In the Middle Ages, few documents received the attention given to the Donation of Constantine.¹ Although lawyers and royal publicists frequently doubted its validity, its authenticity was generally accepted. Not until the time of Reginald Pecock (ca. 1393-1461), Nicholas of Cusa (ca. 1400-1464), and Lorenzo Valla (ca. 1406-1457) was the document exposed as a forgery.² The successful challenge of men such as Pecock, Cusa, and Valla, however, does not lessen the value of the document for the intellectual historian, for medieval man accepted the Donation as a reality. To dismiss the Donation simply as a forgery is to deprive oneself of a most valuable instrument for understanding medieval thought.

Moreover, the Donation played an important role in the ecclesiastical history of the period and helped to form the historical consciousness of the medieval church. The endowment of the church by Constantine was regarded as marking a most important transition in its life and history. As a result, the relationship of the Constantinian and post-Constantinian period to the primitive church was frequently analyzed. The question was often posed whether after Constantine the church faithfully reflected the spirit of the primitive church. Questions of this nature were asked in such specific areas as church-state relations, evangelical poverty, religious life, and church law. According to the answers to such questions, the Donation was either condemned as a distortion of the true nature and mission of the church or accepted as a valid stage in the unfolding of its history.

Whether one's judgment of the Donation was positive or negative, the transformation that it effected within the church always posed for more reflective thinkers the deeper problem of historical change. This problem was especially acute for those with more positive views of the Donation, for they had to acknowledge what were generally regarded as differences between the primitive and post-Constantinian churches and at the same time to justify the essential continuity of spirit within the two churches. The ideological manner in which they explained such development and continuity reveals much about their historical consciousness.

The goal of this paper is to study the attitude of Jean Gerson (1363-1429) toward the Donation of Constantine. In the late Middle Ages perhaps no figure occupied a more influential position than Gerson. He served as chancellor of the University of Paris from 1395 until his death, and played a most important role at the Council of Constance (1414-1418), which achieved the resolution of the Great Schism. He was, moreover, one of the leading reformers and mystics of his age. Delaruelle, indeed, calls the second half of the fourteenth and the early decades of the fifteenth centuries the age of Gerson.³ Because of his prominence in the late Middle Ages, Gerson's views on the Donation promise to be especially valuable. His reflections on the Donation should allow us first to understand what he considered as the basic differences between the primitive and post-Constantinian churches. Second, these reflections will permit us to determine whether his outlook with regard to the Donation was negative or positive. A third aspect of our investigation will center around his understanding of change and development within the church as revealed by his reaction to the Donation. Finally, an attempt will be made to discover the sources that influenced his understanding of growth and development.

In order to comprehend the differences between the primitive church and the church after the Donation of Constantine, we must begin with an analysis of Gerson's understanding of the early church.⁴ Chronologically, he considers the primitive church as including not only the period of Christ's life on earth but also the first three centuries of the church's history. For Gerson, the Donation of Constantine during the reign of Pope Sylvester I (314-335) marked the end of the primitive church.⁵ As will be seen in greater detail, Gerson's reasons for terminating the period of the primitive church at the supposed time of the Donation rest upon the tremendous transformation brought about within the church as a result of the endowment under Constantine.

Gerson, moreover, recognizes the privileged position of the ecclesia primitiva in the history of the church. The prominence of the primitive church rests upon its position as the immediate recipient of the Gospel: the apostles and disciples received the Gospel directly from Jesus Christ, and because of their proximity to him were able to comprehend its meaning. The primitive church, in addition, was the direct recipient of the Holy Spirit on the first Pentecost, and thereby especially enlightened as to the dimensions of Christ's Gospel.⁶ The prominence of the primitive church is further reflected in the fact that it became the authoritative interpreter of the divine law contained in the Scriptures. Together with their commission to spread the Gospel, the apostles and disciples were authorized to make known and to interpret the tenets of the lex divina according to which the church was to be governed. The authority of the primitive church in interpreting divine law was such that laws formulated by the church in later periods of history were not to be regarded as possessing the same degree of authority as divine law. Subsequent laws within the church must be continually measured against the body of divine law as possessed and interpreted by the ecclesia primitiva.⁷

The primitive church, finally, was for Gerson a primarily spiritual institution, in the sense that it owned few material possessions. In this respect, it differed considerably from the church of Sylvester and Constantine. Gerson argues that this was so because Christ wanted to establish his church principally as a humble institution and as one dedicated to the spiritual mission of spreading the Gospel. Because of its compelling need to spread the Gospel and extend the church's influence, the primitive church renounced material possessions and wealth as far as possible. To have immersed itself in the temporal would have considerably hindered the primitive church in the realization of its goals.⁸ The apostles and disciples, therefore, were ordered by Christ to be content with the food, clothing, and lodging given to them by those to whom they preached. What material possessions the church did enjoy were held in common, as described by Luke in Acts 4.32.⁹ Moreover, that the poverty of the primitive church was not absolute is seen in that Gerson describes that poverty as an aurea mediocritas, in the sense that material resources were provided for all according to their respective needs.¹⁰

According to Gerson this attitude of the church toward material possessions was drastically altered during the reign of Pope Sylvester I by Constantine's endowment of the church.¹¹ The Donation of Constantine, indeed, marks the end of the ecclesia primitiva and the beginning of a new era in the history of the church. Nowhere in his writings does Gerson show any hesitancy with regard to the authenticity or validity of the Donation. He even argues that the endowment of the church was prefigured in the Old Testament. In the early days of his relationship with the people of Israel, the Lord had no permanent place of residence on earth. His abode was the ark of the covenant, which was carried about from place to place. In the time of King Solomon, however, this simple and mobile residence of the Lord was brought to an end, for Solomon constructed the Temple of Jerusalem and installed the ark there amid great riches and magnificence. Gerson argues that a similar parallel existed in the history of the church. In its early years, the time of the ecclesia primitiva, the church was essentially without temporal possessions, but with the endowment of Constantine it entered a new period of history, for it was now officially recognized by the Roman Empire and granted extensive lands, buildings, and income.¹²

When he discusses Constantine's motives for endowing the church with temporal possessions, Gerson maintains that it was the virtuous lives of the early Christians that motivated him to make such extensive benefactions. The poverty and humility of the early clergy engendered a deep reverential attitude on the part of secular rulers. The indifference of ecclesiastics with regard to the wealth and honors associated with their office quickly won the admiration of rulers such as Constantine. The virtuous lives of church leaders, therefore, inspired Constantine with great confidence and brought him to the conviction that they would be good administrators and dispensors of temporal wealth. Temporalities in the hands of such virtuous men would aid the church considerably in the realization of its spiritual goals. It is with these aspirations that Constantine initiated the endowment of the church.¹³ Gerson, therefore, firmly believes that the successful growth of the church in numbers and possessions was rooted in the virtuous lives of its clergy.¹⁴

Gerson realizes, however, that after the endowment the indifference of the clergy towards temporal wealth was not long maintained. Gradually, he argues, the church became accustomed to wealth and honors and this attitude eventually led to their abuse. Such a tendency frustrated the very purpose of the Donation.¹⁵ He characterizes the church's subsequent attitude towards ecclesiastical property as essentially carnal. Temporal values were strongly preferred to those of a more spiritual nature. Too many of the church's leaders patterned their lives and actions on those of secular rulers. This transformation was reflected in his own time by excessive banquets, preoccupation with the hunt, simony, and the purchase of extensive manors. The image presented is one of rampant pride and ambition.¹⁶

Gerson maintains that such an attitude toward ecclesiastical office has led to another abuse so characteristic of his times, namely, the centralization of church offices and benefices under papal authority. In an attempt to curb episcopal greed as well as to satisfy its own material desires the papacy has brought an ever increasing number of benefices under its direct control. The result of this tendency is that the local prelate finds himself without the power to dispose of the least significant benefice in his domain. An additional result of papal centralization has been the increase of taxes and annates for the maintenance of the papacy and the curia. Papal traffic in ecclesiastical benefices has, moreover, led to much fraud and simony within the church.¹⁷

The multiplication of temporal possessions and jurisdiction within the church, therefore, has been a major cause of its decline both in the spiritual as well as the temporal domain. In his reflections upon the consequences of the endowment, Gerson feels that if Constantine and his successors could see the many abuses that have resulted from their endowments, especially the decline in spiritual values, they would hardly be desirous of repeating their benefactions.¹⁸

In addition to the endowment of the church with property, another immediate outcome of the Donation, in Gerson's estimation, was the growth of canon law. For Gerson, the development of cano law is a direct consequence of the church's propertied condition. The ecclesia primitiva, Gerson argues, was governed almost exclusively by divine law that, as was seen earlier, he essentially equates with the Gospel. Since the church in those years was primarily a spiritual institution, divine law sufficed for its governance.¹⁹ Divine law, indeed, regulated men's spiritual relationships with one another and with God. Gerson does not deny the presence of some canons in the primitive church but these, he contends, were relatively few. They were, moreover, primarily concerned with the governance of men's relationships with one another in the area of temporalities.²⁰ This association of canonical legislation primarily with the more material aspects of ecclesiastical life is a consistant element in Gerson's thought. In brief, then, for the spiritually orientated primitive church there was essentially one law that governed its life and that was the divine law.²¹

The endowment under Constantine, however, rapidly changed the legal situation within the church, for the church was no longer a primarily spiritual institution. Constantine's benefactions in the form of land, buildings, income, and temporal jurisdiction placed the church on an equal level with the secular powers of its day. The result of this considerable change in the church's status was a comparable modification in its legal structure. The governance of the church and its temporalities required a considerable increase of canonical legislation. This growth resulted from increasing litigation over riches, material needs, and property rights.²² Such litigation, Gerson contends, has its roots in human greed, which was intensified within the church as a result of the Donation. Property and riches increased the possessive instincts of ecclesiastics. Human greed, moreover, perverted the original motives under which the church was endowed. In order to control this greed and to assure that everyone received his proper due, it was necessary for the church to formulate new laws. From this ever increasing body of legislation canon law emerged as an independent legal system within the church.²³

The emergence of canon law, however, was not without its drawbacks. The proliferation of decretist and decretalist legislation after the endowment and especially during the later Middle Ages has, Gerson contends, led to extensive legal confusion.²⁴ The distinction between divine and canon law has too frequently become blurred. Overwhelmed by the successful growth of canon law, canonists have failed to realize the multifold nature of that law. Canon law, Gerson argues, is a composite of divine, natural, and positive law.²⁵ Many aspects of canon law are deductions from divine and natural law and, therefore, share in the immutable characteristics of those laws. Many other segments of canon law, however, are strictly positive in nature and do not share the same immutability. Too many canonists, nevertheless, treat all aspects of canon law as immutable and eternal. The failure of canonists, therefore, to distinguish between the divine, natural, and positive components of their science has led to considerable legal confusion within the church. Laws capable of dispensation are regarded as eternally binding. The changeable, consequently, is confused with the unchangeable and the necessary with the unnecessary.²⁶

Gerson regarded the legal confusion of his day as one of the major obstacles to the resolution of the Great Schism. Such legal confusion has frustrated the convocation of a general council in which Gerson, ever since 1407, saw the sole hope for the settlement of the schism and the return of peace to the church. Purely positive laws that prohibit discussion of the nature of papal power, deny that the papacy is accountable for its actions, and forbid the convocation of a council without the approval of the pope are regarded as flowing directly from divine law and sharing in the immutable characteristics of that law.²⁷ Gerson strongly condemns the tendency to make positive laws as binding upon the church as divine law. Ecclesiastical unity is not to be delayed because of allegations based on positive law which might seem to argue against the convocation of a council or the resignation of the papal contenders. Gerson, indeed, seeks the resolution of the schism through a return to the true principles of divine law and the application of epikeia to those aspects of positive legislation which have prohibited the convocation of the general council. Such, indeed, was his constant plea at the Councils of Pisa and Constance.²⁸

After having seen Gerson's understanding of the differences between the primitive church and the church after the endowment, differences that he identified primarily with the increase in ecclesiastical property and the growth of canon law, we are now faced with the question of his basic attitude towards the Donation. He clearly recognized many of the harmful consequences that resulted from the Donation, but did he regard the acceptance of the Donation as an error on the church's part? Gerson was certainly aware that many medieval writers regarded the Donation as bad for the church because of its harmful consequences. A long-standing medieval tradition going back at least to the twelfth century had maintained that when the church was endowed by Constantine with temporal possessions there was heard a voice in the heavens proclaiming: “Today a deadly poison has been poured out upon the church of God.”²⁹ Gerson acknowledges that he has read this negative account of the Donation in many chronicles and sermons. He recognizes that throughout the Middle Ages many regarded the popes who followed after Sylvester as members of the Antichrist because of their reception of temporal possessions.³⁰

Gerson is also aware that in his own day the Donation had been condemned by Wyclif (ca. 1329-1384) and Hus (ca. 1369-1415) as an error on the church's part. The Donation of Constantine was regarded by Wyclif as one of the major moments in the corruption and decline of the primitive church. The church that resulted after the Donation, therefore, was not the church of Christ but that of the Antichrist. Wyclif maintained, moreover, that all church property rested upon royal benefaction. He denied the papal argument that Constantine's Donation merely restored a right essentially given by Christ to the church. The church, he argues, has no possessions outside of those for which Christ died. Christ, however, died only to save his followers and not to make them worldly rulers. The world as the patrimony of the church must be understood only in a spiritual sense. According to Wyclif, Constantine's grant of temporal possessions to the church was intended primarily for the supprt of the poor and the maintenance of worthy members of the clergy. The Donation, consequently, merely grants temporal possessions to the church for use as alms and only under the condition that the lives of its leaders prove worthy of such a commitment. When members of the clergy prove unfaithful to their calling then secular lords have the right to revoke their benefactions.³¹

Yet despite this distinction Wyclif's judgment of the Donation is essentially negative, especially because of the evils that have resulted from the church's immersion in and preoccupation with temporalities. In 1403 Wyclif's assertion that both Sylvester and Constantine had erred with regard to the endowment of the church was listed among the twenty-one propositions added by the University of Prague to the twenty-four previously condemned by the Council of London under Archbishop Courtenay of Canterbury in 1382. Among the new propositions were statements that the endowment was inspired by Satan and was, indeed, contrary to the law of Christ. Finally the pope and all clerics possessing property were declared heretical as well as secular rulers who gave their approval thereto. In 1412 the University of Prague added specific theological censures to each of the forty-five articles. On 4 May 1415, the Council of Constance formally condemned the forty-five articles of Wyclif.³²

An essentially similar attitude toward the Donation of Constantine was adopted by John Hus and his followers.³³ In reference to the forty-five articles from Wyclif's writing condemned by the University of Prague, Hus himself proclaimed in 1412 that anyone who censured those articles without sufficient proof to the contrary was acting presumptuously. During his interrogation at the Council of Constance in 1415 when confronted with article thirty-three and asked to clarify his own position, Hus replied that he neither asserted nor denied that Sylvester and Constantine had erred in endowing the church. Each, he maintained, could have sinned venially. Earlier, however, in a treatise on simony written in 1413, when describing the Constantinian Donation and its effect upon the church, Hus had recourse to the tradition of the voice from heaven proclaiming that with the acceptance of the Donation a deadly poison was poured out upon the church of Christ. Reflecting upon how the material wealth of the church has engendered simoniacal attitudes and practices among its bishops, Hus goes on to ask how many souls have already died as a result of that poison? How many persons have been afflicted with the disease of simony and thereby spiritually murdered?³⁴ Hus's pejorative view of the Donation of Constantine was continued by his followers, especially by such writers as Nicholas of Dresden and Jakoubek of Stříbro.³⁵

In reaction to attitudes towards the Donation such as those expressed by Wyclif, Hus, and their followers, Gerson's evaluation of the Donation is considerably more positive.³⁶ As was seen earlier, he is fully conscious of the harmful consequences of the endowment and recognized that excessive concern for temporal possessions and jurisdiction has adversely affected the church. Although given for the promotion of spiritual values, temporal possessions have become an end in themselves. Such attitudes have led to the reversal of the church's values and contributed considerably towards its spiritual impoverishment.³⁷ While he acknowledges the negative consequences of the Donation, Gerson does not regard the Donation itself as an essentially wrong action on the part of Sylvester and Constantine. Both the decisions of Constantine to endow the church and of Sylvester to accept that endowment were the result of divine inspiration, for it was God's plan that the endowment was to aid the church in the spread of the Gospel.

The acceptance of the endowment by the church throughout so many centuries of its history is, moreover, for Gerson, a clear sign that the endowment was not an error. The recognition of the endowment on the part of so many illustrious fathers of the church, among whom he especially names Gregory the Great and Ambrose, is proof enough that the church has not acted against Christ's desires.³⁸ On a more theoretical level, Gerson also argues that the endowment of the church with temporal possessions and jurisdiction, while not mandated by natural law, was certainly not contrary to that law.³⁹ By his position on the Donation, therefore, Gerson strongly maintains the right of the church and its clergy to temporal possessions.

Gerson argues, furthermore, that in the matter of temporalities Christ established no absolute norms for the church. While Christ himself did not exercise temporal dominion he expressed no prohibition against the acquisition and use of such dominion on the part of his successors. By so acting, Christ left the decision concerning the acceptance and use of temporalities up to the discretion of the church. The church, therefore, was free to make such a decision in accordance with its varying needs.

Circumstances of person, place, and time, therefore, should serve the church as a guideline in determining its reaction to temporalities and their use. What was appropriate at one period of the church's history may well prove inappropriate at another and vice versa.⁴⁰ The church, therefore, is governed not only by what it regards itself to be as an institution but also by paying close attention to the circumstances of person, place, and time in which it finds itself.⁴¹ Gerson's attention to personal, geographical, and chronological circumstances in determining the needs and actions of the church represents a constant element in his thought.

As seen earlier, Gerson maintains that the primitive church did not have temporal possessions and jurisdiction because they would have impeded its mobility in spreading the Gospel. By the time of Constantine, however, he argues that circumstances within the church had so changed that temporal possessions and jurisdiction proved profitable for the advancement and growth of the church.⁴² While members of the primitive church were primarily recruited from the poor and unlettered, those of the Constantinian and post-Constantinian periods included the rich and the learned. Nobles, philosophers, and rhetoricians now flocked to the newly endowed church. The endowment, therefore, made the church attractive to an increasing number and variety of persons.⁴³ Gerson concludes, consequently, that the Holy Spirit guides the church in different ways at different times, now through adversity and poverty, now through prosperity and abundance, but at all times for the same purpose, namely, the conversion of all people to Christ, the universal pastor and bishop.⁴⁴

With regard to wealth and temporal possessions, what is of most importance to Gerson is the spirit in which they are used. Poverty in itself is not a sure guarantee of spiritual rectitude, nor does the possession of material wealth necessarily lead to moral decline. Both riches and poverty can be conducive to the growth of the church and the fulfillment of its mission. Both, moreover, can be used properly or improperly.⁴⁵ Arguments over whether riches or poverty are more conducive to the well-being of the church are in the final analysis meaningless. To extol one form of life over the other is, for Gerson, pharisaical. Such arguments produce only mere verbiage and do little to contribute to the growth of the church.⁴⁶ What is important, according to Gerson, is the interior spirit with which either poverty or riches are accepted and used. As long as one's interior affections reflect the virtues of humility and spiritual poverty then riches or poverty can be used with equal effectiveness for the evangelical work of the church.⁴⁷ The decisive factor in the acceptance of either, therefore, is the interior disposition of the user.⁴⁸ As a member of the secular clergy, therefore, Gerson refuses to associate himself with the many movements within the church which advocated the adoption of evangelical poverty. He places himself in opposition, therefore, not only to Wyclif and Hus on this matter but also to the mendicant orders of his time, especially the Franciscans.

When we turn to what Gerson regards as the second major consequence of the Donation, namely the proliferation of canon law and its subsequent confusion with divine law, especially at the time of the Schism, we find a similar accommodating spirit with regard to changing circumstances of person, place, and time. The emergence of canon law within the church does not constitute a distortion of the church's nature, for the church after the Donation is just as much the work of the Holy Spirit as was the ecclesia primitiva. As a result of the Constantinian Donation the church was faced with new problems which required the emergence and evolution of new means to solve those problems. Gerson succinctly describes this development by the phrase: “ea quae de novo emergunt novo egent auxilio.”⁴⁹ The divine law, he maintains, proved insufficient to solve the rising amount of litigation and the increasing problems engendered by the endowment. The result was the development of a new form of law and a new legal system to meet the evolving needs of the church.⁵⁰

Just as the evolving needs of the post-Constantinian church postulated the formulation of new laws so too does the situation of the church at the time of the Schism require changes in the church's legal structure. The prolongation of the Schism proves daily the ineffectiveness of existing canonical legislation to achieve a solution. What the church especially needed at the time of the Schism was new legislation or the modification of existing laws so as to permit the convocation of a general council despite the opposition of the various papal contenders. To express this need, Gerson again has recourse to the principle: “ea quae de novo emergunt novo egent auxilio.”⁵¹

The reasons that Gerson advances for the need of a constantly evolving legal structure within the church rest upon the fact that no human law is able to be so comprehensive as to take into consideration all the possible circumstances that might arise in its application. No matter how carefully legislation is formulated, the variety of human circumstances is so extensive that it cannot be anticipated by any human legislator.⁵² The developmental nature of canon law, therefore, should not cause one to lessen his esteem for that law since that very evolutionary quality allows law to accommodate itself to the changing pattern of circumstances to which it is applied. This quality of canon law permits the legal structure to adopt itself to what Gerson calls “urgens necessitas” and “evidents utilitas.”⁵³

When canon law cannot be sufficiently modified to meet the changing pattern of circumstances, then Gerson enjoins the use of epikeia, which he understands as the interpretation of law not according to its strictly literal sense but according to the intention of the lawgiver. Epikeia is especially applicable when the circumstances under which a law has been formulated have so changed that the strict application of the law would go contrary to the original intention of the legislator.⁵⁴Epikeia discerns the changing circumstances of person, place, and time and judges them to be such that the existing law is no longer applicable.⁵⁵ At both the Council of Pisa and the Council of Constance, Gerson advocated the application of epikeia to the maze of canonical legislation which if applied strictly would prohibit the convocation of a council without the approval of the pope.⁵⁶

According to Gerson, it should be added, epikeia is an extraordinary means and is not to be applied to the normal operation of the church's legal structure. If the standard interpretation of the law is too frequently circumvented by the use of epikeia, all law will lose its stability and once the stability of law has been threatened institutions are soon reduced to a state of inner confusion.⁵⁷ Gerson, therefore, does not denigrate the role of canon law within the church but accepts it as a valid outgrowth of the situation created at the time of the Constantinian Donation. Although he often complains against the proliferation of canon law, its too frequent confusion with divine law, as well as the impasse it created for the church at the time of the Great Schism, Gerson still recognizes the importance of canon law for the ordinary governance of the church.

He argues, moreover, against all who because of the legal confusion within the church criticize its endowment under Constantine. Such critics would have the church return to the legal simplicity of its early years before the Donation when prelates governed the church without the elaborate structure of canon law. Modern prelates, they maintain, should imitate the simplicity of the church's early leaders. Such an argument, Gerson asserts, is of little value, for it fails to take into consideration the complex growth of the church since the time of the endowment. The church's long history has, indeed, demonstrated both the necessity and the utility of canon law.⁵⁸ That law, however, will remain useful to the church only as long as it recognizes the circumstantial dimensions of its origin, operation, and growth.

Gerson's awareness of the circumstantial dimensions of church life, especially as they relate to temporal possessions and canon law, reveals strong scriptural influences. For understanding the church's varying attitude towards temporal possessions as reflected in the primitive church and the church after the endowment, Gerson draws upon Ecclesiastes where it is stated: There is a season for everything, a time for every occupation under heaven.⁵⁹ There is, therefore, according to Gerson, a time for the poor, the lowly, the contemptible, the foolish. With the Donation, this period of church history is replaced by one represented by the rich, the noble, the illustrious and the wise. These changing circumstances necessitated a modification in the church's legal structure as reflected in the evolution of canon law.

In addition to scriptural sources, Gerson's ideas on the evolving nature of church legislation depend to an even greater degree upon canon and civil law. His arguments in favor of the mutability of positive law on the basis of “urgens necessitas” and “evidens utilitas” are taken verbatim from the Fourth Lateran Council (1215) and the Decretals of Gregory IX (1227-1241). His contention that no human law is sufficiently comprehensive to take into consideration the vast variety of circumstances to which it must be applied is drawn directly from John XXII's (1316-1334) preface to the Clementine decretals. Gerson also finds supporting arguments for his position in the civil law, especially the Digest, where it is stated that neither the laws nor the decrees of the Roman Senate can comprehensively take into consideration all the particular aspects of a case. Only when these aspects are understood can the person possessed of the proper jurisdiction determine how the law is to be interpreted.⁶⁰

Although he draws heavily upon Aristotle for his understanding of epikeia, Gerson is clearly aware that canon and civil law also justify the use of this principle.⁶¹ Citing from the Regulae juris of Boniface VIII, he maintains that a person acts wrongly who by a strict adherence to the literal sense of a law goes contrary to its direct intention. He finds a similar argument in the Digest where it is stated that a person acts fraudulently who, while preserving the literal sense of a law, circumvents its true meaning.⁶² Gerson also utilizes a passage in the Digest which states that the principle of aequitas does not permit laws which were intended to benefit man to be turned to his disadvantage as a result of an excessively strict interpretation.⁶³

A review of his sources, consequently, reveals the strong debt that Gerson owed to the scriptural and especially the legal tradition of the Middle Ages in the formulation of his ideas on historical change and development. His historical consciousness was indeed primarily formed by the canon- and civil-law traditions. This dependence upon legal sources is especially noteworthy since as a conciliarist Gerson was, as has been seen, frequently critical of late medieval canon law. Yet while so many of his contemporaries had lost sight of the true dimensions of the church's legal tradition, Gerson found in it considerable support for the solution of the church's problems, especially as they related to the Great Schism.

This study of Gerson's attitude toward the Donation, therefore, has revealed not only what he considers as the differences between the primitive church and the church after the Donation but also the fact that he does not regard the Donation as an error either on the part of the church or secular rulers. The post-Constantinian church, consequently, is the true successor of the ecclesia primitiva. Furthermore, in his justification of the Donation, Gerson reveals a coherent theory of growth and development within the church. For Gerson, the church is not a static entity but an essentially historical institution subject to the influence of changing circumstances. The church, Gerson contends, governs itself not so much by abstract concepts of what it should be, but by careful attention to the evolving circumstances of person, place, and time. The church, therefore, matures and develops within the context of history. Finally, an analysis of his sources discloses that Gerson's views on the church and its history were highly influenced by the canon- and civil-law traditions of the Middle Ages. In the evolution of all the above aspects of Gerson's thought the Donation of Constantine indeed served as a major catalyst.

Notes

1. The most extensive studies of medieval attitudes toward the Donation of Constantine have been those of Gerhard Laehr, Die konstantinische Schenkung in der abendländischen Literatur des Mittelalters bis zur Mitte des 14. Jahrhunderts, Historische Studien 166 (Berlin 1926) and “Die konstantinische Schenkung in der abendländischen Literatur des ausgehenden Mittelalters,” Quellen und Forschungen aus italienischen Archiven und Bibliotheken 23 (1932) 120-181. For the judgment of medieval lawyers see Domenico Maffei, La donazione di Constantino nei giuristi medievali (Milan 1964). The most recent critical edition of the Donation is that of H. Fuhrmann, Constitutum Constantini, MGH, Leges, fontes iuris germanici antiqui 10 (Hannover 1968).

2. The arguments of Cusa, Valla, and Pecock against the authenticity of the Donation can be found in Laehr “Literatur des ausgehenden Mittelalters” (n. 1 above) 151-166. Valla's De donatione Constantini has been edited by W. Schwahn (Leipzig 1927). An earlier edition and translation of this treatise was prepared by Christopher B. Coleman (New Haven 1922).

3. E. Delaruelle et al., L'église au temps du grand schisme et de la crise conciliaire 2 (Paris 1964) 837-838.

4. For a detailed study of Gerson's understanding of the ecclesia primitiva see my forthcoming article, “Jean Gerson: The Ecclesia primitiva and Reform,” Traditio 30 (1974). For earlier medieval views on the ecclesia primitiva cf. Glenn Olsen, “The Idea of the Ecclesia primitiva in the Writings of the Twelfth-Century Canonists,” Traditio 25 (1969) 61-86, and Giovanni Miccoli, Chiesa gregoriana (Florence 1966) 225-299. Olsen is presently preparing an extensive study of the idea of the ecclesia primitiva from its origins through the twelfth century. Much research remains to be done before late medieval views on the ecclesia primitiva can be fully comprehended.

5. Dominus his opus habet G.5.223. References to Gerson's writings will generally be cited according to the new edition of his works by Palémon Glorieux, Oeuvres complètes (Paris 1960-). Seven volumes of this edition have thus far been published. For works not yet edited by Glorieux, the older edition of L. Ellies du Pin, Opera omnia (Antwerp 1706) will be used. This edition contains five volumes. The letters G and P will stand for these respective editions in all footnotes throughout this article.

6. Contra haeresim de communione laicorum sub utraque specie P.1.459C. “Scriptura sacra in sua receptione et expositione authentica finaliter resolvitur in autoritatem, receptionem et approbationem Universalis Ecclesiae, praesertim primitivae, quae recepit eam et ejus intellectum immediate a Christo, revelante Spiritu sancto in die Pentecostes, et alias pluries.”

7. De vita spirituali G.3.138. “Ex his aperitur intellectus qualiter dicta Apostolorum et discipulorum Christi sunt alterius auctoritatis, quoad aliquid etiam pure de fide, quam successorum suorum, quoniam primi a Christo doctrinam immediate susceperunt; ejus insuper facta viderunt.”

8. De concilio unius obedientiae G.6.54. “Quia enim Ecclesia tunc multiplicanda erat per discursum Apostolorum et fidelium, ideo talis jurisdictio temporalis et possessiones fuissent eis ad impedimentum.”

9. Diligite justitiam G.7.608.

10. De nuptiis Christi et ecclesiae G.6.204. “Postremo sollicitudinem anxiam et quandoque fraudum sectatricem, ego proprietas, a praelatis et domesticis suis excludo, distribuens unicuique prout opus est. … Haec est Ecclesiae primitivae institutio, haec aurea mediocritas quam Salomon optando descripsit.” Cf. Prov. 30.8, Acts 4.32.

11. De concilio unius obedientiae G.6.54.

12. Diligite justistiam G. 7.608.

13. Super victu et pompa praelatorum G.3.96-97. Cf. De nuptiis Christi et ecclesiae G.6.201.

14. Scriptum est melius G.2.114. “Quae scilicet Ecclesia prout ex virtutibus sanctorum patrum originem, bona et possessiones accepit, sic etiam per virtutes non aliter servanda est.” While Gerson closely associates church property with the virtuous lives of the clergy, the latter is not a condition for the valid possession of the former, as was maintained by Wyclif and Hus.

15. Super victu et pompa praelatorum G.3.96-97. “Qui postquam insolescere et eis abuti ceperunt, in contrarium versa est prior largitio, dico in direptionem et contemptum.”

16. De comparatione vitae contemplativae ad activam G.3.76. Cf. Dum mentis aciem G.2.25.

17. De concilio unius obedientiae G.6.55.

18. De nuptiis Christi et ecclesiae G.6.201. “Nunc autem si viderint pincernas vini hujus, praelatos, et doctores, labi funditus in inferiora terrae neque ullam de spiritualibus sollicitudinem gerere, quidni repetant quae dederunt, causa cessante conferendi, aut quod a nova saltem donatione tepescant?”

19. Diligite justitiam G.7.608. “La police espirituelle, que nous nommons ecclesiastique ou evangelique, se gouverne principaument par l'evangile et par ceulx qui le scevent, que nous appellons theologiens.”

20. Conversi estis nunc ad pastorem G.5.172. “Quemadmodum praeterea lex vetus, quae et mosaica dicitur, complectebatur cum divinis praeceptis ordinantibus immediate ad Deum, judicialia quae proximos in temporalibus regulabant, nec ob hoc plures leges sed una putabatur, non aliter Ecclesia primitive legem evangelicam cum canonica conjungebat quamvis evangelica ad Deum et canonica magis as proximum ordinaret.”

21. Ibid. “Olim pro una voce lex evangelica et canonica haberentur.”

22. Ibid. “Dilatatis nimium per omnes terminos orbis terrarum ecclesiasticis pascuis, aggregatis quoque sub uno ovili et uno pastore quaquaversum ovibus rationalibus prius errantibus, oportuit plurificationem Decretalium et Decretorum pro suo regimine judiciario constitui et maxime postquam ditata est Ecclesia, postquam in multitudine temporalium bonorum et jurisdictionum saecularium ipsa saecularibus potestatibus par facta est. Vulgato quippe proverbio dicitur terram habens guerram habet; quia multiplicatis divitiis, egenis, et angustis et dicentibus hominibus: hoc meum est et hoc tuum, lites ut plurimum consequi necesse est.”

23. Diligite justitiam G.7.609. “Car n'est riens se bien ordonne entre les hommes de quoy les mechans n'avysent soit pauvrete soit richesses. Si a convenu, selond la doctrine d'Aristote, faire tant plusieurs ordinations que nous appelons loys, ou decres, ou canons, c'est a dire reugles, pour faire justice a un chascun et rebouter injustice.”

24. Conversi estis nunc ad pastorem G.5.172.

25. Ibid. 174. “Est autem haec communis distinctio quod doctrina canonica tres in se juris species aggregatas complectitur: jus divinum, jus naturale, jus positivum.”

26. Ibid. 178. “Oportet in decretis et decretalibus distincte videre quid in eis est de jure pure divino, quid de jure pure naturali, quid de jure positivo vel humano. Istis siquidem ignoratis confusionis sequi errorem necesse est dum non separatur pretiosum a vili, indispensabile a dispensabili, incommutabile a commutabili, obligans lex a non obligante, necessarium a non necessario.”

27. Apparuit gratia G.5.85.

28. With regard to Gerson's arguments on the insufficiency of positive law to settle the schism and the need for recourse to divine law see Apparuit gratia G.5.73, 85, Conversi estis nunc ad pastorem G.5.178, Acta de schismate tollendo G.6.97, and Dominus his opus habet G.5.228. Gerson's call for the application of epikeia both at the Council of Pisa and the Council of Constance can be found respectively in his De unitate ecclesiae G.6.138, and in the Prosperum iter faciat G.5.478-479.

29. De comparatione vitae contemplativae ad activam G.3.75. Cf. Diligite justitiam G.7.608, and De nuptiis Christi et ecclesiae G.6.201. The account of the voice from heaven can be traced back at least to Gerald of Wales (1147-ca. 1221) and enjoyed a long tradition among medieval writers. Cf. Laehr, Die konstantinische Schenkung (n. 1 above) 72-73, 172-175, “Literatur des ausgehenden Mittelalters” (n. 1 above) 128, 145, and Maffei (n. 1 above) 154, 181, 284.

30. Diligite justitiam. G.7.608.

31. Cf. Laehr, “Literature des ausgehenden Mittelalters” (n. 1 above) 140-148.

32. For the original twenty-four articles condemned by the Council of London in 1382 see J. D. Mansi, Sacrorum conciliorum nova et amplissima collectio 26 (Venice 1784) 695-722. Lists of the forty-five articles condemned by the University of Prague in 1403 and in 1412 are printed in F. Palacký, Documenta Mag. Joannis Hus (Prague 1869) 327-331, 451-455. The condemnation of the Council of Constance can be found in Giuseppe Alberigo et al., eds., Conciliorum oecumenicorum decreta (Rome 1962) 387-389. The specific articles pertinent to our study are nos. 32, 33, 36, and 39.

33. Laehr, “Literatur des ausgehenden Mittelalters” (n. 1 above) 148.

34. H. Kaminsky, A History of the Hussite Revolution (Berkeley 1967) 52-55. The most recent edition of Hus's response at Constance to the forty-five articles of Wyclif can be found in Amadeo Molnár, “Les réponses de Jean Huss aux quarante-cinq articles,” Recherches de théologie ancienne et médiévale 31 (1964) 85-99.

35. Kaminsky 40-48, 52. Kaminsky et al. have recently published a new edition and translation of Nicholas of Dresden's Tabule veteris et novi coloris as well as of his Consuetudo et ritus primitive ecclesie et moderne. Cf. Master Nicholas of Dresden: The Old Color and the New. Selected works Contrasting the Primitive Church and the Roman Church, Transactions of the American Philosophical Society, n.s. 55.1 (Philadelphia 1965).

36. The very nature of Gerson's argumentation in defense of the Donation makes it clear that he was reacting principally against the positions of Wyclif and Hus. The views on church property which he condemns in his De nuptis Christi et ecclesiae G.6.201 are clearly those attributed to Wyclif and Hus. In his De futuri summi pontificis electione G.6.279, he explicitly mentions the position of Hus with regard to the endowment. Gerson, moreover, wrote several letters to the Archbishop of Prague in 1414 urging him to take action against the spread of Wyclif's and Hus's writings, cf. G.2.157-161, 162-166. In that same year he also participated in the University of Paris's condemnation of twenty propositions from Hus's De Ecclesia. At the Council of Constance, finally, Gerson served as a close advisor to Pierre d'Ailly, who presided over the commision which condemned Hus. For a detailed treatment of the deliberations with Hus at Constance see P. de Vooght, L'hérésie de Jean Huss (Louvain 1960) 280-460, and Matthew Spinka, John Hus's Concept of the Church (Princeton 1966) 329-382.

37. De comparatione vitae contemplativae ad activam G.3.76. “Immo sicut alias memini declarasse, nimium studium in multiplicatione bonorum temporalium et jurisdictionum in Ecclesia non parva causa est suae desolationis, tam in spiritualibus quam temporalibus.”

38. De concilio unius obedientiae G.6.54-55. “Sed pro tempore Silvestri et Constantini magni, placuit Domino ad dilatationem Ecclesiae inspirare tum Constantino quod tales possessiones daret, tum Ecclesiae quod reciperet. Et duravit hujusmodi dotatio Ecclesiae usque ad tempora nostra, per successiones sanctissimorum patrum Gregorii et Ambrosii et aliorum, quos non est credibile in retentione talium errasse contra Christi jussionem.”

39. Regulae morales P.3.106C. “Dotatio Ecclesiae in jurisdictionibus et dominiis proprietariis temporalibus, et exercitium in illis, neque esse de jure naturali, neque eidem repugnare videntur.”

40. Ibid. “Nam Christus neque exercuit talia dominia, neque per expressum successoribus prohibuit, sed reliquit potestatem eorum discretioni (pro varietate temporum) et devotioni Christianorum, sic vel sic exercendi.” Cf. De concilio unius obedientiae G.6.54.

41. De nuptiis Christi et ecclesiae G.6.205. “Verum praeclare dictum est a quodam: respublica vel Ecclesia non regitur per se, sed nec solo dictamine speculative vel imaginariae rationis gubernatur; executio requiritur in practicatione operis quantum res humanae pro locis, temporibus et personis patiuntur.”

42. De comparatione vitae contemplativae ad activam G.3.75.

43. De nobilitate P.3.215B.

44. Conversi estis nunc ad pastorem G.5.173. “Neque enim uno modo semper agit Spiritus Sanctus pro evocatione et conversione fidelium ad pastorem et episcopum animarum vestrarum, sed nunc adversitate nunc prosperitate, nunc paupertate nunc abundantia trahit, vocat et allicit quos esse suos agnoverit.” Cf. Diligite justitiam G.7.608-609.

45. De Joannis humilitate G.3.105. “Parum refert ad stabiliendum vel destituendum aliquem vivendi modum circa ista temporalia quae non sunt nisi quaedam instrumenta bene agendi et quibus fas est ad utrumlibet bene aut male uti, nunc bene paupertate, nunc melius divitiis.” Cf. Dilitige justitiam G.7.609.

46. De Joannis humilitate G.3.105. “Contendere vero super his et sibi blandiri de alterutro, seque aliis extollendo praeferre, contentio est pharisaica et pugna verborum ad subversionem proficiens.”

47. Ibid. “Potest nempe aliquis secundum regulam et profectionem evangelicam uti divitiis, potest et illas abjicere; tantummodo sit interius affectio pauper et humilis.”

48. De nuptiis Christi et ecclesiae G.6.205. “Meminerit tandem utraque juxta Comici sententiam quoniam haec omnia in mendicitate et proprietate talia sunt qualis est animus utentis.”

49. Conversi estis nunc ad pastorem G.5.172. “Porro crebescentibus jurgiis, judicia frequentia quaeruntur quae ea dirimant, quae pacem restituant. Hinc leges legibus, hinc constitutiones constitutionibus, hinc decretales decretalibus additae sunt, idcirco quod ea quae de novo emergunt novo egent auxilio.”

50. Ibid. “Quamobrem etsi lex evangelica sufficiens sit et perfecta pro vita animae et conversione ejus ad Deum, congruebat ut particulares decretorum et decretalium traditiones adderentur.”

51. Apparuit gratia G.5.85. “Et quoniam hujus schismatis tam extrania videtur esse pestis ut tale numquam visum fuerit minus habens provisionis humanae remedium, docente hoc sua in dies radicatione, expedit ad ejus expulsionem institutio novorum canonum cum ea quae de novo emergunt novo egeant auxilio vel jam conditorum necessaria est moderatio.”

52. De unitate ecclesiae G.6.142. “Quoniam nulla juris sanctio quantumcumque perpenso digesta consilio ad humanae naturae varietatem et machinationes ejus inopinabiles sufficit, nec decisionem lucidam suae nodosae ambiguitatis attingit, eo praesertim quod nihil adeo certum clarumque statuitur quin ex causis emergentibus quibus jura jam praedicta mederi non possunt, in dubium revocetur, etc.”

53. Ibid. 143 “Non debet reprehensibile judicari si secundum varietatem temporum statuta quandoque variantur, humana praesertim, cum urgens necessitas vel evidens utilitas id exposcit; quoniam ipse Deus ex his quae in Veteri Testamento statuerat nonnulla mutavit in Novo.”

54. Ibid. 143. “Unitas Ecclesiae ad unum certum Christi vicarium nequit modo procurari commode sine recursu ad epikeiam seu bonam aequitatem, quae interpretatur litteram jurium positivorum secundum intentionem legislatorum radicatam in regulis aeternis ac immutabilibus divinae legis; per quam legum conditores justa decernunt atque secundum dictamen legis naturalis.”

55. Conversi estis nunc ad pastorem G.5.177. “Epikeiam quam latine aequitatem juris interpretatricem nominare possumus, commendat haec consideratio et hoc in illis et circa illa quae solo jure positivo vel humano subsistunt, qualia variari et mutari pro varietate et qualitate temporum, locorum, personarum necesse est.” Cf. De vita spirituali animae G.3.189.

56. Cf. De unitate ecclesiae G.6.138, and Prosperum iter faciat G.5.478-479.

57. De unitate ecclesiae G.6.145.

58. Conversi estis nunc ad pastorem G.5.173. “Est igitur inefficax argumentum si generaliter assumatur: praelati in Ecclesia primitiva conversi ad Deum nullis decretalibus aut decretis utebantur; igitur nec moderno tempore congruit eis uti. Ecce prostrati sumus; et invenisse credimus tum necessitatem tum utilitatem scientiae canonicae.”

59. De nobilitate P.3.215 C. Cf. Eccl. 3.1. Gerson's notion of varietas temporum was also supported by several canonical passages with which he was undoubtedly familiar. Cf. Decretum, D. 1, c. 1-3, ed. E. Friedberg, Corpus iuris civilis 1 (Paris 1879) 106-107.

60. De unitate ecclesiae G.6.142-143. This passage is especially significant in that it is one of the few passages in Gerson's writings where he cites his legal sources. The entire passage is a series of annotations quoting verbatim the repective legal authorities used by him to establish his arguments on the evolving nature of ecclesiastical law. His citation from the Fourth Lateran Council was taken directly from the council's fiftieth canon which restricted the impediments of consanguinity and affinity to the fourth degree. Cf. Alberigo (n. 32 above) 233-234. The same decree was incorporated in Gregory IX's Decretales, 4, 14, 8, ed. Friedberg (n. 59 above) 2.703-704. For John XXII's preface to the Clementinae see Friedberg, 2.1129-1132. The passage from the civil law utilized by Gerson can be found in the Digesta 1.3.12, ed. T. Mommsen (Berlin 1902) 6.

61. Gerson's acknowledgment of Aristotle as one of his major sources for his understanding of epikeia can be found in De vita spirituali animae G.3.189 and Conversi estis nunc ad pastorem G.5.177. For Aristotle's use of the term see his Nicomachean Ethics, 5, 10, 1137a, 31-1138a, 3, and 6, 11, 1143a, 19-1143b, 17, ed. I. Bywater (Oxford 1894) 110-111, 125-126.

62. De unitate ecclesiae G.6.142. The passage from the Regulae juris of Boniface VIII can be found in the Liber sextus, 5, 13, 88, ed. Friedberg (n. 59 above) 2.1124. Gerson's argument from the civil law is drawn from Digesta, 1.3.29 (n. 60 above) 6.

63. De unitate ecclesiae G.6.142. Cf. Digesta, 1.3.25 (n. 60 above) 6. Strictly speaking, aequitas in Roman Law differs from the notion of epikeia in that while the latter represents a correction of the law according to the intention of the legislator, the former refers more to the justness of a law itself. However, since aequitas also denotes the idea of a benign interpretation of a law, it has a close affinity with the notion of epikeia and was often used interchangeably, especially by the Scholastics. Gerson so uses both terms. For an analysis of the differences and similarities between epikeia and aequitas see A. Van Hove, Commentarium lovaniense in codicem iuris canonici 1.2: De legibus ecclesiasticis (Malines 1930) 274-278. An historical survey of the use and meaning of the terms epikeia and aequitas can be found in Charles Lefebvre, “Epikie,” and “Equité,” Dictionnaire de droit canonique 5.364-375, 394-410. See also Lawrence J. Riley, The History, Nature, and Use of Epikeia in Moral Theology (Washington 1948) 9-18, and Guido Kisch, Erasmus und die Jurisprudenz seiner Zeit (Basel 1960) 1-54. For Gerson's identification of epikeia and aequitas see above nn. 54, 55.