BULLETIN OF MEDIEVAL CANON LAW NEW SERIES VOLUME 12 Published by THE INSTITUTE OF MEDIEVAL CANON LAW BERKELEY, CALIFORNIA 1982 Raymond of Pesiafort as editor: The 'decretaIes' and 'constitutiones' of Gregory IX In memory of Orio Giacchi At a time when the making of a new Code of Canon Law is underway and has been for many years the concern of canonists from all corners of the globe, it is always of particular interest to look into the past and see how the generations before us handled the task of recognitio - that twofold task of restating and reforming the law. The writer of the present pages has shared with the friend and colleague to whose memory they are dedicated the fascinating experience of laboring as consultores on the drafts of the new law to come." It seems there- fore quite fitting if in these pages I attempt to trace some details of the labors of another draftsman, one whose work had an immense importance in the history of canon law: St. Raymond of Peiiafort who some seven-hundred-fifty years ago undertook at Pope Gregory IX's request to make a new and definitive Book of Decretals out of the collections then in use for the body of papal rulings that had grown during the formative period of almost a century after Gratian. I It is common knowledge that Raymond was authorized by his papal master to suppress, shorten, and revise any text found in the Compilationes aniiquae. Scholars have been interested ever since the sixteenth century in identifying those alterations: from Le Conte in 1570 to Friedberg in 1881, editors of the authoritative text of Gregory's Decretales undertook more or less successfully to combine it with a reconstruction of each chapter by inserting, wherever pos- sible, with different type faces the words, sentences and paragraphs omitted by Raymond from his sources (partes decisae) or even from the sources of his sources. Where this was not possible, because Raymond had altogether changed the wording, editors' footnotes were the only remedy. The reader of such hybrid • This paper was originally written in 1981 fOl a Festschrift prepared in honor of Professor Giacchi by a group of colleagues on the occasion of his retirement from the chair of Canon law at the Universlta Cattolica del S. Cuore in Milan. After long illness, Orio Glacchi died on 16 April 1982. The paper will eventually be included in the memorial volume now in preparation at Milan. I wish to thank Professor Ombretta Fumagalli Carulli, the editor, for her kind permission to publish my study here in advance. At the time this Bulletin goes to press, the new Code has been promulgated by Pope John Paul II on 25 January, 1983. 66 BULLETIN OF MEDIEVAL CANON LAW reconstructions must not expect, of course, to have before him a critical or an original text.' Much work remains to be done to discover the reasoning that led St. Raymond in each case to alter the decretal texts as he prepared them for the official re- compilation. The obvious principle was spelled out in Gregory IX's decree of publication, Rex pacijicus: eliminating all that was repetitious, superfluous, contradictory, verbose." But Raymond did more than that: excisions, interpola- tions, or alterations of words and phrases occur on every page. As recent studies have shown, these 'editorial' changes often reflect criticisms of papal decisions by the glossators of the Compilationes antiquae or controversies of interpretation that arose in the schools; at times they reflect Raymond's own teaching in his manual for confessors (Summa de casibus).3 They are an impressive, and still largely unexplored, testimony to that give-and-take between the universities and the papacy which later centuries unfortunately did not know how to main- tain. Beyond the editorial work on the decretals and decrees of Gregory IX's prede- cessors, Raymond's commission included, in the pope's words, the task of adding 'constitutiones nostras et decretales epistolas, per quas nonnulIa que in priori- bus erant dubia declarentur '. If one reads these words attentively against the background of 195 new texts actually added by Raymond,' they mean more than an instruction .to fill some gaps': they indicate a concern with the in- trinsic consistency, the coherence of each canonical institution represented by a litulus of the book. They express, on a different level and with a different weight of authority, the same concern that had prompted Gratian a century before to produce a Concordia of discordant canons. St. Raymond's work in thus rounding out by new Gregorian rulings the re- written and condensed materials of the antiquae compilaliones has received much less attention from modern historians than it deserves. Friedberg in 1881 could not be expected to go beyond Potthast's Regesta in the search for Raymond's sources+ but even Lucien Auvray's publication of the Registres de 1 Cf. G. Fransen, Les decretales et les collections de decretales (Typologie des sources du Moyen Age occidental. ed. L. Genicot, 2; Tumhout 1972) 43; S. Kuttner, 'Some emendations to Friedberg's edition of the Decretals " Traditio 22 (1966) 481. • Corpus iuris canonici, ed. Ae. Friedberg, II 1-4. 3 See in particular S. Horwitz, 'l\lagistri and magisterium: Saint Raymond of Peiiafort and the Gregoriana', Escrilos del Yedat 7 (1977) 209-38; idem, 'Reshaping a decretal chap- ter: Tua nobis and the canonists " Law, Church, and society: Essays in honor of Stephan Kuttner, ed. K. Pennington and R. Somerville (Philadelphia 1977) 207-21. 4 For the computation of 195 see A. Van Hove, Prolegomena (ed. 2, Malines-Rome 1948) 359. II A. Potthast's Reqesia Poniifieum Romanorum inde ab anno post Christum natum MCXC V III ... were published in Berlin 1874-75. The copy owned by the present writer was copiously annotated in the 1890s by a French, or at least French-writing scholar with RAYMOND OF PENAFORT AS EDITOR 67 Gregoire IX (1896-1910) failed to stimulate the research which is long overdue.s In this paper we can only point out the lines of investigation that ought to be pursued in future critical studies on the consiitutiones nostrae and decretales epistolae as edited by Raymond for his papal master. (1) Decretal letters of Gregory IX's early years, between 1227 and 1234, do not seem to have circulated to any appreciable extent as far as we can judge from the manuscript tradition of extravagantes appended to earlier decretal col- lections," But for the most part their full text can be traced in Gregory's register, and in some cases in the archival tradition of a letter's recipients as well. When we take the first book of the Gregorian Compilation as a sample, we find that for only four decretals Friedberg, following Potthast, had been able to identify their original shape from recorded transmission in recipients' archives; both scholars missed identification in two cases where Potthast had calendared the full text elsewhere." In one instance they relied on a mutilated transcription from the register published by Raynaldus in his continuation of Baronius's Annals.t But a rapid search in Auvray's Registres shows that no less than thirty- one decretals from the first book were enregistered, and that for twelve of these entries even Auvray failed to notice their presence in the official eompilaticn.P references to, and corrections from the original Vatican Registers and other, chiefly Austrian and French archives. I cannot trace back the copy beyond the library of Professor Arnulf Kogler in Graz. 8 L. Auvray, Les reqistres de Gregoire IX (3 vols. Paris 1896-1910). The delay of the index, completed posthumously (vol. IV, Tables, 1955), made exploration of the work difficult for a long time. - Recently, X. Ochoa and A. Diez, in their analytical tabulation of the Constitutiones novae which Raymond extracted from the Gregorian Decretals after 1234 (S. Raimundus de Pennaforte, tom. C [Universa bibliotheca iuris, 1; Rome 1978) cols. 1007- 18), identified 21 of these 62 pieces between X 1.6.49 and 5.39.60 with entries in Auvray's Reqistres. 7 What could appear as an appendix of exiratraqantes to the constitutions of the Fourth Lateran Council containing numerous pieces by Gregory IX, according to the description of Leipzig MS 439, Iol, 38v-41v in Helssig's catalogue (IV 1, Die theoloqischen Handschri(ten [Leipzig 1935), p. 705), turns out to be merely excerpted from the official collection (micro- film kindly supplied by the Universitatsbibliothek). The seven letters appended to Camp. V in Cordoba, Cabildo MS 10 and published by G. Fransen and A. Garcia y Garcia, 'Nuevas decretales de Gregorio IX en ... Cordoba', REDC 15 (1960) 148-51. are all of later date (1236) than the collection. 8 The four decretals identified are X 1.6.50 (Potth. 8152), 1.16.3 (Potth. 9056), 1.31.19 (Potth. 8861 = post 9561), 1.33.16 (Potth. 8899). Identification was missed for 1.6.52 (Potth. 9542, but see 8348) and 57 (Potth. 9546, but see 8156). 9 X 1.11.16 (Potth. 8832). See infra, II (1). la In the list here given, an asterisk is placed before an Auvray number where that scholar missed identification with the corresponding decretal. I have not entered any Potthast numbers which are merely calendared from the Decretals, with uncertain date (1227-34), i.e. from Potth. 9526 on. The 31 decretals follow: X 1.3.32-36 (Auvray *213, 397, 434, 591, 626); 1.6.49-57 (Auvray ·122, 184 [cf. Potth, 8152), ·221, 274 [cf. Potth. 8343), 454, .655, 68 BULLETIN OF MEDIEVAL CANON LAW Collating of all this material with Raymond's text is needed for evaluating his activity as a draftsman.