*55.

"The Sovereignty of the Artist: A Note on Legal Maxims and Renaissance Theo-
ries of Art," in De Artibus Opuscula XL: Essays in Honor ofErwin Panofsky, ed. Millard

Meiss (New York, 1961), 267-279.

EK's copy, annotated.

A. Letter fron Guinea Post, ?.0 Nov 5B

B. Idem, not long after- •'^rds.

C. "Ablericus de Rosate" (half page, rellovO

D. Letter froia ^^tejlnan Kuttner, ?.?. Nov 5^» ^*i th a

page of no^es attached.

E. ''Magno su ingenio" (page)

F. ''Angelo de Tib'^ldis" (page, ^ellov)

G. ''Arnold Hause^" (3x5 card)

H. "'Harry Volfson*' (slip)

I, Letter from Gafnes ^ost, 28 June 61

J, Letter from ^tephan Kuttner, 1 Aug 61

K. Letter from Konrad Hoffman, 11 May 63

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 Reprinted from

DE ARTIBUS OPUSCULA XL

ESSAYS IN HONOR OF
ERWIN PANOFSKY

Edited by MILLARD MEISS

New York University Press • i^6i

'flU

~^^^^

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 The Sovereignty of the Artist f

A Note on Legal Maxims and Renaissance Theories of Art

ERNST H. KANTOROWICZ

That the writings of medieval jurists— glossators and commentators of Roman and canon
law— might have been in any respect relevant to the development of Renaissance theories of
art has rarely been taken into consideration. There is, however, an almost a priori reflection
which would render such a hypothesis less improbable than might appear at first sight : the
fact that in the thirteenth and fourteenth centuries the intelligentsia was represented, at least

in Italy, largely by learned jurisprudents, and that therefore poets and humanists— occa-
sionally even an artist, Alberti— not infrequently started their careers by studying law.
Moreover, the general humanistic climate of Italy was certainly prepared by the jurists of the
thirteenth century who, after all, trained their wits and demonstrated them by commenting
upon a classical text— the Roman body of civil law— which in its entirety had been handed
down from antiquity and was, as Petrarch understandingly put it, an autoritas Romane anti-

quitatis plena} Finally, those scholars, many of whom were poets themselves, were also the
men who first applied other classical authors to practical life and read the texts not only as

belles lettres for edification but also as sources for the purpose of extracting from them such
principles as might prove useful for expounding the law.^ At any rate, an antiquity which was
systematically applied to daily life and even enforced by the authority of the law made its

first appearance within the circles of jurisprudents.

For valuable information in matters of medieval law I am Medieval Idea of Law as Represented by Lucas de Penna, London,
greatly indebted to the kindness of Professors Stephan Kuttner i946,p.33,n.2o, and Maffei, op.cit.,pp.<)^R. He had some vener-
and Gaines Post, while for various suggestions in other fields ation also for Cynus of Pistoia (Savigny.vi.p.S^), and the jurist

my thanks go to Dr. Robert L. Benson, to Professor and Mrs. Guglielmo da Pastrcngo was his close friend.

Enrico de'Negri, and to Professor Erwin Panofsky. * Albericus de Rosate (d.1354). In Digestum novum, prooem.,
n.2o,\'enice,i585,f.5r, saysunambiguously: Allegat etiam haec
' Petrarch, "Epistola ad postcros," in Francesco Petrarca, scienlia poetas. See also on Dig.,i,%,(>,^,f.(yi, where Albericus

Prose, ed. G. Martellotti, P.G.Ricci, et al., Milan and Naples, defends (against Accursius and the Glossa ordinaria on the Ro-
"legum autori-
i95 5,p.lo, states that he was far from disliking man Corpus) the thesis that when the law is deficient and a
tas, que absque dubio magna est et romane antiquitatis plena, might clarify the cause, "authoritates poeta-
f>oetic allegation

qua delector." Cf. Domenico Maffci, Gli im~i deWumanesimo rum et philosophorum possint in causis allegari." He
. . .

giuridko, Milan, I956,p. 56, who in his first chapter, pp.3 5-78, himself a«ually alleged Dante quite frequently, both the De
ably discusses the invectives against the jurists on the part of Monorchia and the Divina Commedia; cf. Bruno Nardi {Sel
the humanists. Petrarch himself studied law apparently under mondo Rome,i944,pp. 163-1 73 [reprinted from Studi
di Dante,

the guidance of Oldradus de Ponte and Joannes Andreac

( ?) danteschi, xxvi,i942]), who has colleaed some of these ref-

see, for the letters to Joannes Andreae, I-^pistnlae de rebus fa- erences to Dante as a legal authority. Lucas de Penna, In Tres
miliaribus, v.y-g, and perhaps also the very Pctrarchcsqucly IJbros, prooem., Lyon, i544,fol.iva, makes a similar statement
unpleasant ones, iv, 15-16, ed. Giuseppe Fracassetti, Florence, concerning the legal references to poets, and adds: "Ego in

I, i859,pp. 273-282,237-247; according to Savigny, Geschichte non credunt sine leaione

illorum sententiam facillime cedo qui
des romiscben Rechts im Mittelalter, Heidelberg,: 8 34,vi,p. 112, auctorum posse hominem fieri literatum." As Albericus cited
the last two were not addressed to Joannes Andreae at
letters Dante, so would Lucas de Penna cite Petrarch; see on Cod.,
all. Petrarch was also in correspondence with Lucas de Penna, io,i8,i,f.26va, for an allegation of Famil.,y.n,i, and L'llmann,
a highly educated South-Italian jurist; cf. W. L'llmann, I'be Imcos de Penna, p. 5 3, n. 20, for other references.

267

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268 ERNST H. KANTOROWICZ THE SOVEREIGNTY OF THE ARTIST 269

It is not intended here to discuss the easily demonstrable influence which individual laws around 1250. There were, however, other literary channels accessible to the Middle Ages
of the Roman Corpus exercised on the artistic development of Italian cities. It is, for example,
through which knowledge of these doctrines could have been transmitted in|a more indirect
noteworthy that the laws on city planning issued by the Emperor Zeno in 474, and confirmed fashion.8 One of those channels, which was quite independent of the normal literary cur-
by Justinian in 531, found their way into the statute books of almost all Italian communes as
rents, was Roman law. While harking back to early Roman jurists of the first and second
early as the second half of the thirteenth century and occasionally, for instance in Pisa, even
centuries, Justinian's Institutes and Digest reproduced, and medieval jurists therefore began to
by the middle of the twelfth (1164).' Or we may recall that the laws concerning statues,
interpret, the essence of the Aristotelian maxim." To be sure, in the legal jargon the famous
images, and the decoration of public squares, which are found in considerable number in the
principle did not refer to visual arts or artistic vocation at all, but referred to art only in a
law books of Justinian, had some effect insofar as they promoted the concept of a profane very special sense, far removed from painting and sculpture. It was quoted for a rather pro-
art, which was ars pnblica, in juxtaposition with a sacred art, which was ars ecclesiastica.*
saic and sober purpose, that is, to clarify a certain point of the law of adoption. "It is
the
Nor should we forget that the idea of an equilibrium of arma et leges, to which Justinian opinion that a younger person cannot adopt an older one; for adoption imitates nature, and
referred in the proems to the Institutes and the Codex, was transformed by Renaissance artists
would be monstrous
it if the son were older than the father."i» That is to say. Jurisprudence,
into the related ideal of arma et litterae and was reflected by emblematic art as well as by commonly defined as an art {ius est ars boni et aequi),^^ "imitated nature" just as every other
literary disputes, e.g., between Militia et Jurisprudentia or Ars et Afars.^ What shall be ven- art was supposed to do, and imitated it, in the case of adoption, by means of an artistic
tured here is merely to demonstrate that certain current views of later theoreticians were fiction:though blood relationship did not necessarily exist, an older person was yet entitled
foreshadowed by the writings of the jurists, and that there existed, to say the least, some strong to recognize a younger one legally as his son, and a younger one, an older one as his father.
analogies between the poetico-artistic theories of the Renaissance on the one hand and the "Therefore," writes Baldus enlarging on Bartolus, "fiction imitates nature, and for that reason
professional doctrines of medieval jurists on the other. can take place only where truth
fiction may have its place." ^^ Baldus derived his thesis from
There was, in the first place, a whole cluster of interrelated problems which vexed the Roman law exclusively. But an author of the Trecento, such as Baldus was, could hardly
Renaissance artists and poets and to which their attention was drawn over and over again. avoid drifting into the sphere of Aristotelian influence as well, nor would he have tried to
Was art supposed to imitate nature, or should it surpass nature and proceed beyond imitation avoid it; and thus it happened that Baldus opined on another occasion, though still in con-
to new invention? Was there fiction involved, and how did fiction refer to truth? What was
nection with the law of adoption, that "art imitates nature so far as it can," and then added:
the relationship between art and inspiration, ars and ingenium—z. problem nonexistent so long "Notice that fiction imitates the idea of nature and its style {naturae rationem atque stjlum)."^^
as an art was The answers, of course, were never uniform, and they were contra-
a craft?
Fiction, in that whole context, had not the slightest derogatory meaning. It was as little
dictory even within the work of the same author.^ Those various opinions shall not occupy derogatory as Petrarch's definition of the "office of the poet," which was said to "disclose
us here; also, the struggle about the supremacy of poetry over painting or vice versa, and of and glorify the truth of things woven, as it were, into a decorous cloud of fiction." 1* Fiction
painting over sculpture or vice versa, may be left aside at this time.' On the other hand, the was rather something artfully "created" by the art of the jurist; it was an achievement to his
group of notions such as ars, imitatio, natura, inventio, fictio, Veritas and divine inspiration is credit because fiction made manifest certain legal consequences, which had been hidden before
important because it is associated with problems which can be traced back without dif- or which by nature did not exist. For by fiction the jurist could create (so to say, from nothing)
ficulty to the medieval jurisprudents. • Physics, ii,2,i94a2i,of course decisive, and in the Poetics
is locum on the same law, Venice, 1 5 67,f. 1 39.
Veritas." Bartolus,
"Art imitates Nature," was, of course, an Aristotelian maxim. It became generally known it is the general problem of mimesis and poiesis which is relevant. " Baldus, on /J'/g.,i,7,i6,f.38v: "Ars naturam imitatur in-
The however, though translated in the thirteenth cen-
Poetics, quantum potest," with the additio: "Nota quod Actio naturae
after the Physics had been translated some time before 1200, and the likewise relevant Poetics,
tury by Hermann the German, became really effective in the rationem atque stylum imitatur."
high Renaissance only; see Lee, o/i.«7.,p.20i,n.23. Horace and '• The definition is that of the Privilegium which Petrarch re-
Macrobius were influential; cf. Ernst Robert Curtius, Huropai- ceived at his Capitoline coronation (1341). For the corrected
' fro(/.,8,:o,i2-i3. On these and other related laws, cf. ics," Cbarites: Studien r^ur Altertumsnissenschaft, ed. Konrad
Moritz Voigt, "Die romischen Baugesctzc," Sit^. Ber. Sdiht.
sche IJteratur und lateiniscbes Mitlelalter, Berne,i948,pp.442ff. for text, see Konrad Burdach, X^om Mitlelalter y4r Reformation, 11,
Schauenburg,Bonn,i957,pp.265-274. Jacobus a Bruck (sccibid.,
Macrobius, and pp.524f. for the long history of Dante's di na- part i: Rien^o und die geistige W'andlung seiner Zeit, BerUn,i9i3-
Gesellschaft der Wisstnscbaften ;;« LeifK^ig, Lv,i90},pp.i75-i98, p.274,n.45), author of Umbkmata politica, Strasbourg and Co-
tura buona scimia; see also H.VC'. Janson, Apes and Ape Lore in i928,p.509,n.2: "Ignorant autem poctae ofticium ... in hoc
esp.igoff. ;for the revival and reinforcement of those laws, logne, 161 8, published also a mirror of princes bearing the em-
the Middle Ages and the Renaissance, London,i952,pp.287ff. esse: veritatem rei,sub amoenis coloribus absconditam et de-
see Wolfgang Braunfels, Mittelalterlkhe Stadlhaukimst in der blematic m\cArset Mars, Strasbourg,i6i6; cf Borinski, op.cit.,
Toskana,
* The relevant law is Dig.,i,j,i6.; but more explicit is Inst., cora velut figmentorum umbra contectam, altisonis celebratam
Berlin,i953,pp.88,ii i(Pisa),i 14. See also Hcinrich i,p.i9i, and his study "Ein Brandenburgischer Regentenspiegcl
1,11,4 (sec next note). carminibus et dulcis eloquii suavitate respergat." In his Ora-
Felix Schmid, "Das Wcitcrlcben und die >Xiederbclcbung an- und das Fiirstenideal vor dcm
grosscn Kriege," Studien r^ur "/«//., 1, 11,14: "Minorem natu non posse maiorem adoptare tion, which he delivered on the Capitol, Petrarch repeated al-
tiker Institutionen im mittelalterlichen Stadtcwesen,"^««a/;V; vergleicbenden Literaturgesrbicbte, v,i905,pp.i96-225,
323-329. Sec placet: adoptio enim naturam imitatur et pro monstro est, ut most these very words (sub velamine figmentorum) and gave as
Storia del Diritto, i,i957,pp.85-i35. also Heinrich Fichtenau, Arenga, Graz and Cologne, i957,p.i99
* E.H. Kantorowicz, "Glosses on the State Portrait," Paper
maior sit Alius quam pater." his source Macrobius (sub poetici nube figmenti); cf. E.H. Wil-
(cf pp.26ff.), for the change from leges et arma to arma et litterae. ^^ Dig., 1, 1,1, a passage naturally discussed hundreds of times. kins, "The Coronation of Petrarch,".S/vew/x/w, xvin,i943,p.i75;
(not yet published) read at the Annual Meeting of the College • Cf. Rensselaer W. Lee, "Ut pictura poesis: The Humanistic A late jurist, Joannes Oinotomus, on /«//., 1,1 1,4, Venice,i643, see also his Studies in the Life and Works of Petrarch, Cambridge,
Art Association, Pittsburgh, Pa., January 26,1956. Cf. Karl Theory of Painting," Art Bulletin, xxii,i94o,pp.i97-269,esp. "Adoptio cnim ceu ars imitatur na- Mass. 195 5,pp.3o6f., for an English translation of the not
Borinski, Die Antike in Poetik und Kmsttheorie, Leipzig,i9i4,i, p.45, says expressis verbis: ,

204f., for the inconsistencies within the theories.

turam." easily accessible text. That the Privilegium was inspired by Pe-
p.84,n.i, and p. 269 for other instances of legal influence. ' Sec below, notes 63^, and, in general, E. Garin, La disputa " Baldus, on/^/g.,i7,2,3,n.2, Venice, 1 5 86,f.i 20v "Fictio ergo trarch can no longer be doubted; see below, n.6o.
» E.H. Kantorowicz, "On Transformations of
:

ApoUine Eth- delle arti nel Quattrocento, Florence, 1948. imitatur naturam. Ergo Actio habct locum, ubi potest habere

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 270 ERNST H. KANTOROWICZ THE SOVEREIGNTY OF THE ARTIST 271
a legal person, ^ persona ficta—z corporation, for example— and endow it with a truth and a commonly idealized as the "animate law," by his act of re-creating nature (so to say) within
life of its own ; or he could interpret an existing body, such as the corpus mysticum of the his limited orbit, showed some resemblance with the Divine Creator when creating the
Church, in the sense of a fictitious person, and gain a heuristic element by means of which he totality of nature. He was therefore, as the jurists and political theoreticians asserted time and
might arrive at new insights into administration, property rights, and other conditions. In time again, sicut deus in terris.^^
that sense fiction was a He as little as poetry was a lie, the latter a current assumption deriving known that according to the artistic theories of the high Renaissance the
It IS well
from classical antiquity against which Petrarch struggled with all his authority.'* Therefore ingentum—^nm or poet— was not uncommonly recognized as a simile of the creating God,
Aquinas could say that fiction, far from being a lie, might on the contrary be zfigura veritatis, since the artist himself was considered a "creator." Ernst Robert Curtius, who devoted the
because, ran his argument, otherwise all that had been said by wise and holy men or even by last paragraph of his learned book on medieval European literature to this problem, came to
the Lord Himself would be held to be mendacious. 1® On the other hand, the imitation of the conclusion that the concept of the poeta creator did not antedate the eighteenth century,
nature was thought to be praiseworthy in itself. Consequently, a jurist of the early fourteenth when it began to make its appearance sporadically, and he quoted as an example Goethe's
century, Oldradus de Ponte, came to defend alchemy because he concluded: "Since art reflections at Strasbourg in 1775. This however, a date which
is, is far too late. Cristoforo
do not seem to commit a sin.""
imitates nature, alchemists Landini in the fifteenth century styled the poet, Dante, at least Tiprocreator like to God.^^ The
A more serious aspect and a deeper layer of the problem was struck by Cynus of Pistoia, creator metaphor was even more common with artists. Professor Panofsky called attention to
Dante's friend and himself a poet. For Cynus insisted that, in general, "civil [i.e., legal] acts statements of Diirer which he carefully analyzed and in which Diirer explained that the
have to imitate nature," just as he held that "law {jus) imitates nature." i**
We arrive therewith artist, whom he likened to God, had the power to "create," that is, create "in his heart"
at a very broad problem : that of the legislator as an artist, because he was one who ^.v officio something that had never been in anyone's mind before.^* This is certainly diametrically
imitated nature. The major premise, of course, must be sought in the assumption, shared by opposed to "imitation," because Diirer's dictum expresses the consciousness of a non-
everyone in the Middle Ages, that there existed an independent Law of Nature. On that imitating, therefore original or creative, power in the heart of the artist. Panofsky, of course,
basis, a political author such as Aegidius Romanus could build up, in his De regimim prin- was well aware of the fact that in the later Cinquecento the creator metaphor was quite often
cipiim, almost a theory of royal imitation of nature, a subject touched upon already by Thomas applied to and
artists, that the preceding generations had come very close to similar concepts."
Aquinas.is To him the act of legislating appeared as an art imitating nature because it imitated They should, however, not be confused with the etymon poesis, poeta, deriving from Greek
the law of nature. The art of the legislator, however, though determined by the general noielvand only by mistake occasionally translated with "create." This was not the meaning
natural law, has to "adinvent" the particulare of the positive law ("lus positivum ... est per the medieval authorities gave to poeta and poesis, and it may suffice here to refer to Dante,
industriam hominum adinventum"),^" that is, the particular application of the general law of who in a famous passage of De vulgari eloquentia interpreted poesis as fictio rhetorica musicaque
nature to a limited space and a limited time, yet in such a fashion that the particulare composita, thereby vaguely following
still Huguccio of Pisa's Magnae derivationes. This, and not
reflected the generale of the law of nature. In other words, the legislator does both more and "creator," was also the meaning which Petrarch and Boccaccio as well attributed to poeta, and
less than "imitating nature" because he "adinvents." Nevertheless, the general rule of ars E. R. Curtius had good reasons for reminding his readers that "the poet a creator" was in
imitatrix naturae remains valid also for Aegidius Romanus, because the legislator's work fact the application, not of a classical, but of a Jewish-Christian metaphor.^^
should reflect in its proportions the totality of nature.^i It was plausible that the legislator. This is indisputably correct; but when one tries to find when and where this theological

metaphor was originally applied, by whom and to whom, one will have to inquire in the
" The whole second section of his Oration
is devoted to sunt praesupponunt quae sunt naturae." On the work of
artis
the subject of truth in poetry; see Wilkins, Studies, pp.joGf. Aegidius, see the brief and clear analysis by VCilhelm Berges,
first place into the works of the early Decretalists around and after 1200. There indeed the
For the classical conception of the mendacious character of Die Fiirstenspiegel des hohen und spdten Mittelalters, Stuttgart, metaphor appears characteristically in connection with the then relatively new papal title of
poetry, see Borinski, Poetik imd Kunsttheorie, also i938,pp.2ii-228; also
i.pp.iff. ;
p. 32 for Aquinas, De regimine principum,
E.R.Curtius, liuropdische Literatur, pp.21 i,n.i,222f.,40i. i,c.i2 ("Ea quae sunt secundum artem, imitantur
^' Summa theologica, ni,q.5 5,art.4,ad i, quoting Augustine, secundum naturam").
ca, quae sunt " There is hardly one civilian who would fail to interpret Renaissance, A Symposium, February S-jo,jfj2, New York,i9j3,
the position of the princeps in similar terms Kantorowicz, cf. p.90.
Dt qtmestionibus Evangelistarum, ii,c.5i (Migne, Patrol.lat., "> Loc.cit.; see also above, n.19,
where the sentence preceding
;

xxxv,col.i362).
The King's Two Bodies, Princeton, :957,p.92,n. 16, for the sources; " Panofsky, "Artist, Scientist, Genius," p.90, mentions,
the one quoted stresses once more the "adinvention" (f.3o6v):
"Oldradus de Ponte, Consilia, Lxxiv.n. i, Venice, I57i,f29r;
cf. Otto von Gierke, Das deutsche Cenossenschaftsrecht, ^ct- c.g.,theAnnotatorto Leonardo da Vinci of ca.1550, who makes
"[ius positivum] quia semper quae sunt per artem hominum
cf xciv,n.8,f.}6rb: "Sic in natura videmus, quani ars imitatur, lin,i88i,iii,pp.562f ,nos.ii9-i22;alsoFichtenau,^rfng<j(above, creatore synonymous with Leonardo's signore e Die; cf. Zilsel
adinventa, fundantur in his quae tradita sunt a natura."
ut insti. de adopt. § minorcm."
n.5),p.i5o,n.8. Porphyry, I'ita Plotini, c.5,mentions a (lost) {op.cit.,}p.zii), who mentions the interesting passage from
" /W.,iii,2,cap.8,f 278r: "Si rex vult scire desiderata
. . .

"Cynus, on Cod'.,7,37,3,n.5,Frankfurt,i578,f.446ra: "Civiles

. . .
by Origen having the title
tractate : "The King the Paramount Francesco de Hollanda, V'ier Gesprdche iiher die Maierei gejiihrt
quod sit cius officium, diligenter considerare debet in naturali-
Creator" {on ftovoi noitjTtji 6 fiaatkev;). ~» Rom i;)S (Quellenschriften fiir Kunstgeschichte, new se-
actus naturam habcant imitari." Also, on Coi/., 2,5,io,n. 5, f.jir: bus rebus. Nam natura tota administratur per ipsum
si Deum, " Curtius, Liuropdische Literatur, pp.4o:fT. For Cristoforo ries,ix), Vienna, i899,p. 116 (= f 144V).
"lus naturam imitatur," a passage repeated verbatim by Angelus qui est princeps summus et rex regum,
quo rectissime regitura
de Ubaldis, on Z)/g., 1,7, 16, Venice, i58o,fi7v. Landini, cf. Edgar Zilsel, Die Entslebung des Genitbegriffes, Tii- •• See Alfredo Schiaftini, " 'Poesis' e 'Poeta' in Dante,"
uni versa tota natura: quare a regimine quod videmus in natu-
"Aegidius Romanus, De regimine principum, iii,2,cap.24, bingen,i926,p.28:,n.i5i. Studia philologica et litteraria in bonorem L. Spit~er, ed. A.G.
ralibus, derivari debet regimen, quod trahendum est in arte
de " Erwin Panofsky, Albrecht Diirer, 3rd ed., Princeton, 1948, Hatcher and K.L.Selig, Bem,i958,pp.379-389, esp.381 (for
Romc,i5 56,f 307: "lus enim positivum per artem et industriam regimine regum; est enim ars imitalrix naturae."
hominum adinventum praesupponit ius naturale, sicut ea quae i,pp.279ff. ; see also his "Artist, Scientist, Genius: Notes on Petrarch and Boccaccio), 3 84 (Huguccio of Pisa); see also Cur-
the Kcml%&aiio:.-V>iinmcTmig," Metropolitan Museum of Art: The tius, o/>.rt/.,p.i54.

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272 ERNST H. KANTOROWICZ THE SOVEREIGNTY OF THE ARTIST 273
Vkarius Christi or Vicarius Dei, which began to spread during the twelfth century though it makes something that is, not be; and makes something that is not, come into being." Hos-
had been used sporadically before.^' Through the agency of certain decretals of Pope Inno- tiensis thus added to the glosses of his predecessors also the opposite and perhaps more con-
cent III, who availed himself very frequently of that title, it penetrated into canon law and vincing papal capability of bringing something existing to nought (de aliqno facit nihil), which
was consequently interpreted and glossed on by canon lawyers. Around 1220 the canonist he explained by quoting the prerogative oi mutare etiam naturam rei?^ Non ens fore, on the
Tancred glossed on the words dei vicem of an Innocentian decretal of 1198, incorporated in other hand, he explained in the traditional way: id est, de nihilo aliqiiid facit, a doctrine which
one of the early collections of papal decretals, the so-called Compilutio III, and wrote: he cited once more in his Lectura?'^ At the end of the century Gulielmus Durandus (d. 1296)
quoted the doctrine in his Speculum iiiris, repeating also the tenet concerning the papal
In that respect [regarding the lands of the churches] he [the popej acts as the vice-gerent of God, capability of "changing the nature of things. "^^
because he is seated in the place of Jesus Christ, who is true God and true man .... Also, he makes
So far these extraordinary prerogatives have been attributed to the pope alone. In the
something out of nothing like God. . . . Also, in those affairs he acts in the place of God because he has the
plenitude of power in matters pertaining to the Church .... Also, because he can give dispensation
course of time, however, they ceased to represent a papal monopoly. A French jurist of the
above and against the law .... Also, because from justice he can make injustice by correcting and fifteenth century, Guido Papa (d. 1487), transferred the doctrine de nihilo aliqiiid facit to
changing the law .... Nor is there any person who could say to him Why dost thou act as thou :
the secular power, to the emperor, and thereby implicitly to kings who were "emperors within
dost? 28 their realms" and could claim the plenitiido potestatis with regard to their regna?^ It should not
remain unmentioned, however, that by an audacious somersault the doctrine was applied
This remarkable theory concerning the pope, who de nichilo facit aliqiiid nt Dens, passed
also to the person from whom, no less audaciously, it had been derived— to Christ. Conrad of
from Tancred to Bernard Botone of Parma and his Glossa ordimria on the Liher Extra (ca-.
Halberstadt, a chronographer of the middle of the fourteenth century, discussed certain
1044), that on the great collection of papal decrees composed by Raymund of Penafort
is,
f w* » " effects proceeding "a Christo pontifice summo tiprimopapa . . . per quem de plenitiidine potestatis
and published by Pope Gregory ix in 1234. Following Tancred, the glossator said de nulla
omniz facta sunt ex nichilo."^^ By thus transferring papal authority, and canonistic maxims
potest aliqiudfacere, repeating also most of the other arguments but ; at the same time he added defining Tpvp'a\ plenitiido potestatis, to Christ, the "first pope,"^* everything seems to fall again
a few items serving to illustrate the papal plenitude of power: the pope's initiative is derived into its proper place, virtute iuris canonici. Christ, who had been royal or imperial during the
from divine judgment, and he can change the nature of things ("dicitur habere coeleste arbi-
earUer Middle Ages, was papalized— also iconographically— in the late medieval centuries,
trium...et ideo etiam naturam rerum immutat").^' Shortly thereafter, Hostiensis cited the
^i-
when in their turn the secular powers appropriated to themselves numerous papal preroga-
doctrine of Tancred and the Glossa ordinaria in his Sunima aurea (ca. 1250-125 3). While refer-
tives.
ring to Raymund of Pefiafort, who in his Sn/tima de casihns (ca. 1 227-1 234) had jotted down The question might be raised whether the canon lawyers depended upon some extra-legal
thirty-four cases of prerogative rights reserved to the pope exclusively, pouring them for sources. The answer would be that this is unlikely. Peter the Lombard, it is true, advanced
mnemotechnic reasons into verse, Hostiensis increased their number to sixty, and produced the hypothesis that just as man could forgive sins, so man could also be said to create; but he
among his addimenta the line "Ens non esse facit, non ens fore ...."*' That is, "He [the popeJ
made it perfectly clear that the forgiving of sins was a human ministry, that in fact the Lord
" For
the history of this title, sec the careful monograph by iniusticiam corrigendo ius et mutando, ut in constit. domini operated cum servo et in servo, and that man could make something from an existing matter
Michele Maccarronc, Vicarius Christi: Storia dei titolo papale, Innocentii in. "ut debitus" [Comp.IV, 2,12,3 2,28,59], e' =X
Rome,i952,esp.pp.io9iT. for Innocent in. c. "non debet" [Comp.IV, 4,3,3 =X
4,14,8]. Nee est qui dicat only, but could not create ex nihilo. And Aquinas bluntly denied that the creations of nature
" The ei, cur ita facis [De penitencia (C.33,q.3),D.3, c.21 post].
gloss of Tancred on Compilatio ///,i,5,; (= X 1,7,3), and art were really creative acts, holding with St. xVugustine that none but God was a creator,
mentioned by Walter Ullmann, Medieval Papalism, London,
In Tierney's transcription from the Cambridge MS the words
I949.p.52.n.:, was rendered more completely by Gaines Post
ut I^eus the second clause are missing, whereas they are
in
because even new forms introduced by nature and art were potentially "concreated" with the
in his review of Ullmann's book in Speculum, xxvi.igj i,p.25o,
and by Maccarrone, op.cit. ,p.\zo, while the full text has been
found in the Bamberg MS as well as in Cod.Vat.lat.1377, which materia-" All this shows merely that the question of artistic "creation" was alive, but that
Maccarrone, op.cit.,p.izo, has reproduced (the text, unfortu-
published by Brian Tierney, Foundations of the Conciliar Theory,
nately, is marred by many errors), omitting, however, the
the answers to it were in the negative. The problem of the sources of the jurists finds a much
Cambridge, 195 5, p.88,n.i, from the Cambridge, Gonvillc and
next to the last clause.
simpler and more straightforward solution. For the source of the Decretalists was clearly the
Caius College ms 17. It deviates only insignificantly, except " Clos. ord. on X 1,7,3, v. "veri Dei vicem." The Gloss on
for one point, from the text in the Bamberg MS Can. 19, f. 124V,
the Liher I-xtra (abbreviated: X) is quoted here according to Decretum Gratiani, that is, a passage from St. Ambrose's De mysteriis, in which Ambrose
of which Professor Post kindly placed a copy at my disposal
the edition of Turin, 1588. The phrase dicitur habere coeleste

In hoc gerit vicem dei, quia sedit in loco iesu christi, qui est arbitrium is a quotation from Cod.,i,\,\,\: "... motus nostri,
verus deus et verus homo, ut in constit. irmocentii "firmiter quem ex caelesti arbitrio sumpserimus." " ("etiam naturam rerum immu- •• K. Wenck, "Die Chronographie Konrads von Halber-
See n.29 for the Glos. ord.
credimus" [Cow^ft. /i., 1,1,1, =X i,i,i]. Item de nichilo facit ^ Hostiensis (Henricus de Segusio), Summa aurea, on X 1,30 perhaps Tancred (n.28): "de stadt und verwandte Quellen," Forschungen ~ur deutschen Gt-
'
tat"). For mutare naturam rei see
aliquid ut deus, arg.iii.q.vi. "hec quippe" [C.;,q.6,c.io], et C. {de officio legati, § "Quid pertinet"), Venice, i586,col.
519, quotes iusticia potest facere iniusticiam corrigendo ius et mutando." schicbte, xx,i88o,p.298, ad annum 1353; cf. Ingeborg Schnack,
de rei ux.act.i. unica in prin.
[CW.,5,i3,i-ia]. Item, in hoc Raymundus. The passage referred to is, as Professor Stephan
gerit vicem dei quia plenitudincm potestatis habet in rebus
" Hostiensis, Lectura, on X 1,7,3, ^- "'f* primo"—a reference Richard von Cluny, Berlin,i92i,p.i6i.
Kuttner kindly informed me, Raymundus, Summa de casibus, " For
ecclcsiasticis, ut.ii.q.vi "decreto" [C.2,q.6,c.i gratefully received from Professor Kuttner. the important problem of Cbristus primus papa, see
de usu
i], infra,
3,27 {de differentiis officiorum, §2), which, however, does not " Schnack who assumes, probably correctly,
pallii. c.ii. [X 1,8,2]. Item, quia potest dispensare super ius et Durandus, Speculum iuris, Lib.i, pt.i {De legato, ^"t^unc"), {op. cit., pp. \'fi&.),
contain the phrase ex nihilo aliciuid facit or its equivalent. Sec,
contra ius, ut infra, de concess. pre[bende et ecclesie] non n. 42, Venice, 1 602, 1, p. 50. that this designation does not antedate the twelfth centur>'.
for Hostiensis, also Ullmann, Medieval J^apalism,pp.^i{. "
vacantis. c.i. (X },8,i]. Item, quia de iusticia potest facere " Guido Papa, Consilia, Lxv,n.9,Lyons,i544,f.86. Petrus Lombardus, Sentential, iv,5,3, also 11,1,3 ('^liKne,

XX I

^.(KS/C^CCX ^^rtj(Cn.a^'' CtSO^cU'^

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^^,^';:?i,^.Tu„«a«^i-«

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 274 ERNST H. KANTOROWICZ
THE SOVEREIGNTY OF THE ARTIST 275
discussed the Lord's Words of Institution which effected the consecration of the elements or,
in the language of the twelfth
had never been made— hence a creatio ex nihilo.*^ The Glossa ordinaria on the Liher Extra
and later centuries, eifected the transubstantiation. "The words
seemed to presuppose that the meaning would be self-explanatory, and offered no further
of Christ, who could make something out of nothing, can they not change things that are
commentary; but a marginal gloss was later added by the Roman correctors of the Decretales,
into something that they were not before? For it is no less [an achievement] to give to things
in which they complained that vix aliquid explicat {glossa] propriis verbis, and therefore pointed
new natures than to change them.''^" We have to recall that the Decretalists were glossing on
out :
"To make something out of nothing is to found new law {est ius novum condere)" that is,
the words veri Dei vicem. Therefore what was valid for Christ was claimed to be valid also for
to legislate." Hostiensis gave no further explanation either, but repeated from the ordinary
the vicarius Christi. The logic was straightforward and massive, and the frequent allegation
Gloss the words saying that the pope could also change the nature of things, a sentence to
of the Ambrosian passage by later commentators shows how remote legal thinking was from
which the marginal gloss remarked that it referred to positive law only, since the pope could
unwarranted diffidence.
not override divine or natural law." This, in his turn, Durandus illustrated by referring also,
What was the meaning of that surprising claim de nihilo jacit [papa] aliquid sicut Deus}
though only indirectly, to the Dictatus papae of Gregory vii "He can make an illegitimate
Tancred, the canonist who to our knowledge coined the phrase, gave a brief explanation. The
:

source of the claim

legitimate, and can make a monk a canon, et huiiismodi."*^ Guido Papa finally explained: "He
is the vicariatus Dei or Christi by which the pope has the plenitndo potes-
[the emperor] can [legally] vivify a dead person and give dispensation beyond the law."^«
tatis.^ What pope could do by his plenitude of power, which Tancred still restricted cor-
the
In other words, the papal-imperial, and probably also royal, power of "making something
rectly to the government of the Church, was to give dispensation above and against the law,
out of nothing" was restricted to certain technicalities of the law as well as to legislation at
provided that his action did not violate faith and divine or natural law (for example, he could
large.
not dissolve a consummated marriage),'"' and he could create new law, thereby making in-
While this simple and prosaic explanation of a seemingly bewildering claim may be
justice what had hitherto been justice. The allegations of Tancred to the Decretum Gratiani
disappointing at first sight and appear to lead us nowhere, the concept at issue is yet inter-
and Justinian's Code, repeated by all his successors, indicated what de nihilo facere meant in the
esting enough. The ideal legislator as visualized by the jurists not only became an imitator of
language of the jurists. A number of Breton bishops had been deposed (for good canonical
nature by applying the law of nature to the particular circumstances of his realm, but he was
reasons) by the Bishop of Dol-de-Bretagne who, however, was not the competent judge
also the only person who could make new laws according to the necessities of a changing time
(in this case, the Archbishop of Tours). Moreover, the deposed
bishops had been replaced by
and thereby "make something out of nothing." This, of course, was an anxiously guarded
other bishops, whose election was invalid since their predecessors, not having
been deposed prerogative of the sovereign. In the Dictatus papae Pope Gregory vii monopolized for the
by the competent judge, de iure still held their offices. The pope ordered a new trial before
the Roman pontiff exclusively the right pro temporis necessitate novas leges condere," whereas the
Archbishop of Tours, but without either reinstating the deposed bishops or demoting
the most efficient pupil of the popes, the Emperor Frederick 11, proclaimed in his Liber augustalis
newly elected ones ex nihilo (out of a procedurally invalid removal from office)
:
>«/ aliquid (he that was a principal duty of the
it dignitas imperialis excellentiae to produce new laws as time and
recognized an invalid election). "A judgment which was none, he [the pope] makes to be
circumstances demanded ("iuxta novorum temporum qualitatem de nostro gremio nova iura
one," says the ordinary Gloss." Similar is the content of the allegation to the Code: for the
producimus").^« Moreover, the legislator, when handling his art, the ars aequi et boni, was
purpose of reclaiming a dowry, a lawsuit of stipulation was granted, even though
a stipulation

Pair. Z-3/.,cxcn,coIs.852,65i). Thomas Aquinas, Summa theo-

" Co(/.,5,i3,i-ia. The principle involved is discussed by gister Gregors yit., ed. Erich Caspar, Berlin,i920,p.203(/J«'^.,ii,
ciliar Theory, pp.i4iff,, came into general usage in the
it
works Andreas of Isemia, In
logica, i,q.xlv,art.8,i, and conclusio. Sec R.H. Sainton, "Man, of the Decretists around 1200 only; a similar date is suggested
ustis feudorum, on Feud.11,^0 ("De capitulis 55a). The problem concerning the change of the nature of a
God, and the Church in the Age of the Renaissance," Metro- by Friedrich Kempf, S.J., Papsttum und Kaisertum hei Innocen^
Corradi"), n.29,Naples,i57i,fol.202va, but without mentioning monk was discussed quite frequently. Tancred (see Tiemey, op.
politan Museum of Art: The Renaissance, A
Symposium, New York, III., Romc,i954,pp.296fT.; and G.B.Ladner, "The
Concepts of
the maxim de nihilo etc. Sec above, n.38. cit., p.90,n. 5) denies that the papal plenitude potestatis may allow a

195 3>PP-5 3.62a, where attention is called to these passages, from

*' The marginal gloss added to gl. "veri Dei vicem" on X i, monk to own property, "sed de monacho potest facere non
'Ecclesia' and 'Christianitas' and their Relation to the Idea of
whose interpretation, however, I deviate. 7,3, stresses throughout the legislating capacity: "nam de ni- monachum." Innocent iv, however, claimed that poverty and
'Plcnitudo potestatis' from Gregory vii to Boniface viii,"
in
»• De conseiratione, D.2, c.69: "Sermo igitur Christi, qui po- hilo aliquid facere est ius novum condere; et de iniusticia celibacy ot the monk were
matters of positive law only and
Sacerdo^io e Regno da Gregorio rii a Bonifacio
riii, Rome,i954,
tuit ex nichilo facere quod non erat, non potest ea, quae sunt, in id iusticiam above, n.31: de iusticia iniusticiam] intellige
[sic; cf. therefore the pope had dispensatory authority; he states quite
pp.6}ff., demonstrates convincingly how the concept of ple-
mutare, quod non erant? Non enim minus est dare, quam mu- per constitutioncm iuris; et immutare substantiam rerum ac- cynically: ".\lonachus autcm nihil est quam solitarius tristis
nitudo potestatis was developed, not before the
twelfth century,
tare, novas naturas rebus.'" The passage was referred to by Ber- from that of full Icgatine powers. See also Alfred Hof, cipi debet in his que sunt iuris positivi." The liturgical connec- [C.i6,q.i,c.8] ... ex hoc patct quod papa potest dispensare
"Pleni-
nard of Parma in Clos. ord. on X 1,7,5, and by others. Tliere is tion (indicated in n.38) has been ignored. cum monacho quod habet proprium vel coniugem."
tudo potestatis und Imitalio imperii zur Zcit Innocenz' iii," Zs.
no doubt that the legal arguments and the combination of " Hostiensis, loc.cit. (above, n.30): "de aliquo facit nihil, " Guido Papa, loc.cit. (above, n. 54) "dicitur [imperator] quoad
f.Kircii.Gescb., lxvi, 1954-55, pp.}9-7i. :

"making something out of nothing" and "changing the na- "Tiemey, mutando ctiam naturam rei." temporalia deus in terris. Potest enim de nihilo aliquid facere et
o/).r/7.,p.89,n.5, also brings out in full relief the " Durandus,
ture of things" were inspired by that passage. Vice versa, the
hypertrophies and exaggerations of Innocent iv's hierocratic
/or.aV. (above, n.33): "De aliquo facit nihil mu- mortuum viviticare et super ius dispensare. ..."
Glos. ord. on the Decretum (by Joannes Teutonicus, ca.1215), tando etiam rei naturam .... Immutat ergo substantialem rei *'Dictatus pape, §7 (above,n.45). Cf. Cod., 1,14,12,5: "leges
views on this point.
Dt naturam, puta faciendo de illegitimo legitimum: ut extra, ."
D.2,c.69, v. "minus," promptly brings the allegation
cons.,
«• The allegation
condere soli imperatori concessum est. . .
is (:.3,q.6,c.io; the analogy is slightly cla-
to Cod., 5,15,1-ia (below, n.42), the paramount evidence for qui fill vencrabilcm [X 4,17,13], et de monacho
sint leg. per *"Liber augustalis, 1,38, Constitutionum Regni Siciliarum libri 111,
rified (asProfessor Kuttner pointed out to me) by the Casus
in
de nihilo facere aliquid ever since Tancred.
the Glos. ord. to the Decretum, which in its turn
canonicum: ut 74.dis.quorundam [D.74,c.6]. Et de monacho Naples, 1775, p.85. To this passage the later commentator Mat-
leads Bernard
" The papal plenitudn potestatis as a hierocratic password is of Parma, Glos.ord. on X non monachum et de capaci non capacem et huiusmodi . . . . De thaeus de Afflictis, In utriusque Siciliae . . . Constitutiones, N'enice,
1,7,3, v. "veri Dei vicem," to explain:
likewise of a relatively recent date; according to Tiemey, Con- nihilo aliquid facit. ..." Cf. Dictatus pape, §7: "Quod illi soli I562,i,f.i55rb, remarks: "Non autcm
ex hoc dicitur quod ius
"et scntentiam que nulla est, facit aliquam."
licet . . . de canonica abbatiam facere et e contra . . .
." Das Re- est variabile : sic etiam Deus mutavit multa ex temporum dis-

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 276 ERNST H. KANTOROWICZ
THE SOVEREIGNTY OF THE ARTIST 277
able to produce something new because he was divinely inspired ^.v officio. This clue was
poet appeared to Dante potentially on one level, since only "the highest political and the
borrowed from Roman law in which Justinian claimed to take his motive power ex caelesti
highest intellectual principates" could be decorated at all with the
arhitrio}^ Divine inspiration, of course, was appropriated to himself by Frederick 11 in his
laurel.^s The coronation of
Petrarch in 1341 made this equiparation manifest. Wrapped in
Liber aiigustalis, in which he repeatedly cited the words of Justinian,«> and the royal purple of King
as a matter of rou-
Robert of Naples, which had been given him for that purpose (regia vestis circumfHsa me
to
tine it was attributed to kings and sovereigns who
had become emperor-like within their
tegebat\^^ Petrarch received the crown of laurel on the Roman Capitol and thereby demon-
territories." Above all, however, the divine inspiration in accordance with the law of Jus-
strated to the world of learning and
tinianwas arrogated to himself by the pope,*^ the vems iniperator, who was the vice-gerent not what extent indeed king and poet
art universally to
ruoy^di pari passu. Moreover, in the diploma or Privilegium
only of Christ the High Priest, but also of Christ the King; and it was in the papal vicariate which the Roman senator handed
of over to Petrarch at the coronation ceremony and which was, to say
the royal Christ that an early canonist, Silvester Hispanus, found the reason the least, inspired by
why attributes
Petrarch himself,**
and privileges of the emperor could be passed freely to the pope.s" This transfer of claims we find the notion officium poefae, a notion repeated several times by
Petrarch and defined as the disclosure of truth woven into a decorous cloud of fiction.*^
from one dignitary to another seems to have been also an important ingredient of that mysteri- Here
then poetical art itself was presented as an "office," the
ous power immutandi ream naturam-.iottht Glossa ordinaria to the Decretals defined this officium poetae. Finally, there occurs,
power thrice repeated in the Privilegium and eight times repeated in Petrarch's
I

as the ability "of applying the substance of one thing to another thing Oratio, the com-
{substantialia mius rei
bination of "Caesars and poets," to which Petrarch in other
applicando alii)."^*' writings referred at least six
times, expressing the idea that the glory of Caesars and
In fact, that procedure of transferring something from one orbit to another formed, we of poets justified the award of the
wreath of laurel because the eternal verdure was earned tam quam
may say, the essence of the art of the jurists, who themselves called this bello itigenio, "by both war
technique aeqiii- and ingenium."«2 Clearly expressed on that occasion also was the related idea that
paratio, the action
of placing on equal terms two or more subjects which at first appeared to immortality
was won both by great exploits and the poet's song.s^ It was quite obviously at this point,
have nothing to do with each other. For example, the Church, a city, and or
a maniac were
even with Dante's equiparation of Caesars and poets, that the ideal of arma et litterae
technically on equal terms as "minors" because none of them could handle his, or its, own began
to supersede that of arma et leges, familiar to Justinian and current in
and therefore all
affairs, three were in need of a guardian." That method of "equiparation," the circles of jurists.**
With Petrarch's Capitoline crowning ceremony the equiparation of prince and poet
however, which was not restricted to jurisprudence, can help us to understand in what ceased to be a mere metaphor: its quasi reality had been demonstrated ad oculos, if in a slightly
respects the theories of the jurists might appear to have
been relevant to the later artistic
theatrical and stage-like fashion. Nor did the equiparation stop at this point. On the basis of
theories. The legislator takes his impulses from divine inspiration,
and he creates certain judg- fame, or its fickleness, already Dante had treated painters and poets on equal terms.«5 And
ments and technicalities out of nothing, but he does that ex
all officio, just as he imitates nature
Hkewise by virtue of
Petrarch, in good classical fashion, styled Homer a \)'X\mcv, primo pittor delle memorie antiche.^^
his office, and not as an individual poetic or artistic genius. The equi- It was finally Horace's Ars poetica which extended the new and quasi-sovereign status of the
paration, however, of poet and emperor or king -that is, of the poet and the highest office
poet to the painter; for the Horatian metaphor ut pictura poesis, or rather its inversion
representing sovereignty -began as early as Dante. When Dante ///
sadly praised Apollo's laurel,
of which in
poesis pictura, became the passkey which eventually opened the latches to the doors of every
his days
"so rarely frond was gathered for the triumph of either a Caesar
or a art— first to that of the painter, then to the arts
poet {per trionfare Cesare poetd)r he actually "equiparated" of the sculptor and the architect as well. They
Caesar and poet by means of a
all became liberal artists, divinely inspired like the poet, while their crafts appeared no less
tertiim, the crown of laurel,s« transforming a fine
of Statius: "The twin laurels of poet and
"philosophical" or even "prophetical" than poetry itself.«" It was a cascading of capacities,
warrior flourish in rivalry."" j^ other words, by means
of the "Peneian frond" Caesar and
beginning from the abilities and prerogatives conceded ex officio to the incumbent of the sover-
eign office of legislator, spritual or secular, to the individual and purely human and
positione," with allegation of X
4.14,8: "quoniam ipse Deus " Glos. ord. on X "veri Dei vicem": "unde dicitur
1,7,5, v.
abilities
ex his, quae in veteri testamento statuerat, nonnulia mutavit prerogatives which the poet, and eventually the artist at large, enjoyed ex ingenio.
in habere caeleste arbitrium." See above, n.29.
novo," a canon of Innocent iii, issued at the Lateran Council of " Maccarrone, X'icarius Christi, p. 119.
1215 (c.50). " Burdach, \'om MiUtlalter ^ur Rtformation, ii,pt.i,p.505. one being always eclipsed by
" Glos. ord. on X 1,7,3: "ct ideo etiam naturam rerum im- that of the later one—an early
"
See above, n.29. For the illumination and divine inspira-
mutat, substantialia unius
" VCilkins, "Coronation of Petrarch," p. 182. parallelism of miniaturist, painter, and poet to which Professor
rei applicando alii, argumen. C. •" Cf Burdach, o/).<-/'/.,pp.5o8f.;
tion of the ruler see the remarks of Fichtenau, Arenga, Wilkins, op.dt.,p.\iy. Panofsky called my
p. 77, communia dc leg. 1.2 {Cod., 6,43,2]." attention.
n.70. The inspiration attributed to the prince
by the Civilians " Burdach, op.cif., p. ^og,n.2; see above, n.14. •« Fama,
" ^'k- .4.6, 2 2, 2: "Quod edictum etiam ad furiosos et in-
Trionfo della 111,15 ; Borinski, Poetik und Kunsttbeorie,
is similar to, but not quite identical with, the earlier "VCilkins, o/).«/. ,pp. 76, 1 79 see p. 187 for the Oratin and I, p. 184.
medieval fantes et civitates pcrtinerc Labeo 1 ;

illumination by the Holy Spirit; see Kantorowicz,

ait." The Church eventually the Privilegium, which both use the phrase tam
The King's was treated as a miversitas or a civitas; see hello quam in- "Borinski, o/>.f/V.,i,pp.i85ff.; Rensselaer W. Lee, "Ut pic-
Tr>o Bodies, pp.ii4ff, Kantorowicz, The genio; also pp.
King's Tao Bodies, pp.374f. 1 76, 1 86. and n.14, reproducing the famous pas-
tura poesis," pp.i99fF.
'» Lii>er atigustalis, •' Burdach, op.dt.,p.^o%.
1,6 and 22,pp.i7,54. " Parad., i,28fl. sage from Cennini, who coupled painting and poetry on
" See, e.g., Matthacus de Afflictis (above,n.48), on ** Sec above, n.5. grounds of imaginative freedom. Sec also Lorenzo \'alla, who
i,6,n.6, f. " StAtius, AM/Ieid, i,i5f.: ". cuigeminae florent vatumque
49V "quod:
rex huius rcgni [Siciliae] habet arbitrium puniendi
ducumque / Certatim laurus."
. .
" Purg., xi,79tT. : and Franco Bo-
the miniaturists Oderisi in Elegantiae, Basel,! 571, praefatio,p.ii, called the fine arts illae
Cf. E.H. Wilkins, "Coronation
delicta a summo Deo omnipotenti, subaudi mcdiante eius of Petrarch," pp.i6iff.,i76. lognese, the painters Cimabue and Giotto, and the poets Guit- artes, quae proxime ad liberales acceduni, a passage which Professor
vicario." tone d'Arezzo and Guido Cavalcanti represent three pairs of Panofsky kindly called to my memory.
artists symbolizing the vanity of fame, the fame of the earlier

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 278 ERNST H. KANTOROWICZ
THE SOVEREIGNTY OF THE ARTIST 279
If the general line drawn here and leading from the legislator and his plenitudo potestatis to
the poet and further to the
the Holy See {Sancta sedes iudicat omnia) and forming later on a prerogative of the incumbent
artist, be recognized as valid
might be yet another item at all, there
of the sovereign office at large, has reverted again to
worth mentioning. The many-sidedness or all-sidedness of the artist as uomo universale,
so
its original meaning: the spiritual man
characteristic of the Renaissance, will correctly be traced back to Vitruvius,
in general, the true pneumatikos, who was filled with the Spirit, could be judged by none
who demanded
that the architect be literate, able to draw, educated
because he was sovereign as a vessel of the Spirit. The Spirit {pneuma\ it is true, was secu-
in geometry^ optics, arithmetic, that he
know history, philosophy, music, and that he have some knowledge of medicine, jurispru- larized when the ingenium claimed to be above and beyond judgment; but the inspiration from
dence, and astrology. «« on high was there none the less. Again, we notice that a legal prerogative due to the sovereign
The same list, replacing only jurisprudence by perspective {pro-
^-.v officio has been passed on to the true Renaissance sovereigns, the artists and poets, who
spectiva), was considered essential by Ghiberti for the painter and the sculptor: "Conviene
che 'Ho scultore etiamdio ruled ^.v ingeniop And we may remember how, in the fifth circle of Dante's Purgatory, a pope
pictore sia amaestrato in tutte queste arti liberali.""" But quite
el

mdependently of Vitruvius, the jurists demanded the same kind of universalism (Hadrian v) and king (Hugh Capet) had to continue their penitence among the weeping
a
for their
trade: "Legal science," souls, whereas the soul of a poet, Statius, was released and set free while the
wrote Albericus de Rosate in the fourteenth century, "is
earth trembled.'*
commendable
because it is more universal than other sciences; for
No one aware of the late medieval development of political theories will be surprised to
other branches of knowledge deal with
find an analogical development within the of The supreme human
something particular; that one, however, deals with almost all field artistic theories.
sciences and especially with the
liberal ones." And he enumerates authority no longer was vested in the officer alone, be he emperor, king, or pope. It was
grammar, dialectic, logic, rhetoric, arithmetic, geometry,
mathematics, music, astrology, moral philosophy, medicine, vested in man as well or, as Dante would have said with Aristotle, in the optimus homo adorned
and literature, showing in each
case why this or that art was relevant to "with mitre and with crown.""5 To be Man, in the emphatic sense of the word, had come to
jurisprudence."" We notice that the ideal of mastering
a universal complex of disciplines was be an officium, not only for the Neo-Platonists or for Campanella,'« but already for Dante.
something belonging to the encyclopedic ideal of the
thirteenth century which, by transference, was And through the agency of Petrarch the ojficium poetae had become a well articulated notion.
then applied also to the artists-thus interi-
orizing, as it were, the universalism of the Ever>^ ojficium, however, in order to assert itself, demanded or was in need of some kind of
two universal powers. Or when Petrarch, in con-
nection with the poetical examination preceding quasi-theological justification and exaltation. This arrogation oi 'n plenitudo potestatis was true
his coronation, wrote about "rex Siculus
quem e cunctis mortalibus, equiore animo, ingenii iudicem of the offices of the spiritual and secular powers, and it became true for the offices of poet
pati possum," did he not imply
that, with the exception of his royal and, by transference, of painter and artist at large. It may therefore not have been amiss to
friend ("ilium summum et regem et philosophum Rober-
tum"), no mortal could judge Petrarch's ingemim?'^ raise the question here to what extent and in what respects the artistic theology of the Renais-
And should we not think of that maxim
encompassing the ver>' essence of sovereignty, that privilege sance followed certain trails first marked out by the political theology of medieval jurists.
claimed by the pope, and soon
also by the royal power, who insisted that
the sovereign could judge all, but be
judged by
none?'2 Qante had certainly usurped the sovereign
power of judging all men, just THE INSTITUTE FOR ADVANCED STUDY
as Petrarch
could not suffer to be judged by any mortal
save his royal friend. Here the Pauline device
(i Cor. 2, 15), "Spiritualis autem iudicat omnia
i et ipse a nemine iudicatur," monopolized by

" Zilscl,
Gemebegriff, pp.26off., sounds a vcr>' necessan-
2; /«//.,!, I, t], non ergo incongrue assimilatur scripturae di-
warning against overestimating the ideal of the uomo
universale vinae. Ex etiam commendabilis est hacc Icgalis
his
in the Renaissance; sec also Sainton scientia
(above, n.57), p. 5 5. The quia universalior est aliis scientiis.
of X'itruvius, Aliae enim scientiae de
ideal De architectura, 1,1, however, had a lasting ahquo particular! tractant; haec autem quasi
influence on Renaissance de omnibus scien-
theories of art. tiis et maxime libcralibus tractat." He then demonstrates
•• Ghiberti, / Commentarii, ed. Julius von Schlosser, Berlin,
why
all the disciplines are needed for,
I9i2,i,p.4; cf.pp.12f.; Ghiberti himself and how thev come into the
(i,p.i6 = I,c.i8) says compass of, jurisprudence,
about Lysippus: "Questo Lisyppo fu doctissimo which thus emerges'as a secularized
in tutta I'arte theology.
et universale." And the same
polymathv was expected in the " Hp.famiL, iv,4, ed. Fracassetti.
sixteenth century by Francesco de i,p.2n, and "Fpistola ad
HolJanda, Vier Gesprdche, posteros," in Pro,e,<,A. Martellotti.
p.Lx.xx: the painter p.,4; cf. \X ilkins, "Coro-
is required to know the Latin authors, the- nation of Petrarch," pp.i8of
Greek ones at least in translation, natural philosophy, " should be mentioned, however, that in a letter to Bar-
It see also his study "Tema e iconogriiiji del Purgatorio," Romanic
theology " Forthe weird history of that axiomatic
(including knowledge of the Bible and notion, see Alben batus of Sulmona (,l:p. variae, xxii, ed. Fracassetti, Florence, Retiea; XLix,i958,pp.97f.
hagiography), historj-, Michael Koenigcr, "Prima sedes a nemine
poetics, music, cosmography, astronomy,
mathematics, physiog-
iudicatur," Beitrage
Zur Ceschtckte des christlichen Allertums mdder
III, 1865, pp.553ff.,csp.359) Petrarch scornfully refused to be " De Monorchia, 111,12; Purg, xxvii,i42; Kantorowicz, King's
nomies, and anatomv. by-antinischen Litera- called metaphorically kingof poets: "Ingenue quidcm regis fuv Bodies, pp.456ff.,46o,495.
tur: Festgahe far Albert hhrbard,
'"Albericus de Rosate, Bonn and Leipzig,, 922 pp 275- poctarum appullationcm rcspuo. L'bi enim rcgnum hoc excr- '•
Cf Lilo libel. Die italieniscbe Kultur und dtr Geist dtr Tra-
In Dig. novum, prooem.,nos.i6ff.,
300; for Boniface vm, who quoted the maxim in
fols.2v-3r, begins by "equiparating" his bull Unam ccam quaeso? Quos mihi statuis regni fines?... Lbi scdere, Freiburg, 1 948, pp. i74tf.
jurisprudence with theol- sanctam (cf Lxtravagantes commun.,
godie, T. Campanella, Del sensn delle
ogy: "Nee dicat quis me hanc legalem scicntiam 1,8,1), see Burdach op cit quove ire iubes, ut sim vatum rex, nisi forte in solitudinem
ultra debitum cose e della magia, m,c.25, ed. Antonio Bruers, Bari,i925,p.i25,
pp.5 38ff; and for the transfer of the maxim to the
subhmare, eam acquiparando sacrae scripturae royal' power' meam transalpinam, atque ad fontem Sorgiae me restringis ?" calls man luogotenente della prima causa, that is, a vicar of God,
luris pru- see my article ".Mysteries of State." Hanard
dentia est divinarum et humanarum rcrum
notitia [D;]?.,
Theological RevieJ '* Purg. xix-xxi. Professor Enrico de'N'egri kindly called my though not by virtue of a high office.
1,1, 10, XLviii,i95 5,pp.75f.
attention to these interrelations between pope, king, and poet

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INSTITUTE OF RESEARCH AND STUDY
IN MEDIEVAL CANON LAW
620 MICHIGAN AVENUE, N. E.
WASHINGTON 17, D. C.

November 22 , 1958
Professor Ernst H. Kantorowicz
22 Alexander Street
Princeton, New Jersey

Dear Eka:

Please forgive me for dictating a letter rather than

postponing a reply to your four weeks old letter any longer.
It was encouraging to have your friendly comment on my New York
paper; only one who has worked as you have with the medieval texts
knows what it means to plan (and, still more, to make) an edition
which steers clear of the reconstruction of a conjectural
"original" and at the same time provides an insight into the
genesis of the text as read by the glossators. I have dis-
cussed this problem with many persons (including Sam Thorne),
and some intelligent remarks on this score were made already
at the Bologna congress in 1952 (cf. Studia Gratiana V 113),
but it remains a tough problem.

I am attaching a page of notes on 'de nichilo facit aliquid.*

It is not much but may be of some use all the same. All in
all, I have the impression that one ought to take the rhetorical
flourish of the phrase with a grain of salt:'^ the words veri
dei vicem are very tempting in this respect, but it comes down
to some very uncreative practical things if one considers the
,

practical meaning indicated in the references. (Incidentally, on

the analogy to Creation in the works of the artist Dorothy Sayers,

hi
has a lot of intelligent things to say in her The Mind of the
Maker.

Some day soon I hope we can have another talk on Institute

matters. As you know we still have got nowhere with my attempts
to build up capital, and I am worried about the future.

I have about two pages to review The King's T.vo Bodies for
the Catholic Historical Review, This I find rather frustrating,
as it will cut out all discussion of detail. Probably I have
to remain very general and then send you all the unused notes I
made while reading and rereading (and admirjng) the book.

Eva was very much touched by your good letter on her father's
death. She'll write you herself.
As ever

jfe/sX-vx

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INSTITUTE OF RESEARCH AND STUDY

IN MEDIEVAL CANON LAW
620 MICHIGAN AVENUE, N. E.
WASHINGTON 17, D. C.

1 August 1961

Lieber EKa

bei meiner Rtlckkehr aus Europa (wortlber gleich mehr) fand ich
Ihren Brief und Ihren Aufaatz aus der Panofsky-festachrif bevor ;
t
ich heute abend zu Eva und den Kindern nach Canada gehe will ich ,

Ihnen nur rasch ftlr be ides danken. Ihre freundlichen Worte ttber
meinen Harmony-vortrag waren sehr wohltuend; als ich ihn vor bald
ftinf Jahren schrieb gab ich mir grosse Mfihe mich so auszudrtlcken
, ,

dass ich einem allgemein interesdierten Publikum etwas zu sagen

hatte und dabei auch vor jemand "vom Fach" bestehen kBnnte. So bin
ich froh, dass es Ihnen gef alien hat.

In Ihrem Aufsatz sehe ich mit Vergntlgen eini.^es aus unserer

alten Korrespondenz fiber 'aliquid ex nihilo'; mit Ihrer Selbst-
kritik haben Sie aber Unrecht. Llir jedenfalls hat das Ganze (und
nicht nur der juristische Teil) sehr gut gefallen. Die spezifisch
kanonistischen Beobachtungen interessieren mich nattlrlich ganz
besonders, schon wegen der Bertlhrungspunkte mit den Problemen der
Dispensation (ftlr meinen bi^amus-auf satz von dem ich gerade die ,

Dmbruchkorrektur gelesen habe )

Zwei Kleinigkeiten: (l) Bernard von Parma, Glos. ord ist in .

der ersten Rezension vor 1242, in der letzten nach 1263 (vor 4266)
zu datieren, cf. Kuttner & Smalley EHR 60 (194 5) 97ff. (2) Es ,

lohnte sich, dem 'cur ita facis?' bei Tancred etc. einmal nachzu-
etc V^^'
\ gehen. Die zitierte Stelle De pen D.3 Ex persona Cin der heutigen . j^

Zahlung: C.22D gibt zwar den Gedanken, aber nicht die Pormulierung;
von wem die stammt weiss ich nicht aber jedenfalls sagt schon
, ,

Petrus Cantor: 'non enim mihi licet dicere domino papae Cur ita :
facis? Sacrilegium est enimcpera eius redarguere ( Verbum abbr .
•

—
. . .
C.44, PL 205.139 D) und damit wSren wir wieder bei dem Problem
vom dispu ta re de factis regum (Two Bodies 158 n.209) angelangt,
fiber das ich Ihnen einmal etwas zu schreiben versprach.

Bei meiner rOmischen Reise ist allerlei herausgekommen vor ,

allem die Sicherung der Monument a iur. can Protektorat und Verlag . ;

(nebst dem grttsjten Teil der Druckkosten) tlberniimmt der Vatikan;

die ganze wis^enschaftliche Verantwortung bleibt beim Institut so ,

dass niemand (insbesondre nicht Catholic University)- uns wird her-

einreden kttnnen. Ich bin sehr stolz auf meine Erfolge as Diplomat.
Und ^L^wei Manuskripte (Pransen, Garcia) werden diesen Winter fertig.
Mit Bob Benson kOnnten es drei sein...

Gestern trank ich bei Susanne guten (von mir aus Paris mitge-
brachten) Cognac aus der schOnen von Ihnen geschenkten Karaf f e ,

Alles Gute
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