The Early Romano-Canonical Process: The Worlds of Hariulf and Bulgarus

Ecclesia vivit lege romana (Lex Ribuaria 61В§1)

вЂ?The Church lives by the Roman law.вЂ™^[322] To what extent was this maxim true around 1100? As we saw in the Introduction, from Constantine onwards the civil law had taken the ecclesiastical court into account.

In turn, the canon law drew upon the terminology and practice of Roman procedure and preserved them, if incompletely, in numerous compilations. The passage of time, howВever, had taken its toll on legal knowledge.^[323] We have seen that Ivo of Chartres was not unaware of civilian procedure; yet the impression from his letters is that he had some familiarity with it, not any deep or extensive learning. He вЂ?turned toвЂ™ the civil law. He was not a jurist. Moreover, Ivo was an exception; his contemporaries were far less expert in the written law, whether secular or sacred.^[324] So apparently impoverished was legal theory around 1100 that some scholars have even gone so far to state that there was no jurisprudence at all.^[325]

Even if one does not take such a dire view, even the briefest comparison between the scattered Roman-law texts in eleventh-century works and the entire Corpus iuris civilis shows the scant and uneven knowledge of civil law, especially outside Italy.^[326] Passing phrases and isolated excerpts highlight how little was known, let alone understood. If the maxim quoted above were to be more than the echo from a distant past for the ecclesiastical forum the Digest, which left only a very few, faint traces in the early-medieval west,^[327] needed renewed study and reintroduction to the court.^[328]

In the early spring of 1076 two Tuscan monasteries came to court concernВing a grant of land. While such disagreement was typical, the ensuing litigation was not.^[329] For one of the advocates, Pepo, вЂ?a man learned in the law,' cited the Digest.

It is commonly labeled the ^lMarturi Case' after the castle located near the winning party, the monastery of Saint Michael:^[330]

S. In the name of Christ. This brief memorandum is to be retained in memory for future times how in the presence of Nordillus, representaВtive of Lady Beatrice, duchess and marchioness, and the Vice-Count John,... d... residing with them, the judge, Guillielmus, Pepo, a man learned in law, Rudolph, son of Segnorius, Roland, son of Rusticus, Aldibertus, son of Baruncellus, Stefanus, son of Petronus, Benzo, son of Benzus, and Sengorittus, son of Bontius, all men of good memory, and many more, John, advocate of the church and the monastery of Saint Michael located at the castle which is called Martulus (Marturi), along with the dean Gerard of the same church and monastery declared against Sigizo of Florence concerning certain lands and the church of Saint Andrew located at Pavia which had belonged to Winzio, son of Hugo, of good memory. John presented a charter by which Winzio had granted those lands of the Margrave Hugo, and another charter statВing that the Margrave Hugo had given those properties to the monastery.^[331] ^{^[332] ^[333]} To this assertion, Sigizio objected, stating the prescription of time, that the lands had been possessed by him and his father for a period of forty years. The party of the monastery, in turn, opposed this exception by offering a replication,ⁿ affirming that during this time the suit had been declared?² Then, with three suitable witnesses produced, namely John, advocate of the aforementioned church, Stephen, the son of Petronus, of good memory, and Adilbert, son of Baruncellus, of good memory, they stated that abbot John had declared in court to the Margrave Boniface concerning the aforementioned lands and the abbot Guidricus to Duke Godfredus and the Countess Beatrice. They promised that they would so swear. Additionally, the aforementioned abbot John, touching the holy books of the Gospels, swore as above.^[334] ^{^[335] Stephen and Adlibert desired to swear as well, but both parties agreed that that the advocateвЂ™s vow sufВficed.}

When these were finished and the law in the books of the Digest considered, where the praetor^[336] ^{^[337] ^[338] promises that when no magistrate was present the condition at the beginning of the trial would be restored?⁵ the aforementioned Nordillus, representative of Lady Beatrice?⁶ restored completely concerning the suit the church and monastery of Saint Michael, with all right lost concerning the lands and those properties of WinzioвЂ™s concerning Pavia the Margrave Hugo had granted and conferred to the church of Saint Michael. This judgment took place in the year of Our Lord Jesus Christ's Incarnation 1076, in March, the fourteenth indicВtion. With rejoicing! It was done in the castle called Martuli, by the parish of Saint Mary, in the territory of Florence. I, Nordilus, happily confirm these statements in writing. In the murky history of the DigestвЂ™s recovery, the Marturi case has long attracted attention.^[339] Scholars have disagreed on whether the Digest was corВrectly understood.^[340] Some have focused on the mysterious Pepo, putative founder of the law school of Bolognad^[341] Drawing from cosmology, Kenneth Pennington even has declared the trial to be part of the вЂ?Big Bang' creating the ius commune.^[342] Others have taken a less dramatic view. While noting the importance of the DigestвЂ™s rediscovery, they have emphasized that the daily life of the law, negotiations of arbiters, advocates, and judges, appears largely unchanged.^[343] ^{^[344] ^[345] ^[346] As Chris Wickham has observed for late eleventh-century Italy, the role of bishops in dispute resolution was varied, and not at all shaped, at least explicitly, by Roman procedure^ In such scholars' view, there was neiВther sudden transition to civilian procedure nor abandonment of extra-judicial negotiations in favor of formal proceedings in court2³ Regardless of the posiВtion one takes concerning Marturi, it cannot be denied that it points towards the future.}
Change, if not rapid, was underway, and this was driven by concern for sophisticated and effective procedure?⁴ And this meant the civil law. With a bang or not, the learned, civilian process had begun to be recovered in its entirety. From it would soon come вЂ?profession and professionalismвЂ™^[347] borne on a tide of schools, glosses, and learned commentaries?^[348] Let us return to the ecclesiastical forum around the time of Marturi. How canonists responded to civil law procedure in the period of the DigestвЂ™s recepВtion can be gathered from changing views on the calumny oath. The sacraВmentum de calumnia, where the plaintiff swore that the suit was being brought justly, without deception, had been standard in the classical law?^[349] While it had faded away in the early Middle Ages, the practice reappeared shortly after the millennium. 2^[350] By the middle of the eleventh century, the Lombard law accepted the calumny oath?^[351] At the same time, however, some had become concerned about clerics taking it.^[352] Emperor Henry iii accordingly had forbidВden clergy to swear the oath^[353] His ruling demonstrated both piety and a secure assumption that he had a degree of supervision over the clergy. Soon, the papal reform would challenge that.^[354] ^{^[355]}
Over the next few decades, despite Henry's prohibition, it was increasingly required.33 By the early twelfth century, Pope Honorius ii, considering the same imperial edicts cited by Henry Ill, now declared that clerics could swear the oath if ordered by their superiors^[356] ^{^[357] Honorius' decretal demonstrates how Rome was coming to grips with civilian procedure:}
Standing firmly in the footsteps of our predecessors who say that the supreme pontiff must decide more serious questions we, having diliВgently sought the counsel of our brethren and with God's help, firmly decided the point of this case.
We found that it is thus stipulated by the laws that вЂ?no cleric should presume to swear an oath.' However, elsewhere one finds it written that all principal parties in the beginning of the trial ought to swear the oath concerning calumny. On account of this, many have come to doubt whether a cleric should offer an oath or be allowed to delegate this duty to another person. Since it appears, however, that the constitutional edict prohibiting clerics from swearing was promulВgated by Augustus to Constantine, the praetorian prefect^⁵ concerning the clergy of Constantinople, thus one believes it does not apply to other clerics. We desire that all doubt concerning this be removed concerning the decision made by our son Henry, former emperor, which states: We confirm thus his interpretation and decree that the constitution of the emperor Marcus ought to be thus understood as pertaining to all the clergy of the churches. For, since the emperor Justinian decreed by law that the canons of the Fathers ought to have the force of law, and it is found in many canons that clerics should not dare to swear an oath, it is fitting that the whole clerical order be free from swearing the oath concerning calumny. Moreover, according to Us, the tenor of the imperial statute is understood accordingly: preserving the intention of both divine and human law, we decree and establish by unbreakВable imperial authority, that no bishop, priest, or cleric of any order, no abbot, monk or religious woman be compelled for any reason to swear an oath in any legal dispute, whether criminal or civil. Instead, if he knows (that swearing an oath) would benefit his church, he may delegate this duty to other, suitable, defenders.
Yet, we add this regulation: a bishop who has not consulted the Roman pontiff or a cleric, his superior, may not dare to swear an oath. To all bishВops and, generally, priests and clergy, We order that this be so observed: if anyone should go against this constitution, he shall know that he is denied mercy, not taking as an example or practice from us what we recently judged in the case of our brothers and fellow bishops of the churches of Arezzo and Siena, when we assented to their will and request.^[358]
Honorius' ruling on the oath can be read, of course, in many ways.
Given the papacy's insistence in the supremacy of canon law, product of ecclesiastical reform and the Investiture Contest^^[359] it makes sense that the pope would chalВlenge an imperial decision that had presumed to regulate the legal behavior of clergy and monks^[360] No less probable was the recognition that the civil law aided both the theory and practice of papal power^[361] Mastering the civil law would take time. While instructional works were being prepared by 1100,^[362] the scope and sophistication of classical procedure challenged even the most enthusiastic student^[363] ^{^[364] The integration of Romanist, learned procedure into the ecclesiastical process would be no less daunting, even if, as early as Pope Urban ii (1088-1099) there are references to it in papal documents and, by his successor, Paschal ii (1099-1118), we glimpse some knowledge of the Digest4 As the following illustrates, however, ecclesiastical procedure did not rapidly change, even at Rome, despite increasing study of the Corpus iuris civilis.}
Abbot HariulPs Visit to Rome
In 1141, Hariulf, abbot of Oudenburg in Flanders, travelled to the papal court. His description of the papal consistory helps us to understand better the audiВence of Bulgarus' letter to Haimeric, the final text in this chapter, and how far removed curial procedure was from what was being taught at Bologna and elsewhere in the middle of the twelfth century^[365]
Here begin the deeds of Hariulf, abbot of Saint Peter's of Oudenburg, against the abbot of Saint Medard of Soissons, done at Rome in the presВence of Pope Innocent II and the cardinals. Upon coming to Rome, Abbot Hariulf worshipped at Saint Peter's basilica on the first day. On the second day, he went to the Lateran palace and, according to the command from the bishop of Noyon, first sought an audience with Lord Haimeric, the supreme chancellor, a man most experienced and skilled in the ecclesiВastical laws and rules of the palace.^[366] ^{^[367] He requested counsel and aid from Haimeric, saying вЂ?O Lord, our most venerable lord, the bishop of Noyons and Tournai, rightly wishing you well, desired that I be sent to your excelВlency that I might first offer you my service and then to proceed, accordВing to your counsel, before the lord pope to explain the full reason for my coming. For, although to the lord pope the examination of every case perВtains, to you is rightly assigned, вЂ?the chariots of Israel and his horsemen,'4в‰Ў since you regulate all things, deciding lesser matters and directing greater ones. Thus, coming to you, I desire and request that I might gain your benevolent counsel and thus obtain the result of justice and truth. The chancellor replied вЂ?Brother, rather, father, it is fitting I serve you, not you, me, for your venerable presence and honorable old age equally demonВstrate your good works^[368] Thus, I ask that you beware, lest the darts of modesty strike you or, through you, us.' Frightened, the abbot said вЂ?For my part, for the sake of God, I came in all modesty to you but, newly arrived and utterly ignorant, undertook nothing before you, whence to you or, rather, from me, as you please, all modesty may proceed.' That one responded вЂ?Since your age is an honor to all and your words are gentle and eloquent we are greatly pleased^[369] ^{^[370] Thus, we are concerned and greatly desire to take counsel with you fully, so that you may spread a pleasing odor through every place and that also you may silence such vile talk, curВrent everywhere: вЂ?everything is for sale at Rome.'4⁸ Instead, men may then declare вЂ?all things are most just at Rome.' And this is what I first stated, since all modesty should remain with us, if we either act justly towards you with gifts having been given or, not given. We emphasize this. I warn you neither to give nor promise anything to another person in the Roman palace. For, if I come to know that you did this, you will have neither our counsel nor the aid of the lord pope. Truly, we greatly strive to keep that venomous snake of venality away from us.^[371] вЂ?The abbot said вЂ?I should be greatly foolish if, going against your command, I deprived myself of your counsel. Yet, coming to the presence of the lord pope, what or how much ought I offer as gifts?' The chancellor said, вЂ?Far be it for you that you offer something there!' Hearing these things, the abbot greatly rejoiced, for he was not prepared to give a gift to the pope.^[372] ^{^[373] ^[374] ^[375] ^[376]}}}
Then the chancellor Haimeric, taking the abbot by the hand, led him to the consistory of the palace where the lord pope was sitting in tribunal^¹ with the cardinals at his right side.5² The nobler Roman courtiers,5³ hair curled and dressed in silk, were either standing around the pope or sitВting. Seeing the chancellor coming in, however, they immediately arose and made a place for him. The abbot immediately prostrated himВself and, with eyes and lips intent on the task, kissed the pope's feet.54 Perceiving, however, how devotedly and with pious affection the abbot comported himself, the pope, with outstretched hand, raised him up, kissed him, and asked вЂ?Brother, who are you; whence, or for what reason, have you come to us? It seems unseemly that a man of such an age be forced to come to Rome.' The abbot replied, вЂ?O Lord, it would be very unseemly, save that the burden of a suit has compelled me. Yet the great importance of this case enabled me to endure the sea voyage. Indeed, I am that abbot from Flanders, whom the lord abbot of Saint Medard of Soissons has harshly attacked wishing, indeed, very unjustly to subВmit our house to himself.' The pope said вЂ?Will you be able to show that it is unjust?' The abbot replied, вЂ?With God's help, I confess and anticipate I shall be able to show it.' Then the abbot offered letters from the bishop of Noyon and the abbot (Bernard) of Clairvaux. The pope then said вЂ?Is that one, dearest brother, to Us, sound?' The abbot, not clearly understanding what the pope was asking, said вЂ?We left those men healthy and unimВpaired.' The pope said вЂ?Thanks be to God.' Then the pope said to the abbot вЂ?Now go and see to your lodging. Tomorrow or the day after, you shall come to us and we shall hear you.' Then the bishops present declared вЂ?He is truly worthy of an audience.' These included the archbishop of Saint Rufina (Silva Candida),^[377] ^{^[378] the bishops of Ostia, Segni, Ferentino, Viterbo- Toscanella, and also many abbots, all of one voice in declaring that the lord pope was treating the abbot mercifully. However, the Roman nobles said вЂ?By the Lord God, he sinned greatly who forced such an elderly man to be so importuned.'}
After having given reverence to the pope, the abbot retired and went to a lodging not far from the palace. During the following days, he reguВlarly came to the palace, both entering and going from the gatherings of the pope or cardinals, since he was greatly desiring to have his case heard by the Lord Pope. Often, the pope said to the abbot with a cheerful and friendly face вЂ?O Lord Abbot, how are you?' The abbot would respond вЂ?O Lord, all is well and, indeed, it shall be even better if your mercy takes notice of me.' The Pope replied вЂ?Stay strong and do not grow weary for, to the extent we are able, you shall have your desire. It is not the custom of our court that a venerable person coming here be quickly sent back; rather, in fact, by remaining and walking among us, he may learn what he did not know and also experience Roman discipline.' The abbot said вЂ?O Lord, if you are delaying me for this reason, I am glad of it, and shall rejoice; yet I fear that my empty purse will not let me stay long.' The pope said вЂ?Keep your money, for I shall see that your needs are provided for and, for the length of your stay, you shall be able to live with us.' With face cast down, the abbot replied, вЂ?For such an offer I am grateful.' The cardiВnals, the chancellor Haimeric, Gerard of the Holy Cross of Jerusalem, Ivo of Saint Laurence, Guido of Pisa, Gregory (Censius),5⁶ along with other higher clerics, often spoke with the abbot. The abbot especially urged them to suggest to the lord pope and, by this, insist, that, taking pity, he appoint a place and day for him. These clerics publically declared вЂ?Truly, O Lord, if it please you, we are moved to hear such a worthy man and to give his case due measure.'
Finally, on the ninth day after his arrival, the Lord Pope appointed for him a day and place, the latter, in his chamber. When the cardinals were gathered, the abbot was led in and ordered to sit on the footstool at the pope's feet, where the chancellor was also sitting.^[379] Then the lord pope said to the abbot вЂ?Truly, brother, we pity you and are sorrowed since you greatly struggle against the force of age and are very weary. Behold, for your sake we have called together our brothers, before whom you should relate the reasons for your coming to us and we, willingly listening, shall decide the necessary counsel.' Venerating the pope, the abbot said вЂ?O Lord Father, I thank the Omnipotent Lord who has sent this sweetness into your heart,5^[380] that you deign to show such favorable piety to me. Yet you should more openly know my anguish, so that you may not judge my story which I shall recount unworthy to hear.
A young man openly married a woman in all freedom, a woman whom he cherished in the same free status and held in marriage for 35 years and five months. Then, suddenly, a fierce adversary says to the husband,5^[381] now elderly, вЂ?You will be my serf, since your wife belongs to me as a serВvant.' To whom the husband, once a youth and now aged, replies вЂ?Since none of your fathers were ever my master, why do you think you are my lord?' Puffed up with pride, the man said вЂ?By my own effort I acquired you, since the Roman pontiff placed your neck under my yoke.' To him, the man replied вЂ?If the lord pope placed your yoke on my neck, it is still just a possibility and not fact. Indeed, I am certain that he did thus out of ignorance. Thus it remains for me to go to the lord pope and, if it be so, to bring it to naught.' Enraged, the other replied вЂ?You, a dying man, will bring it to naught? You are getting your last meals, yet you will seek the Roman curia?' The old man replied вЂ?Clearly, concerning your lies I shall plead against you and the fraud you have contrived and, in the presence of the Romans, shall set them before your face.'^[382] To this point the story, whose explanation follows, appears true. The young man marrying the woman chooses the abbot of Oudenbourg,^[383] who, at a young age, had been canonically promoted to abbot freely and absolutely, that is withВout deception or defect of any contradiction. Then, in the 35th year of his ordination, the lord abbot of Saint Medard of Soissons arose, a man stirred up as much by his own zeal as by the underhanded treachery of two clerics, Rodulfus and Goduinus, and procured from the Roman ponВtiff a false letter,6^[384] which compelled the abbot of Oudenburg to depart from his own place. Not considering that there was any deception in this, nor judging that the abbot of Saint Medard wanted to lie to him, he gave the letter that was requested, which was delivered to the abbot of Oudenburg on the first day of August^[385] Perceiving and discerning the rudeness and evil of such a fraud, that man (the abbot), hastened to the presence of the Lord Pope Innocent and, with eloquent truth, exposed the plots of the abbot of Soissons against him.
After these matters were heard, the pope grieved for both men, but in different ways. He grieved for the abbot of Oudenburg because of his unjust weariness and, for the abbot of Soissons, since the ancient enemy had been able to bind his heart with such a great fraud^[386] ^{^[387] ^[388] When these things were finished, the pope said вЂ?We have heard your story and its explanation and we judge what your zeal is striving for, that there be no divorce done by us of a wife who has been married so long.' The abbot said вЂ?If I was wrongly married (to my monastery), I do not reject divorce; however, if married correctly, who shall separate us?^(>5 It is more for us to destroy evils than to scatter things established in Christ!' The pope said вЂ?On the day of your arrival you promised, concerning the abbot of Saint Medard, to prove that he was opposing you unjustly. Thus, state your case and tell us by which saint's name your plea may be sanctified.' вЂ?By the honor of your lords, as well as ours, namely the blessed apostles Peter and Paul, our plea is sanctified. The estate of land and the church located there were under the right of the church of Tournai and the fee of Count Robert and at no time ever pertained to the church of Saint Medard.66 Behold, I thus came and strove and now beseech on account of this that Your Serenity hear me and have compassion on me. The most holy Roman pontiffs, who took the way of martyrdom, established in their decrees that no one absent may be condemned.^[389] And where was the sincere proВvision of the holy Roman Church when, against the decrees of the holy fathers you condemned me, though absent?' The pope replied вЂ?We did not condemn you but, instead, freely and honorably received and heard you.' The abbot said вЂ?Yet when you despoiled me of the church canoniВcally given me without my having been called or heard, and then gave it to another without any examination, you did consider me damned.' The Lord Pope said вЂ?If what was done concerning you was out of ignoВrance, then we utterly reject it and you reject it as well; we also pardon you and may you pardon us as well and, concerning the rest as we shall have found it proven, we shall gladly give you the justice of truth.'}
The abbot said вЂ?I give thanks to God and to you for kindnesses you have done and will do. Yet, I do not wish you to be ignorant that, coming from Flanders to Rome, I endured many things that were oppressive and difВficult to bear and the excellence of your majesty frightens me. Truly, in all the nation of France there was no power or lordship that could compel me to come to Rome; yet the authority of your apostolic office, to which every man ought to be subject, drew me to come here.' The pope, amazed and on the verge of indignation, signaled with his right hand raised and said вЂ?Brother, for the sake of God, what are you saying?' The chancellor, still sitting on the stool, said вЂ?O Lord Abbot, see that you speak with care.' The abbot said вЂ?Lord Father, because of your letter brought to me, which was not yours since it was a forgery, but was fortified by your seal, I was moved by a great zeal because of the injury to the holy Roman church and to your name as well, under which that letter had been sealed. For the letter was filled with every deception, falsehood, and lies, and thus I was scandalized and shocked, because it completely lacked any truth, and yet had the seal of the lord pope^[390] Yet though I may confess this, still
I impute no falsehood at all to the purity of Rome but, seriously, as I suffer disgrace,^[391] (am shocked) that some person would be so impudent not to shrink from defiling your ears with such patent lies by deceiving you and hastening my destruction.'
To these words, the Lord Pope said вЂ?Read this letter so that we may know whether you were rightly upset.' Then the abbot recited the letter:^[392] ^{^[393] ^[394] ^[395] ^[396]}
Innocent, bishop, servant of the servants of God, to the beloved son Hariulf, abbot of Oudenbourg, greetings and apostolic benediction. It ought not be praised that you have raised altar against the altar7¹ and, departing from the duty of the faithful servant, have not increased the talent given you but, rather, have striven to bury it in the ground?² Thus, since you were once a monk of Saint Medard's of Soissons and, departing from your monastic profession, with cunning intent made a cell in the priory commissioned to you and deprived the monasВtery of Saint Medard of both your obedience and her church, we thus command you, with staff put aside to the abbot of Saint Medard, swiftly to restore his own monk, rightly obeying him, and to restore as well to the chapter of the brothers of Saint Medard the church you took from them.
вЂ?Behold, this letter, clear as the light of day, is a great lie! For it was never so. I never was a monk of Saint Medard; neither did I ever receive a cell or a priory from the chapter or abbots of Saint Medard nor did I hold or possess from the monastery of Saint Medard the smallest sum of money. However, the greeting and blessing which ring out at the beginВning of the letter I indeed loved and adored and cherished above gold and topaz, 73 since my anointed spirit greatly exulted?⁴ But how was I able to endure such a monstrous reproach, such an unbearable injury, to see or learn that the holy ears of the supreme pontiff, thus infected by the hissing of lies, sent from the supreme height of Rome to the farthest regions of Flanders a letter I declare devoid of truth, filled with falsehood, resounding everywhere the opprobrium of the one who sent it?вЂ™ (The pope replied) вЂ?Indeed, brother, if you deny that you were a monk at such a time, it is fitting, as you say, that we believe you were received as abbot by your monastery.вЂ™
The abbot said вЂ?Concerning the monastery, I completely inform and, with all friendship towards the holy Roman Church declare, that at the monastery of Saint-Riquier en Ponthieu,^[397] ^{^[398] it happened in the year of the LordвЂ™s Incarnation 1121, in the fourteenth indiction, that the Lord Peter, priest of Leo, came with you to visit and spent some thirteen days there.7⁶ Both you and your entourage were lavishly entertained, and this was where Abbot Anscerus also invited me to your attendance, since I had spent at that time some sixteen years in the care of the abbey. From that monastery I declare that during the time of the Lord Pope Paschal ii I was called by both Baldric, bishop of Tournai and Lambert, his archВdeacon, and absolved of my profession to his abbey by Abbot Anscerus and released from the church of Tournai. I then advanced to the order of abbacy canonically by the election of the brothers (already having taken place), since at that time there had been two abbots prior to me, Arnulf and Gervinus, in whose ordinations the church of Saint Medard had offered neither counsel nor aid, for nothing pertained to it.вЂ™}
Then the pope asked вЂ?Who was the founder or builder of your monasВtery?вЂ™ The abbot responded вЂ?O Lord, that place, with respect to its religious life, was founded by a servant of God by the name of Arnulf.вЂ™ The pope said вЂ?And who was that Arnulf?вЂ™ The abbot replied вЂ?He was the bishop of Soissons.вЂ™ The pope said вЂ?Before he became bishop, what sort of man was he?вЂ™ The abbot said вЂ?He had been a monk of Saint Medard. The pope said вЂ?When you say that he was a monk of Saint Medard and the founder of your place, then equally it is fitting that you should confess that Saint Medard is the possessor of your monastery.вЂ™ The abbot responded вЂ?Not at all, O Lord, since the historical account runs differently. We implore you that it please you to hear us and permit us to recount the rest of the matter, since otherwise you shall not discover the truth. The pope then said вЂ?We willingly permit you to pursue the truth that we may perceive it from your narration.вЂ™^[399] ^{^[400] ^[401] ^[402]}
The abbot responded вЂ?St. Arnulf, a man of God, from noble stock and even nobler character, left the soldierвЂ™s life in this world and became a monk at Saint MedardZ⁸ Filled with both sanctity and virtue, he then retreated from the cloistered life to the hard life of a recluse whence, becoming abbot, he soon restored the entire monastery with an abunВdance of properties and rights. However, when called or, rather, ordered by King Philip to go forth with an armed force in an expedition against the kingвЂ™s enemies, he chose instead to seclude himself in his monastic cell. Then, as time passed, Gervaise, the servant of the king placed his own brother in the church of Soissons, without election by the clergy or people, the counsel of Rome or the church of RheimsZ⁹ His entry into the episcopacy, utterly uncanonical and his life of great indecency were made known in a letter to Pope Gregory VII. The pope did not delay in deposing Ursionis and then to call the man of God, Arnulf, who had been a recluse, into the episcopacy of the aforementioned church of Soissons.вЂ™8В° The pope said вЂ?Behold, you have shown that holy Arnulf was the bishop, but not yet how he came to found your monastery.вЂ™ The abbot said вЂ?I am prepared to show it, if you are ready to hear it.вЂ™ The pontiff said вЂ?Continue.вЂ™
The abbot said вЂ?Count Robert, forsaken by his own people and enraged by the rancor of his betrayal, accused certain noble clerics of plotting his death. The then expelled them from Flanders and, with their offices and honors stripped, compelled them to seek the mercy of the Roman church. Having compassion on their affliction, the Lord Pope sent the man of God, Arnulf, to Count Robert to see to the reconciliation of those clerics with him. When all had been peacefully settled, it then entered the mind of the count and certain other nobles, Everard of Tournai, his brother Cono, and Balduin of Ghent, to arrange a suitable dwelling for that man of God, Arnulf, by the church of Saint Peter the Apostle at Oudenburg. However, the man of God, upright and honest, completely refUsed that gift from the hand of the count.^[403] ^{^[404] ^[405] ^[406] As a consequence, the bishop of Tournai at that time, Radbode, was called by the count, who took counsel with his clergy and, afterwards, ordered that he would not hand over the church under his right to any other unless under the conВdition that, at the very least, an abbey of monks, not a cell, immediately would be built in the same location. He was indeed now taking care that, on account of Saint Arnulf, former monk of Saint Medard, no one would raise any complaints.}
When these statements had been heard, the abbot was briefly silent then, resuming his narration, said to the Lord Pope вЂ?Behold, most revВerend Father, our place was founded by such a lord and has been found never to have belonged at any time up to now to Saint Medard or the abbots of Saint Medard. Indeed, that abbot of Soissons had no just right at all but, rather, incited by scheming clerics, rashly presumed this. For they were saying to him вЂ?Why are you waiting? Why are you afraid? An abbot who dies before you may not contradict you. Only complain and you will receive it all. There is neither force nor might to resist you. Act manfully and you shall see their hearts struck by great panic.' Inflamed by such suggestions, the lord abbot of Saint Medard, hoping for the impoverВishment of our properties and resources and his own victory, availed himВself of the arms of mendacity,8² and did not fear to deceive the supreme pontiff, nor to do this, provided he was enriched and gain a property not his own and a name for himself, what no one had done before. That you may understand the matter more accurately, I beseech you to order that the testament of the bishop of Tournai and, likewise, what was decreed by Arnulf himself, be read before you from the beginning.^³
Then two documents from bishops Radbode and Arnulf were read. After they were recited and carefully considered, the abbot then said to the pope: вЂ?Behold, O Lord, your eyes see and your ears hear,8⁴ and the lord cardinals clearly understand that such writings recited here attribute nothing at all to Saint Medard or its abbots.' The pope said вЂ?Truly, nothing.' Then the bishops present there, along with the chancellor Haimeric, said вЂ?Such documents very much prevent the abbot of Saint Medard from saying anything further against this argument. вЂ?Then the abbot, greatly rejoicing, adored the pope and the gathering, and then said вЂ?O Lords, after the apostles, it has been written about you вЂ?Their principality was greatly strengthened.'^[407] ^{^[408] ^[409] ^[410] ^[411] For that reason, the letter so frightened me that my spirit could not be quieted in any way unless I myself, such an insignificant perВson, came to you and in your presence explained both the false arguments and what was true. Indeed, in all the land I did not know anyone before whom I could explain my case, save the Roman pontiff, vicar of Christ, successor of Peter and patron of all the churches. For, considering my ignorance, if I had not come this court, the one desiring our place would have possibly deceitfully labeled me as contumacious and then would have labored to have the chain of excommunication cast upon me.'8⁶}
Then the Lord Pope said вЂ?Behold, though you labored beyond your strength, though you spent properties against your monastic vow,8⁷ you did much well, because you sought the Roman church. Thus, you shall have Our grace and your case will prosper since, not by wandering about but,88 instead, by wisely proceeding you made clear to Us with reason the truth and showed no ambiguity in your words.' The abbot said вЂ?Honored Father, since indeed your mercy towards me is great,8⁹ I desire you to confirm to me the same freedom in which I was ordained, and also to my successors so that our place, unjustly oppressed, now fortified by your privilege may no longer be weak.' The pope said вЂ?There are two things that stand to Us and you, that the church committed to you is being oppressed by this present calumny and the request of your bishop not being held. However, we willing assent to the liberty of both yourself and your place, and it is necessary that we thus settle your case, so that may enjoy our peace and the oppressive adversary may rightly find no place for complaint. Thus it is necessary that, with you now removed from the room, we enter into counsel with our fathers and set in order both your peace and our defense. As we have great compassion for you, we shall take care of this promptly.'
With these things thus declared, the meeting was adjourned. On the following day, the lord pope ordered the abbot be summoned and the chancellor to declare to him the counsel they had found. The chancellor said to the abbot вЂ?Lord Brother, our Apostolic Lord, along with the entire curia, is greatly concerned for you and your case. If you wish to agree, it is so ordained that, with your condition preserved in all respects, three religious persons from the land of the French be elected to whom the lord pope may enjoin your business, so that if your adversary should not wish to be silent, he may declare before those people and they themselves may judge among themselves and their judgment be valid and beyond reproach. We have considered that this be so done for the sake of your convenience, and we especially take care that you do not have to return to Rome. For the Lord Pope, together with his entire curia, greatly inclines towards you, since you please us all with both your demeanor and words. Because you sit by the feet of our lord, there is deference of honor, and the right of selecting persons placed in your judgment.'
Casting down his face, the abbot responded вЂ?For all these things, I am grateful, yet I rather desire and wish that the lord pope or his curia would do this election, so that our adversaries would not object.' The pope said вЂ?Who are your adversaries?' The abbot replied вЂ?The Bishop of Chalons-sur- Marne and the Bishop of Arras.'^[412] ^{^[413] Smiling, the pope said вЂ?We have full faith in those men and are confident in their truth and religion that they shall never do anything unjust to you.' The abbot said вЂ?Though they are good, nevertheless they are suspect to me^¹ the bishop of Chalons-sur-Marne since he was the abbot of Saint Medard; the bishop of Arras, for he was the one who stirred up all this trouble. And, as Jerome says, вЂ?What is the need to leave what is certain to chase after what is uncertain?вЂ™^[414] ^{^[415] ^[416] ^[417] ^[418] ^[419] France has other men whose grace I do not fear, a grace not inferior to theirs.вЂ™ The pope said вЂ?If you reject these, whom do you accept?вЂ™ (The abbot replied) вЂ?If permitted, I accept the bishops of Terouanne, Chartres, Laon, and Soissons.'9³ The chancellor said вЂ?The bishop of Chartres will not be given you, for he is a long way from you and has also been greatly involved in the affairs of Rome, nor will you have the bishop of Laon, since it legally obtains that no case may be imposed on him save his own?⁴ We also do not grant the bishop of Soissons, lest we be said to have sown discord or a dispute between him and the abbot of Saint Medard. Provide for good men who shall judge without any deception, bishops or abbots, and let no suspicion from either side be imputed to them, and let them be the judges of this matter.вЂ™ The abbot quickly said вЂ?I willingly accept the lord abbot of Clairvaux, the abbot of Saint Remigius of Rheims, and the abbot of Citeaux.вЂ™9⁵ The chancellor said вЂ?The Lord Pope does not permit the abbot of Clairvaux to be bothered, since he is ill, nor the abbot of Citeaux, for he is far away.вЂ™⁶ The abbot of Saint Remigius is nearby, but one might become angry with him if he supported you; if he orders another, he might be said to have done this on account of an abundance of favorites. May it be so: accept the bishops of Terouanne and Arras and the abbot of Premontre.' (The abbot replied) вЂ?Two I commend; if possible, I recuse the third, namely the bishop of Arras?вЂ™⁷ The pope said вЂ?Why do you fear that man, since we feel he is both religious and of sound counsel?вЂ™ The abbot said вЂ?I do fear him since he is steadfast in his zeal and the instigaВtion of this, my labor, is attributed to him.вЂ™ The pope said вЂ?Permit him and we shall promise that no harm shall come to you. Returning with peace}}
to Flanders, since the way is passable, you will visit him and greet him for me. Also add this from me вЂ?O Lord, the Roman pontiff declares to you under this trust which he has for you that you shall not in any way injure me.' Then the abbot said to the pope вЂ?O Lord father, and pastor of the whole world, seeing that it thus pleases you, though I admit that that man will greatly harm me because of this, you should know that like a devoted son I obey you.' The pope said вЂ?You speak rightly and act even more so, and we completely support you.'
Afterwards, it was done just as was said, and the pope ordered the chancellor to write a letter to be given to the abbot and, turning his face to the cardinals, he said with a clear voice вЂ?By my faith, that man is great of heart.' The cardinals said вЂ?Truly he argued his case honestly, resolutely, and courteously.' The abbot said вЂ?If you feel that I am a man of good heart, you should this for me without hesitation.' The pope said вЂ?We shall truly do it for you and, preserving the cause of justice, we should prevail.'
Another day, when the abbot had come before the Lord Pope, the latВter, smiling, said to him вЂ?What now brother? Did you see the letter written for you? вЂ?The abbot responded вЂ?O Lord, I did not see it.' The pope replied вЂ?It is with the chancellor. If you wish, go and see, and then tell us if it pleases you. вЂ?The abbot went, saw, read the letter, and then returned and said вЂ?It would please me, if the Bishop of Arras had been removed. For that fear that once me gripped me has never left my breast.' The pope said вЂ?With Our consent, the election of two was given you; it is no less fitting that We have the selection of one.' The abbot said вЂ?The election of one and all belongs to your judgment.' The pope said вЂ?You speak well, but with paternal affection we entreat and advise you since, indeed, you are a very old man,^[420] ^{^[421] that you not lose your soul for such a reason. However, if some justice of truth is known to you that it ought to be the abbot of Saint Medard, confess it to us, whether openly or secretly, and we shall make a good pact of concord for you with that abbot nor shall we for any reason allow your gray hairs to be treated dishonestly.' Then, rising, the abbot stood and said вЂ?O Lord Father and pastor of the whole world hear, I beseech you, and hearken to me: truly through the solid faith on which Peter was established, when he said вЂ?You are Christ, the Son of the living God,'99 I in such a cause never knew or claimed the justice of the church of Saint Medard. Since I know that the blessed Medard is the precious confessor of the Lord, why would I diminish or deny his things, for I know that this would bring damnation on me? Far be it from me, far be it from any Christian, to think I would be seized with such madness.' The chanВcellor said to the pope вЂ?Truly, O Lord, though he did not consider beforeВhand, he satisfied most correctly both you and your entire curia. On account of this, we judge that his case should be considered true and just since, not in a careful, staged fashion,^[422] ^{^[423] but eloquently before you and your curia he arranged the arguments of his case and did not offend with any deceptive word. Instead, his every word followed the straight path.' The pope said вЂ?May he blessed by God and us.'}}
The abbot said to the Lord Pope: вЂ?As I am about to go back, I ask that you deign to hear the confession of my crimes so that, having come as a sinner, I may depart, cleansed by your absolution.' The chancellor said вЂ?By my faith, he asks for ajust thing.' The pope added вЂ?We do this willingly. вЂ?The abbot said вЂ?If you do this, do not delay.' The pope replied вЂ?Let it be done. Follow me.' Rising immediately, he retired into the most secret place; folВlowing him, the abbot made his confession and received absolution and benediction. He then desired to leave. Pausing, however, the pope said вЂ?Brother, I wish and ask that you greet our dearest brothers for me and cheer them concerning our well-being.' The abbot said вЂ?Oh how willingly, if I knew who they were and if the way to them would be passable for me.' The pope replied вЂ?I do not ask you to desert your path but, if perhaps they came to you during the course of the year, you might remember my petiВtion. вЂ?The abbot said, вЂ?If it pleases, tell me who they are.' The pope said:^wi вЂ?The bishops of Langres, Auxerre, Chartres, Chalons, Arras, Terouanne, Soissons, and Laon.' The abbot said вЂ?Why are you overlooking the bishop of Noyons, since his noble life is even more useful than the rest? вЂ?The pope replied вЂ?I do not overlook him, but enjoin friendly greetings to him.' The abbot replied вЂ?You see to the bishops, do you entirely despise the abbots?' The pope said вЂ?I earnestly desire to greet both abbots and all religious in the Lord, especially the abbot of Clairvaux and those like him.' The abbot said вЂ?The abbot of Saint Remigius greatly deserves your greetings since, as much as he has been able, he has improved that place.' The pope eagerly said вЂ?Greet that man reverently, since he has labored well in the house of the Lord. I particularly ask that you greet with all solicitude that venerВable brother, Our friend, Abbot Hugh of Premontre and convey to him in Our stead Our great thanks for his services.' The abbot said вЂ?O Lord, if it pleases you, he shall be greeted diligently by me in Your stead, and then it shall be fitting for me to return through his place and, ordered by Your paternal command, to greet him in person.' The pope said вЂ?You do very well indeed and you could do nothing more gracious for me.' The abbot replied вЂ?Perhaps he will doubt that your Holiness appointed me to do such a thing unless I shall be able to offer some evident sign proceeding from Your mouth.' The pope said вЂ?We relate with many thanks the book of St. Augustine concerning the City of God, beautifully written, bound, and decorated which he sent to Us.^[424] ^{^[425] ^[426] ^[427] ^[428] We also request that among them there be neither priest nor lord but, rather, earnestly desire that the brothers be, and remain, one. Nevertheless, if we are able to help them in some way from Our office, We shall be found diligent and swift in this regard. Concerning the rest, we desire and beseech that they pray for Us and for the Roman church. Peace be with you!'}
Hariulf gives us a glimpse into how legal procedure unfolded at the curia durВing Haimeric's tenure as papal chancellor. Despite the likelihood that some written models shaped the dialogue, it still retains a fundamentally oral character.10³ It is as good a record of an audientia episcopalis from the period as one could probably fmd.^ω4 While the exact exchange between the parties obviously has not survived, there seems little reason to doubt the report's fundamental accuracy.^ω5 Throughout, the chancellor advises and mediates. Perhaps Hariulf even viewed Haimeric as a judge subordinate only to the pope himself.10⁶ Elaborate expressions of deference and esteem contrast with sharp accusations, at least by the abbot, of how his enemies have behaved. No less striking are Hariulf's occasional, almost impertinent, challenges to the pope himself. How the abbot eventually instructed Innocent in the facts, at least from his point of view, of the case, and its apparent misrepresentation reveals rhetorical and negotiating skill. Innocent's own frustration, despite his periodic expressions of paternal affection, equally demonstrate how difficult it was for the curia to exercise its function as the ultimate appellate court of the church.^[429] ^{^[430] ^[431] ^[432] ^[433] The ancient canons and decretals declaring Rome's unique legal position, texts that had been studied with increasing interest for the previВous century, ran against the realities of ecclesiastical politics, as witnessed by the give and take between pope and abbot, concerning who would ultimately judge the case and how.}
Hariulf's letter is rich in detail. For example, it gives us a good sense of the difficulties of travel in order to pursue or defend a claim. It is somewhat reminiscent of the contemporary, English Anstey Case.^ω8 On the learned law, however, it is silent. There are no echoes of the civil-law вЂ?big bang.' Instead, we encounter scattered references to the Bible, something largely, if not entirely, absent in the ordines to be considered later in this volume.^ω9 There is not even an isolated legal term to suggest familiarity with the civil law; contumacia and calumniaвЂ”as discussed aboveвЂ”were commonly known and did not necesВsarily possess any technical meaning. In sum, Hariulf's report demonstrates how informal,110 and unsophisticated (by civilian standards), the papal court was at midcentury. This makes the curia of Alexander Ill, less than twenty years in the future, even more remarkable.111 Hariulf describes, by and large, how evidence preparatory to trial was evaluated. It was more ritual than ordo, at least ordo as understood by Bulgarus and the ordines to come.^[434] ^{^[435] ^[436]}
The story of the married couple wrongly seized as serfs by a вЂ?fierce adversary' is remarkable.11³ Hariulf is telling a parable to illustrate his case. It speaks to the illegal claims made by Soissons to Oudenberg and the threat to his own posiВtion. Such argumentation rarely appears in the technical, elaborate, ordines. While examples will abound to illustrate procedural issues such as exceptions, we will seldom encounter argument from parable or analogy.ⁿ⁴
There is no sign of any professional advocates in Hariulf's account. In the give and take between abbot and pope, with Haimeric attempting to mediВate, we hear names of potential judges, not texts or points of legal procedure. As Paul Brand noted some years ago in his study of the Anstey Case when, about a decade after Hariulf's trip to Rome, an English nobleman undertook a lengthy, and expensive, suit to acquire a disputed inheritance, what mattered most was influential friends, not вЂ?expert, professional legal advice.вЂ™^[437] ^{^[438] ^[439] ^[440] Granted, he was commenting on the royal, not ecclesiastical courts, the latter employВing learned legal advice.ⁿ⁶ Nevertheless, HariulfвЂ™s negotiations with the pope reveal that the ecclesiastical court could be equally susceptible to patronage and pressure. Having the right advisors, best of all, a judge, himself positioned in his even more favorable web of вЂњfriends,вЂќ was most desirable. Even with the increasing employment of the learned law, civilian, canonical, or common, in the decades after Hariulf and Richard of Anstey, we should not forget that these connections, with formal and informal power, never faded away.}
The ordines in coming chapters, however, will still echo some aspects of HariulfвЂ™s report. The problem of conflicting or false testimony will concern, for example, the Practica legum of William of Longchamp. Forgeries worried jurists later in the twelfth century no less than Hariulf and his contemporaries. The necessity of confronting the accuser, and the threat of condemnation due to contumacious absence, something that we have already seen troubled Ivo of Chartres, will appear in our treatises. Likewise, the contentious selection of judges must reveal something of how the judges-delegate were selected, again a subject of considerable concern in the ordines!⁷
Bulgarus' Letter to Haimeric
We now turn to Bulgarus' letter to Haimeric. Possibly Irnerius' student at Bologna, Bulgarus' fame (at Bologna he earned the nickname of the вЂ?Golden MouthвЂ™) was widespread throughout the twelfth century.ⁿ⁸ He greatly influenced both civilians and canonists.^[441] ^{^[442] ^[443] ^[444] ^[445] His view of the civil law was that it was essentially equitable. The jurist was to interpret the legal rule in context and, if necessary, explain its purpose by finding similar texts?²⁰}
The surviving manuscripts of Bulgarus' letter to Haimeric indicate his influence.121 In length, complexity and command of the civil law, it could not be more different from Hariulf's account of litigation at the curia.122 Exactly why Haimeric had written Bulgarus will, of course, probably never be known.12³ Perhaps he was responding to a request that certain terms and practices be explained.^[446] ^{^[447] ^[448] ^[449] ^[450] ^[451] ^[452] ^[453] The affectionate address, karissimo, may also mislead, for it was common enough in contemporary letters to suggest convention.^⁵ While it is possible, indeed likely, that the two knew one another either from Bologna or through mutual association with Pope Honorius,12⁶ there is simply not enough reliable information to determine how close their relationship was.12⁷}
Scholars have emphasized that the letter's spirit and content, but not its form, anticipated the ordines. The ordines will not be letters.^m Bulgarus does not treat many of the topics we shall encounter in later chapters.12⁹ Nevertheless, there remain numerous points of comparison between the letter and the treaВtises to come, from the respective roles of plaintiff, defendant, and judge to the forms of appeal.
Bulgarus' sources are confined entirely to the civil law.1³⁰ In this respect, his letter most resembles the De edendo, which we shall discuss in chapter three. Indeed, given his detailed treatment of such technicalities as procedure in the long-vanished imperial provinces of Egypt and Libya, one wonders about the degree to which his letter was understood, let alone applied, at the curia described by Hariulf.131 If Haimeric asked the famous jurist for answers to a series of questions, he may have received more civil law than he could possibly use.^[454] ^{^[455] ^[456] ^[457] ^[458] ^[459] ^[460] ^[461]}
Some of the letter's main points should be briefly summarized. Bulgarus begins by identifying the necessary participants in a trial. His understandВing that three were essential, plaintiff, defendant, and judge, would become the dominant view, though not without variation, in civilian and canonis- tic ordinesy33 He then goes through virtually every step in the legal process.^⁴ Among many topics, he considers at some length the difference between arbiВters andjudges in a passage which Pope Innocent ii and Gratian may have known;i35 he then treats the duties of the advocate, including his possible abuse of power. He discusses other procedural questions such as the nature of a valid legal decision, burden of proof, exceptions by both defendant and plaintiff, and who could be a valid witness.^⁶ All of these are treated in the later ordines, and at greater length.^⁷
Bulgarus also treats the regulae iuris, legal rules and maxims. These were found at the end of the Digest in book 50.138 Likewise, they conclude his letВter to Haimeric. While other jurists in the twelfth century would comment on Dig. 50i3⁹ our ordines do not. None has a section dedicated to the regulae iuris and, in fact, we shall only hear occasional echoes of them.
Bulgarus begins by noting that law produces the rule. Neither realist nor nominalist in the medieval sense, nor conceiving of law like a modern вЂ?formalВistвЂ™ or вЂ?sceptic,вЂ™^[462] ^{^[463] ^[464] ^[465] Bulgarus believes that rules are based on legal precedents. They are also practical, as they concern, in condensed fashion, the matter at hand. This view was firmly rooted in the civil law he knew so well, which recogВnized that rules proceeded from multiple legal sources.141 Rules emerged from the mass of legal tradition. Not without reason do we find the regulae in the last book of the Digest and at the conclusion of Bulgarus' letter.}
The later ordines will treat some of the themes Bulgarus discusses in the regulae, though they cite texts other than those in Dig. 50. The De edendo, for example, will consider oaths when treating rules on proof.^M2 However, Bulgarus reflects more deeply on the subject, as seen in the syllogism he uses when discussing nullius res sacrae et religiosae et sanctae, a maxim in the clasВsical law declaring that sacred objects cannot be someoneвЂ™s property.^³ Such logical analysis of major and minor premises, in this instance property and inheritance, does not appear in the ordines we shall later examine.
BulgarusвЂ™ concern with the transfer of property goes beyond such exerВcises in dialectic. While consideration of property is hardly surprising in any treatment of civil law,^[466] ^{^[467] ^[468] ^[469] ^[470] ^[471] and the ordines will accordingly treat it, Bulgarus frequently considers issues we shall not encounter in later chapters. A good example is how he reflects on donation. None of our ordines will discuss the actiofamiliae hersicundae, which concerns co-heirs.^M5 The same is true for the donatio inter vivosв„ў⁶ a gratuitous donation transferring title to property made when neither party is in imminent danger of dying.}
Bulgarus also considers whether an uncertain or invalid suit might later become valid. Were there any factors, changing circumstances, for example, that might permit this change? Might onejudge's decision overturn an earВlier ruling? We see here Bulgarus' sensitivity to context and how it affects the law. Another example is when he emphasizes the necessity for the judge to act more leniently when matters were doubtful or when there was reason for mercy^M7 While never referring to dispensation, his argument reminds us of similar points made by canonists,^⁸ including the later Ordo Bambergensis (cap. xiii).
Bulgarus' letter was influential. If none of the remaining treatises in this study cites it expressly^⁹ we can be certain that it, along with the rest of his commentary on the civil law, was familiar, in varying degrees, to the jurists and students of the early ius commune. The following translation, to my knowledge, is the first of the complete text.^[472] ^{^[473] ^[474] ^[475] When comparing Hariulf's account to it, we see the trajectory of ecclesiastical process during the course of the twelfth century. Haimeric got more than an answer to his request for legal assistance. He received a primer on how an ecclesiastical judge might use the civil law in court. The ordines in the following chapters will build upon it.}
Concerning arbiters, advocates, plaintiffs and defendants, accusations, witnesses, sentences, and appeals.151
To the most dear Lord A, by the grace of God chancellor of the holy Roman Church, from B, greetings in Christ and fellowship in the mysВteries of the law. We received with humble affection the message Your Serenity sent. Accordingly, with the help of God, we happily proceed to the very difficult task you have assigned.^²
В§We call an arbiter one to whom the plaintiff and defendant agree to commit the role of judge.15³
В§Thejudge presides overjurisdiction,^[476] as the praetor,^[477] ^{^[478] ^[479] ^[480] ^[481] ^[482] ^[483] governor, prefect of the city, or one delegated by these men to whom all things are common.15⁶ In the presence of the most sacred Gospels/вЂ™вЂ™⁷ he examines with circumspection the cases of both parties/вЂ™⁸ He ensures that both plaintiff and defendant take the oath concerning calumny/вЂ™⁹ namely that the suit is neither brought through calumny nor falsely contested/⁶⁰ The judge strives to settle trials and decide suits without stain or fraud, sometimes by acquitting, sometimes by condemning/*⁴ To the convicted he grants, as a rule of law, a four-month period to respond.^[484] ^{^[485] ^[486] ^[487] ^[488] ^[489] ^[490] ^[491] ^[492] ^[493] He never extends this time for the sake of the quality of the case, or the person's obedience or contumacy, nor does he shorten it.}}
В§Here is what is proper to the arbiter and thejudge.i6³ Private indiВviduals choose an arbiter/*вЂ™⁴ while public power∕6⁵ the prince or those serving under him, appoints thejudge.i66 Both parties pledge the arbiВter that if his sentence is not obeyed, the party shall be punished/*⁷ Let the parties either deposit with him the properties which are the reason for the dispute/*вЂ™⁶ so they may be presented to the winning party or, instead, let the arbiter gather other things in place of a pledge so that he may fulfil the sentence or, finally, a promise is made through a stipulaВtion to fulfil the sentence/*⁹ A judge, however, allows himself neither to become involved in an arbitration,в„ў nor compels anything to be pledged or left to him as a deposit, nor promises to execute the judgment, but only to appear in court. The decision of the arbiter does not, as a rule, provide grounds for a charge or an exception.в„ў Thejudge's decision provides both. The arbiter's decision does not declare infamy;^[494] ^{^[495] ^[496] ^[497] ^[498] ^[499] ^[500] ^[501] however, the senВtence of the judge does. Furthermore, the arbiter must not be chosen by a religious oath.17³ If, however, he has wrongly and illegally sworn, he shall answer to God. If the oath was given imprudently, this will not injure the parties. The judge swears to judge each truthfully and, observing the laws, with what seems to him just.17⁴ The arbiter does not intervene in a crimiВnal case nor in one concerning freedom;в„ў however, the judge hears both cases. The arbiter's decision is not suspended by appeal;в„ў the decree of the judge,i77 however, is rescinded by a valid challenge. Even if unjust, the decision of the arbiter shall stand;в„ў however, with an appeal having been made, a judge's decision may be changed.в„ў Let this brief statement about the commonalties and differences in the offices of judge and arbiВter suffice.^[502] ^{^[503] ^[504] ^[505] ^[506] ^[507] ^[508] ^[509]}}
В§ Advocates are patrons who enter the court to offer help to each party.181 Their duty is to plead the cases as long as they will.18² So that there is no occasion for base profit or ill-gotten gain but, instead, that there may be praiseworthy arguments, they ought to plead what the case requires and to refrain from injury and not argue abusively.^³ Otherwise, they are marked by shame. They also ought not intentionally prolong the dispute. Moreover, after the lawsuit has been contested, they must swear a sacred oath that theyjudged with all their skill and effort what wasjust and true,18⁴ and took care to plead on their client's behalf, having spared nothing from their efforts. Nevertheless, if they omitted something, the judge shall supply it with his skills⁵ Any error by the advocates shall not harm the litigants if they challenge it immediately, that is, within three days.18⁶ It ought to be presumed that if someone ordered to produce or restore the value of the thing does not obey, he is condemned by the judge. The adjuВdicated case is considered a correct judgment..⁰⁸⁷ Nevertheless, if what was judged from a false document or testimony, whose faith is in doubt, is recalled within the time of the judgment,^[510] ^{^[511] ^[512] ^[513] ^[514] ^[515] ^[516] the sentence is retracted if the testimony or charter be proven IaiseJ^fs9}
В§The plaintiff is the one who first sues, saying that something is his, or a person is obligated to give or do something for him?⁹⁰ However, if the defendant, determined to resist, opposes an exception to avoid condemВnation, he is understood to be a plaintiffs Indeed, it seems that he is suing who employs an exception.⁹вЂ™²
В§The defendant is the one against whom the suit is being brought, since he may be said either to possess or to owe?вЂ™³ The plaintiff must be compelled to prove his case if he wishes to obtain what he seeks?вЂ™⁴ If the plaintiff does not prove his case,^[517] the defendant wins, even if he did not offer evidence, since defendants are more favored than plaintiffs.^^[518] Concerning defendants, it is also said that the laws are more prone to absolve them than to condemn^вЂ™^[519] When the defendant is the plaintiff in an exception, then he ought to prove itdвЂ™^[520] ^{^[521] In one case he will not prove the exception: whoever in the hope of future payment obligated himself by means of a stipulation or chirograph. If sued, he rightly opposes the exception of unpaid money within a biennium?вЂ™вЂ™ The burden of proof does not threaten him, perhaps because the fact of denying is natuВrally no proof.^[522] Besides, we consider those same things said about the suit should be stated as well about the replication,^[523] exception, and duplication.^[524] ^{^[525] ^[526] ^[527] ^[528] ^[529] ^[530] ^[531] For just as the action and replication aid the plaintiff, so exception and duplication assist the defendant^³ Thus, the defendant must prove, for it is fair to burden someone with the necessity to prove who, when he has done so, is helped in his defense. Indeed, as to proof a moveable property is not distinguished from immoveable by means of its movement.}}
В§All are permitted to accuse, with these exceptions: a woman because of her sex;20⁴ a boy because of age;205 a soldier who merits the soldier's pay because of the military oa⅛20⁶ a magistrate, for example the consul or praetor^⁷ because of a delict, as in the case of the infamous;20⁸ on account of base gain, as those who received money for accusing or not; on account of condition, as freedmen against patrons;209 on account of suspicion of calumny, as those who were bribed and spoke false testimony.^[532] (Others include) those by reason of poverty, for example persons having less than 50 aurea.211 Yet they are not excluded if they are defending themselves or pursuing their own injury or the death of a relative.212 Others are those damned by public judgment, or brought into the arena to fight with wild beasts, or those who practiced pandering or actors in the theater^³ also sons do not have the right to accuse the mother nor, even less, can one brother accuse another of a serious or capВital crime.21⁴ Also, he who accused two cannot accuse a third.21⁵ Likewise, the voice of a familiar or a slave ought rather be silenced than be heard against one familiar to him or a master,21⁶ save in the crime of maiestas,21⁷ the annona, the diminished grain supply of the Roman peopled⁸ forgery,²¹⁹ or if a lord suppressed a testament which a slave asserted had granted him freedom.220 Sometimes the accusation is not completely prevented but, instead, suspended, and the name of the defendant, that is of the accused, eliminated.221 Nevertheless, let the power of renewing the accuВsation against the defendant remain, for example, if there be no inscripВtion or other things which are necessary.222 In the inscription, it is proper to have the names of the accuser and defendant, the crime and law, the consul, the name of the crime, the time, that is the month when it was done, and the place; but it does not require either the day or the hour. The formula (of such an inscription) appears in the laws: вЂ?Titius accused Maevia by the LexJulia de adulteriis^[533] ^{^[534] ^[535] ^[536] ^[537] ^[538] ^[539] that she had committed adultery with Gaius Seius in that city, in his house, in that month, during the tenВure of these consuls.'²⁷⁴}
В§The rule concerning witnesses is as follows.22⁵ The judge can compel us to testify and those living improperly can be coerced without prescripВtion of court.22⁶ Sometimes we are excused in all cases∕2⁷ as are the elderly who are ill;²²В® at other times, in some cases, as in public crime,22⁹ we are admitted willingly against a relative.^[540] Sometimes we are excused^¹ someВtimes, though unwilling, we can be compelled to testify.232 Sometimes we are excused unwillingly and sometimes, though willing, are rejected, as are freeborn sons against parents and vice-versa.233 Certain witnesses are removed by the judge, others by exception.234 Those removed by the judge are those whose testimony is suspect;^[541] ^{^[542] ^[543] ^[544] ^[545] ^[546] ^[547] ^[548] ^[549] those removed by reason of exception are, for example, those convicted of a composing a slanderous poem, whom the laws judge wicked and incapable of giving testimony?³⁶ One must examine witnessesвЂ™ trustworthiness, dignity, character, and gravitas.23⁷ Their condition should be especially considered, (for examВple) whether the witness is a decurion or plebeian^⁸ living an honorable or infamous life,23⁹ wealthy or destitute?⁴⁰ a friend or enemy of the one about whom he is testifying^¹ and whether or not the witnesses seem to deliver a single, premeditated statement.242 Finally, a rescript declares that it is not fitting for the judge to rule immediately according to a set form of proof but, instead, should from his own judgment rule what or whom he believes or what seems insufficiently proven.243 There are cases in which any sort of witness is admitted,²⁴⁴ for example a gladiator or someone like him∕4в‰Ў (or) one convicted of composing a slanderous poem,246 but not without torture^⁷ as in counterfeiting^⁸ A praetor is admitted to testify in a case of adultery if he is not judging that case; if, however, he is to judge, he is not admitted to court∕4⁹ just as a patron, that is an advocate, is not admitted?⁵⁰}
В§A trial is conducted by at least three persons: the plaintiff bringing the accusation, the defendant defending and, between them, the judge hearing the case?⁵¹ The choosing of the effect of the law pertains to the form of thejudgment and thejudge's power and force.252 The form is instituting and concluding the trial. In instituting the trial, we consider the persons, the matter, and both at the same time?5³ He is a judge whom nature neither forbids, for example a mute,254 nor law, as the infamous ^[550] ^{^[551] who,^[552] though he could be an arbiter,^[553] nevertheless legally cannot be a judge.25⁷ Some are unable to judge by reason of nature∕5⁸ for example, infants; others legally cannot, for example, slaves.25⁹}
В§A delegated arbiter does not hear a case concerning freedom26В° though, incidentally, he might judge, not about the case itself, but in declaring the principle that wins freedom^¹ Likewise, if he sues who does not have legitimate administration or grants the hearing, there is no judgment, since through a false proctor controversies are neither accusВtomed to be discussed nor judged.262 This is the form in ending the disВpute. In order to win, let the plaintiff state the charge and prove it. In a similar fashion, the defendant shall deny, plead an exception, and prove his case. Let thejudge frequently question the parties and then declare his decision, with two years reserved in criminal cases, and three in pecuniary ones.26³ Seated, he writes down and then recites (the deciВsion) to both parties, ordering the judgment to be executed.26⁴
В§Force and power are fromjoinder of issue and the judge's statement.^[554] A suit is renewed by declaration before witnesses so that might not cease, as it happens in the case of a temporal action being extended without interruption so that, about to pass to the heirs, it might not become usuВrious, which it had not been before.266 A suit is also renewed by judicial pronouncement^⁷ not by virtue of the law itself,268 but by means of an exception when the defendant brings a charge against the victorious plaintiff.26⁹ However, where things are absent which ought to be absent, and those present, which ought to be, this can be correctly considered a judgment^⁰
В§An appeal or provocatio is made to a superior judge against a senВtence given by an inferior judge/71 a vocatio or proclamation² It is perВmitted not only to the defeated party to appeal but also to one who has an interest in the case∕7³ for example the seller, with the buyer having been defeated or the principal, with his proctor having lost.27⁴ It is appealed, however, when the sentence was made against equity or against the right of the litigator,^[555] not against the constitution.^[556] ^{^[557] ^[558] ^[559] ^[560] ^[561] ^[562] ^[563] A sentence brought against the constitutions would be, for example, if it were judged that a minor younger than fourteen were able to testify or that one by reason of freeborn children or poverty or similar things could not be excused from guardianship and curatorship.277 Then there is no need for appeal. Against the right of the litigant it is thus pronounced if a judge did not grant that you proved your minority or number of freeborn children but, instead, ruled against you, denying that you had proven your claim. In this case, an appeal is necessary∕7⁸ and it suffices to appeal orally on the day when the sentence is made.27⁹ Otherwise, a time of ten days has been fixed for bills of appeal to be given.28В° However, with this appeal made, all things ought to be remain in that state until a higher judge approves or corrects the decision?⁶¹ However,just as there is no need for appeal if the decision were made against the law, it is so if the judge gave a senВtence due to a bribe. Sometimes the reason for the appeal being allowed is invalid, for example concerning temporary possession.282}
В§The consultation is that case where one decides whether it was correctly appealed or judged.28³ The time for consultation used to be observed according to deadlines: the first, six months, the second, third, and fourth generally having thirty days.^[564] ^{^[565] ^[566] ^[567] ^[568] ^[569] ^[570] If the one who had appealed should die during the fourth period of deadline, the period of three months was restored by the prince.28⁵ Thus, a year suffices for examinВing and concluding a consultation. However, this matter is better proВvided for by a new constitution^⁶ a year is granted the one making the appeal within which he may pursue a suit either by himself or jointly; or if just cause should intervene, another year is granted. If that year has passed and the case is still not decided, the sentence stands as valid with no further appeal possible. When a month from the biennium remains, the winning party is allowed to come to court in order to question the defendant; whether the defendant is found or not, let the winning party assert his allegations^⁷ so that the sentence may be confirmed or rescinded and, in every case, with the absent party condemned to pay expenses.288 If neither comes, the sentence stands after the second deadВline has passed.28⁹}
В§If a sentence made in Egypt or in both provinces of Libya concerning the sum of ten pounds of gold is appealed, the new constitution decrees that the appeal not come to the royal city but, instead, to the Augustal prefect (Prefect of Egypt). There will be no subsequent appeal. If in the dioceses of Asia or Pontus, then it should be made similarly without hope of appeal to the Spectabiles, counts, proconsuls, praetors and governors, men compelled only by fear of God and the laws. In the East, the Count of the East shall decide without appeal about a sentence concerning, again, ten pounds. However, appeals are not directed against one Spectabilis to another but to the Prefect, the ∕llustris,2⁹⁰ who shall examine with the supreme Quaestor. The highest appeal about the sentence concernВing the same sum of ten pounds of gold, if given by those presiding or other judges delegated by the prince, provided they are not Spectabiles, is referred to the Spectabiles. By ancient custom, Illustres refer appeals to competent judges,^[571] which is evident from that constitution.^[572] Finally, if the appeal was made from the delegated judge, he who had delegated shall judge it.29^[573]
В§After the appeal has been legally made, both the appellant and the winner of the case shall be allowed to introduce new allegations into judgment and to renew the case completely. 29^[574] The license of appealВing is open to nearly everyone. Murderers, poisoners, adulterers, and also those who committed manifest violence, convicted by legal arguments, overcome by witnesses, confessed by their own voice of vices and evils, are not permitted to appeal?⁹⁵ Those in contempt are in the same condiВtion who, having been called by three edicts or,^[575] ^{^[576] in place of the three, one, called the peremptory edict,29^[577] refuse to appear. For he who does not submit to the one declaring the law shall be compelled by the loss of the trial.29^[578] ^{^[579] He does not suffer contempt who defends himself with the excuse of poor health or involvement in a greater case.299 But there is no appeal from execution unless the executor should exceed the legal rule.^[580] Sometimes an appeal legally made afterwards disappears, as when one condemned according to legal procedure appeals, but then dies, and the crime is extinguished by death.301}}
В§ Sometimes the appeal ceases because of the matter itself, someВtimes on account of the person.^[581] In the former, it happens because the sentence was given against the law either by a bribe or since the man was called to the rank of duumvir, about whom it had been uncertain through his appeal whether he was, instead, legally called to the rank of decurion,303 or because it was decreed in momentary possession.''**¹⁴ It ceases concerning the person when he was elected a magistrate,**⁵ or if he was either convicted of a crime or had confessed,**⁶ or was held in contempt or even that the praetorian prefect had judged the case³*⁷
В§If moved by bribe or favoritism, a judge has judged badly.308 He shall not only suffer a significant diminution of esteem and reputation but also the loss of the trial³*⁹ If he judged ignorantly or impudently^* he shall be condemned to the extent as seems equitable to the one deciding³¹¹
The Rules of Law
Here begin the comments on legal rules which Bulgarus, the jurist, declared to the chancery.
В§Following your advice, we decided to follow the best order through the remaining items. There is clearly the opportunity, as time permits, to offer some remarks concerning the rules of law. In this matter, I ask that I may appear at least to fulfil the tribute of friendship, if not satisfy the duty of teaching.
В§Therefore, a rule is what briefly treats the legal matter at hand. Law is not derived from the rule but, instead, the rule comes from the law.^[582] ^{^[583] ^[584] ^[585]} Individual laws were first declared and then, after these, a rule, like a cerВtain conjunction of individual things, set down. An example is вЂ?with the plaintiff not proving his case, the one who was accused wins;' (another) вЂ?There is, by the nature of things, no proof by negation.'313 Opposed to these is another: вЂ?Lack of proof is decided by oath.^,31⁴ Sometimes on behalf of the plaintiff, not for the defendant, it happens that the plainВtiff, who did not prove his case since he lacked both witnesses and docuВments, is nevertheless able to prevail by swearing an oath; thus the case was heard and decided on the basis of an oath and, through this, the plaintiff,315 not completely lacking proof, gains trust from thejudge by swearing. Certainly, the oath is not said to be the same as proof. Equally, the defendant may sometimes swear an oath though, in the natural course of proceedings, he is not compelled to prove; yet he may swear if he not only does not deny, but also affirms, the plaintiffвЂ™s charge. This is as if he denies the amount but affirms that his surety was discharged on account of a base reason. He is then admitted to giving proof. Does anyone wonder that the defendant ought to swear an oath when it seems that another ought to prove his charge?
В§What is not someone's property is granted to the possessor.^[586] But divine things and those sacred and holy to religion are in no one's pos- session.31^[587] Thus, I would say they are reckoned to the patrimony of men by the constitution of God, for nullius is placed differently in the major and minor premises. Indeed, in the major premise it excludes men, and God in the minor premise^^[588] yet the syllogism does not include men. If you say that heritable properties not yet added in inheritance are no one's particular property by either the judgment of God or man and seem ought to be granted to the one possessing them, then authority ought to respond that they are heritable and thus in the possession of the deceased. What about the free man? Is it not granted to the one possessВing since no one has possession^[589]^ However, a rule declares about these things: those things naturally suitable are for man's use and for his gain or patrimony. For man is born to occupy, not to be occupied and to do whatever he wills and not to be a slave. That sometimes a man is a slave, I said, is not natural but, instead, a result of evil and invasion, since all men are by nature free^[590] ^{^[591] ^[592]}
В§Four ecclesiastical councils obtain the force of law, and those same councils prohibit usury, as do any number of laws;321 yet the laws also urge usury from many and necessary reasons. I respond that what was accepted by those laws was not legally against other laws. When someВthing is done against the law, the law itself judges it as corrupt.322 But homicide and theft are against the laws and are nevertheless not neglected as if merely corrupt matters, but are more strongly punished. I respond: What has the effect of law, like a contract or pact, is considered corrupt if done illegally, (for example if) the son illegally receives loaned money^[593] or a woman assumes an obligation against the law.^[594] ^{^[595] ^[596] ^[597] ^[598] ^[599] ^[600] ^[601] ^[602] Yet these were not rendered void by the law itself but were repelled by means of an exception.32⁵ I respond: according to the intention of the one establishing the law, certain things are thus prohibited so that they may not be valid by reason of the law itself as, for example, marriages with a godmother or sister.326 Certain things are rendered void only according to effect, as the councils mentioned above. When loans have been given, they neither fully support, nor entirely oppose, the claim for money and obligation. It is the same in stipulation^⁷ where one is obligated to another. For since one opposed the law thus, with the penalty following upon his own perВson, the action then becomes valid³2⁸}
В§Concerning donation made between the husband and wife,32⁹ the rule of law states that it becomes valid in those cases. It is the same with a donation made by the father to his children.-³-³⁰ Therefore, things always prohibited^¹ like marriage with oneвЂ™s mother, are neither valid nor become valid with time. For those whose reason for prohibition is not perpetual, they may not at present obtain, yet may become valid in the future, for example marriages which a governor could condemn in his own province but, later, when his magistracy has been given up, could then be legal, though formerly invalid.332 Another rule follows: when something was done against the law, those things that either come from it or later
result, for example a transfer of ownership^[603] or pledge,^[604] ^{^[605] ^[606] ^[607] ^[608] ^[609] ^[610] ^[611] are also void. It is found contrary to these in the alienation of minors' estates which cannot be alienated without the decree by the seller ³3⁵ Nevertheless, the substitution of pledges which the curator³'³⁶ obligated for eviction holds.337 I respond: certain things have been prohibited, not to the extent that they might not obtain in some way, for example a loan given to the son. Otherwise, they are invalid until, when the reason for their prohibiВtion is removed, they become valid. Just as we say about marriages before the governor, does anyone object that results are valid when the principal reasons themselves are bereft of force? There is another opposition to the same rule ³3⁸ Every (act of) turpitude is against the laws.339 Therefore, a transference is not valid as if it does not transfer legal ownership^⁰ It is turpitude, for example, if someone did not return my property lent to him without paying. For this, I accordingly claim an action to recover money.341 However, no one brings a suit alleging a debt to a property he already owns. It is asked: do I cease to be the owner through that transВfer? I respond: if there is turpitude in the transfer, just as in this way if he restored the lent property to you. Then, since the property belongs to you, there is no transfer nor does ownership transfer.^[612] ^{^[613] ^[614] If I transfer howВever before the magistrate, though for the sake of an illegal thing,343 ownВership does transfer. Equity counsels reclaiming by claiming an action for recovery.344 It is the same in stipulation^^[615] ^{^[616] ^[617] if turpitude is present through the joinder of condition, the stipulation does not legally hold³4^β If, however, it were done without condition, but for the sake of an illeВgal thing, the stipulation indeed holds. Here, however, one is helped by equity through an exception, since what took place occurs not with the donation made by the parent. When, for example, the father donated, as it were, to the son outside the household,'^m7 the donation obtained from the beginning. However, if it is being donated as if to the son with pure intention, as it were paternal goods owed the quasi-son, then it neiВther holds from the beginning nor afterwards is regarded as such, but the donation is equally divided among the heirs, as I find stated concerning combining possessions^^[618] ^{^[619] However, if he donates to the son as his son,349 nevertheless he thinks about succession, and it is an act of this kind, as if he donated by means of a living trust (inter vivos).^[620] ^{^[621] This intention does not vary from the highest judgment and thus it is understood by the law of legacy, provided that the will is proved unchanged, as found in the (DigestвЂ™s) title concerning co-heirs dividing common property.'³вЂ™⁴}}}}}
В§Women can neither be judges nor bring claims for others,^[622] ^{^[623] ^[624] ^[625] ^[626] ^[627] ^[628] ^[629] ^[630] but can only claim for themselves.353 They cannot intervene on another's behalf save when they are conducting their own business, nor can they interВcede on behalf of their creditor or litigate for their own guardian save when the case has been recognized on behalf of the parent, for here they rightly assume another obligation^⁴ He who can consent is able (also) to refuse.355 If I shall have been undertaking a matter on behalf of a youth, even though he opposed it, nevertheless I hold him under obliВgation since his opposition did not legally suffice. For it is presumed that he neither wished that I bring an actio mandati,356 nor desired that this suit be withdrawn.357 It is not presumed that he assents who submits to the legal authority of the father or lord.358 If a son, though compelled, took a wife, it nevertheless appears he had chosen and, through his act, assented. However, if he were compelled to take an inheritance and, afterwards, repudiated it, he shall suffer no disadvantage for he had never wanted it. It is similar for a slave compelled to commit an offense, who would have perished if he had not obeyed. He should suffer no loss for he had not wished to do this. However, it is not the same with more seriВous offenses. Our law does not permit the man who has died to be able to leave his property from the beginning partly by testament and partly intestate,359 unless he is a soldier able to make a testament only limited to things during military service^⁶⁰ which could be said about items, if they are found to be legally his, or not, if recognized as being in the power of another. Although thus deprived of half of the estate he granted in testament, he arranged for the entire estate to be divided in half. But he who made a testament at the very beginning afterwards becomes intesВtate when an heir, having been appointed by the intercession of others, defeats another by means of the complaint of unjust disinheritance, and the one having lost the case then died.^[631] ^{^[632] ^[633] ^[634] ^[635] ^[636] ^[637] ^[638] ^[639] ^[640]}}
В§In obscure matters we follow the least punishment^² If a judge has issued a interlocutory decree that I had done violence,363 since perhaps either public or private violence is being claimed against me in court, the charge of lesser violence, that is, the private, shall be pursued^⁴ Thus, if three judges judged,36в‰Ў and one sentenced to 15, another to 10, and the last to 5, we follow the least sum of 5. вЂ?Neither by praetorian right nor solemn law, that is the civil law, is anything changed by private agreement.'366 For the successor freed from his pact by civil law or praetorian right shall not be prohibited from succession, just as the one to whom the suit of maniВfest theft granted by praetorian right,36⁷ not of manifest theft, from the civil law,368 not to sue from the praetorian right did not alienate himself from the suit if, nevertheless, he renounced the corresponding action or if he freed the adversary, as a thief, or reduced the exception.
В§What was legally defective from the beginning cannot become valid with the passage of time,36⁹ for example, a legacy left to the slave of the heir.37В° Though subsequently manumitted by the living testator, and the testator then died without changing his will, the slave still does not gain the legacy. For what was defective from the beginning does not become valid with the passage of time. It is otherwise in contracts, with another's property bound by security or illegally distrained from the start,^[641] with usucapiones^[642] ^{^[643] or prescriptions, sale or pledging to a crediВtor becoming valid over time.373}}

<< | >>

↑

Source: Brasington Bruce. Order in the Court: Medieval Procedural Treatises in Translation. Brill,2016. вЂ” 357 p.. 2016

The Early Romano-Canonical Process: The Worlds of Hariulf and Bulgarus

More on the topic The Early Romano-Canonical Process: The Worlds of Hariulf and Bulgarus: