Folia Canonica 5. (2002)
STUDIES - Kenneth Pennington: Bishops and their Dioceses
14 KENNETH PENNINGTON consent of the bishop; and what the bishop and chapter ought to do together. The canonists limited both the bishop and chapter considerably in what they could do alone. Normally a bishop and chapter had to alienate property, to confer benefices and offices, to ordain priests and to judge cases in the episcopal court jointly. One canonist, Johannes Teutonicus, asked whether the consent of the parish priests was necessary in some cases, a question that may have still been asked by recalcitrant conservatives in the early thirteenth century. In the late twelfth century Huguccio and Laurentius thought that in some cases parish priests ought to be consulted by the bishop and chapter. Johannes and the later canonists were not, however, inclined to let the parish priests share in the governance of the diocese.18 If the participation of the entire clergy in the governance of the diocese represented the old world, we can discern a tension in canonistic electoral theory between the rights of the local cathedral chapter and its corporate prerogatives and the expanding claims of papal power. Electoral theory is important for understanding the relationship of the person of the bishop and his territorial domain, his diocese. We have already seen that the bishop gradually became a stranger in a strange land during the thirteenth and fourteenth centuries. They were no longer native sons; they were not even committed to a stable, monogamous marriage. We can see in the jurisprudence of thirteenth-century electoral theory a reflection of the old and new order of episcopal power. The key to the canonists’ views on election is their opinions on what constitutes a numerical majority in an election. The canonists used the term maior et sanior pars to describe a majority of the electors in a corporation. The maior et sanior pars was not a numerical majority - although it could be - but was the most important part of the corporate body. Geoffrey Barraclough has written optimistically that “it is striking enough that the church had the wisdom to reject the democratic fallacy of ‘counting heads,’ and to attempt an estimate of the intelligence and enlightened good faith of the voters.”19 What may have seemed wise in the context of 1934 does not resonant as well today. Nonetheless, Barraclough’s generalization is off the mark for the Middle Ages because the church did not have the wisdom to reject fallacious democratic reasoning until the first half of the thirteenth century. The double papal election of 1159 had demonstrated to the canonists the dangers of rejecting democracy. In this case the papacy and the canonists quickly concluded that elections based on the principle of majority rule avoided schism and fostered stability. At the Third Lateran Council of 1179 a conciliar canon established the rule that a pope-elect must have the consent of a two-thirds majority in the college of cardinals. 18J. Teutonicus to C.12 q.2 c.73 v. consensum. 19 G. Barraclough, The Making of a Bishop in the Middle Ages, in The Catholic Historical Review 19 (1933-1934) 275-319 at 277.
