testamenta religiosorum – illegal charters? 106 By definition, all charters are legal documents. Talking about illegal charters must therefore appear strange at first glance. Talking about illegal testamenta, however, may be possible because, according to the law, people who did not own property could not make legal testamenta. In principle canon law regarded the ability to make a testamentuma general human prerogative.1 But there were limitations and exceptions. Medieval clerici, members of the clergy, were one example. They usually held two kinds of properties, firstly things that belonged to theirbeneficia, and secondly their peculium, that is things, both mobilia and immobilia, that belonged to the clericus as a person. Concerning their peculiummedieval clerici were permitted to draw up testamenta, provided, of course, that their lords did not claim theius spolii, something in the later Middle Ages that was usually done by lords who held the ius patronatus for the beneficia that the clericus possessed.2 Concerning properties that belonged to the beneficia, however, clerici were forbidden to make testamenta.3 Medieval religiosi, members of religious orders, provide a similar example. They made the three solemn vows of poverty, chastity, and obedience. Poverty meant that they were not supposed to have any properties at all, neither mobilianor immobilia.4 As a consequence, if they made atestamentumthis document had to be regarded as illegal. Gratian’s DecretumC.19 q.3 c.7 declared clearly: Post monasterii ingressum nulli relinquitur licentia testandi.5 Gregory IX’s Liber Extra 3.26.2 confirmed this and added that their belongings should go to their monastery.6 Only before taking solemn vows couldreligiosi draw up testaments. The last chance to do that was on the day when their solemn vows were given, for example in 1051 when a certain Mainardus became monk at St-Victor in Marseille.7 If religiosi inherited anything afterwards, some people argued, the 1 Wolf von Glanvell (1900), pp. 69, 126. 2 Sägmüller (1914), pp. 464–67; Kaps (1958), pp. 37–53; Petke (1995), pp. 34–35 notes 118– 19. 3 Friedberg (1881), col. 541–42, Extra 3.26.12. 4 Sägmüller (1914) p. 408. 5 Friedberg (1879), col. 842. 6 Friedberg (1881), col. 538–39. 7 Amargier (1992), pp. 9–16.
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