti (Naples, 1910), p. 58. 19 Ibid., p. 59. 20Sikes, pp, cit., 209. 21Tocco, pp, cit., p. 82. 22Ibid., p. 83. The reference her to "Apostolic Col- lege" is merer another way of identifying Christ's apostles. 3PatrickGauchat, Cardinal Bertrand pp Turre, 0RD. MIN. (Rome, 1930), p. 81, n. l. 24Decima L. Douie, "Three Treatises on Evangelical Poverty by Fr. Richard Conyngton, Fr. Walter Chatton and an Anonymous from MS. V III 18 in Bishop Cosin's Library, Dur- ham," §,§,H,, 24 (1931), 355-369. 25 Ibid., 361. 26Ibid., 362. 27Ibid., 365. 281bid., 344. 67 29Although it does not appear that John.Duns Scotus became directly involved in the conflict over the property of Christ and His apostles, he certainly had some views on nat- ural law. If the reader is interested in ScotuS' position on natural law, he might want to consult Gunter Stratenwerth, Die Naturrechtslehre des Johannes Duns Scotus (GOttingen, 1951), especially, pp. 732116. 30Jacqueline de Lagarde, "La participation de Fran- cois de Meyronnes a la querelle de la pauvreté (1322-1324)," Positions des theses ppp|éleves pp_lecole Nationale ppp Chartes (Paris, I953), p. 3. 31 Bull.Franc. V, no. 518, pp. 256a-259a. 321bid., pp. 256a-257b. 33Ibid., pp. 257b-259a. 34M. D. Lambert, Franciscan Poverty (London, 1961), p. 239. In this instance, Lambert seems to have considered Wadding's argument at least probable; of. Luke Wadding, ed., Annales Minorum, VII, 2nd ed. (Rome, 1733), pp. 3-6. Wadding Had argued that Exiit never said that Christ had not held any dominium at all (nequaquam), but only that Christ had re- nounced this domifiIum in order to point the way to perfec- tion. Wadding maintained that the bull clearly implied that Christ and His apostles had, at one time, held common domin- ium over their goods. Thus, Wadding felt that, at least as f3? as its wording was concerned, John XXII's Cum inter non- nullos had not condemned the traditional FrancISEan doctFIfie of tHe absolute renunciation of dominium, derived from Nicholas III's Exiit. 35 Bull. Franc. V, pp. 256a-259b (footnote). 36Moorman, pp, cit., p. 318, n. 1. 38Lambert, pp, cit., p. 242. CHAPTER SIX MICHAEL OF CESENA AND WILLIAM OCKHAM: THE HERETICAL RENEWAL OF A LEGAL CONFLICT Up to this time, that is, 1323, William Ockhaml had not been involved at all in the controversy over the poverty of Christ and His apostles. Actually, he will not become actively involved in this conflict for some five years. Ockham had primarily been engaged in academic, non- polemical pursuits.2 Although there is some question concerning the date of his birth, Ockham seems to have been born between 1280 3 and 1290. He became a Franciscan and studied theology at Oxford from about 1310 to 1315. Here he lectured on the Sentences pg Peter Lombard from 1315 to 1317 and on the Bible from 1317 to 1319.4 He was probably a baccalaureus 5 formatus Oxonie from around 1319 to 1323. However, it seems that he never became a magister ppppregens,6 although he appears to have completed all the formal education required to exercise this function. In all likelihood, he was not advanced to the rank of magister pppp regens because he was accused of being a heretic by the Thomist John Lutterell, a former Chancellor of Oxford, when 68 69 Lutterell was in Avignon in 1323.7 Ockham was commanded by John XXII to come to Avi- gnon;and he arrived there in 1324. John XXII created a com- mission to take charge of Ockham's case. This commission included the Dominicans, Raymundus Bequini, patriarch of Jerusalem; Dominicus Grima, biShOp-elect of Pamiers; and Durandus of St. Pourcain, bishop of Meaux; two Hermits of St. Augustine, Gregory, biShOp of Belluno-Feltre; and John Paynhota, a master of theology; and Lutterell himself, who was a master of theology. Ockham's case was drawn out over a two year period, and the commission seems to have returned two pronouncements on at least some of the 56 suSpect articles drawn up by Lut- terell from Ockham's Commentary pp_the Sentences. The com- mission actually utilized the list of 51 articles prepared by the Dominican archbishop of Aix-en-Provence, James Concoz. This list included only 29 of Lutterell's original articles.8 Of the two acts of the commission, the first was definitely milder than the second. In the first, none of the articles with which the commission finds fault is classified as "pp;- eticum"; all of these are characterized in some less serious :manner, as "falsum," "erroneum," "ridiculosum," and the like. However, the commission's second report explicitly pronounces that 14 of the essentially same articles which were examined in the first act of the commission9 are "hereticum" or "her- esis." 70 Yet, even after these two processes, the commission was unable to reach any definite settlement on Ockham's case. A number of possible explanations have been offered for this deadlock. First, it seems that Ockham was allowed to defend himself; and it also seems that he was permitted to make corrections in his own text and that these corrections were incorporated by the commission into their pronouncements.10 It is possible that his defense was sufficiently convincing that the commission could not finally agree to condemn him. Second, there is the hypothesis, proffered by Koch,ll that the commission may have not been able to come to a unan- imous judgment concerning Ockham's case because of the mit- igating influence of Durandus of St. Pourgain. Durandus was a nominalist whose position on the question of universals was not unlike Ockham's. Finally, there is the thesis that the commission may have failed to condemn Ockham because, before it had con- cluded the process against him, he fled Avignon with the other Michaelists.12 Thus, the commission lost its exam- inee and its purpose for continuing the investigation. In any case, at least one thing is certain; it is during this time, when Ockham was required to remain in Avignon,l3 that he first became involved in the controversy over the poverty of Christ and His apostles. At this time, he seems to have been in contact with 71 Bonagratia of Bergamo. Bonagratia had again been imprison- ed,l4 this time for a short period by John XXII, essentially because of his Appellatio against the first version of pp conditorem. However, Bonagratia's influence seems to have been insufficient in getting Ockham involved in the poverty controversy. At this time as well, the Emperor Lewis of Bavaria decided to enter into the controversy over the poverty ques- tion. The Emperor had been previously excommunicated by John XXII for continuing to exercise the functions of em- peror in Spite of the papacy's claim that it was its prerOg- ative to fill the vacancy that the Holy See felt had been created by the contested imperial election of 1314.15 Lewis of Bavaria maintained that John XXII's pro- nouncements on the poverty question were clearly heretical and that John XXII's enacting these heresies cut him off from the body of the Church. AS a consequence, he was de- prived of any standing as a prelate.l6 John XXII answered Lewis' challenge in his bull Quia gporumdaml7 (November 10, 1324). He declared that anyone who would preach the "damnable heresies" condemned in Cum inter nonnullos or knowingly defend these heresies verbally or in writing or presume to approve of them was a heretic. And anyone who knowingly approves or defends any- thing against those things defined, ordained and enacted in §9.90ndit0rem was an "insolent rebel."18 72 Lewis of Bavaria's reply was to undertake a papally prohibited Italian expedition in 1327-1329. To say the least, this Operation was not in the best interests of the Holy See's position in its Italian campaigns to regain ef- fective control over the Papal States. About the same time John XXII became suspicious that Michael of Cesena, the Minister-General of the Friars Minor, who was then in Italy, was going to throw in his lot with Lewis of Bavaria and that Michael, in fact, aspired to be pOpe.19 So on June 8, 1327, John XXII ordered Michael to come to Avignon on the pretext of needing him in order to discuss the affairs of the Order. Michael arrived in Avi- gnonIXIDecember 1, 1327; and, although he was courteously received by the pope, he was told not to leave the city without John XXII's permission.20 It was at this time that William Ockham came into contact with Michael of Cesena; and it is through Michael that he became involved in the controversy over the poverty of Christ and His apostles. Ockham tells us later in his Epistola pp FratreS 21 Minores apud Assisium Congregatos that he had resided in Avignon for almost four years before he recognized that the superior there, that is, the pOpe, had fallen into "heret- ical perversity." He asserts that because he did not wish to believe with equanimity that a person placed in so great an office would determine that heresies were to be held, he 73 had neither read nor tried to acquire John XXII's "heret- ical constitutions."22 Ockham goes on to tell us that, later, he had been afforded an occasion to read and diligently study John XXII's three constitutions, namely, pp conditorem, Cum inter and Quia quorundam, because he was ordered to do so by his supe- rior,23 who was at this time Michael of Cesena. Therefore, it was through Michael of Cesena that Ockham became involved in the controversy which was to so profoundly affect the course of his life. When Michael requested authorization from John XXII to go to Bologna in order to preside over the Chapter-General of the Order that was to take place there at the next Pente- cost, the pOpe, in the first instance of his abandoning his former, apparently benevolent, attitude toward Michael, cat- egorically refused his request with the caustic comment that he knew Michael wanted to be "pOpe in Lombardy."24 On April 9, 1328, John XXII ordered that Michael appear before him. In the stormy audience that followed, the pOpe berated Michael on a number of points, especially the position on the poverty of Christ and His apostles that had been advocated by the Order's Chapter—General at Perugia. .John XXII declared that the Chapter-General's position was Iheretical. But Michael boldly maintained that it was sound, (Catholic doctrine, as had been determined by John XXII's predecessor, Nicholas III.25 74 John XXII, not very pleased, accused Michael of being "foolish, reckless, headstrong, tyrannical, a sup- porter of heresies and a viper nourished in the bosom of the Church."26 Further, he absolutely forbade Michael to leave Avignon under pain of excommunication, deposition from his office, and forfeiture of his ecclesiastical sta- tus and benefice.27 In Spite of his troubles at Avignon, Michael was re- elected Minister-General by the Chapter-General of the Order meeting in Bologna at Pentecost. On April 13, 1329, Michael secretly sent a letter to the Chapter-General,28 noting all that the pope had effected against him. This letter was wit- nessed by Francis of Ascoli, a Franciscan doctor of theology and lecturer in the convent of the Friars Minor at Avignon; William Ockham; Bonagratia of Bergamo; and two notaries. Finally, on the night of May 26, 1328, Michael, Wil- liam, Bonagratia and Francis of Ascoli fled the city and went to Argues-Mortes, where Peter of Arrablay, cardinal of Porto, tried to dissuade them from their course.29 However, they were resolved in their action and embarked and left for Genoa. From Genoa they went to Pisa and arrived there on June 9, 1328,30 where they were met by some of the Emperor's officials. The Emperor arrived at Pisa in September, and he and the Michaelists remained there for about eight months. Even before the Michaelists had arrived at Pisa, 31 John XXII, in his bull Dudum pp nostri (June 6, 1328), 75 excommunicated Bonagratia and Ockham and excommunicated, de- posed from office, and stripped of all honors, dignities, rank and ecclesiastical status their leader, Michael of Cesena. The pope also deprived them of any ecclesiastical benefices they might have formerly held and imposed like penalties on their supporters and on those who adhered to their heresies.32 While at Pisa, Michael composed an excusatory letter33 which was addressed to all the members of the Order. The letter, dated July 9, 1328, delineated his reasons for leav- ing Avignon and maintained that Since John XXII had fallen into heresy, he was no longer pOpe and thus lacked any com- petence to decree what the Order was to do. Finally, he ended the letter with an announcement that he would soon disclose an Appellatio that had been composed at Avignon. On September 18, 1328, the promised Appellatio Gene- ralis Ministri ip Majori Forma34 appeared. This quite lengthy work attempts to Specify and refute all the individual heresies that Michael believed the pope was succoring. Among the issues dealt with were the origin of property, the com- monality of goods and its diverse forms, poverty and its rela- tion to religious perfection, the separation of simplex pppp gpppi from prOperty, the fallibility of the pOpe and the con- sequences that result when the pope falls into heresy.35 However, of particular interest are the arguments that Michael offers which involve natural law. He makes the standard points that property and dominion over anything are 76 not from natural law but were introduced through human law36 and that it is through iniquity that anyone would say "this is my property" and "this is yours," Since the introduction of property is contrary to the state of innocence or the state of natural law.37 Michael, like a number of his Franciscan predeces- sors, maintains that property rights are not derived from natural law but from positive law. He also expresses his agreement with the idea that natural law differs from both custom and human legal enactments, since under natural law all things are held in common.38 Michael prOposes that the Friars Minor are not able to have ownership or dominion over either those things which are consumed in use or not consumed in use. Nonetheless, they are able to licitly exercise E§E§.£EEE£.°f these things that is separated from ownership or dominion.39 Michael asserts that it is certain that under natural law there existed a common simplex usus facti of all the things that were necessary for the sustaining of human life and that there was no ipp utendi, Since this only arose later through its introduction by positive legislation. Thus, he proposes, from divine law which is called "natural law," it is manifestly evident that simplex usus facti is able to be justly maintained apart from ius utendi. As a consequence, to say that simplex usus facti is not able to be maintained apart from ius utendi is at odds with and repugnant to both 77 divine law and Apostolic perfection.4O What is particularly interesting here is the close relationship that Michael draws between divine law and nat— ural law. One gets the impression that natural law differs from divine law only because the latter is sometimes called "natural law," whereas there is no essential difference be- tween them. This is again another instance of the approach of some of the medieval canonists to take the natural law to be divine law. Pushing to the limit the notion of extreme necessity underwriting the doing of whatever is necessary to maintain one's life, Michael argues that, in one sense, the commonal- ity of temporal things is grounded in a right of natural necessity. From this right it follows that concerning those temporal things suitable for sustaining one's life, one who needs something because of extreme necessity is able to use it to sustain his life, even though this use is contrary to the will or without the permission of him who owns the thing in question. Michael maintains that one is even able to licitly carry things away violently from him to whom they belong in such circumstances.41 Michael uses appeals to natural law in a number of other places in his Appellatio; however, these other argu- ments do not differ substantially in content from those already noted. On December 12, 1328, Michael's Appellatio and a new 78 redaction of Lewis of Bavaria's GloriosusDeuS42 (April 18, 43 1328) were posted on the porch of the Cathedral of Pisa. In his bull the Emperor had solemnly deposed the pope be- cause of his supposed attack on the rights of the empire and his reputed falling into public heresy. Finally, on April 11, 1329, the Emperor left Pisa, taking with him Michael of Cesena and his companions. In February of 1330, they reached Germany; and the Michaelists were lodged in the Franciscan convent in Munich, the town in which the Emperor had his imperial court.44 There Ockham was to remain for the rest of his life. It is with Ockham's arrival at Munich that the first part of this analysis will be concluded, since it is during his stay at Munich that Ockham writes his polemical works with which we will be concerned in the next part of this study. In the second part of this work, a more detailed examination of his position on natural law, involving a study of all of his known polemical works, will be given, a heretofore, unattempted task. In this more detailed analysis, it will be inter- esting to see to what degree Ockham carries on the Francis— can tradition in the use of natural law arguments which we have seen so clearly developing during the course of the poverty controversy. With this heretofore undisclosed tradition to refer back to in Part I, we can, in Part II, 79 determine whether Ockham adds anything of an original nature to this tradition, when he takes up the issues involved in the poverty conflict in his polemical works. FOOTNOTES TO CHAPTER SIX 1In this work, we will follow the practice of such authors as Boehner, KOlmel, Junghans and Miethke by referring to Ockham as "William Ockham." However, we feel that the customary tradition of referring to him as "William of Ock- ham" is also acceptable. On this point, see P.T. Boehner's "Introduction" to his Tractatus de Successivis attributed Ep_ William Ockham (St. Bonaventure,EN.Y., 1944), pp. 4-5. 2For a list of those authentic works composed by Ock— ham during his non—polemical period, see Léon Baudry, Guil- laume d'Occam, Sa vie, ses oeuvres, ses idées sociales et poIitiques, I: ETHamme pgfles Oeuvre§_TPariS, I949), PPT_273- 285. 3For some of the various opinions which have been offered concerning Ockham's birthdate, see Helmar Junghans, Ockham im Lichte der neueren Forschupg (Berlin, 1968), pp. 25-26. 4A baccalaureus formatus Oxonie would have had to have lectured on the Sentences of Peter Lombard for two years and then given cursory lectures-5n the Bible for one or two more years; during the first period one would be a baccalaur- eus Sententiarum, whereas in the latter period one would’be a cursor biincus; of. James A. Weisheipl, "Ockham and some Mertonians," Medieval Studies, 30 (1968), 167-168. 5For an alternative analysis of the dating of Ock- ham's early career, see C. K. Brampton, "The probable date of William of Ockham's noviciate," Franz. Stud., 51 (1969), 78-85. 6A magister actu regens was one who had been a pppe calaureus TheologiaeIIOr four, or almost four, years; re- ceived his license to teach; was admitted to the so-called "Principium," the public lecture(s) or disputation(s) through which one entered into his official duties and the ceremonies ‘which accompanied this formal reception; and, thereby, became a master; cf. Boehner, pp, pip., pp. 1-2. 7Lutterell was chancellor of Oxford from 1317 to 1322. He had wished to go to Avignon in 1322 to proceed with his case against Ockham and Oxford University but had been 80 81 stopped from departing by King Edward II, who enjoined him to submit the matter to his council at York for examination. However, in 1323, the King permitted Lutterell to go and pre- sent his appeal to the Roman curia at Avignon; cf. Auguste Pelzer, "Les 51 articles de Guillaume Occam censurés, en Avi- gnon,en 1326," Revue p'Histoire ecclesiastiqpe, 18 (1922), 246. 8C. K. Brampton, "Personalities at the Process against Ockham at Avignon, 1324-26," Franciscan Studies, 26 (1966), 8- 9. For a valuable article by article correlation between the commission's second act [first printed in Pelzer, pp, cit., in 1922] and the commission's first act [first printed in J. Koch, "Neue Aktenstucke zu dem gegen Wilhelm Ockham in Avi- gnmigeffihrten Prozess," Recherches de Théologie ancienne et médiévale, 8 (1936), 81- 937& 168:I94T, see Kth, ibid. 9The list of articles reviewed in the first act of the commission contains 51 articles, whereas the list of ar— ticles reviewed in the commission's second act does not con- tain any article 32 or 33. Yet, as Koch notes [ibid., 8 (1936), 184, n. 1], there does not seem to be anytHing of sub- stance omitted from the second act which was considered in the first. 10 Ibid., 8 (1936), 195-197. llIbid., 7 (1935), 369-370. 12Boehner, o . pip., p. 6. More recently, Brampton has claimed that even though the two processes against Ockham resulted in no "positive indictment," nevertheless, no third process was initiated by John XXII, apparently because of his reluctance to pursue the matter any further for reasons of judicial discretion. And, since, according to Brampton, the pope lacked the "requisite evidence," Ockham was never Of- ficially condemned; cf. Brampton, "Personalities," pp, pip., 23 & 25. 13It does not seem that Ockham was imprisoned during this time. He seems to have been obliged to remain in Avi- gnon,but he was free to move about and stayed at the Francis- can convent there. It also seems that he was allowed to con- tinue to write; cf. Boehner, ibid. 14A. Mercati, "Fratre Francesco Bartoli d'Assisi, Michelista, e la sua ritrattazione," p,§,§,, 20 (1927), 272. 15Due to a division in the imperial electors, two can- didates were chosen in 1314, Frederick of Austria and Lewis of Bavaria. Lewis settled the matter from a practical point of view by defeating and capturing Frederick at the battle of 82 Muhldorf on September 28, 1322. However, the Holy See felt that Lewis' exercising imperial sovereignty was legally in- valid, since he had not sought papal approval for his assum- ing the title of "Emperor," and that, in fact, the imperial Office was vacant. John XXII pushed the papacy's claim, which was based on the notion of the dependence of the empire on the papacy, as far as the conferring of sovereign power was concerned. Actually, the pOpe had threatened excommunication on the grounds of three offenses supposedly committed by Lewis: (1) that, though his election as emperor had been in discor- pip, he had dared to assume the imperial title witHOut papal approval; (2) that he was performing acts of sovereignty in the realm and the empire, even though the empire was without an emperor and its administration, consequently, pertained to the pOpe; and (3) that Lewis had Shown favor to the Visconti of Milan, who had been condemned for heresy, as well as to other rebels from the Church; Of. H. S. Offler, "Empire and Papacy: the Last Struggle," Transactions of the pral Histor- ical Society, 5th Series, Vol. 6 (1956), 23LZ4. When Lewis ignored the papacy's claims, John XXII excommunicated him on March 23, 1324. 16Appellatio Ludovici Imperatoris in E. Baluze, Mis- cellanea, III, J. D. ManSi, ed. (Lucca, I762), p. 229a. l7 Ibid., pp. 233b-237a. 181610., pp. 236b-237a. 19Baudry, pp, cit., p. 111. 20Baluze-Mansi, Miscellanea, p. 237a. It seems that John XXII became even more suSpicious of Michael, first, because of an alleged sickness which delayed his arrival at Avignon for about Six months and, second, because, in the interim, he had received letters from Perugia indicating that Michael was known to have been intriguing with Lewis of Bavaria, who was then in Italy, and that Michael, indeed, had hOpeS of being made an antipope; cf. Decima L. Douie, The Nature and Effect p£ the Heresy pg the Fraticelli (MancHes- ter, I932), pp. 166-167. 21This work was first published by Léon Baudry in his "La Lettre de Guillaume d'Occam au Chapitre d'Assise (1334)," Revue pfhistoire franciscaine, 3 (1926), 185-215. Later, C. Kenneth Brampton published His Gulielmi de Ockham Epistola pp Fratres Minores (Oxford, 1927), which cofifains some interest- ing notes on the text, see pp. 19-55. Finally, H. S. Offler published a critical edition of the Epistola ad Fratres Min- ores in R. F. Bennett and H. S. Offler,GuillEImi de Ockham Opera Politica, III (Manchester, 1956), pp. 1-17. 83 22Bennett and Offler, ibid., p. 6. 23Ibid. 24 25Baluze-Mansi, Miscellanea, p. 237. 26Ibid., p. 2376. 27Ibid., p. 238b. 281bid., pp. 238b-240a. 29 Baudry, Guillaume p'Occam, pp, cit., p. OBaluze-Mansi, Miscellanea, p. 243b. 3lIbid., pp. 243b-244b. 321bid., p. 244b. 33Ibid., pp. 244b-246a. 34Ibid., pp. 246b-286b. 35 6Baluze-Mansi, Miscellanea, p. 248a. 37 Ibid., pp. 249b-250a. 38Ibid., p. 2566. 391bid., p. 250a. 4OIbid., pp. 256b-257a. 4lIbid., p. 278a. 421bid., pp. 240b-243a. Baudry, Guillaume p'Occam, pp, cit., p. Baudry, Guillaume p'Occam, pp, cit., p. 113. 116. 117. 43Baudry, Guillaume p'Occam, pp, cit., p. 118. 44Ibid., p. 123. PART TWO WILLIAM OCKHAM AND NATURAL LAW CHAPTER SEVEN THE OPUS NONAGINTA DIERUM "I am doubtful about the extent of the legal 'vol- untarism' and 'irrationalism' which Lagarde attributes to Ockham."l Certainly, Gewirth's doubts seem to be quite well-founded. Nevertheless, such authors as Lagarde,2 Oak- ley,3 and Gierke4 seem to be quite convinced that Ockham was a legal voluntarist. A number of specific reasons will be offered in each case to account for these authors' insistence on Ock- ham's being a legal voluntarist and for the disagreement that has been evident concerning the nature of Ockham's basic position on natural law.5 And yet, there does seem to be a more general con- sideration that could count as at least a possible partial explanation for such marked disagreement even on the nature of Ockham's basic position on natural law. Ockham never sat down to write a tract on natural law as did, for in- stance, St. Thomas Aquinas.6 Ockham's comments on natural law are scattered throughout his voluminous polemical works and seem much more directed to eXplicating or justifying the particular point with which he is concerned at the 85 86 moment rather than with presenting a systematic position on natural law. Thus, deriving a systematic interpretation of Ockham's basic position on natural law is no easy matter. In great measure, one has to try to piece this position together from his widely scattered applications or uses Of the notion of natural law. In view of this, the seemingly most plausible meth- odology to adOpt in accomplishing the task stated at the end of Part I of both disclosing Ockham's position on natural law and distinguishing those parts of it that are unique to him and those aspects that seem to be more the work of his Franciscan predecessors is to systematically investigate all of Ockham's polemical works in the order in which they were composed. In this way, we can ascertain whether his position on natural law underwent development while he was composing his polemical works.7 In Part I we concluded our examination of Ockham's life with his arrival in Munich in February of 1330. It is in this same year that Ockham's first, cOmmonly recognized polemical work, the Allpgationes virorum religiosorum,8 was signed,9 although, in fact, much or the work on it was prob— ably accomplished before Ockham's arrival at Munich. Actually, this work is the common product of the efforts of Henry of Talheim, Francis of Ascoli, Bonagratia of Bergamo, and William Ockham. It not only gives a short rendering of these authors' views on papal power and its limits, but also 87 offers nine agruments in an attempt to prove that John XXII's deposition of their leader, Michael of Cesena, and his replacement with the election of Guiral Ot (Ott) was legally void.10 Nonetheless, the Allegationes offers nothing con- cerning natural law. This tOpic is only initially dealt with in Ockham's second polemical work, the massive Opus 12 Nonaginta Dierum,ll which appeared in 1333. This work is a line by line refutation of John XXII's bull Quia vir 5p: 13 (December 16, 1329) and a defense of the views, probus contrary to those expressed in the bull, that were held by the Michaelists. As is characteristic of some of Ockham's polemical works, it is written in an "impersonal" style, avowedly indicative of a mere reporting of the contrary views of John XXII and the Michaelists with his own positions being 14 This acknow- reserved for the writing of a later work. ledgment has occasioned an understandable degree of appre- hension concerning precisely what one should accept as Ochham's actual personal positions and what are merely re- ported group positions not necessarily indicative of Ock— ham's own views. This is no less an acute problem as regards the issue of his use of natural law arguments and concepts in this work. However, because of the analysis of the relevant his- tory Of the use of natural law arguments and concepts by 88 Ockham's predecessors given in Part I, we are in a somewhat better position to weigh H. S. Offler's thesis that Ockham's use of civil law concepts was both "borrowed and shallow learning," his reading in canon law "casual rather than pro- fessional," and that he and other Michaelists relied "a good deal" for their standard canonical arguments on Bonagratia of Bergamo.15 Certainly, one is immediately impressed with the great degree of correspondence between the arguments which we noted were indicative of the pre-Ockhamist Franciscan position on natural law and the actual arguments Ockham em- ploys in this work. He reiterates that property and ppmipf ipm can be separated from ipp utendi in things consumed in use and says that this separation is underwritten by divine, natural and human law.l6 Further, he restates that at a time of extreme necessity anyone has the ipp utendi of any goods, even those consumed in use, which are necessary for sustaining his life and that no prOperty or dominium is 17 acquired from such use. Throughout the Opus Nonaginta Dierum Ockham tries to counter John XXII's thesis that ius utendi cannot justly be held in things consumed in use unless the user also pos- sesses dominium or ownership of the thing being used. Of course, this again amounts to an overriding interest in jus- tifying the Franciscan doctrine of Simplex usus facti. AS we saw in Part I, this had also concerned Ockham's immediate 89 Franciscan predecessors. Ockham characterizes the simplex usus facti doctrine as equivalent to the claim that he wishes to present. He wants to Show that one has the pppp (use) of anything that is necessaryfifor sustaining his life.18 As did his Franciscan predecessors, Ockham sees Nicholas III's Exiip as the authoritative source on the poverty question. He attempts to disclose those particular aspects of Eéiip that undermine John XXII's pronouncements on Franciscan poverty and, especially, his arguments based on the notion of ius utendi. However, in a seemingly new countermove, Ockham effects a bifurcation in the civil law notion of ius utendi by distinguishing it into ius utendi positivum and ius uten- pi naturale. He seems to fhtend this division to be an interpretative explication of Nicholas III's statement that the Friars Minor could not be denied those things that are necessary for the sustaining of their lives, since this 19 What Ockham claims Nicholas would violate the natural law. III meant was that the Friars Minor could not be denied ipp utendi naturale. But they could be denied ipp'utendi pppf itivum, which here seems to correspond to the normal civil law notion of ipp utendi, that is, the Specific right to use an object granted under human positive law.20 Ockham goes on to characterize this new notion of ius utendi naturale as a right of use common to all men naturally and not possessed because of any human ordinance 90 supervening. He maintains that it is had by all men at all times but is not exercisable at all times as regards the individually or commonly held goods of others. It only per- mits ipp utendi of the goods of others in times of extreme necessity. At these times, in virtue of the natural law, one is able to licitly use another's goods if one's life cannot be preserved without such use.21 Further, Ockham claims that the Friars Minor have a licentia utendi (license to use) things as an ongoing power; and yet they possess full ius utendi only during an actual time of extreme necessity. Thus, licentia utendi and ius utendi are not the same thing. Ockham uses this distinc- tion in an attempt to explicate Nicholas III's assertion that the Friars Minor are able to renounce all prOperty and dominium but not every ipp of all things. Ockham maintains that just because one is permitted to renounce prOperty and the power of appropriating does not entail that one can re- nounce ius utendi naturale. He says that whatever power one has through ius utendi naturale, one does not have ius at 22 all times, but only in times of extreme necessity. What Ockham seems to be driving at here is that one possesses a license to use things belonging to another as a conditional and circumscribed power. But only at an actual time of extreme necessity does this power become a ipp, in this case, a valid power to use another's goods based on natural law. 91 It is in Chapter 65 that Ockham gives his most ex- tended and most Significant treatment of tOpics utilizing the concept of natural law in the Opus Nonaginta Dierum. Here Ockham initially considers the word "ius" and notes 23 that it can be used for either the ius poli or the ius fori (positive law). He claims that ius fori is called "just," because it is a law that is explicitly established either by agreement or enactment by God or men. He says that is can also be called "ius consuetudinis" (customary 24 law), if one employs the word "custom" in a broad sense. In a quite significant move Ockham claims that ius poli is called "apguitas naturalis" (natural equity). He asserts that natural equity is in conformity with ppppp Eppipgs (right reason) without any human or purely divine positive ordinance being involved. He says that this con- formity with right reason is a conformity with either pure natural right reason or with right reason taken from those 26 things that are divinely revealed to us. Further, Ockham continues that ipp naturale belongs to ipp.ppli; and he proposes that ipp_ppii can also be called "ipp divinum," because there are many things in conformity with right reason taken from those things that are divinely revealed to us which are not in conformity with pure natural reason. Thus, what Ockham does here is to take ipp'ppli (natural law) to be natural equity. He characterizes nat- ural law as a law in conformity with right reason, that is, 92 prudence in acting and habit. He also effects a bifurca- tion in the standard Scholastic notion of ppppp.£ppip_into pure natural right reason and right reason taken from those things which are divinely revealed to us. In all likelihood, he effects this division in ppppp pppip to establish a cate- gory for those particular instances of prudence in acting or in habit which, presumably, have been revealed by God, for instance, in Holy Scripture. Thus, they can rightly be called "ipdeivinum" (divine law). Thus, Ockham has constructed a two-fold justifica- tion for the Simplex usus facti doctrine. From pure natural right reason, he feels that it is obvious that no one can be denied the use of those things that are necessary to sustain one's life, when one is in imminent peril at a time of ex- treme emergency. From right reason divinely revealed, he asserts27 that it is clear that those who dedicate them- selves to a life of absolute poverty to preach the Gospel and thus lack the means for Obtaining the necessities of life can rightly use those temporal goods given to them by those to whom they preach, in order that they might be able to sustain themselves in their evangelical mission. Of course, for Ockham the Friars Minor would not only qualify for inclusion in the former category, since ipp utendi pppf pgplp_pertains to all men, but in the latter category as well, because they would be seen to fulfill, perhaps uniquely, all the particulars presumably indicated by 93 right reason divinely revealed. The most important thing to notice about all this is the fact that it is natural reason and not God's will that is being given the central place in Ockham's consider- ation of ipp ppli as natural equity. In a further attempt in Chapter 65 to explicate Nicholas III's meaning in EEiiE! Ockham maintains that by denying ipp utendi to the Friars Minor Nicholas III intended only to deny that ipp which was based on ipp_£p£i_and in 28 fact exPressly conceded that ius underwritten by ius pol'. Thus, Ockham here associates ius utendi positivum with ius fori and ius utendi naturale with ius poli. Further, Ockham distinguishes29 various ways in which one might have temporal goods. One might have them through ius fori, in which case one would have them either through leges humanas positivas (human positive laws) or through leges divinas positivas (divine positive laws). Or one might have them through ius poli, in which case one would have the use of temporal goods only at a time of extreme necessity; or in good conscience. Or one might have temporal goods through no ipp and not in good conscience, as in all cases involving the unjust possession of temporal goods. As regards the use Of temporal goods under ipp_ppp- ppplp, Ockham maintains that this ipp cannot be renounced; and yet it is able to be limited in many cases and in a cer- tain sense is able to be abridged or is able to be impeded, 94 . . . . . . 30 as far as its being carried over into action is concerned. What Ockham seems to have in mind here is that although the natural law can and has been limited after the Fall in the SOOpe of its immediate efficacy, nevertheless, this circum- scription does not extend to ius utendi naturale, that aspect of natural law that cannot be renounced. He then asserts that this is still the case even though Isidore of Seville had maintained that under natural law all things are held in common and everyone is free. It Should not be assumed that Ockham is in any way attacking the common medieval position, noted in Part I, concerning man's original state of innocence and of the un- inhibited sway of natural law in this original human condi- tion. On the contrary, Ockham accepts this thesis. He views original sin as the cause of the loss of this preternatural state with the resulting weakening of the original efficacy of the natural law over men's lives. He says there is a ne- cessity:&nrthe enactment of human positive law, in order to avoid a condition of ppmp_homini lpppp, in part, through the establishment of private property.31 What Ockham seems to want to maintain here is that the legal efficacy of the natural law can never be totally nugatory in men's lives. In spite of his fallen, tainted state, man still retains something of his original natural condition. It is this vestige of his original, natural excel- lence that grounds man's capacity to use goods rightly when 95 this disposition is realized through the ius utendi natur- ale at a time of actual extreme necessity. AS far as the particular individual in peril is concerned, in these instances he is legally restored to the original condition in which there was no individual dominium or property rights and all men were free. However, Ockham does not feel that these instances of the actualization of ius utendi naturale are in any way equivalent to the dominion exercised by man in his original state. He criticizes John XXII for making this assumption, Since the occasions on which ius utendi naturale legally restores man to his original condition yet lack the "per- fect power of ruling and disposing of temporal goods" of our "first parents."32 Thus, it is clear that Ockham is not in any way dis- paraging the pervasive medieval position concerning the com- monality of all things and universal human freedom as man's original condition under natural law. He is merely trying to make clear that because of original Sin and the resulting necessity, due to man's fallen state, for both divine and human positive laws being enacted, a certain limitation in the former pervasive efficacy of natural law has been effected. However, natural law can be restored to its orig— inal unrestricted dominance on those obcasions on which the existence of extreme emergencies imperilling human life calls for the temporary suspension of positive laws, as 96 clearly dictated by right reason. Thus, following this same line of thought, Ockham states that not using that temporal thing without which one would not be able to pre- serve one's life could never be Obligatory under any law whatsoever or warranted by any factual consideration.33 Again in Chapter 65, Ockham makes an interesting move.34 He effects a bifurcation of "ius" by dividing the term into ius divinum and ius humanum, but he includes ius naturale pE_poli and ius positivum pp_fori under ius human- pm, Thus, in this instance, he abandons the common Scho- lastic movecflfincluding ius naturale under ius divinum, where the latter is meant to stand for the eternal law of God. What he may have had in mind here was the association of ipp divinum not with the eternal law of God but with divine positive law. But, as we have already seen in the case of right reason divinely revealed and as we will see more clearly as we investigate Ockham's subsequent polem- ical works, this might be a risky assumption to make at this point. He actually draws a rather close parallel between natural law and certain aspects of Holy Scripture, which is, of course, a supposed source of divine positive law. Further, Ockham gives Specific definitions for both "ius ppli" and "ius fori." The former he typifies as "a power in conformity with right reason without any compact," whereas the latter he characterizes as "a power in confor- mity with a covenant, at some times conformed to right 97 reason and at other times not conformed to right reason."35 He proposes that to possess anything rightly is to possess it according to right reason. He distinguishes two ways in which something can be possessed: by EE§.£2£E or by ipp ppli. He asserts36 that all that is possessed by ipp‘ppli is possessed rightly, whereas not everything that is pos- sessed by ius fori is possessed rightly. For example, some- thing can be possessed by ius fori and yet possessed avari- ciously and thus not possessed rightly, whereas this cannot be the case under ipp_ppii. Ockham also maintains37 that licit pppp could not be separated from ipp_utendi when ipp ppli was the justification for the right of use. However, licit pppp could be separated from ius utendi when ius fori was involved, Since the latter could degenerate into legalizing illicit use. Later in the Opus Nonaginta Dierum, to contradict John XXII's assertion that the division of temporal goods, since it is accomplished through human law, is iniquitous and contrary to the equity of natural law, Ockham distin- "38 guishes two senses of "aequitas naturalis. John XXII had specifically maintained that prOperty is wicked, because it was generated through custom of the law of nations and was thus contrary to natural equity. Ockham asserts that such a custom would be contrary to aequitas naturalis as it was in the state of innocence before the Fall. Moreover, he feels that it is contrary to 98 that aequitas naturalis that ought to characterize man's following of reason at all times, that is, ideally speaking, men ought to perfectly conform their acts and habits to rea- sonanzall times. This ideal state is what is being intimated here. However, this custom is not contrary to that aequitas naturalis which exists among men prone to dissension and to doing evil, man's natural condition after the Fall. Thus, Ockham asserts39 that this contrareity is according to genus naturae (genus of nature), which is now a state of human cor- ruption, and not according to genus moris (genus of morals), since such a custom of establishing prOperty rights is not iniquitous or evil. Certainly then, there are a number of reasons for agreeing with parts of H. S. Offler's thesis, noted at the beginning of this chapter. There do seem to be certain sim- ilarities between Ockham's work and that of his Franciscan predecessors. Offler's supposition that Ockham may have relied heavily on Bonagratia of Bergamo for his standard canonical arguments is not implausible, when one compares some of Ockham's arguments with those examined in Part I, which were employed by Bonagratia. Further, Offler's judgment that Ockham's reading in canon law was "casual rather than professional" seems irre- futable if by "professional" he means that Ockham was not a professional canon lawyer, like Bonagratia. But then all non- canon lawyers' reading in canon law could be typified as 99 "casual"; and it is difficult to see what significant claim is being made. Nevertheless, as Lagarde has pointed out,40 it is certainly true that just as John XXII tried to master theology without advanced training in that area, so Ockham tried to do the same things with canon law. 41 However, as Offler indicates, Ockham displayed an easy facility in "finding his way" within canon law even in his earlier non-polemical work the pp sacramento altaris.42 43 Ockham did not pull his Further, as he also indicates, punches about the low esteem in which he regarded canon lawyers who tried to be theologians. Further, Ockham main- tained flat-out in the Opus Nonaginta Dierum that "theology "44 is superior to all legal science. Thus, it seems im- plausible that Ockham would have simply acquiesced to Bona- gratia's pronouncements on law and, more specifically, on natural law, when the issue in question involved theology. And basically, as we have indicated in Part I, although it was expressed in legal terminology, the poverty question was a theological controversy as well. 45 Ockham and Further, as Brampton has pointed out, Bonagratia disagreed on the nature and origin of spiritual and temporal power. And, even though Ockham's debt to Bona- gratia for counsel on legal issues may have been great, none- theless, this did not cause him to subordinate his individual Opinions to those of Bonagratia. As Brampton put it, Bona- gratia was a lawyer and as such dealt in cases where the 100 defense was best served through practical and self-evident arguments. Ockham was a theologian and philOSOpher who was convinced that only theologians were competent to solve problems of a less mundane nature, as, for instance, those involving questions of natural law. 46 Ockham felt that the Also, as Bayley has noted, lawyers were adequately acquainted with the law and its pro- cedural formalities. However, he maintained that only the theologian was competent to disclose the true meaning of the law and the actual intent of its enactors. Bayley asserts that since, in Ockham's estimation, only the theologian was competent to Operate not only in the more mundane lawyers' world of ipp_(law) but also in the aethereal realm of ippf pipip (justice), the theologian alone was able to staff the perennially higher tribunal which judged the ipp positivum humanum (human positive law) and its practitioners. In its central concerns, the poverty question, the defense of the doctrine of Simplex usus facti and the pre- sentation