The Quinque compilationes antiquae

There were other attempts to select from and systematize the vast legislative materials of the church. At times private individuals took on the task; later the church assumed direct responsibility for such operations and official collections were made, some of which were impressive works destined to last for centuries.

After Gratian, the jurists began to collect papal decrees. Soon they put together collections of papal judicial decisions (called decretals). One of the first collections to be used in the schools was the Bre­viarium Cxtravagantium. It was the work of a private jurist, Bernard of Pavia, and was composed between 1188 and 1191, after XheDecretum had crystallized into its definitive form (with the additions that we have discussed) and when other ways were being sought to update the legislative materials of the church. Bernard’s Breviarium was di­vided into five “books,” each of which treated a topic recalled by the mnemonic formula index, indicium, clems, connubia, crimen (judge, trial, clergy, marriage, crime). Another private jurist, John of Wales, produced a similar collection.

A third collection of papal decretals had official backing when for the first time a pope, Innocent III (d. 1216), thought it necessary for the church to act to guarantee the authenticity, the “certitude,” and thus the trustworthiness of the measures, and also to reinforce the validity of the laws themselves by authenticating their inclusion in the compilation. The collection was promulgated in 1209 or 1210, and in the latter year it was sent to the professors of the flourishing and fa­mous university schools of Bologna, a logical move, given the com­mon mind-set and the many relations that linked the Holy See and the young clerici who studied law and their jurist “doctors.”

A fourth collection was made by a prominent German active in It­aly and known as Johannes Teutonicus (d.

A fifth collection, published in 1226, was the work of Pope Hon­orius III (d. 1227). Honorius followed the example of Innocent III by sending his compilation to the schoolmen of Bologna with the rec­ommendation that they not only use it in the schools and in the court­room but also encourage its acceptance “by others, both in their deci­sions and in the schools,”^[62] a message that he himself took to heart by sending the same compilation to the law school at Padua.^[63]

Historians know these five works collectively as the Quinque compi- lationes antiquae.^[64] Although they were fated to disappear when they were absorbed, reelaborated, and replaced by the sweeping legisla­tion of Gregory IX in 1234, they nonetheless document the decisive decades in European legal history between the late twelfth and early thirteenth centuries. In particular, they testify that, not only was the law of the church conceived of (as in Gratian) as a law common to all the faithful, but also it was proposed and imposed as the law in both the schools and the law courts. Gratian had relied on the spontaneous acceptance of the faithful, individually or collectively, and the for­tunes of his work depended on their acquiescence, but with Innocent III and Honorius III this relationship underwent a radical change. The original objectives were not only respected but reinforced and strengthened: the “cultural” fabric that gave meaning to Gratian’s ef­forts was completed and in part replaced by an intent that remained cultural but also bore the authoritative force of papal promulgation. This meant that the utilization of the works that were imposed on both the schools and the courts was conditioned and solicited not only by scholarly and methodological demands but also by the obedi­ence due a “law” decreed by a pope.

If we were to ignore the two quite separate aspects of the problem we would be totally unprepared to grasp the reasons for the enor­mous success of the great laws of the church—and of Justinian’s laws—in an age in which the law courts used the contents of common law, canon and civil (but not their underlying system or principles!), only as “residual measures” of last resort, to be consulted only when no law applying to the case at hand could be found. Nor could we grasp why the church insisted so vehemently on providing a law com­mon to all the Christian faithful when it was evident (as is now indis­putable) that the normative content of common law bore little weight in the law courts or in practice in the secular mechanisms that im­posed order in the life of those same fideles Christi. Obviously, we need to broaden our horizons and to try to grasp the phenomena that we have begun to investigate according to a historiographic logic that goes beyond a consideration of only the most macroscopic aspects of judicial and notarial practice.

8.