Lessons from Merton

Instrumental Constitutions

Most obviously, the constitutional documents played an instrumental role in securing collegial accountability. Merton’s earliest constitutional documents are not statutes by name. That word is written on early founding documents in later hands.40 In 1264 the constitution is ordinatio etprouisio.41 In 1270 it is a donacionem which is sub forma et condicionibus subscriptis with the overall group termed an institucionem and collegium.42 In 1274 the constitution was called obseruancias uel statuta and the dispositive verb is statuere when it comes to the rules.43 But notwithstanding terminology, these constitutions were inherently instrumental. They establish the terms of the trust Walter founded.

They were treated as such by both insiders and outsiders—both when observed and when transgressed. A late but vivid parallel occurs in the German dialogue collection the Manuale scholarium where student Camillus complains about the fines he has run up from breaking various collegial or hall statutes. Bartoldus, his companion asks him if the prohibition ‘was specified’ (fuitnepublicatum)? When Camillus says that it had been, Bartoldus retorts, ‘It’s your own fault, you’ve no excuse’ (Culpabilis es; nullam habes excusationem).44 That Merton’s scholars took theirs as binding is clear because they wanted to change them. Pecham’s pre-31 August 1284 allowances of wood and straw were modifications to the constitution made presumably at the fellows’ request.45 Both Pecham’s and Kilwardby’s (1276) visitation ordinances likewise show its statutes being used to hold the college to account. Perhaps significantly both these friars, one Dominican, one Franciscan, call Merton’s statutes a ‘rule’ (regula)—seeing a religious order behind the college’s gates.46 This chapter will suggest that how one perceived such a community had important consequences for accountability within it.

Even if Pecham’s own numbered and rubricated version of the Merton statutes is lost, his letter to the college clearly implies he had made a list of the statutes, turning them into a veritable, verifiable checklist. The format of Merton College Record 232 itself is hard to use like this (it has 30+ words a line, is 20 in. wide, has 111 lines and no paragraphs). Evaluating how the statutes’ norms were, or were not, applied is the method used for bringing Merton into line—just as the action of account was for bailiffs or sindacatio for podesta. Statutes are, of course, not new nor a form particular to colleges. Walter of Merton was making use of a technique (normative statutes, lists) especially characteristic of bishops and monasteries, and widespread in this period.47 Pecham had too his own rule as a Franciscan and had found just such a practice of numbered division helpful when commenting on it (in good scholastic style).48 His numbering of the statutes was his attempt to make Merton’s statutes more usable as statutes for holding the college’s members to account.

One needs to ask, though, how drafters imagined the statutes would work. Roger Highfield argues that ‘once the statutes of colleges were established their government should have proceeded smoothly in accordance with their [1] [2]

implementation’.[3] It is not necessarily clear that such a smooth unscrolling of corporate life was conceived by founders as the axiomatic effect of their constitutions. The point of the constitutions was rather to establish a framework that could resolve unforeseen problems, given a group’s charitable purpose. College constitutions may make better sense if we see them as creating a rational space for regulating foreseeable and unforeseeable conflicts between founders’ intentions, members, and collegial rules—as Exchequer rules did for sheriffs.[4] Some college statutes are simply too brief to be all-encompassingly final. One early collegial ‘constitution’— that of University College, Oxford—is in fact a university ruling on how to rectify a neglected bequest.[5] The written text was to be supplemented by a constitutional blend of internal procuratorial responsibility and external oversight by the University Chancellor and the Masters of Theology. The history of religious orders is relevant again here. Members’ identification with colleges, and their founders’ charisma, though, seem seldom highly charged enough to lead to the anxious originalism and glossing that the Franciscans themselves produced in agonizing over their own rules. Pecham had entered the order at the watermark of its constitutional elaboration. He would have known all too well that formal documents seldom had the last word. He came to the question of Merton’s statutes with some ‘previous’ that it is worth noting.

By the 1280s the Franciscans had an institutional complex about the relationship between founder, Order, and rule. Having withdrawn in c.1217—18 from any formal determinative role in the Order, Francis had nevertheless set out his views on important aspects of the Order’s life in his Testament, shortly before dying in 1226.[6] It should not be taken, he said, as a regula but rather his ‘recorda- tio, admonitio, exhortatio, et meum testamentum’. Still it must, he said, be taken with (semper iuxta) the official rule of 1223, the regula bullata, which had itself succeeded an earlier rule.[7] This short, extraordinary, contradictory Testament was of deeply problematic standing. It was simultaneously Francis’s elegiac lament, authoritative history of origins, tacit critique, confession of obedience, plea to be constrained to obedience, and founder’s heartfelt last word. Reaction to it was complex enough to lead to Gregory IX’s arbitration of 1230 (Quo elongati a), ruling that the Testament had no legal standing for the Order.[8] Partly in response to this, partly because of the Order’s expansion, much more statutory regulation followed.[9] A related consequence was a steady stream, increasingly problematic, of Franciscan and papal comment on the 1223 rule.[10] Pecham himself contributed with an Expositio super Regulam Fratrum Minorum, c.1276—9, almost certainly written while Prior of the English Franciscan province and just before he visited Merton.[11] In his Expositio Pecham glossed his own rulebook, explicitly differentiating between requirements that he argued were of different standing.[12] Pecham came to review Merton’s statutes with some particular institutional baggage when it came to interpreting founders’ statutes. He had done something similar before.

Collegial statutes could be of as long gestation as those of religious orders. Where constitutional texts were more expansive it was often because they had been stewing for a long time. Robert de Sorbon took an extremely close interest—acting as the Sorbonne’s first provisor during his lifetime. He will have reflected on the ‘customs’ and ‘statutes’ of his graduate theologians’ college for more than seventeen years.[13] Walter of Merton drafted and redrafted Merton’s constitutions over at least a twelve-year period.[14] There was a hidden preparatory period if, as Sethina Watson reckons, his Hospital of St John’s Basingstoke (f. c.1240) was the regulatory model for Merton.[15] Certainly in that analogous field of hospital foundations founders’ constitutions were similarly developed over decades (and functioned very similarly).[16] Founders appreciated the length of time needed to get constitutions right. They may have thought that their final iterations were ‘right’ enough to create long-lasting groups. It need not follow that they thought these texts wound up an institutional clockwork that would enable a college to whirr off happily ever after. Walter of Merton knew that ‘known unknowns’ must persist (how many fellows would the golden rule permit; will Oxford remain a centre of learning?). Colleges’ constitutional texts provided the basis for resolving these future imponderables, through a mixture of guidance and stipulation.63

It is better therefore to treat such constitutions as a necessary minimum for any collegial life, rather than as sufficient for peaceful collegial life. Some statutes stressed the need to restrict their interpretative licence. ‘The rule for living ought to be fixed, defined and limited,’ said the Spanish College statutes at Bologna.64 R. N. Swanson’s assessment seems right: ‘These are generally utilitarian codes, concerned with the actual workings of the institution, not its validation. Yet an idealism is there [. . .] The statutes often appear not primarily as prescriptive towards an end, but as erecting safeguards against its distortion.’65 (One is reminded of discussions about the prescriptiveness of estate management texts.) As—sometimes still—at modern universities, constitutions were predicated on the basis of the ‘interminable discussion and interminable participation’ to which they must give rise.66

Interminable discussion and participation are vividly recorded in the 1338—9 Merton scrutinia records.67 Although edited some time ago the minutes merit greater consideration. Their value is precisely the remedy they offer (over a very short period) for an equally well-known problem in early university history: seeing beyond formal statutes to their interaction with the people they were supposed to guide.68 und der Renaissance (Bochum 2011), 29—38 at 31. More widely Gisela Drossbach (ed.), Hospitaler in Mittelalter und Fruher Neuheit. Frankreich, Deutschland und Italien. Eine vergleichende Geschichte; Hopitaux au Moyen Age et aux temps modernes: France, Allemagne et Italie: une histoire comparee, Pariser Historische Studien 75 (Munich, 2007).

  • 63 In the language of contemporary moral philosophy, they provided for ‘guidance control’ (i.e. allowing some interpretative licence) as well as ‘regulative control’ (i.e. stipulative): see John Martin Fischer, My Way: Essays on Moral Responsibility (Oxford, 2006); John Martin Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (Cambridge, 1998).
  • 64 Berthe M. Marti (ed.), The Spanish College at Bologna in the Fourteenth Century (Philadelphia, 1966), 214. For Corpus Christi Oxford’s later emphasis on the need for clear (and lengthy) statutes so as ‘to breed the fewest possible questions’ (ut paucissimas pariant quaestiones), Statutes of the Colleges of Oxford, ii. Corpus, 112 (1517).
  • 65 Swanson, ‘Godliness and Good Learning: Ideals and Imagination in Medieval University and College Foundations’, in Rosemary Horrox and Sarah Rees Jones (eds.), Pragmatic Utopias: Ideals and Communities 1200—1630 (Cambridge, 2001), 43—59 at 47.
  • 66 The phrase is from K. C. Wheare’s memoir of the medievalist G. D. G. Hall and a twentieth- century sub-rector of Exeter and president of Corpus Christi College Oxford. As an ideal of a self-governing, collegiate university Wheare’s description can be applied to thirteenth-century Oxford: ‘The price of liberty and efficiency at a university such as Oxford, which professes to be self-governing, is interminable discussion and interminable participation. ‘ “Academic politics,” [Hall] thought, “were not interesting or worthwhile in themselves. Their only proper purpose was the service of the University as a place of learning. [Hall] had no sympathy with those who were too busy to contribute but not too busy to grouse, and he had too no sympathy for those whose taste for the corridors of power he had adjudged unworthy.” ’ ‘George Derek Gordon Hall, 1924—1975’, PBA 62 (1976), 427—33 at 429. Wheare quotes from Hall’s memorial service address.
  • 67 Merton Muniments, ##13—15.
  • 68 I try a different approach in ‘Regulating Community and Society at the Sorbonne in the Late Thirteenth Century’, in Fernanda Pirie and Judith Scheele (eds.), Legalism: Community and Justice (Oxford, forthcoming 2014).

The 1274 statutes required that, ‘with the warden and seniors of the House and all the fellows then present, three times a year [. . .] a chapter or scrutinium should be celebrated at the House itself, in which careful inquiry will be undertaken into individuals’ lives, conduct, intellectual progress and all matters which will be rightly worthy of correction or re-shaping’.[17] The run of extant minutes appear to show each fellow speaking in turn.[18] In April 1338 the principal complaint was that there were too few students and fellows. Students were racing about inns and eating-houses too. They would bring wine and drink it standing just on Merton’s threshold—provoca- tively, presumably.[19]

In between these constants, bubbles from bigger problems were surfacing.[20] The summer scrutiny records a full-blown row revolving around Warden Robert of Tring (former fellow and bursar) and fellows William of Wantyng and John of Wyly.[21] It related to the latters’ failure to audit the bailiffs’ accounts. The minutes allow competing interpretations of the discord (and factions) to be faintly traced. Bursar and philosopher William of Heytesbury’s version shows the constitution in action—as well as the interminable discussion it gave rise to.[22]

There is rancour between the Warden and Wyly and Wantyng because the latter two have been assigned to hear the bailiffs’ accounts and he [Heytesbury] believes that there may be a problem with their conduct and with respect to the Warden’s, given they fail to hear the accounts. Having been delegated to hear the accounts they are bound to attend, unless they have reasonable cause and in his [Heytesbury’s] judgement, they have none. Regarding the hearing of accounts, five should be present for the accounting, but only three of those named do.[23] So if there is a problem, it would be better to substitute others and to trust to their counsel, so that they can conduct the common business and so there may be the peace between the fellows that there should.

Wantyng behaves much like a stranger to the Warden, and Wyly and Wantyng are bound to be present to hear the accounts lest they can offer some other excuse which he [Heytesbury] has not heard.

Wyly and Wantyng ought to have been compelled to hear the accounts, or they should have offered some other excuse, after all no clear reason was given, and thus the rule in this respect has not been observed according to the form of the statutes [iuxta formam statuti].

That while there should be accountability [respondendum] towards all the fellows in the approved and proper manner as they are bound in handling the business of the house amongst the fellows, [yet] Elindon[24] and Wantyng mockingly bandy honest words about.

There are too few fellows. The number is insufficient to hear accounts, as noted already, and about the college gate.[25]

A second bursar, William of Humberston, seemingly allied with Heytesbury, put it more concisely: ‘two of the fellows [presumably Wyly and Wantyng] are deficient in this respect: that they will not shoulder the responsibilities of the House as they are bound to’.[26] The third bursar Robert Finmere thought Wyly and Elindon ‘too rebellious’, and criticized Wantyng and Elindon who ‘in handling communal business refuse to give counsel as other fellows’.[27] There seems to have been a distinct hostility between Finmere and Wyly, since numerous fellows commented on it.

Of the three problematic fellows Wyly himself was not present (or did not speak). Elindon defended the Warden’s discretion in some matters (‘he may correct himself’), but also complained about Tring’s numerous absences. On the whole, Elindon appeared more bothered by his feud with Finmere. Finmere, he said, made ‘mortal threats’ against Wyly. Elindon said he also ‘treats him [Elindon] badly and that nothing is noted in this quarrel lest it comes from his accomplices, and that the Warden acts hostilely towards him, and does not treat him as he ought because [Warden Tring] supports Finmere against him’. Wantyng’s retort rests on formal grounds (and implies either that Warden Tring was not present or that his presence inhibited Wantyng’s tongue not at all).

If there is a disagreement between the fellows, about whether someone should be thrown from office, they should make it known so that they have the warden with them and have his clear view [propositum]. Also if there is discord between the fellows, the Warden’s good intentions and desire to please regarding the fellows is an obstacle for the deans and bursars lest they can all agree as in a case such as Finmere and Wyly.[28]

Having made this self-interested, ‘principled’ defence of himself and Wyly, Wantyng put the boot into Warden Tring. He prevented the increase of fellows, made them hostile towards the learned, sustained his relatives at the college (and so was held in contempt), and would not correct himself in those matters which had earlier been put before him (Wantyng then lists these).[29]

The alliances can be conjectured thus: Bursar Finmere stood with Warden Tring against Wyly, Wantyng, and Elindon. The other bursars Heytesbury and Humberston saved their fire mostly for Wantyng and Wyly whom they particularly blamed for failing to hear the bailiffs’ accounts. Of those under fire, Elindon seemed more preoccupied by his quarrel with Wyly than with any failings of Warden Tring. Wantyng sought protection behind constitutional proprieties and a blistering attack on Tring. Wyly and Tring’s feelings are not recorded. The final fellow to speak, Robert of Hardley,[30] summed up this tangle of mutual hostility. He noted only that ‘peace must be rebuilt between Wyly and Finmere, and between Elindon and Finmere, and between Wantyng and [John de] Wylot,[31] and between the Warden and Elindon, Wantyng and Wyly’.[32]

Like other methods of securing accountability discussed here, that which proceeded from the constitutions of Merton College was laborious, partial, and inconclusive. Its laboriousness is hopefully tangible, given the detail already cited. It was partial in two senses, first in that Elindon alleged Finmere and his allies conspired against him. Whether the scrutinium really was biased would depend presumably on one’s view about Elindon’s actual dereliction of duty. Second, Warden Tring was the apparently absent centre of the whole affair (in none of the four extant scrutinies of 1338—9 is he recorded). It is hard to see how the problems could be resolved without his participation in scrutinia.[33] The statutes required his presence. It is unsurprising that accountability was inconclusive. At the least, this is another proof that notwithstanding how articulate the provision for accountability, the justice or equity its mechanisms could immediately produce was quite fragmentary.

  • [1] Die deutschen Universitdten im Mittelalter: Beitrdgezur Geschichte und Charakteristik derselben,ed. Friedrich Zarncke (Leipzig, 1857), 1—48, at 28—9 (cap. 11), trans. as The Manuale scholarium: AnOriginal Account of Life in the Mediaeval University, trans. R. F. Seybolt (Cambridge, Mass., 1921).The text is c.1481 with strong impressions of life at Heidelberg.
  • [2] Reg. Peckham, iii. #589 at 814. 46 Injunctions of Archbishop Kilwardby, passim; Reg. Peckham, e.g. iii. #589 at 812. Statuta couldsometimes be used in a mendicant context to mean regula, though I think the argument stands here.See Rosalind B. Brooke, Early Franciscan Government: Elias to Bonaventure (Cambridge, 1959), 224. 47 Cf. on diocesan statutes C. R. Cheney, ‘Statute-making in the Thirteenth Century’, Texts andStudies (Oxford, 1973), 138—57, esp. 138—9, 142—3; Highfield, ‘Early Colleges’, 244. 48 Doctoris seraphici S. Bonaventurae [ . . . ] Opera omnia, ed. R. P. Bernardini and Portu Romatino,10 vols. (Ad Claras Aquas, 1882—1902), viii. 391—437, Pecham’s commentary (formerly attributed toBonaventure) on the Franciscan regula bullata with frequent enumerated and subdivided references tothe headings of the rule and also to the structure of the papal bull framing it. On lists and formulae seee.g. Jack Goody, The Domestication of the Savage Mind (Cambridge, 1977), esp. chapters on ‘What’sin a List?’ and ‘Following a Formula’.
  • [3] Highfield, ‘Early Colleges’, 259.
  • [4] Cf. Stuart Hampshire’s argument that we should not deceive ourselves into thinking that justice relates to the elimination of conflict rather than to the ongoing regulation of rational spaces forarticulating and regulating conflict: ‘Conflict is perpetual: why then should we be deceived [it couldbe otherwise]?’ (Justice is Conflict (Princeton, NJ, 2000), 48). The issue of being able to disentanglethe ultimate point of the rules from the rule itself would have been a familiar one from Pecham’s timethrough Aristotle’s discussion in Nicomachean Ethics, V10 (1137a35—1138a1). See e.g. the discussion in Aquinas, Summa Theologiae, Ia—IIae q. 96 a. 6 and q. 97. Cf., on statutory over-proliferation,Brooke, Early Franciscan Government, 281—2.
  • [5] For the story of William of Durham’s mishandled 1249 bequest, Darwall-Smith, History of UniversityCollege, 1—14 and 18—21 on the 1292 statutes; the 1280/1 commission’s findings edited in MunimentaAcademica, ii. 780—3, the 1292 statutes in i. 56—61. Further statutes were issued in 1311, MediaevalArchives of the University of Oxford, ed. H. E. Salter, OHS 73, 77, 2 vols. (Oxford, 1920—1), i. 84—6.
  • [6] Brooke, Early Franciscan Government, 76—83 for 1217—18 (not 1220), and generally on thestruggles over governance.
  • [7] Francois d’Assisi, Ecrits, ed. K. Esser, Sources chretiennes 285 (Paris, 1981), 204—10 at 210. Theregula bullata ratified within Honorius III’s 29 November 1223 bull Solet annuere sedes (Reg. Hon. III,ii. #4582; Potthast #7108 = Reg. vat. xii, fos. 155—6v). For the earlier (by 1221) regula non bullata, seeEcrits, 122—78.
  • [8] Reg. Greg. IX, i. #504; Potthast ##8620, 8627 = Reg. vat., xv, fos. 36r—38r reiterated by InnocentIV’s 1245 Ordinem vestrum; Rosalind B. Brooke, The Image of St Francis: Responses to Sainthood inthe Thirteenth Century (Cambridge, 2006), 26; David Burr, The Spiritual Franciscans: From Protest toPersecution in the Century after St Francis (University Park, Pa., 2001), 3—4, 15, 49—50.
  • [9] ‘Statuta generalia ordinis edita in capitulis generalibus celebratis. Narbonae an. 1260, Assisii an.1279 atque Parisiis an. 1292’, ed. Michael Bihl, Archivum Franciscanum Historicum 34 (1941), 13—94,284—358, incorporating pre-1260 traces.
  • [10] 56 Andre Vauchez, Francois dAssise, entre histoire et memoire (Paris, 2009), 168—71, 240—7, 269—76;Brooke, Image of St Francis, 77—101; cf. Bert Roest, A History of Franciscan Education (c.1210—1517)(Leiden, 2000), 253 n. 63.
  • [11] Bonaventurae [ . . . ] Opera omnia, viii. 391—437. Conrad Harkins offered an exhaustive case forPecham’s authorship of this Expositio in ‘The Authorship of a Commentary on the Franciscan RulePublished Among the Works of St Bonaventure’, Franciscan Studies 29 (1969), 157—248, offering(244) a case for narrowing composition to 1276—9.
  • [12] 58 Bonaventurae [ . . . ] Opera omnia, viii. 393—4, 436—7.
  • [13] From Louis IX’s 1257 donation and the customary foundation of the college until his death(1274). The start could be moved a few years earlier (Glorieux, Origines de la Sorbonne, i. 35—6).
  • [14] 6° Counting from the 7 May 1262 charter of Richard of Clare (Merton Muniments, 8).
  • [15] 61 I am grateful to Sethina Watson for discussion. The hospital’s influence on the college will beconsidered in her forthcoming study of medieval hospitals. There are no statutes extant for St Johns.At present see Watson, Fundatio, Ordinatio and Statuta, 135-9. Alexander Murray suggests Williamof Durham (University College’s founder) was a possible hidden influence through the foundations ofboth Balliol, Merton, and the ‘Norman’ College du Tresorier. See Murray, ‘1249’, University CollegeRecord 12/4 (2000), 52—73 at 62—4, 66—7. For William see also A. D. M. Cox, ‘Who was William ofDurham?’, University College Record 8 (1981), 115—23.
  • [16] 62 Watson, Fundatio, Ordinatio and Statuta, 26, 144; Jacques Verger, ‘Fonder un college au XIIIesiecle’, in Andreas Sohn and Jacques Verger (eds.), Die Universitaren Kollegien im Europa des Mittelalters
  • [17] Merton Muniments, #6 at 23 ll. 47—8.
  • [18] Minuting was contentious. In 1339 Richard of Aynho, for one, complained, ‘it is not appropriate that there are so many listening at the scrutinium . The text is partly corrupt, but he seems to allegethe previous recording of a dispute has created problems with the sub-warden. Merton Muniments, #15 at 35 (fo. 3v ll. 236-7).
  • [19] Merton Muniments, #13 at 33 (fo.1 ll. 18-23, Finmeres complaint). Seemingly verbatim recordsare tricky. Cf. Alexander Murray (on inquisitorial transcripts) in ‘Time and Money’, in Miri Rubin(ed.), The Work of Jacques Le Goff and the Challenges of Medieval History (Woodbridge, 1997), 3-25 at7 with John Arnold, Inquisition and Power: Catharism and the Confessing Subject in Medieval Languedoc(Philadelphia, 2001), 5.
  • [20] Brief mention of the episode in Highfield, ‘Early Colleges’, 262 (‘the impression is strongly givenof a quarrelsome community’).
  • [21] BRUO, iii. 1908 (Tring), 1979 (Wantyng), 2118 (Wyly).
  • [22] 74 For Heytesbury, BRUO, ii. 927-8, and E. J. Ashworth, ‘Heytesbury, William (d. 1372/3)’,ODNB.
  • [23] A reference to the 1274 rule requiring three bursars to be selected from the fellowship who willhear with the separately selected five the bailiffs’ accounts annually. They were also all involved in hearing the warden’s accounts. Merton Muniments, #6 at 24 ll. 55-8.
  • [24] BRUO, i. 634; it is not clear if Richard Elindon had a particular dereliction.
  • [25] Merton Muniments, #13 at 33 (fo. 1r-v ll. 45—69).
  • [26] 78 Merton Muniments, #13 at 33 (fo. 1 ll. 30—1). BRUO, ii. 982 (Humberston). Emden lists Heytesbury and Finmere both as first and Humberston as second bursar (each bursar was responsiblefor one of the three four-monthly periods during the course of the year).
  • [27] 79 Merton Muniments, #13 at 33 (fo. 1 ll. 33—5). BRUO, ii. 685 (Finmere).
  • [28] 8° Merton Muniments, #14 at 34 (fo. 2 ll. 95—101).
  • [29] Merton Muniments, #14 at 34 (fo. 2 ll. 101—7 then on to 129).
  • [30] BRUO, ii. 871.
  • [31] BRUO, iii. 2119, a future University chancellor. He established the poor scholars (‘postmasters’)fund at Merton.
  • [32] 84 Merton Muniments, #14 at 34 (fo. 2 ll. 144—6).
  • [33] The point stands, even assuming Tring was present but silent. I assume we have, more or less, allthe minutes that were made at this scrutinium.
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