Preface

Matt. 18:15-171

If your brother or sister sins, go and point out their fault,just between the two of you. If they listen to you, you have won them over. But if they will not listen, take one or two others along, so that �every matter may be established by the testimony of two or three witnesses.' If they still refuse to listen, tell it to the church; and if they refuse to listen even to the church, treat them as you would a pagan or a tax collector.

I Corinthians 6:1-6

If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of before the Lord's people? Or do you not know that the Lord's people will judge the world? And if you are to judge the world, are you not competent to judge trivial cases? Do you not know that we will judge angels? How much more the things of this life! Therefore, if you have disputes about such matters, do you ask for a ruling from those whose way of life is scorned in the church? I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother takes another to court—and this in front of unbelievers.

The New Testament never denies that the first Christians disagreed, sometimes violently. From the tale of Ananias and Sapphira to the confrontation between Peter and Paul at Antioch, we have ample evidence that they, as do their fel­low believers today, often failed the commandment to �love one another.'^{[1] [2]} Matthew also reminds us that Jesus had admonished His followers to settle disputes amongst themselves in the hope that reconciliation might occur.^[3] From Paul we learn, however, that some were so aggrieved they felt compelled to take their disputes to the secular court. Litigants and lawyers, courts and judges were present from the beginning of the Church.

What follows is neither a general history nor specific focus on any aspect of procedure. While much remains to be studied, there is certainly no lack of learned works. For the classical civil law there are already numerous compre­hensive and specialized studies.^[4] While much more will be said in upcoming chapters about the emergence in the twelfth century of the ius commune, the amalgam of civil and canon law that would shape ecclesiastical law for cen­turies to come, there are many valuable works that have appeared in recent decades.^[5] Scholars also have written extensively on procedure in the early and medieval canon law.^[6] Building on this considerable body of scholarship, I shall translate and comment on selected medieval procedural texts, mostly ordines Iudiciorum,^[7] written for study and potential use in twelfth-century ecclesiasti­cal litigation.

Save for a very few excerpts, none of these treatises has been translated.^[8] It is hoped that translation and commentary will shed light on the theory and practice of legal process in the ecclesiastical forum during the twelfth century. Ideally, these works, sometimes overlooked in the study of medieval legal and institutional history,^[9] will gain the attention of a wider audience.

This study is in two parts. The first is generally conceived, with an introduc­tion surveying Roman and ecclesiastical procedure from Antiquity to the early Middle Ages. We consider as well the interrelationship of civil and canon law following the triumph of Christianity in the Empire after the fourth century, in particular the development of the bishop's court, the audientia episcopalis. The opening chapter then treats ecclesiastical procedure around 1100, the eve of the Romano-canonical process initiated by renewed, formal study of the civil law. We focus on letters from two French bishops, Marbode of Rennes and Ivo of Chartres.

Chapters in the second section translate and comment upon ordines from the Anglo-Norman realm during the remainder of the twelfth century. The Pseudo-Ulpianus, De edendo, Bishop William of Longchamp's Practica Legum, and the Ordo Bambergensis all reflect jurisprudence shaped by the developing legal power of Rome and the increasingly sophisticated commentary on the civil and canon law taught at urban schools and universities. No less influential for procedure was the increasing number of papal decretals, the �new law' that would become normative by the early thirteenth century. These ordines also were responding to a dramatic increase in ecclesiastical litigation which, in turn, required more and more trained men. Archdeacons and their assistants handled the case load on the diocesan level and dealt with visiting legates and judges-delegate appointed by Rome to settle disputes.^{[10] [11] These men were some of the readers the ordines hoped to reach.}

The Conclusion will reflect on both the commonalities among the ordines and the unique features each displays. It will address the degree to which the ordines reveal the synthesis of civil and canon law in the procedure of the ius commune and to what extent they responded to legal practice.

Each ordo sheds light on a particular stage of development in ecclesiasti­cal procedure. The De edendo provides a thorough treatment of civilian pro­cess. Canon law plays a prominent role in the Practica legum. Finally, the Ordo Bambergensis is conversant with both laws, and completely focused on the ecclesiastical court. The author's comprehensive treatment of procedure also points the way towards Richardus Anglicus and Tancred of Bologna, whose manuals would soon eclipse the earlier treatises.11

The availability of ancient and medieval legal texts in translation reflects at least to some extent the state, if any, of their critical editions. For the civil law, thanks to more than a century of sustained editorial work, there are reliable editions of the Corpus iuris civilis and its principal formal sources, for exam­ple the Theodosian Code.^[12] These have provided the texts for useful English translations.^[13] I have consulted these on numerous occasions but, nevertheless, must emphasize that all translations are my own.

Things are far different for the canon law. Very few critical editions exist, and even fewer translations. The most important text of all, at least for the purposes of this study, the Decretum of Gratian, the encyclopedia of canon law compiled in the middle of the twelfth century,^{[14] [15] [16] [17] [18] remains trapped in a nineteenth-century edition which, while a heroic scholarly achievement, is inadequate and sometimes misleading?5 Granted, when one considers the DecretumS sheer size and complexity, it is no surprise that only a few sections have been translated into any language?6 and almost nothing from those treat­ing procedure.}

My translations are entirely based on the extant editions, most well over a century old.^[19] I am aware that all the texts deserve fresh, critical study.^{[20] [21] [22] [23] [24] [25] [26] [27] [28] New editions, especially of a work like the De edendo, which survives in a fair num­ber of manuscripts, would undoubtedly change, perhaps substantially, the Latin text; obviously, this would affect not only the translation but also shed new light on its sources, both formal and material.21 Any commentary would then be greatly improved. As valuable as that enterprise would be, I have elected not to undertake fresh examinations of the manuscripts or attempt new collations.22}

Many challenges confront the translator. The vocabulary is fraught with difficulties, not least the terms from the ancient civil and canon law, terms already centuries old when twelfth-century writers cited them?³ There are allusions, for example to the Bible, that defy easy translation?⁴ We should remember as well that our authors were frequently responding to one another, which can complicate the text considerably?⁵ The same word or phrase also may have had different meanings to authors?⁶ For example, ius and reus, both technical terms of fundamental importance, (respectively, â€?right’ and â€?accused/ convicted^,)2⁷ could be read variously by medieval jurists?⁸ Another example is agere (generally rendered as “to charge/sue”), whose meaning could vary according to context.^[29] Throughout, I have tried to offer an English equivalent for such technical terms; very occasionally, however, I have left the Latin in the text, as some terms and phrases have no convenient English equivalent.^[30] Explanatory notes guide the reader here^{[31] [32]}

There is also style.

Even with a conservative approach to translation, interpretation and sty­listic judgment are always at work.32 Even with such well-known texts such as the Digest, modern scholarly interpretations and, hence, their translations, continue to vary. As one scholar has put it, �all conclusions are provisional.' This is certainly true for the present study.^[33]

An introduction to each chapter will treat the context of the text or texts that will be translated and discussed. The introduction will summarize the text(s), offer comparisons with other works in this study, and highlight distinctive features. To aid the reader's understanding of both the translation and the text's argument, footnotes will note the sources used directly or indi­rectly and reference pertinent scholarship. There will be cross-references and comparisons with other works, especially ordines and commentaries on the civil and canon law.

By way of conclusion, I turn to one of the medieval authors who will play a supporting role in this study. In the preface to his Summa on Gratian's Decretum, Stephen of Tournai likened himself to a host who has invited two guests, a can­onist and a theologian, to a banquet^[34] He worried that each must be content with what he served. The following chapters present a feast as well. The theo­logian and canonist are now the cooks, joined by the civil jurists, whose fare is often exotic indeed. The diners, from specialists to students, must be satisfied no less than those whom Stephen invited almost nine centuries ago. This host hopes what follows will please. His praelibatis ad litteram veniamus. Having offered these things, let us come to the text^[35]