Roman Law and "Consilium" in The Regula Magistre and The Rule of St. Benedict

Medieval Academy of America
Roman Law and "Consilium" in the Regula Magistri and the Rule of St. Benedict
Author(s): Michael Paulin Blecker
Source: Speculum, Vol. 47, No. 1 (Jan., 1972), pp. 1-28
Published by: Medieval Academy of America
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SPECU
A JOURNAL OF MEDIAEVAL STUDIES
Vol. XLVII JANUARY 1972 No. 1
ROMAN LAW AND "CONSILIUM" IN THE

REGULA MAGISTRI AND THE RULE OF
ST BENEDICT*
BY MICHAEL PAULIN BLECKER, O.S.B.
SEVERAL years ago David Knowles called attention to the reappraisal that the
Rule of St Benedict is receiving on the continent.' Benedict's Rule, according to
the revisionist hypothesis, can no longer be considered the eminently original
code of monastic life that it was once thought to be. The Regula Magistri (RM),
which had been ignored for centuries as a bad plagiarism, a later, barbaric render-
ing of the Rule of St Benedict (RB), is the earlier rule written about A.D. 510-
525.2 The RB is therefore indebted to the RM and not the other way around.
Nor is this indebtedness merely in small or trifling matters. The prologue and the
first seven chapters of the RB closely follow the prologue and the first ten chap-
ters of the RM. Where the text of the RB departs from that of the RM, it is to be
explained by the RB's omission of details, elaborations or explanations that are
in the RM. In subsequent chapters the parallels between the two rules continue,
although in a less regular and striking fashion. Nevertheless the text which both
rules most fully share sets forth the substance of the monastic polity.3
In the last few years the hypothesis of the priority of the RM has won almost
unanimous acceptance.4 However, the text of the RM on which St. Benedict de-
* Research for this article was supported by St John's University Research Committee.
1 Great Historical Enterprises: Problems in Monastic History (London, 1963), pp. 139-195.
2 For the date of the
Regula Magistri accepted here, see La Regle du Maitre, ed., trans. Adalbert de
VogUe, Sources chretiennes,Vols. cv-cvii (Paris, 1964-65), I, 225; II, 273. All citations of the RM
are from this edition. Vogite provides a useful introduction to and bibliography for the RM. For
earlier views of the RM and its dating, see Knowles, GreatHistorical Enterprises, pp. 147-149, 171-
172. An early history of the controversy over the RM and bibliography can be found in Odo Zimmer-
mann, O.S.B., "An Unsolved Problem: The Rule of Saint Benedict and the Rule of the Master,"
The American Benedictine Review (ABR), x (1959), 86-106; see also Simeon Daly, "A Survey of
Benedictine Studies, 1960-62," ABR, xiv (1963), 122-127. The edition of the RB used here is that
of Rudolph Hanslik, O.S.B., Benedicti Regula, CSEL, Vol. LXXV(Vienna, 1960). All citations of
the RB are from Hanslik's edition. Hanslik (p. xv) suggests a date somewhere between A.D. 540-47
for the RB.
3 Great Historical Enterprises, p. 148.
4 Francois Masai and
Eugene Manning, "Les etats du ch. Ier du Maitre et la fin du prologue de la
1
2 Roman Law and "Consilium"
pended has by no means been established. The original assumption, that there
was a definite first edition of the RM from which our present manuscripts more
or less faithfully derive, has been challenged. It has been proposed instead that
the RM be considered an evolving text whose several stages of rewriting can be
traced in the manuscripts.6 Further, no manuscript witness has appeared, it is
claimed, to the particular text of the RM which St. Benedict used. But even this
important qualification has not led to a denial of the dependence which most
scholars have by now asserted exists between the RB and the textual tradition
represented by the RM.6
The reappraisal of the RM and the subsequent hypothesis of its priority have
led to a reassessment of the accepted explanations of the origin and character of
the RB. What the RB intended and instituted, if the hypothesis is accepted, can
be described adequately only after comparing the RB with the RM. Past studies
of Benedictine monasticism neglected to make such critical comparisons.7
Recent studies have begun the task, but have left relatively unexamined the
nature of the consilium proposed in the RB and RM.8 In what follows I hope to
analyze the consilium prescribed by the RM and compare it with that outlined in
the RB.9 The analysis leads me to suggest three conclusions: 1) the Roman law
Regle Benedictine," Scriptorium, xxIII (1969), 393. This article can also be found in Miscellanea
F. Lyna (Gent: Wetenschappelijke Uitgeverij, 1969), which is a reprint of Scriptorium, Vol. xxIII.
6 Eugene Manning, "Recherches sur les manuscrits et les etats de la 'Regula Monasteriorum' (I),"
Scriptorium, xx (1966), 193-195. F. Masai subsequently joined Manning, and together they are
continuing a textual study of the RM in Scriptorium. The diplomatic edition of the two principal
mss. (P and E) is that of Dom Hubert Vanderhoven and F. Masai with the collaboration of P. B.
Corbett, La Regle du Maitre Editiondiplomatique des manuscrits latins 12205 et 12634 de Paris, Les
publications de Scriptorium, Vol. iii (Brussels, 1953). For a history of the manuscripts see also
Vogiiu, La Regle du Maitre, I, 125-153.
6 Manning and Masai, "Recherches sur les manuscrits... (III),"
Scriptorium, xxII (1968),
13-14. They recognize the dependence of the RB on the RM but by way of an earlier edition of the
RM, which the RB at times more accurately conserves than do the manuscripts P (Paris B. N. lat.
12205) and E (Paris B. N. lat. 12634) from which the diplomatic edition of Dom Vanderhoven princi-
pally derives. The textual relationship which Manning and Masai construct in the case of these two
passages is that the passage in the RB and that in the ms. E of the RM both depend on an earlier
edition of the RM. They conclude that neither the ms. E of the RM nor the RB is always superior to
the other as a witness to the early state of the RM. Further, the RB is not dependent on the P or E
mss. of the RM. Manning and Masai, "Recherches sur les manuscrits . . . ," Scriptorium, xxI
(1967), 205-206; xxII (1968), 3-19.
7 Knowles, GreatHistorical Enterprises,
p. 148. For examples see the standard commentaries of
Dom Paul Delatte, The Rule of St. Benedict, trans. Dom Justin McCann (London, 1921), and Basilius
Steidle, O.S.B., The Rule of St. Benedict, trans. Urban J. Schnitzhofer, O.S.B. (Beuron, 1952).
8 For two recent studies that have dealt with
chap. II of the RM, in which consilium is introduced,
see Pio Tamburrino, O.S.B., "La Regula Magistri e l'origine del potere abbaziale," CollectaneaCis-
terciensia, xxvIII (1966), 160-173, and Martin Angerer, O.S.B., "Das Abtsbild nach Kapitel II
Der Magister-und Benediktusregel," Studia Monastica, xII (1970), 43-56. Neither discusses the
consilium of the RM. The most thorough comparison of the life styles of the two rules, including a
study of consilium, is that of A. de Vogiie, La communautM et l'abbedans la reglede saint Benoit (Bruges,
1961).
9 Manning and Masai have studied the textual
history and relationships of the RM and RB texts
in which the consilium of the brethren is described. See their "Recherches sur les manuscrits . . . (II),"
Roman Law and "Consilium" 3
of corporations, and not merely legal procedures required for alienation, must be
considered in accounting for the origin of the consilium of the RM; 9) the con-
silium of the RM was collegial and deliberative in form, similar to the consulta-
tion of members that occurred in a Roman corporation; 3) the consilium of the
RM is similar to that of later sixth century rules and differs from the consilium of
the RB, which introduced an authoritarian element into the common counsel of
all the brethren.
The suggestion that Roman law influenced sixth century monasticism is not of
itself new. Since the nineteenth century some monastic historians have claimed
that Roman institutions, as recognized in law, were the models for one or another
aspect of St Benedict's monastery, or even that St Benedict received a legal
training.10The influence of Roman law and institutions has been used to explain
the internal organization as well as the legal status of monasteries. As an example
of the latter, H. Bitterman claimed that the monastery's autonomy in administer-
ing its property was due to its recognition as a juridic person in Roman law.l The
attention of monastic historians has largely centered on the former, on the in-
fluence of Roman law on internal monastic organization. Abbot Herwegen
thought that he had found the model of St Benedict's abbot, whom he liked to
think of as a humane but absolute ruler, in the Roman paterfamilias.2 More re-
cently Hofmeister and Jassmeier, focusing instead on the monk's participation in
monastic government, attributed the origin of the requirement of consilium in the
RB to laws governing alienation.13
Historians of law have also been interested since the middle of the nineteenth
century in the legal status of monasteries, largely as a part of their study of cor-
poration theory and practice.l4They struggled to define the reality of what the law
Scriptorium, xxI (1967), 205-226. They conclude that St Benedict probably knew the text of the
RM which P conserved: Ibid., pp. 222, 225.
10For the latter, see John Chapman, St. Benedict and the Sixth Century (London, 1929), pp. 43-56.
11H. R. Bitterman, "The Council of Chalcedon and Episcopal Jurisdiction," SPECULUM, xIII
(1938), 198-203. Her interpretation of Chalcedon was rejected by Charles Henry, O.S.B., in Canonical
Relations Between Bishops and Abbots at the Beginning of the Tenth Century,The Catholic University
of America Canon Law Studies, No. 382 (Washington, 1957), p. 24, n. 13.
12 Ildefons Herwegen, O.S.B., Der Heilige Benedikt, 2nd ed. (Disseldorf, 1919), pp. 58-60. In his
4th ed. (Dusseldorf, 1951), pp. 80-82, published posthumously, he played down the dependence of
the RB on Roman law. See also his Sinn und Geist der Benediktiner Regel, (Einsiedeln/Koln, 1944),
pp. 22-26. Abbot Edward Cuthbert Butler accepted Herwegen's Roman model for the abbot of
the RB and defended the grant of "the plenitude of patriarchal authority and power" to the abbot
against the charge that it was "an anachronism in modern times" in his Benedictine Monachism, 2nd
ed. (London, 1924), pp. 193-194.
13 Joachim Jassmeier, Das Mitbestimmungsrechtder Untergebenenin den dlteren Mdnnerordensver-
banden, Miinchener theologischeStudien, Kan. Abt., Vol. v (Miinchen, 1954); Ph. Hofmeister, "Teil-
nehmer an den Generalkapitalen im Benediktinerorden," Ephemerides Juris Canonici, v (1949),
368-459, and also his "Die Rechtsverhaltnisse der Konversen," OsterreichesArchiv fur Kirchenrecht
xnI (1962), 3-47.
14For background and
bibliography, see W. W. Buckland, A Text-Bookof Roman Law from Augus-
tus to Justinian, 3rd. ed. rev. (Cambridge, 1963), pp. 177-179; also V. B. Eliashevich, La personnalitM
juridique en droit priv6 romain (Paris, 1942), pp. 337-339; B. Grani6, "Die rechtliche Stellung und
called a corporation. Who really owned the property of a corporation? Was the
corporation a fictive person who owned, or did the collectivity of real persons
own? A related issue was the distribution of responsibility and authority within
the corporation. Who possessed the power, the membership or the head?15Their
probings are significant here, for they raised the issue whether the monastery was
or was not a corporation according to the criteria of Roman law. One thing was
certain, that a monastery could exercise the right of ownership by the end of the
fifth century independently of the diocesan church.'1 But whether or not mon-
asteries were really corporations and if so, to what degree, has been a matter of
debate.'7 Rothenhausler compared the monastery of the RB with the artisan
corporation, the officina.l8Others have suggested that the analogy of the mon-
astery to a Roman corporation was merely illusory. The monastery was more like
a hospital or an orphanage, in other words, an ecclesiastical "institution" whose
members, like the sick or orphans, had no share in it or claim of ownership. Own-
ership was elsewhere, in God or a saint, not in the members, and the abbot was
responsible for his administration only to the bishop.'9 A middle position such as
that which Gillet took is probably more representative than either view previ-
ously mentioned.20For Gillet the monastery was not simply a copy of a Roman
Organisation der greichischen Kloster nach dem Justinianischen Recht," Byzantinische Zeitschrift,
xxix (1929-30), 6-34.
15 For the fictive
character of Roman and ecclesiastical corporations, see Alexander Philipsborn,
"Der Begriff der juristischen Person im romischen Recht," ZeitschriftderSavigny-Stiftungfiir Rechts-
geschichte(ZSSR), Rom. Abt., LXXI(1954), 41-70, and also M. J. Rodriquez, "Innocent IV and the
Element of Fiction in Juristic Personalities," The Jurist, xxn (1962), 287-313. For a general critique
of the literature, see Brian Tierney, The Foundations of Conciliar Theory (Cambridge, 1955), pp.
98-103.
16 Jean Gaudemet,
L'dglise dans l'empire romain, ed. Gabriel Le Bras, Histoire du droit et des tneti-
tutions de l'dgliseen occident, Vol. II (Paris, 1958), p. 304; also Emile Lesne, Histoire de la propriete
eccl6siastiqueen France, Vol. I, Memoires et travaux ... des facult6s catholiques de Lille, vi (Lille/
Paris, 1910), i, 6, 124.
17This debate should be distinguished from that concerning the exemption of monasteries from
episcopal jurisdiction. For the latter see Henry, Canonical Relations, and also Wilhelm Schwarz,
"'Jurisdicio' und 'condicio': Eine Untersuchung zu den 'Privilegia libertatis' der Kloster," ZSSR,
Kan. Abt., XLV (1959), 34-98.
18 M. Rothenhausler, "Zur Aufnahmeordnung der Regula S. Benedicti," ed. I. Herwegen, O.S.B.,
Beitrdge zur Geschichtedes alten Monchtums und des Benediktinerordens, Vol. in (Miinster, 1912),
p. 37, n. 4; pp. 90-91.
19 Maurice Vauthier, Etudes sur les
personnes morales dans le droit romain et dans le droit frangais.
These d'agr6gation Univ. Bruxelles (Brussels, 1887), p. 85. More recently see Philipsborn, "Der
Begriff der juristischen Person," pp. 66-68, but it is unclear whether he considered monasteries to be
"institutions" (Anstalten) or not. For the status in Roman law of ecclesiastical "institutions" see
Buckland, A Text-Book, pp. 177-179. Otto Gierke makes use of the distinction between Anstalten
and corporations in his analysis of the legal status of mediaeval monasteries: Das Deutsche Genossen-
schaftsrecht,3 vols. (Berlin, 1868-81), n, 534, 538-539. Tierney provides a critique of Gierke's use
of the distinction in Conciliar Theory, pp. 101-102.
20 Pierre Gillet, La personnalit6juridique en droit ecclesiastique (Malines, 1927), pp. 41-46. Lesne
suggests that by the fifth century A.D. Roman law no longer simply gave churches and monasteries
the status of a corporation. Instead these bodies were recognized as permanent institutions and as
moral persons, and as such owned their temporalities: Lesne, I, 3, 6.
Roman Law and 'Consilium" 5
corporation. The monastery was treated in law as were the local churches, neither
as simple corporations nor pure "institutions" or foundations. In the case of the
local church, whose legal status monasteries imitated, ownership of ecclesiastical
property belonged to the local community grouped around the bishop. But as
others have pointed out, the bishop as head of the community had the right to
administer the patrimony and, for all practical purposes, acted as if he were its
owner. Frequently the property of the local church and the bishop's personal
property were confused.2 If this was the way matters stood in the monastery, it
would be misleading to apply the term "corporate" to the legal status of monastic
property. Legal historians had not wanted to so do, nor have they claimed that
Roman law had much influence on the internal organization of monasteries.
Monasteries indeed enjoyed juridic status but whether or not they were corpora-
tions seemed to make little difference since the abbot was in a real sense the
monastery.
The conclusions of the legal historians support the position of a number of
monastic scholars who consider wholly infelicitous the suggestion that monastic
institutions were indebted to secular institutions. They hold a purist explanation
of Benedictine origins. For them the RM and the RB depend wholly for their sub-
stance on Eastern monastic tradition and the Scriptures. Hegglin in his study of
the abbot's office denied that St Benedict borrowed from Roman law or had any
special familiarity with it.22When the RB parallels Roman law, Hegglin argued,
its indebtedness to Roman law is derivative. By the time the RB was written, the
church had already incorporated Roman law into its life and institutions, and it
was the church herself which was St Benedict's model for Monte Cassino. Neither
the Roman familia nor the paterfamilias could have had any significant influence
on the RB. In fact the alleged analogy of the patria potestas with the abbot's
power is without basis. In the late empire, Hegglin argued, the prince was legibus
solutus, whereas the abbot was bound by the rule. In private life during the late
empire the patria potestas had faded to a mere shadow of its former self. Neither,
therefore, served as a model for the power of the abbot.23Hegglin also rejected the
interpretation that saw in the common counsel of all the brethren provision for
all the monks to share in the government of the monastery. The RB asserted a
principle of common sense, that the abbot should get advice, not a principle of
government.24The development of rights which limited the abbot's free adminis-
tration was a gradual process due partially to the growth of customary rights
within the cloister and to provincial decrees, but especially to the work of the
Roman curia. It was clearly an imposition of something foreign to the RB, how-
ever necessary such modifications were.25
Recently Vogii also rejected the use of secular models in explaining the de-
velopment of the monastic polity.26The conception of the abbot which is found in
21 Ibid.,
p. 45. Gaudemet, L'glise, p. 301.
22Benno Hegglin, O.S.B., Der Benediktinische Abt (St. Ottilien, 1961), pp. 22-23.
23Ibid., pp. 23-25.
24Ibid., p. 183.
26Ibid., p. 193.
26La communaut,pp. 19, 123-198.
the RB did not come, he argued, from secular society but from monastic tradition
and ultimately Scripture.27The monastery is an absolutely original kind of
society. A purely spiritual need is responsible for its existence, a man's desire to
have a guide in his journey to God. Consequently, the abbot is the basis and rea-
son for the coenobium,for the coenobiumis a gathering of disciples, a congregatio.
The office of abbot is not the creation of a group already in existence; rather the
society, the congregatio,springs up from the person of the abbot and depends on
him. Further, the abbatial office in the RM and RB, according to Vogiie, is not
modelled after any secular position of power. The abbot is not a paterfamilias of
ancient Rome, nor a feudal lord. The true type of the abbot is that of a pastor of
God's people as described both in the Old and New Testaments.28 Because
Scripture warned that all must be done with counsel (Sir. xxxii 24), the abbot was
also to do all with counsel.29But the counsel that the RB required the abbot to
seek in no way limited his "absolute sovereignty."30
In view of Vogiie's study it might seem fruitless to raise again the question of
the possibility of Roman borrowings in the monastic constitution. Quite the op-
posite is true. Vogiie opened up a line of inquiry which his presuppositions pre-
vented him from following. First of all he showed the necessity of studying the
common counsel of the RM in order to understand the introduction of consilium
into the RB. As a result the extended treatment of the common counsel of all the
brethren in the RM and the RM's technical language were used for the first time
to understand the consilium of the RB. Until Vogtie neither monastic nor legal
historians had made use of the RM text in discussing sixth century monastic
polity. In the second place, as a result of his study, Vogiie attributed the intro-
duction of common counsel into the RM, from where the RB borrowed it, to
Roman law. He remained faithful to his thesis that Benedictine monasticism
borrowed nothing of substance from secular institutions only by denying that the
introduction of common counsel into the monastic polity of the RM was of any
consequence. The abbot still retained "absolute sovereignty." He was not bound
or limited by the common counsel of all the brethren. In fact in the RM the
abbot, Vogiie suggested, was apparently the owner of the monastery's property
and continued quite unhampered in exercising his power and in making deci-
sions.31Vogiie also had to deny that there was a similarity between the RM and
later sixth century rules in the way monastic property was owned, though the
language of the rules suggested that there was. Whereas the later rules held that
the monks exercised some sort of proprietary right over the monastery's posses-
sions, the RM, he argued, did not.32
27 Ibid., p. 126. VogUe's thesis is that the fundamental structure of the monastery of the RB comes
from Egypt by way of Cassian and the RM; see, for example, p. 26.
28 Ibid., p. 128.
29
Ibid., pp. 190, 205.
80Ibid., p. 204.
81Ibid.,
pp. 192-193, 196-198. The first to point out the possibility that the abbot of the RM
appeared to be an owner of the monastic property, though no reference is made to his work, was
Abbot Gregory Roettger, O.S.B., De Regula Magistri, Thesis for the Pontificum Athenaeum Later-
anense Institutum utriusque Iuris (Collegeville, Minn., 1945), pp. 18-19.
8aLa communautU,pp. 194-195.
Vogie's interpretation of the origin and significance of the common counsel of

the brethren hinges on three major conclusions concerning his evidence. The first
is that the institution of the common counsel of all the brethren was a novelty
and is first to be seen in the RM. Vogue agrees here with Herwegen that pre-
Benedictine monasticism did not know of a counsel of all the brethren.33The
point of course is that though a counsel of elders was known and was a traditional
element in monastic structure, a common counsel of all the brethren was not.
Needless to say, Vogue rejects Herwegen's attempt to explain this novel institu-
tion as a borrowing from the familial council of the paterfamilias.34
Instead, Vogtie connects its origin with a concern for the temporal administra-
tion of the monastery's property. He was led to this second conclusion because
the RM introduces its discussion of common counsel by associating it with the idea
of the utilitas monasterii. The phrase occurs elsewhere in the RM, referringin these
instances clearly to matters of temporal administration. Thus, Vogtie suggests, it
was for the sake of temporal administration, "pro utilitate monasterii," that the
RM calls the brethren together to give counsel.35Common counsel and temporal
administration are in another place again linked by the RM, Vogiue maintains,
but this time in a different way. In concluding the description of the consilium of
the brethren, the RM states once more why all the brethren are to be called to
counsel. This time it gives as its reason the dictum, "sententiam monasterii," that
"monastic property belongs to all and to no one," "res monasterii omnium est et
nullius est."36Vogei considers that the reasons which the RM gives for consilium
suggest its legislation on this point is an attempt to comply with Roman law con-
cerning the alienation of property.37Thus his second conclusion is that the com-
mon counsel of the brethren, which the RM introduces, is concerned with
temporal administration and fulfills certain legal requirements.
His third conclusion is with respect to the similarities in the language that the
RM and later rules use to describe the ownership of the monastery's property.
The RM describes the monastery's property as "omnium est et nullius est." The
Rule of Ferreolus (d. 581) explains community property as "una proprietas, ita ut
cuncta omnium, et omnia sint cunctorum."38Both seem to speak of the mon-
33Vogii obviously understands "pre-Benedictine" as pre-RM, which would not have been Her-
wegen's understanding of the term: Ibid., pp. 188-189, 198.
34 Ibid.,
p. 188. For the family council in Roman law, see Wolfgang Kunkel, "Das Konsilium im
Hausgericht," ZSSR, Rom. Abt., LXXXIII(1966), 219-251.
3 La communautM, pp. 191-192; RM 2, 41: "Quidquid uero abbas pro utilitate monasterii agere
aut facere uoluerit, cum consilio fratrum agat...." For utilitas as used in the RM see Vogue, La
Regle du Maitre, I, 360f., n. 41; II, 481. See also P. B. Corbett, The Latin of the 'Regula Magistri' with
Particular Referenceto Its Colloquial Aspects, Universite de Louvain recueil de travaux d'histoire et
de philologie IVe serie, Fasc. 17 (Louvain, 1958), p. 163.
36RM 2, 48: "Ideo omnes fratres diximus ad consilium debere uocari, secundum sententiam
monasterii, quod res monasterii omnium est et nullius est."
37La communautM, 194, 196. The
pp. legislation of Justinian which Vogie cites is C. 1.2.17; Nov.
123.6; Nov. 120.6-7.
38 Regula S. Ferreoli (RF), *5. All citations of the RF are from the edition of Lucas Holstenius,
Codex Regularum Monasticarum et Canonicarum, reprint of the 1759 ed., 3 vols. (Graz, 1957), I,
156-166. For a recent study of Ferreolus' rule see Georg Holzherr, 0 S.B., Regula Ferioli: Ein Beitrag
zur Entstehungsge.chichteund zur Sinndeutung der Benedictinerregel(Einsiedeln, 1961).
astery's property as belonging in some sense to all. In the rules of Aurelian of

Aries (d. 551)39and of Ferreolus appearances, Vogue holds, do not belie the facts.
Both of these rules recognize that the monks have certain rights of control in
matters concerning the temporal administration of the monastery and that these
rights are based on the juridic principle of "co-ownership." The monks were co-
owners of the monastic patrimony. Therefore, they had a right to participate in
deciding matters of temporal administration.40 But the RM, Vogue argues,
stands in contrast with those later rules. The common counsel in RM cannot be
based on the principle of "co-ownership," because the abbot of the RM is the
owner of the monastic property.41Only in the case of the RM, then, Vogtie be-
lieves, does the language of the text mislead. Consilium in the RM is not based
on the property rights of the monks. They had none as the abbot was the owner.
With Vogiue's first two conclusions there can be little disagreement. It is a
wonder that he was the first to make them. His last surmise is another matter.
Rather than seeing a difference in kind between the way in which the RM and
the later sixth century rules envision the ownership of monastic property, as he
does, I suggest that the evidence indicates only a difference of degree. The RM
and the later sixth century rules of Aurelian and Ferreolus each in its own way
speak of monastic property as the property of a corporation.
Vogiie was not without apparently good reasons to think as he did. A passage
in the RM where the office and duties of the cellarer are described suggests that
the abbot was an owner:
Now about all the things that are in the monastery,no one extraabbate(can treat) some-
thing as his, whetherhe broughtit, foundit, producedit or acquiredit; no one can claim
anythingas privatepropertyor reserveit as such, becausethe maximof the rule is that
the propertyof the monasterybelongsto all and to no one.42
The meaning of the passage is not self-evident. Its interpretation depends on
whether one believes that the abbot is or is not the owner. If one holds, as VogUie
does, that the abbot in some real sense owned the property of the monastery, then
"extra abbate" means "except the abbot." No one except the abbot can claim
private property. If one assumes instead that the RM seen as a whole does not
allow even the abbot to own, it is possible to understand this passage in another
way. Even Vogtie observed that the phrase "extra abbate" might be understood
to mean that "without the abbot's authorization" no monk could treat anything
as his.43Vogtie does not of course understand the words "extra abbate" in this
39 Regula S. Aureliani, chap. 43: "Sancto Abbati non liceat aliquid de facultatibus Monasterii
donare aut vendere; nec aliquid contra Regulae instituta agere. Quod si facere tentaverit, sancto
consilio et uno consensu fratrum ex nostro permisso non ei acquiescatis....": Holstenius, I, 151.
40 La communaute,
pp. 194-195. He speaks here of "co-proprietaire", co-ownership, in the technical
sense.
41Ibid., p. 195.
42RM 16, 58-61: "De omnibus uero, quae sunt in monasterio, extra abbate nullus sibi aliquid
uelut suum, siue quod attulit, siue quid inuenit, siue quod laborauit uel adquisiuit, nullus aliquid
peculiare uindicet aut defendat, quia regulae sententia haec est: res monasterii omnium est et nullius
est."
43La communautM, p. 193. n. 1.
sense, nor need they be. The abbot is "excepted" as VogiU6thought, but the ex-
ception only allows the abbot to treat property velutsuum, as if it were his. Any
attempt of the abbot to claim the monastery's property as actually his, as Vogt6
would have him do, would be as contrary to the intent of the RM as a simple
monk claiming some part of the patrimony as actually his. In this interpretation
of "extra abbate" the key phrase is "aliquid velut suum," and "something as his"
is to be understood to mean "something as if his." So interpreted, it can be argued
that the passage conforms with the description of the abbot elsewhere in the RM
as the administrator, not owner, of the monastery's goods.44
Even Vogue, who did not propose as an alternate explanation the one proposed
here, recognized that his own interpretation of "extra abbate" was not convincing
without support from elsewhere. For him that support was the evidence in the
RM that the abbot made a testament. The first mention in the RM of the abbot's
testament occurs in a discussion of the formalities connected with the reception
of postulants into the community.45After the rite of profession is described, the
abbot is instructed about what he is ultimately to do with the inventories of the
gifts which the brothers who entered had given the monastery. The passage
reads:
At the time of his death the abbot is to insert into his testament the inventoriesof the
gifts which the brothersmade in so far as somethingremainsover after the expensesof
the monastery,and even the namesof those whosegifts areknown,so that afterhis death
no one leaving the monasterywill have confidence,by chance, that he can reclaimhis
propertyand breakhis bond of stability with the monasteryand faith to the dead abbot
and say somethingof his is held in the monasterythat had not been given.46
The intent of the passage is clear enough: to prevent a monk who leaves the
monastery after his abbot's death from hoping he might be able to reclaim the
property he had given to the monastery on the pretext that he had not really
given it away.47Apparently it was believed that by inserting the inventories of
the monk's gifts into the abbot's testament, a monk who left after the abbot's
death would not be able to retrieve what he had once given to the monastery. The
abbot's testament would keep these donations secure for the monastery after the
4 RM 1, 68; 82, 16-35; 89, 21.
4 RM 80, 81; anotherreference(RM 93) will be discussedlater.Lesne(I, 110) offersevidenceof an
abbot makinga will, but does not assessits significance.
46RM 89, 31-85: "Breuesuerodonationumfactos a fratribus
temporemortissuae abbas,in quod
usibusmonasteriiexpensisrestiterit,testamentosuo inserat,etiam nominaeorumquorumnoscuntur
conlata, ut nullus post mortemeius forte de monasterioexiens repetendirerumsuarumfiduciam
habeatet stabilitatemmonasterioet fidemfrangatdefunctouel dicat sine donationealiquidsuumin
monasteriocontineri."
47The same point is madeelsewherewhenthe RM (90, 95) cites what it calls the maximthat "in
the monasteryworkfeedsthe brother,perseveranceclothesandshoeshim;in departinghe returnsto
the monasterywhat he owes it and, if he wishes,leaves."The RM did not apparentlyknow of or
think sufficientthe legislationwhichJustinianincludedin the Corpusluris Civilis,whichprovided
for the transferenceto the,monastery,by the act of profession,of the possessionsof a monk, Nov.
5.5 (A.D. 535). For Justinian'slegislationon this pointsee my article"The CivilRights of the Monk
in Roman Law and CanonLaw: the Monk as 'Servus',"ABR, xvii (1966), 186-188. Gaudemet
places earlierlegislationregardingthe transferenceof propertyat professionbetween A.D. 484-
524: L'9lise, p. 204.
abbot's death. His will therefore witnesses to a special relationship between the
gifts which the monk brought to the monastery and the abbot. From this Vogiie
concluded that the relationship was proprietary: that the abbot was the sole
owner.
Elsewhere, however, when the RM discusses the gifts of those entering the
monastery, this inference, I suggest, cannot be safely drawn. The RM in fact dis-
cusses at length what must be done with the property of someone who seeks to
enter the monastery. At the time of his entrance, the RM insists, the monk must
give everything away or assure the monastery that he has nothing to give away.48
If he had property, he was free to dispose of it in whatever way he thought best.
The RM, however, suggests certain people who should benefit from his generosity:
the poor, relatives and his new brothers, the monks.49 His gift to the brothers is
not given directly to them. The precise terminology which the RM uses is that he
is to give "to God through the monastery"50or "to God and to the oratory of the
monastery."51The abbot is not mentioned either as beneficiary or as owning these
gifts in God's stead.
The reasons which the RM gives for the monk's poverty also offer no support
for Vogiie's thesis. The RM argues in behalf of its insistence that the monk be with-
out property, that God will provide all the things which a monk needs through
the abbot's administration. The monk consequently need not own or have any-
thing of his own. God will provide.52Another reason for the monk's poverty is that
private property exalts self-will, but in coming to the monastery the monk wishes
to put himself in the power of another to destroy his self-will.53If a monk kept his
property, it would defeat the purpose of his coming. The fact that he would be
tempted to return to the world should he keep or get property was another argu-
ment that the RM offered for insisting that a monk give up everything when he
entered the monastery.54Finally the maxim already referred to, that "the prop-
erty of the monastery belongs to all and to none," was given.55None of these rea-
sons suggests that the abbot was considered to be the owner of the monastery's
property.56
The RM also prescribes the manner in which the conveyance of the property
is to be made. A man with property who seeks entrance into the community and
wishes to give his property to it is required to promise stability and give away his
property before he is received into the community for a probationary period of
48 The latter
point is covered in RM 87, 41-47. It is clear throughout chapter 87 that the RM is
concerned with the need to preserve the resources of the community, especially from those who might
join the monastery in order to enrich themselves.
49RM 91, 49-54.
50 RM 89, 17: "... donatio rerum suarum Deo per monasterium...."
61RM 87, 35: "... una cum anima sua Deo et oratorio monasterii per donationem offerat to-
tumn...."
62RM 82, 16.
6 RM 82, 19.
4 RM 87, 20, 46.
6 RM 16, 61: " . . quia regulae sententia haec est: res monasterii omnium est et nullius est."
66RM 82, 18, also cites as a reason for the monk's
personal poverty that no one serving God gets
involved in secular business (2 Tim, II 4).
two months.57Only after the probationary period is he allowed to make profes-

sion.58During the ceremony of profession the monk puts on the altar the inven-
tory of what he had given and the act of donation.9 The ritual symbolized the idea
that in entering the monastery the monk gave himself and his property to God.
But the actual donation had occurred before he made his profession, and should
he leave before his profession or be sent away, he was not allowed to reclaim what
he had given and had to return whatever the monastery had lent him for his use
during the probationary period.60In contrast, the man who gave all his goods
away to the poor before he was received into the monastery needed only to give
surety that he had nothing hidden somewhere outside. It is obvious, the RM
notes, that he will remain permanently and that he can be trusted since he gave
everything away in alms.61
The man who wishes to give his property to the monastery and join it is an-
other matter. He must promise stability, attach an inventory to his written
promise and pledge that should he leave the monastery he will depart without
his property. Clearly there is a fear that the monk who gave his property to the
monastery might try to reclaim it when he left the community. The precaution
that the abbot insert an inventory into his will of what was unexpended of these
gifts appears to be designed to head off the possibility that a monk might leave
and try to reclaim his property after his abbot's death. Another detail should not
go unnoticed. The inventory which the monk attached to the written promise of
stability is not the inventory that is inserted into the abbot's will. Rather, a list
of what had not yet been spent and the names of those from whom it had come
was to be inserted.62The preservation of the instrument by which the donation
itself had been made did not seem adequate to insure that property once given
would remain in the monastery's ownership after the abbot's death.
Why would the insertion of a list of gifts in the abbot's will give this con-
fidence? Several explanations are possible. The notoriety of the abbot's will might
be a better guarantee that the fact of the donation would not be forgotten. This
57The donation was to be witnessed and subscribed to by the
bishop and local clergy, RM 87,
36. RM 90, 79 speaks of a probationary year and makes no mention of the two months probation
of RM 88, 3; 89, 1. Vogii suggests that RM 90, 79 represents an earlier stage of redaction than RM
87, 89: La Regle du Maitre, II, 390-391, n. 67.
58 RM 88; 89, 1.
59RM 89, 17. In this case the RM speaks of an inventory and an instrument of donation: "... ille
breuis uel donatio (89, 17)," but earlier in describing what is to be done, it makes no mentiop of a
separate instrument of donation and refers only to a written promise of stability and an inventory,
and an offering of self and all of one's things to God and the oratory of the monastery through dona-
tion. It is likely that the donation was put into writing since that was the general practice, although
Justinian was to abolish the requirement that donations had to be written down (Inst. 2.7.2; C.8.53.
35.5b,c). For the general practice see Nicolas Van der Wal, "La codification de Justinien et la pratique
contemporaine," Labeo, x (1964), 220-238; also E. Levy, West Roman Vulgar Law: the Law of
Property (Philadelphia, 1951), pp. 139-142. For the earlier period see Jacques Henri Michel, Gratuit6
en droit romain (Brussels, 1962), and Clemence Dupont, "Les donations dans les constitutions de
Constantin," Revue international des droits de l'antiquit, 3e serie, ix (1962), 291-324.
60 RM
87, 37; 88, 11-12.
61RM 87, 25-29.
62RM 89, 31-32.
Roman Law and "Consilium"
explanation, whatever be its merits, sidesteps the question of the legal effects
which the insertion of the list in the abbot's will could have produced. Another
explanation might be that the insertion of the list of vwhatremained was con-
sidered a good administrative procedure because it provided an updated inven-
tory. The new abbot would know precisely what was still left of what had been
given. Proof that it had been given could be found in the instrument of donation.
But if merely an inventory would prevent a monk who might leave after his
abbot's death from hoping to reclaim his property, why should the RM specify
that it should be inserted into the abbot's will? There were other inventories
which were turned over to the new abbot that were apparently not included in
his will.63This reason, as did the first, ignores the legal significance of the insertion
of the inventories into the abbot's will.
Vogiie's explanation has the merit of addressing itself to the legal implications.
He assumes that the abbot's will is proof that the abbot owned the monastery's
property. But if it is assumed that the abbot owned all the monastery's property
or that monastic property was really res sacrae, why did the RM single out for in-
clusion in the abbot's testament only what remained of the gifts which the
brothers had made at their entrance? If the abbot owned all, his will would have
conveyed everything to his heir, even the individual gifts of the brethren without
further specification. If the monastery's property was res sacrae, any attempt to
testate it would have been out of the question.64
The practical and legal significance of the insertion is clear if we assume instead
that the monastery possessed property for God as a corporation rather than that
the abbot owned monastic property. In this case the abbot's testament can be
understood to assure the perpetuity of the monastery's ownership of these gifts
by supplying what in Roman law was called the animus possidendi. In Roman
law the universitas or collegiumlacked the animus possidendi and, therefore, when
it was finally allowed to acquire, it had to do so through a slave, or by the third
century A.D. through a free person or administrator.65Apparently the abbot
acted in behalf of the community to accept a donation. It was he who supplied the
animus possidendi since the community as a collegiumcould not. The abbot's will
in specifying what was left of the original donation preserved the ownership of
these gifts for the monastery.
The hypothesis that the monastery owned property as a corporation and there-
fore labored under special difficulties in acquiring property by gift is supported by
other evidence in the RM. One of the reasons which the RM uses in order to argue
63RM 93, 13.
4 Res acrae were a form of res nullius which were not the object of
private ownership: Buckland,
A Text-Book, p. 183. For a survey and bibliography concerning theories of ownership of res sacrae in
Roman law, see Elfashevich, La personnalit juridique, pp. 332-33S. Lesne (I, 4) points out that the
phrase "the property of God" meant the sacred, charitable purpose to which the goods of an ecclesias-
tical community were dedicated and not that the property itself was necessarily res sacrae. The RM
also considers res dedicated to God in a similar way: such property is dedicated to the use of his saints,
the monks; see especially RM 90, 92-94.
" J. P. Walzing, Etude historiquesur les corporationsprofessionnelleschez les romains, 4 vols. (Lou-
vain, 1895-99), I, 455; II, 447-452; also Gillet, La personnalitM,p. 15.
against a monk's owning property is that he had put himself in the power of an-
other. It was practically a maxim of law that whoever was in the power of
another, like a slave, who was in the power of his master, could not be an owner.66
If the monk was a servus, he could not be an owner.67In whose power was the
monk? Usually the RM speaks of the monk as being in the power or under the
dominion of the abbot.68On the other hand on two occasions the monk is also said
to be in the power or under the dominion of the monastery.69In one of the profes-
sion formulas the RM speaks of the monk as submitting himself and his property
to the power of the monastery and abbot: " '. . . et ibi uolo ut sint res meae ubi
fuerit cor meum et anima, sub potestate tamen monasterii et abbatis....' "'70
The other occasion occurs in the RM's satire on gyrovagues. In this passage the
gyrovagues are blamed for setting up housekeeping by themselves and not sub-
mitting to the imperium, the authority, of the monastery where the abbot takes
care of the monks' needs.71In this instance imperium belongs to the monastery,
and ministering to the monks' needs is the abbot's concern. It might be objected
that the phrase "the authority of the monastery" can refer only to the abbot's
authority, since the abbot is the man who actually commands the monk and to
whom the monk is obedient. But it also makes sense to see evidence here that the
RM considered the monastery to be a collectivity or entity that could be per-
sonified and exercise authority.7
In both instances where authority is attributed to the monastery the RM is
concerned with property. In one case the monk through profession submits him-
self and his property to the authority of the monastery and abbot. In the other,
the RM damns those monks who want to live alone, managing for themselves,
and will not submit to the imperium of a monastery in which the abbot distrib-
utes the necessities of life.73What lies behind the thought of both passages is the
notion that the monk ought to put his means of subsistence, his property or in-
come should he have any, under the potestas or imperium of the monastery.74
Does the monastery though, as distinct from the abbot acting as its head, exer-
66W. W. Buckland, The Roman Law of Slavery (Cambridge, 1908), p. 1.
67 For the
comparison of the monk with the slave, see my article, "The Civil Rights," pp. 192-194.
RM 15, 51 refers to the monk as the "servus Christi."
68 RM 1, 83, 87; 2, 43, 50; 82, 19; 90, 29; 92, 57.
69 RM 1, 68; 89, 20.
70 RM 89, 19-20.
71RM 1, 68.
72
Vogue notes that in both RM 1, 68 and 89, 20 the monastery is considered as a person: La Regle
du Maitre, I, 344, n. 68; ii, $75, n. 20.
73RM 1, 68-70.
74 The obvious assumption of RM 1, 69 is that a monk ought to depend on an abbot for the neces-
saria, for food, clothing and shelter. RM 7, 34-35 attacks those monks who living outside a monastery
think they can manage for themselves and do not want an abbot to distribute the necessaria. In
neither case is sloth at issue, but rather whether what a monk produces through his work or is given
ought to be personally appropriated for his own use or instead be distributed by the abbot to the
monks. For a recent study of conversatiowhich suggests that its primary meaning is a heavenly citizen-
ship (Phil. III 20) that leads a man to live and labor in a community, see Philip E. Hickey, "The
Theology of Community in the Rule of St. Benedict," ABR, xx (1969), 431-471.
cise any authority over property? The passage of the RM which described the
procedures to be followed when someone with property wishes to enter the com-
munity suggests that it did. After describing how the candidate is to dispose of
his property, the RM directs the abbot to give to the poor whatever he sees is not
needed for the welfare and support (utilitas) of the monastery.75This statement
may have been needed not only to encourage almsgiving, but also to make clear
that the abbot was free to dispose of such surpluses. Without it the abbot or some
of his monks might have thought that he had not the power to dispose of the
surplus. But the statement also makes clear that the abbot was free to give away
only what was not needed for the utilitas monasterii. It did not grant him potestas
or imperium over what concerned the utilitas monasterii. The potestas or imperium
of the monastery, as distinct from that of the abbot, was exercised, it appears,
over those things which concerned the utilitas monasterii. (It was in matters con-
cerning the utilitas monasterii that the brothers were called to give common
counsel. But about that more will be said later.) It suffices to point out here that
the RM ascribes a potestas, an imperium, to the monastery which is distinct from
the abbot's, whose authority does not extend to alienating what is considered a
necessary part of the utilitas monasterii nor to determining on his own what is in
the interest of the utilitas monasterii.
In this lengthy analysis of the context within which the first mention of the
abbot's testament occurs, I have shown that Vogue cannot find adequate support
for his interpretation of "extra abbate." Nor can Vogiie's interpretation gain
much support from the only other mention in the RM of the abbot's testament.
The other reference to the abbot's will is to be found in the description of the
benediction of the new abbot. The ritual called for the bestowal first of the keys,
then of the inventory of all the monastery's possessions, whether of its tools,
codices or movables, and finally of the donations of individual brothers. The last
bestowal was done by means of the abbot's testament.76Again the abbot's will is
mentioned only in connection with donated property. It is by means of his will
that the donations of the brothers are turned over to the new abbot. The adminis-
tration of all other monastic property is conferred on the new abbot by giving
him the keys and the inventory of the monastery. If the testament were under-
stood to institute an heir who succeeded to the estate of the deceased abbot, the
monastery, it is difficult to explain why the testament is mentioned only in con-
nection with the conferment of donated properties. It is by means of the testa-
ment that the donated properties are put in the next abbot's hands. The function
of the testament, therefore, appears to have been the maintenance of the animus
75RM 87, 38: "lam de ipsis rebus abbas in potestate sua mutatis quidquidnecessariaeutilitati
monasteriisuperuacuumabundareuiderit...."
76 RM
93, 12-13: ". . .data ei a priorepace uel subsequentecongregatione,tradet ei in manu
regulamhanc,simulet petitasclauesa cellarariode inthicismonasteriiuel breuemrerumuniuersarum
uel ferramentorumet codicumuel uniuersimobiliiuel conlata singulorumtestamentoomnia ante
pontificeadsignate."Vogue'stranslationis somewhatmisleadingas it puts unduestresson the abbot's
testament,whichRM appearsto regardonly as the meansby whichthe gifts of the monksare con-
veyed to the newly designatedabbot:". . puis il lui mettradansla main cette regle.. . et le testa-
ment mentionnanttous les objets donnespar chacundes fr6res....": La Regledu Maitre,ii, 427.
possidendi with regard to donated property. The observance of all possible legal-
ities and the publicity with which the conferment was done would certainly help
to diminish anyone's confidence of reclaiming the property he had donated to the
monastery during the old abbot's regime. Finally it must be observed that the
new abbot received the keys, inventory and everything that had been donated,
and began to administer them while the old abbot was still alive though dying. If
the old abbot recovered his ability to rule, the new abbot was to return the ad-
ministration to him.77Under these circumstances it is hard to see what practical
use the abbot's testament had except in the one case which the RM itself speci-
fied, that after the death of the old abbot a monk who might seek to leave would
not be confident of reclaiming what he had given to the community.
The two instances in which the abbot's testament is mentioned do not require
us to suppose that the RM considered the abbot to be the owner of monastic
property. What the RM says about his testament can be explained in terms of a
corporate ownership of the monastery's temporalities. Nor do the texts which
speak of the individual monk's donations or of the monastery's possessions de-
mand that we believe the abbot was the owner of the monastery's property.
Finally texts have been shown to suggest that the community as distinct from
the abbot exercised a potestas or imperium over the monastery's property. But is
there any evidence in the RM that the monastic patrimony was considered the
property of a corporation? I believe there is, though it was understood by Vogiie
to prove quite the opposite.
Undoubtedly Vogue settled upon the thesis that the abbot owned the monastic
patrimony to preserve what seemed most plainly stated, that the individual
monk could own nothing. Passages in which the radical expropriation of a monk's
possessions are affirmed have already been referred to.78The fundamental princi-
ple which they expressed was that the monk ought not to have anything which
he could call his own. Vogiie admitted, however, that the "sententiam monas-
terii" in affirming that property belonged to all, "omnium est," suggested other-
wise, and that later rules, such as that of Ferreolus, clearly affirmed that the
monks did own the monastery's property. The form of ownership which he
thought these passages suggested was a kind of joint ownership by each individual
monk of his share.79In support he quoted from Ferreolus' Rule that a slave who
belonged to the monastery had as many owners as there were monks.80However,
he thought that the RM denied this kind of ownership when it immediately as-
serted, after saying that the monastery's property belongs to all, that it belongs
to no one: "omnium est et nullius est."81
The first problem with Vogiue's argument is that Ferreolus probably did not
claim that the monastery's property was jointly owned by each monk in "co-
ownership," and therefore that each monk owned property. Ferreolus seems to
77 RM 93, 43-46.
78 See notes 47, 52-54.
79La communautg, 194.
p.
80 RF 36: ". . . cum manifestum
sit, ilium tot dominos habere, quot monachos."
81 La communautS,
pp. 195-196; RM 2, 48; 16, 61.
describe the monastery's property as corporate, not as jointly owned. The dis-
tinction between corporate property and joint ownership, between ownership by
a corporation and partnership or "co-ownership," may seem overly subtle, but
it does make a difference.82In the first case the corporation, not the individuals
who form the corporation, owns the property, and in the latter case each indi-
vidual owns according to his share. Ferreolus does speak of the monk as an
owner, "tot dominos ... quot monachos," in the case of the "common slave."83
But elsewhere he accuses the monk who takes some fruit for an inbetween meal
snack of stealing, "since the congregation always exercises an undivided owner-
ship, so that the whole (property) consists of everything and all things are of the
whole."84The essential point here is that the whole property of the monastery is
seen as perpetually undivided, whereas a societas, strictly so-called, or other forms
of joint ownership normally tend toward a division of the property among the
socii and necessarily with the death of any one of them.85The same conception of
monastic property appears to be behind the thought of Ferreolus' Rule 10. ". ..
ubi corpori Congregationis membrum factus adhaeserit, statim cognoscat omnia
in communionem transisse, et hoc tantum judicet proprium quidquid cum fratri-
bus possederit indivisum." Ferreolus may be understood here to be speaking of a
man joining a corporation ("corpori congregationis membrum factus adhae-
serit"),86in which common, undivided property is not reducible to each individ-
82 Holzherr in his
commentary, Regula Feriola, pp. 52-58, speaks merely of "gemeinsamen Besitz"
without discussing possible forms of common ownership.
83 RF 36. For a discussion of the textual
ambiguity of the passage and the conciliar legislation con-
cerning the emancipation of a slave belonging to a monastery, see Holzherr, pp. 127-129; also Lesne,
I, 236, where he notes that it was more difficult to free the servusof a monastery than of a church but
offers no explanation. Though Holzherr denies the influence of Justinian's legislation on RF, the
Roman law treatment of the common slave seems to me reflected in RF. In Roman law the municipal
slave was the common property of the city, like theatres and stadiums. He did not belong to the indi-
viduals pro parte, but to the universitas (D.1.8.6.1). The emancipation of a slave of an universitas as
also the emancipation of a municipal slave had to have the consent of the whole or major part of the
ordo or corporate body (D.9.4.10; C.10.33.2). It is possible, therefore, that Ferreolus understood the
phrase "tot dominos .. . quot monachos" in the sense of corporate, not personal or joint ownership.
For a discussion of the conflicting interpretations of the meaning of the ownership of the common
slave see Jean Gaudemet, "La comproprieta della schivao," Labeo, v (1959), 245-251. For manumis-
sion of the common slave see Mario Bretone, 'Servus communis': contributoalla storia deUacompro-
prieta romana in eta classica, Pubblicazioni della facolta giuridica dell' universita' di Napoli, Vol. xxx
(Naples, 1958), pp. 140-151.
84RF 85: "Quapropter erit Congregationi semper una proprietas, ita ut cuncta omnium, et omnia
sint cunctorum." A similar idea is expressed in the Vita of Fulgentius of Ruspe (d. 555): "De sub-
stantia communi quisquis aliquid plus accipit omnium sit debitor, quorum est illa substantia....":
S. Fulgentii episcopi Ruspensis Vita, PL, LXV,143.
85Death terminated a societas. For a discussion of the Roman societas and joint ownership see
Buckland, A Text-Book,pp. 506-514; also Jean Gaudemet, Etude sur le regimejuridique de l'indivision
droit romain (Paris, 1934).
86Holzherr in commenting on "corpori congregationis" as well as in drawing a parallel to the
maxim of the RM, refers in explanation only to the Scriptural theme of the body of Christ and leaves
out any mention of possible legal implications. Lesne, though he pointed out that the property of the
community of Ferreolus was "indivise" (I, 108), did not take note of the other terms that Ferreolus
ual's share pro rata, nor terminable by a future division of the common property
or cessation of the societas on the death of any member. Thus, what Ferreolus
seems to describe is a form of common property which belonged to the community
and over which members of the community exercised property rights only as
members of the community. This description would accord with the way in which
Roman law conceived of corporate property. Individual members of a corpora-
tion as members, not as individuals, ut singuli, were the subject of the corpora-
tion's rights. The property of the corporation, the res universitatis, was in some
sense the res omnium non singulorum.87It belonged to each only in so far as each
exercised with all the other members of the corporation an undivided ownership.
Thus Ferreolus can be understood to be talking about corporate property when
he states that once a man has become a monk, has been joined to the body of the
congregation, he can call his own only what he possesses indivisum with his
brothers.
Does the "sententiam monasterii" of the RM also suggest a corporate form of
ownership? I believe it does, for the "nullius est" of the maxim echoes "non
singulorum," which is an essential qualification of corporate property. The prop-
erty of the monastery does in some sense belong to each monk, but not to each as
an individual. The phrase "nullius est" which Vogtie understood to exclude any
kind of private ownership does exclude a claim to something as private property
or as jointly owned in co-ownership.88But the phrase does not exclude a corpo-
rate, an undivided ownership of the monastery's property. The "sententiam
monasterii" that the "res monasterii omnium est et nullius est," was a way of
saying that the monastery's property belonged to a corporation, it was res
used to describe the legal status of his community. Thus Lesne did not see in Ferreolus' monastery
an exception to his general thesis that monasteries just as churches possessed their temporalities not
as corporations, but as institutions. Nevertheless he noted that the monks play a considerably larger
role in the temporal administration of the monastery's property than did the bishop's clergy with
respect to diocesan property (Lesne, I, 287). For a discussion of the legal implications of the words
corpus Christi see Arnold Ehrhardt, "Das 'Corpus Christi' und die Korporationem im spat-rSmischen
Recht," ZSSR, Rom. Abt., LXX (1953), 299-347; LXXI (1954), 25-40. The phrase "corporis con-
gregationis ... adhaeserit" suggests the legal terminology used when someone became a member of
a corporation. For the use of corpus to refer to corporate bodies see Karl Olivecrona, ThreeEssays in
Roman Law (Copenhagen, 1949), pp. 2-15; Max Radin, The Legislation of the Greeksand Romans on
Corporations, dissertation Columbia University (New York, 1902), p. 139; Brendan F. Brown, The
Canonical Juristic Personality, The Catholic University of America Studies in Canon and Civil Law,
No. 39 (Washington D.C., 1927), pp. 18-19; VocabulariumIurisprudentiae Romanae, 5 vols. (Berlin,
1903-31), I, 1039. P. W. Duff warns, however, that corpus, though commonly used to refer to a cor-
porate body, is not a technical term meaning a corporation: Personality in Roman Private Law (Cam-
bridge, 1938), pp. 26, 33.
87D.1.8.6.1; 34.7.1.2. Lactantius, for instance, in De Mortibus Persecutorum,
chap. 48, uses it in this
sense: "... ad ius corporis eorum id est ecclesiarum, non hominum singulorum pertinentia....":
Sources chr'tiennes, Vol. xxxix, 2 vols. (Paris, 1954), i, 134. An answer as to who actually owned
corporation property and precisely how inevitably gets entangled in the debate over the fictive per-
sonality of Roman corporations; for bibliography and discussion, see Philipsborn, pp. 41-70; also
Gillet, pp. 32-40.
88 La
communaute,p. 196.
omnium non singulorum.89Corporate property belonged in some sense to all but

certainly in no way to each individually.
Unfortunately when the RM explained the meaning of the "sententium mon-
asterii," it did not make explicit the legal complexities behind the maxim. The
practical consequences of corporate ownership, not legal definitions, were what
reasonably most concerned the RM and the Rule of Ferreolus. Corporate owner-
ship would not of itself provide a remedy for practical problems connected with
sharing in common or the danger of individuals sequestering common property.
It is in terms of these problems that the RM explains the maxim. The phrase
"omnium est," meant that all the monks succeeded each other in turn in office.90
The RM had in mind the various services which the monks performed for each
other on a rotating basis, such as the kitchen service.91"Nullius est" meant that
nothing in the monastery was to be staked out by a brother as peculiarly his own
and that no one was to decide or do anything on his own. All was to remain under
the authority of the abbot.92 Though there is in the RM's explanation of the
maxim no evidence to contradict the view that the monastery owns property as
a corporation, there is no support of it either. The possibility that the RM under-
stood the monastery to own property as a corporation seems, however, to be ten-
able even though the RM did not explain what that might mean.
At this point it might be useful to recall the passage in the RM with which this
inquiry began. It states: "Now about all the things that are in the monastery, no
one extra abbate(can treat) something as his, whether he brought it, found it, pro-
duced it or acquired it. . .93 It will be remembered that the phrase extra abbate
was ambiguous. Since the parallels between the language of RM and the Rule of
Ferreolus have already been noted, it may be helpful to compare this passage of
the RM with its parallel in RF. RF like the RM makes it plain that the monk can
acquire property for the monastery. The emphasis in the RM's explanation of the
phrase "nullius est" was on claiming something as personal property, "peculiar-
iter vindicatur," because a monk could acquire something for the monastery. The
monk might receive a gift, discover something in a field or by his craftsmanship
make something.94He was productive. It was necessary then to remind him that
although he could not acquire for himself he did so for the monastery. This is also
clearly the intent of the Rule of Ferreolus when it admonished that "no monk
should dare to claim something as his own apart from the society of the
brothers."95The phrase which Ferreolus used was "absque societate fratrum."
89Buckland, A Text-Book, p. 184; also M. David and H. L. W. Nelson, Gai Institutionum: Com-
mentarii IV, Studia Gaiana, 3 vols. (Leiden, 1960), in, 237-238.
90RM 2, 49: "Ideo omnium, quia
proficiendo successionem quandoque in monasterio uicibus de se
fratres expectant."
91RM 18.
92 RM 2, 50: "Ideo nullius, quia nihil in monasterio aliquid sibi a fratribus peculiariter uindicatur
et nullus suo aliquid constituit aut facit arbitrio, sed omnes sub imperio degunt abbatis."
93RM 16, 58-61.
94 RM
16, 59.
95RF 10: "Illud etiam statui debere
prospeximus, ut nullus monachorum aliquid sibi proprium
absque societate fratrum audeat vindicare; ita ut etiam in his quae sua sunt nihil amplius credat sibi
Whatever ambiguities the phrase suggests are immediately clarified.96Ferreolus

goes on to say that the monk is not to consider anything as his own except what
he owns indivisunmas a member of a corporate body.97The monk's property claim
and his power to acquire property are both regulated by the assumption that he
is a member of a corporation. The principle, then, is that the monastery is a
corporation and the monk ought not to exercise property rights except as a mem-
ber of the corporation.
The parallel between Ferreolus' Rule and the passage in the RM, I suggest, is
remarkable. Both are concerned with establishing that a monk ought to be with-
out property but allow him to acquire property for the monastery, and both try
to explain this from a technical, legal viewpoint. There are obvious differences.
Ferreolus' treatment is lengthier than that of the RM. His language is also more
technical than that of the RM. the substance of both is the same. What the RM
tried to say in the phrase, "no one extra abbate (can treat) something as his,"
Ferreolus stated more clearly in these terms, "no monk should dare to claim
something as his own apart from the society of the brothers (absque societate
fratrum)." As a member of a corporate community the monk could not claim or
acquire property as a private person. He did share in and could acquire for the
corporation as one of its members. Both the RM and the Rule of Ferreolus assert
this, but in different ways. In the RM the abbot acted in behalf of the corporation.
His authorization for the acquisition as well as the disposition and the use of
goods was necessary. Ferreolus simply refers to the corporation as claiming and
acquiring property with no particular attention at this point to the role of its
administrator in the exercise of the corporation's property rights. He emphasizes
the corporate element, whereas the RM does not. The principle by which pro-
prietary rights in the monastery were explained is essentially the same in both
rules.
The "sententiam monasterii" can, it seems, be understood as a maxim ex-
pressing the juridic status of the monastery as a corporate body. It is for that
reason, if the monks want to talk about legal rights, that they can own nothing,
except of course as members of a corporation and therefore only through its head.
Ferreolus thus adds really only one thing to the RM's statement that a monk
owns nothing because the property of the monastery is corporate property. He
juris esse quam caeteris." The phrase "quae sua sunt" appears to refer to the goods he was using or
brought to the monastery. Over these he had no legal right other than the right he shared with all the
others. These goods were therefore not literally "his".
96 A societas was not
strictly speaking a corporation, but the term was used in this sense. It is evident
that neither the RF nor the RM (87, 49) intended to suggest that the monastic community was a
partnership, a societas, strictly speaking when they used the term societas. On the other hand their use
of the term does not mean they considered the monastery a corporation. In fact in adopting St Basil's
Asceticon the ms. E of the RM considered it necessary to explain that societas meant "congregation",
"qui de societate commune, hoc est de congregatione discesserit....": quoted from Manning, "Re-
cherches sur les manuscrits . . . (I)," Scriptorium, xx (1966), 200. For the use of the term societas
to refer to corporations see Waltzing, I, 340; also Frederick K. von Savigny, Jural Relations or the
Roman Law of Person as Subjects of Jural Relations, trans. W. H. Rattigan (London, 1884), p. 189.
97RF 10 (for text see n. 95).
explains how whatever the monk brings to the monastery or acquires while
within it is transferred to the ownership of the corporate body. The explanation
parallels Justinian's Novels which provide that whatever the monk did not dis-
pose of before entering the monastery passed automatically at the time of his
profession into its ownership.98The man who enters a monastery in Ferreolus'
explanation is analogous to a man who becomes a slave: both pass, along with
their property, into the power of another.99To all this the RM makes no reference
here, though it uses the terminology, as has already been noted, of the monk sub-
mitting himself to the power of both the monastery and the abbot. Ferreolus'
addition merely specifies why the private property of the monk becomes the
property of the "body of the congregation" ipso facto at the time of his profession.
No substantial difference need be seen in the explanation which the two rules
give to the status of private property in the monastery. Both rigorously forbid it,
but both must provide for the facts of corporate ownership. Ferreolus speaks
about the monk owning only what he possesses undivided, indivisum, with his
brothers. The RM puts it in lapidary form: "res monasterii omnium est nullius
est." But they both refer to a corporate ownership of property.
In comparison with the RM and the Rule of Ferreolus, the language of the RB
is surprisingly non-legal and untechnical. The RB omits mentioning the "sen-
tentiam monasterii" as a reason for calling all the brothers together for counsel.100
Nor is there any subsequent mention of the maxim again, unlike the RM. Con-
sequently there is no argument from the possible corporate character of the
monastery of the RB to the need for common counsel. At the same time there is no
mention of an abbot's testament as in the RM. The abbot is described simply as
the steward whose duty is to distribute to each according to each one's need from
the goods of the monastery.101The goods of the monastery are not said to be
God's, although they are to be treated as if they were the sacred vessels of the
altar.02 In dealing with private property the RB's approach is more practical and
less technical than that of the RM and the Rule of Ferreolus. The RB begins
9SRF 10: "Quia cum se ipsum alterius subdidit potestati, omnia secum in alienampotestatem
transmisit.Quidquidergo secum rerumdetulerit, expetito consortioMonachorum,ac ubi corpori
congregationis membrumfactusadhaeserit,statim cognoscatomni in communionemtransisse...."
Novels 5.5 (A.D. 535); 123, 38 (A.D. 546). For a discussionof Justinian'smonasticlegislationsee
Grani6,pp. 6-34; Paul Collinet,"La Regle de s. Ben6it et la legislationde Justinien,"Revuede l'his-
toiredesreligions,cii (1931),272-278.
9 RF 10: "... . omniasecumin alienampotestatemtransmisit."
100RB 3. For a discussionof some of the legal backgroundof the RB, see TerenceP. McLaughlin,
Le tres anciendroitmonastiquede l'occident:etudesur ledeveloppementgeneraldu monachismeet ses
rapportsavecl'Yglise seculigre et le mondelaique de saint Benoit de Nursie a saint Ben6itd'Aniane,
Archivesde la France monastique,Vol. xxxviii (Paris, 1935). See Chapman,St. Benedict,pp.
35-36, for the view that St Benedict'slanguagereflectsa legal style of writing.
101RB 33, 5; 34, 1.
102RB 31, 10: "Omniauasa monasteriicunctamquesubstantiamac si altaris uasa sacrata con-
spiciat." Comparewith RM 16, 11: "Ergo cellariusmonasteriinon aliud est quam dispensatordi-
uinarumrerum.In tantumdiuinarum,ut Dominusin euangeliopromittatfidelibusseruissuis, dicens:
'Nolite cogitarequid manducetisaut quid bibatis aut quid induamini.'" Neither passagesuggests
that the monastery'spropertywas consideredres sacrae.Rather, it is to be consideredas if divine,
becauseby meansof it the Lordfulfilledhis promisethat he wouldcarefor the needs of the faithful.
with the emphatic declaration that the "vice of private ownership" especially is to
be wholly rooted out of the monastery.103Included in this condemnation of the
vice of private property is the giving or receiving of anything without the abbot's
command, as well as the ownership of anything whatever, whether a codex, writ-
ing tablet or style. The first prohibition is only a limited denial of the exercise of
private ownership: "ne quis praesumat aliquid dare aut accipere sine iussionem
abbatis."l04It states simply what the RM meant when it said that "no one extra
abbate(can treat) something as his."105What is ordinarily associated with owner-
ship, giving or accepting something, a monk can do but only at the abbot's com-
mand. Thus the RB, just as the RM had done, allows the monk to act as if he
were or could be an owner, that is to give or receive something. But immediately
after this limited prohibition the RB wholly bans, as did the RM, claiming any-
thing whatsoever as really one's own.'06 The reason the RB gives for this absolute
prohibition is not like the one, however, in the parallel passage of the RM,
though elsewhere the RM alludes to it.107The monk can have absolutely no
property "because he cannot rightly have his body or his will at his own disposi-
tion." This reasoning, it will be recalled, the Rule of Ferreolus makes explicit.
As soon as the monk passes into the power of the community, he as well as his
property become the property of the monastery.108In the RB the reason is cast
in the form of an a fortiori argument. If the monk does not have power over his
body and will, how is he to have power over property? Instead of relying on pri-
vate ownership, which as we have seen is to be eliminated, the RB urges that the
monk look to the abbot for everything necessary.109Finally, the RB lays down as
a general principle in words which echo Acts iv 32, that "all things be common to
all," "omniaque omnium sint communia."110Missing here is the technical word-
ing of the RM's "sententiam monasterii" or Ferreolus' description of the owner-
ship of the monastery's property as shared indivisum by the brothers. The RB
chooses to call attention to the Gospel ideal of fraternal sharing at the end of its
treatment of private property rather than to state in technical terms, as do the
other rules, the legal condition of monastic property.ll
103RB 33, 1:
"Praecipue hoc uitium radicitus amputandum est de monasterio ne quis praesu-
mat...."
104 RB
88, 2.
105RB 16, 58.
106RB 38, 3: "... neque aliquid habere proprium, nullam omnino rem, neque codicem neque tabu-
las neque graphium, sed nihil omnino, quippe quibus...."
107 RB 33, 4: ". ..
quippe quibus nec corpora sua nec uoluntates licet habere in propria uoluntate."
For parallel see RM 82, 19.
108 RF 10
(for text see n. 98).
109RB 33, 5: "Omnia uero necessaria a patre sperare monasterii nec quicquam liceat habere, quod
abbas non dederit aut permiserit." RB's point here, that the monk ought to depend on the abbot for
the necessaria, parallels RM 1, 68-69, where monks who do not depend on the abbot for the adminis-
tration of the necessaria are severely criticized.
11 RB 33, 6: "Omniaque omnium sint communia, ut scriptum est, ne quisquam suum aliquid dicat
uel praesumat" (Acts IV 32).
11 For the use of Scripture in the RB see Sigismund Pawlowsky, O.S.B., Die biblischenGrundlagen
der 'Regula Benedicti', Wiener Beitrage zur Theologie, ix (Vienna, 1965); also Hickey, "The Theology
of Community," pp. 431-471.
The comparison of the RB with the RM offers no explicit evidence that the
RB considered the property of the monastery to be corporate property.ll2 The
use of the phraseology of Acts neither affirms nor denies a corporate ownership of
the monastery's property. On the other hand, there is no evidence in the RB to
suggest that it considered the abbot to be some sort of owner of the monastery's
possessions. In fact, in the RB property is always said to be the monastery's, not
God's or the saints or anyone else's. There is no mention of the abbot's testament.
This negative evidence is helpful in one respect. If the RM did in fact consider the
abbot as a kind of owner, and Vogue thought that an important aspect of the
monastery of the RM, it is remarkable that the RB which leaned so heavily on
the RM knows nothing of it. I think this adds weight to the evidence that the
RM witnesses to an early belief that the monastery owned its patrimony as a
corporation.
Vogiu6insisted, as it will be recalled, that the abbot of the RM maintained his
"sovereignty" over the property of the monastery and the process of decision
making. If, as I hope I have shown, the abbot of the RM did not exercise the kind
of "sovereignty" over the monastery's property that Vogi6 believed he did, it
may be useful to reconsider whether the abbot retained absolute control over
decision making. Vogi6 understands the abbot's role in decision making to be
like that of the master, an abba of the desert, who commanded his disciple in
absolute obedience.l3 Understood in this context the common counsel, the con-
silium, of all the brothers could only mean that the brothers were to be offered
the opportunity to express their opinions. The judgment and decision as to what
was best and what ought to be done "pro utilitate monasterii" was wholly the
abbot's. At issue is the nature of the consilium which was to be sought in matters
concerning the utilitas monasterii. Vogie suggests that the consilium of the
brothers consisted merely in each monk giving his opinion for the enlightenment
of the abbot.l4 Though the word consilium easily lends itself to a variety of in-
terpretations, the essential features of the consilium of the RM are clear enough.l5
The RM describes the common counsel of the brothers as follows:
Wheneverthe abbotreallywants to act or do somethingfor the maintenanceand support
of the monastery (pro utilitate monasterii),he should do so with the counsel of the
112Chap.61 of the RB in speakingof those who oughtnot to be admittedinto the communityuses
the phrase"sociaricorporimonasterii,"whichcan be understoodin a technicalsenseto meanbecom-
ing a memberof a corporation:see n. 86. However,I doubt that this technicalsense was intended
here, as, apparently,does PierreMichaud-Quantin,'Universitas':expressionsdu mouvementcom-
munautairedansle moyen-agelatin, L'4gliseet l'ftatau moyenage,Vol. xiI (Paris,1970), p. 61.
113La communaute, pp. 26, 128-138.
114Ibid., pp. 202, 205.
116For consiliumin the Romanempiresee J. A. Crook,'Consiliumprincipis':ImperialCouncilsand
Counsellorsfrom AugustustoDiocletian(Cambridge,1955).E. Lewisin discussingC.1.14.8(Humanum
esseprobamus) in "KingAboveLaw?'QuodPrincipiPlacuit'in Bracton,"SPECULUM, XXXIX(1964),
243f.,n. 16, notes that it may be interpretedas settingfortha processof conciliarlaw making,which
is similarto what I will suggestthe RM had in mind. A brief survey of consiliumin ecclesiastical
bodiesduringthe earlyperiodcan be foundin W. Kemp,CounselandConsent:Aspectsof theGovern-
mentof theChurchExemplified in theHistoryof theEnglishProvincialSynods(London,1961);for the
introductionof the idea of consentinto the consiliumof the RB see Hegglin,pp. 100-198,and also
Jassmeier,pp. 10-12.
brothers. After all the brothers have been called together, what is for the monastery's
maintenance and support should be treated in common. The brothers, however, should
not, by chance, apply themselves to choosing counsels by their independent initiative or
by the unwilling exercise of the abbot's power, but at his order and command. The counsel
of all is to be sought because there are as many opinions, so diverse are they, as there are
men; lest by chance, from him of whom it is not expected, better advice might unex-
pectedly be given and this will better serve the common good; and from many counsels
that which is to be chosen is easily found. But if none of the brothers can give apt counsel,
then the abbot after giving the reason for his plan settles on what he wishes and it is just
that the members follow the head.l6
As described, the common counsel of all the brothers has a practical purpose, to
settle on a plan or course of action "pro utilitate monasterii." Two distinct steps
appear to be involved in achieving that end: each brother is to express his opinion,
and the best counsel is to be chosen. There is first an expression of opinion and
then the actual selection or choice of what is to be done. The RM normally ex-
pects all the brothers not only to express opinions but also to help choose what is
to be done. The latter is the crucial point.
There are several reasons for suggesting that the RM expected the monks to
participate in actually choosing which opinion was the better counsel. The RM
says that all the monks should apply themselves literally to "choosing" counsel,
"eligendis... consiliis."117 In contrast, when the RM refers to the individual
contribution of each monk, that is, when each monk states his opinion, it uses
the idea of "giving."s18 Another reason for believing that the monks did more
than state their opinions is the implication of what they are warned not to do
when choosing counsel. They are not to determine what is to be done on their
own initiative or by putting pressure on the abbot.119 This warning apparently
led Vogue to exclude the possibility that the monks participated in choosing the
course of action to be taken. But actually it excludes only a form of participation
by which the monks prevent the abbot from exercising his leadership in the
choice of the best counsel. If the RM wanted to exclude any form of participation
by the monks in deciding which opinion was the best, it could have done so
explicitly as did the RB (3, 2) instead of merely censuring the extremes. The RM
passage assumes, rather, that the monks should participate in determining the
choice of counsel. The problem it addresses itself to is the exclusion of the
abbot's leadership. They are to choose at the "abbot's command." The juxta-
position of roles suggests a paradox, but that is how the RM sees it.
116 RM
2, 41-47: "Quidquidueroabbasproutilitatemonasteriiagereaut facereuoluerit,cum con-
silio fratrumagat et conuocatisomnibusfratribusde utilitate monasteriitracteturcommuniter.Ita
tamen, non libero ausu fratres aut inuito suae potestatisarbitrio,sed iussioneet imperioabbatis
eligendisforte consiliisadplicentur.Nam ideo omniumquaeraturconsilium,quia quot homines,tot
sunt pro diuersitateinterdumsententiae,ne forte a quo non speratur,meliussubito deturconsilium
et communiutilitati hoc magisproficiat,et de multisconsiliisquodeligaturfacileinuenitur.Quodsi
de omnibusnullusaptumpotueritdareconsilium,tune abbasredditarationeconsiliisui constituat
quoduult, et iustumest ut membracaput sequantur."
117RM 2, 43.
118 RM 2, 45: "Ne forte a quo non speratur,meliussubitodeturconsilium ..." 2, 47: "Quodse de
omnibusnullusaptumpotueritdare consilium...."
119RM 2, 43.
The paradox may be more apparent than real if what the RM is trying to
describe is the formation of a consensus in the community, a consensus of head
and members, as to what is to be done. If this is the case, it makes sense for the
RM to insist that all the brothers are to be called together to treat of the business
and that they are to choose the best counsel only with the guidance of the
abbot. Further, the exception that the RM allows to this process is exceptional
only if the abbot was not normally free to settle on what he liked: "But if none
of the brothers can give apt counsel, then the abbot after giving the reason for
his plan settles on what he wishes and it is just that the members follow the
head."'20If normally the brothers only gave their opinions and the abbot always
judged which was the best counsel, what the RM describes as exceptional would
be no exception at all. The abbot would regularly settle on what he wished. But
the RM treats this case as an exception and even hedges it with the qualification
that the abbot is to explain his reasons. In adding this qualification and in urging
the monks to comply with the abbot's decision in terms of the body-head meta-
phor, the RM is sensitive to the need for consensus as well as obedience.121
There is another reason for believing that the RM understood the consilium
of the brothers to mean the formation of a consensus. The RM believed that a
multiplicity of opinions is a good thing.122Its reasoning that the more who were
called to give counsel the better, since there were as many opinions as men,
assumes that multiplying the number of opinions is useful. This could appear
plausible because the RM also held that it would be easy to find the best opinion
amony many.123Good counsel, the RM perhaps naively assumes, will stand out
and, therefore, hearing a multiplicity of opinions will be no handicap. Rather it
is an advantage. It will assure that all possible opinions will be presented and
thus make more likely the choice ultimately of the best counsel. Choosing the
best counsel is not a problem for the RM. The community will recognize and
choose it when it hears it. Given good counsel, then, consensus will form. If no
apt counsel is given, it would seem that no consensus could be expected. It is on
such occasions that the abbot would have to settle on what he wished as he could
not settle on what the consensus of the community had agreed to as the best
counsel.
What the consilium of the RM involves in summary, I suggest, is the arrival
at a consensus about what is to be done "pro utilitate monasterii." The RM is
concerned that the consensus be intelligently formed, that all the advice possible
be given. The abbot and the brothers are to choose the apt advice whoever might
give it. Apt advice is such that a consensus for it will form. The abbot by his com-
mand and order "settles on" what has been arrived at by consensus as the course
120 RM 2, 47: "Quod si ... tune abbas reddita ratione consilii sui constituat quod uult...."
m2Ibid., ". .. et iustum est ut membra caput sequantur." The process of forming and acting on a
consensus as described here does not necessarily involve the use of a majority vote or the idea of
unanimity. For these see L. Moulin, "'Sanior et maior pars': note sur 1'evolution des techniques
electorales dans les ordres religieux du VIe au XIIIe siecle," Revuehistoriquede droitfrangais et etranger
(RHDFE), xxxvI (1958), 868-897, 491-529; also Jean Gaudemet, "Unanimite et majorite: ob-
servations sur quelques Etudes recentes," Etude hitoriques a la memoirede Noil Didier (Paris, 1960).
22 RM 2, 44.
128RM
i, 46: ". . et de consiliis quod eligatur facile inuenitur."
Roman Law and "Consilium" A5
of action to be followed. If a consensus does not form, which apparently would

happen when no apt advice is given, then the abbot after giving his reasons for
what he has chosen "settles on" a plan of action. In this case the brothers should
go along with the abbot's decision since the head appropriately leads the mem-
bers. Consilium understood in this manner is the action of a corporation.'24
It remains to be seen with what matters consilium is concerned. The RM in
instituting the consilium of all the brothers required it in matters which con-
cerned the utilitas monasterii.l25VogUi has suggested that the RM usually
understands by utilitas matters concerning the temporal administration of the
monastery's goods.126Temporal administration, however, comprehends a number
of acts for which the consilium just described would hardly be suited. Further,
the RM did prescribe what was to be done in many ordinary administrative
matters and left action in others up to the discretion of the abbot.127An instance
of the latter is the directive given the abbot to sell what was not needed of the
gift that a man made to the monastery when entering it.128Obviously what the
RM had in mind as matters for consilium were not the ordinary problems of,
or decisions concerning the management of the monastery's resources. Utilitas
appears to refer to the resources which supported the community. The word is
used in this sense also when the RM directs the monk who is entering the com-
munity to give some of his property to the poor, to his relatives and also to
the monastery for the support (utilitate) of his journey.l29 The utilitas about
which consilium was to be concerned appears to be the endowment, the resources,
needed to support community life. Thus when a man who entered the community
gave more than what was needed for the utilitas monasterii, the abbot was free
to sell the surplus and give away the proceeds to the poor. The community had
no claim to what it did not need, and the abbot could therefore act on behalf of
the individual who received the merit of the almsgiving. The abbot, however,
was not free to give away needed income or resources. He could give away only
what he saw exceeded the utilitas of the monastery.
Utilitas understood in this sense referred to what early sixth century synodal
legislation spoke of as the facultates, the endowed resources, of a church or
community.130Therefore when the RM gave the "sententiam monasterii" as its
vmFor decisionmakingin the corporationsof the late empiresee Waltzing,I, 370-880.
m RM 2, 41.
126Vogti discussesthe meaningof the utilitasof the monasteryin La communaut6, 85, 191-192,
pp.
203, n. 1, and in La Regledu Maitre, in, 481. For utilitasin Romanpubliclaw see J. Gaudemet,
"'Utilitas publica',"RIDFE, xxxix (1951), 465-499, and also Gaines Post, Studiesin Medieval
LegalThought:PublicLaw andthe State,1100-1322(Princeton,1964),pp. 241-309.
127The RM legislatesin considerabledetail everythingconnectedwith providing,preparing,serv-
ing and eatingmealsin chaps. 15-28.
28RM 87, 38.
129 RM
91, 52: "Tertiamuero partem uiatici sui utilitate deferat secum monasteriosanctorum
usibusprofuturam...."
130Councilof Agde (506),canons6, 22, 26: ConciliaGaUiae 314-506,ed. C. Munier,CorpusChristi-
anorum,SeriesLatina,Vol. cxLVIII(Turnhout,1963), pp. 194,208, 205. See n. 39 for a similaruse
of facultatesin the rule of Aurelianof Aries.For a discussionof the differinginterpretationsgivento
facuates, see Eric John, "A Note on Bede's Use of 'Facultas'," RevueBndcidine (RB), Lxi
(1962),350-855.
final reason for calling the brethren together to give consilium in matters which
concerned the utilitas of the monastery, it was using the maxim to explain why
all the brethren were to be consulted concerning the 6ommunity's endowment.
The RM does not reason here that the monastery's goods belonged to God, nor
does it speak in terms of consent to alienations, which are never mentioned. The
final reason the RM gives for the necessity of consilium is the maxim that "the
property of the monastery belongs to all and to none." If as it has been suggested,
this maxim was understood to describe monastic property as the property of
a corporation, the maxim served its purpose well.'13 The corporate character
of the monastery's property required the abbot to act collegially, with respect
to it.
The description of the brothers' consilium in the RB is at variance with that in
the RM. In the RM consilium was appropriately called for with respect to matters
concerning the monastery's endowment or resources. The subject of consilium
was not limited only to alienation, nor, on the other hand, were ordinary affairs of
temporal administration considered the occasion for consilium. In the RM consil-
ium was reserved for certain matters that concerned the use of the monastery's
resources. In contrast, the RB broadens the subject matter of consilium. The
matter on which counsel is to be given is loosely described in the RB as "some-
thing important."l32 Consilium is not limited to matters concerning the monas-
tery's endowment or resources. The reasons for calling all the brethren together
are also different. In fact the RB gives only one, "because God may often reveal
to a younger monk what is better."'33Instead of the worldly-wise reasons which
the RM gives for calling all together, the RB explains the need to call all the
brethren in terms of God's freedom. He may reveal what is better to the young.134
There is, however, an even more important alteration than these in the RB's
description of common counsel. Consilium for the RB means merely giving
opinions. Unlike the RM where what was for the utilitas of the monastery was
13'The phrase "sententiam monasterii" may suggest not only a maxim, but also a rule or law which
the RM believed governed the property of a monastery. The second time that the RM cites the
maxim it introduces it with the phrase "regulae sententia" (16, 61). For the meaning of regula as a
rule or maxim of law, see Peter Stein, 'Regulae luris': From Juristic Rules to Legal Maxims (Edin-
burgh, 1966), pp. 110-115. Vogiue considered the use of the term regula in the RM and the parallel
sententia to be a way of cloaking with anonymity what the editor of the RM had formulated on his
own or, perhaps, borrowed from elsewhere: La Regle du Maitre, I, 193-194. He does not make refer-
ence to what appears in the RM to be another quotation of a legal maxim: ".... iudex sui sibi esse
non potest" (RM I, 308). Its source is perhaps D.2.1.10: "Qui iurisdictioni praeest, neque sibi ius
dicere debet .. ."
132 RB 3, 1: "Quotiens aliqua praecipua agenda sunt in monasterio, conuocet abbas omnem con-
gregationem et dicat ipse, unde agitur." Vogii considers the differences between the consilium of the
RM and RB to be minor: La communaute,pp. 202-203.
133RB 3, 3: "Ideo omnes ad consilium uocari diximus, quia saepe iuniori dominus revelat, quod
melius est."
134For a discussion of the text of RB see Philip Hofmeister, " 'Saepe iuniori Dominus revelat, quod
melius est'," Studien und Mitteilungen zur Geschichtedes Benediktiner-Ordensund seiner Zweige, LXX
(1959), 159-168. The reasons given in the RM include "quot homines, tot... sententiae" (RM 2,
44), which appears to be an allusion to the aphorism found in Terence's Phormio II, 4, 14.
to be treated in common, "tractetur communiter," the RB states that the

abbot is to decide by himself what is to be done, "tractet apud se," after hearing
the opinions of the brothers. Whatever he judges useful, he should do.135The
exception which the RM foresaw is the rule in the RB. The abbot is always to
decide what is the better counsel, which opinion is the more apt. Nor is he required
to give his reasons. Instead the brothers are urged by the RB to be obedient
disciples, and the abbot, as teacher, is commanded to dispose all things justly.136
Any suggestion of corporate decision making has been deleted. The relation
which the RM recognized to exist between corporate consilium and corporate
property is not to be found in the RB. The consilium of the RB appears to be a
common sense response to the Scriptural admonition that all things are to be
done with counsel. It has nothing necessarily to do with property or its ad-
ministration.
It is perhaps too early at this stage of the studies of the RM to draw any
firm conclusions about sixth century forms of monastic consilium, but I will
venture a few reflections. It appears to me that the RM regards the property of
the monastery as corporate property. The RM also believes that it is God's
property and that the abbot stands in God's place. But since it is corporate
property, the RM believed it was necessary to require the counsel of all the
brethren in matters concerning the monastery's endowment. However, the
corporate character of this consilium is clearly at odds with the rest of the RM.
That explains why Vogiue did not recognize the consilium of the RM for what
it was. Throughout the RM the emphasis is on the subordination of the monk
to his abbot, on the monk's ineptitude and immaturity.137It comes as a surprise
to the reader of the RM that the monks should be involved nevertheless in the
serious business of overseeing the monastery's endowed resources. Nowhere else
does the RMprovide for a deliberative, collegial approach to weighty matters.
Vogii's suggestion that the introduction of consilium into the RM was due to
demands foreign to its conception of monasticism is essentially right. The
consilium of the RM owes much of its character to Roman law, but not simply
to legalities governing alienation.138The consilium of the RM developed out of
135 RM,
2, 42: RB 3, 2: "Et audiensconsiliumfratrumtractet apudse et, quod utilius iudicauerit,
faciat."
136 RB 3, 4-5. Recently the traditionalinterpretationof RB 64, 1, that the whole community
electedthe abbot,has been challenged.See KassiusHallinger,O.S.B., "Das Wahlrechtder Benedik-
tus-regula,"ZeitschriftfiirKirchengeschichte,LXXVI (1965), 233-245. His view has been followedby
R. Somerville," 'Ordinatioabbatis'in the Rule of St. Benedict,"RB, LXXVII (1967), 246-263. The
abbotof the RM wasnormallyto be chosenby his predecessor(RM 92). For later evidenceof abbots
choosingtheirsuccessorssee CarloDe Clercq,La l6gislationreligieusefranque de Clovisa Charlemagne:
etudesur les actesdes concileset les capitulaires,les 6tatutsdiocesainset le reglesmonastiques507-814,
Recueilde travauxpubli6spar les membresdes confer6ncesd'histoireet de philologie,2e serie, Vol.
xxxviII (Louvain, 1936), p. 96.
137See, for instance,RM 1, 87.
138 Vogi6
suggeststhat its introductionis due to imperiallegislationduringthe sixth centuryreg-
ulating alienations:La communaut6, p. 196; for alienationin canonlaw see J. F. Cleary,Canonical
Limitationson theAlienationof ChurchProperty:An HistoricalSynopsisand Commentary, The Cath-
olic Universityof AmericaCanonLaw Studies,No. 100 (Washington,D.C., 1986).
the belief that the monastery was, as far as its property was concerned, a cor-
poration.
The RB suppressed the collegial character of the consilium prescribed in the
RM. The consilium of the RB was more faithful to the spiritual teaching of the
RM and the tradition from which the RM derived than was the consilium
described in the RM itself. In rejecting the collegial element which the RM
introduced, the RB did not suppress common counsel altogether but gave it a
strictly advisory role, though enlarged, and a Scriptural justification. Similarly,
the RB avoided describing the property of the monastery as corporate property.
It used instead the terminology of Acts, that everything was to be shared in
common. Who really owned the monastery's property is, as later in the Middle
Ages, left unspecified, undiscussed. Perhaps this ambiguity had its advantages.
One of the problems which apparently faced sixth century monastic legislators
was that monks who left the monastery tried to repossess property they had
given it. Perhaps they argued that they had entered into a societas, strictly
speaking, and at departure had a right to a division of the property. Hence the
emphasis in the RM and in Ferreolus' Rule that the monastery's property was
corporate property. But the technical language which was needed to explain
this could also lead the less subtle into thinking that a monk could still in some
sense be an owner. The RB in omitting such language may have contributed to
the radical definition which developed in the medieval West that a monk could
not be a property owner.139The general adoption of the RB also meant that the
collegial, deliberative consilium known to the RM was forgotten.
ST JOHN'S UNIVERSITY, COLLEGEVILLE, MINNESOTA
139For the
gradual development of the doctrine of civil incapacity see J. Protin, "Profession re-
ligieuse et incapacite de poss6der selon la doctrine classique," Ephemerides TheologicaeLovanienses,
xxxv (1959), 25-58.
ADDENDUM:To the bibliography concerning the Regular Magistri mentioned above (p. 1, n. 2) should
now be added: B. Jaspert, "Regula Magistri-Regula Benedicti. Bibliographic ihrer historisch-
kritischen Erforschung 1938-1970," Studia Monastica, xiiI (1971) 129-171.

Roman Law and "Consilium" in The Regula Magistre and The Rule of St. Benedict

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Medieval Academy of America

ROMAN LAW AND "CONSILIUM" IN THE

Vogie's interpretation of the origin and significance of the common counsel of

astery's property as belonging in some sense to all. In the rules of Aurelian of

two months.57Only after the probationary period is he allowed to make profes-

omnium non singulorum.89Corporate property belonged in some sense to all but

Whatever ambiguities the phrase suggests are immediately clarified.96Ferreolus

of action to be followed. If a consensus does not form, which apparently would

to be treated in common, "tractetur communiter," the RB states that the

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