Oliva 5 
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[5.1] According to the definition of the word 'privilege', it is only principally and properly lawful for the emperor to make a privilege. In the Old Testament, the high priests did not legislate. They only conserved the laws of the Two Tables which Moses gave them at the Lord's behest.44Papal constitutions are today called canons or decretals, not laws.45 Thus it does not seem that they should call their statutes privileges.

[5.2] However both the pope and patriarchs, archbishops and bishops use this general word, and they wish to call their solemn constitutions 'privileges'. They can even do this justifiably,46because canons and decretals are divine laws. As the Lord expressly said, 'I have not come to destroy the Law, but to fulfill it'.47 Thus canons and decretals are divine laws that draw their origin from the law of Christ, that is, from the Gospels.

[5.3] To infringe or annul privileges is principally lawful for only two powers, namely the pope and the emperor. It is secondarily lawful for all kings in their kingdoms and for other princes in their own district.48 Except by a special papal mandate, the pope does not allow those subject to him to infringe the privileges which they will grant to others.

[5.4] Moreover the pope can privilege the emperor and the emperor the pope. The pope privileges the emperor in spiritualities, the emperor the pope in temporalities, just as the emperor Constantine did for pope Sylvester when he went to build the city of Constantinople.49The pope can privilege the emperor in certain spiritualities, just as pope Clement III50privileged William,51the late king of Sicily. Through a special privilege, the pope granted the king the right to confer certain episcopal insignia on archbishops and bishops in his kingdom as a sign of their confirmation.52

[5.5] One could ask: 'Behold, the emperor wished to privilege the pope with certain earthly things. Does he place the pope's name first in the title?'53 It seems not, because Constantine placed his own name before Sylvester, as: 'Ego Constantinus.'54It should not be doubted that the pope ought to place his own name first when he makes a privilege for the emperor.55However, because this hardly ever occurs, or indeed never occurs, I pass over it in silence.56

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44Exod. 31.18; this original tradito legis also portrayed in Mirra 2.2. Cf. DIETER TIMPE "Moses als Gesetzgeber" Saeculum 31 (1980) 66-77 and JöRG MIELKE Der Dekalog in den Rechtstexten des abendlaendischen Mittelalters Untersuchungen zur deutschen Staats- und Rechtsgeschichte n.s. vol. 29 (Aalen 1992). --- According to John the Deacon Liber de ecclesia Lateranensi c.3 (PL 194.1543-1560), the tablets of Decalogue had been brought to Rome by the emperor Titus and later were enshrined in the Lateran's high altar. Legend associated these fabled relics with the Sancta Sanctorum, the pope's private chapel in the Lateran palace. On the Sancta Sanctorum, see above Oliva1.3.

45Decretum Gratiani D. 3, dictum in princ.: Ecclesiastica constitutio nomine canonis censetur.

46 Tancred, gloss on 1 Comp. 5.6.11,[X. 5.7.9, FRIEDBERG ed. 2.781] v. imperialia statuta: Quoniam cum ista constitutio fuerit facta per dominum papam imperatore presente et in omnibus consentiente, et lex potest merito dici. T. (Vat. lat. 1377 and 2509). Cf. Mirra 2.4. Honorius III confirmed some of Frederick II's laws at his imperial coronation, 22 November 1220 (Po. 6408), see also Liber X 5.39.49 (Po. 6598).

47 Matt. 5.17.

48Cedrus 5.1.

49 Forged donation supposed granted by pope Silvester (314-335) to the emperor Constantine (306-337): Das Constitutum Constantini (Konstantinische Schenkung) ed. HORST FUHRMANN (Hanover 1968).

50 Clement III, pope (1187-1191).

51 William II, Norman king of Sicily (1166-1189.

52IP 8.55 no. 219 (1188). See also Gesta Innocentii III § 21 (PL 214.xxxi-xxxii).

53 Titles of imperial diplomas normally do not mention the recipient. See below, Oliva 19.4-5. But subjective form was employed in grants made to the pope, such as the one Otto IV made in 1201 to Innocent III (MGH Const. 2.20, no. 16 and 2.27, n. 23; RNI no. 77, KEMPF ed. 207-211); see also the earlier examples transmitted in Decretum D.63 c.30 and D.64 c.33. For analysis of the 1201 grant, see JOHANNES HALLER "Innocenz III. und Otto IV." in Papsttum und Kaisertum (Munich 1926) 475-507.

54 Transmission of the Donation of Constantine (see above, note 49) does not not include a subjective title, although the emperor's name does go before the pope's. But the text offered by Decretum D.96 c.14 omits the protocol, thus allowing the supposition of a subjective title placing the emperor's name first, in analogy with Decretum D.63 cc.30, or with the Henricianum, inscribed on the walls of the Lateran palace. For the close proximity of the symbolic depiction of the Donation to the Henricianum in the west wing of the Lateran palace, see below, note 56. --- On the canonistic transmission, parts of which also included a objectively formulated protocol, see JOHANNA PETERSMANN "Die kanonistische überlieferung des Constitutum Constantini bis zum Dekret Gratians: Untersuchung und Edition" DA 30 (1974) 356-449.

55 But see Quinque tabule salutationum 1.27: Et nota, quod papa semper premittit nomen suum, cuicumque scribat. Et quicumque sibi scribunt, semper nomen pape premittunt, licet Gregorius et quidam alii olim aliter fecerint. Reperitur enim in decretis, quod quidam summi pontifices premiserunt nomina imperatorum in salutatione.Sharp disagreement emerged in 1159 (Rahwin Gesta Friderici 4.21) between Barbarossa's chancery and the papal curia concerning the correct order of address and the majestic plural. Although most 12th-century artes dictaminis treat such matters precedence and form of address, explicit reference to the historical precedents of this conflict appear first here. Boncompagno probably drew his historical awareness from decretist commentary to D. 97 c. 2 and the glossators on Codex 1.1.8. For texts and analysis, see my "Barbarossa's Chancery Ordinance", unpublished paper delivered at the October 1987 UCLA Medieval Latin Colloquiuum.

56 At the time of the Oliva's composition, the most notable recent examples of papal-imperial charters were those of the Concordat of Worms (1122). See INGO HERKLOTZ "Die Beratungsräume Calixtus II. im Lateranpalast und ihre Fresken: Kunst und Propoganda am Ende des Investiturstreits" Zeitschrift für Kunstgeschichte 52 (1989) 145-214. HERKLOTZ proves that the fresco in question, located on the walls of a antechamber (camera pro secretis consiliis) to the chapel of S. Nicholas, depicts emperor Henry V granting his privilege to pope Calixtus II. This imaginary scene included an inscription transmitting the full text of the imperial charter, the Henricianum, so-called because of its subjective title placing the emperor's name first. No memorials survived at Rome to the Calixtinum, the charter pope Calixtus' granted to Henry V. This suppression supported the ideology of a papal triumph in the Investiture conflict, as did the other frescos of the antechamber, which show throned reforming popes trampling their respective anti-popes. This small room (4 X 7 meters) stood south of the Triclinium's mosaic apse, which symbolically depicted the Donation of Constantine flanked by Charlemagne's imperial coronation. North of Leo III's Triclinium (papal consistory) was the Sancta Sanctorum (on which: see above, Oliva 1.3). These rooms comprise the east wing of the Lateran palace, the 'location' of the papal chancery--that is, the area where curial business was conducted, including hearing petitions and drafting charters, when the pope was at Rome. --- For a hypothetical example of a preamble to a charter granted by a pope to an emperor, see below, Oliva 7.13-14. --- For a Roman topographical reference to the papal archives, see below, Oliva19.13.

© Steven M. Wight, Los Angeles 1998
Scrineum© Università di Pavia 1999