University of Rochester Library Bulletin: Constance and its Aftermath, The Legacy of Conciliar Theory

Volume XXXX • 1987-88
Constance and its Aftermath: The Legacy of Conciliar Theory

On Friday, St. George's Eve, there was another session. In this session Our Holy Father Pope Martin gave to all who were present at the Council of Constance permission to leave and likewise absolution from penalty and guilt. Afterward he gave the people his blessing in the upper court. Our lord King stood beside him, dressed as an evangelist, wearing his imperial crown and holding the orb in his hand while a man held a naked sword before him. Cardinal Conti proclaimed to the people in Latin the indulgence of seven years for mortal sins and seven Lents. Master Peter repeated it in German, and everyone was given permission to go home.

This passage occurs in Ulrich Richental's Chronicle of the Council of Constance.1 It describes the closing session of that great council in the German city of Constance (Konstaanz), a session which took place on April 22, 1418, over five and a half centuries ago and at a moment when the new pope, Martin V, with plague moving in on the city, was anxious to speed the Council Fathers on their way and himself prepare to make his own departure.

Constance may not be exactly a household word—not even (as yet) in the histories of representative assemblies. But it deserves a better press than it has usually received. In size alone it was one of the most imposing of medieval gatherings. Richental, who had a taste for statistics, listed in addition to Popes John XXIII and Martin V and a host of other officials, temporal and spiritual, 5 patriarchs, 33 cardinals, 47 archibishops, 145 bishops, 93 suffragan bishops, 132 abbots, 155 priors, 217 doctors of theology, 361 doctors of both laws, 5,300 "simple priests and scholars," 3,000 and more merchants, shopkeepers, craftsmen, musicians and players, and over 700 "harlots in brothels . . . who hired their own houses"—these last to be distinguished, he hastens to add, from those "who lay in stables and wherever they could, beside the private ones whom I could not. "2

Nor was it size alone that distinguished the Council. It was the greatest and certainly the most memorable of the general assemblies held by the medieval Latin Church (i.e., Church of the West). It assembled at a time of supreme constitutional crisis in the life of that Church, at a time when what came later to be known as the Great Schism of the West had endured already for almost fifty years. By that time the most promising attempt to end that schism had resulted only in the addition of a third line of claimants (the Pisan line) to a papal title already long contested by two rival lines of popes based respectively at Avignon and at Rome. Constance met that crisis and resolved that dilemma. It did so by judging and deposing two of the papal claimants, John XXIII (Pisan line) and Benedict XIII (Avignonese), by accepting the resignation of the third, Gregory XII (Roman), and by proceeding to elect a new one, Martin V— the first pope in fifty years to be able to command the allegiance of the whole Latin Church. And if the Council was able and willing to take those critical steps, it was so precisely because it had committed itself to the ecclesiological position which has come to be called "Conciliarist" and which was espoused at Constance most notably by the French theologians Jean Gerson (1363-1429) and Pierre d'Ailly (1350-1420) and by the Italian canonist Francesco Zabarella (1360-1417).

Conciliar theory has often been misunderstood. It took several forms and it is particularly important to avoid confusing the centrist or moderate form dominant at Constance with that espoused earlier on by the radical Italian political thinker, Marsiglio of Padua (d. ca. 1342). Whereas Marsiglio rejected the papal monarchy as such and called into question the divine foundation of the whole hierarchical structure of bishops, archibishops and pope, the Conciliarists of Constance, despite all differences of viewpoint among them, did neither. Nor did they concern themselves with the potestas ordinis, the truly sacerdotal, sacramental power claimed by the priesthood by virtue of priestly ordination or episcopal consecration. For the pope, after all, did not claim to possess that power in any higher degree than did the other bishops. Their concern, instead, was with the potestas jurisdictionis—the administrative, juridical, magisterial, if you wish, governmental power—and with the precise manner of its distribution throughout the ranks of the faithful. Even on this narrower question they took more than one position, but common to all of them was the belief that the pope, however divinely instituted his office, was not an absolute monarch but in some sense a constitutional ruler; that he possessed a merely ministerial authority delegated to him by the community of the faithful for the good of the whole Church; that that community had not exhausted its inherent authority in the mere act of electing its ruler but had retained whatever residual power was necessary to prevent its own subversion or destruction; that it could exercise that power via its representatives assembled in a general council, could do so in certain critical cases even against the wishes of the pope, and, in such cases, could proceed if need be to judge, chastise and even depose the pope. Their papal vision, then, was one of a Whig pope. Or, perhaps more accurately, theirs was a Whiggish vision of the papal monarchy.

The moderate version of this theory which Gerson, d'Ailly and Zabarella espoused, while it eschewed any suggestion that the council should encroach as a matter of course upon the normal day-to-day working of the papal monarchy and acknowledged that the fullness of power is normally exercised by the pope, insisted, nonetheless, that the fullness of power is to be used for no other end but for the good of the whole Church, and that the Church or the general council representing it retains, therefore, the right to prevent its abuse. This right they conceived as being exercised both under emergency conditions and on a more continuing basis. The emergency situation most readily envisaged (though by no means the only one) was that which occurs when the pope lapses into heresy, or, by being the occasion of schism, endangers the faith of the whole Church. And thus they could claim for the Council of Constance in the crisis confronting it an authority superior to that of the pope, enabling it to judge, correct and even to depose him. About the exercise of this inherent ecclesiastical authority under non-emergency conditions, these Conciliar theorists are not as precise, but they certainly envisaged some sort of continuing role for the general council in matters concerning the faith and in decisions affecting the general state or well-being of the Church. So that, at least for d'Ailly and for Gerson, general councils regularly assembled were to become a permanent rather than an exceptional part of the structure of Church government.

Constance had several moments of high drama, the most poignant being the condemnation as a heretic and subsequent burning at the stake of the Bohemian reformer, Jan Hus, the great Czech national hero. Modern historical scholarship has come increasingly to portray Hus, not as some proto-Protestant "forerunner," but as an essentially orthodox Catholic figure delivered to his cruel fate by a tragic confluence of adverse circumstance and flawed character. The adverse circumstance was the implacable antagonism of his German opponents at Prague. The character flaw was the disconcerting (and oddly academic) ease with which he himself was willing to reach for his principles, and to do so in conflicted situations where men of less abstractly theoretical but perhaps more reflective bent would have shown a more sober appreciation of the density, the complexity, the highly contingent particularity of human affairs.

But if the condemnation and execution of Hus shadowed the achievement of the prelates assembled at Constance, their decisive response to another moment of high drama ensured for them a more honored (though, as we shall see, ambivalently honored) place in history. That moment was occasioned by the conclusion of John XXIII, the Pisan pope who had convoked the council, that he might actually be called upon to give up his papal office if he did not do something dramatic to disrupt the Council's activities and call into question its legitimacy. And that something was his flight in disguise from Constance to Schaffhausen on March 20, 1415, a move which caused great alarm and confusion among the council fathers. Had the emperor Sigismund not rallied them, the assembly might well have disintegrated in the absence of the pope who had convoked it. But as it became clear that John was unlikely to return and was probably going back on his earlier pledge to resign in order to help end the schism, the determination of the fathers to proceed was strengthened, and their sentiments came increasingly to align with the moderate version of Conciliar theory urged by their colleagues, Gerson, Zabarella and d'Ailly.

The high point of the Council of Constance, then, undoubtedly occurred on April 6, 1415, when the assembled fathers, acting in the pope's continued absence, registered their support for that moderate Conciliarist position by approving the famous decree Haec sancta synodus (or Sacrosancta, as it has often been called). And the principal section of that decree reads as follows:

This sacred synod of Constance . . . declares, in the first place, that it forms a general council, legitimately assembled in the Holy Spirit and representing the Catholic Church Militant, that it has its power immediately from Christ, and that all men, of every rank and position, including even the pope himself, are bound to obey it in those matters that pertain to the faith, the extirpation of the said schism, and to the reformation of the said Church in head and members. It declares also that anyone, of any rank, condition or office—even the papal—who shall contumaciously refuse to obey the mandates, statutes, decrees or instructions made by this holy synod or by any other lawfully assembled council on the matters aforesaid or on things pertaining to them, shall, unless he recovers his senses, be subjected to fitting penance and punished as is appropriate.3

Thus the decree clearly affirms the contention basic to Conciliar theory that, under certain circumstances, the general council, acting alone, is possessed of an authority superior to that of any of the faithful, including the pope himself. That is in itself a very dramatic claim, but the second clause makes it clear also that the superiority claimed for the council is a superiority claimed not just for Constance but for all legitimately assembled general councils. It makes it clear, too, that the circumstances it has in mind are not merely the grievous circumstances of the moment but comparable circumstances in the future. And its definition of those circumstances is remarkably wide, for it involves the affirmation of conciliar supremacy, not only under temporary conditions of emergency, but also on a more enduring basis.

In 1417, the council went on to attempt to give teeth to this last theoretical claim by approving the decreeFrequens, which imposed upon the pope as a matter of legal obligation the assembly of general councils in the future at stated and regular intervals. But though Constance may have succeeded in ending the schism, it failed to achieve its related goal of reform in head and members, and, despite Frequens and the subsequent assembly of councils at Siena (1423) and at Basel-Ferrara-Florence (1431-49), it sponsored no constitutional revolution in the Church. At Basel, moreover, the excesses of the radical Conciliarist majority led finally to the disaffection of some of the most eminent supporters of the council (among them the great philosopher, Nicholas of Cusa), to the triumph of Pope Eugenius IV and the papalist party, and to the promulgation of the decree, Laetentur coeli(1439), which concluded with the definition of the jurisdictional primacy of the Roman pontiffs that was to be a model for the comparable definition promulgated by the First Vatican Council in 1870. With that decree, with Pius II's subsequent promulgation of the (much anthologized) bull, Execrabilis (1460) condemning appeals from the pope to a future general council, and with the apparent condemnation of the conciliar theory itself by the Fifth Lateran Council in 1516, that theory now-at least from the point of view of the resurgent papalism at Rome-seemed destined for the junk heap of history.

Of course, to say that is to say also that the tradition of theological Gallicanism which persisted in France right through into the nineteenth century became, in terms of Roman Catholic orthodoxy, a heterodox tradition. As the famous Declaration of the Gallican Clergy of 1682 makes very clear, that tradition pivoted upon a reiteration of the provisions of Haec sancta. And, as is indicated by the vogue enjoyed in France by Edmond Richer's 1606 edition of the complete works of Gerson and by the comparable edition published in 1706 by Louis Ellies Dupin (both of them containing also tracts of other Conciliarists from Pierre d'Ailly to Jacques Almain [d.1515]), that tradition drew its nourishment from the Conciliar theories publicized so vigorously at Constance and at Pisa.

Not that it was alone in this. In the eighteenth century the Gallicans continued to claim that the University of Paris had always held "as a fundamental point of its ecclesiastical discipline" that the council is above the Pope.4But that did little to restore the fortunes of Conciliar theory in the marketplace of Romanist orthodoxy, and its revival in the closing decades of the nineteenth century by Old Catholic theologians who had rejected the supremacy and infallibility decrees of the First Vatican Council did even less. In any case, Vatican I's definitions of the papal primacy and infallibility seemed to leave Roman Catholic historians little choice but to treat the Conciliar movement as a revolutionary episode in the life of the Church, and Roman Catholic theologians no alternative but to regard Conciliar theory as a dead issue, an ecclesiological fossil, something lodged deep in the lower carboniferous of the dogmatic geology. In 1908, as a result, the editors of the Catholic Encyclopedia did not even think it necessary to include in that work an article on Conciliarism. The subject, it is true, was given some attention under the heading of "Gallicanism," but the author of that article did not hesitate to make the prevailing sentiment of his day abundantly clear. "Stricken to death, as a free opinion, by the Council of the Vatican," he said,

[theological] Gallicanism could surve only as a heresy; the Old Catholics have endeavored to keep it alive under this form. Judged by the paucity of adherents whom they have recruited-daily becoming fewer in Germany and Switzerland, it seems very evident that the historical evolution of the idea has reached its completion.5

When one turns to the New Catholic Encyclopedia, published in 1967, and to the article entitled "Conciliarism (Theology of)," one finds nothing to gainsay this judgment. The article in question was written at some point after the promulgation in November, 1964, of the Second Vatican Council's Dogmatic Constitution on the Church. Far from being strident, its tone is positively diplomatic. Reference is made to that constitution. We are urged not to regard the Conciliarists as "formal heretics" and to "remember that they did not have the same theological armory that exists today." Decent fellows all! They didn't consciously mean any harm! Nevertheless, we are still told that these men did embrace "a doctrine alien to the Catholic faith," that Conciliarism is essentially "a false theory about the possessor of supreme authority in the Church," that "its fundamental error"—clearly expressed in the decree Haec Sancta—"is that it attributes a supreme power of jurisdiction to a general assembly of bishops who are acting independently of the pope,"—for, the author insists, "there cannot be an ecumenical council [properly so called] without the active participation of the pope, at least by way of approving the council's decisions." 6

The attitude, then, had not changed. The point of view being expressed in 1967 as in 1908 was high papalist-Ultramontane. It was the point of view championed in the seventeenth century by Cardinal Bellarmine. It was the point of view that Cuthbert Butler described as having triumphed at the First Vatican Council and as having become, thereafter, synonymous with orthodoxy. It is the point of view guiding the editors of the Annuario Pontificio in Rome when in 1947 they downgraded the Pisan popes of the years of schism to the status ofantipopes.7 Hence the flurry of consternation at the Vatican when the late Pope John XXIII, in choosing his title in 1958 and announcing that the name "John" had been borne by twenty-two previous popes, added the wordsextra legitimitatis discussiones (i.e., apart from wrangles about legitimacy). For, in so doing, he made it clear that he was passing no judgment on the legitimacy of the title of the fifteenth-century John XXIII, or, therefore, on the Council of Pisa of 1409 to which that pontiff owed his papal claim. And the upshot is even more interesting. Exercising their hallowed right to be more papal than the pope, the curial officials made sure that in the official edition of the speech that appeared later on in the Acta Apostolicae Sedis the fatal words extra legitimitatis discussiones no longer appeared. And, surely enough, shortly thereafter, one began to hear that the pope, by an exercise of his teaching authority, had finally settled the long-disputed question of the legitimacy of the papal claimants of the Pisan line. From now on they were to be viewed as antipopes! 8

Finally, the high papal attitude underlying such actions is also the point of view, I would suppose, that the present pope, John Paul II, would enthusiastically endorse, as he vigorously pursues his policy of returning the spiritual power and prestige of the papacy to the historic heights it enjoyed among Roman Catholics in the 1950s on the eve of the Second Vatican Council.

Now, from the vantage point of the historian, there is something very odd, indeed, about all of this. To hold its own, let alone make its way forward, the high-papalist or ultramontane point of view I have just been describing must be able to surmount a very powerful current of historical revisionism concerning the Conciliar movement that began to flow just after the Second World War and has been gathering force ever since. Reflected in the work of a whole host of distinguished scholars—Jedin and Alberigo in Italy; Karl August Fink and Remigius Bäumer in Germany; De Vooght in Belgium; E. F. Jacob, Walter Ullmann and A. J. Black in Britain; Morimichi Watanabe, Joachim Steiber and, above all, Brian Tierney here in the United States—reflected in the work of these scholars and others, the overall burden of the revisionist thesis is that the Conciliar theory which dominated the Councils of Pisa, Constance and Basel was neither an historical nor a theological aberration. It was not as recent or heterodox or revolutionary in its origins as the guardians of the high papalist ideology would have us believe. Indeed, it has been Tierney's great achievement to have established the fact that the Conciliar theory, far from being some sort of reaction against dominant canonistic views or a profane importation onto ecclesiastical soil, was in fact the logical outgrowth of certain strands of canonistic thought itself, the outcome of the attempts of generations of canonists stretching back to the twelfth century to rationalize the structure and constitution both of the individual churches and of the universal Church. Side by side with the theory of papal sovereignty, often taken to be the norm of Catholic orthodoxy in the Middle Ages and since, it turns out that there had developed another theory "which stressed the corporate association of the members of a church" rather than the "rigorous subordination of all the members to a single head" as "the true principle of ecclesiastical unity." It "envisaged an exercise of corporate authority by the members of a church even in the absence of an effective head" and in so doing laid the foundations for the sort of ecclesiastical constitutionalism that triumphed at the Council of Constance.9

Again, it has been the achievement of recent historical studies to have established the further conclusion that the demise of Conciliar theory was neither as sudden nor as final as formerly we were led to suppose. It is now clear that in the late fifteenth and early sixteenth centuries it was very widely subscribed to right across Europe, from Germany in the north (where Ortwin Gratius, among others, published a great deal of material concerning the Council of Constance and Basel, or drawn from the writings of the Conciliarists) to Italy in the south, where Giovanni Gozzadini, an official at the court of Pope Julius II himself, composed a full-scale defence of Conciliar theory. And from Poland in the east, where the University of Krakow had become a center of Conciliar advocacy, to England in the west, where men of as different loyalties as Thomas More and Thomas Starkey—the one an opponent of Henry VIII's royal supremacy over the Church of England, the other an apologist for it—could be at one in their advocacy for the Conciliar interpretation of the Church's constitution.

In its own day, then, Pius II's bull Execrabilis, condemning appeals from the authority of the pope to that of a general council, was viewed less as some sort of binding dogmatic judgment than as the partisan reaction of one particular faction. So widespread, indeed, were conciliarist views that Pius himself in 1461, within a single year of having issued Execrabilis, was obliged to renew its prohibition of appeals from pope to council. So, too, were his successors Sixtus IV and Julius II in 1483 and 1509 respectively. And, even then, a dissident antipapal council assembled in 1511 at Pisa, stimulating a great outflow of canonistic and theological writings in defence of the Conciliar theory. The most notable among these were the work of the Parisian theologians, Jacques Almain and John Major. Anthologized again and again during the course of the sixteenth and seventeenth centuries, and frequently reprinted with the conciliar tracts of their predecessors Gerson and d'Ailly, these works served to acquaint Protestant as well as Catholic Europe with the Conciliarist position. Even had that not been the case, that position was stoutly defended as Catholic orthodoxy by the Faculty of Theology at the University of Paris right on into the eighteenth century. Only after the revival of papal authority in the wake of the French Revolution and the culmination of that revival in the crucial definitions of the First Vatican Council, was it nudged—for good, it then seemed—into the shadows of heterodoxy.

But history has its surprises-not least of all the fact that the First Vatican Council, despite expectations to the contrary, did not turn out to be the last of the general councils. When John XXIII, in 1959, first announced to a small assembly of close associates at the Vatican his intention of summoning a general council his request for advice was met, to his surprise, with silence. He, himself, being a charitable soul, was later to call it "a devout and impressive silence," but if the later behavior of the clerics who staff the Congregations of the Roman curiacan be taken as a guide, it seems instead to have been the silence of incredulity-perhaps, even, of panic.10

And not without reason. The advent of the council precipitated a great ferment in the Catholic world. It took the lid off. Strands in the Catholic tradition long viewed as peripheral became more central; ancient debates broke out anew; issues long since viewed as dead quickened again to life. Not least among them was the matter of Conciliarism. By 1962, the Swiss theologian, Hans Küng, was arguing that "the binding character of the decrees of Constance is not to be evaded," and that "the (traditionally understood) legitimacy of Martin V and all other subsequent popes up to the present day depends on the legitimacy of the Council of Constance and its procedure in the question of the popes "11

For a while, then, it seemed as if the contemporary current of historical revisionism on the Conciliar movement might succeed in sweeping Catholic theologizing about the nature of the Church away from its modern high-papalist moorings. By the end of the 1960s, when I myself, in a book entitled (somewhat tendentiously, I must now concede) Council over Pope?, endorsed on historical grounds a somewhat more radical version of Küng's position, the response of my Catholic reviewers was reasonably sympathetic. It was left to a Protestant ecumenist grown comfortable with Rome to call into question the quality of my Catholicity.12 Sheer chutzpah—or so I thought at the time! But things change, and I no longer expect in my lifetime to see mainstream Catholic theology truly respond to the findings of contemporary historical scholarship on the nature and significance of late-medieval Conciliar theory.


Let me turn, then without regret and without delay, to that sector where the enduring impact of Conciliar theory is increasingly a matter of secure historical record and where the legacy of the Council of Constance proved to be a truly vital one: namely, the history of political thought. This fact, I find, still seems to surprise some of my colleagues in political theory, even though the amount of space that Quentin Skinner devoted in 1978 in the second volume of his Foundations of Modern Political Thought to the political ideas of the fifteenth and early-sixteenth century Conciliarists marks something of a mainstreaming of the claims I am about make. And even though, at least in general terms, those claims were advanced as long as a century ago by the great German historian of political thought, Otto von Gierke. And even though contemporary scholars continue to explore the ramifications of those claims, and in ways that neither Gierke nor Skinner envisaged. Thus, for example, and most interestingly, Paul Knoll of the University of Southern California, has begun to chart the impact of the fifteenth century Krakovian advocates of Conciliarism (writers like Thomas Strempinski) on the development of the constitutionalist tradition that came to underpin in the sixteenth and seventeenth centuries the prerogatives claimed by the Polish Diet.

Whatever the case, scholars will no doubt continue to argue about the precise importance to ascribe to this Conciliar legacy, but they will not be disposed to question its existence. And it is abundantly clear that the story of Conciliar theory would be incomplete if one limited oneself to tracing its career in Catholic Europe. For in the sixteenth and seventeenth centuries it played a most important constitutionalist role in the Protestant world-though in the context this time, not of ecclesiastical issues, but of secular political theory.

Eighty years ago, the English historian John Neville Figgis drew attention to the importance of this new role. And if he was not the first to have done so, the sweep and vigor of his statement contrived, nevertheless, to make it a classic and influential one. The Conciliar movement, he argued, was "the culmination of medieval constitutionalism. It forms the watershed between the medieval and the modern world." And why is this so? Because, in the first place, the scandal of the Great Schism had had the effect of turning attention from the old familiar dispute between the two powers, temporal and spiritual, and focusing it upon the nature of the Church itself. Because, in the second, "speculation on the possible power of the council, as the true depositary of sovereignty within the Church" led them "to treat the Church definitely as one of a class, political societies." Because, in the third, the Conciliar theorists of Constance

appear to have discerned more clearly than their predecessors the meaning of the constitutional experiments which the last two centuries had seen in considerable profusion, to have thought out the principles that underlay them, and based them upon reasoning that applied to all political societies; to have discerned that arguments applicable to governments in general could not be inapplicable to the Church. In a word, they raised the constitutionalism of the past three centuries to a higher power, expressed it in a more universal form, and justified it on grounds of reason, policy and Scripture. 13

According to Figgis, then, the Conciliar movement, precisely because its principles were expressed "in a form in which they could readily be applied to politics," is to be regarded as "having helped forward modern constitutional tendencies." Thus "even Huguenot writers like DuPlessis Mornay," he said, "were not ashamed of using the doctrine of the Council's superiority over the Pope to prove their own doctrine of the supremacy of the estates over the King." So that, as Figgis's pupil, Harold J. Laski put it later on, "the road from Constance" to the Glorious Revolution of 1688 in England was therefore, "a direct one."14

Despite the scanty nature of the evidence with which he buttressed his contentions, subsequent scholarship has been kind to Figgis and there has, of late, been a steady accumulation of evidence suggesting very strongly that if he was somewhat off the mark in his assumptions about the source of Conciliar theory he was very much to the point in his claims for its subsequent impact on sixteenth- and seventeenth-century constitutionalist thinking. It is presumably the convocation of the dissident Council of Pisa in 1511 and the renewed circulation of Conciliarist literature occasioned thereby that explains the ease with which constitutionalists and advocates of active resistance against tyrants later on in the century made use of Conciliar arguments in their own discussions of secular politics. A student of Conciliar theory may properly be forgiven if he finds much that is maddeningly familiar in the arguments of Catholic resistance theorists of the Counter Reformation era in France and England, even though an overt acknowledgment of dependence on Conciliar ideas is rare. Writing in the wake of the Protestant Reformation these men were understandably reluctant to make any such acknowledgment. But no such problems plagued the Protestant advocates of resistance theories. In several important works, three of which played a formative role in the political thinking of seventeenth-century England, there is clear evidence of dependence upon Conciliar political ideas. The De jure magistratuum usually ascribed to Theodore Beza was explicit enough on these matters for the English royalist, David Owen, to describe it in 1610 as a book "wherein it is said, that the people have the same right to depose Kings that are tyrants, which a generall counsell hath to displace a Pope that is a Heretique."15 A much lengthier appeal to Conciliar theory and practice occurs in the Shorte Treatise of Politicke Power written in 1556 during the reign of "Bloody Mary" by John Ponet, exiled Anglican Bishop of Winchester, who reveals a clear grasp of the history of the fifteenth-century councils and of the principles of Conciliar theory, which, interestingly enough, he ascribes to the canonists. "For," he says, "the canonistes (the pope's own championes), grounding themselves upon this lawe of nature, saye that popes . . . maie be depryved by the body of the churche. And so at one clappe, at the counseil holden at Constaunce. . . were three popes popped out of their places." After considerable elaboration, he draws the familiar conclusion that

if it be lawfull for the body of the churche to depose and punishe a Pope . . . how muche the more by the like arguments, reasones and authoritie, maie Emperours, kings, princes and other governours, abusing their office, be deposed and removed out of their places and offices, bi the body or state of the Realme of commonwealthe.16

Similarly forthright appeals occur also in the anonymous Discours politique (1574) and in what were probably the most important and widely-read of all the political tracts opposing absolute monarchy to appear in the two centuries preceding the publication of Locke's Second Treatise—the De jure regni apud Scotos of George Buchanan (tutor of the future James I of England and himself in his earlier Catholic days an adherent of the Conciliar position), and the Vindiciae contra tyrannos—a work currently attributed, at least in part, to the Huguenot, Philippe du Plessis Mornay. If, says the author of the latter,

according to the opinions of most of the learned by decrees of Councils, and by custom on like occasions, it plainly appears that the Council may depose a Pope, who notwithstanding vaunts himself to be the King of Kings, and as much in Dignity above the Emperour, as the Sun is above the Moon . . [then] . . . Who will make any doubt or question, that the general Assembly of the Estates of any Kingdom, who are the representative body thereof, may not only degrade and disthronize and depose a King, whose weakness or folly, is hurtful or pernicious to the State. 17

It was in the seventeenth century that the impact of these tracts was most strongly felt-and then most notably in England. But English constitutional and political theorists were not wholly dependent upon these resistance theorists of the previous century for an appreciation of the relevance of the Conciliar position to the world of secular politics. Such works as Foxe's Book of Martyrs and John White's Way to the True Church (1608) also served as bridges to the Conciliarist past-as several passages in William Prynne's Soveraigne Power of Parliaments and Kingdoms reveal. Again, Edmond Richer's inclusion of Conciliar tracts by d'Ailly, Major and Almain in his 1606 edition of the complete works of Gerson made conveniently available a whole arsenal of Conciliarist arguments. This arsenal was put to good use during the controversy occasioned in the wake of the Gunpowder plot by the imposition of the Oath of Allegiance upon English Roman Catholics, and it would be proper, indeed, to speak of a veritable reception of Conciliar theory in England at this time. The arguments of men like the Archpriest Blackwell, of Warmington and Widdrington, of Robert Burhill, indeed, of King James I himself—these must have done much to direct the attention of Englishmen to the relevant tracts of the Parisian Conciliarists.

It is hardly surprising, then, that during the early years of the first Civil War, when the opponents of Charles I still pursued the moderate goal of lawful resistance, some of them should choose to cite the Conciliarists and to invoke the Conciliar analogy in much the same way as had their more distinguished sixteenth-century predecessors. Nor is it surprising that the efforts of some of their royalist adversaries should have been deflected into attempts to meet those arguments. In this respect the comments of the royalist John Maxwell are revealing, for in 1644 he claimed that the sectaries had learned their seditious doctrine of resistance not from "the sound Protestants of the Reformed Churches" but from the Papalists of the Catholic Ligue in France. These, he conjectured, had borrowed them in turn from

the Sorbonists, and other of that kind, who to oppose the Pope his infallibilitie in judgement, his unlimited power, and to subject him to a Councell, did dispute themselves almost out of breath, to prove that potestas spiritualis summa was by Christ first and immediately given unitati orcommunitati fideliurn . . . that howsoever for the time it was virtually in the Pope, yet he had it onely from the communitie of the faithfull communicatively, and in the case of defailance, in them it was suppletive, and in the case that the power of the Church was abused to heresie or tyrannie, the Pope was deposable (not onely censurable) by a Councell. 18

Thus, he concluded, "these tenets came not into the world with Luther and Calvin, but were long before there was any word of a Reformer." Thinkers like Gerson and Almain lived prior to the Reformation, and "Our Rabbies [i.e., the Puritan Parliamentarians] . . . have drawn these doctrines out of their polluted cisterns."19

On this matter, then, while it might be forcing the evidence a little to speak of Constance (as did Laski) as "the real watershed between medieval and modern politics," or of there being a direct road from Constance to 1688, it would be hard to deny the existence of at least a path from Constance to 1644. And it would also be hard to overestimate the importance of that path. The leading Conciliar theologians (all of them) repeatedly insisted that the right of the Church to rid itself of an incorrigible head was not simply a right based on ecclesiastical custom or derived from the canon law, but was an inalienable right pertaining to all "free communities" and grounded in the dictates of the natural law itself. If, at one level, then, they were simply giving renewed expression to the principles underlying the medieval constitutionalist tradition, they were doing so with a notable degree of universality. By so doing, they were led to enter upon philosophical territory that lay outside the more parochial vision of many a later constitutionalist, including some whose memory has been more widely honored than theirs. And it may well have been that universality that accounted for the appeal of Catholic conciliarist ideas to the Protestant resistance theorists of the sixteenth century.

The conclusion which suggests itself at the end of this glance at the career of Conciliar theory is that that theory was indeed neither as recent and revolutionary in its origins nor as rapid in its demise as most of us tend still to assume. The aftermath of the Conciliar movement involved more than the recovery of papal power, the growth of national state churches, the dashing of reformist and Conciliarist hopes. In matters ecclesiological, the legacy of Conciliar theory was a vital and enduring one and might well have had a greater impact on the constitution of the Church had it not ultimately been discredited by the secular causes it was being used to serve, and especially so in France, causes inimical to the interests of an international Church pressed hard by the mounting claims of the national state. In matters political, however, that legacy remained faithful to its origins, and the role it played in the rise of modern forms of limited government should serve to remind us of the true thrust of Conciliar thinking in the age of the Council of Constance. For, as Bishop Ponet reminded his sixteenth-century contemporaries during the brief but bloodstained period of papal restoration in England, "by this lawe [of nature] and argumentes of the Canonistes and example of deprivacion of a Pope, are all clokes (wherewith Popes, bishoppes, priestes, kaisers and Kinges use to defende their iniquitie) utterly taken awaie."20



  1. Translated by L. R. Loomis in J. H. Mundy and K. M. Woody eds., The Council of Constance: The Unification of the Church (New York and London, 1961), p. 182.
  2. Ibid., pp. 189-90.
  3. Joseph Alberigo et al., Conciliorum Oecumenicorum Decreta (Basel and Rome, 1962), p. 385.
  4. Louis Ellies Dupin, Traité de la puissance ecclésiastique et temporelle (n.p., 1707), p. 403.
  5. A. Degart, in The Catholic Encyclopedia (17 vols., 1913-22), VI, 355, s.v. "Gallicanism."
  6. L. Orsy, in New Catholic Encyclopedia (17 vols., 1967-79), IV, 111-12, s.v. "Conciliarism (Theology of)." In the accompanying article, "Conciliarism (History of)," Professor Brian Tierney of Cornell University, who has made a fundamental and distinguished contribution to our understanding of Conciliar theory, presents a much more subtly nuanced appraisal.
  7. For the micropolitics surrounding the competing lists of "legitimate" popes, see Francis Oakley, Council over Pope? (New York, 1969), pp. 123-25.
  8. On which, see K. A. Fink, "Zur Beurteilung des Grossen Abendländischen Schismas," Zeitschrift für Kirchengeschichte, LXXIII (1962), 335-37.
  9. Brian Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian to the Great Schism (Cambridge, 1955), p. 240. For some reflections on the development of modern conciliar scholarship, see Francis Oakley, "Natural Law, the Corpus Mysticum, and Consent in Conciliar Thought from John of Paris to Matthias Ugonius," Speculum, LVI (1981), 786-810.
  10. Xavier Rynne, Letters from Vatican City (New York, 1963), pp. 1ff.
  11. Hans Küng, Structures of the Church, trans. Salvatore Attanasio (New York, 1964), pp. 270, 284.
  12. See Albert C. Outler, "The Papacy under Fire," Journal of Ecumenical Studies, VII (1970), 803-05, and my reply, "The Papacy under Fire: A Response," J. Ecum. Stud., VIII (1971), 382-84.
  13. John Neville Figgis, Political Thought from Gerson to Grotius: 1414-1625. Seven Studies (New York, 1960), pp. 41, 47, and 56. The book was first published in 1907.
  14. Figgis, pp. 46-48, 63. H. J. Laski, "Political Theory in the Later Middle Ages," in The Cambridge Medieval History (8 vols., Cambridge, 1911-36), VIII, 638.
  15. David Owen, Herod and Pilate Reconciled (3rd ed. London, 1663), p. 43. The work had previously appeared in 1610 and 1642 under the title of A persuasion to loyalty. The French version of the De jure magistratum (Du droit des magistrats sur leur sujets) is to be found in Mémoires de l'Estat de France sous Charles IX, ed. Simon Goulart (3 vols., Meidelbourg, 1577), II, 735-90. See esp. 777.
  16. A Shorte Treatise of Politicke Power (Strasbourg, 1556); see the facsimile edition printed in Winthrop S. Hudson, John Ponet (1516-1556). Advocate of Limited Monarchy (Chicago, 1942), pp. [103]-[105].
  17. Vindiciae contra Tyrannos. . . Being a Treatise Written in Latin and French by Junius Brutus and Translated Out of Both into English (London, 1689), p. 142.
  18.  John Maxwell, Sacro-sancta Regum Majestas: or, The Sacred and Royall Prerogative of Christian Kings(Oxford, 1644), pp. 12-16.
  19. Ibid., p. 16.
  20. Shorte Treatise, ed. Hudson, p. 105].


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