Teaching of law began in earnest during the twelfth century. The sources of Roman law, and in particular Justinian’s Digest were rediscovered after many centuries of neglect. Gratian compiled, at around 1140, a collection of canon law for teaching. Students swarmed to the law schools to learn this new discipline that was so useful in landing a well-paid job. By the end of the century, the existence of a group of administrators educated in law had changed the way that popes, kings, and bishops managed their affairs. A new class had been born, that of bureaucrats.
This is all familiar. But there is still much in the history of legal studies in the twelfth century that is unknown or misunderstood.
I will attempt to make and illustrate two points. The period around 1100 is usually thought of as the first flourishing of the Bologna Law School. I will argue that there is no evidence for this view, and that as far as we know teaching began there only in the 1130s. My second contention is that as soon as teaching got started in Bologna, many other law schools followed suit. There was a great flourishing of law schools all over Europe from the middle of the twelfth century to its end.
When did law start to be taught in earnest in Bologna? The university celebrated its ninth centenary in 1988, and claims to be the world’s oldest continuously active institution of higher learning.1 How do the Bolognese know that their university was founded in 1088?
This foundation year was arrived at, just in time for the celebrations in 1888, by a committee, which was chaired by the renowned poet and Nobel Prize Laureate Giosuè Carducci, who was then the professor of Italian literature at Bologna. The committee was not able to point to any specific event in 1088. The reason for opting for that year probably has more to do with the suitability of the year 1888 for the celebrations than with historical considerations. But the committee, like the scholarly world at large, was convinced that law started to be taught in Bologna at some point in the late eleventh century.
They lead the beginnings of legal teaching in Bologna back to the exceptionally productive law teacher Irnerius. He is usually credited with having single-handedly started off the legal renaissance of the twelfth century by mastering and teaching all volumes of Justinian’s enormous Corpus iuris civilis, after having organized its components in an efficient way. Irnerius was the gleaming light at the beginning of the medieval tradition of legal teaching, and everyone that followed him was greatly in his debt.2
I have given the bare outlines of a story that has been retold many times over the centuries. The first man we know to have told it was the law professor Odofredus, who died in 1265. His lecture courses are published. If I were to study Roman law, I would have liked to have Odofredus as my professor. He was a pleasant, urbane, and loquacious man who knew how to liven up the dry fare of Justinian’s Digest with anecdotes. He loved telling stories about his predecessors among Bolognese law professors. Odofredus told his students that the great Bulgarus had become senile as he aged, to the degree that towards the end of his life he liked to play with the children in the sandbox. Historians have learned to take such anecdotes with at least a grain of salt. Not so when Odofredus talked about Irnerius, who lived more than a century before him. This is what he told his students about Irnerius:
Now, sirs, you should know that Irnerius was the lamp of law among us, that is the first who taught in this city…he began to study on his own in our books and…he was of great fame and the first illuminator of the science, and he was the first who glossed our books.3
The modern view of Irnerius is essentially the story of Odofredus with some further elaboration. This is remarkable, since modern historians usually are wary of testimony purveyed more than a century after the events. We prefer to write history based on contemporary documents. What image of Irnerius appears out of such documents?
Well, for starters, Irnerius was certainly a historical person, although his name was not Irnerius. He appears in a dozen or so records of court cases from between 1112 and 1125.4 Some of them are preserved in the original and contain his autograph signature. He signed Wernerius, so this was his name, not Irnerius. In these documents, he is one of several assessors who assisted the judge in adjudicating disputes, often on behalf of the famous Countess Mathilda of Tuscany. He is always outranked by other jurists, who get to sign before him.5 And Roman law never enters these court cases, which are judged according to local Italian law.6 In other words, Irnerius appears as one in a group of North-Italian jurists of Italian law active in the courts. There is no hint in these documents that he might have taught Roman law.
Another category of contemporary documents is made up of Irnerius’s writings. Very few texts survive in medieval manuscripts with an attribution to him. This has not prevented scholars over the centuries to ascribe to Irnerius many anonymous texts, often with little other basis than wishful thinking. A hundred years ago Irnerius was believed to have written several voluminous treatises as well as hundreds if not thousands of glosses, that is to say those short but often important interpretative annotations that appears in the margins of manuscripts of Roman law books.7
The bulk of these texts are anonymous in the manuscripts that preserve them, and there is no reason to ascribe them to Irnerius. We have to focus on those few texts that were in fact attributed to him during the middle ages. They amount to a few glosses and a single, very brief treatise, altogether. Not many texts, and not of any remarkable brilliance. The great twentieth-century historian of medieval Roman law, Hermann Kantorowicz, judged the one surviving treatise written by Irnerius disappointing.8 He was looking for the lamp of the law that Odofredus boasted about, and he was not finding it. To fix this problem, Kantorowicz made radical changes in his edition of the text, which thus better answered to the reputation of Irnerius.9 More importantly for our purposes here today, there is nothing in these texts of Irnerius that suggests that he was a teacher. They are brief comments on specific passages in Justinian’s Corpus. He had only started to scratch the surface of Roman law. To find evidence of teaching of law, one has to go to the 1130s and 1140s. At this time, a group of teachers were active in Bologna. Gratian taught canon law, and the so-called Four doctors taught Roman law. Their surviving writings make it quite obvious that they were teachers.
One of the Four doctors was Bulgarus, who had started his career before 1141 and died c. 1158. That he was a teacher is clear from the practical exercises he gave his students. In them, he lets two students, or two groups of students, argue for the plaintiff and the defendant, while Bulgarus himself takes on the role of the judge. It looks like a moot court or a seminar. One example concerns horse-trading (see Appendix 1). The text starts by briefly setting up the situation. Titius sells a horse to Seius. The names used are those that classical Roman jurists used in their examples. Seius takes the horse, but does not pay at once. Instead he presents a guarantor, who promises to pay the price of the horse to Titius, if Seius does not deliver the monies. Seius does in fact default, so Titius seeks out the guarantor to get paid. He is in for a surprise. The man who warranted the purchase-price turns out to be a cross-dressed woman. The question now is whether Titius can sue her to get his money.
After this introduction, the text looks like a report from a court case. Each party argues their case and is countered by the other party. The woman says that Titius cannot sue her to get the purchase price for the horse from her, because she is a woman, and women cannot be sued in such cases under the Senatusconsultum Velleianum. Titius tries two arguments. First, he argues from analogy with the rules concerning sons-in-power. Under Roman law, they had as little legal standing as women to be guarantors, but a law protected those who were fooled by a son-in-power who behaved as if he had his own legal standing as a paterfamilias. Titius’s other argument is simpler. A passage in Justinian’s Digest states that the law should in general help women, unless they have acted deceitfully. Titius thought this woman was deceitful.
The woman responded by claiming ignorance of the rule that she could not stand surety, so she argued that she did not behave deceitfully, and she referred to the Senatusconsultum Velleianum.
In the end, Bulgarus acted the role of the judge, and determined that the woman won the case. She could not be held liable for the price of the horse.
This brief example gives a fascinating glimpse of the classroom of Bulgarus. There can be no doubt that he was a teacher. This kind of practical exercise must have been very useful for future lawyers. Cross-dressed women were perhaps not an urgent social problem in twelfth-century Italy, but the broader issue of whether women were able to conduct business was surely of great importance at a time and in a place that experienced the commercial revolution.
Bulgarus’ colleague in the area of canon law, Gratian, also used a question-format in his teaching. He wrote a textbook of canon law called the Decretum, which he finished in 1139 or soon after.10 Within ten years of its completion, another law teacher doubled the size of the Decretum by adding new texts which he thought should also be included. Most of the material in this work was organized around thirty-six fictitious cases, each of which tells a little story that Gratian then uses to analyze legal issues.
Causa 29 is an example (see Appendix 2).11 Gratian wrote what is in italics in the edition, while the text in ordinary Roman are the authorities, the laws which Gratian quotes. The text is that of the first recension. In case twenty-nine, Gratian tells us about a young, aristocratic woman, who through intermediaries agrees to marry a nobleman whom she has never met. On her wedding day, however, another man shows up and claims to be her fiancé. She is fooled and consents to marry him. Then the ruse is exposed, and to add insult to injury, she discovers that her new husband is not even a nobleman; he is a “servus”, which in twelfth-century Latin is an ambiguous term. It might mean either “slave” or “serf”.
When he has told his story, Gratian extracts the legally relevant questions. In this case, he asks, first, whether this is a valid marriage. Second, “if she first believed a man was free, and later discovered that he was unfree, could she lawfully divorce him?” Then he goes on to address each question separately.
In the first question, Gratian first states that the woman was indeed married to the imposter, since marriage comes about through mutual consent. And she had consented. But then Gratian responds to this statement by pointing out that the idea of consent presupposes that two persons agree to the same thing. But this woman and her groom agreed to different things. She thought she was marrying someone else. The conclusion is that there was no consent, hence no marriage.
Gratian then addresses the second question about whether you may divorce your husband because he is unfree. He proceeds in a similar way. He quotes several passages from the Pauline Epistles and an excerpt from what he thinks is an ecclesiastical law passed by Pope Julius.12 In Gratian’s readings, all of these texts make the point that a free person is capable of marrying an unfree person. Thus, no reason to dissolve a marriage just because one partner is unfree, which was a point well worth making since it was far from self-evident.13 Gratian then quotes two decisions of an early medieval church council to the effect that if a free person marries an unfree person, whom she mistakenly believes to be free, the marriage may be dissolved. Here, the unfree status of one of the partners dissolves the marriage, but only if the free person has been fooled about it, as Gratian also points out.
Gratian behaves like a teacher. He tells a story containing interesting and lively details that will stay in the memory of his students. Notice also that the case reeks of the classroom. It is an artificially construed case that Gratian made up to be able to discuss the issues that interested him, namely, in which circumstances do mistakes or deceit invalidate a marriage. The case from the classroom of Bulgarus could be a real court case. Gratian’s case is not. If the woman in the case sued for a divorce, she would have been granted one as soon as the judge had made clear the nature of marital consent. It would be irrelevant whether the imposter was free or not. In the courtroom, it would have been enough to answer Gratian's first question. In the classroom, both questions were interesting.
Gratian’s cases are not court cases. And his questions are not records of real or imagined legal arguments in court, as we saw that Bulgarus’s questions are. Gratian uses a similar back-and-forth method, but the contradictions are not between lawyers for opposite sides, they are between seemingly contradictory texts. The back and forth is Gratian’s pedagogical method of arriving at and presenting a common ground among legal authorities that seem incompatible. His method is typical of early scholasticism. We must conclude that Gratian’s questions are not records of practical exercises; they are records of the knowledge he wanted to impart to his students, in other words, his lectures.
To summarize my first point: this evidence shows that Gratian and Bulgarus taught law in Bologna by the 1130s. There is no evidence for any earlier teaching there, by Irnerius or anyone else. 1088 is certainly too early a date for the foundation of the Bolognese law school.
What we do know about twelfth-century Bologna is impressive enough. It was there that Gratian produced the first university textbook of canon law, and it was there that Bulgarus and his colleagues produced innovative and insightful readings of Roman law. Against this background, we tend to overlook what was happening elsewhere in Europe. The story about the teaching of law in the twelfth century is not a story that plays out only in Bologna.
Let me give a simple illustration. During a military campaign into Italy, Emperor Frederick Barbarossa met with his Italian subjects on the fields of Roncaglia in 1158.14 The emperor issued several laws and privileges, the most famous of which is the one that in the technical terminology of medieval law is known as the authentica “Habitum”.15 In some textbooks of medieval history one may read that this was a privilege for the University of Bologna, through which the emperor took students and teachers of law there under his protection. A group of Bolognese teachers of Roman law had assisted Barbarossa, and historians have speculated that this put them in a position to influence him to give Bologna special protection. Against this background, any reader of Habitum will be surprised. The law does not mention Bologna at all, nor does it mention studies of law. It simply says that the emperor protects all students in Italy. It mentions no school in particular or any discipline in particular. So why say it is about Bologna? It seems that some historians at some point lacked the imagination to think there might be other Italian seats of learning than Bologna.
We get a glimpse of the spread of legal studies in Italy in a letter probably from the 1180s that survives in the original.16 It was sent to the abbot of the monastery of St. Victor in Marseilles from one of his monks, whose name begins with the letter R. The monk is embarrassed and apologetic. His abbot had sent him to deal with important matters at the pope’s court in Rome, but he had never arrived there. Instead, when he wrote the letter, he was studying law in Pavia. The monk has clearly put a lot of effort into formulating his letter in such a way that his actions seem defensible, even laudable. It is written in a high rhetorical style. He wrote, “the animal, through whose conveyance I endeavored to reach Rome, at first and by God’s will, fell sick and at length passed away, in Pavia. I began to blush violently in shame and hesitated what to do about my unfinished business, but then I decided to devote myself to study.”17 The monk goes on to describe how scholars, and particularly his Provençal countrymen, crowd to Italy to study law.18 It would be useful for our letter-writer, when he arrives in Rome to argue his monastery’s case before the pope, to know just a little about law. To that end, he now plans to go to Pisa to continue his studies, and he wonders if the abbot might arrange to send some money.
In his desire to learn law before arguing his monastery’s case before the pope, the monk R. is typical of his generation. He is a contemporary of the monks in Battle Abbey in England who reproached their abbot for not having allowed them to go to Bologna to study law, in time for it to be useful for a complicated lawsuit that engaged them around 1180.19
Knowledge of law was becoming increasingly important for all kinds of business, and this was the subject that ambitious young men preferred to study. There was, thus, a market for anyone who was able to teach law, and since the university as an institution was not yet invented, anyone could become a teacher anywhere. Our monk testifies that this market extended beyond Bologna, which he never mentions. He had himself studied at Pavia and was now going on to Pisa. Throngs of students study law throughout Italy, he says. When Barbarossa issued Habitum, he intended to protect these throngs wherever they studied.
But this blossoming of law schools was not restricted to Italy. When the Battle Abbey monks found their own legal knowledge insufficient for the lawsuit I mentioned a moment ago, they turned to the learned jurist Gerard Pucelle.20 He was typical of this new breed of men educated in both canon and Roman law. In his youth, Gerard had taught law in France, and then he served the archbishop of Canterbury as an able administrator until he was made bishop himself in 1183. He had been faithful to the archbishop, even to the extent of following Thomas Becket into exile in France in the 1160s. During this exile, he had, however, for a couple of years left Becket to serve another archbishop, Reinhold of Cologne. His friend John of Salisbury was horrified. Gerard had gone to Germany, which at the time was divided by schism from both the pope and Thomas Becket. Gerard should be careful hanging out with schismatics, John writes to him.21
Why did Gerard go to Cologne? John does not tell us in so many words, but it seems clear that he was there to teach law. A law school flourished in Cologne briefly in the 1160s and ‘70s.22 Evidence of the teaching of several teachers survives in the form of more than half a dozen written works. All but one of these concern canon law, which was the primary focus of this school. They range from the quite introductory to works that easily measure up to the most sophisticated that were produced in Bologna at the same time. It seems that the student who came to Cologne to study canon law would start with a much shortened and rearranged version of Gratian’s Decretum.23 The unknown author of this text let his students begin with three important subjects: the fundamentals of legal theory, the basic rules for holding ecclesiastical office and for marriage. He then quickly proceeded to a survey of the other subjects covered in the Decretum, with an emphasis on clerical wrongdoing, ecclesiastical property law, and laws governing monasteries. The issues treated would be important to even the lowliest of clerics, and they would appreciate how succinct the course is. Gratian’s full Decretum is nineteen times as long as this abbreviation.
The enterprising student not satisfied with the basics could get into a lot of details with other teachers in Cologne, as is evident from texts such as the Summa Coloniensis.24 This is a large, paraphrasing summary of the doctrine of Gratian’s Decretum which also addresses many questions that Gratian did not. Occasionally, its author distances himself from the “Bononienses”, the masters of Bologna, by stating that they have a different opinion, which also happens to be an erroneous opinion.
The law school in Cologne was a canon law school. Other centers gave more attention to Roman law. The teaching of Vacarius somewhere in England is well known.25 Like Gratian, he produced his own textbook, the Liber pauperum, which contains core excerpts from Justinian’s most voluminous law books, the Digest and the Code. This book appears to have been used in conjunction with the Institutes, Justinian’s brief introduction to law. Between these two books an English law student would receive a comprehensive but concise education in Roman law, just enough to be a successful canon lawyer.
Several medieval works that are similar to the Liber pauperum survive. Judging from their contents and style of argument, they are not products of the Bologna law school, at least not from the time of the Four doctors or later. They must have been written either elsewhere or earlier. Scholars disagree on which applies.
An example is the text known as the Exceptiones Petri.26 In the prologue, its author Peter complains about the multiplicity of laws that makes it difficult or impossible even for the most learned jurists to arrive at simple and unambiguous answers to straightforward questions. Peter has, he claims, fixed this problem with his book, which is a practical, brief introduction to Roman law. And, yes, it is easy to read.
When and where was it written? Some scholars argue that Peter wrote his text in the eleventh century in Italy.27 Others say he was active after 1159 in France or in the 1120s in Provence, but the best evidence seems to suggest that Peter wrote in twelfth-century Southern France, although it remains unclear exactly when and where.28
Whatever the time and place of its production, his work was certainly in use in teaching Roman law in France during the second half of the twelfth century. We know this because of the work of another French teacher of law, who around the middle of the century, perhaps even in 1150 exactly, produced an abbreviation of Gratian’s Decretum. This abbreviation is known by its first words as Quoniam egestas.29 Its anonymous author excerpted what seemed to him most important in the Decretum. He also commented on many passages and put his comments in the margin. Many of his glosses refer to Roman law, but not to Justinian’s compilations as Bolognese commentators on Gratian usually do. Instead, he refers to the Exceptiones Petri. As it happens, one of the manuscripts of the Quoniam egestas also contains the Exceptiones Petri.30The contents of this manuscript suggest that there was a school of law in France, probably in Southern France, where canon law was taught on the basis of Quoniam egestas and Roman law was taught on the basis of the Exceptiones Petri. This was also a school that focused primarily on canon law, as is obvious already from the different size of these two compilations. The Quoniam egestas occupies 104 folios and the Exceptiones only 25 folios in the one manuscript that contains both works. Furthermore, the Exceptiones is the canon lawyer’s handbook of Roman law. The work treats subject matters that would be of interest to churchmen, and the point of view is theirs, for instance in its emphasis on the superiority of natural law over human law. Or when Peter discusses marriage within prohibited degrees. His text draws on the Institutes, but he has replaced Justinian’s way of computing degrees with that used by canon lawyers.
To summarize my second point: Anyone who wanted to study law around the middle of the twelfth century did not necessarily need to go to Bologna. He could choose among many places. I have mentioned only a few. Their fates were different; some law schools quickly disappeared, others appeared to take their place. This is because the schools were not institutionalized as such. They were still privately run enterprises and when the master died or moved on to greater things, his school ceased to exist. If there was no one else ready to take over in the same city, that city’s reputation for scholarship quickly dissipated.
In this, the geography of the teaching of law in the twelfth century is similar to contemporary teaching of theology.31 By the end of the century, Paris had emerged as the pre-eminent center for such studies. A hundred years earlier, Paris had been only one rather undistinguished cathedral school among many. The most innovative theological scholarship was done elsewhere, in places like Laon, Bec, and Chartres. During the twelfth century, such studies became increasingly focused in Paris and a few other places, for reasons of convenience such as easy availability of the amenities of life and room for expansion.
I want to argue that the geography of legal study developed in an analogous way. People in Bologna, perhaps including Wernerius, surely read law books, including Justinian's, in 1100, just as people in Paris read the Bible and Augustine. But in both cases, we should be careful not to read back into the eleventh century the later achievements of these places. When the universities came into being around 1200 with their standardized curricula and examinations, the teaching of law became concentrated to a few places. The standardized curricula pre-supposed standard textbooks, which spelled the end of this genre of abbreviated textbooks, like Quoniam Egestas and Exceptiones Petri. Multiplicity and variation was replaced by standardization.
In conclusion, I would like to make three points.
The first one is, unashamedly, a cliché. I wish that more research is done on the small law schools of the twelfth century. Many of the relevant legal texts lie unedited and unstudied in the libraries. There are dozens of abbreviations of Gratian’s Decretum, most of which were supposedly in use in regional law schools, but only in 1998 was any of them published in print. They are simply not as well known as they should be.32
My second point is that a more careful mapping of these law schools will help when historians approach some of the contentious issues of medieval legal history. As I said earlier, there still is no agreement about when and where many legal treatises were written. I believe that most of them should be attributed to twelfth-century centers outside Bologna, rather than to eleventh-century Italy as is sometimes done. For example, a text like the Exceptiones Petri with its close connections to Quoniam egestas from mid-twelfth-century Southern France must surely have a similar provenance. Attention to the small law schools will give us a better understanding of the chronology and geography of the teaching of law.
Finally, the small law schools illustrate an often forgotten truth about medieval law. Roman law was, at least at first, only a handmaiden of canon law. Within the body of short textbooks that I have discussed, Roman law is clearly subservient to canon law. Most twelfth-century students needed only a smattering of Roman law, which they got from books like the Exceptiones Petri and the Liber pauperum. Only in Bologna and perhaps one or two other places could one study the full corpus of Justinian in depth. The future belonged to those who did.
Appendix 1: Stemma Bulgaricum
Translation and comments by Joshua C. Tate and Anders Winroth on the basis of the edition in Kantorowicz, Studies in the Glossators of the Roman Law (note 7), 246-247.
Question III A
Titius sold a horse "in its optimum state" to Seius.33 He accepted from Seius as guarantor (surety) a woman whom he thought to be a man, since she wore manly clothes.
Now the question is whether Titius can sue her.
She excuses herself from being a guarantor through the senatusconsultum Velleianum, which prohibits women from standing surety.34
Titius asserts that she is held liable through this argument: if someone lends money to a son-in--power, whom he thinks is a paterfamilias, and he is not deceived by foolish simplicity, since the other acted in such a way and conducted himself in such a way and performed duties in such a way [as patresfamilias do], then the law35 says that the son-in-power is held liable, and he cannot excuse himself through the senatusconsultum Macedonianum.36He [Titius] says that she is to be held liable in the same way, since she acted like a man, conducted herself like a man, and performed duties in such a way; and one should not succor the cunning of women, but their thoughtlessness.37
The woman defended herself in general words, i.e. of the senatusconsultum Velleianum, which prohibits women entirely from standing surety, unless she has done so with the intention of deceiving, or if she has received money therefore. She says that she did not stand surety with the intention of deceiving nor has she received money therefore, but she believed that she could stand surety for someone else.
Bulgarus: she is not held liable, but she can well be protected.
Appendix 2: Causa 29 in the first recension
The following edition of causa 29 is based on a collation of the two available manuscripts of the first recension, Aa and Fd, and on the editions of Friedberg and Viejo-Ximénez of the second and first recensions, respectively. The texts of C. 29, q. 2, cc. 1, 4 and 5 have also been collated against the only known abbreviation of the first recension, Sg. I have not collated the dicta against this manuscript, since they have been substantially reformulated. In the apparatus, I have included only variants that I have deemed particularly interesting or informative while leaving out numerous variants of spelling and word order. I have followed Fd in spelling and in deciding between variants that seem equally plausible. I believe that this manuscript preserves what Gratian originally wrote more often than does Aa, which contains interpolations from the second recension as well as several instances where I suspect scribal intervention. Fd is, however, poorly copied, containing numerous obvious errors, which I have attempted to correct.
Aa Admont, Stiftsbibliothek 23 et 43
Fd Florence, Biblioteca Nazionale Centrale, Conventi Soppressi A 1.402
Sg Sankt Gallen, Stiftsbibliothek MS 673
Fr. Emil Friedberg, ed., Corpus iuris canonici. Vol. I, Decretum magistri Gratiani. Leipzig 1879.
José Miguel Viejo-Ximénez, “La redacción original de C. 29 del Decreto de Graciano,” Ius ecclesiae 10 (1998), 181-185
Cuidam nobili mulieri nuntiatum est, quod a filio cuiusdam nobilis petebatur in coniugem. Prebuit illa assensum. Alius vero quidam ignobilis atque servilis conditionis nomine illius seiupsum obtulit, atque eam in coniugem accepit. Ille qui prius sibi placuerat, tandem venit atque eam in coniugem petit. Illa se delusam conqueritur et ad prioris copulam aspirat. Hic primum queritur, an sit coniugium inter eos? Secundo si prius putabat hunc esse liberum et postea deprehendit illum esse servum, an liceat ei statim ab illo discedere?
Quod autem coniugium sit inter eos, probatur hoc modo. Coniugium sive matrimonium est viri mulierisque coniunctio individuam vite consuetudinem retinens. Item consensus utriusque matrimonium facit. Quia ergo isti coniuncti sunt, ut individuam vite consuetudinem conservarent, quia uterque consensit in alterum, coniuges sunt appellandi.
<§ 1>His ita respondetur: Consensus est duorum vel plurium sensus in idem. Qui autem errat non sentit, nec ergo consentit, id est simul cum aliis sentit. Hec autem erravit, non ergo consensit, nec itaque coniux est appellanda, quia non fuit ibi consensus utriusque, sine quo nullum matrimonium esse potest. Sicut enim qui ordinatur ab eo, quem putat esse episcopum et adhuc est laicus, errat, nec vocatur ordinatus, immo adhuc ab episcopo est ordinandus, sic ista errans nulli est copulata | coniugio, immo adhuc est copulanda.
<§ 2>Ad hec: non omnis error consensum evacuat. Qui enim accipit in uxorem, quam putat virginem, vel qui accipit meretricem, quam putat castam, uterque errat, quia et ille corruptam existimat virginem, et iste meretricem reputat castam. Numquid ergo dicendi sunt non consensisse in eas? aut dabitur utrique facultas dimittendi utrumque et ducendi aliam? Verum est, quod non omnis error consensum excludit, set error alius est persone alius fortune, alius conditionis, alius qualitatis. Error persone est quando hic putatur esse Virgilius et ipse est Plato. Error fortune quando putatur esse dives qui est pauper vel econverso. Error conditionis quando putatur esse liber qui servus est. Error qualitatis est quando putatur esse bonus qui est malus. Error fortune et qualitatis coniugii consensum non excludit. Error vero persone et conditionis coniuigii consensum non admittit. Si quis enim pacisceretur se venditurum agrum Marcello, et postea veniret Paulus dicens se esse Marcellum, et emeret agrum ab illo. Numquid cum Paulo convenit iste de pretio, aut dicendus est agrum sibi vendidisse? Item si quis promitteret se venditurum michi aurum et pro auro offerret michi auricalcum et ita me deciperet, numquid dicerer consensisse in auricalcum? Numquam volui emere auricalcum, nec ergo aliquando in illud consensi, quia consensus non nisi voluntatis est. Sicut ergo hic error materie excludit consensum sic et in coniugio error persone. Non enim consensit in hunc, set in eum quem hunc putabat esse.
<§ 3> Set obicitur: Iacob non consenserat in Liam set in Rachel. Septem siquidem annis pro Rachel servierat. Cum ergo eo ignorante Lia esset sibi supposita, non fuit coniugium inter eos, si error persone consensum excludit, quia, ut dictum est, non in eam consenserat, set in Rachel. His respondetur ita: Consensus alius est precedens, alius subsequens. Precedit consensus, quando ante carnalem copulam in individuam vite consuetudinem uterque consentit. Subsequitur quando post concubinalem sive fornicarium coitum consentiunt in idem. Iacob ergo et Liam non fecit coniuges precedens consensus, set subsequens, nec tamen ex primo concubitu fornicarii iudicantur, cum et ille maritali affectu eam cognoverit et illa uxorio affectu sibi debitum persoluerit putans lege pri|mogenitarum et paternis imperiis se sibi iure copulatam.
Quod autem error persone nonnullos excuset, illa auctoritate probatur, qua soror uxoris utroque inscio, sorore videlicet et marito, in lectulum eius isse, et a viro sororis sue cognita perhibetur. Que cum sine spe coniugii perpetuo manere censeatur, ille tamen, qui cognovit eam per ignorantiam, excusatur. Aliter etiam hic probatur. Diabolus nonnumquam se in angelum lucis transformat. Nec est periculosus error si creditur tunc esse bonus, cum se bonum simulat. Si ergo tunc ab aliquo simplici quereret, an sue beatitudinis vellet esse particeps, et ille responderet se in eius consortium velle transire, numquid dicendus esset consensisse in | consortium diabolice dampnationis, an non potius in participationem eterne claritatis? Item si quis hereticorum nomine Augustini vel Ambrosii vel Ieronimi alicui catholicorum se ipsum offerret atque eum ad sue fidei imitationem provocaret, si ille preberet assensum, in cuius fidei sententiam diceretur consensisse? Non in hereticorum sectam, set in integritatem catholice fidei, quam ille hereticus se mentiebatur habere. Quia ergo hec persona decepta errore non in hunc, set in eum, quem iste se mentiebatur esse, consensit, patet quod eius coniux non fuerit.
<§ 5> Error fortune et qualitatis non excludit consensum, veluti si quis consentiret in prelaturam alicuius ecclesiae, quam putaret esse divitem, et illa esset minus copiosa, quamvis hic deciperetur errore fortune, non tamen posset renuntiare prelature accepte. Similiter que nubit pauperi putans illum esse divitem, non potest renuntiare priori conditioni, quamvis erraverit. Error qualitatis similiter non excludit consensum, utpote si quis emerit agrum vel vineam quam putaret esse ubererimam, quamvis iste erraret qualitate rerum, rem minus fertilem emendo, non tamen potest venditionem rescindere. Similiter qui ducit in uxorem meretricem vel corruptam, quam putat esse castam vel virginem, non potest eam dimittere.
Secunda questio de conditione proposita est, an liceat mulieri dimittere eum, quem putabat liberum, si postea illum invenerit servum. Quod vero mulieri non liceat a servo discedere, multis rationibus videtur posse probari. In Christo enim Ihesu nec iudeus, nec grecus, nec servus, neque liber, ergo nec in coniugio Christianorum. Eadem enim lege in fide Christi uterque regitur. Indifferenter enim ab Apostolo dicitur omnibus: “Qui vult nubere nubat in Domino.” Et item: “Mulier nubat cui vult tantum in Domino.” Non precipitur ut ingenua nubat ingenuo, ancilla servo, set quelibet earum cui vult dummodo nubat in Domino.
Item Iulius papa, cap. iiii
Licet servis matrimonia contrahere
Omnibus nobis unus pater est in celis, et unusquisque, dives et pauper, liber et servus, equaliter pro se et pro animabus eorum rationem daturi sunt. Quapropter omnes, cuiuscumque condicionis sint, unam legem quantum ad Deum habere non dubitamus. Si autem omnes unam legem habent, ergo sicut ingenuus dimitti non potest, sic nec servus semel coniugio copulatus ulterius dimitti poterit.
His ita respondetur: non negatur ingenua posse nubere servo, set dicitur quod si nescitur esse servilis conditionis, libere potest dimitti, cum servitus eius fuerit deprehensa. Illud autem Apostoli et Iulii pape intelligendum est de his, quorum utrique condicio nota est. Huius autem conditio mulieri incognita erat. Non ergo premissis auctoritatibus cogitur manere cum eo, set liberum illi esse ostenditur vel manere vel discedere.
Unde in concilio aput Vermeriam, cui interfuit rex Pipinus, statutum est cap. vi
De eo, qui ancillam ducit uxorem, quam putat liberam esse.
Si quis ingenuus homo ancillam alterius uxorem acceperit et existimat, quod ingenua sit, si ipsa femina fuerit postea in servitute detecta, si eam a servitute redimere potest faciat. Si non potest, si voluerit, aliam accipiat. Si autem ancillam eam scierat et collaudaverat post ut legiti|mam habeat. Similiter et mulier ingenua de servo alterius facere debet.
Item ex eodem cap. viii
Non licet mulieri dimittere quem sciens servum accepit in virum.
Si femina ingenua acceperit servum sciens, quod servus esset, habeat eum quia omnes unum patrem habemus in celis. Una lex erit viro et femine.
Cum dicitur “sciens illum servum”, datur intelligi, quod si nescierit illum servum esse, non cogitur cum eo manere. Quia hec ergo et persone et conditionis dolum passa est, non cogitur adherere ei, cuius fraude decepta est.
Fd, fo. 82v Aa, fo. 125v. 4 atque eam Fd: eam sibi Aa: eamque sibi Fr.8 retinens Fdpc Fr.: retinenda Fdac: servans Aa15 adhuc est Aa: adhuc Fd16Aa, fo. 126r.17 in FdacFr., om. Aa quam FdpcAa: quia Fdac 20 utrumque Fd: utramque Aa Fr.23 qui Aa Fr.: et ip Fd: et ipse Viejo-Ximénez25 non Aa, om. Fd30 dicerer Fd Aa Fr.: diceretur Viejo-Ximénez34post Iacob verbum vero exp. Fd Liam] Eliam Fdac39 fecit] facit Fdac41 eam Aa Fr.: iam Fd 42 Fd. fo. 83r.44 eius Aa Fr.,om. Fd: est supra lin. add. Fd49 Aa, fo. 126v62 in Fd Fr., om. Aa74 daturi Fdac Sg: reddituri Aa Fr.75 Deum Aa Fd Sg: Dominum Fr. Viejo-Ximénez77 poterit Aa Fd: potest Sg78 ingenua Aa Fd: ingenuam Fr. Viejo-Ximénez83 Vermeriam Fdpc: Vermeriam civitatem Aa: Vormatiam Fdac cui interfuit Fd Fr.: in quo fuit Aa84 ducit Fd: ducit in Fr.: duxerit Aa: duxit Viejo-Ximénez85 homo om. Sg et existimat Fd Aa: existimans Sg88Aa, fo. 127r. et mulier add supra lin. Fd facere debet Fd Aa: faciat Sg89 viii Fd: vii Aa90 mulieri Fd Fr.: uxori Aa
1I wish to thank Barbara McKay for timely and expert assistance with typing.
See, e.g., http://www.unibo.it/Portale/Ateneo/La+nostra+storia/default.htm.
2 Some places where this is essentially the account given are: Giorgio Cencetti, 'Studium fuit Bononie. Note sulla storia dell’Università di Bologna nel primo mezzo secolo della sua esistenza', Studi medievali, ser. 3, vol. 7, fasc. 2, Spoleto, 1966, 781-833; Charles Donahue, 'Law, civil', in Dictionary of the Middle Ages, ed. Joseph Strayer, New York, 1982-89. Peter Weimar, 'Irnerius', Lexikon des Mittelalters. Munich, 1977-1998; Manlio Bellomo, The Common Legal Past of Europe, 1000-1800, Studies in Medieval and Early Modern Canon Law, 4, Washington, D.C., 1995, 60-63; Ennio Cortese, Il diritto nella storia medievale, 2, Il basso medioevo, Rome, 1995, 5-102; Ennio Cortese, Il rinascimento giuridico medievale, 2nd ed., Rome, 1996; Hermann Lange, Römisches Recht im Mittelalter, 1 Die Glossatoren, Munich, 1997, 154-162. This is still what is taught in most courses in medieval history and legal history, as is suggested from undergraduate text books such as Clifford R. Backman, The Worlds of Medieval Europe, New York and Oxford, 2003.
3 Translation excerpted from Charles M. Radding, The Origins of Medieval Jurisprudence. Pavia and Bologna 850-1150, New Haven, 1988, 159.
4 Enrico Spagnesi, Wernerius Bononiensis iudex. La figura storica d'Irnerio, Florence, 1970.
5 Theuzo of Verona takes precedence over Irnerius in several court decisions printed by Spagnesi, and he also wrote a short treatise that has been preserved, see Gero Dolezalek, 'Tractatus de diligentia et dolo et culpa et fortuito casu. Eine Abhandlung über die Haftung für Beschädigung oder den Untergang von Sachen aus dem zwölften Jahrhundert', in Aspekte Europäischer Rechtsgeschichte. Festgabe für Helmut Coing zum 70. Geburtstag, Ius commune, Sonderhefte: Texte und Monographien, 17, Frankfurt am Main, 1982, 93-94 and 113.
6 Spagnesi, Wernerius Bononiensis iudex (note 4) 164-173, argues unconvincingly that the concept of donatio simplex in one of the documents derives from Justinian's Code.
7 Hermann Kantorowicz with W. W. Buckland, Studies in the Glossators of the Roman Law. Newly Discovered Writings of the Twelfth Century, Cambridge, 1938; reprinted with 'Addenda et corrigenda' by Peter Weimar, Aalen, 1969, 33-37.
8 Kantorowicz, Studies in the Glossators of the Roman Law (note 7) 46: 'The first impression is very disappointing, and makes one doubt whether the rubric is to be relied on. It runs "De eodem. Garnerius", which refers back to the preceding "Idem B. Super Codice". Instead of the perfect consistency which we found in the work of the pupil and which we are entitled to expect in an even higher degree in the work of his master, the "lucerna iuris", we are faced by a quite disorderly set of eight observations.'
9 Kantorowicz, Studies in the Glossators of the Roman Law (note 7), 47: 'I shall therefore edit the paragraphs of the materia in the same succession in which they follow in Bulgarus, and with many other emendations of the corrupt text.'
10 Anders Winroth, The Making of Gratian's Decretum, Cambridge, 2000.
11 Anders Winroth, '"Neither free nor slave." Theology and law in Gratian’s thoughts on the definition of marriage and unfree persons', in Medieval Foundations of the Western Legal Tradition. A Tribute to Kenneth Pennington, eds. Mary E. Sommar and Wolfgang P. Müller, Washington, D.C., Catholic University of America Press, 2006.
12 This text (Philipp Jaffé, Regesta pontificum Romanorum, 2d ed., Leipzig 1885-1888, JK †200) is in fact, and unbeknownst to Gratian, an anonymous commentary on Justinian's Code 5.4.26 that first appears in the Decretum of Burchard of Worms 9.18, cf. Hartmut Hoffmann and Rudolf Pokorny, Das Dekret des Bischofs Burchard von Worms. Textstufen - Frühe Verbreitung - Vorlagen, Monumenta Germaniae Historica, Hilfsmittel 12, Munich 1991, 213. The constitution excerpted in the Code was directed to the pretorian prefect Julianus. Some reader seems to have misunderstood the abbreviation for praetor praetorianus as the abbreviation for papa; both of them contain two p's.
13 Roman law prohibited the marriage between free and slave, see e.g. Judith Evans Grubbs, Law and Family in Late Antiquity. The Emperor Constantine's Marriage Legislation, Oxford 1995, esp. p. 273-274, Judith Evans Grubbs, '"Marriage more shameful than adultery". Slave-mistress relationships, "mixed marriages", and late Roman law', Phoenix 47 (1993), 125-154, and Winroth, '"Neither free nor slave"' (note 11).
14 Cf. the contribution of Marie Theres Fögen in this volume.
15 Ludwig Weiland, Constitutiones et acta publica imperatorum et regum inde ab a. DCCCCXI usque ad a. MCXCVII, Monumenta Germaniae Historica: Constitutiones et acta publica imperatorum et regum, 1, Hanover 1893, 249.
16 Jean Dufour, Gérard Giordanengo, and André Gouron, 'L'attrait des "leges". Note sur la lettre d'un moine victorin (vers 1124/1137)', Studia et document historiae et iuris, 45, 1979, 504-529. Their edition of the letter is on pp. 528-529 and a photo of it is reproduced on a plate between those pages. The letter is undated, but is datable because the monk R congratulates his new abbot 'B' on his election. Only two twelfth-century abbots of St. Victor had names beginning with B: Bernard Garin (1124/27-1129) and Bertrand of Montgemurato (1180-1182). The editors have weak arguments for attributing the letter to the abbacy of the former, at the same time as they admit that the arguments are strong for attributing it to that of the latter. They find it, nonetheless, hard to imagine that R in the 1180s would have known so little about the glossators of Roman law. The reasoning (which is never made quite explicit) seems to be that had R known more, he would not have wanted to go to Pisa but to Bologna, and that the advances of legal culture in Provence during the twelfth century implies that he should in fact have known more if he wrote in the 1180s. This argument seems based on untenable premises, e.g., that R tells us everything he knows about the teaching of law in his brief supplication for money and that there could never be a reason, except ignorance, for anyone to wish to study in Pisa. The editors press the evidence, and it seems safer to accept the strength of the arguments for dating the letter to the early 1180s.
17 In the translation, I have simplified the text in Dufour et al., 'L'attrait des "leges"' (note 16) 529: 'Sed quia divine voluntati me ceptum iter complere non libuit, animal cujus vehiculo Romam usque tendere satagebam, in itinere prius infirmatum, prorsus ibidem mihi defuit. Quapropter ulterius incedere quia non valerem infectoque negotio statim redire vehementer erubescerem priusqudem titubare cepi, postremo tamen litterarum studiis opera dare disposui ibique paucis Dei gratia interpositis moris, hactenus animum exercendo moratus fui.'
18 Ibidem: 'Nunc autem quia per totam fere Italiam scolares et maxime Provinciales, necnon ipsius ordinis de quo sum, quamplures legibus catervatim studium adibentes incessanter conspicio.'
19 Stephan Kuttner and Eleanor Rathbone, 'Anglo-Norman canonists of the twelfth century', Traditio, 7, 1949-1951; reprinted in Stephan Kuttner, Gratian and the Schools of Law 1140-1234, London, 1983, VIII, p. 281.
20 Kuttner and Rathbone, 'Anglo-Norman canonists' (note 19) 296-303.
21 John of Salisbury, epp. 168, 185, 189, 197, ed. J-P Migne, ed., Patrologiae cursus completus. Series latina 199.160-161, 192-196, 199-200, 216-217.
22 Kuttner and Rathbone, 'Anglo-Norman canonists' (note 19), 298-301.
23 Alfred Beyer, Lokale Abbreviationen des "Decretum Gratiani". Analyse und Vergleich der Dekretabbreviationen "Omnes leges aut divine" (Bamberg), "Humanum genus duobus regitur" (Pommersfelden) und "De his qui intra claustra monasterii consistunt" (Lichtenthal, Baden-Baden), Bamberger theologischer Studien, 6, Frankfurt am Main, 1998, edits this text, p. 30-168. For its character of a textbook and its connection to Cologne, see pp. 214-216, and cf. the review by Anders Winroth in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 86 (2000), 567-568.
24 Gérard Fransen with the collaboration of Stephan Kuttner, ed., Summa 'Elegantius in iure divino' seu Coloniensis, Monumenta iuris canonici, series A: Corpus glossatorum, 1, New York, 1969-.
25 F de Zulueta, ed., The Liber pauperum of Vacarius, Publications of the Selden Society, 44 (London, 1927); Kuttner and Rathbone, 'Anglo-Norman canonists' (note 19) 286-288; Peter Weimar, 'Die Legistische Literatur der Glossatorenzeit', in Helmut Coing, Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol. 1, Mittelalter (1100-1500), Munich 1973, 252-253; R. W. Southern, Scholastic Humanism and the Unification of Europe, 2, Oxford, 1995-2001, 155-166.
26 Edited in Carlo Guido Mor, ed., Scritti giuridici preirneriani, Milan, 1935-1938.
27 Surveys of the different opinions are found in Weimar, 'Die Legistische Literatur der Glossatorenzeit' (note 25), 253-257; Cortese, Il diritto nella storia medievale (note 2), 45-55 and in Hermann Lange, Römisches Recht im Mittelalter (note 2), 1.388-391.
28 The argument for Southern France is convincingly laid out in André Gouron, La science juridique française aux XIe et XIIe siècles. Diffusion du droit de Justinien et influences canoniques jusqu'à Gratien, Ius romanum medii aevi, I 4 d-e, Milan, 1978, 42-78; reprinted in André Gouron, Études sur la diffusion des doctrines juridiques médiéval, Variorum reprint CS264, London, 1987, no. II. I am not entirely convinced by his attempts to date and place the Exceptiones and its related texts more exactly.
29 Rudolf Weigand, 'Die Dekretabbreviatio ‘Quoniam egestas’ und ihre Glossen',in Fides et ius. Festschrift für Georg May zum 65. Geburtstag, Regensburg, 1991, 249-265.
30 Prague, Knihovna Metropolitní Kapituli I LXXIV. Cf. Ant. Podlaha, Soupis rukopisů Knihovny Metropolitní Kapitoly Pražké, Prague, 1922, 175, and Johann Friedrich von Schulte, 'Über drei in Prager Handschriften enthaltene Canonen-Sammlungen', Österreichische Akademie der Wissenschaften, Philosophisch-Historische Klasse: Sitzungsberichte, 57, Vienna, 1867, 221sq.
31 R. W. Southern, Scholastic Humanism, vol. 1 (note 25).
32 Lack of familiarity with abbreviations of Gratian's Decretum would explain the attempts to argue that a manuscript such as St. Gall, Stiftsbibliothek 673, which clearly is an abbreviation, would be an earlier version of the Decretum, see Anders Winroth, 'Recent work on the making of Gratian's Decretum', in Proceedings of the Twelfth International Congress of Medieval Canon Law, Monumenta iuris canonici, series C: Subsidia, to be published in Vatican City (available on the internet at http://pantheon.yale.edu/~haw6/Recent%20work.pdf), and cf. Carlos Larrainzar, 'El borrador de la Concordia de Graciano. Sankt Gallen, Stiftsbibliothek MS 673 (=Sg)', Ius Ecclesiae 11, 1999, 593-666.
33 We have restored the reading of the manuscript L, since we otherwise cannot make sense of the 'a Seio' on the next line in the edition of Kantorowicz. The phrase 'uti optimus maximusque' is a legal formula, which is explained in D. 50.16.90 (in the title 'de verborum significatione': 'He who hands over a house in the terms 'uti optimae maximaeque sunt' does not say that it possesses any servitude but only that the house itself is unencumbered, that is, that it owes no servitude.' Cf. Adolf Berger, Encyclopedic Dictionary of Roman Law, Transactions of the American Philosophical Society, n. s. 43:2, Philadelphia, 1953, 610, s.v. 'optimus maximus.'
34 D. 16.1. 1. pr. Paulus: 'Velleiano senatus consulto plenissime comprehensum est, ne pro ullo feminae intercederent.'
35 D. 14.6.3.pr. Ulpianus: 'Si quis patrem familias esse credidit non vana simplicitate deceptus nec iuris ignorantia, sed quia publice pater familias plerisque videbatur, sic agebat, sic contrahebat, sic munieribus fungebatur, cessabit senatus consultum [i.e., Macedonianum].'
36 D. 14.6.1.pr. Ulpianus, quoting the SC Macedonianum: 'Placere, ne cui, qui filio familias mutuam pecuniam dedisset, etiam post mortem parentis eius, cuius in potestate fuisset, actio petitioque daretur.' In other words, the SC Macedonianum prohibits lending money to a son-in-power (filiusfamilias). The background to this law (passed under Vespasian, 69-79) was that Macedo, who as a son-in-powerhad borrowed money and, when his creditors pressed him for repayment, he murdered his father. In that way he himself became a paterfamilias and could dispose of the family's money, see Max Kaser, Römisches Privatrecht.Ein Studienbuch, Munich 1992, § 39 I 1.
37 D. 22.214.171.124 Ulpianus: 'Sed ita demum eis subvenit, si non callide sint versatae.'