Decretals and Decretal Collections in the Second Half of the Twelfth Century

DECRETALS AND DECRETAL COLLECTIONS IN THE SECOND HALF OF THE TWELFTH CENTURY

JACOBAJ. H. M. HANENBURG(Sneek)

On reading Dr. Duggan's book on twelfth-century decretal collections, I felt compelled to refer to the sources to check the fundamental assertions which constitute the background to its presentation of the early decretal collections of English provenance. As a result, I differ with Dr. Duggan on many points. It seemed advisable to publish my notes in a separate article *, maintaining for convenience's sake the order suggested by Dr. Duggan's book. The first part of the article, therefore, is concerned with the nature and authority of the decretal letter in the Decretum and its early commentaries (§ § I-4) ; special attention is given to the part played by Huguccio in the development of a doctrine (§ 5). The second part of the article will deal with the classification of the early decretal collections, assigning to the collections their place in the general history of canon law and accordingly pro- posing a new standard of dassification (§ 6). To illustrate the advantages of this new standard, the structure of the Collectio Parisiensis II will be examined more closely (§ 7).

I. The nature and authority of the decretal letter

§ 1. - Dr. Duggan quite correctly takes the Decretum of Gratianus as the basic text in the schools, the starting-point as well for the canonists who in glossing and commenting the De- cretum gradually developed their theories, as for the canonists who started collecting decretal letters embodying ius novum. Conse-

*) The reader will find the reviewof Dr. Duggan's book on pages 611 to 612 of this volume. 553 quently, he gives an exposition of Gratianus' treatment of the decretals, but considering the Distinctions 19 and 20 only 1), he left aside Distinction 3, and thereby missed the point. The point is that Gratianus does not distinguish between a papal decree and a papal letter. This simple fact reveals itself as soon as the connex- ion between Distinctions 19-20 and Distinction 3 is taken into account. In Distinction 3 Gratianus defines the ecclesiastical sources of law, dividing the canons or constitutions into conciliar canons and papal decrees. He does not mention the decretal letters there. After a digression he comes back to the conciliar canons and papal decrees in D.15 d.a.c.l, promising to state their origin and authority. Distinctions 15-18 fulfill this promise for the conciliar canons. So, in the Distinctions 19-20 one would expect him to explain about the papal decrees. He discusses instead decretal letters, but means thereby the decrees 2). Thus to Gratianus al- though he does not give an explicit definition, decretal letters are only a form wherein legislation by decree took place, not a separate species of ecclesiastical constitutions. The decretal letters as a separate species emerge with Alexander III, and by transferring this new meaning to Gratianus' epistolae decretales in the Distinctions 19-20, the decretists assumed for them the same authority 3).

1) Cf. Dugganp. 25 + N.2, 27-32. 2) The systemof Gratianusfollows fromhis dicta. D. 3 d.a.c. 11:" Ecclesiastica constitutionomine canonis censetur"; D. 3 d.p.c. 2pr: "Porro canonum alii sunt decretaPontificum, alii statuta conciliorum.Conciliorum uero alia sunt uniuersalia, alia prouincialia.... Hec quidemde generalibusregulis intelligeuda sunt"; D. 155 d.a.c. 1 : "... nunc ad ecciesiasticasconstitutiones stilum uertamus, earumque originemet auctoritatem,prout ex libris sanctorumPatrum colligerepossumus, breuiter assignantes";D. 19 d.a.c. 1: "De epistolisuero decretalibusqueritur, an uim auctoritatisobtineant, cum in corporecanonum non inueniantur"; D. 20 d.a.c. 1 pr: "Decretalesitaque epistolaecanonibus conciliorum pari iure exequan- tur" ; D. 21 d.a.c. lpr : "Decretisergo RomanorumPontificum et sacriscanonibus conciliorumecclesiastica negotia, ut supra monstratumest, terminantur". 3) For the definitionsof the decretistssee notes 4, 5, 8, 9.The differencebetween Gratianus' and Stephanus'epistolae is comparableto that between the epistolae apostolorumof the New Testamentand the epistolaeimperatorum of Roman Law (Dig. 1,4,1,1;Inst. 1,2,6).The adjective decretaliswas later considered to be a