This paper was first presented at the Conference on Medieval Studies for 1969 at Western Michigan University. The author wishes to acknowledge that much of the research was made possible by a grant from the Johnson Fund of the American Philosophical Society. He also wishes to acknowledge the helpful suggestions of Professor John Benton.

1. I am using “France” here in the limited sense of the day, meaning roughly the area where the king's authority was effective.

2. Gratian, , Decretum, c. 2, q. 6, c. 4–9, 14–17Google Scholar, in Corpus Iuris Canonici, ed. A. F. Friedberg, 2 vols.(Leipzig, 1879–1881);Google ScholarAmanieu, A., “Appel,” Dictionnaire du droit canonique, ed. Naz, R., 1 (Paris, 1935)Google Scholar, cols. 789–791.

3. Patrologia Latina, 214, cols., 1130–34. See Tierney, Brian, “‘Tria Quippe Distinguit Iudicia …’ A Note on Innocent III's Decretal Per Venerabilem,” Speculum, 37 (1962) 48–59.CrossRefGoogle Scholar

4. The following is based on papal letters and on charters recording settlements, as well as on Tessier, Georges, “Note sur un manuel à l'usage d'un officier de la Cour pontificale (XIIIe siècle”, Études d'histoire du droit canonique [Mélanges Le Bras], 2 vols. (Paris, 1965), 1, pp. 357–371.Google Scholar

5. From the time of Gratian, papal deeretals governing appeals and judges delegate proliferated, affirming that judges delegate acted in the pope's behalf and had authority which superseded even that of bishops in matters concerning the delegated case. On the other hand, the popes undercut their own delegates by accepting appeals from their judgments. Lucius III wrote that even the phrase appelatione remota should not prevent the recusation of a delegate for “any just reason” (X. 2, 28, 36, in Corpus Iuris Canonici). Similarly, Innocent III allowed that a judgment made in his name could be appealed and delegated to new judges, even though the letter of the first delegation had expressly forbidden further appeal. By making the second delegation, he said, “we seem to accept the appeal and revoke the jurisdiction of the earlier judges” (X. 1, 29, 28).

A summary of canon law on judges delegate is provided in George Pavloff, G., Papal Judge Delegates at the Time of the Corpus Iuris Canonici (Washington, D. C., 1963).Google Scholar Pavloff stresses Innocent's efforts to restrain appeals (pp. 24–29, 53), but his argument rests on decretals and canons which seem to have had little effect in practice. For a summary of the way in which canonists developed the idea of “recusation,” that is, appealing on the grounds of the judge's qualifications or impartiality, see Helmholz, Richard, “Canonists and Standards of Impartiality for Papal Judges Delegate,” Traditio, 25 (1969), 386–404.CrossRefGoogle Scholar

6. Cartulaire des abbayes de Saint-Pierre de la Couture et de Saint-Pierre de Solesmes, ed. Benedictines of Solesmes (Le Mans, 1881), p. 183.Google Scholar

7. Recueil des actes de Philippe Auguste, Roi de France, ed. H. Delaborde, et. al., 3 vols.(Paris, 1916-1966), 2, p. 202.Google Scholar Confidence in the ordeal was fading fast, though; see Baldwin, John W., “The Intellectual Preparation for the Canon of 1215 against Ordeals,” Speculum, 36 (1961), 613–636.CrossRefGoogle Scholar

8. For example: the judgment of Innocent in favor of W., knight of Tigné, against the chapter of Angers (PL, 216, cols. 637–9); the judgment of three judges delegate in favor of Count Matthew of Beaumont against the priest Gaufridus, imposing perpetual silence on the priest concerning the matter (Archives Nationales J. 168, no. 33 (notice in Layettes du trésor des chartes, ed. Alexandre Teulet, et al., 5 vols. (Paris, 1863-1909), 1, p. 190, #455).Google Scholar

9. Vitray-in-Beauce or Vitray-sous-Brezolles.

10. Pouancé or Ponceaux.

11. Archives Départmentales, Eure-et-Loir, H. 4487. 2 pieces, original: decision of judges delegate, dated 1206, and the undated record of testimony of witnesses presented by the abbess. For a similar record of testimony, see Cartulaire … de Solesmes, pp.197–198.

12. See for example: the report to Philip Augustus from members of a royal inquest into the respective rights of the countess and the bishop of Le Mans, ca. 1217 (Layettes, I, 455); Philip's judgment based on an inquest into the rights of the archbishop of Sens, dated September, 1217 (original, Yonne, A. D., G. 95, no. 6 Inotice of copy in Léopold Delisle, Catalogue des actes de Philippe-Auguste (Paris, 1856), #1755).Google Scholar

13. Amanieu, A., “Arbitrage,”Dictionnaire de droit canonique, 1 (Paris, 1935)Google Scholar, cols 862–895.

14. For a thorough discussion of arbitration, see the excellent work by Bongert, Yvonne, Recherches sur les cours laiques du Xe au XIIIe siècle (Paris, 1949), pp. 159–182.Google Scholar

15. Cartulaire de l'abbaye de Saint-Corneille de Compiègne, ed. Morel, 2 vols. (Montdidier, 1904-1909), 1, pp. 408–409, 445–447; 2, pp. 17–20.Google Scholar

16. Layettes, 1, p. 392.Google Scholar

17. Ibid., 1, pp. 422–423.

18. A. N. RI, 114. Eighteenth-century MS copy, “Extrait du Cartulaire de L'hotel de Ville d'Amiens Cotté A,” fol. 152.

19. Recueil des actes, III, 306–309; 07, 1211Google Scholar. The settlement is introduced: “Arbitratum fuit in curia nostra quod …”

20. Yonne, A. D., G. 95, no. 5. Notice of Philip Augustus, original, July, 1216; copy cited in Catalogue des actes, ed. Delisle, #1676.Google Scholar

21. “From the Royal Court to the Court of Rome: The Suit of the Serfs of Rosny-SousBois,” trans. and ed. Sylvia Thrupp in Change in Medieval Society (New York, 1964), pp. 3–13.Google Scholar

22. Brentano, Robert, York Metropolitan Jurisdiction and Papal Judges Delegate (1279–1296), (Berkeley and Los Angeles, 1959), pp. 151–161Google Scholar; Two Churches: England and Italy in the Thirteenth Century (Princeton, 1968), pp. 133–168.Google Scholar

23. A. D. Yonne, G. 1498. These documents consist of the following: 1. The judgment of Walter, abbot of Saint-Pierre-le-Vif, and Peter, abbot of Saint-Jean-lès-Sens, both in Sens (dated July, 1197). Their decision is in favor of the clerics. 2. An undated notice by the same two to the clergy that they should observe the excommunication and interdict levied against Godfrey. 3. A bull of Innocent III to the archdeacon and dean of Sens telling them to enforce the sentence (date obscure, but from Innocent's first year). 4. A second bull of Innocent to the bishop, dean and cantor of Auxerre, mostly illegible. 5. Notice of Archbishop Peter of Sens that he was excommunicated Godfrey at the direction of the pope, who has committed the case to him (dated 1205). This notice quotes in full a papal letter of 12, 22, 1204, which reviews the case and commits it to the archbishop.

24. Cartulaire de Saint -Jean-en-Vallée de Chartres, ed. René Merlet (Chartres, 1906), pp. 73–74.Google Scholar

25. Letter to Cardinal Haimeric, quoted by James, Bruno S., Saint Bernard of Clairvaux (New York, 1957), p. 98.Google Scholar

26. Recueil des chartes de l'abbaye de Cluny, ed. Auguste Bernard and Alexandre Bruel, 6 vols. (Paris, 1876-1903), V, 562–3.Google Scholar

27. Brooke, Christopher, The Twelfth Century Renaissance (New York, 1970), pp. 82–83;Google ScholarMorey, Adrian and Brooke, C. N. L., Gilbert Foliot and His Letters (Cambridge, 1965), p. 244Google Scholar; Duggan, Charles, Twelfth-Century Decretal Collections and Their Importance in English History (London, 1963), pp. 118–151.Google Scholar

28. Quoted by Stenton, Doris M., English Society in the Early Middle Ages (1066–1307), 2nd. ed. (Harmondsworth, 1952), p. 39.Google Scholar

29. Quoted by Bloch, “Royal Court to the Court of Rome,” p. 4.

30. “Count Baldwin IX of Flanders, Philip Augustus, and the Papal Power,” Speculum, 37 (1962), 79–89.CrossRefGoogle Scholar

31. The importance of Innocent's contribution to canon law in these areas can be seen in the following. Of the 43 decretals on judges delegate included in the Decretales of Gregory IX, 15 were by Innocent (X. 1, 29, 22–36). Of the 73 decretals on appeals and related matters, Innocent contributed 19 (X. 2, 28, 43–61).

32. Canons 35, 36, 37, 38, 47, 48: Sacrorum Conciliorum Nova et Amplissima Collectio, ed. J. D. Mansi, et al., 22 (Paris, 1902)Google Scholar, cols. 1022–35.

33. Quoted by Brentano, , York Metropolitan Jurisdiction, p. 163.Google Scholar

34. Moorman, J. R. H., Church Life in England in the Thirteenth Century (Cambridge, 1955), p. 236.Google Scholar

35. Besides the cartularies already cited, see: Cartulaire de l'abbaye de Notre-Dame d'Ourscamp de l'ordre de Citeaux, fondée en 1129 au diocèse de Noyon, ed. M. Peigné-Delacourt (Amiens, 1865)Google Scholar; Cartulaire du chapitre de la Cathédrale d'Aumiens, introd. by J. Roux, 2 vols. (Amiens and Paris, 1905-1912)Google Scholar; Cartulaire de Sainte-Croix d'Orléans (814–1300) ed. Joseph Thillier and Eugéne Jarry (Paris, 1906)Google Scholar; Marmoutier; Cartulaire Blésois; ed. Ch. Métais (Blois, 1889-1891)Google Scholar; Antiquus Cartularius Ecclesiae Baiocensis (Livre Noir), ed. V Bourrienne (Rouen and Paris, 1902-1903)Google Scholar; Cartulaire de l'église d'Autun, ed. A. de Charmasse, 2 vols. (Paris and Autun, 1865-1900)Google Scholar; Cartulaire du prieuré de la Charité-sur-Loire, ed. René de Lespinasse (Nevers and Paris, 1887).Google Scholar These cartularies have three characteristics: they have a fairly large number of entries from the twelfth and thirteenth centuries, they are drawn from an area which contemporaries might consider “France,” and they were readily available to me. In classifying settlements, I have used the following principles. A case has been credited to an authority, either local or papal, if it has been settled by him or in his presence (coram, in presentia). Cases settled independently by the parties and then presented to an authority for confirmation are not credited to that authority. I have classified as “mediation” not only those cases in which mediation is explicity mentioned but also those settled de bonorum virorum consilio. A settlement reached before an authority, though, was credited to him, even though others provided consilium. A few cases presented the special difficulty of an authority describing his role as mediating. I decided these somewhat arbitrarily. When Innocent himself described a settlement reached nobis mediantibus, I credited it to papal justice (Recueil … de Cluny, 6, pp. 3–5)Google Scholar; but a case mediation by the bishop of Autum, the archbishop of Lyons and others credited to mediation (Cartulaire … d'Autun, 1, pp. 178–79).Google Scholar I have classified as “arbitration” those cases in which the formal language of arbitration is used, even if the arbitrator is a prince, a prelate or a judge delegate. Incidentally, of the 182 cases classified as “arbitration or mediation,” 85 were arbitration and 97 were mediation. I have excluded all settlements in which no third party is explicitly mentioned as aiding in the settlement and have excluded every compromisio, that is, every agreement merely to submit to arbitration. Some of the cases involving papal authority were especially difficult to classify. A few were credited to local authorities, even though the local authority was also a papal legate; two were credited to arbitration even though they had probably been given to arbitrators at the instigation of judges delegate (Cartulaire … de Saint-Corneille, 1, pp. 252–4, 353–4).Google Scholar Finally, the charters from various parts of France are remarkably similar in procedures and formulae. The similarity suggests that the limited sample I have used is indeed representative and is the work of a class of clergy sharing a common attitude toward judicial forums and procedures.

36. For examples of cases which judges delegate had failed to settle, see: arbitrated settlement of November, 1213, in Cartulaire de l'abbaye de Saint-Père de Chartres, ed. M. Guérard, 2 vols. (Paris, 1840), 2, p. 676Google Scholar; private settlement of 1202, A. N. J. 203, no. 5, notice in Layettes, 1, p. 240Google Scholar; private settlement of 1212 in A. N. J. 731, no. 19, text in Layettes, 1, p. 383Google Scholar; settlement by bishop in 1217 with consent of both parties, MS Register of the Chapter of Evreux, A. D. Eure, G. 122, fol. 31vo-32ro, nos. 138–141.

37. For substantiation of this picture, see Bongert, , Recherches pp. 291–303.Google Scholar

38. Two Churches, p. 171. See also York Metropolitan Jurisdiction, pp. 164 and 176.

39. For appeals, see above, note 31. For forgeries, see Innocent's letters, PL, 214, cols. 202–203; 215, cols. 1113–14; 216, col.550; and Poole, R. L., Lectures on the History of the Papal Chancery Down to the Time of Innocent III (Cambridge, 1915), pp. 151–162.Google Scholar For letters fraudently obtained, see PL, 215, cols. 1176–78.

40. Canon 48 of Lateran IV (X. 2, 28, 61) shows that Innocent recognized that arbitration could be used to remedy an unwieldy system of appeals. It provided that if someone wished to appeal from an ecclesiastical judge as suspect, he should present his reason to the judge, and then arbitrators should be chosen to see if the reason was valid. (This provision was a new application of an old procedure for settling a dispute between someone and his bishop [Decretum, 11, 1, 46]). It may conceivably have some connection with the decline of cases settled by papal judges in the thirteenth century and the corresponding rise of those settled by arbitration, but I know of no direct evidence to that effect. On the other hand, had the popes really wanted to restrain appeals, they could have instructed judges ordinary and delegate to compel litigants to use arbitrators rather than appeal to Rome, and they then could have refused to accept appeals which might better have gone to arbitration. In this way, they might have captured for papal justice some of the efficacy and good repute of arbitration.

41. Fliche, Augustin, Christine Thouzellier and Yvonne Azais, La chrétiéné romaine (1198–1274), (Paris, 1950), pp. 150–152 (Vol. 10Google Scholar of Histoire de l'église, ed. A. Fliche et al.).Google Scholar

42. York Metropolitan Jurisdiction, pp. 175–178.

43. Le XIII siècle Européen (Paris, 1968), p. 265.Google Scholar

44. From Becket to Langton (Manchester, 1956), pp. 73, 99.Google Scholar Without flatly condemning the whole system, Cheney gives a good summary of its failures (Ibid., pp. 47–75). He offers additional restrained criticism in “England and the Roman Curia under Innocent III,” Journal of Eeclesiastical History, 18 (1967), 173–186.CrossRefGoogle Scholar

45. Correspondance d'Adam, abbéde Perseigne (1188–1221), ed. and trans. by J. Bouvet, 3rd fasc. (Le Mans, 1953), p. 119.Google Scholar About 1227, the monks of Notre-Dame d'Ourscamp sought and obtained from Pope Honorius III an exemption from service in the papal courts on the grounds that such service disrupted their monastic life (Cartulaire … d'Ourscamp, p. 301). Whether this request reflected a disenchantment with papal justice is impossible to say.

46. Cartulaire … de Saint-Corneille, 2, pp. 242–3.Google Scholar

47. The introductory phrases of many twelfth-century charters refer to the importance of putting agreements in writing; for example: “Quum gestarum rerum memoria quae litteris annotata fuerit, omnem litem et omnem calumpniam dirimere, omnemque dubitationem solet auferre, iccirco notitiae futurorum seribere euravimus placitum definitum quod canonici ecclesiae Eduensis sancti Nazarii habuerunt eum Hugone de Verreiis” (Cartulaire … d' Autun, 1, p. 93Google Scholar; dated 1122).