The Legal History of Chancery
The formalities observed by the different chanceries of medieval Europe, which are to be learned from a study of the documents issued by them, are so varied and often so minute, that it is impossible to give a full account of them within the limits of the present article. We can only state some of the results of the investigations of students of diplomatic.
The chancery which stands first and foremost is the papal chancery. On account of its antiquity and of its steady development, it has served as a model for the other chanceries of Europe. Organized in remote times, it adopted for the structure of its letters a number of formulas and rules which developed and became more and more fixed and precise from century to century. The Apostolic court being organized from the first on the model of the Roman imperial court, the early pontiffs would naturally have collected their archives, as the emperors had done, into scrinia. Pope Julius I., a.d. 337-353, reorganized the papal archives under an official schola notariorum, at the head of which was a primicerius notariorum. Pope Damasus, a.d. 366-384, built a record office at the Lateran, archivium sanctae Romanae ecclesiae, where the archives were kept and registers of them compiled. The collection and orderly arrangement of the archives provided material for the establishment of regular diplomatic usages, and the science of formulae naturally followed.
For the study of papal documents four periods have been defined, each successive period being distinguished from its predecessor by some particular development of forms and procedure. The first period is reckoned from the earliest times to the accession of Leo IX., a.d. 1048. For almost the whole of the first eight centuries no original papal documents have survived. But copies are found in canonical works and registers, many of them false, and others probably not transcribed in full or in the original words; but still of use, as showing the growth of formulas. The earliest original document is a fragment of a letter of Adrian I., a.d. 788. From that date there is a series, but the documents are rare to the beginning of the 11th century, all down to that period being written on papyrus. The latest existing 304 papyrus document in France is one of Sergius IV., a.d. 1011; in Germany, one of Benedict VIII., a.d. 1022. The earliest document on vellum is one of John XVIII., a.d. 1005. The nomenclature of papal documents even at an early period is rather wide. In their earliest form they are Letters, called in the documents themselves, litterae, epistola, pagina, scriptum, sometimes decretum. A classification, generally accepted, divides them into: 1. Letters or Epistles: the ordinary acts of correspondence with persons of all ranks and orders; including constitutions (a later term) or decisions in matters of faith and discipline, and encyclicals giving directions to bishops of the whole church or of individual countries. 2. Decrees, being letters promulgated by the popes of their own motion. 3. Decretals, decisions on points of ecclesiastical administration or discipline. 4. Rescripts (called in the originals preceptum, auctoritas, privilegium), granting requests to petitioners. But writers differ in their terms, and such subdivisions must be more or less arbitrary. The comprehensive term “bull” (the name of the leaden papal seal, bulla, being transferred to the document) did not come into use until the 13th century.
Copies of papal deeds were collected into registers or bullaria. Lists showing the chronological sequence of documents are catalogues of acts. When into such lists indications from narrative sources are introduced they become regesta (res gestae): a term not to be confused with “register.”
Clearness and conciseness have been recognized as attributes of early papal letters; but even in those of the 4th century certain rhythmical periods have been detected in their composition which became more marked under Leo the Great, a.d. 440-461, and which developed into the cursus or prose rhythm of the pontifical chancery of the 11th and 12th centuries.
In the most ancient deeds the pope styles himself Episcopus, sometimes Episcopus Catholicae Ecclesiae, or Episcopus Romanae Ecclesiae, rarely Papa. Gregory I, a.d. 590, was the first to adopt the form Episcopus, servus servorum Dei, which became general in the 9th century, and thenceforth was invariable.
The second period of papal documents extends from Leo IX. to the accession of Innocent III., a.d. 1048-1198. At the beginning of the period formulae tended to take more definite shape and to become fixed. In the superscription of bulls a distinction arose: those which conferred lasting privileges employing the words in perpetuum to close this clause; those whose benefaction was of a transitory character using the form of salutation, salutem et apostolicam benedictionem. But it was under Urban II., a.d. 1088-1099, that the principal formulae became stereotyped. Then the distinction between documents of lasting, and those of transitory, value became more exactly defined; the former class being known as greater bulls, bullae majores (also called privilegia), the latter lesser bulls, bullae minores. The leading characteristics of the greater bulls were these: The first line containing the superscription and closing with the words in perpetuum (or, sometimes, ad perpetuam, or aeternam, rei memoriam) was written in tall and slender ornamental letters, close packed; the final clauses of the text develop with tendency to fixity; the pope’s subscription is accompanied with the rota on the left and the benevalete monogram on the right; and certain elaborate forms of dating are punctiliously observed. The introduction of subscriptions of cardinals as witnesses had gradually become a practice. Under Victor II., a.d. 1055-1057, the practice became more confirmed, and after the time of Innocent II., a.d. 1130-1145, the subscriptions of the three orders were arranged according to rank, those of the cardinal bishops being placed in the centre under the papal subscription, those of the priests under the rota on the left, and those of the deacons under the benevalete on the right. In the lesser bulls simpler forms were employed; there was no introductory line of stilted letters; the salutation, salutem et apostolicam benedictionem, closed the superscription; the final clauses were shortened; there was neither papal subscription, nor rota, nor benevalete; the date was simple.
From the time of Adrian I., a.d. 772-795, the system of double dating was followed in the larger bulls. The first date was written by the scribe of the document, scriptum per manum N. with the month (rarely the day of the month) and year of the indiction. The second, the actual date of the execution of the deed, was entered (ostensibly) by some high official, data, or datum, per manum N., and contained the day of the month (according to the Roman calendar), the year of indiction, the year of pontificate (in some early deeds, also the year of the empire and the post-consulate year), and the year of the Incarnation, which, however, was gradually introduced and only became more common in the course of the 11th century. For example, a common form of a full date would run thus: Datum Laterani, per manum N., sanctae Romanae ecclesiae diaconi cardinalis, xiiii. kl. Maii, indictione V., anno dominicae Incarnationis mxcvii., pontificatus autem domini papae Urbani secundi Xº. The simpler form of the date of a lesser bull might be: Datum Laterani, iii. non. Jan., pontificatus nostri anno iiii.
By degrees the use of the lesser bulls almost entirely superseded that of the greater bulls, which became exceptional in the 13th century and almost ceased after the migration to Avignon in 1309. In modern times the greater bulls occasionally reappear for very solemn acts, as bullae consistoriales, executed in the consistory.
The third period of papal documents extends from Innocent III. to Eugenius IV., a.d. 1198-1431. The pontificate of Innocent III. was a most important epoch in the history of the development of the papal chancery. Formulas became more exactly fixed, definitions more precise, the observation of rules and precedents more constant. The staff of the chancery was reorganized. The existing series of registers of papal documents was then commenced. The growing use of lesser bulls for the business of the papal court led to a further development in the 13th century. They were now divided into two classes: Tituli and Mandamenta. The former conferred favours, promulgated precepts, judgments, decisions, &c. The latter comprised ordinances, commissions, &c., and were executive documents. There are certain features which distinguish the two classes. In the tituli, the initial letter of the pope’s name is ornamented with openwork and the other letters are stilted. In the mandamenta, the initial is filled in solid and the other letters are of the same size as the rest of the text. In the tituli, enlarged letters mark the beginnings of the text and of certain clauses; but not in the mandamenta. In the former the mark of abbreviation is a looped sign; in the latter it is a horizontal stroke. In the former the old practice of leaving a gap between the letters s and t, and c and t, whenever they occur together in a word (e.g. is te, sanc tus), and linking them by a coupling stroke above the line is continued; in the latter it disappears. The leaden bulla attached to a titulus (as a permanent deed) is suspended by cords of red and yellow silks; while that of a mandamentum (a temporary deed) hangs from a hempen cord.
In the fourth period, extending from 1431 to the present time, the tituli and mandamenta have continued to be the ordinary documents in use; but certain other kinds have also arisen. Briefs (brevia), or apostolic letters, concerning the personal affairs of the pope or the administration of the temporal dominion, or conceding indulgences, came into general use in the 13th century in the pontificate of Eugenius IV. They are written in the italic hand on thin white vellum; and the name of the pope with his style as papa is written at the head of the sheet, e.g. Eugenius papa iiii. They are closed and sealed with Seal of the Fisherman, sub anulo Piscatoris. Briefs have almost superseded the mandamenta. The documents known as Signatures of the court of Rome or Latin letters, and used principally for the expedition of indulgences, were first introduced in the 15th century. They were drawn in the form of a petition to the pope, which he granted by the words fiat ut petatur written across the top. They were not sealed; and only the pontifical year appears in the date. Lastly, the documents to which the name of Motu proprio is given are also without seal and are used in the administration of the papal court, the formula placet et ita motu proprio mandamus being signed by the pope.
The character of the handwriting employed by the papal chancery is discussed in the article Palaeography. Here it will be enough to state that the early style was derived from the Lombardic hand, and that it continued in use down to the beginning of the 12th century; but that, from the 10th century, 305 owing to the general adoption of the Caroline minuscule writing, it began to fall and gradually became so unfamiliar to the uninitiated, that, while it still continued in use for papal bulls, it was found necessary to accompany them with copies written in the more intelligible Caroline script. The intricate, fanciful character, known as the Litera sancti Petri, was invented in the time of Clement VIII., a.d. 1592-1605, was fully developed under Alexander VIII., 1689-1691, and was only abolished at the end of the year 1878 by Leo XIII.
Of the chancery of the Merovingian line of kings as many as ninety authentic diplomas are known, and, of these, thirty-seven are originals, the earliest being of the year 625. The most ancient examples were written on papyrus, vellum superseding that material towards the end of the 7th century. All these diplomas are technically letters, having the superscription and address and, at the foot, close to the seal, the valedictory benevalete. They commence with a monogrammatic invocation, which, together with the superscription and address written in fanciful elongated letters, occupies the first line. The superscription always runs in the form, N. rex Francorum. The most complete kinds of diplomas were authenticated by the king’s subscription, that of the referendarius (the official charged with the custody of the royal seal), the impression of the seal, and exceptionally by subscriptions of prelates and great personages. The royal subscription was usually autograph; but, if the sovereign were too young or too illiterate to write, a monogram was traced by the scribe. The referendary, if he countersigned the royal subscription, added the word optulit to his own signature; if he subscribed independently, he wrote recognovit et subscripsit, the end of the last word being usually lost in flourishes forming a ruche. The date gave the place, day, month and year of the reign. The Merovingian royal diplomas are of two classes: (1) Precepts, conferring gifts, favours, immunities and confirmations, entitled in the documents themselves as praeceptum, praeceptio, auctoritas; some drawn up in full form, with preamble and ample final clauses; others less precise and formal. (2) Judgments (judicia), which required no preamble or final clauses as they were records of the sovereign’s judicial decisions; they were subscribed by the referendary and were sealed with the royal seal. Other classes of documents were the cartae de mundeburde, taking persons under the royal protection, and indiculi or letters transmitting orders or notifying decisions; but no examples have survived.
The diplomas of the early Carolingians differed, as was natural, but little from those of their predecessors. As mayors of the palace, Charles Martel and Pippin took the style of vir inluster. On becoming king, Pippin retained it; Pippinus, vir inluster, rex Francorum, and it continued to be part of the royal title till Charlemagne became emperor. The royal subscription was in form of a sign-manual or mark, but Charlemagne elaborated this into a monogram of the letters of his name built up on a cross. In 775 the royal title of Charlemagne became Carolus, gratia Dei rex Francorum et Langobardorum, ac patricius Romanorum, the last words being assumed on his visit to Rome in 774. On becoming emperor in 800, he was styled Imperator, Romanum gubernans imperium, rex Francorum et Langobardorum. It is to be noticed that thenceforth his name was spelt with initial K (as it was on the monogram), having previously been written with C in the deeds. Most of his diplomas were authenticated by the subscription of the chancellor and impression of the seal. A novelty in the form of dating was also introduced, two words, datum (for time) and actum (for place), being now employed. The character of the writing of the diplomas, founded on the Roman cursive hand, which had become very intricate under the Merovingians, improved under their successors, yet the reform which was introduced into the literary script hardly affected the cursive writing of diplomatic until the latter part of Charlemagne’s reign. The archaic style was particularly maintained in judgments, which were issued by the private chancery of the palace, a department more conservative in its methods than the imperial chancery. It was in the reign of Louis Debonair, a.d. 814-840, that the Carolingian diploma took its final shape. A variation now appears in the monogram, that monarch’s sign-manual being built up, not on a cross as previously, but on the letter H., the initial of his name Hludovicus, and serving as the pattern for successive monarchs of the name of Louis.
In the Carolingian chancery the staff was exclusively ecclesiastical; at its head was the chancellor, whose title is traced back to the cancellarius, or petty officer under the Roman empire, stationed at the bar or lattice (cancelli) of the basilica or other law court and serving as usher. As keeper of the royal archives his subscription was indispensable for royal acts. The diplomas were drawn up by the notaries, an important body, upon whom devolved the duty of maintaining the formulae and traditions of the office. It has been observed that in the 9th century the documents were drawn carefully, but that in the 10th century there was a great degeneration in this respect. Under the early Capetian kings there was great confusion and want of uniformity in their diplomas; and it was not until the reign of Louis VI., a.d. 1108, that the formulae were again reduced to rules.
Imperial German chancery
The acts of the imperial chancery of Germany followed the patterns of the Carolingian diplomas, with little variation down to the reign of Frederick Barbarossa, a.d. 1152-1190. The sovereign’s style was N. divina favente clementia rex; after coronation at Rome he became imperator augustus. At the end of the 10th century, Otto III. developed the latter title into Romanorum imperator augustus. Under Henry III., and regularly from the time of Henry V., a.d. 1106-1125, the title before coronation has been Romanorum rex. The royal monogram did not necessarily contain all the letters of the name; but, on the other hand, from the year 976, it became more complicated and combined the imperial title with the name. For example, the monogram of Henry II. combines the words Henricus Romanorum imperator augustus. The flourished ruches also, as in the Frankish chanceries, were in vogue. Eventually they were used by certain of the chancellors as a sign-manual and took fanciful shapes, such as a building with a cupola, or even a diptych. They disappear early in the 12th century, the period when in other respects the chancery of the Holy Roman Empire largely adopted a more simple style in its diplomas. Lists of witnesses, in support of the royal and official subscriptions, were sometimes added in the course of the 11th century, and they appear regularly in documents a hundred years later.
Diplomatic in England
For the study of diplomatic in England, material exists in two distinct series of documents, those of the Anglo-Saxon period, and those subsequent to the Norman Conquest. There is an enty about diplomatic in the UK Encyclopedia of Law.
The forms adopted in the royal chanceries were naturally imitated in the composition of private deeds which in all countries form the mass of material for historical and diplomatic research. The student of English diplomatic will soon remark how readily the private charters, especially conveyances of real property, fall into classes, and how stereotyped the phraseology and formulae of each class become, only modified from time to time by particular acts of legislation. There is an enty about diplomatic in the UK Encyclopedia of Law, including information about private deeds.(1)
Embracing mainstream international law, this section on chancery explores the context, history and effect of the area of the law covered here.
- Court of Chancery
- The entry “chancery” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press
Notes and References
- Encyclopedia Britannica (1911)
- Legal Biography
- Legal Traditions
- Diplomatic Documents
- Mediaval Law
- Historical Laws
- History of Law
- Chancery in the Oxford International Encyclopedia of Legal History (Oxford University Press)
- The Oxford Encyclopedia of American Political and Legal History (Oxford University Press)
- A. Giry, Manuel de diplomatique (1894);
- F. Leist, Urkundenlehre (1893);
- J. M. Kemble, Codex diplomaticus aevi Saxonici (1839-1848);
- Recueil de fac-similés à l’usage de l’École des Chartes (not published) (1880, etc.);
- Chancery in the Dictionary of Concepts in History, by Harry Ritter
- A Short History of Western Legal Theory, by John Kelly