The Huguccian Moment: Medieval Origins of the Declaration of Independence

In memoriam Brian Tierney, part 2

I wrote this essay originally for a summer faculty seminar at Mount St Mary’s University held in 2007 on the American founding, directed by Dr Peter Dorsey of the English department. I learned most of the medieval material from the graduate seminars I took from Brian Tierney at Cornell: Francis of Assisi and the Franciscans, Church and State in the Middle Ages, Medieval Conciliarism, and Medieval Canon Law, as well as from his published works as specified in the notes. I publish it here as a tribute to him.

In the preface to his 1927 book The Twelfth-Century Renaissance, Charles Homer Haskins wrote,

“The title of this book will appear to many to contain a flagrant contradiction. A renaissance in the twelfth century! Do not the Middle Ages, that epoch of ignorance, stagnation, and gloom, stand in the sharpest contrast to the light and progress and freedom of the Italian Renaissance which followed? How could there be a renaissance in the Middle Ages, when men had no eye for the joy and beauty and knowledge of this passing world, their gaze ever fixed on the terrors of the world to come?”

Haskins’ rhetorical questions apply equally to my subtitle. Medieval Origins of the Declaration of Independence! Do not the Middle Ages, that epoch of ignorance, stagnation, and gloom, stand in the sharpest contrast to the light and progress and freedom of the Enlightenment? How could the Middle Ages have anything to do with the Declaration of Independence, when medieval people knew nothing of natural rights, government by consent, or a right of rebellion, their gaze ever fixed on the terrors of the world to come?

Haskins justified his title this way: “The answer is that the continuity of history rejects such sharp and violent contrasts between successive periods, and that modern research shows us the Middle Ages less dark and less static, the Renaissance less bright and less sudden, than was once supposed.” ¹ The historiographical movement Haskins represented has been termed “The Revolt of the Medievalists”; this is the historiographical tradition in which Brian Tierney worked. I would like to extend this revolt to tracing the medieval roots of the Declaration.

In an episode of the 1980’s sitcom Family Ties, Alex Keaton, played by Michael J. Fox, dreams that he is watching Thomas Jefferson (played by Alex’s father in the dream) draft the Declaration of Independence. In addition to proposing a few changes in wording (“try ‘self-evident,’ Mr. Jefferson”), Alex also suggests that he use “brown crinkly paper” to write it on. ² The scene works because not only do we know what the Declaration is supposed to sound like—we know that it says “we hold these truths to be self-evident,” not “really obvious”—we know what it’s supposed to look like. And what it looks like is medieval.

Thomas Jefferson didn’t produce the famous version on the brown crinkly paper (actually parchment, which is also what medieval documents were written on); his handwritten draft survives, written in a surprisingly legible hand and with no special formatting. After the final text of the Declaration was approved on July 4, the Continental Congress directed that the text be “engrossed on parchment.”³ This task was undertaken by Timothy Matlack, assistant to Charles Thomson, Secretary of the Congress. ⁴ The layout of Matlack’s version follows point by point the layout of medieval papal documents.

Here we see the familiar image of the official copy of the Declaration below a privilege issued by Pope Gregory IX in 1234. The languages and the scripts are different, of course, but otherwise the two documents look strikingly similar. Both highlight their opening words in larger letters that use a different script from the main body of the text.  Both occasionally vary the script used in the body. Both have witnesses’ signatures, each of which is accompanied by a distinguishing flourish, arranged in vertical columns at the bottom of the page, with the main signatures (John Hancock and Pope Gregory IX) larger and in the center.

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I’m not suggesting, of course, that Timothy Matlack had a papal charter next to him when he dipped his quill into the ink to begin writing “In Congress.” My hypothesis is that the visual format of ecclesiastical documents influenced the look of royal documents, probably by means of clergymen working in royal chanceries—it’s no accident that “cleric” and “clerk” are the same word in Latin (clericus). Then I suspect that colonial charters followed the format of other royal documents, and the colonial charters influenced the look of the Declaration. Someday I’ll take the time to document this hypothesis (yet another retirement project!).

This same path was followed by several of the important ideas in the Declaration.  Concepts developed in the church, especially by canon lawyers, were applied to secular governments, including the kingdom of England, and then some of them crossed the Atlantic. These ideas include the existence of natural rights, government by consent, and the right of rebellion.

Among the truths that the Declaration of Independence holds to be self-evident is that all men “are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.” Jefferson, clearly, is drawing on the early modern philosophical tradition of natural rights, especially as developed by John Locke (whose formulation was “life, liberty, and property”). But the early modern rights theorists were themselves drawing on a medieval tradition that began with the twelfth-century Decretists and really got going in the fourteenth-century disputes between the Franciscans and the papacy, a tradition that has been documented in the works of Brian Tierney and which I studied in his courses.

Gratian’s Decretum is a collection of canon law texts compiled around 1140; it includes papal decrees, conciliar pronouncements, and excerpts from the Church Fathers, all arranged topically. Many of the texts contradict each other (the collection’s official title is Concordia Discordantium Canonum, or “Concordance of Discordant Canons”), so canon lawyers immediately began to write commentaries that explored the issued raised by these opposing texts.  These commentators on the Decretum are called Decretists.

One of the issues the twelfth-century Decretists debated in their commentaries was the origins of private property. The Decretum includes a text that states, “by natural law all things are common.” Human institutions are supposed to reflect natural law, so the Decretists needed somehow to account for the existence of private property. The Decretist Huguccio, for example, concluded that “common” (commune in Latin) meant “to be shared [communicanda] in time of necessity.” But otherwise, individuals had a right to their own property. ⁵

All the definitions, distinctions, and speculations of the Decretists regarding property were put to good use in the fourteenth-century Franciscan poverty disputes. For centuries Benedictine monks had given up all personal possessions when they joined the monastery, but the monastery as a whole owned plenty of property which the monks were able to share (their model was the early Christian community described in Acts 4:32-35, which “held everything in common”). In his attempt to follow the commandments of the Gospel literally, Francis of Assisi had embraced absolute poverty, enjoining his friars, as the formula had it, to own nothing “either individually or in common.” The problem is that it’s difficult to live that way, especially as the order grew larger and expanded its ministry. The working solution, established in the bull Ordinem vestrem issued in 1245 by Pope Innocent IV, was that buildings, furniture, books, clothing and so forth donated to the Franciscans would be owned by the church as a whole and just “used” by the Franciscans.

This compromise distinguishing between ownership and use was not acceptable to all the Franciscans, however. A splinter group, known as the Spirituals, saw this compromise as a corruption of Franciscan ideals (and therefore of the Gospel). They insisted on what they called “poor use”—it wasn’t enough simply to renounce legal ownership; one should actually live in poverty. The papacy saw the Spirituals as dangerous, because they could easily go from claiming to be holier than churchmen who lived in luxury to claiming that all property held by the church was illegitimate, because it was contrary to the absolute poverty of Christ and the Apostles.

The Spirituals’ position played into the hands of supporters of the Holy Roman Emperor against the temporal claims of the papacy. Faced with this threat, in 1323 Pope John XXII, in the bull Cum inter nonnullos, declared the belief that Christ and the Apostles were absolutely poor to be heretical. To justify the papal position, opponents of the Spirituals asserted a natural right to property. They argued that it is impossible to renounce this right (in other words, it is inalienable) because, while one might give up one’s possessions, one can never renounce the right to one’s own body or to items consumable in use (like food—how can you say you don’t own the food that you swallow and digest?). The rich tradition of medieval discussion of rights was passed on to the seventeenth-century theorists. ⁶

Another self-evident truth found in the Declaration of Independence is that governments derive “their just powers from the consent of the governed.” The idea that this consent could best be expressed by means of a representative assembly such as a Parliament developed in the Middle Ages. Eighteenth-century American Whigs frequently referred to the Magna Carta as one of the sources of their rights as Englishmen. Item twelve of Magna Carta states that the King agrees that “No scutage or aid [types of monetary contributions to the crown] may be levied in our kingdom without its general consent.” (This, of course, is the urtext for “No taxation without representation”).

But an additional source for the idea of consent comes not from common law but from canon law. Beginning around 1200, canonists began to cite a formula they found in Roman law (although in a completely different context ⁷), Quod omnes tangit ab omnibus approbetur, or “What touches all ought to be approved by all,” when referring first to the operation of ecclesiastical corporations (such as monasteries, religious orders or cathedral chapters) and then as a justification for church councils. ⁸

Soon the phrase began to appear in secular contexts as well. For example, in 1293, the government of the Florentine popolo issued a law code called the Ordinances of Justice whose first rubric echoes Quod omnes tangit:  “that is agreed to be most perfect which . . . is approved by the judgment of all.” ⁹ Two years later, King Edward I of England issued a summons to Parliament that included these words: “a most just law, established by the careful providence of sacred princes, exhorts and decrees that what affects all, by all should be approved.” ¹⁰

When a government based on consent begins to act tyrannically, wrote Jefferson, the people have a right to rebel against it: “When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government.” This passage is another part of the Declaration that is usually considered to be Lockean. But again, medieval canonists also wrote about circumstances in which a people might remove their ruler. In the twelfth century, Decretists became concerned about what would happen if the pope were to be a heretic. This would be very dangerous, because a heretical pope could infect the faithful with his incorrect teachings and thereby jeopardize their eternal salvation. The Decretists concluded that the Church, as represented in a General Council, could depose a heretical pope. But some Decretists took their logic a bit further—what if the pope committed not heresy but some other serious sin? Given his position, wouldn’t that be just as bad? What if, for example, he were a fornicator? Huguccio imagines the situation:

“But I believe that it is the same in any notorious crime, that the pope can be accused and condemned if, being admonished, he is not willing to desist. What then? Behold, he steals publicly, he fornicates publicly, he keeps a concubine publicly, he has intercourse with her publicly in the church, near the altar or on it, and being admonished will not desist. Shall he not be accused? Shall he not be condemned? Is it not like heresy to scandalize the church in such a fashion?”¹¹

Huguccio’s list of imaginary papal sins reminds me of the crimes Jefferson attributed to George III. Huguccio denied that a General Council could actually sit in judgment on a sinful pope, because a pope can be judged by no one. Rather, because of his sins he was incapable of being pope and therefore automatically deposed himself. The Council simply “declared” that he had done so. Is that possibly what Jefferson thought he was doing when he listed the king’s crimes as part of declaring independence?

The twelfth-century canonists were thinking hypothetically, but in the late fourteenth-century a situation actually arose in which the pope appeared to be endangering the whole body of the church. During the Great Schism, which began in 1378, first two, then (after 1409) three men all claimed to be the legitimately elected pope and all of them refused any concession or compromise. Drawing on the ideas of Decretists like Huguccio, writers known as Conciliarists argued that in such a dire situation the whole church, as represented in a General Council, had a right to depose the schismatic popes. The first attempt to do so, the Council of Pisa, failed (that’s where the third pope came from), but the 1415 Council of Constance successfully asserted the powers of a General Council, deposed all three popes, and elected a new one.

The Conciliarists, however, went beyond the emergency situation; they believed that the church would be better off if General Councils met regularly, instead of only in a crisis, in hopes that crises would not develop. In other words, they believed in parliamentary government for the church. In 1417 the Council of Constance issued the decree Frequens, which stipulated that from then on General Councils should meet at regular intervals. ¹²

The Conciliarists, as you may have noticed, ultimately were not successful; the Catholic Church did not become a constitutional monarchy. But their writings were eagerly adapted by seventeenth-century English Parliamentarians during the English Civil War—wherever they read “Pope” they substituted “King,” and for “General Council” they substituted “Parliament.” The 1689 English Bill of Rights includes a provision “that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.” This was clearly inspired partly by Charles I’s failure to summon Parliament between 1629 and 1640, but it is also a definite echo of Frequens.

Alan Gibson, in Interpreting the Founding, characterizes J.G.A. Pocock’s republican approach to the American founding as

“a sweeping narrative that traces the transmissions and transformations of the civic humanist tradition of political thought through three reconstructions: the first in fifteenth-and sixteenth-century Florence (“The Machiavellian Moment”), the second in early modern England (“The Harringtonian Moment”), and a third in revolutionary America.” ¹³

I would like to suggest that Pocock’s “sweeping narrative” didn’t begin far enough back, and further that it is itself trapped in a sweeping narrative invented in the Renaissance and strengthened in the Enlightenment—the threefold periodization of the western tradition into ancient, medieval and modern. American history is modern history; it therefore by definition can’t be medieval. Brian Tierney, the historian who has done the most to uncover the medieval, and especially the canonical, roots of modern political ideas, has written that the history of constitutional thought can’t be understood “unless we consider the whole period from 1150 to 1650 as a single era of essentially continuous development.” ¹⁴

Or, to put it another way, perhaps we should consider the ideological origins of the American Revolution to begin, not with a Machiavellian, but a Huguccian Moment.

1. Charles Homer Haskins, The Renaissance of the Twelfth Century (Cambridge, MA: Harvard Univ. Press, 1927; repr. new American Library, 1976), v-vi.
2. The episode was titled “Philadelphia Story”; it aired January 17, 1985, in the show’s third season. See Family Ties: Episode Guide. I have been unable to find this specific scene on youtube.
3. A little-known meaning of the verb “engross” is “to prepare the text of an official document by an officially prescribed process, such as handwriting or printing”(American Heritage Dictionary, 1976 edition). On the production of the official copies of the Declaration, see the article “How Was it Made?” on the National Archives website.
4. In the play and movie 1776, Charles Thomson is the one who calls the roll and reads out George Washington’s dispatches. Timothy Matlack also engrossed Washington’s commission as Commander in Chief of the Continental Army.
5. See Brian Tierney, Medieval Poor Law: A Sketch of Canonical Theory and its Application in England (Berkeley and Los Angeles: Univ. of California Press, 1959), 28-35.
6. On the Decretist ideas, Franciscan disputes, and their later history, see Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150-1625, Emory University Studies in Law and Religion 5 (Atlanta: Scholars Press, 1997).
7. The Roman lawyers used the phrase in the context of private law, not constitutional law, when discussing co-guardianship: all the guardians of a minor have to agree on important issues, because “what touches all ought to be approved by all.”
8. On the uses of Quod omnes tangit, see Brian Tierney, Religion, Law, and the Growth of Constitutional Thought, 1150-1650 (Cambridge: Cambridge Univ. Press, 1982), 24-25.
9. “Ordinamenti di Giustizia,” in Gaetano Salvemini, Magnati e popolani in Firenze dal 1280 al 1295 (Florence: Tipografia Carnesecchi e Figli, 1899), 385 (my translation).
10. “Summons of a Bishop to Parliament,” in Brian Tierney, ed., The Middle Ages, Vol. 1, Sources of Medieval History, 5th ed. (New York: McGraw Hill, 1992), 297.
11. Huguccio, Commentary on Decretum Dist. 40 c. 6, in Tierney, Sources, 240.
12. On the development of Conciliar ideas from Decretist sources, see Brian Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian to the Great Schism (Cambridge: Cambridge Univ. Press, 1955).
13. Alan Gibson, Interpreting the Founding: Guide to the Enduring Debates over the Origins and Foundations of the American Republic (Lawrence: Univ. Press of Kansas, 2006), 24.
14. Tierney, Religion, 1.