CHAPTER 4 Jurisdiction and the : Gratian and the

The foregoing discussion of the activities of the Parisian masters and of cathe- dral chapters indicates that the model of the cathedral chapter offers much insight into the patterns of governance within the theological at Paris. Hence, it stands to reason that a further comparison between the cathedral chapter and the faculty of theology with respect to the policies and procedures used in correcting erring members should also prove to be a productive line of investigation. Ultimately, this comparison between the two corporate bodies should also provide greater insight into: 1) the nature and extent of the jurisdic- tion exercised by the faculty of theology, 2) the manner in which the theologi- cal faculty acquired this jurisdiction, and finally, 3) the procedures employed when the faculty conducted these investigations.

The Model of Shared Jurisdiction: The Contribution of Gratian

Consequently, the starting point for any discussion of the chapter’s or the faculty of theology’s authority must begin with the Decretum of Gratian.1 Yet, before analyzing this work, it is important to lay out some basic facts regard- ing its composition. The dating and composition of Gratian’s work is still a topic of great interest to scholars and one which still generates debate. Going back now almost twenty years, Anders Winroth argued that Gratian published

1 The literature on Gratian is immense, and it is impossible to include references to all of it here. The recent collection of articles on the history of edited and assembled by Wilfried Hartmann and Kenneth Pennington is indispensable. For a general introduction to Gratian and his Decretum, along with additional notes and bibliography, see Peter Landau, “Gratian and the Decretum Gratiani,” in The History of in the Classical Period, 1140–1234: From Gratian to the of Gregory IX, eds. Wilfried Hartmann and Kenneth Pennington (Washington D.C., 2008), 49–52. Anders Winroth has theorized that there existed two recensions of Gratian’s Decretum. For his study, see The Making of Gratian’s Decretum (Cambridge, 2000). For an alternative view and a summary of recent work on this issue, see Melodie Harris Eichbauer, From Gratian’s “Concordia Discordantium Canonum” to Gratian’s “Decretum”: The Evolution from Teaching Text to Comprehensive Code of Canon Law. (Ph.D. diss., Catholic University of America, 2010).

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004311336_005 104 CHAPTER 4 two recensions of the Decretum, an initial shorter version and, then, the final edition. According to Winroth, Gratian completed the first recension of the Decretum some time after 1139; as to the dating of the second recension, Winroth subsequently argued that the earliest unassailable date for its com- position is some time between 1155 and 1158; initially, in an earlier publication, he had also suggested 1150 as possibility.2 Other scholars, such as Peter Landau, while taking into account Winroth’s work, have suggested that Gratian began editing the Decretum around 1125; he then finished the first recension by 1139; and, finally, the father of canon law produced the present or, , edition around 1145.3 Most recently, Melodie Eichbauer has further contended that Gratian did not publish two recensions at all, but rather, that the work pro- gressively evolved, and, that each stage served a different purpose.4 Although the debates surrounding the composition and dating of the Decretum will not substantially affect the conclusions of this work, it is, nonetheless, important to bear this context in mind. In his Concord of Discordant Canons, Gratian included various texts that addressed issues related both to the judgment of cases and to the roles played by the bishop and his clerics in the conduct of those cases. Gratian himself did not comment on every text that he included; but when he did, his comments, or dicta, are instructive. In addition, the early to the Decretum fre- quently offered their own analyses and insight with respect to both the texts and Gratian’s dicta on them. Together, the views of Gratian and the glossa- tors provide a window into understanding the roles played by the bishop and the cathedral canons in the judging of cases during the twelfth and early thirteenth century. Moreover, this background is essential for understanding how the bishop and cathedral canons were to handle the adjudication of cases of heresy. With respect to the handling of cases, Gratian raised this issue in two princi- pal places in the Decretum. At Distinction 86, Gratian included a letter of addressed to the bishop of Corinth, entitled Si quid vero that stated a bishop should not readily believe reports of wrongdoing on the part of his

2 See Winroth, The Making of Gratian’s Decretum, 136–145, esp. 136 and 144. In an earlier work, “The Two Recensions of Gratian’s Decretum,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 83 (1997), 22–31, he dated the period between the first and second recensions to the years 1139–1150. I have consulted the online version of this article, which may be found at: http://mahan.wonkwang.ac.kr/link/med/law/canon-law/ gratianus/paper.html last accessed July 8, 2014. 3 Landau, “Gratian and the Decretum Gratiani,” 24–25. 4 Melodie Eichbauer, From Gratian’s “Concordia Discordantium Canonum,” 1.