Decretals, Decretalists, and Decretal Collections
The decades following the appearance of Gratian’s Decretum witnessed a burgeoning of new canon law, much of it designed to answer questions left unresolved by Gratian or to reform the law as Gratian presented it.
Most of the post-Gratian law took the form of decretals, papal letters that decided particular cases and also enunciated legal rules applicable to other cases of the same type.1 Pope Alexander III (1159-81) and Pope Innocent III (1198-1216) were the most prolific writers of decretals in the period between Gratian and the Liher Extra, but every pope during these decades (even the short-lived Gregory VIII, whose pontificate lasted less than two months) produced at least a few of them. Councils and synods also added to the Church’s legal corpus. The Third Lateran Council (1179) and the Fourth Lateran Council (1215) were particularly important, but local and regional assemblies also made significant additions to the law.Faced with massive amounts of new law, the judges, Church administrators, and lawyers had difficulty in keeping abreast of changes. The canons of the two general councils of the period circulated widely, but the actions of local assemblies were often difficult to track down. Decretals posed even greater problems. These letters (copies of which were not always retained in the papal archives) were dispatched only to the judges and parties in the case. No system existed for collecting and distributing copies. As a result, law teachers, practitioners, judges, and officials began to collect the decretals that came to their attention and sometimes circulated their collections to others. These primitive decretal collections were often haphazard assortments of a few letters, frequently scribbled in the margins or flyleaves of the Decretum and other books. These early collections were unsatisfactory, because officials and practitioners
, Gerard Fransen, Les decretales et les collections des decretales, Typologic des sources du moyen age occidental, vol.
A-ΠI.ι*, fasc. 2 (Turnhout: Brepols, 1972), pp. 12-15.needed to be able to locate relevant material quickly, without reading through an assortment of miscellaneous decretals. Users of the early collections also found that much of the verbiage in the letters consisted of routine formulas and rhetorical flourishes irrelevant to the legal pronouncements that they sought. As a result, canonists soon began to produce stripped-down, systematic decretal collections, which classified the material by topics and pruned the excess verbiage, leaving only the essential rules and principles.[1266]
Bernard of Pavia (d. 1213), an Italian law teacher and bishop, about 1191 produced a systematic and analytical decretal collection entitled the Breviarium CXtravagantium (later called Compilatio Prima) that quickly became a standard textbook, supplementing Gratian. Bernard divided the Breviarium into five books, each dealing with a major facet of the law. Book One covered the sources of law, jurisdictional questions, and the legal system; Book Two treated procedural law and remedies; Book Three centered on the clergy and church property; Book Four covered marriage and related matters affecting the laity; and Book Five dealt with penal law. Each book was subdivided into titles dealing with particular themes. Within each title, Bernard provided tightly edited extracts from decretals, conciliar canons, and other sources, arranged in chronological order. The organization of the Breviarium extravagantium was adopted by subsequent decretal collections throughout the Middle Ages.[1267]
Other collections, modeled upon Bernards, soon appeared to help law teachers and administrators keep abreast of the latest rulings. In 1210, Pope Innocent III commissioned Pietro Beneventano to collect Innocent’s own decretals. The pope published Pietros compilation as an official textbook for use in the law faculties, where it came to be known as Compilatio Tertia.
A few years later, John of Wales compiled a similar collection to fill the gap between Compilatio Prima, which had been completed before 1192, and Compilatio Tertia, which comprised decretals issued between 1198 and 1210. The collection of John of Wales naturally came to be known as Compilatio Secunda and it too became a textbook. Shortly after 1215, Johannes Teutonicus composed Compilatio Quarta, which included the decretals of the last six years of Innocent Ill’s pontificate, as well as the constitutions of the Fourth Lateran Council. Another official compilation was put together by a prominent Bolognese law professor, Tancred (ca. 1185-1234/36), at the direction of Pope Honorius III (1216—1227), who published it on 2 May 1226. This collection, known a? Compilatio Quinta, consisted principally of decretals by Honorius III, supplemented by a few constitutions of the Emperor Frederick II.4These five decretal collections circulated widely and, although they competed with numerous minor collections, achieved considerable success as university textbooks and reference works. But by the late 1220s, tracking the post-Gratian law through the five compilations had itself become a tedious and time-consuming process. Accordingly, Honorius Ill’s successor, Pope Gregory IX (1227-41), commissioned the eminent Catalan canonist Raymond of Pena- fort (1175 ~ 1180-1275) to prepare an official new collection to replace the five compilations. The pope also directed Raymond to insert in the new collection any important canons that had been left out of the five compilations; the pope moreover authorized Raymond to draft new decretals to clarify existing ones. The resulting text, known as the Liber Extra, or the Decretals of Gregory IX, was massive. Gregory IX promulgated the Liber Extra in September 1234 and presented copies of the work to the Universities of Bologna and Paris, with directions that it be taught in the law faculties as the official decretal law of the Church.
The Liber Extra remained in force among Roman Catholics until 1917∙[1268] [1269] [1270]The period between 1190 and 1234 produced a rich harvest of learned commentaries on canon law. As the major decretal collections became textbooks in law schools, glosses and more ambitious commentaries on them soon appeared. In addition, lecturers continued to comment on the Decretum. Both the de- Cretalists and the decretists—in practice often the same persons—not only tried to explicate the legal texts, but also sought to weave the varied strands of law into a coherently patterned fabric. The work of such men as Bernard of Pavia,6 Tancred,7 Johannes Teutonicus (d. 1245/46),8 Vincentius Hispanus (d. 1248),9 Laurentius Hispanus (d. 1248),10 John of Wales,11 Damasus Hun- garus,12 and Raymond of Pehafort,[1271] produced ideas and insights that proved to
6Bernardus Papiensis, Summa decretalium, cd. E.A.T. Laspeyrcs (Regensburg: Josef Manz, i860; repr. Graz: Akademische Druck- u. VerIagsanstalt, 1956); Gabriel Le Bras, “Bernard de Pavie,” in DDC 2:782-89; LAC, p. 294; Kuttner, Repertorium, pp. 322-23; Schulte, QL 1:175-82.
7Tancred, Summa de matrimonio, ed. Agathon Wunderlich (Gottingen: Vandenhoeck & Ruprecht, 1841) and Ordo iudiciarius, ed. Friedrich Christian Bergmann, in Lihri de iudiciorum ordine (Gottingen: Vandenhoeck & Ruprecht, 1842; repr. Aalen: Scientia, 1965), PP- 89-3J6; L. Chevailler, “Tancred,” in DDC 7:1146-65; LAC, p. 299; Kuttner, Repertorium, pp. 327-28, 346, 358-59; Schulte, QL 1:199-205. RayinondofPehafort edited Tancred’s Summa de matrimonio by inserting references to the canons of the Liber Extra into Tancreds text. Accordingly the Summa de matrimonio that circulated under Raymond’s name is virtually identical with Tanered s Summa; see n. 13 below.
8Johannes Teutonicuss Glossa ordinaria to the Decretum, in the version revised by Bartholomaeus Brixiensis (d.
1258), was published in numerous editions of the Decretum during the fifteenth, sixteenth, and early seventeenth centuries. I shall cite it from the edition published at Venice: Apud Iuntas1 1605. Johannes’s Apparatus to the Constitutions of 4 Lateran Council appears in Constitutiones concilii quarti Lateranensis una cum commentariis glossatorum, ed. Antonio Garcia y Garcia, MIC, Series Glos- satorum, vol. 2 (Vatican City: Biblioteca Apostolica Vaticana, 1981), pp. 173-270; his Glossa ordinaria to 3 Comp, has begun to appear as Apparatus glossarum in compilationem tertiam, ed. Kenneth J. Pennington, MIC, Series Glossatorum, vol. 3 (Vatican City: Biblioteca Apostolica Vaticana, 1981- ). On Johannes’s life and work see generally S. Stelling-Michaud, “Jean Ie Teutonique,” in DDC 6:120-22; Smith, Medieval Law Teachers, pp. 37-38; LAC, pp. 299-301; Kuttner, “Johannes Teutonicus,” in Neue deutsche Biographie 10:571-73; Repertorium, pp. 93-99, 357-59, 370-71, 374-75; Schulte, QL 1 :172-75.9Xavier Ochoa Sanz, Vincentius Hispanus, canonista holohes del siglo XIII, Cuader- nos del Institutojuridico espanol, vol. 13 (Rome, Madrid: Consejo Superior de Investiga- ciones Cientificas, Delegacion de Roma, i960); Stcphan Kuttner, “Wo war Vincentius Hispanus Bischof?” Traditio 22 (1966) 471-74; R. Chabanne, “Vincent d’Espagne,” in DDC 7:1507-1508; LAC, p. 298; Schulte, QL 1:191-93; Kuttncr, Repertorium, pp. 35θ-57> 37o> 374- „, „ „
10AIfons M. Stickler, “Laurent d’Espagne,” in DDC 6:361-64 and “Il decretista Laurentius Hispanus,” Studia Gratiana 9 (1966), 463-549; Knut Wolfgang Nδrr, “Der Apparat des Laurentius zur Compilatio III, Traditio 17 (1961) 542-43; Antonio Garcia y Garcia, Laurentius Hispanus: datos biogrdficos y estudio critica de sus obras, Cuader- nos del Institutojuridico espanol, vol. 6 (Rome, Madrid: Consejo Superior de Investiga- ciones Cientificas, DeIegacion de Roma, 1956); LAC, pp.
297-98; Kuttner, Repertorium, pp. 76-80, 83-91, 326, 356.1'G. Oesterle, “Jean de Galles,” in DDC 6:105-106; Kuttner, Repertorium, pp. 345, 356; Schulte, QL 1:189.
12Charles Lefebvre, “Damasus,” in DDC 4:1014-19; Antonio Garcia y Garcia, “Ob- servaciones sobre Ios Apparatus de Damaso Ungaro a las tres primeras Compilaciones antiguas,” Traditio 18 (1962) 469-71, and “Closas de Juan Teutonico, Vicente Hispano y have momentous influence, not only on the medieval Church, but on later notions about law, corporate organization and structure, limitations on the power of rulers, parliamentary representation, legislative consent, and constitutional government.[1272] 13 [1273]
During the decades between the Breviarium of Bernard of Pavia and the Liber Extra, the civilians (or academic commentators on Roman civil law) were exploring many of the same themes and problems that intrigued the canonists. Legists (as they were also called) such as Azo (ca. 1150—1230),[1274] Accursius (ca. 1181 ~ 1186-1259 ~ 1263),[1275] Placentinus (ca. 1135-1192),[1276] Pillius (d. 1192),[1277] and Roffredus (d. after 1243),[1278] made further substantial contributions to public and private law. And, although canon law and civil law were often taught in separate faculties in the universities, connections between the two learned laws were close and intimate. Canonists studied civil law in order to understand their own legal system, while civilians had to pass examinations in canon law as part of their professional training.20
Little information survives about how courts applied canon law prior to the beginning of the thirteenth century. Court records for the period after 1200 are, however, more common, in part as a result of one of the reforms of the Fourth Lateran Council, which required ecclesiastical courts to document their actions and to file them. Although only incomplete records survive for a few localities, they nonetheless furnish evidence about practice and the actual application of academic theories.21
20Rashdall, Universities 1:132-34; Helmut Coing, “Die juristische Fakultat und ihr Lehrprogramm," in his Handbuch 1:69-80; Leonard E. Boyle, “The Curriculum of the Faculty of Canon Law at Oxford in the First Half of the Fourteenth Century,” in Oxford Studies Presented to Daniel Callus, Oxford Historical Society Publications, n.s., vol. 16 (Oxford; At the Clarendon Press, 1964), pp. 136-38, 141-47; Gerard Fransen, “ Utrumque ius dans les Questiones Andegavensesf in l''.tuιles Le Bras 1:897-911; Picrrc Legendre, “Le droit roιnain, modele et language: De la signification de YUtrumque ius,” in Etudes Le Bras 2:913-30; Charles Munier, “Droit canonique et drot romain d’apres Graticn et les decretistes,” also in Etudes Le Bras 2:943-54; Stephan Kuttner, “Papst Honorius III. und das Studium des Zivilrechts," in Festschrift fiir Martin Wolff: Beitrlige zum Zivilrecht und Mernationalen Privatrecht (Tubingen: J. C. B. Mohr, 1952), pp. 89-91, 93-94; Paul Koschaker, Europa und das rδmische Recht (Munich: Biederstein, 1947), pp. 76-77; Georges Digard, “La papaute et Γetude du droit romain au moyen age: a propos de la fausse bulle d’Innocent IV, Dolentes,” Bibliotheque de VEcole des Chartes 51 (1890) 381-419; Haskins, Studies in Medieval Culture, p. 47 n. 8.
214 Latcran Council (1215) c. 38, ed. Garcia, pp. 80-81. On this canon see generally Rudolf Weigand, “Zur Tnittelalterlichen kirchlichen Ehegerichtsbarkeit: Rechtsver- gleichende Untersuchung," ZRG, KA 67 (1981) 213-47; Donahue, “Proof by Witnesses,” ρ. 134. On the types of records see Helmholz, Marriage Litigation, pp. 6-24. Sample documents from thirteenth-century English court records can be found in Select Cases from the Ecclesiastical Courts of the Province of Canterbury, c. 1200-1301, ed. Norma Adams and Charles Donahue, Jr., Selden Society Publications, vol. 95 (London: Selden Society, 1981); a short run of thirteenth-century Italian records from Pisa appears in Gcro Dolezalek, Das Imbreviaturhuch des erzbischδflichen Gerichtsnotars Hubaldus aus Pisa, Mai bis August 1230, Forschungen zur neueren Privatrechtsge- schichte (Cologne: Bohlaus, 1969). No official case records survive from the twelfth century. Hubert Silvestre, “Dix plaidoires inedites du XIIe siecle,” Traditio 10 (1954) 373-97, published the earliest surviving set of pleadings (allegationes); in their present form, these seem to have been recast as academic exercises, although they are probably founded on the facts of real cases. The oldest surviving pleadings from actual lawsuits date from the early thirteenth century; see Pieter Gerbenzon, Caspar J. Van Hell, Ba- rendmaHempenius-Van Dijk, TheaJ. Veen, and Johannes A. C. J. VandeWouw, “Allegationes Phalempinianae; Documents Bearing on Two Early Thirtcenth-Century Lawsuits,” Tijdschrift voor Rechtsgeschiedenis 49 (1981) 251-85.