The Laws of Late Medieval Italy (1000–1500)

Foundations for a European Legal System

By Mario Ascheri

LEIDEN • BOSTON 2013 Cover illustration: A court with a family case, at the beginning of a Digestum Infortiatum (concerning the end of a marriage), MS of the first decades of XIV century now at Library of Collegio di Spagna in Bologna, number 284, fol. 1r. With kind permission of CIRSFID: Interdepartmental Research Centre of History, Philosophy, and Sociology of Law and Computer Science and Law “Guido Fassò – Augusto Gaudenzi”, Bologna University.

Library of Congress Cataloging-in-Publication Data

Ascheri, Mario. [Diritti del Medioevo italiano English] The laws of late medieval Italy (1000-1500) : foundations for a European legal system / by Mario Ascheri. pages cm Includes bibliographical references and index. ISBN 978-90-04-21186-5 (hardback : alk. paper) -- ISBN 978-90-04-25256-1 (e-book) 1. Law-- Italy--History--To 1500. 2. Law, Medieval. I. Title.

KKH124.A82413 2013 349.4509’02--dc23

2013016575

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface.

ISBN 978-90-04-21186-5 (hardback) ISBN 978-90-04-25256-1 (e-book)

Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers.

All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher.

Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

This book is printed on acid-free paper.

CONTENTS

List of Abbreviations ��vii Preface to the English Edition �� ix Illustrations ��xiii Introduction �� 1

PART ONE THE IMPERIAL ROMAN LEGACY AND THE CHARACTERISTICS OF THE ELEVENTH CENTURY

1 Irnerius and the Roman Law of Justinian �� 9 2 The Multi-faceted Eleventh Century ��29 3 The Characteristic of Eleventh-Century Law ��65

PART TWO THE TRIUMPH OF JURIDICAL PLURALISM: CO-EXISTING LAWS AND THE FOUNDATION OF THE IUS COMMUNE (C. 1100–1250)

4 The Beginning of University Teaching and Groundwork for Corpus Iuris Canonici �� 107 5 Territorial Laws and Various Social Categories and Institutions �� 135 6 Protagonists of Theory and Practice �� 193

PART THREE THE TRIUMPH OF THE SYSTEM OF IUS COMMUNE (MID XIII–XV CENTURY)

7 Perfecting and Consolidating the System �� 245 8 Doctrinal and Institutional Developments �� 269 9 University Texts and Legislation �� 293

vi contents

10 Justice and its Institutions �� 321 11 The End of the Middle Ages �� 345

Appendix: An Annotated Bibliography of Legal History �� 361 Sources �� 373 Bibliography �� 383 Index �� 411

LIST OF ABBREVIATIONS

BIMAe Bibliotheca iuridica Medii Aevi (Scripta Aned octa Glossatorum)(see) BMCL Bulletin of Medieval Canon Law Cesn Centro europeo di studi normanni (Ariano) Cisam Centro italiano di studi sull’alto Medioevo (Spoleto) CNR Consiglio Nazionale delle Ricerche (Rome) DBI Dizionario biografico degli Italiani (Istituto dell’Enciclopedia Italiana, Rome) HQLERG Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte , I: Mittel alter, ed. Helmut Coing (Munich, Max-Planck- Institut für europäischen Rechtsgeschichte, Beck, 1973) Isime Istituto storico italiano per il Medio Evo (Rome) MGH Monumenta Germaniae Historica (Munich) MIC Monumenta Iuris Canonici (Vatican City, Biblioteca Apostolica Vaticana) MIS Monumenta iuridica siciliensia PL Jacques-Paul Migne, Patrologiae cursus comple- tus. Patrologiae latinae t(omus)…(Paris, 1844– 55; repr. Turnhout, 1989) Proceedings I, II, III… Proc eedings of the First, Second, Third… International Congress of Medieval Canon Law (after a vol. I, Louvain 1959, the following conferences started again with vol I–, 1965– in the series of MIC) QF Quaderni fiorentini per la storia del pensiero giuridico moderno QFIAB Quellen und Forschungen aus italienischen Archiven und Bibliotheken RHDFE Revue historique de droit français et étranger RIDC Rivista internazionale di diritto comune RJ Rechtshistorisches Journal RSDI Rivista di storia del diritto italiano

viii list of abbreviations

SDHI Studia et documenta historiae et iuris SG Studia Gratiana SS Studi Senesi TRG Tijdschrift voor Rechtsgeschiedenis ZRG Zeitschrift der Savigny-Stiftung für Rechtsge schichte (series of canon law or Roman law: kan. or rom. Abt.)

PREFACE TO THE ENGLISH EDITION

Thirtheen years after its publication in Italian, the presentation of this book to an English-speaking readership provides an opportunity for some new reflections and the presentation of further information in order to bring it up to date. The book introduces the reader to the various legal systems of the middle ages, and at the same time explains the individual complexities of these systems. In doing so, it aims to facilitate individual research into specific issues. It does not, however, consider in detail the various juridical institutions. Apart from a few digressions, neither does it deal with the private and public law of the time, even in the context of the most important and delicate matters. However, careful reading of the book should make the ancient texts more easily accessible to the reader. In effect, the book offers a compass by which to navigate the subject-matter. One needs to take special care when addressing what is written in the sources. It is always tempting to believe that a problem exists if and when such a problem appears to be revealed through the laws or by jurists. It is also all too easy to believe that no problem exists if no reference is made to it. As is the case in the field of theology, juridical doctrine has traditionally been extremely sensitive to contemporary problems. However, it is also the product of a series of specialized wisdoms, based on particular sources and governed by internal rules that influenced discussion, and were consequently able to shape doctrine according to abstract notions. On the ground, though, the realities were often somewhat different, or engaged in addressing certain issues earlier or to a greater extent than it would appear if one focuses on those matters that dominate university discussions.1 This is often the case even today, despite the fact that we are now governed by sources of knowledge that are less rigid than those of the past.

1 See for example, Ascheri, ‘Dottrine universitarie’; the ‘Presentazione’ of Ascheri, Giuristi e istituzioni dal Medioevo all’Età Moderna (secoli XI-XVIII) (2009) is also useful (for an up-to-date bibliography, see pp. x-xi). It is impossible to cite new titles here; but reference should be made to such sites as: http://vita-religiosa.de/Rechtengl.htm (an index of many sites of religious and civil law); http://www.clasma.org.uk/ (canon law); http:// web.upmf-grenoble.fr/Haiti/Cours/Ak/ (for Roman legal sources on line); http://www .storiadiritto.it/ (Italian Association of Legal Historians); http://www.iustel.com/v2/ revistas/ (for the e-legal history review, Madrid). For digitized books, there are now many choices: see http://www.europeana.eu/portal/. For printed catalogues reference should at least be made to the Catalogue of Books Printed in the Continent of Europe from the Beginning of Printing to 1600 in the Library of the Max-Planck-Institut für Europäische Rechtsgechichte, Frankfurt am Main.

x preface to the english edition

Many medieval legal doctrines have long been the subject of careful analysis. It is probably fair to say that the Anglo-American world has been particularly active in this field, especially in the context of the political and ecclesiastical history of the medieval period, as well as in the matter of practical application in the context of trial proceedings. In continental Europe, scholars have devoted more detailed attention to theoretical problems and issues concerning private law. There is an explanation for this. The Anglo-American world, governed as it is by common law, is less interested in individual problems of dogma and the private law of the middle ages.2 For continental European students, however, such matters are considered of fundamental importance, since they are perceived to form the basis of the law as it stands today: law that was once almost entirely based on the codes. Continental Europeans feel more distanced from the public law of the medieval period, because the French Revolution is seen to represent its clamorous and more or less final eclipse.3 The most important texts dealing with Roman law have been printed in English4 (but those of canon law only partially5). The same can be said for a number of introductions to the sources, including a number of recent works,6 and for several studies of the doctrines of medieval law from the point of view of their association with individual political circumstances.7

2 However, a classic work devoted to this subject has been translated from the original German: Franz Wieacker, A History of Private Law in Europe with Particular Reference to Germany (1995, original ed. 1967); see also Alan Watson, The Making of Civil Law (1985). Family problems have always attracted attention, see for example, Julius Kirshner and Suzanne F. Wemple, Women of the Medieval World: Essays in Honor of John H. Mundy (1987); James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (1987), and Thomas Kuehn, Law, Family and Women: Toward a Legal Anthropology of Renaissance Italy (1991). 3 See Paolo Grossi, A History of European Law (2010); see also Alan Watson, The Evolution of Western Private Law (2001). 4 Alan Watson, The Digest of Justinian (1985). See also Codex Justinianus (1932), Justinian’s Institutes (1987). For an on-line English translation, see Annotated Justinian Code (2010). For an introduction to the Roman legal system see Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History (1966) and David I. Ibbettson, A Historical Introduction to the Law of Obligations (1999). 5 See Gratian, The Treatise on Law (1993). For the earlier period there have been many recent studies dealing with the texts: Linda Fowler-Magerl, Clavis Canonum: Selected Canon Law Collections before 1140 (2005), Detlev Jasper and Horst Fuhrmann, Papal Letters in the Early Middle Ages (2001), Lotte Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140): A Bibliographical Guide to the Manuscripts and Literature (1999). 6 See the analytical research by Charles M. Radding and Antonio Ciaralli, The Corpus Iuris Civilis in the Middle Ages: Manuscripts and Transmission from the Sixth Century to the Juristic Revival (2007). 7 Joseph Canning, A History of Medieval Political Thought, 300–1450 (1996), and, by the same author, The Political Thought of Baldus de Ubaldis (1987): see the review by Ascheri in The Journal of Modern History (1990), 399–401. For civilians see, for example, Lawrin

preface to the english edition xi

Many other studies have looked generally at the historical development of Roman law,8 including the course it took in England,9 as well as at the characteristics of canon law.10 Others have also considered individual doctrines, in an attempt to understand the connections between these and the typical legal traditions of the Anglo-American world. There are, for example, a number of interesting studies on Magna Carta,11 as well as on the standardized institutes of trial proceedings in the light of their constituting an essential part of the western juridical tradition.12 In particular, it should be noted that English-speaking scholars have carried out significant research on canon law in general.13 They have also been engaged in producing a number of learned manuals and monographs on individual sources,14 as well as concentrating on a number of particularly important texts.15 Moreover, the rich tradition of studies also associated with medieval canon law within the English-speaking world has recently given rise to a number of detailed publications concerned with various matters which would without doubt have been unthinkable just a few years ago.16 The other avenue of research worth mentioning concerns the history of justice in the context of its administration.17 This is a theme that has long

Armstrong, Usury and Public Debt in Early Renaissance Florence: Lorenzo Ridolfi on the ‘Monte Comune’ (2003). 8 Peter Stein, Roman Law in European History (1999). Some institutions of Roman private law are now suggested in the context of creating a new European common law; see for example Martin J. Doris, ‘The Continued Resonance and Challenge of the ‘Ius Commune’ in Modern European Contract Law’ (2006). 9 Francis De Zulueta and Peter Stein, The Teaching of Roman Law in England around 1200 (1990). 10 Especially Richard Helmholz, The Spirit of Canon Law (1997). 11 Richard Helmholz, ‘Magna Carta and the Ius Commune’ (1999). 12 Besides Kenneth Pennington, ‘Due Process, Community, and the Prince in the Evolution of the Ordo Iudiciarius’ (1998), see James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2007); see also the following footnote. Among German studies see Lotte Kéry, ‘Inquisitio – Denunciatio – Exceptio: Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht’ (2001); see also the international collection L’enquête au Moyen Age (2009). 13 After James A. Brundage’s Medieval Canon Law (1995) see the very important Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX (2008); there is an interesting collection of studies in Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington (2006). 14 See fn. 5 and Giorgio Picasso, Sacri Canones et Monastica Regula (2006). For local developments see the rich volume (partly in English) Von der Ordnung zur Norm: Statuten in Mittelalter und Fruher Neuzeit (2010). 15 See esp. Anders Winroth, The Making of Gratian’s Decretum (2005). 16 For example, Bishops, Texts and the Use of Canon Law around 1100: Essays in Honour of Martin Brett (2008); Readers, Texts, and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl (2009). 17 Among recent Italian studies see Massimo Vallerani, La giustizia pubblica medievale (2005); Elena Brambilla, La giustizia intollerante: Inquisizione e tribunali confessionali in

xii preface to the english edition been overlooked by an Italian historiography more traditionally concerned with doctrine: justice being viewed as a concept rather than a daily, administrative issue. Now, finally, and thanks to the stimulus provided by Anglo-American and French historians, this particular theme has been receiving considerable attention.

This book was first published in Rome in the year 2000 by Carocci Editore, who granted very generously permission to adapt it for an English edition. With this aim Anabel Thomas, an art historian who loves Italian history, worked on a first translation during 2010, when the Preface was also prepared with a select bibliography (updated to that date). The translation was then refined by Sara Elin Roberts and the text was cut in places by the Editor to make it read more smoothly for a foreign reader. To John Hudson and the other patient people like Marcella Mulder who contributed to this difficult result, I want to offer my warmest thanks. I can now add that many essays from my work following 2000 can be found in my forthcoming collected studies published by Vico Verlag (Frankfurt/ Main) under the title: Dal diritto medievale ai codici moderni: un millennio tra istituzioni, giurisprudenza e diritti locali (secoli X–XX).

Europa (secoli IV-XVIII) (2006); Diritto particolare e modelli universali nella giurisdizione mercantile (secoli XIV-XVI) (2008); Mario Ascheri, ‘Between Statutory Law and Learned Law: Delay in the Early History of the Medieval Italian Communes (and Beyond)’ (2010).

illustrations xiii

Illustration 1. The first titles of the Justinian’s Institutes (De iustitia et iure, and De iure naturali et gentium et civili) in the critical edition produced by Paul Krueger and Theodor Mommsen (re-published in Berlin, 1962).

xiv illustrations

Illustration 2. Arbor feudorum, a mnemonic and stylized diagram of different kinds of enfeoffment, that accompanies the Libri feudorum in the 1592 Venetian Volumen legum (Giunti publisher); it precedes (coll. 535–552) the detailed decla- ratio of the same arbor produced by an early sixteenth-century jurist from Montpellier, Pierre Rebuf, which he dedicated to the king of France.

illustrations xv

Illustration 3. A page taken from a sixteenth-century edition of Justinian’s Codex with the Accursian Gloss – the individual glosses being assembled on the two margins (Lyons 1558, apud Hugonem at Porta). (Continued)

xvi illustrations

Illustration 3. (Cont.) This concerns the section in the Code under the heading Ne filius pro patre (Cod. 4.13), where, as we see, emperor Barbarossa’s Habita, which was fundamental to the history of the universities, has been added to lex 5 (Ex patroni). Each legal text is preceded by a cursive summary of its contents (h.d. means hoc dicit), taken from the works of famous jurists postdating Accursius. The first is Sal., that is the Bolognese Salicetus, whereas the second is Bal., clearly Baldus, a member of the famous Ubaldi family in Perugia. In the external margin there is one of the many characteristic philological notes lato sensu that by that date adorned legal texts. In this particular note only the inversion “in quibusdam codicibus” is recorded, although it was more commonly the case that the best readings proposed by the humanist jurists were referred to.

INTRODUCTION

In the past there has been a widespread conviction in the cultured international world that the medieval period of Italian and European history provided one of the most obvious foundations for the world as it is today. In the recent construction of new European institutions, there was an official preference to go back even further in time, to the Carolingian age, to find the true roots of today’s Europe of ‘nations’. Nevertheless, a firm conviction remains that the juridical formulations of the late medieval period in particular, were amongst the most significant unifying elements of European culture. That such formulations are also worthy of study is, however, anything but agreed amongst specialists of medieval history. This is particularly noticeable in Italy, the country where – for reasons that will be explained later on – the fracture between ‘general’ culture, or education, and juridical culture is not only very marked, but also of very long duration. One could say, however, that this fracture is in the process of being mended. Indeed, in its own small way, this book itself, along with others that will be indicated, could be construed in that light. Suffice it to say that in common with many other medievalists, the present author is of the opinion that juridical matters, which are at times so complex that specialized preparation is required to understand them, provide an excellent vehicle for formation and training. They also offer ways to redis- cover in the contemporary world certain characteristics and problems that were already present in the late middle ages. We would also do well to remember that the most numerous and authoritative documentary records surviving from those centuries (notarial acts, public deliberations, statutes and so on) are juridical in origin and character, and that the Roman Church – at the centre of our medieval history – was itself a leading producer and consumer of juridical norms. It is true, however, that law represents just one aspect of life, and that it does not register everything – especially in an age like the medieval period, when public rituals had such enormous significance. This was a society which was in large part ritualistic and traditional, with a slow rhythm of life. Part of the law (much more than is the case nowadays) was not written down, and prevailed for a long period of time and in certain areas without official certification as a result of repeated use in contracts between individuals of humble rank, and in those drawn up between

2 introduction powerful institutions, such as chivalric knights and the nobility. The status of those individuals was clearly and immediately perceived in the public domain without the need for written norms. Today many, if not all people would say that they are different from that distant world. However, a considerable number of juridical problems created during the medieval period and defined in a certain way continue to make their presence felt in the contemporary world, which – trumpeting its own virtues – has covered a considerable amount of ground since that time, but has not always exceeded that other world in concrete terms. Why, then, this widespread lack of interest in the law? It seems obvious that law is one of the manifestations of a civilization, and for this reason alone one cannot rationally claim to really know a world without learning something about its culture, and more generally its juridical makeup. Such a concept is, however, far from obvious in our own educational system. The Italian cultural tradition (especially that consolidated from the beginning of the twentieth century) has resulted in a reaction against juridical power, which has been devalued both by an idealistic climate and by the cult of Marxism. In cultural terms, law has been seen as less important subproduct, and as such devoid of its own dignity in respect of political and/or economic and/or religious authority. As a result, for many people, law has been considered negligible in an historical context; as pure ‘form’, an object of formalistic drills. At the same time, there has been an increasing sense that it is enough to engage with the culture and with the political power in order to reform society in some way, because having once gained control of the institutions, everything else follows. The ‘law’ of the past is a jumble of very different norms that make any overall definition problematic. Precise definitions have in any event always been difficult. Norms change much more now than they did in previous times. There are legal norms that are easily identifiable, because they are formally gathered together in very clearly categorized acts, such as statutory law. But there are also norms associated with particular ‘sources’, which are considered inferior, and which are often difficult to properly comprehend: the notorious ministerial ‘circulars’ constitute one such example. There are also some norms associated with sources that are essentially informal, such as some customs; judicial decisions and the works of academic jurists, which may thus not actually be officially recognized. The so-called Anglo-American and Scandinavian ‘realism’ has signalled that ‘real’ law is not so much that which can be read in legal texts anymore.

introduction 3

All of this creates a world which is now almost impossible to fully understand, so much so that in certain circumstances it can invoke claims of ignorance; notwithstanding the existence of a very firm principle (as ignorance of the law is no excuse). It is a world that is impossible to deal with without the help of ‘experts’ in various areas, and according to criteria it is in large part formed independently from the rules, and anything else which is left over is a result of the production and interpretation of the rules themselves. Universal respect and recognition of the law, which were once thought to be the defining characteristics of evolved contemporary societies, are values coming increasingly under attack. The same may be said of the concept of the enduring nature of the law, in a world that has ended up having both relatively stable legal texts (the codes) alongside pronouncements on the part of the judiciary that are far less predictable. All this has occurred in a particularly painful and public way in Italy. But it is not unrelated to what has happened elsewhere, associated, as it is, with a pervasive characteristic of modern states (especially those of continental Europe), where the state establishes its presence throughout territory or even in all places, and makes it its business, as never before, to get involved with any and every problem, provided that it is considered of collective and ‘social’ significance. This has resulted in the centrality of the state and its legislation in the modern age: the Moloch that has prematurely and in an untimely fashion come to dominate the scene, with the result that we are significantly influenced both in our everyday behaviour and in our reading of the past. The latter is particularly important, since the very origin of such centrality lies in the past. Whether one is more or less satisfied with this state of affairs, one cannot avoid the process of growing up and being culturally educated within this environment. Thus, even without particularly engaging with the law, one tends to unconsciously understand the past in terms of contemporary categories of law, which are each day presented by the ‘media’. There is, moreover, a tendency to read the past in a teleological way – ‘seeing’ more easily in that past the seeds of our own world, or what is missing in it, rather than the past’s own characteristics. It is even easier to fall into this trap when considering the juridical world, because, for example, the vocabulary of the past is at times the same as that of today. As a consequence it is easy to see a continuity which is in fact only imagined, or to discover in the past ‘wonders’ that were subsequently considered lost, yet now must be considered as ideological augurs for the future. The language of politics in particular, being the language of power, borrows in large part from the juridical

4 introduction world, or at any rate needs to be translated into juridical terms. This then, is the language that historians find in documentary sources, and which they use at times without realizing either its origin or its juridical significance. The same historians also sometimes give juridical weight to notions created outside the law, thus once again provoking various anachronisms or incongruities. It is normally the case that juridical issues involve problems of power that are expressed through language. This is equally necessary not only for a) expressing the law, but also for b) interpreting it and finally, c) for its application. But this in turn raises great many problems that are characteristic of the law. An earlier state of affairs can assume a new name over time, but to what extent are we capable of identifying the affinity between the two? There is no doubt, for example, that the patterns of loyalty that bind together the vertices of state power in contemporary political systems (and ever more so, the more closely they relate to majorities and presidential patterns) have an indisputably feudal odour (‘if you come with me, you will have protection and benefices’!). But is this enough from an historical point of view to describe our society which is based on the idea of spoils as feudal? The answer is ‘certainly not’, just as the oaths of loyalty that we encounter in the past are not sufficient to allow us to speak indiscriminately of the society of the time as being feudal (as was claimed by historians in the past). A fair degree of prudence is required, therefore, just as one would wish that care be taken in the establishment of categories that are so generic as to be useless, unless set within a specific context. If one were to follow the historiographical language now fashionable, all the cities in the past that were not under the strict rule of a prince would always have been in one way or another subjected to ‘oligarchical’ regimes, consisting of consuls or elected communal dominions, etc. To think that whether we were authorized to use such new terms as ‘the state’ was questioned in the past. The problem is that law in its politically more demanding aspects becomes part of the official culture, and thus also of a society’s ideology. It therefore tends to underpin the dominant mindset – and as a result gets mixed up in part with moral and customary norms, the common sensibilities. But it also tends to be presented as such by anyone interested in those issues, prompting both expectations and rejections that are more or less subjective. History is often appealed to in respect of current events, and this is favoured by the nature of law itself, which is ambiguous for being at one time a tool of oppression by the strong and at another providing for the emancipation and protection of the weak. But the law is also a tool

introduction 5

that needs to be seen to work through its practical application, without having to rely on tempting proclamations about solidarity and/or progression. History allows us to speak of the ‘new’, but it can itself be a tool of mystification. Think, for example, how once upon a time power had to present itself as an agent of continuity in order to establish the legitimacy of government, and how at a certain point and in certain contexts, as, for example during the time of the French Revolution, it has instead been in discontinuity that consensus has been achieved and is still achieved in Italy. It was this same desired and supposed discontinuity that significantly changed the notion of interpretatio (a topic of later discussion here), reducing it, in the context of the juridical positivism of the nineteenth and twentieth centuries and of the dogma of the separation of powers, to the mere reading of what should in fact have been established in the written norm, as if by edict. All of these issues are raised here not as an attempt to offer a syntheti- cal introduction to law, but instead to throw light on its complexity and its fundamental problems. It is a world that does not allow for simplistic surveys or superficial evaluations, a tendency which is today unfortunately all too common. If only because of this, and leaving aside the law of the late medieval age which, as we shall see, is in many respects still close to us, we should occupy ourselves with law. But it is now time to look at our particular history in detail.

PART ONE THE IMPERIAL ROMAN LEGACY AND THE CHARACTERISTICS OF THE ELEVENTH CENTURY CHAPTER ONE

IRNERIUS AND THE ROMAN LAW OF JUSTINIAN

This survey takes as its starting point the general premise that the period between the early and later middle ages was one of considerable change, with profound consequences. From the point of view of legal history, one of the many events that indicated a turning point around 1100 was the initiation of a specialist kind of instruction now known as university teaching. University teaching rapidly became a central factor in legal experience, both during the late medieval period and thereafter, at least in continental Europe. It also exerted considerable influence outside the field of law: in public discourse, and in the context of political and institutional procedures. It is, however, important to set university teaching in its proper context, so as not to exaggerate this significance on account of hindsight.1

1.1. Justinian’s Corpus Iuris Civilis

It is well known that the triumphant Justinian, Emperor of Byzantium from 527 to 565, was anxious to re-establish the Empire’s power. In pursuit of this, he resorted not only to the use of arms, but also to the power of the law. Justinian was intent on using legislation as a way to establish unity and consistency in an empire whose inhabitants (albeit assuming Roman citizenship following the edict of Caracalla in 212) were influenced by many different regional cultures with many different legal procedures: the so-called ‘vulgar Roman law’.2 They had also been subjected to a number of upheavals as a result of conflicts, violent at times, within the Christian faith, the only state religion since the edict of Thessalonika in 380.

1 In this context it is useful to consult a classic like Charles O. Haskins, The Renaissance of the Twelfth Century (1927); more recently, see Jacques Verger, Il Rinascimento del XII sec olo (1997); other works to consult are Ennio Cortese, Il rinascimento giuridico medievale (1992); Renaissance and Renewal in the Twelfth Century (1982) is also useful, particularly Stephan Kuttner, The Revival of Jurisprudence. 2 There is an enormous bibliography in this context; for a recent work see Mario Talamanca, ‘L’esperienza giuridica romana nel tardo-antico fra volgarismo e classicismo’ (1985).

10 chapter one

Several pieces of legislation were drawn thanks to the work of a number of special commissions formed by high-ranking imperial officials and professors of law. The first of these was a Codex issued in 529, which gathered together and harmonized the leges or imperial constitutions of the late imperial period. These dated from the period during which the Emperor had become the only source of legal authority, the Senate having been displaced and the assemblies of the Republican age no longer functioning. The Code of 529 has not survived. However, we can imagine much of its content, given that we know well or are familiar in part with those texts that the Code updated: the Gregorian and Hermogenese Codices, and the most important and more recent Code of Theodosius. Further information resides in a later code issued by Justinian himself: a revision of the 529 Code, executed in order to bring it into line with more recent imperial legislation. Such legal collections have great significance, because they indicate how the emperors tried, through a series of prescriptive laws, to organize and direct the public and private life of a great empire in crisis. We are thus faced with a collection of very heterogeneous pieces of legislation, some of which concerned churches and monasteries, as well as bishops who became significant imperial officials as a result of some of the same laws. For centuries, these laws constituted a unique model for the western world. These compendia, as well as containing many specific significant details, have given rise to the adoption of the term ‘code’, indicating a more or less organic collection of juridical decrees issued on the initiative of a political power.3 Indeed, it is worth pointing out that from those drawn up by Napoleon in 1804 and onwards, modern codes were much more ordered, systemised and rational, as a direct result of knowledge of the early texts.4 We have adopted the word ‘lex’ from the same sources, as a generic term for ‘law’, that is the formal measure laid down by a body invested

3 This term is normally adopted in the context of a bound volume consisting of a number of pages, and regardless of its contents. When writing at the time of Charlemagne, Paul the Deacon demonstrated the extent to which the Digest was remembered as a book of laws, in other words, code. He refers to the two thousand books from which ‘the laws of the individual magistrates’ were compiled as ‘Codicem Digestorum’. Likewise, in the case of the Novels, he uses the term ‘code’ (History of the Langobards (1907), book I, chapter 25). 4 Giovanni Tarello considered the various threads of juridic rationalism that have been woven together in modern codes in his Storia della cultura giuridica moderna (1976), a volume that has now acquired classic status; more recently, Ugo Petronio has returned to the question of ideology in modern codes in his ‘La nozione di Code civil fra tradizione e innovazione (con un cenno alla sua pretesa ‘completezza’)’ (1998).

irnerius and the roman law of justinian 11

with legislative power. The same applies for the term ‘constitution’, which (already in use by the Greeks and with a meaning closer to its current one) became more or less synonymous with the term ‘law’ during the medieval period, on the basis of the Roman tradition. Reference was made, for example, to the imperial constitutio and consequently to the constitutio nes of the popes, who in some aspects acted in imitation of the Roman Empire.5 Amongst other terms inherited from earlier vocabulary, and now very familiar, we find ‘decree’, ‘rescript’ and ‘edict’ – all used by Justinian and indeed earlier to indicate specific kinds of imperial constitutions. Justinian’s collection systematised the immense corpus of imperial constitutions of previous centuries, carefully selecting those that should remain in force. At the same time, the constitutions were abridged, leaving only the operative part, or enacting terms, and omitting the usual nar- ration included in preliminary statements that explained why the text had been drawn up as well as its particular scope. Once the first Code of Justinian was in force, another commission under the guidance of Tribonian, the questor of the sacred palace brought this vast project to a rapid conclusion, something which had been attempted in vain by Theodosius II during an earlier period. In 533 a huge volume called Digesta in Latin, and Pandectae following the Greek pan décomai (meaning a collection of everything), came into existence. The Digest contained a selection of the best existing material based on work produced many centuries earlier by Roman jurists living in the capital city of Rome, as well as thereafter by those living in the provinces. These were the jurists that modern students dubbed the ‘classicists’, by dint of their having lived during the three centuries that are regarded as the most glorious for the formation of Roman law. These individuals, often highly cultured and with distinct personalities (so much so, that we have been able to reconstruct the inherent characteristics of most of the main protagonists), were invested with huge social prestige notwithstanding their status as private citizens. They produced a number of works with various titles such as Institutiones (works which were essentially introductory in character),6 Commentaries (such as

5 The broad intrepretation of the term constitutio (as a word) has resulted in the under- evaluation of the constitutional experience (a ‘concrete fact’) of the medieval period: see, most recently Mario Dogliani, Introduzione al diritto costituzionale (1994), which oscillates between the history of the term and the course of events on the ground. 6 We could place the oratoriae Institutions of Quintilianus and Lactantius’s divinae in this category.

12 chapter one those drawn up in respect of the praetorian edict, or Edictum),7 and Responses (Responsa), which dealt with opinions voiced in respect of specific problems arising from judicial practice. All of these works documented the rules and problems of the law as developed in Rome over the course of a number of centuries; a development that usually depended not so much on intervention by jurists, as on individual pieces of legislation – whether those arising from the assemblies (in the strict sense of the word leges) or from consultations of the Senate (Senatusconsulta, which at a later date came to be considered laws). They thus acknowledged past procedures, but were at the same time constitutive in that they documented Roman law whilst simultaneously contributing to its development by adapting it to satisfy contemporary needs. Up until the classical period (in other words that preceding the legislative absolutism of the emperors, who were intent on quashing all other sources of legislation), Roman law developed only marginally as a result of individual laws. At that time, statutes were regarded as exceptional instruments of intervention for the regulation of society; actions that were both authoritative and perceptive, and that invested a traditional regulatory body established according to long-standing mores with procedures rooted in popular customs and beliefs. The task of handing down these laws – duly considered and, where necessary, with almost imper- ceptible modifications – was assumed by the jurists. These individuals were enthusiastic specialists engaged in the preservation of the body of traditional law, who, thanks to their education and experience of juridical and social problems (the iurisprudentia that we now, like medieval teachers, call doctrine), knew how to render such laws applicable to their own time. These legal ‘oracles’ prompted a rich series of works that were carefully preserved precisely because of their widespread use over and above the actual event that gave rise to them. Their significance rested largely on the fact that they acknowledged the past whilst at the same time being themselves models of juridical reasoning. Thus, these works were considered as an expression of Ius, a term that in the broadest sense stands for all legal provisions, including statutes.

7 The text of a commitment whereby the Roman magistrate annually indicated changes to the trial process that were to be conceded to litigants. Once formed as the Edictum per petuum, the text became part of the so-called ius honorarium.

irnerius and the roman law of justinian 13

The Digesta, or Digest, gathered together in fifty books about forty thousand passages from about forty jurists whose works constituted all that was left of ancient Roman ‘doctrine’. The term Digest is traditionally used to mean a summary of learning, a kind of encyclopaedia. The Digest is thus a collection of jurisprudence, clearly ‘classical’ because it derives from the aforesaid period, and arises from iuris prudentia, the science of law, resulting from specialist reflection on juridical issues undertaken over the course of a number of centuries by Roman jurists. In summary, the Digest was commissioned as a collection of iura, quite distinct from leges, the authority of which was legislative (directly descended from imperial law) rather than doctrinal. However, these iura were themselves solemnly invested with imperial authority, which made their claim to validity at once different and more powerful. The reason was not because they were more doctrinal or imbued with greater wisdom, but because they were indirectly legislatorial, by dint of being traceable to the fiats of individual sovereigns. The retrieval of the iura after so many centuries was useful and possible because it concerned tracts dealing mostly with private law: the most established kind of law that was least susceptible to variation. This was the law that covered personal relationships. Once a rational solution was found, there was no need to elaborate further arguments, so long as the structural conditions under which such individuals were operating remained constant: that is, so long as there was a well-defined social order. There were also the two books known as the terribiles – so-called because they dealt with penal law (books 47 and 48). The terribiles clearly protected public interests in as far as they were concerned with the peaceful co-existence of individual groups. But they were also directed towards private individuals, operating as a deterrent with their threat of punishment, including the most dreadful retributions: something that was very common in the Byzantine world. By contrast the Code, whilst also containing many regulations directed towards private individuals, accurately reflected the extraordinarily complex machinery of the Empire during its final centuries. It is worth noting, for example, that the state established firm control over the collegia, or corporations. Subjected to public authorization and surveillance since the time of Augustus, these corporations had by the late imperial period assumed a strong public-law configuration, whereby individual members were bound by inheritance to the place and trade of their predecessors. Special conditions were also established for individual categories such as the clergy (with their special episcopalis audientia, or bishop’s Court) and

14 chapter one the military, as well as many others, for example in the field of taxation. This not only resulted in specific jurisdictions, but also contributed to an overall legislative complexity comparable to that of today. By the late imperial period, state laws covered areas which weren not covered in the past. For example, from the time of Diocletian – and thus not yet as a result of the influence of Christian culture – the law had intervened to condemn mathematics. Therefore in a short time astrology, and more generally the desire for knowledge – exalted since the time of Cicero and Seneca – became punishable by death, being regarded as a betrayal of the ‘determination of natural laws’. The first regulation in this respect was included in the Code of Justinian (Cod. 9.18.2), and we also know of two others from the earlier Code of Theodosius.8 The law (the quoted imperial constitution) forbade the sale of children as it offended the humanistic sensibilities which had their deep roots in Greco-Roman culture. According to at least one imperial constitution, such practice was comparatively widespread during the late imperial period. The Digest was difficult to access, both in terms of its size and its technical formulations. Given its relative archaism, it was also by its nature not always up-to-date or easily understandable. This was more noticeable in an environment dominated by Greek language and culture, as was the case in the Byzantine period. Justinian was thus particularly concerned to bring about a succinct synthesis of Roman law in which leges and iura were considered jointly, and which would in addition be especially appropriate for first-year university students. This became known as the Institutiones, or Institutes, which took as its model the earlier manual of the same title drawn up by the jurist Gaius. Justinian’s aim was achieved during the same year of 533 with the const. Imperatoriam maiestatem, followed just a few days later by the famous constitution known as Omnem (from its initial word), issued to the professors of Constantinople and Berito, with instructions that they should establish a clearly-defined system of teaching. As we shall see, investing centres of learning with the power to formalize and communicate imperial provisions set a model for the future. In compliance with imperial wishes, the iuventus legum studiosa, or youthful legal studies, were in the first year enhanced by the

8 See Marie Theres Fögen, ‘Sapere e potere nella tarda antichità’ (1993): the desires of God and the Emperor could not be plumbed by even the most sophisticated means: legi tima scientia was merely any knowledge that had no business to be concerned with such arcane matters.

irnerius and the roman law of justinian 15

comprehensive text of the Institutes. The ensuing three years were dedicated first to the demanding Digest, with an emphasis on the problems of private law and thus also juridical practice. Attention focussed finally on the Code, and those areas most pertinent to imperial organization and desires. This was the crowning phase of legal studies. In establishing such a progression through the individual texts, it is possible that the intention was to produce greater awareness of, and sensitivity to, potential differences of opinion existing between the Digest and the Codex. Given their brief, there can be little doubt that the commissioners would have needed to manipulate (interpolate is the technical term adopted by students of Roman law9) the texts inserted into the various collections, in order to eliminate any obvious contradictions. This must have happened frequently, given their diverse provenance and date. It is also clear that Justinian wanted to avoid any further changes being made to the texts approved by him, since for him these were definitive versions. Analysts of the texts were thus only allowed to make cross-references to equivalent passages, so that Justinian himself could examine any conflicting points, and if necessary eliminate them. However, clearly, the huge amount of work covered in such a short space of time could not realistically have resulted in a systematic or complete ‘purging’ of contradictions, many of which in fact remained. The new Codex, which was arranged in twelve books with the title repetitae praelectionis (because of its content and nature: ‘alternative readings’), was published in 534,10 but even this did not deter the prolific legislative efforts of Justinian, who was already thinking of the novellae constitutiones (i.e. new statutes). Completed within a short space of time and mostly in Greek, each one of these had to be included in new compendia. One of them, the Epitome Juliani (so-called after its compiler, possibly a professor of law in Constantinople), contained 124 ‘Novels’ summarised in Latin and organised in chronological order.11 Another, perhaps deriving from the scrinium (the library of the governor (Esarca) in Ravenna), was entitled Authenticum. This latter contained a larger number of ‘Novels’ (134) and was once again in Latin. It also reproduced the

9 Such work was established by humanist philologists during the fifteenth century; an initial work worth consulting is Luigi Palazzini Finetti’s, Storia della ricerca delle interpo lazioni nel Corpus iuris giustinianeo (1953). 10 Not handed down in ancient manuscripts, except in fragmentary form in manuscripts now at Verona and Cologne. 11 Iuliani epitome latina Novellarum Iustiniani (1873).

16 chapter one originals in their entirety, although the translation is at times too literal to be satisfying.12 Justinian’s complex compilation represented a summary of all Roman legal practice from the Republican period onwards. It was in effect a kind of legal history, filtering through that which was regarded as still relevant from law formulated up to half a millennium earlier. And it was the mining of a great inheritance in an attempt to assert the importance of the newly restored Empire (renovatio Imperii) of which Justinian boasted. This was an inheritance which, at the same time, was being rewritten, predominantly through the ‘Novels’. Significantly it absorbed changes introduced by Christianity. For example, Nov. 37 and 115 (stipulating as they did that sons of heretics could be disinherited) were directly concerned with the repression of heresy. In this context, not only Judaism (Nov. 37) but also all heretics (Nov. 45) could be severely punished, a fate all wished to avoid. Simony, or the acquisition of an office through corruption (Nov. 6, 123, 137; for the iudices see Nov. 8) fell into the same category. At the same time, fiscal privileges and legal advantages were offered to churches whose property was protected (Nov. 79, 83, 123, 131), provided, naturally, that the interests of the state did not require sacrifice of the same (Nov. 46). Such legislation was to have major consequences during and after the middle ages. Furthermore, the texts are frequently punctuated by theoretical medi- tations, and, in particular, by considerations of the significatio, or significance of the words or rules, despite the fact that it was generally recognized that ‘All definitions in civil law are dangerous’.13 It is worth quoting some examples to show their efficacy, as well as their heterogeneity: When encountering an obscure text, take little heed of it; Interpretation should always be balanced in favour of freedom; In each consideration of liberty, the smallest should be considered along with the largest; Marriage should be constructed on the basis of agreement, not sex; The partner of my partner is not my partner; You cannot transfer to another any greater right than that which you possess; Applying one’s own right can not constitute an abuse;

12 Corpus iuris civilis (1870). 13 ‘Omnis definitio in iure civili est periculosa’: this is in fact a regula antiqua found in Dig. 50.17.202.

irnerius and the roman law of justinian 17

No benefice can be conferred without agreement; In questions of law, the specific is the exception to the rule; In all matters, but especially in the case of the law, equity should be respected; Liberty has no price; What is against reason can have no consequence in law; Silence has no precise significance; In the case of doubt, a favourable interpretation is always more sure and just; Disobeying officials is bad.14 On the other hand, prior to finishing with 211 rules of the ancient law (De diversis regulis iuris antiqui, in Dig. 50.17, with 211), the Digest contains a heading concerning the meaning of words (De verborum significatione, Dig. 50.16), formed out of some 246 passages. These encouraged conceptual precision in the terminology of private law, but also included guidance applicable to public law. Other significationes, or significations, such as ‘great negligence is a fault and great fault is deceit’ in Dig. 50.16.226, approximate to regulae, or rules. There are also frequent references to natural justice and the ‘law of the people’, both of which had already been subjected to close scrutiny during the Patristic period. The Institutes opens with the heading De Iustitia et Iure (of Justice and the Law).15 This is followed by Natural law, the law of the individual and civil law (De iure naturali et gentium et civili), which was to stimulate a huge debate on the equality of the human and animal kingdom,16 and the above-mentioned people’s law. In effect, these

14 The rules imported into the text are found in Dig. 50.17, in numbered fragments respectively such as 9, 20, 21, 30, 47.1, 54, 55, 69, 80, 90, 106, 141.pr., 142, 192.1, 199: ‘Semper in obscuris quod minimum est sequimur’, ‘Quotiens dubia interpretatio libertatis est, secundum libertatem respondendum erit’, ‘Non debet, cui plus licet, quod minus est non licere’, ‘Nuptias non concubitus, sed consensus facit’, ‘Socii mei socius, meus socius non est’, ‘Nemo plus iuris ad alium transferre potest, quam ipse haberet’, ‘Nullus videtur dolo facere, qui suo iure utitur’, ‘Invito beneficium non datur’, ‘In toto iure generi per speciem derogatur (…)’, ‘In omnibus quidem, maxime tamen in iure aequitas spectanda est’, ‘Libertas inaestimabilis res est’, ‘Quod contra rationem iuris receptum est, non est produ- cendum ad consequentia’, ‘Qui tacet non utique fatetur (…)’, ‘In re dubia begniniorem interpretationem sequi non minus iustius est quam tutius’, ‘Non potest dolo carere, qui imperio magistratus non paruit’. 15 This begins with a famous definition of justice as the enduring desire to extend to each individual his or her due rights (‘Iustitia est constans et perpetua voluntas ius suum cuique tribuens’). 16 This begins with a text that places all animals on the same level (‘Ius naturale est, quod natura omnia animalia docuit. Nam ius istud non humani generis proprium est, sed

18 chapter one highlighted the fundamental issues pertinent to the law, which (not by chance) were taken up again at the beginning of the Digest. There the first heading concerns justice and law (De iustitia et iure). This section contains at least twelve passages by classical jurists dealing with fundamental issues, thereafter subjected to detailed analysis by medieval and other jurists.17 In conclusion, all the grand themes of law, from the fundamental values of justice and equality, which had been intensely debated for centuries, were assimilated within the learned moralistic and rhetorical framework of Imperial Roman Christianity. All the conditions were in place to foster scholarly considerations that were to have a profound significance during the centuries that followed, not just in the medieval period.18 Finally, it is useful here to mention the form of reference used to identify passages in Justinian’s vast oeuvre. The Digest: Dig.19 is followed by a selection of numbers. These stand, in order, for the book, the ‘title’ (that is the particular argument considered), and the individual fragment, or passage, identifying the author and the work from which it is taken. Let us take as an example a famous definition: ‘Legal wisdom is the knowledge of divine and human things, the science of justice and injustice’.20 This definition comes from book I of the Digest, under the section De Iustitia et Iure (Of Justice and Law), and in one of omnium animalium’); for whom all is pre-ordained, including sexual relationships (‘hinc descendit maris atque feminae coniugatio, quam nos matrimonium appellamus’). Civil law applies to specific communities, whilst the law of the people applies to all individuals being based on natural reasoning. (‘Ius autem civile vel gentium ita dividitur: omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum iure utuntur: nam quos quisque populus ipse sibi ius constituit, id ipsius proprium civitatis est vocaturque ius civile, quasi ius proprium ipsius civitatis; quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custodi- tur vocaturque ius gentium, quasi quo iure omnes gentes utuntur’: Inst. 1.2. pr.-1). 17 The first text taken from Ulpianus argues that law derives from justice because according to Celsus it ‘represents all that is good and right’. Thus it is right that jurists should be called priests since they were cultivators of justice (Dig. 1.1.1. princ.-1). 18 The unchanging nature of the juridical and philosophical lexicon – even if not its actual make up or contents – is clear in every historical manual dealing with the philosophy of law. John Kelly’s posthumous A Short History of Western Legal Theory (1992) looks at individual authors and the principal themes. For medieval platonism and the important themes of unity, equity and equality and justice up to the time of Irnerius, see Padovani’s recent Perché chiedi, pp. 35–86. 19 As opposed to a simple D., which as we shall see could be confused with a part of the Decretum. 20 ‘Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia’.

irnerius and the roman law of justinian 19

many doctrinal passages gathered together in illustration of that particular theme. Attributed to Ulpianus, ‘libro primo regularum’ (the first book of rules), the definition occurs in the third part of the passage. According to international conventions adhered to by Romanists,21 such a passage is referred to as Dig. 1.1.10.2.22 The same rules apply for the Codex, except that the basic units of this text are comprised of imperial constitutions. Selected and arranged in chronological order, these also include a title (inscriptio), or heading, but one which refers not to a jurist, but to the imperial legislator. To give an example, the Codex opens with the famous constitution of 380 that established Christianity as the state religion: ‘The emperors Gratian Valentinianus and Theodosius Augusti to the people of Constantinople’.23 Positioned in book I under the first heading, this constitution is the first item, and cited as Cod. 1.1.1. The constitution itself is divided into two parts, indicating respectively the imperial order (invoking the Trinity, being after the Council of Nicaea and relative disputes), and its sanction for transgressors. The first provision is thus cited by modern Romanists as Cod. 1.1.1. pr. The text of the principium or opening statement is offered here, as it will be useful later on: All people under a clement government should live according to the religion given to the Romans by Saint Peter Apostle and his followers with the doctrine that the Father, Son and Holy Spirit have equal authority, and countenancing belief in the most sanctified Trinity.24 The same method of division into books and headings applies for the Institutes, but these include neither jurisprudential fragments, nor legislative passages. Therefore, the third number in the citation refers only to the paragraph. Let us take, for example, Inst. 1.3.1–2: Freedom which is the status of all free men affords the possibility to do whatever one wishes to do except that which is forbidden by law. By

21 As students of Roman law throughout the world are now called. 22 Dig. 1.1 (because coming from De iustitia et iure, and being the first heading in that book); 10 (because of its numerical order in the critical edition); 2 (indicating that it is the second paragraph after the opening statement). 23 ‘Imppp. Gratianus Valentinianus et Theodosius AAA ad populum urbis Constan- tinopolitanae’. 24 ‘Cunctos populos, quos clementiae nostrae regit temperamentum, in tali volumus religione versari, quam divinum Petrum apostolum tradidisse Romanis religio usque ad nunc ab ipso insinuata declarat quamque pontificem Damasum sequi claret et Petrum Alexandriae episcopum virum apostolicae sanctitatis, hoc est ut secundum apostolicam disciplinam evangelicamque doctrinam patris et filii et spiritus sancti unam deitatem sub pari maiestate et sub pia trinitate credimus’.

20 chapter one

contrast, according to universal law the condition of slavery, whereby one individual is placed under the control of another, is contrary to nature.25 This important definition of liberty appears as paragraphs I and II in book I, under the third heading (De iure personarum), the law of the individual. The fourth part of the compilation, established under Justinian’s new laws, consists of the ‘Novels’. These provisions are sometimes very long, unlike those included in the Code, which in previous collections had already been reduced to the essentials only. They also differ from the Code in not being organized according to subject matter. Each ‘Novel’ has its own title and thus when cited is referred to solely in terms of its numerical position, followed by a second number that indicates the chapter (caput) or the preface (praefatio). Nov. 131.2, for example, indicates that chapter in the ‘novella’ dedicated to ecclesiastical hierarchy (De ecclesiasticis titulis) with many important dispositions. On occasion there are also references to the correspondence between individual ‘Novels’ and their eventual inclusion in the Authenticum. For example, the reference in the case of Nov. 131 is Auth. 119.

1.2. The Early Twelfth Century and the Work of Irnerius

There can be little doubt that the teaching of Roman law of the kind introduced by Irnerius at Bologna very quickly assumed legendary status and was an initiative of marked historical significance. Indeed, it was comparable only to the contemporary and quintessentially cultural teaching of the Parisian Peter Abelard, the ‘totius Europe philosophorum precipuus’, the most eminent European philosopher, who was instrumental in pro- moting dialectic reasoning. Abelard lived from 1079 until 1142, and although a few years younger was thus a contemporary of Irnerius. It is no surprise, therefore, that it has been suggested that the two men had a common teacher.26

25 ‘Et libertas quidem est, ex qua etiam liberi vocantur, naturalis facultas eius quod cuique facere libet, nisi si quid aut vi aut iure prohibetur. Servitus autem est constitutio iuris gentium, qua quis dominio alieno contra naturam subicitur’. 26 See the recent reconsideration of Abelard by Andrea Padovani in his Perché chiedi il mio nome? Dio natura e diritto nel secolo XII (1997), esp. p. 261 (and pp. 87–99), which tack- les once more the old equation of natural law-ratio. See also Guarnerius Iurisperitissimus, Liber divinarum sententiarum (1999).

irnerius and the roman law of justinian 21

First a word about Irnerius himself. As is unfortunately always the case with ancient writers, information about Irnerius survives in only a few documentary records. Nevertheless, these furnish us with a number of facts. Irnerius appears in total in fourteen documents, all of which have recently been republished.27 He is first mentioned in a decree issued by the bishop of Ferrara in 1112. A year later he is referred to as causidicus (lawyer) in a decree issued by countess Matilda of Canossa in Baviana. Thereafter (in 1116), he is described as Bononiensis iudex, in the service either of Emperor Henry V, or acting for an adversary. Surviving documents refer to him up until 1125, very probably the year of, or close to, the time of his death. The fact that he is referred to throughout as Wernerius (giving rise to the name Guarnerio), implies Germanic roots, although he may not actually have been born in Germany since the name Wernerius was already common in Italy. That said, Irnerius was on occasion described as theutonicus, indicating that he did indeed have German roots. A German origin would certainly explain why Irnerius might have been chosen by Henry V, although it is also possible that he was given such a title due to his association with the Emperor, or because he had lived in Germany for a long time. The fact that Irnerius was accused by the Council of Reims of having sided with the imperial anti-pope in Rome in 1118 supports the suggestion that he had German origins. In the ensuing act of excommunication he was described as Bononiensis iuris peritus and was said to have disseminated jurisprudence ‘iuris disciplina’.28 His excommunication was in fact most probably revoked, or at least deprived of significance, by the Diet of Worms of 1122 – the historic agreement that, at least for a while, brought an end to the conflict between the Papacy and the Emperor. There is further support for the theory of his German origin in a recent hypothesis that Irnerius exerted an early influence on the workings of the imperial chancery. In fact, a diploma of 1119 in respect of the city of Strasburg mentions a civil law common to all – ‘ius civile et omnibus commune’ – an early and intriguing use of the term.29

27 Enrico Spagnesi, Wernerius Bononiensis iudex. La figura storica d’Irnerio (1970). 28 Johannes Fried, Die römische Kurie und die Anfänge der Prozessliteratur (1973). According to the English theologian Ralph Niger, Irnerius adopted Roman law because of the schism with Rome ‘religioso scemate ad curiam Romanam’ (this has been changed by Ovidio Capitani to ‘schismate’): Carlo Dolcini, Velut aurora surgente. Pepo, il vescovo Pietro e l’origine dello Studium bolognese (1987), p. 4 fn. 8). 29 Johannes Fried, ‘Die Rezeption Bologneser Wissenschaft in Deutschland während des 12. Jahrhunderts’, (1990), p. 136 f.

22 chapter one

That said, according to the generally reliable chronicle of Burkhardt (1177–1231), abbot of Ursperg, it was Matilda of Canossa, an individual central to the history of Gregorian reform, who requested Irnerius to ‘renew the books of law hitherto not subjected to study’.30 On the basis of that account, it was Matilda who was responsible for the renewed interest in the books of Roman law that Irnerius ‘restored’ – a turn of phrase which can be read in a number of ways, and which could in fact indicate that Irnerius’s revision of such texts may have consisted in returning them to their original form as laid down by Emperor Justinian. Needless to say, the casting of the essentially pro-papal Matilda in such an unexpected role has prompted considerable discussion, including attempts to reconcile such a fact with Bologna’s desire to credit the Emperor with the creation of its celebrated university (studium). In any event, it is thanks to Irnerius that unreliable texts, as well as those summaries through which limited parts of Justinian’s work had been transmitted, were identified and preserved. Justinian’s legislation (by that time over half a millennium old) was in effect brought back to attention thanks to Irnerius’s critical editing. Irnerius is said to have initiated university teaching, according to later ‘glossators’, in the city where he is traditionally said to have lived – that is, Bologna – although there was no specific mention of that city in references to dealings between Matilda and Irnerius in the German chronicle. The reference to Bologna raises obvious questions about the motives behind such an initiative. Why then? And why there? But before attempting to solve that particular puzzle, we should attempt to establish something about the actual nature of Irnerius’s work. The renovatio is easily explained if one takes into account that in the scholarly environment at Bologna Irnerius would have come into contact with legal books (libri legales) from Ravenna, ‘while teaching Liberal Arts there’.31 In other words, Irnerius would have been a master of the arts, and thus of the grammatica that formed part of the earlier teaching of the

30 Burchardi et Cuonradi Urspergensium Chronicon, (1874), p. 342: ‘renovare libros legum… qui dudum neglecti fuerant nec quisquam in eis studuerat’; for the reliability of this source, see for example, Spagnesi, Wernerius, p. 114. 31 Odofredus, Dig. 1.1.6 (Lecturae super Digesto et Codice, 1550), fol. 7rb; elsewhere the same Odofredus talks about a ‘sophistic gloss which is more obscure than the text’ (ibid., on Cod. 2.21 (22). 9, cited edition, fol. 101v.). During the same period it was noted that Irnerius had begun his philological work after reading a passage from the Evangelists: Enrico Besta, L’opera di Irnerio (Contributo alla storia del diritto italiano), I, La vita, gli scritti, il metodo (1896) I, p. 54 f.

irnerius and the roman law of justinian 23

Trivium. The Trivium consisted of grammar, dialectic, and rhetoric. During the early medieval period the Trivium remained of interest for lawyers because it included rhetoric. This mainly derived from the writings of Cicero, and included the belief the jurist must ‘convince’ his interlocutor that he is in the right.32 In addition, law was necessarily a subject of scrutiny by notaries. It is thus significant that Irnerius also prepared a condensed formulary (probably completed before 1116) concerning the four juridical deeds of sale, emphyteusis, testament and donation.33 Also in Irnerius’s time, writing itself was undergoing an exponential growth as a result of the art of writing texts (ars dictaminis) becoming an essential component of urban life. Small wonder, then, that it thrived in Italy in particular, by definition the country of towns. But in concrete terms, with what kinds of Justinianic texts might Irnerius have been involved? Of the Code itself we know little, because no antique manuscripts deriving from it have survived, and those that we now know inevitably bear the marks of the philological exertions of the first glossators, and thus post-date Irnerius. There can be little doubt, however, that the re-emergence of the Tres libri is due to the work of the glossators and that these last three books of the Code (disregarded in the previous centuries because they were concerned more or less exclusively with imperial matters, and thus were almost completely devoid of interest in the early medieval period34) derive from the same source.35 It is in fact

32 For De oratore and the (apocryphal) Rhetorica ad Herennium: see now Charles M. Radding, The Origins of Medieval Jurisprudence: Pavia and Bologna 850–1150 (1988). 33 For the earliest literature, see Giovanni Battista Palmieri, Appunti per la storia dei glossatori, I, Il Formularium tabellionum di Irnerio (1882). Odofredus also mentions the formulary, and Accursius (gloss Petitione to Cod. 1.2.14.8) reproduced the incipit from the section dealing with emphyteusis. Palmieri’s edited version is now dated to around 1205: see Gianfranco Orlandelli, ‘Appunti sulla scuola bolognese di notariato nel secolo XIII: per una edizione della ‘Ars notarie’ di Salatiele’ (1961). There seems little doubt, however, that Irnerius anticipated a new formula for emphyteusis (the long-term agrarian contract involving the agreement to improve the holding in question, which was widespread and which went under a number of different names): Gianfranco Orlandelli, ‘Irnerio e la teorica dei quattro istrumenti’, (1972–73). Following Irnerius’ formula, which was immediately accepted by Bolognese notaries, the emphyteusis contract appears to have been drawn up by the owner of the land: see Gianfranco Orlandelli, ‘Petitionibus emphyteuticariis annuendo. Irnerio e l’interpretazione delle legge Iubemus (C. 1.2.14)’, (1982–83). 34 According to the so-called Summa Perusina and the summary preserved at Pistoia, the Codex attracted a certain amount of interest in the early Middle Ages, but in both cases only the first nine books are considered. 35 Recently analysed by Emanuele Conte, Tres libri Codicis. La ricomparsa del testo e l’esegesi scolastica prima di Accursio (1990).

24 chapter one difficult to gauge the extent to which the Code as we know it today reflects the variations made by Justinian, because it is the result of a constructive restoration by glossators.36 Indeed, it is possible to construct a number of different ‘families’ or groups of manuscripts that preserved the text of the Code.37 Tradition has it that in the case of the Digest, Irnerius discovered the text in a number of stages, because up until that time only a pale record of it – as understood by Paul the Deacon – had been preserved, following its marginalization during the early medieval period. Initially, only the first twenty-four books emerged (up to heading II), and were called Digestum Vetus (subsequently referred to as the old Digest, Dig. 1.1.-24.2) as a result. Digestum Novum (the final books, Dig. 1.39–50.17) was then issued, and the intervening books (Dig. 28.3–38.17) only at a later date, resulting in the claim ‘ius nostrum infortiatum est’ (our law is completed). The medieval term Digestum Infortiatum for the central part of the Digest underpinned the decision taken by glossators to divide the text into three distinct volumes. This tripartite division could have inhibited our understanding about the original format of this text, were it not for the fact that the oldest preserved manuscript (which appears to have been written by the sixth century – perhaps at Constantinople, but more likely at Ravenna or Naples38) was divided into only two parts, the division made today. This record is one of the most famous manuscripts in western history: it is the version (lettera) known as the ‘Pisan’ or ‘Florentine’ edition of the Digest – so-called because it was preserved first in Pisa and then from the beginning of the fifteenth century in Florence (where it has

36 These persist in including spurious fragments, like Visigoth texts and chapters associated with Theodoric. 37 Carmen Tort-Martorell, Tradición textual del Codex Iustinianus. Un estudio del Libro 2 (1989) is a fundamental study in the context of a new critical edition, as opposed to the standard work currently in use: see Corpus iuris civilis. As with the Codex, there are no ancient manuscript editions of the Institutions. The oldest ones – those at Turin and Bamberg – can (at the earliest) be dated to the tenth century: see Federico Patetta, Studi sulle fonti giuridiche medievali (1967), p. 62 and 136 f. 38 Establishing the origin of this manuscript is a complex matter, since it appears to have been written by at least 12 or 13 different individuals, to which should be added the hands of one or more individuals who checked the text for errors when transferring it to at least one other manuscript. Guglielmo Cavallo and Francesco Magistrale (‘Libri e scritture del diritto nell’età di Giustiniano’, 1985) now suggest Ravenna or southern Italy as the manuscript’s source. The manuscript itself is easily readable thanks to a beautiful facsimile publication (following an earlier edition produced in 1903): see Iustiniani Augusti Pandectarum codex Florentinus (1988). For references to the Digest see especially the Praefatio to the critical edition in Corpus iuris civilis (1870).

irnerius and the roman law of justinian 25

been housed since 1782 in the Laurenziana Library).39 Quite apart from the fact that this manuscript preserves the original Greek passages of the Digest – neglected by the glossators because, as with other learned men of the time, they knew no Greek – the text itself differs in many ways from that generally adopted in universities, which was compiled first from the texts of Bolognese glossators and then according to the practice of the time.40 This latter text is known as the littera Bononiensis, or more simply the ‘vulgate’ – that is, the current and most trustworthy version (as employed at one time in the context of the Holy Bible and other didactic texts). Theodor Mommsen, the learned nineteenth-century Roman historian and author of the critical edition of the Digest that is still in use today,41 claimed that a hypothetical manuscript S (‘Secundus’) derived from the authoritative source now at Florence.42 According to this hypothesis, the second manuscript, which at times corrected manuscript F (‘Florentinus’), fostered an entirely independent version.43 A lost hand-written exemplar

39 Le Pandette di Giustiniano. Storia e fortuna di un codice illustre, Giornate di studio (1986), from a Florentine conference held at the same time as the exhibiton that gave rise to the handsome catalogue. 40 But the vulgata had not acquired a final form even by the Thirteenth century, as Govaert van den Bergh and Bernard Stolte jr. have established in a specific study of the matter, ‘The Unfinished Digest Edition of Henrik Brenkmann (1681–1736). A Pilot Survey of an Edition of Digest 9.2 ad legem Aquiliam’, (1977), esp. p. 228 fn. 3; see however Severino Caprioli, ‘Visite alla Pisana’, in Le Pandette…Giornate di studio, pp. 37–98. One could say that there was no stable version until the establishment of the system of ‘stationarii’ (to which we will return). Cortese, ‘Alle origini della scuola di Bologna’ (1993), p. 23, refers to the ‘vulgate’ ‘as an overarching construct covering a reality that was by then diversified into an infinite number of rivulets’. 41 Digesta Iustiniani in Corpus iuris civilis (1970); the Praefatio considers both the manuscript tradition and editorial criteria in detail: pp. v–lxxx. For Mommsen as an editor and later hypotheses (the studies of Hermann Kantorowicz being particularly influential in this context) see now Charles Radding’, Vatican Latin 1406, Mommsen’s Ms. S, and the Reception of the Digest in the Middles Ages’ (1993). 42 The link between the Florentina and the Vulgata, albeit complicated by later inser- tions, seems clear, if only because an inversion of pages in the binding was copied from the first manuscript into the second. As a result, many individuals even in the sixteenth century (such as LeliusTorelli, minister to Cosimo de’ Medici and first editor of the Florentina), maintained that the Florentina was the archetype, whereas at an earlier date some, like the great Alciatus, had doubted this: first indicated by Mario Ascheri, Tribunali giuristi e isti tuzioni dal Medioeo all’Età moderna (1996), p. 66 ff. 43 According to some scholars, this was drawn up at a comparatively early date (from an archetype similar to the Florentina) and it was this manuscript that Gregory the Great described in 603 as being closer to the Vulgata than the Florentina: see Cortese, ‘Alle origini’, p. 22 f., 25 and fn. 31. Cortese raises the reasonable hypothesis that the manuscript used by Gregory the Great was not lost but re-emerged in the Rome of Urban II, at the time of the Collectio Britannica; but – against my recommending more detailed research – denies

26 chapter one in Beneventine script from the cultural environment of Lombard Montecassino appears in turn to have derived from that.44 It seems that this sub-prototype led to the errors that exist in some ‘vulgate’ manuscripts. Only one text, a manuscript of Leipzig, appears to be immune from such errors. This latter text allows us therefore to distinguish between manuscript S and the Beneventine version.45 The other aspect of Irnerius’s scholastic activity that persisted as indel- ible defining characteristic of his school for over a century concerned the insertion of annotations next to pieces of legal text, either in the margins or between the lines of the text itself.46 These notes, which were copied by pupils into new editions of the Corpus iuris as and when they that a fifteenth-century jurist (Gianbattista Caccialupi) could claim that Irnerius taught at Rome (Cortese, ‘Alle origini’, p. 26 onwards). As of now, we cannot exclude either possibility: firstly, because Caccialupi was indeed at Rome before going to Siena, and was in an ideal position to carry out research in the archives, given that he was employed by the Senate (Niccolò Del Re, La curia capitolina e tre altri antichi organi giudiziari Romani (1993), p. 93); secondly, because while the editio princeps of Caccialupi’s work could have been overseen by the author himself or even have been based on his own manuscript, those others in circulation could have depended on an earlier version; Caccialupi’s notes, perhaps dating from 1463–64, are included in the Bologna MS Collegio di Spagna 207, also referred to by Cortese (‘Alle origini’, p. 27 fn. 36) and now analysed in I codici del Collegio di Spagna di Bologna (1992), pp. 584–592; and thirdly, that Irnerius ‘should have studied by himself’ at Roma does not come from Diplovatatius, but was already mentioned by Caccialupi (also in the manuscript, see again Cortese, respectively pp. 28 and 27, fn. 36). I referred to the significance of Ralph Niger’s annotation in my review of Spagnesi’s book, now included in Ascheri, Diritto medievale e moderno. Problemi del processo, della cultura e delle fonti giuridiche (1991), p. 288 fn. 3; see now also Giovanni de Vergottini, Lo Studio di Bologna, l’Impero e il Papato (1996). 44 In particular Juan Miquel, ‘Mechanische Fehler in der Überlieferung der Digesten’ (1963); Cortese, ‘Alle origini’, p. 24, observed that it would have been strange if Desiderius, the abbot of Montecassino between 1057–87, had not included this in the list of books to be transcribed. But perhaps the very size of the Digest and its scarce usefulness might have persuaded him otherwise. 45 That the area of production of the lost manuscript was indeed that of Lombard Montecassino is confirmed by a note traced in the text of the Florentina to Dig. 18.1.9.2, where the word ‘ousía’ has been glossed in Beneventine script dating to the tenth century as ‘idest substantia’. Even so, there has been a long-established understanding that the manuscript was taken from Amalfi between 1135 and 1137 by the Pisans: see the various studies in Le Pandette… fortuna di un codice, and above all the contributions by Enrico Spagnesi and Severino Caprioli. Pietro Pescani, ‘La scoperta del Bononiensis: sue forme’, (1985) is also important. For the Beneventine manuscripts see the conclusion of a recent and important undertaking: Jean Mallet-André Thibaut, Les manuscrits en écriture bénéventaine de la Bibliothèque capitulaire de Bénévent (1997). 46 Already edited by Savigny, the father of medieval legal studies: Geschichte, IV, pp. 458–470, and later by Gustav Pescatore, Die Glossen des Irnerius (1888) and Besta, L’opera di Irnerio. Many other works have been attributed to Irnerius but there is a tendency now not to recognize these as authentic. Textual similarities are seen as offering no firm proof because it was common practice to work piece by piece, copying and inserting

irnerius and the roman law of justinian 27

became available, are identifiable through the inclusion of Irnerius’s initials, usually ‘i’ or ‘y’. Made available to thousands of people through countless medieval manuscripts, these annotations were subsequently edited by modern historians; in their surviving forms they may not only be different in character from the originals but also, at times, of dubious authorship.47 The annotations were for the most part closely associated with the text, as is often the case during the first century of a new school. In effect, such glosses constituted an initial attempt at clarification of the law, because attention was finally being focussed, even in the smallest detail, on a great mass of complex legislation that had not previously been examined as a whole. As a result, great respect was shown for the internal meaning of individual texts, albeit recognizing the connections between them through the various annotated cross-references. There are technical references in that context to ‘notability’, and ‘paratitla’ (already allowed by Justinian) or of ‘allegationes’, that is, parallel passages on the same theme, and thus also of ‘antinomiae’ (apparently conflicting passages), that required ‘solutiones contrariorum’, or compositional hypotheses. Therefore, although the text was adhered to, there was also an attempt at rationalization. From Irnerius’s time onwards, rationalization involved the often difficult task of reconciling the obvious contradictions that remained within the text, despite the efforts of Justinian’s commissions. Irnerius, for example, demonstrated an admirable historical insight in drawing together apparently conflicting passages from the Digest and from the Code concerning customary law. According to the former (in the work of the jurist Julianus, Dig. 1.3.32.1) allowance was made for the ‘desue- tude’, or obsolescence of a piece of regulative legislation, following prolonged disuse. Under Constantine, the Godly emperor of the medieval period, customary law was denied advantage over lex and ratio. Irnerius was however able to reconcile certain passages, by recognizing that the jurist of the Digest was writing at a time when the people could still make

into the body of the text fragments drawn from normative sources or doctrinal texts, and in particular from the works of the masters. Paradoxically, establishing the source of individual passages is now seen as proof of the overall text not being authentic. See, for example, Cortese, Il diritto, II, p. 75. 47 Why the ‘y’ if Irnerius signed himself as Wernerius? And in the case of the ‘i’ might this not refer to Iacobus, Irnerius’s designated successor? The ‘G’ or ‘g’ that is discernible does not seem likely to refer to G(uarnerius), but seems instead to be a simple reminder, or instead to refer to other individuals. On this point, see in particular Gero Dolezalek–Rudolf Weigand, ‘Das Geheimnis der roten Zeichnen. Ein Beitrag zur Paläographie juristischer Handschriften des zwölften Jahrhunderts’ (1983).

28 chapter one laws, and were thus also able to eliminate them through tacit dissent (ius vetus).48 The rules of emperor Constantine were, by contrast, dictated at a time of ‘legislative absolutism’, because as a result of lex regia de imperio, the legislative authority of the Roman people had passed to the emperor.49 Glossators both engaged with history and had a keen sense of contemporary exigencies. In recalling ancient imperial absolutism there was inevitably a bias in favour of the existing ‘empire’, or authority. The latter was involved in many (even too many) disputes both with the Church and with those rulers who for some time had been usurping the power of the Empire as well as the emergent communes. There was indisputable change, therefore, during these industrious decades, but at the same time we cannot avoid a question that will take us further back in time. In what sense and to what extent were the events of the twelfth century new?

48 In this context see the fundamental work by Ennio Cortese, La norma giuridica. Spunti teorici nel diritto comune classico, II (1964), p. 126 f., fn. 56, that points out how Irnerius adopted an historical argument that included a grave error (placing Julianus in a period that pre-dated the lex regia), but how this was then explained with great subtlety by Ugolinus, all the time working within the school of glossators. 49 Law dating to the time of Vespasianus (69a. Cr.) was incised in the bronze plaque found during the lifetime of Cola di Rienzo (c. 1347), and appears to have been the only law that was in effect approved: see the recent work of Francesco Lucrezi, Leges super princi pem. La monarchia costituzionale di Vespasiano (1982).

CHAPTER TWO

THE MULTI-FACETED ELEVENTH CENTURY

The answer to the question at the end of Chapter One requires general consideration, albeit brief, of the earlier state of affairs. What was Italian law like in pre-Irnerian Italy? This is probably the most difficult part zzof our enquiries, because we have to approach the situation by divesting ourselves as far as possible of the weight of modern juridical categories and historiography. Moreover, eleventh-century development was left largely to spontaneous local initiatives, because a number of institutions were in the process of rapid transformation, and existing legislation, or at least certain parts of it, was not really of prime interest to emerging public powers. Although we know something about official legislation, it was often simplified and vulgarized locally, as a result of individual legal practice and different judicial courts. Inherited models of wisdom were frequently adapted in line with the new realities on the ground; the term ‘consuetudo’, meaning established custom or habit, acquired a wider implication which is at times difficult to be precise. There was in fact a vigorous debate concerning central and local power, and thus also about legislation and customs. Whilst it was understood that there was a written law which should be adhered to, there was also agreement about the need for pragmatic adaptation. In other words, there was a tradition that was accepted as ‘auctoritas’, or authoritative, due to the fact that it had been inherited, but which at the same time was frequently modified and adapted to suit the needs of the moment. There was also a marked revival of Roman law associated not only with the resurrec- tion of the Empire and the Church (and the latter’s laws) but also with the perceived need for a broader interpretation of the law. This included the recognition of the principle of territoriality and individual circumstances, distinct from political and juridical particularisms. A number of specific events had far-reaching consequences. These included the separation of the eastern and western branches of the Christian Church in 1054; the collapse of the Byzantine and Arab dominion over southern Italy and the associated rise of Norman power in various forms in Sicily, and throughout the rest of the southern part of the peninsula; and the consolidation of the power of the Papal State

30 chapter two due to the effective resolution of the conflict with the Empire. Most important, however, was the central position established by the Papacy in western affairs. At the same time there were developments in the countryside, which some experts consider to be the primum movens of every innovation, as well as conurbations that would develop into communes.

2.1. Diverse Political and Juridical Arenas

Eleventh-century Italy was not a homogeneous whole.1 There was Byzantine Italy, within which the territorial realities now clearly distinct from Byzantium should be distinguished from those areas still bound to it. Langobardia minor, for example, consisting of Puglia and Basilicata, considerably reduced the pre-existing territory of Byzantine Italy. There was also the Kingdom of Italy, namely that part of the Empire that included both the northern region around Ravenna and the area around Rome. In that area the emperors played an important role right up to the period of open conflict with the Papacy. In addition, there was Norman Italy, established in the wake of the Arab domination of Sicily and the byzantinization of the south. In Puglia, the Byzantine dominion was dissolved in 1071. There were also the borderlands, which had undergone diverse and successive dominations, and as a result experienced a variety of political systems. Above all, there were the Lombard regions regained at the end of the ninth century by the Byzantine Empire, intent on transforming the principalities of Salerno and Benevento into Byzantine provinces. The next stage in this study is to simplify matters by identifying three principal areas, and looking at individual legal texts.

a) Byzantine Italy after Justinian In Byzantine Italy (as with the rest of the Frank-Lombard lands) various crises had resulted over time in a mass of military and judicial offices. These presented an obstacle to Justinian, when in 554 he attempted to extend his legal jurisdiction over an Italy regained from the defeated Goths, with the celebrated pragmatica sanctio pro petitione Vigilii, a solemn act issued on request of this pope. At a local level, the duces, military leaders who had acquired eminent positions, assumed the functions of

1 Francesco Calasso, Medioevo del diritto, I (1954), p. 238.

the multi-faceted eleventh century 31

supreme ‘judges’ (iudices), as the highest civil functionaries of Byzantium in the provinces were called.2 By contrast, in Sardinia, which had been left to its own devices at a comparatively early date, the heads of the four territories known as the ‘giudicati’ – Cagliari, Arborea, Torres (or Logudoro) and Gallura – continued to call themselves ‘giudici’, or judges. The four jurisdictions, the four ‘moors’ of the Sardinian crest, emerged as a result of the development of local and autonomous organizations faced with the need, for example, to defend themselves against the Saracens. In such situations, individual judges, supported by a ‘crown’ or group of boni homines, made the most important decisions, including those on such matters as individual rights and the possession of land in association with judicial office. It was also commonly the case that local powers assumed responsibility for administrative affairs, where possible establishing hereditary rights amongst themselves, as for example in Naples, Gaeta and Amalfi. The reigning duke or ‘ipato’ (hypatos) would often nominate his own son whilst still alive, forcing local people of note to recognize that individual’s legitimacy. Venice was an exception, because despite the aspirations of the Candiano clan, other leading families in the territory set up an alliance to counterbalance them. As a result, the position of dux – translated in the vernacular as ‘doge’ – remained one that was elected by leading notables gathered at the assembly or concio. When it came to publicising decisions that would otherwise have been difficult to communicate to citizens or that required a consensus of opinion, that is, on the most solemn occasions, the political head took over government, assisted by a ‘popular’ court. In practice, such courts consisted of leading members of the Church (who by then had established a virtual monopoly in the field of writing and in any event were clearly authorities in sacred wisdom) and members of the lay community, who were very soon categorized as maiores, mediocres and minores (upper, middle and lower classes). Clearly, there was already a complex social stratification. At this level of government there was no distinction between office or function. Thus justice, or at least that concerning civil and more sensitive penal proceedings, was carried out in one and the same arena known as the placita. In the countryside things took a different course. Here, various forms of seigniorial justice emerged in tandem with a

2 As is well illustrated by the Amalfi case, where such offices contributed to the escala- tion: at first under a comes, at times prefectus or prefecturus, at other times consul; around 1000 Amalfi was ruled by a dux.

32 chapter two general move, albeit at different times and in different ways, towards the construction of castles – associated with defence but often also linked to the colonization of abandoned territories. As with those cases already noted during the late Roman Empire, it was inevitable that such justice primarily concerned the residents of the individual territories.3 But what of the law that was applied in those courts which tended to resemble political assemblies? What was the appropriate course of action for courts that were clearly sensitive to the consequences of their pronouncements within their own societies, and were thus keen to evaluate the expediency of individual decisions, as opposed to their abstract legitimacy or conformity with the existing norms? When there were no good reasons for complying with other requirements, what body of legislation should prevail? By this time Sicily had been under Muslim domination for over two centuries and had developed a very real autonomy. This must also have blocked the dissemination of Byzantine law. The law of Byzantium prevailed at the level of customary practice in the original Byzantine populations due only to the tolerance of the Arabic government.4 The latter in fact consented to other groups of ‘nationals’ abiding by their own laws.5 They were required only to heed established norms concerning public order: for example, that respect should be shown to the Koran, the Prophet Mohammed and Islam, and that no attempt should be made to convert an Arab to the Christian faith. Even so, some legislation established in the wake of Justinian was enforced not only in the Byzantine regions but also in Sicily.6 In Sicily, in

3 Manlio Bellomo, Società e istituzioni dal Medioevo agli inizi dell’Età moderna (1993), p. 84 fn. 79, where reference is made to the concession in 1046 to a judge (kritis), by the ‘catepan’ of Bari, of privileges, amongst which was responsibility for rendering justice to the inhabitants of the village over which he was understood to hold authority. 4 Luigi Siciliano Villanueva, ‘Sul diritto Greco-Romano in Sicilia (diritto privato)’ (1892) is still useful. 5 But no documentation survives in support of this: see the doubts voiced by Guglielmo Cavallo, ‘La circolazione di testi giuridici in lingua greca nel Mezzogiorno medievale’ (1987), pp. 90, 97. 6 Karl Eduard Zachariäe von Lingenthal, the author of a pioneering work, Geschichte des griechisch-römischen Rechts (1892), was constantly engaged in work as an editor during the nineteenth century; his principal works are assembled in Jus Greco-Romanum (1856– 86). Peter E. Pieler, in Byzantinische Rechtsliteratur (1978) offers a recent synthesis of Byzantine law, but for its diffusion in Italy one should consult Siciliano Villanueva’s useful Diritto bizantino. An important circle of German scholars are also working in this area; their studies have been circulated above all through the series ‘Forschungen zur byzantinischen Rechtsgeschichte’ published by Löwenklau Gesellschaft of Frankfurt (up to vol. 7 under Klostermann, also of Frankfurt), under the auspices of Dieter Simon. In 1997 the

the multi-faceted eleventh century 33

particular, the joint ownership of possessions by married couples (as laid down in early medieval Byzantine law) was universally recognized, and survived even into the late medieval period. This was equally true for rights of pre-emption (in Greek, protímesis), even though these were banned by legislation drawn up in the Late Roman Empire, and subsequently included in Cod. 4.38.14.7 The same rights survived, despite what was known as the ‘retraction’ (in Latin, ius congrui), which allowed for the reclaiming of a possession sold to a third party in the absence of other interested individuals (such as a partner, a neighbour or a relation) being able to exercise their pre-emptive right to purchase. In the case of the purchase of property, the law concerning the right of pre-emption was advantageous in that it obstructed settlement by outsiders in communities that were predominantly rural. Such communities could thus preserve their cultural and social customs. It is no coincidence that similar precautions were taken at a later date, when drawing up communal statutes. As for Arabic law, this was extensively cultivated. Indeed several important jurists emerged in Sicily between the tenth and the eleventh centuries.8 That said, the best conditions for the dissemination of Byzantine law were in the Byzantine territories of the mainland, and in particular in the eastern and Calabrian regions, where a strong monasticism based on Byzantine rituals exerted a significant influence on culture. This is illustrated by manuscripts compiled as late as the thirteenth century, which reveal an enduring and knowledgeable interest in Byzantine texts of the early medieval period. Distribution of the Ecloghè ton nómon written by Leo III the ‘Isaurian’ – the iconoclastic emperor known for his religious zeal – offers further evidence of post-Justinian legislation, even though the terrible punishments decreed there are far from merciful. Ecloga means ‘selected’, and in fact this code consists of an anthology compiled between about 730 and 740. It seems that the original intention was to simplify Justinian’s legislation, but the anthology actually set about codifying contemporary

number of volumes issued had reached 21 (with Armenian translations of Byzantine juridical texts effected by Hubert Kaufhold), amongst which special mention should be made of the Ecloga Basilicorum (1988) and the Repertorium der Handschriften des byzantinischen Rechts (1995). 7 But inserted from a Novel of the tenth century; see at a later date the documented cases of 1100 and 1200 in Francesco Brandileone, ‘Il diritto di prelazione nei documenti bizantini’ (1931). 8 A summary of these can be found in Aziz Ahmad, La Sicile islamique (1990), p. 48 f.

34 chapter two

Byzantine customs covering a number of very diverse everyday matters.9 As a result it was very well received. It is worth noting for example, that apart from the formalized marriage in writing where there were patrimonial interests, it dealt with the most widespread form of marriage – that involving an informal agreement without notarial act: the marriage inter amicos, amongst friends, of the Roman tradition. The Ecloghè ton nómon established that such a marriage could take place in church, and thus created a precedent for the required ‘form’ or ‘ceremony’, only finally established for Catholic marriages by the Council of Trent at a much later date.10 Family law included in this anthology also established that the husband should give a gift to his wife (the theóretron), along the lines of the Lombard morgengabe (morning gift), or pretium virginitatis. This provision co-existed with another, which appeared to recognize a certain par- ity for the woman, in that she was allowed joint ownership of property with her spouse, or at least of property acquired after the wedding. The same ruling was adopted not only in Friuli, but also in both Sicily and Sardinia. In Sardinia, it subsequently formed an essential part of the traditional wedding (assa sardisca).11 In contrast, on the mainland and according to Roman law, marriages required a dowry. At a later date, this requirement became known in Sardinia as the assa pisanisca, or ‘wedding according to the Pisan style’. As for paternal patrimony, on the father’s death it was his widow who took over the administration and care of the property, ensuring that the patrimony remained intact. By contrast, according to Lombard law, it was the sons who assumed such responsibility, holding the property jointly.12 According to Roman law, where a daughter was endowed with a dowry, the amount of property already promised to her by her father had to be taken into account (Cod. 3.33.5), but without excluding her from

9 For the text, see Ecloga. Das Gesetzbuch (1983). 10 The Church continued to maintain that ‘consensus facit nuptias’, but already around 900 in the East Emperor Leo the Wise decreed that marriage should take place in church. In Italy this can be traced to a ruling in a chapter proclaimed by Robert of Anjou in 1332: according to this, the couple had to appear in front of a group of mutual friends (‘coram amicorum communium multitudine’) before being blessed by the priest; see Francesco Brandileone, L’intervento dello Stato nella celebrazione del matrimonio in Italia prima del Concilio di Trento (1906), pp. 89–98. 11 This is now taken to mean the overall division of all the couple’s goods: Eleonora Mura, ‘Ancora sulla comunione dei beni nel matrimonio assa sardisca’ (1979); Cortese, Il diritto, I, p. 295 does not, however, agree with this interpretation. 12 Chapter 167 of Rotari’s edict, which is accessible in English in The Lombard Laws (1973); (for the critical edition see Leges Langobardorum, 1868).

the multi-faceted eleventh century 35

subsequent inheritance. The Byzantine custom tended, instead, to exclude daughters from everything, even though their dowries normally corresponded exactly to the proportion of the inheritance they might legally have expected in relation to their brothers. This law, absorbed even by the Lombard legislation of Rotari (cap. 18113), appears to have been reversed in the Ecloga, because no reference was made to the ‘collation’ (the taking into account of the dowry in the context of the division of inheritance). However, difficult times favoured simplification of official texts, leading to a demand for short, specific works on particular themes and linked to everyday needs. Byzantine Italy, under attack from the sea and embroiled on a number of fronts in what were by then endemic wars, witnessed the introduction of a number of brief tracts of imperial legislation (strengthened by customary practice and thus very much representative of their time) dealing with all those matters.14 Perhaps the most famous text is the Nómos Rhodìon nauticós, the law of navigation, drawn up in Rhodes, which was widely circulated in the Mediterranean and which, amongst other things, contained preambles dating to the period before Justinian. The definitive edition of this text, containing about twenty provisions concerning maritime law as exercised at Rhodes, probably dates from the eighth century.15 There are also about fifty sections that are erroneously said to have been taken from the Code and the Digest. This text was hugely successful, and was adopted by coastal cities in Italy (Trani being the first) even after the Millennium.16 The second example of a thematic text, the Nómos stratioticós (dealing with military law), was one of the many short penal codices circulating in the Byzantine world with good reason, since Byzantium could still claim to have a properly bureaucratic, or ‘state’ army. This piece of legislation is interesting for its description of individual punishments. A rapist, for example, was punished by cutting off his nose. The same punishment occurs in Isauric’s Eclogue. Finally, mention should be made of the Nómos gheorgicós, which with its references to rural customs has often attracted the attention of scholars.17 The provisions laid down here – with their

13 And then by Frederick II with reference to the inheritance of women in feudatory matters: III. 27 (available in Constitutiones Regni Siciliae, 1992). 14 On this point see Dieter Simon, ‘Provinzialrecht und Volksrecht’ (1976). 15 This was already known to classical Roman jurists, so much so that an entire section of the Digest is dedicated to lex Rhodia de iactu: Dig. 14. 2. 16 For the application of Nómos Rhodìon at Trani, see for example Nicola Marvulli, ‘Nómos Rhodìon e Ordinamenta et consuetudo maris edita per consules civitatis Trani’ (1963). 17 Various editions are listed in Jus Graeco-Romanum, II, 91–103, 73–89, 63–71.

36 chapter two emphasis on damage to crops – appear in part to anticipate those statutes concerning ‘inflicted damages’ (danni dati), that were issued at a later date by the communes. The social sphere provided for by the Nómos gheorgicós must have been relatively primitive, since taxes on contracts were estimated in kind. Nevertheless, private property was clearly protected by this legislation, as were public properties under municipal administration.18 In southern Italy collections of laws issued by successive Macedonian emperors, starting with Basileus, were issued in a similar fashion. In addition to his political successes, Basileus wished to establish his legislative authority, and was thus intent on reviving the myth of Justinian. The plan was to carry out a ‘purification of the ancient laws’, the proposed title of the collection envisaged by Basileus, with the ultimate intention of laying aside the somewhat basic Ecloga. The resulting text was the Prócheiros nómon (Manuale legum or Procheiron) drawn up between 870 and 879. This appears to have sidestepped the Institutes of Justinian for the widely circulated Paraphrase written in Greek by Theophilus. The Próchiros nómon was subsequently substantially duplicated in the Epanagoghè ton nómon (Repetitio legum), written between 879 and 886.19 Nor was this the end of imperial desires for self-projection, or of their commitment to legislation. Immediately afterwards, probably in 888, the great Ta basilikà biblìa (a huge collection assembled by the philosopher Emperor Leo the Wise), which was known as the ‘Basilici’ or ‘imperial books’, was issued. Consisting of sixty books, this work included material drawn from all the parts of Justinian’s compilation, as well as fragments of juridical culture from the pre-Justinian era.20 The assembled texts reflect a much more rigorous sys- tematization than the corpus of Justinian. Being written in Greek, this work was also more easily understood at that time, and as a result was embellished with a curious kind of index or summary, known in the eleventh century as the Tipucito, or ‘where to find’. This is particularly useful in that it indicates the parts of the text which do not originate from the Basilici.21 These were commented on for centuries by interpreters who,

18 There are references to this in Georg Ostrogorsky, History of the Byzantine State (1980), pp. 135–137. 19 A private individual merged the two books into a single volume under the title Epitomé ton nómon. 20 As a result it also assists our understanding of Justinian’s Corpus; for the text and the scholia see Basilicorum libri LX. Series A. Textus, I-VIII; Series B. Scholia, I-X (1953–88). 21 Tipoukeitos. Libros XIII-XXIII (1955–57).

the multi-faceted eleventh century 37

at least up until the thirteenth century, enriched the text with scholia, the Greek equivalent to Italian glossae, which have been passed down together with the original legal text. The Basilici did not, however, take the place of previous collections, perhaps because they had already been turned into manageable manuals, and were thus convenient for everyday use. In fact, in those parts of Italy which were most closely linked to Byzantium, a number of small works containing legislation post-dating Justinian, but prior to that of the Basilici, and of unknown provenance, were in circulation. The Ecloga privata aucta derives, for example, from the Egloghè.22 By contrast, the Ecloga ad Prochiron mutata, which was went through several versions up until the twelfth century, can be linked to the Epanagoghè. There are even resonances there of Lombard influence, indicating that it may have been produced in the Pugliese or Beneventine area.23 These were borderland areas in which a number of strange, or even bizarre, works were created. The Lectio legum falls into this category.24 This work is preserved in fragmentary form, and in only six short chapters taken from the most diverse sources, which are erroneously identified in a manuscript that was probably written in the Cassinese area around 1050. The prime example of mistaken provenance lies in the inclusion of two pieces of Visigoth law not normally used in Italy.25 The Prochiron legum likewise makes no mention of the Basilici.26 That text has come down to us in a Greek manuscript in the Vatican dating to around 1000, which is possibly of Calabrian origin, and which amalgamates the norms and the doctrines arising from them.27 It is a typical product of the kind of school

22 This work which has already been published in a critical edition (Jus Greco- Romanum, IV, pp. 7–48), and has led to careful study by Fausto Goria, Tradizione Romana e innovazioni bizantine nel diritto privato dell’Ecloga privata aucta. Diritto matrimoniale (1980), who has traced it as far back as the middle of the ninth century (although others trace it back to the Twelfth century). 23 Edited in Jus Greco-Romanum, IV, p. 55 f.; for the work itself, see now Léon-Robert Ménager, ‘Notes sur les codifications byzantines et l’Occident’ (1958), pp. 258–263. 24 For the manuscript from the abbey of Casamari, see Giulio Vismara, ‘Edictum Theodorici’, (1987), p. 262 fn. 700. This work is attributed to Leo ‘the most holy of popes’ and to Emperor Constantine, and would appear to have been based on Institutions transmitted through Justinian’s Novels. 25 But the texts of these were already known for example in the very learned monastery of Mountcassino from the second half of the eleventh century: Cortese, Il diritto, I, p. 250. 26 See Prochiron legum pubblicato secondo il codice Vaticano Greco 845 (1895); for other similar short works see Cortese, Il diritto, I, pp. 308–311. 27 The Epitome Marciana, which, as well as dealing with Byzantine law, also includes a Novel in Greek written by king Roger II in 1150, has likewise been traced to Calabria: see (and also on the spread of other collections), Cavallo, La circolazione di testi, pp. 91–107.

38 chapter two that (as in previous epochs) developed around a judge or notary. Most significantly, it reveals the extent to which the Basilica were ignored in everyday practice. Is it possible that, like the forgotten Digest, this work was too complex for the period? Such an argument is persuasive, but there could be another explanation.28 It is possible that there was a revival of the tendency, already manifested in the West during the crisis years around 500, to distinguish between official law which was regarded as definitive (and thus unchangeable) and applicable over a large area – represented in the later period by the Basilica – and a more flexible kind of law, capable of change and adapted over time to meet practical necessities – like that gathered together in the collections of law prior to the Basilica, and reflected in the aforementioned small manuals.29 Nevertheless, even after the Basilica the emperors continued to issue constitutions that were passed down in various manuscripts, one example being the collection of Byzantine constitutions preserved in Venice.30 It is doubtful, however, that these circulated to any great extent in Italy. The manuscript tradition has instead preserved a Greek translation of part of the edict of Rotari contained within a text dating to the twelfth century.31 This demonstrates the extent to which law was still personalized at that period; there was clearly an enduring notion that each race had the right to observe its own ‘national’ law. It also prompts reflection about the ways in which an ancient law could be preserved, even in a completely different political arena, such as that imposed by the Byzantine hegemony on Benevento.32 In fact, in private affairs the northern part of Longobardia minor continued to use traditional Lombard law, whilst (as already mentioned) in Calabria, Lucania and on the Ionic coast, Byzantine law was adopted even between private individuals. In ‘mixed’ areas there was a progressive convergence of Lombard and Byzantine law.33 It is possible that on some occasions the former was applied, as for example in the

28 See Cortese, Il diritto, I, p. 309 f. 29 For the joint appearance of texts of practical use with those that had subsequently fallen out of use (such as Justinian’s Novels) see Guglielmo Cavallo, ‘La cultura Italo-Greca nella produzione libraria’ (1982), p. 560, which offers a very clear picture of Byzantine civilization in Southern Italy. 30 However, by some no longer attributed to an Italian source: see Ménager, ‘Notes’, p. 272 f. 31 Reproduced by Friedrich Bluhme, the most authoritative editor of the Lombard laws, in MGH Leges IV, pp. 225–234. 32 Ménager, ‘Notes’, p. 251 f. 33 One example is a text with legislation considering agrarian relationships: Simon, ‘Provinzialrecht’, pp. 102–116.

the multi-faceted eleventh century 39

context of the monetary compositiones (penalties) imposed for crimes, whereas in other situations (as for example in the context of marriage, family affairs and discussions surrounding successions) Byzantine law prevailed.34 Records concerning Byzantine Italy, which date mostly to the tenth and eleventh centuries, are usually written in Greek. They were drawn up by tabolarioi assisted by scribae (dubbed notarioi in the Greek). For the most part (and as in the past) men of the church, these individuals continued the practice of using notarial formularies established in Byzantium under Justinian.35 Like the notaries of the Kingdom of Italy, they tried to match the contractual realities of their time with a mass of inherited formulations. Naturally enough, the most autonomous regions developed the most original customs. Naples, for example, although part of Byzantine territory, was also influenced by nearby Lombard regions.36

b) The Kingdom of Italy in the Period between Justinian and Lombard and Frank Law In the Kingdom of Italy, the principle of law customized to accommodate diverse people (nationes) living side by side for centuries, conserving and handing down their own juridical traditions, essentially their own private law, was still alive in the eleventh century. For certain traditional procedures, or in order to have certain juridical effects, a group could have recourse to their own particular laws, but these worked alongside a large body of rules held in common by all citizens. In other words, the common body of law was not incompatible with the survival of separate bodies of law that were distinct in form, according to their different origins. Neither was it incompatible that such laws should be handed down and circulated in various ways. Conservation of these texts was assured through a culture that preserved the written word, which it indubitably did despite contemporary hazards both in the Byzantine period and in modern Italy. In the century during which Milan – according to political and institutional history – was already significantly at the centre of political intrigues, Papias – author of a celebrated Elementarium written in

34 As a result, the Greek edict consisted of a selection of penal laws only: Giovanni Gay, L’Italia meridionale e l’Impero bizantino. Dall’avvento di Basilio I alla resa di Bari ai Normanni (867–1071) (1917), p. 538 f. 35 Mario Amelotti, ‘L’età romana’ (1975). 36 Giovanni Cassandro, ‘I curiali napoletani’ (1982).

40 chapter two

Lombardy in the middle of the eleventh century – described rhetoric as the ‘tool for speaking well, and for jurists especially necessary in civil lawsuits’.37 Papias also singled out northern Italy as the seat of the very best schools, claiming that ‘Lombardy was the seat of knowledge’.38 It goes without saying that there must also have been good teachers of law. In fact the nobleman Lanfranc (1010–1089), renowned abbot of Bec and later archbishop of Canterbury, spent his youth in Pavia, where he studied ‘liberal arts and secular law according to the customs of his homeland’.39 Pavia, which also housed the royal palatium, and thus the kingdom’s central tribunal, is in fact credited with the definitive compilation before the middle of the eleventh century (but already circulating in a different form at an earlier date) of a collection in comprehensive chronological order of the edicts of Lombard kings between 643 and 755 as well as of Frank laws (known as the Capitulare italicum), and the laws of Salic-Saxon emperors for Italy.40 This is the Liber Papiensis, so-called because it was associated with Pavia, but is referred to in documentary sources as the Liber legis langobardorum.41 The next step – imperative in order to make the best use of a text – was to assemble all this material according to subject-matter. This took place before the end of the eleventh century, in the collection that at an early date was already known as the Lombarda, a shortening of Lex Longobarda, in reference to the work’s principal content.42 The success of both of these texts is illustrated by the diverse forms in which they have come down to us. Moreover, the fact that they were drawn up at all confirms not only the relevance of Lombard law even during the eleventh and twelfth centuries, but also the continuing interest and reflection about its content.

37 ‘Ratio dicendi et iurisperitorum, quae maxime in civilibus quaestionibus necessaria est’; from Quintilianus (Inst. Orat. 12.3), but see also Cassiodorus: Calasso, Medioevo, p. 278. 38 ‘In Longobardia, ubi ego plus didici, est fons sapientiae’: Adhemar de Chabannes, ‘Epistula In apostolatu S. Martialis’ (1853), col. 108. 39 ‘In scholis liberalium artium et legum saecularium ad morem suae patriae’: Milo Crispo, ‘Vita Lanfranci’ (1850), col. 29. 40 Reference has already been made to the current edition of Lombard laws; for Frank laws one should consult I capitolari Italici. Storia e diritto della dominazione carolingia in Italia (1998). For Saxon and Salic laws the obvious source to consult is the Constitutiones et acta, I (1893). 41 Edited by Alfred Boretius (Liber Papiensis, 1868), together with the Expositio appearing in only one manuscript preserved in the National Library at Naples. 42 See The Lombard Laws (1973); Christoph H.F. Meyer’s ‘Auf der Suche nach dem lombardischen Strafrecht. Beobachtungen zu den Quellen des 11. Jahrhunderts’ (1999) is also important.

the multi-faceted eleventh century 41

Despite the fact that the royal palace was burnt down in 1024 by citizens in revolt and never rebuilt, Pavia must have been the seat of a notable school associated with judicial activities during Lanfranc’s youth. We know about judges such as Bonfilius (active between 1014 and 1043) and Bagelardus thanks to an important work that discussed Lombard and Frank law, albeit surviving in only one manuscript. The text in question is the so-called Expositio ad Librum Papiensem, datable to around 1070. Here, the unknown author tries to reconcile discordant norms in a manner not practised for centuries, querying for example contradictions between punishments for theft laid down by Rotari and by Charlemagne. Did Charlemagne’s edict, which envisaged corporal punishment, completely replace that of Rothar, or was it applied only in those cases where the compositio, or penalty and fine, envisaged by Rotari was not enforced, as argued by an individual named Ugo? Or again: what could be established about women’s inheritance given the differences between norms laid down by Rotari (cap. 153) and by Liutprand (chap. 1–3)? And, was the relatively recent constitution issued by Otto I concerning duels valid even in the context of the consignee who refused to return what had been consigned to him? Only at Pavia, it is often argued, could there have been the magistri (masters) and discipuli (students) mentioned in the Expositio ad Librum Papiensem. But it has also been noted that the palace judges referred to could have worked elsewhere, given that this period was known for its freedom of mobility of both ideas and people.43 It is, moreover, significant that the script of the code through which this work has been handed down is Beneventine. If one looks at the contemporary judgements signed by these same judges, it is also clear that they are drawn up in the customary form, which would seem to suggest that they were not associated with such a sophisticated environment as Pavia. Such was the sophistication at Pavia that even Roman law was adopted when considered useful, and this included the Digest.44 How such law was used is particularly significant. For example, where it was claimed that ‘we should put more faith in the authority of Roman law than that of rhetoric’ (ed., p. 573), the case in question involved reference to the Institutes of

43 Giovanna Nicolaj, Cultura e prassi di notai preirneriani. Alle origini del rinascimento giuridico (1991), p. 28 f. 44 In fact, the Expositio cites the Institutions some 95 times, the Codex 77 times, the Epitome Iuliani 36 times, and the Digest, 10: see Giovanni Diurni, Ricerche sull’Expositio ad Librum Papiensem e la scienza giuridica preirneriana (1976), pp. 60–98, 124–164; Cortese professes some doubt in Il diritto, II, p. 25 fn. 45.

42 chapter two

Justinian in order to extend the practice of the judicial duel, or pugna (in other words, an institution that had nothing to do with Rome) on the hypothetical basis that a judge and another jurist might contest each other. Roman culture was useful in offering ways of arguing rather than describing specific content, and, in turning to that source, both the ancient jurists and the Expositor demonstrated that Roman law was regarded as ‘general’, and thus relevant for everyone.45 Therefore, here also, and as the previous response to the Basilica in the Byzantine world had seemed to indicate, the idea of a competition or conflict between a fixed law (which was potentially honed to perfection) and flexible norms (adapted to suit everyday practice) was already well established. There is confirmation of this in a collection of annotations to the Liber Papiensis which is comparable to the Expositio in its comprehensive evaluation of Roman law. Moreover, this work is definitely of Lombard origin, since Gualcosius, to whom it is attributed, was a judge at Pavia. It has also been handed down in at least two manuscripts, indicating that it must have had a relatively wide circulation. It is also interesting that it was produced at the same time as the Expositio, but that the two works make no reference to each other. It is even more significant that the collection of annotations suggest the involvement of a group of jurists who also made philological comments about the text of the Frank-Lombard law book.46 The ‘fixed’ or established law at the basis of every legal enquiry had to be that of Rome. Roman law was not only the most comprehensive, but – being written in Latin – also offered a common technical language to all. It would in fact be profoundly wrong to think that the Kingdom of Italy – whether from the point of view of its being Frank-Lombard or from the point of view of its origins – could have shaken off the link with Rome. In the Kingdom of Italy, the customary contractual law adhered to by those people who were naturally disposed to recognize Roman traditions (or more precisely, those people who did not feel any sense of associa tion with the German groups) was upheld by the Church (which nor mally opted to abide by Roman law). However, if necessary, such practice could also be adopted by those who maintained that they were, historically speaking, heirs to other traditions. Contractual law formed part

45 ‘lex Romana, quae omnium est generalis’; see a recent consideration of this in Antonio Padoa Schioppa, ‘La cultura giuridica’ (1987). 46 Charles M. Radding, ‘Petrus te appellat Martinus: eleventh-century Judicial Procedure as Seen Through the Glosses of Walcausus’ (1997).

the multi-faceted eleventh century 43

of accepted arrangements for local autonomy and there was no public power sufficiently omnipresent or with claims to exclusive authority who could feel disadvantaged by this. Even so, in the Kingdom of Italy it was above all the learned members of the Church who were engaged in the preparation of the collections of Roman texts that were circulated during these centuries. Justinian’s Institutes, apparently regarded as simple enough for easy comprehension, were not circulated in abridged form. They also contained several different layers of annotations in their margins – some of them even by scholars from Pavia.47 By contrast, the Digest had already disappeared by the early middle ages. This was probably because of its excessive length and technicality. Because it was essentially concerned with texts dating to the pre-Christian era of Rome, the Digest did not consider the rights and privileges of the Church and its property. As a result, its contents attracted little interest from ecclesiastics of later periods. The Novels for their part were known only in simplified form: either through the Epitome Juliani, which gave rise to a number of different collections, or through even more selective collections that contained only those texts referring to problems faced by ecclesiastics, or areas with which they felt some resonance (in other words, anything from the privileges of the churches to marriage).48 In fact, a more or less systematic anthology of the law of Justinian, although naturally excluding the Digest, and mostly based on the Novels, had been produced in the ecclesiastical sphere by the ninth century. This anthology was, moreover, annotated between the ninth and tenth centuries, and was still used by notaries in northern Italy in the twelfth century. This was the Lex Romana canonice compta.49 It was based in large part on an abridged version of the Novels, but also encompassed a number of other sources, bringing it up to date. Amongst these was a part of the capitulary issued in 825 at Olona by Lotarius, who was renowned for reorganizing teaching methods in the Kingdom of Italy. The Lex Romana canonice compta was certainly not the only anthology. There are indeed indications that one such collection had already been drawn up in the Carolingian period, and that this was subsequently

47 Cortese, Il diritto, II, p. 26 f. The most recent edition is by Victor Crescenzi, La glossa di Poppi alle Istituzioni di Giustiniano (1990). 48 There is a good discussion of this in Cortese, Il diritto, I, p. 243 fn. 94. 49 This work is included in a collection of canon law, see Lex Romana canonice compta (1927), but its incipit declares ‘Capitula… Romane legis ad canones pertinentia’. For its later use, see Guiscardo Moschetti, ‘Tre documenti veronesi dei secoli XI e XII e la ‘Lex Romana canonice compta’: Nota per la storia del diritto romano nel Medioevo’ (1931–32).

44 chapter two modified in a number of different ways. In any event, the work was widely circulated. It is referred to simply as the Lex Romana.50 But it could also have emerged elsewhere, given that reference is made in a number of Venetian sources to a Liber Romanae legis.51 The Venetian records appear to be associated with the Provencal Codi, and contain citations from the Digest which depend neither on the Florentine edition, nor on that subsequently known as the vulgata.52

c) Areas of Transmission of Justinian’s Law While it is true that in Lombard regions Roman law was regaining more and more credibility, and that attention was not given to contemporary Byzantine law, but rather to the Roman law of Justinian, it is clear that the best conditions for Roman law to survive and prosper were in those Byzantine areas that had broken away from Byzantium at an early date: in other words, in those regions where the Pontifical State was forming. This area consisted of the Patrimonium Beati Petri, a bishopric domain favoured by the Byzantine government, as had been the case elsewhere beginning with Ravenna, but with which the East had had ever fewer dealings following the fierce iconoclastic conflicts of the eighth century which finally culminated in the schism of 1054. In short, it was the territory liberated by, or never occupied by the Lombards but which the Papacy maintained fell within its jurisdiction as a result of Carolingian donations, even though it was ambiguous about Imperial protection and, by inference, its superiority. By and large, the law of Justinian was applied in this area, although on the condition that it should be adapted in the light of prevailing circumstances. This resulted in the widespread circulation of many consuetudes that specified or modified Justinian’s law, both inside and outside the cur- tes (individual farm holdings). In addition, individual laws were designed

50 An eleventh-century text makes specific reference to ‘VIII cap. in lege Romana’, but this is not that of the ‘canonice compta’ because the citation is not compatible with that: see now Giuseppe Russo, Tradizione manoscritta di Leges Romanae nei codici dei secoli IX e X della Biblioteca Capitolare di Modena (1980), p. 32 f. Apart from this, Charlemagne had given orders one of his missus that if in doubt he should read and follow Roman law (‘Romanam legem et sicut ibi inveneris exinde facias’): Cortese, Il diritto, I, p. 246; see ibid. for the case of the document of Spalato dated 1076, that passed off as Lex Romana a passage that was in fact a norm from the edict of Rotari (I, p. 244, for the Collectio Anselmo dedicata, a collection of canon law with a large amount of Romanist material). 51 Benvenuto Pitzorno, ‘Il ‘Liber Romanae legis’ degli ‘Iudicia a probis iudicibus pro- mulgata’ (1908), and ‘Il ‘Liber Romanae legis’ della ‘Ratio de lege Romana’ (1907). 52 See Andrea Padovani, ‘La politica del diritto’ (1995), p. 327 fn. 3.

the multi-faceted eleventh century 45

locally precisely to account for dealings with the dominus, or lords, whether lay or ecclesiastic. The ties with the Roman tradition were so strong that even in tenth century Ravenna people talked about the tabelliones, the Latin term for notaries which was no longer in use in the Frank-Lombard region. The tabelliones also acquired the title curiales in memory of their links with the citizens’ meeting place (‘curia’). They were organized in a guild or corporation led by a prototabellio. Links can be drawn with Naples, although there notaries were gathered together in an ordo, or separate social category. Moreover, during the tenth and eleventh centuries, there was an early use not only of the full text of the first nine books of Justinian’s Code, but also of the Novels, through a text that differed both from the Epitome and the Authenticum.53 In Rome, apart from the tabelliones who continued the Romanist tradition, there were also during the same centuries a number of document compilers for the papal chancery known as scriniarii sancte romane ecclesie. The scrinium was the place where the writing was done and where manuscripts were preserved: an archive, according to the dictionary of Papias. Over time the scriniarii sancte romane ecclesie superseded the tabelliones. There was therefore already a form of juridical culture that, in the eleventh century, would achieve particular brilliance as a result of the great Gregorian dispute. However, the manuscript known as the Summa perusina – because handed down through a code now in Perugia – dates to the tenth century.54 This is an important work that may have been drawn up two centuries earlier, and that illustrates well contemporary tendencies towards simplification of the law. This work was circulating in the territory of Rome around 1000.55 Roman sentences issued between 996 and 1014 also show that it was used in Sabina.56 The Summa perusina provides us

53 Nicolai, Cultura, pp. 37–40. 54 For this edition see ‘Adnotationes Codicum domini Justiniani (Summa Perusina)’ (1900). The work breaks off at Cod. 8.53.9, which would seem to confirm that a decision was taken in the early Middle Ages to eliminate the Tres libri of the Codex. 55 For this reason also, it seems unlikely that Otto III would have consigned a Codex to a judge with the admonition that he should follow the dictates of that grand legislator ‘antecessoris nostri’; in any case, we now know that this was in fact a rite described in a formula that post-dated Otto’s death (Cortese, Il diritto, I, pp. 353–354). 56 ‘Adnotationes Codicum’, p. xlii f. Pierre Toubert also re-examined judicial matters up until 1100, and identified the Roman law suit in which ‘lex iustiniana’ first displaced ‘lex Romana’ (Les structures du Latium médiéval. Le Latium méridional et la Sabine du IXe à la fin du XII siècle (1973), p. 1234 fn. 4).

46 chapter two with a constitution-by-constitution summary of the Code of Justinian, with a synthesis that clearly reflects the culture of the time, one example being the paraphrasing of dies fatales with mors – in other words, death representing the limit for exercising rights of appeal.57 At times, it also misinterprets the original text in the light of contemporary realities. For example, the Roman word officium is translated as collegium, suggest- ing a continuation of the Roman guilds. Likewise, curia is substituted for magistratus or defensor, encouraging speculation that the citizens’ deliberative assemblies continued to flourish. There is more. The fact that stipulatio appears as scriptum has prompted the suggestion that the antique Roman form of obligation had been transformed into a written contract.58 Apart from the Summa, there was another code in circulation, the Epitome Codicis, brought to light thanks to several manuscripts and in particular through a Pistoian work of the tenth century. The Epitome Codicis contained several unabbreviated texts from the Code in their original form, indicating a somewhat pragmatic response with only those texts considered still useful being reproduced. We know that in the second half of the eleventh century judges were not only very familiar with Justinian’s Institutes and the Epitome Juliani of the Novels, but also with the Code itself. In fact, the office of public notary (as well as other officials elsewhere) was turning more and more to sources associated with Justinian at a time when the pope (assisted by a number of legal experts) was administering justice in the ‘patriarch’s abode’, or Apostolic Palace.59 As in lay society, the presence of men of law prompted recovery of all these texts. In 1060, during a law case in Rome attended, along with the Pope, by the future Gregory VII and the cardinal of Silvacandida (who contended that simony was heretical and who supported the election of clergymen), reference was made, for example, to a passage in Justinian’s Code (Cod. 7. 65. 1) that denied appeal to anyone found guilty of voluntary default.60 Slightly later, in 1107, when the Roman monastery of SS. Cosmas and Damian was facing prosecution, its rector

57 Padoa Schioppa, ‘La cultura giuridica’, p. 167 fn. 218. 58 For the historiographic sources see Cortese, Il diritto, I, p. 242 fn. 87 f. 59 Pierre Toubert,’ Il patrimonio di S. Pietro fino alla metà del secolo XI’ (1987). 60 In this particular instance we are dealing with members of the Crescenzi, a Roman family that had played a decisive role in papal affairs during preceding decades, and who had been oppressing the people and lands of the monastery of Farfa.

the multi-faceted eleventh century 47

(director) cited several learned passages from Justinian’s Corpus iuris civilis.61 Transmitter or mediator par excellence of Justinian’s law was Venice. As early as the ninth century Venice assumed the right to make its own laws. Remarkably, these laws have been preserved, largely because deliberations concerning the population as a whole, whether an international treaty or a sale of public property, were witnessed, or established by collaudatio popoli or popular consent.62 The oldest surviving record, dated 960, reveals that the doge as spokesman, assisted by the patriarch of Grado, various bishops and sixty-five Venetians representing the entire assembly, renewed the prohibition of slave trading in the East or on the mainland, in the ‘public building’ (in publico palatio). The lending of money to anyone involved in such commerce was also prohibited. A similar edict had in fact been issued almost a century earlier, but had fallen into disuse. There was the threat of a monetary fine, as was later to become common practice in communal statutes. Non-payment of the fine was to result in corporal punishment – in the case in question, mutilation or death and the confiscation of property. Excommunication was an additional punishment imposed by the Church. In 971, the entire Venetian populus, consisting of leading upper-class citizens, the middle-classes and the least well-off members of society (‘maiores, mediocres et minores’) solemnly swore on oath not to traffic with Saracens in arms or wood used for boat-building. In 998 a law was established by all the people (‘decernimus’, we enacted) ‘iudices et nobilles homines’ (judges and nobles), as well as individuals from the highest to the lowest strata, forbidding incitement to rioting and demanding respect for the palatium. Clearly, these were norms that we would today call public law. In private matters, unless there was some reason why the state should intervene, use would have been made of the old Roman law (by now customary), through recourse to collections such as the aforementioned ‘book of Roman law’. In Venice, law continued to be territorial by dint of the cohesion amongst the ranks of those who had sought refuge in the Lagoon. Foreigners, it seems, were the only ones who were concerned with occupying themselves with their own laws when involved in legal issues.

61 Antonio Padoa Schioppa, ‘Il ruolo della cultura giuridica in alcuni atti giudiziari italiani dei secoli XI e XII’ (1980). 62 This is well-illustrated in the context of Venice by Giorgio Zordan, L’ordinamento giuridico veneziano. Lezioni di storia del diritto veneziano con una nota bibliografica (1980), p. 175.

48 chapter two

2.2. The Weaving Together of Secular Powers and the Church

We need to clarify how the adoption of Roman law by the Church – as demonstrated by works such as the Lex Romana canonice compta – encouraged its wide circulation. It is a fact that the union between temporal civil law resulting from lay authority, and the law produced by ecclesiastical authority, was already firmly established in this culture. The predictable outcome was that when a secular punishment was meted out, the religious authorities added their own purgative penance, a technical term of the time, deriving from purgatio. Punishment for the crime committed was based on local ‘Penitentials’. On occasion, however, a misde- meanour might not be punished as a crime against secular legislation. Unlike the soul-searching complexity of religious law, secular legislation was concerned with external facts, enquiring little about the forum, or ‘inner court’ or – as it would later be called – the individual’s conscience. The relationship between lay and ecclesiastical law resulted in the bishops advising the counts to apply spiritual sanctions as well. This marked the beginning of the ‘secular arm’ of the law. But the division of competence was complicated by the fact that the bishops (since the time of the late Roman Empire and by virtue of their own office) operated their own system of justice (episcopalis audientia), which developed in parallel with secular law: the latter was even considerably weakened by the effi- ciency of episcopal law. The bishops’ system of justice was clearly directed towards the clergy, subjects of the bishop, their ordinary judge.63 But in matters of faith, members of individual congregations were also subject to the same laws. As a result, a vast area of competence emerged. One has only to think of the jurisdictions governing oath-taking, which was widely adopted to reinforce every kind of juridical act. Continuing the course already carved out by Justinian’s law, the symbiosis established between local churches and lay authorities increased from the Carolingian period onwards. Indeed, the learned men of the Church taught members of the lay community how to behave and how to become ‘public’ authorities. In effect, the Church established a culture of government, a system which they themselves had inherited, and which depended on the great Roman-Byzantine model. In the West, the inter- penetration between these two ‘orders’ (or ranks, in modern parlance) of

63 See Orazio Condorelli, Ordinare – iudicare. Ricerche sulle potestà dei vescovi nella Chiesa antica e altomedievale (secoli II-IX) (1997).

the multi-faceted eleventh century 49

society was already considerable in the Carolingian period.64 This had major consequences, because not only was the public importance of bishops accentuated at local levels, but, as public functionaries with general responsibilities towards local communities that were already based on the law of Justinian, these individuals in effect, even if not formally, assumed the role of counts.65 Most importantly, lay public powers were constantly reminded of the ‘centrality’ of the law that the Papacy, which had obviously grown out of Roman-Byzantine culture, referred to as its own (although it was clearly that of Rome). When, during the middle of the eleventh century, the Papacy interfered in European affairs with the Gregorian Reform, in some cases with trau- matic results, the various factors that had already conspired to favour Roman law became even more marked. The reform proposed at Cluny took as its central proposition the relationship with Rome and the concept that bishops should be liberated from positions of lay authority, so that they could concentrate on being the guiding forces of Christian society. This is well illustrated by the bishops’ promotion of God’s ‘truces’ (or ‘respites’) and ‘offerings of peace’. So far, so good. It resulted in a redefini- tion of the relationships of individual churches not only with Rome, but also in the context of different local powers. It also inevitably cut across the construction of a unitary canon law ruled by the Papacy – as for example in the programme of the Dictatus papae by Gregory VII. It consisted of formally binding together, that is by law, the ecclesiastical apparatus of power; separating it from lay authorities; and attempting to overpower the aggravating autonomy that facilitated subjection to lay powers. In this way the power of the Papacy was also re-established under the banner of Roman law. Existing autonomies that were already evident through the fragmented and diversified dissemination of the Penitentials are well-illustrated by contemporary local regulations that would have been unthinkable in a later period. For example, local councils exerted special authority even over marriage – as illustrated by the council held in Berry in 1301 that decreed that an adulterous wife could be disowned, and that where adultery was confirmed, an individual could remarry.66

64 As a result, public ritual may have been more closely connected with the ‘sacred’ in the West than in Byzantium: see Michael McCormick, Eternal Victory: Triumphal Rulership in Late Antiquity, Byzantium and the Early Medieval West (1990). 65 See Pierre Toubert, ‘I poteri pubblici dei vescovi del Regno d’Italia nei secoli X-XI’ (1995). 66 Cortese, Il diritto, I, p. 292 fn. 10.

50 chapter two

If the Papacy was intent on establishing, as we might now say, its social and political subjectivity in the face of lay authorities, it was important at this juncture to construct an autonomous and unitary law concerning the ordo clericorum, or clerical order. In pursuit of this, the reformers (whether Gregorian or other) could not but turn to older traditions, by now sufficiently re-established, in an attempt to contest the customs of the time. This is clearly reflected, for example, in a judicial process recorded by a learned abbot of Mount Amiata,67 who had quar- relled with the bishop of Chiusi over the exaction of taxes in territory from which the abbey itself stood to benefit, following repeated bestowal of imperial and papal privileges. Referring to numerous Lombard and Carolingian laws, the abbot contested the bishop’s claims, and wrote to the count requesting that he should accompany him into the king’s presence in order to obtain justice. Similarly at Neuburg in 1007, we find that the abbots of Mount Amiata and Sant’Antimo (a monastic complex at the foot of Mount Amiata) apparently faced similar problems as plain- tiffs against the bishop of Chiusi (the defendant), who was resisting their request that he should consecrate churches that were dependent on them. The bishop maintained that relevant taxes had not been paid. When the abbots showed him their documented privileges, the king closed the dispute, rendering the bishop ‘contentum et tacitum’ (satisfied and silent). One of the documents was in fact false, alleging that the monastic complex on Mount Amiata had been founded by the Lombard king Rachis. Apart from the important insight that this gives us on the history of the tradition of legislative texts from the Frank-Lombard period, it is interesting to note the prominence of lay justice in a question that was purely ecclesiastical (once again, the interlacing of which we have spoken). In the course of this very learned dispute, the validity of pontifical dispositions was denied when contradicted by worldly law (mundana lex). Moreover, no recourse was made to Roman law, either by the ecclesiastic organs or the imperial office.68 There were clearly a number of doubts about a canon law that was entirely autonomous from lay legislation, and which would thus need to be recognized as such in a civil court. It was perhaps also relevant, as we

67 Pier Silverio Leicht’, Leggi e capitolari in una querimonia amiatina dell’a. 1005–6’ (1907). 68 Ibid., p. 547; ‘apostolica praecepta (…) non curant (…) contra mundanam legem esse affirmant’, p. 551.

the multi-faceted eleventh century 51

shall see, that reference was made to their being proprietors ‘et canonico ordine et legibus’ (according to both civil and canon law). Without doubt it was because of this that in 1047 a singular constitution was issued at Rimini by emperor Henry II, which had apparently been ‘suggested’ to him by learned ecclesiastics of his chancery. Arguing that in Justinian’s time the canons of the Holy Fathers were equivalent to laws, Henry II decreed that the oath of ‘calumny’ (iuramentum calumniae) which was offered at the beginning of a process as a guarantee against engaging in a malicious suit (referred to in Cod. 1.3.25.1), should never be requested from members of the Church. This was in recognition of the stricture applied to such individuals by the canons.69 In fact, the law of the Church was without doubt recognized as lex divina – perhaps precisely in order to silence anyone who still did not recognize its validity as deriving from imperial law – and that, together with imperial legislation, it formed an utraque lex, or parallel law. This was not an isolated attempt: several decades later, during the time when the conflict between the Papacy and the Empire was most fierce, it was indeed the famous Defence of Henry IV (the king of which more will be said elsewhere) that re-affirmed the same ideas: that is, two laws established by ‘divine Goodness’ for the use of both the clergy and the people. In particular, there should be no violation of the ‘sanctity of divine law’ in order to avoid committing the crime of sacrilege which was punishable by the ‘legislator in libro Codicis’ (Cod. 9.29.1). Despite being pro-emperor, this edict in fact reflected deep-rooted ideas. Isidore, the bishop of Seville, saw two different kinds of law: divine law, based on nature, and the human law depending on the ‘mores’ or customs of a people (Etym. 5.2). He thus encouraged the tendency to reposition canon law alongside that of the divine – a tendency naturally strengthened at this point by the hierocratic choices imposed upon the Church by the reforms.70 Isidore likewise encouraged belief in the absolute superiority of natural law, which blended with that of the divine. A similar concept existed around the same time as the Defence of Henry IV in a sentence presided over by the same emperor and issued

69 See mainly Pierre Legendre, ‘Le droit Romain, modèle et langage’ (1988). The problem had arisen as a result of an error in the inscriptio of the constitution of the Code currently in use at that date. 70 For theological testimony, see Giovanni Santini ‘‘Canones et leges’: il diritto canonico come diritto comune dell’Europa altomedievale. All’origine della penetrazione del diritto di Giustiniano nella penisola iberica nel XII secolo’ (1994).

52 chapter two around 1080 or 1090 in Lombardy.71 A magister Pepo emerged in this case and reacted vehemently against a mere monetary fine (compositio) being levied for the murder of a servant. Rejecting the normal application of Lombard law (that presumably derived from the Liber Papiensis), this Pepo – described as a teacher (bàiulus) of the Code and Institutes of Justinian – successfully requested, and in doing so reduced the assembled judges to silence, that such a crime be punished by the law of retaliation: death for a death. In support of such a heavy penalty, Pepo did not turn, as he might have done given his own teaching, to the Institutes (Inst. 4.18.5) with their provision for the death penalty; neither did he turn to the Code (Cod. 2.4.18), which decreed that one could ‘compromise’, in other words, come to an agreement over capital punishment. Instead, he drew attention to the fact that the condition of servitude did not remove the ‘human condition’ of the murdered victim. Was this an implicit reference to natural law as in a fundamental passage of the Digest (Dig. 1.1.4): ‘iure naturali omnes liberi nascerentur’; according to the law of nature, all are born free? Or was it more simply a memory of Isidore of Seville, who maintained (Etym. 5.27.24) that the law of retaliation was based on ‘et natura et lege’, with specific reference to the eye for eye, tooth for tooth that, according to the Sermon on the Mount (Matthew 5.38), Jesus repudiated? It is impossible to say. But while Pepo does not appear to have been a great expert on Roman law, there seems little doubt that a discussion was developing about the problem of natural law as a superior process that should be imposed on real law, especially in the field of canon law. The same discussion also appears to have influenced the production of a number of works which can be dated to Pepo’s time, and which may even have played a part in establishing his fame in France. There has been ongoing discussion about the age and provenance of these works, not least because they have been handed down by a number of witnesses and with many variations. They nevertheless attest to attempts by the Church to select Romanist subjects for inclusion in collections that were useful for both teaching and practice. In this context, mention should be made of the Book of Tübingen, so called after the place where it is preserved (but which was probably Italian, if not actually Tuscan), that subsequently underpinned the Exceptiones legum Romanarum, which is said to have

71 This narrative is known through the work of an English theologian who was a professor in Paris a century later (and who could thus have gained information from some inter- mediary source): Ludwig Schmugge, ‘Codicis Iustiniani et Institutionum baiulus. Eine neue Quelle zu Magister Pepo von Bologna’ (1977).

the multi-faceted eleventh century 53

been written by an individual named Peter. Finally, there was the Brachylogus iuris civilis or Corpus legum, an extremely successful work that was re-issued even in early modern times together with the Corpus iuris civilis. Here in particular, reference was made to that rarely cited passage in the Digest that re-emerged at Marturi (as discussed later). As a result it has been suggested that Pepo of Marturi was the author – even though the work was primarily known in France. It is possible that these works originated in Italy, and that they were subsequently abandoned when overtaken by the more refined exegisis of Irnerius. By contrast, they remained in circulation for a longer period of time in France, where they were rewritten and embellished with annotations in the course of the twelfth century.72

2.3. Canon Law Prior to Gratian

The ecclesiastics did not occupy themselves solely with Roman law, however; at this time they were also concerned to complete the construction of canon law, a project to which the Papacy in particular had been dedicating itself for centuries. A first instance of this had in fact already occurred under pope Gelasius I (491–496). This was the pope who, when in conflict with the Eastern Church, reclaimed the government of the world for ‘pontiffs’, together with the kings.73 Most significantly, he was the same individual who promoted the study of the earliest texts concerned with canon law. Gelasius was responsible for the translation into latin and the systemization of the canons of the great ecclesiastical councils of the ancient world, along with the pontifical ‘decretals’, extracted from epistulae decretales (the letters through which the popes resolved conflicts that were brought to their attention). The use of the term decretum should be noted, since this was typically used by the imperial chancery. The Eastern Church had already adopted a different approach, tending to integrate the councils with passages from the Church Fathers or from

72 See Cortese, Il diritto, II, p. 54 f. In the preceeding pages Cortese discusses the principal questions arising from these works, also taking into account the re-appraisals of Nicolaj, Cultura. For the editions, see Scritti giuridici preirneriani (1937). For the theological context Padovani, Perché chiedi. 73 This is known as Gelasius’s dualistic principle, because it concerns the two authorities that govern the world: that of the popes and that of kings (‘Duo quippe sunt… quibus principaliter mundus hic regitur: auctoritas sacrata pontificum, et regalis potestas’).

54 chapter two the Saints (dicta canonica). Be that as it may, the pontifical enterprise was the work of Dionysius Exiguus, a scholar working in Rome in the years around 500 and up until 526: a first sign of Justinian’s subsequent great undertaking.74 Named Dionysiana after its editor, this collection clearly demonstrates the Papacy’s preference for the imperial Roman model of legislation. The subsequent period was not however the most favourable for the production of a tome of unified papal regulations, given that the Papacy was preoccupied with its conflicts with the East. It was instead during the Carolingian period that favourable conditions existed for the dissemination of the Roman model of legislation. In 774 the Dionysiana collection, which had been reworked and enlarged by pope Hadrian, and was thus known as the Collectio Dionysio-Hadriana or simply the Codex canonum, was solemnly handed over as a model of unitary government to Charlemagne by the Church under the emperor’s leadership.75 In fact, the intention was to undermine other collections in circulation (and in particular the Hispana), and this was in part successful, even though many of the norms contained in the Codex canonum were absorbed into the capitularia ecclesiastica, the Carolingian lay dispositions relating to the Church. Once more, the same preoccupation with a unitary Christian government underpinned the success of the Decretales pseudo-isidorianae (around 847–852).76 This collection, which was of considerable practical importance for centuries, contained texts falsely attributed to popes, canons and councils alike.77 Nevertheless, the auctoritas of the collection amongst contemporaries resulted in these fakes being accepted as authentic as late as the twelfth century, and on occasion even later. One has only to think of the so-called (and false) Donation of Constantine, in which the emperor cured of leprosy is said to have given Rome and the Western Empire to the Pope. This was widely circulated as a direct result of the Decretales, and thereafter through the very influential Decretum of Gratian. But local powers and cultures often developed along their own paths, as is illustrated amongst other things by the eruption of the

74 Franca De Marini Avonzo, ‘Secular and Clerical Culture in Dionysius Exiguus’s Rome’, (1985); the text is in the large collection of PL (67, coll. 135–216). 75 Ed. Pierre Phitou (Parisiis, 1609), a good example of humanist work. 76 The principle was apparently that of supporting the power of individual bishops against the primates or patriarchs, giving rise instead to the papal plenitudo potestatis. 77 Ed. Paul Hinschius (Lipsiae, 1863, repr. Aalen, Scientia, 1963). Horst Fuhrmann, Einfluss und Verbreitung der pseudoisidorischen Fälschungen (1972–74) is a fundamental work in this context.

the multi-faceted eleventh century 55

penitential movement (particularly during the turbulent tenth century, which signalled the lowest point of papal power). Such a combination of power was in fact only realized at the height of the Christian period. But it persisted as a model, requiring the restored Empire to return to the Roman and Carolingian model of the Church inside the Empire, the Reichskirche of German scholars. Thus, Otto I in his famous privilegium of 962 attempted to control papal nominations, rejecting the right of the ‘people’ and the Roman clergy to voice their preference. In effect such practice would have given control of the papal seat to a few local aristocratic families. Recent pontifical events had convinced many that the reform of the Church should be considered in the light of creating a strong Church for the State. That much is clear from the very popular Decretum (1008–1021) issued by Burkhardt, bishop of Worms (d. 1025). This was a collection of canon law of the highest quality: no longer in chronological order, but systematic, thus requiring a sensitive re-ordering of texts according to subject-matter. It assimilated a large part of the Decretales pseudo-isidorianae and concentrated almost entirely on the powers of the bishops. As such, it was clearly disposed to contest all forms of centralized power. The collection is preserved in some eighty manuscripts, four of which were produced in the scriptorium instituted under the supervision of Burkhardt in Worms.78 These offer clear evidence of the favourable response to the Decretales pseudo-isidorianae in Europe. It clearly filled a gap, offering a reliable guide to every member of the clergy on how to operate in strict symbiosis with political powers. As a result, schools concerned with teaching the liberal arts were established in monasteries and cathedrals,79 where the current feud between the Empire and the Papacy required a particularly subtle juridical approach; one that was capable of distinguishing and putting into hierarchical order, according to their perceived importance, the auctori- tates, or authoritative, and thus undeniable sources of knowledge.80 There was therefore a need for extraordinary exegesis in reconciling the various texts, exactly as there was in the schools of theology from the initial stages under Bernold of Constance, also by Ivo of Chartres, Alger of Liège and including Abelard. These schools constituted the milieu in which the

78 See Hartmut Hoffmann–Rudolf Pokorny, Das Dekret des Bischofs Burchard (1991) (ed. in PL 140, coll. 537–1090). 79 Kuttner, ‘The Revival’, pp. 318–323. 80 Hubert Mordek, ‘Dalla riforma gregoriana alla ‘Concordia discordantium canonum’ di Graziano: osservazioni marginali di un canonista su un tema non marginale’ (1986).

56 chapter two work of the first masters dedicating themselves to canon law was developed. There can be little doubt, either, that through their enthusiasm and research, they prompted the uncovering of various parts of the Corpus iuris civilis as yet unknown (the Digest), as well as a better understanding of those imperfectly grasped (the Code and the Novels). In fact the Papacy, having once more gathered strength after the crisis of the tenth century, reacted strongly against the political and cultural marshalling that was taking place. Meanwhile, the Papacy intervened with unedited conciliar provisions for the West, turning once more to the Byzantine model which, in the medieval period, was still seen as an unequalled paradigm of stately character.81 And so it was that at the time of the Lateran Council of 1059, imperial participation in papal elections was rejected.82 The Council also condemned the conferral of ecclesiastical benefices by lay authorities (appearing later as Decretum Gratiani C. 16 q. 7, c. 20). In addition, it unravelled the problem of simoniacal ordination (appearing later as Decr. Grat. C. 1 q. 1, c. 109), and steered the Papacy towards a position that was both centralized and hieratic. One example of this was the re-affirmation of the ‘freedom’ of appeal to the pope as supreme dispenser of justice for those who felt ‘oppressed’.83 As a result, when the group of reforming clergy who were carrying out tasks in the name of Gregory VII (1073–1085) turned once more to the most circulated collection of canon law, that of Burkhardt, they had to integrate it carefully with those texts that condemned both lay investitures and clergy guilty of simony and concubinage.84 In fact, they encountered opposition even in Italy.85 In some cases they were forced to take

81 Theodor Mommsen, Disegno del diritto pubblico Romano (1943), p. 419, maintained that the bureaucratic structures of the late antique world were so multi-facetted and complex that the like was not seen again up to, and including the modern period. 82 John Jasper, Des Papstwahldekret von 1059: Überlieferung und Textgestalt (1986): designated by the bishop cardinale and approved by the Roman clergy, this must have been acclaimed by the people. For the conciliar deliberations one should naturally turn to Conciliorum Oecumenicorum Decreta (1991). 83 See Peter Landau, ‘Die kirchliche Justizgewährung im Zeitalter des Reform in den Rechtssammlungen’ (1987). 84 For example, the filo-imperial abbey of Farfa near to Fara in Sabina, where Gregory of Catino’s collection of canon law was prepared, even at the end of the eleventh century deliberately ignored the decretals of the reforming popes! 85 Gérard Fransen, ‘Les textes ajoutés au Décret de Burchard de Worms dans deux manuscrits toscans’ (1988). According to Peter Damian, simony - the result of undertakings with the assumption of compensation - was such a wide-spread practice in Milan in 1089 as to render it a ‘consuetude’ (in La Pataria. Lotte religiose e sociali nella Milano dell’XI secolo (1984), p. 168). The battle against priests who took concubines (the so-called ‘nicolaism’)

the multi-faceted eleventh century 57

another path and prepare their own collections (following detailed research in the papal archives) in order to establish, for example, the privileges of the papal court or the exclusion of certain monasteries from the power of the bishops. In this way, the first juridical book which was of use as a reforming agent, and also in line with Rome, was compiled, namely the Collection in 74 titles.86 This work, which was the second official collection of the Holy See after the Dionysiana, is thought to have been compiled by Peter Damian or Humbert of Silvacandida (or perhaps even others?). As well as championing the customary privilege of an ecclesiastical court, it supported the exemption from episcopal control of those monasteries that were directly subject to Rome. In addition, it stipulated that episcopal elections should be carried out according to traditional canonical norms by local clerics and people (‘a clero et populo’), and condemned simony and concubinage for the clergy. Another notable collection produced as a result of the Roman reforms is the Collectio Britannica, so-called because it is preserved in London, although it was actually compiled in Rome during the last decade of the eleventh century.87 This work contains some ninety-three fragments from the Digest, indicating in detail the relevant book and section heading. This suggests that a volume of the Digestum Vetus had re-emerged during research undertaken in the Papal chancery for collections of canon law. A number of eminent scholars had been involved in that task from the middle of the eleventh century, re-ordering the chancery, and combining the role of chancellor and librarian.88

was a central issue because it was the only way one could be assured of an ecclesiastic ‘order’ which was entirely committed to its pastoral mission – whereas the presence of children, even though illegitimate, led to weaknesses and all kinds of concessions. This problem was, as it is even today, a central issue of concern: for those aspects discussed by the first canonists see Filippo Liotta, La continenza dei chierici nel pensiero canonistico classico (1971). 86 Diversorum patrum sententiae sive collectio in LXXIV titulos digesta (1973); for Fuhrmann’s collection, see ‘Über den Reformgeist der 74. Titel-Sammlung’ (1972). This was followed by several other notable examples for the use of the Liber Diurnus, of the Ordines Romani and of the Liber pontificalis, such as the Collectio of Anselm of Lucca, of Bonzo, bishop of Sutri (supporter of the Pataria, who was blinded and had his limbs amputated following condemnation), and of cardinal Deusdedit, who also made use of Justinian’s Novels in the collection of the Authenticum, and the Collectio Britannica (see p. 25 n.43) which, around 1090 in Rome, gathered together 93 extracts from the Digest. 87 See Martin Brett, ‘Urban II and the Collections Attributed to Ivo de Chartres’ (1992). 88 This may in some way have influenced the form of higher education which was founded in Byzantium in 1045 by emperor Constantine X, a real university in our terms.

58 chapter two

The position of yet another great man of the Church, Ivo bishop of Chartres, was likewise tempered during the process of reform. Ivo was operating in the very different environment of France, but at the time that the Britannica was compiled he was in fact in Rome, where he could have come into contact with the Digest. Ivo adopted a stance that was more conciliatory towards secular power. He also greatly influenced later developments through his obvious assimilation of the theories of theologians such as Bernold and Alger in the De consonantia canonum (concordance of canons) that opens his Decretum of circa 1094.89 In this passage he contrasts immutable divine law with human law, which is deemed flexible. Ivo also distinguished the precept of the council, the law of dispensa- tion, fixed legislation, from that which was dependent on the varying circumstances of time, place or people. The Decretum contains a number of criteria that help reconcile contradictory texts through the art of ‘distinguishing’. It was no coincidence that Ivo favoured the formula ‘diversi, sed non adversi’ (different but not opposed), a notion fundamental to the juridical reasoning associated with the academic distinctiones, or models of distinguishing. However, unlike Gratian, Ivo did not adopt this system of reasoning in his Decretum. It nevertheless resurfaced some years later in the Policarpus (1104–13), a newly-assembled canonistic work that made ample use of Roman law in the latest versions of the Authenticum and the Digest, by that time circulating outside as well as inside papal territory.90 It was this more sophisticated form of reasoning that became insuffer- able for the traditional Penitentialists, who had begun to question its authority.91 ‘Certi ne sono gli errori, incerti gli autori’ (it is certain that there are errors, but the authors of such errors are uncertain) became the rally- ing cry against the reformers.92 Even so, those individuals had tried, albeit in a somewhat disorganized manner and not without great difficulty, to

This was immediately equipped with a library with a bibliofúlax, whilst the nomofúlax (a legal expert who was also a Latin scholar) was involved in the teaching. 89 See Ivonis Carnotensis Decretum (1889); other important works are the unedited Tripartita, the Panormia, lifted from the Decretum (ed. in PL 161, cc. 1042–1344). His collection of letters that were already widely circulated in antiquity is important; for this see Yves of Chartres, Correspondance (1949): there are some 40 manuscripts dating to the twelfth century. 90 This work has been attributed to Gregorius de S. Crisogono; for the background to this, see Wolfgang P. Müller, ‘The Recovery of Justinian’s’Digest in the Middle Ages’ (1990). 91 It is worth recalling St. Peter Damian in this context: Giorgio Picasso’, Il penitenziale di Burcardo di Worms’ (1986), p. 42. 92 Alfons Maria Stickler’, La norma canonica nel primo millennio della Chiesa’ (1976), p. 36.

the multi-faceted eleventh century 59

promote Christian values, and to root out very well-established customs and beliefs such as sorcery and black magic, which were considered naive superstitions by ecclesiastical scholars, but which attracted a certain amount of criticism in the Penitentials.93 In effect, the Penitentials (the oldest of which were mostly Irish and English) consisted of registers of ‘tariffs’ that listed the punishments that confessors were required to inflict for crimes committed by the faithful. From the least harmful to the most brutal, these were to be applied after interrogation which, resulting in confession and the most sincere admission of errors committed, served to alleviate the sinner’s agonizing sense of guilt. Parallels have been drawn between this and modern psychoanalytical therapy.94 It is not by chance that the Penitential inserted in the aforementioned Decree of Burkhardt was entitled Corrector or Medicus. For centuries, the concept that penitence was a most effective form of medical treatment for the sinner was a well-established topos. These texts are clearly important, because through their graded scale of punishment they offer us a detailed picture of the ethical and social values of the time. It is, however, difficult to set them in their context, because we know virtually nothing about their practical application, given that they were imposed by priests in the course of private confessions.95 However, these texts have a juridical significance, since they appear to indicate that progress had already been made in respect of early medieval legislation drawn up by the Germanic ‘nations’. These tended to concentrate on the crime as an issue independent from intent. With the Penitentials attention was paid instead to the offender’s subjective frame

93 As we shall see, the situation changed radically thereafter. 94 We know that confession subsequently assumed extremely high ‘technical’ levels: see Pierre Legendre, L’amour du censeur: essai sur l’ordre dogmatique (1974), and his ‘Alle origini della cultura occidentale: l’antico diritto della penitenza’ (1980), pp. 103–124. As is well known, the Stalinist political trials also tended towards full confession, with the intention of restoring both a certain collective and a certain individual order, albeit one that was far from calm. The origins can be traced for example in 1 Cor. 11.31, where it was counselled that ‘If we judge ourselves as individuals, no-one will judge us thereafter’, and besides, Burchard, by way of favouring the intimacy of the relationship between the confessor and the penitent, reminded the former that ‘no-one, not even a saint, is free of sin’ and at the same time invited the penitent to make a full confession reminding him that he also was a sinner ‘and perhaps I (in other words, his confessor) may have committed even greater sins’ (see Giannino Piana, ‘Peccati e penitenza nel Medioevo’, pp. 43, 47). 95 Una componente della mentalità occidentale: i penitenziali nell’alto medioevo (1980) is an interesting anthology in this context; more generally, see Ludger Körntgen, Studien zu der Quellen der frühmittelalterlichen Bussbücher (1993).

60 chapter two of mind, as illustrated for example by the phrase ‘occiderit et non ex odio’ (he killed, but not out of hate).96 Where analyses and distinctions become most refined is in the realm of sexual crimes (such as coitus interruptus, onanism, bestiality, abortion, etc.) which, apart from anything else, occupy on average a good third of these texts. For example, the crime of adultery required clarification of culpability, because the guilty party could not re-marry. By contrast, a wife who had suffered adultery through her husband’s fault or by his forcing it upon her could re-marry.97 Equally, if a husband was clearly abandoned, he could (with the consent of the bishop) re-marry after five years had elapsed.98 This was not the only oddity. One Penitential (probably from the north of Italy) finally made allowances for divorce by mutual consent, no doubt as a result of the prevailing laxity (as this might best be called when compared with the ancient councils and decrees of the fourth and fifth centuries) and successive ecclesiastic pronouncements unequivocally in favour of celibate clergy and the indissolubility of the sacrament of marriage.99 Such a concession would have seemed revolutionary in late eighteenth-century France and in Italy only a few years ago. The fact is that the Church had until then assumed an extremely negative attitude towards marriage, as if it were some minor evil. Even though marriage was deemed the only way to legitimise procreation, the sexual act itself was allowed only once in every fifty days (even preparation for mass required three days of sexual abstinence), and thereafter ex post ablutions were required in order to purge oneself, and thus regain the necessary purity before re-entering church.100 Apart from these particulars, the more general interest of the Penitentials is that they combined the German tendency to list punishments casuistically and in great detail according to the individual crimes committed, with the Romanist preference (inherited from the Church) for written regulations of a

96 Padoa Schioppa, Il diritto, p. 107. 97 This is in canon 5 of Burkhardt’s Penitential, the most refined and most widely circulated during the eleventh century, and in a certain sense conclusive, since inserted, as already pointed out, in his Decretum. The text is now available in an Italian translation in A pane e acqua (1986), which also serves as a useful introduction to the problems surrounding the Penitentials (the question of marriage is dealt with on p. 44). 98 Piana, ‘Peccati e penitenza’, p. 38. 99 Raoul Manselli, ‘Il matrimonio nei penitenziali’ (1980), p. 209. This deals with the Pentitential preserved in a manuscript belonging to the Biblioteca Vallicelliana in Rome, for which see now Gunther Hägele, Das Poenitentiale Vallicellianum (1984). 100 Piana, ‘Peccati e penitenza’, p. 35.

the multi-faceted eleventh century 61

juridical nature concerning human behaviour and relationships between individuals. However, let us now return to Roman law. Naturally, one cannot suppose that such law did not apply to an empire that had witnessed the brief but influential presence of Otto III (983–1002), who was not only imbued with Byzantine culture through his mother, but also had ‘Renovatio Imperii Romanorum’ inscribed on his seal. Later emperors assumed the title imperator Romanorum.101 In a constitution of 1038, Conrad II, the emperor who had used legislation to mark a fundamental moment in feudal law with the edictum de beneficiis (1037), sanctioned that only Roman law should be applied both in Rome and its surrounding territory.102 Shortly thereafter, during the middle of the century, the emperors began to reclaim the law of the land or state through iura regàlia, the rights of the king. The first to do so was Henry III, the emperor who put four reforming German popes on the papal throne. In this way, the concept of an imperial fiscus was established. State laws were apparently listed for the first time in 1111.103 As a result, in the case of Henry V and Lothar II we encounter sovereigns who in order to regain the great seigniorial territories, the existing power centres of the time, were able to establish a form of ‘public’ subordination by labelling such lands as ‘given in beneficium’ (feudal concession) by the Empire. Roman law also played an important part in the struggle for investitures. In fact, for the support- ers of the Empire it served to establish that entity’s autonomy in the face of the Church, as well as its own dignity in that it was seen as founded directly by God. A series of texts produced for one or other party involved in the great conflict dating to the troubled years of the 70s and 80s – which have been edited by modern scholars under the label libelli de lite – bear witness to the extent of this cultural engagement, the first battle of its kind that was to involve the whole of Europe. It was, however, also a juridical conflict, in which Roman law was by necessity involved. Amongst the important texts

101 Otto III seems already to have re-established the title Romanorum imperator, but this appears in a donation of the Pentapolis to the Church which was probably false. 102 This is the so-called Mandatum de lege Romana. Doubts have once more arisen concerning the date of this act, with the suggestion that the date should be moved forward by one hundred years, that is, to the time of Conrad III: see Giovanna Nicolaj, ‘Formulari e nuovo formalismo nei processi del Regnum Italiae’ (1987), p. 353 fn. 14. 103 Cortese, Il diritto, I, p. 354 fn. 11.

62 chapter two adopted in this cause was the Defensio Henrici IV regis of circa 1084.104 Attributed to a mysterious Peter Crassus, this work strengthened the dignity of the Empire by recalling the lex Romana favoured by those ancient emperors, ancestors of those who came after. This text has been associated with Ravenna, an important centre according to several pieces of evidence. For example, in 1045 it was to this centre that the Florentines sent delegates for advice on how to calculate kinship. This was to feed a famous dispute based on Roman law with the saintly Peter Damian.105 It was in Ravenna, also, that the filo-imperial archbishop Gilbert fuelled resistance to Gregorian reforms. It seems that a number of false diplomas were created as a result, including a lex regia, according to which the Papacy and Roman patricians had irrevocably transferred all power to the Empire.106 In contradictory situations such as these, Roman law was an instrument that could be used by both the Empire and the Church. What of local practices? It is enough to consider that judicial practice gives us the first secure mention in the medieval period of the Digest (the first part, which was to become known as the Digestum Vetus), forgotten after Gregory the Great. This occurred in 1076 at Marturi, near contemporary Poggibonsi, in the province of Siena. It will no doubt be said that this was an area that was culturally close to Rome. But then one should also consider that shortly afterwards between the 1080s and the 1090s it was once again in the Kingdom of Italy, through a Lombard decree issued by Henry IV (to which we shall return), that the application of Frank-Lombard law was displaced with the help of Roman legislation. This occurred when the judicial duel was still being applied, as for example in the 1098 decree of Garfagnolo ordered by Matilda of Canossa (the subsequent protector of Roman law). Moreover, the advocates who between 1123 and 1125 defended

104 Libelli de lite imperatorum et pontificum (1891), I, pp. 432–453. The Liber de unitate ecclesiae of 1092 (Libelli, II, pp. 173–284) is also important, for which see Ovidio Capitani, Storia dell’Italia medievale 410–1216 (1994), p. 334. For Crasso see Cortese, Il diritto, I, p. 357 f. (359 f. for lex regia). 105 Damian, who was learned in Roman law (Pietro Palazzini, ‘Note di diritto romano’, 1947–48), supported the canon law concerning degrees of against the arguments of the ‘wise men’ of Ravenna, who, according to recorded by him, were with the courts – prompting many to argue that a real school of Roman law pre-existed that at Bologna. 106 This was clearly the same thesis that was subsequently adopted by Irnerius and the ‘Gosian’ jurists; but the presumed privilegium maius of pope Leo VIII is perhaps later, and thus the theory must have been developed at the same time as Irnerius, and not earlier: Cortese, Il diritto, I, p. 360 fn. 27.

the multi-faceted eleventh century 63

before the popes arguments put forward by the bishops of Siena and Arezzo in a centuries-old conflict for the possession of various boundary churches, were associated with the same culture.107

107 Giovanna Nicolaj, Cultura e prassi, p. 91 f., and see also the earlier work by Enrico Besta, ‘Il diritto romano nella contesa nella contesa tra i vescovi di Siena e d’Arezzo’ (1906). This dispute has provided an exceptional opportunity for the analysis of the interweaving of lay power and ecclesiastic authority during the Lombard period: see for example Giovanni Tabacco, The Struggle for Power in Medieval Italy: Structures of Political Rule (1989), pp. 88–89. The Edictum of Lombard kings is quoted as edited in Leges Langobardorum (listed in the sources).

CHAPTER THREE

THE CHARACTERISTIC OF ELEVENTH-CENTURY LAW

3.1. Notarial Practice1

Up to this point we have mainly considered normative ‘records’ handed down from the past and variously reproduced so as to preserve and promote their use in a culture rooted in the written word that persists to the present day. The marked tendency to record legal transactions was already evident in Lombard law (Rotari, end of chapter 224), where the use of the written record was advised as ‘propter futuri temporis memo- riam’; a way to preserve information for the future.2 But record-keeping was mostly reserved for decisions of some significance, and thus (apart from legislative and judicial acts), tended to concentrate on juridical provisions concerning private individuals that would have enduring effects. These included individual judgements, dowries and long-term agricultural agreements (most typically, those covering ‘emphiteusis’, or long leases).3 In fact, according to archives dealing with the official conservation of written records, provisions for decisions of this kind were already in existence, in principle, at the normative level.4 Such procedures were already in place in Carolingian legislation.5 The written record sometimes designated for contracts of convenientia or stantia (accord) was a munimen, a kind of bulwark defending the

1 A classic study is Francesco Schupfer, Il diritto privato dei popoli Germanici con particolare riguardo all’Italia (1908–13). Other important works now are Vera von Falkenhausen– Mario Amelotti, ‘Notariato e documento nell’Italia meridionale Greca (X-XV secolo)’ and Alessandro Pratesi, ‘Il notariato latino nel Mezzogiorno medievale d’Italia’ (1987). 2 This is followed by ‘et si cartolam non fecerit tamen libertas ei permaneat’. 3 At times these were only oral agreements (Silvio Pivano, Contratti agrari in Italia nel Medioevo (1904), p. 275 and fn. 38); a written record could then be drawn up at a later date in the form of a notitia or breve. 4 Cod. 1.4.30 stipulates that the bishop together with other officials should nominate the ‘tutor dativus’, or individual chosen to exert public authority over minors; it offers clear evidence of the supremacy of the church and the trust invested in it. 5 But in Italy the Frank legislative texts have not received the same attention as that directed to the edicts. It is thus important, for example, to consult Arnold Bühler, ‘Capitularia relecta. Studien zur Entstehung und Überlieferung der Kapitularien Karls des Grossen und Ludwigs des Frommen’ (1986).

66 chapter three transaction and intended to insure the firmitas of the deed (whether public or private). It was to this end that the firma or signature was also included.6 This established the permanence and inviolability of the agreement, rather than acting as proof of the completed transaction.7 Evidence of that was provided by individuals who were called in to witness the event.8 Despite this, it was recognized that there were many false documents in circulation; the Donation of Constantine being the most famous. As a result, the written document was sometimes an object of suspicion and there was a desire for it to be corroborated by witnesses. It was also often the case at this time that the highest available authorities were called upon to confirm ownership of property or pre-existing rights, as a safeguard against possible invalidation of earlier documents. Numerous examples of such practice are preserved in ecclesiastical archives, above all, in those maintained by the abbeys. Obtaining such confirmation from a new emperor or pope added particular force to pre-existing claims based on old titles. This was in effect a superaddere auctoritatem, a new authorization at the highest level. The attestations frequently registered by notaries that individuals were indeed the proprietors ‘et canonico ordine et legibus’ under both kinds of law must have had a similar effect.9

6 See Cortese, Il diritto, I, pp. 345–350, and also for the complex historiographical problem. When involved in non-typical contracts, such as ‘peace’, acts that imposed ‘non-action’, between nobles but also between other members of the society, and which were affirmed with oaths and fides, the obligation was enforced ‘per convenientiam’ or perhaps above all ‘per chartulam convenientiae’ (p. 349). For France see Paul Ourliac, ‘La ‘convenientia’’ (1979), p. 251, where ‘convenence loi vault’ and indeed feudal arrangements assumed the guise of customs. Subsequently, non technical terms referring to agreement between the parties, such as convenientia, were no longer adopted; the word was used only generically, as in convenientia regum: it was because of this, according to Marinus of Caramanico (Francesco Calasso, I glossatori e la teoria della sovranità. Studio di diritto comune pubblico (1957), p. 199), that Roman law prevailed in Southern Italy. 7 Cortese, Il diritto, I, pp. 321–325. 8 The courts required ‘firmitates aut homines’, in other words, clear evidence of witnesses (I placiti del Regnum Italiae, I (1955), p. 196 f., no. 56, year 851–2), and that ‘ullam firmitatem de sua libertate’, or ‘he who bids for his own freedom cannot provide witnesses’ (I placiti, I, p. 321 no. 89, year 880). Some doubts must thus be raised about Heinrich Brunner’s theories (in his classic Zur Rechtsgeschichte der römischen und germanischen Urkunden 1880) concerning the transferring of power exercised by the early medieval charta, whereby its traditio was enough to transfer the ‘incorporated’ law, with the result that the document became an ante litteram ‘title for the bearer’, somewhat like the modern title of credit: Cortese, Il diritto, I, pp. 326–329. 9 For example, Cortese, Il diritto, I, p. 329, for the emperor who in 870 confirmed the immunity offered by his predecessors to the monastery of Prüm.

the characteristic of eleventh-century law 67

In fact, the ‘real’ or ‘living’ law is reflected in the juridical acts preserved in notarial records of the time.10 It is true of course that even then these records were drawn up according to a number of formulae (in effect, collections of stereotypical models), and that at this time various ancient Roman examples were still in circulation, along with more recent texts prepared under Lombard law. However, notarial records do indeed include a number of contractual procedures that illustrate just how much Roman and Lombard law was being subjected to change at a local level. Thus, notaries in the Lombard-Provencal area, for example, seem to have been largely unaware of the above-mentioned tendency to unify Roman and Canon law in the context of intermediate territories.11 In the former areas, substantially different principles from those of Roman law were introduced during the early medieval period.12 That being said, the tenth- century standardization of the law in both private and judicial provisions depended in large part upon late antique formularies which had survived into the Lombard and Carolingian periods.13 By contrast, the only surviving example of a more ‘recent’ formulary (dating perhaps to the eleventh century) had a complex formation and rather than attempting to consolidate individual laws, appears to have been intent on reflecting the plurality of existing legislation. The ‘formula’ offered in the context of sale, for example, presents the traditio in its Roman, Lombard, German-Salic and Bavarian forms.14 Many surviving records contain contractual models written in languages other than Latin, illustrating some of the problems that official law was beginning to encounter, albeit at times establishing a confluence between co-existing laws of extremely diverse origin. Such ‘vulgarization’ arose partly from the instability of public organizations, and partly from the often summary training undertaken by scribes. Unlike the sophisticated legal expertise demonstrated by later notaries, it seems clear that

10 Giulio Vismara, ‘Leges’ et ‘canones’ negli atti privati dell’alto Medioevo: influssi provenzali in Italia’ (1987). 11 Vismara and Astuti (see the collection Storia e diritto in ricordo in ricordo di Guido Astuti, 1996) have played an important part in considering the acts in recent historiographical studies. 12 Giulio Vismara, Scritti di storia giuridica, II (1987); Giovanni Diurni, Le situazioni possessorie nel Medioevo. Età longobarda franca (1988). 13 Amongst recent studies see Luuc F. Bruyning, ‘Il processo longobardo prima e dopo l’invasione franca’, and Adriano Cavanna, ‘Diritto e società nei regni ostrogoto e longobardo’ (1986). 14 Giorgio Costamagna, ‘L’alto Medioeo’ (1975), p. 217, and Cesare Manaresi, ‘Introduzione’ (1955), p. xviii f.

68 chapter three there were not as yet any scribes with adequate experience or writing skills.15 In a society which was by this time almost exclusively agrarian, contracts concerning the possession of land or property were clearly of great significance. The contract most favoured (and particularly successful in Italy even up to the end of the nineteenth century) was the so-called livellum (a contract containing agreements concerning the holding of land). Scribes of the time often confused this with other long-term agricultural agreements (such as emphyteusis, or precarial tenancy), many of which appear to have similar characteristics in documents of the time.16 Already present in the Code of Theodosius (and thus later in Cod. 11.66.2), the livellum resurfaced in Lombard law (Liutprand, chapter 92). At that time it was established that the land-owner should assume certain responsibilities in respect of violations by an individual livellarius, or land worker. This suggests that the land workers were placed in a position of personal dependence on their landlords.17 It is no a coincidence that the livellum was at times ‘granted’ after a petitio, or respectful request on the part of the peasant (the land worker or farm-hand), who, to achieve that end, was prepared to subject himself to the harsh rules of the ‘market’. A livellarius could in fact be employed on very little pay, although he could also be forced to live on the property. In the end this meant that he was answerable to the tribunal (or court of justice) of the official owner if the land in question belonged to a monastery benefitting from immunitas, or was otherwise punishable solely on the strength of the contract itself.18

15 Chartularium published as langobardicum (in Guido Padelletti, Fontes iuris Italici Medii Aevi in usum academicum (1877), pp. 431–479; for the formula in question see p. 472); see also the discussion in Cortese, Il diritto, II, p. 19 f. 16 These were a number of early medieval types of contract established locally as a result of custom, the significance of which should not however be exaggerated: see the appropriate warnings issued by Giovanna Nicolaj, ‘Il documento privato Italiano nell’alto Medioevo’ (1996). 17 See the fundamental works by Pivano, Contratti; Francesco Schupfer, ‘Precarie e livelli nei documenti e nelle leggi dell’alto Medioevo’ (1905); for signuerial regimes see Giuseppe Sergi, Curtis e signoria rurale: interferenze fra due strutture medievali (1903), and reconsiderations by Pierre Toubert, Dalla terra ai castelli. Paesaggio, agricoltura e poteri nell’Italia medievale (1995). 18 Like the peasants of the late imperial world who were subjected to a patrocinium of local lords, or those land workers who placed themselves in a position of servitude through Pipin’s commendatio: Cortese, Il diritto, I, p. 340 f., claims that Rotari also refers back to the petitio, chap. 227; the term livellum derives from libellus which was produced in duplicate form. But even emphyteusis documents for Bologna and Ravenna include the preces which allowed for the concession to take place. During the early years of the twelfth century documents of this kind opened with the phrase ‘We beg of you’ (‘Petimus a vobis’).

the characteristic of eleventh-century law 69

More generally, there was a tendency to incorporate agricultural language within the new feudal framework. For example, there are cases of land workers employed on the basis of fidelitas who, on renewal of the contract, offered a libellaticum or calciarium (shoe). This has resonances not only of the laudemium of emphyteusis (the comparatively small fee levied in recognition of the property), but also of the tax that was paid when the lord or concessionary in a feudal agreement was changed. However, Lex, if only because of the weight of tradition, provided a greater sense of the very real (and sometimes extremely onerous) legal obligations that were assumed by the concessionary cultivator. Thus even obligations laid down in the original agreement – at times accepted ver- bally in order to avoid a written statement (on account of foreseeable expenses) or because of difficulties in finding a scribe, or because it was not regarded as necessary for some other reason – were more likely to be adhered to as a result of established norms than because they were ver- bally stipulated in the contract. The relationship between master and cultivator varied according to local determinants strong enough to enforce the will of the individual parties, whilst at the same time appearing to derive naturally from the prevailing circumstances. But the portrayal of a phenomenon, even as it was experienced by contemporaries, cannot hide its real and at times very different nature. From the point of view of formal juridical qualification, there could be no distinction between the very different issues of the lawful possession of ‘things’, referred to under Roman law as possessio, and known in the early medieval period as investitura.19 There was thus little formal difference between the underprivileged peasant living inside a great feudal dominion (consisting of an independent castle and surrounding territory) and the grantee of an extensive emphyteosis (a typical concession of land for the long term in Roman law) or livellarius (who, for example, benefitted from a concession in favour of the lands of a church). Both had protected possession of a property (later called dominium utile) that applied equally to feudal lords and to those granted land to work as livellarii.20 But the social and economic circumstances of the

See Massimo Montanari, Contadini e città fra ‘Langobardia’ e ‘Romania’ (1988); Bruno Andreolli, Contadini su terre di signori. Studi sulla contattualistica agraria dell’Italia medievale (1999); Antonella Ghignoli, ‘Note intorno all’origine di un ‘ius libellarium’’ (1998). 19 Cortese, Il diritto, I, p. 341 (and p. 330 for what follows). 20 Gewere in German, from which derives the French saisine. This term appeared after the Frank conquest of Italy, but curiously first in the area around Ravenna: in 844. Nevertheless, the investitura salva querela deriving from this (protecting possessions,

70 chapter three two possessors of land were very different. We should thus remember that even the famous and powerful obtained lands on the basis of the livello. No ambiguous juridical category – such as livello, emphyteosis and locatio ad longum tempus – could obscure this fact: at that time ‘Whoever the granted land, wanted the man, and the man gave himself because he wanted the land’.21 The term investitura was likewise so closely linked to the area of landed property that in Lombardy it was finally adopted to indicate the agrarian contract in its strictest sense. Typically, this was realized through the symbolic consignment of a lignum from the grantor to the grantee.22 The same term was, however, also adopted by the Church in the context of the con- ferment of dignities, powers and rights. The Church in fact got the idea from Byzantine law (something not present in Roman law) that the possession of rights (possessio iuris) was also possible, hence investitura could also be used in the public arena, because beneficium was associated with an honor. In this case too, investitura was brought about through a symbolic and material act indicating the handing over of power: the consignment of a small twig, a lump of earth, a piece of parchment, or indeed a glove.23 Emphyteusis under Justinian was the long-standing model for this, a kind of tertium genus between property and location (Cod. 4.66.1). Nominated abbot of Bobbio before becoming pope Sylvester II, the great Gerbert of Aurillac (teacher of Otto III) had found that the abbatial benefices had been ‘sold’ as a result of livellum agreements.24 We will return later to other contracts that similarly took firm root during this period – in particular those concerned with navigation, as well as (more generally) those that might best be described as ‘commercial’.

except when an individual declaring to have suffered damages made the claim in order to be recognized as the rightful owner of the property) developed subsequently in the Kingdom of Italy. A fundamental study in this respect after Schupfer, ‘Precarie e livelli’, is Diurni, Le situazioni possessorie. 21 Already in Roffredus of Benevento, in the early thirteenth century: Cortese, Il diritto, I, p. 342 (p. 344 for what follows). 22 The son of the feudal law expert Obertus makes a very brief reference to this, along with other similar agrarian contracts that by that date were well established: See Anselminus de Orto super contractibus emphyteosis et precarii et libelli atque investiturae (1854) analysed in Pietro Torelli, Un Comune cittadino in territorio ad economia agricola, I, Distribuzione della proprietà – sviluppo agricolo – contratti agrari (1930). 23 Festuca or fustis, virga or baculum: Cortese, Il diritto, I, p. 333. Late medieval juridical doctrine would in the end refer to ius ad rem, that is the right to appropriate for oneself from the goods under one’s own authority, once the material act was done. 24 ‘Totum sanctuarium Dei venundatum est’: Gerbert D’Aurillac, Correspondence (1993), p. 4.

the characteristic of eleventh-century law 71

For now, we turn our attention to a central concern of the time: the endowment of churches. This could take a number of forms: either through a will (an enacting deed post mortem that was typical of the Roman world, subsequently unknown in Germanic territories and which was now being keenly promoted by the Church); or through donationes pro anima, which could have immediate effect or take effect post mortem, and thus be comparable to the testamentary ‘legacy’, or specific bequest laid down in a will.25 On occasion, donors reserved the right of usufruct of property donated. However, there was a general tendency towards straightforward donations, irrevocable and without the usual quid pro quo (such as the launegild requested under Lombard law). Provisions concerning usufruct were, however, important as they allowed the individual to maintain possession of the property, enjoying the fruits of his possessions (through, for example, the cultivation of farmland), whilst at the same time benefitting from the legal and material protection offered by the institution ultimately destined to assume responsibility and ownership. Another tendency which should be mentioned is the concealment of certain acts so as not to fall foul of the growing number of prohibitions produced by the Church. This was especially useful in the context of usury, the term that was applied for any payment arising from a loan. In order to escape notice, people resorted to sham negotiations that hid the fact that a loan had been made. This resulted, for example, in declarations of debts higher than the actual amount due, or in sales on the basis of right of redemption. In that event, a property acted as a guarantee and passed into the patrimony of the money-lender if the money was not paid back within the stipulated time.

3.2. Legislation and Customs

In this culture the written document transmitted, above all, the Law, beginning with divine Law. But it also transmitted legislation concerning the rights of man as well as that which was ecclesiastic and secular. As had already been the case with those fabulous interventions of antiquity – from the Ten Commandments to the XII Bronze Tablets (the principal testimonial of archaic and early republican Roman law) – there were many saintly and not so saintly legislators (both secular and ecclesiastic) who

25 Giulio Vismara, Storia dei patti successori (1986), pp. 379–759.

72 chapter three continued to meddle with the traditional body of legislation through the introduction of new laws in a more or less autocratic or collegial (i.e. through the councils) manner. Law as a whole had in fact assumed a kind of ‘presumption of justice’. Isidore of Seville, noted that ‘law is so called because it is just’.26 Further, justice resided in custom, which was established in order to complete the law rather than contradict it. In fact, as time passed, custom was regarded as law when it intervened to compensate for some shortcoming.27 This is a useful distinction, because the relationship between law and custom was (and is) a perennial thorn in the flesh for a culture that wished (and wishes) to respect the law, but at the same time wishes to come to terms with necessary changes to the government of the time, both collectively and individually. Dialectics concerning custom and law are typical of a culture that contained a considerable nucleus of norms to be respected no matter what, but which also had to come to terms with future requirements. In such a culture it was assumed, therefore, that authorities and procedures were each vested with the power to offer ‘authentic’, or rather authoritative and indisputable interpretations of an inheritance whose credibility would be threatened if exposed to interpretive fluctuations. The general and provincial ecclesiastic councils, with their respective competences, assumed such a role exactly, resulting in a concentration on the pope and papal absolutism from the eleventh century onwards. In the meantime, however, after Isidore, the relationship between consuetudo and lex became skewed in favour of the first element as a result of the progressive weakening of public structures and the rarefying of legislation – even though legal superiority was still claimed for lex.28 In fact before the eleventh century – and even during that century itself and without noticeable polemical complications – lex and consuetudo were considered interchangeable terms to indicate that which was regarded as

26 Etymologiae V.3.1: after having correctly remembered that lex was only a ‘species’ of law (‘ius generale nomen’): Law takes its name from justice (‘ius autem dictum, quia iustum’). 28. Etymologiae V.3.3: ‘Customs are based on habits and may be regarded as law in the absence of a statute’ (‘Consuetudo autem est ius quoddam moribus institutum, quod pro lege suscipitur, cum deficit lex’) because, he continues, the significant point is the reason behind the law (‘nec differt scriptura an ratione lex consistat, quando et legem ratio commendet’). 27 Sources in Padoa Schioppa, Il diritto, p. 160 fn. 184. 28 Nicolaj, ‘Formulari’, p. 368: the earlier link between laws and customs was subverted. By comparison, the central position assumed by written law in Italy from 1000 onwards is emphasised by Armin Wolf, Gesetzgebung in Europa 1100–1500. Zur Entstehung der Territoralstaaten (1996), p. 69 f.

the characteristic of eleventh-century law 73

normative. A contract fixed rules which then became the living reality for interested parties – the lex or consuetudo fundi. The Imperial renewal that began with Otto I has justifiably fostered talk of a ‘re-founding’ of the law.29 The rise of the Papacy, along with the rediscovered use in the West of the general council as well as the authoritative papal order, confirmed the new value placed on the legislative tool, a fact that is made patently obvious in that manifesto of legislative and papal absolutism, the Dictatus papae of Gregory VII.30 Regardless of its nature and practical use – which has been the topic of much discussion – the Dictatus contains clearly subversive formulae with respect to the pre-existing juridical order based on the ‘custom’ of lay supremacy, but not in respect of the genuine ‘tradition’, which is what the Gregorians wished to re-instate. In the face of the local churches under the hegemony of lay society; and in the face of the ‘bad customs’ of the clergy – summarised as ‘simony and concubinage’ – the reformers needed to stress the function of legislation in the light of another concept or force, which members of the lay society were also quick to commandeer.31 This was the concept of Libertas – for the Church, in the sense of freedom from the yoke of lay society. But this would in turn come to stand for freedom of the communes from the imperial yoke (in the Peace of Constance); or of the masses and individual communities from the king and in general from the lords (through chartae libertatum). In a famous letter to the bishop of Aversa (and with reference to ancient texts, beginning with the Gospel of Saint John), Gregory VII maintained that no custom should be allowed to conflict with veritas; indeed, in such a case it was to be eliminated. He re-applied a very suggestive formula from Tertullianus: Christ said ‘I am the truth’ (i.e. not custom).32 The Dictatus laid out a list of new rights: the pope could depose the emperor (previously his elector), relieving his subjects of the oath of fidelity that bound them to him; the pope could depose the bishops (once his ‘equals’),

29 Gregorii VII Registrum epistularum (1978), pp. 202–208. 30 Already valued by the reformers at Cluny in order to establish control by the abbot of Cluny over the priors of dependent monasteries: see Giles Constable, ‘Monastic Legislation at Cluny in the eleventh and tenth Century’ (1976). 31 Before being included in Gratian’s Decretum (Dist. 8 c. 5), a passage was taken from Tertullianus (ed. in PL 2.889) by Incmar of Reims and used, apart from by pope Urban II and by pope Gregory VII, in the two works recorded by Ivo of Chartres. This passage should be compared with that by Ciprianus who maintained that ‘in the absence of truth, custom was merely an old mistake’ (‘consuetudo sine veritate vetustas erroris est’, in PL 3.1134). 32 Stickler, ‘La norma canonica’, p. 26; Harold J. Berman, Law and Revolution (1983), esp. 94–99.

74 chapter three and transfer them when necessary, but without the collegial decision generally required (from the ‘synod’); he had exclusive and definitive power, that is without the possibility of appeal (here appearing as retractatio, or re-consideration), in the context of the most significant issues of canon law (‘maiores causae cuiuscumque ecclesiae’); and finally, the coup de grace: anyone who did not agree with the Church of Rome was not a ‘Catholic’. Moreover, the Church of Rome ‘was never wrong nor could it ever err in its interpretation of the Holy Scriptures’ (scriptura testante). This was a programme that was set to transform the medieval state into a hierocracy; in other words, to position it within a framework that was dominated by priests, who would simultaneously assume the position of spiritual and temporal directors. From that time onwards pontifical decretals acquired even greater authority and, through being positioned immediately after the norms of the general councils, took on compulsory status.33 From our point of view, however, the most important aspect of Gregory VII’s dictates is that they stimulated much reflection on the complex and variegated traditions of the Western Church, in the course of establishing how much of the normative corpus was actually founded on genuine tradition (in conformity with the teaching of the Gospels), and how much should instead be considered spurious and rejected, because it was based on erroneous convictions. We will look at some of these developments later on. For now it is sufficient to observe that although at the cultural and political level people once more began to discuss customs in their technical context, the term continued to be used in the most generic sense. When, for example, in 958 the king of Italy guaranteed respect for customs to the citizens of Genoa, the term appeared to indicate (as in many other diplomas conceded to cities) local ‘privileges’, rights acquired by the community separately from royal and ducal courts.34 When in 1081 the emperor confirmed to the Pisans the ‘consuetudines que habent de mari’, was he thinking of the norms regulating maritime contracts, or of the various privileges (freedom of navigation, ports, rights of landing, etc.) that they themselves had ‘established’?

33 The diploma includes a number of Genoese consuetudes in the appendix (concerning Lombard women who had the right to bestow freely; slaves and foreigners; and taxation), but these may only have been added in the eleventh century. 34 A good example is the case concerning taxation of the men of Limonta on Lake Como: Codex Diplomaticus Longobardiae (1873), no. 625.

the characteristic of eleventh-century law 75

Aside from the Gregorian conflict, it should in any event be emphasised that in medieval culture, just as it was deemed appropriate to maintain juridical acts of long standing, so it was also normal to respect new laws eventually laid down by legitimate authorities. On the whole (except obviously for the massive upheaval of the reforms) there seems to have been little consciousness of a contradiction between customary or traditional laws and norms issued by a legislator in the light of new perspectives.35 Nor does there seem to have been any conflict between the monarchist principle and what would now be called local self-government.36 Indeed, it is probably fair to say that in Italy, the law and custom co- existed peacefully on the whole, and that the legacy of Justinian’s legislation was always a significant factor. An early medieval work that is difficult to date and that has acquired the title Ordo mellifluus in expositione legum Romanarum presents an extraordinary mixture of laws from Justinian and from the Goths.37 At first sight, this work appears to come from Spain or Provence. However, on the basis of its dedication to the emperor Justinian, it has in fact been traced to Italy. Only in Italy could this individual have acquired sufficiently mythic stature as to be described as ‘capable of gathering any norm within his own protective ‘wings’ or authority’, in other words, stamping the sign of the symbolic imperial eagle upon it. It is no accident, either, that in another thirteenth-century manuscript the same emperor, ‘the mythic legislator to whom all existing laws of Roman stamp were attributed’, is credited with composing passages that actually came from a completely different source.38 The profound contradictions of this transitional period are all too clear. An attempt was made to apply written legislation effectively. But in a fluid

35 A good comparative survey of events in Europe can be found in Susan Reynolds, Kingdoms and Communities in Western Europe 900–1300 (1997). 36 ‘Ordo mellifluus in expositione legum Romanarum’ (1886). For the Italian origin of this, see Cortese, Il diritto, I, p. 253 f., whose words I have quoted. 37 In fact, the edict of Theodoric, a pre-Justinian text of Roman law which in the post World War II era has been the subject of an infinite number of historiographical discussions concerning its authorship, after having been attributed by the sixteenth-century editor, the French humanist Pierre Pithou, to the eponymous king of the Ostrogoths. This edict appears to have helped the comes gothorum resolve a number of miscellaneous conflicts between Goths and Romans. Several of its norms were also noted in the late Middle Ages in literary compilations such as the Collectio Admontensis, so-called because rediscovered in the monastery of Admont in Austria: Winfried Stelzer, Gelehrtes Recht in Österreich. Von den Anfängen bis zum frühen 14. Jahrhundert (1982), p. 37 fn. 80. Excerpts from the edict appear there under the heading Ex novellis institutis Iustiniani imperatoris. The citations in the text are from Cortese, Il diritto, I, pp. 253, 84, respectively. 38 François Bougard, La justice dans le Royame d’Italie: de la fin du VIII siècle au début du XI siècle (1995), esp. p. 292 f.

76 chapter three situation, rendered even more unsettled by competing territorial issues and individual interests, there was a marked tension between laws and customs that tended to operate in favour of the latter. In effect, therefore, the normative texts of this time ‘offered’ rather than ‘imposed’ solutions for officers of the law (to use modern terminology), and scribes made sug- gestions from the various options available, based on local experience and advice handed down in false formularies. This in turn resulted in modifications to the normative texts in order to bring them into line with existing practice. Nevertheless, at the same time the conviction remained that the patristic Christian tradition had been inherited from Jewish culture, rather than from Greek and Roman traditions; that the law resided in the Book; that the Book was exempt from contradictions, and that in any event it was the duty of the expert to show that any would-be contradictions were only apparent; and finally, that judges should limit themselves to applying the written law.39 But in a situation of such complexity there were inevitably very diverse developments. This is already clear in those precious juridical testimonials that have been recorded time and again by historians of the Italian language. We could point, for example, to the so-called placita campana (famous testimonials about the ownership of land in which the abbey of Montecassino had an interest), that were announced at Capua, Sessa Aurunca and Teano between 960 and 963;40 or to the Umbrian confession of 1000;41 or yet again to the postilla, or postil of Amiata, dated 1087.42 Around this time, the Italian language broke up into a number of autonomous dialects, albeit with common roots, in much the same way that local political organizations were linked to the government of existing populations. And just as with language and political affairs, so also in

39 This is the tenor of the first (the others are analogous): ‘Sao ko kelle terre, per kelle fini que ki contene, trenta anni le possette parte S. Benedicti’: in Arrigo Castellani, I più antichi testi italiani. Edizione e commento (1976), p. 59 f. 40 Between 1037 and 1095: Castellani, I più antichi testi, p. 78 f. and p. 86 for the text: ‘Confesio. Domine, mea culpa. Confessu so ad me senior Dominideu (et) a matdonna sancta Maria (…) de omnia mea culpa et de omnia mea peccata k’io feci da lu battismu meu usque in ista hora (…)’. 41 At the end of a donation in favour of the abbey of Mount Amiata, the notary added: ‘ista cartula est de caput coctu ille adiuvet de ill rebottu qui mal consiliu li mise in corpu’ (Castellani, I più antichi testi, p. 103). This text has been subjected to a number of different readings, the most commonly-accepted being: ‘This record belongs to Capocotto and should help him fight against evil speech encouraged by a bad advice’. This reading contra- dicts that of Leicht who maintains that the text represents a formula that was used to accompany a supposed loan (pp. 104, 108). 42 Roberto Celli, Pour l’histoire des origines du pouvoir populaire (1980).

the characteristic of eleventh-century law 77

the context of law Italy had become a kaleidoscope, with a relatively homogeneous base which had the effect of highlighting differences. In effect, this demonstrated the triumph of consuetudinary law at that time.

3.3. Diversified Developments in the Northern-Central and Southern Regions

This is a good point at which to examine in more detail some of the themes we have already touched upon. The diversification of developments in the north and in the south of Italy are considered here under the following categories: (a) how individual powers assumed independent control over their territories; (b) the diverse ways in which public administrations survived (with a closer look at the ‘feudal system’); (c) trial procedures, and (d) one particular trial that, retrospectively, appears to be most significant in the context of the history of the Digest.

a) Self-governing Polycentrism It is one thing to speak of Italy as a country that was deeply ‘Romanized’, with an urban and public culture that had somehow survived despite all the difficulties of the early medieval period. It is quite another to consider those countries that were not yet widely urbanized and that had also experienced more extensive German invasions, with (as a result) a more evident collapse of traditional public administrations. On the other hand, inside Italy there were also areas that were not urbanized, but were instead to a greater or lesser extent rural and wooded. These areas continued to depend on a sylvan and pastoral economy, having often been absorbed during the course of the tenth and eleventh centuries into secular and ecclesiastic estates in the hands of an aristocracy that was more or less linked with residual public powers. In addition, a number of urban areas were on the borders, or in any event exposed to plundering by war- rior populations on the move. Such areas suffered a succession of the most diverse political and military takeovers, and as a result experienced a more evident deterioration of the normal processes of civil life. Where there were no cities, or at least fewer of them, local powers consisting of lay signori, or lords and members of the church (which would in fact at a later date be called dominatus loci), became established. Often using a castle as the corner-stone of their power, they then exerted a kind of public authority over the districtio (bannum) and over local residents by, for example, the imposition of obligatory taxes (described in the

78 chapter three documents as angariae, perangariae etc.). This resulted in the formation of various collective solidarities to negotiate terms with the dominus. Apart from the business of managing communal lands, other issues tack- led by such bodies included being able to dispose of one’s own property, having a say in the amount of public tax due, intervening in the use of common property (woods, water, etc.), and so on: in other words, local territorial laws.43 In effect, these became customs, but from the tenth century onwards they were also on occasion written down – as a form of guarantee, one might now say – so as to avoid debates about their enforceability (something that was not always easy to make effective, given the necessity to interpret the contents). Such texts, which were already present in the tenth century, were at this period referred to as carthae libertatis.44 While they appear to have been freely conceded, they were in fact imposed by local communities, and were in any event necessary in order medieate between the opposing interests of lords assuming the dominatus loci and local residents. These were communities in which – either because of their peripheral location in respect to other areas where there was economic development, or because they were scarcely populated – there was a tendency towards the development of traditional rules, both in the context of private law and in that concerning criminal law and trial procedures. These then permeated local culture, blending new rules with those of ancient ‘national’ origin. It was from this base that rural statutes would subsequently develop. As for the cities, both old and new (from Venice to Amalfi), the diminishing capacity to govern due to the capitals of the two emperors being so distant and, in the case of Byzantium, also weakened by religious developments (the schism with the Roman Papacy of 1054), resulted in the re- strengthening of local strata of society. These groups began to organize themselves into independent units, prompted initially by the need for military defence – very pressing in the tenth century, against, for example, the Hungarians and the Saracens. This tendency towards autonomous government (already established in previous centuries, and even in Byzantine Italy) was in the past viewed by historians in a ‘naturally’

43 One famous example being the 957 act relating to the men of Limonta on Lake Como: Padoa Schioppa, Il diritto nella storia, p. 157. 44 Apart from specifically relevant works such as Luigi Provero, L’Italia dei poteri locali. Secoli X-XII (1998) and Otto Gerhard Oexle, ‘Gilde und Kommune. Über die Entstehung von ‘Einung’ und ‘Gemeinde’ als Grundformen des Zusammenlebens in Europa’ (1996), Cinzio Violante, La società milanese nell’età precomunale (1953) is still useful.

the characteristic of eleventh-century law 79

negative light, because it was seen as a negation of the central public apparatus, of the national ‘state’. Now, by contrast, that autonomy is viewed positively, and is regarded as an important and indispensable factor in the development of the communes in the central and northern regions of Italy.45 It is also viewed as central to the urban realities that were subsequently assimilated into the Kingdom of Sicily – a sort of golden era that was later stifled by royal authoritarianism. Venice presents us with an early example of the ambiguity that subsequently became a widespread characteristic of cities in the centre and in the north of the country. On the one hand, each doge during this period had privileges and ancient pacts dating back to the Carolingian era confirmed by the new official of the Western Empire. On the other, invested as he was with Byzantine honores, he also received a stipend like every Byzantine magistrate and paid a tribute to Byzantium.46 Was this in recognition of his sovereignty or for the services that Byzantium offered in favour of Venice? With its enviable position balanced between two worlds – thanks to treaties drawn up with the Kingdom of Italy since the ninth century, and thereafter as a result of the privileges of Otto II and Byzantine chrysobulls – Venice had by the eleventh century already been dubbed the Queen of the Adriatic by Arab writers. It was precisely at this time that the doge assumed the title dux Veneticorum atque Dalmaticorum, Lord of both Venice and Dalmatia, reflecting the territorial expansion of his power.47 But almost all of the cities in the Kingdom of Italy developed a fierce independence. This was fostered by royal diplomas which, from the tenth century onwards, established both boundaries and fiscal laws, whilst at the same time confirming various ‘customs’. Thereafter, self-government by the citizenry gained ever greater momentum, usually under the formal protection of the local bishop. Individual communities, strengthened through vassal-like associations with the lords of the countryside, but at

45 Zordan, L’ordinamento, p. 79 f. and, for what follows, p. 57 f. The editions of the Venetian tracts are at this point important, and, in our context, especially those drawn up with Byzantium: see I trattati con Bisanzio 992–1198 (1993). 46 Marco Tangheroni, Commercio e navigazoione nel Medioevo (1996), p. 149 f. 47 Pier Silverio Leicht, ‘I diplomi regi ed imperiali in favore delle città’ (1943) is always useful; there are also many studies by Giovanni Tabacco, amongst which ‘The institutional Synthesis of Bishop and City in Italy, and the Succeeding Communal res publica’, in his The Struggle for Power, pp. 321–344; Hagen Keller, Signori e vassalli nell’Italia delle città (secoli IX-XII) (1995) includes an interesting historiographical introduction in the Italian edition.

80 chapter three other times linked with bishops in the towns, eventually took up arms against the dukes and counts.48 Milan is justifiably highlighted in historical research as being symbolic of the development of power which took place around 1000. However, the maritime cities were generally the quickest off the mark on the economic (and thus also institutional) front. Initially, Genoa and Pisa took joint action between 1015 and 1016 against the Saracens in Sardinia at the Pope’s behest. Then, in 1034, Pisa attacked Bona in Africa, and in 1064 Palermo. The two cities mounted further joint operations against Mahdia in Africa, and in 1092 against Tortosa in Spain. Apart from the intervention of 1098– 99 for the First Crusade, they also joined forces in the Balearic Islands (although Majorca remained under Muslim power for another century). Pisa also had strong links with Provencal ports thanks to an agreement drawn up with Ramon Berenguer III, count of Barcelona and lord of Provence. Moreover, it had already obtained an important diploma from emperor Henry IV in 1081. Given the cultural links between southern France and central and northern parts of Italy (and in particular Tuscany) already noted in the context of many juridical works, there seems little doubt that this political and economic background was (and would be) most propitious. As for the cities of Naples, Amalfi and Gaeta in the south (all in an analogous position to Venice in the north), these operated independently, albeit enjoying a privileged relationship with Byzantium. They extracted pacts from Lombard princes that form part of the history of law, not only as source material in the formal sense, but also because they established models for the creation of inter-state regulations destined to have a huge impact on trade – import and disembarkation taxes were fundamental in this respect – whilst at the same time reinforcing their own public identity. The crusades were extremely important, not because they deter- mined the development of the cities (which was by then already in progress), but because of the privileges acquired by individual cities in competition with one another. It was a state of affairs that brought home to the various social classes the need to provide their own laws, not only to strengthen their own local organizations, and for the very obvious satisfaction of establishing laws in the face of external powers such as kings, dukes and central authorities (first Byzantine and now Norman in the south), but also as a way of unifying juridical traditions.

48 I discuss this in Ascheri, Istituzioni medievali, p. 317 f.

the characteristic of eleventh-century law 81

We are thus dealing with a kind of polycentralism (a better turn of phrase perhaps than the more frequently used ‘particularism’, which inevitably has a somewhat negative ring to it49), that did not, however, exclude the existence and recognition of centralized public structures, and that went hand-in-hand with a pronounced social fragmentation and stratification. In an Italy that was more feudalized in the north, contemporary records show that for juridical purposes distinctions were also drawn between capitanei (vassals of bishops, dukes and such like), vavassours (their dependents), and the common people, or cives (who for example in the first Commune distributed consular offices between themselves).50 But we should remember that this tripartite division was superimposed on other juridical and social realities: ecclesiastics, merchant-negotiato- res, and domestic servants, or slaves. In the midst of all this activity, the one unifying element was the people’s emergent sense of belonging to a city. From now on, enjoying the protection and privileges of one particular city assumed great importance in Italy. Time after time, therefore, we encounter individuals who are distinguished as being from Amalfi, or as Pisans, Venetians, Genoese, etc. This had marked and significant consequences: imperial citizenship became irrelevant, because the Empire sought unsuccessfully to halt the tendency of cities to become states, fearing as a result its own relegation to a weak and intermittent centre of co-ordination.

b) The Survival of Public Structures A number of public structures with power over and above the citizens did in fact remain. Even at the height of the medieval period, the concept of the State – albeit rudimentary, and despite the diffusion of feudal associations – continued to exist. This should not surprise us. Despite its failings (victim as it was to endless privatizations), the State had survived not only as a tradition, but also because it was supported by the ecclesiastic culture. Having withstood a first period of rejection, the State had in fact been accepted and welcomed into Christian culture, which then set about employing it to serve its own new mission of salvation. This Christian culture had become exclusive and intolerant, welding itself to that of the Old Testament with its strong predilection for monarchical

49 For social stratification in Lombard society, see Keller, Signori e vassalli. 50 For a first consideration see Tabacco as quoted in footnote 47.

82 chapter three government.51 This tendency went hand-in-hand with a widespread scepticism about the ordinary people’s capacity for self-government.52 The fascination with the biblical kings of Israel (Melchisedech, Solomon, etc.) clearly worked in favour of monarchical government. But such a system gained concrete recognition in the subsequent early medieval experience and its robust Carolingian phase. Further support for a monarchical order resided in the aura of greatness that continued to surround the Byzantine Emperor: the basileus model of the powerful Christian prince of diverse people, that was for centuries a direct presence on Italian shores in the form of functionaries and armies. With the help of ancient Roman formulae – enriched now by religious sensibilities – the Emperor-King was presented in solemn and abstract terms as keeper of public justice and peace. Kings were now ‘anointed’ by priests, and thus in some way presented as divine. In this context one should think, for example, of Psalms 106.3. Justice assumed a central position in the medieval world, because it was perceived to lead to divine favour, and at times was even viewed in terms of God himself.53 Thus, the functioning of law (tempered by impartiality) was regarded as of central significance, as too was the perceived danger of loss of power through tyranny.54 In particular, the king was the defender of the weak, typically personified by widows and orphans (as for example in Isaiah 1.17), and naturally he had to triumph over the enemy.55 In Byzantine Italy the king’s officials still commanded the field (albeit somewhat sporadically) despite the continuing (if not total) presence of a demanding fiscal structure that clearly advertised the State’s existence. Important-sounding titles bestowed by the Byzantine court (hypatos, dux, protospatarius etc.) were still adopted as a way to legitimize individual government offices. Thereafter, the dukes and counts in the Kingdom of Italy carefully retained the various honores, or honours, engaged as they were in consolidating their own more or less legitimate signorie or

51 For the early Middle Ages, see Claudio Azzara, L’ideologia del potere regio nel papato altomedievale (secoli VI-VIII)(1997). 52 ‘People should be educated and not accepted as they are’ was a well-rooted point of view, not just within the Church. Thus, unlike Celestine I in the fifth century (PL 50, col. 437a), there was no real need even to mention it. 53 For iustitia and pietas, lex-rex etc. see now Hagen Keller, ‘Das Bildnis Kaiser Heinrichs im Regensburger Evangeliar aus Montecassino (Bibl. Vat., Ottob. Lat. 74)’ (1996). 54 For these fundamental issues see La giustizia nell’alto Medioevo (secoli V-VIII) (1995), and La giustizia nell’alto Medioevo (secoli IX-XI) (1997). 55 For the importance of kings up to the Carolingian era see now McCormick, Eternal Victory.

the characteristic of eleventh-century law 83

fiefdoms and dominatus in the countryside. They were also ready to extort further privileges from the emperor, even to the point of requesting ‘immunity’ from intervention by the public bodies themselves.56 Even so, they played an important role, because although they eroded imperial authority through their power bases, at the same time they confirmed the emperor as the natural source of legitimacy. It was through such public structures that a very vivid memory of better times and of earlier principles – such as the division of expertise; governments that provided for the weak; justice as a public function; tax as a unit of public goods and duty; collaboration between the ‘people’ and the men of the church, and so on – was passed down.57 That a ‘public’ culture had been preserved is also demonstrated by recourse to judges even outside ‘contentious jurisdiction’, that is, in matters external to the actual argument. In northern and central Italy the ostensio chartae, or presentation of the document, was developed in the area of judgement, as a way of having a sentence that established the right (of the owner) erga omnes for the future.58 It was a way to guarantee a law which became so widespread from the ninth century onwards that it was eventually included in the formularies – as is illustrated by the one surviving ancient example concerning Italy.59 In some Byzantine areas there were subsequently ‘contract’ judges, who were able to confer on the notarial document the auctoritas that it would otherwise have lacked.60 Much stronger evidence of the survival of public institutions in the eleventh century is preserved in the records of trials and various sentences, or placita.61 The term placitum derived from placuit (it has been

56 One famous case is that referred to once more by Giuseppe Sergi, I confini del potere. Marche e signorie fra due Regni medievali (1995), p. 378 f. This concerned the diploma issued by Otto III in 1001 that protected a nobleman, Arduin, because of the immunity he could claim from intervention by public powers: given that at that time such powers were represented by Arduin himself, he was the marquis. 57 Despite all the usurpations, one should remember for example the fiscal structures examined by Carlrichard Brühl, Fodrum, Gistum, Servitium regisregis. Studien zu den wirtschaftlichen Grundlagen des Königtums im Frankenreich und in den fränkischen Nachfolgestaaten Deutschland, Frankreich und Italien vom 6. bis zur Mitte des 14. Jahrhunderts (1968). For the exceptional character of this in the Italian context, see Chris Wickham, ‘Lawyers’ Time: History and Memory in tenth and eleventh Century Italy’ (1985), p. 54. 58 Studied now by Giovanna Nicolaj, ‘Documento privato e notariato: le origini’,. 59 This is the one called ‘Lombard’, for example in Fontes iuris, p. 481 f. 60 See now Alessandro Pratesi, ‘Appunti per una storia dell’evoluzone del notariato’ (1983), p. 764. 61 Both Hagen Keller, ‘I placiti nella storiografia degli ultimi cento anni’ (1976), and Armando Petrucci-Carlo Romeo, ‘Scrivere ‘in iudicio’. Modi, soggetti e funzioni di

84 chapter three agreed), and indicated a meeting that was intended to reach a decision.62 It was eventually used in the context of both the documents recording the event, and the right itself to call the meeting (placitum, in the past meaning gairethinx, mallum or inquisitio). Surviving documents that illustrate such developments – signed by the judges and other persons of authority present – are records of the greatest interest not only for the history of writing or for specific judgements, but because they also indicate the procedures followed and the types of dispute brought before the courts. It seems that there was an expectation of a public resolution of disputes that pre-empted the need to resort to vendettas (faida) or to other forms of private settlement. Even though we know little about seigniorial justice during that time (except for that exercised between religious institutions), it is through placita that we have some idea about law in the public arena. These demonstrate the triumph of customary law in new institutions that had developed out of a juridical culture of mixed origins.

c) Trial Proceedings63 In the Kingdom of Italy local judges were known as centenarii. They were elected by the community and had limited authority, not being able to dispense penalties that restricted liberty, much less capital punishment. Nor could they judge questions of property or of possession of land or servants. Such judgements fell under the jurisdiction of a superior judicial authority that was both military and civil: the missus or delegate, or the comes or count. This was the representative of the king, who was the highest political authority in the case of justice denied, the abuse of justice, and appeals. But, as a mark of respect for the peoples’ participation in government, the court over which that individual presided was presented to the public as a body including both lay authorities and local ecclesiastical powers, through the inclusion of iudices (known in the past as scabini or sculdasci) and boni homines (who were experts of law, including local scrittura nei placiti del ‘Regnum Italiae’ (sec. IX-XI)’ (1989), are useful in this respect. The principal collection of documents concerns I placiti; see also Raffaello Volpini, Placiti del ‘Regnum Italiae’ (1975). 62 As a result, the normative choices made by the kings were also understood as pro- nounciations of the law (placita legum). This is said, for example, of Rothar in Expositio ad Librum Papiensem, in Fontes iuris, p. 359 § 4. 63 For the important early medieval preambles, see now the conference papers of La giustizia… secoli V-VIII, and the follow up in La giustizia… secoli IX-XI, where particular note should be taken of contributions by Chris Wickham, Giovanna Nicolaj, Paolo Delogu, Giuseppe Sergi, Ovidio Capitani, Peter Landau and Charles Radding.

the characteristic of eleventh-century law 85

law), as well as persons of note. (In the case of the latter it is often not clear how they were recruited or even if they were appropriately educated.) The courts held public sessions before the populus two or three times a year. These often turned into great ‘happenings’, or events, which (being prepared over a period of time) afforded an opportunity for self- promotion, or for taking other decisions of a non-judicial character. Because they were itinerant, it is also easy to imagine how such events could be the source of ever more worrying expense for those communities that hosted them.64 In the Lombard principalities there was also a public dimension to court sittings, but the assembly style of the proceedings was much less marked. Judges could also operate independently, without (as we would now say) political authority.65 This might well be explained by the continuing Roman-Byzantine juridical tradition in certain areas. The assumption that records of trials handed down to us from the placitum are complete is open to question, as is the associated common belief that this sort of trial confused law and fact. In actual fact, the vast majority of surviving trial accounts deal with questions of property, and the laws invoked by petitioners are easily recognizable, and quite distinct from the facts. In the trial of Marturi, for example, it was precisely a plea on a point of law that closed the matter, and where the thirty-year provision was cited – as in the placita concerning local affairs mentioned above – the appeal to legislation is quite explicit. The court listened to contending parties which could be (and often were, according to surviving documentation) collective entities: monasteries or villages, often in dispute over the use of possessions. There was no discussion of their legitimacy to take legal action as independent individuals – that was taken for granted. In their position as presidents of the placitum, judges – themselves often noblemen – assumed the responsibility to consider the evidence presented to them.66 Surviving records refer

64 In fact an attempt was made to circumscribe court activities in the charters of freedom: in the famous declaration of 1040 in respect of Tende, the court sitting was limited to only three days each year: see Maria Clotilde Daviso, ‘La carta di Tenda’ (1949). 65 Paolo Delogu, ‘La giustizia nell’Italia meridionale longobarda’ (1997), p. 291 (and p. 294 for independent activity of this kind, referred to as convenientia). 66 Keller, Signori, p. liii, says that during the tenth century judges were also proprietors of enfeoffments, as well as members of leading families: thereafter even when not noble, they enjoyed such a status and were recognized as knights in the statutes: Johannes Fried, Die Entstehung des Juristenstandes im 12. Jahrhiundert. Zur sozialen Stellung und politischen Bedeutung gelehrter Juristen in Bologna und Modena (1974) is important in this context.

86 chapter three to lengthy discussions between lawyers, and at times even draw attention to the verbosity of such exchanges. Documentary evidence and testimonials were important. Testimonials, in particular, were subjected to numerous provisions relating to their reliability and the number of witnesses required. Indeed, the stipulation ‘unus testis nullus testis’, ‘one witness, no witness’, already established in biblical sources, was intended to reconcile such factors.67 Elsewhere, various other precautions were taken. One of these – recorded in the Decretum of Gratian (C. 2, q. 4 c. 2) – decreed that in the Church of Rome seventy-two trustworthy texts were necessary for the condemnation of a pope (reduced to ‘only’ sixty-four in the case of a cardinal-priest, twenty-seven for a cardinal-deacon, and ‘only’ seven for other members of the clergy). In the absence of official texts or documents, or where there was doubt about their validity, recourse was made to the swearing of an oath. This amounted to a kind of ‘purgatory’, whereby the party examined about the truth of an obligation or incidence of damage was forced to confront their own conscience. Another course of action was to turn to what some people called the ‘sacramental’ from the sacramentum, a very widely used oath. Around the time of the millennium evidence on oath could be requested immediately, or else turned to because the submitted document was pronounced false in the judgement.68 As for resorting to ordeals, beginning with the most famous of these – the judicial duel – this was rare before the eleventh century, and only took place when it concerned defendants under Germanic law (and thus was no doubt imposed by tradition). In actual fact, it had been known for centuries that trial by ordeal could result in miscarriages of justice.69 Even very recently, anxieties have been expressed regarding this.70 That being said, a constitution issued by Otto I in 967 ordered the application of the duel for everyone, that is, even for those people abiding by Roman law.71

67 This derives from the story of Susan in Daniel 13.1–64, and Deuteronomy 19.15 (see also Numbers 35.30), as well as Matthew 18.16, John 8.17–18; 1 Timothy 5.19; 2 Corinthians 13.1; Ebenezer 10.28. 68 Bougard, La justice, p. 333 f. 69 Anxious about the reliabilty of such processes, Liutprand, the great king legislator of the Lombards, voiced doubt about the validity of ‘iudicium Dei’, given that many individuals had unjustly lost their cases as a result of a duel (‘per pugnam sine iustitia’); but he was not able to do away with duelling, given that this was the custom of his people (chapter 118). 70 Atto, bishop of Vercelli (924–961): Jean Gaudemet, ‘A propos de la preuve dans le droit canonique médiéval’ (1992), p. 8, should also be consulted in the context of the uncertainties of canon law. 71 Bougard, La justice, p. 335 onwards.

the characteristic of eleventh-century law 87

The practical application of this particular constitution was extremely important for showing that legislation could, even if only rarely, achieve its intended ends. Was this, one might ask, a strange resurgence of Germanic law just at the time when Roman law was set to re-emerge? In truth, it was not a question of a cut-and-dried struggle between two juridical traditions. Rather, it was a matter of avoiding oaths intended to close down an enquiry, and which were indeed designed to achieve that goal: thereby providing ideal and thus dangerous opportunities for transgressions.72 In order to avoid both the swearing of the oath and the oath as a principal form of evidence, the duel could be requested immediately for all disputes regarding property and the possession of land – even that belonging to the Church.73 The same also applied where a sum of money had been deposited and the depositor wished to retrieve the loan, and in cases where theft was suspected. This was thus not so much a victory for the bellicose Germanic spirit over refined Roman culture as recognition of the Church’s preoccupation with perjury. Indeed, according to the preamble of the law itself, simply the request for a duel was intended to persuade the opposing party to recognize the effectiveness of the law.74 It was, moreover, preceded by a number of rituals, including fasting, attending Mass and exorcism. The Church, anxious that the judicial oath should be given in all due solemnity sought to ennoble the act by such means. But the duel reinforced the image of the semi-magic, even sport- ing nature of the trial (as the aforementioned placitum of Matilda clearly illustrates), where before embarking on a great dispute, a duelling cham- pion appeared waving a large, multicoloured woman’s glove. Duel became more widespread following Otto III’s extension of its use to lawsuits of status libertatis, where consideration was given to conditions of freedom or servitude. The latter was ever more frequently challenged, although it was at times defended by the religious authorities – who naturally did not

72 Similar situations existed outside Italy: Robert Bartlett, Trial by Fire and Water. The Medieval Judicial Ordeal (1988); but see particularly Colin Morris’ Judicium Dei: the Social and Political Significance of the Ordeal in the Eleventh Century’ (1975), for the success of such ordeals especially during the eleventh century; Dominique Barthélemy, Diversité des ordalies médiévales’ (1988), is also useful. 73 I capitolari, as indicated in the index. 74 Bougard, La justice, p. 338 f. emphasises the extent to which the provision for the duel was inserted in fake acts (that, for example, disguised a loan), in such a way that the creditor was already ensured of receiving his proper dues: ‘quantum de ipsis rebus per pugna perdideretis, tantum… restaurare promitto’ (act of 1028).

88 chapter three wish to see the patrimony of their institutions diminished and who, through servitude, thought to maintain their own good administration.75 The point should nevertheless be made that in the south, in a Lan gobardia minor permeated or at least influenced by the more ‘advanced’ Byzantine culture, the duel remained only a theoretical possibility.76 In the Memoratorium covering the Beneventine area, for example, the duel is not even mentioned.77 In order to match this more civilized state of affairs, the northern cities had to petition the emperor for exemption from the pugna. Pisa and Lucca were granted an exemption of that kind at the end of the eleventh century. The emperor was also responsible for the prohibition of trials on Sundays; a decision that was immediately respected.78 The duel was not allowed in the case of members of the Church, in order to avoid the possibility of bloodshed.79 However, those on the side of the Lombards were still using the duel to political advantage in the twelfth century by associating it above all with the people of Lombardy.80 In Italy, other ordeals, such as those of fire or water, were adopted in exceptional cases for ecclesiastics, but because the people involved had a predominantly symbolic function. Trial by water was recommended by Pope Gregory VII in a judgement concerning links with the Empire. However, the adoption of such Germanic practice did not bring him much favour.81 Such ordeals have always been regarded as unreliable.82 But if

75 One of the statutes concerning the duel and servitude was not enforced: Alessandro Visconti, ‘Una legge feudale di Ottone III esclusa dal Capitolare Italico’ (1927). According to François Bougard, ‘La justice dans le Royame d’Italie aux X-XI siècles’ (1997), p. 164, the great administrator Leo, bishop of Vercelli, was one of those who (in 1022?) bemoaned the freedoms extended by his predecessors. 76 Bougard, La justice, p. 335, with a reference to recent studies. (See also p. 337, fn. 111 for the duel no longer forming part of the Beneventine system). 77 See footnote 76. 78 Bougard, La justice, p. 276. 79 This was normally the case, although Gaudemet, ‘A propos’, p. 9, refers to a duel between a monk and a cleric in 1107–10; they were condemned because ‘the decrees of the Roman pontiffs’ forbade duels between clerics. 80 Ibid., p. 337. Wickham, ‘Lawyers’, p. 198 and fn. 31, notes that despite this, surviving records indicate that the duel was rarely applied: jurists were not fond of applying new laws. 81 Respectively, Giovanni Miccoli, Pietro Igneo. Studi sull’età gregoriana (1960), and Edward J. Cowdrey, The Age of Abbot Desiderius, Montecassino, the Papacy, and the Normans in the eleventh and early twelfth centuries (1983), pp. 169, 247–249; see also Gaudemet, ‘A propos’, p. 8, for a refusal by Alexander II (1063) to acknowledge lex vulgaris in the favour of testimony thus acquired for cases of murder: according to him such popular inventions should not be adopted. 82 For example, Raoul C. van Caenegem, ‘Methods of Proof in Western Medieval Law’ (1991).

the characteristic of eleventh-century law 89

their function was to settle a disagreement in the absence of other forms of examination, one cannot deny their effectiveness. Trial proceedings were thus, in theory, driven by the following principles: 1) ‘concentration’ on debate for only a very limited period of time; 2) oral evidence, because it was free of exchange of written memorials between the parties, and 3) publicity, through being held in front of the ‘people’; 4) the participatory character of the sentence that was reinforced by the much used formula ‘habito consilio’, in reference to the consultation undertaken by the assembled judges and learned men, who could also be of diverse ‘nationalities’ in recognition of the diverse ‘personalities’ of the litigants;83 5) justice that normally took the form of one unique action, appeal to the Palace at Pavia being increasingly rare after 1024.84 This was the theory. In practice, attempts were made to reach agreement between the parties, since it was often difficult to put into effect the decisions of the courts in the absence of efficient governmental systems of coercion. In fact, the records speak of the ‘peace’ and ‘concord’ that technically should form part of each transaction, whereby each party renounced some part of their claim.85 On other occasions, the trial served as a deterrent, in the sense that it prompted an extra-judicial response to the dispute. Individual parties, knowing that it would not be easy to get justice (whether through a decision, or through execution of the sentence) often came to an agreement, and with a pact (referred to technically as the compromissum) resolved their differences through arbitration, in a sworn ‘laudum’, or affidavit. This solution became increasingly common as, towards the end of the eleventh century, the customary placitum met less and less often in the wake of the crises of traditional powers. The absence of appeal was another reason for the success of the episcopal court, which could be invoked with the allegation of absence of justice in the secular tribunal. Otherwise, one could resort to the central tribunal of the king (in the case of the Kingdom of Italy, at Pavia). Theoretically, and according to established custom, the king was the ultimate dispenser of justice, and moreover asserted general control over all the judges. Only

83 One famous Roman placitum was that of 1014 which was presided over by the pope, alongside Roman and Lombard judges: the sentence was reached according to both the law of Justinian and of the Lombards (‘tam ex iustinianae legis quam et longobardicae videlicet capitulis’), and reference was made at the same time to the above-mentioned Summa perusina: see Calasso, Medioevo, p. 288 fn. 47, p. 339 fn. 154. 84 Padoa Schioppa, La cultura, p. 221 f. 85 See Toubert, Les structures, II, p. 1327, who also refers to the consensus that was to be agreed by the lawyers over the sentencing; Wickham, ‘Lawyers’, p. 211 f.

90 chapter three in exceptional cases did the president of the placitum himself review a judgement – as must have happened in Pepo’s placitum in Lombardy, and as happened when Matilda, at the request of an individual who had lost a case, declared that the duel should be carried out. Under such circumstances, it becomes clear that there was a tendency for opposing parties to appear equal in front of the court in trial proceedings. This helped to undermine, rather than encourage confidence in the judicial system. Indeed, some scholars have described such procedures as ‘inequality in the face of the law’. Clearly, equality in this context should not be mythologized. It is possible that at times it was merely a formality that was immediately jettisoned, for example, at the executive stage. But there seems little doubt that it would have helped to stamp out violence. Violence happened often, as is illustrated by the case of the bishop of Teramo (among others), who in 1057 summoned the abbot of San Salvatore at Rieti to appear in court. For three days, the abbot refused to respond to requests that he nominate a lawyer, forcing the count acting as president of the placitum to conclude that the result would be investitura salva querela in favour of the bishop. This was enough to provoke a brawl, since many of the abbot’s men, who were mounted on horseback, drew their swords and began to menace the assembled company with ‘terrible and most eloquent expressions’.86 To put it in modern terms, by using such methods, the political power confirmed its authority over the judicial process. It was no coincidence that presidents of the placita worked for the king or for some other public functionary. They were, in effect, missi, or ‘emissaries’. But, firstly, judgement was de facto essentially arrived at by judges, who were often local notables and considered experts in the law; and secondly, like civil trial proceedings, the criminal trial (of which very few records remain) was essentially accusatory, in that it depended upon the initiative of the wounded party or heirs, instead of upon a public organ that was responsible for any action on its part that was directed against the criminal. There was a particular way of dealing with very serious crimes against public authority, as a consequence of their impinging upon the government itself. As a result, such misdemeanours might not even reach trial stage, being resolved de facto or through political channels. Given these peculiarities, it is easy to understand how the make-up of the courts and their competence in different matters varied. As has

86 I placiti, III, nos. 404 e 417.

the characteristic of eleventh-century law 91

already been noted, the co-existence of enforceable laws opened up a number of possibilities to those who wished to bring a case, but the final decisions tended to be the same.87 In order to conclude the case, one was either ordered to return property illegally occupied or the sum of money originally obtained; or else subjected to a penalty. There were not normally cases of lengthy imprisonment by way of expiation of a crime (and if at all, usually only for a short period of time). The exception was imprisonment imposed by bishops on clergymen, because as always ecclesiastical justice – presumed to be mild and charitable – could not allow any bloodshed. Punishments were generally either corporal (ordeal by the fork, or various other mutilations for murderers and thieves), or else monetary – ‘settlements’ that had to be paid in part to the injured party (its Wergeld) and in part to the public treasury, for having disturbed the ‘peace’. The imperial Camera, or Chamber, was the ‘treasury’, an institution soon copied by the Papacy, the various kingdoms, and the com munes. Another element, for example in the case of a crime of ‘lese majesty’ (as any offence against public authority was called by the Romans, and which was punishable by beheading), was the confiscation of all property owned by the condemned person in favour of the treasury.

d) The Placitum of Marturi The famous 1076 placitum of Marturi allows us to be more specific. In this document (which has already been mentioned in reference to the Digest), we possess not so much a notitia iudicati (in other words, a record of what went on during a trial) as a brevis recordationis (that is, a text written solely as a record of the examination, without signatures, a notary, or witnesses).88 It was drawn up for the successful plaintiff, the abbey located at Marturi, the foundation of which had involved duke Ugo of Tuscany, the most powerful man in Italy at the end of the tenth century, and an enter- prising saint named Bononius.89 The document is preserved together with the refutatio by the defending party (that is, the declaration that recognized the abbey’s claim to possession of the contested lands, with

87 For the bullishness of the declarations of law in the eleventh century, see Bougard, La justice, 295: was this merely an aspect of a general cultural renewal, or more particularly a response to the consciousness of a threat to ‘national’ identity? 88 The document is instead signed by the same president of the court, who concluded with a Leonine hexameter: ‘Addo finem dictis scribens ego Nordilus istis’. 89 Referred to by Wilhlem Kurze, Gli albori dell’Abbazia di Marturi’ (1969).

92 chapter three the pledge not to contest the ruling, and with the commitment to a penalty – a sign that the trial proceedings were considered closed). After the usual invocation (‘In Christi nomine’), the document records that the trial had taken place ‘in the presence’ of Nordilus, missus (perhaps the same individual recorded elsewhere as legis doctor or causidicus), representing official power (in other words, Beatrix, the duchess and marquess of Tuscany – by then widowed – and mother of the better- known Matilda of Canossa, with whom Beatrix was at that time governing Tuscany), and viscount Iohannes, the lay provost responsible for the administration of the areas in which the trial was being held. In addition, there were ‘residents in the guise of legal representatives’, a ‘judge’, Guilelmus (mentioned elsewhere in other placita held in the area of Pisa and Volterra), and a certain Pepo, recorded as ‘legis doctor’ (not judge), which probably means that he was a teacher of rhetoric (which conferred particular significance on law). As well as these, six other individuals were recorded as present (identified by both their first given names and their patronyms, but with no reference to their qualifications), and ‘many others’ – most probably, like the first, free men brought in to safeguard the public proceedings of the placitum. The opposing parties are identified as the advocatus of the monastery (at that time a layman permanently employed lato sensu in an administrative role for a religious foundation) together with the provost of the same monastery and an individual referred to as ‘a Florentine’. The case involved some properties and a church which had belonged to an individual who had subsequently ‘bestowed’ his possessions upon Ugo, marquis of Tuscany – as witnessed in a cartula presented by the advocatus. Ugo, in turn – as proved by another charter – had ‘given’ these possessions to the Badia of Marturi. This was the claim (intentio in technical Roman terminology) put forward on behalf of the plaintiff (the abbey). The Florentine for his part, technically the ‘defending party’ (that is, the one summoned for judgement) objected (exceptio – defence, in Roman terminology). He argued that, according to Justinian’s law, the praescriptio longissimi temporis, he had acquired rights over time since he himself had owned the property for more than forty years, and before that it had belonged to his father.90 The abbey’s replicatio concentrated on showing that there had been interruption break in the course of those forty years. They claimed

90 This law in fact only required 30 years in the case of private citizens; the provision of 40 years was a special norm that favoured the levying of tax as well as the Church.

the characteristic of eleventh-century law 93

that they had already, a long time before, resorted to seek restitution of the possessions at least twice, through legal channels and presenting appropriate petitions to the marquises, and had gained recognition in law of their rightful ownership of the property. Three of those present as witnesses announced that they were ready to swear to this claim, but in the event, because both parties agreed that this was sufficient, only one actually took the oath, which he/she did by putting their hand on the Gospels. That being done, Nordilus (the president of the court) found a new way out of the situation. ‘Having seriously considered’ the ‘law’ taken from the ‘books of the Digest’ (according to which, if it had not before been possible to force a decision from a judge, the plaintiff had to return to his previous situation with regard to further judicial possibilities open to him), Nordilus applied the same solution to the monastery.91 On this basis, the monastery’s rights were reinstated (technically, it was an in integrum restitutio), despite the two preceding petitions that had failed. As becomes clear, no duel was necessary and the keystone of the solution was the ruling extracted from the Digest, evidently unknown to most of the assembled company. This much, therefore can be agreed upon. But every other deduction is open to question. There has been a lively debate amongst students ever since the document came to light in the eighteenth century, as to whether or not to affirm, for example, a weaker or more direct link between Pepo and the Digest (neither of which is confirmed in the document itself). It has also been suggested that Pepo might be identified with other contemporary individuals of the same name who operated in placita elsewhere.92

3.4. Legal Status and Territorial Aspects of the Law

Another element in need of clarification is juridical ‘personality’, on the basis of which each person had a right to be tried according to the law of

91 The passage, within what would subsequently be called Digestum Vetus (Dig. 4.6.26.4), was referred to here without any specific reference. The text does not however document a real placitum, and it is possible that a copy of the text of the Digest was presented, or that Pepo had affirmed its existence to Nordilus. 92 For the countless questions concerning this matter, one should now consult Nicolaj, Cultura, and Bruno Paradisi, ‘Il giudizio di Màrturi. Alle origini del pensiero giuridico bolognese’, (1994). The text is now published in an appendix to Piero Fiorelli, ‘Il placito di Marturi del marzo 1076’ (1983), p. 199 f. (the volume also includes Cinzio Violante, ‘La ter- ritorialità delle istituzioni ecclesiastiche in alcuni documenti giudiziari (secc. VII-IX)’ which is useful for its rich collection of judicial documents).

94 chapter three his or her own native land, so long as this did not contradict public order regulations issued by the ruling authority which were of a ‘territorial’ nature and thus applicable to all. Such rights were established through professiones iuris, or ‘declarations concerning the law’, whereby in the moment of drawing up a juridical act, it was made clear which law was being applied, and (accordingly) which law was to be abided by. We have seen examples of this not only in the Kingdom of Italy (which, as a result of its exposure to tides of immigration, was the adopted country of people from many different lands), but also in those areas that were truly Byzantine. Professiones iuris was widespread in the north throughout the twelfth century, but, as we shall see, diminished thereafter. However, such rights formed part of Lombard law even after the end of the Byzantine domination, and above all in Puglia, where institutes based on ‘declarations concerning the law’ remained common for a long time.93 But in the whole of the region of Longobardia minor there were a great many communities of Jews, Bulgars, Slavs and Armenians who lived according to their own juridical customs, and the Normans could only respect the laws they found there – if anything, further complicating the situation by introducing their own Frank law. We know, for example, that the Jews had their own tribunals qualified to deal with family matters and questions of inheritance that operated according to ancient Talmudic law.94 Those minority groups that were less culturally strong were, however, easily absorbed into the Lombard-Latin tradition. This widespread ‘tolerance’ should not surprise us. Public powers were not yet sufficiently well organized either to impose observance of a uniform law or to control the extent to which it was respected. Moreover, as we have already stressed, there was no concept of overall citizenship since by this time local powers had in one way or another established sufficient autonomy of government to be able to enter into negotiations with a very real and independent force, and according to their own political interests. But most importantly, the central powers themselves did not see any problem, because it was ‘natural’ to respect a plurality of laws emerging from the fusion of people of different races. Such plurality was not seen as prejudicial to public power. It was recognized as a phenomenon resulting from the co-existence of many different cultural and social identities

93 Pierluigi Falaschi, ‘Il mundio in alcuni documenti pugliesi della seconda metà del XVI secolo’ (1973). 94 Georges Michélidès Nouaros, ‘Quelques remarques sur le pluralisme juridique en Byzance’ (1977), p. 437.

the characteristic of eleventh-century law 95

within the State, rather than as representing a danger to the unity of the State. However, juridical status should not be exaggerated, because at that time it was impossible to set norms that were strictly territorial, that is, valid for everyone, against ‘specific’ laws which by right applied to particular individuals, and which ‘accompanied’ them wherever they went. It would thus have been seen as a retrograde act to draw clear and finite distinctions between the two types of norm, as is sometimes the case today in contemporary states, where formal citizenship and the consequences of that – particularly insofar as these relate to the legal and tax concerns of those states – result in the foreigner being accorded a very obviously different status. Rather there were instead a number of different juridical traditions, established over time and commanding equal respect. That which dominated in any one region tended ‘naturally’ to be the one respected by the local people, even if these people originated from other ‘nations’. But other competing traditions were not quashed as a result. They simply co-existed, and that which prevailed tended to be regarded as ‘common’ for certain situations, without excluding, if necessary, recourse to the norms of other parties – as, for example, with the borderline case of the trial for the murder of a servant previously discussed. In fact, in the Kingdom of Italy there were a number of northern areas that relied predominantly on Frank-Lombard law, just as there were also areas of absolute Romanist character, for instance the territory of Rome; however, the abbey of Farfa, for example, switched at will between Roman and Lombard law. In some cases, ‘natural’ law operated quite independently of the individual’s national origin. As for the affairs of the clergy: because members of the Church could on occasion claim to be ‘non- Roman’, canon-Roman law, harmonized as in the Lex Romana canonice compta, operated. But for wrongdoers in particular areas, it was normally the case that one kind of Penitential was more widespread than others. Likewise, and quite apart from the nationality of individual parties involved in mercantile and maritime negotiations, a new body of institutions was coming into existence as a result of ‘international’ bargaining. For monks there were customs and special statutes.95 Similarly, in feudal dealings a number of special consuetudinary and legislative rules were

95 See for example, the contributions gathered together in Vom Kloster zum Klosterverband (1997), and esp. Burckhardt Tutsch, ‘Texttradition und Praxis von consuetudines und statuta in der Cluniacensis ecclesia (10.-12. Jahrhundert)’.

96 chapter three accumulating which were quite different to those of the military in the Byzantine area. Special rules, exclusive to particular classes, co-existed with more general territorial rules which were potentially valid for all, as for example those concerned with penal law (because there were also those that were at the same time ‘personal’, or ‘individual’), or the complex of trial regulations touched on above, which were for the most part Germanic. The acceptance of ‘Germanic’ laws – a label now adopted to express in one word a variety of origins, from Lombard through to Frank, Saxon and Salic – was in particular bolstered by the fact that over time they had absorbed and been enriched by the institutions and the language of Roman law.96 Romanist laws must have offered useful finishing touches for Germanic legislation, as the Expositio in fact shows. Emphasising, as it did, the ‘general’ character of Roman law, the Expositio probably did not present any great innovations, but reflected an established and by now indisputable version of a system of legislation at first incomplete, but subsequently brought to completion through the application of more flexible laws. As the Romanist predilection for the Expositio illustrates, it was difficult to deal with the problem of formal coherence, because ‘regulatory coherence’ (that is, coherence within the juridical system) has always been more of a problem for theoreticians of law: for the professors, who necessarily on a daily basis have to put such legislation into practice. Moreover, many norms were not written down because they were considered obvious, but these norms were nevertheless those that were most respected, reflecting as they did ancient and deeply-rooted customs. The result of this is that there is now no clear evidence of those norms. We know little, for example, about the privileges extended to the nobility (casually recorded as being exempt from tithes or those taxes associated with work that were levied on the common people). The nobility were already associated with societies that in the twelfth century became ‘societies of captains and vavasours’, one example being the important societas de Galiardis at Milan.97 It was probably through those channels

96 The Roman prescription, for example, which was so important for providing stability for possessions held over time (eliminating possible disputes), was absorbed into the Lombard edict of Grimwald (chapter. 4, in 668). However, this demanded an oath to the effect that one was not in possession malo ordine; at a later date Astolf (chapter 18, in 754) only emphasised prolonged possession. 97 Keller, Signori, p. 250 f.

the characteristic of eleventh-century law 97

that ancient privileges were handed down in Italian cities.98 We also know little of the origins and special body of legislation drawn up for serfs, known as gleba (or clod) because of the serfs’ long-standing association with earth or the land. This legislation established various forms of servitude, including that based on the massaricium ius.99 The fundum or tenimentum – a technical term which gives an idea of the permanent and hereditary state of servitude endured by tillers of the land owned by the manse – was an additional element that could be transferred together with the ownership of the principal property. The manse was the farm complex that was handed down from father to son. Such a complex ensured the survival of the nuclear family, bound only to services fixed in favour of the dominus of the land, that nevertheless allowed them to save the necessary surplus to buy their freedom (increasingly frequent from this period onwards): the status libertatis of Roman law.100

3.5. On the Origins of Feudal Law

Often in the past, and often even now, the period of ‘feudal anarchy’ is evoked with the darkest tones, as if it were the ‘end of the State’ or even as if to confirm the impossibility of the ‘existence’ of the State itself. After all, this was a time when an abstract sense of loyalty towards an impersonal corporation would not even have been conceivable: such sentiments were at that time reserved for people, from sovereigns to local feudal lords. According to traditional representations, the eleventh century, which is our starting point, was already firmly in the grip of the ‘feudal age’.101 Against this, several bold individuals – time after time emperors, kings or popes, and then subsequently the communes – are said to have battled for the triumph of the law (sometimes ancient and sometimes new), and to have striven to recover or institute ex novo public structures, pitting these

98 Giuseppe Sergi, ‘Le città come luoghi di continuità di nozioni pubbliche del potere. Le aree delle marche di Ivrea e di Torino’ (1985). 99 Bruno Paradisi, ‘Massaricium ius’. Studio sulle terre ‘contributariae’ e ‘conservae’ nel Medioevo con particolare riguardo alle terre massaricie della Lombardia (1937); and Emanuele Conte, Servi medievali. Dinamiche del diritto comune (1996). 100 This is still in force, after a thousand years, in the contemporary Italian institutions ‘maso chiuso’ concerning family holdings. This is subject to special rules concerning acquisition and succession, taking into account the realities of traditional familial possessions in some mountainous areas of Italy. 101 See Padoa Schioppa, Il diritto, p. 113 f., and the somewhat uneasy and problematic Cortese, Il diritto, I, p. 255 f.; Mario Caravale, Ordinamenti giuridici dell’Europa medievale (1994), pp. 139–147 contains a good synthesis of the communis opinio.

98 chapter three against the prevailing forces of ‘disunity’ that were intent on preserving their own personal interests. According to this scenario the cities were in decline, awaiting their rebirth or re-launch between the years 1000 and 1200 – depending on the parts of Europe being considered. Social life is presented as completely absorbed within the framework of landed property belonging to the signori, or lords (whether lay or ecclesiastic), organised on a more or less feudal basis. But this vision is now strongly contested on a number of fronts. The point has been made, first of all, that apart from those areas that were free from the feudal system, a number of very different forms of feudal life were established in various parts of Europe. It was, moreover, often the case that its evolution in one particular area resulted in what were in fact rather different realities on the ground being described in similar terms. It is also pointed out that the feudal system, or at least that established in Italy, never resulted in the disappearance of private property (called during the late medieval period allodio, or allodium), and that the same feudal lords could on occasion be the proprietors. Furthermore, certain more conservative areas accepted the feudal system with notable reluctance, and even then intermittently. Finally, the feudal system did not bring ‘public’ (i.e. State) culture to an end, and neither, above all, did it sweep away the cities, which in fact took advantage of the feudal classes to give themselves stronger, independent institutions. There is in fact a marginal but well-rehearsed body of opinion which maintains that too much emphasis has been placed on the very clearly differentiated relationships of the late medieval period which were in consequence considered ‘feudal’.102 According to this view, these relationships cannot all be accommodated within the one category of the beneficium, or benefice (commonly referred to as vassalage), the state of fealty that is regarded as an essential element of the feudal system which, from the twelfth century onwards, was beginning to take on a definite character, thanks in many respects to certain juridical responses in Italy. During the period under consideration, we are only at the beginning of the ius feudorum or ius feudale, the system of norms particularly concerned with regulating the terms of feudal grants. Although feudatory nobility could be considered as already established in the Carolingian

102 See Elisabeth A. Brown, ‘The Tyranny of a Construct: Feudalism and Historians of Medieval Europe’ (1974), and now particularly Susan Reynolds, Fiefs and Vassals. The Medieval Evidence Reinterpreted (1994).

the characteristic of eleventh-century law 99

period, the body of legislation that was developed was directed more towards vassals than to the feudal system itself. At that time, there was a desire to clarify the obligations of the vassal and the limits of his oath of fealty to the senior, both of which were imbued with expectations of steadfastness and loyalty as a result of honores (public duties or offices) received from the king. In short, more attention was paid to the terms of vassalage (vassaticum) than to the act of feudum, which at that time normally consisted of the assignment of revenues that could in some cases be non-existent – for example for vassi casati. As it evolved, however, there were increasingly generous concessions of land in beneficium, whether in terms of public lands allocated by the highest secular and ecclesiastical authorities, or private lands assigned by powerful individuals, who by so doing wished to secure the service of soldiers, or military guardians for their castles. In the Frank-Lombard world the obligation of fealty assumed by the vassus – the fidelitas which made him the homo of another, prepared to follow him into battle for example, in exchange for protection by that individual and the concession of property from the senior – was widespread amongst the higher institutional and social echelons of bishops, abbots, counts and marquises. As the crisis in the Kingdom became more apparent, and as at the same time the new configuration of armies acquired a central significance, it became increasingly necessary for individuals ranging from the powerful capitanei (‘leaders’ amongst feudal vassals, directly dependent on public authorities) to their own dependents to have an array of vassi in order to establish a credible presence in the competitive political arena. In Italy, the word feudum (feo, feodo) is distinct from beneficium103 which was, it seems, first used in Lucca (a Frank-Lombard city with a well-established documentary tradition) only around 900 (but in Toulouse only in 940). At that time the term referred to possessions allocated to a church and subsequently withdrawn, with the attendant obligation to pay an annual tax, the future fief de reprise of the French feudal system, as a way to establish a position within a powerful religious body. Emphyteusis (the agreement whereby churches gave land to powerful individuals in order to place them under an obligation) was a different kind of concession, but similar in its socio-economic results. Already documented in the seventh

103 In this context, see the detailed examination by Vito Tirelli, ‘Il termine ‘beneficium’ nei documenti lucchesi (secc. IX-XI)’ (1997).

100 chapter three century, this concession was effected through a typical Roman law contract found, in fact, in the territory of Ravenna, the administrative centre of the Byzantine dominion in Italy, and by definition, a non-feudal area. In both types of concession there were powerful individuals who (as often happens during periods of grave political crisis, and typically in Italy during the tenth century) lacked sufficient funds to pay for services or to fund them in the future, but who nevertheless owned a considerable amount of State property or public rights over bridges, roads, river moor- ings, etc., that they were in a position to assign, but which, for various reasons, could not by law be allocated indefinitely (as was in fact the case for Church lands, and as should also have been the case for land belonging to the State). There was thus a move towards the beneficium, a concession that was temporary and unencumbered by the formal documentation that was required for contracts concerning buildings.104 The milites (for whom, not by chance, a long-disused Latin term was once more adopted, and whom we find again as a class of professional mercenaries essential in the development of the communes in Italy) were particular beneficiaries of this kind of concession. As a result, an increasingly powerful minores vassi, or ‘little vassals’ – as the valvassores in revolt in 1035 against the archbishop of Milan, Aribert and his capitanei were called – managed, in a situation where royal power was desperately needed, pledged in obsidi- one Mediolani, to extract the concession of the edictum de beneficiis (or constitutio de feudis) from Conrad II in 1037. This offered permanence to the terms of the benefice and a guarantee of judicial protection to public vassals (that is, those holding feudal rights to ‘State-controlled’ possessions), because it confirmed: 1) that the benefice could only be removed following some fault on the part of the vassal, and that it could not be altered by the senior; 2) that such a fault had to be certified by a court of ‘peers [i.e. equals]’, that is vassals (in other words, individuals who understood the details or particular problems of the case); 3) that for vassi maiores (the more powerful valvassours) there was the possibility of an appeal to the imperial Court;

104 On this point, see above all the classic study by Brancoli Busdraghi, Il feudo lombardo.

the characteristic of eleventh-century law 101

4) that a son had the right to inherit feudal rights upon his father’s death, or else the grandson, or even – in the absence of either son or grandson – the brother.105 The constitutio de feudis was the corner-stone of the feudal system in Lombardy (that is the Kingdom of Italy) both because it was destined in future to control the feudal terms indicated here (and not only on the peninsula), and because once the example had been set, it very soon became impossible for those who had vassals on their own lands that were not public to resist the claim to have recognition of analogous privileges. In the following decades (and as a result of custom) this body of legislation was also applied to ‘private’ vassals. Thus, as in commercial law, here too the play between the law and custom was repeated – in other words, tension was created between innovative political inclinations and the reality of forced arrangements, resulting in the areas covered by the body of legislation being broadened. It is no coincidence that Conrad’s constitution was included not only in the Liber Papiensis but also in the Lombarda, both already mentioned in the context of being fundamental collections of Frank-Lombard law. Feudal law was born as a custom, because there were no applicable legal precedents. But as soon as it was possible, there was a move to build upon this with the force of the law in order to control its development.

3.6. Conclusion

The relationship between the eleventh century and the new epoch (which in simpler terms could be called the Age of the Universities) was clearly one of continuity, because even in the face of new political, socio- economic and technical initiatives and even discontinuities, something of the previous civilization remained. But if, as usual, we are forced to come down on one side or another, to see if elements of the past prevailed (and if so which), or rather to prove that the ‘innovations’ were such that they require us to emphasise a discontinuity between the two centuries, we would of course have to admit a number of profound changes. Amongst these was the innovation of informed consideration that we would today

105 For the Latin text, and a parallel Italian translation, see Pietro Vaccari, Leggi e consuetudini feudali, pp. 64–69.

102 chapter three call ‘scientific’; the system of teaching that would rapidly result in the formation of proper universities, and the changes that resulted from the complexity of the doctrines that were taught. In the light of these it seems reasonable to conclude not only that a real sense of a ‘turning point’ was brought by Irnerius and his successors, but also to emphasise the discontinuity between the pre-Irnerian period and that which followed. It was, however, the eleventh century with the overwhelming force of its innovations – the powerful rise of the cities and the Papacy, and thus also of Roman law – that offers persuasive evidence of the closure of the earlier epoch.106 Even before Irnerius a new epoch was in the making. Irnerius and his collaborators interpreted in one kind of way the needs imposed by innovations that were already established, contributing in one kind of way to the development of western juridical culture. But this was already based on solid foundations, and no doubt as a result, an authoritative source such as Donizone, the biographer of Matilda of Canossa, would not have thought it necessary to devote any attention to Irnerius.107 At the time Irnerius’s activities were the comprehensive conclusion of much that had gained momentum during the course of the eleventh century and there was little to suggest that this would give rise to so many other developments. The real ‘volte-face’ was not so much between the eleventh and the twelfth centuries, perhaps, as around the middle of the twelfth, when people became aware of the changes introduced by Irnerius and their significance was made clear with such vigour. It was only then that what had already existed, but until that time not been deemed to have any significance, was perceived as something new: in other words, the professional undertaking of studies, in this case dedicated particularly to Roman law, with the specific intention of handing down to others the knowledge thus gained. The scholars referred to in the Expositio dedicated themselves profes- sionally to Frank-Lombard law with significant ‘Romanist’ clarifications, and in such a way as to accommodate the needs of contemporary judicial practice. Let us hypothesise for a moment what might have happened without the ‘turning point’ effected by Irnerius. Thanks to the activity of the judges and the jurists attached to the courts, the law could have evolved smoothly. This would probably have resulted in a kind of

106 Nicolaj, ‘Formulari’, p. 368, discusses the juridical renaissance under Otto. 107 See now, with a new bibliography, Ugo Bellocchi-Giovanni Marzi, Matilde e Canossa. Il poema di Donizone (1997).

the characteristic of eleventh-century law 103

‘common’ or ‘general law’ based on that of the Lombards and Romans, with its roots in jurisprudence – based on the pronouncements of the judges, as would be the case a little later with English common law. In fact, it was the almost exclusive dependence on the Roman law of Justinian and the projection of this onto a paradigmatic plain that contributed to the new reality. In 1000 reference was made to utraque lex; now it was deemed necessary to concentrate exclusively on Romanist sources before taking such an amalgam to a higher level. This was the real qualitative leap made by Bologna and its ‘civilisti’ (experts on civil law) – as they were soon called. The canonists remained faithful to the amalgam for longer, because they were formed in that cultural climate, and were thus in favour of conserving in canonist enclaves works such as the Exceptiones of Peter, that would otherwise have been withdrawn.108 But neither should it be forgotten that already in the eleventh century there was in general a decisive return to theoretical and also practical consideration of the law, and in particular of a number of documentary sources. There was considerable philological activity in checking the accuracy of the texts which was by then influenced by the discovery of all of the Corpus iuris civilis.109 Moreover, by that time also, law had become ‘general law’ and thus in respect of others, common to all, thus reproduc- ing that play between the ‘general’ and the ‘particular’ to which learned men of the Church had become accustomed over centuries – not least because such a tension was continually made evident in the conflict between the norms of the general and local councils. These were not innovations of the twelfth century, but if anything of the eleventh century, as witnessed by the re-establishment of the Papacy (and in fact when all is said and done, also of the contested Empire); of the cities; of the feudal system and of fundamentally monarchist institutions like those in England and immediately afterwards that of the Normans in southern Italy; all of which took place against a background of decisive economic recovery. On the basis of this, one might well say that the eleventh century was the real period of the great ‘turning point’; a sequence of events that makes us aware of something that was very different from preceding centuries110

108 Cortese, ‘Alle origini’, p. 48. 109 That the cultural renewal was widespread is revealed by the rediscovery of the complete Codex Theodosianus at Reims: see Jean Pierre Poly, Le sac de cuir (1992). 110 I am in complete agreement with Keller, Signori, p. lx fn. 22, who argues ‘the importance of the eleventh century for the development of an incipient institutionalization of infrastructures and of social relationships within the western world’.

104 chapter three

As for the cause of the ‘rinascita’, or rebirth, during the eleventh century, which from our point of view was particularly ‘Romanist’, it would be ingenuous to pinpoint only one factor. It is clear that there was a combination of circumstances, of developments both cultural and practical. Amongst the first was that complex of phenomena known as the ‘Gregorian Reform’, in other words, the vibrancy of the Empire, the need to clarify the situation at Rome and its responsibility for the comprehensive reform of the Western Church, the situation of the bishops in the cities, and so on. All of these should without doubt be granted significance.111 On a more practical level, in terms of material facts, the acceleration of the economic development and thus of commercial affairs gave rise not only to the problem of unifying the rules of the market, but also to the need to clarify institutional questions about the powers of government that the previous emphasis on local affairs had sidetracked. In order to achieve such clarification, it was necessary to regulate and define the various powers in terms of a juridical scheme: what was due to the Empire and what to the Pope; what lay instead within the realm of local powers; what to the bishops; what to the vassals, and so on.

111 It is not by chance that the Gregorian reforms assume a central position in the synthetic book by Berman, Law and Revolution, rightly considered important by Prodi in his Una storia.

PART TWO THE TRIUMPH OF JURIDICAL PLURALISM: CO-EXISTING LAWS AND THE FOUNDATION OF THE IUS COMMUNE (C. 1100–1250) CHAPTER FOUR

THE BEGINNING OF UNIVERSITY TEACHING AND GROUNDWORK FOR THE CORPUS IURIS CANONICI

From the late eleventh century law and theology were being studied and subjected to the most detailed analysis in an attempt to find answers to the huge problems arising from the conflict between the sacerdotium and the regnum. As a result, the seats of learning which gave rise to scholarly writings, which were then variously circulated and at times reworked, were markedly different from one another. For the intellectuals of the time, there were far fewer paradigms and even fewer ‘sacred’ places to respect than was the case with everyday acts and, for example, the notarial acts that are of interest to us. These individuals (at least in the beginning) conducted their studies and produced their writings in an atmosphere of great freedom regarding the themes considered and the form in which their work was finally presented. We are, at this point, witnessing the beginning of the secularization of learning, which had profound consequences for the history of Europe.1 Moreover, in one or two of the many centres where law was beginning to be recognized as a subject worthy of study in its own right, several individuals joined together and began to specialize in the subject with the guidance of one or more masters. As time went by, this was how the universities came into being. We can draw comparisons between this and the evolution of the communes. First of all, the ‘thing’ existed in an informal manner, and only later did it take concrete form, assuming the mantle of an institution and acquiring a nomen, which in turn proclaimed its institutionalization. In the meantime, such experimentation spread to many areas and certain ‘forms’ of expression associated with juridical discourse were consolidated, tending in a short space of time to become uniform in the various centres. Latin was the common language adopted for scholarly discourse. There was also a commonality in the schemes of learning, because notwithstanding early attempts at control, masters moved freely from one city to another, contributing to the unification of terms of expression.

1 Pierangelo Schiera, Specchi della politica (1999) rightly insists on this point.

108 chapter four

Consideration of the great changes wrought by the universities should not, however, lead us to overlook the fact that the restored Roman law co-existed alongside the enforcement of other normative systems which in fact had the effect of stimulating its own development. While Roman law was taught in the universities, the old Frank-Lombard legislation (along with its more recent ‘imperial’ modifications) was still applied. Moreover, and above all, feudal law was at that time being developed together with an explosion of written texts attesting local rights. Mercantile law also became more complex, and the principles underpinning a definitive systemization of canon law were being established. There is sufficient evidence to be able to speak of the triumph of ‘juridical pluralism’, in the sense that there was a spontaneous and simultaneous proliferation of normative bodies which was not planned, but which was ‘pluralistic’ – in that it was in some cases inspired by very different factors, but was nevertheless contained within the same religious context.

4.1. The Foundation of the Universities

Irnerius’s contribution was clearly not the bolt from the blue that past historical opinion has suggested. Rather, his work completed pre-existing philological and Romanist approaches, with greater lucidity and thus ‘transparency’. The result, however, was the birth of the great university of Bologna. This centre of learning was fundamentally important for the history of law, at least up until the fourteenth century. It was also in a position to make notable contributions thereafter, largely due to the emphasis it chose to place on this one discipline. In fact, Bologna not only quickly acquired fame, but at the same time became a model for other universities in its role as alma mater of legal studies. This was a centre on which students of law from all over Europe converged. Parallels can be drawn with the contemporary convergence on Paris for theological studies. In fact, the ardour of those seeking out the new university was so marked that it soon drew censure from preachers and moralists, critical of the mercenary character of the new jurists. The mobility and open-mindedness of this student body were easily construed as ‘deviant’, liable to introduce eccentric, even heretical ideas – quite apart from the assumption that such ventures would give rise to an influx of prostitution, vice and disorder.2

2 See, for example, the telling cases quoted by Manlio Bellomo, The Common Legal Past of Europe (1995), pp. 114–115, and more generally the rich bibliography concerning the

the beginning of university teaching 109

Irnerius’s teaching and research were carried forward by those that by tradition3 (but without firm evidence) have been identified as his pupils – the famous ‘four doctors’; Bulgarus, Martinus, Iacobus and Ugo. At the time of Irnerius’s death (the date of which it is impossible to be accurate about), the University of Bologna as we now know it did not exist, but there seems little doubt that the great man had lived in the city, and that it was there that his teaching was continued with great success by his pupils. These in fact contributed to Irnerius’s fame not only by continuing his work, but also by drawing Bologna to the attention of Europe thanks to a number of much-discussed ‘incidents’. These appeared to position the ‘four doctors’ close to imperial authority (a position which Irnerius – as we have seen – had himself previously assumed). Such proximity was especially noticeable in one school – that called the gosiana, after ‘doctor’ Martinus Gosia – but also, for certain doctrines, in the less important schools of Rogerius and of Placentinus.4 So what were these ‘incidents’? First, a brief description of the incident that is closest to us in time. This was the participation of doctors from Bologna in the diet of Roncaglia in 1158, when, as a direct result of the very technical advice offered by the Bolognese experts, Barbarossa was able to define the rights of the crown, the ‘royal prerogatives’, and to condemn the conventiculae and the coniurationes (agreements) that were contrary to public order – such as those adopted by the families and communes who were opposed to him.5 The laws emanating from that event have only

ninth centenary celebrations at Bologna in 1988 – depending on those of 1888 when the foundation of the University (traditionally fixed in 1088) was celebrated with much pomp and circumstance (with poetry recitations of Carducci and others). This earlier event was recorded and is easily accessible in the series Annali di storia delle Università (I–, 1997–); the engaging (and putative) ninth centenary celebrations also involved radio transmis- sions, reconstructions of which have been published by Fabio Foresti, Arnaldo Picchi, Anna Laura Trombetti, Storie dell’antico Studio di Bologna (1989). Summaries of numerous historical university studies can now be found in Manlio Bellomo, Saggio sull’Università nell’età del diritto comune (1996); see also Paolo Nardi, ‘Dalle Scholae allo Studium generale: la formazione delle università medievali’ (1999), and the collection L’Università e la sua storia (1998); for more detailed research, one should turn to the periodical History of Universities. 3 This is based on the exemplar concerning the succession to Aristotle as narrated by Aulus Gellius: see Nino Tamassia, ‘Note per la storia del diritto romano nel medioevo’ (1967). There is another reference to this in Giacomo Pace,’ “Garnerius Theutonicus”: nuove fonti su Irnerio e i ‘quattro dottori’ (1991). 4 Cortese, Il diritto, II, p. 73 fn. 31. 5 See the recent reconsideration in Claudia Storti Storchi, Diritto e istituzioni a Bergamo. Dal Comune alla Signoria (1984), p. 200 f.

110 chapter four recently been brought to light,6 but their content and purpose were already known: that being to re-establish the laws of the State in an attempt to construct a clear position of superiority for imperial vassals, cities included. Frederick Barbarossa could do this because, according to Roman law, the ‘doctors’ were able to proclaim him depositary of sovereign power on the strength of the lex regia de imperio, which in effect transferred all power to him. As one might imagine, this was a provision of great significance, which immediately and clearly identified the school of Bologna, or at least its ‘civil lawyers’, as philo-imperial. The other episode, slightly earlier, requires lengthier consideration. This incident took place in 1155, when as a result of emperor Frederick’s stay in Bologna – on the occasion of his travelling to Rome to assume the imperial crown – the teachers and students of the city were awarded the privilege of the emperor’s special protection against any kind of molesta- tion or wrong (iniuria). Frederick, elected only a few years earlier in 1152, had immediately shown a lively interest in the law. When writing to the pope about his election, for example, he proclaimed himself ready to defend ‘with arms and with the law’ the kingdom placed in his care by God. As already noted, he adopted a similar position when laying down Justinian’s constitution, Imperatoriam maiestatem. Now, as supreme lord, with the privileges officially bestowed by Roncaglia, Frederick threatened to impose sanctions on the rectores locorum, or local governors who attacked causa studendi pilgrims (that is students and professors, and in particular those studying divinarum atque sacrarum legum) when they were travelling or in cities. He also created a special court for them, where they were to be judged not by the local judges but by their masters, or by the bishop, who in this way became special judges, accredited delegates of the emperor himself. Travel for the purpose of study became an issue of public, even imperial, interest, and those who undertook it were deemed worthy of special protection, just like those who made pilgrimages to the great centres of Christianity, or those crusaders who sought to liberate the Holy Sepulchre. From the initial word (Habita) and by dint of being understood as an ‘authentic’ law – one of those actually issued by imperial authority following the Novels of Justinian – this privilege assumed the title ‘authentica (omitting, but implying constitutio) Habita’, and the emperor himself decreed that it should be made known to all by its insertion into the

6 Vittore Colorni’, Le tre leggi perdute di Roncaglia (1158) ritrovate in un manoscritto parigino (Bibl. Nat. Cod. Lat. 4677)’, (1967).

the beginning of university teaching 111

corpus of Justinian. In this way, the collection of imperial constitutiones, the Codex, came into being.7 It was to this source that reference was to be made, clearly indicating Barbarossa’s desire that the laws of late imperial Roman Empire should be enforceable, or at least imbued with greater weight than others in circulation. There can be little doubt that at that date the University, as an institution, was beginning to take shape. A societas was being formed between the teachers and the students which was also designed to function as a kind of committee. This was based on a completely atypical relationship, since the object of the contract was not an economic undertaking but teaching itself. The terms under which a teacher was recompensed by the students were more or less the same as those included in contracts for apprentices, the object being the teaching of a trade by a magister identified as dominus, or lord, of the pupil. On the basis of this, a father paid for training that would enable his son to find employment in the same profession which, understood as ars, was close to that of the scholar, or teacher. As for the universitas which later gave its name to the modern institution, that came into being later, even at Bologna. But, unlike the Parisian model where masters of theology formed ‘corporations’ with the students,8 the universitas at Bologna was founded as an association of students. Meanwhile, the individual scholae around the professors simply coordinated amongst themselves, prescribing homogeneous curricula. Of the internal organization, we know only that by the end of the twelfth century there were free elections of university rectors by students. Like the heads of the trade, or guild corporations which were even then being organized in the cities,9 the masters – beginning with John Bassianus10 – tried to reserve such rights for themselves, but without success. Outside Bologna, we know, for example, that Pisa was likewise a renowned centre of learning at an early date. This is not surprising, given its incredible development as a maritime city in the previous century. Around 1124–27, exactly when Irnerius was said to have been ‘reading’

7 In the appendix to lib. 4, tit. 13, ‘law’ 5. The best critical edition is Winfried Stelzer, ‘Die älteste Überlieferung des Scholarenprivilegs Friedrich Barbarossas (authentica ‘Habita’)’; the constitution is also included in the critical edition of the Codex (appendix, p. 511). 8 See some of the studies gathered together in Università in Europa (1995). 9 Specific attention is paid to this in Antonio Ivan Pini, Città, Comuni e corporazioni nel medioevo Italiano (1986), pp. 219–258. 10 For the opposition to the professors – recorded once again by Odofredus, who established the students’ rights to vote on a Bolognese ‘lex municipalis’ – see Guido Rossi’, ‘Universitas scholarium’ e Comune (sec. XII–XIV)’, (1997), p. 167.

112 chapter four at Bologna, a monk from Marseilles transferred to Pisa because he had heard that there was a famous school of law there.11 Furthermore, it was precisely during those years that an event that would have important repercussions for the future took place. It was then that the most famous manuscript dealing with the Digest was shown in a new light. This was the above-mentioned and very old littera Pisana (later Florentina), a text that soon became known to the same Bolognese masters as the authentica Pandecta, or true Digest.12 It is also clear that even in southern France,13 and not only at Montpellier, which somewhat like Bologna has tended to take the limelight, there were a number of schools about which we are now better informed, thanks to the many important studies by André Gouron. Irnerius’s destiny would be a strange one, because even before the recent historiographic trends in scholarship another individual had emerged on the scene to eclipse him. Irnerius, by now mythologized for over a century, was contrasted by the loquacious Odofredus with an individual who was not very well known, but who is identified as Pepo, and who is thought to have pre-dated Irnerius in reading legal texts. However, according to Odofredus, Pepo did this without the public ‘protection’ of Matilda (auctoritate sua), and appears also to ‘have had no reputation’.14 Although it seems clear that Irnerius’s fame, though brief, was widespread, this Pepo appears to have had quite a different reputation from that indicated by Odofredus (particularly taking into account surviving French sources). Questions must also be raised about which Pepo we are dealing with. As mentioned in the last chapter, there was more than one individual of that name. A Provencal work dealing with the Institutions dating to the beginning of the twelfth century includes only one doctrinal citation,15 in which the opinion of a certain Pepo is rejected.16 But one should not forget that an English theologian teaching in Paris between 1179 and 1189 wrote a work in which Pepo was recorded as representing the dawn of

11 Jean Dufour-Gérard Giordanengo-André Gouron, ‘L’attrait des ‘leges’. Notes sur la lettre d’un moine victorin (vers 1124/1127)’ (1979); Martène–Durand dated this source to 1065 and abbot Grandi to 1213, but both of these dates would seem to be wrong. 12 Caprioli, ‘Visite’, p. 60 f. 13 For southern France see now Les Universités du Languedoc au 13.e siècle (1970). 14 This passage is now published, for example, in Cortese, Il diritto, II, p. 33 note 71. 15 La Summa Institutionum ‘Iustiniani est in hoc opere’ (1973), p. 91. Two of the author’s colleagues have been traced to Avignon in 1127: André Gouron’,Une école juridique fran- çaise dans la première moitié du XIIe siècle’ (1974), p. 363 f. 16 That ‘mutuum’ derived from ‘ex meo tuum fit’, was apart from many other obvious sources a commonly held belief from Isidorus to Papias.

the beginning of university teaching 113

civil law (‘aurora surgens iuris civilis’), even though elsewhere he was singled out for not yet having notitia, or knowledge, of the Digest.17 For one reason or another, it seems that the Pepo mentioned by Odofredus was not associated with Bologna, and that he had a part to play thanks to the Roman law of the time that prohibited perverse forms of judgement (pravus ritus iudiciorum) – evidently deriving from Germanic laws – one example of which was the mere pecuniary punishment for the murder of a servant. There are thus a number scholars who now claim that Pepo was a Tuscan who never taught at Bologna.18 There was, so to speak, a well-developed French-Italian koine, or cultural unity, in the upper Mediteranean area during these frenetic decades.19 This came about as a result of the marked return to navigation, to which Pisa owed its high-ranking reputation, which stretched even as far as the French Midi and the flourishing Aragonese Catalonia. It was in general the cities, at that time expanding rapidly, like Bologna itself, that could not but interest themselves in the new method of higher- level teaching, that had first evolved in the form of a private entity because it did not require public structures. Indeed, a master could easily open a school anywhere, but it was certainly simpler and easier where a city proclaimed itself willing to protect assembled students. There was however a problem in that foreigners who had come to the cities now wished to claim observance of the Habita constitution, as well as the prestige involved in teaching and the prosperity it promoted. It was impossible therefore for citizens to remain indifferent, and, as we shall see, the most far-sighted had understood at an early juncture that the university system offered a unique opportunity for the modernization of the juridic system in the city itself. Thus, in those cases where there was the possibility of creating and cul- tivating a real university experience, there was a move to force teachers and students in different ways not to abandon the cities. Where no such opportunity existed, individuals began to inform themselves about the advantages offered by the different seats of learning so that the ‘market’ was au fait with the various opportunities that might open up. If there was ever a moment of intense competition between the ‘places’ subsequently

17 These two passages can now be found in Cortese, Il diritto, II, p. 35 f., fn. 73, 78. 18 Nicolaj, Cultura e prassi, pp. 57–78, but see Helmut G. Walther, ‘Die Anfänge des Rechtsstudiums und die kommunale Welt Italiens im Hochmittelalter’ (1986), p. 142 f.; and contra Dolcini, Velut aurora, pp. 24–29. 19 Cortese, ‘Alle origini’, p. 48 f.

114 chapter four known as Universities, it was then. There was competition not only between the cities, but also between the students themselves to employ the best masters, who were paid according to their reputation. As a result, a number of other schools were very quickly created which were not only opportune but also important.20 One such place is Mantua, where both the glossator Placentinus and his successor John Bassianus (who contradicted much of the former’s findings) taught, and where each of them was responsible for writing a tract on the legal procedures of trials. Piacenza was another notable seat of learning, which seemed to favour the teaching first of master glossators of the calibre of Rogerius and Placentinus, and then of Carolus de Tocco – who during his time as a student in the city had listened to Placentinus, and who in his turn was also present for a couple of years in the mid-1180s in Bologna. Another somewhat mysterious Lombardist (a scholar of Frank-Lombard law) known only in the abbreviated form of Bar or Ber (in references to his teaching), is also recorded to have studied in Piacenza under Placentinus. Reggio is known as another early centre of learning, since a Parisian manuscript bears witness to the teachings of a dominus or doctor legum Columbus there.21 The native Bassianus must have taught somewhere before moving on to Bologna, and Pillius at Modena introduced important innovations in teaching methods. During the 1190s and thereafter, Modena was in fact in competition with Bologna. To summarise, the following places (in chronological order) are where we find evidence of university teaching:22 Modena, Vicenza, Arezzo, Padua, Naples (founded by Frederick II and in 1224 registered as the first state university), Vercelli,23 Rome, with the duplication of the Studium (curiae e Studium Urbis), of the papal court and of the city, Reggio Emilia, San Gimignano, Siena, Perugia and thus onwards. The phenomenon was thus both homogeneous and widespread.

20 Peter Classen, Italienische Rechtsschulen ausserhalb Bolognas (1985). 21 Ugo Gualazzini, La scuola giuridica reggiana nel Medio Evo con appendice di documenti e testi, p. 93 onwards. His Commentum to the first four books of the Codex was circulated, one example being that in the Parisian manuscript that belonged to the library of a Bolognese judge in 1211: Federico Patetta, ‘I libri legali e il corredo di un giudice bolognese nell’anno 1211, e un caso di rappresaglia fra Bologna e Ferrara’ (1914–15), p. 1175 f. 22 Taken from Bellomo, The common legal past, pp. 126–148; see for example Ugo Gualazzini, ‘Ancora sulla scuola giuridica reggiana nel Medio Evo’ (1953). 23 Attracting renewed interest during recent years, whereas the migration from Padua has always been known, thanks to an authorized contract of 1228: see now Carla Frova, ‘Città e ‘Studium’ a Vercelli (secoli XII e XIII)’ (1989).

the beginning of university teaching 115

How could this very flexible development of teaching at a higher level – after having attracted Barbarossa’s interest – also avoid not drawing the attention of the Papacy, at that time engaged not only in controlling religious and political events, but also intent on regulating the culture of the western world? Innocent III, for example, agreed that the doctores should establish the universitates, but not to terms that tended to prevent students passing from one teacher to another (monopolium in Roman law).24 A communal statute drawn up in Bologna in 1217 threatened to punish anyone who attempted to transfer the Studium to another city,25 a ruling that clearly did not impede migrationes at an early date.26 Immediately after, in 1219, a famous but difficult to interpret papal bull issued by Honorius III, Super speculam, offered special privileges to masters and students of theology, who were allowed to continue to benefit from their religious prebends on apostolic ‘licence’. But the same bull banned both the regular clergy (monks) and secular representatives (priests) from the study of civil law and medicine. It also banned the teaching of civil law in Paris, on the basis that Roman law was not applied there in either the civil or ecclesiastical court.27 Then, in 1220, emperor Frederick II (at that time still on good terms with the Papacy) issued a series of solemn dispositions (requested from him by the pope on the occasion of his coronation28), with the rider that they should be transcribed into the ‘legal books’ – as the juridical texts normally taught in the various universities were (by that time) typically called – and that they should subsequently form the basis of teaching. In fact this was what happened soon after, following the Bolognese doctors’ insertion of the 1220 dispositions into the appropriate passages of the Code (as had been done previously for the ‘autentica’ of Barbarossa). Bologna tried to maintain its supremacy in the face of increasingly fierce competition from other centres. The rivalry was in fact so strong

24 Subsequently in Liber Extra: X 1.2.11. 25 Manlio Bellomo, ‘Federico II, lo Studium a Napoli e il diritto comune nel Regnum’ (1991), p. 141. 26 Guilelmus Vasco for example is mentioned as at Padua between 1222/1226: Stephan Kuttner, ‘Bernardus Compostellanus Antiquus. A Study in the Glossators of the Canon Law’ (1993), p. 337 fn. 43. 27 There are now further clarifications of this in Gérard Giordanengo, ‘Résistences intellectuelles autour de la Décrétale Super speculam (1219)’ (1992). 28 Already in Giovanni de Vergottini, Studi sulla legislazione imperiale di Federico II (1952), p. 161 fn. 2, but see now in particular, other than Filippo Liotta, ‘Vicende bolognesi della constitutio ‘In Basilica Beati Petri’ di Federico II’ (1993), Gigliola Di Renzo Villata, ‘La Constitutio in Basilica Beati Petri nella dottrina di diritto comune’ (1999).

116 chapter four that it resulted shortly afterwards (c. 1226–1234) in the creation of a false document. This document maintained that a certain notary – said to be no less than Cicero himself – had notarized a university privilege offered by emperor Theodosius in the act of re-founding the city of Bologna, that he himself had previously destroyed. However, the falsity of the privilege was immediately detected and ridiculed in Bologna itself,29 demonstrating the sophistication of the Bolognese Studium and the reason for its well-deserved fame. Shortly after this, in 1235, we come across the first mention of the concept of a Studium generale, or general university, when in the statute of the Commune of Vercelli the Studium (after its migration there from Padua) was designated ‘general’.30 And, in 1242, the same label was applied by the bishop of Montpellier to the Studium in that city. This was quite different to the generale commodum to which Frederick II referred when speaking of the Studium of Naples. At around the same time, annotations to the Liber Extra of Bernard of Parma and Goffredus of Trani made specific references to the Studium generale in order to name the Studium of Bologna as one to which students could come from all over the world, on account of its being of a high quality and having all the relevant qualifications.31 Finally, the term appears in the foundation acts for the Studium Curiae (1244–45), the name adopted by Innocent IV for one university in Rome, another in Narbonne (1247) and yet another in Piacenza (1248), which enabled students of those institutions to take advantage of privileges, freedoms and immunities equal to those established in Paris and in other general universities (Studia generalia).32 These were the centres where individuals could benefit from the rights of ordinary law, which were equal for all. In 1255, in Salamanca, there was yet another advance when the pope agreed to confer the licentia docendi. This was a doctorate, and the title, meaning ‘qualification as a university teacher’, would have been recognized everywhere, and qualified the individual to teach in any Studium except for Bologna or Paris, which were evidently placed at the top of the university system in the Christian world. This incident – both the intervention itself, and the fact of pontifical

29 Antonio Ivan Pini, ‘Federico II, lo Studio di Bologna e il ‘falso Teodosiano’’ (1996). 30 Paolo Nardi, ‘Le origini del concetto di Studium generale’ (1992), p. 52 f., but for what is said immediately afterwards, see also pp. 73, 68–72. 31 Nardi, ‘Le origini del concetto’, p. 71: Frederick II also used ‘general’ in this sense, in the context of the University of Naples in 1239. 32 Again Nardi, p. 73 and, for what follows, pp. 75–78.

the beginning of university teaching 117

supremacy – concludes the first phase of our enquiries into the history of the universities. From the early years of the thirteenth century onwards, jurists had discussed amongst themselves how to achieve legitimate recognition of the Studia. This was without any concrete results, although there was a wish, with an understandable inclination towards the corporative protection of privileges acquired, that only certain universities be able to confer privileges. Now, however, and in the face of pontifical activity, civil lawyers – up to and including Accursius and Odofredus (in other words, until the middle of the thirteenth century) – fell silent. No mention was made of the general Studium, perhaps because the lawyers were somewhat per- plexed by the papal intervention. There is little doubt, however, that this resulted in a flood of recognitions of Studia by the presiding universal authorities. It was no longer possible to claim the privilege of conferring the most coveted title without papal or imperial intervention. Universities had become public institutions with particular characteristics, both good and bad. The advantages of being institutionalized were evident for students and professors, but the price they paid was that the fertile experimentation of the early years was abandoned.

4.2. The Corner-Stone of Canon Law: Gratian’s Decretum

Papal interest in the universities is more easily understood if we continue with our consideration of the development of canon law, a strand of enquiry that was left dangling in its pluricentric period of reform, along with the many collections of canons that emerged around 1100. At that time, the Romanist teachings of Irnerius and of the ‘four doctors’ of Bologna and elsewhere, the spread of theological teaching from Paris, and above all the re-established (and provisional) agreement between the two highest authorities following the concordat of Worms (1122) presented a Papacy which had centralistic aspirations with the urgent matter of systemising a canon law that had grown in a spontaneous, and one might even say anarchic, manner. The period of struggle for libertas Ecclesiae that had resulted in the proliferation of canonistic collections was now over. The new project to consolidate the authority of the Church of Rome required a number of decisive actions. Cardinal Aimericus, who in the post-Worms climate had been named chancellor of the Roman Church in 1123, engaged with this endeavour through the promotion of juridical studies. In fact, it was to this individual that

118 chapter four

Bulgarus (one of the four doctors) dedicated in friendly homage some time before 1141 a short tract on trials, including the rules of law (regulae iuris), entitled Excerpta legum. This tract revealed a thorough understanding of the Digest and other texts associated with Justinian, all of which were extremely useful in the face of the overriding problems of the system of appeal and of the causae maiores that the Papacy now wished to reserve for the Roman See, in order to promote its centralizing mission.33 During the 1130s the Papal Curia had also established a long residence in Pisa, where the littera Pisana, which was immediately recognized as a manuscript of exceptional interest, was preserved as solemnly as a reliquary. It was here also that there had already been important local legislative initiatives, and where famous learned men such as Burgundio of Pisa – one of the very few scholars of the age learned in Greek – worked.34 All the political and cultural prerequisites were in place for the dissemination both of the idea and of the recognition of the need to systemise canon law from within the various centres of learning. The only question was how to give one specific canonistic collection pre-eminence amongst the numerous versions in circulation? Which should become the paradigmatic model? The problem was solved by what was essentially a piece of private scholarship carried out by an individual known as Gratian. This was particularly successful because it satisfied a nagging public problem. It was no coincidence, either, that Gratian’s work was undertaken in Bologna, thus confirming that city as the centre of Christian juridical studies. Gratian is a figure around whom many legends have developed, which, once they have been disproved, leave something of a biographical vac- uum. A rather mysterious magister (a term that meant little at that date) who was almost certainly a monk, he is variously associated with Chiusi (his birthplace) and Bologna (in particular the monastery of Saints Felix e Naborris) where he worked.35 The only certain thing about Gratian is that his work was extremely important, although inevitably given its success, doubts persist about its original configuration and date. It has, however,

33 Paolo Nardi, ‘Diritto civile e diritto canonico’ (1995), p. 531 f., and also now his ‘Dalle Scholae’, p. 10 f. 34 For this, see Peter Classen, Burgundio von Pisa. Richter, Gesandter, Übersetzer (1974), and his Studium und Gesellschaft im Mittelalter (1983), pp. 99–125. 35 See in particular Candido Mesini, ‘Postille sulla biografia del ‘magister Gratianus’ padre del diritto canonico’ (1982), and John T. Noonan, ‘Gratian Slept Here: The Changing Identity of the Father of the Systematic Study of Canon Law’ (1979).

the beginning of university teaching 119

been consistently argued that Gratian’s work was completed by 1140,36 since manuscripts that handed it down to posterity included the deliberations of the Lateran Council II of 1139. The Decretum, or Decree of Gratian is a very complex work because it is both a collection of texts and a reflection on the same texts. Like the Digest, it is primarily a vast collage, but instead of just the doctrinal texts that make up that work, Gratian gathered together a number of heterogeneous works of varied provenance. We thus encounter norms handed down from the first millennium of the history of the Church – with a prevalence of conciliar canons and pontifical decrees already transmitted through eleventh-century canonist collections, such as Burkhardt, Ivo of Chartres, etc. But there are also passages taken from the Scriptures or from the works of the Church Fathers, from the legislation of Justinian, and even from Frank law. There is a fragment of the Lombard edict of king Rotari, and it is also possible that certain fragments were added over the course of the twelfth century during the complex process of handing down the text. As in the Digest, all of the passages are set under a title (inscriptio) that reveals their source in order to orientate the reader as to the kind of auctoritas they represent. As we shall see, up until the thirteenth century the declared origin of a text did not in fact signify official authentication of its conformity to an example of the presumed author’s work or at any rate to something that was regarded as an autograph. As a text was reproduced there was nothing, therefore, to prevent the scriptor, or amanuensis in charge of transcription, from adding passages that he found in the margins, or that he considered it useful to bring into the main body of the text. Consisting as they did of collections of passages taken from the works of others that retained their original authority (that is, institutions such as the Church or the Empire, or private individuals such as the Church Fathers); and positioned as they were next to each other and under an inscriptio that declared their source, anyone who copied them may not have scrupulously checked for possible omissions on the part of an earlier collator, and thus have compensated opportunely.

36 Work is ongoing on a first review quite distinct from the second, on the basis of an important manuscript now at Florence; the proceedings of the canon law conferences that took place at Strasburg (October 1998) and at Catania (July/August 2000) are also important, as is the earlier work by Anders Winroth, ‘The Two Recension of Gratian’s Decretum’ (1997).

120 chapter four

With these collections, the problem was not so much respecting the source, or sources – which were more often than not multiple, and in the case of some individual elements even uncertain – but rather organizing them into a functional system. It was essential, therefore, that the documentation about a particular problem was complete, so that the individual accessing the work could gain a complete picture of the various authorities presiding over the point in question. The Decretum could only hope for wide circulation and public acceptance if it was seen to be relevant to the prevalent aspirations of the time: to give a response, for example, to the question of papal primacy both in the Church and the world beyond; or to consider the question of the uniformity and identity of canon law, which up until this point was in some respects still a desire rather than a reality. The local fragmentation of the Penitentials on the one hand, and the supremacy of theological discussion on the other, are thus highly significant. In considering particular problems, it was not sufficient to set passages from different sources side by side; one had to look further afield. It is in this context that Gratian’s great work of scholarly research gains particular importance. Making use of material that the theologians were constantly refining, Gratian intervened with his own comments on the assembled texts. These texts presented clear contradictions, if only because of their disparate provenance over time (from the Bible up to the most recent conciliar and papal pronouncements). Employing dialectical reasoning, Gratian tried to isolate the legally binding norm in respect of a particular problem by comparing the various rules that had been handed down, and considering the variations that existed between them. This had in fact been done before, by individuals such as Abbo, abbot of Fleury, and Bonizo of Sutri, who had set themselves the task of identifying the authentic texts and establishing criteria to reconcile them, for example by distinguishing the precepts behind individual pieces of advice.37 One rule might be general, another local; one might represent an ancient law (ius vetus) as opposed to the new law (ius novum), in other words, law that was more recent; and so on, according to the various criteria adopted to deal with the contradictions, which were as a result explained – thus harmonizing the texts. The original title of Gratian’s work was Concordia Discordantium Canonum, the ‘Concordance of Discordant Canons,’38 in reflection of the

37 Stickler, La norma, p. 36 f. 38 There are many old editions; for the critical edition, not without errors, but still a fundamental work, see Corpus iuris canonici, I (1879).

the beginning of university teaching 121

fact that contradictory explanations, the so-called dicta magistri, were coordinated and classified there, and discordances between them were resolved through apposite considerations on the part of the editor. The theological material considered thus assumes even greater significance. Because Gratian continually had to confront problems that were also being considered by theologians, the Decretum has been described as a theological book.39 But Gratian was actually concerned with isolating questions pertaining to the government of the Church and of the faithful, rather than with matters of the soul. In summary, his was an attempt to separate ‘external’ problems that were relevant for the public tribunal – the so-called ‘external or civil court’ – from those which fell instead within the province of the tribunal of conscience, or of sin, the internal court. This ‘internal court’ was where individual wrongdoers could be purged through confession and penitence as a confessor deemed fit in order to achieve a future state of blessedness – a forum in which even the Pope was anxious to intervene, through, for example, the bestowal of indulgences. It was doubtless in respect of this very delicate negotiation that Dante, when placing Gratian in Paradise, referred to him as the individual who sought to help ‘each kind of court …. as is acceptable in Paradise’ (X, 104ff.). According to the Gregorian perspective, it was a matter of great urgency that the external court should also be placed under pontifical authority. In fact, Gratian re-asserted papal primacy in Gregorian terms.40 Taking the notion of legislative power (ius condendi leges) from contemporary glossators of Justinian, he applied the same notion to the pope (C. 25 q.1 c.6).41 Finally, following the example of the autocratic Justinian (and thus closing the circle), he drew attention to the fact that the power to interpret the law was the province of the legislator himself.42 Clearly, by following the example of the great Romanist tradition that, thanks to Irnerius’s pupils, was flowering in Bologna during the years of his own undertakings and that without doubt stimulated such work, Gratian was able to demonstrate not only how Church law could be created, but also what measures

39 Stickler, La norma, p. 31. 40 ‘Only the Holy Roman Church is in a position to judge everybody and no-one is allowed to judge the Church itself’ (‘Sola enim Romana ecclesia valet iudicare de omnibus; de ea vero nulli iudicare permittitur’): This is the dictum before C.9 q. 3 c. 10. 41 Stephan Kuttner, ‘Urban II and Gratian’, p. 504 f.; Charles Munier, ‘L’autorité de l’Eglise dans le systeme des sources du droit médiéval’ (1987), p. 55. 42 ‘Only those who create the canons should be able to interpret them’ (‘Ille enim solus habet ius interpretandi canones qui habet potestatem condendi eos’): according to the dictum following C. 11 q. 1 c. 30.

122 chapter four could be taken to ensure its correct interpretion. Whilst his work is thus complex in terms of its contents, it is also complicated in terms of its general construction and in its division into the three parts (albeit gathered together in one large volume) by which it was subsequently known – an arrangement probably not intended by Gratian himself.43 The work was also subjected at a later date to a whole series of integrations (appositely called paleae) by a pupil, Paucapalea, beginning with the text of the Donation of Constantine (in D. 96 c. 13 ff.). The first part is divided into 101 distinctiones – the technical term adopted in medieval schools for clarifying an argument, its general principles, the various contradictions, etc. – which are subdivided into a series of further, increasingly detailed sections. General legislative issues, such as laws, customs, natural and divine law, etc., are gathered together in the first twenty distinctions, following the Romanist model. For example, Gratian considers natural law in terms of its being common to all people (nationes), imposed as a result of natural instinct and not because of a decision by a legislator (constitutio). For Gratian, natural law was established through institutions, such as the union between a man and a woman that resulted in the inheritance and education of children, as well as the common possession of goods, and freedom to acquire everything possible from the sky, the earth and the sea (‘communis omnium possessio et omnium una libertas, acquisitio eorum quae celo, terra marique capiun- tur’).44 Elsewhere (dictum ante D. 8 c. 2), Gratian introduces a passage by pointing out that in the case of dignitas natural law should prevail over customs and human law (which he called constitutio), and furthermore that customs or written dispositions that contradicted dignitas were vana et irrita, and thus null and void. This is just one small illustration of the extremely complex and detailed debates stimulated by the Decretum – and not only amongst Gratian’s own pupils, the ‘decretists’. In the other ‘distinctions’ (21–101) attention turns to ecclesiastic government and its make-up (bishops, hierarchy, etc.). Today, references to this part are in accordance with the current critical edition – the result of the great nineteenth-century era of German philological studies: thus, by indicating first the number of the distinctio, and then the chapter within

43 There is proof of this in the fact that he referred to the tractatus of the first part of the Decretum, which is instead known to be divided into distinctiones. 44 The text carries on to discuss the return of monies lent, and the right to defend oneself with force against violence as being the only right and natural course of action (‘item depositae rei vel commendatae pecuniae restitutio, violentiae per vim repulsio. Nam hoc, aut si quis huic simile est, numquam iniustum, sed naturale equumque habetur’, D. 1 c. 7).

the beginning of university teaching 123

it. For example, in dist. IV, c. 3, taken from Saint Augustine (Liber de vera religione), the basic principle of imposing upon the judge to apply the law and not to judge it (the basis of division between the powers, as a modern theorist might say) is introduced by a dictum summarized briefly by Gratian as: once institutae, the leges cannot be judged, but judgement must be made according to it (‘non erit liberum iudicare de ipsis, sed oporte- bit iudicare secundum ipsas’). The appropriate citation to this is Decr. D. 4 c. 3 (and for Gratian’s statement, dictum ante D. 4 c. 3). In the second part of the Decretum there are thirty-six causae – another technical term, meaning cases involving controversies with disparate themes, that were divided into quaestiones, each of which concerned an hypothetical problem for which there were various solutions. Most important amongst these were C. 1 (the C being the abbreviation indicating a causa) about simony, C. 2–7 on rules of procedure, and C. 16–20 on monks and their disciplines. C. 27–36 for their part construct an intricate treatise on matrimony. A detailed consideration of the problems of causa twenty- three is offered here. Gratian introduces this case by recounting how certain bishops and their followers had fallen into a state of heresy and had begun to impose their ideas on those around them. As a result, the pope had ordered the bishops of regions endowed with civil jurisdiction by the emperor to defend the faith. The result of this was that they had assembled an army and gone to war. Gratian foresaw that this particular issue posed a number of problems examined in the various quaestiones included in that causa, and that it was thus necessary to clarify: I) whether it was a sin for the clergy to go to war; II) if yes, then what was a just war? III) should an attack on an ally be repelled by force of arms? IV) is revenge justified? V) is it a sin for a judge to commit murder? VI) should evil-doers be forced to do good? VII) should heretics be stripped of their possessions? and, likewise, those who had received possessions from them? VIII) should members of the Church fight under their own authority or should they first have been ordered to do so by the emperor or by the pope? Clearly, such problems were not only very topical but also extremely delicate, being simultaneously issues of conscience and of law. Gratian thus tried to find possible solutions in the canons referred to for each question (quaestio). At the same time he offered his own solution through his dicta. A complication in the second part of the Decretum arises from the lengthy quaestio on penitence, which was completed at a later stage and inexplicably inserted into the middle of the tract on matrimony, in case

124 chapter four thirty-three after quaestio 2 – thus interrupting the numeration of the pre- existing quaestiones. In effect a detailed tractatus de penitentia, this insertion was divided into seven distinctiones – like those of part one – and is thus similarly cited, specifying however the subject being dealt with: thus, for example, D. 1 c. 1 de poen. A further complication is that in its third part the Decretum is divided into only five distinctiones, with canons inserted within them. It was thus necessary, once again, to indicate the theme: that is de consecratione (because relative to the sacraments), resulting, for example, in the citation D. 1 c. 1, followed by de cons. That this particular distinction was added later is also demonstrated by the absence of dicta magistri. This complex text, interwoven with both doctrinal inventions and formulae carrying normative authority, had an immediate success, both in schools and in practice, as well as in the papal chancery.45 All of this despite the fact that it was not officially recognized, which it did not in fact need to be, consisting as it did of authoritative texts whose origins were more or less differentiated. In the first arena, that of the schools, it was studied by glossators, such as those concerned with Roman law, with the result that Faculties of Decretum were soon widespread: that is, groups of canon law jurists who set themselves up in competition with civil lawyers, acquiring first the title of magistri and then doctores decreto- rum. In the second arena, the Decretum became a point of reference for the judicial practice of ecclesiastic tribunals. The Decretum’s appearance thus resolved problems, but at the same time raised further questions.

4.3. The Period up until the Time of the Decretals of Gregory IX (1234)

The Papacy never officially adopted Gratian’s Decretum as a legal text, but its practical use immediately raised the question of whether or not to intervene on the basis of the solutions proposed by Gratian, and whether or not to react to the doubts which were clearly voiced in his work. In any event, the reforming Papacy of the twelfth century had its own independent reasons for intervening with decretals in the often out- spoken litigation between bishops and abbeys (more frequent from the

45 For example, Stephan Kuttner, ‘On ‘Auctoritas’ in the Writing of Medieval Canonists: the Vocabulary of Gratian’ (1982); Paolo Nardi, ‘Fonti canoniche in una sentenza senese del 1150’ (1998).

the beginning of university teaching 125

time of Alexander III, 1159–1181, the great opponent of Barbarossa). These decretals, or letters, enunciating juridical principles that conformed with or corrected Gratian’s Decretum, were preserved for use over and above the judicial case for which they had originally been dictated, either in the Curia at Rome, or within the various institutions to which they were addressed. Obviously, analogous cases could arise in the future, and it might then be useful to refer to such documents. As a result, within a few decades there was a move to collect papal letters,46 along with the decrees of the great councils that took place during the course of the twelfth century (for example Lateran III). There was also a move at an early date to organize all this material according to subject, in order to make consultation easier. As usual, because such interventions were carried out in a rather disor- derly fashion, some were more successful than others. Amongst the former was an initial selection made by Bernard of Pavia, a canonist working in the Curia in Rome around 1190, perhaps drawing directly on papal registers. This is the so-called Compilatio I, an ordered collection of about 900 pieces, most of which are decretals, but also including conciliar decrees dating to a period before Gratian.47 There seems little doubt that the success of this collection was due not only to the fact that the assembled material was authentic, but also because it was arranged systematically. The texts were in fact assembled in five books under the following broad themes: iudex-iudicium-clerus-connubia-crimen, that is, relating to judges, trial procedures, the clergy, marriage and penal law. Gathering together legislation that had accrued since the Decretum of Gratian, which was thus not only the most recent law but also encompassed papal opinion on various matters, the Compilatio I – even if private in origin – was of great topical interest and thus extremely successful (even amongst jurists, as we shall see), quickly giving rise to a second revised edition, produced between 1192 and 1198. Its logical organization also provided a model for successive collections of decretals. These were not slow in coming, as the very active Papacy of these years produced a great number of decretals. This resulted in another Compilatio, known subsequently as Compilatio III, which included 482 decretals issued by Innocent III. These were assembled by Peter of Benevento – in 1209 at the latest – and in 1210, the work was sent to the

46 Stephan Kuttner-Charles Duggan, Twelfth-Century Decretal Collections and their Importance in English History (1963) and Decretales ineditae saeculi XII (1982). 47 Quinque compilationes antiquae (1882).

126 chapter four

University of Bologna,48 where it complemented the Compilatio known as II (drawn up between 1210–12), adding a number of decretals that had previously been omitted. Compilatio IV, the work of the great Iohannes Teutonicus gathered together not only the canons (71 in all) of Lateran Council IV of 1215, but also other texts issued by Innocent III (to the sum of 104) that demonstrated the extent to which Innocent as Pope was deeply involved in juridical matters. His decretal Venerabilem offers ample evidence of this. In this decretal, Innocent reserved the right to scrutinize the fitness of German princes for election to the office of emperor, on the basis that the pope was the one who had to give his confirmation (approbatio), which would be followed by the anointing, consecration and coronation, whilst, in the case of withholding approval, deposition of the emperor was bound to follow – as indeed happened to Otto of Brunswick in 1210, thus opening the way for the coronation of Frederick II. Finally, there was Compilatio V, produced by the canonist Tancredus and ordered by Honorius III, which includes the latter’s decretals between 1216 and 1226 (and in addition, the 1220 constitution of Frederick II that privileged the Church), and which was officially recognized in 1226. Not only this, the pope decreed that the texts should be cited in tribunals in the form they assumed in Tancredus’s collection. For the first time the Papacy knowingly assumed the role of legislator for the whole Chris tendom. The pope was the verus imperator – a claim which at that time began to gather currency. If one considers how important these years were for the history of the Church of Rome and its role in Europe, one realizes that legislation was emerging as a clear token of the hegemonic will of the Papacy. Given the deliberate construct of government of the whole Christen dom through the additional means of the law, the Papacy had to then take one final step. This was to co-ordinate the four compilations that were not officially recognized with the fifth; to bring them up-to-date according to a unified plan, according each piece the same value in the law, thereby transforming their former function and origin. This is the project that pope Gregory IX delegated to the Catalan jurist Raymund of Peñafort, who had previously been a professor in Bologna.49 The brief, just like the one issued to Justinian’s compilers seven centuries earlier, was to

48 Kenneth Pennington, ‘The Making of a Decretal Collection’ (1980). 49 Stephan Kuttner’, Raymond of Peñafort as Editor: The ‘decretales’ and ‘constitutiones’ of Gregory IX’ (1984).

the beginning of university teaching 127

collect, but also to remove superfluous and contradictory material, if necessary adding new normative material, such as ad hoc decretals issued by Gregory himself, in order to harmonize the whole. Strictly speaking, this amounted to a codification, given that Gregory was specifically intent on abrogating the preceding compilations. The work was finished in 1234 and sent to the University of Bologna to be officially promulgated: further evidence that Bologna was of paramount interest to the Papacy. The pope proclaimed that the text of the new compilatio should be taught in precisely the form in which it was received. The collection was also called Liber decretalium because these were the texts that clearly predominated, and at an early date it also became known as the Liber Extra Decretum Gratiani, or ‘of the decretals outside the Decretum of Gratian’, or elsewhere and more simply, the Decretals of Gregory IX (even though they included many decretals that were not issued by Gregory himself). The citation of individual canons included therein (some 2,139) is similar to that already encountered for the Code of Justinian; the Liber Extra, being the legislative monument that it is, constituted a kind of canonistic alternative to the Roman Code.50 The identifying initials are followed by the number of the book (of which there were five, as in the preceding Compilationes – now referred to as the antiquae because they were subsumed by the final collection), the title and the individual ‘piece’ which as with the imperial constitutions carries an inscriptio indicating the papal source. One thus finds citations such as X.1.2.13, indicating canon thirteen, a letter from Gregory IX to the archpresbyter of Santa Maria Maggiore in Rome in which he issued the rule by which apostolic constitutions (unless otherwise disposed) should refer to the future, and were thus non-retroactive. The other numbers indicate that we are in book I, under heading II, de constitutionibus (heading I, as in the Code of Justinian, dealing with the Trinity and Catholic faith, De summa trinitate et fide catholica). In this way and in many other cases, legislation was used as an instrument of government, and at the same time as a manifestation of how to express real cultural and political desires. It is no coincidence that the Decretals close with two sections that are also intended to influence the future reading of the texts in some way: one, the meaning of words, De verborum significatione; the other, the rules of law, De regulis

50 This analogy was swiftly adopted by the Cardinal of Ostia in his widely-circulated Summa (see Hostiensis, Summa aurea, 1574, Proemium, fol. 3ra, no. 13).

128 chapter four iuris – (X.5.40–41), clearly echoing Romanist texts. Under the first heading we find, for example, a fundamentally interpretative canon (‘Intelligentia dictorum ex causis est assumenda dicendi, quia non sermoni res, sed rei est sermo subiectus’: X.5.40.6) that historians would do well to remember: look at the reasons for declarations, because words should be accorded to things, and not vice-versa. In the second, we encounter a principle that would frequently be used in juridical and political practice to trigger exceptional and unusual interventions in derogation of the principles: ‘Quod non est licitum lege, necessitas facit licitum’ (X.5.41.4), i.e. what is not legal is made legal by necessity. The Gregorian Decretals thus clearly demonstrate the supremacy achieved by the Papacy of the time, which extended to the control of the public apparatus (both secular and ecclesiastic), and throughout society. The law was fully established in its function as a tool of social discipline. The Papacy no longer issued their decretals only to the clergy – now understood to be ‘officials’ in the service of the faithful – but also to the whole society of the faithful. In contrast to the past, this body of individuals was much more obviously the recipient not only of moral or religious norms destined to procure the salvation of their souls before God, but also of a whole complex of ‘positive’ norms that were outward-looking, and which were to be adhered to in everyday life. As a result, canonist laws cut across, and at times even collided with norms laid down by secular powers – which had traditionally been used to discipline the ‘temporary’ affairs of Christian society. This inevitably created a problem of how to rationalize the diverse and opposing juridical sources. Councils and popes were now actively intervening in norms relating to the family, the economy and institutions. At an earlier date, the first ecu- menical councils in the West (Lateran I and II, in 1123 and 1139) had not concentrated solely on ecclesiastical discipline, but had also included norms on simony and concubinage, and lay interference in ecclesiastical matters, such as elections and justice.51 But in Lateran I, for example, anyone who was excommunicated was condemned to isolation; remission of sins was offered to those who supported the crusades; protection was extended to pilgrims to Rome; coniunctiones consanguineorum, or inces- tuous marriage, was condemned as an abomination; the minting of coins and the sale of false currency was forbidden. It even went so far as to issue dispositions regarding local law, concerning itself with hereditary

51 Diego Quaglioni, ‘I Concili del Medioevo e dell’età moderna’ (1995).

the beginning of university teaching 129

succession inside the Leonine city (that is, that part of Rome that was within the walls built under pope Leo IV during the ninth century). In the second Lateran Council certain ecclesiastic customs were condemned as pravae, and the election of bishops was the preserve of the cathedral chapters (thus excluding above all the ‘people’). The detestabilis (detestable custom) of the monks, who after professing their vows dedicated themselves either to medicine or to lay laws (leges temporales) for their own personal gain was also condemned. All of this was seen to contradict Christian values: iustum et iniustum, fas nefasque. Clearly the explosion of higher education in civil law had already made a deep impression. Lateran Council II also included a number of norms directed against brigands and usurers, participants in tournaments, incendiarists, and even crossbow-men. Clearly, the Church wished to take complete control over the lives of the faithful, even taking the place of lay authority where it deemed necessary. Lateran Council III was dominated by the powerful personality of Alexander III, who in his time had been a professor at Bologna and was an expert teacher of both canon and Roman law (‘in decretis et canonibus e in romanis legibus precipuus preceptor’52). During the council the pope confirmed as a rule the principle that in the not infrequent case of discord in elections and voting in the ecclesiastic colleges (chapters, monastic assemblies, etc.), the maior et sanior pars, that is the wisest and most authoritative electors, should be consulted. The rule could not apply, however, in the case of papal elections, due to there being no authority that could evaluate the sanioritas, or highest wisdom. It was thus deemed necessary to fix a rigid quantitative principle; that is, that the candidate should be voted for by at least two-thirds of the cardinals taking part in the election. Many other disciplinary rules concerning members of the clergy were issued concurrently, as well as a number concerning those knights Templar and knights Hospitaller who abused the privileges conceded to them by the Papacy by causing harm to local bishops. At the same time the rulings of the Council turned with ever more rigour to the prohibition of chivalric tournaments; to the banning of usury; to forbidding offers of work that favoured Saracens; to preventing Jews from employing Christian servants; and to mounting a real crusade against the Cathar heresy – by now widely dispersed in the Midi of France – offering indulgences to anyone who took up arms against the heretics.

52 ‘’Fonte in Quaglioni, ‘I Concili’, p. 116.

130 chapter four

The development of all these rulings coincided with the Lateran Council of 1215, which was carefully constructed by another great jurist, Innocent III. This pope positioned the battle against heresy at the centre of the Council’s agenda and its ‘Romanist’ constitutiones. He also decreed that the new ‘religions’ of the Dominicans and the Franciscans should not only be approved by the Papacy but should also be included within a framework of ‘rules’ drawn up by them. There was much more. Judgements involving bloodshed (and thus the duel) were forbidden for ecclesiastics; written procedures were adopted for trials, and norms were issued concerning marriage, taxes, and against usury. Amongst other things, it was also agreed that Jews should be visibly identified as such, and that they should be excluded from all public office. If one takes into account the fact that such rulings were normally transferred into the Liber Extra, one begins to understand its complex and heterogeneous character and, indeed, the extent to which canon law, as well as disciplining ecclesiastical activities and hierarchy, penetrated the everyday life of the lay faithful. For evidence of this, it is sufficient to glance at the headings included in the Liber’s five books.53 We find, for example, that the areas covered include De cognatione legali (on legal adoption), De infantibus et langui- dis expositis (on the exposure of infants), De matrimonio contracto contra interdictum ecclesiae (on marriage conducted outside the regulations of the Church), and then: De natis ex libero ventre (offspring of the free) De secundis nuptiis (second marriages) De sponsa duorum (spouses of two people), De sponsalibus et matrimoniis (marriage agreements), Qui filii sint legitimi (legitimate offspring) Qui matrimonium accusare possunt (the contesting of marriage). But there are also headings that refer to more obviously private issues, where it becomes even clearer that there was a desire to present the law of the Church as new law (ius novum) in respect of Roman law: in other words, that the Church was its natural heir and innovator. Thus there are headings such as ‘Inheritance in the absence of a will’ (De successionibus ab intestato), ‘Rights established over time’ (De testamentis), ‘Torts’ (De praescriptionibus), ‘Acts of violence and damage as a result of fear’ (De iniuriis et damno dato, De his quae vi metusve causa fiunt) and ‘Fraud and the absence of justice’ (De dolo et contumacia).

53 These are usefully listed at the end of the critical edition of the Decretals (Corpus iuris canonici II, 1879), p. 1314.

the beginning of university teaching 131

These technical terms are typical of ancient law, which is even more evident in headings to individual contracts or typical institutions.54 But there were also substantial changes, as is indicated by the title De feudis, on fiefs. Neither were issues under discussion by the ‘doctors’ ignored, as illustrated by the heading De pactis, on agreements: when and which agreements are to be respected (pacta sunt servanda)? There is also recognition of what was by now a widely-established notarial practice in Italy, the faithfulness of notarial documents (De fide instrumentorum) as well as the new trends in teaching in a heading such as De magistris et ne aliquid exigatur pro licentia docendi (of teachers and the acquisition of qualifications without payment). In the context of trial proceedings, it is sufficient to draw attention to such titles as De causa possessionis et proprietatis (on possessions and property), De praesumptionibus (presuppositions), De exceptionibus (judicial exceptions), De probationibus (the trial process), De testibus (witnesses), De sententia et re iudicata (on sentencing and the matter judged); or, regarding procedures serving as alternatives to a formal trial, to consider such headings as De transactionibus (transactions), De treuga et pace (truces and peace); or, elsewhere again, to take note of headings such as De arbitris (arbitrators), De procuratoribus (on managers), De syndico (on representative bodies) which were associated with categories or types deriving from Canonic-Roman law that were invested with higher value in the newly-learned trial procedures. For penal problems, the headings likewise echo many types of offence present in the Roman tradition, albeit with some innovations.55 Although such a long listing might test the reader’s patience, it is necessary because it reveals the pervasiveness of canon law, which had at last been brought to a state of completion following the significant intervention by Gregory IX. Historically, this was very important, as the duration

54 For example About deposits (De deposito), Announcing new building works (De novi operis nunciatione), On pledges and other guarantees (De pignoribus et aliis cautionibus), On donations (De donationibus), On sales (De emptione et venditione), About rent (De locato et conducto), On sponsors (De fideiussoribus), On renunciations (De renuncia- tione), Exchange (De rerum permutatione), Payments (De solutionibus). 55 See, for example On penance (De poenis), On adultery and rape (De adulteriis et stupro), On theft (De furtis), On falsehood (De crimine falsi), On killers of their sons (De hiIs qui filios occiderunt), The different penances for pre-meditated and involuntary homicide (De homicidio voluntario et casuali), The beginning of the trial (De litis contestatione), On calumny (De maledicis), Fortune Telling (De sortilegiis), Kidnappings, arsonists and viola- tors of the churches (De raptoribus, incendiariis et violatoribus ecclesiarum), Archers (De sagittariis), Tournaments (De tornamentis), Usury (De usuris).

132 chapter four of such law itself confirms. It also reflects the fulfillment of the Catholic Church’s mission to assume complete ‘jurisdiction’, that is, complete control by legal regulations over everything, not only the affairs of the faithful, but also the institution of the Church itself. There were, understandably, many different repercussions. There were some advantages for the institution, in terms of organization, cohesion of its parts, cultural unification and the gaining of control over both the message and its circulation. But there were also clear disadvantages such as bureaucratization, authoritarianism, etc., warned against sometimes passionatelyby those most sensitive to the issues of faith and charity, both at the time and later. Without crossing the thresholds of orthodoxy, it is enough to think of the anguish of someone like Saint Francis, hemmed in by the compromises of his second Testament.56 There is not much point, however, in dwelling on the good fortune or success of this collection, that was subject to so much study by the ‘decretalists’ (as the expert canon lawyers of decretals were called – as opposed to the students of Gratian, who were known as ‘decretists’), or doctores decretalium. The authority of this Liber Extra was indisputable, and even more so in a period of triumphant pontifical absolutism. At a slightly later date, pope Innocent IV (Sinibaldo Fieschi, soon to be the great adversary of Frederick II) ascended to the papal throne. He was not only a notable student of decretals, but also a great legislator and author of many decretals, which were gathered together in official collections. His Novellae decretals and subsequent conciliar decrees were often ‘appended’ to the end of the Liber Extra, or for convenience inserted under the different headings in order to bring them up to date, and he was at the same time the force behind the Council of Lyons in 1245. On that occasion, discussion returned once more to important juridical themes, such as the initial phase of trial proceedings (litis contestatio); malice; default; putting in possession; confessions and exceptions in judgement; wise judgement (res judicata); appeal; political homicide; excommunication; usury. This period therefore ended with the pillars of canon law in place: the Decretum with its ius vetus, traditional legislation based on a pluralistic chessboard, the pieces of which derived from many different sources; and the Decretals of Gregory (quickly brought up to date by his successors) with the ius novum that directly expressed pontifical desires, even when

56 Details in Chiara Frugoni, Francis of Assisi: A Life (1998).

the beginning of university teaching 133

in the historical context of conciliar rulings, and which was at the same time the result of a legislative know-how by now established as ‘modern’ – so much so, that it remained at the centre of the general law of the Roman Church up until the Codex iuris canonici of 1917. And so much so, we might add, as to construct a model, together with the slightly earlier work of Frederick II, for the powers of the time who sought to consolidate their own governments and their own images, even inside the Church. Juridicalization and the coeval procedures of written documentation also permeated marginal operations and ‘categories’ which were now brought under the authority of the Church. Cathedral chapterhouses, lay confraternities, mendicant orders (above all the Dominicans and the Franciscans), military orders, orders that would subsequently be called ‘contemplative’ (the Benedictines and their offshoots), hospitals and so on were all in competition with one another in allotting themselves statutes and ‘rules’. In addition, they created collections of norms that clarified their own individual aims, internal organizations and relationships with the superior ecclesiastical authority – the pope or the local bishop – who from then on found it useful and necessary to approve these institutions in such a way as to have a comprehensive picture of every active entity in the societas christiana. It was the age of the universitates, that is associations, as these aggregations now came to be considered in juridical terms: ‘clubs’ to which individuals voluntarily attached themselves, subjecting themselves to their special regulations – becoming homo suus, through procedures that without doubt can be compared to feudal investitures. But it was also a period for the establishment of ‘foundations’, as we now call those institutions which lack a membership base: representative bodies established to achieve an end – a typical case being the fabbrice- riae, as they are today technically called, that is the many Operae created with the specific brief to supervise the fabrica, or building of a Duomo – a characteristic institution in the cities, which was also a meeting point of ecclesiastic authority and local lay society. The same ‘chapter’ of the canons to which the election of bishops was reserved can be viewed as a foundation institution, as far as its individual members were co-opted to it, since it did not have a membership base. It was rather a collegium, once again a technical term to indicate a ‘collegial’ institution (a term preserved in our own language): consisting of a number of people who have particular rights and obligations only in so far as they are its members. The ‘colleges’ of the doctors and of the professors of ‘studia’ should be understood in the context of this model rather than that

134 chapter four of the universities as associations of students – by contrast, voluntary and with open membership. The former had a fixed membership and was strictly open only to those nominated from on high (‘co-optations’), as if members of a most exclusive club. It would be pointless to say that a comprehensive survey of such minor sources of legislation does not exist, sources that could be seen as characteristic of canon law and distinct from the general or ‘common’ law represented by the Decretum of Gratian and the Decretals of Gregory IX; in any case this would be very difficult to put into practice, given that so many issues were dealt with at a local level. Scholars are now mainly involved in an assessment of another fundamental source (because it is important for the history of church territories): that of the provincial synods, periodically assembled by the bishops for the most detailed consideration of the liturgy and local pastoral needs.

CHAPTER FIVE

TERRITORIAL LAWS AND VARIOUS SOCIAL CATEGORIES AND INSTITUTIONS

We now encounter in what was undoubtedly an extremely fertile period for the law, a huge body of new rules and regulations that were very different to those already considered in the context of Roman or canon law. Law as taught in the universities was only a very small part of a mass of legislation that was circulating in a period overflowing with new ideas about legal issues. There was no centre of power independent of a centre that was gathering together pre-established traditions and/or creating new laws. The pluralism of powers and cultures during the late medieval period also resulted in a very rich legislative mix. Every power – individual or collective, centralized or decentralized – had its own legislation: from the great kingdoms, to communes both large and small, in remote valleys or in booming cities, the latter by now over-populated and extremely powerful; from the great religious orders and bishoprics and the rich hospital complexes to merchants and craftsmen even in the humblest guilds, and commercial societies and bands of milites (political factions, etc.); and even the Studia we have recently considered. Caught up in a whirlwind of development, both the rural and urban environments needed a multitude of rules, at the most diverse levels of their corporative lives. The absence of a centralized or all-powerful State such as exists today favoured the consolidation of certain kinds of behaviour in particular areas and within certain social and professional categories, through customs (whether written down or not), or else encouraged those with sufficient authority or prestige to issue their own legislation, more or less in agreement with other members of their individual groups. The typology of this legislative universe was, however, extremely diverse. The principal distinction that should be drawn is, without doubt, that between collections of norms that were developed territorially – intended to discipline people on the basis of their habitation of a particular region, or according to their individual origins – and norms that were associated with particular sections of society, such as monks and regular clerics; merchants and students; feudal vassals, lords, artisans, etc.

136 chapter five

However, the two are not mutually exclusive; indeed they complicate the typology itself. We can point out rules for merchants, for example, that functioned solely on a territorial basis, and others that overrode local affiliations.

5.1. Various Types of Legislation: International, between States, and between other Contractual Parties

Before entering into the details of these areas of territorial or sectorial law, it is worth taking a look at what we would now call ‘international’ law, because it provides a very useful introduction to the problem of ambiguities arising from another important distinction: that drawn between bi- lateral and unilateral law. The former derives from an agreement drawn up between two contracting parties: the latter involves the imposition of a rule by one party upon another. As we shall see, what is theoretically an important and absolutely clear distinction is in practice much more complex than one might think. Let us consider one or two examples. 1 – Typical international agreements are those drawn up between sovereign subjects and individuals who aspire to or claim sovereignty, as is the case now with contemporary states. In the context of the period under study, we could point, for example, to the case of the ancient accord existing between Byzantium and Venice, or to later agreements drawn up in the twelfth and thirteenth centuries in respect of the crusades, like the famous pact that allowed for the creation of the Latin Empire of the East – a huge triumph for Venice. But even those treaties, that very conve- niently resulted in the establishment of Italian coastal cities in the harbour ports of the East (beginning indeed with Byzantium), were kinds of international pacts through which Italian communes gained not only territorial privileges, but also fiscal, judicial and commercial benefits – clearly personalized by those assuming the function of consul in each foreign port. They created privileges on the basis of precise written agreements that established real colonial islands, rather like those established by colo- nizing countries in Africa and the East, most obviously during the nineteenth century. 2 – Could the ‘concordats’ to regulate contentions between the Empire and the Papacy, starting with the prototype of Worms – although different in content – fall into the same category? Even agreements about expenses and the responsibilities of military and political direction that

territorial laws and various social categories 137

were established between individual dynasties and cities embarking on crusades were in effect international pacts that instigated a military alliance, just like those of today. The same point can be made about those drawn up between Italian communes – fiercely independent from one another, but solidly united against, for example, Barbarossa – beginning with the Lombard League and continuing to the League of Tuscany. Thanks to these, communal initiatives aimed at a unified command were set up on the basis of multilateral contribution in terms of arms and finance, and with precise rules for solving any future conflict between the co-signees. 3 – But commercial agreements also, between a king (of England, for example) and an Italian commune, governing fiscal matters and the judicial issues of import and export, or between a count and a commune or corporation of merchants over the running of the affairs of Champagne or Flanders shared the same character. In each case, the individual parties were formally required to reach an agreement on the basis of specific stipulations, and in the absence of conditions or obligations imposed upon them by a superior power. All these may be considered as contractual norms that at a later time were referred to in scholarly terms as foedera, the very old Roman term indicating pacts made with Germanic populations. The term remains in juridical and political arenas even now, due to the institution of ‘federations’ – today free unions of sovereign subjects charged with subjecting themselves to a common government or to agreed rules, as for example is the case of Swiss cantons. 4 – But just as foedera might result from the pacts drawn from equally- sovereign subjects, it could also be established between bodies that were not equal in the legal sense, but which were in fact positioned on qualita- tively different levels. This was the case, for example, during agreements that were established at Constance between Barbarossa and the Italian communes, because in the famous peace of 1183 Barbarossa, as dominus mundi, or world leader, would certainly not have consented to lessen his legal status to that of the communes. But on the face of it, and in political terms, that accord was established between equals, or at least between parties whose inequalities lay outside formal or legal dimensions, because it was the emperor who was vanquished, and the communes who were the victors, and in terms of the foedus it was the emperor who lost out. Another good example of this is the English Magna Carta of 1215, which is said to have formed the basis of the English constitution. This charter was constantly re-affirmed and reissued in emended versions.

138 chapter five

Even so, formally – that is in the eyes of the law – Magna Carta was not even an agreement, but rather a gracious and unilateral concession on the part of the sovereign in respect of the people of his realm. In reality, it was negotiated exactly like a carta libertatum, being the result of clear accord between the parties. Similar questions may be raised about those agreements that were gradually established between the Papacy and the Normans over the Kingdom of Sicily – agreements that were on the face of it feudal, and thus unequal, between the senior, or lord, and his vassus, because the pope conceded the crown as a fief to Roger II and was thus his ‘superior’. But could one not say that such agreements were not really formed between equal parties or, once again, unequal but in inverse sense to that which is apparent? Were bodies such as the Papacy, who desperately needed a military force, thus really as ‘superior’ as they were presented in law?

5 – This was clearly a very diverse scene, and it appears even more so if we consider agreements that were drawn up between sovereigns and subject bodies under their own jurisdiction. Let us look, for example, at the numerous permits granting liberty (or immunity) or privileges during this period. We could point, for example, to the privileges conceded by the kings of Italy to cities and bishops in the tenth and eleventh centuries in return for their loyalty and support. We could also point to those very different privileges by which wealthy land-holding lords above all, but also members of the Church, systematized their relationships with unruly land workers, who sought recognition of very precise obligations, or that such obligations should become fairer and less absolute through desue- tude. We could in addition point to those pacts of convenience that the Italian communes, by now triumphant in the one-time territory of the counts (comitatus) and even spreading out beyond themselves, established with lords or other sources of power in the surrounding territory. Such agreements (often called capitula) were the norm, especially from the end of the twelfth century, and were regarded as sufficiently precious, once again, from a ‘constitutional’ point of view, as to fill the registers that were jealously kept by the dominant communes: their own records (libri iurium) of rights acquired over time. All of these records have a more or less contractual character which, depending on the political force of the less important body, the weak contracting party, had a clear constitutional significance. They delineated the territory, establishing the status of its individual areas and put an end to

territorial laws and various social categories 139

political and juridical discord that was damaging to both parties. At the same time, such agreements effected a collaboration between the two parties (obviously, of longer or shorter duration), that allowed for the peaceful resumption of their respective activities, and even, eventually, joint projects. There are a number of other questions that warrant consideration. Did the canons of the ecclesiastical councils, both general and provincial (the synods), also have a contractual profile, resulting as they did from the consideration and approval of certain regulations by a number of diverse authorities in assembly? The same deliberations by the parliaments of medieval estates or by the communal assemblies could be set side-by-side with these regulations. And there is more. We could point, for example, to the statutes of corporations or confraternities or hospitals and so on, that is the legislation of minor bodies that was set within a particular context. These had once been independently deliberated by the institution itself, but now, at least towards the end of the period under consideration, they had to be presented and approved by the local government. Therefore, were these not also, in a manner of speaking, norms established through consent, because they were drawn up by necessity in the form desired by the superior authority to whom they had to be presented for approval? Even communal regulations were usually formed with some limitations, because rebellious stirrings were common. Thus a situation was established whereby consent was given for self-limitation, in order to avoid declarations of nullity on the part of the ecclesiastical authority, as well as associated excommunications. Pursuing this line of reasoning, we can make the point that regulations which were in the strictest sense political, such as the statutes of the people, legislation intended to work against/curtail the interests of? the nobility, and so on, were born of political agreements, that is, on the basis of the consent that was desirable within a particular political arena. What, then, is the point of considering this convoy of norms expressed in a contractual form, and others that in the final analysis are contractual and consensual instead of being formally unilateral and authoritative? The answer is that they introduce us to yet another ambiguity: that is, the distinctions between intended norms that were authoritarian, and thus expressions of a specific desire and deliberate attempts to achieve a particular end, and norms that were expedient, or that were tolerated. This is the distinction between new laws and customs. It seems obvious, yet even this is not free of very clear ambiguities that result in difficulties when distinguishing individual cases. We shall see evidence of this in the

140 chapter five following discussion of territorial legislation – first within urban areas, and then in the context of the monarchies.

5.2. Local Urban and Rural Legislation: Territorial Particularisms1

A very real innovation of the twelfth century that became even more evident as the old century waned and the thirteenth century beckoned, was the exponential growth of written legislation in towns and cities. This period of around a hundred and fifty years was generally a time when the circulation of written documents increased, but it seems clear that the transcribing of local norms, in particular those concerning urban centres, assumed a particular prominence. As we have seen, the eleventh century was a period during which particular emphasis was placed on customs. These were both complex and ambiguous. During the twelfth century, the growth of the cities affected customs on three major fronts. Firstly, it opened up the possibility of committing to writing those customs that were by tradition associated with a particular territory. As the early conciliar records of Arles and Avignon illustrate, this was clearly not only an Italian phenomenon. It was obviously also very common in the French Midi.2 But in Italy such practice became widespread – as one might expect, in a country where the written and juridical culture had at no point diminished – with the result that it was common both in the north and in the south, even though the two areas had completely different political backgrounds and history. The motivation was probably uniform: to defend a patrimony that was felt to be under threat by unexpected political events – a powerful Kingdom in the south, and a more active and unusually visible Empire in the north.

1 Hagen Keller, ‘Gli statuti dell’Italia settentrionale come testimonianza e fonte per il processo di affermazione della scrittura nei secoli XII e XIII’ (1998), offers the most comprehensive survey for this particular period, and also contains references to important collections, as well as information about research carried out by his group in 1991, 1995 and 1997 (p. 61 fn. 1). There is also now an exhaustive historiographical introduction: Gian Savino Pene Vidari, ‘Atteggiamenti della storiografia giuridica Italiana’ (1999). For an initial orientation of the overall material, see Catalogo della raccolta di statuti (1943–63), which has now reached section ‘U’, but cross-check against Bibliografia statutaria Italiana 1985–1995 (1998) for more up-to-date references. 2 For the mid-twelfth century see André Gouron, ‘Sur les plus anciennes rédaction cou- tumières du Midi: les ‘chartes’ consulaires dArles et dAvignon’ (1997); for sources on the Midi in general in the context of a well-known problem concerning family law, see Laurent Mayali, Droit savant et coutumes. L’exclusion des filles dotées XIIème-XVème siècles (1987).

territorial laws and various social categories 141

Secondly, the production of documents for third parties often concerned the sworn commitments of those taking up office in one of the many positions available within the urban framework. These were in effect similar to the oaths taken by kings when assuming monarchical duties: they could be equally complex, in particular setting out in detail the principal functions of the office and the obligations that the individual would assume in respect of other members or officials. In this respect, they were records that had a ‘constitutional’ significance, because they delineated the fundamental characteristics of the relevant body. Finally: writing responded in a very real sense as legislation issued to reconstruct the existing juridical system, in order to address new needs, or to oppose customary habits adopted in the past but subsequently considered of little use. It is difficult to date the earliest example of legislation issued in response to new needs, because those that have survived consist of texts that may have been reproduced many times in the past and perhaps some time after the original provision, considering that the particular norm had continued to operate in everyday practice. These are collections of rules that have often reached us through later manuscripts, at times dating back a long way, but whose origins often remain obscure. A classic case is the collection of customs of Amalfi (called the Table, or Tabula de Amalfi, or Prothontina) – consisting mostly of jurisprudential matters and concerning earlier problems that required definition in trial proceedings. Amongst other things, this was a text with many notable norms regarding maritime law that were copied in other harbour cities. Its antiquity has been much discussed. According to tradition, these customs for a city which was Byzantine with strong Lombard influences, and which was important throughout the whole of the twelfth century as a result of the privileges it had acquired from the Norman monarchy, were written down in 1000. In reality, it seems more likely that they were written at the end of the thirteenth century,3 as was indeed the case for the many collections concerning Sicilian cities that are discussed below. To a basic group of twenty-one sections in Latin, a further forty-five in the vernacular were added over time, and the whole collection remained in use locally until the end of the seventeenth century. Something that was more widely dispersed, because still evident in Liguria in the same century, was an

3 See Antonio Guarinos introduction in Consuetudines civitatis Amalfie (1975), where there is also a photographic reproduction of the manuscript.

142 chapter five institute anticipated in the Table: the contract of the colonna, or col- umn, concerning the division of the spoils in maritime trading. This stipulated that there should be agreement between three parties: the ‘cap- italist’ proprietor of the transported goods; the ship-owner; and the sailors.4 Another city that should be mentioned in this context is Trani, which like Amalfi was offered privileges by the Normans when it gained recognition of its leges et consuetudines in 1139. Its maritime statutes in fact date back to 1063, but the text of these is written in the vernacular [local language] and, moreover, it precisely suggests Venetian influence. This particular text should perhaps be considered more in the context of its consisting of ancient customs modified over time, into which other written provisions were inserted (more likely in 1363?), and which illustrates the wider use of such statutes in a seafaring world, which was by that date dominated by the Venetians.5 Bari, not far away, could likewise claim the advantage of very ancient customs. Roger II promised to respect that city’s customary norms ‘quas iam quasi per legem tenetis’ (accepting them as laws), when claiming it for the Kingdom of Sicily in 1132. According to a note in the preface to a surviving edition of these customs, they must have been written down by 1132. Various editions dating to the period between 1180 and 1200 reflect the many different juridical situations existing in the ‘Land of Bari’ – the territory in the region of Bari controlled by such customs. The first editor of the customs of Bari, a judge named Andrea, took pains to stress the points at which they differed from Roman law. The second compiler, the judge Sparano, followed suit, but with reference to Lombard law – already adopted by him in the by now established collection of the Lombarda.6 In fact, the various editions bear clear testament to the joint presence and interweaving of the two ‘national’ systems of law that was characteristic in certain regions in the south. Because, as we shall see, public law, which was of more interest to public powers, fell into the category of unitary or centralized and territorial legislation, it should not

4 Cortese, Il diritto, II, p. 301. 5 This was in fact published along with the statutes of Fermo in the editions of 1507, 1589, 1688 and 1691; for a modern edition see Collection des lois maritimes (1968), V, pp. 237–247; see also Marvulli, ‘Nomos Rodion’. 6 Other centres nearby followed the example of Bari, so that we have written consuetudes for Bitonto, Giovinazzo, Andria, Gravina, Altamura: Calasso, Medioevo, pp. 415–416; for Bari see Enrico Besta, ‘Il diritto consuetudinario di Bari e la sua genesi’ (1962).

territorial laws and various social categories 143

surprise us that these norms are essentially private in character – dealing with issues such as patrimony within the family – in other words, the common legislation that was applied in everyday life. We find the same situation, once again on the Adriatic, in Venice. Patrimonial decisions between man and wife; rules associated with legal proceedings (the trial was always at the forefront of attention during these decades); and commercial matters (societies, representatives for women, etc.) were all brought together in a collection dating to 1148/56, during the time of doge Domenico Morosini. In 1195, this collection was officially recognized and named Usus Venetorum (Venetian customs).7 The oldest- known ducal breve (writ) dates to the same years. This is the so-called Promissio ducis (ducal promise) of 1192, the promise and the duties that the doge accepted in the act of assuming his official duties.8 The first text to survive is the so-called statutum parvum (short law) thought to date to 1195. This consists of seventy-four sections containing usus (customs) and leges (statutes) with an extremely disorganized series of rules concerning legal proceedings, dowries, succession, notarial documents, commercial contracts, etc. This was followed by a text of Novae constitutiones seu leges (new constitutions or laws) which is thought to date to 1204, and in 1214 by a collection of norms applying to all citizens that was subsequently absorbed into the five books of the statutum novum (new statute) of 1242. The 1229 promissio of Jacobus Tiepolo established a more or less definitive form, and thereafter its interpretation was reserved for discussion by the city councils.9 It is not surprising that in the course of all this writing of letters and customs the two other great maritime cities of Genoa and Pisa quickly assumed prominence. In the context of the former, we can point to the breve of the compagna, or ‘writ of association’ as we shall call the first

7 For Pitzorno these were defined as ‘iudicia’, forensic customary norms. 8 The doge promised to carry out the judges’ sentences, to defend the state, to conform to the majority decisions of the Great Council, to search for agreement over rulings of the Lesser Council, not to meddle with ecclesiastical elections and not to increase the customary rights of the palatium. In the meantime, the promissio maleficiorum was already being discussed for the year 1181. This contained a basic nucleus of penal law (which also concerned nautical matters), and was reviewed several times after this, with provisions for harsh corporal punishment and excluding private vendetta; there were no provisions for formal tests such as the duel, and judgement was left to the discretio iudicum; the promissio ducis was then inserted in the ‘chapters’ of the consilia and officia, which were real constitutional texts. 9 During the sixteenth century this was referred to as the constitutio of the Republic: Zordan, L’ordinamento, p. 190.

144 chapter five piece of sworn legislation that gave juridical legitimacy to the commune of Genoa. The communes themselves were viewed almost in terms of commercial societies which institutionalized themselves in order to accomplish certain projects that were advantageous for all, but which eventually planned to split amicably from each other or to renegotiate the terms of the agreement. To summarise, the breve of the compagna is the text of a social contract, constitutional in character, but fully aware of the fact that political equilibrium involves change, and that as a result institutional rules cannot remain fixed. The Genovese edition of 1157 that is known to us is already quite complex,10 consisting of norms that are concerned both with public matters, for example the obligation to follow the consuls into war, and private issues, such as those relating to commercial activities. This is hardly surprising, given the great political and maritime enterprises which the city was about to embark upon or had already undertaken. The compagna text is a typical breve sequimentis (writ of obedience), an example of which we possess in a text dating to 1143: that is, an agreement sworn by a group that supported the communal project and through which they also pledged to respect the oath made by the consuls. For Pisa, three types of communal legislation appear very early and are clearly interwoven. The earliest surviving edition of laws and customs (divided into constitutum legis and constitutum usus, and the surviving text can be dated around 1186 although it was originally composed in 1160, whereas examples of the breve, or consular letter, are contained in much earlier collections dating to 1162 and 1164.11 But the ‘constituta’ already illustrate the effect of several decades of what was clearly ‘learned’ activity in the juridical system of the city, as is demonstrated by the adoption of the imperial-Roman term, constitutio. It seems clear in fact that a special commission of sapientes began work on the original edition of the two bodies of law shortly after the middle of the century. We also have evidence of laws that were even older. It is worth spending a little time to

10 See Codice diplomatico della Repubblica di Genova (1936), I, pp. 350–359. For the briefs, see Vito Piergiovanni, Lezioni di storia giuridica genovese (1983), p. 7. 11 The constituta had already been collected together in the middle of the nineteenth century by Francesco Bonaini, in an edition that well deserves to be called ‘classic’, but it has now been overtaken not least because of the discovery of a well-preserved manuscript at Yale, which has since been edited: I costituti della legge e dell’uso di Pisa (sec. XII); and see also Claudia Storti Storchi, Intorno ai Costituti pisani della legge e dell’uso (secolo XII) (1998), and by the same author, ‘Per un’indagine sui costituti pisani’ (2000). For the brevia see I brevi dei consoli del Comune di Pisa degli anni 1162 e 1164 (1997).

territorial laws and various social categories 145

consider these, to get some idea and to give a concrete example of the absence of formalized legislative processes during that period, as well as the interweaving of secular and spiritual government that characterizes the same years. One very good example of this is the so-called securitas de valle de Serclo (Guarantee for the Serclo Valley) dating to 1091–1192. On this occasion, seven consuls elected by the Pisans on the advice of the boni homines of the Serchio valley set about trying to find a solution to a series of graves iniurie et miserabiles contumelie et de rapinis multe miserie (significant torts) which had recently been committed in that area. It established rules and obligations for local inhabitants of the valley in respect of pasturing, the use of wood, foraging and keeping watch. Amongst other things, it imposed certain laws on the Longobardi (Lombards), a small group of people standing alone from the other populations. Those individuals now accepted the terms set down by the seven consuls hoc firmaverunt, and promised to pay a fine if they violated them. The popolus Pisanus in its turn enacted and confirmed in perpetuity laudavit et in perpetuum confirmavit the same dispositions. Clearly, this accord was reached by mutual consent: ‘constitutum est istud et comuni consensu sta- bilitum’. In this final phrase of the text we are thus made aware that what was in effect a kind of transaction aimed to re-establish the order that had been violated in the valley, had not only been imposed by the city – which thus extended its authority over the comitatus, or countryside – but had also been confirmed by the spiritual sanction of excommunication issued by bishop Daiberto, the future, famous patriarch of liberated Jerusalem. This sort of ‘peace of God’ is extremely instructive, showing not only how rules and regulations could have an informal origin – in this case a kind of contractual understanding with undertones of sentence or punishment – but also, how difficult it is in practice to rate or assess them. If applied, the agreement of the securitas de valle de Serclo would have prompted repeat patterns of behaviour that in the long term might have appeared to be ‘customs’: over time, certain taxes or monetary payments would have come to appear usual, ‘normal’ because often repeated. If one looks instead at the text, insofar as it was desired by both parties, it appears to be a contract. But, as imposed by the Pisans, it was actually an arbitration in which the arbitrators took the position of friendly compositors, taking no note of formal rules. In fact, the arbitration was not formalized, because it was not founded on requests from the contending parties. Finally, this agreement might also be considered in

146 chapter five terms of its being a statute, since it deals with general rules concerning a collective future.12 That is not all. During the same period of time, between 1088 and 1092, the bishop of Pisa issued important norms regarding the height of towers and more generally building work in the city,13 setting down not only how a contentious party should be heard in the case of conflict between private individuals ‘communi consilio civitatis’, ‘commune colloquium civitatis’ (by common consent of the city), but also, coincidentally, that no-one should impose any kind of ‘tax’ on the sale of any product. In just the same way as in trial proceedings, the ‘people’ were only able to swear to what was proclaimed as in the interests of the city. But within a few decades there was a very evident leap forward, as is illustrated by another act, drawn up in Pisa in 1153.14 This act proclaims: ‘We consuls, that have received the office from God in order to preserve sui honoris regimentum (his government), and because intersit reipublicae ne maleficia sint impu- nita (the punishment of crimes is in the public interest), according to the authority bestowed in publica concione (in the public assembly) by the people of Pisa, per huius presentis edicti paginam (thanks to this edict) statuimus sicque inrevocabiliter ordinamus, publicamus et condemnamus (establish and enact…)’. In other words, the consuls decree a series of criminal law norms against anyone working in a way favourable to the Visconti of Pisa who is not associated with the Commune, and, that after confiscating their rights of ripaticum, or landing rights, and others concerning weights, ovens, the sale of wine and oil and each and every other one of their ‘normal’ rights, would entrust omnia nostre civitatis iuri publico (everything to the public law of the city). This provides us with an early example of the language of public law, which quite naturally bears a Romanist stamp. But it is also interesting to

12 The text is now in I brevi dei consoli, p. 108 f. For the arbitration award see p. 108 (surely the Lombards would not have consented to this); for the statute see Antonio A. D’Amico’, ‘Note su alcuni rapporti tra città e campagna nel contado di Pisa tra XI e XII secolo. Uno sconosciuto statuto rurale del Valdiserchio del 1091–1092’ (1970). 13 These texts are published in I brevi dei consoli, pp. 110–113; see Gabriella Rossetti’, Il lodo del vescovo Daiberto sull’altezza delle torri: prima carta costituzionale della Repubblica pisana’ (1991). 14 The text of this is published in I brevi dei consoli, p. 117 f. The consuls swore to abide by the text that embodied norms that were read out in the ‘concio’, the public people’s assembly (and thus made public and issued through notes), and subsequent consuls were required to repeat the same oath. The text was described as a ‘sententia’ by the editor, on the basis of the brief of subsequent consuls, but it is essentially a special law – and from an historical point of view it as well to recognize it as such.

territorial laws and various social categories 147

note that the consuls’ act must have compromised the time-honoured customary practices supported by the Visconti. The commune worked in ambiguous ways, harming when it could, as in the case of the local Visconti – and adpoting a prudent position when it could not – as when confronting Barbarossa. At the same time, it took a number of significant steps forward. Once again in Pisa, and as early as the middle of the twelfth century, an inventory was taken of local residents in order to establish the amount they might be able to contribute through taxes. The aim was to take immediate control of what was happening in the territory surrounding the city where the salvamentum (protection) of the consuls was guaranteed. In 1162, the decision was finally taken not only to identify guarigangae, that is public land left free for pasturing or given in concession, but also to establish the confines of such land.15 As is well known, the communes in Italy and elsewhere aspired to take over from the public powers of the realm of the comitatus, if possible also operating beyond the confines of the authority of bishops and counts established in the Carolingian age. But at the same time, there was a desire to introduce a fundamentally different juridical system that would take the place of the earlier construct based on the difference between liberi, or freemen, and servi or slaves. The communes immediately recognized that the cives, whose possessions they undertook to protect, excepting a true and just cause, were one thing, whereas the villani, residents of villas, or villages in the vicinity of the city, who quickly found themselves in conflict with the cives who wished to acquire their land, were another.16 According to legislation drawn up in Pisa, if the villani caused trouble, the citizens would receive justice from their consul, who could allocate land belonging to the villani to the protesting citizen.17 It would obviously be simplistic to reduce residents inside and outside the cities to these two juridical categories. Apart from the fact that the area closest to the city, often up to four miles distant, always enjoyed a special status and was variously denominated and subject to a special regime that was different from that of the comitatus/contado, or

15 Il breve dei consoli, p. 61. 16 In respect of Pisa in 1162, see Il breve dei consoli, pp. 49, 45, 63. 17 Il breve dei consoli, p. 58, where reference is made to the ‘principal of collective responsibility (and thus of the consul) in respect of the possessions of the whole community of villani’. In my opinion this is not clearly illustrated by the text, where only general references are made to the residents in the vicinity of the city: it seems rather that the retaliation was meant only to concern those who were responsible.

148 chapter five countryside, the distinction drawn between milites and pedites inside the city was also found in the countryside. And that is not all. Cives foretani, vassalli, lambardi and masnadieri also worked in the countryside, and at a slightly later date worked alongside mezzadri, or sharecroppers, who operated according to a particular regime. This much emerges from the oldest piece of preserved legislation concerning Siena. Significantly this record, which dates to 1208, is not categorized as a ‘law’. It is in fact a many- facetted provision comprised of more than forty points that were issued by a commission of fifteen inventores (in the sense of being creators or inventors of ideas) unde debita Comunis Senarum solvantur. Each point, therefore, is simply introduced as invenimus et ordinamus (we establish and order), without defining the actual document generated by the inventors.18 Returning to the paradigmatic example of Pisa, we can now appreciate the complexity of its costituti. What kind of legislation were they? The name leads us to think that one text consisted entirely of customs, and the other of legislation. Such an impression is wrong: in the matter discussing the law there is naturally a significant amount of material from the Kingdom of Italy, in other words, from the Lombarda. But there is also material from Roman law, as well as deliberations by citizens delegated by the Pisans to dictate norms modifying ‘general’ law, that is, laws of general application, for example, abolishing the quarta uxoria.19 In the other, we find customs, or norms designated as such, some of which are also international – particularly maritime customs, approbatae by the citizens, and responding to the aequitas, but expressly modified or integrated by the communal constitutores. Each body of norms was enforced by a distinct court administered by different judges (curia legis and curia usus), who thus had at their disposal codes that were more or less ready to apply, and which drew inspiration from different sources (one general and the other local), that were formally approved by the whole city.20 Why, then, was there a duplication of the Pisan legal sources? Given the early juridical culture already evident

18 Published in Ascheri, ‘Siena nel 1208: immagini dalla più antica legge conservata’ (1993). See also Ascheri, ‘Législation italienne du bas Moyen Age: le cas de Sienne (ca. 1200–1545)’ (2001). 19 This concerned the quarter of the husband’s possession that he conferred on his wife at the time of their marriage: this derived from the Germanic tradition, but at a later date it was confused with the Falcidia of Roman law (the division of the husband’s patrimony at his death). 20 The preface to the usus justified the name itself: ‘constituta quasi a compluribus statuta et etiam a civitate recepta et confirmata’ (I costituti, p. 130).

territorial laws and various social categories 149

in that city, it is possible that this too was due to ‘learned’ intervention. But this hypothesis only makes sense when set within the framework of the difficult political climate of the time. Barbarossa had not only given the order to destroy the rebellious city of Milan, but had also at Roncaglia imperiously asserted the supremacy of imperial law over any locally formed law. The customs of cities contra legem, that is, those in opposition to imperial law, were thus nullified, unless validated by the dominus himself, in other words the emperor. The two bodies of law in Pisa were thus probably the result of a deliberate cultural and political choice. They were meant to function in the same way as that foreseen for the body of law drawn up under Justinian: in other words, they were meant to demonstrate support for Barbarossa’s imperial project. The Constitutum ‘usus’ was in fact dedicated, indeed almost recommended to Barbarossa. Apart from the Roman ius civile, Justinian’s texts also made consistent reference to the local ius civile that belonged to each civitas as its ius proprium.21 This formed the basis of the nostra constitutio civilis (our civil constitution) of the ius civile Pisanorum, as the Pisans called their constitutum usus. This was in effect a collection of the most-used local norms: on private, commercial and feudal matters, and those covering trial proceedings, which the Pisans wished to place outside imperial influence, through, for example, nomination of the judges responsible for administering them. It may also be that in recalling aequitas as the guiding force behind the use of such legislation, we encounter further influence of the learned law of the expanding universities: that is, in the distinction drawn between aequitas and ius strictum (formal law), which created very obvious dialectic tension amongst university teachers.22 These texts are thus exceptional for their breadth and for the learning they display, a characteristic already evident in the other laws considered above; but there was similar scholarly industry elsewhere, because by this time the cities in the interior of the peninsula had also developed, and they were prepared, if necessary, to resist Bar barossa’s power. There is one other very old case, about which we would like more information but which, unfortunately, we know only through one rather pale record. This case concerns Bologna. It seems that customs at Bologna

21 Civil law is said to be the law of each city, enacted by each populace (‘Quod quisque populus ipse sibi constituit, id ipsius proprium civitatis est vocaturque ius civile’, Dig. 1.1.9). 22 Cortese offers an introduction to the complexity of these issues in his classic La norma, see Index.

150 chapter five were written down before the middle of the century, if it is true that they were compiled in curia Bulgari23 – that is in the study, school or tribunal of one of Barbarossa’s four doctors. But it is possible that this was yet another of the many myths circulated to bolster the importance of the great founding masters of that University. In this specific case it seems that the intention was to perpetuate the notion of the contrasting positions of Bulgarus and his famous pro-imperial colleague, Martin. Perhaps it was also an attempt to show that the drawing up of local law, if indeed originally established by one of the four doctors of Roncaglia, should not in itself be considered as an act that was injurious to imperial authority. We are on firmer ground with a number of laws dating to 1135–4424 for Piacenza, a city that gained a leading position in the financial sector and that produced no less a glossator than Placentinus, ‘il Piacentino’. Another really exceptional example, if it could be dated to 1117,25 would be the statute of the consuls of Pistoia, handed down in a manuscript of the late twelfth century. Even if the date is brought forward (perhaps to 1177), this text is still extremely interesting, not least because it lists the salaries for various kinds of rural activity. Those that emerge as the most important are the ones associated with the laborator terrarum, in other words, the land worker, since, according to the Pistoian statute, revenue from such activity did not belong to the city, but to one of the many villages that surrounded it. The consuls were in fact forced to make a public announce- ment to the citizens, clarifying their obligation, against penal sanction, to pay no more than two denarii (pennies) per day apart from that necessary for victuals between November 1st and April 1st of each year. This could be raised to three pennies for those who worked with a spade or were engaged in ditching, and to four pennies for the rest of the year. In this way, what amounted for landowners to ruinous competition in attempts to procure the most sought-after day labourers was checked, and the labourers for

23 For a reference to this that is strangely absent from Repertorio degli statuti, I, p. 35, see Pietro Torelli, ‘Comune e Università’ (1959), p. 487. 24 See Arrigo Solmi, ‘Le più antiche leggi del Comune di Piacenza’ (1915), which concerns real estate in particular. 25 For the text of this, see Lo statuto dei consoli; but in the context of doubts concerning its date, see Keller, Gli statuti, p. 82, and Peter Lutke Westhues, ‘Beobachtungen zum Charakter und zur Datierung der ältesten Statuten der Kommune Pistoia aus dem 12. Jahrhundert’ (1997). In referring to the maiores consules (who are very obviously distinguished from others holding that office), this statute looks back to a complex constitutional arrangement, and in addition, its norms were already couched in very subjective terms – with ‘statuimus ut’ – thus, from a formal point of view, adopting an extremely well-established formula: in other words, in a post-breve manner.

territorial laws and various social categories 151

their part received recognition under the law that they would be paid within eight days.26 As the years rolled on towards the middle of the century, so the recording of customs accelerated. This provided ample opportunity to insert where necessary new norms deemed appropriate in the wake of recent socio-economic developments. In any event, the written form of the law also became necessary as a way to safeguard existing communal legislation, as new officials swore by oath in their brevia (that is, when taking up office) to abide by certain rules. Above all, it was necessary first to establish consistent legislative discipline at the citizens’ level and second, to create a homogeneous legal framework to take the place of uncertain ‘national’ customs. Juridical consistency was necessary not only for a sense of unity, but also to establish a political identity. While the city rediscovered autoch- thonous religious traditions and cultivated its own religious sensibilities around local saints and its own cathedral, which benefitted from the lay community’s financial commitment on behalf of the city, political necessities tended to reinforce its identity as a political entity. The law could clearly play a significant role in such endeavours, as is illustrated by the contemporary collective local provisions of ‘common’ law. It is precisely at this point that we encounter the phenomenon of entire cities who declared themselves ready to follow Roman law through the channels of their councils.27 Written versions of customs and statutes thus became common, and were bound up with the communes’ aspirations for autonomy. The Peace of Constance in 1183, which was rightly interpreted and defended by the jurists and communes as the basis of the legislative power even when revoked by an irate Frederick II, in fact recognized the ‘customs’ of the citizens in the context of decisions concerning feudal matters and cases involving the livellum, or emphyteusis. Indeed, it was agreed that the more important appeals, involving cases of over 25 lirae, or pounds, even if directed to the imperial missus of the city, should be decided secundum

26 Lo statuto dei consoli, p. 57. The other categories for which we still have norms are those concerning donkey or ass drivers, woodworkers, shoemakers, blacksmiths (with a very detailed list of the kinds of work in which they were engaged), and butchers; but the text is incomplete. Even the late twelfth-century breve laid down conditions about salaries, and in particular those in the highest bracket (which has given rise, amongst other things, to questions concerning the date of 1117): Statuti pistoiesi del secolo XII. Breve dei consoli (1140–1180), Statuto del podestà (1162–1180) (1996), p. 223–226. 27 For example, Siena in 1176: see Ascheri, ‘Législation italienne’.

152 chapter five mores et leges illius civiitatis (according to the customs and laws of the city).28 The extent to which communes were intent on achieving autonomy is demonstrated by the so-called ‘arbitration’ of the consuls of Cremona in 1175, when it was requested that justice should be carried out according to the statutes of the city.29 That Barbarossa clearly understood the danger of legislation drawn up by other entities is demonstrated by the diploma he awarded to the monastery of Chiaravalle in 1164. According to this, the monastery was to function independent from the laws of cities, castles or other people or places, and would undergo no change in the various existing levies (exactiones, collectae, datia, servitia, gravamina). Such strictures culminated in a passage concerning statutes: ‘et statutis civitatum et potestatum vel quorumlibet aliorum locorum’, in effect chal- lenging the statutes of the cities, as well as their judges. It was indeed through the statutes that the communes were able to introduce those ‘customs’ that the defeated emperor was forced to recognize at the Peace of Constance in 1183.30 From another point of view, the fact that the statutes strengthened the position of the communes no doubt explains the phenomenon of setting such guidelines down in writing in the interest of the communes themselves, and even earlier than Constance. During the same closing decades of the twelfth century we witness not only the extraordinary registration of ancient legislative rulings dating to 1173 on the walls of the cathedral of Ferrara, and the collection of norms reproduced in a beautiful old Pistoian code dating to about 1180, but also the first drawing up (in 1179) of the norms that must have given a sense of citizenship to the newly-created Alexandria, which were presented to Barbarossa for confirmation in 1183.31

28 ‘Secundum mores et leges illius civitatis’. Some cities had already adopted that rule (Pisa in 1142 and Milan in 1156); for a discussion about all this, see Ugo Nicolini, ‘Diritto Romano e diritti particolari in Italia nell’età comunale’ (1986), pp. 150–160. 29 ‘Secundum quod a civitati statutum est vel fuerit’. 30 For example, when the Lombard league made claims on the basis of their ancient customs (‘consuetudines nostrae antiquae’) referring to the privileges (‘commoditates’) enjoyed by the cities, the individual categories were listed so as to avoid any misunder- standing: pastures, fishing, mills, ovens, the stalls of money changers and tradesmen, butchers, houses that were constructed along or close to public roads (‘in pascuis, pisca- tionibus, molendinis, furnis, tabulis canbiatorum et negociatorum, macellis, domibus quas habent edificatas in viis publicis vel supra vel iusta vias publicas’); Nicolini, ‘Diritto Romano’, p. 113 fn. 238 (a work which should also be consulted generally for this precise point). 31 See respectively: Statuti pistoiesi, in particular the introduction, and also the painstaking (and difficult) translation by Natale Rauty: I frammenti epigrafici degli statuti di Ferrara del 1173 venuti alla luce nella cattedrale (1969). See also Franco Niccolai, Note sulle

territorial laws and various social categories 153

From that time onwards, there was a progressive acceleration that reached its peak in the first decades of the thirteenth century. The oldest surviving collections of written norms, including those known to us only through later records, generally date to these years. Pausing for a moment to consider other geographical areas, we can point, for example, to Benevento (1207–1230),32 Treviso (1207–1218, beginning an illustrious series), Volterra (1210–1224), Milan (famous customs – some of which are feudal – gathered together in 1216 and with reference to an earlier collection dating to the middle of the twelfth century), and Viterbo. A special mention should also be made of Genoa, where a famous professor of the Studium at Bologna, Jacobus Baldovinus,33 was put in charge of compiling the book of statutes when he was the (contested) podestà there in 1229. Around that time also, these collections of law were less frequently referred to as ‘customs’,34 and much more often described as ‘statutes’. It is as if the city had acquired a self-confidence previously lacking, as well as a new understanding of its own legislative role; so much so that legislation was no longer expressed subjectively – reflecting the vows made in ancient brevia by consuls – but instead began to assume an objective form. Thus, in order to immediately recall the legislative ruling statutum est, laws began by clearly declaring the new will of the deliberating body. There was no longer any need to hide local legislation under the cloak of tradition, veiled in antiquity, a thing of the past, immemorial, the origins of which were no longer known. Now the law could finally be asserted for what it was, what it wanted and what it could be. This was not only a confirmation; it was also a re-ordering of the traditional juridical system. Of course, there were already collections of customs, because in

consuetudini di Alessandria (1939); and Gian Savino Pene Vidari, Le consuetudini di Alessandria del 1179 (1992), where the text is reproduced and examined in detail. 32 Benevento already considered itself in the Pontifical State, so in this statute, that was in reality ‘published’ in 1230, the judge was obliged to pronounce sentence in accordance both with the customs that were ‘approved’ locally and with Lombard law (the citizen’s ius proprium ), and if not that, then according to Roman law: Cortese, Il diritto, II, p. 328 fn. 57 (with reference to the printed source). 33 See respectively Statuti del Comune di Treviso (1950–55) Statuti di Volterra, I (1210– 1224) (1951), Liber consuetudinum civitatis Mediolani anni MCCXVI (1949), Gli statuti viterbesi del MCCXXXVII-XXXVIII, MCCLIII e MCCCLVI (1910); for the involvement of Jacobus Baldovinus, see Vito Piergiovanni, Gli statuti civili e criminali di Genova nel Medioevo. La tradizione manoscritta e le edizioni (1980), pp. 17–26. 34 But see the case of Brescia in 1225 and Lodi in 1224. One should also bear in mind that the written version for Como was only created in 1281, when local customs were included in the statutes; naturally, one can also point out those instances in collections of customs where a provision had originated in legislation: Keller, ‘Gli statuti’, p. 68 fn. 19, p. 85 fn. 78.

154 chapter five transcribing certain traditions those employed in the task of writing could very easily alter this or that point, and in any event make selections from local juridical memory. But now the statutum or the more Roman- sounding constitutum explicitly indicated the volitive action intended to statuere, that is, to establish legal status. These years mark a significant moment in the evolution of communal institutions, which had also evolved quickly as a result of an unbri- dled economic boom. This bullish state of affairs was so marked that it has prompted discussion of the period in terms of the spread of a proto-capitalistic commercial system.35 But before addressing the juridical aspects of that, we should add a few further points about the later stages of development of the statutes, up until the middle of the thirteenth century. The most significant point is that their overall number increased rapidly as a result of the decision to opt for the so-called regime of the podestà. This form of magistracy – with which the emperor had already experimented as a way to impose his own trusted officials in the cities – became normal at precisely this time. It is no coincidence, either, that the statutes became more complex and complete. According to existing regulations around 1220 the act of becoming podestà involved an official being brought in from outside, as a way to reinforce impartiality in the face of the internecine conflict between social and political classes inside the city. The contract was itself modelled on the Roman locatio-conductio operarum. The leading classes in the commune hoped that by adopting such statutes they would persuade the podestà to respect a certain programme of interventions, and apply a certain kind of law in the communal curia, the court where either he himself presided, or a judge acting as his assessor, or assistant (once again, a term from Roman law) who was a member of his familia, or clan. It was clearly expedient that the terms of the statutes should be expressed as completely as possible. But this was in any event necessary, because the statutes had to be read periodically to the assembled councillors of the commune, so that none of them could feign ignorance of their contents. In a period of scarce literacy, and where oral culture predominated, such precautions should be viewed not only in legal terms, but also from a political point of view. They must have been even more necessary during this early phase of the communes, which was characterized by the first skirmishes between the nobility and

35 Roberto Lopez spoke about ‘commercial revolution’; Paolo Cammarosano for his part adopted the term ‘change’ in ‘L’economia italiana nell’età dei Comuni e il ‘modo feudale’ di produzione: una discussione’ (1979).

territorial laws and various social categories 155

the people that became ever more intense towards the middle of the thirteenth century. Both arti, or guilds, and the popolo, or people, clearly had an interest in local law being written down, as a form of protection in the face of eminent members of the nobility and foreign officials being ‘brought’ into town.36 In the course of just a few years, such was the expansion in existing norms that it became necessary to divide the various collections into books, more or less according to subject-matter, and more or less following the sections established by the very influential Roman models. It became normal, for example, to assemble first (in book I) constitutional norms concerning, say, the organization of the commune (in the past, the source from which brevi were issued), including offices and elections. All the norms concerning trial proceedings and civil law that confirmed or refuted the options of Roman law were normally placed in the second book, whereas in book III we find provisions concerning criminal law. In the event of there being a book IV, this is where various laws to do with commerce or administration were assembled, covering, for example, work in the city and in the countryside, which the podestà had to guarantee. Variations in the distribution of material were naturally infinite. One thing is certain, however: the statute became the emblem of the commune, along with its insignia – the ancient chariot of war and the coat of arms. It was no coincidence, either, that statutes were included in the volumes of parchments that were highly prized for their writing and for the precious miniatures that embellished them. As a result, statutes were even taken into consideration by the emperor, who in this way, and in his own interests, was able to place them in their proper perspective as emblems of the communes. In competition with the Empire, the Church quickly did the same. Apart from anything else, the statutes gathered together, more or less zealously, provisions laid down by both the Church and the Empire, in particular those directed against heretics, or those that started with solemn declarations of orthodoxy and of responsibilities in the fight against heresy37 – very obviously taking as their model the Code of Justinian, which was known to all the experts of the time. It was a way of ‘normalizing’ communal legislative activity, re-configuring it on a

36 Giovanni de Vergottini’s works, ‘Arti e popolo nella prima metà del secolo XIII’ (1977), and ‘Note sulla formazione degli statuti del popolo’ (1943), are useful in this context. 37 Bene vivere in communitate (1997).

156 chapter five purely local and subordinate level – on the basis of ‘concession’, according to the model offered by the Peace of Constance. From the point of the view of the communes, it was instead essential that information should be circulated among its citizens. In political terms, this was very important, and characteristic of bodies that were often veritable city-states, even though of limited demographic dimensions, and hotbeds of republican thought that was to thrive in future centuries.38 We should not forget that this was the age in which rhetoric based on classical tradition, and in particular Cicero, was widely disseminated, and that this became interwoven with the increasingly widespread diffusion of one particular profession that quickly became characteristic of, and essential to communal culture; that of the notaries. We will address these in detail later on. But before proceeding further, another point needs to be emphasised. It should not be forgotten that all this writing was a general phenomenon, and thus not only prevalent in those urban centres that had become independent communes and even city-states. In Italian studies there is a tendency to concentrate on urban centres – even to the point of exaggera- tion, according to some opinion. This derives in part from the fact that this phenomenon has persisted over time, thus appearing from an ex-post perspective to be more significant and of permanent importance in the history of Italy. But if one ignores the ‘after’, and for a moment tries to orientate oneself back into the realities of the time, into a world that was almost exclusively agrarian, based on countless rural communities or mountains densely populated with castles, and in any event very distant from the momentous developments experienced by the urban centres, the perspective changes radically. In the countryside there were no great collections of statutory law; no uniform local law rendered homogeneous by legislative interventions tempered by categories of Roman law resur- rected for a new use. Instead, there were rudimentary and skeletal cartae that were passed from one generation to another, albeit sometimes enriching, occasionally in quite noticeable ways, the traditions of ancestors who had lived in an age before the ‘freedoms’ of the new dispensa- tion. The new legislation spelled out the rights and obligations of inhabitants of small centres following an agreement which was more or less the result of a revolt against a lay or ecclesiastical lord. Such individuals held feudal or signorial rights over a dominatus loci which invested

38 It is my opinion that this aspect has been neglected in Italian historiography: see Ascheri, ‘Beyond the Commune’.

territorial laws and various social categories 157

them with power over the districtio; a power that was acquired over time, and was for the most part de facto, or which had resulted from the expansion of powers associated with the full ownership of their property (allodium). Clearly, these were situations which were for the most part arbitrarily constructed thanks to the scarcity of public power during the tenth and eleventh centuries, but which at times also depended on official concessions on the part of some or other authority, such as a marquis, a duke, an abbot or a bishop. But we should be clear on the following points: the majority of the population lived in rural areas, and the rapid expansion of this presence clearly prompted the extensive castle-building during these centuries; ‘surplus’ production also encouraged the mobility of men and products which stimulated the development and centrality of nearby cities, transformed once more into centres controlling a wide territory, through the development of the communes. The ‘separateness’ of the countryside that was typical of the early medieval age was thus a thing of the past. One can of course speak of the communes, even in the countryside, and here also consuls emerged as forces in opposition to the lords in the course of the twelfth century. But the so-called ‘rural’ commune or the commune of the castle was not a factor of great political significance. It remained an expression of organized independence and an administrative centre for the territory. As such, it also constituted an interest for the local lord, who was in a position to invest a small ruling group, also with its own interests, with responsibility for maintaining public order, military conscription and tax-collecting in the territory. Quite apart from the basic legislation necessary for the running of the commune, which is not always explicit in the written texts because this was not the prime intent of such documents, rural statutes present particular norms that can on occasion be very interesting. We also find examples of criminal law that provide information about what activities were considered most valuable, such as the rearing of cattle and their transhu- mance (the seasonal moving of herds from highlands to lower pastures and back again); or the various crops cultivated; or the care and use of collective property that would in the future be called, and is still called today, usi civici, or ‘public utilities’.39 Use of public land was vital for these communities, and resulted in the payment of tax to the lord or proprietor

39 For these see Alessandro Dani, ‘Aspetti e problemi giuridici della sopravvivenza degli usi civici in Toscana in età moderna e contemporanea’ (1999).

158 chapter five of the land for the cutting or gathering of wood, the grazing of pigs among oak trees, the cutting of grass, etc. An early example of this kind of development is the charter for Brigue, Saorge and Tende – all localities originally on the borders with France but lost by Italy after World War II – in which some time after 1041 the counts of Ventimiglia confirmed immunities granted to the area by marquis Arduin. Amongst other things, this charter, which was described as for the usus et consuetudo huius terre (the customs of this territory) laid down provisions about the following matters: possessions and their uses as granted by the lord; inheritance; legal defence (with the limit of having to host the judicial assembly for only three days a year, due to the cost of providing accommodation for the court); exemption of local manentes (farm workers working the land on the basis of a feudal contract) from public levies and tributes except for that of military service (hostis publica); and established for all the right to collect wood, hunt and make use of any waters and pastures as far as the sea.40 The 1207 charter for Tintinnano (at the base of Mount Amiata, and now known as Rocca d’Orcia) provides us with a further and more developed example of such trends.41 This document has already gained considerable fame due to the attention of such notable medievalists as Lodovico Zdekauer and Gaetano Salvemini. The lord granting the rights began with a learned reference to Rome: ‘once lord of the world, thanks to equity, justice and liberty’.42 Given the period in which the charter was drawn up, this was not surprising, if only because of the strong rhetorical culture of the notaries. The charter then proceeds with a comprehensive list of rules: if possible, to reform common bargaining (negotium commune), so as to restore and improve upon the previous good arrangements. Reference is then made to taxes levied for the possession of vineyards and land; the use of the mills; the investiture as knight of one of the lords; hunting; and so on, even to the finding of treasure. Various concessions were also referred to, such as the right to gather wood; labours associated with water, such as

40 Mention should obviously be made of Daviso, ‘La carta di Tenda’, as well as the rich area for research examined in Francesco Panero, Schiavi, servi e villani nell’Italia medievale (1999), p. 186. 41 Now reproduced and examined along with a number of other early Sienese records in Redon, Uomini e comunità del contado senese nel Duecento (1992, pp. 136–143 for the charter, and pp. 97–135 for the analysis), as well as in Paolo Cammarosano, ‘Le campagne senesi dalla fine del secolo XII agli inizi del Trecento: dinamica interna e forme del dominio cittadino’ (1979). 42 ‘totius que quondam domina et mundi extitit capud hiis tribus: equitate videlicet, iustitia et libertate’.

territorial laws and various social categories 159

fishing, and the cutting of grass in one particular area of the communal territory, rights of succession, etc. To sum up, this was a very detailed text, especially in comparison, for example, with that drawn up in respect of Alexandria. It even considered the possibility of war, and specific provisions should the exercitum have implications for the king or emperor, the castle being a watchtower over the Francigena highway. We would also do well to recall another text, selected on account of its being coeval and comparable, and also because it concerns another rural area close to Tintinnano which then formed part of the territory governed by the important dominion of the Guidi counts – the great Tuscan family which has been studied by another medievalist, Ernesto Sestan. This was the charter covering the Ambra valley in the area around Arezzo, which was said to have been drawn up in 1208.43 The norms in that document mainly concerned criminal law, and unlike the charter for Tintinnano covered nothing that could be said to be proto-classical. The fact is that in this case we encounter the breve, or rules for the podestà, with the result that the norms reveal lord’s preoccupations to bend his official activities toward certain ends, rather than to establish accord with his subjects. The norms make no mention, for example, of administrative matters, which appear to be taken for granted, even though it is clear that the valley was divided into six distinct communities, each of which was at the same time placed under the management of one and the same podestà.

5.3. Monarchical Legislation

We have already referred to the relatively few imperial laws of the time, normally issued through the ‘diets’, such as at Roncaglia (Piacenza) in respect of the Kingdom of Italy. These consisted of huge parliament-like assemblies, with informal delegations drawn from the various ‘ranks’ (such as the nobles, ecclesiastics and cities), who were deputed to accept the legislation handed down by the princeps – a term from Roman law indicating the sovereign. Only a few laws were actually issued on such occasions, but these were at times very significant, both in principle and in terms of their practical influence. Attention has already been given to the constitutions known as Habita. Others will be considered in the context of feudalism. But at this point at

43 The text probably dates, however, to 1268: see the new edition in Bucine e la val d’Ambra nel Dugento. Gli ordini dei conti Guidi (1995).

160 chapter five least some mention should be made of Frederick II’s complex constitution Ad decus.44 This document (which was prepared in the papal chancery) provided not only for a war against heretics (presumed guilty unless able to prove their innocence, so that Cathars, Patarines and the like fell into a state of infamia, or ill-repute, and had their goods confiscated), but also for the tutelage of fiscal privileges as well as of ecclesiastical jurisdictions. It thus declared null and void those statutes that contradicted the ‘freedom’ of the Church. It also assumed responsibilities for the protection of those sea-travellers, eliminating the law of albina gium, whereby the public power could lay claim to possessions left on its coastal territory following the death of a foreign visitor who had travelled by sea, and in the absence of any legitimate claims being raised by that individual’s heirs or testamentary executor. Protection of the land was also covered, such as the rights of foreigners in the giving of evidence and in questions of succession. The land workers also received protection in regard to their possessions. All of this was solemnly proclaimed on the occasion of Frederick’s coronation in Rome in 1220, and was subsequently included by the universities in the Code of Justinian.45 There is little doubt that by comparison, the Church was much more prolific, establishing bodies of legislation through the councils (already mentioned in the course of our enquiries), and above all through the collections of canon law – in particular, the ante litteram, a masterpiece of ‘codification’ formed out of the Decretals of Gregory IX. In reality, the already crumbling Kingdom of Italy was definitively dissolved during the long struggles with Frederick II, once again excommunicated in 1239 and remaining so until his death in 1250 – the date identified here as mark- ing the end of the ‘constitutional’ period of the late medieval juridical system.

5.3.1. The Norman Assizes King Roger established a system of unified order throughout large parts of central and southern Italy, founding in one single political domain a heterogeneous series of political entities and people with diverse juridical systems: Greek, Lombard, Jewish, Saracen, and of course that of the Norman conquerors themselves, who for almost a century had also

44 Lex edictalis, for which see Peter Weimar, Federico II legislatore dell’Impero (1997). 45 There is a comprehensive discussion of this in Wolf, Gesetzgebung, pp. 69–71; for the constitutio in basilica Sancti Petri see Liotta, ‘Vicende bolognesi’, and recently Di Renzo Villata, ‘La Constitutio in basilica’.

territorial laws and various social categories 161

imported their own refined feudal law to the south. Like his contemporaries in England, king Roger was careful not to quash these different traditions. After all, what else of an imperial nature could he have put in their place? Roger wished, rather, to present himself as the guardian of the varied dominion he had inherited and better still, to establish a charitable guardianship based on justice – in imitation of God, from whom, like a Byzantine basileus, he claimed to have received direct authority to govern the Kingdom, thereby significantly overshadowing the Pope, his feudal senior.46 This resulted in the construction of both a central administration – with its seat in Palermo – and a peripheral body that was intended to control the feudal lords who were scattered throughout the newly-created state. As well as these administrative bodies, the new monarchical reality also needed to make itself felt through legislation. This is in fact what happened in the so-called Assizes, a series of chapters or sections handed down almost like an appendix to two manuscripts written around 1200, the contents of which mostly derive from the Lombarda.47 According to tradition, the Assizes were issued at Ariano in 1140 during a feudal assembly – the original meaning of the term assisa, being subsequently extended to include norms publicized or approved there.48 It was in this way that in 1150 Roger issued a law on hereditary successions that was only valid in Calabria, and therefore written in Greek. But while there are few doubts about the historical circumstances which underpinned the issuing of that law, a number of questions have been raised about the historical accuracy of legislation drawn up in Ariano. It has been suggested, for example, that the so-called ‘Assizes’ were in fact a private collection

46 See for example the preface to the Assizes in Le Assise di Ariano (1984), p. 22, and the very beautiful mosaic in the church of S. Maria dell’Ammiraglio (known as the Martorana) in Palermo, also reproduced in Le Assise, p. 119. 47 For the two manuscripts, one in the Vatican and the other in the abbey at Montecassino, see the recent study by Gian Savino Pene Vidari, ‘Assise, consuetudini, statuti: note comparative’ (1996), that also mentions the presence of a statute of privilege relating to Pontecorvo, p. 197. As well as the two manuscripts referred to in Le Assise, Léon- Robert Ménager (‘La législation sud-Italienne sous la domination normande’ (1969), p. 478) referred to one in Paris that has since been shown to be irrelevant: Giovanni Santini ‘Problemi relativi alla Assise di Ariano: gli uomini di legge’ (1996), pp. 112–113; Ludwig Burgmann, ‘La traduzione Greca delle Assise di Ariano’ (1996), refers to a Greek translation of 6 chapters of the Vatican manuscript. 48 The same term explains the title Assize of Jerusalem for an important text concerning domination by the crusades in the Holy Land. For these ‘parliaments’ that were essentially still informal, see Ortensio Zecchino, ‘I ‘parlamenti’ nel Regno di Ruggero II’ (1996).

162 chapter five dating to a much more recent period than that traditionally proposed – indeed, to the Swabian, or Hohenstaufen period. Prevailing opinion still attributes the Assizes to Roger, but we cannot exclude the possibility that the original text was subjected to a number of alterations, and above all, that its language was modernized, since it contains resonances of university doctrines developed in the north under the influence of the law of Justinian.49 The first assisa itself is unusually dedicated to a theoretical theme, De legum interpretatione, and covers the preservation of all existing provisions (moribus, consuetudinibus, legibus non cassatis), so long as these were not manifestissime, or very obviously, contrary to the present laws (nostris his sanctionibus). The predominant ideology of the Assizes is that the law of the prince was exceptional, because ‘private individuals’ (as we would say today) had since time immemorial normally been organized according to customs and ‘laws’ which were considered appropriate at the time, and which were linked to an individual’s nationality: Roman, Lombard, and in the south also Jewish and Muslim.50 The legislator had to be vigilant, however, intervening when necessary against pravae consuetudines (bad customs), in fact referred to in assisa 26.51 According to that ruling, it had been normal for couples to marry without the presence of a priest, a practice that was abominable not only in the eyes of Christians but also from the point of view of the sacred canons. The king therefore desired that marriage should take place in a church and with solemn benediction, according to Byzantine law. Marriages contracted in any other way would not be nullified, but punished according to secular law: that is, the dowry would be lost, and any descendents would be considered illegitimate, thus depriv- ing them of the rights of succession.52 It was, however, characteristic that the king should have honoured marriages already contracted, such as those involving union with a widow. This was presumably meant to act as some kind of incentive, but it is above all significant that an analogous

49 Cortese (Il diritto, II, p. 323) suspects rearrangements; Andrea Romano ‘Diritto romano e diritto longobardo nella legislazione delle Assise’ (1996), examines how the Assizes derived from the law of Justinian or that of Byzantium. 50 For the complex situation existing at that time, see once again Romano, ‘Diritto romano e diritto longobardo’. 51 Le Assise, p. 46 (p. 26 for de legum interpretation). 52 On this point, see Pene Vidari, ‘‘Assise’, consuetudini’; the Byzantine source appears (p. 209) to have been a Novel issued by Leo VI (no. 89). However, according to canon law, law could not be retroactive. For the link between the Assizes and the decretals, especially those of Alexander III, see Horst Enzensberger, ‘Cultura giuridica e amministrazione nel Regno normanno-svevo’ (1985–87).

territorial laws and various social categories 163

disposition which created similar resentment was repeated in the Code of Frederick nearly a century later. There is more: it was only on rare occasions that the new law interfered with the rights of private individuals because public law, when it came to reprimanding behaviour that the government considered harmful to peaceful co-habitation, was typically the reserve of princely intervention. In fact, the Assizes were almost exclusively concerned with criminal law: with reprimanding, for example, disobedience to the sovereign, like crimen maiestatis (rebellion against the crown), or other scandalous acts like adultery, the rape of a virgin, plagiarism,53 or the administration of love potions or magic spells. These crimes, already covered by local laws, now assumed the character of state laws, with general application, and with a regulated system of punishments for all – in other words, they were removed from the capricious rulings of local judges. These ‘assizes’, being relatively few, do not constitute a great legislative corpus, but they have attracted a good deal of historiographical attention because they appear to express the ‘modernity’ of the Norman State, with its English equivalent that was destined to be so successful in the future. In that arena also, there were more ‘national’ laws existing alongside the Norman domination, and there too we find a wide distribution of feudal institutions, that was not, as in the south of Italy, a destructive factor at the moment. The central administration knew how to make itself felt throughout the vast territory and how to ensure public (that is ‘state’) control, despite the presence of feudal lords. One of the first Assizes,54 for example, ordered that one could in no way alienate, donate, sell, or wholly or partly damage (minuere) the regalia, or rights of princes, counts, barons, archbishops, bishops and abbots. These were the individuals to whom the Assizes turned, feigning solicitous collaboration, because they would otherwise have been guilty of lese-majesty.

53 This latter issue did not concern the appropriation of other individuals’ intellectual property so much as, technically, the casting of a free man into slavery – a crime that forms part of the penal law of our own century, and one that is much discussed as a result of a notorious judicial case. The crimen maiestatis occurs in assize 17, preceded by that which qualifies as sacrilege every evaluation (obviously of a negative nature) of regal acts (Le Assise, p. 38). 54 The fourth, see Le Assise, p. 28. There are many more in the Vatican manuscript. Here, the provisions of the Montecassino manuscript are edited in succession. For the links between the two series, and between them and the Liber Augustalis which will be discussed later, see in particular Anna Laura Trombetti Budriesi ‘Il testo Latino delle ‘Assise’ di Ruggero II nella tradizione del ‘Liber Augustalis’’ (1996).

164 chapter five

We should further add that these individuals were also vassals of the king, because the notion of regalia most probably included feudal rights. These were never explicitly considered in the Assizes, but were assessed in detail a few years later in the context of a notable feudal reform, the first edition of which was known as the Catalogus baronum and produced in 1150.55 Here, all the most important feudal lords were listed. These included those holding the rank of baron as well as quaternati, that is, those registered as owing military service to the king in the quaterniones curiae (court booklets) and thus under the firm control of royalty – assuming a public position of military obligation (in demanio and in servi- tio), even if their feudal agreement did not directly involve the king. At a later date, however, ‘privileges’ of this kind would only be bestowed by the king. These interventions were accompanied by others, such as the need for royal consent in the case of the marriages of daughters of feudal vassals. On the one hand, they demonstrate that we are only partially familiar with Norman legislation, and on the other, that such legislation set in motion important measures intended to keep the feudal world under control. Concurrently, the same thing was attempted by Barbarossa in the Kingdom of Italy, but with far less success. Similar powers were acquired by the other great Sicilian legislator Frederick II, and with much greater success than Roger.

5.3.2. The Liber Augustalis or Constitutions of Melfi (1231) Frederick II’s foundation of the University of Naples in 1224 not only resulted in a flow of students towards the capital of Campania rather than to Bologna and other competing places of learning (students of the Realm being formally obliged by Frederick to attend their own State university), but also increased knowledge of the law of Justinian and Bolognese methods of teaching. In fact, even before 1224, one particular jurist, who paradoxically achieved fame by constructing a series of annotations to the Lombarda, had worked towards the same end. This individual, known only as Carolus, originated from Tocco (close to Benevento) and had first studied in Piacenza before teaching there in the second half of the twelfth century. Finally, he returned south where he probably practised as a judge before teaching. The question is, where: perhaps in Benevento – by definition the major southern Lombard city – or perhaps at Salerno or Capua.

55 This, and also what follows, is taken from Enrico Cuozzo, ‘La feudalità del ‘Regnum’ nell’età di Ruggero II’ (1996).

territorial laws and various social categories 165

Whatever the place, his assembled annotations of Frank-Lombard law in the Lombarda were written with a ‘Bolognese’ perspective, that is, taking into consideration the law of Justinian. Thus, although occupying himself with the widely known and in the south much circulated Lombard law, Carolus in fact ended up publicizing the law of Rome. The environment was ripe for such developments. This much is clear in Frederick’s decision of 1231 to issue a volume of laws at Melfi which is at one point described as augustalis – improperly, if intended to refer to his being ‘August’ or ‘Emperor’, but perhaps so-called only because issued in the month of August. Either way, this book does not contain ‘universal’ norms (i.e. for the Empire) like those in the constitutio Ad decus, but only rules concerning the Kingdom of Sicily. All the same, while incorporating the Norman Assizes discussed above and other assizes issued by the same Frederick II at an earlier date (in 1220) at Capua, Frederick’s work largely consists of Romanist material circulated by the universities.56 Such a compendium must surely have been effected through the collaboration of the Capuan Peter of Vinea, a master of rhetoric and very fine ‘dictator’, who had studied at Bologna and endeared himself to Frederick, as he himself is allowed to recall in Dante’s Hell (where he is placed amongst those who have committed suicide): Io son colui che tenni ambo le chiavi del cor di Federigo, ‘I am he who kept both keys to Frederick’s hearth’. Moreover, it was perhaps precisely envy of his intimacy with the king that resulted in that lieti onor tornaro in tristi lutti, ‘the happy honours became sad mourn- ings’ (Hell XIII, lines 56, 64–69). Frederick’s Code, the Liber Augustalis, is divided into three books that are subdivided into different headings on individual pages, as in the Code of Justinian, and like that work deals first with the organization of the realm. The second book is largely concerned with trial procedures, while the third gathers together various other legal matters from the overall application of criminal law to private and feudal law. The original constitutions were 74, 49 and 81 per book, but Frederick, like Justinian, continued to issue ‘novels’, with the result that the books increased in size, and by the Angevin period – the time during which they were assembled in the form in which we see them today – they comprised respectively 107, 52 and 94 constitutions.

56 For a survey of the various sources, see Andrea Romano in his introduction to Vito La Mantia, Antiche consuetudini delle città di Sicilia (1993); for an overview of the constitutions, a fundamental introduction is the volume on Federico II legislatore del Regno di Sicilia nell’Europa del Duecento:…colendo iustitiam et iura condendo….(1997).

166 chapter five

Inspired as it is by the rhetoric of Peter of Vinea, the Liber Augustalis contains some famous passages. The king emerges as a figure with a keen sense of justice, which on the one hand led him to establish the uplifting concept of each subject’s equality before the law (aliquam discretionem haberi non volumus personarum sed aequalitatem), from Frank, Roman or Lombard law: II, 17, and on the other, was instrumental in establishing the prevalence of his own laws in the face of all those pre-existing and conflicting customs, which, being incompatible, were considered null and void. As for the ‘national’ laws which were widely disseminated throughout the Kingdom, these were recognized but only in a half-hearted manner – state constitutions being applied first, and only thereafter approved local customs, that is, those recognized by the officials of the Kingdom or by the municipal authorities.57 It is interesting to note that at this point in time, and in contrast to the time of Roger, national laws were recorded unequivocally, and with a considerable amount of serious qualifications: Roman law and Lombard law were, for example, recognized as ‘common laws’ of the Kingdom (iura communia). This particular disposition, contained in the constitutio known as Puritatem (in I, 62) after the initial word, has been variously interpreted, but often from a far too modern and teleological view-point. The king simply took note of the fact that there were areas within his vast territory where the two kinds of law were deeply rooted, with the result that according to the constitution and on the basis of qualitas liti- gantium (the state of the parties), it was necessary in the absence of state laws or local provisions to resort at one time to Roman law, and at another to that of the Lombards. Frederick’s lack of enthusiasm for the national law of the Franks, which was implicitly abrogated in terms of trial proceedings (II, 17), together with the pugna, or judicial duel (II, 32), and usucaption, or acquisitive prescription (III, 37), was abundantly clear. The problem was even more complicated than one might suppose in the face of the particular norm that was recalled. Let us take the example of a woman from Bari, governed by the mundium (Lombard protection) of her male relative. In matters governed by state constitutions she would clearly have had to turn to these, but she would have turned to Lombard

57 And vice versa, what some cities established (as for example in the case of a ‘harsh and iniquitous custom’ that had taken root as a result of prescriptions ‘in aliquibus regni nostri partibus’) when regal power was weak or absent: Francesco Calasso, La legislazione statutaria dell’Italia meridionale (1929) pp. 83–172 passim. Greek translations of the Constitutions must have been useful since they prevailed over conflicting laws.

territorial laws and various social categories 167

law in the case of matters associated with her own mundualdus (her husband, and so on). However if one had, for example, to discuss the validity of a will or a contract, reference would have been made to the only law which was really developed in such matters, that of Rome.58 There was also the factor of legal, due to the fact that there were still explicit ‘professions’ of law during this period. Even in the fourteenth century, the point was made that in Salerno, for instance, there were many who by custom lived according to Lombard law, and many others who lived according to the law of Rome.59 Thus, in the same place, family groups with diverse traditions lived side-by-side. This much should be obvious, if one takes into account that there was only political unification in the vast territory which made up the Kingdom of Sicily. Matters were complicated, however, by the ‘specialized’ nature of these interconnections, by the fact that they consisted of juridical matters requiring specific legislative responses. Just as for certain issues one had to refer to a particular tribunal (we could take, for example, the far- reaching responsibilities assumed by the episcopal court), so, for certain juridical affairs even inside the same court, as for example that of the citizens’ bàiulus, a local magistracy, one had to select the particular law to be applied. It was a complex phenomenology that not even the constitutions of Frederick fully elucidated – neither indeed were they obliged to do so. In this context, one should think in particular of feudal law. The Normans must have brought feudal Frankish law with them to the south, since it was unknown in the Byzantine and Lombard traditions. The first feudal compacts, including those arranged with Roger II, were in fact governed by this law, but subsequent agreements in favour of lords who had come from the north were subjected to the feudal law of Lombardy. In this way existing legislation was reinforced and, in consequence, led to the application of the Bolognese collection of feudal law – the Libri feudorum which we will discuss later. In feudal matters before the middle of the thirteenth century, the norms of common or general law were in fact Lombard, whilst Frank law evolved as a separate and special branch with limited application, but nevertheless of vital significance. According to

58 This is a very controversial matter; see Cortese, Il diritto, II, p. 332 fn. 63 (who distin- guishes in the sense indicated in the text); Caravale, Ordinamenti, p. 418 fn. 91 (for a Neapolitan gloss of the early fourteenth century the refers to ‘continuous use’); for Sicily, see the introduction to La Mantia, Antiche consuetudini. 59 ‘in una terra sunt multi, ut est Salerni, viventes iure longobardo et multi iure Romano ex consuetudine’: Cortese, Il diritto, II, p. 329 f. which should also be consulted for what follows.

168 chapter five the ius Francorum, enfeoffment was a fixed fact even if applying to a Roman or a Lombard, who in other matters turned to their own bodies of legislation. It could thus be the real, as opposed to the abstract case that a cleric, despite being schooled in ecclesiastical law and as such subjected to Roman-canon law, could have personal possessions that were governed by Lombard law and also feudal agreements governed by Frank law.60 On the other hand, Frederick maintained that he was sovereign by the will of God (and not the will of the pope), as well as being legislator on the basis of lex regia (proem.; I 31), and that it was through his agency that administrative reforms of the state were acomplished.61 These led him to engage rationales, men of reason to look after the accounts (rationes), as well as camerari, who were not only concerned with tax matters, but also with the administration of justice. As a result, an important central judicial office, that of the ‘Gran Giustiziere’, the great official of justice, was established. This corresponded to the bàiuli (balivi) in the provinces, and assumed responsibility for justice in the feudal and state lands and in state municipalities. The officials of this office worked together with local judges, operating (like the judges) under the supervision of a master of justice, or the capitano (captain). City officials were nominated by the king – as any emperor of Italy at the time of the communes would have wanted, and indeed often brought about – but they could also be chosen by the cities themselves. This was certainly what happened with the royal bàiulo (balivus), as it was usually called. In a few cities, however, it assumed a different and more traditional title, such as compalazzus at Naples, stratigotus at Messina and Salerno, pretor at Palermo (and, perhaps, also at Catania) and catapanus at Bari and elsewhere in Puglia. This body administered criminal law alongside the judges, controlling both commercial and artisanal activities, and assuming responsibility for effecting expropriations decided by the judges. It was not possible, however, for universitates, or communities to select their own officials independently. Any individual accepting such an offer would have been liable to capital punishment. If a city were to make such a selection, its punishment was desolatio perpetua (perpetual destruction) and the reduction of its inhabitants to slaves (angariii I, 50).

60 Cortese, Il diritto, II, p. 331 fn. 62, from a gloss added by Carolus de Tocco to the Lombarda. 61 The source for this is Burckhardt, but modern scholars’ admiration for Frederick II has been compromised by the notorious passion nurtured for the same individual by another (more disputed) ‘creator of the model state’, Adolf Hitler.

territorial laws and various social categories 169

It was no surprise that this early desire for a unified and bureaucratic state apparatus resulted in the control of every structure of military significance (III, 32 ff.) and the introduction of numerous pieces of regulation in what were for central government very delicate feudal issues. As a result, many norms in the constitutions – in line with Roger’s own stand against the diminutio, or reduction, of the rights of the state (III, 5) – were intended to control the inheritance and sale of feudal agreements (III, 25 ff.), and to regulate the extraordinary obligations of the vassals. In this case, enfeoffment should not be considered as an indication of the weakness of central government, but rather as a reflection of the government’s stable and firm foundation, as illustrated in other areas of government by the ‘bureaucracy’ of state officials. And there is more, because plans were afoot for a third constitutional force in the Kingdom. In 1234, the sovereign established that in order to bring complaints against state adminis- trators, special assemblies of the various ranks of society should be held twice a year: similar to meetings convened to gain assent for the collecta, a general tax of Norman origin. In effect, such meetings were ‘parliamentary’, and must have broadened the base of consent for the Swabian monarchy, whilst at the same time providing solid support. As one might imagine given its importance, Frederick’s text was widely circulated, so much so that it was translated into Greek to facilitate its dissemination in the traditionally Byzantine areas of the Kingdom. Later, and with good reason, from the period of the first printed editions of incunabula in the fifteenth century, Frederick’s Code went through multiple editions. Indeed, it remained as the basis of general legislation for the Kingdom even up to the Napoleonic era on the peninsula, and until 1819 in Sicily, although obviously only partially, having been modified over the course of the centuries. Frederick’s text also drew the attention of modern scholars, who from the nineteenth century onwards were instrumental in increasing the number of its editions.62 However, it has only recently war- ranted a critical technical analysis, that is, one based on an exhaustive study of the existing manuscript tradition. This has revealed that as far back as the oldest surviving manuscripts, the contents of the text were in fact the result of re-workings of the original script carried out in the Angevin period.63

62 See the detailed note in Cortese, Il diritto, II, p. 325 fn. 47. 63 See Die Konstitutionen Friedrichs II. von Hohenstaufen für sein Königreich Sizilien (1973), which in turn influenced the work Die Konstitutionen Friedrichs II. für das Königreich Sizilien (1996). On the latter, see Martin Bertram, ‘La nuova edizione delle costituzioni

170 chapter five

But more important than its durability, this text became a model for legislation throughout Europe. With this, and after many centuries, we witness once more the creation of a body of legislation based on the desire of a prince: in this case, one who clearly personally intervened in its compilation: de nostro gremio nova iura producimus (I, 38), ‘we are personally responsible for creating new laws’. A few years later, as we have already seen, the great corpus of Gregory IX was completed: a work which had been started in 1230, the same year as Frederick’s constitutions. However, within a few years this too stimulated a widespread practice of writing compilations of vast texts of law and customs, amongst which we should include the aforementioned citizens’ statutes.

5.4. ‘Subjective’ Particularisms: Different Types, or Categories, of Legislation

Such territorial norms did not by any means exhaust the explosion in the body of legislation that characterised the lively twelfth century, nor put a brake on the acceleration in the production of written legislation that we have witnessed around 1200 and during the decades immediately thereafter. Medieval society at this period was enriched by new issues that resulted in an urgent need for new norms which would not only cover pre-existing situations, but also be invested with much greater legislative flexibility. The creation of new legislation meant responding to the pressing needs of the time: defining relationships among new bodies, for example, between the Empire and the Communes; searching for new kinds of equilibrium with those of the past, for example, between the Papacy and the Episcopate; determining procedures for the resolution of conflicts, as for example, through decretals or judges acting as pontifical delegates; and identifying the centres of power. This was a general phenomenon that was impressive in terms of both its scale and the areas it covered. It not only gave rise to the ‘rules’ of knightly orders, chapters of canons, and mendicant orders, but on a completely different plain, paved the way for norms established by the nobility, such as the societies of the towers (società delle torri). It also provided opportunities for the foundation of consorterie – coalitions of siciliane di Federico II’ (1997). See also Romano’s reprint of the eighteenth-century edition Costitutiones Regni Siciliae, (1992), because it contains other material.

territorial laws and various social categories 171

families, jointly and severally liable within their own groups and extremely litigious with the outside world, and whose members were known as consortes – which, during the early thirteenth century, were gradually opposed by societies formed by the people who had their own rules and who were known as pedites, because they constituted the core of the communal infantries. But there were also legislative bodies of a professional nature, from those that were most ‘Romanized’ (that is, influenced by university doctrines), such as the collegia of the notaries and of the doctors – that is, of the universities – to those pertaining to the various categories or types of local artisans, or of the merchants (mercatores) of a particular city, who went under various names such as paratici (so-called because of the parades practised by their members) or arti (because of their skills), and who were unified within the category known as the corporations of guilds.64 This was a truly multifarious world, and not only in respect of communal Italy, but there is no comprehensive guide to it, and it is easy to understand why.65 There are, however, a number of pointers that help us to chart its evolution. First, that in the beginning these were laws that grew spontaneously, out of the real autonomy of the interested party or parties, and that in turn resulted in the creation of their own particular kind of legislation. This autonomy was, however, quickly reduced as, step by step, superior powers, territorial or otherwise, became organized during the course of the twelfth century. We should think in this context of the city-states, the kingdoms, and the Papacy, by now capable of absolute control – or at least aspiring to that role by being deeply entrenched and by establishing a universal presence. The result was that individual rules and regulations were increasingly subjected to the authority of the superior power controlling the category with which such laws were associated. For men of the Church, it is obvious that one needed to turn to the bishop in the matter of founding a local chapel or monastery, etc., or in the context of new associations such as confraternities, hospitals, etc. But the moment that any of these acquired

64 See (with many references to the works of Antonio Ivan Pini and Roberto Greci) Donata Degrassi, L’economia artigiana nell’Italia medievale (1996). A number of specific studies are also available, see for example Le corporazioni milanesi e Sant’Ambrogio nel Medioevo (1997), Arti e mestieri. Immagini e dettagli dal mondo del lavoro cittadino (1996), and Haec sunt statuta. Le corporazioni medievali nelle miniature Bolognesi (1999). 65 One can however get a overall idea by flicking through the Catalogo della raccolta di statuti, and the catalogue of the exhibition Gli statuti dei Comuni e delle corporazioni in Italia nei secoli XIII-XVI (1995).

172 chapter five a dimension that projected them beyond the limits of the diocese, the Papacy became involved and the body in question was then forced to seek approval from the pope in order to receive recognition or status within the body of the Church, as well as to avoid disciplinary actions, or, worse, suspicion of heterodoxy. Whether a rule or a statute was confirmed or not (and by whom) is an issue of considerable interest to the historian – as too are the circumstances surrounding the approbatio of local customs mentioned here in the context of the Kingdom of Sicily. Approval by a superior power helps us to establish when the issue of control over the project arose, and who at any one time could claim a greater position of power. Moreover, whether or not the power invested in the approval was subsequently more or less effective in practice, allows us to assess the competence of that power – its own effectiveness as a centre of power. If one looks, for example, at the circumstances surrounding the rules of the mendicant orders, at the urgency with which approval was sought even by the least bureaucratic and legalistic of saints, Saint Francis, one fully appreciates the effective role established by the Papacy of the time in the government of Christian institutions. But the same can be said for the communes, which around the year 1200 (some earlier and some later) began to ask to look at the statutes of local corporations with a view to bestowing (or not) their approval, whilst at the same time decreeing null and void the agreements through which coniurationes, or agreements, contrary to public order inside the city were formed. The government similarly tried to establish a monopoly over jurisdiction covering crime, giving itself a state-like image in ways that even today are still considered valid. At this juncture, two particular points should be made. First, canon law was already considered separately because it could not be regarded as exclusively ius clericorum – law for ecclesiastics – given that as well as the various categories of office and order within the Church, it also aspired to discipline the entire societas christiana. Second, laws pertaining to different categories were not in the strictest sense personal to them, or to do with a particular class, because they established rules of procedure that if the occasion arose could be used by anyone, as for example in the case of commercial contracts. It was also the case that such laws could extend into the realm of possessions over and above personal vicissitudes. The most obvious example is that of feudal vassals, subjected to particular rules from the moment they were created: rules that were intended to discipline them even if the enfeoffment changed and independently of their

territorial laws and various social categories 173

actual circumstances. We have already noted the fact that feudal arrangements based on ‘Frank’ and ‘Lombard’ law existed in parallel in the Kingdom of Sicily, but one could point, for example, to the case of a merchant or a member of the Church who possessed the title to an enfeoffment and as a result was not immune from the specific feudal discipline relative to that particular enfeoffment. Personal status and the status of things (that is, of res) intertwined and complicated issues on the ground, but such a state of affairs was not exclusive to the medieval period. Even today there are special rules for the military, for ecclesiastics, for businessmen, for university students and so on, which do not necessarily result in our perceiving society in terms of different classes or categories. During the medieval period, just as today, special rules had different justifications: political, social, religious, etc., and it cannot always be assumed that they were less motivated than those now in existence.

5.4.1. Tracing the Origins of Commercial and Maritime Law This is what merchants used to call lex mercatoria66 or mos mercatorum. Clearly, by the latter term which derived from learned sources, they wished to emphasise that this was a law that had originally been a custom, because it resulted from the everyday work of the markets. The term mercator, for its part, was applied to a variety of businessmen, or traders, on land or sea, from maritime ship-owners to money-changers and from those who issued loans to artisans, international merchants and the humblest of storekeepers. All things considered, the idea that mos mercatorum was originally a custom is probably correct. It was used for commercial contracts, daily transactions in mercantile practice, in both large and small matters concerning the community, including loans, exchange, sales, guarantees, etc., with many local variations, even in routine procedures, which were called commende or colleganze or colonnae. However, during this period, and in contrast with early medieval practice, it was the political powers, or as one might say, the state, that showed a keen interest in commercial transactions, in various ways and with various levels of intensity. Such interest

66 From which Francesco Galgano’s synthesis takes its title, Lex mercatoria. Storia del diritto commerciale (1993), noted by Umberto Santarelli, ‘Review’ (1997). The surveys of the history of commercial law gathered together in Guido Astuti, Tradizione Romanistica e civiltà giuridica europea (1984) are also important, as well as those in Del ius mercatorum al derecho mercantil (1997).

174 chapter five not only encouraged a sense of collective wellbeing, but was also a useful tool for expanding political influence. In the context of norms, much might be gained from a consideration of international treaties and internal laws and regulations dealing with tariffs. There were also advantages in specific interventions, such as taking part in decisions about weights and measures, or about the minting of money, the value of money. These in fact gave rise to several famous political disputes in England and France. But the interest of the leading political powers could also shape the actual configuration of the corporative world through, for example, effecting the unification of guilds, merging smaller into larger ones, even dissolving individual guilds in order to protect or to obtain a greater freedom of economic initiative. In fact, the most intense development of the European economy coincided with the period during which corporative restrictions were least rigid, thus allowing merchants to compete more effectively – and robustly. This was especially the case regarding the work conditions for employees, usually deprived of any rights in a period that witnessed a dramatic increase in the workforce as a result of the great migration from the countryside to the towns of small businessmen and, above all, of servants, or slaves in search of personal liberty and betterment. Paradoxically, the market itself limited exploitation of the workforce. Given the huge demand for workers in cities that were in the full throes of development, which involved a considerable amount of building work, it was the rivalry between the cities themselves, each anxious to obtain the necessary workforce, that resulted in a competition to offer the best contractual conditions as well as a decisive move to encourage urbanization. In fact, as the corporations (or arti, paratici, etc., according to the titles adopted in local parlance) gradually evolved, creating their own recognizable niches, at times even outside the cities, they established systems of protection for their own members quite separate from the political arena, and occasionally even with specific organizations, such as, for example, the people’s military societies. Legal protection was also offered through the statutes and deliberations that were updated and interpreted according to the prevailing circumstances. There were thus bodies of legislation associated with specific groups or categories, that not only ensured that the masters had control over their apprentices – who paid to be instructed – and other workers in the same sector, but also guaranteed the quality of the merchandise produced. In the matter of control of labour, it was easy to establish ways of limiting the employees’ wages, although account had to be taken of the competitive

territorial laws and various social categories 175

market between individual citizens. As for quality control, detailed regulations were issued which were intended not only to achieve the best kind of product, but also to preserve the reputation of the group itself. These regulations attract great interest now on account of their technical vocabulary,67 but they must also have been of interest to the individual cities, since it was through their merchants and their merchandise that the cities were represented to the outside world. The production of specific urban laws intended to control the world of production and work began here. As a result, both international treaties, with, for example, agreements covering commercial courts and the treatment of foreigners, or those concerning customs, and rules (both communal and corporative) governing internal matters, such as tariffs covering the import of goods, mercantile justice, the corporations, and so on, through which the most important cities also confirmed their character of ‘states’,68 able to check the development of the economic trend. Communal statutes, such as those for Venice, Genoa and Pisa, or compilations of customs, as at Amalfi, contain a number of norms that are significant in this context. They also show that commercial law was not a law governed solely by class, in the sense of being produced in the exclusive interests of its own merchants. Individual states, even those that most clearly represented mercantile interests in their day-to-day affairs, like Venice and Genoa, intervened to mediate, and through their own legislation protected not only the interests of their mercantile class, but also those of their wider citizenship, which at times could be at odds with those of the merchants – as is often the case today in the context of the interests of consumers. The desire for, and success of mediation were, however, far from predictable. At times, the interests of one particular category prevailed at a political level. At other times, the general interests of the entire city held sway. It was a question of wisdom and far-sightedness on the part of the individual governments, which only through excessive simplification (and thus wrongly), could be defined as business committees acting in the

67 They are thus at one and the same time sources, not only for legal history, but also for the history of language (and of the so-called special languages), as well as for the history of science and technology. 68 Tangheroni, Commercio (in this specific context pp. 150, 173 onwards), refers in general to the communes (p. 136 f.) as ‘authentic little states’, reflecting a similar opinion expressed by Renato Bordone (who referred to them as ‘all-encompassing political entities’): these should be added to the other historiographical testimonies gathered together in Ascheri, ‘Beyond the city-state’.

176 chapter five interest of the ‘middle class’ – a term that, apart from anything else, did not yet exist in the way we understand it today. Thus, in every situation, for every city or state, as with the constitutions of Frederick which also applied to artisans, we need to look at norms about commerce from a broad perspective. We need to take into consideration the fact that they also covered production of the merchandise itself, and thus before evalu- ating them, we should study their context carefully. For example, it is clear that an exponential rise in the tax on a particular product imported into a city could have an immediate effect on patterns of commerce and internal consumption. Moreover, allowing too much autonomy to an individual corporation that was not efficient could have an adverse effect on the city’s reputation in the face of certain international markets, as the quality of its manufactured products diminished. The authorities of the time were aware, moreand less perfectly at different times, that the wellbeing of their citizens depended on the fairs of Champagne or on commerce in the cities of Flanders, where export and import merchants from the Mediterranean area (Catalans and people from Provence, Piacenza, Asti, Siena – these last normally being described as ‘Lombards’) came into contact with producers of wool and other raw materials. Understood in its broadest sense, commercial law of the time was thus very important, and not just because it was one of the elements that helped to effect the incredible economic growth of those centuries, bringing a prosperity that was secure. In reality, and more importantly, commercial law was a particular and lasting creation of the late medieval period that has left a conspicuous mark on modern law. Roman law had not considered commercial law as a law in itself, with specialized application, for merchants trading in Roman territory and in the Mediterranean. However, already in antiquity, rules that were particularly appropriate for use between traders in several different countries were being formed all over this wide area, and some of these were to leave traces in Roman law. Both the so-called lex Rhodia de iactu, a collection of rules covering damage to goods as a result of a ship malfunctioning – originating in the island of Rhodes – and the foenus nauticum, a kind of loan that was specifically introduced for commercial transactions at sea, fall into this bracket. But another widespread juridical problem characteristic of mercantile environments even in antiquity was purchase a non domino that is, the acquisition of goods that had been stolen from their legitimate owner. According to both Roman and general German law, the original owner had the right to claim back such goods, in other words, to

territorial laws and various social categories 177

assert rightful ownership (technically, rei vindicatio). However, for move- able goods acquired in good faith, for example in a market, a custom was established whereby the bona fide buyer had to return the goods to the original owner only if the latter offered compensation in the form of the price paid for them. We could discuss the origins of such a typically mercantile legal exception ad infinitum, because it seems in fact to have already existed in Babylonian law. It re-appears thereafter in Visigoth law; in royal diplomas of Aragon during the twelfth century; in France during the second half of the twelfth century and so on – in other words, quite independently from the dissemination of Roman law. This is just one example of a much wider phenomenon, which has already been mentioned with regard to Amalfi, whose merchants were present in Byzantium even after the Norman Conquest. In this context, the economic recovery resulting from the activities of the maritime cities and the crusades around the time of the millennium was extremely important. In the West, this involved Provence and the Spanish peninsula, and in the East, the crusade ports, where during the course of the twelfth century Italian cities acquired extra-territorial areas in which their consuls exercised mercantile justice and general justice in respect of their own citizens. In 1081 Pisa gained imperial recognition of ancient consuetudines que habent de mari, whereby amongst other things, nobody could forbid them passage by sea. Such passage was a source of extraordinary wealth, in the pursuit of which the Pisans did not hesitate to reach agreements of free exchange even with the states of Maghreb. In the middle of the twelfth century, by which time they considered themselves to be the leaders of the world, it even resulted in their condemning a Christian cor- sair who had injured certain Saracens.69 The people of Genoa were no less powerful. Around the year 1100, they were already engaged in transactions with the banks whereby large sums of money were transferred from one place to another without material disbursement. Moreover, one of their consuls, Caffaro, a celebrated historical analyst of the city, was already in 1127 drawing up a treaty with count Berenguer III of Barcelona, which allowed both parties free access to the other’s ports. The Commune of Genoa, for its part, created a Liber Gazarie (a book detailing the affairs of the Gazaria, an office concerned with economic activities) with appropriate norms for the control of mercantile activities undertaken by their own subjects in the East, while the

69 For a telling description of this, see Tangheroni, Commercio.

178 chapter five oldest surviving contracts involving Genoa that were drawn up around the middle of the century by Iohannes Scriba, mention important commercial contacts even in the Middle East.70 We know that even before the year 1000, Venice had regular commercial contact with Saracen ports, so much so that Byzantium had to specifically forbid her from exporting wood to Islam. In order to protect her own interests, the ‘Queen of the Adriatic’ prohibited hasty warmongering and retaliations, but insisted on having crossbowmen on board in equal number to the crew, and whose relationship with individual ship- owners was quickly controlled by law (in 1229). Berenguer’s successor – the fourth of that name to become king of Aragon – was for his part already known in the middle of the twelfth century for regulating the corsa, that is the activity of corsairs, following a text drawn up by his predecessor that disposed that the lords of those ports where boats unloaded to sell booty should pay landing rights. Unlike the activity of pirates, that of the corsairs was not considered illegal, because they operated in the interests of their state by inflicting damage on the enemy. Moreover, the profits of their endeavours were divided between the members of the crew. Such laws herald a body of legislation that subsequently became very widespread (after gaining importance in a number of ports during the course of the thirteenth century, and particularly in Barcelona) without, however, our being able to firmly identify the individual responsible for drawing it up. This was the book entitled Llibre de Consolat de mar in Catalan, a condensed volume of shared Mediterranean maritime law,71 which also clearly had a great influence on the sea-port cities of Italy; notwithstanding that Italy had established its own legislation at an early date. Venice already enjoyed a free hand in developing her own commercial interests with Byzantium, thanks to a chrysobull of 1082, but proceeded to establish a virtual monopoly over commerce in the Eastern Empire when, in 1204, she supported the creation of the Latin Empire in Constantinople.72 But at an early date Genoa also had control over the fitting out of ships, for example, and over shoddy goods which, as

70 Ibid., Commercio, p. 382. 71 This is examined in detail by Aquilino Iglesia Ferreirós, ‘La formación de los libros de Consulado de mar’, (1997). 72 And during the following years Venice elaborated a number of texts dealing with maritime law (the measurements of boats, forbidding sale to foreigners, damage to goods in transit, discipline on board, risk, etc): in all, 55 chapters that were gathered together in 1255 imitating Byzantine law; this text disappeared, however, when the statutes were published at the end of the fifteenth century (1477).

territorial laws and various social categories 179

if in a free market, mariners were in the habit of disposing of in the ports where they docked. Likewise, Savona drew up legislation controlling the activities of scribes who assumed the position of notaries when on board, and whose acts were then quickly and widely recognized as being as reliable, since invested with ‘public faith’, as documents that were well and truly notarized. These are just a few indicators of the complexity of the rules and regulations inspired by mercantile activities that were quickly and widely copied, and that took shape at the same time as developments in merchants’ negotiating practices. There is another point that should not be neglected in the face of all these details. As well as the creation of a new kind of law, merchants were also creating a new kind of reasoning which, together with that developed inside the universities, was a fundamental factor of the late medieval period and subsequently, of early modern society.73 We could point, for example, to the development of great maritime undertakings – at times financed by dozens of depositors. We could also point to the transfer of huge amounts of capital from one market to another that used a different currency, which took place through ‘letters of exchange’ (from which our bills of exchange derive) that allowed for virtual monetary transactions without the need to transport actual coins (paper money being an innovation of the modern age). We could further point to those societies with international dimensions, with their corol- lary of procurators, factors, scribes and so on, with all their delicate problems of agency. Amongst other things, these involved extremely complex appraisals of the risks that individual financial operations might pose, establishing a realistic assessment of the project and the particular significance of individual cases. Reasoning about appropriate courses of action and the complete secu- larity of such processes, combined with the inevitable recognition of individual merits and of the experimental nature of the experience itself, no doubt fuelled considerable scepticism about conventional wisdoms imposed from on high and about hierarchical social traditions. The mercantile society, hugely competitive, egalitarian, and consisting of a ‘hori- zontal’, meritocratic social group, confronted practical problems of time and space in operations with an inevitable geographic dimension, and amidst forecasts of events completely unknown to traditional agricultural

73 Amongst other things, recent historiography tends to re-adjust Max Weber’s thesis, according to which it was the Protestant ethics of the sixteenth century that favoured the development of capitalism.

180 chapter five society. This had major consequences, and not only for commerce and commercial law. The merchants operating within important financial environments – as the Italians were for the most part during the late medieval period – tended to face reality in a positive way, with a view to changing it and conquering problems. As a result, new contractual schemes emerged that were modified and brought up to date, elaborated with a degree of adapt- ability unknown in traditional law. At times they were shorn of form and rested solely on the good faith of the parties, with huge sums of money sometimes being advanced based only on the character of the individuals involved (intuitus personae). But there was also a new kind of politics, one that typically evolved within self-governing cities, which were by now dispersed all over Europe. In Italy, internal politics went one step further: to the point where cities proclaimed themselves res publicae, able to form alliances, to involve themselves in diplomacy, and to broker peace or wage war on the basis of rational evaluations similar to those demanded by great commercial undertakings. When contrasted with traditional nobilities, ecclesiastical hierarchies and the slow rhythms of agricultural life, the world must not only have appeared to be, but actually was disintegrating. In their role as protagonists of epochal change, the very same merchants must also have been experiencing a form of psycho-cultural disassociation. The break-up or crisis of the previous system, attested by the various heretical movements that were ever more prevalent around 1200 and by thevarious orthodox movements of knights and of friars, stemmed not only from the ‘institutional’ choice of the Church to live according to the law rather than according to faith and charity, but also from these very rapid cultural and social-economic changes. The merchant was a person who could make vast profits in a short space of time through clever speculation on the fortunes of individual currencies and merchandise in different markets. In sum, he could demonstrate that he was an expert in the field of commerce, but when it came to justifying his moral position in the eyes of God and the confessor who would remind him of the need to square his accounts in terms of sins committed, insofar as he received such money unlawfully (male ablata), he was in an extremely weak position. The sin of usury, as all interest over and above capital was considered, was constantly lying in wait in the world of business. As a result, the merchant suffered a deep sense of guilt, as well as great anxiety, which he attempted to assuage through a testamentary practice – stronger in this period than in any other before – that reserved a large part of the individual’s wealth for

territorial laws and various social categories 181

bequests, through donations for pious works, or in the language of the time, legatum ad pias causas. Foundations of hospitals, like the famous ‘Ceppo’ of Francis of Marcus Datini at Prato;74 endowments of chapels; and unspecified legacies to the poor administered by the bishop became usual practice, precisely in order to pay off debts incurred by sin, and to resolve ‘cases of conscience’. It was to this end that mendicant orders imposed their presence in the cities, considered by them to be by definition centres of sin. The orthodox Church for its part became accustomed to this form of accountability, adding finishing touches to it through the practice of indulgences. These were associated with the latest theories concerning Purgatory, one of the many learned concepts created by theologians during the period of their supremacy in the thirteenth century. How destructive and potentially dangerous mercantile practice was seen to be – in freeing the individual from traditional constraints and ecclesiastic hegemony, based on the non-monetary schemes of agricultural life controlled by the church – is illustrated by the theological debates of the time concerning the general legality of profit and the pursuit of money.75 These were discussions that were bound to have consequences in the juridical field. It was, for example, evident that certain monies could be acquired by one individual to the disadvantage, even ruin of another, who was a brother in Christ. So long as this involved infi- dels like the Saracens – from whom slaves were purchased, thus offering the opportunity for the noble and Christian gesture of a manumissio, a technical term for the liberation of slaves – or else Jews, by tradition the execrable murderers of Christ, profit was not deemed a problem. But if the individual concerned was Christian, this created insurmountable problems in theological terms and in the context of religion generally. For example, the Gospel’s maxim ‘Offer money without thought of gain’ was translated as mutuum date nihil inde sperantes (Luke VI, 35). That mutuum was understood not as alms or charity, but in a juridical sense, as, technically, a loan, with the consequence that in order to be lawful,

74 Today this is an important international centre for the history of economics that pays homage to the fourteenth-century merchant. 75 That this creates problems even now within the Catholic world is clear even in matters of little import. For example, cardinal Biffi was forced to note that speaking of money in order to finance the activities of the Church was not unseemly, because only the wealthy ‘can enjoy the privilege of speaking about ‘business affairs’ as opposed to ‘filthy lucre’’; the point has also been made that even Jesus and his apostles were running a financial administration, a cashier being included in their ranks (see ‘Corriere della Sera’, 15.9.1999).

182 chapter five entrusting a Christian brother with money had to be recognized as a free transaction, without compensation. What, then of the sum of money involved in a sale? How far could this be seen as acceptable, as opposed to a transaction whereby one individual profited from the needs of another (the purchaser)?76 There was thus room for abundant and constantly honed casuistry by theologians and moralists, who began to draw up works directed at confessors for their daily use (summae confessorum). But the problem was also in the strictest sense juridical. A Papacy engaged in directing worldly affairs had to provide an answer to the problem. This came about quickly, with passages inserted into and becoming part of canon law. The previously mentioned Lateran Council II (1139) and Lateran Council III (1179, and in particular canon 25) thundered loudly against usury, which was deemed to be on a level with avarice (avaritia). Those found guilty of usury were to be allowed neither access to the altar to take communion, nor a Christian burial. During this period, the theological school of Chartres reacted against the indiscriminate condemnation of involvement in business affairs, defending and praising homo artifex (craftsmen) and artes mechanicae (technical skills), even though these, by being associated with money, would naturally have been considered worthless. The work itself, though, could be deemed a source of wealth. Around the year 1200, canonists in Italy and theologians in Paris began to make distinctions concerning this issue, putting forward a number of hypotheses whereby profit might be regarded as lawful in terms of being compensation for the work and for the risk undertaken in the associated investment. On the other hand, the condemnation of loans with interest remained, and was confirmed in the Gregorian decretals, where an entire section was devoted to the repression of usury, threatening excommunication for its repeated practice, and including a tirade against those instances when the price agreed was higher than the value of the object sold (X. 5.19.19). Secular law, however, beginning with the city statutes, followed another path, and began to provide for ‘ceilings’ on interest claimed on loans,

76 For the legal debate see Umberto Santarelli, Mercanti e società tra mercanti (1998); for the theological discussion, see Amleto Spicciani, Capitale e interesse tra mercatura e povertà nei teologi e canonisti dei secoli XIII-XV ; economic historiography has been studied by Giacomo Todeschini, Il prezzo della salvezza. Lessici medievali del pensiero economico (1994), which also considers Jewish thinking and practice; the extensive bibliography on these individual matters in all the above works is worth consulting.

territorial laws and various social categories 183

which in practice could reach 33%.77 The Church itself had to compensate for the tax collectors – usually Italian bankers – who throughout Europe were proceeding to collect taxes and tributes owed to Rome by ecclesiastical bodies. Local ecclesiastics, for the most diverse reasons, were at one time in a position to earn money through loans secured through systems of mortgaging,78 and at another, had to turn instead to members of the lay community for loans. In such cases, and as a result of indebtedness, many treasures which had been jealously guarded for centuries came onto the market. This was yet another contradictory aspect of the Christian world that rapidly became an object of fierce derision and criticism by heretics, especially after the middle of the twelfth century. But the rules were there, formally, so that when necessary they could be invoked by lay princes, who were also great beneficiaries of loans with interest, as a way of escap- ing their own obligations. The risk that the debt would not be recognized because it was usurious was always present. Thus, in practice, a series of precautionary measures were put in place to avoid the incorrect use of usury. It was recommended, for example, that a higher debt than that actually agreed on the loan should be declared. Another ruse was the so- called pactum commissorium, or ‘committed agreement’, whereby the total amount desired was guaranteed against restitution, including interest, of a property that was apparently sold to the creditor who, if dissatis- fied with the promised sum, recovered his losses from the ceded property. Recourse was also made to complicated co-ordinations, for example, through the triple contract. A cloud of suspicion continued to hover over mercantile practices even in learned lay environments, which were more influenced by ‘courtly’ culture, even though immersed in urban realities. In this context, one could point to the Gloss by Accursius – very important due to its wide dissemination at the end of the period under consideration – which, in treating the six requirements of a noble, had no reservations in beginning, ‘first, he should not be a merchant’ (‘primo ut miles non sit negotiator’).79 How ever it was far from clear how the situation was seen to be. In the same Lateran Council III mentioned above, one canon (number 22) extended

77 For a Venetian record of this, dating to 1121, see Tangheroni, Commercio, p. 346. 78 See in particular Cinzio Violante, ‘Les prêts sur gages fonciers dans la vie économique et sociale de Milan au XIe siècle’ (1962). 79 Gl. Milites at Dig. 6.6.45.

184 chapter five the favour of the treguae Dei, or God’s truce, to merchants, adding that nobody should impose new tolls without the consent of the king or of princes.80 Mercantile activities continued regardless, flying in the face of all the doubts raised, and despite clamorous denunciations of the riches so acquired – before 1210, above all in the voice of Saint Francis, which had universal resonance. Established practices in the ecclesiastic field continued in the same manner. The mercantile and ecclesiastical fields represented two deeply-entrenched areas of activity in the Europe of that time, and they tended to take opposing positions. But there was also a strong converging impulse. Without the advanced technical expertise of the Italian bankers, the Papacy would never have become the power it was. Still, contradictions between the two created problems were in a very real sense juridical. Commercial activities, and their associated laws, were naturally the province of particular courts, as well as of a particular class: the merchants, both in the homeland and abroad. Consular courts (which give us the term ‘consulate’ in maritime law) in the ports and in the markets, as well as corporation courts at home, became institutionalized in an attempt to preserve self-government over commercial matters in each particular category, and to force ‘non-merchants’ to turn to the same courts when seeking justice: but whether their authority was more or less exclusive depended in large part on the type of relationship established with the local political power. Consular islands in the ‘colonialist’ areas of the Middle East enjoyed particular privileges by comparison with local political powers, but this was not always the case back home. In Italy, the mercantile tribunals had to compete both with the ecclesiastic courts (which tended to claim jurisdiction over every issue that posed a danger to the soul, and thus over contracts agreed on oath or containing elements of usury) and with the communal courts (that recognized mercantile statutes but had a general competence and could not as a result deny justice to the citizens). A merchant was obliged by oath and by corporate solidarity to apply to his own court, but the normal citizen might prefer regular justice that was for all, first through the consuls and then through the podestà.

80 There is a useful discussion of this in André Vauchez, ‘‘Homo mercator vix aut numquam potest Deo placere’: quelques réflexions sur l’attitude des milieux ecclésias- tiques face aux nouvelles formes de l’activité économique au XIIe et au début du XIIIe siècle’, see especially p. 213.

territorial laws and various social categories 185

5.4.2. The Systemization of Feudal Law The other category of law that, along with that of the merchants, was very strongly represented during this period, was that of the feudal lords – the early formation of which has already been considered, including the first fundamental law in this respect, that of Conrad II. There was a follow-up to this law when regulations concerning cases of fault (culpa) on the part of a vassal that allowed for sequestration of the benefice were re-worked, the silence that had existed on this decisive point having clearly given rise to a number of problems. There seems little doubt that this happened in the subsequent constitution in cases of lost enfeoffment (de causis feudi amittendi). But it is not clear however whether this occurred during the middle of the eleventh century, or in the following century, and perhaps in fact in 1196.81 Conrad’s legislative precedent could not remain isolated, so long as there was a desire to govern the feudal apparatus, and a determination not to abandon it to private contracts. In the course of the twelfth century, the period of legislative renewal, there were a number of further important interventions, which sought to avoid enfeoffment slipping out of the control of the granting lord through successive sales. Such sales had not been forbidden by Conrad and were in practice taking root through laws of inheritance sanctioned by him. In 1136 Lothar already intervened from Roncaglia to forbid the alienation of a benefice without the assent of the grantor, because such moves diminished the military service that the benefice was able to provide, and that was indeed in most cases the ‘cause’ of the concession. Frederick I was obliged to return to this question in 1158,82 in order to condemn the practice of loaning or selling or conceding on the basis of a livellum possessions that had been enfeoffed. Frederick’s aim was also to provide for the return of the enfeoffment to the grantor, through consideration of a large number of hypothetical instances of non-observance of those obligations on the part of the vassal holding the concession which were inherent to such transactions. Another important norm introduced at that time regarded the extent to which the enfeoffment could be divided. As the law was by now reconciled to, if the enfeoffment was hereditary it had to be, in line with ordinary laws about inheritance, divided equally between the sons, or at least shared

81 See edition in MGH Leges II, p. 43: from Jacobus Ardizzone’s thirteenth-century Summa feudorum. 82 The two laws in question are published in Vaccari, Leggi, pp. 70–83.

186 chapter five between them in an acceptable way. As a result, sons became consortes, or partners, insofar as they were joint owners of capital (sors). According to the emperor (§6 of the law), this should not happen in the case of a dukedom, a marquisate or the domain of a count, which up until then had sometimes been divided, on the basis that hereditary possessions should be treated in the same way as others. Now, however, such possessions were perceived as being of important institutional significance for the Kingdom, and, insofar as they were public territory they were considered in terms of territorial government, rather than as patrimonial wealth. For feudal justice it was established (§9) that conflict between two vassals over an enfeoffment should be resolved by the lord of the property, but if the controversy involved the lord and the vassal a court of equals was then necessary, and this was to be convened by the lord. However, feudal oaths created a special solidarity between the parties, from which the emperor was excluded. As a result he devised a further ruling (§10) stating that in each oath of loyalty the obedience was to be reserved to him. In this way the public and political order of the Empire was protected and enfeoffment did not constitute an element whereby the State could be disbanded. In practice, things worked out differently because feudal lords were in one way or another obliged to take part in subversive communal agreements (coniurationes), and to take up arms in the defence of the cities. A new class or rank thus emerged: the milites, or knights. This group formed the core of the communal army, albeit preserving a clear memory of the privileges associated with feudal concessions conferred on them by the Empire, and on occasion claiming recognition of these. This gave rise to a fundamental ambiguity on the part of the nobility of the time. Those who moved to cities and shared the fortunes of the communes retained various rights, both lordly and feudal, in the countryside, but in conflicts of loyalty between the commune and the Emperor, the former almost always prevailed, despite changes of loyalty even within the same family. Such an outcome was in fact inevitable, given that the nobility, who from the early thirteenth century had begun to consider themselves Guelphs, took a clear position in the great conflict between the marshalled forces of the Empire and Papacy. By contrast, those of a Ghibelline disposition kept a tenacious grip on their feudal rights, and were ready to ensure that such titles were confirmed when, every time the emperor visited Italy, thoughts turned once again to a superior power capable of putting a brake on the independence of the cities and the

territorial laws and various social categories 187

nobility, and capable also of guaranteeing the diverse privileges and particularities of such benefices. The noble knight, even if urbanized and interested in commercial and maritime projects that took place in the city, was also often the proprietor and possessor of a feudal enfeoffment of castles in the countryside and in the mountains. But what real power did he derive from such possessions? Therein lies the problem of matters covered by feudal laws, that neither Conrad II nor his successors were able to confront, either explicitly or in general, because in so doing they ran the risk of upsetting the expectations and demands (or ‘customs’) of the lords. Often the feudal concession, the diploma by which recognition was given of an enfeoffment to a fidelis, or ‘loyal servant’, served as a useful tool, particularly to Bar barossa, in drawing into the fold a powerful individual who had already established an informal authority, albeit in the strictest sense illegal, over a district which contained a number of castles. Through the diploma the lord became a noble of indisputable prestige and in assuming such status in perpetuity was able to hand the title down by way of inheritance. The Emperor for his part could command that individual’s loyalty and at the same time presume also to have drawn the territory in question under the iurisdictio of the Empire. This, then, was the message that soon began to spread, the quintessen- tial accompaniment to the Romanist culture during the twelfth century: the emperor was the direct and indirect source of all power – according to Ghibelline ideology, delegated directly by God. As a result, cities and lords and anyone who had power over men and things, had to be delegated to such tasks by the emperor. Similarly, it was imperative that anyone in any part of the territory should be able to turn to the emperor to obtain justice. How, otherwise, could he be the source of all power, vicar of God on earth (except for those spiritual matters that were the preserve of the Church, which was itself placed under his benevolent protection)? Enfeoffed territories thus acquired a supreme dominus – the emperor – who was however purely a formal lord. There was also an actual or effective lord – the grantee of the conceded privileges, who was thus seen as a delegate authorized by the emperor, deputed to exercise powers of government on the ground. Such powers were limited due to respect owed to the emperor, but nevertheless included a number of services, primarily military, that were to apply on those occasions when the emperor presented himself in Italy to claim his rights. The same services assumed other dimensions in the face of local populations protected by

188 chapter five the enfeoffment. Here also, therefore, we witness the development, albeit rudimentary, of a communal organization that in various ways contested the rights claimed by lords, and that was able to obtain for itself a charter of freedoms that signalled a limit to seigniorial authority In sum, feudal power was neither predetermined, nor predeterminable, precisely because local situations were very different, giving rise to diverse local customs applying to both people and things. Individual lords were without doubt entitled to take advantage of the various situations, being formally engaged by the concession itself and, so to speak, morally responsible by having publicly organized the territory, defending and adminis- trating it. Feudal status became the source of a right to collect certain taxes, in the same way that the allodial proprietor assumed certain rights over the peasant or land worker who worked his land, as well as over any other individual who took on that role, who thus immediately appeared to occupy a position similar to that of a feudatory, or feudal vassal. The civil lawyers, those jurists who studied Roman law, had already recognized in the twelfth century that there was a strong analogy between the situation of the feudal vassal and the usufructuary, in that they both held the title, that is, the right to use and draw profit from the benefice (uti frui). They could make use of, and benefit from, the thing enfeoffed to the exclusion of all others, and with the possibility both of making it an object to pass down through inheritance, and of transferring the title, as was indeed the case with usufruct, but always on the basis that such conditions had been requested by the emperor, or that he wished them to respect: for example, in the case of a sale or a donation, or the creation of a dowry, or in order to guarantee a loan. In communal Italy, and above all in Northern Italy, the extraordinary dissemination of this custom – adopted by the communes themselves in order to co-opt powerful individuals in the surrounding territories – also served to create a link between minor members of the nobility, resulting in the decline of its political and military authority, and its configuration as a law that was essentially to do with patrimony, a semi-proprietorial provision, given its normal inviolability and transferability. Being so important and so widespread, this was also an institution that the jurists could not ignore. The first beginnings of future Libri (or consuetudines) feudorum was thus created in the middle of the twelfth century. The history of the compilation of this body of legislation is instructive because it shows how the universities established a position of supremacy within the contemporary cultural environment.

territorial laws and various social categories 189

These Libri – a collection of feudal laws in which norms with a legislative origin, such as the imperial laws mentioned here, co-existed with customary law, elaborated and drawn up locally – appear to have originated in two letters that a judge of the feudal court in Milan (Obertus de Orto, a public figure well known in Milan as a consul) wrote between 1154 and 1158 to his son Anselmus, a student at Bologna, who complained about his masters’ lack of interest in feudal law. It is possible that the letters were only imaginary contrivance, constituting a rhetorical pretext for drawing up the collection.83 Be that as it may, and as was customary in such cases, there can be little doubt that the letters were revised through the integrations of other judges84 and consuls (like Gerardus Cagapesto). Using various manuscripts a first critical edition of the Libri, although with problematic in some aspects, was established by Karl Lehmann at the end of the nineteenth century.85 Given its origin, this collection is called antiqua (or obertina). When subsequently integrated with the constitutions of Frederick, some time before the end of the twelfth century, it became known as the ardizzoniana edition,86 already noted by the glossator Pillius, the civil lawyer who invested the feudal collection with new gravitas. This edition assumed its definitive form in the early thirteenth century, when it was once again revised by the universities and added to Justinian’s Novels as an integral part of imperial law. According to the characteristically loquacious Odofredus, it was Ugolinus de Presbiteri who proposed to the university environment at Bologna that they should accept these Libri as a decima collatio, to be inserted after the nine sections into which the Novels had already been divided. As always, it took some time for the work to be scrutinized by colleagues, but a definitive text was established with the help of copyists, as was happening contem- poraneously with the other legal texts that were being used for teaching and by the glossators. This version then prevailed amongst the many that were in circulation, because it was more complete, including as it did various passages by Frederick II. It also gained recognition not only through university use, but also because it was the subject of Accursius’s Gloss. Once established in this way, the edition of the Libri feudorum found in

83 In this way Obertus removed several thorns from his side; more seriously, though, Milan was moving towards a written version of its own ‘customs’, which included a rubric De feudis, that derived in part from Obertus: see Liber consuetudinum. 84 Like, for example, Ugo Gambolado’s De beneficiis. This was the individual who may have been a consul at Pavia in 1112: Cortese, Il diritto, II, p. 163 fn. 42. 85 Gérard Giordanengo, ‘Les feudistes (XIIe-XVe s.)’ (1992). 86 As it happens, incorrectly, since Jacobus Ardizzone was a thirteenth-century jurist.

190 chapter five many fourteenth-century manuscripts as well as in later printed versions became known as the accursian version.87 In the meantime, on a local level, many customs and practices regarding a whole range of matters were taking shape. It is sufficient to draw attention to the Pisan Constitutum or to the Milanese customs, which we have already mentioned, and which dealt with a number of feudal matters. Local law was applied, for example, in an attempt to modify or control the development of certain kinds of contract. There was not one feudal law, but several feudal laws that depended on local developments, precisely because of the absence of those uniform requirements that international commerce above all imposed upon commercial law. Feudal law was also widely circulated and acquired great importance in the Kingdom of Sicily, where it was imported by the Normans. In the Kingdom of Sicily, the feudal system did indeed present characteristics of Frank feudalism – very different from the patrimonial system associated with the Lombards that we have already considered. The former retained a military component and tended to avoid partitioning, so as to emphasise its importance in the public organization of the Kingdom. Once again, it was no coincidence that the feudal system was very much in evidence during the time of the first legislators of the Kingdom: Roger and his successors, and later Frederick II (as we have already seen when considering their collections of legislation). Royal power could not but consider the feudal system in terms of its being an instrument of government of the first order; dangerous, and so warranting close attention. Because the recovery of an enfeoffment by the grantor, in a technical sense, its ‘devolu- tion’, was always fraught with problems, every shift or transfer of a feudal title (at least when it was situated in a strategically delicate territorial area) needed to be studied carefully, so as to avoid its acquisition by an undesirable party. For this reason, a sale or a hereditary succession or a concession as a dowry, or even the marriage of a widow required extreme vigilance, when it concerned not only economically significant enfeoffments, but also those that had political dimensions. For example, the issue of succession of brothers or of their children monopolised the

87 The manuscripts have been considered by Peter Weimar, ‘Die Handschriften des ‘Liber feudorum’ und seiner Glossen’ (1990); another reconstruction that is still generally useful concerning the origins of the collection can be found in Ernst A. Laspeyres, Über die Entstehung und älteste Bearbeitung der Libri Feudorum (1830); one edition which also contains the ancient version is Karl Lehmann, Consuetudines feudorum (Libri feudorum, jus feudale Langobardorum) (1971). For recent considerations, see Cortese, Il diritto, II, pp. 160–166, and Reynolds, Fiefs, pp. 483–486.

territorial laws and various social categories 191

attention of the legislators for a considerable length of time. In fact, different solutions were reached on the island and on the mainland (both then and in the following centuries), because legislators found themselves confronting interlocutors in the different areas with very different powers of resistance.88

88 However, the first deviations between Sicilian and ‘Neapolitan’ regulations date to the same period: Gérard Delille, Famiglia e proprietà nel Regno di Napoli (1988).

CHAPTER SIX

PROTAGONISTS OF THEORY AND PRACTICE

In the preceding chapters we have seen how in the course of the twelfth century and the first decades of the thirteenth century, a virtually definitive form was given to texts emerging in the wake of the foundation of university teaching, and to the first collections of local, ‘international’, territorial and special categories of law. The latter consisted of provisions that, in contrast to university texts, would soon be reworked as a direct result of the spread of the university culture and of the notarial activity that was so closely bound up with learned law. In this chapter, we will examine more closely the ways in which that remarkable phenomenon of university teaching took shape. The aim is to discover what kind of ideas took root there, and to see how university ‘texts’ functioned in the practice of law. More specifically, we will consider how such texts became in effect the ‘daily bread’ of whole categories of officials involved with law and legislation, from notaries to judges and legislators. We will therefore have to move between two poles. The first is the theory of law – the autonomous and specialist reflection whereby substance was given to the increasing studies at university level. This translated into the works of the ‘academic’ or teaching jurists which were refined and exclusive in terms of their use, and which have been for some time the subject of very detailed historiographical studies by European scholars.1 The second is the obscure, multi-dimensional legal material itself which resulted from the very many acts associated with the practice of law. This is dispersed amongst numerous diverse records variously linked with

1 There is a general summary of these in Lange, Römisches Recht; in Italian, the best introductory material is in Cortese, Il diritto, II, up to p. 245, that is, over half of the book – demonstrating the extent of work that has been carried out in the wake of the great nineteenth-century survey by Savigny, Geschichte. The canonists have been subjected to even greater critical analysis by Stephan Kuttner, Repertorium der Kanonistik (1140–1234). Prodomus corporis glossarum (1937), and many others up to and including Gérard Fransen, Canones et Quaestiones. Evolution des doctrines et système du droit canonique (2002). Even though precise references to individual authors and their studies or the various editions and so on are not offered here, the reader is advised to undertake a general survey of the above works.

194 chapter six and/or dependent on the theoretical output of the universities: this is a field that is less studied and also less well-organized for the purpose of study. When considering the work of the university scholars, one must remember that God was always present in such endeavours. In the early thirteenth century, when confronting a difficult passage deriving from Justinian, Iacobus Baldovinus, a famous glossator already mentioned in the context of the statutes of Genoa, placed both laws – human and divine – on an altar, and remained kneeling in front of them throughout the night, in the hope of receiving God’s enlightenment.2 The cultural awakening of the twelfth century, and in particular that experienced by the universities, depended above all on the construct of the ‘Hand of God’, even in terms of the law. Indeed, the essential character of the culture and its achievements, at the same time both strongly elitist and ‘international’, as we might say today, or ‘universal’, so as to better satisfy the respective claims of the Church and the Empire, were seen as dependent on God’s intervention. As with theology, Latin was the official language of the law. Indeed, Latin linked worlds that were far apart through a lexicon that rapidly became uniform, along with the methods of reasoning that were adopted. Such uniformity of vocabulary allowed for rapid intervention, secure in the expectation of being understood, with works that were circulated according to the extent to which they met the needs of the particular argument. Let us look a little more closely at the type of works being produced by ‘academic’ jurists – bearing in mind, mutatis mutandis, that we are dealing with ‘models’ that were also regularly adopted in other university disciplines of the time.

6.1. The Typology of the Glossators’ Works3

We have already mentioned that the rediscovery of the Digest greatly influenced university teaching. At an earlier date, however, around the

2 In the summa Cum essem Mantue; in Pillius’s incomplete Summa to the Tres libri Cum essem Bononiae, Placentinus is said instead to have appeared to him in a dream shortly after his arrival in Modena when still a young man, and some thirty years before his death; ed. Azonis Summa Codicis (1557). 3 For a comprehensive survey see Peter Weimar, ‘Die legistische Literatur der Glossa torenzeit’ (1973), and for a recent review of the same material, see Andrea Errera, ‘Forme letterarie e metodologie didattiche nella scuola Bolognese dei glossatori civilisti: tra evoluzione ed innovazione’ (1999).

protagonists of theory and practice 195

beginning of the twelfth century, ‘simpler’ texts such as the Institutes and the Code were being ‘read’. It was only later that attention turned (above all) to the Digestum Vetus (albeit always to the Code as well), while little instruction was given on the Digestum Inforziatum, the Novum, the Tres libri and the Novels. There was waning interest in the Institutes, which were finally reserved for introductory lessons and for the least experienced masters. The canonists, by contrast, were not influenced by any such distinctions, concentrating as they initially did on one single text: the Decretum of Gratian. The literary genre from which the name of that school derived is thus immediately apparent.

6.1.1. The Annotations The lectura was fundamental. The master read the text – as is often por- trayed in surviving sepulchral monuments to professors – and initially ‘translated’ (lectio literae) the specialist vocabulary from the sources into a more comprehensible Latin: in other words, the scholarly Latin that was widely dispersed throughout Europe, thanks once again to the omnipresent ecclesiastical networks. The next stage involved comparing the chosen text with other similar examples, in order to point out analogies and contradictions. ‘Parallel’ texts were then cited, in an attempt to establish a concordance. The ultimate aim was that there should be no obviously irreconcilable contradictions, since there was a general understanding that a good interpreter should always be able to reconcile the apparent contradictions of different texts. This method had been suggested by Justinian, who claimed that his own work was perfect, and only allowed citations of ‘parallel’ texts in the margins. The annotations, known as ‘glosses’, were sometimes very brief – merely referring to another legal passage. But they were often very apposite, indicating a deep understanding of the texts, and consideration of the whole complex legislative corpus. The allegationes clearly revealed the contraria, or contradictory texts, but at the same time they helped to provide a solution: diversa sunt, non adversa (‘not in contradiction with each other, despite the differences’). This was the same position reached by way of complex criteria, that prompted Gratian to gather together textual matter that differed both in origin and content. It was in effect an orderly way of rationalizing diverse arguments. However, in order to achieve this, one parallel reference alone was clearly no longer sufficient. One also had to engage with the discrep- ancies, and indicate possible ways by which they could be resolved. As a result, considerations of Justinian and Gratian’s texts gave rise to a

196 chapter six number of very different annotations. Before going into detail, however, we need to digress for a moment, and say something about the methods generally adopted by medieval jurists, when making cross-references or citations from the time of the glossators onwards. As we have seen, in discussion of the critical editions of the two bodies of law, the corpora iuris, civilis and canonici, reference is made today to numbers that relate to individual laws and canons, and to the title and book in which they occur. In the past however, reference was made to the first or first few words of the text, and to the heading under which they were placed. To give an example: the famous constitution of Theodosius concerning the establishment of Christianity as the religion of the State which we now know as Cod. 1.1.1, was referred to by earlier jurists as l. Cunctos populos, de summa trinitate, (the ‘l’4 standing for lex). The Code was not even mentioned, and if it had been, only a ‘C’ would have been included. The Digest for its part was indicated by ‘ff’, perhaps a misunder- standing of the Greek ‘pi’ of the Pandects. In short, the early jurists knew the collocations of the various headings in the legal texts and the initial words of the most important laws, even down to the apposite technical mnemonics. As a result, we now need to consult tables of concordances so as to establish the corresponding citation in the critical edition. This is necessary whether we are dealing with civil or canon law.5 Let us now return to the glosses. If a gloss concerned only one word, for example in order to explain its significance in medieval Latin, it might be inserted in the space between the lines, and thus be referred to as interlinear. If it consisted of a more complex interpretation, with many cross-references or even with an explanatory passage, more space was needed. Annotations of this kind were thus inserted in the margins of the code, alongside the relevant piece of text. This is called a marginal gloss. If the annotation was prepared by the professor himself, it was described as redacta, and included the author’s sigla at the end (thus, Iac., Hug., Ac., etc.). If, instead, the gloss was the work of a pupil reporting the master’s thoughts as he read the text, it was referred to as glosa reportata, and the

4 This became ‘c.’ in the canonist texts, standing as the abbreviation for capitulum or canon. 5 In the case of the former, see Ugo Nicolini-Franca Sinatti, Indices corporis iuris civilis iuxta vetustiores editiones cum criticis collatas (1964); for the latter, see Javier Ochoa-Luis Diez, Indices canonum, titulorum et capitulorum Corporis iuris canonici (1964); however, it is worth noting that the two volumes of the critical edition of the Corpus iuris canonici include indices of the canons and section headings that could usefully serve the student’s needs.

protagonists of theory and practice 197

student could then add ‘secundum’ (Martinum, etc.). We do not, however, have any autograph annotations by very early jurists, or at least any that we have so far identified among the hundreds of medieval manuscripts dealing with Justinian and Gratian – the oldest dating generally to the end of the twelfth century. It is difficult to interpret these carefully drawn-up annotations now, however, because the marginal gloss that we read today might be the result of a previous transcription of a number of glosses no longer including sigla. The surviving annotation may in reality derive from a number of different interventions by various authors. There are also on occasion a number of ‘clusters’ of glosses, in other words, several annotations to the same piece of text, that have been added at a later date, that may have been merged together during the process of copying6 and that are reproduced in various teaching manuscripts.7 The lack of organization during this phase of growth was rectified once existing glosses constituted an identifiable ‘mass’ or apparatus. This term indicates a set or successive sets of annotations that were quite consciously merged following painstaking and meticulous work on the part of the jurists. With such fusion in mind, these individuals adopted preceding glosses, even by other masters, and at the same time included written glosses ex novo which were intended to give cohesion to the whole. It is possible, in fact, that the earliest doctors also amassed apparatus, as well as noting down sparse glossae or assembling ‘clusters’ of annotations.8 We certainly begin to see various forms of ‘apparatus’ circulating around the year 1200. About the same time, there is also evidence of the circulation of the so-called libri magistri (teachers’ manuals). These complicate the task of attribution of individual glosses, because the sigla that we find in them are of the master who was involved in the re-organization of earlier material, rather than those of the individual or individuals responsible for the original gloss or glosses.9

The Ordinary Gloss The ‘apparatus’ of one master could be considered conclusive by dint of the explanatory approach to the text. It could also appear to endorse the

6 Bellomo, The Common Legal Past, pp. 130–131. 7 Manlio Bellomo, ‘Sulle tracce d’uso dei ‘libri legales’’ (1989). 8 Bellomo, The Common Legal Past, pp. 131–133. 9 As one can imagine, this is a very sensitive issue; the greatest expert on such matters is Gero Dolezalek, one of whose studies is entitled ‘Nuove tecniche per far luce sulle fonti dal secolo VIII al secolo XV’ (1985); more developed findings have been presented by him in Juristische Buchproduktion im Mittelalter (2000).

198 chapter six exegetic studies of a number of previous masters engaged in the interpretation of that particular text, and thus in certain respects be accepted as definitive. However, this did not signify that there was nothing more to be said about the texts in question, or that there was no possibility of contra- dicting what was said in the ‘definitive’ annotation. It simply meant that this particular collection of annotations became the ‘ordinary’ or ‘normal’ way to approach that text. In a manner of speaking it became the official gloss in terms of the university environment. From then on, that particular legal text would always be considered as enlightened by those annotations. As one might imagine, such a stage was only reached after the masters’ work over several generations. The Corpus iuris civilis and the Libri feudorum acquired their own ordinary gloss as a result of work carried out by Accursius (ca. 1180–1263), a Florentine master at Bologna, who became famous throughout Europe around the year 1300. Basing himself essentially on the work of his predecessors Azo and Ugolinus, Accursius favoured the creation of an on-going ‘apparatus’ concerning those works, whilst at the same time throwing light on the glosses of other masters, along with many of their sigla. His oeuvre was quite extraordinary (almost one hundred thousand annotations) and particularly useful for the way in which it carefully summarized the work of several generations of teachers. The historical impact of Accursius’s work was immense. This, together with the need to have one single glossary as a point of reference, explains why Accursius’s work was reproduced each time a legal text was rewritten, from the middle of the thirteenth century onwards, when the work was only recently completed and approved by the readers as the glossa ordinaria.10 It also explains why it was produced in printed form in the second half of the fifteenth century. From then on, and even at the cost of eradicating other apparatus found in manuscripts, which in that context are referred to as palinsests, there was a general desire that legal texts should bear the mark of Accursius’s on-going gloss. It was in fact immediately broadcast

10 Since work was being carried out on these critical apparatuses during the third and fourth decades of the thirteenth century, it is difficult to put a precise date on the Ordinary Gloss, especially in the light of the fact that Accursius was still alive, and could have intervened personally; furthermore, the ‘ordinary’ character of the gloss was something that was only gradually recognized, rather than being established at a specific moment in time. Lange, Römisches Recht, pp. 335–367, provides the most extensive survey of Accursius and his gloss, and is also rich in terms of its bibliography. The dates suggested by Lange have recently been accepted by Giuseppe Speciale, ‘Acursius fuit de Certaldo’ (1990).

protagonists of theory and practice 199

throughout the world by his sons, Guilelmus in Salamanca,11 and Francis at the royal court in England. Accursius’s gloss, which was also known as the Magna Glossa – the Great gloss – must thus have entered the system by being inserted first in the Institutes, then in the Code, and finally in strict order of rotation in the Digestum Vetus, the Infortiatum, and finally the Novum.12 In the meantime, the ordinary gloss of Gratian’s Decretum was also being assembled, following the apparatus constructed by Iohannes Teutonicus (d. 1245/6) which had subsequently been reworked by Bartholomeus of Brescia (d. 1258). At the same time also, work on the glosses to the Decretals of Gregory IX was nearing completion, following the labours of Bernardus of Parma (four editions being produced between 1241 and 1266).13 The ordinary gloss for the Lombarda had been completed by Carolus of Tocco at a much earlier date. This was compiled at Benevento between 1208 and 1215, when the idea of an ‘ordinary gloss’ didn’t even exist, and was subsequently always published by editors together with the legislative text. The manuscripts of legal texts furnished with the ordinary gloss were sufficient in themselves to satisfy most of the daily needs of anyone practising the law at that time, because they offered a comprehensive picture of the interpretative problems posed by legislative texts. In each case, the owner had the chance to add integrative notes and other short interventions in the wide margins of the codes left free of script. This was indeed common practice, and recognized as a way of keeping up with doctrinal debates and other recent legislative developments. As we shall see, this was particularly important in the context of canon law. There seems little doubt that the idea to label certain apparatuses as ‘ordinary glosses’, weeding out other similar compilations, was initiated and finally fully realized within the universities. This signalled an important turning point in terms of both the theory and the practice of law. For one thing, practice was more clearly orientated than it had been before. For another, as we shall see, now that those engaged in theoretical studies had this new and high quality didactic tool at their disposal,

11 Frank Soetermeer, ‘Un professeur de l’Université de Salamanque au XIIIe siècle: Guillaume d’Accurse’ (1985). 12 Following studies of the manuscripts mentioning pecia by Destrez, see Louis-Jacques Bataillon, ‘L’Università’ (1995), p. 424. 13 Stephan Kuttner-Beryl Smalley, ‘The Glossa ordinaria to the Gregorian Decretals’ (1990), and Stephan Kuttner, ‘Notes on the ‘Glossa ordinaria’ of Bernard of Parma’ (1990).

200 chapter six they were inspired to discover other kinds of literature worthy of their consideration. The ordinary gloss was an extremely efficient way to create a kind of filter for textual analysis, thereby conferring and reinforcing the idea of the absolute supremacy of university doctors. However, the ordinary gloss also had a downside. From one point of view, it was the result of a selection that might be considered rather arbitrary. From another, it had the effect of rapidly displacing other apparatuses that were already in circulation, even those compiled by very skilful jurists. In just the same way as Romanist civil lawyers had relegated Lombard law to the fringes, so now the ordinary glossators of one university, selected by that university, marginalized work in other universities. As one can imagine, this state of affairs did not please everyone. Odofredus in particular (the loquacious Bolognese glossator we have already mentioned), who was living at the time that Accursius’s ordinary gloss was being established as the leading source of reference, persisted in proceeding with an alternative line of enquiry. But one individual could do little in the face of what was by now an established university institution at Bologna. Indeed, the ordinary gloss itself was both the cause and the effect of this. The institution at Bologna had to work hard in order to compete at an international level with the universities that had multiplied during the course of the early thirteenth century. And one way to be efficient was to give university books a uniform character: both the legal texts themselves, and the doctrines that had been created in their margins. We know from recent research associated with Bologna that production of books already flourished there by the end of the twelfth century.14 But in Paris and Oxford too there were specialist openings for booksellers, copyists, parchment makers, miniaturists and bookbinders. In addition, around 1200 an extremely valuable and ingenious method for the reproduction of texts was being perfected. This was concentrated in and around the workshops of the stationarii, to whom the scriptores of individual codes turned. These individuals were controlled by the University. It was the University that ordered the compilation of official pamphlets (the pecie) of texts (exemplaria), which were then handed over by the stationarii to the scriptores, as single pamphlets for rent for a brief period. The scribes could at the same time copy the work,15 mirroring the original

14 Frank Soetermeer, ‘A propos d’une famille de copistes. Quelques remarques sur la librairie à Bologne aux XIIIe et XIVe siècles’ (1989), based on many notarial documents. 15 One can imagine the delays resulting from allotting the exemplar to one copyist at a time, if one takes into account that the Hostiensis’s Summa decretalium consisted of 270 pecie (sheets folded into four pieces), that the Liber Extra on 1304 had 72, and that

protagonists of theory and practice 201

text – the contents of which were controlled by the University. As a consequence, copyists even tended to reproduce the model they received graphically: and we now know whether a work was copied from an university exemplar and when it was done, thanks to the references to various peciae preserved in the margins of manuscripts.16 This resulted in the standardization of university manuscripts which from that time on seem to be serial productions.

6.1.2. Other Principal Literary Forms Glosses, even when organized within an ordinary apparatus, were essentially a ‘neutral’ category, characterized by their physical collocation within a particular code, and in the sense that they always had a doctrinal origin. But they could also contain written matter of a very different kind. From the perspective of emphasising content rather than form, this is therefore the point at which we need to consider a number of other literary forms. Distinctiones – These were texts in which the jurist distinguished those matters that were apparently similar or in opposition to one another, and gave a solutio. First inserted in the glosses, these were then formed into their own separate category, on the basis of their homogeneous characteristics.17 Quaestiones – Regarding the oldest questions, already discussed in Bulgarus’s school with the participation of students, once the problem was identified, reference was made only to those legal texts used in one sense or another to present an argument, and the solution was cut and dried: sic o non, yes or no, as in the ancient teleological tradition. At a later date, however, methods of reasoning became considerably more complex, from both ‘pro’ and ‘anti’ view-points, and discussions of this kind only took place on certain days of the week.18 Discussions concerning civil law were

Bernardus of Parma’s apparatus had 136. See Frank Soetermeer, Utrumque ius in peciis. Aspetti della produzione libraria a Bologna fra Due e Trecento (1997). 16 Every work required a certain number of peciae paginated in Roman numerals, which were then transferred to the copies so as to illustrate where a new pecia began. 17 A fundamental work in this context is Emil Seckel ‘Distinctiones Glossatorum. Studien zur Distinktionen-Literatur der Romanistischen Glossatorenschule, verbunden mit Mitteilungen unerdierter Texte’, (1911), but see also Distinctiones, Collectio Senensis (1892). 18 Hence the names quaestiones mercuriales, veneriales or sabbatinae; important the two collections Quaestiones dominorum Bononiensium (1892), and Quaestiones in schola Bulgari disputatae (1892).

202 chapter six at first referred to as legitimae. They emerged from the technique adopted in solutiones contrariorum, because with these the method was first to expose and resolve theoretical problems with apparently opposing solutions, and then to reach a conclusion with the teacher’s solutio. As a result, they became known as quaestiones disputatae.19 Later, and as a result of interventions by Iohannes Bassianus and Pillius at the end of the twelfth century, there was a move towards quaestiones de facto, where real cases of everyday experience were involved.20 Pillius, for example, referred to many customs and Frank cases in his quaestiones.21 As a result, he was obliged to modernize Roman law, adapting it to very different contemporary realities. Pillius thus demonstrated his ability to resolve real everyday issues. Collections of the quaestiones were also made at an early date, in the context of both canonistic and civil matters. During recent years these have been subjected to thorough and extensive research.22 Consilia – This is a category which was just beginning to make its mark during the century and a half in question, but of which there is comparatively little evidence. Two types of very different legal advice belong in this group: a) consultation pro parte, directed at supporting the position of one of the parties in trial proceedings through a sophisticated and technical argument; and b) the so-called consilium sapientis, that is advice requested by the judge or from a jurist external to the tribunal when considering the trial proceedings themselves, and then developed within a context which we will explain in greater detail later. This kind of material has also been the recent subject of much detailed analysis.23 Dissensiones dominorum – These had the more specific function of preserving a record of the doctrines of teachers who probably taught in the

19 Manlio Bellomo, Aspetti dell’insegnamento giuridico nelle Università medievali (1974). 20 Bellomo, The Common Legal Past, pp. 126–148. 21 Giovanni Santini, Università e società nel XII secolo: Pillio da Medicina e lo Studio di Modena (1979), pp. 168, 197. For the quaestiones, see Cortese, Alle origini, p. 41 fn. 66. 22 Fransen, Canones et quaestiones, is the fundamental work for canonistic matters. For civil issues see Annalisa Belloni, Le questioni civilistiche del secolo XII. Da Bulgaro a Pillio da Medicina e Azzone (1989), but now especially Manlio Bellomo, Quaestiones in iure civili disputatae (2008), published after many decades of work; amongst his pupils see Federico Martino, ‘Giuristi di scuola e pratici del diritto a Reggio e a Padova. Il ms. Olomouc C. 0.40’ (1986) for a Libellus disputationum (or Tractatus questionum) by Julianus of Sesso (summa quaestionum, produced at Vercelli around 1230), and Lucia Sorrenti, Tra scuole e prassi giudiziaria. Giuliano da Sesso e il suo ‘Libellus quaestionum’ (1999). For previous editions see fn. 19. 23 The most recent collection of studies is Legal Consulting in the Civil Law Tradition (2000), but Guido Rossi, Consilium sapientis iudiciale – Studi e ricerche per la storia del processo Romano-canonico, I (secoli XII-XIII) (1954), is still valid for its Bolognese examples.

protagonists of theory and practice 203

minor schools.24 They noted doctrines concerning a specific controversial point – the pro or the contra for a certain solutio – as well as that actually motivating the choice of a particular solution. The Dissensiones dominorum provided a perfect vehicle for handing down information about individual authors, which can then be compared with what is recorded in the glosses. Casus – These are brief expositions dealing with specific provisions: different kinds of situations devised within the school, and presented in order to simplify individual cases as laid down by the law. It was almost a way of illustrating the abstract provision provided by the legislative text, but using other words and in plainer fashion, through the exemplification. These were so useful from a didactic view-point that a whole series of cases were inserted within printed editions of the Corpus iuris, forming a kind of introduction to each legislative passage. Brocarda/regulae iuris – These are works that identified those ideas in various parts of the sources that contradicted each other, with a view to extrapolating some kind of overall argument (modi arguendi) for individual juridical principles. Through these an attempt was made to establish a probability, rather than a certainty. They thus rested on ‘presumptions’, facilitating discussion and the acquisition of new learning. This category developed within the sphere of rhetorical studies,25 and, as a result, wherever there were schools of the arts.26 They were in use widely around 1180,27 but not at Bologna. The first example of a brocarda appears to be the Argumenta atque contraria Lombardae,28 written by the expert of Lombard law Vaccella, but put together by his students. For the actual circulation of this kind of text, we must thank Pillius, ‘a singular

24 In this context see Cortese, Il diritto, II, p. 87 fn. 58, for evidence that in those places canonist and civil law teaching occasionally co-existed side by side. For the collections, see Dissensiones dominorum sive controversiae veterum iuris Romani interpretum qui Glossatores vocantur (1834), and Vittorio Scialoja, ‘Di una nuova collezione delle dissensiones dominorum’ (1934). 25 Alois Lang ‘Die rethorische Einflüsse auf die Behandlung des Processes in der Kanonistik des 12. Jahrhunderts’ (1940). For developments in England, perhaps beween 1160–80, see Matthias Schwaibold, Brocardica ‘Dolum per subsequentia purgari’. Eine englische Sammlung von Argumenten des römischen Rechts aus dem 12. Jahrhundert (1985). 26 It had already found expression in canonistic studies in the Perpendiculum, a French work for which see Stephan Kuttner ‘Réflexions sur les Brocards des Glossateurs’ (1983). 27 Schwaibold, Brocardica. 28 Edited by Enrico Besta (here as always a genial but somewhat imprecise scholar), Argumenta atque contraria ad Lombardam in auditorio Vaccellae collecta, (1901), after studying it in ‘L’opera di Vaccella e la scuola giuridica di Mantova’ (1902).

204 chapter six scholar’,29 and author of a Libellus disputatorius (a collection of brocarda). In the introduction to that work, Pillius drew attention to the fact that at Modena they no longer used glosses or summae, but adopted instead the more lively methods of discussion offered by the brocarda. This apparently reduced the time deemed necessary for juridical studies from ten to four years. Lombard brocarda were also widespread in the second half of the twelfth century amongst civil and canon lawyers. Indeed, they were sometimes collected together in the manuscripts.30 It was a common method of coming to terms with the texts that allowed the development of a ‘form of logic that was exclusively juridical’.31 Terms such as ab auctoritate, a contrario, a simili, ab absurdo, and so on, which with their medieval Roman overtones are used even today in juridical discussions, derived from documents associated with Justinian’s sources, and could thus be adopted with authority in the course of a learned exposition. One could also consider this category in the context of the heading De regulis iuris of the Digest (the conclusive version). This countenanced the setting of a rule and an exception to that rule in opposite corners, as well as the conjunction of various forms of the rule as it appeared in different parts of the corpus of law associated with Justinian. In any event, this literary form was well-known by the end of the twelfth century.32 Summae – The first summae were loose collections of notes about individual texts,33 which doctors consulted in order to establish those elements of each legislative text considered most important. The canonistic summae mostly consisted of very detailed annotations somewhat like glosses, but not in continuous prose, because the Decretum had yet to be ‘digested’. In effect, these notes referred to the various capita of the Decretum, and are thus comparable to the apparati formed from glosses. In the case of civil lawyers, however, such notes assumed a more personal character, and were elaborated according to a particular mode (very often Ciceronian). In addition, they were not bound to the text.34 These were

29 Cortese, ‘Alle origini’, p. 47. 30 For those in ms. Bibl. Vat. Chigi E.VII.218, see Giuliana D’Amelio, ‘Notizie di letteratura Longobardistica’ (1969–70), with annotations on pp. 91–107. On brocarda in general, see above all Peter Weimar, ‘Argumenta brocardica’ (1967). 31 Cortese, Il diritto, II, pp. 152–154, with cross-references to the theological quare and the quaestio. 32 See the detailed note by Cortese, Il diritto, II, p. 233. 33 Kuttner, The Revival, p. 313. 34 Manlio Bellomo ‘Der Text erklärt den Text. Über die Anfänge der mittelalterlichen Jurisprudenz’ (1995).

protagonists of theory and practice 205

books that allowed for great freedom in the selection of material from one part of the corpora iuris, above all, the summa of the Code, or of the Decretum and Liber Extra, to draw attention to the importance of certain problems. This was ideal for students and also, later, for those practising the law, who were thus able to gauge how much of the complex legislative texts was deemed of little interest or had been overtaken. This explains why summae were so popular during the twelfth century. Rogerius apparently compiled his summa Codicis in Provence (where he later died), using as his source the already re-named Lo Codi.35 Placentinus’s summa Codicis is said to have been based on an incomplete version he found in use in Montpellier, which he himself completed during the 1170s. The origin of the summa form thus seems to have been French, rather than having close connections with northern Italy. In Italy, it was only the experts of Lombard law who adopted it. For example, at Modena, at the end of the twelfth century, Pillius was already tired of the summae, calling them the ‘conculcato textu legum’ (forgotten texts of law).36 By contrast, they reached the peak of their influence in Bologna, perhaps through Iohannes Bassianus.37 Indeed, it seems that Bassianus favoured the change of direction in textual analysis towards ‘juridical construction’, and above all, away from the method established through glosses. There seems little doubt that Bologna was completely won over by Azo, who around the year 1200 compiled what are considered to be the definitive summae.38 These covered the Code, the Institutes, and possibly also the Digest.39 Accursius for his part is said to have subsequently compiled the Summa Authenticorum that was printed together with Azo’s summae.40 Others maintain, however, that Accursius’s work was lost.41 Tractatus – The treatise was another literary form that had nothing to do with the glosses, because it was usually a piece of writing that was created and circulated separately from the legal text. (It was, moreover,

35 André Gouron, ‘Lo Codi, source de la somme au Code de Rogerius’ (1987). 36 Belloni, Le questioni civilistiche, p. 54. 37 His summae to the Code and the Institutions appear to have been reworked by Azo: Peter Weimar ‘Zur Entstehung der azoschen Digestensumme’. 38 Cortese, ‘Alle origini’, pp. 34–35. 39 This, according to Weimar, ‘Zur Entstehung’. 40 Ibid., p. 372 fn. 8, but Cortese favours Iohannes Bassianus over Accursius as the individual responsible for the reworking. 41 Federico Martino, Una perduta Summa Authenticorum di Accursio (1988), whose thesis is however firmly rejected by Cortese, ‘Alle origini’, p. 34 fn. 49.

206 chapter six not necessarily destined for didactic use). It consisted of a detailed exposition about one legal institute, recalling in an ordered manner passages from every possible legal source, with the aim of resolving various questions that might arise, or that were considered significant. The potentially inexhaustible material deemed relevant for such consideration was the most interesting aspect of this literary form. Even the smallest and most diverse works could be referred to, in a way that had already been done with Martinus’ de dote.42 But this was not to exclude other works such as the Lombard de pugna tracts concerning the duel,43 or the important Tractatus criminum, the first complete consideration of issues concerning criminal trials and particular felonies.44 Ordines iudiciarii/arbores actionum/libelli – Essentially these belonged in a special category of their own alongside the treatises, concentrating as they did on the various stages of development of trial proceedings. This was one of the major problems that had to be confronted during the twelfth century, with the transformation of the old institutes into the reformed bodies – whether communal or monarchical – of the new age. Ordines iudiciarii are often accompanied by arbores actionum:45 that is, treatises relating to the various types of ‘action’ (of a judiciary nature) to be taken in court, in order to present one’s case in a proper legal manner. Arbores actionum are sometimes confused with Libelli: treatises relating to the initial stages of the trial process – specifically that point where a case is made against the opposing party. Many such treatises, of varying complexity, still exist, and demonstrate how the opinions of glossators of both greater and lesser eminence were put to the test. Fortunately, we now also have some very useful modern editions, as well as a number of comprehensive recent studies relating the libelli to other contemporary works and practice.46

42 Hermann Kantorowicz and William W. Buckland, Studies in the Glossators of the Roman Law (1969), pp. 255–257. 43 Rofredi Beneventani Summula de pugna (1892); another anonymous work which has been edited by D’Amelio, ‘Notizie’, pp. 112–116, will be discussed later. 44 Tractatus criminum saeculi XII (1997). 45 For these, see the detailed examination by Andrea Errera, Arbor actionum. Genere letterario e forma di classificazione delle azioni nella dottrina dei glossatori (1995). 46 For the texts, Lugwig Wahrmund’s Quellen zur Geschichte des römisch-kanonischen Prozesses im Mittelalter (1905–31) is a very valuable source; see also recent research by Linda Fowler-Magerl, Ordines iudiciarii and Libelli de ordine iudiciorum (From the Middle of the Twelfth to the End of the Fifteenth Century) (1994).

protagonists of theory and practice 207

6.2. Obscure Authors and Famous Professors: Experts of Lombard, Civil, and Canon Law

This seems an appropriate juncture to provide further information about the authors of the works discussed above. It is, however, necessary to point out that because there was so much open discussion of the texts for so many decades, we now know very little about the formation of many early works. One significant example of the European-wide manufacture of legal texts is as follows. At Pisa, a certain Ricardus de Pisa seems to have translated Lo Codi – a widely circulated Provencal synthesis of the Code of Justinian, perhaps drawn up between 1158 and 1162.47 The same work was translated into Castilian and with reference to the important anonymous summa Codicis known as Trecensis, named after the place in which it is now conserved (Troyes).48 This latter work was known to the English ecclesiastic John of Salisbury, the learned author of one of the most important twelfth-century European works on the good prince (Policraticus, 1159), which also bears a certain relationship with Rogerius’s Summa Codicis.49 There are even manuscript versions of the Codi with Tuscan exemplifications.50 But this is just one example of the ‘Europeanization’ of individual legal tracts. A whole series of works based on the Corpus iuris civilis, which were variously re-used in different environments (like the Codi), and which offer indubitable evidence of the widespread resumption of study of Roman law, began to circulate or show a greater circulation at this time. All of this illustrates an almost scientific response to the law and the new thoughts about it that were occurring not only in Italy but also in France, England and Spain. We are in fact dealing with works that were often specifically theoretical, dealing with the most urgent problems of justice, equality, natural law and so on: in other words, with issues that had already been the subject of much discussion in antiquity, and that were often

47 For this work, see Robert Feenstra, ‘A propos d’un nouveau manuscrit de la version Latine du Codi (ms. Lucques, Bibl. Feliniana 437)’ (1974). 48 Edited under the name of Irnerius: see Hermann Fitting, Summa Codicis des Irnerius mit einer Einleitung (1894). 49 Cortese, Il diritto, II, pp. 136–138. 50 For example, ‘for St. Gilles and Montpellier the names of San Savino and Pontedera were substituted, and for Toulouse, Lucca; for the Rhone river, the Arno’ (Cortese, ‘Alle origini’, p. 35; for the edited version, see Hermann Fitting, Lo Codi in der lateinischer Ubersetzung des Richardus Pisanus (1906).

208 chapter six handed down to medieval culture by authors such as Cicero, who was very well-known during that period. At times, however, such enquiries also extended to debates concerning practical exigencies, above all the modernization of trial procedures. In the past, such works were attributed to Irnerius, and thus associated with Bologna. This was largely due to oversimplification on the part of historians who, in ‘distilling’ complex matters, tended to over-emphasize certain facts and individuals, and invest various innovations or moments of change with greater historical significance than others. Today, Irnerius is no longer recognized as the author of these works, and there is a strong body of opinion that favours a French origin. Thanks in particular to the work of André Gouron, we have come to recognize that a number of writers were interested in such issues, predominantly in France and at roughly the same time as Irnerius. Basing themselves on the texts of Roman law, hundreds of which are referred to, these authors were able to produce works that included in-depth discussions of the problems of aequitas or of ius naturale as corrective tools of ius civile.51 As a result, their works were drawn into ecclesiastical environments,52 and subsequently much favoured by canonists during the second half of the twelfth century, including those of the French school.53 These individuals then set about re-structuring or completing these important examples of the first phase of the ‘Romanization’ of Europe. Apart from the texts already cited in the context of the Summa Trecensis, which has been attributed to the Provencal jurist Géraud (an individual only recently identified) around 1135,54 we would do well to remember that both the Brachylogus iuris civilis (a synthesis of Roman law that was so useful that it was re-published several times even in the early modern age) and the Summa Institutionum Vindobonensis are French.55 In Italy, on the other hand, but outside Bologna, we find a real masterpiece, the Quaestiones de iuris subtilitatibus.56 This seems to have originated in a

51 For example, those based on the Exceptiones legum Romanarum Petri, the summa on the Institutions ‘Justinian is in this work’ and the Liber Tubingensis: for all these see Cortese, Il diritto, II (see index). 52 Ennio Cortese, ‘Tra glossa, commento e umanesimo’ (1992). 53 André Gouron, ‘Une école ou des écoles? Sur les canonistes français (vers 1150-vers 1210)’ (1995). 54 André Gouron, ‘L’auteur et la patrie de la Summa Trecensis’ (1984). 55 Like the pseudo-apparatus on the latter work: see Gouron, ‘Une école juridique française’. 56 For the possible production of this work in France, see Bruno Paradisi, ‘Diritto canonico e tendenze di scuola nei glossatori da Imerio ad Accursio’ (1987), p. 195, and

protagonists of theory and practice 209

northern Italian city at around the time of the emperor Frederick’s campaign to regain control of the regalia.57 The text is an invective against personal laws, and contests the statuta imposed by ancient kings on what were by now obsolete regimes. Such an august term as leges, it argued, could not be applied to provisions laid down by ‘barbarians’.58 In its dialogical structure, the work draws inspiration above all from rhetoric, giving rise to the question of whether it may not in fact reflect French taste. However, the fashion for rhetorical images such as the templum iustitie that appears in the Quaestiones re-occurs in the Instrumentum iuris civilis by the aforementioned Anselmus de Orto (the author of the epistles on feudal law). This slim book, that was drawn up after the middle of the twelfth century and which has been associated with the ‘four doctors’ and their students,59 is a fundamental exposition of trial proceedings. But alongside these written works that are so difficult to analyse because produced by anonymous individuals, we should take note of the fact (as the teachers of the time correctly perceived) that great value was placed on the individual in university teaching. The ‘rewards’, or end results, of teaching were traced back to this or that particular teacher, instead of generically to university institutes, which did not exist as formal entities at that time. In the past, the cultural reputation of a university therefore depended more than ever on individuals who gained ‘international’ (if one can use such a term) credibility as a result of their auctoritas, which in turn rested on the authoritative weight of their individually professed doctrines. As was the case with the impressive intellectual powers displayed by Abelard and by Peter Lombard in interpreting the Bible, certain experts in the law of Justinian, and above all Irnerius, came to be venerated due to the persuasive nature of their teaching, which was then reproduced and circulated throughout Europe, disseminating techniques and ideas. Before considering the so-called

André Gouron, ‘Rogerius, Quaestiones de iuris subtilitatibus et pratique arlésianne: à propos d’une sentence archiépiscopale (1141, 5 Novembre)’ (1984); the prevailing point being that the work is preserved in three manuscripts conserved outside Italy, but it is curious that reference is made in them to ‘transalpine kings’. (Cortese, ‘Alle origini’, p. 38). 57 See Quaestiones de iuris subtilitatibus (1894) and (1958): perhaps by Placentinus at Mantua (Kantorowicz-Buckland, Studies, p. 195). There is, however, no firm evidence, see Cortese, ‘Alle origini’, p. 38. 58 This theme was much discussed in minor schools from the time of Bulgarus onwards: Cortese, La norma, II, p. 236 fn. 177. 59 The archbishop of Tyre, Guillelmus (between 1167–75), came across them at Bologna and referred to them as the columns of the temple of justice, see Cortese, ‘Alle origini’, p. 39.

210 chapter six

‘civil lawyers’, who followed in the footsteps of Irnerius and the ‘four doctors’, it is worth pausing for a moment to consider the experts of Lombard law – those teachers whose pivotal role has been obscured by the vast and all-encompassing work of the civil glossators. Many of these operated in Mantua,60 working on the Lombarda and the first edition of the Libri feudorum, the earliest preserved annotations of which can be traced to Vaccella, Albertus and Ariprandus of Piacenza.61 Vaccella, who worked as a judge in Mantua around 1190, has already been identified as the author of Argumenta atque contraria Lombardae,62 but the most notable work produced by these masters has to be the Summa of the Lombarda,63 two versions of which have survived: one attributed to the school of Ariprandus, and the other to that of Albertus. Once again, it is worth pointing out that as well as Mantua, Piacenza was another important centre for the teaching of Frankish-Lombard law. It was in Piacenza, for example, that Carolus de Tocco studied and also taught Roman law.64 It was in Piacenza, also, that Roffredus of Benevento, later a professor at Naples University, heard Carolus de Tocco being read, and referred to the latter’s teaching about the taking of the oath prior to the duel precisely in the context of the Lombarda.65 His transfer of the Lombard science of the law from the north to the south of Italy meant that he held a central position during these years. Pavia, also, seems to have been important, since Carolus makes frequent references to the teaching of the Papienses; but Milan, Treviso, Verona, Padua, Vicenza,

60 Where there was a ‘Mantuan’ par excellence, who may have been the Ariprandus who is thought to have written a Summula de feudis (see August Anschütz, Die Lombarda- Commentare des Ariprand und Albertus (1855), p. 194 onwards). This individual was the target of a polemical treatise entitled De pugna which was written by an unknown Ugo: Hermann Kantorowicz, ‘De pugna. La letteratura longobardistica sul duello giudiziario’ (1970). 61 Cortese, Il diritto, II, p. 165 fn. 44. A reliable gloss on the ancient edition of the Libri feudorum claimed that Ariprandus was from Piacenza. According to this, Ariprandus attributed the use of the beneficium in feudal matters to the constitution issed by Conrad II: ibid., II, p. 126 fn. 63. 62 Argumenta atque contraria ad Lombardam in auditorio Vaccellae collecta, (1901), and Besta, L’opera di Vaccella. 63 Cited by Anschütz (fn. 61); Anschütz has also edited another anonymous summa of the Lombarda: see Summa legis Longobardorum. Longobardisches Rechtsbuch aus dem XII. Jahrhundert (1870). 64 Giuliana D’amelio’s ‘Carlo di Tocco’, (1977) is a fundamental work, apart from its reference to Carolus de Tocco’s teaching at Bologna, which is not supported by any source: Cortese, Il diritto, II, p. 126 fn. 64. 65 See Rofredi Summula, col. 80b. For Roffredus see Manlio Bellomo, ‘Intorno a Roffredo Beneventano: professore a Roma?’ (1998).

protagonists of theory and practice 211

Parma, Lucca, Pisa and even Siponto are referred to in a gloss to the Libri feudorum.66 To return to Romanists, we can construct the following list: – Bulgarus (died in 1166) author of a short tract on trial proceedings and questiones;67 – Martinus (dead before 1166); – Rogerius (1162), teacher in Provence, and author of the incomplete Summa Codicis which was circulated after the completion of the Summa Trecensis; – Placentinus (died at Montpellier in 1192), author of a Summa Codicis, of one on the Institutes, another on the Tres libri (as already noted, the last three books of the Code), and of a Summa actionum; – Iohannes Bassianus (died 1197), professor first at Cremona, then perhaps at Piacenza, and certainly at Mantua, and then at Bologna during the 1180s,68 where he had students of such calibre as Azo (died 1220–30) and Ugolinus de’ Presbiteri (died after 1233), who should not be confused with a recently identified Ugolinus de Sesso.69 Amongst other achievements/works Bassianus was author of both an Ordo iudiciarius (1167–81) and an Arbor actionum;70 – Pillius of Medicina (died after 1207), with his Libellus disputatorius (a collection of brocarda) and his well-known Quaestiones;71 – Roffredus Epifanius of Benevento (died after 1243) and Benedictus de Isernia72 (an individual to be remembered for his connection to Naples University), the first author to write about trial proceedings, Libelli de iure canonico (an unusual subject for a civil lawyer), and Quaestiones;73

66 See Karl Lehmann, Das Longobardische Lehnrecht (Handschriften, Textentwicklung, ältester Text und Vulgattext nebst den capitula extraordinaria) (1896), p. 23. 67 The former was already published at Mainz in 1530 and then re-published in Turin in 1973; for the latter, see Quaestiones in schola Bulgari disputatae (1892). 68 This becomes clear from the fact that his works appear in manuscripts dealing with the ‘brocardica’. 69 Domenico Maffei ‘Fra Cremona, Montpellier e Palencia nel secolo XII. Ricerche su Ugolino da Sesso’ (1995); this individual was the author of the following works on trial proceedings dating to the end of the twelfth century: De appellatione, De recusatione iudicum and De testibus. 70 Poncius of Ilerda’s Summa arboris actionum, (1213–17), which has been studied and edited by Guido Rossi, La ‘Summa arboris actionum’ di Ponzio de Ilerda (1951), derives from this. 71 The 1560 Roman edition was recently re-published (Turin, 1967); see also Pilii Medicinensis Quaestiones sabbatinae (1935). 72 For these two individuals, see the studies assembled in Scuole, diritto e società nel Mezzogiorno medievale (1985–87). 73 The 1500 edition of Benedictus’s Avignon works was re-published in (Turin in 1968).

212 chapter six

– Iulianus de Sesso, teacher at Vercelli around 1230;74 – Iacobus Balduinus (died 1235), already mentioned in connection with the Genoese statutes;75 – Odofredus (pupil of Ugolinus, died 1265), whose ‘alternative’ response to Accursius’s Gloss which had survived into the early fourteenth century has already been mentioned;76 – Vivianus Tuscus (attested in 1228–59), author of the casus published with the accursian Gloss; – Azo (died after 1229?),77 author of a Summa Codicis that was the most widely circulated text of its time, so much so that it used to be said: ‘Whoever does not own a copy of Azo will not reach the Palace’,78 the ‘Palace’ being, naturally, the Palace of Justice. Azo also wrote a series of Quaestiones,79 and the Aurea brocardica printed as an appendix to the Summa; – Martinus of Fano (attested in 1230, died 1272), author amongst other things of a treatise on the relationship between the lords and those who were semi-free;80 – Accursius (c. 1180–1263), pupil of Azo, the celebrated ordinary glossator of the Corpus of civil law. Amongst canonists, we should mention: – Paucapalea, who also intervened with the paleae of the Decretum, and was the author of an initial Summa; – Rolandus (whose identification with Bandinelli, later pope Alexander III, is now questioned), author of several glosses and of a Summa; – Rufinus, to whom is attributed the first important Summa of 1157–59; – Stephanus of Orléans, better known as ‘Tornacensis’ (of Tournai), because he was made bishop of that important French centre. This individual was responsible for circulating Gratian in France with his

74 See Martino, Giuristi di scuola, and Sorrenti, Tra scuole e prassi giudiziaria. Julianus of Sesso should not be confused with the slightly older Bolognese canonist who was active in the Spanish studium of Palencia: see Aquilino Iglesia Ferreirós, ‘Rex superiorem non recognoscens. Hugolino de Sesso y el studium de Palencia’ (1998). 75 For this individual, see Nicoletta Sarti, Un giurista tra Azzone e Accursio. Iacopo di Balduino (…1210–1235) e il suo ‘Libellus instructionis advocatorum’ (1990). 76 Manlio Bellomo, ‘La scienza del diritto al tempo di Federico II’ (1992). 77 Lange, Römisches Recht, p. 259. 78 ‘Chi non ha Azo non vada a Palazzo’. 79 See Emil Landsberg, Azonis questiones (1888), and Glosse preaccursiane alle Istituzioni. Strato azzoniano, Libro primo (1984). 80 For his biography, and for this specific treatise (including the complete edition) see Carmelo Elio Tavilla, Homo alterius: i rapporti di dipendenza personale nella dottrina del Duecento. Il trattato de hominiciis di Martino da Fano (1993).

protagonists of theory and practice 213

Summa (written about 1160), giving rise to the so-called ‘Anglo-Rhenish’ school, due to its association with both Oxford and Cologne, the powerful diocesan city on the Rhine; – Iohannes de Faenza, pupil of Rufinus and Stephanus, and author of a Summa (some time after 1171) which has remained famous along with another one produced between 1177 and 1179 by Simon of Bisignano, the first individual to become involved with the new papal decretals; – Uguccio of Pisa;81 the future bishop of Ferrara, and author of the most influential Summa Decreti (1188–90); – The English Alanus, or Alan, for that reason called Anglicus (who was particularly active between 1192 and 1206) and Laurentius Hispanus, both authors of a number of widely circulated texts; – Iohannes Teutonicus (died 1245), pupil of Azo and ordinary glossator of the Decretum, but also a skillful scholar of decretals;82 – Bartholomeus of Brescia who put the final touches to the Ordinary gloss which we find printed in the margins of the Decretum. Amongst a number of anonymous works, we should particularly mention the famous compendium of annotations known as the Ordinaturus Magister (after its opening words), and three Summae, referred to as Parisiensis, Coloniensis and Monacensis (according to the places where the relevant manuscripts are now preserved), which were produced between 1165 and 1178. There are not only fewer anonymous canonistic works, but they also have less obscure origins, because they are of a more recent date than the uncertain texts on Roman law. The decretists (scholars of the Decretum) were for the most part engaged in work during the second half of the twelfth century, when the identification of the authors of individual works was already well-established in the manuscript tradition.83 As for those individuals initially involved in such work – students of the ‘ancient compilations’ and thereafter the Decretals of Pope Gregory IX – we should name: – Raymundus of Penyafort (died 1275); – Goffredus of Trani (died 1245), author of an important Summa decretalium;

81 After Classen, Burgundio von Pisa, see Wolfgang P. Müller, Huguccio. The Life, Works, and Thought of a Twelfth-Century Jurist (1994). For the canonistis in general see James A. Brundage, Medieval canon law (1995), and Richard H. Helmholz, The Spirit of Canon Law (1997). 82 He worked on Compilationes III and IV. 83 This has actually been better studied, thanks in particular to the monumental work by Kuttner, Repertorium.

214 chapter six

– Henricus of Susa, cardinal of Ostia (died 1271), better known as Hostiensis, author of the most widely circulated Summa, according to the number of manuscripts showing evidence of the pecia system;84 – Sinibaldus de Fieschi, later pope Innocent IV (died 1254), with his at times very innovative Summa; – Bernard of Parma (died 1266), author of the Ordinary gloss of the Liber Extra.

6.3. Characteristics of the Glossators’ Work

We owe the development of juridical studies in the West to the glossators and in particular to those individuals working at Bologna and to their successors over several generations in the nascent European universities, as well as to the purposeful construction of a scientific and didactic practice that, as we shall see, has ramifications even now. Thanks to glosses scattered in the margins of innumerable manuscripts, and the questions, tracts, summae, and judicial rules (ordines iudiciarii), the glossators have taught us how to confront methodically, and with a technical language which had acquired universal usage well before the period under consideration, both the ancient juridical texts associated with Justinian, and those that were more or less new – from Gratian to the decretals, Frank-Lombard law and Libri feudorum. For example, it was thanks to the glossators that the great concepts of natural law, divine law, and so on,85 and key notions such as iurisdictio and imperium, privilegium and potestas, as well as lex and consuetudo, all of which were technically

84 Bataillon, ‘L’università’, p. 424, on the basis of Destrez’s data: the Apparatus of Innocent IV followed immediately. 85 In canon law a central problem concerned the supremacy of natural law over positive law. In Isidore of Seville’s work, natural law was defined as a law common to all individuals, as, for example, intercourse between a man and a woman, inheritance by children, possessions held in common by the people (communis omnium possessio, from which the ‘millennium’ communism developed), and liberty for all (omnium una libertas) – from Dig. 1.1.4. According to natural law all are born free: ‘iure naturali omnes liberi nascerentur’. According to Gratian (dictum in Dist. I) mankind (humanum genus) is governed by natural law and by customs (mores); the former derives from the law of Moses and from the Gospels (‘in lege (Mosaica) et in Evangelio’), and anything established as a custom or as a written law that is contrary to natural law is null and void (‘si naturali iuri fuerint adversa, vana et irrita sunt habenda’, dictum in part II of Dist. 8). But this was already present in the work of Isidore (Etym. 5.2: all laws are either divine,based on nature, or human, based on customs), and at a later date (around 1000) there was a tendency to identify natural law with divine law: there were frequent references to nature being God (natura idest Deus), replicating an old stoic and pantheistic analogy; there was also a tendency to pass off canon law as divine, in an attempt to reinforce its potency

protagonists of theory and practice 215

Romanist in terms of their content, were decisive in terms of the public language of the institutions. It was also thanks to the glossators that such language became commonplace in the formation of documents, laws and official acts amongst the cultured elite of Europe, by dint of students carrying to every corner of the continent the textual and interpretative patrimony they had stored up during their university years. In terms of public law, the contribution made by the glossators was decisive, not only for the theoretical framing of the projects undertaken by emperors Frederick I and Frederick II, but also for the general rationalization of the institutions (the communes, etc.), including the conflict between the Church and the Empire. They also assumed a significant role in the field of private law, where they submitted various complex and technical negotiative strategies for experts in the law. Enamoured with Justinian’s texts, now once more understood in their entirety and complexity, and denigrating (openly or with caution) Frank-Lombard law – that nevertheless through the Lombarda received a fair amount of attention in the universities – the civil lawyers made a great contribution to cultural unity, the sole source of concord possible in Europe at that date.86 We get a good idea of the vast amount of painstaking work that was undertaken from the pride with which these jurists speak of juridical science as legal philosophy (legalis philosophia), and ever more explicitly towards the end of the period under consideration here. The jurists regarded their work as having its own independent character which allowed it to remain within the boundaries of the given juridical corpus, without the need of a theologian or a philosopher. Accursius sums this up in the following words: ‘Do we need theological education? No, since everything can be found in the body of the law.’87 His master Azo, engaging in polemics with a French student, had maintained that visionaries were of no use in understanding legal texts; it was the duty of the jurist to find solutions by sole recourse to the leges.88 In other words, everything

(see, for example, Santini, ‘Canones et leges’). The connections between canon law and divine law were established theoretically during the twelfth century: Cortese, Il diritto, II, see index under ‘divine law’, and see also Maria Grazia Fantini, La cultura del giurista. 86 At that time this obviously did not exclude Switzerland, for which see Sven Stelling- Michaud, L’Université de Bologne et la pénétration des droits romain et canonique en Suisse aux XIIIe et XVIe siècles (1955). 87 See the Notitia in Dig. 1. 1. 10: ‘Sed nunquid (…) oportet, quod quicumque vult iuris prudens vel iurisconsultus esse debet theologiam legere? Responde non: iam omnia in corpore iuris invenitur’. 88 See Cortese, Il diritto, II, p. 142.

216 chapter six was already in the legal texts; one only had to know how to extract the right solution.89 It is no coincidence that Saint Bernard became similarly involved with the issue of this passion for the laws of Justinian, which he already knew well – albeit from a distance – from the lex Dei.90 There was a general feeling that only real professionals should concern themselves with these laws, and that appropriate university training was a prerequisite. The professionalization of the world of law became a trademark of the time, and one of the glossators’ enduring bequests to posterity. From then on, at different times and in different ways, a new image of the learned jurist was established in Europe. They were respected and sought after, and as a result well paid. They were capable of negotiating an extremely difficult, technical Latin language and of navigating around an enormous textual patrimony that was littered with ‘doctrines’ which could only be understood after much advanced training. Respect for legal texts was such that it promoted the thought that treasures of juridical wisdom were hidden within them, whilst at the same time disposing of the idea that the jurist had to be a slave to the text. Bulgarus introduced the aphorism ‘man is the author of law, God of justice’ (‘auctor iuris homo, iustitie Deus’), which was repeatedly employed by his colleagues.91 This actually, if not openly, established the jurists’ rights to that interpretatio of the texts that Justinian had reserved for himself as the due right of the legislator prince. For very precise juridical and historical reasons that we will touch on in the conclusion, during medieval times, the term interpretatio by no means corresponded to our present-day interpretation. In the past, interpretatio had been reserved for the prince because it allowed for the exstensio or restrictio of the area covered by the texts. In other words, it was a free interpretation that the autocratic legislator could not leave to his functionaries or to private scholars without risking his own political agenda. However, the reality was that the glossators only

89 Severino Caprioli, ‘Per uno schedario di glosse preaccursiane. Struttura e tradizione della prima esegesi giuridica’ (1978), offers a reliable survey in this respect (especially p. 101: ‘all the world is thus already set down in writing’). 90 See the famous passage in De consideratione, and also in Bernardi, Opera (1963), p. 399. On the other hand, Stephanus de Tournai, one of the jurists active towards the end of the twelfth century, observed that in the field of theology one was not limited to glossing the Sacred Scriptures, but was also engaged in writing ‘summulae’ and ‘commentaria’ (once again, the Interpretatio) as if the Fathers of the Church were no longer enough; the king was dressing himself in rags and the waters were becoming muddied: Marie- Dominique Chenu, La teologia come scienza nel XIII secolo (1985), pp. 44 and 156 f. 91 Umberto Santarelli, L’esperienza giuridica basso-medievale (1980).

protagonists of theory and practice 217

paid ‘lip-service’ to Justinian’s prohibition, because in practice they operated with quite a different kind of freedom from that granted by the emperor. Their point was that, given the many new and detailed demands, it would not otherwise have been possible to re-position Roman law in line with ‘modern’ requirements. Thus, right from the beginning – even from the time of Irnerius – annotations were inserted not only as a way of linking passages that apparently differed from the original compilation (through systematic cross-references), but also (through significant innovations) to meet the needs of the time. Thus, readings that were, or that appeared subsequently to be, misunderstandings of the original wording were in fact in line with the cultural debates of their own time. Nevertheless, the ancient idea that to interpret a text meant to gain control over it, to be in some way its master, and to be able to use it for one’s own purposes, spread rapidly. Saint Francis, for example, stipulated in his second ‘Testament’ that his order’s Rule should not be interpreted with explanations and comments, but rather that his words should be understood ‘artlessly and candidly, in other words, at face value and without further interpretation’.92 Saint Francis was well aware that interpretation also meant modification, alteration of the author’s original intention according to the translator’s subjective understanding, although obviously not necessarily in bad faith. However, it would be untrue to say that civil law glossators were mere theoreticians distanced from practice. This was not even the case for those initially engaged in pure theory, and certainly not the position of their successors, who with ordines iudiciarii, consilia and quaestiones intervened in the practice of law on a daily basis. For the earlier period, we would do well to recall Barbarossa’s consultant experts, or Irnerius who occupied himself with the problems of emphyteusis, or Bulgarus who drew up the Bolognese customs. It is true that those individuals were mainly engaged in the analysis of the wording of Justinian’s legislation: a text that was anything but informal, but instead couched in rather abstract terms, in keeping with the juridical approach of the time. However, it was only as a result of the work carried out by these early jurists that Justinian’s text became comprehensible. It is nevertheless clear that the civil lawyers’ teaching had for various reasons to be general and abstract, precisely because it was intended to introduce students to

92 One of the great themes discussed by Frugoni, Francis of Assisi; but the pope was subsequently forced to temper the value of the Testament, in order to calm the conflicts within the order.

218 chapter six the art of juridical reasoning and to encourage them to take advantage of a whole patrimony of solutions offered by the texts themselves and by their interpreters. This persisted even when they de facto confronted new cases, thrown up by daily discussions inside the universities (quaestiones) or in professional studies (consilia). In each case, they approached the matter in terms of juridical issues. Rather than dwelling on fact or a concrete investigation of the issue, they concentrated on the problems presented by different interpretations of the texts, and the actual nature of the case under consideration. Was it or was it not a homicide? Was it a valid contract? Did the law allow for such action? And so on. Practical judicial issues were left to the ‘experts’: to those notaries and ‘judges’ attached to the guilds, who as procurators and advocates resolved internal and external conflicts in the courts. For the self-important professor, this was a less attractive aspect of legal life. The jurist for his part, maintaining his own sense of status, knew how to cast himself as a true ‘oracle of justice’. As such, he followed in the footsteps of those jurists of the classical Roman period who had left behind so many intriguing references in the Digest, references still valid even after so many centuries. As a result, jurists invested the position of consulere with sufficient importance for it to be viewed as a kind of munus, or public office. Over time, they were also able to claim that the jurist’s position was equivalent to that of the nobility, and thus carried the privilege of exemption from certain duties, such as guard service or military and fiscal levies. The jurists thus created a valid and enduring form of teaching, above all when it was not obviously governed by real political issues. The institutions were in no way compelled to follow the guidance offered by the jurists. In sum, the jurist took pains to avoid involvement in concrete and local details, precisely because theirs was a kind of wisdom, a doctrine that could be described as ‘transnational’ or ‘supranational’ and ‘cross- category’. Their pronouncements had to be valid at very diverse social and cultural levels, and within very different political arenas. But the individual who could write about justice and equality, about the powers of the sovereign, about the limits and causes of law, the duties of ‘offices’, the equal status of litigants in trial proceedings, the proportionate relationship between the penalty and the crime committed, the character of individual institutions, and about contracts, etc., clearly made a highly significant contribution to cultural development, and to the construction of a conceptual framework that was destined to be hugely influential. Rather than occupying themselves with local law, statutes or monarchical

protagonists of theory and practice 219

laws, the jurists addressed the pressing need to prioritize the construction of categories, and of notions that once elaborated and taught would enable the individual to confront any kind of local law. In teaching – and universities these days often forget this fact – the jurists abridged, in order to aid comprehension. They were interested in teaching methods that had immediate practical significance, rather than in offering specific subject-matters. But just a glance at more or less recent historical literature, to which it is worth returning particularly for references to manuscript sources,93 demonstrates the variety and complexity of themes considered by jurists in their desire to explain even the framework of the law (both lay and ecclesiastic) that was taught in the universities. Let us take a look at a few examples of their creative and modernizing interpretations. In the Digest (Dig. 5.1.1),94 for example, reference was made to an agreement between parties reached before a judge who was not normally deemed competent to adjudicate in such matters. In an insert to the work of Accursius, Vivianus Tuscus, who is thought to have been active in the middle of the thirteenth century, transposed this hypothesis into the communes of his own time by referring to the case of two individuals from Modena who decided to present an issue to the judge of Bologna. The sense of the text was thereby altered because it involved two different legal systems. But Accursius had gone even further than this in his gloss Et consentiant to the same passage in the Digest by applying such an agreement to both ecclesiastic and civil judges.95 We can point to another example that concerns the bailee in commodatum, the technical term that is used even now to describe an individual who receives goods on loan

93 For example, consulting those who have above all followed the tradition of the texts, and have consulted the manuscript sources: Giovanni Chiodi, L’interpretazione del testamento nel pensiero dei glossatori (1996); Orazio Condorelli, Clerici peregrini. Aspetti giuridici della mobilità clericale nei secoli XII–XIV (1995); Conte, Servi; Errera, Arbor actionum; Francesco Migliorino, In terris Ecclesiae: frammenti di ius proprium nel Liber Extra di Gregorio IX (1992); Giovanni Minnucci, La capacità processuale della donna nel pensiero canonistico classico (1989–94); Fulvio Mancuso, Exprimere causam in sententia. Ricerche sul principio di motivazione della sentenza nell’età del diritto comune classico (1994); Andrea Padovani, Studi storici sulla dottrina delle sostituzioni (1983); Nicoletta Sarti, Appunti su carcere–custodia e carcere–pena nella dottrina civilistica dei secoli XI–XVI (1980–81), Sarti, Maximum dirimendarum causarum remedium. Il giuramento di calunnia nella dottrina civilistica dei secoli XI-XIII (1995), Sarti, Un giurista (1990). 94 Santarelli, L’esperienza giuridica, pp. 131–138. 95 A century later, Bartolus raised the question of whether a clergyman could change (prorogare) the jurisdiction that was natural to him and choose another judge; and whether the vassal could, in the same way, extend his rights without his master’s consent (invito domino).

220 chapter six without payment.96 According to the law of Justinian (Dig. 13.6.5), such an individual was responsible for negligence in so far as the contract was understood to be in his favour. But this weighed less heavily in those exceptional cases where the bailee was exonerated from responsibility due to the degradation or loss of the loaned goods as a result of unfore- seen circumstances (casus fortuitus). Medieval jurists distinguished between different kinds of fault (culpa lata, levis and lievissima) in the fulfilment of individual contractual obligations, with the result that they drew distinctions between commodatum gratia commodantis, gratia com- modatarii and gratia utriusque, depending on how the loan favoured the bailer, the bailee or both. In his Summa Codicis, Azo could thus distinguish the extent of culpa lata, levis and levissima in the various categories. Where the bailer was favoured, only malice and culpa lata applied; where the advantages were mutual, malice, culpa lata and levis were considered. Clearly, we are a long way away from the littera of the legal texts. It is, nonetheless, interesting to note that the Liber Extra picks up on the findings of the civil lawyers, and applies culpa levissima as well to the commodatary, or bailee in commodatum acting in his own exclusive interests (X. 3.15.1). Ownership of property (dominium) was another area where new ideas emerged. The glossators elaborated the theory of plurality of dominia, whereas according to Roman law there could only be one such property. In the case of renting (locatio) Roman law did not provide a ius in re, a ‘real’ right covering the arrangement, defendable against all with an actio in rem relative to the agreement. The renting of property was viewed, rather, in terms of an obligatory relationship and thus defensible only against the grantor (actio in personam). But because stable arrangements of this kind had been normal since the early middle ages, the jurists constructed the locatio ad longum tempus, or long-term lease,97 as a real provision, quite separate from that governing ownership of property. This resulted in the establishment of the dominium utile (from the Roman

96 Santarelli, L’esperienza giuridica, pp. 138–143 (and onwards for the locatio ad longum tempus). 97 These were situtations amounting almost to ownership that came about because under Roman law this tended to be the way in which taxable land was parcelled out; those holding land tended to become proprietors in the late imperial period, and there was then the distinction between actiones directae and utiles, with the resulting impression that there was an alternative between direct rights and rights of use: Robert Feenstra, Les origines du dominium utile (1974), but see also Paolo Grossi, Locatio ad longum tempus – Locazione e rapporti reali di godimento nella problematica del diritto comune (1963).

protagonists of theory and practice 221

actio utilis) at some time between the end of the twelfth and the beginning of the thirteenth century. It was agreed that where possible a rei vindicatio utilis (staking a claim to the property in the same way as that granted to the true owner) should apply to a rented dominium. In this way, an individual leasing property assumed a position that was closer to that of a proprietor, in the sense of being the formal holder of the land, as had already been established for vassals with the edictum de beneficiis, and for grantees of locatio ad longum tempus. All these were accepted as ‘real’ rights, that is to say fixed in the context of the ‘thing’ (res), like those of the livellum, emphyteusis, and enfeoffment. The Libri feudorum (De alienatione feudi, I.12) justifiably intended the emphyteusis grant as a kind of transfer, or alienation,98 whereas the usufructuary who could not be defined as a property owner ended up being downgraded to a status of personal servitude.99 As we have seen, this situation was reached by creating the actio utilis as a category in itself. In effect, it was a judicial action to protect existing right, which in Roman law was only applied exceptionally by the ‘praetor’ in circumstances comparable to those protected by an actio diretta, but without some of the latter’s requirements. In the same way, the actio legis Aquiliae was originally only applied in order to obtain compensation for direct physical damage. With the actio utilis, such application was extended to every instance in which damage was incurred, even when not directly affecting the object physically.100 Clearly, distinctions and investigations of this kind in the texts’ margins could, if necessary, be used both in lay society and within the ecclesiastic world. They were, in fact, widely adopted in additions to the canonist texts as well as by those engaged in their interpretation, apart (naturally) from the option adopted by civil lawyers in favour of the imperator

98 The real proprietor was thus left with only the rental right, which was modest in general, and which in the early modern period resulted in ‘redhibitory taxes’, and to the transformation of ‘used’ domains into ‘direct’ domains with the final expropriation of the land from the original owner: the Italian civil code of 1865 (article 1564) allowed for the redeeming of the possession through the payment of an annual rent capitalized with legal interest. 99 Paolo Grossi, Il dominio e le cose (1992), pp. 118–122. The divided domain was thus seen in terms of something in its own right in re propria, as well as in terms of something that was transferable in re aliena, a distinction that was only drawn in the sixteenth century and later under the doctrine of the German Pandektenlehre: see Roberto Feenstra, ‘Dominium and ius in re aliena’ (1989), especially p. 115 f. quoting the French jurist of the sixteenth century, Hugues Doneau. 100 Robert Feenstra, ‘L’actio legis Aquiliae utilis en cas d’homicide chez les glossateurs’ (1986).

222 chapter six dominus mundi. That rule was perceived as only right and proper, since it showed respect for the original texts. In most cases the end result was the invalidation of the Donation of Constantine. This was not on the basis of its being false, because that issue had in fact not been addressed for a long time and indeed was not effectively confronted until the Renaissance. Rather, it was considered invalid in so far as it was incompatible with the commitment of the emperor as Augustus, both to increase the Empire and to take it to new levels. This was not therefore a doctrine that was anti-ecclesiastical so much as it was one in tune with Romanist sources. In other words, this line of reasoning distinguished between public law which consisted of appropriate rules involving certain limits and obligations for public powers, and private law where such limits and obligations were very different. During the early Middle Ages, such distinctions had been ignored in donations of public power. However, interest in the differences between public and private law was renewed when it became clear that private individuals had usurped certain royal prerogatives that public powers now wanted to regain. It was now deemed appropriate that public law should once more be subjected to a very different discipline from that which existed in the private arena. At the very least, the former’s indefeasibility and immunity from acquisition by prescription should be re-established. Might not these public, indeed ‘stately’ aspects that civil lawyers were re-instating, also by chance have been useful for the construction of the papal State and a universally omnipotent Church? This was in any event the case, in general terms. It is clear that later on debates on the issue went in very different directions. This was partly because they were not influenced or constrained by a higher authority– and who in any case could have directed them? But neither were there any limits apart from those of an internal coherence imposed by the systems of logic that were then being refined, and a certain kind of adherence to the sources, which occasionally, and at that time with very precise motives, amounted to a deviation from the same. Anyway it was immediately clear that the civil and canon lawyers could not have the same approach to the texts. The former provided a multi-facetted but archaic array of provisions that had for the most part survived shorn of any particular authority, given that it was the civil lawyers themselves who had reminded Barbarossa what it meant to be a real Emperor. As a result, they could tint their brushes to paint the new world of law in as many colours as they wished. By contrast, the arena of canon lawyers was from the start strongly controlled by ecclesiastical hierarchy. It was, moreover, dominated as never before by a legislator who was ready to intervene with exact provisions to

protagonists of theory and practice 223

correct the thrust both of Gratian’s Decretum and of any interpretations of that text. The canonists therefore adhered more closely to the texts, often need- ing to illustrate ex novo, without having a hinterland of background material to draw from. As a result, they were also more sensitive than the civil lawyers to the problems of the relationship between positive or man-made laws and the higher spheres of natural and divine law; to the relationship between law, morals and theology; to distinctions between crime and punishment; between internal responsibility, of the conscience before God, and external responsibility, in the face of the Church. At the same time, they knew how to concentrate with keen acumen on the problems of a central power and overriding leadership quite distinct from the subjects, and power assumed by those with individual responsibilities – for example, that of upholding the rights of criminal courts to mete out punishment.101 Some have argued that a number of passages in these works herald the first theorizing about a real State. Not coincidentally, the point has also been made that the Church itself, around 1200 and thanks to its powerful and hierocratic popes, was well and truly a proto-State.102 Two different methodologies emerged as a result of the combined philological and exegetic work carried out by Irnerius’s ‘doctors’. The first, that of Bulgarus, was regarded as more innovative since it was more theoretical, and adhered more closely to the model of reading the law in order to understand it.103 The second, that of Martinus Gosia and his followers (consequently known as the ‘Gosiani’, or ‘Martiniani’), rejected the dictates of ius strictum in favour of aequitas, and was thus disposed to find compromises with the traditional values that were embedded in current practice.104 For example, Martinus welcomed canon law’s stance on matrimony, except for the line taken in civil law on family ties in the context of hereditary succession.105 In the case of usury (which at that time was

101 Even if these established deterrents that amounted to punishment of the innocents, following crimes committed by their parents (as, for example in questions of heresy); for the ‘classic’ doctrine, see Vito Piergiovanni, La punibilità degli innocenti nel diritto canonico dell’età classica (1971–74). 102 For the first argument see Sergio Mochi Onory, Fonti canonistiche dell’idea moderna dello Stato (Imperium spirituale – iurisdictio divisa – sovranità) (1951), which despite the disputable conclusions reached, offers a collection of useful sources; for the second argument see Berman, Diritto e rivoluzione. 103 Paradisi, ‘Diritto canonico’, pp. 577–580. 104 As summarized by Cortese, ‘Alle origini’, p. 30. 105 Cortese, Il diritto, II, p. 30: this is a thread that links Martinus Gosia a with Saint Peter Damian. Under Roman law (as is clear already from Ist. I.10.2), reference was made

224 chapter six perceived as any interest on a loan) Gosia did not argue that Roman law (which allowed usury) was inferior to ius divinum, only that the part set down in Novel 34 regarding money which, according to some, applied only to peasants and to Constantinople,106 should not be deemed to have greater weight. It is in fact easy to see how the relationship between civil and canon law was immediately problematic in a number of very different ways. Some civil lawyers resolved this by ignoring the difficulties, and by restrict- ing their enquiries to the sources of Justinian’s law. This was what happened, for example, with the Donation of Constantine, which – being inserted in Gratian’s Decretum – was either not taken into consideration, or else, in the light of Roman law, as we have seen, was held to be invalid. For civil lawyers, Roman law was binding in as much as it was directed at the Empire, and the emperor, as that law decreed, was still dominus mundi. It is no coincidence that Placentinus referred to Justinian’s ‘ager Iustiniani’ in France.107 But at the same time, pope Lucius III (1181–85) canonized the principle whereby Roman law was only supplementary law (lex suppletoria) in respect of canon law. The hierocratic tendencies of the canonists were also gathering force during this period. The end result was that the Empire was regarded merely as an institution under the protection of the Church, which at that time assumed superior powers over it. All Christians were therefore subject to Roman law by dint of papal authority (ratione pontificis, in the words of Uguccio), and were consequently obliged to follow Roman law only in so far as it did not conflict with the norms of the Church.108 The indissoluble bond thus established between secular and ecclesiastical law, the utraque lex (two parallel laws), ended by working in complete favour of canon law. This was presented as ius novum that assimilated ancient pagan law and where necessary, corrected the defects. The trend was promulgated by the great pope Innocent III in numerous decretals straddling the two centuries, posing the obvious question stemming from the common sense of a religiously- inspired society of whether or not the salvation of an immortal good to the initial head of the family and computations made from there downwards. According to canon law it was enough to start from the common ancestor. 106 As summarized by Cortese, Il diritto, II, p. 86 fn. 58. 107 See the Introduction to the Placentini Summa Codicis edited by Gustav Pescatore, Beiträge zur mittelalterlichen Rechtsgeschichte, p. 13; in the reprinted version of the Placentini Summa Codicis (1962), p. ix. 108 Stephan Kuttner, ‘Papst Honorius III. und das Studium des Zivilrechts’ (1983). For the links between the two laws see Prodi, Una storia; the contradictions do not detract from the overall concept: see ahaed.

protagonists of theory and practice 225

(the spirit) should take priority over very fragile and degradable matter (the human body). Could it be that this debate was still raging in the thirteenth century, not so much because it was conducted between two important people, but because it was considered at Bologna – by definition the centre of innovation – rather than in schools elsewhere, where a more practical approach based on Romanist methodology was favoured?109 Perhaps, but it may also be due to the fact that this conflict was eternal, and could not be solved simply on the basis of doctrinal interpretation. If there was a desire to maintain the law as it had been laid down, this would mean moving in directions which could result in unjust solutions; and this would be a situation which would become obvious over time, and even lead to establishing well-known adages such as dura lex sed lex (hard law, but nevertheless law) or summum ius summa iniuria (the greatest of laws can also create the greatest damage). It should also be remembered that the new communal institutions fought against established legal systems, with their specific objective of maintaining a certain degree of order and the fact that they conceded par condicio in the very confusing and violent political games of the urban centres. On the other hand, the very influential Cicero explained in his De inventione that, convinced by the wise legislator, men would bow down to the law and abandon their brutish ways. In his De officiis he further argued that governors were at one and the same time both leaders and slaves. They had to recognize ‘se gerere personam civitatis’ (that the city governed its citizens), but at the same time that they represented the powers of the civitas over which they presided. Meanwhile, in Oculus partoralis – an important proto-thirteenth century text concerning the government of communes – it was proclaimed that it was the law itself that governed.110 Clearly, a number of very different stimuli were in play: from the strict legality advised in certain political contexts to the fairness expounded by religion that was particularly appropriate in the context of princes, to the magnanimity of the powerful. But in the context of fairness, were the peculiarities of a case that required a fair intervention, but one which in itself violated the wish of the legislator, taken into account? The solution,

109 The gosian jurists (followers of Martinus Gosia) were more original in terms of the literary forms they adopted, as well as in the training of judges and professional lawyers. 110 For these texts, which were important for the foundation of republican theories, see Enrico Artifoni, ‘Retorica e organizzazione del linguaggio politico nel Duecento italiano’ (1994), and Nicolai Rubinstein, ‘Le origini medievali del pensiero politico repubblicano dei secoli XV e XVI’ (2000). Johannes Viterbensis’s Liber de regimine civitatum (1901), from the middle of the thirteenth century, is also readily available.

226 chapter six unreachable in abstract terms, lay within the institutional and political arenas, where space was allowed for jurisdictions of fairness or for interventions to bail out political power. But, as usual, such solutions were sought or justified against the background of heated debate amongst scholars, and by the necessities of legal practice.

6.4. Trial Proceedings and the Foundation of Ius Commune

Justice was the subject of much discussion in both theological and juridical university ‘departments’, and not only in deference to the themes of individual schools, or for didactic purposes. We have already considered the prevailing uncertainties and difficulties encountered in navigating around differentiated and stratified regulations, when analysing trial proceedings around the year 1100. But many difficulties also arose from local customs that gave rise to what by then appeared to be a really bad system of judgement (pravus ritus iudiciorum), and that involved the ‘judgement of God’ even in issues such as the centuries-old controversy existing between the dioceses of Arezzo and Siena – two ecclesiastical bodies that, according to the usual historical simplifications, are said to have been governed by Roman law.111 This explains the glossators’ particular interest in the issues of trial proceedings. Such interest is clearly demonstrated by numerous judiciary orders and ‘trees’, or expositions concerning legal actions. Adopting the meaningful metaphors common to his time, Placentinus recounted how he had encountered a very beautiful woman who gave him a small book about legal proceedings (De actionum varietatibus). Another work entitled Arbor actionum (tree of actions) can be attributed to Bassianus, who was also the author of De natura actionum.112 Around the thirteenth century, the civil lawyers also took the lead in debates concerning duels, an arena previously monopolized by those concerned with Lombard law.113 But the dissemination of Romanist teaching was slow during the twelfth century, even in northern Italy, where the universities were taking root. During the first fifty years of the twelfth century, the traditional placitum with the participation of public authority, namely dukes and counts,

111 Fried, Die römische Kurie, p. 151–174, and Nicolaj, Per una storia. 112 Both of these have been subjected to critical analysis and edited by Hermann Fitting in Juristische Schriften des früheren Mittelalter (1965), pp. 128–131 and pp. 117–127, but both the attribution and the dating have been questioned (Cortese, ‘Alle origini’, p. 42). 113 This is demonstrated by the treatise edited by Giuliana D’Amelio which is full of quotations from the Corpus iuris: Cortese, Il diritto, II, p. 127.

protagonists of theory and practice 227

was gradually dying out as a result of the crisis in the Kingdom of Italy, and local courts presided over by bishops and consuls were being set up, which continued kind of justice based on arbitration, characteristic of the late eleventh century. Only during the fourth decade of the century is there any evidence of justice being pronounced by consuls, despite the fact that consular duties had been established at a much earlier date: at Milan in 1117; at Pisa in 1112, and at Lucca in 1119. Then, most commonly around the fifth decade, bishops and consuls appear to have passed sentences in the presence of sapientes, or wise men, who offered their consilium (advice, which at this time was in many cases not yet sapientis, or learned and individualized counsel). This new form of tribunal turned away from the traditional public placitum, because this was generally considered to lack legitimacy.114 However, already around 1130 ecclesiastics no longer participated in tribunals in Venice.115 Meanwhile, at Pisa there was a move at an early date to produce very learned legal documents, quite apart from the aforementioned laws,116 in which testimonies were priori- tized and scant opportunity was offered for the judicial duel.117 These were, however, precocious areas. Elsewhere, Lombard trial proceedings continued,118 and seigniorial jurisdictions gained clear authority. This is particularly well-documented for Lombardy.119 In Obertus’s letter on feudal law he stated that in Lombardy some cases were decided according to Roman law, others according to Lombard law, and others again according to regional customs. In the 1216 liber of Milanese customs we find a tripartite division: between the two ‘national laws’ and the municipal law of the city (lex municipalis nostrae civitatis).120 Byzantine law continued to be used in the Kingdom of Sicily, and even under the Normans the wider circulation of legal texts resulted in the re-organization of the Prochiron legum. Roger II, for his part, produced the Novels in Greek in 1150.121 In fact, the local Greek colonies whence many of the notaries came during this period were highly respected, and consequently much

114 For all this, see Christopher Wickham, ‘Justice in the Kingdom of Italy in the Eleventh Century’ (1997), pp. 241–248. 115 Zordan, L’ordinamneto giuridico, p. 61. 116 The document concerning trial proceedings of 1155, published by Johannes Fried in Classen, Studium und Gesellschaft, pp. 99–125, is very significant in this context. 117 Wickham, ‘Justice’, p. 201 (and p. 202 fn. 36, for a duel at Pisa in the consular court, despite the imperial privilege of 1081). 118 Kantorowicz, De pugna. 119 François Menant, Campagnes lombardes au Moyen Age (1993), pp. 426–447. 120 See respectively Lehmann, Consuetudines, p. 115 (Libri Feudorum II.1) and Liber consuetudinum, p. 66 (3.l). 121 For all this, see Cavallo, La circolazione, pp. 97, 102–108.

228 chapter six emphasis was placed on disseminating their culture. This explains the late and very widespread diffusion of such ancient texts as the Basilica and the imperial Byzantine Novels, as well as the Greek paraphrase of Justinian’s Institutes that was compiled by Theophilus.122 There is no need to linger over the delays in the reception of the new, rational trial proceedings that were drawn up by the civil lawyers of the universities, and that were integrated with papal decretals and canonist teachings. It was natural that Roman and canon law as elaborated at university level would take some time to become established. It is also obvious that it would take root in different ways depending on whether the environment was urban or rural, and also between city and city, and between the north – the only area with abundant universities – and the south. The combined efforts of the jurists and those who involved themselves with the decretals,123 as well as the important deliberations of the fourth Lateran Council of 1215,124 resulted in a tendency towards trial proceedings that were no longer public, oral, and based on proving one’s innocence before God, as for example through the duel, but which involved written evidence.125 These proceedings were presided over by ‘experts’, and based on a rational examination of the mainly documentary and testimonial evidence, the admissibility and plausibility of which was carefully considered by the jurists. For example, could a woman give evidence, and how?126 The changes wrought by such reforms were epochal, since trial by ordeal did not allow an appeal, and was thus obviously limited to one particular case. After all, who would have been able to review a deliberation based on divine Judgement? The heavy reliance on

122 Cavallo, La circolazione, p. 114 onwards; however, by contrast, Greek law regressed under the Swabians, even though Frederick had his Constitutions translated into Greek. 123 Gratian had collected texts both in favour of and against ordeals, as if he were personally somewhat undecided on the matter, but later interpretations were inconsistent (Stephanus of Tournai allowed them only where the crime was obvious but denied by the perpetrator; Uguccius was against ordeals); Alexander III had already intervened with a letter to the bishop of Upsala in 1171, in which he condemned the ordeal of red-hot iron and of boiling water (Gaudemet, ‘A propos’, p. 10); see also Kenneth Pennington, ‘Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius’ (1998). 124 Lateran Council III (1179) chapter 20 had condemned tournaments; and there were a number of general prohibitions in several decretals issued by Innocent III which were finally confirmed in Lateran Council IV, chapter 18. 125 Mauro Cappelletti, Procédure orale et procédure écrite (1971), p. 42, reminds us of the decretal issued by Innocent III: ‘Only that which is in the judicial acts is relevant’ (‘Quod non est in actis non est in mundo’). 126 For the problems arising from this, see Minnucci, La capacità processuale.

protagonists of theory and practice 229

written or oral pieces of evidence (contractual records, wills, etc.) allowed instead for a re-examination already established by Roman law, and technically known – as it is today – as an appeal. This remedy for the possible injustice of an initial sentence found favour with the two superior authorities, who were only too willing to get involved in such a process: the pope, because he could thereby centralize his power in a concrete way, initially setting up bishops as local ordinary judges; and the emperor, who despite various concessions of privileges normally reserved the responsibility of hearing appeals to himself, at least those involving the more important cases. The two pre-eminent powers of the Christian world were indeed more than happy to present themselves as the highest judges – the source of true justice, as a result of their superior function and responsibility as protectors of the peace and of the weak. According to official ideology, with its meaningful symbols of power such as the sceptre, this was precisely the role of these two individuals. But these precepts and teachings did not take root immediately and they did not apply throughout the whole of legal practice.127 For example, despite the prohibitions of canon law, and sometimes even as late as the fourteenth century, communal statutes continued to provide for the judicial duel, which civil lawyers were in fact obliged to assess,128 even though this provision fell outside traditional Roman law. The inquisitorial trial process and its acceptance by the communes was another very important development in trial proceedings, particularly during the early thirteenth century. This was largely due to a number of decretals calling for the persecution of heresy through special commissions that were established in the place of the customary diocesan tribunals.129 We thus witness the beginnings of the so-called Inquisition. For its time, this was an advanced method of prosecution, because by virtue of

127 For Italian history, for example, there is nothing that matches the Austrian studies by Stelzer, Gelehrtes Recht, and Othmar Hageneder, Die geistliche Gerichtsbarkeit in Ober- und Niederösterreich von den Anfängen bis zum Beginn des 15. Jahrhunderts (1967). 128 As, for example, in the little proto-thirteenth century treatise which questions the lawfulness of the duel in the light of Roman law: D’Amelio, Notizie (text on pp. 112–116; and commentary on pp. 108–112). The question of ordeals still continues to excite individual imaginations and journalism (based on literature going far back in time): see Franco Cuomo, Nel nome di Dio. Roghi, duelli rituali e altre ordalie nell’Occidente medievale Cristiano (1994). 129 There is a huge amount of literature on this subject: see Claudia Becker, ‘Sub gravioribus usuris. Darlehensverträge der Kommune Chiavenna im 12. und 13. Jahrhundert’ (1997), p. 45 f., for a comparison of records dating to between 1189 and 1251, which demonstrate clearly the recognized acceptance of the doctrines of learned law (as for example in the renunciation of exceptions).

230 chapter six his office the judge was obliged to side against the offender, rather than proceeding on the basis of the formal accusation brought by the injured party. Up until this point, the latter had formed the basis of the penal process. As a result, the trial was effectively reduced to a confrontation between the accused and the defence during which the judge remained (as we would now say) a ‘third’ super partes, arbitrator and director of the dispute, guardian of the rules, in other words, the ordeals. Now, instead, a triumphant Papacy maintained that heresy, from the Waldensians to the Cathars to the Albigensians, was an evil that required the establishment of an ad hoc agency to persecute it as lese-majesty, indeed, as divine treason, independent of any kind of private accusation, and with a dire punishment if proved. The penalty for heresy was death at the stake and the confiscation of the heretic’s possessions, with repercussions also for his sons, resulting in infamia, a kind of capitis deminutio, or privation of civil rights (a sort of objective responsibility for the deeds of others). In effect, this amounted to punishment of the innocent, which was also an issue of intense debate. The inquisitor was forced therefore to proceed ex officio, simultaneously assuming the role of procurator and judge, even though he usually listened to the advice of consultant theologians and canonists before passing sentence. This was the so-called trial by inquisition. In terms of serving as a crime deterrent it was undoubtedly a new tool, even in the civil courts, where it was more or less readily accepted by the lay powers. Nonetheless, those authorities continued to leave room for the accusing party to present their case for a considerable period of time.130 The accusatorial system had had one very obvious weakness. Accusations were either not presented or retracted out of fear of retaliation and threats from those more or less powerful offenders denounced by families who had suffered injury as a result of their criminal acts. Many crimes that had once gone unpunished were now taken in hand, because the public office itself assumed the task of prosecuting the criminal. While there were obvious advantages, we should also bear in mind the dangers that could derive from such practice in terms of the excess and abuse of power. The trial was no longer an argument between the individual parties, but instead unequal combat in which the defence was easily limited or annulled – as in time happened with the creation of the religious Inquisition.

130 Scharff, Die Inquisition. Little was said about this in the chronicles, confirming that we are generally the victims rather than conscious protagonists of several important contemporary events.

protagonists of theory and practice 231

Such was this inequality that an institute that was unfortunately not covered by the ecclesiastical condemnation of the ordeals – in other words, judicial torture – was now re-positioned alongside other methods of proof envisaged under Roman law. It is easy to say now that this was an ordeal in itself, because strictly speaking the extent to which one was able to resist – at least in the religious context – depended on divine favour. But it was not viewed as functioning in that way, and the path was opened for its use over the following centuries. Let us be clear. We are speaking here of official torture: that is, torture ordered and supervised by a judge with, in addition, the presence of a notary to record questions and answers. When we speak of ‘judicial’ torture, we therefore mean torture that was carried out officially by a public power, whether lay or religious. We do not mean those acts that ‘degrade’ or display a dramatic disregard for human beings that are adopted by police throughout a large part of the world, at times even today in very different and obviously illegal circumstances, which remain largely hidden from public view. We are dealing here with torture that was practised even in the lay environment, and which the jurists included in specific treatises in chapters entitled de tormentis or de questionibus. At an early stage, they began to surround this matter with various restrictions so that it should not go beyond its intended function. Thus torture was used only when there were no alternative ways to obtain a confession of guilt, or where a witness was considered suspiciously reticent,131 and not merely to inflict a punishment. This was not, however, the only important innovation in trial proceedings. Another procedural development that was famous for its effect on the role of jurists was imposed around the year 1200 in the lay courts of the communes and, despite the lack of papal approval, even in some ecclesiastical courts.132 This was the process, codified at an early date in the statutes, whereby the judge turned to accredited university jurists – who very quickly became known as doctors by dint of their being university teachers or graduates – so that light should be shed on one or another uncertain legal point arising from a particular case. The result was the aforementioned consilia, which formed part of the activities of glossators, civil lawyers and canonists. Some will say: ‘What is strange about asking for an opinion from a qualified professional?’ The oddity lies in the fact that the officially solicited

131 See Massimo Vallerani, ‘Pace e processo nel sistema giudiziario del Comune di Perugia’ (1999), which also includes an up-to-date bibliography. 132 Piero Fiorelli, La tortura giudiziaria nel diritto comune (1953–54), is a classic study, which deals with early medieval doctrine in vol. I, p. 114 f.

232 chapter six opinions subsequently assumed an authority of their own. Professional opinions solicited by judges did not amount to consultations that, like any other, were open to discussion. Rather they were treated as ‘oracles’ from learned individuals external to the tribunal; opinions given with the authority and the binding assurance of an expert super partes, who was outside the dispute. This practice became even more widespread following the establishment of the podestà court: that is to say, from the third decade of the thirteenth century onwards, when tribunals presided over by foreign podestà were set up in the communes. These bodies provided opportunities for local jurists organized into local ‘guilds’, together with or separately from the notaries, to become involved in the administration of justice. Local jurists were familiar with the local laws that the podestà swore to observe, but which due to lack of time they were unable to examine in any detail. The judges for their part were particularly interested in such an arrangement, since in this way they could align themselves with the consilium in respect of judgements reached in trial, unless to do so was manifestly absurd. They were thus in some senses protected when, at the end of their term of office, anyone could take them to task for their perceived injustice or excess of power. Even the individual parties had an interest in this development, because the decisive point of law was thereby placed in the hands of an expert, and they could thus hope that the course of justice would be speeded up. The authority of consultants was such that we now have various examples of judicial opinions that lack any kind of justifica- tion for the conclusions reached. The consultant declares that he has looked at the necessary documents or at any rate studied the problem, and pronounces without explanation on the part of one or other of the parties. According to these judicial reports, the judge then pronounced the sentence ‘secundum consilium domini…’ (according to advice received). If this is an accurate reflection of the prestige acquired by the ‘products’ of the universities, there seems little doubt that we are witnessing the established success of such institutions towards the end of the period under consideration. But this was in any event a time of learning and as a result of expert opinions. The new trial procedures based on rational evidence and studied by popes and university doctors alike, allowed for recourse to experts of every kind, who, through their professional advice, influenced the course and outcome of individual cases. Similarly, it was precisely at this time in Italy, and in particular at Bologna, that the first medical experts began to pronounce on the links between wounds and death, injuries and abortion, and so on.

protagonists of theory and practice 233

In Rome, the pope, by now the indisputable head of the religious establishment, was not personally involved in trial procedures. Instead, he delegated the task of studying and reaching decisions about appeals and supplications – which arrived in ever increasing numbers from all over the Catholic world – to auditores (capellani domini papae). As a consequence, the papal Curia began to institutionalize itself at an early date, prompted by the pope’s new absolutism and his European-wide influence in the role of papa-imperator. This resulted in specialized tribunals such as the Audientia litterarum contradictarum, which certified the validity of documents, especially those papal records upon which lucrative ecclesiastic stipends depended;133 the Apostolic Penitentiary, that took charge of centrally administering acquittal through ‘pardon’ – with an automatic limitation of the authority of the episcopal courts as well as the apostolic ‘Camera’, or chamber – that was in charge of patrimonial matters.134 The new process, known as the trial procedure of Roman-canon law, was consistently adopted in ecclesiastical tribunals but not always or immediately in lay arenas, and signified the convergence around the thirteenth century of civil and canon lawyers, who had previously been indifferent to, or suspicious of one another. At this point, as one might say, synergy was established. By combining the basic tenets of Romanist and canonical texts, especially the decretals, the jurists were able to create a new kind of process, a trial procedure that was to be hugely successful. Of course, like the institutes of substantive law, this new kind of trial procedure was adopted at different times and in various ways in different parts of Italy and Europe. But the new trial proceedings show that jurists engaged in one part of the law or another had by this time created a ‘common law’, applicable to everyone, ready to be absorbed directly at the local level as the established legislation (as indeed happened in the European ecclesiastical tribunals, or, de facto, in lay legal practice). The path towards European judicial unity passed through the episcopal courts, the tribunals that the bishops who made themselves felt in all other affairs placed in the hands of ‘officials’, who in their role as substitutes for the ‘ordinary judges’ called themselves vicarii. These individuals – normally university graduates – presided with uniform rules over ecclesiastical courts throughout those parts of Europe that offered

133 Peter Herde, Audientia litterarum contradictarum. Untersuchungen über die päpstli- chen Justizbriefe und die päpstliche Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts (1970), is a fundamental study in this respect. 134 For example, Petersohn, ‘Die päpstilche Kanonisationsgerichbarkeit des 11. und 12. Jahrhunderts und die Heiligsprechung Karls des Grossen’ (1976).

234 chapter six obedience to Rome, especially after the emergence of the Liber Extra. Ecclesiastical courts considered numerous cases that we would now regard as ‘secular’ – concerning not only marriage, but also many contracts corroborated under oath. It is thus easy to see how, at that time, and as never before, Europe experienced justice that was administered in the same language, that of Roman law, and with the same criteria, those of general canon-Roman law, which in terms of their legislative origin and doctrinal development, had emanated from the universities.

6.4.1. The English Exception It was also possible however, that Justinian’s law would not be adopted. This was certainly the case in England, a country whose juridical development differed slightly from that on the continent of Europe. By contrast with the continent, England was influenced by the Romanist teachings of Vacarius, a Lombard cleric who emigrated to England around 1143 into the retinue of the archbishop of Canterbury. It is possible that Vacarius first taught at Oxford. He was certainly there during the last two decades of the century, working in the field of canon law. He was also the author of the Liber pauperum,135 a skilful anthology of passages from the Digest and Code (the full version) that meant ‘poor’ students of Roman law could avoid the expense of buying the complete and costly originals. They were known, as a result, as the pauperistae. The Liber pauperum was furnished with glosses drawn from material pre-dating Vacarius’s arrival in England. But Vacarius did not succeed in his attempt to establish the practical application of Roman law. During those unsettled decades of conflicts between kings and the Papacy and between kings and nobles, etc., the first writs (brevia in Latin) were being formed, whereby the king ordered his sheriffs to take responsibility for individual lawsuits, and only in certain cases to present them to the royal court. As a result, English common law was established with its own individual language – that of French law because the Plantagenets who governed England at that time were of French origin – as well as its own channels for the creation of judges and advocates that were quite separate from those of the universities. These were the so-called ‘Inns of Court’, a type of college where young men learned about legal language and the solutions

135 See The Liber pauperum of Vacarius (1927); see also Francis de Zulueta-Peter Stein, The Teaching of Roman Law in England around 1200 (1990), pp. xxii–xxxvii. He also wrote a Summa de matrimonio (and a theological De assumpto homine), which was cited by the canonists.

protagonists of theory and practice 235

offered directly by judges under the royal jurisdiction of the King’s Bench and the Court of Common Pleas.136 Nevertheless, Roman law was taught in the universities, not only because it was deemed both formative and international, the language of Roman law being by then the language of public powers in Europe, but also because the canonists had to pay attention to it, being interested in the concepts of Roman law, which were the same as those they were redis- covering in the canonical collections. As a result, England underwent very different developments depending on which court was accessed. In ecclesiastical courts continental practices were adopted. This was also more or less the case for commercial or maritime courts. In those arenas continental customs had to be taken into account, which at a later date were influenced by learned doctrine. In those courts under lay authority, the common law of the kingdom was applied, gradually taking the place of the seigniorial courts that applied traditional local customary law through processes that were often rudimentary and arbitrary compared with the refined methods of Roman canon law. England was not affected by the new trial procedures because these only became a well-defined and reliable model around the year 1200, when common law had already been established.137 This had major consequences. (Even today, this English peculiarity poses problems within the European Community.) But this did not mean that the interest in learned Roman law exerted no influence over work concerning common law. Already before the twelfth century, a mysterious personage called Glanvill had offered an exposition of existing writs. Thereafter, however, it was most notably Henry of Bracton (died 1268) who presented a detailed analysis of English law in Latin in a book entitled De legibus et consuetudinibus Angliae.138 This famous work can nevertheless best be understood in terms of its illustrating a time when continental university law was being circulated in England. The De legibus et consuetudinibus Angliae is in fact permeated with the Romanist teaching of Bologna, especially that of Azo, and as already mentioned, the English royal court received Accursius’s son shortly after this date. The English ‘deviation’ was in no way understood as reflecting a cultural choice intended to divide the island from the continent. It is only

136 In other words, the court of common placita. 137 Raoul van Caenegem has made a particular point of this, for example in his Judges, legislators and professors. Chapters in European legal history (1992); a synthetic analysis of trial proceedings in Europe can be found in his Methods of Proof. 138 Edited in Bracton on the Laws and Customs of England (1968–77).

236 chapter six in modern times, and as a result of religious and political conflict that the ‘otherness’ of the English approach has become an issue, with the result that it has ended up influencing its own historiography – especially during the nineteenth century – through an explosion of nationalism. At an earlier date, English common law was a national law like any other. That is to say, it was comparable to the legislation that the national kingdoms of the time were struggling to establish in the face of resistant cities and territorial lords.

6.5. Ius Commune (Continental Common Law) and Local Law

We have finally reached the point where we can summarize ius commune as developed within the universities in the following terms: – as an element in the cultural creation of jurists, and in particular involving an uniform approach in both lay and ecclesiastical arenas, as a result of the formalization of the concepts and their own homogeneity, emerging as they do from a Romanist base; – as a superior and unparalleled model of written legislation, because corroborated by antiquity and centuries-old wisdom, and as such, a source of legislative and doctrinal solutions available to public powers, both lay and ecclesiastic, for the development of their own legislation; – as a stimulus to the technicalization and transcription of local norms, that would have taken account, consciously or otherwise, of the conceptual patrimony of ius commune; – as criterion for the interpretation of local legislations, given that these were written in the same ‘language’ as ius commune, which they repeated, albeit adding details to, or modifying its teachings; – as a method of integration – a way of complementing local laws each time something appeared to be missing. This was particularly significant because during the thirteenth century it was well understood that certain lacunae could be resolved through recourse to the ius commune which was by now widespread and well-known. With the ordinary Glosses defined and the universities functioning, it would seem fair to say that the tenets of ius commune had been established and that the system itself was in operation by the middle of the thirteenth century. It is no coincidence, therefore, that the age of the glossators has also been called the ‘classic age’ of ius commune, by that time variously applied throughout Europe. Indeed, recent studies have

protagonists of theory and practice 237

clarified the widespread distribution of Italian university doctrines even in England and Spain.139 But how did jurists come to terms with the above-mentioned relationship between ius proprium and ius commune during this period?140 In the twelfth century the problem of a law that failed to observe imperial legislation – that of the dominus mundi – was defined as a problem of custom141 and therefore involved a re-examination of the conflict already noted by Irnerius during his own time. The distinctions drawn were extremely fine, as for example when reference was made to general customs throughout the Empire that quite clearly abrogated the laws, whilst local customs were regarded as failing to observe proper local legislation only in so far as they were peculiar to a particular locality. Furthermore, it was argued, such practice was acceptable only if the will of the people was based on certa scientia, rather than being established by error, or as a result of ignorance of the opposing law.142 But there were also those like Placentinus, who observed that the people could not set aside imperial dispositions after lex regia, and that they should thus be punished, wherever such cases arose.143 However, his opinion was met with little enthusiasm either in theory or practice. Apart from anything else, the Digest (Dig. 1.1.9) anticipated that each people would construct their own laws for their own citizens. In effect, this was ius civile, rather than ius gentium, which was common to several different races. The Peace of Constance (1183) recognized the mores and consuetudines of all the cities in the League. Somewhat akin to a Magna Carta of communal freedoms, this was an imperial privilegium dressed up in the guise of a constitution, and as such inserted in the Volumen of Bolognese jurists after the Libri feudorum. But, from the early thirteenth century onwards, in the wake of the triumph of the communes, jurists began to state that the people

139 Antonio Pérez Martín, El derecho procesal del ‘ius commune’ (1999), and André Gouron, ‘Aux origines de l’influence des glossateurs en Espagne’ (1987). 140 According to Cortese, ‘Alle origini’, pp. 30-32, the synthesis of theory and practice in ius commune was created in the ‘minor’ schools. At that date the statutes were seen as customs, and there was no sense of there being a conflict between them and imperial law: Fried, Die Reception, p. 136. Equally, in German texts the term lex was also understood as indicating custom: see Gerhard Köbler ‘Recht, Gesetz und Ordnung im Mittelalter’ (1996). Consuetudo is a learned term, as is confirmed in several studies now in Droit Romain Jus civile et droit Français (1999) and in El dret comu i Catalunya (1999). 141 Cortese, La norma, II, pp. 122–126. For a general analysis of the relationship between law and consuetude see Ascheri, ‘Leggi e statuti’ (1995). 142 Cortese, La norma, II, p. 112. 143 Perhaps through Ugolinus Presbiteri, after Azo’s advice that the people should hold reliquiae, or remnants of those powers: see Cortese, Il diritto, II, pp. 74, 174–176.

238 chapter six could not completely and definitively set themselves apart from their own ‘sovereignty’ (as we would now say). As a result, people adjusted to the reality, maintaining that lex regia had only granted a proxy to the emperor.144 Pillius of Medicina and Iohannes Bassianus began to examine the issues of local laws in their quaestiones, and, at a later date, Roffredus of Benevento followed a similar path.145 Baldovinus, for his part, set about dictating the statutes for Genoa. It is true that Frederick II revoked all privileges to rebel communes in 1226, but the communes were not deterred by such action,146 and the jurists took note of this. Odofredus in fact annotated the Peace of Constance. However, we discover more useful information about the period from a famous rhetorician, Boncompagnus of Signa, than we do from the jurists. In 1225 Boncompagnus noted that every Italian city had by that time constructed statutes that were even contrary to the laws. With blunt realism, Boncompagnus defined these statutes as the fruit of arbitrium conditorum – in other words, the result of the legislative arbitration that was by now recklessly dictating them.147 This explains why an individual like Odofredus felt obliged to describe statutory law as ‘asinine’ and drawn up by ignorant communal legislators. It also explains why Accursius himself neglected the theoretical problem of ius proprium148 and its association with the law of the universities, even though he was inevitably extremely sensitive to the problem of conflicting communal statutes. In fact, the glossators can also be credited for creating the legal presuppositions that we would today call ‘international private law’: that is, legislation that regulated relationships between foreigners, or rather the status of strangers within foreign places. Given the myriad communes

144 Bassianus of Cremona refers to the leasing (fictum) practised in Lombardy as different to emphyteusis; Azo describes the customs of Lombardy in a quaestio; Pillius interprets a will according to the local custom; in Roffredus’s Quaestiones (which also derive from consilia sapientis and which are the most important collection after that of Pillius), reference is made to the statutes: for all of this, see Cortese, Il diritto, II, p. 173 fn. 69. 145 Storti Storchi, Diritto e istituzioni, p. 254, refers, for example, to the case of Modena, which in the following year approved the Peace of Constance (remembered as the Peace of Roncaglia) along with the reasons for its own autonomy. 146 On these points, see Ascheri, ‘Il dottore e lo statuto: una difesa interessata’, (1996), p. 101, for Boncompagnus’s assertion that the Roman civil law of his own time held sway over a very small section of the world. The best was still to come. 147 Bellomo, The Common Legal Past, p. 172. 148 It was already understood in the early thirteenth century that the judge could issue expropriation orders in the private interest, to join up different properties, to give access to the road, etc. In effect, this was a legal way of interfering in private patrimonies: see Alessandro Lattes, ‘Le ingrossazioni nei documenti parmensi’ (1914).

protagonists of theory and practice 239

still independent in the middle of the thirteenth century, one only had to go outside the walls of one’s own city to find oneself reasonably close to the juridical territory of another city; to be, in other words, a ‘foreigner’. We should not therefore assume that the jurists were opposed to local law just because they did not teach it, or because at times they defined it or thought of it – as we know from Lombard law – as ‘non ius, sed fex’ (not law, but regulations laid down over time). In reality, it was a generally-established law that authorized certain actions and thus allowed for the conservation of certain statutes that might otherwise have been considered null and void. In this context we could point to provisions such as the ingrossatores terre envisaged in many statutes that authorized expropriations of property by communal authorities for public or private use.149

6.6. The other Protagonists: The Notaries150

We have seen where, how and by whom the new ‘doctrine’ was constructed. But the means by which it was disseminated remains to be clarified. At this point it seems appropriate to consider the role played by notaries, since these individuals assumed a particularly important role – especially in Italy – and most noticeably during the twelfth century. It was natural that the relationship with ancient Roman law should be felt more deeply in Italy than elsewhere, and even more so because of the creative concept of the ‘public realm’ handed down by the Empire, which had its own Sacri Palatii notaries. Therefore there already was a strong undercurrent of ars dictandi in Italian culture. This was the art of committing certain deeds or acts and in particular those that were official, whether public or private, to parchment and paper. Cicero was an equally strong cultural presence, and acted as a kind of bridge connecting legal studies to ars dictandi. It is a fact that in this environment ‘public’ writing

149 For a general survey, see Cammarosano, Italia medievale, esp. pp. 267–276; there are many studies also in Civiltà comunale: libro, scrittura, documento (1989), and in Il notariato italiano del periodo comunale (1999); Giangiacomo Fissore, Autonomia notarile e organizzazione cancelleresca del Comune di Asti (1977), is fundamental for the relationship with the development of the communes; for Pavia see Ezio Barbieri, Notariato e documento notarile a Pavia (secoli XI–XIV) (1990). For the political culture (and for rhetoric, artes dictaminis) see Artifoni, Retorica e organizzazione. 150 According to Girolamo Arnaldi in Attilio Bartoli Langeli, ‘Entre documents et monuments: la mémoire officielle de la cité communale italienne’ (1997), p. 25: this is a very concise but efficient synthesis, with accompanying bibliography.

240 chapter six was circulated earlier than anywhere else. It is no coincidence, either, that the earliest collections of notarial acts are preserved in Italy. In this context we can point to Genoa and Venice, where once again it is not by chance that we encounter a number of formidable compilers of chronicles who were notaries. Meanwhile, around the thirteenth century the use of libri iurium – individual city portfolios comprised of collections of cartulae or official acts – were compiled, along with attestations in imitation of those of the abbeys about the rights or authority established by them. The spread of the notarial profession and the expansion of the communal movement were parallel developments. The former offered very well-documented and specialized support to the latter – to the extent that they were considered on an institutional level ‘the greatest Italian contribution to medieval Europe’.151 The notary came to represent the ‘respectable’ side of communal bureaucracy, the manus publica who was trustworthy, and an individual who, as well as the writing of the acts, was important on account of his own culture and education, and even his political nous. It was within the learned notarial environment to which rectors like the above-mentioned Boncompagnus of Signa directed works that the tracts of communal government were developed. These were fundamental texts for the foundation of the republican ideals of the most warmongering of the Italian communes. The Ciceronian model established the vir sapiens (learned man) as an individual able to persuade by virtue of his eloquence. It was also in the same learned environment that civic public power was fully authorized to confer auctoritas on the young graduates of schools and local notarial colleges – just as the conti palatini, or counts of the imperial Palace, had the right to do (using their imperial authority), or like those high ecclesiastical authorities (from the archbishop of Ravenna upwards) on the basis of papal commission. The profession of notary public thus became ever more prestigious in tandem with the communes. Each institution supported the other and created, for example, the emblematic figure of the chancellor of the Commune – the ‘official’ notary, who often held that position for many years, and who was guarantor of its records and probity. The fides conferred by the notary was from an early date an important factor during negotiations and the circulation of goods and money. Apart from anything else, it guaranteed the faithful writing up of the various phases of

151 See the important discussion in Cortese, Il diritto, II, pp. 267–268 fn. 25.

protagonists of theory and practice 241

the matter – a completely new requirement of this time. The same held true even outside the world of the communes. Pope Alexander III, who was behind the creation of the new, learned and written trial proceedings, equated acts drawn up by manus publica with those issued under an authentic seal (X. 2.22.2). Through notarial documents drawn up in the Mediterranean area, in the homeland, and in the countryside (comitatus, ‘contado’), notaries thus became vehicles for the diffusion of urban culture and Roman law as taught in the universities. The notaries’ learned education also predisposed them to accept schemes elaborated by university jurists in connection with Roman law and thus, in terms of private law, to acquire more sophisticated methods of business. But such ‘scientific’ specialization also stemmed in part from a desire to establish a number of ‘safety nets’ in order to resist or to avoid the snares set by Roman law. These provided solutions that could lead to the nullity or voiding of individual acts. Notaries therefore had to be aware of the current reception of Romanist schemes precisely to ensure that they were in a position to insert appropriate defences. These were the so-called ‘renunciations’ (renuntiationes): established tokens and provisos associated with practice and emanating from learned law, which turned notarial acts of the time into lengthy and complex texts. All of this provided a strong stimulus for the preparation and dissemination of appropriate works with the aim of guiding professional activities. Bolognese notaries concentrated first on the four ‘instruments’ (instrumenta, a technical term for the notarial ‘juridic act’) most used in written texts: that is, deeds of sale, wills, donations and emphyteusis agreements. The ‘formulae’ included in these provided the models for practical use. They were in fact considered in detail in a Formularium dated to the years around 1205, a work that quite clearly looks back to pre- existing examples.152 A qualitative leap was made with Raynerius of Perugia’s Ars notaria,153 a more theoretical work that departed from the formulae of the four instruments. This study was only rejected, once again at Bologna, by Salatiele, in 1242, the year of the first edition of his Ars notarie, a practical treatise on notarial ars with a wealth of accompanying

152 See Raynerii de Perusio Ars notaria (1891). With the aid of this work, which is still formularistic in style, Raynerius taught ars notariatus at Bologna in 1219; for works dicated to notaries in general, see Bresslau’s classic Manuale di diplomatica per la Germania e l’Italia (1998), pp. 895–897. 153 See Gianfranco Orlandelli, Salatiele, Ars notarie (1961).

242 chapter six annotations. It seems clear that Salatiele wished to ennoble the notarial profession, since the second edition dating to around 1253–54 appears to have been motivated by criticism that he had taken little note of practical necessities. Meanwhile, the guild or college provided the book of matriculation for the notaries, who received their signum, called tabellionum after the Roman name for notaries, the characteristic drawing up of which would always accompany the individual notary, as a sign of his undertaking certain acts. It also looked after the conservation of the imbreviaturae. These were the abridged records of dead notaries that were compiled so as not to lose sight of the essential facts of the ‘public instruments’, records that were by definition authentic, because ‘published’ by the notary. This explains why Italy had a rich source of legal documentation as early as the twelfth and thirteenth centuries.154

154 Within a very rich typology, the will springs up: see for example Nolens intestatus decedere (1985).

PART THREE THE TRIUMPH OF THE SYSTEM OF IUS COMMUNE (MID XIII–XV CENTURY) CHAPTER SEVEN

PERFECTING AND CONSOLIDATING THE SYSTEM

The character of the mid-thirteenth century was shaped by a number of new developments: the end of Swabian rule, with the position of Emperor left vacant up until the time of the Hapsburgs (Rudolph, 1273); a Papacy that was often French and pro-Angevin, and the resultant changing of the guard in southern Italy, following the Sicilian Vespers of 1282 and the confrontation between the Angevins and the Aragoneses; and the definitive breakup of the Kingdom of Italy, with the ever greater power of citizen governments within Italy as well as contemporary monarchical governments elsewhere in Europe. All of this took place against a background of great economic buoyancy. This period marked a new stage in the development of the law during the late medieval period, although the changes were relative since, as we have seen, the building blocks were already in place. The ordinary glosses, both to the body of civil law and to Gratian’s Decretum and the compilation of pope Gregory IX, already offer clear indications that an epoch was drawing to a close. But there are other obvious signifiers, scattered throughout the Europe of that time. We could point to the work known by the name of Bracton in England, and for France and Italy together, to the important Speculum by Guillaume Durand (1271/91) – which we will look at shortly – and for Spain, to La Ley de las siete Partidas, the huge legislative compilation proclaimed by Alphonse the Wise, king of Castile in 1265. This consisted of an extraordinary seven-part patchwork expounding ius commune, with a carefully-considered selection of texts – legislative (from the two corpora iuris) and doctrinal (from Azo to Accursius, to Raymundus and Hostiensis). Given their royal origins, these must have served to announce independence from every other power and to promote the legal unification of Spain. This was modern law written in Castilian, the preferred national language. Initially it was a failure, but work done well succeeds over time: the Siete Partidas finally became the official source of reference for legal matters in Castile in 1348.1

1 The seven sections cover: the sources of law and the Church (I), administrative and military law (II), the organization of justice (III), feudal and family law (IV), civil

246 chapter seven

In an Italy expanding as never before towards the East – that is in Venice – there was an equally strong acceptance of ius commune, thanks to the skilled practitioners of the Latin Empire in the East during the thirteenth century. This seems paradoxical in the context of what we will pro- pose elsewhere, that is, taking into account what happened in Venice at a later date. But, in the thirteenth century this was exactly what happened. This is easier to understand if one takes into consideration the overriding tradition of Roman Byzantine civilization within which Venice reconstructed itself. But in terms of what specifically interests us, the Venetian statutes, these were annotated in the same way as the great legislative texts of the universities, with a two-fold approach, as was also the case with the Pisan statutes.2 The first leant very heavily on the work of Odofredus; the second paid more attention to judicial practice and to existing customs. The same thing happened in the south of Italy. In the southern Kingdom it was a judge who was active at Naples – Marinus of Caramanico (he is attested between 1269–85) – who created the Ordinary gloss of the Liber Augustalis (1278–85). This, when completed (c. 1310) by the commentary of professor Andrea of Isernia (subsequently Angevin minister, who died 1316), became the accepted doctrinal filter through which the compilation of emperor Frederick was considered.3 These works are in fact so refined that it seems likely that they were created in the wake of verifications arising from prolonged didactic activity. It has thus been hypothesised that a number of local schools concentrating specifically on their own laws were created around the Liber of Emperor Frederick, and that similar schools were formed in the context of the statutes of Pisa and Venice. In the case of emperor Frederick’s Liber, similar local activity continued at Naples with the Angevin ‘chapters’ that were regularly commented on by learned jurists.4 The gloss of Neapolitan customs was drawn up at the same time,

responsibility (V), the rights of succession (VI), and criminal law (VII). It goes without saying that this text constitutes one of the great themes of Spanish juridical history: for a synthesis, see Wolf, Die Gesetzgebung, p. 206 for the editions, also in English, being adopted in Louisiana. 2 See the detailed fn. 83 in Cortese, Il diritto, II, p. 298, and for Venice see pp. 290–291. 3 See once again Cortese, Il diritto, II, p. 325 for information on the various editions, and p. 337 for these jurists and fn. 80 for hypotheses about schools of local law. See also p. 338 for the editions of Neapolitan customs, which are also available in Carla Vetere, Le consuetudini (1999). 4 For all these texts – both legislative and doctrinal – see the very useful new edition of the Constitutiones Regni Siciliarum, and Capitula Regni utriusque Siciliae, Ritus Magnae Curiae Vicariae et pragmaticae (1999).

perfecting and consolidating the system 247

and under the auspices of a judge known as Sebastianus Napodano, but whose real name was Napoletanus Sebastiano (died 1362). The first edition was issued in 1351, and then regularly republished right up to the early modern period. The customs themselves had been proclaimed with great solemnity in 1306, and in the name of the Angevin king Charles II, by the Kingdom’s proto-notary Bartholomeus of Capua, who also acted as glossator to the Liber Augustalis. It seems, therefore, that as far as ius commune was concerned there was universal acceptance on all fronts. Our approach in this part of the book is thus deliberately more schematic and less analytical than in the two preceding sections. Up until now, we could claim to have thrown light on the foundations of Italian law through a number of historical tesserae laid out like different colours on a palette. However, in this brief period that some now consider to be the ‘beginning’ of the early modern age we need to hone our view. We will attempt to examine more closely how legal matters evolved and functioned to the point where they were finally viewed as a unified legal ‘system’ under the firm leadership of jurists. Ius commune was already in some senses a system in that the protagonists of legal life – university doctors, legislators, judges and notaries – all knew and acknowledged each other through the common European lingua franca. The rapidly-evolving Roman-canon law of the universities and the exponential growth of local laws now implicitly called for mutual exchange between the two. Indeed, work was being carried out in various areas, albeit always bearing in mind the one single grandiose and complete construction, which could be likened to the building of a metaphorical Gothic cathdral, embellished with spires, which because of its grandiosity was easily susceptible to every mythicization, both now and in the past. Historians have often referred to the preceding period as the classical age of ius commune because of the vast amount of foundation work on learned law carried out by the glossators. At this stage, however, we reach a period during which the system well and truly triumphed, and which is therefore perhaps worthier of such a title. Ius commune was being taught everywhere. Similarly, the official legal language of those in power was universally informed by it, even though it was not prevalent in lay judicial practice and in the various professional categories such as commercial law. The triplicate dialectic of law and doctrine; law and custom; and general law and law that was in some way ‘special’ by dint of being local or applying to a particular category made ius commune a very flexible and adaptable instrument in the course of the country’s legal evolution. For the most part, legislators and doctors divided the task of producing norms

248 chapter seven amicably. Social forces and daily practitioners, especially notaries, for their part, shaped the decisions of the former group, modifying them more or less imperceptibly in practical implementation. We thus encounter custom, by this stage honed to a fine point by the doctors – abrogative, supplementary, or even modifying official legislative and doctrinal rulings: contra legem, secundum legem, praeter legem. The legislators intervened in more or less general terms, depending on the prevailing culture of government and the various forces involved in each situation. They were fully aware that the more technical aspects as well as extraneous details would be resolved through the doctors’ day-to-day interpretations, and that these would balance the various interests in play in each abstract legal question.

7.1. Developments within the Universities

Mention should be made, above all, of the quantitative and qualitative development of the universities. This is not because we encounter any very marked innovations, as the decisive achievements even in this field belong to the preceding period, but rather because there were a number of coherent and interesting developments. During this period, the notion of licentia docendi and of the ‘general’ Studium gained widespread acceptance, offering an opportunity for the universal powers to recognize the universities. We should not, however, assume that recognition from on high was a sine qua non in the foundation of a university. At the same time, it gradually became normal for universities to be ‘state’ institutions, following the earlier example of the University of Naples. Here and there, university professors also began to be paid by the state – that is, more often than not by the communes – but with very great inconsistencies between individual salaries. In some cases funding was provided by the local lords, who also applied various restrictions. During the fifteenth century, subjects of the Milanese Visconti-Sforza state were, for example, obliged to attend Pavia University.5

5 Again at Pavia (but constituting only one of a great number of examples), payment rose from 20 to 700 florins in the middle of the fifteenth century. For important information in this context, see Agostino Sottili, Documenti per la storia dell’Università di Pavia nella seconda metà del ‘400 (1450–1455) (1994), and his Lauree pavesi nella seconda metà del ‘400, I (1450–1475) (1995).

perfecting and consolidating the system 249

When the teachers were professors of law or medicine they could in fact be of direct use to public institutions and for the wellbeing of the citizens. When they specialized in the liberal arts they raised the general cultural level of the people, who were at times exceptionally literate, as is illustrated by Florence. All of them had a part to play therefore in publicizing the honour of the city – as if cities were people. Those cities that had a studium acquired a particular prestige. Knowing how to secure such an efficient and internationally renowned body meant that you had reached a superior level in terms of political and institutional culture. This was especially the case if public or more often private funding provided students with colleges. It was a short step from here to the so-called ‘Sapienzas’ (or the still existing Spanish College in Bologna which was founded by cardinal Giles d’Albornoz) that were established in increasing numbers during those decades, as a direct result of the many private legacies. The ‘colleges of the doctors’ which were by that time firmly established in university cities were something else again. Here, there were civil law and canon law doctors alongside doctors of medicine and theologians and ‘artists’, as the men of letters concentrating on the artes liberales were called. All these gathered together in separate groups in order to benefit from the advantages of a corporate organization both in so far as the local commune was concerned, in professional privileges and fiscal exemptions, and in terms of third parties. These were the same colleges which on occasion in their role as corporate bodies received lucrative requests for consilia about questions of particular significance from judges, private individuals or public authorities. In some cities, the colleges also attracted judicial petitions – for example in the context of appeals – because of the reliability of their pronouncements.6 Moreover, it was through these bodies that a type of collaboration was established with university life, and in particular with university teaching. Quite naturally, there were some places that felt they could do without a studium, potentially costly and troublesome. From Venice to Florence and from Milan to Genoa, we find famous, powerful and self-sufficient cities that felt no need of such a cultural embellishment. These were commercial centres that, apart from during a few brief periods, did not appreciate the advantages of establishing a university in their midst.

6 Maria Carla Zorzoli, ‘Il Collegio dei giudici di Pavia e l’amministrazione della giustizia’ (1981).

250 chapter seven

They thus depended on nearby ‘minor’ cities, from Pavia to Padua, and from Pisa to Siena. Rome itself, being the capital of the Catholic world, was already too well-known a centre to need to worry about having its own studium. It was the Jubilee years, more than anything else – beginning with 13007 – that periodically offered Rome the chance to advertise her own ‘worldly’ significance. The equation of ‘important city’ with ‘university city’ is thus not really valid, just as there is no real reason to believe that the free market promoted a balanced development of the universities. It is easy, for example, to see that the centrality of Bologna was paramount during this period, just as the southern regions were clearly peripheral – despite the new university foundations at the end of the medieval period, such as that at Catania in 1434, and the re-established University of Naples in 1465. Amongst the new universities that are of interest to us, we should draw attention to the notable French initiatives in the south at Toulouse and Avignon, the seat of the Papacy for nearly seventy years during the fourteenth century, and in Orléans in the north. As a centre for the teaching of civil law in France, the latter attracted particular privileges. It was almost inevitable that the king should have banned the teaching of civil law in Paris. It would have been particularly unwise to afford in the capital city itself an opportunity for the expansion of the law of the Empire from which the Kingdom of France had proclaimed complete independence. The French universities also played an important role in the development of doctrines and teaching methods in Italy, as a result of the close financial and religious ties between the two countries. The political links between them were also strengthened by the transfer of the Papacy to Avignon and as a result of the Angevin dynasty in the southern Kingdom. The relationship between Provence and Sicily particularly blossomed, facilitated by the speed of maritime transport that turned Marseilles into a great port and, not coincidentally, with a notable local statute. This was especially noticeable after the Sicilian Vespers, in that area to the north of Faro (the lighthouse of Messina), with the great city of Naples as its capital. In this area there was a significant flowering not only of literature and art, but also of juridical studies.8

7 For an historical and legal overview, see Giovanni Minnucci, ‘Alle origini del giubileo cristiano’ (1998–99). 8 This is a point that has rightly been emphasised by Domenico Maffei, whose collection of Studi di storia delle università e della letteratura giuridica (1995) and fundamental book Giuristi medievali e falsificazioni editoriali del primo Cinquecento (1979) should be consulted.

perfecting and consolidating the system 251

As for the teachers, they continued to move about from one centre to another with comparative freedom, despite pre-existing contracts and some ‘painting of effigies’, that is, ignominious and punitive caricatures based on their indifference to their accepted duties. Even then, students knew how to effect very obvious migrations as a form of protest against attempts to limit their privileges; one example being that from Bologna to Siena in 1321. It was taken for granted that the rector should be a student freely elected by the different nations represented in the Studium, and that he should have jurisdiction over the students. However, there was much discussion and conflicting opinion about the limits of the rector’s authority, just as elsewhere there were discussions about the limits of ecclesiastical power, whether in terms of taxation or of judicial matters. There was also a universal attempt to exclude criminal justice from individual forums, at least in the case of more serious crimes – which was one cause of the above-mentioned migratio. However, control by state or municipal authorities was not always advantageous, because the universities were being flooded with local teachers, and a number of real academic dynasties were taking root. At Perugia the Ubaldi (Baldus, Angelus and Petrus) are an obvious example, but we also find clear evidence of such family networks at Bologna – which did not, however, shy away from importing outsiders such as the Sicilian Andreas Barbazza and Antonius Corsetti. Other notable centres were at Padua, Pavia, Ferrara, Siena and Pisa, whilst Rome and Naples remained somewhat overshadowed. Padua, in particular, was important due to the huge number of its German students. These often took on the task of writing the many books now preserved in German libraries, and thus played a significant part in transferring information about the Italian legal system back to their own country.9 Another reason for the success of the new academic institutions was the flexibility with which the various academic qualifications were established and conferred, since the university system also produced bachelors and graduates. These were lower qualifications than the doctorate, a superior title that was juridically equivalent to professor, and that was conferred solemnly and at great cost in the more famous universities. Lower levels of qualification meant that

9 However, serious studies have only been undertaken for Bartolus, despite the fact that there are now many catalogues of manuscripts available for use; see, nevertheless, the very useful Dolezalek, Verzeichnis. The circulation of manuscripts aided ‘reception’ of ius commune in Germany. The University of Padua is in possession of a comprehensive and detailed study on its jurists: see Annalisa Belloni, Professori giuristi a Padova nel secolo XV. Profili bio-bibliografici e cattedre (1986).

252 chapter seven university students did not have to take the doctorate, or else that they could pursue it by transferring to another less expensive university, after having first studied in a more prestigious institution.10 The evolution of the universities has been particularly well-studied for Bologna. The 1250 municipal statutes for Bologna show that relationships with the students were already regulated by the commune. This prompted the Universitas to award itself its own independent statutes in 1252, just like any other corporation or guild. These statutes, which have only recently been discovered, are the oldest known to us.11 Approved as honest and lawful (licita et honesta) the following year by the pope, as a means to obtain incontrovertible recognition at the European level, these statutes were at the same time sent by the pope to the archdeacon of Bologna, who had for some time acted as chancellor of the Studium,12 and to whom several decretals were despatched in order that they should be expounded ‘for common use and most of all, the students’ (ad comune omnium et maxime studentium utilitatem). As one can imagine, the statutes were of some length, illustrating the extent to which the university was by now a mature institution, controlled and disciplined in every area of its activity. The Studium was at this time a type of federation consisting of the University of students south of the Alps, that is, Italians divided into the four nations13 of the Lombards, the Tuscans, the Romans and the people of Campania; and that of the world beyond the Alps, especially the Germans, the English, the Spanish and the French, who were divided into nationes according to their places of origin. This federation supervised relationships between different professors, directing the teaching in such a way as to favour the professional formation of the students. The actual production of the legal texts for the schools seems by then to have been controlled in all its details by the stationarii. These individuals, who were bound on oath to the university by the students, were responsible for producing the original or authentic examples of the texts, which were for this

10 There is important documentation concerning this in Celestino Piana, Ricerche su le Università di Bologna e di Parma nel secolo XV (1963), and Piana, Nuove ricerche su le Università di Bologna e di Parma (1966). 11 Rossi, Universitas, pp. 209–210; older rules can be traced in the 1242 customs of Reggio Emilia: see Consuetudini e statuti reggiani del secolo XIII (1933), p. 33. The university statutes were discovered by Maffei, ‘Un trattato di Bonaccorso degli Elisei e i più antichi statuti dello Studio di Bologna nel manoscritto 22 della Robbins Collection’ (1995). 12 On the basis of a papal bull by pope Honorius III (1219). Elsewhere, it was the bishop who was the protecting chancellor of the University. 13 Each with their own statutes: see for example Statuta Nationis Germanicae Universitatis Bononiae (1292–1750) (1975).

perfecting and consolidating the system 253

reason called exempla tenentes. Amongst these were a number of ‘assessment lists’ – precious records that provide us with a picture of the works that were in official circulation.14 In fact, the pecia system reached a point of maximum distribution and perfection in the early fourteenth century. However, around the middle of the century it suffered a devastating setback. This was not so much a result of an internal crisis in the universities, as the simple and terrible consequence of the pandemic of plague between 1348 and 1349, which wiped out many students and university teaching staff, amongst others. (One of the victims of the epidemic was the great Bolognese master, Iohannes Andreae, of whom more shall be said later.) As a result, there was a fall in market demand. All of a sudden, many books were available at reasonable prices – in stark contrast to the previously prohibitively high costs, which had meant that university texts were traded as if they were precious objects. The plague also prompted reflection, previously absent, about the legal implications of such an occurrence.15 The fact that around 1400 the pecia system seems to have persisted only at Pavia and Siena also probably indicates a shift in student patterns.16 Another aspect covered by the statutes was university exams. These consisted first of a ‘private’ assessment of the candidate’s preparatory work – the responsibility for which fell on the professors – which took place in the cathedral’s sacristy. The second phase consisted of a ‘public’ act, the solemn public degree ceremony inside the cathedral which quickly became as splendid an occasion as those involving the nomination of knights. Being very expensive, such theatrical events were sometimes avoided out of economic necessity. But at other times, they were pursued assiduously and organized as great occasions upon which to proclaim the prestige of one’s family, and one’s own credentials for a successful future career. The students’ desire to present themselves as learned in a broad spectrum of normative law was safeguarded by the punctuatio librorum. These imposed precise obligations with explicit penalties on the professors who, together with the students, selected the passages on which the latter would be examined. A number of lists were constructed from these

14 Soetermeer’s Utrumque ius is a fundamental study for Bologna during the second half of the thirteenth century and the early fourteenth century. 15 There is some discussion of this in Ascheri, I giuristi e le epidemie di peste (1997). On the evolution of the ‘pecia’ and the book market, see Juristische Buchproduktion. 16 Soetermeer, Utrumque ius, pp. 214–216.

254 chapter seven

selections, each group forming a punctum. A specific period of time was allotted to each of these to allow the university teacher to carry out the appropriate didactic task (terminus). This varied from twelve to fifteen days according to the canonical computations that divided day and night into fixed units of time, thereby rendering winter hours shorter. Thus, during his lectura of a legal text, the professor could not afford to lose time. As a result, all readings followed a similar pattern and are now much easier to compare.

7.2. ‘Literary Forms’

Lecturae were constructed around entire sections of the two corpora iuris, and were called commentaria – giving rise to the term ‘commentators’, normally applied to later jurists of the fourteenth and fifteenth centuries. Passage after passage, whole sections of the most studied texts, from the Digest (and above all the Vetus), from the Code (and especially from Book VI regarding succession: wills, legacies and trusts) and from the Decretals were explained, normally starting from the analysis already drawn up in the ordinary, or common Glosses. The preceptive content of every single part of the ‘law’ of Justinian’s text was first expounded with a synthetic summary of contents, with or without the teaching offered by the gloss, introduced by ‘h. d.’: hoc dicit. This was followed by an analytical consideration of the many problems arising from the text itself and from its connection with others. The quaestiones were thus highlighted according to the dialectic method established by philosophers that was widely adopted within the universities. This was the so-called ‘Scholastic’ approach of pro and contra arguments that we have in fact already encountered in the context of the quaestiones. But some teaching naturally relied on earlier methods, referring to the established critical apparatus of the glosses, and demonstrating personal approaches as well as personal doctrinal reflections, almost as an additional gloss. This method was known as the lecturae per viam additionum, that is, a form of teaching that involved a series of new notes to the existing annotations. Individual glosses were thus treated like any other piece of text: opposing it; agreeing with it; integrating it with texts elsewhere; or developing it through detailed scholarly considerations. Very many manuscripts of the two corpora still in existence are densely covered with min- iscule additiones in the margins of the ordinary glosses. These provide evidence of the teaching methods of several different schools, because

perfecting and consolidating the system 255

they accompanied their various owners as they moved from place to place. Common labels of ‘post glossators’ or ‘post Accursians’ were attached to those individuals who adopted such teaching methods; jurists who were involved in similar endeavours between the second half of the thirteenth century and the early fourteenth century. There were many such individuals, some of whom were also extremely important, but their teaching was handed down in such a disorganized way that it is now difficult to reconstruct it. As a result, there are still many interesting things to be discovered. The teaching of the later commentators is, by contrast, better known and better understood, emerging as it does from a coherent series of comments on individual texts, and the eventual reworking of individual lessons and the committing of these to paper – known as reportationes – in the exercise books of students. Quite apart from the lecturae and the additiones, several more important civil law and canonist passages embedded within the great texts were subjected to particular analysis in the course of the repetitio,17 a formal gathering set up to consider problematic issues. Thus the famous l.(ex) Omnes populi (Dig. 1.1.9) that referred to the ius civile of each city, was established as the prime source for the examination of statutory law, and the c.(apitulum) Saepe (from the Clementinae decretals, which are discussed below) formed the basis of discussion about the so-called ‘summary process’. The ‘repetition’, the Italian meaning of which has only slightly changed, took place each week on a pre-arranged afternoon. All the canonist or civil law students of the various schools were invited, and quite exceptionally it was not restricted to any time-limit. In establishing an opportunity for an overall reunion of the interested student body, the repetitio constituted a complex event in terms of control and administration. It was regarded as a particularly important occasion, and was therefore endowed with some degree of solemnity. Professors of schools recognized by the students were required to take part in such meetings at least once a year, beginning with the youngest (repetitio necessaria). This did not exclude ‘voluntary’ repetitiones not prescribed in the ‘normal’ academic programme. Many of these texts have also survived. But we should remember that there may not always have been a perfect match between

17 There is a specific examination of this in Cornelis Huibert Bezemer, Les répétitions de Jacques de Revigny. Recherches sur la répétition comme forme d’enseignement juridique et comme genre littéraire, suivies d’un inventaire de textes (1987), and Federico Martino, Dottrine di giuristi e realtà cittadine nell’Italia del Trecento. Ranieri Arsendi a Pisa e a Padova (1984).

256 chapter seven the oral repetitio and the version handed down to us in manuscript form, and thereafter in printed editions. The latter could have been revised and therefore be longer or shorter. As well as the lecturae and the repetitiones that have been handed down inside the commentaries, or even separately,18 there were the debates held before the students. These were the questiones publice disputatae (individual matters for public discussion) which had now taken on a detailed and regulated form. Every year, between Ash Wednesday and Whitsunday, each professor had to prepare the quid iuris (that is, the problem that would be presented for discussion). This had to be submitted to what we would now probably call the general secretary of the University eight days before the questiones publice disputatae, so that its contents could be made known to the schools of civil and canon law. On the fixed day the rectores of the two schools or universities came along to direct the debate, allowing individual students to take the floor. When each student had presented a case in favour of or against the argument, the professor intervened to illustrate the theme as a whole, and to offer his own solutions, replying to those arguments that he disagreed with. This procedure greatly contributed to the development of ius commune as a unified whole, because it dealt in the main with everyday questions that were not explicitly regulated by written norms, whether of civil or of canon law, or those arising from local traditions. As a result it was referred to as ex facto emergens (emerging out of reality). The jurist, for his part, had to show that he was capable of resolving individual problems in dialectical terms, relying on the given texts and using those sources that were in favour (the pros), and those others that were contrary (the contras), to develop his case. During the eight days following the debate the professor was responsible for compiling a text which was then placed alongside others that had already been completed. The resulting libri magni quaestionum disputatarum (tomes of questions for discussion) are extremely interesting not least because they throw light on the activities of many teachers who would otherwise have remained unknown to us.19 Matters under

18 In the case of the former, the repetitio could constitute a kind of second reading of the same law; at times the repetitiones circulated in manuscipts as independent collections of ‘readings’ and were even printed as such already at the time of the incunabola (see now Juristische Buchproduktion). Apart from various minor collections (for example one in Milan dating to 1519), the richest collections were printed in the early seventeenth century (and have been embellished with indexes: see Index repetitionum iuris canonici et civilis (1985). 19 For example, two manuscripts in the Vatican library (Arch. S. Pietro A.29 e Chig. E. VIII.245), which Manlio Bellomo has referred to on numerous occasions; see for example

perfecting and consolidating the system 257

discussion could concern a number of connected issues and thus sometimes gave rise to whole collections with a general theme. The quaestiones statutorum,20 for example, grew out of the very full and much repeated discussion of communal legislation, whilst a specific source, like the Libri feudorum, gave rise to the collections of quaestiones feudorum. At the same time, quaestiones continued to forge modi arguendi, setting one argument against another, with the result that disputes were voiced in a recognizably rhetorical form. Around the year 1300, the aforementioned brocarda produced their most mature fruit in the form of the modi arguendi of Dynus de Mugello.21 Certain links can be drawn between this and the Singularia doctorum, of which a number of specific collections were made and then printed at a later date. These consisted of ‘memora- ble sayings’, or notable opinions, that one was advised to bear in mind when considering certain themes or parts of the corpora, with, quite naturally, an underlying implication of the important legal status of the particular jurists involved. Of course, the authority vested in such sayings was inevitably dependent on the identity or fame of the individual jurist. The same can be said for another literary form that was developed during this period. This was the tractatus – for example de statutis, de consiliis habendis, de carceribus, de questionibus, de testibus – which became very popular. Being collections of treatments of the most common themes, rather than the voluminous codes of the corpora and commentario, they were not only extremely useful for everyday practice, but also less expensive. These texts set down the various problems relating to a legal institute, condensing them into one, or at any rate just a few pages. They were thus also extremely easy to consult. The tractatus was an artefact of pure theory, even though it might be drawn from consilia expounded on the subject in question. It was a potentially thorough consideration of a number of questions on the same theme, and occasionally developed in the context of quaestiones dealing with one particular subject.

his ‘Due ‘Libri magni quaestionum disputatarum’ e le ‘quaestiones’ di Riccardo da Saliceto’ (1969). 20 The collection by Albertus Gandinus, Quaestiones (1901), is easily accessible. 21 See Severino Caprioli, ‘De ‘modis arguendi’ scripta rariora: 1. Dini opusculum’ (1963), which mentions the work of Giovanni Battista Caccialupi assembled a century and a half later. But attention should also be given to the collections made by the pupils of Iohannes Andreae, Iacobus of Arena and Iohannes Calderini; one little treatise that stands out is that under the heading Arguitur in Albericus de Rosate, Dictionarium iuris tam civilis quanm canonici (Turin 1971). Casus legis, for their part – that is, precise propositions presented by legislators (whether Justinian or ecclesiastic) – were regarded as being beyond discussion, because they were considered ‘established’ beyond any doubt.

258 chapter seven

By contrast, the Summa, a literary form which had been extremely important in offering a summary of an entire piece of text of ius commune, at the same time both synthetic and very personal, rapidly declined, finally disappearing around the beginning of the fourteenth century. The initial phase reached its conclusion with the appearance of the great Summae and the existing ordinary Glosses that preserved all the existing magnitude of the original volumes. A number of more analytical models such as the commentaria, the tractatus and the repetitiones were subsequently established. We should however pause to consider one particular summa because of its incredible success, both immediately upon its production and in the centuries to come. This is the Speculum iudiciale, a summary that instead of concerning one individual legal text covered an entire branch of the law – that which dealt with trials. It was drawn up by Guillaume Durand, bishop of Mende and a canonist who preceded the ‘commentators’ of the fourteenth and fifteenth centuries, and who took careful note of the judicial practices of the second half of the thirteenth century, in the age of the so-called ‘post-Accursian glossators’.22 During the same decades, and no doubt as a result of a shared impulse, a body of notarial theory (ars notarie) was completed. These works were to remain fundamental to notarial practice, and unsurpassed thanks to the flourishing notarial schools in Bologna. One individual, Rolandinus de Passeggeri (died 1300), the aforementioned Bolognese adversary of Salatiele, played a particularly important role in this context. In his Collectio contractuum of 1255, Rolandinus went back to the formulaic scheme of earlier practice, producing a formulary stripped of any kind of critical comment. This was quickly transformed into the grandiose Summa artis notariae, which formed the basis of notarial practice for centuries.23

22 For this jurist, see the volume Guillaume Durande, Evêque de Mende (v. 1230–1296): canoniste, liturgiste et homme politique (1992). Nörr’s specialist collection, Iudicium est actus is a prime source of reference for the literature on trial proceedings. 23 See Rolandini, Summa artis notariae (1977), which also contains works by Petrus of Anzòla and Petrus Boattieri, which integrate Rolandinus’s work. Around 1273 Rolandinus took up the Collectio again, adding an annexe in the form of the first part of the Aurora (and at a later date, the Contractus, which re-examined his earlier work on the Collectio, now available in an edition with a useful historical introduction: see Rolandini Passegerii, Contractus, (1983); a commentary was completed by Petrus of Anzòla (who responded to the Tractatus notularum using his own lectura), either on the basis of his Aurora novissima or his Meridiana; from here he moved on in the early fourteenth century to Petrus Boattieri’s Aurora novella: see Gianfranco Orlandelli, ‘Boattieri, Pietro’ (1968).

perfecting and consolidating the system 259

At a later date, Rolandinus also produced the Flos ultimarum voluntatuum and the Tractatus notularum. Of course, such works only came to be viewed as ‘classic’ over time. In the meantime, many other manuals covering notarial practice were produced, all directly influenced by Bolognese texts to a greater or lesser degree. This was inevitable, given the widespread acceptance of ius commune in Italian contractual and judicial practice. These manuals assembled the acts of trial proceedings, arbitration awards, etc., and the guaranteed or witnessed document. This was a fundamental innovation of the Italian thirteenth century: the notarial act that witnessed a particular obligation and thus itself offered full proof of the matter in such a way as to allow the case to proceed immediately to the executive stage concerning the debtor’s possessions, with the judge issuing a first and then a second ruling. This was the act proclaimed along with the executio parata.24 The dictionaria and repertoria – compilations of legal themes and issues organized alphabetically according to the first letter of each word – constituted a completely new type of text during this period. These were in effect arranged as dictionaries or indices. (However, a word of caution: the term repertoria, or ‘repertoires’ was also reserved for the very useful analytical indices that were arranged in alphabetical order according to subject-matter, which were appended to texts about ius commune like the commentaria, etc.) The dictionaria and repertoria offered an immediate survey of the parts of the corpora where a particular issue was considered, as well as clarification of the stage reached in the doctrinal discussion of such matters. These texts were clearly not directly connected with the universities, but were widely circulated, both between professors and between practising members; in just one volume, or at least in only a few volumes, the reader could obtain a comprehensive overview of any of the various themes that might be of interest: one had only to refer to the entry feudum, or nobilitas, officium, statutum, testis, usurae, and so on. As one might imagine, the compilers were in effect constrained by the subject- matter within the various entries to effect a fusion between civil and

24 See for example Silvio Scalfati, Un formulario notarile fiorentino della metà del Dugento (1997), which in fact adopted the formulae for the acts of trial proceedings which had been neglected at an earlier date. A useful comparison may be made with other works that were only circulated locally, such as the Summa notariae Arretii composita (1901), and Summa notariae Belluni composita (1901). For guaranteed documents, which were quickly ruled by the statutes, see Adriana Campitelli, Precetto di guarentigia e formule di esecuzione parata nei documenti italiani del secolo XIII (1970).

260 chapter seven canon law. Thus, from this point of view also, and as with the tractatus, they provided opportunities for the construction of ius commune. Ius commune also instigated another new literary form, that of the contrarietates or differentiae. The contrarietates were intended to reveal the different opinions expressed in various works by the same author, who as a result immediately assumed the status of an authoritative figure; one such individual being Bartolus of Sassoferrato. The differentiae, by contrast, and with clear mnemonic and practical objectives, was intended to demonstrate the diverse normative solutions existing within civil and canon law, or between civil and Lombard law. In other words, and with the same objectives that underlined the drawing up of the Margaritae, a type of summary of whole sections of the two corpora iuris, the differentiae helped to establish a synoptic overview of the material, whilst at the same time favouring the early individuation of relevant legal headings.25 The consilium was by this time constructed in a generally approved form, but it had also assumed a new dimension through its quantitative breadth and the surprisingly wide circulation that it gained. This meant that such counsel, which was more or less given in response to a request from a judge pro veritate, or just pro parte, was for all practical purposes universally taken into account in the statutes.26 Wherever the authorita- tiveness of a particular jurist spread, or his reputation as an accredited man of learning capable of resolving juridical problems was established, it was also deemed necessary to have a testimonial of his doctrine, of the ius commune known only to him, which could when necessary help resolve legal issues both in Italy and abroad.27 The consilia thus constituted a precious link between university theory and everyday practice inside and outside the halls of justice, for example, in inter-state negotiations or in dealings between various institutions. What could the government achieve, taking only one particular statute into consideration? And what should its response be to this or that stipulated contract, or in the face of a previous concession? How should it deal with canon law that disposed in this or that manner? How was a statute to be interpreted that

25 For these, see Mario Montorzi, ‘Processi di ‘standardizzazione’ testuale: Margaritae, gemmae, tabulae. Un primo approccio di studio’ (2000). 26 This was, however, delayed in the south of Italy, partly because in contrast with communal officials, the relevant legal officer had to be familiar with the law, and partly because like the universities, there were few such individuals: for Sicily, see Andrea Romano’s contribution in Legal Consulting, which now serves as a general introduction to the question. 27 In fact, the consilia have been identified as an efficient way of circulating ius commune outside Italy during the course of the fourteenth and fifteenth centuries – and thus constituting a form of pre-reception in Germany.

perfecting and consolidating the system 261

modified ius commune in the context of the succession of women?28 These opinions clearly established connections between ius commune and local law. Indeed, the jurists often deliberately interpreted the latter in the light of the former. Given their education in ius commune, the jurists would do this almost as a matter of course, but they were clearly also motivated by theoretical and practical reasons, which we will consider shortly. Before that, we need to mention at least some of those jurists who were involved in writing the kind of works referred to above.

7.3. Jurists from the ‘Post-glossators’ to the Commentators: From Communis Opinio to ‘Bartolism’

The number of names that could be recorded in this context is vast, not least because the flourishing university system produced several generations of scholars. Indeed, there are so many that one could write a dictionary about them. This was actually attempted at the end of the medieval period by Thomas Diplovatatius (1468–1541), a learned jurist from Corfu, who sought refuge first at Pesaro and then in Venice, when fleeing from the Turks. As well as drawing up some individual biographies that were subsequently printed, he also reached the point of preparing biographical and bibliographical descriptions of jurists of ius commune in chronological order, giving details of every academic affiliation, in the form of individual teachers and works.29 Diplovatatius’s list had a significance that went far beyond pure erudition. In practical terms, it offered a way to negotiate the mass of legal literature which had become extensive, directing readers to the ‘first’ and to the ‘last’ of the works, and thus to the opinions expressed by individual jurists over time. Bartolus of Sassoferrato occupies a very special position within the tradition of ius commune. Only a few years after his death in 1357, his work was considered to be a perfect reflection of communis opinio doctorum: helped by the presumption of truth, it seemed to constitute the ‘state’ of

28 See Mayali, Droit savant, for the famous and widely-circulated exclusio propter dotem (from hereditary succession) in respect of women, which was not limited to Provence. For the position of women in the medieval world, with detailed references to statutes and doctrinal works, see Maria Teresa Guerra Medici, L’aria della città. Donne e diritti nel Comune medievale (1996). 29 See Thomae Diplovatatii Liber de claris iuris consultis (1968). There were precedents for this work from the early fourteenth century onwards, in particular in the important additiones to Durand’s Speculum iudiciale by Iohannes Andreae. Despite having already achieved considerable acclaim, Iohannes Andreae did not consider annotating the great Durand as it would be below his position as a jurist. For the late fifteenth century, see Iohannes Baptista Caccialupi, Modus studendi in utroque iure (1995).

262 chapter seven the doctrine of ius commune. Adherence to the opinions of Bartolus of Sassoferrato became a well-established trend, save for proving the existence of better opinions, or discussing what was the ‘true’ opinio Bartoli. Amongst the many commentaries that were in circulation by that time, those by Bartolus were considered to be the most synthetic, simple and clear summaries of the present opinions held by the doctors, and the best of the most recent solutions. This tendency to refer to Bartolus in an uncritical way, to accept his opinion even when the context did not require such action, has become known among historians as bartolism. It is easy to understand why such a tendency was soon criticized within the academic establishment, because it devalued further research – and thus aprioristically blocked the way for the opinions of those who succeeded Bartolus. But in the meantime it was immensely convenient, and not only for legal practitioners, to only have to make reference to Bartolus’s work, instead of to the various commentaries that the professors continued to produce. As a result, and partly also for practical reasons, Bartolus became a powerful unifying agent of legal doctrine and practice in Europe, even after the medieval period. There is ample evidence to illustrate this, but we will draw attention to a few significant facts. The first is that some of Bartolus’s works were translated at an early date and even into the local language of other nations – extremely rare with juridical texts, which were normally destined to circulate amongst individuals who had at least some training in scholarly Latin.30 The second is that in the fifteenth century German students above all took Bartolus’s work back with them, when they returned home after studying in Italy.31 Thirdly, when in the fifteenth century the humanist Lorenzo Valla wanted to offend the jurists openly for their ignorance, he specifically picked on a treatise by Bartolus.32 Fourth, where – as in Spain – ‘citation laws’, that is laws that required reference only to certain jurists in order to make up for some deficit, gap or doubt about national law, Bartolus was cited as a matter of course as a representative of civil law expertise and Iohannes Andreae for canon law.33

30 See William Bryson, Dictionary of Sigla and Abbreviations to and in Law Books before 1607 (1975). 31 Claudia Storti Storchi, Ricerche sulla condizione giuridica dello straniero in Italia dal tardo diritto comune all’età unitaria (1989) illustrates well how this was an important point of reference for all later legal doctrine. 32 See now Mariangela Regoliosi, ‘L’Epistola contra Bartolum del Valla’ (1997). 33 See for example the reference in Adriano Cavanna, Storia del diritto moderno in Europa (1979), pp. 421–422.

perfecting and consolidating the system 263

This explains why there were already so many manuscripts attributed to Bartolus at an early date, and why at the same time one has occasionally to be very careful about naming Bartolus himself as the author of a work, despite the fact that several surviving manuscripts are attributed to him. (We encounter a similar problem with works associated with the other great fourteenth-century scholar, Baldus de Ubaldis.) There was, in fact, a strong temptation to attribute all kinds of works to Bartolus, in order to invest them with immediate authority and value. It will come as no surprise, therefore, that the ‘reading’ of the Institutes that circulated under Bartolus’s name has not been recognized as his by specialists. It was, indeed, produced by the school of Orléans. Neither is it surprising that a number of treatises circulating under Bartolus’s name are likewise dubious, or that in the sixteenth century a list of false consilia on very delicate matters such as the relevant jurisdictions and forms of sentence for witchcraft, blasphemy, etc., was constructed.34 Besides Bartolus, we can attempt a purely indicative selection of names35 although with only very occasional bibliographic references because the amount of literature is so huge by this time. We can also

34 Domenico Maffei stands head and shoulders above all others in research in this field (see above all his Giuristi medievali and Studi di storia), but for brevity, see Cortese, Il diritto, II, referring to the Index under the following headings: ‘Bartolo false attribuzioni’; ‘Baldo, false attribuzioni’, and ‘Pseudo-Révigny’). For witchcraft, see Ascheri, ‘Streghe e ‘devianti’: alcuni consilia apocrifi di Bartolo da Sassoferrato?’ (2009). 35 For some of these jurists see, for example, Ingrid Baumgärtner, Martinus Garatus Laudensis. Ein italienischer Rechtsgelehrter des 15. Jahrhunderts, (1986); Bellomo, Medioevo edito; Severino Caprioli, Indagini sul Bolognini. Giurisprudenza e filologia nel Quattrocento Italiano (1969); Egidio Gianazza-Giorgio D’Ilario, Vita e opere di Giovanni da Legnano (1983); Dieter Girgensohn, ‘Francesco Zabarella da Padova. Dottrina e attività politica di un professore di diritto durante il grande scisma d’Occidente’ (1993–94); Domenico Maffei- Paola Maffei, Angelo Gambiglioni giureconsulto aretino del Quattrocento (1994); Maffei, La donazione, and Studi di storia; Paola Maffei, ‘Un ‘consilium’ della fine del Duecento in tema di acque (con notizie su Iacopo d’Arena, Riccardo Petroni ed altri consulenti)’ (1991); Martino, Dottrine di giuristi; Francesco Migliorino, ‘Alchimia lecita e illecita nel Trecento. Oldrado da Ponte’ (1981); Mario Montorzi, Taccuino feliniano. Schede per lo studio della vita e l’opera di Felino Sandei (1984); Paolo Nardi, Mariano Sozzini giureconsulto senese del Quattrocento (1974), and ‘Contributo alla biografia di Federico Petrucci con notizie inedite su Cino da Pistoia e Tancredi da Corneto’ (1991); Giacomo Pace, Riccardo da Saliceto. Un giurista Bolognese del Trecento (1995); Diego Quaglioni, ‘Civilis sapientia’. Dottrine giuridiche e dottrine politiche tra medioevo ed età moderna (1989), and Pietro del Monte a Roma. La tradizione del ‘Repertorium utriusque iuris’ (c. 1453). Genesi e diffusione della letteratura giuridico-politica in età umanistica (1984); Gigliola Rondinini Soldi, Il trattato De principibus di Martino Garati da Lodi (1968). For further information, it is worth consulting the historiography of the universities referred to, as well as in other works, in Ascheri in Juristische Buchproduktion, in the annual bibliography of the RIDC, and more generally in the DBI.

264 chapter seven record some of the so-called post-Accursian civil lawyers of the thirteenth and early fourteenth centuries up to the time of Bartolus, who are sometimes mixed up and associated with those glossators already mentioned: Guido de Suzzara (also professor at Naples, 1268–70); Nicolaus Mattarelli from Modena; Martinus da Fano (died after 1272); Albertus de Gandino (died around 1310), a judge dealing above all with criminal practice;36 Dynus de Mugello (died after 1298); Iacobus de Arena; Ricardus Malombra (died 1334), consultant of the Venetian Republic; Iacobus Belviso, the Bolognese master of Bartolus; Cynus de Pistoia (1270–1336), the very well- known poet, contemporary of Dante and author of a famous and often printed lectura Codicis; Raynerius Arsendi, master of Bartolus at Bologna. And, particularly active in the Kingdom of Sicily: Marinus de Caramanico and Andreas Bonello of Barletta (active at the end of the thirteenth century), and Andreas of Isernia (died 1316); and in France in the school of Orléans, Jacques de Révigny (died 1296) and Pierre de Belleperche (whose Latin name was Bellapertica, and who died in 1308). Amongst the canonists: once again Dynus de Mugello, who collaborated on the Liber Sextus which we will discuss later; Guido de Baisio, Bolognese archdeacon and author c. 1300 of a fundamental Rosarium (a kind of summa of Gratian’s Decretum); Guillaune Durand (died 1296), already referred to as a trial lawyer; and Oldradus de Ponte (died 1335) active also in the curia of Avignon, and author of the first collection of consilia to be widely circulated. In the middle of the fourteenth century, apart from Bartolus, author of commentaries on the Corpus of Justinian, treatises, consilia and quaestio- nes37 (as was usually the case for the commentators), a position of particular importance should be allotted to the most famous medieval canonist, the Bolognese professor Iohannes Andreae. Victim of the Great Plague (died 1348), Iohannes Andreae was a layman, correspondent of Petrarch and already celebrated in his own lifetime as a most authoritative writer. He is known for his Ordinary glosses to the Liber sextus and to

36 Apart from Albertus Gandinus, Quaestiones statutorum (1901), which is nevertheless important, see Albertus Gandinus, Tractatus de maleficiis (1926), essentially a collection of quaestiones dated to the years around 1300, but deriving from a collection that was certainly earlier (1286/87?). 37 The above-mentioned Venetian edition produced by Diplovatatius (for which, Ascheri, Saggi sul Diplovatazio, (1971)) has now been re-published: Bartoli de Saxoferrato Opera omnia (1996); for this individual, see the synthesis by Francesco Calasso, Bartolo da Sassoferrato (1964), and in the two-volume Bartolo da Sassoferrato. Studi e documenti per il VI centenario (1962); Anna Sheedy’s Bartolus on Social Conditions in the Fourteenth Century (1967), is still interesting, as is Quaglioni, Politica e diritto, and his ‘Civilis sapientia’.

perfecting and consolidating the system 265

the Clementinae (the last official texts of canon law), as well as for his important commentaries on the Decretals of pope Gregory IX, and his very thorough additiones to Guillaume Durand’s masterpiece, and the Quaestiones. Amongst his contemporaries or successors, we should make reference in more or less chronological order, amongst civil lawyers, to the Bolognese Ricardus and Bartholomeus from Saliceto; the Perugian Baldus de Ubaldis (died 1400) and his brother Angelus (died around 1407); the Florentine Laurentius Ridolfi (expert in usury around 1400); Ludovicus Pontano already mentioned as active at the Council of Basle; Martinus Garati of Lodi (fl. 1438–1445); Paolus de Castro (1360/62–1441), a university teacher at Avignon and Florence, and his son Angelus; the Aretines Angelus Gam biglioni (died 1461, known above all for a Tractatus de maleficiis), and Franciscus Accolti (1416/17–88), a humanist poet; the Bolognese Alexander Tartagni (1423/24–1477); Bartholomeus Cepolla from Verona (ca. 1420– 1475); Iohannes Baptista Caccialupi from Sanseverino (but mostly working in Siena, died 1496); the Milanese Jason de Maino (1435–1519), a magisterial professor from Pavia; and finally Ludovico Bolognini (1446– 1508), a Bolognese professor who we can easily trace (see Chapter 5) thanks to the tradition of the littera Florentina. Amongst the Neapolitans apart from the extraordinary (we shall see why later) Lucas de Penne (fl. 1343–1382) who worked at Avignon, mention should be made above all of Paris del Pozzo (Puteus, author in the second half of the fifteenth century of a successful Tractatus de sindicatu) and Mattheus de Afflittis, commentator of emperor Frederick’s Constitutions and author of the first (and perhaps the most successful) collection of Italian judicial decisions (1509)38 of the Holy Royal Council in Naples, to which he was called in 1495. For Sicily one should refer to the studies of Andrea Romano.39 Amongst the canonists the Sienese Federicus Petrucci (died 1348/69); the French Gilles de Bellèmere, (‘Bellemera’, circa 1341–1407), judge of the Holy Roman Rota and bishop of Avignon; John of Legnano (died 1383), referred to as founder of public international law (De bello), but also known for works dealing with material not usually covered by jurists

38 For this individual in particular see Giancarlo Vallone, Le ‘decisiones’ di Matteo d’Afflitto (1988), but see also Cortese, Il diritto, II, pp. 376–377; for the fortunes of his Decisiones, and especially the Neapolitan ones, see Ascheri, Tribunali giuristi istituzioni. 39 See especially Andrea Romano, Giuristi siciliani dell’età aragonese. Berardo Medico, Guglielmo Perno, Gualtiero Paternò, Pietro Pitrolo (1979).

266 chapter seven

(from De cometa to De amicitia); his pupil Franciscus Zabarella (1360– 1417), a very learned individual from Padua (to whom the Florentine chancellor Coluccio Salutati dedicated his De tyranno), an active ‘council member’ at the Council of Constance,40 as well as a cardinal; Petrus de Ancarano (c. 1330–1416); Antonius de Butrio (1338–1408); Iohannes de Imola (1367/72–1436), also a civil lawyer; Iohannes de Anagni; Nicolaus de’ Tudeschis (1386–1445), active at the Council of Basle (also known as Abbas Modernus or Panormitanus), whose fame is attested by the above-mentioned Spanish law of quotations, which also recommended use of his works; Dominicus of San Gimignano (died 1424); the Sienese Marianus Socini (whose son Bartholomeus was, however, a civil lawyer), friend of pope Pius II; Felinus Sandei (circa 1444–1503), a native jurist of Felina (Reggio Emilia) who anticipated future patterns in his own career: first professor (Ferrara, Pisa), then judge of the Holy Roman Rota, and finally bishop of Lucca, the city in which his precious works are still preserved in the library that was named after him (‘Feliniana’). The authors of the dictionaries and encyclopaedic collections, who at times also constructed commentaries on the Corpus iuris, are listed separately, since they typically wrote utriusque iuris: Albericus de Rosate from Bergamo (died 1360), magnus practicus, who drew on an earlier dictionary written by Jacques de Révigny, and who was also the author of a number of works dealing with important statutory questions (as well as a collabo- rator on the statutes of Bergamo); Iohannes Milis from Brescia; Peter de Monte, a famous bishop of Brescia (1442–57); and Iohannes Bertacchini (died 1506). Three further points can be made regarding these lists. First, if all the above-mentioned jurists compiled glosses or commentaries for the pri- mary sources of civil or canon law, those of the Kingdom of Sicily – both as a result of the monarchical system in which they were working, and because of their frequent involvement in public undertakings, some at a high level, were often involved in three other areas of enquiry. For one, they must have been engaged in feudal questions, because of the wide dissemination of the feudal system, both in the Kingdom itself, and in various other parts of northern and central Italy, and because commentaries on the Libri feudorum are comparatively more widely dispersed

40 He helped to draw up the decree Haec sancta (1415) whereby the Council convened at Constance triumphed over the power of the pope. He had already composed another treatise, De schismate, between 1402–8, which was subsequently included in his commentary on the Liber Extra.

perfecting and consolidating the system 267

amongst jurists from the Kingdom.41 It was, moreover, the case that feudal law was already established as ‘general’ law in the Kingdom of Sicily by the thirteenth century: in other words, it was the law in force in the absence of precise government norms. Second, they must have become involved in Lombard law, by this stage evolved from traditional to feudal law, but also having an independent significance in those areas where by custom it found broad application, for example in Puglia. Third, they must have concerned themselves with matters pertaining to state organization, as a result of the Kingdom’s centralized government. State organization was more relevant to the mainland than to the island of Sicily itself, because of the presence of strongly-privileged cities there. There was thus a greater sensibility to the Tres libri in former areas of the Kingdom, since the three last books of the Code of Justinian (X–XII) dealt specifically with the issues of bureaucratic organization.42 The second point to be made is that this list provides us with precise topographical information regarding the origins of individual jurists. It seems likely, therefore, that even work carried out in the margins of ‘universal’ texts could have had an impact on local affairs: in the south, because of the presence of the monarchy; in the north because of the communes and the strong centres of lordly power which were subsequently transformed into principalities.43 It is, moreover, a fact that the consilia of these jurists were often specifically orientated towards those areas in which it was anticipated they would broadly operate. To give one example, jurists operating in Padua were naturally disposed to protect the independence of Venice in the face of other powers.44 As a result,

41 Cortese (Il diritto, II, p. 330 fn. 60) attributes the Summa feudorum circulating under the name of Jacques de Révigny to the south of Italy, albeit with some reservations; there is no doubt that Andreas de Isernia and Iacobus de Belviso (who had been a professor at Naples) compiled their very remarkable comments on feudal law, subsequently printed, around 1300; however, a Tractatus de maleficiis subsequently published under the latter’s name is not an autograph work: Maffei, Giuristi medievali. Nevertheless, there is no doubt that Boattieri operated in the north of Italy and Mincucci in central Italy – but we will return to these when discussing the Libri feudorum. 42 In this context mention should be made of the work of Andreas Bonello (who was not a fiscal lawyer by chance) and of Lucas de Penne, who we will return to later. 43 This was particularly the case with the most aggressive power base of the Visconti, under which Baldus de Ubaldis operated in Pavia during the last years of his life (when he dedicated his De feudis to the prince), as well as a Martinus of Lodi, who was clearly the author, and not coincidentally, of the aforementioned De principibus (fn. 35). 44 See in particular Aldo Mazzacane, ‘Lo Stato e il Dominio nei giuristi Veneti durante il ‘secolo della Terraferma’ (1979). Unfortunately, it is only now that a number of sketchy tables of contents are being made of this material, such as that of Elena Brizio, ‘Una indicizzazione ‘automatica’ dei consilia di Bartolo da Sassoferrato’ (1991).

268 chapter seven surviving collections of opinions contain important discussions about local issues and even documents – for example, fragments of statutes – that are not preserved elsewhere. The third and final point is that given utrumque ius, it was normal for a civil lawyer to also act at times as a canon lawyer, and vice versa. Baldus, for example, also compiled commentaries on the Decretals of Pope Gregory IX, whilst the activity of Iohannes de Imola moved between the two fields of law. Meanwhile, a number of maxims have survived which indicate a tendency to take both forms of law into account. Thus, nullus bonus canonista nisi sit civilista (no one can be a good canon lawyer if not also versed in civil law) can be set alongside nullus bonus iurista nisi sit bartolista (one cannot be a good jurist if one is not a Bartolist) – a maxim that sums fittingly up ‘bartolism’.

CHAPTER EIGHT

DOCTRINAL AND INSTITUTIONAL DEVELOPMENTS

The jurists listed at the end of the last chapter formed only a small part of a group of individuals who, over several generations, contributed both to the development of ius commune in continental Europe and also, at the same time, to the functioning of contemporary institutions. Jurists not only explained what the rules of the game were, so to speak, but each time they were called upon to interpret such rules they also strengthened their own professional positions. If the ecclesiastics and their theologians directed the community in spiritual matters, the jurists took control of ‘temporal’ matters, which, although less noble, were at times more urgent. Christianity had been set within a clear context by ‘legal experts’ held to have divine authority. Therefore mostly during the fourteenth century the jurists were able to get high prestige and a good social status for themselves and their families. The famous professors of that time were surrounded by an aura of mythologized wisdom that has no comparison in our contemporary world. Only the great judges of the world of common law, several Englishmen as well as Americans of recent times (such as Coke, Mansfield, and Holmes) have achieved similar recognition. The example of Guido de Suzzara (dominus, legum professor) should suffice. In 1275 this individual intervened in the communal council of Piacenza, before representatives of the pope and of the king of Germany, to explain in Italian ‘vulgariter…nostra lingua’ the substance of requests to the Commune of Piacenza prior to swearing the oath of fealty and securing the pact of alliance.1 The practical aspects of this are therefore clear. And the theoretical reasons? These reside in the fact that the jurists thought and, more significantly, persuaded the public powers that the Roman-canon ius commune elaborated by them amounted to a kind of concentrated wisdom. Such wisdom was presented, and accepted, as the fruit of the endeavours of several generations of disinterested scholars and specialist experts considering individual themes. Ius commune was thus presented as ratio

1 See Il Registrum Magnum del Comune di Piacenza (1984–88), nos. 349–350, II, pp. 124–129.

270 chapter eight scripta, a law that was the direct result of reason.2 It was therefore in itself good, and, to an even greater degree, a law that should be followed in the absence of explicit local regulations. It seems clear that by this time, ius commune had reached a most propitious, even if not perfect stage of development in terms of juridical inheritance. At this point, the legislative source of the precept was considered of little significance, whether it was Romanist or canonical, and whether it was more or less ancient, because by now the somewhat simplistic classi- fications such as those of ius vetus, ius novum had been overtaken by other, more explicit terms. Likewise, little import was given to any objections that might hinder the canonists’ acceptance of principles of law which had once been pagan, or to the lack of communication that had often existed in the preceding period between the proponents of one kind of law or another. The jurists had managed to establish the integrated administration of the system: it was now almost entirely ‘jurisprudential’.3 It was only in exceptional circumstances that the law and the judges found themselves in opposition to this. On such occasions subsequent pronouncements would automatically be inserted within, and interpreted as part of the system. Let us now take a closer look at this extraordinarily successful phenomenon that not only changed the course of the law in continental Europe, but also had a lasting impact on English law. Even in England, there was a general feeling, during more or less the same period, that there should be an essentially intangible juridical inheritance – a ‘hard core’ of common law as opposed to the ius commune of the universities. It was also accepted that the law should intervene only in exceptional circumstances to correct the existing custom/statute, and even then as discreetly as possible.

8.1. The Relationship between Ius Commune and Local Law Following the Triumph of Jurisprudence: From ‘Doctor’ to ‘Legislator’

We have already discussed the interpretative and supplementary aspects of ius commune. We have also considered a number of other associated

2 A Dutch scholar has summarized the origin of the medieval legal conscience as ‘non quia Romanum, sed quia ius’: see Eltjo Schrage, Das Entstehen eines europäischen Rechtsbewusstseins im Mittelalter: Non quia romanum, sed quia ius (1996), a collection of specialist studies on glossators, the schools of Padua and Bologna, and so on. 3 As Cortese (Il diritto, II, pp. 244–245) notes, Guido of Suzzara played a key part in this development between 1260 and 1280.

doctrinal and institutional developments 271

factors. Given that this was by definition a law imbued with wisdom, it was appropriate, for example, that one’s own local laws should at least take ius commune into consideration. It was, moreover, a fact that individual provisions were often created in response to particularly local issues. They could thus always and only constitute deviations from the rational order disposed by ius commune. Although momentarily repressed, the latter was always available for re-instatement when individual deviations ended. The very significant result of this approach, because shot through with practical repercussions, was that jurists managed to establish the concept that existing laws could be restrictively interpreted. As appropriate, local law was to take priority, but it was to be applied in such a way as to impair the common juridical inheritance as little as possible. In effect, the provisions of local law were from the start far from firm, not being applicable beyond the individual and specific instances for which they were devised. There was no need to ‘make allowances for’, or that provisions should be drafted (as one used to say), with a view to wider consequences or to analogous cases in question. Far less was it the case that such provisions should be accepted as principles of general significance. Local law was a drastically weakened form of legislation because it diverged from universal reason, as configured by the jurists. One might say that the provisions of local law always depended on the jurists’ own ideas, anyway. This is true, but the problem is that this did not remain an academic question, because the influence of local law was so great that jurists managed to employ it even in the context of statutory provisions. In fact, from the end of the thirteenth century onwards, a number of distinct formulae began to appear in the statutes, more or less paving the way for individual regulations to be applied literally, ‘according to the word’: in other words, ‘simply’, ‘without interpretation’ in the sense considered above, of the restrictio or extensio of the norm. Such practice was established in a communal world that was mistrustful of every arbitrium, particularly because the lords of the time appeared increasingly anxious to acquire for themselves the extensive and unlimited powers arising from arbitration.4 But, in the same way, local law also well-suited the jurists, because it provided them with a ready-made vehicle for the practical introduction of their own doctrines.

4 Arbitrium was already an important concept in the thirteenth century as seen in Boncompagnus; at a later date one should consider the Anjevin arbitrariae letters that increased the powers of the judges in repressing ‘well-known’ criminals: see Cortese, Il diritto, II, p. 279 fn. 46. For the later period, see Massimo Meccarelli, Arbitrium. Un aspetto sistematico degli ordinamenti giuridici in età di diritto comune (1998).

272 chapter eight

Statutes claimed precedence in the application of the law. They thus created a sense of order when (but not always) there was a rule within them on the so-called ‘hierarchy of the sources’. This was because they disposed that statutory law should be applied first, then – more often than not – the customs, and only in the last instance ‘reason’ (ratio),5 or ius commune. But this is only one side of the equation. In reality, the declared supplementary, and thus secondary, nature of ius commune was de facto denied by the superiority of ius commune in the ‘reading’ of local law – the latter being interpreted by individuals educated in such a way as to least impair the ius commune. The university doctors therefore experienced considerable difficulties when dealing with local law. They complained about the excessive amount of local legislation that in an unauthorized manner left little space for their own ‘perfect’ law (statutum: non ius sed fex).6 Others in turn lamented that the jurists were destroying local law. For example, a powerful Florentine writer at the time of Dante accused the ‘wretched judges’ when they ‘began to interpret the laws’.7 In general, however, it was the jurists who triumphed, because they not only dominated the culture, but also governed the ‘common sense’ or ‘general meaning’ of legal matters. The norm banning interpretation bears witness to this. But further evidence is provided in the continual recriminations of the time, already in Boncompagnus, but also later in Dante and others, about communal laws that were too frequent, inconclusive, inefficient, and by definition ephemeral – laws that were made in the evening and ‘broken by the morning’. The jurists continued to dominate these discussions/debates[?] by establishing the concept that there could be a perfect and thus fixed law, and they felt themselves to be the only ones with the authority to understand it with regular but gradual interventions. Instead of accepting the new legislation as the natural evolution of pre-existing regulations, the jurists managed to insinuate that it was something deviant, or almost evil. The justifications that often preceded the laws of this period appear to have been motivated by just such arguments. The new law must have

5 This explains, for example, the term ‘palazzo della ragione’ (palace of reason) adopted for the seat of justice – a typical example being that at Padua. 6 Thus, Bartolus described the compilers of statutes as ‘dogs that gobbled up communes’, making them issue laws simply for the pleasure of it (pro libito voluntatis), and a century earlier Boncompagnus had referred to the artificial construction of statutes (arbitrium conditorum): see Ascheri, Il dottore e lo statuto, pp. 101–102. 7 Dynus Compagni (for example, cited in Ascheri, Leggi e statuti, p. 558).

doctrinal and institutional developments 273

‘grounds’, just as proposed by the Aristotelian doctrine, which had been disseminated by now. Local law was not only weakened by this kind of reasoning. Once the objection that it should not conflict with the imperial law of the Corpus iuris civilis was overcome, there was another category that could be set up in opposition to local legislation: natural law. The jurists let it be known that no-one should believe they were in a position to legislate arbitrarily, because political power had to have good justifications, as well as a respect for the great principles that were variously understood and enunciated by a superior law. This limitation was valid both for those political powers that held themselves to be sovereign (as we would now say), as was the case with kings and communes, superiorem non recognoscentes, sibi principes (being public powers, recognizing no others as superior to them) and a fortiori for those autonomous powers in cities and subject villages or those involved in enfeoffments. We thus encounter the issue of plenitudo potestatis (the fullness of power), a subject that was discussed at great length during these centuries, particularly in the context of the pope and of the emperor, because reference was made above all to them in the university sources. The questions posed were how far (and naturally ex causa) could one make changes to the existing or traditional law, and, for example, that of one’s own predecessors? To what extent could the legislator interfere through annul- ments, exceptions, and the like with sworn agreements made with subjects such as the English Magna Carta? Or, to what extent was it legal to tamper with one of the infinite number of contractual ‘chapters’ that bound dominant powers to independent powers within their territories: enfeoffments, concerning particular categories, and so on? Or else, what powers did one have in terms of the basic principles of the trial process, such as the right to have a trial at all, and rights governing the appearance and defence of individuals in court? This would later become the due process of the law. At this point we have in fact reached the origins of what at a later date would be referred to as medieval constitutionalism, because of the very active debates about the limits of public, lay or ecclesiastical power. Such debates concentrated in particular on the practical consequences of extremely delicate principles. For example, if the princeps, which in current language we might translate as ‘public power’, whether monarchic or involving more than one individual, was legibus solutus, freed from the laws – as proclaimed by those sources studied in the universities and as the increasingly powerful Popes maintained, and their numerous

274 chapter eight apologists repeated, so as to confirm their absolutism – how could such a power be legitimate in the eyes of the law (sub lege)? Another much debated issue was when is it that an individual exerts just power? And when, instead, does he become in the real sense of the word, a ‘tyrant’ – with all the consequences for his subjects such as annulment of previously agreed acts, the right to disobedience, and/or resistance, and/or even murder? These were very sensitive matters which were approached differently within lay and ecclesiastic circles. In the former, discussion centred above all on the concept of the ‘good king’ – the city-state communes which were few at this time and also in crisis, being only occasionally considered – who was respectful of different classes and ‘just’ privileges, such as those bestowed on feudatories, on cities and on the Church.8 In the latter, consideration was given to papal sovereignty, taking into account the natural respect owed to the superior divine and natural laws and, in the course of time, to the proper opinion and/or consent of the Church that was required before adopting binding acts. In other words, what freedom did the pope have with regard to the Scriptures and theological and canonist traditions? How far should he heed the opinions of the various members of the societas Christiana gathered together in council? And to what extent should he bear witness against, or attempt to substitute, an illegitimate or aberrant pope? And who could he appeal to in such an instance? In one way or another, a solution was found during this period that was to prove extremely valuable over time to come: that solution was the parliamentary system. On the one hand, the communes, whether city-states or less, as for example the cities of the Kingdom of Sicily to the north and south of Faro,9 responded in a concrete fashion by establishing citizens’

8 For the peripheral ‘republican’ discourse in Italy, which included, or what we might argue found defenders in such writers as Brunettus Latini, the master of Dante, Bartolus of Sassoferrato and Marsilius de Padua, see Rubinstein, Le origini medievali, and Maurizio Viroli, Repubblicanesimo (1999); for the ‘good prince’, see Jacques Krynen, L’empire du roi. Idées et croyances politiques en France XIIIe-XVe siècle (1993), and Specula principum. Riflesso delle realtà giuridiche (1999). On the ‘Joyeuse Entrée’ of the House of Brabant granted on 1356, see Ria van Bragt, De Blijde Inkomst van de hertogen van Brabant Johanna en Wenceslas (3 januari 1356). Een inleidende studie en tekstuitgave (1953). 9 The various ‘privileges’ conceded by royalty in moments of weakness, and their more or less scrupulous observance in the everyday practice of government, reflected the extent of such freedoms: these nevertheless differed from place to place, because there was no general law applying to the cities that established the boundaries of their independence (and nor would there be any such law until the reforms of the eighteenth and nineteenth centuries): this is one aspect that characterizes both the medieval and the early modern (in other words Ancien Régime) period.

doctrinal and institutional developments 275

assemblies which could be very lively at times. In the communes these were seen as depositaries of the highest authority at a local level, and in the Kingdom of Sicily as legitimate representative bodies of individual privileged cities. On the other hand, princely administrations from the Empire to the Kingdoms, including that of the Papacy, and to the various minor principalities, developed the very different practice of formal parliaments for the most part. The rationale for setting up representative bodies of this kind rested on a much-discussed juridical argument that was in effect a type of doctrinal construct, since there was very weak jus- tification for it in the sources cited by the jurists. Indeed, the principle quod omnes tangit ab omnibus adprobari debet (that which concerns all should be approved by all) that the civil lawyers extrapolated from a passage in the Digest related to a completely different matter. The doctrine embedded in that particular passage was that the statements or reports of individual guardians of minors should be approved by all interested parties. Thus, from an issue relating to private law, the jurists constructed the argument that it was important in the context of public law – in other words, the constitutional organization of the state – that provisions involving all members of the society should be approved in one way or another by those same individuals or by their representatives.10 This did not however necessarily mean being approved by literally all members of the population, since the common people and the peasants were by definition excluded from ‘society’. The argument was, rather, that such measures should be approved by some kind of representative body of the population as a whole, in other words, a body that was drawn from juridically defined and socially-acceptable classes: the nobles, ecclesiastics, and those members of urban society who were privy to such rights or privileges. There were strong political reasons why such a body should be formed. The princes needed to forge links with the various social groups in order to finance their own individual projects, especially those involving war. They also needed to work out successions to the throne in a way that was acceptable to all parties. The different ranks of society for their part were offered a vehicle through which to bargain about fiscal offerings, by supporting laws that had been agreed or strengthened as a result of their contractual character.11

10 Yves Congar, ‘Quod omnes tangit ab omnibus tractari et approbari debet’ (1958), is a fundamental study in this context. 11 These sources are now accessible thanks to useful reprints from originals edited by Andrea Romano (see in particular the Capitula Regni Siciliae cura eiusdem regni

276 chapter eight

These assemblies, which went by very different names, from cortes in Spain to parliaments in England, and general and provincial estates in France, were thus widely established during this period. They provided an example of the concept of contractual power: in as much as the sovereign could dictate new rules that impinged upon the juridical sphere of his subjects, only with the latter’s consent. This concept was to have a profound influence in monarchical societies during later centuries, but did not gain ground within the world of the Papacy and universal Church (once past the conciliar period of the mid-fifteenth century), or in Italian city-states and the princely forms of government that developed from these. Those latter systems remained closely bound to the imperial Roman model of authority, experimenting at an early date with forms of stately authority that would later be considered ‘modern’. Their modernity resided in the fact that they were seen as ‘absolute’: able to impose taxes and demand military service, both of which were at times extremely onerous, with complete disregard to the will of their subjects. Thus, although in Italy parliamentary assemblies, drawn from the ranks of society, took firm root in Sicily (but less in the Kingdom of Sicily north of Faro, with Naples as its capital), in Sardinia, in Friuli and in the Pontifical State itself (especially in the Marche), they played no part in the remaining republics, from Genoa to Venice, and from Lucca to Siena and Florence, who continued to use the model of the old city councils. This was also the course followed by the cities under signorie, or lordships, or under tyrants who, thanks to imperial superveniens legitimization, were increasingly intent on becoming ‘principalities’ on the model of the Milanese Visconti (1395). As we shall see, this inevitably had consequences for legislation.

8.2. The Venetian Deviation

The separation of the Venetian legal system from that of ius commune was finally established around the year 1300, following a process of gradual disengagement over several decades. As, step by step, during the course of deputatorum, 1999), who has also republished the Capitula Regni utriusque Siciliae. Paradoxically, the ‘contract’ (irrevocably in the favour of the opposing party) appeared to reinforce the duties assumed by the sovereign in respect of the regulations: an example of this dating to 1811 is included in Romano’s introduction to the Capitula Regni Siciliae, I, p. xvi fn. 7. There are also interesting studies (in particular, that of Italo Birocchi) in I rapporti contrattuali con la pubblica amministrazione nell’esperienza storico-giuridica (1997).

doctrinal and institutional developments 277

the thirteenth century, Venice established its own legal system with its important annotated statutes, there was a growing sense of alarm amongst its ruling class. The merchant nobles (elsewhere, such a term would have amounted to an oxymoron) were aware of the dangers posed by a legal system that was apparently linked rather too closely to Rome and the Empire. Following its own very successful efforts to proclaim its individual identity and sovereignty, the Venetian Republic considered the cumber- some presence of the jurist of ius commune as a threat. Consequently, and naturally without opposing canon law, although ready at all times to control nominations to ecclesiastical posts, Venice rejected ius commune in the lay context. Paradoxically, in order to abide by a local law strongly influenced by Roman Byzantine law, the Republic did not wish that the law of the universities should assume the supplementary and interpretative role that was gradually being established elsewhere. In Venice, and after consulting the laws and local customs, the judge would have made recourse to equity – balanced consideration, or, as one would now say, sound judgement. There was general agreement that the precepts of ius commune could and should be used in interstate matters – thanks in particular to very learned consultants like Ricardus Malombra and, at a later date, the aforementioned Diplovatatius (much discussed in the modern age by the incomparable Paolo Sarpi). Internal justice, in contrast, had to remain under strict local control, and be administered not by more or less learned foreigners, according to the most authentic interpretations of ius commune, but by the wise Venetian merchant politicians themselves. The point was thus reached where it was prohibited to append glosses to the legislative text, so as not to obscure the original dictation – once more paradoxically applying the Justinian model. This did not, however, preclude the possibility of allowing subject peoples to live according to their own statutes within the prevailing system of ius commune, as would systematically be the case during the fifteenth century, once the Terrafirma Venetian state had been formed on the mainland. Nor did it prevent such law being taught in the renowned University of Padua. But, in a sense, such concessions were a way of proclaiming the extraneousness of those cities in terms of Venetian citizenship and Venetian urban culture, rather than a sign of respect for the significant cultural heritage of the subdued communes (Treviso, Verona, Padua, Vicenza, etc.). From then on, and for clearly political and cultural reasons, Venice withdrew, so to speak, establishing an exception to the system. Over time, as in England, this system actually gathered strength, imbued

278 chapter eight as it was by ever more precise and reinforced ideological meanings drawn from an alternative system to that of ius commune. This fact is even more remarkable because it illustrates that, notwithstanding the very strong Romanist inheritance, the professionalization of law and its evolution within the universities was by no means part of the legacy of medieval culture. Favourable circumstances fostered the exceptional predominance of the universities. Other equally opportune circumstances resulted in the Venetian deviation. A descriptive work of local law which has survived in an incomplete form appeared in Venice at the beginning of the fourteenth century, prescribing that a custom or analogous provision should be judged according to local law, without any reference to ius commune.12 At a later date, reference would be made, above all, to arbitrium iudicis (something like the free and wise evaluation of the judge), to adopt another term that was typical by then of doctrine concerning ius commune.

8.3. Further Doctrinal and Institutional Development

Up until this point, the pre-eminence of the jurist had been nurtured by the broad freedom that existed in both teaching and writing. The ‘system’ under discussion was constructed step by step, like a grand collective cathedral in the style of Gaudi, or, if one prefers, like a jazz jam session: in either case, without a predefined programme. Now, however, the universities began to worry about, and be the object of, critical interventions. Control exerted by the Church, which claimed to be formally in charge of the Studia, facilitated such interference. Quite naturally, such criticism mainly concerned the philosophers and theologians (including Saint Thomas Aquinas), who dealt with urgent matters that were directly relevant for the defence of an intolerant Catholicism constructed out of papal absolutism, and in turn supported by the Inquisition (which operated with the help of advice from the same universities).13 The jurists enjoyed a freedom arising from the technical and abstract nature of their

12 See Iacobus Bertaldus, Splendor Venetiarum civitatis consuetudinum (1901). Apart from Zordan, L’ordinamento, Karin Nehlsen von Stryk’s ‘ ‘Ius commune’, ‘consuetudo’ e ‘arbitrium iudicis’ nella prassi giudiziaria veneziana del Quattrocento’ (1985) should also be consulted on such problems, along with the classic and perceptive consideration of later developments by Gaetano Cozzi, Repubblica di Venezia e Stati italiani. Politica e giustizia dal secolo XVI al secolo XVIII (1982). 13 See Jacques Verger, Les gens de savoir en Europe (1997). Not only was there the danger of organized heresy, but also that of the insiduous Averroism, etc.

doctrinal and institutional developments 279

arguments, the ‘separateness’ of their learning. One could even say that the Donation of Constantine was de iure invalid, that is, in Roman law, on the basis that there had been other contributions, as well as the legitimiz- ing force of custom. Such affirmations were, however, confined to the university classrooms. But there were certainly a number of other individuals such as Bartolus of Sassoferrato, who in his teaching at Perugia in the mid- fourteenth century maintained the need to clarify to listeners that it was impossible to forget that they were living in a territory that was the friend of the church (‘in terris amicis Ecclesie’).14 At a later date, the very learned Lorenzo Valla was able to persist in his historical and philological rebuttal of the Donation because he was protected by the political power of the Aragonese king. Naturally, the jurist spoke in favour of authority and power, and not of subversion. He was against all tyrants, traditional ones as well as those of a more recent vintage.15 The jurist did, however, favour legitimate power – that acquired either by divine concession, or through usucaption, as could de facto be the case for those communes that maintained independence from the Empire (superiorem non recognoscentes: Bartolus). Or, as could also be the case, for those monarchies that presumed to be exempt from the control of the Empire (England, Castille, Aragon, France) and for which even by the thirteenth century was coined the ingenious formula: ‘in the absence of a superior power, the king is emperor in his own kingdom’.16 Any king who presumed to define himself anachronisti- cally as ‘sovereign’, as every government that wishes to establish an international sense of identity has today to claim for itself, was in effect like the sovereign who by definition was dominus mundi, in other words, the emperor. He could thus presume to take on the full powers associated with that role,17 as well as the application of legislation appropriate to such a position. For example, any attempt against the king amounted to the crimen lesae maiestatis of Roman law; and his patrimony was subject to privileges in the case of tax, etc. Discussions about public law were developed in such a way as to recognize that with every public regulation proposed by the sovereign, there

14 Maffei, La donazione, p. 187. 15 Bartolus’s bitter conclusion of 1322, ‘tyrannos… quibus in Italia constellatio nunc favet’, echoed the laments of Dante and Iohannes Andreae: Cortese, Il diritto, II, p. 285 fn. 55. 16 Rex superiorem non recognoscens in regno suo est imperator. 17 Besides Caravale, Ordinamenti, pp. 518–524, the author being a specialist in the Kingdom of Sicily with a particular interest in the problems of the monarchy, see Cortese’s historiographical consideration in Il diritto, II, p. 283 f.

280 chapter eight were also de facto regal rights. Thus, even a Republic could claim recognition of crimen lesae maiestatis. Nicolaus de’ Tudeschis, who it should be noted was a canonist, recognized that ‘the city exercising royal power within its territory has the same power as the prince in his universe’.18 One may, therefore, emphasise the great contribution made by the jurists to what we might call ‘matters of state’. Precisely because they had to ‘punch above their weight’ – examining issues that as far as possible excluded the particular circumstance even when brought about by it – their discussions acquired an importance over and above individual events. As a result, their conclusions became part of the great store of ius commune: ready to be taken up again, used, expanded or limited, but nevertheless, and where appropriate, brought to a higher state of perfection. As we have seen, the problems of the princes, and the problems of independent powers, who themselves wished to be understood as ‘princes’ when such opportunities arose, or of the officials, or of the feudal vassals, etc., were thus discussed with freedom, precisely because in discussions inside the university halls the jurists knew how to establish a position above the fray. However, the position of the consultant was of course another matter, and this was clearly understood. The opinio of the jurist expressed in the neutral environs of the academy, of the lectura, was one thing; that which was expressed in a consilium, that could be influenced by the applicant, even when pro veritate, but requested by one of the parties, or by considerations relating to its concrete effects, was another. Apart from anything else, the collections did not normally specify whether a consilium had been given at the judge’s request, or at the behest of one of the parties, in which case, even the necessary elements for a thorough evaluation were missing. But it was not by chance that matters stood as they did. The confused nature of the sources and the lack of precision that all the opinions covered up was the direct result of the nature of the system itself. Once expressed, and whatever its basis in fact, an opinion became part of the established bank of information, and was made available to whoever knew how to adapt it to their own particular arguments. The consultant would have had to follow the communis opinio,

18 ‘Civitas exercens regalia habet tantam potestatem in territorio suo quam princeps in universo’, see Ascheri, ‘Nicola ‘el Monaco’, consulente, con edizione di due suoi pareri olografi per la Toscana’ (in another passage concerning Siena, Panormitanus claimed that ‘exercet iura principis’, in other words, the city was sovereign). For Florence, which serves as an exemplar of republican law, see the data included in Ascheri, Diritto medievale e moderno, pp. 139–145. For later doctrine see Mario Sbriccoli, Crimen lesae maiestatis. Il problema del reato politico alle soglie della scienza penalistica moderna (1974).

doctrinal and institutional developments 281

in order to avoid eventual responsibility for having provoked an unjust sentence. As a result, a greater freedom of reasoning might theoretically have existed in the universities. But on closer inspection it appears that the exact opposite was the case. Inside the university, the professor had to take note of existing traditions, of what had been said by his predecessors, whilst at the same time presenting himself as teaching according to the traditional methods, even when introducing new ideas. In his capacity as consultant, however, and especially when writing in favour of one particular party and when free of other pressures, the same professor could, or had to be more daring. He had to exhaust the interpretations and expand them to the furthest possible limit, precisely because his brief was to reach a concrete decision. As a result, some consilia were highly innovative and enjoyed broad favour across the centuries.19 The canonists in particular encountered problems with the kinds of liberties they could take. They were increasingly and indeed greatly embarrassed when asked to express their views on the Donation of Constantine – both in the context of the schisms (who was the legitimately elected pope amongst the contenders?) and, even worse, during the great European conciliar crisis that was also taking place inside the universities. The councils of Constance and Basle and their anti-papal deliberations were a topic of universal discussion, and varying opinions were being expressed both amongst the theologians and amongst the canonists, even in the universities. These councils also constituted an important legal forum, because the disputes not only concerned ecclesiol- ogy, but also those norms that governed the relationships of power: between states and the Papacy; between the pope and his cardinals, the curia and future councils. Consilia given for one or other party were thus so conflicting as to raise questions about their credibility.20 However, it is in the environment of the councils that we once again encounter the cream of contemporary jurists. At times they even supported the powers of the council itself. One such individual was the great Nicolaus de’ Tudeschis, the abbot of Palermo.21 On the other hand, after expressing

19 A number of interesting cases (from consilia by Paulus of Castro for example) are studied in Luca Mannori, Il sovrano tutore. Pluralismo istituzionale e accentramento amministrativo nel principato dei Medici (secc. XVI-XVIII) (1994). 20 See Ascheri, Diritto medievale e moderno, p. 200. Amongst the various tracts, see Antonio da Cannara, De potestate pape supra concilium generale contra errores Basiliensium (1996). 21 But this individual’s opinion of the council, like tha t of Zabarella, was subsquently included in the Index librorum prohibitorum: see Rodolfo Savelli, ‘The censoring of law books’ (2001); another jurist present at the council, Ludovicus Pontano, known as de

282 chapter eight appropriate regrets, a conciliarist humanist like Aeneas Silvius Piccolomini not only became pope but more significantly championed papal absolutism, to the point of solemnly condemning anyone who dared to appeal to a council against a papal decision.22 The jurists also managed to remain unscathed as a result of the fine distinctions they drew about another very delicate matter. In the end, the absolute prohibition of usury pronounced by the canonists as a result of their interpretative distinctions, not least in the wake of the Summa theologica by Thomas Aquinas (completed around 1270), was much criticized.23 The prevailing argument was that from an objective view-point such prohibition was unjust, if in the case of diminishing profits and emerging damages the lender missed out on earnings from lucrative commercial operations by not using their own capital. It was equally unjust if irrespective of the borrower, the lender became wealthy as a result of money he had received freely making profit, and to his own exclusive advantage. In theory, prohibition of usury was in force, but it had been and was each day violated by the ecclesiastics themselves.24 However, with the development of the monetary economy and the exponential increase in public expenses, for armies and for public buildings, it became increasingly necessary even for institutions to make allowances for interest-bearing loans. This resulted in heated disputes between the Fran ciscans and the Dominicans. Already by the fourteenth century the public debt of individual states had risen to startling heights. And while the monarchies could operate discreetly, resorting to private contracts drawn up with bankers, like those Florentines ruined by the insolvency of the king of England in the early fourteenth century, the communes, who were constrained by the transparency of the assembly system and by their own legislation, could not adopt such measures. The prestae (forced loans with interest) ended up feeding a market of credit instruments, and

Roma, a civil lawyer who died young, was the author of a number of famous commentaries and consilia. 22 See Prodi, Il sovrano pontefice. 23 Laurentius Ridolfi’s treatise was initially important in this respect between the fourteenth and fifteenth centuries, followed during the middle of the fifteenth century by the doctrine of Paulus of Castro and his son Angelus: see Federico Martino, ‘Umanisti, giuristi, uomini di Stato a Firenze fra Trecento e Quattocento. Lorenzo d’Antonio Ridolfi’ (1988). 24 Petrus Iohannis Olivi emphasised this at the end of the thirteenth century in the context of those condemning money changers: what if the church itself made use of such service? The writers for their part referred to exchanges in distant places involving considerable cost and risk, and thus legitimately incurring interest. See Tangheroni, Commmercio, pp. 328–330.

doctrinal and institutional developments 283

associations of creditors entrusted with taking care of individual invest- ments – a typical example being the development of the bank of San Giorgio at Genoa, a real state within a state.25 Even though the practice was relatively low key, there were periodic attempts to mount attacks, even of a judicial nature, against this type of loan, which was known as feneratitium (from foenus). The debtor of a usu- rer could, for example, present a petition to the diocesan tribunal or refuse to appear before a civil or mercantile court. As a result, specific administrative offices were created to increase the yield of individual savings, to ensure, for example, a daughter’s dowry, the Florentine Monte delle Doti being one such example.26 Nevertheless, a number of scruples remained, with the consequence that society hid behind the classic ‘fig leaf’ of the Jewish loan. In precisely the same way that cities had produced preachers, physicians, school masters and, in Italy, the real condottiere (the head of the military), so, in time, they gave rise – admittedly on a paying basis – to Jewish money-lenders. These individuals were authorized to establish themselves within cities and lend money at a fixed rate of interest. For the ecclesiastical authorities, condoning such measures was perceived as committing themselves to the battle against usury: their argument was that being enemies of Christ, Jews were lost souls and could thus offer interest-bearing loans that, amongst Christians, would have been regarded as dishonourable and sinful. Of course, so much hypocrisy did not go unobserved. It was especially criticized by the Franciscans, who in the second half of the fifteenth century – and in particular through the preaching of Bernardinus of Feltre – launched a crusade against the Jewish money-lenders. Apart from anything else, this was probably not unconnected with the onset of a climate of hate and intolerance that resulted in the murder of the presumed ‘Saint’ Simoninus at Trent at the end of the century.27 The Franciscans campaigned for active intervention by the cities on behalf of the needy, so that they could be rescued from the perfidy of the Jews. A solution was found in the institution of the monti di pietà – offices that on the basis of Christian piety lent money on pledge, extracting only that amount of

25 In this context, see the various studies assembled in Banchi pubblici, banchi privati e monti di pietà nell’Europa preindustriale. Amministrazione, tecniche operative e ruoli economici (1999), especially that of Julius Kirshner. 26 See the forthcoming comprehensive study by Kirshner (at Chicago; an initial list of his work appears in Guerra Medici, L’aria, pp. 198–200). 27 For a summary of the trials, see Diego Quaglioni-Anna Esposito, ‘I processi contro gli ebrei di Trento (1475)’ (1991).

284 chapter eight payment that was necessary to cover the administrative expenses. The final sum of money redeemed could thus be viewed not so much in terms of prohibited interest, as the permitted repayment of the expenses. As one might expect, this was not a painless solution, and many theological and legal opinions were deemed necessary before finally obtaining papal sanction from pope Leo X in the early years of the sixteenth century.28 With these kinds of organizations we witness the origins of the contemporary public bank, but they were comparatively modest in terms of the mechanisms of solidarity and catholic assistance which in the so-called ‘early modern age’ in Italy have begun to reach great heights of institutional complexity. The repression of witchcraft was another area where it appears that the jurists were not anxious to follow the rulings of existing provisions. During the fifteenth century witchcraft was once again subjected to attack. In Italy, this attack was primarily conducted by the Franciscans, most notably by the very powerful preacher Saint Bernardinus (this time, of Siena). However, even in this context, the jurists defended themselves by recourse to the ‘text’, in other words, to the law. For a long period, they resorted to a chapter in Gratian’s Decretum, which stated that those who proclaimed, or were constrained under torture, to confess that they had flown around on the Sabbath and practised witchcraft, were merely superstitious women. A very different interpretation of the same passage and of the matter in general was laid out in the Malleus maleficarum (Scourge of Witchcraft). This text was written by the Dominicans Jakob Sprenger and Heinrich Kramer (known as Institor), following their employment as special papal delegates, in a papal bull of 1484 that was intended to seek out and repress witchcraft in Germany. At times, the lay and ecclesiastic courts revealed a hot-headed character in sentencing crimes of this nature to the maximum penalties. The jurists for their part, among them Marianus Socini the Elder, the canonist friend of pope Pius II, expressed doubts. The new campaign of repression, which was carried out in parallel to the worsening conditions of the Jews, reveals a general rigidity within state organizations at the end of the medieval period. There seems little doubt, either, that this extremist trend continued. There is clear evidence of this in the fact that in the following century it was deemed necessary to construct a well and truly false text under the name of Bartolus that demanded

28 There is an extensive bibliography in this context; for one particularly interesting study, see Riccardo Fubini, Quattrocento fiorentino. Politica diplomazia cultura (1996), pp. 159–216.

doctrinal and institutional developments 285

the death penalty as well as the authority of the Church in the matter of witchcraft.29 At the same time, in 1478 – and this is mentioned by way of establishing connections between the various developments – the king of Spain, who was fighting against the Moors and who was a supporter of the pope in international diplomacy due to a special apostolic privilege, obtained the right to organize his own inquisition: the so-called Spanish Inquisition. Sadly, the Spanish Inquisition has acquired notori- ety as a symbol of catholic intolerance in rigidly anti-papal protestant historiography, as has the grand inquisitor Juan de Torquemada.30 But more recently, the Spanish Inquisition has been considered with greater objectivity. Although by no means deemed a merciful process, it has nevertheless been discussed in terms of being an instrument for political operations in the service of the crown, as opposed to a systematic tribunal for the repression of heresy. Reference should nonetheless be made to it, because institutions like the Spanish Inquisition attested to the growing presence of the state in the life of the Church. During the fifteenth century, the Church was constrained by the conciliar crisis to come to terms with the reconciled lay powers (‘concordats’) which differed from state to state, according to the diversity of conditions on the ground. Such negotiation was symptomatic of the forced retreat of the Church of Rome from the position of universal power and unity established by the great popes of the thirteenth century. It is true that the Papacy offered exclusive possession of the African coast to the Portugese in the mid-fifteenth century, and that later – immediately after the discovery of America – care was taken with the famous Inter coetera bull of 1493 to divide the new territories between the Spanish and the Portugese authorities, as if the pope were still the dominus mundi. But here also, it was the concessions that reinforced the lay powers. These powers were confirmed and strengthened through the incipient procedures of control that were being established within local churches: the lay placet that controlled nominations to the highest ecclesiastical posts, and the exequatur, that is, the practice of formally authorizing the efficacy of papal provisions in one’s own territories. We thus reach the beginnings of

29 For all this, see Ascheri, Streghe e devianti (a work which includes documentation showing how in the middle ages the harshest penalties were often meted out by the lay courts). For a translation of the Malleus, see Jacobus Sprenger and Heinrich Kramer, Malleus maleficarum. The Hammer of Witchcraft (1968). 30 The same can be said for Mel Brooks’s (a Jewish director) study of cinematography: for example, the extremely entertaining ballet ‘Inquisition what a show’ in one of his well- known films.

286 chapter eight modern jurisdictionalism. This is the technical term that stands for every form of control exerted by lay public authorities over religious matters, and thus that mass of state norms relating to the Church that constitute what is known as ecclesiastical law. This was quite distinct from canon law, which was of autonomous ecclesiastic origin, governed by the scriptures. State norms matched agreements forged with the Papacy and local churches, and combined to form a very fragmented picture of the relationship between the State and the Church at the local level in Italy. Outside Italy, the monarchy played a significant role in bringing together individual negotiations and normative regulations. The term jurisdictionalism has been coined because in the medieval period iurisdictio, deriving from Roman law, traditionally indicated in technical legal vocabulary the power of the legitimate government. This in turn led to a whole range of iurisdictiones from the highest, public power of the emperor or pope (each of them domini mundi), right down to that of the individual property-owner, who according to Roman law was also the title owner of a dominium, or that of the paterfamilias over the members of his own immediate family. Arbores iurisdictionum (jurisdiction schema) were thus drawn up for explanatory and didactic purposes. Actionum (writs) arbores were constructed in precisely the same way in order to explain the various possibilities of trial proceedings. Likewise, arbores affinitatis and consanguinitatis were compiled to illustrate the relationships of affinity (technically those acquired through marriage, of in-laws, etc.) and of parentage, obviously very important both in terms of matrimonial issues and those associated with succession.31 Considerations of iurisdictio allowed for the graduation of the various powers, the written authorizations and the eventual defects of jurisdiction, paving the way for an overall appraisal of the problems surrounding the competence of the offices and their bureaucratic relationships. The extent to which medieval jurists wrote about this is thus extremely important, even though one should take account of the fact that the political doctrine of the period already eschewed legal language (the ius dicere) which, remaining highly intwined in its judicial function, was reductive.32

31 See Errera, Arbor, for a detailed illustration of this including tables; for some beautiful illuminations of trees of relationships (the object of several important lecturae by Iohannes Andreae), see Lo Studio e i testi. Il libro universitario a Siena (secoli XII-XVII), (1996). 32 In this context, see the classic study by Pietro Costa, Iurisdictio. Semantica del potere politico nella pubblicistica medievale (1100–1433) (1969), as well Gérard Fransen, ‘Jurisdiction et pouvoir législatif’ (1970), and Joseph Avril, ‘Sur l’emploi de jurisdiction au Moyen

doctrinal and institutional developments 287

Domini were not only called the judges, who were by now occasionally concentrated in powerful corporations (if often legally excluded from government), but also governors. Kings at this time were no longer referred to as giudici but in the vulgar or common language as Siri (from Signori), and the collegial governments as Signorie. And when, as in the famous early fourteenth-century Maestà by Simone Martini in the city hall (now called Palazzo pubblico) in Siena, the figure of the Virgin offers a warning by holding up a scroll with the biblical exhortation ‘Favour justice, you who judge the world’,33 the act of judging is handed to the governors rather than the judges, because judgement was understood to amount to something more than sentencing. In effect, judgement involved deciding the fate of people in whatever way was deemed appropriate as a result of powers being conferred, and for which one had to assume responsibility, with an order, a law, a sentence or in some other manner. These governing bodies also had to confront the problem of the limitations to such sentencing posed by the extra-territoriality, or immunity of ecclesiastical authorities who were subject to their own regulations. This problem was even more acute before the thirteenth century, due to the privileges claimed by ecclesiastical authorities in the context of taxation and courts of law. It was further exacerbated by the growing number of ‘reserves’ that the Papacy claimed through nominations to the highest ecclesiastical posts – an issue that became even more troubling during the period of exile in Avignon. Conflicts between the State and the Church – as they have been called by historians, following nineteenth- century studies – were the way of things even in Guelph cities. (Florence, for example, was involved during the fourteenth century in the war of the ‘Eight Saints’ against the Papacy). Such conflicts often provoked sanctions on the part of the Church, such as excommunication of governors and interdicts over the cities themselves. Punishments of this kind must clearly have impeded relationships with other Christians and thus forced the ‘erring’ parties into obedience.34 Other tensions arose as a result of the

Age (XIIe-XIIIe s.)’ (1997). But even before this, Brunettus Latini, Dante’s master, referred to the signorie, or seigniories, rather than jurisdictions when speaking of governments. For him, the commune was the best form of government (not the aristocracy that he also refers to in the context of the classic tripartition in forms of government, apart from the monarchy), because magistrates obeyed what was laid down by the law. 33 ‘Diligite iustitiam, vos qui iudicatis terram’ (Book of Wisdom, I.1). 34 Elisabeth Vodola, Excommunication in the Middle Ages (1986), has considered the doctrinal aspects of this, initial work having been carried out in the classic work by Gioacchino Volpe, Movimenti religiosi e sette ereticali nella società medievale Italiana (secoli XI-XIV) (1977), pp. 197–212.

288 chapter eight rampant spread of the Inquisition, which at times affected members of the urban elite, and as a result of the very rapid expansion of the mendicant orders. The latter’s active preaching and thus efficacious apostolate amongst the faithful triggered widespread dissatisfaction with the traditional parochial organizations. The drawing up of wills was prompted not only by the widely entrenched legal culture, but also through the preaching of the mendicant orders. The wills soon became complicated with long lists of endowments to religious and charitable institutions, often motivated by the restitution of the male ablata, that is, gains through usurious practices. Matters of citizenship, and of succession – extremely complex when dealing with spouses from different communes – as well as family issues in general – the widow, new marriage arrangements, offspring from different unions, children living together after the death of the father, how the dowry should be used, joint ownership of property by married couples – are the most frequently discussed issues: in consilia, in quaestiones, and in the disputationes, which like the repetitiones were by this time very detailed. But it is also obvious from the works most closely associated with teaching (the lecturae, commentaria, recollectae) that attention focussed on precisely those sections of the Digest and the Code or of the Decretals that dealt with such matters.35 At the same time, we note the gradual expansion of the fideicommissum, or trust, the institution that in modern times was to become extremely common as the established channel whereby the familial patrimony of nobles could be preserved through testamentary provisions. Now more than ever it was important to ensure – in anticipation of the numerous ‘substitutions’ made by beneficiaries – that certain intended objectives of the de cuius (as the testator was technically called) should be realized. However, the fideicommissum gave rise to a number of very delicate questions, somewhat akin to those associated with dowries, due to

35 Apart from Padovani, Studi storici, it is enough to refer here to the summary by Gigliola Di Renzo Villata, Persona e famiglia nel diritto medievale e moderno (1995), with full bibliographical references (note in particular the work by Bellomo and Tamassia). These are themes that have led to lively debate in legal literature, especially in Anglo- American studies, and for the communal and renaissance period in so-called gender studies: for example, ‘Donne nella società comunale: ricerche in Umbria’ (1993–95). Andrea Romano has also done a great deal of work on late medieval Sicily, considering the persistence of marriage ‘in the Greek style’ in a number of different areas, as well as the problems surrounding feudal possessions, and family discipline in the context of Sicilian customs: see in particular his Famiglia, successioni.

doctrinal and institutional developments 289

the restrictions under which some possessions were placed. How far, for example, could creditors make use of these? This proto-industrial urban society consisted moreover of companies – sometimes based on succession, sometimes under a collective name with members sharing full responsibility amongst themselves, or sharing it in part with the person who put up the capital – that employed agents; concluded contracts about levies (gabellae); and, as a collective entity, began to provide insurance, in the same way as that drawn up for cargoes or for the boats themselves in maritime undertakings. The first documents covering such matters, naturally Italian, date to the early fourteenth century. As a result, the jurists also began to look at those issues that were typically associated with commercial law, which they themselves designated as mos mercatorum (mercantile practice). This was therefore a time of reflection, involving a critical revision of the new type of consuetudinary and legislative law. There is evidence of this not only in Baldus de Ubaldis, who also dedicated a small tract to merchants, but also in some of the passages written by Paulus de Castro. Further evidence is provided in the rich collection of items of advice amassed by Bartholomeo Boscus, the Genoese jurist who lived between the end of the fourteenth and the beginning of the fifteenth century, and in the work on insurance written by the Portuguese Pedro de Santarém.36 In terms of theory, the jurists were less interested in the issues of contractual dealings involving peasants. This was probably because such matters rarely impacted on the seats of justice. Emphyteusis and enfeoffment – arrangements concerning members of the leading classes – were continually brought to the attention of the jurists, and were not only the subject of their treatises, but were also covered in consilia. By contrast, agricultural leases, or sharecropping agreements – arrangements that were characteristically set in place during this period, and which were destined to be extremely successful – have provided us with a mass of documentation, above all when involving institutions like hospitals,37 but with very little doctrinal elaboration. Agistment, a contract involving a

36 For the glossators’ works, see Paolo Nardi, Studi sul banchiere nel pensiero dei glossatori (1979); for the fourteenth and fifteenth centuries, see Vito Piergiovanni, ‘Diritto commerciale nel diritto medievale e moderno’ (1989); for Santarém see the specific entry in Maffei’s collection, Studi di storia. In the context of insurances, see some of the contributions (and in particular the work of Enrico Spagnesi and Gian Savino Pene Vidari) in L’assicurazione in Italia fino all’Unità (1975). 37 See Il contratto di mezzadria nella Toscana medievale (1987–92).

290 chapter eight number of parties with varying obligations in the rearing of livestock, did however attract the attention of the moralists (e.g. Saint Bernardinus of Siena). A different point should be made about another fundamental issue that attracted a great deal of attention during this period: the freeing of serfs. The land worker had traditional rights over the holding (the manse, or tenimentum), and as a result and on the basis of various agreements drawn up in previous centuries and custom itself, neither he, his family nor his descendents could be evicted. But at the same time he was a kind of ‘appartenance’ of the estate, subject to transfer along with it by contract or as a result of succession. At this time, the cities began to offer refuge to land workers, and, when insufficient provisions were laid down in their defence in the statutes, to protect them or else actually liberate them through indemnification of the land-owners. Measures of this kind were established at a very early date in Europe and involved many important Italian cities, signalling a high point in their civic development. More significantly in the present context, such measures triggered a fair amount of lively juridical discussion which has now been reconstructed.38 Even if brought about by the pressing necessities arising from massive urban development up until the Great Plague years of 1348–1349, and the freeing-up of agricultural relationships, eventually contractual and no longer dominated by custom, the liberation of the serfs during the thirteenth century involved recourse to the great guiding principles: liberty of natural law, etc. These measures also provided an opportunity for proclamations in the introductions to the relevant laws, as for example in the Bolognese Liber Paradisus (Book of Paradise) that might seem somewhat rhetorical today, but which at the time were of huge political and civil importance. It is no coincidence that it was precisely in this environment that reference was made once more to ‘politics’. The previously unknown writings of Aristotle, which had by then been translated into Latin, must clearly have played a part in this. But it is also a fact that this term was

38 Conte, Servi medievali, and Tavilla, Homo alterius. For the rhetorical aspects of notarial culture, see Massimo Giansante, Retorica e politica nel Duecento. I notai Bolognesi e l’ideologia comunale (1990). In this context one should bear in mind those who claim that subjective right was elaborated at precisely the same time, and in particular by the canonists (contrary to the opinion of those who would turn instead to philosophers, like Ockham); see the discussion of this well-known issue by Brian Tierney and Michel Villey ‘Ockham and the Origin od Individual Rights’ (1988), and Wolfgang Knut Nörr, ‘Zur Frage des subjektiven Rechts in der mittelalterlichen Rechtswissenschaft’ (1992); it is also a well- known fact that the doctrinal notion of the legal person was elaborated in the course of the thirteenth century (Cortese, Il diritto, II, pp. 201–203).

doctrinal and institutional developments 291

entirely appropriate in this particular context. ‘Politicians’ for their part were by definition held to be the communal governments, precisely because – like the ancient city-states – they ruled themselves with a constitution, in other words, they lived according to the law. Resurrecting the concept of aequalitas was equally important. This was a term that very clearly derived from legal rhetoric, and also demonstrated the extent to which the medieval axiological system was complex and fluid. This is illustrated by the fact that within the same religious koine vertical ideologies relative to power (monarchical) could co-exist with horizontally-organized systems (communal, ‘democratic’, egalitarian). There is further evidence of this in the conclusions reached in the writings of Marsilius of Padua, the ‘political scientist’, as we would now say, of the time of Bartolus who exploited the component of ‘popular’ legitimization, whilst paradoxically finding protection at the imperial court. This aequalitas was not just a simple statement of principle, but one that also involved specific and very demanding political provisions. One need only think of those ‘popular’ governments of the communes that issued anti-magnate legislation: that is to say, laws that discriminated against the magnates (nobles or individuals of higher rank), as those powers were called, who were considered disturbers of the public peace. As far as the communes were concerned, equality meant calling for an unequal treatment, in order to re-establish greater equilibrium between their power and the weakness of the populari. The Florentine Regulations of Justice issued in Dante’s time were an eloquent expression of this but not an isolated one.39 Under the new regime, the magnates had to offer guarantees, were excluded from highest public office, and were subjected to greater punishments than others for any offences committed. They were discriminated against in the name of equality, and in the name of the equity and liberty of all. Is not the modernity of these kinds of discussions and juridical and constitutional situations striking?

39 See the essays in Ordinamenti di giustizia fiorentini (1995). A general point of reference in this context is the classic work by Gina Fasoli, ‘La legislazione antimagnatizia nei Comuni dell’alta e media Italia’ (1939).

CHAPTER NINE

UNIVERSITY TEXTS AND LEGISLATION

Thus far, it is clear that the jurists not only constructed a legal ‘system’: they also convinced other sections of society, beginning with those that were the most important, to recognize their system, and also to accept that it was timely. The jurists furthermore managed to manoeuvre them selves into a position where they were given full rein, since the manage ment of the system was delegated to them: except, that is, for some of the more cautious powers like Venice; or those, like England, that had already constructed a different system. What other group of individuals would have been capable of achieving such a position, other than this pro fessional body of legal men which was by this date universally well- established? The Europe-wide uniformity of the jurists’ language, their methods and their works must have been extremely impressive. It must also have been a powerful element of accreditation for their system. The key thing was that it inspired trust. It was also relevant that the system had already been functioning for a considerable period of time. Never theless, such delegation of responsibility did not come without strings: public powers were very sensible of the fact that they themselves needed to intervene in legal matters as, and when, necessary. The jurists’ message to both political leaders and the general public was that the prince (that is to say, the political power) was responsible for justice. Moreover, such princely responsibility carried with it an obligation to intervene in general matters, as well as in individual local issues, or in certain specific areas. It was also made clear that the prince should intervene in a number of other circumstances – such as the levying of duties and taxes. Legislation forms an integral part of history, despite the fact that at times we prefer to think of it as something that is modern rather than medieval. In fact, the very opposite is true, even for those countries where the ideology of customary law was most firmly embedded. For example, we need only to leaf through the great volumes of the English Statutes of the Realm that were officially compiled during the early years of the nine teenth century to realize the part played by legislation in England even during the medieval period. The Constitutions of Clarendon of 1164, even though presented as recognizing prevailing customs and freedoms in the

294 chapter nine relationship existing between the king and the Church, contained so many innovations that Thomas Becket, the celebrated archbishop of Canterbury, who was later assassinated inside the cathedral and subse quently sanctified, felt unable to bestow them with his blessing.1 This was a general phenomenon throughout Europe. The late middle ages, a most fertile period in terms of writing, and particularly influenced by the diffusion of culture during the course of the thirteenth century, was also the time during which the circulation of legislation increased expo nentially. Sapiential law, which we have discussed above, was not an alter native to legislation. As we have already said, the one referred to the other. The one was also favoured by the other. If there was any kind of competi tion, it must only have been in the context of remuneration for services offered, because they each formed part of the same culture. This was a culture of the book and of writing ab antiquo, based on authoritative texts (above all, the Bible) that were explained to the ‘people’ by authorized and specialist men of learning.

9.1. Completion of the Corpora Iuris

This phase of rapid progress and organization also explains why, during the first part of the period now under consideration, there was a move to finish the Corpora that were being taught in the universities. In fact, both Corpora acquired their definitive forms before the great pandemic.

9.1.1. The Corpus of Civil Law: From Feudalism to Tyranny Not everyone was entirely satisfied with the final consolidation of the ordinary glosses. There can be little doubt that these influenced interpre tation of the text indicating, like scholastic readers, how to proceed, and thus conditioning the reader’s response. It was, however, clear that the annotations were useful, and ended up having a considerable impact. The system had reached a point of stability. Just as the imposition of particular readings of the legal texts would come to be accepted by the early four teenth century, so now there were far fewer of the final volumes of the civil law corpus that were not embellished the Accursian gloss.2

1 See Wolf, Gesetzgebung, p. 339 (pp. 350–351 for English legislative sources). 2 Azo and Odofredus’s works, which adopted an alternative doctrinal trend from that of Accursius, were increasingly being ignored: see esp. Giuseppe Speciale, La memoria del diritto comune. Sulle tracce d’uso del ‘Codex’ di Giustiniano (secoli XII-XV) (1994).

university texts and legislation 295

Only the iter of unifying the feudal text was slow in coming, and there was a reason for this. It was the only widely circulated civil law text of medieval origin, apart, that is, from the Lombarda. In fact, we know that even in the middle of the thirteenth century, and in Bologna itself, the edi tion of the Libri feudorum that was written by Ugolinus Presbiteri remained somewhat isolated,3 even though Hostiensis included the Novella Lombarda (Peace of Constance) and the Consuetudines feudorum under legalis sapientia. But another expert on feudal law, the Frenchman Jean Blanc (died 1267), also complained, again during the middle of the thir teenth century, about the variety of texts covering feudal law. Indeed, he was forced to insert a table of concordances at the end of his Summa feudorum, to guide the reader through the various editions in circulation. Towards the end of the century no mention was made of the Libri feudorum in a contract for writing the Volumen – the matrix university collec tion that included the Institutes, the last Tres libri of the Code, the Authenticum and the Peace of Constance, together with the gloss produced in the middle of the thirteenth century by Odofredus, later reworked and expanded by Baldus de Ubaldis during the fourteenth. Even Accursius’s son Franciscus described the Libri feudorum as being of Lombard law (‘de iure longobardo’), probably in order to establish that they were not in the libri legales that were normally used. Not even the circulation of the ordinary gloss had the effect of standardizing the text. In fact, Accursius wrote two commentaries on the Libri feudorum, the sec ond of which became the Glossa ordinaria (ca. 1227–34). This is what we now find in printed editions. But Odofredus was referring to a different text, and in Orléans during the next few decades Jacques de Révigny came across some Libri feudorum as written leges gathered together as the decima collatio in the Volumen. However, since he did not consider these to be part of the authentic provisions (constitutions), he discussed feudal law in the context of the Institutions (Inst. 4.6.13).4 The manuscript tradition of the Volumen itself was also very disparate, because it was not among the principal texts used in teaching. It is thus understandable that opportunities arose for a further re-systemization of ‘common’ feudal law. Even before the mid-fifteenth century, attempts had been made by Bartholomeus Baratieri for the duke of Milan, and by

3 Odofredus, Ugolinus’s pupil, tells us that the latter’s version had not yet resulted in established reproductions of manuscript copies. 4 Giordanengo, Les feudistes, pp. 70–71; even as late as 1289 the Libri feudorum did not form part of the established handwritten documention: Cortese, Il diritto, II, p. 167.

296 chapter nine

Antonius Mincucci of Pratovecchio in Tuscany. But none of these found favour with the doctors. The ‘canonical’ text was well-defined by now, and as such had stimulated a number of important doctrinal works.5 The Libri feudorum had in fact been disseminated throughout Europe, partly as a result of their insertion between the libri legales from the thirteenth cen tury onwards, and partly because they gradually formed part of ius commune through teaching. But this was a law that was by now of little interest to tribunals that were more concerned with observing their own local norms. As was so often the case, it was also a law that was really only effec tive on a theoretical level.6 Feudatory powers, qualified as merum imperium, merum et mixtum imperium, etc., derived in part from the act of investiture, by now formalized in most eloquent parchments. These also derived from legislation and local customs which could be very different, but which were now ‘interpreted’ in the light of ius commune. For exam ple, it is worth emphasising the differences between fiefdoms at Ferrara and Modena. The former were developed in a territory with antique Byzantine roots, and were thus comparable to the emphyteusis and the livellum system, because they involved the use of property without the right to govern it. The latter were established in a territory that was accus tomed to Lombard law, and where the feudatory received the merum et mixtum imperium.7 Nevertheless, uncertainties about interpretation of the text were dealt with by jurists who were called in to give their opinions in the light of the doctrine of ius commune. The summae feudorum, the commentaries and the specific consilia which were later reproduced in print, are an indispensable source of information.8 These not only provide us with a clearer idea about feudal procedures; they also provide us with the necessary conceptual tools to refine our understanding of the terms of individual concessions and of the particular laws being applied. The Volumen was then further embellished by the last remnants of imperial legislation. Two laws issued at Pisa by Henry VII – Dante’s ‘tall

5 According to Giordanengo, Les feudistes, p. 71, one consequence of analytical teach ing, depending as it did on particular individual texts, was the absence of a need for a well established collection of texts (reference is also made to an attempt to remedy this situa tion in 1369 according to a manuscript which comes from the papal library, and which has yet to be examined in detail). 6 Cortese, Il diritto, I, p. 286. 7 Marco Folin, ‘Il sistema politico estense fra mutamenti e persistenze (secoli XV-XVIII)’ (1997). 8 See the important recognition of this in Legal Consulting (in Gérard Giordanengo’s contribution).

university texts and legislation 297

Harry’ – on the occasion of a dispute with king Robert of Anjou that also had a judicial aspect were included here other extravagantes (appendix). King Robert had been denounced by the emperor as a rebel, for failing to appear when summoned to face a charge of illegally governing the King dom of Sicily, for which he was found guilty. These two constitutions – Ad reprimendum and Qui sint rebelles – were important because they prompted consideration of the problems surrounding the ‘due process’ (as we would say today): were there any rights of defence that, being asso ciated with natural law, could not be violated by the legislator?9 The theme of rebellion against a legitimate authority and of the ‘summary’ process (as, when and for whom legitimate?) was so important that these constitutions were not only incorporated into the university volume, but were also elaborated with a continuous gloss compiled by the great Bartolus of Sassoferrato, which was usually the first way to become famil iar with a text. But that is all. With this, and by the early fourteenth cen tury, the civil law Corpus was completed. This was no longer a time of universal legislation.

9.1.2. The Completion of the Corpus of Canon Law The same applied for the Church. Already before the Plague it had com pleted as a powerful tool of government the canon law that we last observed in the middle of the thirteenth century in the hands of Innocent IV, the great pope who had previously been a professor in Bologna. The Papacy continued to use decretals to put the finishing touches to the great compilation of Gregory IX, even after 1234, the year of the Liber Extra. The decretals were then integrated with the conciliar deliberations of Lyons, both those of the first council in 1245, which included the condemnation of Frederick II, and those of the second council of 1274. These new norms were circulated as ‘novels’ in an appendix to Gregory IX’s Liber, which quickly created a need for re-organization of the mate rial. A highly technical solution was employed by Boniface VIII at the end of the century, when he engaged a commission that included cardinal Ricardus Petroni to organize the material as usual into five books, and, by way of conclusion, added a series of regulae iuris with the help of the well- known civil lawyer, Dynus de Mugello. The result, which took the title Liber Sextus, was a far less bulky volume than the Gregorian text but

9 There is a summary of this in Pennington, Due Process.

298 chapter nine nevertheless remarkable because the original texts (decretals and concil iar decrees) were radically re-written. Solemnly proclaimed in 1298, and following tradition, the volume was then sent to the universities of Bologna and Paris. This was also a way to ensure maximum dissemina tion. But this was not the end. The same pope Boniface did a lot more besides the jubilee of 1300. He became involved in the conflict, once more of a juridical nature, with Philip the Fair, king of France, who attempted to put him on trial.10 This led to the issuing of the celebrated papal bull Unam sanctam in 1302. This was a manifesto of the hierocratic absolutism of the pontiff. It was held ex post to be a kind of swansong, an anachronistic attempt at universality and temporal dominion, which in an age of mature national monarchies was already out of fashion, but which was nevertheless supported by a very insistent battage of intellectuals taking the part of the Papacy. We thus witness once more the conflict of sovereignty between the State and the Church, which was also played out through legislation, because it attempted to define the limits of intervention of lay power and ecclesiasti cal privileges – and thus interested Dante, in particular. There were also some spectacular moments during this conflict, which ended with the best- known humiliation in the history of the Papacy, and finally in what from the Roman perspective was considered the ‘captivity’ in Avignon. There, the Papacy – now bureaucratically developed as never before – was able to re-organize itself, perfecting mechanisms for offices (the supply of benefices) and earnings. While Avignon accommodated artists and poets (from Simone Martini to Francesco Petrarca, who received a portrait of Laura from the former), the city was above all pulsat ing with priests and jurists (for example, the Italians Oldradus de Ponte and Albericus de Rosate), and the Papacy was putting together the final official collection of the body of canon law. A number of decrees were issued after the Council of Vienne, which had been set up between 1311 and 1312 in an attempt to establish a stand against the many conflicts. Following tradition, pope Clement wanted these decrees to be divided up and united with other recent constitutions under the usual titles, before being gathered together into five books. His aim was to re-affirm such pro visions to a Christian world which was at that time suffering a frightening crisis of credibility. However, even though it preserves in its name the

10 See also Coste, Boniface VIII en procès. Articles d’accusation et dépositions des témoins (1303–1311) (1995).

university texts and legislation 299

memory of the pope who commissioned it, the Clementinae collection was only proclaimed by pope John XXII in 1317. These are the constitu tions in which, for example, there is that famous passage about the sum mary process (Clem. Saepe): a sharp response to Henry VII and to his process by default with the Angevins. The two collections, which are now cited according to the criteria explained above,11 were soon universally incorporated in the teaching programmes of the universities. Because of their newness and significant interest for the Church, for example in terms of trial proceedings, they were also embellished at an early date with annotations and commentar ies. Amongst the glosses compiled, all of which were accepted as ordinary glosses, those of Iohannes Andreae, the canonist who shortly afterwards became very famous, and who was in all but name the official representa tive of Bolognese juridical studies, quickly gained precedence. And that was not the end. The very prolific pope John XXII12 composed his own constitutions, including amongst them the one condemning magic (a personal obsession). These were gathered after 1325 by Jesselin de Cassagnis (Zenzelinus de Cassanis), a jurist from Montpellier, and by Guillaume de Montlauzun. They were, however, widely distributed as appendices to official texts such as the Extravagantes Iohannis XXII.13 Finally, an unknown scholar assembled a series of decretals (70) issued by the Papacy between 1295 and 1483 that became known as the Extravagantes communes. The two collections added as an appendix were not therefore issued officially, but they assembled and then handed down important texts: the papal bull Unam sanctam; that on poverty, which was con demned by the Franciscan fraticelli; that confirming the Franciscan Rule; and so on, right up to the above-mentioned Execrabilis issued by Pius II.

11 There is an index of the various headings in the canonistic collections in Kuttner, Index titulorum, an indispensable source of reference as the canonists cite collections post-dating Gratian according to internal headings and chapters: one example is the famous capitulum Venerabilem, with which Innocent III reserved the right to choose the emperor in the event of there being a dispute over his election, which was cited as ‘extra. iii. De electione. Venerabilem’. While this is now referred to as ‘3 Comp. 1.6.19’, being sub sequently included in the Liber Extra it was previously referred to as ‘extra, De electione, Venerabilem’ = X 1.6.34. The change in the manner of citation is important in the context of establishing the chronology of a work with respect to 1234. The same criteria were fol lowed for the other collections: Sext., VI., Clem., Extra. Jo. In the critical citations instead of the X that indicates the book of pope Gregory, VI indicates the Liber Sextus, Clem. for the Clementinae, or Extrav. for Extravagantes (decretales) Iohannis XXII. 12 The case studied by Gherardo Ortalli in ‘Venice and Papal Bans on Trade with the Levant: The Role of the Jurist’ (1995), is interesting. 13 See the edition of the Extravagantes Johannis XXII (1983).

300 chapter nine

The complete assembly of canonical texts only acquired the title Corpus iuris canonici in 1500 – a name given to them by the Parisian editor of that time. This is all for the middle ages. Once again, and already before the Plague, the two corpora with their ordinary glosses were not only finished, but had been reproduced in hundreds of manuscripts. These were at times splendidly illuminated, and are in part conserved even today in libraries throughout the world. After the Plague, there was a drastic reduc tion in demand for new copies, because those already drawn up were suf ficient to satisfy the by now reduced ranks of customers. In any event, there was ample space to add additiones in the wide margins of the parch ment pages. The commentaries were composed separately however, and by the fifteenth century were generally written on paper. From the point of view of studying the texts, the Plague thus brought about an abrupt caesura. But legislative production for the universal Church had in fact diminished. This was partly because the body of law – by now invested with innumerable doctrinal interpretations – had reached a point where the fundamental problems of the Church had been defined. But it was also due to the fact that the normative reorganizations that were being realized locally within the various states (due to concor dats and synod activity in the various bishoprics14), were by now accepted as central elements within the system of law. Indeed, the Church really had no need to collect and disperse information about the normative material arising from the schism and the fifteenth-century councils. The last century and a half of the medieval age was thus practically devoid of universal legislation worthy of being incorporated by the uni versities. This is not an insignificant fact. It is moreover clear that with the recurring crises between the Empire, the Kingdoms and the Church, the new phenomenon of local power, both monarchical and that assumed by the citizens themselves, played a not insignificant role in bringing about such an outcome.

9.2. Developments in Local Law

At the same time as the decline of universal powers, these centuries also experienced the prolific development of local law, which as has already

14 There is a good example of this in Richard Trexler, Synodal Law in Florence and Fiesole, 1306–1518 (1971).

university texts and legislation 301

been noted, resulted from the dissemination of the juridical culture of the universities within the new institutions. Anyone who wished to assert his own political identity, such as Frederick II, king of Sicily, or Alfonse the Wise, king of Castile, issued a solemn piece of legislation, in imitation of the great role models available to them, from Justinian to pope Gregory IX. The late middle ages was the great age of legislation, whether more or less original, or more or less a matter of transmuting local customs into text. With law destined for learned study in the universities being, as we have seen, largely concluded before the Plague, the field was dominated by local, princely and city leg islators. The question arises: did the different kinds of legislation have anything in common? There can be little doubt that the Romanist language of law was com mon, whether filtered through notaries or directly adopted by learned compilers of individual texts. All over, written texts were drawn up accord ing to the university lexicon, except in marginal areas, with the result that they are particularly interesting for modern scholars. The same language was adopted for the institutes, typical of ius commune, which were re-con structed and usually simplified for application at the local level. But, in a world that was undergoing profound changes there was a universal desire to register particular presences through written law. As a direct result of the ubiquitous juridical culture, different institutions were gathering strength far and wide, assuming greater visibility as well as greater con sciousness of their own roles. Moreover, where the legislation was more consensual in character as, for example, in Sicily, and thanks to the first parliaments in Sardinia that were brought to the island by the Aragonese conquistadors, and presumably as a result of being more conscious of local and even cultural specificities, the institutes bear the refined stamp of the jurists. Anyone who emerged from the university environs was not only approached by local legislators asking for help in setting down new texts, but also automatically found themselves in a privileged position to under stand, interpret and throw light on the ways in which such legislation could be applied. The overarching authority and prestige of the jurist (the ‘doctor’) stimulated the legislative boom of a period that placed enor mous trust in the law. The result is that we are now left with very abundant documentation. We must therefore limit ourselves to just a few examples in the following discussion, whilst at the same time offering a general cross-reference to the catalogue of the largest collection of Italian legisla tive texts in existence in the country today – that in the library of the

302 chapter nine

Republican Senate in Rome,15 which is alphabetically arranged according to place-names, and therefore easy to use.

9.2.1. Citizens’ Laws Statutes came into their own from the middle of the thirteenth century onwards. In general, one can argue that statutes were more frequently drawn up before the opening years of the fourteenth century, when the sovereignty of the city-states, free or under the authority of a lord, was most evident, and when the socio-economic conditions invoked a more radical legislative presence that was both predisposed and extensive. By now statutes covered every area that it was possible to discipline: from the law that we now call constitutional to civil, administrative, penal and pro cedural law, as well as gathering in some reference at least of the most important inter-state agreements, and including imperial and papal con stitutions against heretics.16 No area was left untouched. It was as if the communal legislator was intent on his own omnipotence, resulting in a constant renewal and extension of his interventions. Thus this period wit nessed the initial stages of the so-called ‘sumptuary’ law:17 that is, one that censored luxurious dress and banquets (sumptus). This law evolved partly as a result of the mendicant preachers, who were inciting the cities and railing against luxury as a sin; but also, to a certain degree because local producers wanted to ensure the success of their own products; and fur ther as a result of pressure from the communal treasurers, who consid ered foreign purchases dangerous because they resulted in local money being exported. One should also remember the aforementioned legisla tion which was drawn up against the nobles in the Ordinamenti di giustizia of Florence; or the legislation proposing freedom of the serfs; and that cov ering their move to the cities. All this legislation was extremely significant

15 Catalogo della raccolta di statuti, which has now reached letter ‘U’; the material has been brought up to date in Bibliografia statutaria. 16 For Parma and Bergamo, see especially Thomas Scharff, Häretikerverfolgung und Schriftlichkeit. Die Wirkung der Ketzergesetze auf die oberitalinischen Kommunalstatuten im 13. Jahrhundert (1996). 17 Before the volume Disciplinare il lusso (2003), see a summary in this context and other contributions in ‘‘Visibilità’ delle donne tra Medioevo ed età moderna: carte private e pubbliche apparenze, lusso e prescrizioni’ (1996-98). See also James Brundage, ‘Sumptuary Laws and Prostitution in Late Medieval Italy’ (1987); Catherine Guimbard, ‘Appunti sulla legislazione suntuaria a Firenze dal 1281 al 1384’, (1992); Maria Assunta Ceppari-Patrizia Turrini, Il mulino delle vanità. Lusso e cerimonie nella Siena medievale (1993).

university texts and legislation 303

in political terms, at times being viewed as ‘special’ – and thus kept out side the statutes – but at other times, being drawn into the statutes. Furthermore, the idea that private law did not form part of statutory law because it belonged in the domain of university specialists is thor oughly misleading. On the basis of those institutes that were most widely circulated and in everyday use, there seems little doubt that there were a number of important norms covering family law, as well as inheritance, or succession, not to mention norms governing commercial affairs. Private law certainly formed part of the urban statutes of most notable cities, at least the independent ones, sibi principes as Bartolus would have said. By contrast, rural statutes tended to concentrate on minor issues: petty offences and arbitrations between family members or neighbours, or damage resulting from agricultural activities. But this was because they tended to adopt the legislation or the statute of the dominant city that had absorbed the individual village or town into its own territory (iurisdictio, districtus, comitatus). The cities assumed a dominant role, reserving for themselves the authority to deal with major crimes, and offering monopolistic privileges to their own guilds, anticipating the authoritative duties they would undertake. There is a world of difference between the qualitative depth and breadth of urban statutes (even those of subject cit ies, as was increasingly the case from the end of the fourteenth century onwards), and that of a rural settlement or castle domain. The latter were demographic and administrative units that in Bartolus’s words lacked iurisdictio. Thus, even their own resolutions needed to respect the wishes of the dominant city. The city for its part was in a posi tion to approve or reject individual statutes, and to order modifications. It was also able to limit the scope of rural statutes to minor matters. The significant statutes are those drawn up in urban centres. These were fre quently reconstructed during that first century – a period we could rightly call the century ‘of the statutes’. The unimpeded social and economic development of the period not only presented an increasing number of new juridical problems; the universal triumph of the juridical culture itself gave rise to new solutions. It was also often the case that new consti tutional systems were necessary in the wake of the fluctuating political balance. Commissions of statutarii or statute makers – political individu als assisted by several doctors and notaries – were established, with the specific brief to bring individual statutes up to date. Each year, innova tions deliberated by the citizens’ councils were inserted in the appropriate places, and where necessary the commissioners reported the need to pre pare a new edition funditus, involving a volume ex novo. At other times,

304 chapter nine and in the same method as that used by the jurists involved with the maintenance of the ordinary gloss, the commissioners included relevant statutory additiones in the margins. Sometimes, as for example at Genoa, it was recognized that political and constitutional affairs changed far more rapidly than more traditional issues that were both established and stratified. Realizing economies of effort, not least that of a cerebral nature, a particular section was allocated to the regulae (rules) of the political game, all other matters being assembled in the separate volume of stat utes. Elsewhere, for example in Venice,18 an integrative book was added to those already in existence. Also in this first chaotic phase, a whole series of statutory norms were realized that were so specifically associated with the dominant political group that there was a general desire that they should be unmodifiable (statuta perpetua, precisa). Any abrogation of, or corrections to, these norms was banned, with the provision of harsh penalties for those who proposed otherwise. Naturally, such precautions held at bay dangers that were recognized as all too prevalent, and it was specifically these early norms that emerged as a result of the great changes of status (mutatio status or regiminis) in the communes. This was the case, for example, when a signoria or lordship was established, or when a commune lost its political independence – increasingly the fate of a large number of cities in the years preceding the fourteenth century. But as long as communes remained independent, the most daring legislative experiments were attempted. For example, when the sometimes strongly aristocratic com munes were superseded,19 there was a move in the ‘popular’ or people’s communes (at Pisa, Siena and Perugia) towards the production of statutes in the vernacular, and towards writing in large letters (the so-called littera grossa). Even poorly educated individuals were thus able to read the stat utes and make copies of them, as happened, for example, at Siena.20

18 In 1346 a Liber Sextus was added to the statute of 1242, consisting of material that brought such matters up to date: I, concerning the sale of ecclesiastic institutions and trial proceedings; II: on tutelage; III: on contracts; IV: successions; V: successions, obbligations, theft, and interpretation of the law. This material was still being published under the aus pices of the Senate in 1729, along with decrees referred to as original advices (consulta ex authenticis), the ‘Pisan’ law on appeals (because proposed by Luca Pisani), the procedures of the Venetian Palace of Justice of the early modern period (Pratica) and statutory corrections of the end of the fifteenth century; the second part consists of penal laws, Tiepolo’s oath (promissio), chapters concerning criminal law from the Sextus and other laws up until 1720. 19 At times the milites who constituted about 5% of the population assumed half and sometimes even 2/3 of the public offices: Nicolai Wandruszka, Die Oberschichten Bolognas und ihre Rolle wahrend der Ausbildung der Kommune (12. und 13. Jahrhundert) (1993). 20 See Ascheri, ‘Législation italienne’ (2001).

university texts and legislation 305

The victorious new lord or city, for their part, tended to preserve the statutes of the vanquished city, which were duly reworked through the councils, and according to individual competencies. This was partly out of respect for the defeated party, which was now effectively, almost ‘cultur ally’, conquered, and partly because the lord created his own extra- statutory officials who were directly answerable to him and who took precedence over communal officials. It was also due to the fact that the dominant city had no interest in extending its own law over the subject entity. At most, the dominant city issued fiscal laws or provisions concern ing the economy, which were valid throughout the territory, and which then reduced the force of the statutes, finally taking their place. But these were special laws that were frequently reviewed. It is even more unusual to find statutes that were officially proclaimed to be valid throughout the territory, albeit operating only in a complementary manner. This was the case with the Florentine statutes of 1415, which were drawn up with the help of the famous professor Paulus de Castro, and which were des tined to be in force over a very long period, even though certain parts were never applied.21 Even without such official proclamations, doctrinal teachings began to justify what practice must already have imposed. In other words, an attempt was made to vindicate additional recourse to the law of the ruling party. This was an obvious course of action for the teams of officials sent from the centre, although it did not always find favour with those at the receiving end. For example, following the harsh Florentine conquest of 1406, Pisa remained embittered for a considerable period of time. There was thus a tendency to form another type of ius commune, a ‘regional’ law for states such as Milan, Venice, Florence and Siena that assumed regional significance through conquering other nearby cities. Lucca, by contrast, always remained a unique city within its own territory, and Genoa did not really construct a regional state, but rather limited itself to controlling those areas it had dominated. But this intermediate normative level between communal and statutory law did not have much impact in the face of the complex array of rules and exceptions at various consecutive stages within the system of ius commune. It is at this point that we encounter a characteristic considered in the previous century: the relative stabilization of the statutes. Clearly, new

21 They survived until the establishment of the Napoleonic Code in Tuscany (1808); at the end of the eighteenth century they were published under grand duke Peter Leopold of Habsbourg with the allusive and false reference to the ‘free city’ of Freiburg as place of publication.

306 chapter nine political control would require change, but the statutes were also made to accord with the ‘chapters’ of surrender or of agreement that would regulate future relationships between the dominant and the dominated city. Annual reforms of the statutes were a thing of the past. By this date, statute texts were sufficiently stable to reflect the identity, even the cultural nature, of the individual cities.22 Meanwhile, there were continual reforms of detail, each one acquiring its own particular measures. And, quite separately, draft legislation was drawn up concerning the reformationes or provisiones (known in the vernacular as provvigioni, parti, partiti or terminazioni) – what we would now describe as administrative matters, concerning offices, fiscal issues, bureaucratic matters, urban affairs, and so on. The result was that statutes constituted only a part of urban law, if nothing else because of the presence of ius commune, and also on occa sion did not cover the more important aspects of local law. In some cities, norms of a political nature were never included in the communal statutes. Indeed, they were often placed within other statutes such as the Statute of the People, or the statute of the relevant Guelph of Ghibelline ‘party’ in power. The specific norms of certain other bodies, such as those dealing with finance, tax or urban affairs were also excluded. Several others were never applied, or fell into disuse. A rationalizing reform could, however, have challenged the balance of political power or at least have been time-consuming and expensive, and also also have damaged the image of the individual commune. Moreover, there may have been a feeling that certain norms could be re-considered at a later date, especially if they were by necessity lying dormant in the face of a dominating power. The fact is that on most occasions nothing was done. Different communities continued with a statute that was in part obsolete, or not applied: almost through inertia, as if awaiting better times that often never came. This is a characteristic of Italian legislation, both in the past and in the present. Too much attention to legislation makes for more legislation, or else provokes an almost total ossification of the law. It is a paradoxical fact that such a system ends up breeding con tempt for juridical procedures precisely because of all-pervading juridical

22 The 1297 statute for Alessandria was, for example, still being published in 1547: book I had fallen into disuse, but not all of book II, which dealt with penal law and trial proceed ings; book III, on civil lawsuits, and advocates and notaries; book IV concerning communal taxes; book V, on churches, levies, heretics, etc.; book VI, concerning food supplies and sumptuary laws; book VII, on urban matters and public works, etc.; book VIII, on the dam ages in agriculture; and book IX, on artisans, tolls and people’s associations, etc.

university texts and legislation 307

intervention, and results in the individual no longer heeding the form or legality of the law.23 Given that there are about ten thousand surviving statutes, one need only refer to several recent publications dealing with Florence, Brescia, Verona, Pisa, Colle val d’Elsa, Albenga, Perugia and Bergamo,24 to name some highly differentiated areas in Italy with commune traditions, in order to realize the difficulty of negotiating the material. Moreover, because the Pontifical State was strongly characterized by the commune experience, as outlined above, we need rather to give further consider ation to the presence of the monarchy in Italy, that is, in the southern Kingdom of Sicily. It seems clear that this region did not experience the wide phenomenon of statutory law as did the central and northern parts of the peninsula. This can be explained in a number of ways: the richness of the Liber Augustalis, as well as the doctrine that was developed in its margins; the absence of the city-states, along with their accompanying political problems and socio-economic developments. Such factors played a vital role for good or ill in the history of central and northern Italy, and not only during the Middle Ages.25 One could also cite the rela tive scarcity of legal doctors as a reason for the absence of such a tradition. In fact, the small number of cities massively affected by the culture of the communes on the mainland (a typical example being Sassari26), had com parable statutes. There was, however, another important and enduring phenomenon that prompted the southern cities of Italy to compile their own statutes of urban law, variously called green books, red books, and so on, which con tained scrupulously maintained sections covering the chapters, privileges and other affairs of the city in appendices. This stimulus was provided by

23 It is easier to take heed of both its good and its bad parts where alternatively – as for example in the English world – the law is less ubiquitous and is essentially viewed with suspicion. 24 See respectively under Statuti della Repubblica fiorentina (1999); Franco Spinelli, Gli statuti del Comune e delle corporazioni della Brescia medievale (1997); Statuti di Verona del 1327 (1992), Il brevi del Comune e del Popolo di Pisa dell’anno 1287 (1999); Statuta antiqua Communis Collis vallis Else (1307–1407) (1999); Gli statuti di Albenga del 1288 (1995); Statuto del Comune di Perugia del 1279 (1996), Lo statuto di Bergamo del 1353 (1996). I specifi cally refer to these because they have not been included in the detailed list in Wolf, Gesetzgenbung, pp. 86–90. 25 This opinion (shared by others) is developed in Ascheri, ‘Beyond the Commune’. 26 See the exhaustive volume Gli statuti sassaresi. Economia, società, istituzioni a Sassari nel Medioevo e nell’età moderna (1986). A conference was held at Cagliari (14–16 October, 1999) on ‘The statutes of the Kingdoms of Valencia and Sardinia in the Medieval and Early Modern Age’.

308 chapter nine

‘customs’ which were also once more gaining strength, and thus being reconsidered both in terms of past customs and those currently dominant. The widespread diffusion of written culture meant that unwritten cus toms were now committed to paper, and thus gradually assumed concrete form. The phenomenon of written customs (which was particularly strong in Sicily) has recently been the subject of detailed research.27 The customs themselves were generally of little normative significance, dealing as they essentially did with private law and the expression of deeply-rooted cus toms. Nonetheless, as has already been noted in the case of Naples, they were on occasion subject to learned elaborations. Apart from this, many southern cities – both in Sicily and on the main land, from Bari to L’Aquila and from Messina to Palermo – were very active communes. As one might expect, this produced a rich series of legislative measures, some of which were extremely important.28 As for the statutes of smaller towns, these were produced in large num bers between the thirteenth and fifteenth centuries. Once again, we need only refer to the catalogue of the Senate Library in Rome to realize the extraordinary variety and richness of these texts. Each one has its own ‘individual’ character, unless, that is, it consisted of a word-for-word copy of another text elsewhere – a common phenomenon, and one that per haps surprisingly did not cause offence to any party. There are thus varia tions between each statute, which depend not only on the cultural background of the compiler and the autonomy of the particular place and so on, but also on the pedological character of the area. Circumstances on the ground would result in very different types of regulations, especially when it was a matter of disciplining local practice associated with the ter ritory itself. Thus, there might be copious rules concerning the use of extensive communal woodland in mountainous areas where the raising of livestock was fundamental to the way of life, whereas elsewhere, in an island environment, commerce and navigation even of limited scope would have been regarded as of more vital importance. The situation also

27 Apart from Wolf, Gesetzgebung, pp. 233–250, Andrea Romano has considered this aspect on a number of occasions; see, for example, his opening to La Mantia, Antiche consuetudini. 28 See, and not only for Bari, Eugenia Vantaggiato, ‘L’autonomia comunale delle città meridionali in età medievale e moderna’ (1995). Many examples of legislation, for exam ple, appear in the volumes of the very good series ‘Acta curie felicis urbis Panormi’, pro duced by the Archivio storico of the Commune of Palermo; for example, in Registro di lettere (1350–1351) (1999), pp. 106–108, there are significant ordinaciuni concerning rates of exchange as established by the money changers (sicloti) of Messina.

university texts and legislation 309

clearly changed depending on whether and to what extent a community was feudal. Other variations could arise on the basis of whether the com munity in question was more or less on the borders of an administrative area. For example, different communities were subjected to various num bers of provisions, according to whether they were likely to secede, or the extent to which they were easy to control by the military and by municipal officials, with ensuing problems such as smuggling, etc. The typology of these statutes is therefore very varied. The examples examined here are selected for the sake of simplicity. We will consider just two important collections (one for Emilia-Romagna and one for Umbria); a guide to the rules applied in the Trentine valleys; two signorial statutes (for Sermoneta, Latina and for Chiarentana, Siena); and two small com munities – one on the coast (Rio, on the island of Elba), and Lendinara, in the Polesine area.29 A shared characteristic of these statutes, especially those compiled during the fifteenth century, is that they were written in the ‘vulgar’, or commonly-spoken language. They thus provide us with texts especially illuminating of terminology. At times, we find a curious kind of technical vocabulary as, for example, in the context of mining, cloth working, agri culture, livestock, etc., which is very interesting. Meanwhile, once the ‘popular’ phase was over, the communes tended towards or persisted with the use of Latin of a scholastic kind, or even – and more pretentiously – towards the end of the fifteenth century, that of the humanists. Normally, these communities had compiled their own legislation, albeit often with the help of a local notary or the ruling authority. But the fact that such legislation was the result of local considerations, as opposed to interven tions by a third party, meant that the language used was less artificial, more direct and independent of the conceptual parameters displayed in more important statutes written in the language of ius commune. That the language of statutes written in the ‘vulgar’ presented a prob lem for princely administrations is an issue we will consider in due course. But before abandoning the statutes we need to address once again the question of statutory areas. There can be little doubt that texts created in areas that were culturally, politically, economically and in other ways

29 See respectively Repertorio degli statuti comunali emiliani, Repertorio degli statuti comunali umbri (1992); Mauro Nequirito, Le carte di regola delle comunità trentine. Introduzione storica e repertorio bibliografico (1988); Vendittelli, ‘Domini’, in Val d’Orcia nel Trecento. Lo statuto signorile di Chiarentana (1990); Statuta Rivi. Il volto di un’antica comu- nità elbana attraverso i suoi ordinamenti (1998); and Statuti di Lendinara del 1321 (1984).

310 chapter nine homogeneous, tended to be similar; or that one locality assimilated the statutes of another place, even if not of an entirely comparable nature, in order to save money.30 We would indeed be surprised if this were not the case. But precisely because this could happen for the most diverse rea sons: the presence of the same scholar in the vicinity; deep-rooted atti tudes about neighbouring communities and so on, it is wise not to assume that there were similarities between the localities.

9.2.2. Territorial, Monarchical and Princely Laws Just as with the communes, we need to distinguish here between legisla tion that was produced on a shoestring, so to speak (consisting of vari ously denominated provisions, but in reality intended to address specific or sectorial matters), and that which is illustrated in more considered leg islative collections. These were more complex, in that they expressed deep-rooted practice, established by tradition, even before they were offi cially recognized as customs. It was also often the case that such collec tions contained provisions that were the result of theoretical labours, which had been deliberately undertaken in order to deal with a whole range of legal issues. The ‘laws’ of the first category, as in the case of the provisions of the city-states, were very fragmentary, presenting problems in both their manuscript and printed forms, precisely because they were ephemeral. Losing relevance over time, many have been lost or else returned to the original registers of the chanceries that produced them (that is, when these have not been destroyed like the Angevin registers of the great State Archive at Naples, that were swept away in the wake of Nazi fury). Others have been published by local historians and scholars, or by collectors of papal bulls and the like; they now form part of the general collection of documents relating to a specific territory,31 or have at some time been assembled together into one particular group.32 By contrast, the laws that have been the most influentual are those that were meant to last – and which have in fact endured. For example, those

30 There are examples of this in Giorgio Chittolini, ‘A proposito di statuti e copiaticci, jus proprium e autonomia. Qualche nota sulle statuizioni delle comunità non urbane nel tardo medioevo Lombardo’ (1995); the whole of the book should be read for its discussion of statutory problems. 31 See, for example, Augustinus Theiner, Codex diplomaticus dominii temporalis S. Sedis (1861–62) for the Papal State. 32 This has, for example, been the case with the ducal decrees of Monferrato, for which there is a first edition dating to 1505 (Leicht, Storia, p. 182).

university texts and legislation 311

of the Angevin capitoli for the Kingdom of Sicily to the north of Faro (from 1266 to 1453; and under Charles II, son of the conquistador, the many privi leges to the churches in compensation for their support of the pope) or the Aragonese grazie and prammatiche for the island of Sicily (from 1282 to 1296 – in this region parliamentary settlements were known as capitoli), and also those for Naples when conquered by Alfonse the Magnanimous, king of both parts of the Kingdom from 1442 onwards. In these cases we can limit ourselves to a reference to the printed editions,33 with the cau tion, however, that these are somewhat old-fashioned and thus compiled with comparatively little philological rigour. Individual texts thus present delicate problems of attribution.34 In any event, it should be emphasised that the two regions of the Kingdom had totally different histories, even when they were both ruled by the Aragonese kings. This explains why their legislation should be con sidered separately. In Sicily, for example, the barons enjoyed full alienabil ity from the feudal system from 1296 onwards. This was a clear reversion of the traditional political control exercised by the Normans and Swabians. It also explains much about the traditional power of this group of feudal nobles. The Church had broader privileges, and even tax laws were less burdensome than during the Norman-Swabian period. All in all, the same acknowledged feudal law acquired different dimensions when subjected to the different rules laid down by successive rulers.35 Because the ius commune of the Kingdom pre-dated the ius commune of Roman and canonical law, the Liber Augustalis of emperor Frederick always remained the point of reference. Amongst other enduring provisions, we should also mention the Ritus Magnae Curiae et totius Regni Siciliae curiarum, a text that was finalized under Alfonse (1446), and which was not only long-lasting, but also important for the history of trial proceedings.36

33 Reference has already been made to the excellent reprints by Andrea Romano, which have exhaustive introductions: Capitula Regni Siciliae, and Constitutiones Regni Siciliae. 34 Cortese, Il diritto, I, pp. 315–316, has drawn attention to the question of the pseudo- Frederician cost. Sancimus, which was possibly created by learned Neapolitan professors and then commented on by Mattheus de Afflittis at the end of the fifteenth century. 35 Delille, Famiglia, pp. 19–24. 36 I refer to this in Ascheri, ‘Il processo civile tra diritto comune e diritto locale: da questioni preliminari al caso della giustizia estense’ (2009), p. 356 (where sources are cited), by way of repudiating the bizarre hypothesis put forward by some historians that the trial process was not subjected to legislative consideration, but placed instead under the exclusive authority of the doctors or judges. In any event, Andrea Romano’s ‘Tribunali, giudici e sentenze nel ‘Regnum Siciliae’ (1130–1516)’ (1989) is useful.

312 chapter nine

Some of the laws that governed the territory of the Visconti and Sforza dukes of Milan – for example those concerning feudal matters – assumed a similar importance, even though they were not subjected to a process of consolidation by being gathered together into one collection. This was perhaps because that political dynasty was evolving rapidly, and had little tolerance for normative ossification. But already with Mastinus Visconti at the beginning of the fifteenth century, decrees were being issued ‘with full authority, no statute being contrary’.37 These demonstrated the full reception of learned schemes that had been compiled in order to describe the assumption of legislative power that was superior to every other legal authority. Even Venice followed the normal practice of respecting subject territo ries. Indeed, she began to establish a delicate contractual relationship with the areas she had conquered. As a result, Venice did not prepare col lections of norms for her dominion, even though from 1437 she might have done so, given that in that year Venice was formally invested by the emperor as his vicar.38 One particular text preserved in a fourteenth- century edition is interesting, however. As well as being written in the ver nacular, which in itself warrants consideration, this text is significant because it summarizes all the existing laws covering territories acquired in the East following the Fourth Crusade. It concentrates, in particular, on feudal matters, thereby assimilating Frank norms. According to this source, although the conquerors professed fidelity to the Byzantine emperor, they in fact wished to abide by the leze de Roma.39 At this juncture it is necessary to say a little more about a number of other authorities.

Patrimonium Beati Petri (The Church State) This was in some senses a federal state, based on agreements that were subjected to continual negotiation with lordly leaders and at times

37 ‘ex plenitudine potestatis, non obstante quodam statuto’: Cortese, Il diritto, II, pp. 282– 283; see also Gian Paolo Massetto, ‘Le fonti del diritto nella Lombardia del Quattrocento’ (1990), whilst, for the legislation, one should again refer to Antiqua ducum Mediolani decreta (1654). 38 Zordan, L’ordinamento, p. 232. 39 Antonella Parmeggiani, Libro de le uxanze e statuti de lo Imperio de Romania (1998), p. 188, from which I quote as a significant example the law governing wills: ‘Quando se die far testamento ‘lo non è bexogno che sia al presente noder publico. Ma basta che do, over tre testimonii, Insembre cum lo testator sia… Et se lo testamento fosse agrevato de falsia, tal quistion serà determenata davanti la Corte Secular. Et se question serà movesta se lo dicto tesamento sia de valore o non, a cognoscer de zo apertien a judeze eclesiastico’.

university texts and legislation 313

extremely powerful cities from Bologna to Perugia, which were only prop erly included in the State at the end of the medieval period. Cities within this area were in the main autonomous, because the State was never really the principal preoccupation of the popes, at least not in the middle ages. Indeed, the State did not normally attract very much attention – which was naturally a source of great satisfaction to the individual cities concerned. However, given that it was a matter of holding the various fragments together, gathered into provinces, without the central power disposing the political and military force necessary for the efficient imposition of order, the State adopted a vigorous parliamentary practice. This was established mostly at the provincial level and was a vehicle for the publi cation of provisions rather than for collective discussions and decisions. As for State norms, we have a number of examples from our period, the earliest dating to 1249: those issued by cardinal legate Capocci. Thereafter, and at periodic intervals, and in increasingly complex forms, we have the constitutions of Macerata in 1272; those of Imola in 1283; of Cesena in 1289, etc.,40 right up to those for the duchy of Spoleto (issued at Spello in 1333) – recently published – which were proclaimed by high state officials and legates. There was one very important turning point, during the ‘captivity’ in Avignon, when the very able Giles d’Albornoz was appointed apostolic legate with the specific brief to settle the State in good order. As part of this project, and with advice from unnamed jurists, Albornoz – explicitly repealing previous legislation – issued a law that was destined to become the keystone of state legislation. This new law, called the Constitutions of the Holy Mother Church, amounted to a kind of ‘regional’ ius commune. However, to begin with, it essentially had practical application only in the area around Ancona. Nonetheless, these constitutions very soon became known as the Egidian Constitutions,41 as a result of the publication of Albornoz’s work in the general parliament of Fano in 1357, which repre sented all the provinces in the Church State. They remained in force for a considerable length of time, and were overhauled during the sixteenth century.42 These constitutions set out the federal organization of the State in six books: (I), the office of provincial rectors and the public rights that

40 For details, see Wolf, Gesetzgebung, pp. 251–258. For the relevant edition, see Constitutiones Spoletani ducatus a Petro de Castaneto edite (a. 1333) (1990). 41 Cardinal Rudolf Pio of Carpi undertook a thorough revision of them between 1541– 44, and they were only rescinded in 1816. 42 The same principle was adopted in the early modern period: see Mannori, Il sovrano tutore.

314 chapter nine they were entrusted to defend (II), the spiritual functions of the rectors and of their subordinates (III), penal repression (IV), the correction of crime (correctio maleficiorum); (V), civil justice in the first instance, and (VI), the law of appeal. Because the various parts of the State differed greatly in terms of their public-law status, according to the privileges received, their resources, institutions, and socio-economic development, the Egidian Constitutions avoided discussion of internal organization or administrative choices, etc., leaving these to local statutes. It is probably fair to say that the Egidian Constitutions, like the regional norms issued elsewhere, established what is now referred to as the ‘principle of subsidiarity’. In effect, the central authority assumed control of essential issues only, but most everyday business was dealt with by local powers.43

The Friuli Homeland The Constitutiones patriae Fori Iulii is another notable text concerning an ancient ecclesiastic principality (others being at Trent and Salzburg). These constitutions were compiled by a special commission drawn from the parliament of Friuli and proclaimed by the patriach Marquand of Randeck in 1366. They were particularly important because they were also enforceable in Cadore, and in the territories of the counts of Gorizia, both of which were bound in vassalage to Marquand. As Marquand was also invested with power over land in Carinthia and Carniola, he arranged that the Constitutions be translated into German for those subjects. The obvi ous practicalities of this resulted in the translation also being adopted in the German-speaking lands of the counts of Gorizia.44 In the three books of this edition of the Constitutions we encounter a regional law that had application in the absence of local norms, as for example, in Udine, Cividale, Gemona and in the valleys.45 This regional law consisted of essential norms concerned with penal and private law, including the

43 See Paolo Colliva, Il cardinale Albornoz, lo Stato della Chiesa, le Constitutiones Aegidianae (1353–1357) (1977), with an extensive discussion of the sources, various editions, etc. 44 These were known as Görzer Staatspuech; for German colonies, in this instance in Piedmont, see Jacob R. Burckhardt, ‘Das lateinische Statut der deutschen Colonien im Tal von Formazza im obern Piemont, vom Jahr 1487’ (1884). For Istria, it was only in 1365 that the count of Gorizia issued norms governing feuds and the nature of individual crimes with a unilateral act guaranteeing the right for justice: Leicht, Storia, p. 187. 45 For Cormòns we have information about the earliest legislative deliberations drawn up by the nobles and local residents only in 1436 (covering swearing and damages to crops), because at an earlier date there were only ‘Christian placita’ on the occasion of

university texts and legislation 315

remains of Lombard family law, and provisions governing trial proceed ings, all of which bear a strong imprint of ius commune. Despite opposi tion on the part of the patriach, the constitutions also maintained that endowed women should be excluded from inheritance. This text, having already been reworked during subsequent decades, was then substantially modified immediately after the Venetian conquest of Friuli territory in 1420. The new Constitutions were divided into 195 chapters and issued in Latin in 1429. Such was their usefulness that they were later rendered into the commonly spoken language in a text dating to 1484 (which is now easily accessible), with the original text in parallel, and with successive additions right up until 1563.46 As usual, the text alter nates between norms concerning private, trial and penal law, which were in large part traceable to what was by then the established ius commune.47 The latter constituted ‘the definitive provision’, in other words, the final and integrable solution necessary for the completion of the text. But some original asides were also set within what was an agreeably moral frame work (‘obliged by honesty’, ‘with this honest constitution’, etc.).

The Kingdom of Sardinia Under Aragonese rule and due to the vassalage established by Boniface VIII, the Kingdom of Sardinia was only finally and with some difficulty established as a complete entity in 1410. Local law was by tradition Byzantine, operating free of German influence, and according to deeply- rooted customs. For example, it condoned the sharing of goods between married couples: the assa sardisca type of marriage that was contrary to the dotal system of ius commune, known there as assa pisanisca.48 During the thirteenth century, Sardinia’s judge-like kings were subject to the rule of Pisa and Genoa, subsequently displaced by the Aragonese. By the year 1300, the Aragonese had already established the practice of parliamentary assemblies in three stamenti, branches or states,49 in order to consider

patriarchal visits. In 1460 the count of Gorizia proclaimed a number of orders concerning the assemblies of the villages: see Donata Degrassi, Cormòns nel Medioevo (1996). 46 See Costituzioni della Patria del Friuli (1998), with a very detailed introduction con cerning Friulian legislation by Giorgio Zordan. 47 They accept, for example, the consilum sapientis (Costituzioni della Patria, p. 76). 48 This distinction is made abundantly clear in provisions 98 and 99 where reference is made to ‘a modu sardisco’: for the original text and a parallel translation see La ‘Carta de logu’ del Regno di Arborèa (1964) (but the use of the term ‘over’ in section 99 should be read as an alternative). 49 For this, see above all Antonello Mattone, ‘Problemi di storia del parlamento sardo (XIV-XVII secolo)’ (1982–83); the same author constructed a good view of Eleanor’s fame

316 chapter nine matters of interest to the Kingdom. It was, in fact, in a parliament that the only surviving important collection of legislation governing the whole island was drawn up, in 1421.50 Up until that time, this legislation was enforceable only in Arborea. Eleanor (c. 1340–1402/4), the most famous woman in Sardinian history, and daughter of a judge-king who had already published a code of rules concerning rural affairs, had issued this legisla tion around 1390. The text itself, named Carta de Logu (charter of the ter ritory) is justly famous. This is firstly because it is written in the common Sardinian language; secondly, because it is a collection of norms that quite clearly derive from a number of different sources: from both canon and Roman law, but also showing the influence of statutory legislation through clear echoes of the Pisan statute. It also demonstrates admirable common sense in its response to crime – no allowance being made for the pecuni ary remunerations so characteristic of mainland legislation. However, learned ius commune was late to reach the island, a fact apparently con firmed by the first known quaestiones created in the context of the Carta, which date to the late fifteenth century.51 This alone invests the surviving text of 1421 with even greater value.

The House of Savoy Administration of the states that were owned by the House of Savoy depended on a very well-established tradition of territorial legislation. This much is clear from the statutes proclaimed by count Peter II in the years between 1263 and 1268. The House of Savoy was at that time gravitat ing towards Chambéry, that is, towards norms that were applicable in the various centres of count Peter’s dominion, above all in Savoy and Vaudois. In total, twenty-three chapters on legal proceedings have survived. These indicate that the notaries were strongly influenced by the tradition of north ern Italian legislation, both of the communes and of the universities.

in ‘Un mito nazionale per la Sardegna. Eleonora d’Arborea nella tradizione storiografica (XVI-XIX secolo)’ (1995). 50 For a recently-discovered text originating in Cagliari see Marco Tangheroni, ‘Di alcuni ritrovati capitoli della ‘Carta de logu’ Cagliaritana: prima notizia’ (1986). Corrado Zedda is now working on these texts. 51 For an overall survey, including the various editions, see Cortese, Il diritto, II, pp. 343– 355, and also, more recently, Barbara Fois, ‘Sulla datazione della Carta de logu’ (1993); and, for the rural norms established by Eleanor’s father, which concentrate in particular on the eternal conflict concerning damages to crops wrought by shepherds and animal breeders, see Fois, ‘Sul ‘codice rurale’ di Mariano IV d’Arborea’ (1988).

university texts and legislation 317

Similar influences are clear in the more copious statutes regarding sum mary and inquisitorial processes, advocacy for the poor, feudal issues, etc., which were compiled by count Verde (‘Green’) in 1381. However, the principal legislator of the House of Savoy during the medieval period was Amedeus VIII (duke from 1416). After a few prelimi nary measures in 1403 and 1423, in 1430 Amedeus issued the Decreta ducalia Sabaudiae (Savoian ducal decrees) legislation covering the entire territory belonging to Savoy, which by that time extended over most of Piedmont.52 This continued in force into the early modern period. The five books of Amedeus’s decrees cover religious norms, Jews and usury (I), laws concerned with justice (II), feudal issues and guilds (III), taxation (IV) and luxury, or sumptuary laws (V): in other words ‘everything’ cov ered in urban statutes, but with two particularities. Firstly, the individual books were associated with different virtues according to the material covered. These were, the three theological virtues Faith, Hope and Charity (for book I); and the four cardinal virtues, Justice and Constancy (for book II); Prudence (for book III); and Temperance (for books IV and V, because these dealt with taxation). Secondly, the duke appeared to subordinate his own discipline to that of Roman-canon law. Is this not an extraordinary attestation to the cultural hegemony of the jurists? It also surely reflects the cultured and pious nature of the duke himself. Shortly afterwards Amedeus was elected pope at the Council of Basle (1440–49) and conse quently named Felix V, in an attempt to end the papal schism. This did indeed function as an incentive, albeit in favour of a third individual, Nicholas V. Understandably, his successors interpreted his ‘theory on the sources’ as somewhat eccentric, and adopted a more conservative route: starting first with the application of princely law, and then of local laws, whether unwritten customs or written provisions, in other words, the statutes, that certainly appeared to have been tempered by Amedeus’s intervention, and, lastly, ius commune.53

52 For the various editions and associated bibliography, the obvious reference is Wolf, Gesetzgebung, pp. 158, 160; see also Cortese, Il diritto, II, pp. 355–361, and, for a discussion of the potestas statuendi of the counts, Rinaldo Comba, ‘Il progetto di una società coerciti vamente cristiana: gli statuti di Amedeo VIII di Savoia’ (1991). 53 This point is made by Mor in Leicht, Storia, p. 181; the prince also renounced the ius of albinagium, whereby treasury officers took possession of the goods of a foreigner who died in their territory; another interesting point concerned imprisonment, that was declared necessary for the custody of the accused, rather than to be administered as a

318 chapter nine

9.3. Legislation Covering the Institutions and Other Particular Categories

This section includes a number of extremely diverse and very elaborate texts. The undoubted institutional pluralism of the late middle ages – that melting pot of associations and leagues, corporations and institutions, and foundations of all kinds – now reached boiling point. Individual titles would change, because the various entities were accorded different denominations between one territory and another, but the substance was always the same. Wherever a group was formed for a specific purpose, a statute was drawn up; rules were fixed to govern the internal affairs of the association and relationships with external third parties. Where an individual wished to ‘regulate’ a bequest, whether for the poor, a monas tery, etc., appropriate lists of regulae, or ‘rules’ were compiled. From the most important grants and agreements regarding the fundamental prin ciples or procedures to be followed when respectively electing a pope or an emperor, or for conceding significant feudatory rights, down to the most humble matters, or to the rules of a small hospital in respect of giv ing shelter to travellers, we find ourselves faced with a vast mass of legal documentation. Associations and foundations, as the two fundamental categories of institution are now called, were formed for a variety of reasons, ranging from the religious to the political, economic, charitable, and even cultural. The former were created on the basis of agreement by the individual members; the latter, by institutional act on the part of an individual. These institutions constituted a vast and hybrid complex, and not only from the linguistic perspective. The same is still true today. There are so many types to choose from that it is difficult to select indi vidual examples. How can we justify privileging one above another within such a mare magnum, or embarrassment of riches? The stipulations of a political coniuratio could have resulted in an abrupt change in the life of a state, whilst the statute of a great hospital could have established a wel fare system for centuries, and a charitable financial organization could have saved hundreds of people from desperate straits. But could we claim that the activities of a confraternity which only gathered together to pray punishment. For the links between the sources, see Isidoro Soffietti, ‘Note sui rapporti tra diritto sabaudo, diritto comune e diritto locale consuetudinario’ (1984), and his specific considerations of territory in ‘Osservazioni sulla normativa sabauda per la contea di Ventimiglia e valle Lantosca nei secoli XIV e XVI’ (1981).

university texts and legislation 319

and officiate in one specific chapel were less important? And what should we say about the very influential rules of the religious orders that took root far and wide? We can of course distinguish between secular and religious institu tions, but what of the para-religious? The so-called ‘Misericordias’ for example, fell into the latter category. But even the universities could be considered in such a light, and the ecclesiastical authorities would have wished to place the hospitals in a similar context. But there are so many conflicting consilia on this very point. At the local level, there can be little doubt that in order to establish the reality of the situation one needs to consult the inventories of archives and local studies associated with the individual entity – after ascertaining what, if anything, is included in the aforementioned Senate catalogue regarding ‘statutes’ in the very broadest sense: that is, every document that is in some way or other legislative. For those local institutions engaged in financial activities such as the guilds, or those involving processions and such like, one should be able to find some information, given that their statutes were normally subjected to careful consideration by the local authority. Similarly, the ecclesiastical authorities assumed responsi bility for approving the rules of religious congregations and the founda tion of churches and chapels, and so on. Some rules nevertheless evade classification at a purely local level. In this context, we need only think of the Consolato del mare, which was being consolidated into its definitive form during this period. This docu ment resulted from a fusion of rules elaborated in the various courts of justice that were established in different ports, in order to resolve ques tions concerning maritime navigation. This could include damage to goods in transit, disagreements between full partners and limited part ners, or with the ship’s captain, or with the individual in charge of crew. Such courts were located in places as disparate as Venice, Pisa, Genoa, Valencia, Majorca and Barcelona; and, as we have already seen, sooner or later, and from as early as 1000, norms covering just these kinds of issues were being established in the various localities. Then, between the thir teenth and fifteenth centuries, the Aragoneses established themselves throughout the Mediterranean area and chose to favour the consolidation of the norms of Barcelona. These had, in fact, already been assembled and translated into a number of different languages before the fifteenth cen tury. The first Italian printed version dates to 1519, as one might expect, in a large port – Ancona. This area witnessed the development of a school of law at an early date, and, subsequently, the work of the jurist Benvenutus

320 chapter nine

Stracca, author of the first complete and very successful treatise on com mercial law compiled in the learned language of ius commune. We should think, also, of the inter-state agreements that were multiply ing during this period to cover the commercial affairs, at times conducted directly, at others through the agency of the relevant ‘Mercanzias’. In some cities, the latter produced very dense statutes concerning corporative business, the detail of which makes them invaluable for understanding the entrepreneurial world of the time. These are just a few meagre and arbitrary examples. It is, however, essential to understand that even though we know a lot about the past, and in particular about the middle of the thirteenth century, this is because written culture was so firmly entrenched – above all, as a way of defining the rules of every type of insti tution or agreement. The explosion of the notarial profession and the phenomenon of intense development (even though adversely affected by the Great Plague), combined with the culture of rules and regulations that was inte gral to this civilized society, resulted in the issue of a huge number of documents. This began inside families the ‘noble companies of the tow ers’. The phenomenon then spread to cover every kind of association and every kind of event. As a result, we have also to come to understand indi vidual members of society who are sometimes very difficult to define. This is because the same citizen – a designation that was recreated specifically in Italy, and naturally outside the family – could at one and the same time be mercator, miles, frater, socius and so on, according to the context of the various membership bases of vastly different institutions. Despite the countless losses over time, the preservation of so many nor mative documents from the middle ages may perhaps be best explained in terms of being a specifically Italian phenomenon. The same may also be said of the hatred and/or lack of understanding of the medieval period manifested from the eighteenth century onwards. Such endless legislation then assumes another important aspect for Italians, other than the already discussed hegemony of the jurists; a hegemony reinforced by the need to turn to such individuals for guidance on how to extricate oneself from the veritable jungle of various statutes, relevant reforms, and so on. The culture of writing and of learned interpretation in a society of at times such abundant, but more often than not, such scarce freedoms, can result, as was indeed the case in the past, in unpleasant and negative reac tions: contentiousness. Litigation was one of the great themes of the late middle ages, and it is now time to take a close look at it.

CHAPTER TEN

JUSTICE AND ITS INSTITUTIONS

Let us now examine developments in the administration of justice.1 So far, we have considered how ius commune became firmly established, and the extent to which during the same period, university doctors and legislators were engaged in an ongoing and mutually advantageous dialogue, following continual work on one and the same system. It is appropriate at this juncture to consider how such a paradigm of societal justice, in the broad sense indicated above, translated into practice. How much of that learned law – by now more or less incorporated into local legislation – was actually adopted? The justice that we will refer to is that associated with concordia. This is the virtue that in the Sienese fresco of Good Government links all the city’s governors together with a single length of cord. Concord thus automatically acts as a unifying agent within the society. But this is also the biblical justice we have already mentioned: Diligite iustitiam, vos qui iudicatis terram (the opening passage of the Book of Wisdom).

10.1. Preliminary Distinctions: Rural Areas

The city constituted the centre of efficient judicial service, so far as that was possible in this period, because it had available funds and appropriate institutional organizations. In the countryside, whether in those areas that were strictly seigniorial or feudal, or in territory surrounding individual cities that was under the control of citizens who had invested in farms, estates, villas, etc., justice was less predictable. In general, when

1 Fortunately, there are now an increasing number of analytical studies such as those carried out by Antonio Giuffrida, La giustizia nel medioevo siciliano (1975); Beatrice Pasciuta, ‘Gerarchie e policentrismo nel Regno di Sicilia. L’esempio del tribunale civile di Palermo (sec. XIV)’ (1998); Giancarlo Vallone, Le istituzioni feudali dell’Italia meridionale (1999); Valeria Braidi-Aurelia Casagrande, ‘Per lo studio della vita quotidiana nel Medioevo: le cause civili e criminali del Vicariato di Serravalle (secolo XIV)’ (1997); Marco Bellabarba, La giustizia ai confini. Il principato vescovile di Trento agli inizi dell’età moderna (1996). For ‘denied’ justice see Romano Ferrari-Zumbini, La lotta contro il tempo nel processo altomedievale. Contributo alla studio della giustizia denegata (1997), which covers the period up to the early middle ages.

322 chapter ten justice was administered, and when it was not resolved in the enforcement de facto of more or less official penalties, that is those fixed by law, it was often intermittent and approximate, carried out under the auspices of often poorly paid vicars with no professional qualifications, or simple notaries. Normally, such individuals were responsible for the initial, relatively insignificant, proceedings of penal and civil justice, or else concerning minor crimes, and needed to supplement their existing salaries with fines or taxes for different deeds. Where they existed, the fragmentary statutes of the countryside and of individual castles left the way open for abuses and arbitrations of every kind, including (where possible) direct negotiation with the guilty party or members of his family, in order to settle the matter privately. It was inevitable, for example, that rural areas would give shelter to bandits – the banniti, or banished – whose juridical treatment was the subject of a number of treatises under ius commune. There must have been even less policing in the countryside than in cities, and who knows how many individuals were merely names in the papers of communal provisions. Much depended on the forced collaboration of individual village communities. This was a simple and efficient expedient. In certain cases, if the culprit was not found, the community was deemed jointly and severally responsible for the crime committed. Information was forced, rather than elicited, from the people. Nevertheless, a sindicus, a local representative, was always provided, and it was his duty to report more serious crimes uncovered in the village, in order to set in motion the necessary repressions or the collective liability. It is not worth listing the nature and number of violations of the law that such a system must have engendered. But in the case of some forms of legislation, such as that protecting land cultivation, it seems more than likely that denunciations concerning damage (danno dato) were directly associated with the interests of individual cultivators. Special officers called camparii or campieri took turns to keep watch, with the brief to denounce any malpractice. Part of the ensuing fine was specifically reserved for them, the other part going to the commune and to the judge, once the land worker had been compensated for the damage. Another aspect of this minor area of justice was that it prompted private initiatives, even of an anonymous nature (so as to avoid retaliation). This form of justice usually resulted in monetary fines rather than prison sentences, since the latter required the provision of cell space, if possible in such a way as to separate the women from the men and the nobles from the wretched poor. There was also the matter of providing prisoners with food

justice and its institutions 323

and clothing. Prison guards also required payment. It was thus often the case that miscreants were handed over to the charity of specialized confraternities, who made it their mission to take care of them and feed them. However, after a short while governments exercised mercy, making use of some special occasion, such one of the many religious festivals that existed at the time, to liberate some of the inmates. Both in the city and the countryside, the most common punishments issued were monetary fines, physical mutilation and the gallows, which was considered to be a powerful deterrent. But one could normally avoid even the most severe punishments through the payment of money. Crippling and various kinds of mutilation are not only the stuff of horror films. During the middle ages, they were part of everyday life: the daily experience of that mass of excluded people that served in the religious imagery of the time (especially from the thirteenth century onwards, when the idea of Purgatory was firmly established) to prick the con- sciences of individuals anxious to maintain their own spiritual wellbeing, and thus to make a large number of charitable donations. But these wretched members of society were often only temporary guests. Accommodated only in the margins of society, they were soon cast outside the walls when there were news of perceived perils such as epidemics. Judges were only subjected to some kind of control in relatively strong rural communes, where there was an appropriate institutional framework to act as a superior authority. In those cases, judges were obliged to swear to respect the local statutes from the moment they took office. Strong communes, for their part, resulted from the presence of proprietors who could become involved in administrative life, which could happen anywhere, even in seigniorial or feudal areas, and where sufficient taxes could be levied. According to the statutes, communal bodies could, moreover, intervene to commute judgements passed, or else be called upon to autho- rize torture for an ongoing inquisition. We also need to take into account the fact that the judges who were sent to these small centres could also be citizens with a political agenda, and very little understanding of the law. They were at most assisted by a notary, in the event that neither the podestà nor the vicar had such qualifications. In such cases, sentences were largely characterized not by existing norms or the good, adaptable and compromising sense of justice that goes under the name of impartiality, but rather by the customary interests of the powerful local notables with whom they surrounded themselves, and whom they had every reason to keep happy.

324 chapter ten

Living in the countryside, whether in a village or town, did not mean, however, that one existed in a completely different world. Some cities also sought to civilize the countryside, as opposed to simply exploiting the rural work-force. There was thus no single representative rural area, in the same way that there was no single representative city. There seems little doubt, for example, that the richest community could allow itself the luxury of a palace of justice or a prison. Rich communes could also afford to provide a comfort- able residence for the best-paid and thus possibly most learned judge, who was probably more prepared and disposed to study the individual cases and the local legislation, in order to reach a harmonious and wise compromise between territorial justice and ius commune. Not everything was necessarily negative, therefore, in the countryside. Neither were things so bad in the south of Italy, where ius commune was slow taking hold (we have already referred to the borderline case of Sardinia). This was due in part to the strong persistence of personal rights in the south, and also associated with the fact that a very large area was subject to the Kingdom’s laws. However, the slow assimilation of ius commune in the south can best be explained by the fact that relatively few universities were established there. Moreover, those that did exist did not function particularly well, with the result that they produced comparatively few doctors. Outside the universities, the number of jurists remained low because their status in the southern cities was much lower, and they were at the same time less visible as a group than in the communal cities of central and north ern Italy.2 The broad continuation of Lombard customs certainly left their mark. Andreas Bonello, the celebrated Neapolitan professor (c. 1300) recorded that a ‘little lawyer’ (quidam advocatellus) had won a case against an important lawyer by citing a decisive passage from the Lombarda concerning trial proceedings at the opportune moment. Thus, in order to avoid possible loopholes arising from Lombard law, which anyway he now considered as a law in its own right – special, and deviating from ius commune – Andreas Bonello wrote the Differentiae inter ius Langobardorum et Romanorum (The Differences between Lombard and Roman law). This text paved the way for the more complex, but also more rambling tract of the same title compiled by Biagius of Morcone (1333/38).3

2 Manlio Bellomo, Società e istituzioni dal Medioevo agli inizi dell’Età moderna (1993), p. 403. Andrea Romano (most recently in the volume Legal Consulting) has demonstrated in concrete detail the comparatively late introduction of legal advice in Sicily. 3 This individual was Provost of Atina in 1331, king’s councillor to king Robert d’Anjou in Naples, and probably died in 1350: Cortese, Il diritto, II, pp. 334–335. Nor was this the end

justice and its institutions 325

The problem was that only exceptional cases as, for example, at Messina could attract the high and extremely refined culture of the capitals of the two kingdoms to the margins. In practice, the real justice was that which was widely administered in the capital cities, of which there were many, so long as there continued to be an equally large number of communes in communal Italy, as was still the case in the fourteenth century. This was the justice that issued the most important sentences. It was also the justice that resulted in appeals or even pleas for grace from a political power quite separate from the not uncommon legislative pardons and amnesties.4 For the most part, legal issues were resolved at a provincial level – in the Udienzas, in the Kingdoms. It was only in more important cases, such as those concerning rich families, that permission was given to turn to the capital for consideration of the final stages, or for a revision. The revision was an exceptional process adopted for the re-examination of evidence. It was carried out by the political power, who argued the case himself, thus removing it from its natural judge – the competent individual, according to normal legislation. There was thus not only a difference in the level of importance of legal proceedings, whether civil or penal, between the countryside and the city, but also a qualitative difference in the ways in which such proceedings were carried out. The really expert judges were by this time living in the cities, together with the lawyers from the local colleges of judges and notaries; the latter generally functioning as procurators, and responsible for bringing the actions before the courts.

10.2. The City: Ordinary, Summary and Mercantile Proceedings

The legal qualifications deemed appropriate for practising law varied from place to place. For example, the Commune of Bologna demanded a five-year course for anyone who wished to proceed to nomination as communal judge. At Padua, however, judges were merely required to possess libri legales.5 It is clear that the podestà, or if he was only a knight (miles),

of the study of Lombard law in the south: Prospero Rendella returned to it at the beginning of the seventeenth century, albeit at that date from an historiographic perspective. 4 Peter Pazzaglini, The Criminal Ban of the Sienese Commune (1225–1310) (1979), offers a detailed picture of the unstable nature of sentences; for the Kingdom of Sicily see Claudia Rita Castracane, ‘La Reale Udienza nel Regno di Napoli: note sull’ordinamento legislativo dal XII al XII secolo’ (1991). 5 See, for example, a case in 1265 in Martino, Giuristi di scuola e pratici; many impor tant references are included in Jones, The Italian City-state, see Index under ‘lawyers’; he

326 chapter ten his judges (referred to as collaterali, or collaterals), had to be familiar with the law in general. On appointment, they swore to respect the statutes, at times large registers which, given that such officials were inevitably outsiders and not real experts, they would find difficult to grasp in such a short space of time. By this time, justice was a refined tool, consisting of many modern components. It had rejected ordeals, which were also condemned by the Church. A large number of documents attest to such rejection, from the first medical reports onwards. Everything was written down by an assistant notary, even the questions and responses elicited during subsequent torture. Torture itself was only applied as an extreme measure, when there were serious grounds and when no other means of obtaining evidence were available. Indeed, trial proceedings, or at least those concerning civil issues, now involved a continual exchange of written material. First, the presentation of the petitio, the libelli in which the terms of the action were elucidated and the evidence, at this point normally testimonial in character, was defined; then the articoli were exchanged. The articoli included the positiones on which it was proposed the interrogation of witnesses should be based.6 Several of these still survive and are of considerable interest, not least for the language employed. They constitute the few really authentic texts about the common people that have survived.7 If it was a matter of establishing a case of debt, this was quickly done if the document was guarentigiatum, or guaranteed: in other words, notarized with the relevant formula, and thus ready for immediate action once seen by the judge. One could then pass to the decree of sequestration that fore- shadowed sale, so as to be able to satisfy the creditor with liquid funds. The process could become more complicated if it was a company that was in debt. However, if this was established as a normal collective, proceedings could be directed towards any of its members. One particular issue remained problematic: dotal goods that were held in trust by underlines the increased demand for jurists after 1250; see also Rigaudière, Gouverner, pp. 215–217, and Berengo, L’Europa, pp. 342–369. 6 For classical expositions and summaries see, for example, the text published by Pérez Martín, El derecho procesal. The witness – central in the actual trial, and now even more than before – formed the foundation of various treatises of ius commune; that written by Bartolus (an edition of which was edited on 2003 by Susanne Lepsius, Munich) was remarkable for its detail. For specific examples, see La parola all’accusato (1991). 7 See, for example, now, the new edition of the Atti del podestà di Lio Mazor (1999) dating to 1313 (after the exchange of evidence, the podestà normally ordered the cessation of any dispute, meting out a punishment: ‘per questa casun’, ‘for this reason’ in Venetian dialect), p. 53.

justice and its institutions 327

individual debtors. Such goods could not be touched because, like property subject to a fideicommissum, they belonged in each case to the debt- or’s wife. If a state of bankruptcy was subsequently reached (a condition carrying defamatory undertones because it involved the betrayal of so much trust), special procedures were brought into play. These underpinned what are now referred to as ‘bankruptcy proceedings’. The essential requirement was that all the creditors of the failed enterprise should be able to participate equally in the division of the retrieved assets. But a number of complications could arise here. Where the defendant was an entrepreneur, he could claim that the ordinary judge was not competent for the task, on the basis that the communes recognized the authority of the corporative and mercantile statutes. Normally, therefore, an individual would turn to his own ‘guild’, or to the Mercanzia, which had its own tribunal consisting of merchants (consuls and officials), who took advantage of the fact that they could assure a more pared-down and impartial process, free of the formalities of communal proceedings. What then of the duration of the process? Laws directed towards finding a way to accelerate legal proceedings are a leit-motiv of the late middle ages in Italy, and not only during that period. The real problem was the ordo iudiciarius, the formal procedure of Roman-canon law referred to above. Both the statutes and canon law (for example, the very early fourteenth-century Saepe compiled by pope Clement) attempted to subject many trials to the summary process, so that individual cases could be handled ‘without the pomp and circumstance of the ordinary process’ (sine strepitu et figura iudicii).8 This was in fact a way to avoid paperwork and expense, but in so far as it was applied in the context of the weak and the poor, or of merchants and so on, it seems that this end was rarely achieved. Particular attention was paid to legal proceedings involving commercial affairs, since these also had to satisfy the desire for justice (and credit) of foreign traders. Trouble-free trade outside the centre might otherwise be compromised: the honour of the city depended on its external image. Medieval justice devised a terrible punishment in the event of a foreigner being denied his due rights. This was, in fact, a world of strangers, given that one could acquire that status just by going outside one’s own city walls. If a citizen believed he had been discriminated against, and could show that he had not received justice in the city of the individual he held

8 The summary process is a vast subject that still awaits detailed and complicated study: I attempt some analysis in Ascheri, ‘Il processo civile’.

328 chapter ten responsible for such action, he could petition his own government and/or the Mercanzia. Those bodies, once they had verified the claim in question, could seek satisfaction from the defaulting commune, or could order summary reprisals, up to a certain amount, on property belonging to that commune’s citizens. Needless to say, with provisions of this kind, innocent individuals were adversely affected, and treaties were frequently drawn up in an attempt to avoid reprisals of this kind. Finally, a new provision was created. This was the rule, a cui dato a cui richiesto (‘to him who has given, so from him should be taken’), a clause that put an end to reprisals between different communes, disposing instead that only the individual responsible for the debt or the damage should be prosecuted, rather than his fellow citizens. Merchants’ account books were presented as testimony, once again to the Mercanzia. They could form the basis for the condemnation of individual debtors, who, if it was deemed appropriate, could in the meantime be imprisoned in the Mercanzia itself. Being an independent body, the Mercanzia was able to make laws, issue sentences and detain individuals in prison,9 exactly like the courts of the local churches. This was a rule that concerned commercial law only, because it was contrary to the general principle of civil law, and of course of good sense, that a written document could not be taken as evidence in favour of the person who wrote it. The same could be said for the maxim with biblical undertones, unus testis, nullus testis (one witness, no witness), which was slowly becoming current. But speedy recuperation of credit was essential for those involved in business affairs on a number of fronts. This was also even the case when such individuals were acting solely in the context of rentiers, or as leasers of land, or as parties to sharecropping agreements. Despite good intentions, it is, however, doubtful that mercantile justice succeeded in securing the desired ends. There are clear indications that mercantile law faced a number of problems. In Genoa, for example, we find a number of consilia of mercantile problems that would not have allowed rapid and impartial decisions, as the merchants would no doubt have preferred. The early-fifteenth century collection compiled by Bartholomeus Bosco is a particularly rich and impressive example of such learned considerations. In Siena, for its part, the Mercanzia ended up appointing a learned judge because of the intricacy of the problems it had to consider, and in 1470 a Venetian, when confronted with a complex insurance contract, complained of the ‘necessità che i merchadanti siano

9 See, for example, Ascheri, Tribunali, giuristi e istituzioni, pp. 23–54.

justice and its institutions 329

doctori di leze’10 – in other words, that merchants had to be doctors of law in order to carry out their trade. It was not so much a matter of mercantile needs being incorporated by normal justice, as the latter, the law of ius commune, absorbing that of the merchants: in different ways, and according to certain limitations that were established centre by centre. It is clear that at Venice and at Genoa there was a greater sensitivity to the problem, since the political class tended to coincide with that of the merchants and display a healthy dis- trust of jurists. Similarly, at Lucca, jurists were generally kept at arm’s length from political office.

10.3. Venice

But in analyses of this kind, we should avoid excessive schematism, as well as every kind of apriorism. For example, the fact that Venice rejected ius commune from the fourteenth century onwards does not necessarily mean that Venetian legislation was so very different. It is, however, true that customs played a greater part in Venetian legislation.11 It is also true that trial procedures adopted within Venetian tribunals were program- matically very different from those associated with ius commune. Both of these factors meant that Venice developed its own peculiar laws and justice. The many courts of justice of a specialized nature did stop justice being principally administered within the spheres of the Quarantia civil and the Quarantia criminal, two courts that – as their names indicate – were akin to assemblies, having forty members. Indeed, it would probably be fairer to say that these two courts assumed the function of juries, in the sense that they were not made up of learned judges. Unlike the town councils of the communes or of the audience chambers and executive offices for the administration of justice in the Kingdom of Italy, or of the central courts of Naples and Palermo (the ‘Holy Royal Council’, the Vicarìa, the Sommarìa, the ‘Great Royal Court’, the ‘Royal Conscience’, and, so on),12 the two Venetian courts consisted of simple citizens.

10 See Nehlsen, ‘Ius commune’, p. 139; she has provided us with a a very useful analysis of Venetian justice: L’assicurazione marittima a Venezia nel XV secolo (1988). 11 Usus had to be proved in front of the judge, along with evidence that had to show the elapsed time (thirty years according to the gloss of the Venetian statutes), as well as its type of rationabilis; the custom had to be reasonable. 12 For Sicily, see Romano, ‘Tribunali, giudici e sentenze’, but the whole book is interesting as are others that form part of the same series edited by Vito Piergiovanni and Alan Wijffels.

330 chapter ten

These unversed individuals resolved cases with one eye on the written law, and another on the customary wisdom with which those (usually very old) laws had been interpreted over the course of time. It was not even required that the lawyers themselves should be learned men. Their responsibility, above all, was to protect the memory of past practice, as well as the vocabulary of persuasion: those rhetorical phrases that had always been natural in political, rather than judicial arenas. Not by chance the same Venetian sources,13 in excluding the mention of ius commune, turned instead to equity as the basis of the judge’s decision, paradoxically in the guise that doctrine itself had given to it: in other words, the good will of the judge (arbitrium iudicis). To sum up, the Venetians made use of the armoury of ius commune, but took care not to be dominated by it.

10.4. The Central Courts and the First Collections of Jurisprudence

At this juncture, we return to the perennial problem: wherever ius commune was established, it complicated matters, even the summary process. Why was this? The answer is that this was predominantly a law that enforced appeals, and furthermore, it was not even content with that, since it also provided for the in integrum restitutio. In certain cases, this resulted in the injured party being compensated, rendering it once more capable of action, and so on. But most of all, it was the theory of invalidity (nullitas) that caused the complications, since this could affect any act or procedural phase, forcing it to start from the beginning again, rather like the game of snakes and ladders. With the dense legislation on trial procedures being constantly subjected to revision (even for purposes of abridgement) and with all the cautions that doctrine had contrived in order to have a fair trial from which the truth would emerge, it was all too easy to forget a fulfilment of one’s duties, or contest a competence, and thus start all over again. There was also the issue of the increasingly powerful voice of the Emperor, and, above all, that of the Pope. Where it was a matter of ratio peccati, or of perceived sin, alternative jurisdictions could be brought into play that

13 In this context, and apart from the work of Nehlsen cited above, see Lamberto Pansolli, La gerarchia delle fonti di diritto nella legislazione medievale veneziana (1968). For the courts, see the reference in Zordan, L’ordinamento, pp. 80–86.

justice and its institutions 331

offered other extraordinary remedies such as the appellatio extraiudicialis (extra-judicial appeal). Individual statutes might prohibit recourse to judicial authorities outside the state, but jurists could always be found who would be ready to argue that such norms were invalid on the basis that they were contrary to natural law, or that they did not apply to the case in question for myriad other good reasons. Excesses of power on the part of ‘real’ legislators were always held in check by the jurists’ ongoing discourses. The Church, for example, had already established that wherever norms were contrary to the libertates Ecclesiae (such as those regarding exclusive competencies, tax privileges as well as advantages enjoyed by different courts, etc.), they should be considered null and void. However, learned doctrine continued to subject statutory dispositions to the most detailed consideration within university lecture halls, and in legal studies. The various Tractatus de statutis or Quaestiones statutorum very often concentrated on just such themes, laying great emphasis on the authority of the jurist, and clearly expounding the extent to which political power was dependent upon and protected by the law. As a result, central tribunals were overwhelmed by petitions about cases that were deemed badly judged at lower levels. This happened above all at Rome, after the return of the papal curia from Avignon. But it also happened at Palermo where, according to the legazia apostolica claimed by the king of Sicily, it was held that since he was the Pope’s permanent legate even the ecclesiastical matters of the island should be considered by him. There were also a number of specifically ecclesiastical questions: in particular, that regarding benefices. Comparison of the value of benefices – offices that on occasion entailed quite substantial prebends bestowed by the pope or by lower authorities – prompted an extraordinary amount of litigation within the clergy. There was moreover an interesting doctrinal angle to such litigation, since in effect it amounted to an evaluation of the legitimacy of administrative procedures where they infringed the individual rights of those who aspired to such offices. Obviously, this did not exclude normal contentiousness: between religious institutions, or where members of lay society turned to the Curia seeking redress against a local decision. Questions of this kind had already multiplied during the thirteenth century and were an aspect of the triumphant Papacy: so much so that the irrepressible pope John XXII instituted his own tribunal at Avignon, which was destined to have considerable success. This was the Sacra Rota, also referred to as the ‘Holy Roman Rota’, because of its normal location.

332 chapter ten

The original Ratio iuris bull was issued in 1331, although the official term Rota dates to 1423.14 This is the only medieval tribunal to have survived without interruption,15 except for a few years during different crises in Rome as, for example, during the Italian seizing of Porta Pia in 1870. This, in itself, would be enough to confirm its triumph. But there is more. The Sacra Rota immediately became a collegial tribunal formed out of several auditores, who probably extracted procedural papers from a round bookcase in their assembly room. These auditores were learned individuals, as required by the select public of cardinals and bishops with whom the tribunal frequently had to deal. In fact they were so learned, that within a few decades the Rota began to create its own jurisprudence – something otherwise unheard of at the time. Other courts preserved registers containing the relative discussions surrounding particular cases: in England, in France (initially, inside the royal Parlement), and in the communes. But the idea of transcribing the reasons underlying certain decisions reached in tribunal was first put forward by these auditors – no doubt at the urgent request of its users. This resulted in a number of collections of decisions: from the Decisiones of the auditor Thomas Falstof (65 dubia dating to 1336–37), to the Decisiones antiquiores by Bernard Bosquet in 1360 (266), the antiquae by Guillaume Gallicus, Wilhelm Horborch, and Bonaguida de Cremona, dating from 1372 onwards (887), the above-mentioned Decisiones of Gilles Bellèmere, who acted as judge between 1374–75 and 1377–78 (700 decisiones) and the Decisiones novae (around 500 in total), dating between 1376 and 1381. Judging from the many manuscripts preserved and from the numerous citations made by university doctors, these reflections born out of certain cases and connected with others (frequently concerning benefices) enjoyed great success. This was doubtless not only because they were normally presented in a synthetic manner and dealt with the new themes of the Liber Sextus and of the Clementinae, but also because in each case they expressed the orientation, or inclination of the supreme court of the universal Church. On the basis of these, one might hope to get close to the rulings the same court would subsequently have reached on a similar case, although very soon afterwards, there would be different kinds of judges. These are, in fact, collections of ‘jurisprudence’ in the strictest sense: not of doctrine, but of judicial opinions. Indeed that term was coined in this way, because

14 For this institution and its decisions, see the summary in Gero Dolezalek-Wolfgang Knut Nörr, ‘Die Rechtsprechungssammlungen der mittelalterichen Rota’. 15 The English carried out a thorough reform of their medieval courts only in the Victorian age.

justice and its institutions 333

if those of the Parisian Parlement were traditionally referred to as arresta (from which the French term arrêt derives) – a past term also current in Angevin Italy – from now on, when collections of tribunal decisions were made, they were referred to as ‘jurisprudence’. (The same applies even now.) Those of the Neapolitan court, of the Holy Royal Council, the central organ of civil justice in the city that had been reorganized by king Alfonse in the middle of the fifteenth century, interest us more than those of the archbishopric of Toulouse (Decisiones Capellae Tholosanae). As already mentioned, a collection of the decisions of the Neapolitan court (400 pieces in all), was published in 1509 by Mattheus de Afflittis, the Neapolitan professor and subsequently great judge. Those of the Roman Rota and of Afflittis paved the way for the very diffuse and still vigorous practice in the early modern period.16 But, let us be clear, these were decisions, but not official decisions, and not sentences. We find no references to the concrete decisions reached by the judges on individual cases, the so-called operative part of the sentence – for example, if a marriage, a contract or a bestowal of a benefice were annulled – but the thoughts, re-lived through the notes and further reflections by the judges (because they were not official decisions), that guided the domini de Rota to the particular solution. In other words, the decision provided what we would today call ‘legal grounds’: reasoning about the arguments that had significance in so far as they presented a theoretical discussion about the case in question. Decisions enjoyed wide circulation, precisely because they were separated from specific cases. They offered solutions that could also be applied elsewhere. The same could obviously be said of the consilia. Apart from anything else, the decisions were not binding, no regulations being issued on their basis. Even if of the highest authority, they were purely indicative, weighty, but always open to discussion and further refinement.

10.5. Justice and Politics: Jurisdiction and Legislation

By this time, the tradition of ius commune already included a natural distinction between legislative power, in other words the formal authority to issue new norms, and judicial power, such as that conferred by the Pope

16 Except for the Roman Rota in the middle of the sixteenth century (see Ascheri, Tribunali, istituzioni, p. 105), when three of the works listed above were indeed officially accepted and allotted the by now traditional title of Antiquiores, Antiquae and Novae (Decisiones).

334 chapter ten on his auditors of the Rota, or that passed down by a king to his judges or by the communes to their podestà, or leading town authority. This was another of those matters that the ambiguous position of judge-king which so many historians speak about, or the all-encompassing iurisdictio, or the equally ambiguous diligite iustitiam could make no allowances for. No one would deny that the prince, in other words the king, or even the communal government, had to deal with justice in the strictest sense, but this was no longer their main preoccupation. Given the existing legislation and the important political choices to be made, the pursuit of justice now meant engaging with the surrounding territory, deciding whether or not to wage war, whether or not to forge a commercial alliance, or to develop policy reflecting the interests of different social groups. Even kings now assembled a group of individuals around them, individuals we would today call ‘ministers’: special advisers, commonly jurists, or at any event individuals educated in the law, to whom matters of justice could be entrusted. They were quite separate from the king’s closest councillors, who remained responsible for on-going political and administrative affairs. This was yet another aspect of the triumph of ius commune, in that individual governments were made aware that the prince governed through his concistorium. There was, in fact, a general tendency to establish specialized bodies to take care of legal matters. These councils of justice normally consisted of law graduates and, in order to confer gravitas, were established according to many ad hoc legal provisions. This is certainly what happened with the House of Savoy, and with the Este, Aragonese and Sforza dynasties, and it is what the emperor Maximilian finally recognized in the imperial diet that resulted in the establishment of the court of the imperial Chamber in 1495.17 This was not only a matter of bodies engaging in specialized functions so as to lighten the work of the prince’s chancery, but also of legal authorities flanking the prince and operating in his name: that is, holding the law close to their chest (in scrinio pectoris) as they would say from the end of the century. In other words, these bodies normally considered themselves to be the highest authorities in the interpretation and application of the law. As a result, they could operate in derogation of the law as it stood, indeed having respect only for God and Truth (ad Deum et veritatem).18

17 A recapitulatory expostion can now be found in Ascheri, Il processo civile; the Reichskammergericht assumed a central importance in the diffusion of ius commune in Germany. See, however and also for the make-up of other European tribunals in the early modern period, Frieden durch Recht. Das Reichskammergericht von 1495 bis 1806 (1994). 18 See Ascheri, Il processo civile, p. 372.

justice and its institutions 335

They were thus bodies with broad equitable powers, who claimed that they could operate with great freedom within the existing legislation – both that associated with ius commune and that concerned with individual rights, except for the indisputable restrictions imposed by natural law. From this perspective, the differences between the continental and English systems that are still discussed today were irrelevant. Structurally, there was no difference, given that the bodies were supreme organs of princely institution. If anything, we could argue that it was the highest judges of the communal organizations, at that date usually referred to as captains of Justice – a grand title that did not, however, exempt them from a persisting respect for local statutes – who continued to distance themselves from such institutions (and even more so, thereafter).19 From this view-point, there can be little doubt that the princely order underwent an extraordinary evolution during the fourteenth and fifteenth centuries that was not equalled in the communal world. Nevertheless and somewhat contrarily, it was the communes that realized the existence of the problem that was resolved by the princely councils of Justice. It was thus generally the case that communal governments, like the princes, and conscious of being themselves, in a manner, ‘princely’ (sibi princeps), reserved to themselves the luxury of intervening in the last instance, with extraordinary bestowals of grazia (grace). Such pardon was granted following supplications made by interested parties, but in some instances it was also forthcoming through official channels, as a result of individual initiatives, and after appropriate arrogation of the case in the face of the government’s overriding political responsibilities. The distinction between politics and legislation on the one hand and justice on the other, did not, however, mean lack of association: the separate spheres of government activity as practised by the politicians, and justice as administered by the judges in our own time, albeit with many reservations and grey areas. During the period under consideration, the two areas were closely intertwined, both because of arrogation, and because at an even earlier date it was the government that nominated the judges. But this does not negate the conceptual distinctions separating the one from the other. The government that interfered with justice beyond a certain level was condemned as tyrannical,20 whilst judges had to proceed in such a way as

19 See Ascheri, Tribunali, giuristi, p. 62. There is a good discussion concerning the precedents of the Romanist tradition in Petronio, I Senati. 20 This was one of the arguments of the prosecution presented, for example, in Il processo Avogari.

336 chapter ten to avoid criticism of non-fulfilment of their judgments, even though they understood that the sentences they awarded might be commuted or annulled by the political authorities. For example, the duties of the office (officium iudicis) allowed for intervention in individual cases, in order to provide a stimulus to the process, in the case of slackness on the part of one or other party. But the system’s ideology also prohibited the assumption of responsibilities that went beyond the judgement of the specific case. The judge could not be the legislator. This is what the judges of the Rota would proclaim in response to a letter of recommendation from the Emperor, who was invited to consult the competent power, that of the sovereign pope, because ‘we’ – the judges solemnly claimed – are ministers of law, not legislators (‘ministri iuris sumus, non legum conditores’).21 The pope also had several other tribunals at his disposal, apart from those already established within the Commune of Rome, which not only provided more specific expertise, but were also very important. One of those that subsequently assumed considerable significance was the Segnatura, which – when divided into the departments of Mercy and of Justice – represented the appropriation of law and of sovereignty at the state’s vertex. We should also make some reference to the Apostolic Penitentiaria, a papal court that was generally placed under the authority of a very powerful cardinal. For the pope, the Penitentiaria symbolised the by now complete dominion of the Papacy over sin. This was a state of affairs that had previously been achieved through the bestowal of indulgences, as temporal punishments for sin. In a very practical way, the Penitentiaria absolved the faithful from every kind of sin, even of the grossest nature (often involving titled individuals of some standing, such as abbots), so long as they humbly proclaimed contrition, and went through the procedures demanded of them by the Church which became the object of famous satires by humanists. For, even if the individual had greatly sinned, here (and only here, in Rome) the miscreant could claim complete repentance, and as a result could leave the internal court exonerated of all blame. This was essential, if the officially cleansed miscreant aspired to any position within the ecclesiastical framework, which was increasingly bureaucratic and bogged down by the law,22 and provided

21 See Gero Dolezalek, ‘Ein Brief des Rotarichters Geraldus de Podio Fulconis an Kaiser Karl IV’ (1997): ‘ministri iuris sumus, non legum conditores’. 22 For a number of striking and dubious cases of witchcraft see Tamburini, Santi e peccatori. Quite naturally, a number of formularies of acts issued by the court which were necessary to the various procedures, including judicial trials, were created at an early date, including a large number of carefully-constructed fees.

justice and its institutions 337

that no-one opted to prosecute him in the open courts. Another very active tribunal was the ancient Audientia litterarum contradictarum, which discussed the validity of documents, but it also did this by default, with the result, as has already been demonstrated, that it ended up vali- dating the most outrageous fakes.23 Justice followed its usual course so long as it did not obstruct political power. The latter, however, was on occasion intent on using the law to serve its own specific ends. Adopting the judicial path as a way to eliminate one’s adversaries is certainly not an innovation of our own times: neither is the attempt to use judicial instruments to resolve political problems indirectly a new phenomenon. There seems little doubt that during this period, political powers often intervened in the legal process. ‘Good’ political power needed to take care of justice in order to avoid criticism for tyranny. Justice also became a useful screen behind which one could attempt to hide a number of potentially delicate political questions. Manoeuvres of this kind were supported by the assumption that justice and politics inhabited two different spheres. It is illustrative to look at some of the great medieval trials in the fourteenth century: those important in the context of Dante’s lifetime, and indeed in his own work;24 of the inflexible Boniface VIII;25 of the Templars condemned with slan- derous accusations by the lay powers in France and disbanded by order of the pope in 1314 (with the added confirmation of the Council of Vienne);26 of the ‘rebel’ usurper of thrones, Robert d’Anjou;27 and of Pope John XXII against the unrepentant ghibelline Este and Visconti families.28

23 One such case has recently been revealed by Lorenz Böninger, ‘Un illustre abate Siciliano, l’Audientia litterarum contradictarum e una donazione di reliquie a Santa Maria del Fiore nel 1439’ (1995). 24 Eugenio Barsanti, I processi di Dante (1908); for a contextual analysis see Andrea Zorzi, ‘Politica e giustizia a Firenze al tempo degli ordinamenti antimagnatizi’ (1995), and more recently the judicial texts in Il Libro del chiodo (1998). 25 See, following an important study by Tilmann Schmidt, Coste, Boniface VIII (together with Dieter Girgensohn, ‘Recensione’ (1993–94)). 26 On occasion the Pope authorized torture for such individuals; as a result some of them abandoned religious life through fear of exactly such retribution (metu tormento- rum); see the case in Francesco A. Tommasi, ‘Interrogatorio di Templari a Cesena (1310)’ (1996), where there is also a comprehensive bibliography on the subject. 27 There is ample coverage of this matter, as well as for the Pazzi, in Pennington, Due Process. 28 See Orazio Condorelli, ‘Un giurista dimenticato dello Studio Bolognese: Superanzio da Cingoli’ (1994). An enquiry against the archbishop of Aix in connection with a Jewish astrologer has been published by Joseph Shatzmiller, Justice et injustice au début du XIVe siècle. L’enquête sur l’archevêque d’Aix et sa renonciation en 1318 (1999).

338 chapter ten

Later, in the fifteenth century we can point to the trials of the renowned heretic Jan Huss, put to death at the stake, after being assured an imperial safe conduct; of Joan of Arc, subsequently sanctified and named patron saint of France;29 and then to that of the Pazzi (after the famous conspir- acy against the Medici which resulted in the hanging of the archbishop of Pisa, one of the conspirators); or that of Saint Simoninus at Trent and that of Savonarola in Florence (burnt at the stake, following an anachronistic trial by torture).30 But what of everyday trials? One point in particular needs emphasising here. The desire for justice and legality – even of the most informal kind – subsequently also had very precise effects on the judicial process. This was a real obsession of the time (and remains so today), which resulted in references to arbitrium (judicial discretion) every time an excessive amount of power was introduced by legislation. For this reason, it was much discussed during the fourteenth century, a period of far- reaching reassessment of the balance between institutions and traditional regulations.31 With its secure base in religious culture and reinforced by the burgeoning juridical culture, the search for justice and legality meant that the judicial process never reached a point of definite closure. Indeed, the search itself encouraged the employment of every possible practice, in order to return to the case in hand. Reaching formal judgement (the res iudicata of Roman times: the final and immutable sentence) was thus an extremely hazardous process. Between the fourteenth and fifteenth centuries consilia in favour of this or that side of the great ecclesiastical conflict that had resulted in the papal schism were taken from the colleges of doctors, or from famous individual professors from all over Europe, and distributed. However, one of the most able canonists of the time, Antonius de Butrio, realized (justly)

29 See Franco Cardini, Giovanna d’Arc (1999). 30 Apart from the detailed examination by such individuals as the distinguished crimi- nalist and extremely well-known writer Franco Cordero, Savonarola, the friar from Ferrara, has attracted the attention of a whole series of specific publications (Istituto Nazionale di studi sul Rinascimento, Florence) on the occasion of the fifth centenary of his death; from our point of view, perhaps the most relevant are Savonarola e la politica (1998), and Robert Klein, Il processo di Girolamo Savonarola (1998). For Saint Simonino we have already referred to Quaglioni-Esposito, I processi. Trial procedures concerning internal conflicts within the religious orders, such as those between the conventual Franciscans and the observant members of the order, which have attracted considerable attention from the admirable Celestino Piana (for example in ‘Scritti polemici fra Conventuali ed Osservanti a metà del ‘400 con la partecipazione dei giuristi secolari’ 1978–79), are more technical, but nonetheless important, particularly from a juridical point of view. 31 Meccarelli’s consideration of this in Arbitrium has already been referred to.

justice and its institutions 339

that the consilia did not presume that the conflict would be resolved on the basis of truth. One could always find a better consultant, who would give a more carefully argued solution, one that was more learned, or (as they said) more appropriate to the particular case. But what, then, was the legal position of all those sentences that had been reached as a result of a consilium sapientis, often in an attempt to shorten the legal proceedings? Antonius de Butrio’s response was simple. His view was that sentences could always be reviewed, because university doctors, almost as if finding themselves in the confessional booth, needed to recognize and come to terms with the fact that they also could make mistakes.32 It seems unlikely that such an attitude precipitated an avalanche of challenges in a world that had always invested so much, including money, in such valued opinions. Indeed, one can imagine that oral responses may have been of a very different nature. One could point to one instance in 1263, when a request was made from Albenga, a learned bishopric that produced a famous canonist named Iacopo, for a second opinion from such a great authority as Odofredus, the venerated Bolognese master. Another case at the beginning of the fourteenth century involved further opinions being requested regarding a castle near San Gimignano. This case, also, involved a great deal of creative reasoning on the part of the two famous jurists involved, Iacobus Butrigarius and Iacobus de Belviso.33 More seriously, the dispute remained unresolved, because apparently no legislator was prepared to tangle with it. It was thus a matter of defending past decisions in the face of new opinions that were represented as communis opinio, but which no college of judges had any interest in formaliz- ing as such. The facts are indisputable. By the time of Antonius de Butrio (c. 1400), ius commune had become a great mass of virtually incontestable and more or less brilliant opinions that were generally consistent with the written norms. It is no coincidence that the phenomenon of bartolism occurred during the same complex and busy decades. Moreover, very soon afterwards, the laws of citations arrived in Spain, adding a degree of certainty to reducing the pre-existing confusions. How could one hold responsible the judge who followed Bartolus or the communis opinio and with greater reason, the eventual opinion of the learned consultant? He

32 I refer to this in Ascheri, Diritto medievale e moderno, p. 181 f. 33 For Odofredus’s involvement, see Gli statuti di Albenga, p. xxviii; for the case concerning the castle near San Gimignano, see Ascheri, Diritto medievale e moderno, pp. 231–232.

340 chapter ten might be judged in the sindicatus, the procedure that at the end of a term of office checked for abuse of power, harassment, and so on. But it was difficult to accuse him of errors of judgement.

10.6. Civil Justice and Penal justice: A Significant Distinction

Roman law and the doctors who studied it were indispensable filters – especially when there was a need for swiftly expedited cases – that recognized the appropriate sources, and adopted the proper proprieties. This was particularly important for those with some status in society, such as the jurists. It was also important for Francesco Guicciardini, the first great Italian historian. A Florentine patrician who was also a skilful lawyer, judge and governor, Guicciardini appeared to seal the end of the middle ages by letting it be known that it was in civil justice that one had to exert scrupulous care, whilst in penal law one could afford to be open-handed. Civil law necessitated the unremitting search for truth; with penal matters, one could afford not to go into such fine detail, because it was not gentlemen like himself who were normally involved in such prosecutions.34 There is, perhaps, no more explicit a distinction between the classes than this. However, it is at the same time extremely interesting for us. Deep down, the extensive interpretation of penal laws was advised, because one could always find explicit doctrinal professions to the contrary, such as in dubio pro reo (the accused should be freed in the case of doubt). Apart from the distinctions drawn between the punishments and the misdemeanours, how close this is to our own society. The jurists, who were to some extent associated with members of the leading class, were interested in a rigorous sense of order: one that guaranteed entitlement to possessions (civil justice); as well as one that protected both the possessions and society from every kind of external attack (penal justice). One might say that all this dates to the very beginning of the sixteenth century, and thus post-dates the period we are specifically concerned with. But the ethos of those concerned with the defence of society at the later date is

34 ‘In criminal matters, it is essential that justice should be observed, even though one can on occasion adopt a broader view (or, ‘act with discretion’), but in civil cases it is vital that a precise and firm rule should be established, that this should be followed to the letter and transparently, and that those in charge of the state should not concern themselves with them’ (for another analogous citation two centuries later, see Cozzi, Repubblica di Venezia, pp. 6, 344); on Guicciardini as a lawyer, see Osvaldo Cavallar, Francesco Guic ciardini giurista. I ricordi degli onorari (1991).

justice and its institutions 341

the same as that in the preceding period. It was this that triggered exceptional protections, not for the accused, but in the process of investigating wrongdoing, during questioning of individuals accused of the depraved crime of heresy. From the early thirteenth until the beginning of the fourteenth century, the Papacy frequently returned to the problem of the special kind of inquisition provided for those suspected of heresy and of witchcraft, in so far as it was associated with heresy.35 Such revisions were always carried out with a view to limiting protections for the accused: the accused did not, for example, need to be made aware of the evidence brought against them; the accused could also be deprived of a defence. It was only necessary that the torture was not so extreme as to cause permanent damage or death. Inquisitorial techniques in fact reached a level of rare perfection, with manuals giving advice about which cautions to issue, in the event of having to presume the culpability of the accused, and the dangers involved, given the presence of the devil. One widely circulated text was that of the inquisitor Bernard Gui and, in the second half of the fourteenth century, a treatise appeared that was destined to become a classic in such arguments. This was the tract written by Nicolas Eymerich (now translated into Italian), re-published during the sixteenth century with additions by Francisco Peña, a judge of the papal Rota which broughtit up to date.36 If there was one area in which there was a clear, dramatic, and deeply-rooted dysfunction between the cultural formation and the practical execution of the law, it was precisely in that of penal repressions – taking a very broad view, because even the non-payment of debt resulted in prison. The doctrine of ius commune was extremely refined,37 but the requirements for the safety and protection of society, in particular, of the

35 These were naturally somewhat ill-defined matters, and were often subjected to reconsideration in the later years of the early modern period. 36 For the sources and discusson of a papal bull by pope John XXII, see Ascheri, Streghe e devianti; for the treatise, see Nicolas Eymerich, Manuale dell’inquisitore a.d. 1376(1998). See also Manlio Bellomo, ‘Giuristi e inquisitori del Trecento. Ricerca su testi di Iacopo Belvisi, Taddeo Pepoli, Riccardo Malombra e Giovanni Calderini’ (1978), which is very detailed and useful. For first-hand documentation see Grado Giovanni Merlo, Eretici e inquisitori nella società Piemontese del Trecento, con l’edizione dei processi tenuti a Giaveno (1335) e nelle valli del Lanzo (1373)(1977), as well as his useful summary in Eretici ed eresie medievali (1989). 37 I am thinking, for example, of the treatises on crimes (De maleficiis), which include subtle considerations concerning the degree of premeditation, as well as causal relationships, and so on. Some of the studies in Studi di storia I (Milan) are also useful. For medical expertise, a real innovation of the thirteenth century, see Gherardo Ortalli, ‘La perizia medica a Bologna nei secoli XIII e XIV’ (1965–68).

342 chapter ten distrustful and exclusive urban environment, were primarily dictated by other practical considerations. These were guided by the podestà and men of law flanked by the policemen, the bariselli, berroverii or, any of the other biased titles by which they were known: ruffians who were certainly not educated in respect of the citizens, and who predominantly belonged to a lower social stratum.38 There were, moreover, a vast number of extremely punitive laws. However, these were not only often disregarded, but frequently not applied at all, or applied only on the basis of individual circumstances. Over time, stratification of the law produced evident injustices, as is illustrated, for example, by events in Siena. In the early fifteenth century, Siena had clearly reached the highest level of cultured society. However, official regrets were voiced over the fact that for the same crime one could receive a small fine, or else be condemned to death. The point was also reached where by-laws were drawn up in order to exonerate particularly powerful individuals in Siena from transgressions in the light of sumptuary laws.39 Far and wide, it came to be the case that statutes contained obsolete norms, and were frequently superseded over time by a number of more detailed provisions. In some instances, they had become mere symbols, either as they stood in their entirety, or in respect of certain particular issues. In effect, they were an expression of identity, rather than a normative reality.40 Furthermore, governments often intervened in matters of justice (at times, in a high-minded manner) with precise orders to the judges.41 This happened frequently when the government could be sure of catching the miscreant. But on many occasions, the accused had already fled, and was thus condemned in his absence. Once banned (bannitus), he was legally exposed to acts of at times excessive retaliation in comparison with the original crime. As a result, he often sought refuge in another state, waiting for a change of regime in the city, or else established himself

38 There are some good sections dealing with social control in Berengo, L’Europa, pp. 587–645. 39 Ceppari-Turrini, Il mulino delle vanità, pp. 133–135. For the contradictory nature of some of the punishments, see Ascheri’s introduction to Donatella Ciampoli, Il Capitano del Popolo a Siena nel primo Trecento, pp. 10–11. 40 See the interesting Gherardo Ortalli, ‘L’outil normatif et sa durée. Le droit statutaire dans l’Italie de tradition communale’ (1997). 41 A great deal of research has been done on Florence by Andrea Zorzi; see for example, his ‘Giustizia e società a Firenze in età comunale: spunti per una prima riflessione’ (1988), as well as the notable historiographic study ‘La storia della giustizia. Orientamenti della ricerca internazionale’ (1986). Lauro Martines, Lawyers and Statecraft in Renaissance Florence (1969) is still important.

justice and its institutions 343

in the countryside, in some area where he could enjoy juridical privileges. Notwithstanding, there was the need to punish, to show that justice, in a strict sense judicial justice, had been administered. Leaving crimes unpunished was a grave failing for a government, and according to the preachers, punishment for such omission extended to the whole community, bringing plague, famine and various other ills. According to them, those who tolerated evil were in effect tarred by the same brush; it was as if they themselves had been involved in the malpractice. This gave rise to a repressive impulse which as already noted, reached the point of irre- sponsible fanaticism, especially in the context of the repression of the perverse heretic. Viewed as a whole, the official preliminary investigations, in a generic sense, the inquisitions, thus easily managed to condemn the accused in absence, but otherwise encountered a number of obstacles. Furthermore, when there were injured parties there was a tendency to push for an agreement. Whilst in the civil law context, the legislature itself tended to favour arbitrations, between relations, business partners and neighbours, in penal law there was a tendency to reach a truce that was sworn between families in order to bring long feuds to an end, or else to resort to sworn testimonies of peace that were legally binding and that, with compensation to the injured party, brought the penal prosecution to an end.42 Nevertheless, even though the inquisitional process was by now clearly defined, there was still room for the accusatory process that was set in motion by the injured party. Normally, however, despite applied force and recurring legislative commitment, this was a violent world at least up until the fourteenth century: a world controlled only in an imperfect and sporadic manner by the public authorities. Besides this, there were large areas where the distinctions between punishment and prison sentences for nobles and for ordinary members of the population were far from clear,43 as a result of a kind of legislation that rewarded informers and individuals who made denunciations, as well as the frequent conversion of sentences into monetary fines. That practice in particular granted

42 See the important research carried out recently by Massimo Vallerani, and by the same author, ‘Conflitti e modelli procedurali nel sistema giudiziario comunale. I registri di processi di Perugia nella seconda metà del XIII secolo’ (1990), and ‘Pace e processo nel sistema giudiziario del Comune di Perugia’ (1999). 43 A further distinction was made, for example, between crimes carried out by day, and those committed during the night. In this context, see Mario Sbriccoli, ‘‘Vidi communiter observari’. L’emersione di un ordine penale pubblico nelle città Italiane del secolo XIII’ (1998) and in general the volume La notte. Ordine, sicurezza e disciplinamento in età moderna (1991).

344 chapter ten immunity to those in powerful positions. And, apart from all this, there were frequent cases of bloody conflicts to defend the honour of a particular family, and to strengthen individual groups under its patronage. Thus, once again, we encounter the usual patterns. The abundant and learned legislation was no guarantee for what happened in practice, especially in the penal court. Both the legislation, and the doctrine which gave birth to it, or which it itself stimulated, resulted in a number of important targets, but as was the case in other areas, these were more for the future than for the present. In the meantime, they were part of the culture, and on occasion there were also serious-minded people who refused to be intimidated, and were prepared to uphold the great principles, a good example being the Apostolic provincial administrator, who verified the violation of the rights of defence in the aforementioned inquiry against the Jews of Trent.

CHAPTER ELEVEN

THE END OF THE MIDDLE AGES

With this final chapter we reach the end of the medieval age, and are thus in a position to draw a number of conclusions. So far, we have rapidly pursued all kinds of topics and issues which are now regarded, and which our medieval forefathers accepted, as being concerned with ‘law’. We have looked at the principal legal sources, and considered those individuals who set about researching and interpreting the meanings of the ancient texts. There have, of course, always been men of letters (even if often attached to religious orders), just as there have always been priests and soldiers. But our practising theorists, perhaps the most influential professional and social force throughout the long period of the medieval age, were new. We have made numerous references to the prestige enjoyed by the jurists, and at the same time, have drawn attention to the most obvious manifestations of this, from the very large stipends offered inside the universities; to the costly payments made for judicial and extra-judicial advice; to the part played by such individuals in diplomatic missions. Jurists seem to have played a central part in late medieval life, even when they were not becoming popes or cardinals.

11.1. The Role of the Jurists and the Humanists in Polemical Discussions1

The jurists were fond of saying, not least as a way to justify their enormous salaries, that jurisprudence (in the sense of its being scientia iuris, iuris prudentia) was the ‘one true philosophy’, even though it was intricately entwined with other disciplines. But it remains true that both the civil

1 For further information and a bibliography see in particular Ascheri, Diritto medievale e moderno, pp. 101–155, where there are references to a number of fundamental studies, most notably those by Riccardo Orestano, Domenico Maffei (his Gli inizi dell’umanesimo giuridico, 1956, is a classic work), Donald Kelley and Hans Erich Troje. There is a note bringing this up-to-date in Ascheri, ‘I giuristi, l’umanesimo e il sistema giuridico dal Medioevo all’età moderna’ (1992). But there are many new works; see for example Maurizio Manzin, Il petrarchismo giuridico. Filosofia e logica del diritto agli inizi dell’umanesimo (1994), and Mario Lupinetti, Francesco Petrarca e il diritto (1995).

346 chapter eleven lawyers and the canonists tended to resolve their own particular problems within the orbit of their own documentary sources – the former with slightly less confidence than the latter, and the canonists always with some reservation in the face of the theologians. This did not exclude an interest in poetry, but it was the notaries of the late thirteenth century, at Padua, at Bologna or at Perugia, for example, who were more interested in such matters, or who were sensitive to the so-called ‘pre-humanism’. However, attitudes changed considerably during the course of the fourteenth century. A renowned jurist already alive at that date, Iohannes Andreae (m. 1348), whom we have suggested was probably the most eminent canonist during the middle ages, had contacts with the illustrious and very learned Aretine poet, Petrarch. For his part, Petrarch, who was crowned poet laureate in Naples by king Robert of Anjou, had once been a student of civil law. It may thus have been Petrarch who set in motion a polemic that had various phases, some of which were extremely virulent, with, in modern times, very real insults being hurled at the defenceless ‘bartolists’. Nevertheless, this heated discussion maintained a certain consistency as a result of the perception of the role played by the jurists and by their culture in the society of the time. According to Petrarch, and many other intellectuals who were not jurists, the law had ended up occupying an excessive and undeserved amount of space within the cultural system. Petrarch (and the humanists after him) was intent on investigating a freer kind of wisdom, one that was not ‘scholarly’ like that which was by now carved in stone by the universities. The humanists wished to achieve a state of wisdom through an explo- ration of history, the written word and art, adopting a new approach that was based on philological rigour. In so doing, they hoped to be able to define a learned man at the height of ‘modernity’, as free from all preju- dice and pre-conceived ideas. For the humanists, the diligence of the jurist, in searching to assuage the anxieties of conscience and of freedom, was over-rated. Who could have been satisfied with the legal world of that time, packed as it was with delays and excessive expenses with, for the most part, an end result of absolutely nothing? During the process of their formation, the humanists inspired new kinds of literary forms, such as that produced by Lucas de Penne, a south- Italian jurist contemporary with Bartolus and closely associated with Avignon. Lucas de Penne’s very learned commentary on the Tres libri of Justinian’s Code did in fact pre-date the humanists, and attracted little interest in later legal typography. However, individuals like this were

the end of the middle ages 347

extremely rare, and it is perhaps no coincidence that Lucas de Penne apparently never became a professor. The problem of there being too many verbose and contradictory books had already been pointed out by Oldradus de Ponte, a very able jurist. Not by coincidence, this individual had already been recorded as working in papal Avignon. But at this point, the culture that Petrarch had stimulated was developing in a different direction. Jurists’ texts were historical docu ments, stratified sources from various different epochs. But, for those interpreters who took note of their practical application within the mare magnum of ius commune, such texts were indistinguishable: each one completed according to the same criteria, shorn of history and characterless. The outlook now was very different. The humanists opened up a whole new world through manuscripts that had never been read before, and through exhaustive searches elsewhere. For this new generation of scholars, the jurists’ texts were documents from antiquity; evidence of a memo- rable past, yet mere fragments of an ancient world that one needed to understand in its entirety if one wished to learn from it and feel that it had been properly assessed. The lack of knowledge of Greek, for example, had excluded the jurists from a whole range of extremely important sources, which, ironically enough were included in the same Corpus iuris civilis. How could the jurists claim that they were serious interpreters of texts that were only available to them in partial form, and where those which were known to them only existed in versions that had become corrupted over time? The jurists were struck down at precisely the moment they reached the peak of their success, and found themselves in real difficulties when attempting to fend off humanist attacks. At times, they could fall back on the narrowness of their existing knowledge; especially because they themselves were on occasion humanists, a typical example being another Aretine, Franciscus Accolti. At other times, as for example was the case with the Paduan Franciscus Zabarella, the jurists were very sympathetic to the new humanist approaches anyway. But regarding the law itself, the jurists could do nothing other than defend its civil and practical function, the guarantee it offered for civilized cohabitation. This, they maintained, was a function that was obvious to all. There was thus no need to preoccupy themselves with written responses to the polemical pamphlets and dialogue directed at them by their opponents, in the course of this one-sided ‘dispute of the various arts’, in the sense of their belonging to different disciplines. What more could one do, other than, for example, immerse oneself (as did Zabarella and Tudeschis) in the reform of the ‘Church of Law’?

348 chapter eleven

However, even the jurists’ civil function was under attack. This was what happened, for example, when Poggio Bracciolini, a humanist who was active between Florence and Rome, took a swingeing blow at the anachronistic, out-of-date Roman laws to which the jurists had dedicated themselves for such a long time, asserting their enforceability. Bracciolini maintained that the Florentine Republic would have been better able to govern all the regional territory it dominated using its own laws. Lorenzo Valla was involved in another significant episode when he compiled a highly critical pamphlet about coats of arms (De insigniis et armis) at the University of Pavia; a work redolent of Bartolus that not only enjoyed a wide circulation, but subsequently formed the basis of modern heraldry. Valla was in fact in a good position to point out the linguistic errors and distortions of the Roman sources.2 The all-powerful jurists could force Valla to flee, but not to change his approach to the ancient texts, or to remain silent. He was, indeed, the author of the historical and philological confuta- tion of the Donation of Constantine to pope Sylvester, and works such as De voluptate (On pleasure), which were fundamental for the secularization of traditional theological reasoning. Notwithstanding that the jurists were all-powerful in the universities and in other seats of power (albeit with some exceptions: for example, Cato Sacco, and significantly, at Pavia), their critics pointed out that these legal experts could not even clearly explain what the institutions described in sacred texts actually were. They had, after all, never concerned themselves with historical matters. Returning once more to the ‘elegance’ of the Latin language (Elegantiae latinae lin guae) in the middle of the fifteenth century, Valla cited many examples that would have benefitted from an historical and philological reading of Roman law. This work was disseminated with great success throughout Europe, generating countless other works between the fifteenth and the sixteenth centuries from Angelo Poliziano to Guillaume Budé. Those juridical sources venerated by the jurists, and above all the extremely elegant passages assembled in the Digest that had been written by classical Roman jurists, were, however, full of mistakes in the form in which they were still being handed down – through university codes (littera Bononiensis). This naturally resulted in glaring interpretive errors.3

2 See Regoliosi, L’Epistola contra Bartolum; there is also the aforementioned new critical edition of Bartolus: see A Grammar of Signs. 3 For example, Bartholomeus Socinus, who will be discussed in more detail shortly, maintained that the usurae centesimae of Roman law were not equal to 100%, but only 12%. See Hans Erich Troje, Humanistische Jurisprudenz. Studien zur europäischen Rechtswis senschaft unter der Einfluss des Humanismus (1993).

the end of the middle ages 349

How could these legal gentlemen so ignorant of history and of classical Latin be authoritative interpreters of those texts? How could one admire emperor Justinian or his jurisconsult Tribonianus, when they were after all responsible for distorting the legal texts dating from the classical golden age of Rome? If we also take into consideration the fact that the jurists’ opinions were ever more controversial because they were contradictory, and that even their own consilia were often contested, we begin to understand how, between the fourteenth and fifteenth centuries, there was once again a move to establish equilibrium between the disciplines. The comparative value of the different professions formed the basis of many a dispute. Was the philosopher more worthy than the jurist, or the medical doctor? And so it went on.4 Grounds were thus already being established for conflict between the various groups, and it was also perhaps for this reason that a number of Tractatus de modo studendi in iure, reflections on different ways of studying law, began to circulate. These anticipated the more famous treatise of 1467, the work of Iohannes Baptista Caccialupi, well-known as a result of various reprinted editions right up to the eighteenth century version.5 Another symptom of that crisis is perhaps evident in the fact that in the courts and chanceries, overseen by princes and republican governments, we increasingly come across learned humanists. The assumption of that title alone indicates that such individuals already had some collective sense of belonging to a specific class. We could point, for example, to those who supported the great military but also cultural contest between the Visconti and Florence (Principality versus Republic). We could also point to the series of Florentine secretaries that culminated with Machiavelli. When dealing with inter-state relationships, a more flexible culture was now required, not least because of the emergence of embas- sies which would soon become a permanent feature of the political landscape. Above all, there was a need for individuals who were capable of negotiating political, historical and institutional arguments with competent and impressive pieces of writing and oratory: in other words, not just relying on juridical arguments, however indispensable these might seem to be.

4 See in particular Maffei, Gli inizi; and see also the interesting study by Elena Brambilla, ‘Genealogie del sapere. Per una storia delle professioni giuridiche nell’Italia padana, secoli XIV–XVI’ (1990). 5 See Caccialupi, Modus; for Caccialupi himself, see Domenico Maffei, ‘Giovan Battista Caccialupi biografo’ (1997).

350 chapter eleven

At court, the jurists were by vocation well-placed within organs of justice that accredited the government in the eyes of both its citizens and foreigners. But there was also a need for men of letters, individuals who could extol the virtues of the city and of the governing family. It was even better if they were historians. Such individuals knew how to give a sense of the city’s past, or of the past triumphs of the reigning dynasty, thus reinforcing their legitimacy or establishing it, in the event that it did not already exist. On rare occasions, jurists could be persuaded by the new philological fervour surrounding legal texts to consult the Florentine Pandects, or to try to put order back into the sources – as, for example, in the case concerning the Libri feudorum, worked on by Barattieri and Mincucci. But finding themselves increasingly challenged by the unruly groups of political subjects created within regional states, political powers required more. In the course of one century alone, from the very beginning of the fourteenth century to the very beginning of the fifteenth century, communal Italy changed from being hundreds of city-states to just a few regional states (Venice, Florence and Milan), that carved up and dominated the political and diplomatic landscape. Meanwhile, the papal State was in the process of re-organizing itself and establishing a power previously unknown in Italy.6 The Kingdom of Naples, for its part, was being fought over by the French-Aragonese pretenders, and was thus the seat of continual unrest,7 even when not involved in out-and-out wars. There was a need for a strong power: one that was, if necessary, capable of imposing itself over a number of different classes and territories bound together by pacts and with its own complex legislation, in order to guarantee overall control. The jurists, for their part, when it suited their doctrine concerning international matters, sought to embellish existing texts – passage by passage – with new discussions and opinions. Paradoxically, it was at this point that the work of the jurists reached maximum diffusion in Europe – as is testified by the aforementioned distribution of ‘quota- tion laws’ in the Iberian peninsula. This is what happens when there are too many opinions to refer to. In Italy, laws of this kind were not drawn up, because the hegemony enjoyed by the jurists was apparently still sacro- sanct, despite the fact that the political powers knew that jurists were at times unpredictable oracles, and ambiguous in the doctrine they

6 For individual administrations, and especially those that were monarchical in character, see, Caravale, Ordinamenti, which has a detailed bibliography. 7 See in particular, and especially for the bibliography, Fubini, Quattrocento fiorentino.

the end of the middle ages 351

presented: despite the fact, also, that the more truly capable and sought- after a jurist was, the more likely he would be to achieve European success. There would thus be no real need for involvement in ‘local problems’, which they could in any event easily avoid by transferring to another university. Or else – and this is what normally happened – as members of professional colleges, and even professors, they were more active in the fields of local and international litigation.8 Indeed, they stirred up a great many cases, engaging in skilful negotiations to uphold even causes considered lost. This is yet another leitmotiv of the polemics, not only of this time and not only in connection with the humanists. As a result, the political powers regarded the jurists as slippery customers, and certainly felt no love for them, even though they sought them out as technical advisers. The humanists, for their part, maintained that the jurists did not operate in the service of truth, nor did they know the truth. Truth was only obtain- able if one had the necessary philological and historical expertise for the delicate assessment of documentary evidence, or for the consideration of antique sources cleansed of the errors of the gothic age, as demonstrated by the exemplary re-examination of the Donation of Constantine. Even the writing changed, becoming the elegant script of the humanists. This was one way of putting distance between the new age and an old world that still cast a long shadow. The jurists became the symbol of that old world, as would also soon be the fate of even the scholastic theologians, with their huge tomes annotated centuries earlier, yet still presented as authoritative texts of indisputable knowledge. If modern experimentation called for exploring new directions, as the case of alchemy demonstrates, it was imperative to look beyond the juridical sources. The old codes offered the chance to unearth imperial constitutions or unknown works from antiquity, and there was also something very close at hand that could finally be studied in a serious way. This was the venerated version of the very old Digest/Pandect, previously preserved at Pisa and now, after that city’s conquest in 1406, carried by the victors to Florence. Once there, it was kept in a candle-lit case like a holy relic. But it now became necessary to use it instead as a tool to discover the real

8 Apart from major consultations on, for example, feudal problems, many more minor issues were also pursued: there is an interesting example of this in Daniela Novarese, ‘Un consilium maltese di Giovanni Nicoletti da Imola e la disciplina della comunione dei beni fra coniugi in Sicilia’ (1987).

352 chapter eleven meaning of the texts. Thus, thanks to the patronage of Lorenzo the Magnificent, lord of Florence, the great philologist Angelo Poliziano was able to scrutinize the littera (previously, Pisana, but now Florentina) – that manuscript which, as we saw at the beginning of this book, played such an important role in relaying the text of Justinian’s Digest. Poliziano compared the littera with the current available incunabula edition and his findings supported those presented by Valla. There was a vast amount of work to be done, but it was very rewarding, and in turn stimulated other initiatives. For example, a shrewd teacher of law at Pisa, Bartholomeus Socini, took it upon himself to add an expert legal hand to Poliziano’s philological collation which marked up deviations between the original (now Florentine), the littera, and the current university text of the incunabulum. A good deal of trust was established during these years when the painstaking revival of juridical forms was undertaken. For example, Ludovico Bolognini, a university teacher at Bologna, sent messengers to Florence to fetch an authentic copy of a passage he was having difficulty interpreting, and as a result stimulated scholarly enquiries far superior to his own skills.9 Poliziano was, however, struck down by illness when he was still young, and all his notes were dispersed. It is significant that around 1500, both the pope and the emperor knew about Poliziano’s work, and attempted to procure his incunabula in order to publish a new text and establish their own fame, following the example of Justinian. But this did not happen, and, more importantly, it was soon realized that perfecting the wording of the Digest was not enough to resolve the problems of the legal world. Philology and history appear to have breathed new life into university texts in the sixteenth century – thanks, above all, to the work of French humanist jurists, and after the excellent earlier work of the Milanese Andrea Alciato (died 1550). There was also a strong incentive for the French to adopt a relativistic approach with regard to the existing university texts, because they were engaged in research towards a new kind of didactics, as well as the

9 See Ascheri, Diritto medievale e moderno, pp. 116–118, and Caprioli, Visite. For the Florentine initiatives, see Le Pandette di Giustiniano (1983), with a valuable contribution by Enrico Spagnesi. There is a detailed reconstruction of this in Caprioli, Indagini. This individual, de la Ramée, was a Huguenot philosopher who was killed during the Night of Saint Bartholomew, and who was an ardent admirer of Cicero. He was also known as the author of a tract on civil law as art (De iure civili in artem redigendo). For a systematic methodology, see Diego Quaglioni, ‘Tra bartolisti e antibartolisti’ (1999), and Aldo Mazzacane, ‘Sistematiche giuridiche e orientamenti politici e religiosi nella giurisprudenza Tedesca del secolo XVI’ (1999).

the end of the middle ages 353

creation of a new kind of law for their own country. As a result, they raised questions about the enforceability of the texts, and the extent to which such texts were exhaustive in terms of the law, as opposed to being in need of comparison with other legal texts, for example those Byzantine works neglected by the medieval scholars. The work of the French humanists was, therefore, deliberately comparative and de-constructed in order to construct a new system. Thus, breathing new life into the texts and finding others to provide a firm basis for the history of Roman law and also the history of their institutions, both ancient and recent (such as those of the feudal period) was, for the French humanists, a single homogeneous cultural undertaking that was to have important consequences. If the texts were no longer seen as onerous, because they were now studied as cultural treasures rather than, as previously, enforceable commanding laws, one could select certain parts, extract what appeared to be the guiding principles and general categories and let go of the discipline that was pettyfogging, dated, casuistic and by this time useless. We are at the beginning of a new system: one that emanated from a new spirit of rationality and that was destined to have great success in the context of the seventeenth-century doctrine of natural law. This was the so-called ‘systematic’ science urged by the contemporary logic of Pierre de la Ramée. There was, in addition, one aspect that was of major political significance, over and above the objective consciousness. Humanist jurists, spurred on by Italian initiators, contributed enormously to the foundation of the new French culture that very quickly became pre-eminent in Europe with, for example, Guillaume Budé and the royal foundation of the Collège de France. But this course of events was also spurred on by the fact that there was an urgent need for modernization. Ravaged by the wars of religion and by regional tensions, France was still clearly divided into the customary legal system of the north and the Romanist traditions of the south. Italy, by contrast, had been modernized at a much earlier date, and did not experience those ‘national’, political and cultural developments that imposed the need for radical changes in juridical teaching and practice.10

10 Only the Church underwent a partial (and forced) renovation as a result of the Council of Trent, which also approved a number of important decrees. As a result, all the sections of the Corpus of canon law were subjected to an historical and philological review by a specially-appointed commission of correctores Romani and officially re-issued in 1582 as the authentic canon law of the Church by pope Gregory XIII: this was the editio Romana – a fact that should be born in mind when consulting any edition later than that date.

354 chapter eleven

In some countries, such as Germany, it was only at a later period that any real interest was shown in ius commune. Given that it was the greatest source for such law, Italian juridical literature was thus very much sought after. Indeed, it enjoyed an extraordinary success throughout the sixteenth century – without too many distinctions being drawn between the ‘bartolists’ and their predecessors, because the urgent need in Germany was to become acquainted with the entire legal heritage.11 This ‘meeting of minds’ of the jurists and the humanists, which should have been natural in Italy, the country that had first renewed the study of the humanae litterae, did not in fact have any very significant practical consequences there. No obvious increase occurred in the already widespread criticism of jurists, and above all, of lawyers. One could have the utmost respect for the work being undertaken by the new very erudite intellectuals, and one could also give them some advice about legal matters.12 However, it was generally maintained that the jurists should follow the mos italicus, or Italian way – rather than that which was known by this time as mos gallicus, or French method – because they needed to preserve its specific character, with their own time-honoured and therefore sacro- sanct techniques and texts. The corpora, and above all the Roman texts, were full of errors, but work on them had already come to a standstill by the early fourteenth century. It was as if they were signed and sealed by the ordinary glosses. The subsequent flow of unstructured discourse resulted in the elaboration of theories that were, at most, only loosely associated with the original texts. By now, the theories expressed in the opiniones that were scattered about in numerous volumes were deemed more important than the remote documentary sources underpinning them. Considerations of this or that point could be found in the theorica Bartoli, in the theorica Paoli (by Paulus de Castro), in Socini’s cautela sociniana, and so on. In the universities themselves, only part of the two corpora was being taught – the complete lecturae having been abandoned – and they concentrated instead on those titles and books that could be of practical use by allowing them to consider more relevant issues. University students confronted a whole spectrum of problems ranging from succession and fideicommissa to contracts; the resolution of patrimonial issues between married

11 Illustrated with data by Osler, The Myth. The same author is now preparing a catalogue of legal typography of the sixteenth century (Max-Planck-Institut für europäische Rechtsgeschichte, Frankfurt). 12 But sixteenth-centuy Italian legal humanism still needs much more research.

the end of the middle ages 355

couples; the limits of statutory authority; the status of foreigners and conflicting legislations; and alterations to trial procedures. In this way, once graduated, they were prepared for an extremely complex public and private legal world. By now, the theories that enabled one to negotiate through this multi- layered world, consisting of inter-connecting institutions and superimposed jurisdictions, themselves constituted an impressive corpus. This was homologous to a firmly-established and centuries-old institutional and social pluralism, and to that tension between central and autonomous powers that characterized much of public life in a country made up of hundreds of cities. The Roman law polished by the humanists and the historical studies produced by them were admirable and interesting, but they were in truth, luxuries. For the most part, they bore no relationship with the real problems of a world that was consolidating its own political and social structures and thus, also, its own statutes and the regional legislation that went along with this. Italy and France were very different in this respect. By contrast with events in France, following civil wars and the crisis of confidence in the face of an uncertain future, there was not sufficient motivation in the Italian world – a world that had originally given rise to the communes and that had subsequently veered towards a kind of formal aristocracy – to attempt the dizzy task of drawing stimulus from the antique sources in order to construct new systems. In the other Italy, that of administrations that were monarchical and/or princely, along with the Papacy, the Aragonese conquerors (and/ or later the Spanish), or the House of Savoy, the trend was to strengthen central jurisdictions, adopting legislation particularly directed against the estates and the Church. Here, therefore, greater support was lent to those jurists who were faithful to the crown and to its legislative policy, favouring a framework of cautious innovation within the context of continuity. The indissoluble linking of civil with canon law (utrumque ius) further contributed to the persistence of customary teaching methods and modes of writing (except for some marginal experimentation) that, from the early years of the sixteenth century onwards seemed to truly represent an Italian style. By comparison with the philological experiments and systematic enquiries of the French and the Germans, and very shortly afterwards the ‘elegant jurisprudence’ of the Dutch, Italian jurists seemed very traditional. The Italians, for their part, continued to pursue the great principles – to speak of natural law, of freedom and the privileges of this or that category (in the sense of special regulations, from which even

356 chapter eleven the poor should benefit), of favor rei, of protections for the accused, and so on, even though in practice things were taking a very different course.13 Teaching became increasingly polarized, as if straddling two worlds: on the one hand, offering practical training for forensic enquiries, and on the other, formalistic inductions through purely theoretical disquisitions. This is one of the signs that academic jurists were losing their position of authority. In Italy, the great discoveries were in themselves sufficient gratification, and the proximity to power did the rest, rewarding and assigning jurists an institutional position. The superior judicial courts were now the great novelty. These courts recalled the best elements of the universities, because they allowed individuals to work very closely with the political powers (whether lay or ecclesiastic) – the source of all privileges. They also provided opportunities for self-advertisement, and for proving oneself worthy of patronage. In effect, they furthered pursuit of much coveted nobility – both for the individual and his family – a real obsession now, in the wake of the failure of the ‘people’s’ governments. In the superior judicial courts, therefore, the displacement of ius commune was not seen as a necessity since, working in the ambit of the Prince, one enjoyed very broad equitable and discretionary powers. This was a society that could demonstrate a great military weakness. But Italy was far from poor, having continually accumulated wealth during earlier centuries. Rather, it manifested signs of weariness, of becoming inured, of having reached its limits. If juridical and socio-political stability represents particular and enduring values, one could say that the Italy that was militarily vanquished at the end of the middle ages had nevertheless reached an optimum position through its institutions and its law. The system had grave defects, justice was slow and costly and above all merciless when meting out punishment; but the system had its own rationality, its own plausible form, with the result that one could easily ignore the humanists’ criticisms. However, from that time on, the division between the world of the jurists and the world of the other intellectuals has certainly had a negative influence on Italian culture. But this is not all that the medieval world of law has bequeathed to us.

13 An interesting picture of the cultural ambience in as far as the fundamental rights of the individual, natural law and justice were concerned emerges from the conferences organized by the Università Pontificia Lateranense (published in the series ‘Utrumque ius’); in his Criminalia, Nascita dei sistemi penali (1986), Franco Cordero is intent on demys- tifying criminal matters.

the end of the middle ages 357

11.2. A Heavy and Grandiose Heritage

The cultural elaborations that we place within the category of ius com mune, ‘common law’, on which generation after generation of jurists collectively collaborated, resulted in a re-casting of the old juridical order and its re-alignment with new legislation. The most significant result was that a wealth of solutions was provided, which more often than not constituted the substance of late-medieval civilization. The unique category of the citizen; the idea of a ‘common good’, of a public involvement that predominated over minor, individual or special category interests, thanks to the reformation of the state;14 participation in decision-making processes, not least in administrative matters; the limits of princely power (‘constitutionalism’) and the need for the consensus of the people, even if only in a parliamentary sense; private law that guaranteed the independence of individual operators; penal law, albeit with its own particular characteristics; trial proceedings with inalienable requirements, untouchable by legislators. These were the distinctive fea- tures of European civilization at this time. The reason they have subsequently become the subject of debate, heated at times, is because an attempt was made to make them more effective, to establish them on a more certain, secular basis. Just as it gave a material face to Europe, the late medieval period gave conceptual frameworks, amongst which were the fundamental juridical categories with which to think about the organization of public life and cohabitation within the private sphere. In the field of private law, doctrinal and notarial labours combined to bring balance to, and temper the interests of, conflicting parties, offering extremely refined solutions that still often form part of contemporary law. As a result, many of the legislative texts formed between the thirteenth and fifteenth centuries that have been discussed here, from the Liber Augustalis to the Egidian Constitutions, the Carta de logu, certain statutes, etc., remained in force until the eighteenth century and were only superseded by the reforms of the Enlightenment, or by the Napoleonic invasions (and thus not in Sardinia and Sicily, which managed to avoid both).

14 It is hotly disputed what can be claimed for the Middle Ages; I revealed my own position in introducing Istituzioni medievali, and was later delighted to note arguments supporting that stance in the discussion published in ‘Annali dell’Istituto storico Italo- Germanico in Trento’ 20, 1994, pp. 233–271 (participants: Marino Berengo, Lauro Martines, John M. Najemy, Paolo Prodi).

358 chapter eleven

These reforms targeted above all, and with good reason, the inhuman aspects of penal law – trial by inquisition, obsolete crimes such as magic, witchcraft, usury, etc., and various retributions, such as casting out in dis- grace, corporal punishment, penalties for debt, etc., as well as the juridical and institutional rules imposed by the nobility and the economic restraints of the market arising from that system – corporations, fideicom missa, and various taxes. Nevertheless, medieval law constituted a body of juridical wisdom that should not have been displaced in either the field of public or private law. It was supplanted by, for example, the secularization of natural law, and by rational law. It was then reclaimed by the omnipotent positivist legislation of sovereigns, first under the Enlightenment and then under constitutional law. It passed into the codes and constitutions along with the formal abrogation of ius commune, but it was neither forgotten nor left unused. Throughout Europe, the language and often the content of contemporary law is still that of ius commune – even, in some respects, in England.15 It is no coincidence, either, that there is now a deliberate attempt (albeit in practice more cultural than concrete) to retrieve and to reinforce that original juridical unity that was lost after the sixteenth century, during the period of national states and religious conflicts. There is, therefore, a certain degree of nostalgia for ius commune, and not least because it has survived in a number of peripheral or minor provisions: in the Republics of Andorra and San Marino, and in the distant South African Republic,16 and in the state of Louisiana, where there is an association known as the Bartolus Society, bearing witness to an ancient European connection. Ideas and solutions from ius commune re-emerge in particular in public and private law, whereas in the penal process the association has remained so strong that the notion of par condicio is only just now making itself felt in Italy. And above all, following the French Revolution, the central position of the jurist in the administration of the legal system has re-surfaced. Indeed, we referred at the beginning of this book to the present complexity

15 Which, along with the American world at a later date, has inherited a Romanist vocabulary, especially in the field of public law: from constitution to jurisdiction (still used according to the medieval sense). 16 See, for example, Gero Dolezalek, ‘Argomenti dallo Ius Commune nel diritto moderno sudafricano’ (1993); for Andorra and San Marino, see Actes del I Simposi jurídic Principat d’Andorra/República de San Marino (1994), and Severino Caprioli, ‘Il diritto comune nello statuto Sammarinese vigente. Problemi e prospettive dinnanzi alla dichiara zione dei diritti’ (1992). It is my belief, as illustrated in the Introduction, that as a method (albeit not in terms of precise doctrines) ius commune as a frame has never disappeared: only the sources and legal ideology have changed.

the end of the middle ages 359

of the law; to its various levels and interwoven provisions, complicated by an accumulated and contradictory legislation: a real mélange of cen- tralism and independence, of laissez-faire and state authoritarianism, and so on. It is only after a long exploratory journey that we can properly understand why the comprehension and management of the system has always depended on jurists who, apart from anything else, have survived virtually unscathed, despite attempts to dislodge them during the Grande Révolution. Whether in a university post, or in some imposing office (or authority), or attached to a court like the Constitutional Court, the European Court of Justice, etc., the jurist still has tremendous power. The jurist is normally responsible for the smooth running of the system that he himself has partly created and made legitimate. His is an important function, which nevertheless embroils him in a kind of shifty authority; in some respects, even a certain irresponsibility, hidden, as he is at times, behind political power – sitting on commissions, in legal studios, etc., or in those bodies that are no longer formal public vehicles (the new ‘fiefs’). But he is still, and very much so, a regulator – as he was, mutatis mutandis, in the past. This – more than any particular doctrine – is perhaps the most conspicuous legacy of the many handed down to us from the late Italian middle ages. It is, moreover, a legacy that not only characterizes an entire professional category, but also has profound effects on the whole cultural and institutional environment itself. It is even more effective because it is not generally recognized by the majority of the ‘rest’ of the cultural world. From at least the time of the French Revolution, the jurists – to give them that title, because they could also be, and often were, politicians – opted to step out of the limelight, in order to free themselves of certain responsibilities.17 Such manoeuvring was subsequently facilitated by other intellectuals, when they simply placed the problem of law in society within parentheses – a snare and delusion that the humanists had guarded against. It is, for example, this subterranean but potent cultural presence that stim- ulates the excesses of legislation to which we have now become accustomed, along with interventions shorn of adequate cognitive premises, or of precise verifications. It is responsible for that infuriating formalism,18

17 On this, see the introductory points made by Tarello, Storia, and by Ferraioli, La cul tura, who is also the author of an important book on advocacy of civil liberties. 18 Raffaele Ajello has commented on this on several occasions, as, for example, in his Formalismo medievale e moderno (1990).

360 chapter eleven that love of general formulae; of ornate proclamations; of universal values, and purely bookish constructions, that prompt continual and ever more reforming interventions. The reforms may seem acute, even apparently well-studied, but they occasionally lack firm foundations, being shorn of the necessary applicative structures, and thus having unimaginably disas- trous consequences. The dysfunction between the ‘saying’ and the ‘doing’, between action promised to citizens and actions actually carried out, has a solid historical base in this ultra-refined and mature, but also self-referential and abstract juridical culture, that normally only engages in discussion among its own ranks, and through such isolation, becomes more powerful. Often ambiguous, because equally rich in principles and exceptions to the same principles, it ends up being a culture that from one point of view creates non-existent problems of a kind which is even historiographical, such as ‘Did the State exist in the medieval age?’, and from another point of view, creates a continual tension within the system, which is presented in an ideological, unreal, elusive, and incomprehensible manner. However, this does not cause any anxiety to those within the system looking out. Ius commune has accustomed the ‘expert’, the high priest educated in the universal texts of the university tradition, who speaks to the whole world because he is a scholar, to expect immediate recognition from those who listen to him – even though he himself is not always aware of what is happening around him. Let us be clear. All of these are more or less hypotheses. They are only superficial perceptions, external to the historical discourse pursued up to this point. But they are hypotheses that need to be raised, so that we become aware of the difficulties encountered when attempting to look back at the middle ages.19 Every day, almost obsessively, one remembers the rupture of the Grande Révolution, in order to condemn the medieval period and distance oneself from it, so as better to exorcize it. I suspect that it is rage that keeps that past alive in our midst. Perhaps for this reason, as for many other current problems, the real reformers should remember the adage given form by George Santayana, and with which we can finally end this study: Those who do not know how to remember the past are condemned to repeat it.

19 We should not be deceived by the apparent triumph of its folkloristic aspects: one might argue that this in itself confirms the difficulties we face when attempting a study of the period.

APPENDIX

AN ANNOTATED BIBLIOGRAPHY OF LEGAL HISTORY

Given the unitary characteristics of historical research, there seems little need to offer general guidelines here as to how to set about examining legal history. The same kinds of approach are necessary for every type of research in the field of medieval studies. However, those condensed into the few pages of my recently-published Guida ad una ricerca storico- istituzionale (Guidelines to the History of Institutions) can be particularly useful in the context of medieval Italian law.1 It is also worth adding a few other pointers that have been, or should be, considered in this specific context. These are laid out here, as if we had to give advice about the ex-novo formation of a collection of useful books for future research. Which are the most useful? And, how can these be related to the vast collection of possible options? We will begin with the most essential tools, those that help us to read the manuals themselves, and thus seek out the sources cited. The first step is to acquire copies of the two corpora iuris – one, in the vulgate version, with all of the annotations of the ordinary Glosses, and another in one of the modern critical editions.2 We should thus have within easy reach the 5 volumes of the Corpus iuris civilis (the three of the Digest, that of the Code, and in addition the miscellaneous Volumen that have been frequently mentioned in this book) and the 3 parts of the Corpus iuris canonici (the two great volumes of Gratian’s Decretum and the Gregorian Decretals, as well as the more slender register that contains the remaining collections of decretals) – in sixteenth- or proto-seventeenth-century3 versions, because up until that date there were numerous reprints, and it is

1 See Ascheri, Istituzioni medievali, a work which naturally does not aspire to be exhaustive. There are useful additions, for example in the Series on the Middle Ages (pp. 399–401), and reference should also be made to the valuable series devoted to Northern Italy under the auspices of Anna Maria Nada Patrone entitled Paravia Scriptorium, which includes Panero’s Schiavi servi villani, as well as the more general series edited by Giuliano Pinto and Giovanni Cherubini for Nardini at Fiesole, which includes Silvana Collodo, Società e istituzioni in area veneta. Itinerari di ricerca (secoli XII-XV) (1999). 2 See Corpus iuris canonici (1959) and Corpus iuris civilis (1962). 3 When it was published A Thesaurus accursianus (1606) was extremely useful for navigating around the Gloss, which is much rarer (even in libraries).

362 appendix not easy to acquire copies of the incunabula without spending exorbitant amounts of money. (Sixteenth-century editions can of course be tracked down in antiquarian bookshops.) The old editions are indispensable not only for coming to grips with the vulgate text, in other words that which the medieval jurists more or less had at their disposal, but also as a way of becoming acquainted with the ordinary Glosses, for which there are no critical overviews. They are such huge texts, and with such a rich manuscript tradition, that notwithstanding the amazing computing expertise of our own times, no-one has yet approached them in a systematic and comprehensive manner.4 Apart from anything else, these old texts also contain additions that were made when they themselves were being printed: notes that, in all probability, derived from the immense work on the sources carried out by humanist jurists. Thus, one can find tiny notes in the margins of the volumes of the Digest that refer to the Florentine manuscript that was made famous through the splendidly-printed Florentine edition compiled in 1553 by Lelio Torelli, the trusted minister of the extremely ambitious duke Cosimo de’ Medici.5 In the Codex, for its part, one comes across imperial constitutions that were unknown to the medieval jurists, but not to researchers in the early modern period, and which were very punctiliously made available in later printed editions. In the same way, in editions of the Volumen, one can find the Lombarda reproduced with a large amount of the Ordinary Gloss, as well as Henry VII’s Constitutiones, with annotations by Bartolus. Judging from the grandiloquent frontispieces proclaiming the particular circumstances leading to their creation, it would seem that the various editions were produced to serve very different functions. But, this was, in fact, a way of attracting individual collectors: in substance, they are all the same. Critical contributions made by humanists were normally confined to the margins, because it was deemed preferable that the texts themselves should remain in the form in which they had been read by medieval jurists. This was particularly the case for those renowned individuals whose memory needed to be preserved, or who were important enough to be consulted on other occasions. Similar procedures were adopted with the later interventions of the Roman Index Congregation which was set up at the time of the Council of Trent. Indeed in that case, it was ordered

4 So far, there are only a number of preliminary studies, such as that undertaken by Pietro Torelli concerning the Institutions; see Accursii Florentini Glossa ad Istitutiones Iustiniani imperatoris (liber I) (1939); for the very first pages of Gratian’s Decretum with the Ordinary Gloss see Gratian, The Treatise on Law (Decretum DD. 1–20) (1993). 5 See Ascheri, Tribunali, giuristi, pp. 66–68.

appendix 363

that certain annotations dealing, for example, with usury, which were regarded as heretical, should be cancelled out altogether.6 However, as of now, no exhaustive work on this mare magnum of editions yet exists, although many are being prepared.7 What is common to all the printed editions, and what is also important to realize, is that being composed out of movable type, these books represented a huge typo- graphical labour. Moreover, for the user, they were extremely useful pieces of equipment. It is also worth pointing out that if one includes the above- mentioned method of citing the texts of the corpora iuris, there were, in effect, three alphabetical indices. First, the index of the titoli (headings) of the different juridical texts under consideration, that allows one immediately to understand the arguments being considered; second, the index of the subject matters, with analytical references to different texts, including annotations that refer to particular problems; and third, the index of the initial words of the individual laws or canons, that allows us to pursue the citations traced in a particular ancient juridical text. It is a good idea to keep the critical editions of the two corpora close at hand. They not only contain different readings, with precious indications about the manuscripts underpinning such differences, but they also have a different numbering system from that in the ancient editions for the individual fragments, whether laws or canons. In fact, they correct the sequence of these. This numeration is essential, because as mentioned above, it is what is adopted in critical citations (for example, Dig.1.1.1), and is thus what we come across in modern books on legal history. This initial investment can involve considerable expense, but additional funds are then needed to acquire the fundamental manuals, a number of which we have already selected and listed.8 Having acquired these basic materials, one can begin to think of other sources. At this point, the selection becomes extremely difficult, because it depends a great deal on the type of research one wishes to undertake. We will draw attention,

6 On this point, and after Hans Erich Troje, Graeca leguntur (1971), see Savelli, ‘The Censoring’. 7 Whilst awaiting Douglas Osler’s census noted above, the catalogues of specialized libraries are worth consulting, as, for example, Jochen Otto, Bibliothek des Bundesgeri chtshofs. Buchbestand und Rechtserfahrung: Ein juristischer Reiseführer durch Bücherland schaften Europas in den Epochen gemeinsamen Rechts (1996), which offers an overall view of the main European legal literature of the Ancien Régime. 8 Cortese, Il diritto, is especially useful; and for an initial consideration of doctrine, laws and jurisprudence associated with particular problems, see also the vast amount of material presented by Antonio Pertile in Storia del diritto italiano dalla caduta dell’Impero romano alla codificazione (1966).

364 appendix therefore, to a number of other critical editions. For example, anyone who wishes to consider an institution associated with German legislation (Lombard, etc.) should obviously refer to the relative volumes of the Monumenta Germaniae Historica (MGH). From now on we will use the common abbreviations. For those more interested in canonistic matters (both legislative and doctrinal), there is the important MIC series published by the Biblioteca Apostolica Vaticana, initiated by the major expert of canon law in the twentieth century, Stephan Kuttner (cited in this book, for example in the sources, under Constitutiones Concilii quarti Latera nensis, and Extravagantes). A number of other editions of texts are obviously also available in the individual monographs of contemporary historians, who, in confronting a particular theme, have edited passages that are relevant for their own work. Here, there is an extremely wide choice, from classic tomes such as those of Cortese (La norma) and Maffei (La donazione), up to the more or less recent publications (and in no particular order) by Liotta, Padovani, Sarti, Speciale, Condorelli, Bellomo, Nardi, Ellera, Mancuso, Chiodi, Minnucci, and so on.9 These works are worth referring to for another very specific reason. Based in large part on manuscript sources, their collections of notes can prove useful in constructing a manuscript base of one’s own: a starting point for checking those texts already published, or from which to extract unpublished texts (annotations, treatises, critical frameworks, etc.) It is obviously essential to go back to the manuscript source, either in the original in the library in which the document is preserved, or on microfilm in one of the various specialized institutions. Amongst these, we could point to the Max- Planck-Institut for European legal history in Frankfurt (already cited several times in this book), the Robbins Collection of the University of California at Berkeley, and in Italy, the various Faculties of Jurisprudence at Milan, Rome, Catania, and so on. It is also worth pointing out that at Bologna work is proceeding on the digitalization to CD of the manuscripts of the College of Spain held by Bologna University, headed by Andrea Padovani, and under the auspices of Carla Faralli.10 We need to draw a number of distinctions in the context of the complete works of the medieval jurists. If one intends to concentrate on the age of the glossators, apart from the BIMA promoted on the occasion of the eighth-centenary celebrations of the founding of the University of

9 The legal historical literature based on manuscripts represents an approach rarely practised in Italy in the past; see Ascheri in Juristische Buchproduktion. 10 Reference has already been made to this catalogue: see I codici del Collegio.

appendix 365

Bologna in 1888, we should mention the Corpus glossatorum, that was put together in the 1960s, thanks to an anastatic reprint at Turin by the Bottega d’Erasmo (no longer in existence), and with technical help from the law school at Turin. There is no doubt that this latter work contains a fundamental series of works by medieval jurists, and is thus of considerable use. Other works have been reprinted by Forni di Bologna, following their selection for the publication of works by Domenico Maffei, Ennio Cortese and Guido Rossi. Once the publishing house Bottega d’Erasmo ceased to exist, several other bodies, including Il Cigno – Galileo Galilei in Rome, presided over by Manlio Bellomo, assumed responsibility for a number of other reprints, amongst them, a fundamental volume of the complete works of Bartolus published by Diplovatatius.11 Other works have been accepted for publication in German-speaking areas – the only area showing a particular interest in such matters at the present time – where we can also track down the important works of Durand and Iohannes Andreae. In contrast to the other two series referred to above, these German initiatives have thus enthusiastically confronted the age of the commentators, a period during which juridical literature increased exponentially. Moreover, a useful selection of such works was made recently, with further work carried forward to turn it into an extremely valuable CD-Rom. Thanks to the preliminary work done on this by the curators (together with Barbara Bellomo), we can now immediately trace passages associated with the writings of the various jurists included, starting with the only critical citation of that time of the annotated Corpus.12 Apart from the reprinted works, how can one acquire a comprehensive and uniform understanding (and thus an initial orientation within the field) of the overwhelming production of these four centuries? One method is through the very detailed German research project Handbuch, edited by Helmut Coing (HQLERG) – unfortunately not yet translated into other languages. This publication serves as a particularly useful initial guide to the juridical literature of the late middle ages for both civil and

11 See Ascheri, Saggi. 12 Work is also being undertaken on microfilms: the work of the British Library in London, which has produced Incunabula (The Printing Revolution in Europe, 1455–1500) is particularly important; Units 34–39 dedicated to law (with an Introduction and selection by Douglas Osler) deal with the principal texts concerning ius commune, as well as codes such as the Siete Partidas of Castille, with accompanying comments. Thereafter, the aforementioned CD produced by Linda Fowler is useful for tracking down passages from collections of canon law pre-dating Gratian.

366 appendix canon law, because it offers summaries, even though these are no longer being brought up to date.13 This avoids having to refer to the larger series of monographs, more time-consuming for the reader (although these are of course very useful) published in Italy by Giuffrè and edited by an international group of scholars, who set about re-constructing the Ius Romanum Medii Aevi, the aim of the project being to emulate Savigny’s great undertaking of a century earlier. Unfortunately, this ambitious project, dubbed by those working on it, ‘the new Savigny’, suffered some difficulties. As a result, material concerning the Italian jurists that should have appeared in later issues was never in fact published – unsurprisingly, perhaps, given the complexity of that particular field of enquiry. Students of canon law will, however, be greatly interested in the History of Medieval Canon Law, directed by Ludwig Hartmann and Kenneth Pennington, a long-standing project undertaken by The Catholic University Press of Washington. The initial volumes, the indexes of which are already available, conclude with the Gregorian Age. In the meantime, reference should also be made to the ever-useful Dictionnaire de droit canonique, and failing that to manuals such as those by Gaudemet (Storia), and the less dense Medieval Canon Law by Brundage, and García y García’s Historia. It is, in fact, advisable, both for linguistic reasons, and according to the extent to which individual works have been brought up to date, to refer to the summaries of individual chapters on the history of juridical literature presented at conferences in Barcelona presided over by Aquilino Iglesia Ferreirós. The El Dret comú i Catalunya series directed by Ferreirós and launched following the 1998 symposium also contains contributions concerning the literature covering various historical matters. In this way we will come across the names of many jurists whose works can throw light on our own researches. But what links can be drawn between them? An initial and complementary answer, as opposed to those that can eventually be found in the works mentioned above, lies in Diplovatatius’s precious work, to which we have already drawn attention (see, Diplovatatii Liber in the Sources). Diplovatatius arranges the jurists according to family relationships, in clusters, noting how they were referred to by their students. Usually, this was done with the affection and admiration that they themselves coveted; but at times unacknowledged

13 Except, that is, for law in Wolf’s Gesetzgebung; the gap has been filled in Germany, in so far as the glossators are concerned, through the efforts of Lange, Römisches Recht.

appendix 367

‘borrowings’ from earlier works were pointed out in malicious detail. This work is extremely useful for the fourteenth and fifteenth centuries, not least because the editor of the work, himself passionately interested in manuscripts, and thus fascinated by the littera Florentina,14 has indicated other editions of those works that Diplovatatius was recording for each of his individual authors. That said, when confronting the necessities and opportunities of the book’s much-discussed reception in Germany, this erudite individual from Corfu could obviously not know what the inexhaustible sixteenth-century typography – particularly active in this respect in Venice, Lyons, and subsequently, especially in the second half of the century, in Cologne, Frankfurt and Basle – would subsequently discover. The Amphytheatrum legale, a work prepared by a jurist of ius commune, Agostino Fontana, a late seventeenth-century jurist from Parma (see Sources)15 is always useful when attempting an initial survey of the printed sources. In keeping with the ‘theatrical’ perspectives of the time, Fontana presented a series of titles of all the juridical works he had traced, including two very useful indexes of authors and subject matter. The literature covering ius commune was vast, as even the jurists themselves complained, but, even so, they found ways of orientating themselves around it. Between Diplovatatius and Agostino Fontana there were a whole host of authors, the most important of which have naturally already been referred to – with a host of accompanying chronological details – in such classic studies as Calasso’s Medioevo. But there are always so many other authors to choose from. The question is, which works would be good to have, in reprinted version or in the original, once one has obtained the fundamental studies listed above? For the civil lawyer, one should at least get hold of Azo’s Summa Codicis and the Opera omnia by Bartolus of Sassoferrato and, if possible, also that of Baldus de Ubaldis. For the student of canon law, priority should be given to Iohannes Andreae, and after that, to Nicolaus de’ Tudeschis. On the other hand, for trial proceedings under Roman-canon law, it is well worth obtaining the detailed Speculum iudiciale by Guillaume

14 See Ascheri, Saggi, p. 40. 15 For the legal editions in Italian, which only deal with medieval matters in exceptional situations, there is now a very extensive CD, containing the fully-indexed material of several published volumes: namely the Bibliografia delle edizioni giuridiche antiche in lingua italiana (1999).

368 appendix

Durand. A number of more common books, because perhaps more widely circulated during the early modern age, can also provide useful indications about individual themes. For example, Daoyz’s repertory is useful for the Gloss, while Domenico Toschi (see Tuschus, Practicae conclusiones in the Sources) carried out extensive research within consilia literature. For sources covering local law,16 references have already been made at different points to a number of recent studies concerning statutes. We can, however, add here that the Mittelalterliche Gesetzbücher Europäischer Länder in Faksimiledruckten series, 8 volumes of which had already been completed when this book initially went to press (amongst them the very precious and ancient editions of the Liber Augustalis and the Decreta Sabaudiae), although the work has unfortunately been suspended. It is now a case of seeking out the various publications dealing with source material, other than those proposed by individual institutions, such as the CISAME and the ISIME, and by relatively new institutions such as the CESN (which has a series on sources and individual studies directed by M. Caravale, E. Cuozzo and O. Zecchino, currently at number 6), as well as the various series dealing specifically with juridical history, which merit particularly careful study. For example: Ius Nostrum (La Sapienza University, Rome); Biblioteca of the RSDI; the proceedings of the conferences of the Società italiana di Storia del diritto;17 the Libri di Erice (University of Catania); Ius Commune; Sonderhefte (Max-Planck-Institut für europäische Rechtsgeschichte, Frankfurt-am-Main). The Monumenta Iuris Canonici (Biblioteca Apostolica Vaticana), as well as publishing the series of editions of individual texts, has organized a number of four- yearly conferences around such material, giving rise to several important volumes, not only about canon law: the Proceedings (see Abbreviatons). One should also remember the Orbis Academicus, directed by Domenico Maffei, and the Archivio per la storia del diritto medioevale e moderno, directed by Filippo Liotta. The specialist series produced under the auspices of the Consiglio Nazionale del Notariato has also resulted in a number of important and useful volumes. But before assuming the arduous task of attempting to read all this literature, which, above all, is not always easy to come by, it would be wise to give some thought to the point of the research one is undertaking, or, at

16 As demonstrataed, these are occasionally translated into English. For an useful CD on statutory law, see Iura propria (1999), as well as the annual reports concerning the achievements of a group of scholars working under Hagen Keller in Frühmittelalterliche Studien (from volume 22, 1988). 17 One example is the volume entitled I rapporti contrattuali.

appendix 369

the very least to consider some of the current historiographical reflections on the particular theme under consideration, in works that are more easily accessible. Reference has already been made to the French dictionary of canon law, a work that when a scholar is attempting to orientate himself, can be usefully consulted alongside the Enciclopedia cattolica. For civil law, however, the Enciclopedia del diritto, brought up to date with a number of extra volumes, and published by Giuffrè, in Milan, is an indispensable source of reference, along with the huge tomes of the Nuovissimo Digesto (Utet, Turin). In recent years this has included an attempt to publish a series of encyclopaedic volumes covering very broad areas (Il Digesto delle discipline pubblicistiche, privatistiche, etc.), and naturally an attempt to bring each of the various sections up-to-date. All this would be good as a first step. Taking a bigger leap into deeper waters, it would then be a good idea to consult the collection of studies written by specialist authors (we have, for example, referred to the work of Fransen, Kuttner, Gouron, Maffei: see the Bibliography) which in terms of the themes discussed in this book, have been reprinted and assembled in the Collected Studies by Variorum Reprints (Aldershot, GB), or else in the Bibliotheca eruditorum of the German Keip Verlag (Goldbach18). The individual catalogues of these publishers also provide extremely interesting insights. However, if one wants to acquaint oneself with the most up-to-date bibliography on ius commune,19 one will need a considerable amount of patience in order to plough through the reviews and bibliographical references in specialist magazines, which are listed here under the initials normally adopted for them (see Abbreviations). For canon law, see BMCL (publication resumed with volume 22 in 1998), and the canonist series (kan. Abteilung) of ZRG and SG; for ius commune in general, one should refer to the Italian RSDI, RIDC, SDHI, and to one or two contributions in SS and in QF, that can occasionally be tracked down in Materiali per una storia della cultura giuridica and in Le carte e la storia. The RHDFE in France should also be consulted, whereas in Germany there are the IC, ZRG and RJ; and in Belgium and Holland, the TRG. In Spain, apart from the general periodical Anuario de historia del derecho español, it is worth

18 Apart from those already mentioned (Maffei, Fransen, Sottili, Weimar) one should also refer to Gene Brucker, Renaissance Florence: Society, Culture, and Religion (1997), Joseph Fleckenstein, Vom Rittertum im Mittelalter. Perspektiven und Probleme (1999), and Jean-Louis Gazzaniga, L’Eglise de France a la fin du Moyen Age. Pouvoirs et institutions (1995). See also Cortese, Scritti (1999). 19 One useful CD that is now available and which contains material recommended by RIDC is Orientamenti bibliografici 1990–1998 (1999).

370 appendix consulting Initium (Revista Catalana d’història del Dret “Jaume de Montjuïc”, Barcelona), Cuadernos de historia del derecho (Univ. Complutense, Madrid) and Glossae (Murcia), as well as the Revista española de derecho canonico which from 1988 onwards began publishing a useful bibliography edited by A. García y García. We can also find useful material in the Austrian Zeitschrift für Neuere Rechtsgeschichte, and the American Law and History Review, now published by the University of Illinois Press, as well as the English Journal of Legal History and Parliaments, Estates & Representations.20 Apart from these, there are the Annuarium historiae conciliorum, the Annali di storia delle Università italiane, the Quaderni per la storia dell’Università di Padova and, for all of the above, even Fundamina, a South-African periodical.21 Several internet sites are also useful, both for the publication of sources, and for bibliographies and other points of reference.22 We will first list those that are Italian, starting with one concerned with ius comune that is monitored by Mario Montorzi (University of Pisa) that includes references to forthcoming works, bibliographies, very useful links, etc. In a word, the most obvious point of reference on the internet for any historian of Italian law is www.idr.unipi.it/iura-communia/. Another site worth mentioning is that administered by the Istituto di storia del diritto Italiano of the Università Statale of Milan (under Patrizia Anselmi) that discusses/focuses on microfilms of manuscripts, antique books, statutes, etc.: historia.unimi.it/istituto/bibliot.htm. For statutes, one should visit a site run by the University of Bologna, with various contributions from outsiders, administered by Maria Venticelli and Rolando Dondarini: dds.unibo.it/statute. For guidance in using information technology (IT) for medieval studies, see storia.unifi.it/_storinforma/Ws/workshops.htm,

20 This periodical approaches problems associated with the history of the assemblies and estates in a vertical way, unobstructed by chronology; it is published by the Inter national Commission for the History of Representative and Parliamentary Institutions, which organizes conferences dealing with parliamentary history (the papers of the most recent one in Italy – the forty-third – which was held at the University of Camerino, was published under the title Contributi alla storia parlamentare europea (secoli XIII-XX, 1996). See http://www.ichrpi.org/. 21 The University of Cape Town has also published an Inaugural Lecture which is of particular interest to us: Gero Dolezalek, ‘Stare decisis’: Persuasive Force of Precedent and Old Authority (12th–20th Century) (1989). 22 There is a survey of these, as well as a consideration of the problems of cataloguing antique law books, in Rare Law Books and the Language of Catalogues (1999). Those interested in downloading these should access www.copernic.com.

appendix 371

which is under the auspices of the University of Florence and administered by Andrea Zorzi. For a bibliography of medieval periodicals drawn up by various colleges in Turin, see ha/9000.cisi.unito.it/wf/DIPARTIMEN/ Storia1/Home-page/CRISM/BBCS. Other interesting sites include bncf .firenze. sbn.it. For humanist studies in the CNR library: -soi.cnr.it/biblos, which offersa first survey of the riches of the BN in Florence, Turning to foreign sites, the extremely rich library of the Max-Planck-Institut in Frankfurt, cited several times in this book has the websiteopac.mpier.uni -frankfurt.de/; www:maxwell.syr.edu/MAXPAGES/faculty/pennigk is the site of Kenneth Pennington, who has placed all his work online including, amongst others things, Joh. Teutonicus on the Complatio III, lib. III-V, after having published books I-II in MIC, along with his own bibliography and various other announcements. Online digitalized codes include those set up by Berkeley and Columbia University: sunsite.berkeley.edu/Scriptorium. For Spanish legal history, visit ucm.es/info/hisdere (the last element should be substituted with ‘byblas’ for the bibliograph). Witchcraft.psmedia.com deals with books on witchcraft in Europe and America from the series of Rare books Online, and Medioit.cjb.net is a general discussion area for specialists but does not deal with medieval problems. Thomas Rüfner of the University of Tübingen has begun to prepare a huge edition of the Corpus iuris civilis and of the Accursian Gloss in anticipation of a European-wide ius commune, emphasising that he is mirroring the work of the glossators with the aid of the computer: from the text to the gloss, and from this to the texts: jura.uni-tueb.de/Rechtsgeschichte/Ius.Romanum/english.html. bibliofind.com deals with the huge American antiquarian market. All this, then, for virtual researches; but this can never substitute the excitement and rewards of personal contact with the material. We will therefore close indicating out some of the periodic initiatives in the field of ius commune.

• International School of ius commune (Centro ‘Ettore Maiorana’” at Erice, under M. Bellomo) ‘Jornadas de ius commune’, associated with the University of La Coruña (Casa do Francés, A Zapateira, s/n., 15071 – A Coruna) • Summer study weeks at the Max-Planck-Institut of Frankfurt am Main (Hausener Weg 120, Frankfurt am Main) • Europäisches Forum Junger Rechtshistorikerinnen und Rechtshistoriker: organized at Zurich by Michele Luminati, Dino Schauer and Nick Linder

372 appendix

for the Verein junger Zürcher RechtshistorikerInnen c/o Forschungsstelle für Rechtsgeschichte, Freierstrasse 36, CH – 8032 Zürich • Europäisches Forum Junger Rechtshistoriker/innen: [email protected] leipzig.de; [email protected]. And, at the University of Lipsia, Eva Schumann, Frank Theisen, Adrian Schmidt-Recla organize conferences on “Ius Commune Propriumque-Sachsen im Spiegel des Rechts”.

New Useful Sites (up to 2013).

Periodicals: Clio & Themis, http://www.cliothemis.com/, Historia et ius, http://www.historiaetius.eu/ Sites with possible Italian contributions: Association des Historiens des Facultés de Droit ; Association Française Histoire de la Pensée politique ; Association Française pour l’Histoire de la Justice ; Associazione Internazionale per la Ricerca Storico- Giuridica e Comparatistica (ARISTEC) ; Bibli ographie d’Histoire du droit ; Comité d’Histoire Parlementaire et Politique ; Donne e diritti. Osservatorio di storiografia giuridica ; European Society for Compar ative Legal History ; Histoire du Droit - Portail numérique ; History of Criminal Justice ; Iura Communia ; Legal Links Maurizio Lupoi ; Links Elio Tavilla ; Links Michel Bottin ; Links Otto Vervaart ; Nomôdos ; Parlement de Paris XVIe - XVIIIe s. ; Rechtsgeschiedenis Blog ; Reti medievali ; Società di Storia del diritto ; Société Histoire du Droit ; Société Histoire du Droit des pays bourguignons ; Storia del diritto italiano ; Storia del diritto medievale e moderno” http://www.storiadeldiritto.org/; Storia giuridica francese - Histoire juridique française

SOURCES

A Grammar of Signs. Bartolo da Sassoferrato’s Tract on Insignia and Coats of Arms, eds. Osvaldo Cavallar, Susan Degenring and Julius Kirshner (Berkeley, Studies in Comparative Legal History, Robbins Collection 1994). A pane e acqua. Peccati e penitenze nel Medioevo, eds. Giorgio Picasso-Giannino Piana- Giuseppe Motta (Novara, Europìa, 1986). Accursii Florentini Glossa ad Institutiones Iustiniani imperatoris (liber I), ed. Pietro Torelli (Bologna, 1939). Adhemar de Chabannes, Epistola in apostolatu S. Martialis, in PL 141 (Paris, 1853, coll. 87–112). “Adnotationes Codicum domini Justiniani (Summa Perusina)”, ed. Federico Patetta, Bullettino dell’Istituto di diritto Romano 12 (1900), 1–351. Alberici de Rosate Dictionarium iuris tam civilis quam canonici (Venice, 1573; repr. Turin, 1971). Annotated Justinian Code, ed. Fred H. Blume, rev. Timothy Kearley (University of Wyoming, George William Hoper Law Library, online, 2010). Anschütz, August, Die Lombarda-Commentare des Ariprand und Albertus (Heidelberg, 1855). Anselminus de Orto super contractibus emphyteosis et precarii et libelli atque investiturae, ed. Rudolf Jacobi (Weimar, 1854). Antiqua ducum Mediolani decreta (Milan, 1654). Antonio da Cannara, De potestate pape supra concilium generale contra errores Basiliensium, ed. Thomas Prügl (Paderborn, Veröffentlichungen des Grabmann-Instituts 41, 1996). Arangio, Ruiz and Vincenzo-Guarino, Antonio, Breviarium iuris Romani, VII ed. (Milan, Giuffrè, 1989). Archi, Gian and Gualberto-Colombo, Anna Maria, Novellae, Pars Latina, Legum Iustiniani Imperatoris vocabularium, voll. I-XI (Milan, Cisalpino–La Goliardica, 1977). Argumenta atque contraria ad Lombardam in auditorio Vaccellae collecta, ed. Enrico Besta, in BIMAe, III, pp. 335–350. Arias, Bonet and Juan Antonio, Lo “Codi” y su repercussión en España. Los manuscritos 6416 y 10.816 de la Biblioteca Nacional (Madrid, Fundación Juan March, 1982). Arti e mestieri. Immagini e dettagli dal mondo del lavoro cittadino. Catalogo della mostra (Lucca, Archivio di Stato di Lucca, 1996). Ascheri, Mario, “Siena nel 1208, immagini dalla più antica legge conservata,” in Antica legislazione, pp. 41–66. Atti del podestà di Lio Mazor, ed. Mamhoud Salem Elsheikh (Venice, Memorie 86, Istituto veneto di scienze, lettere ed arti, 1999). Azonis Summa Codicis (Lugduni, 1557). Bartoli de Saxoferrato Opera Omnia, ed. Thomas Diplovatatius (Venice, 1520–1530; repr. Rome, il Cigno-Galileo Galilei, 1996). Bartolus on the Conflict of Laws, ed. Joseph H. Beale (Clark, New Jersey, The Lawbook Exchange, 2009). Basilicorum libri LX. Series A. Textus, I-VIII; Series B. Scholia, I-X, ed. Hane J. Scheltema, Daniel Holwerda, and Nicolaas van der Wal (Groningen, Wolters, 1953–1988). Bellocchi, Ugo-Marzi Giovanni, Matilde e Canossa. Il poema di Donizone (Modena, Reggio Emilia, Deputazione di storia patria per le antiche provincie modenesi, 1997). Bernardi Sancti Opera, III, Tractatus et opuscula, ed. Jean Leclercq–Henri Rochais (Rome, 1963). Bertaldus, Iacobus, Splendor Venetiarum civitatis consuetudinum, ed. Francesco Schupfer, BIMAe III, pp. 99–153).

374 sources

Bezemer, Cornelis Huibert, Les répétitions de Jacques de Révigny. Recherches sur la répé- tition comme forme d’enseignement juridique et comme genre littéraire, suivies d’un inventaire de textes (Leiden, Rechtshistorische Studies 13, 1987). Bibliografia delle edizioni giuridiche antiche in lingua italiana. Testi statutari e dottrinali dal 1470 al 1800, ed. Fiammetta Giovannelli Onida, with tecnical help by Elisabetta Marinai- Manuela Sassi (Naples, CD Rom 3, Istituto per la documentazione giuridica del CNR, Esi, 1999). Bibliografia statutaria Italiana 1985–1995, Biblioteca del Senato della Repubblica and others (Rome, Senato della Repubblica, 1998). Bibliotheca iuridica Medii Aevi (BIMAe), Scripta Anedocta Glossatorum, eds. Augusto Gaudenzi–Giovanni Battista Palmieri. (Bologna, I 1913–14; II ed., repr. Torino, Bottega d’Erasmo, 1962, II 1892, III 1901). Bonini, Roberto, Corso di diritto romano. Il diritto delle persone nelle Istituzioni di Giustiniano, i titoli III-X (con testi collegati) (Rimini, Maggioli, 1984). Bracton on the Laws and Customs of England, ed. George E. Woodbine, rev., trans. and notes by Samuel E. Thorne, I-IV (Cambridge Massachussetts, University Press, 1968–1977). Brizio, Elena, “Una indicizzazione ‘automatica’ dei consilia di Bartolo da Sassoferrato,” Studi Senesi s. III 40 (1991), 101–169, 283–349. Bryson, William H., Dictionary of Sigla and Abbreviations to and in Law Books before 1607 (Charlottesville, University Press of Virginia, 1975). Bucine e la val d’Ambra nel Dugento. Gli ordini dei conti Guidi, ed. Mario Ascheri (Siena, Documenti di storia 11, Il Leccio, 1995). Burchardi et Cuonradi Urspergensium Chronicon, eds. Otto Abeland Ludwig Weiland (Hannover, Scriptores, XXIII, MGH, 1874). Burchardi Wormatensis Decretum in PL 140, coll. 537–1090). Caccialupi, Johannes Baptista, Modus studendi in utroque iure, Introd., trans. and notes by Sergio Di Noto Marrella (Parma, Università di Parma, Facoltà di Giurisprudenza, Casanova, 1995). Capitula Regni Siciliae cura eiusdem regni deputatorum, I-II (Panormi 1741–43), repr. ed. Andrea Romano (Messina-Soveria Mannelli, Università di Messina, MIS VI 1/2, Rubettino, 1999). Capitula Regni utriusque Siciliae, Ritus Magnae Curiae Vicariae et pragmaticae, commentariis illustrata, II, sumptibus Antonii Cervonii (Neapoli, 1773; repr. ed. Andrea Romano, Messina-Soveria Mannelli, MIS III.2, Università di Messina, Rubettino, 1999). Caprioli, Severino, “De “modis arguendi” scripta rariora, 1. Dini opusculum,” SS s. III 12 (1963), 30–56. Caprioli, Severino, “De “modis arguendi” scripta rariora, 5. Iohannis Baptistae de Caccialupis opusculum,” SS s. III 14 (1965), 355–414. Castellani, Arrigo, I più antichi testi italiani. Edizione e commento (Bologna, Storia della lingua italiana e dialettologia 9, Patron, 1976). Catalogo della raccolta di statuti…, I-VI (‘A-R’), ed. Corrado Chelazzi (Firenze, La Nuova Italia, 1943–1963, repr. 1978–1991); VII (‘S’), eds. Giuseppe Pierangeli and Sandro Bulgarelli (Firenze, La Nuova Italia, 1990); VIII (‘T-U’), ed. Sandro Bulgarelli, Alessandra Casamassima and Giuseppe Pierangeli (Florence, Olschki, 1999). Catalogue of Books Printed in the Continent of Europe from the Beginning of Printing to 1600 in the Library of the Max-Planck-Institut für europäische Rechtsgechichte, Frankfurt am Main, compiled by Doulgas Osler (Frankfurt am Main, IC Sonderhefte 130–131, Klostermann, 2000). Cochrane, Eric and Kirshner, Julius, The Renaissance (Chicago-London, Readings in Western Civilization 5, The University of Chicago Press, 1986). Codex Diplomaticus Longobardiae, ed. Giulio Porro Lambertenghi (Turin, Monumenta historiae patriae, 1873). Codex Justinianus, trans. and ed. S.P. Scott (Cincinnati, 1932, repr. New York, 1973). Codice diplomatico della Repubblica di Genova, ed. Cesare Imperiale di Sant’Angelo, I (Rome, Fonti per la storia d’Italia 77, Isime, 1936).

sources 375

Collectio Dionysio-Hadriana seu Codex canonum, ed. Pierre Pithou (Parisiis, 1609). Collection des lois maritimes antérieures au XVIII siècle, ed. Jean Marie Pardessus, I-VI (Paris, 1828–1845, repr. Turin, Bottega d’Erasmo, 1968). Colli, Gaetano, Per una bibliografia dei trattati giuridici publicati nel XVI secolo (Milan, Ius Nostrum 20, Giuffrè, 1994). Colliva, Paolo, Il cardinale Albornoz, lo Stato della Chiesa, le “constitutiones Aegidianae” (1353–1357), con in appendice il testo volgare delle Costituzioni di Fano dal ms. Vat. Lat. 3939 (Bolonia, Studia Albornotiana 32, Publicaciones del Real Colegio de España, 1977). Colorni, Vittore, “Le tre leggi perdute di Roncaglia (1158) ritrovate in un manoscritto parigino (Bibl. Nat. Cod. Lat. 4677)”, in Scritti in memoria di Antonino Giuffrè, I, pp. 111–170 (Milan, Giuffrè, 1967). Conciliorum Oecumenicorum Decreta, eds. Joseph Alberigo, Joseph A. Dossetti, Perikles, Petros Joannou, Claudius Leonardi and Paulus Prodi, cons. Hubert Jedin IV ed (Bologna, Istituto per le scienze religiose, 1991). Constitutiones Concilii quarti Lateranensis, una cum commentariis glossatorum, ed. Antonio García y García (Vatican City, MIC, A 2, Biblioteca Apostolica Vaticana, 1981). Constitutiones et acta publica imperatorum et regum, I-VI 2 (years 911–1331), VIII-XI (years 1345–1356) (Hannover, Legum sectio IV, MGH, 1893–1992). Constitutiones Regni Siciliae, ed. Andrea Romano (Messina, MIS I, Sicania, 1992). Constitutiones Spoletani Ducatus a Petro de Castaneto edite (a. 1333), ed. Tillman Schmidt (Rome, Fonti per la storia d’Italia 113, ISIME, 1990). Constitutionum Regni Siciliarum libri III, sumpt. Antonii Cervonii; repr. ed. Andrea Romano (Messina-Soveria Mannelli, MIS III/1, Università di Messina-Rubbettino, 1999). Consuetudines civitatis Amalfie, eds. Andrea de Leone and Alessandro Piccirillo (Salerno, Ente Provinciale per il Turismo, 1975). Consuetudini e statuti reggiani del secolo XIII, I, ed. Aldo Cerlini (Milan, 1933). Corpo del diritto civile, I-VI, new ed. Francesco Foramiti, following the Parisian 1830; first Italian version (Naples, 1843–46). Corpo del diritto, I-X, ed. Giovanni Vignali (Naples, 1856–62). Corpus iuris canonici, ed. Lipsiensis secunda instruxit Aemil Friedberg, I, Decretum magi stri Gratiani; II, Decretalium collectiones (Leipzig 1879, repr. Graz, Akademische Druck, 1959). Corpus iuris civilis, ed. maior, Digesta by Theodor Mommsen with important Praefatio, pp. v-lxxx (Berolini, Weidmannsche, 1870); Codex ed. Paul Krüger (Berolini, Weidma nnsche, 1877, repr (Berlin, Weidmannsche 1962–63; ed. minor 1872–95, repr. XVI, apud Weidmannos, Berolini 1954). Coste, Jean, Boniface VIII en procès. Articles d’accusation et dépositions des témoins (1303– 1311), ed., introductions and notes (Rome, Pubblicazioni Fondazione Camillo Caetani, Studi e documenti d’archivio 5, L’Erma, 1995). Costituzioni della Patria del Friuli, Italian ed. Pietro Capretto (1484) and the Latin one of year 1565; ed. Anna Gobessi and Ermanno Orlando, with Introduction by Giorgio Zordan (Rome, Corpus statutario delle Venezie 14, Viella, 1998). Crescenzi, Victor, La glossa di Poppi alle Istituzioni di Giustiniano (Rome, Fonti per la storia d’Italia 114, Isime, 1990). Daoyz, Stephanus, Iuris canonici summa seu index copiosus, I-II (Milan, 1745). Daoyz, Stephanus, Iuris civilis summa seu index copiosus, I-II (Milan, 1742). Decretales ineditae saeculi XII, ed. Stanley Chodorow and Charles Duggan (Vatican City, Biblioteca Apostolica Vaticana, 1982). Decretales pseudo-Isidorianae, ed. Paul Hinschius (Lipsiae, 1863, repr. Scientia, Aalen, 1963). Die Konstitutionen Friedrichs II. für das Königreich Sizilien, ed. Wolfgang Stürner (Hannover, Constitutiones et acta publica II, Supplementum, MGH-Hahn, 1996). Die Konstitutionen Friedrichs II. von Hohenstaufen für sein Königreich Sizilien, ed. Hermann Conrad, Thea Von der Lieck-Buyken and Wolfgang Wagner II (Köln-Wien, Studien und

376 sources

Quellen zur Welt Kaiser Friedrichs II., Böhlau, 1973; V.1 with Greek text, ed. Thea von der Lieck-Buyken, ibid., 1978). Die Konstitutionen Friedriches II. von Hohenstaufen für sein Königreich Sizilien. Ergänzungsband, I, ed. Thea von der Lieck-Buyken (Köln-Wien, 1978). Die Lombarda-Commentare des Ariprand und Albertus. Ein Beitrag zur Geschichte des germanischen Rechts im zwölften Jahrhundert, ed. August Anschütz (Heidelberg, 1855). Diplovatatii Th. Liber de claris iuris consultis, Pars posterior, curant. Fritz Schulz, Hermann Kantorowicz and Giuseppe Rabotti (Rome, SG 10, 1968). Dissensiones dominorum sive controversiae veterum iuris romani interpretes qui Glossatores vocantur, ed. Gustav Haenel (Lipsiae, 1834, repr. Aalen, Scientia, 1964). Distinctiones, Collectio Senensis, ed. Giovan Battista Palmieri, BIMAe, II, pp. 139–180. Diversorum patrum sententiae sive collectio in LXXIV titulos digesta, ed. J. Gilchrist (Vatican City, MIC, Biblioteca Apostolica Vaticana, 1973). Dolezalek, Gero, Verzeichnis der Handschriften zum römischen Recht bis 1600, I-IV (Frankfurt am Main, Max-Planck-Institut für europäische Rechtsgeschichte, 1972). Ecloga Basilicorum, ed. Ludwig Burgmann (Frankfurt am Main, Forschungen zur byzantinischen Rechtsgeschichte 15, Max-Planck-Institut für europäische Rechtsgeschichte, 1988). Ecloga. Das Gesetzbuch Leons III. und Konstantinos’ V. (with German translation), ed. Ludwig Burgmann (Frankfurt am Main, Forschungen zur byzantinischen Rechtsge schichte 10, Max-Planck-Institut für europäische Rechtsgeschichte, 1983). Extravagantes Iohannis XXII, ed. Jacqueline Tarrant (Vatican City, MIC, B 6, Biblioteca Apostolica Vaticana, 1983). Eymerich, Nicolas, Manuale dell’inquisitore A.D. 1376, ed. Rino Cammilleri (Casale Monferrato, Piemme, 1998; the Latin text of his Directorium is available at racerel.library .cornell.edu.) Fitting, Hermann, Lo Codi in der lateinischer Übersetzung des Richardus Pisanus (Halle, 1906, repr (Aalen, Scientia, 1968)). Fitting, Hermann, Juristische Schriften des früheren Mittelalter (Halle, 1876, repr (Aalen, Scientia, 1965)). Fitting, Hermann, Summa Codicis des Irnerius mit einer Einleitung (Berlin, 1894, repr (Frankfurt, 1971)). Fontana, Agostino, Amphitheatrum legale, Partes I-VII (Parmae, 1687–1694, repr. Turin, 1961). Fontes iuris Italici Medii Aevi in usum academicum, ed. Guido Padelletti, I (Turin, 1877). Fowler-Magerl, Linda, Clavis Canonum, Selected Canon Law Collections before 1140 (Hannover, Hilfsmittel 21, MGH-Hahnsche, 2005). Gérard, Fransen, “Les textes ajoutés au Décret de Burchard de Worms dans deux manuscrits toscans,” SS 100, Supplemento II (1988), 537–552. Gandinus, Albertus, Quaestiones statutorum, ed. Arrigo Solmi, BIMAe, III, pp. 157–214. Gandinus, Albertus, Tractatus de maleficiis, ed. Hermann Kantorowicz in his Albertus Gandinus und das Strafrecht der Scholastik, II (Berlin, 1926). Gaudenzi, Augusto, Un’antica compilazione di diritto romano e visigoto con alcuni frammenti delle leggi di Eurico tratta da un manoscritto della biblioteca di Holkham (Bologna, 1886). Gerbert D’Aurillac, Correspondence, ed. Pierre Riché–Jean-Pierre Callu, I (Paris, Les Belles Lettres, 1993). Gli statuti dei Comuni e delle corporazioni in Italia nei secoli XIII-XVI, ed. Sandro Bulgarelli (Rome, Biblioteca del Senato della Repubblica–De Luca, 1995). Gli statuti di Albenga del 1288, ed. Josepha Costa Restagno, with Introduction by Vito Piergiovanni (Bordighera, Collana storico-archeologica della Liguria occidentale 27, Istituto internazionale di studi liguri, 1995). Gli statuti viterbesi del MCCXXXVII-XXXVIII, MCCLIII e MCCCLVI, ed. Pietro Egidi, in Statuti della Provincia Romana, I, eds. Francesco Tomassetti, Vincenzo Federici and Pietro Egidi, pp. 303–359 (Rome, Fonti per la storia d’Italia 48, 1910).

sources 377

Glosse preaccursiane alle Istituzioni. Strato azzoniano, Libro primo, eds. Severino Caprioli, Victor Crescenzi, Giovanni Diurni, Paolo Mari and Piergiorgio Peruzzi (Rome, Isime, 1984). Gratian, The Treatise on Law (Decretum DD. 1–20), trans. by Augustine Thompson O.P. with the Ordinary Gloss trans. by James Gordley, and Introduction by Katherine Christiansen (Washington, Studies in Medieval and Early Modern Canon Law 2, Catholic Univ. Press, 1993). Gregorii Papae VII Registrum epistolarum, ed. Erich Caspar (Munich, Epistolae selectae I, MGH, 1978). Guarnerius Iurisperitissimus, Liber divinarum sententiarum, ed. Giuseppe Mazzanti (Spoleto, Cisam, 1999). Haec sunt statuta. Le corporazioni medievali nelle miniature bolognesi, ed. Massimo Medica (Modena, Panini, 1999). Hägele, Gunther, Das Poenitentiale Vallicellianum I (Sigmaringen, Thorbecke, 1984). Heumann, Hermann Gottlieb, Handlexicon zu den Quellen des römischen Rechts, IX ed., ed. Emil Seckel (Jena, 1914). Hugolini Summa super usibus feudorum, ed. Giovanni Battista Palmieri, BIMAe, II, pp. 181–194. I brevi dei consoli del Comune di Pisa degli anni 1162 e 1164, ed. Ottavio Banti (Rome, Fonti per la storia dell’Italia medievale, Antiquitates 7, Isime, 1997). I brevi del Comune e del Popolo di Pisa dell’anno 1287, ed. Antonella Ghignoli (Rome, Fonti, Antiquitates 11, Isime, 1999). I capitolari carolingi. Storia e diritto della dominazione carolingia in Italia, eds. Claudio Azzara and Pierandrea Moro (Rome, Altomedioevo 1, Viella, 1998). I codici del Collegio di Spagna di Bologna, eds. Domenico Maffei et al. (Milan, Orbis academicus 5, Giuffrè, 1992). I costituti della legge e dell’uso di Pisa (sec. XII), ed. Paola Vignoli (Rome, Fonti per la storia dell’Italia medievale, Antiquitates 23, Istituto storico italiano per il Medioevo, 2003). I frammenti epigrafici degli statuti di Ferrara del 1173 venuti alla luce nella cattedrale, ed. Adriano Franceschini (Ferrara, Deputazione ferrarese di storia patria, 1969). I placiti del “Regnum Italiae” (sec. IX-XI), I-II 1–2, III 1–2, ed. Cesare Manaresi (Rome, Isime, 1955–58). I trattati con Bisanzio 992–1198, eds. Marco Pozza-Giorgio Ravegnani (Venice, Pacta Veneta 4, il Cardo, 1993). Il Libro del chiodo, ed. Fabrizio Ricciardelli (Rome, Fonti, Antiquitates 9, ISIME, 1998). Il processo Avogari (Treviso, 1314–1315), ed. Giampaolo Cagnin, with an essay by Diego Quaglioni (Rome, Fonti per la storia della Terraferma Veneta 14, Viella, 1999). Il Registrum Magnum del Comune di Piacenza, ed. Ettore Falconi-Roberta Peveri, I-IV, with an Introduction by Pierre Racine on “Il Registrum Magnum specchio della società comunale,” I, pp. xiii-lxxi (Milan, Giuffrè, 1984–88; Indici, Milan, Giuffrè, 1997). In Val d’Orcia nel Trecento. Lo statuto signorile di Chiarentana, ed. Mamhoud Salem Elsheikh, with “Presentazione” by Mario Ascheri and “Nota storica” by Alfio Cortonesi (Siena, Documenti di storia 6, Il Leccio, 1990). Index repetitionum iuris canonici et civilis, eds. Mario Ascheri and Elena Brizio (Siena, Quaderni di Informatica e beni culturali 8, Università, 1985). Iuliani epitome latina Novellarum Iustiniani, ed. Gustav Hänel (Lipsiae, 1873), now repr. with “Glossarium” by Antonio Agustín and indexes by Piero Fiorelli and Anna Maria Bartoletti Colombo (Firenze, Legum Iustiniani imperatoris Vocabularium, Università, Dipartimento di teoria e storia del diritto, 1996). Iura propria, gli statuti a stampa (1475–1799) della Biblioteca di Giurisprudenza dell’Università di Firenze, eds. Federigo Bambi and Lucilla Conigliello (Florence, CD Centro didattico televisivo, Università di Firenze, 1999). Iustiniani Augusti Pandectarum codex Florentinus, eds. Alessandro Corbino and Bernardo Santalucia (Firenze, sponsored by Regione and Università della Calabria, 1988). Ivonis Carnotentis Decretum, ed. in PL 161, coll. 47–1022 (Parisiis, 1889).

378 sources

Jaffé, Philip, Regesta Pontificum Romanorum ab condita Ecclesia ad annum post Christum natum MCXCVIII, I-II (Leipzig, 1885–1888). Jasper Detlev and Fuhrmann Horst, Papal Letters in the Early Middle Ages (Washington D.C., History of Medieval Canon Law, The Catholic University of America Press, 2001). Johannes Viterbensis, Liber de regimine civitatum, ed. Gaetano Salvemini, BIMAe, III, pp. 217–280. Jus Greco-Romanum, ed. Karl Eduard Zachariäe von Lingenthal (Leipzig, 1856–1886, repr. Athens 1931, ed. J. and Panagiotes Zepos, now repr., Aalen, Scientia, 1962; J. and Panagiotes Zepos, Jus Graeco-Romanum, II, Athens, 1933; Jus Greco-Romanum, IV (Leipzig, 1865). Justinian’s Institutes, trans. Peter Birks and Grant McLeod (London, Routledge, 1987). Kéry, Lotte, Canonical Collections of the Early Middle Ages (ca. 400–1140). A Bibliographical Guide to the Manuscripts and Literature (Washington D.C., History of Medieval Canon Law, The Catholic University of America Press, 1999). Kuttner, Stephan, Index titulorum decretalium ex collectionibus tam privatis quam publicis conscriptus (Milan, Giuffrè, 1977). Kuttner, Stephan, Repertorium der Kanonistik (1140–1234). Prodomus corporis glossarum (Vatican City, Studi e testi 71, Biblioteca Apostolica Vaticana, 1937, repr. 1972). La ‘Carta de logu’ del Regno di Arborèa, trans. and comments by Francesco Cesare Casula (Cagliari, Collana di studi italo-iberici 22, CNR, 1994)). La Mantia Vito, Antiche consuetudini delle città di Sicilia, with Introduction by Andrea Romano (Messina, Intilla, 1993; repr. ed (Palermo 1900). La Summa Institutionum ‘Iustiniani est in hoc opere’, ed. Pierre Legendre (Frankfurt am Main, IC Sonderhefte 2, Klostermann, 1973). Landsberg Emil, Azonis questiones (Freiburg im Br., 1888). Le Assise di Ariano, ed. and trans. Ortensio Zecchino (Cava dei Tirreni, Di Mauro, 1984). Le corporazioni milanesi e Sant’Ambrogio nel Medioevo, ed. Annamaria Ambrosioni (Cinisello Balsamo, Silvana, 1997). Leges Langobardorum, ed. Friedrich Bluhme and Alfred Boretius (Hannover, Leges IV, MGH, 1868, repr. 1984). Lehmann, Karl, Consuetudines feudorum (Libri feudorum, jus feudale Langobardorum) (Göttingen, 1892, repr. ed. Karl August Eckhardt, Aalen, Bibliotheca rerum historicarum, Scientia, 1971). Lehmann, Karl, Das longobardische Lehnrecht (Handschriften, Textentwicklung, ältester Text und Vulgattext nebst den capitula extraordinaria) (Göttingen, 1896, now with his Consuetudines feudorum) (see). Libelli de lite imperatorum et pontificum I-III, eds. Ernst Dummler, Lothar von Heinemann, Ernst Sackur and Friedrich Thaner (Hannover, MGH, 1891–97). Liber consuetudinum civitatis Mediolani anni MCCXVI, new ed. by Enrico Besta– Gian Luigi Barni (Milan, Giuffrè, 1949). Liber de unitate ecclesiae, in Libelli de lite, pp. 173–284. Liber Papiensis, ed. Alfred Boretius, in Leges IV, pp. 290–585 (Hannover, MGH, 1868). Lo statuto dei consoli del Comune di Pistoia. Frammento del secolo XII, eds. Natale Rauty and Giancarlo Savino (Pistoia, Fonti storiche pistoiesi 4, Comune di Pistoia, Società pistoiese di storia patria, 1977). Lo statuto di Bergamo del 1353, ed. Giuliana Forgiarini, with Introduction by Claudia Storti Storchi (Spoleto, Fonti storico-giuridiche, Statuti 2, Cisam, 1996). Maffei, Domenico, Un’epitome in volgare del “Liber Augustalis” (Roma-Bari, Fonti e studi 2, Laterza-Cesn, 1995). Maffei, Domenico, “Un trattato di Bonaccorso degli Elisei e i più antichi statuti dello Studio di Bologna nel manoscritto 22 della Robbins Collection,” now in his Studi di storia, chapter II. Mandatum de lege Romana, in Constitutiones et acta publica I, nu. 37, ed. Ludwig Weiland (Hannover, MGH, 1874). Medieval Handbooks of Penance, A Translation of the Principal Libri Poenitentiales, eds. John T. McNeill and Helena M. Gamer (New York, 1938; repr. 1990).

sources 379

Milo, Crispo, “Vita Lanfranci,” PL 150, coll. 19–28 (Paris, 1850). Montorzi, Mario, Il diritto feudale nel Basso Medioevo. Materiali di lavoro e strumenti critici per l’esegesi della glossa ordinaria ai Libri feudorum. Con la ristampa anastatica dei Libri feudorum e della loro glossa ordinaria (Turin, Giappichelli, 1991). Nardi, Enzo, Istituzioni di diritto romano, III, Guida ai testi (repr. Milan, Giuffrè, 1986). Nequirito, Mauro, Le carte di regola delle comunità trentine. Introduzione storica e repertorio bibliografico, “Presentazione” by Cesare Mozzarelli (Mantua, Arcari, 1988). Niccolai, Franco, Note sulle consuetudini di Alessandria (Milan, 1939). Nicolini, Ugo and Sinatti, Franca, Indices corporis iuris civilis iuxta vetustiores editiones cum criticis collatas, I-V (Milan, Giuffrè, 1964). Novellae, recognovit Rudolf Schöll and Wilhelm Kroll, Berlin, 1895, with many repr. (as ed. IV stereotypa, apud Weidmannos, Berolini 1912), with Greek and Latin text. Concordances are available thanks to Anna Maria Bartoletti Colombo, Pars Latina, I-XI (Milan, Cisalpino, 1977–79). Pars Graeca, I-VIII (Milan, Cisaplino, 1984–89). Ochoa, Javier and Diez, Luis, Indices canonum, titulorum et capitulorum Corporis iuris canonici (Rome, Subsidia I, Commentarium pro religiosis, 1964). Odofredi Lecturae super Digesto et Codice (Ludguni 1550, repr. Bologna, Forni, 1967). Oppitz, Ulrich-Dieter, Deutsche Rechtbücher des Mittelalters, I-III (Cologne, Böhlau, 1990–92). “Ordo mellifluus in expositione legum Romanarum”, in Un’antica compilazione di diritto Romano e visigoto con alcuni frammenti delle leggi di Eurico tratta da un manoscritto della biblioteca di Holkham, ed. Augusto Gaudenzi (Bologna, 1886). Orientamenti bibliografici 1990–98. CD (Rome, Il Cigno Galileo Galilei, 1999). Orlandelli, Gianfranco, Salatiele, Ars notarie, I, I frammenti della prima stesura dal codice bolognese dell’Archiginnasio B. 1484; II, La seconda stesura dai codici della Biblioteca Nazionale di Parigi Lat. 4593 e Lat. 14622 (Milan, Opere dei maestri 2, Istituto per la storia dell’Università di Bologna, 1961). Parmeggiani, Antonella, Libro de le uxanze e statuti de lo Imperio de Romania (Spoleto, Quaderni della Rivista di Bizantinistica 1, Cisam, 1998). Paul the Deacon (Paulus Diaconus), History of the Langobards (Historia Langobardorum), trans. William D. Foulke (Philadelphia, University of Pennsylvania, 1907, repr. 1974). Pene Vidari and Gian Savino, Le consuetudini di Alessandria (1179), Appunti dalle lezioni dell’a.a. 1992–93 (Turin-Florence, Pluriverso, 1992). Pérez, Martín Antonio, El derecho procesal del “ius commune” en España (Murcia, Universidad de Murcia, 1999). Pescatore, Gustav, Beiträge zur mittelalterlichen Rechtsgeschichte (Berlin-Greifwald, 1889– 1896, repr. Turin, 1967). Pescatore, Gustav, Die Glossen des Irnerius (Greifswald, 1888). Piana, Celestino, Nuove ricerche su le Università di Bologna e di Parma (Quaracchi, Spicilegium Bonaventurianum 2, Typ. Collegii S. Bonaventurae, 1966). Piana, Celestino, Ricerche su le Università di Bologna e di Parma nel secolo XV (Quaracchi, Spicilegium Bonaventurianum 1, Typ. Collegii S. Bonaventurae, 1963). Picasso, Giorgio, “Il penitenziale di Burcardo di Worms,” in A pane e acqua (above), pp. 41–48). Pilii Medicinensis Quaestiones sabbatinae, ed. Ugo Nicolini, I (Modena, 1935). Placentini Summa Codicis, ed. Gustav Pescatore in his Beiträge zur mittelalterlichen Rechtsgeschichte, II, Miscelen (Berlin, 1889, repr. Turin, Bottega d’Erasmo, 1967); also in repr. of Summa Codicis (Turin, 1962). Prochiron legum pubblicato secondo il codice Vaticano greco 845, ed. Francesco Brandileone and Vittorio Puntoni (Rome, Fonti per la storia d’Italia 30, Isime, 1895).

Quaestiones de iuris subtilitatibus, ed. Hermann Fitting (Berlin, 1894); ed. Ginevra Zanetti (Florence, 1958). Quaestiones dominorum Bononiensium, ed. Giovanni Battista Palmieri, BIMAe, I, 2nd ed., pp. 235–264 (Collectio Parisiensis), II, Additiones, pp. 211–242 (Collectio Gratianopolitana).

380 sources

Quaestiones in iure civili disputatae. Didattica e prassi colta nel sistema del diritto comune fra Duecento e Trecento, ed. Manlio Bellomo, with the coll. of Livia Martinoli (Rome, Fonti per la storia dell’Italia medievale, Antiquitates, 31, Istituto storico italiano per il Medioevo, 2008). Quaestiones in schola Bulgari disputatae, ed. Federico Patetta, BIMAe, II, pp. 195–209. Quaglioni Diego, Politica e diritto nel Trecento italiano. Il “De tyranno” di Bartolo da Sassoferrato (1314–1357). Con l’edizione critica dei trattati “De Guelphis et Gebellinis”, “De regimine civitatis” e “De tyranno” (Florence, Biblioteca 11, Il Pensiero politico, Olschki, 1983). Quinque compilationes antiquae, ed. Emil Friedberg (Leipzig, 1882, repr. Graz, Akademische Druck, 1956). Rainerii de Perusio Ars notaria, ed. Augusto Gaudenzi, BIMAe, II, pp. 25–67; II version in Wahrmund, Quellen III.2). Registro di lettere (1350–1351), ed. Cecilia Bilello, Francesco Bonanno and Anna Massa, with “Introduzione” by Leonardo Sciascia (Palermo, Acta curie felicis urbis Panormi 9, Comune di Palermo, 1999). Repertorio degli statuti comunali emiliani e romagnoli (secc. XII-XVI), I-III, ed. Augusto Vasina, Indexes by Enrico Angiolini (Rome, Fonti, Subsidia, Isime, 1997–99). Repertorio degli statuti comunali umbri, ed. Patrizia Bianciardi, Maria Grazia and Nico Ottaviani (Spoleto, Quaderni del Centro per il collegamento degli studi medievali e umanistici nell’Umbria 28, Cisam, 1992). Repertorium der Handschriften des byzantinischen Rechts, Teil I, Die Handschriften des weltlichen Rechts, ed. Ludwig Burgmann, Marie Theres Fögen, A. Schminck and Dieter Simon (Frankfurt (Frankfurt/Main, Forschungen zur byzantinischen Rechtsgeschichte 20, Lowenklau-Gesellschaft, 1995). Rofredi Beneventani Summula de pugna, ed. (Federico Patetta, BIMAe, II, pp. 75–84). Rogerii Summa Codicis, ed. (Giovanni Battista Palmieri, BIMAe, I, pp. 49–233). Rolandini Passegerii Contractus, ed. Roberto Ferrara (Rome, Fonti e strumenti per la storia del notariato italiano 5, Consiglio nazionale del notariato, 1983). Rolandini Summa artis notarie. Venice 1546, repr (Bologna, Forni, 1977). Romano, Andrea, Aspetti dell’insegnamento giuridico nelle Università medievali, IV, Le ‘quaestiones disputatae’ (Reggio Calabria, Cultura giuridica dell’età medievale e moderna. 1, Parallelo, 1975). Rossi, Guido, La ‘Summa arboris actionum’ di Ponzio de Ilerda (Milan, Giuffrè, 1951). Rule of Saint Benedict in English, ed. Timothy Fry (Vintage Spiritual Classics, 1998). http,// www.osb.org/rb/index.html#English. Scalfati, Silvio P.P., Un formulario notarile fiorentino della metà del Dugento (Florence, Archivio di Stato di Firenze, Scuola di arch., paleografia e diplomatica 5, Edifir, 1997). Schatzmiller, Joseph, Justice et injustice au début du XIVe siècle. L’enquête sur l’archevêque d’Aix et sa renonciation en 1318 (Rome, Sources et documents 2, Ecole française de Rome, 1999). Scialoja, Vittorio, “Di una nuova collezione delle dissensiones dominorum,” also in Studi giuridici, II, pp. 329–413 (Rome, 1934). Scritti giuridici preirneriani, ed. Carlo Guido Mor, I, Fonti delle “Exceptiones legum Romanarum”. Libro di Ashburnam Libro di Tubinga Libro di Graz (Milan, Vita e Pensiero, 1935, rev. repr (Turin, 1980; II, Exceptiones legum romanarum (Milan, Orbis Romanus 10, 1938, repr. Torino, 1980). Seckel, Emil, “Distinctiones Glossatorum. Studien zur Distinktionen-Literatur der romanistischen Glossatorenschule, verbunden mit Mitteilungen unerdierter Texte,” in Festschrift der Berliner Juristischen Fakultät für F. von Martizt, pp. 277–436 (Berlin 1911, repr. Akademische, Graz 1956). Simeoni, Luigi and Vicini, Emilio Paolo, Registrum privilegiorum Comunis Mutinae, I (Reggio Emilia, 1940. II, Modena, 1949). Solmi, Arrigo, “Le leggi più antiche del Comune di Piacenza”, Archivio storico italiano 73 (1915), 3–81.

sources 381

Spinelli, Franco, Gli statuti del Comune e delle corporazioni della Brescia medievale (Brescia, Gruppo Editoriale Delfo, 1997). Sorrenti, Lucia, Testimonianze di Giovanni d’Andrea sulle ‘Quaestiones’ civilistiche (Catania, Studi e ricerche dei Quaderni catanesi 2, Tringale, 1980). Sottili, Agostino, Documenti per la storia dell’Università di Pavia nella seconda metà del ‘400 (1450–1455) (Bologna, Fonti e studi per la storia dell’Università di Pavia 21, Cisalpino, 1994). Sottili, Agostino, Lauree pavesi nella seconda metà del ‘400, I (1450–1475) (Bologna-Milano, Fonti e studi per la storia dell’Università di Pavia 25, Cisalpino, 1995). Spinelli, Franco, Gli statuti del Comune e delle corporazioni della Brescia medievale (Brescia, Gruppo editoriale Delfo, 1997). Sprenger, Jacobus and Kramer, Heinrich, Malleus maleficarum. The Hammer of Witchcraft, trans. by Montague Summers (London, Folio Society, 1968). Statuta antiqua Communis Collis vallis Else (1307–1407), I-II, ed. Renzo Ninci, “Presentazione” by Mario Ascheri (Rome, Fonti, Antiquitates 10, Isime, 1999). Statuta della Repubblica fiorentina, ed. Romolo Caggese, repr. Giuliano Pinto, Francesco Salvestrini Andrea Zorzi; index by Piero Gualtieri (Florence, Documenti, s. II I, Deputazione di storia patria per la Toscana, 1999). Statuta Nationis Germanicae Universitatis Bononiae (1292–1750), ed. Paolo Colliva (Bologna, Acta Germanica I, Associazione italo-tedesca, 1975). Statuta Rivi. Il volto di un’antica comunità elbana attraverso i suoi ordinamenti, ed. Gianfranco Vanagolli (Rome, Le opere e i giorni, Comune di Rio nell’Elba, 1998). Statuti del Comune di Treviso, a cura di Giuseppe Liberali, I-III (Venice, Deputazione di storia patria per le Venezie, 1950–55). Statuti dell’Università medievale di Arezzo (1255), ed. Fabrizio Fabbrini (Arezzo, Università di Siena, 1990). Statuti della città di Alessandria (Alexandriae, 1547, repr. Torino, 1969). Statuti di Lendinara del 1321, ed. Marco Pozza (Rome, Corpus statutario delle Venezie 2, Jouvence, 1984). Statuti di Verona del 1327, ed. Silvana Anna Bianchi-Rosalba Granuzzo, with Gian Maria Varanini-Giordana Mariani Canova (Rome, Corpus statutario delle Venezie 8/I-II, Jouvence, 1992). Statuti di Volterra, I (1210–1224), ed. Enrico Fiumi (Florence, 1951). Statuti pistoiesi del secolo XII. Breve dei consoli (1140–1180), Statuto del podestà (1162–1180), ed. and trans. by Nicola Rauty (Pistoia, Fonti storiche pistoiesi 14, Comune di Pistoia-Società pistoiese di storia patria, 1996). Statuto del Comune di Perugia del 1279, I, ed. Severino Caprioli and Attilio Bartoli Langeli with Cinzia Cardinali, Andrea Maiarelli and Stefania Merli (Perugia, Fonti 21–22, Deputazione di storia patria per l’Umbria, 1996). Stelzer, Winfried, “Die älteste Überlieferung des Scholarenprivilegs Friedrich Barbarossas (authentica “Habita”),” Deutsches Archiv 34 (1978), 123–165. Summa legis Longobardorum. Longobardisches Rechtsbuch aus dem XII. Jahrhundert, ed. August Anschütz (Halle, 1870). Summa notariae Aretii composita, ed. Carlo Cicognari, BIMAe III, pp. 283–332. Summa notariae Belluni composita, ed. Augusto Palmieri, BIMAe, III, pp. 353–367. Tangheroni, Marco, “Di alcuni ritrovati capitoli della “Carta de logu” cagliaritana, prima notizia,” Archivio storico sardo 35 (1986, Studi in onore di Giovanni Todde), 35–50. The Digest of Justinian, I-II, trans. and ed. Alan Watson (Philadelphia, The University of Pennsylvania Press, 1985; rev. ed. English only, I-II, 1998). The Liber Augustalis or Constitutions of Melfi promulgated by the Emperor Frederick II for the Kingdom of Sicily in 1231, trans. with an Introduction and notes by James Powell (Syracuse, The Syracuse University Press, 1971). The Liber Pauperum of Vacarius, ed. Francis de Zulueta (London, The Publications of the Selden Society 43, 1927). The Lombard Laws, trans. Katherine Fischer (Philadelphia, University of Pennsylvania Press, 1973).

382 sources

The Usatges of Barcelona, the Fundamental Law of Catalonia, translated with an Introduction and notes by Donald J. Kagay, (Philadelphia, University of Pennsylvania Press, 1994). Theiner Augustin, Codex diplomaticus dominii temporalis S. Sedis, I-III (Rome, 1861–62). Thesaurus Accursianus, Novum sextum volumen in quo haec sequentia extant… dictiones et sententias iuris selectiores ab Accursio explicatas continens… (Venice, 1606). Tipoukeitos. Libros XIII-XXIII, ed. Stephania Hoermann and Erwin Seidl (Vatican City, Studi e testi, 179, 193, Biblioteca Apostolica Vaticana, 1955; Libros XXXIX-LX, 1957). Tractatus criminum saeculi XII, ed. Giovanni Minnucci (Bologna, Archivio per la storia del diritto medievale e moderno 2, Monduzzi, 1997). Trexler, Richard, Synodal Law in Florence and Fiesole, 1306–1518 (Vatican City, Studi e testi 268, Biblioteca Apostolica Vaticana, 1971). Trifone, Romualdo, La legislazione angioina, critical ed. (Naples, 1921). Tuschus, Dominicus, Practicae conclusiones in utroque iure, I-VIII (Rome 1605–1608). Vaccari, Pietro, Leggi e consuetudini feudali (Milan, 1947). Vendittelli, Marco, “Domini” e “universitas castri” a Sermoneta nei secoli XIII e XIV. Gli statuti castellani del 1271 con le aggiunte e le riforme del 1304 e del secolo XV, ‘Prefazione’ by Jean- Claude Maire Vigueur (Rome, Studi e documenti d’archivio 3, Fondazione C. Caetani- L’Erma, 1993). Vetere, Carla, Le consuetudini di Napoli. Il testo e la tradizione (Salerno, Iter Campanum 7, Carlon, 1999). Vocabularium Codicis Iustiniani, ed. Richard Mayr I-II (Prague 1923, repr. Hildesheim, Olms, 1965). Vocabularium iurisprudentiae Romanae, I-V, (Berlin, 1903–1939). Wahrmund, Ludwig, Quellen zur Geschichte des römisch-kanonischen Prozesses im Mittelalter, I-V (Innsbruck, 1905–1931; repr. Aalen, Scientia, 1962). Wernerii Formularium tabellionum, ed. Giovanni Battista Palmieri, BIMAe, I ed., pp. 11–45 (Bologna, 1913-Turin 1962); II ed., pp. 199–229 (Bologna, 1914). Yves de Chartres, Correspondance, ed. with French trans. by Jean Leclercq (Paris, Les Belles Lettres, 1949).

BIBLIOGRAPHY

Abulafia, David, “Gli italiani fuori d’Italia”, in Gli orizzonti aperti, 175–198. Ahmad, Aziz, La Sicile islamique (Paris, Publisud, 1990). Ajello, Raffaele, Formalismo medievale e moderno (Naples, Storia e diritto 25, Jovene, 1990). Alle origini del costituzionalismo europeo. Le Assise di Ariano. 1140–1990 (Rome-Bari, Cesn, Fonti e studi 1, 1996). Amelotti, Mario, “L’età Romana”, in Mario Amelotti and Giorgio Costamagna, Alle origini del notariato italiano (Milan, Studi storici sul notariato italiano 2, Giuffrè, 1975), 3–144. Andreolli, Bruno, Contadini su terre di signori. Studi sulla contattualistica agraria dell’Italia medievale (Bologna, Clueb, 1999). Ankum, Hans J.A., Spruit, J.E. and Wubbe, F.B.J. (eds.), Satura Roberto Feenstra sexagesimum quintum annum aetatis complenti ab alumnis collegis amicis oblata (Fribourg Ch., 1985). Arlinghaus, Franz-Josef, Baumgärtner, Ingrid, Colli, Vincenzo, Lepsius, Susanne and Wetzstein, Thomas (eds.), Praxis der Gerichtsbarkeit in europäischen Städten des Spätmittelalters (Frankfurt am Main, Rechtssprechung, Materialien und Studien 23, Klostermann, 2006). Armstrong, Lawrin, Usury and Public Debt in Early Renaissance Florence, Lorenzo Ridolfi on the ‘Monte Comune’ (Toronto, Texts and Studies 144, The Pontifical Institute of Medieval Studies, 2003). Arrighi, Vanna (ed.), Ordinamenti di giustizia fiorentini (Florence, Scuola di archivistica paleografia e diplomatica 4, Archivio di Stato di Firenze, 1995). Artifoni, Enrico, “Retorica e organizzazione del linguaggio politico nel Duecento italiano”, in Le forme della propaganda politica nel Due e nel Trecento, ed. Paolo Cammarosano (Rome, Collection de l’Ecole 201, Ecole française de Rome, 1994), 157–182. Ascheri, Mario, “Bartolo da Sassoferrato, introduzione a un giurista globale”, in Mundos medievales. Espacios, Sociedades y Poder. Homenaje al Professor José Angel García de Cortàzar y Ruiz de Aguirre, II, eds. Beatriz Arízaga Bolumburu et Alii (Santander, Ediciones Universidad de Cantabria, 2012), 1029–1040. ——, “Between Statutory Law and Learned Law, Delay in the Early History of the Medieval Italian Communes (and Beyond)”, in Within a Reasonable Time, The History of Due and Undue Delay in Civil Litigation, ed. Remco van Rhee (Berlin, Comparative Studies in Continental and Anglo-American Legal History 28, Duncker & Humblot, 2010), 37–56. ——, “Beyond the Commune, the Italian city-state and its inheritance”, in The Medieval World, ed. Peter Linehan and Janet Nelson (London and New York, Routledge, 2001), 451–468. —— (ed.), Antica legislazione della Repubblica di Siena (Siena, Documenti di storia 7, il Leccio, 1993). ——, Diritto medievale e moderno. Problemi del processo, della cultura e delle fonti giuridiche (Rimini, Maggioli, 1991). ——, “Dottrine universitarie, pensiero politico e istituzioni comunali”, in Giuristi e istituzioni 247–262. ——, Giuristi e istituzioni dal medioevo all’età moderna (secoli XI-XIII). Collected essays with a “Presentazione” and Addenda (Stockstadt am Main, Bibliotheca eruditorum 36, 2009), vii-xvi. ——, I giuristi e le epidemie di peste (secoli XIV-XVI) (Siena, Università, 1997). ——, “I giuristi, l’umanesimo e il sistema giuridico dal Medioevo all’età moderna”, in El dret comú i Catalunya, ed. Aquilino Iglesia Ferreirós (Barcelona, Estudis 3, Fundació Noguera, 1992), 145–161.

384 bibliography

——, Istituzioni medievali, II ed. (Bologna, il Mulino, 1999). ——, “Il ‘dottore’ e lo statuto, una difesa interessata”, in Giuristi e istituzioni, 317–335. —— “Il processo civile tra diritto comune e diritto locale, da questioni preliminari al caso della giustizia estense”, in Giuristi e istituzioni, 631–661. ——, Le città-Stato. Radici del municipalismo e del repubblicanesimo italiani (Bologna, L’identità italiana 46, Il Mulino, 2006). ——, “Leggi e statuti”, in Lo spazio letterario del Medioevo III, La ricezione del testo, 541–574. ——, “Législation italienne du bas Moyen Age, le cas de Sienne (ca. 1200–1545)”, in Faire bans, edictz et statuz. Légiférer dans la ville médiévale, eds. Jean-Marie Cauchies-Erich Bousmar (Brussels, Publications des Facultés universitaires Saint-Louis, 2001), 51–83. ——, “Nicola ‘el monaco’, consulente, con edizione di due suoi pareri olografi per la Toscana”, in Niccolò Tedeschi (Abbas Panormitanus) e i suoi commentaria in Decretales, ed. Orazio Condorelli, Introduction by Manlio Bellomo (Rome, Il Cigno-G. Galilei, 2000), 37–68. ——, Saggi sul Diplovatazio (Milan, Quaderni di SS 25, Giuffrè, 1971). ——, “Statuti, legislazione e sovranità, il caso di Siena”, in Statuti città territori; revised version in Antica legislazione, 1–40, 145–194. ——, “Streghe e ‘devianti’, alcuni consilia apocrifi di Bartolo da Sassoferrato?”, in Giuristi e istituzioni, 423–454. ——, “Un ordine giuridico medievale per la realtà odierna?”, Rivista trimestrale di diritto e procedura civile 50 (1996), 965–73. (German trans. in Giuristi e istituzioni, see, 675–689). ——, Tribunali giuristi e istituzioni dal Medioevo all’Età moderna, revised ed. (Bologna, il Mulino, 1996). ——, (ed.), Lo Studio e i testi. Il libro universitario a Siena (secoli XII-XVII) (Siena, Protagon, 1996). ——, (ed.), Scritti di storia del diritto offerti dagli allievi a Domenico Maffei (Padua, Medioevo e umanesimo 78, Antenore, 1991). Ascheri, Mario, Baumgärtner, Ingrid and Kirshner, Julius (eds.), Legal Consulting in the Civil Law Tradition (Berkeley, Robbins Collection, 2000). Ascheri, Mario and Mayali, Laurent (eds.), Rare Law Books and the Language of Catalogues - I libri giuridici antichi e il linguaggio dei cataloghi (Siena, Documenti di storia 29, Il Leccio, 1999). Astuti, Guido, Tradizione romanistica e civiltà giuridica europea, a cura di Giovanni Diurni, Prefazione di Giovanni Cassandro, III, Storia del diritto commerciale e dell’organizzazione mercantile (Naples, Ius Nostrum 1, Esi, 1984). Avril, Joseph, “Sur l’emploi de jurisdiction au Moyen Age (XIIe-XIIIe s)., ZRG kan. Abt. 144 (1997), 272–282. Azzara, Claudio, L’ideologia del potere regio nel papato altomedievale (secoli VI-VIII) (Spoleto, Cisam, 1997). Banchi pubblici, banchi privati e monti di pietà nell’Europa preindustriale. Amministrazione, tecniche operative e ruoli economici (Genoa, 1999); Atti della Società ligure di storia patria, n. s., 31/105 (1999), 541–560. Barbieri, Ezio, Notariato e documento notarile a Pavia (secoli XI-XIV) (Florence, Pubbli cazioni della Facoltà di Lettere e Filosofia dell’Università di Pavia 58, 1990). Barthélemy, Dominique, “Diversité des ordalies médiévales”, Revue historique 280 (1988), 3–25. Bartlett, Robert, Trial by Fire and Water. The Medieval Judicial Ordeal, II ed. (Oxford, University Press, 1988). Bartoli, Langeli Attilio, “Entre documents et monuments, la mémoire officielle de la cité communale italienne”, in La mémoire de la cité. Modèles antiques et réalisations renaissantes (Naples, Università di Perugia, Dipartimento di scienze storiche, Pubbli cazioni 6, Esi, 1997), 23–33. Bartolo da Sassoferrato. Studi e documenti per il VI centenario, I-II (Milan, Università di Perugia, 1968).

bibliography 385

Bataillon, Louis-Jacques, “L’Università”, in Lo spazio letterario, 415–427. Baumgärtner, Ingrid, Martinus Garatus Laudensis. Ein italienischer Rechtsgelehrter des 15. Jahrhunderts (Köln-Wien, Dissertationen zur Rechtsgeschichte 2, Böhlau, 1986). Becker, Claudia, “Sub gravioribus usuris. Darlehensverträge der Kommune Chiavenna im 12. und 13. Jahrhundert”, in Bene vivere, 25–49. Bellabarba, Marco, La giustizia ai confini. Il principato vescovile di Trento agli inizi dell’età moderna (Bologna, Annali dell’Istituto storico italo-germanico, monografia 28, il Mulino, 1996). Bellomo, Manlio, Aspetti dell’insegnamento giuridico nelle Università medievali, I, Le ‘quaestiones disputatae’ (Reggio Calabria 1974). ——, (ed.), Scuole, diritto e società nel Mezzogiorno medievale d’Italia, I-II (Catania, Tringale, 1985–87). ——, “Der Text erklärt den Text. Über die Anfänge der mittelalterlichen Jurisprudenz”, RIDC 4 (1993), 51–64. ——, “Due ‘Libri magni quaestionum disputatarum’ e le ‘quaestiones’ di Riccardo da Saliceto”, SS, s. 3, 18 (1969), 256–291. ——, “Federico II, lo Studium a Napoli e il diritto comune nel Regnum”, in RIDC 2 (1991), 135–151. ——, (ed.), Die Kunst der Disputation. Probleme der Rechtsauslegung und Rechtsanwendung im 13. und 14. Jahrhundert (Munich, Schriften des Historischen Kollegs, Kolloquien 38, Oldenbourg, 1997). ——, “Giuristi e inquisitori del Trecento. Ricerca su testi di Iacopo Belvisi, Taddeo Pepoli, Riccardo Malombra e Giovanni Calderini”, in Per Francesco Calasso, 11–57. ——, “Intorno a Roffredo Beneventano, professore a Roma?”, in Medioevo edito e inedito, III, 7–54. ——, “La scienza del diritto al tempo di Federico II, RIDC 3 (1992), 173–196. ——, Medioevo edito e inedito, I-III (Rome, I libri di Erice 20, Il Cigno Galileo Galilei, 1998). ——, Saggio sull’Università nell’età del diritto comune, II ed (Rome, I libri di Erice 4, Il Cigno–Galileo Galilei, 1996). ——, Società e istituzioni dal Medioevo agli inizi dell’Età moderna, VI repr (Rome, Il Cigno–Galileo Galilei, 1993). ——, “Sulle tracce d’uso dei ‘libri legales’”, in Civiltà comunale, libro, scrittura, documentazione, 33–51 (Genova, Società ligure di storia patria, 1989). ——, The Common Legal Past of Europe (Washington, Catholic University Press, 1995). Belloni, Annalisa, Le questioni civilistiche del secolo XII. Da Bulgaro a Pillio da Medicina e Azzone (Frankfurt am Main, IC Sonderhefte 43, Klostermann, 1989). ——, Professori giuristi a Padova nel secolo XV. Profili bio-bibliografici e cattedre (Frankfurt am Main, IC Sonderhefte 28, Klostermann, 1986). Benson, Robert L. and Constable, Giles (eds.), Renaissance and Renewal in the Twelfth Century (Cambridge Mass., University Press, 1982). Berengo, Marino, L’Europa delle città (Turin, Einaudi, 1999). Berger, Adolf, Encyclopedic Dictionary of Roman Law (Philadelphia, American Philosophical Society, 1953). van den Bergh, Govaert C.J.J. and Stolte, Bernard H. jr., “The Unfinished Digest Edition of Henrik Brenkmann (1681–1736). A Pilot Survey an Edition of Digest 9.2 ad legem Aquiliam”, TRG 45 (1977), 227–305. Berman, Harold J., Law and Revolution. The Formation of Western Legal Tradition (Cambridge Mass.-London, Harvard University Press, 1983). Bertram, Martin, “La nuova edizione delle costituzioni siciliane di Federico II”, QFIAB 77 (1997), 472–480. Besta, Enrico, “Il diritto consuetudinario di Bari e la sua genesi”, in Scritti di storia giuridica meridionale, ed. Giovanni Cassandro (Bari, Società di storia patria per le Puglie, 1962), 121–230. ——, “Il diritto romano nella contesa tra i vescovi di Siena e d’Arezzo”, Archivio storico italiano s. V, 37 (1906), 61–92.

386 bibliography

——, L’opera di Irnerio (Contributo alla storia del diritto italiano), I, La vita, gli scritti, il metodo, II, Glosse inedite d’Irnerio al Digestum Vetus (Turin, 1896, repr. Forni, Bologna, 1980). ——, “L’opera di Vaccella e la scuola giuridica di Mantova”, Rivista italiana per le scienze giuridiche 34 (1902), 183–236. Birocchi, Italo, “Persona giuridica nel diritto medioevale e moderno”, in Digesto IV ed., Civile, XIII (Turin, Utet, 1996, 407–420. van Bragt, R. (ed.), De Blijde Inkomst van de hertogen van Brabant Johanna en Wenceslas (3 januari 1356). Een inleidende studie en tekstuitgave (Louvain, Anciens Pays et Assemblées d’Etats, XIII, 1956). Brasington, Bruce C. and - Cushing, Kathleen G. (eds.), Bishops, Texts and the Use of Canon Law around 1100. Essays in honour of Martin Brett, eds. (Aldershot, Ashgate, 2008). Blanshei, Sara Rubin, Politics and Justice in Late Medieval Bologna (Leiden, Medieval Law and its Practice 7, Brill, 2010). Bognetti, Gian Piero, L’età longobarda, I-IV (Milan, Giuffrè, 1966–1968). Bonacini, Pierpaolo and Sarti, Nicoletta (eds.), Diritto particolare e modelli universali nella giurisdizione mercantile (secoli XIV-XVI) (Bologna, Studi e memorie per la storia dell’Università n.s. 12, Bononia University Press, 2008). Böninger, Lorenz, “Un illustre abate Siciliano, l’Audientia litterarum contradictarum e una donazione di reliquie a Santa Maria del Fiore nel 1439”, Archivio storico italiano 153 (1995), 427–496. Bonini, Roberto, Introduzione allo studio dell’età giustinianea (Bologna, Patron, 1979). ——, “L’ultima legislazione pubblicistica di Giustiniano”, in Studi sull’età giustinianea, 57–92 (Rimini, Maggioli, 1987). Borsari, Silvano, “Per la storia del commercio veneziano col mondo bizantino nel XII secolo”, Rivista storica italiana 88 (1976), 104–126. Bougard, François, “La justice dans le Royame d’Italie aux IX-X siècles”, in La giustizia… nei secoli IX-XI, 133–176. ——, La justice dans le Royame d’Italie, de la fin du 8. siècle au début du 11. siècle (Rome, Ecole Française de Rome, 1995). van Bragt, Ria, De Blijde Inkomst van de hertogen van Brabant Johanna en Wenceslas (3 januari 1356). Een inleidende studie en tekstuitgave. Anciens Pays et Assemblées d’Etats 13 (Louvain, Nauwelaerts, 1956). Braidi, Valeriaand Casagrande, Aurelia, “Per lo studio della vita quotidiana nel Medioevo, le cause civili e criminali del Vicariato di Serravalle (secolo XIV)”, Atti e memorie della Deputazione di storia patria per l’Emilia-Romagna 48 (1997), 455–542. Brambilla, Elena, “Genealogie del sapere. Per una storia delle professioni giuridiche nell’Italia padana, secoli XIV-XVI”, Schifanoia 8 (1990), 123–150. ——, La giustizia intollerante, Inquisizione e tribunali confessionali in Europa (secoli IV-XVIII) (Rome, Carocci, 2006). Brancoli, Busdraghi Piero, La formazione storica del feudo lombardo come diritto reale (Spoleto, Testi, studi, strumenti 15, Cisam, 1999). Brandileone, Francesco, “Il diritto di prelazione nei documenti bizantini”, in Scritti di storia del diritto privato italiano editi dai discepoli, ed. Giuseppe Ermini, II, 3–12 (Bologna, 1931). ——, L’intervento dello Stato nella celebrazione del matrimonio in Italia prima del Concilio di Trento (Milan 1906). Bresslau, Heinrich, Manuale di diplomatica per la Germania e l’Italia, trans. Anna Maria Voci-Roth from German ed. 1912–31 (Rome, Pubblicazioni degli Archivi di Stato, Sussidi 10, Ministero per i beni culturali e ambientali, 1998). Bretone, Mario, Storia del diritto romano (Bari-Rome, Laterza, 1987). Brett, Martin, “Urban II and the Collections Attributed to Ivo de Chartes”, in Proceedings… VIII, ed. Stanley Chodorow (Vatican City, MIC, Subsidia 9, 1992), 27–46. Brown, Elisabeth A., “The Tyranny of a Construct, Feudalism and Historians of Medieval Europe”, American Historical Review 79 (1974), 1063–1088.

bibliography 387

Brucker, Gene A., Renaissance Florence, Society, Culture, and Religion (Goldbach, Biblio theca eruditorum 10, Keip, 1997). Brühl, Carlrichard, Fodrum, Gistum, Servitium regis. Studien zu den wirtschaftlichen Grundlagen des Königtums im Frankenreich und in den fränkischen Nachfolgestaaten Deutschland, Frankreich und Italien vom 6. bis zur Mitte des 14. Jahrhunderts, I-II (Köln, Kölner Historische Abhandlungen 14, Böhlau, 1968). Brundage, James A., Law, Sex, and Christian Society in Medieval Europe (Chicago, The University Press of Chicago, 1987). ——, Medieval Canon Law (London, Longman, 1995). ——, “Sumptuary Laws and Prostitution in Late Medieval Italy”, Journal of Medieval History 13 (1987), 343–355. Brunner, Heinrich, Zur Rechtsgeschichte der römischen und germanischen Urkunden (Berlin, 1880). Bruyning, Luuc F., “Il processo longobardo prima e dopo l’invasione franca”, RSDI 57 (1984), 121–158. Buckland, William Warwick, Studies in the Glossators of the Roman Law (Cambridge 1938, repr. with addenda by Peter Weimar, Aalen, Scientia, 1969). Bühler, Arnold, “Capitularia relecta. Studien zur Entstehung und Überlieferung der Kapitularien Karls des Grossen und Ludwigs des Frommen”, Archiv für Diplomatik 32 (1986), 305–501. Burckhardt, Jacob R., “Das Lateinische Statut der deutschen Colonien im Tal von Formazza im obern Piemont, vom Jahr 1487”, Archiv für Schweizerische Geschichte 3 (1844), 251–290. Burgmann, Ludwig, “La traduzione greca delle Assise di Ariano”, in Alle origini del costituzionalismo , 219–230. van Caenegem, Raoul C., Judges Legislators and Professors. Chapters in European Legal History (Cambridge, University Press, 1992). ——, “Methods of Proof in Western Medieval Law”, in Legal History. A European Perspective (London–Rio Grande, The Hambledon Press, 1991), 71–113. Calasso, Francesco, Bartolo da Sassoferrato, DBI 6, 640–669 (Rome, 1964). ——, I glossatori e la teoria della sovranità. Studio di diritto comune pubblico, III ed (Milan, Giuffrè, 1957). ——, La legislazione statutaria dell’Italia meridionale (Rome, Biblioteca della RSDI, 1929, repr. 1971). ——, Medioevo del diritto, I, Le fonti (Milan, Giuffrè, 1954). Cammarosano, Paolo, Italia medievale. Struttura e geografia delle fonti scritte (Rome, La Nuova Italia Scientifica, 1993). ——, “L’economia Italiana nell’età dei Comuni e il “modo feudale” di produzione, una discussione”, Società e storia 5 (1979), 495–520. ——, “Le campagne senesi dalla fine del secolo XII agli inizi del Trecento, dinamica interna e forme del dominio cittadino”, in Contadini e proprietari nella Toscana moderna, Atti del convegno in onore di Giorgio Giorgetti, I, 152–222 (Florence, Biblioteca di storia Toscana 19, Olschki, 1979). Campitelli, Adriana, Precetto di guarentigia e formule di esecuzione parata nei documenti Italiani del secolo XIII (Milan, Ius Nostrum 13, Giuffrè, 1970). Canning, Joseph, A History of Medieval Political Thought, 300–1450 (London, Routledge, 1996). ——, The Political Thought of Baldus de Ubaldis (Cambridge, Cambridge UP, 1987). Capitani, Ovidio, Storia dell’Italia medievale 410–1216, IV ed (Rome-Bari, Laterza, 1994). Cappelletti, Vincenzo, Procédure orale et procédure écrite (Milan, Giuffrè, 1971). Caprioli, Severino, “Il diritto comune nello statuto sammarinese vigente. Problemi e pro spettive dinnanzi alla dichiarazione dei diritti”, Istituto Giuridico Sammarinese, Miscellanea 3 (1992), 13–33. ——, Indagini sul Bolognini. Giurisprudenza e filologia nel Quattrocento Italiano (Milan, Ius Nostrum 15, Giuffrè, 1969).

388 bibliography

——, “Per uno schedario di glosse preaccursiane. Struttura e tradizione della prima esegesi giuridica”, in Per Francesco Calasso, 73–166. ——, “Visite alla Pisana”, in Le Pandette (1986, see), 37–98. Caravale, Mario, Ordinamenti giuridici dell’Europa medievale (Bologna, il Mulino, 1994). Cardini, Franco, Giovanna d’Arco (Milano, Mondadori, 1999). Cassandro, Giovanni, “I curiali napoletani”, in Per una storia del notariato meridionale, 299–374 (Rome, Consiglio Nazionale del Notariato, 1982). ——, La tutela dei diritti nell’alto Medioevo (Bari, Cacucci, 1951). Castracane, Claudia Rita, “La Reale Udienza nel Regno di Napoli, note sull’ordinamento legislativo dal XII al XII secolo”, Aprutium 9 (1991), 3–36. Cavallar, Osvaldo, Francesco Guicciardini giurista. I ricordi degli onorari (Milan, Per la storia del pensiero giuridico moderno 36, Giuffrè, 1991). Cavallo, Guglielmo, “La circolazione di testi giuridici in lingua greca nel Mezzogiorno medievale”, in Scuole e società nel Mezzogiorno medievale d’Italia, ed. Manlio Bellomo, II (Catania, Studi e ricerche dei ‘Quaderni catanesi’, Tringale, 1987), 89–136. ——, “La cultura italo-greca nella produzione libraria”, in I Bizantini in Italia (Milan, Scheiwiller, 1982), 497–612. Cavallo, Guglielmo and Magistrale, Francesco, “Libri e scritture del diritto nell’età di Giustiniano”, in Il mondo del diritto (see Bonini, L’ultima, 50–58). Cavallo, Guglielmo, Leonardi, Claudio and Menestò, Enrico (eds.), in Lo spazio letterario del Medioevo, 1, Il Medioevo latino; III, La ricezione del testo (Rome, Salerno, 1995). Cavanna, Adriano, “Diritto e società nei regni ostrogoto e longobardo”, in Magistra Barbar itas. I Barbari in Italia, 370-376 (Milan, Garzanti, 1986). ——, Storia del diritto moderno in Europa, I (Milan, Giuffrè, 1979). Celli, Roberto, Pour l’histoire des origines du pouvoir populaire (Louvain-la-Neue, Université Catholique de Louvain, 1980). Cencetti, Giorgio, “Studium fuit Bononie”, in Lo Studio di Bologna. Aspetti momenti e pro blemi (1935–1970), ed. Roberto Ferrara, Gianfranco Orlandelli and Augusto Vasina (Bologna, Università di Bologna, Dipartimento di Paleografia e Medievistica, 1989), 29–73. Cenci, Cesare, L’ordine francescano e il diritto. Testi legislativi dei secoli XIII-XV. (Goldbach, Bibliotheca eruditorum 15, Keip, 1998). Ceppari, Ridolfi, Assunta, Maria and Turrini, Patrizia, Il mulino delle vanità. Lusso e cerimonie nella Siena medievale, with ed. of statute of ‘Donnaio’ (1343) and Introduction by Mario Ascheri, and iconografic comments by Marilena Caciorgna (Siena, il Leccio, 1993). Chenu, Marie-Dominique, La teologia come scienza nel XIII secolo (Milan, Jaca, 1985; French ed., Paris, 1957). Chiodi, Giovanni, L’interpretazione del testamento nel pensiero dei glossatori (Milan, Pub blicazioni dell’Istituto di storia del diritto Italiano 21, Università di Milano, Giuffrè, 1996). Chittolini, Giorgio, “A proposito di statuti e copiaticci, jus proprium e autonomia. Qualche nota sulle statuizioni delle comunità non urbane nel tardo medioevo lombardo”, in Dal dedalo statutario, ed. Pio Caroni (Bellinzona 1995), Archivio storico ticinese 32 (1995), 171–192. ——, “Stati regionali e istituzioni ecclesiastiche nell’Italia centrosettentrionale del Quat trocento”, in La Chiesa e il potere politico dal Medioevo all’età contemporanea (Turin, Storia d’Italia, Annali 9, Einaudi, 1986), 147–193. Chittolini, Giorgio and Willoweit, Dietmar (eds.), Statuti città territori in Italia e Germania tra medioevo ed età moderna (Bologna, Annali dell’Istituto storico italo-germanico, Quaderno 30, Il Mulino, 1991). Civiltà comunale, libro, scrittura, documento (Genoa 1989), see Atti della Società ligure di storia patria n.s. 29/2. Ciampoli, Donatella, Il Capitano del Popolo a Siena nel primo Trecento (Siena, Documenti di storia 1, Consorzio universitario per la Toscana meridionale, 1984). Classen, Peter, Burgundio von Pisa. Richter, Gesandter, Übersetzer (Heidelberg, Winter Verlag, 1974).

bibliography 389

——, “Italienische Rechtsschulen ausserhalb Bolognas”, in his Studium und Gesellschaft, 29–45. ——, “Studium und Gesellschaft im Mittelalter”, ed. Johannes Fried (Stuttgart, Schriften der MGH 29, Hiersemann, 1983). Cochrane, Erich and Kirshner, Julius (eds.), The Renaissance (Chicago, Readings in Western Civilitation 5, University Press, 1986). Cohn, Norman, The Pursuit of the Millennium, rev. ed. (Oxford, University Press, 1970). Colli, Gaetano, “Attribuuntur Bartolo sed non sunt Bartoli”. Prolegomeni ad una bibliografia analitica dei trattati giuridici pubblicati nel XVI secolo”, Il Bibliotecario n.s. (1996), 145–192. Colli, Vincenzo (ed.), Juristische Buchproduktion im Mittelalter (Frankfurt am Main, IC, Sonderhefte, Klostermann, 2000). Collodo, Silvana, Società e istituzioni in area veneta. Itinerari di ricerca (secoli XII-XV) (Fiesole, Nardini, 1999). Comba, Rinaldo, “Il progetto di una società coercitivamente cristiana, gli statuti di Amedeo VIII di Savoia”, Rivista storica italiana 103 (1991), 33–56. Comunità e poteri centrali negli antichi Stati italiani. Alle origini dei controlli amministrativi, Introduction by Luca Mannori (Naples, Storia delle istituzioni, 1, Cuen, 1997). Condorelli, Orazio, Clerici peregrini. Aspetti giuridici della mobilità clericale nei secoli XII-XIV (Rome, I Libri di Erice 12, Il Cigno Galileo Galilei, 1995). ——, Ordinare – iudicare. Ricerche sulle potestà dei vescovi nella Chiesa antica e altomedie vale (secoli II-IX) (Rome, Il Cigno Galileo Galilei, 1997). ——, “Un giurista dimenticato dello Studio Bolognese, Superanzio da Cingoli”, RIDC 5 (1994), 247–290. Congar, Yves M.-J., “Quod omnes tangit ab omnibus tractari et approbari debet”, RHDFE s. IV, 36 (1958), 210–259. Constable, Giles, “Monastic Legislation at Cluny in the Eleventh and Tenth Century”, in Proceedings… IV, 151–169 (Vatican City, 1976). Conte, Emanuele, Servi medievali. Dinamiche del diritto comune (Rome, Ius Nostrum 21, Viella, 1996). ——, Tres libri Codicis. La ricomparsa del testo e l’esegesi scolastica prima di Accursio (Frankfurt am Main, IC, Sonderhefte, 46, Klostermann, 1990). Corciulo, Maria Sofia (ed.), Contributi alla storia parlamentare europea (secoli XIII-XX) (Rome, Università di Roma La Sapienza- Università di Camerino, The Italian representative in the International Commission for the History of Representative and Parliamentary Institutions, 1996). Cordero, Franco, Criminalia. Nascita dei sistemi penali (Rome-Bari, Universale 183, Laterza, 1985). Cortese, Ennio, “Alle origini della scuola di Bologna”, RIDC 4 (1993), 7–49. ——, Il diritto nella storia medievale, I-II (Rome, Il Cigno-Galileo Galilei, 1994–1995). ——, Il rinascimento giuridico medievale (Rome, Bulzoni, 1992). ——, La norma giuridica. Spunti teorici nel diritto comune classico, I-II (Milan, Ius Nostrum 6, 1–2, Giuffrè, 1964, repr. 1996). ——, Scritti, eds. Italo Birocchi and Ugo Petronio (Spoleto, Collectanea 10, Cisam, 1999). ——,“Tra glossa, commento e umanesimo”, SS 104 (1992), 462–464. Costa, Pietro, Iurisdictio. Semantica del potere politico nella pubblicistica medievale (1100–1433) (Milan, Università di Firenze, Pubblicazioni della Facoltà di Giurisprudenza 1, Giuffrè, 1969). Costamagna, Giorgio, “L’alto Medioevo”, in Mario Amelotti and Giorgio Costamagna, Alle origini del notariato Italiano (Rome, Studi storici sul notariato italiano 2, Giuffrè, 1975), 149–314. Cowdrey, Edward J., The Age of Abbot Desiderius, Montecassino, the Papacy, and the Normans in the eleventh and early twelfth centuries (Oxford, Clarendon, 1983). Cozzi, Gaetano, Repubblica di Venezia e Stati Italiani. Politica e giustizia dal secolo XVI al secolo XVIII (Turin, Einaudi, 1982).

390 bibliography

Cuomo, Franco, Nel nome di Dio. Roghi, duelli rituali e altre ordalie nell’Occidente medievale cristiano (Rome, Newton & Compton, 1994). Cuozzo, Enrico, “La feudalità del “Regnum” nell’età di Ruggero II”, in Alle origini del costituzionalismo, 153–166. D’Amelio, Giuliana, “Carlo di Tocco”, DBI 20 (Milan, 1977), 305–306. ——, “Notizie di letteratura longobardistica”, Studi economico-giuridici. Università di Cagliari 46 (1969–70), 91–116. D’Amico, Antonio A., “Note su alcuni rapporti tra città e campagna nel contado di Pisa tra XI e XII secolo. Uno sconosciuto statuto rurale del Valdiserchio del 1091–1092”, Bollettino storico pisano 39 (1970), 15–29. Dani, Alessandro, “Aspetti e problemi giuridici della sopravvivenza degli usi civici in Toscana in età moderna e contemporanea”, Archivio storico italiano 157 (1999), 285–326. Dannenberg, Lars-Arne, Das Recht der Religiosen in der Kanonistik des 12. und 13. Jahrhunderts (Dresden, Vita regularis 39, Lit, 2008). Danusso, Cristina, “Federico II e i Libri feudorum”, in Studi di storia del diritto (Milan, see) I, 47–78. Daviso, Maria Clotilde, “La carta di Tenda”, Bollettino storico-bibliografico subalpino 47 (1949), 131–143. De Benedictis, Angela and Pisapia, Annamaria (eds.), Specula principum. Riflesso delle realtà giuridiche (Frankfurt, IC, Sonderhefte 117, Klostermann, 1999). De Marini, Avonzo Franca, Dall’Impero cristiano al Medioevo. Studi sul diritto tardoantico (Goldbach, Bibliotheca eruditorum 24, Keip, 1998). ——, “Secular and Clerical Culture in Dionysius Exiguus’s Rome”, in Proceedings, VI, eds. Stephan Kuttner-Kenneth Pennington (Vatican City, 1985), 83–92. Del Re, Niccolò, La curia capitolina e tre altri antichi organi giudiziari romani (Rome, Istituto di studi romani, 1993). De Vergottini, Giovanni, “Arti e popolo nella prima metà del secolo XIII”, in his Scritti di storia del diritto italiano, ed. G. Rossi (Milan, Giuffrè, 1977), 387–467. ——, Lo Studio di Bologna, l’Impero, il Papato, ed. Carlo Dolcini (Spoleto, Cisam, 1996). ——, “Note sulla formazione degli statuti del popolo”, RSDI 16 (1943), 61–70, also in Scritti (see Arti), 375–386. ——, Studi sulla legislazione imperiale di Federico II (Milan, Giuffrè, 1952). Delogu, Paolo, “La giustizia nell’Italia meridionale longobarda”, in La giustizia… secoli IX-XI, 257–308. Degrassi, Donata, Cormòns nel Medioevo (Monfalcone, Ed. della Laguna, 1996). ——, L’economia artigiana nell’Italia medievale (Rome, La Nuova Italia Scientifica, 1996). Delille, Gérard, Famiglia e proprietà nel Regno di Napoli (Turin, Einaudi, 1988; French ed Rome, 1985). Dictionnaire de droit canonique, sous la dir. de Raoul Naz, I-VII (Paris, Letouzay, 1935–1965). Diurni, Giovanni, Le situazioni possessorie nel Medioevo. Età longobardo-franca (Milan, Quaderni di SS 64, Giuffrè, 1988). ——, Ricerche sull’Expositio ad Librum Papiensem e la scienza giuridica preirneriana (Rome, Biblioteca RSDI 26, Università di Torino, 1976). ——, (ed.), Storia e diritto in ricordo di Guido Astuti (Sassari, Collana dell’Archivio storico e giuridico sardo di Sassari 4, Università di Sassari, 1996). Dogliani, Mario, Introduzione al diritto costituzionale (Bologna, il Mulino, 1994). Dolcini, Carlo, Velut aurora surgente. Pepo, il vescovo Pietro e l’origine dello Studium bolo gnese (Rome, Studi storici 180, Isime, 1987). Dolezalek, Gero, “Argomenti dallo Ius Commune nel diritto moderno sudafricano”, Scienza & Politica 8 (1993), 3–15. ——, “Ein Brief des Rotarichters Geraldus de Podio Fulconis an Kaiser Karl IV”, in Rechtsgeschichte als Kulturgeschichte, Festschrift für Adalbert Erler zum 70. Geburtstag (Aalen, Scientia, 1976), 197–207.

bibliography 391

——, “Nuove tecniche per far luce sulle fonti dal secolo VIII al secolo XV”, in I Seminario de historia del derecho y derecho privado, ed. Joachin Cerdá y Ruiz-Funes, Pier Silvero Coderch (Bellaterra, Universidad. Autónoma de Barcelona, 1985), 37–60. ——, “Stare decisis”, Persuasive Force of Precedent and Old Authority (12th-20th Century) (Cape Town, Inaugural Lecture, University of Cape Town, New Series 156, 1989). Dolezalek, Gero and Nörr, Knut Wolfgang, “Die Rechtsprechungssammlungen der mittelalterichen Rota”, in HQEPRG, 849–856. Dolezalek, Gero and Weigand, Rudolf, “Das Geheimnis der roten Zeichnen. Ein Beitrag zur Paläographie juristischer Handschriften des zwölften Jahrhunderts”, ZRG, Kan. Abt. 100 (1983), 143–199. Dondaine, Antoine, “Le manuel de l’Inquisiteur (1230–1330)”, Archivum Fratrum Praedicatorum” 17 (1947), 85–194. Dondarini, Rolando (ed.), La libertà di decidere. Realtà e parvenze di autonomia nella normativa locale del Medioevo (Cento, Comune, 1995). Donne nella società comunale, ricerche in Umbria, eds. Giovanna Casagrande, Maria Grazia Nico Ottaviani, Carlo Regni and Franco Rosi, Annali della Facoltà di Lettere e Filosofia. 2. Studi storico-antropologici, Università di Perugia 31–32 (1993–1995), 7–85. Doris, Martin J., “The Continued Resonance and Challenge of the “Ius Commune” in Modern European Contract Law”, International Journal of Legal Information 34 (2006), 391–418. Drossbach, Gisela (ed.), Von der Ordnung zur Norm, Statuten in Mittelalter und früher Neuzeit (Paderborn-Munich-Vienna-Zurich, Schoning, 2010). Duby, Georges, La société aux XIe et XIIe siècles dans la région mâconnaise (Paris, 1953). Dufour, Jean, Giordanengo, Gérard and Gouron, André, “L’attrait des ‘leges’. Notes sur la lettre d’un moine victorin (vers 1124/1127)”, SDHI 45 (1979), 504–529. Enzensberger, Horst, “Cultura giuridica e amministrazione nel Regno normanno-svevo”, in Scuole diritto e società (see Bellomo) II, 171–188. Epstein, Steven A., Genoa & the Genoese, 958–1528 (Chapel Hill & London, The Univ. of North Carolina Press, 1996). Errera, Andrea, Arbor actionum. Genere letterario e forma di classificazione delle azioni nella dottrina dei glossatori (Bologna, Archivio per la storia del diritto medievale e moderno 1, Monduzzi, 1995). ——, “Forme letterarie e metodologie didattiche nella scuola bolognese dei glossa tori civilisti, tra evoluzione ed innovazione”, in Studi di storia del diritto medievale, 33–106. Falaschi, Pier Luigi, “Il mundio in alcuni documenti pugliesi della seconda metà del XVI secolo”, Annali della Facoltà giuridica. Università degli Studi di Camerino 39 (1973), 193–256. von Falkenhausen, Vera and Amelotti, Mario, “Notariato e documento nell’Italia meridionale greca (X-XV secolo)”, in Per una storia del notariato meridionale (Rome, Consiglio nazionale del notariato, 1982). Fantini, Maria Grazia, La cultura del giurista. Natura, causa, ratio (Milan, Storia della società, dell’economia e delle istituzioni 2, Franco Angeli, 1998). Fasoli, Gina, “Che cosa sappiamo delle città italiane dell’alto Medioevo”, in Scritti di storia medievale, eds. Francesca Bocchi, Antonio Carile, Antonio Ivan Pini (Bologna, Patron, 1974), 181–198. Fasoli, Gina, “La legislazione antimagnatizia nei Comuni dell’alta e media Italia”, in RSDI 13 (1939), 86–133, 240–309. Fassò, Guido, La filosofia del diritto dell’Ottocento e del Novecento, new ed. by Carla Faralli and Gianfrancesco Zanetti (Bologna, il Mulino, 1994). Feenstra, Robert, “A propos d’un nouveau manuscrit de la version latine du Codi (ms. Lucques, Bibl. Feliniana 437)”, in Fata iuris Romani. Etudes d’histoire du droit (Leiden, Leidse juridische Reeks 13, 1974), 150–172. Feenstra, Robert, “L’actio legis Aquiliae utilis en cas d’homicide chez les glossateurs”, in Le droit savant au Moyen Age et sa vulgaritation (London, Variorum, 1986), chapter viii.

392 bibliography

Feenstra, Robert, “Les origines du dominium utile”, in Fata, 215–259. Ferrari, Zumbini Romano, La lotta contro il tempo nel processo altomedievale. Contributo alla studio della giustizia denegata (Rome, Biblioteca della RSDI 36, Fondazione S. Mochi Onory, 1997). Fiorelli, Piero, “Il placito di Marturi del marzo 1076”, in Santarelli, La funzione del giudice, 179–205. ——, La tortura giudiziaria nel diritto comune, I-II (Milan, Ius Nostrum 1–2, Giuffrè, 1953–54). Fissore, Gian Giacomo, Autonomia notarile e organizzazione cancelleresca del Comune di Asti (Spoleto, Cisam, 1977). Fitting, Hermann, Juristische Schriften des früheren Mittelalters (Halle, 1876, repr Aalen, Scientia, 1965). ——, Lo Codi in der lateinischen Übersetzung des Ricardus Pisanus (Halle, 1906, repr Aalen, Scientia, 1968). Fleckenstein, Joseph, Vom Rittertum im Mittelalter. Perspektiven und Probleme (Goldbach, Bibliotheca eruditorum 19, Keip, 1999). Fögen, Marie Theres, “Sapere e potere nella tarda antichità”, Scienza & politica 9 1993), 3–9. Fois, Barbara, “Sul “codice rurale” di Mariano IV d’Arborea”, Medioevo. Saggi e rassegne 8 (1988), 133–148. ——, “Sulla datazione della Carta de logu”, Medioevo. Saggi e rassegne 19 (1993), 133–148. ——, Territorio e paesaggio agrario nella Sardegna medioevale (Pisa, Univ. di Cagliari, Ets, 1990). Folin, Marco, “Il sistema politico estense fra mutamenti e persistenze (secoli XV–XVIII)”, Società e storia 20 (1997), 505–549. Foresti, Fabio, Picchi, Arnaldo and Trombetti, Anna Laura, Storie dell’antico Studio di Bologna (Bologna, Clueb, 1989). Fortunati, Maura, Scrittura e prova. I libri di commercio nel diritto medievale e moderno (Rome, Biblioteca della RSDI 35, Fondazione Mochi Onory, 1997). Fowler-Magerl, Linda, Ordines iudiciarii and Libelli de ordine iudiciorum (From the Middle of the Twelfth to the End of the Fifteenth Century) (Turnhout, Typologie des sources du Moyen Age occidental 63, A-III.1, Brepols, 1994). Fransen, Gérard, Canones et Quaestiones. Evolution des doctrines et système du droit canonique, ed. Antonio García y García, Domenico Maffei, Peter Landau, I–III (Goldbach, Bibliotheca eruditorum 25, Keip, 2002). ——, “Jurisdiction et pouvoir législatif”, in Acta conventus internationalis canonistarum, 212–229 (Vatican City, 1970). Fried, Johannes, Die Entstehung des Juristenstandes im 12. Jahrhundert. Zur sozialen Stellung und politischen Bedeutung gelehrter Juristen in Bologna und Modena (Cologne-Vienna, Forschungen zur neueren Privatrechtsgeschichte 21, Böhlau, 1974). ——, “Die Rezeption Bologneser Wissenschaft in Deutschland während des 12. Jahrhunderts”, Viator 21 (1990), 103–145. ——, “Die römische Kurie und die Anfänge der Prozessliteratur”, ZRG, Kan. Abt. 59 (1973), 166–167. Frova, Carla, “Città e “Studium” a Vercelli (secoli XII e XIII)”, in Luoghi e metodi di insegnamento nell’Italia medioevale (secoli XII–XIV), eds. Luciano Gargan–Oronzo Limone (Galatina, Congedo, 1989), 83–99. ——, “Le traité De fluminibus de Bartolo de Sassoferrato (1355)”, Médiévales 36 (1999), 81–89. Frugoni, Chiara, Francis of Assisi, A Life (New York, Continuum, 1998). Fubini, Riccardo, Quattrocento fiorentino. Politica diplomazia cultura (Pisa, Pacini, 1996). Fuhrmann, Horst, Einfluss und Verbreitung der pseudoisidorischen Fälschungen, I-III (Stuttgart, Hiersemann, 1972–1974). ——, “Über den Reformgeist der 74. Titel-Sammlung”, in Festschrift für Hermann Heimpel, II (Göttingen, Vandenhoeck & Ruprecht, 1972), 1101–1120.

bibliography 393

Galgano, Francesco, Lex mercatoria. Storia del diritto commerciale, II ed (Bologna, il Mulino, 1993). Garancini, Gianfranco, “Consuetudo et statutum ambulant pari passu, la consuetudine nei diritti italiani del basso Medio evo”, RSDI 58 (1985), 19–55; in French in La coutume – Custom, II 2, Bruxelles, Recueils de la Société Jean Bodin, 52, Librairie encyclopedique, 1990), 121–150. García y García, Antonio, Derecho comun en España, los iuristas y sus obras (Murcia, Universidad de Murcia, 1991). ——, Historia del derecho canonico (Salamanca, Subsidia 1, Instituto de historia de la teologia española, 1967). García y García, Antonio and Weimar, Peter (eds.), Miscellanea Domenico Maffei dicata. Historia. Ius. Studium, I-IV (Goldbach, Keip, 1995). Garfagnini, Gian Carlo (ed.), Savonarola e la politica (Florence, Olschki, 1998). Gaudemet, Jean, “A propos de la preuve dans le droit canonique médiéval”, in Miscellanea Domenico Maffei dicata, II, 1–10. ——, Les sources du droit canonique, VIIIe-XXe siècle (Paris, Cerf, 1993). ——, Storia del diritto canonico. Ecclesia et Civitas (Cinisello Balsamo, San Paolo, 1998; French ed., Paris, 1994). Gauvard, Claude (ed.), L’enquête au moyen age (Rome, Collection de l’École française de Rome 399, École française de Rome, 2009). Gay, Giovanni, L’Italia meridionale e l’Impero bizantino. Dall’avvento di Basilio I alla resa di Bari ai Normanni (867–1071) (Florence, 1917; repr. Sala Bolognese, Forni 1980). Gazzaniga, Jean-Louis, L’Eglise de France a la fin du Moyen Age. Pouvoirs et institutions (Goldbach, Bibliotheca eruditorum 11, Keip, 1995). Ghignoli, Antonella, “Note intorno all’origine di un ‘ius libellarium’”, Archivio storico ita liano 156 (1998), 413–446. Gianazza, Egidio and D’Ilario, Giorgio, Vita e opere di Giovanni da Legnano (Legnano, Landoni, 1983). Giansante, Massimo, Retorica e politica nel Duecento. I notai bolognesi e l’ideologia comunale (Rome, Nuovi studi storici 48, Isime, 1999). Giordanengo, Gérard, “Les feudistes (XIIe-XVe s).”, in El dret comú i Catalunya, II, ed. Aquilino Iglesia Ferreirós (Barcelona, Fondació Noguera, 1992), 67–139. ——, “Résistences intellectuelles autour de la Décrétale Super speculam (1219)”, in Histoire et société. Mélanges offerts à G. Duby, III (Aix-en-Provence, Université de Provence, 1992), 141–155. Giovinazzo, Eleonora, I trasferimenti feudali in Sicilia. Le Repetitiones sui capitoli Si aliquem e Volentes di Blanco Lanza (Milan, Pubblicazioni. della Facoltà di Giurisprudenza dell’Università di Messina 186, Giuffrè, 1996). Girgensohn, Dieter, “Francesco Zabarella da Padova. Dottrina e attività politica di un professore di diritto durante il grande scisma d’Occidente”, Quaderni per la storia dell’Università di Padova 26/27 (1993–94), 1–48. ——, Recensione a Jean Coste, Boniface VIII en procès, IC 24 (1997), 385–390. Giuffrida, Antonio, La giustizia nel medioevo siciliano (Palermo, Manfredi, 1975). Gli orizzonti aperti. Profili del mercante medievale, ed. Gabriella Airaldi (Turin, Scriptorium, 1997). Golinelli, Paolo (ed.), La Pataria. Lotte religiose e sociali nella Milano dell’XI secolo (Milano, Jaca, 1984). Goria, Fausto, Tradizione Romana e innovazioni bizantine nel diritto privato dell’Ecloga privata aucta. Diritto matrimoniale (Frankfurt, Klostermann, 1980). Gouron, André, “Aux origines de l’influence des glossateurs en Espagne”, in Etudes sur la diffusion des doctrines juridiques médiévales, chapter VI (London, Variorum, 1987). ——, “L’auteur et la patrie de la Summa Trecensis”, in Etudes sur la diffusion des doctrines juridiques médiévales, chapter IX (London, Variorum, 1984). ——, “Lo Codi, source de la somme au Code de Rogerius”, in Etudes sur la diffusion des doctrines juridiques médiévales, chapter XI (London, Variorum, 1987).

394 bibliography

——, “Rogerius, Quaestiones de iuris subtilitatibus et pratique arlésianne, à propos d’une sentence archiépiscopale (1141, 5 Novembre)”, in La science du droit dans le Midi de la France, chapter XIV (London, Variorum, 1984). ——, “Sur les plus anciennes rédaction coutumières du Midi, les ‘chartes’ consulaires d’Arles et d’Avignon”, Annales du Midi 109 (1997), 189–200. ——, “Une école juridique française dans la première moitié du XIIe siècle”, Recueil de mémoires et travaux… Montpellier 9 (1974 = Mélanges Aubenas), 363–373. ——, “Une école ou des écoles? Sur les canonistes français (vers 1150-vers 1210)”, in Proceedings… VI (Vatican City, MIC Subsidia 7, 1985, Biblioteca Apostolica Vaticana), 223–240. Del Gratta, Rodolfo, Feudum a fidelitate. Esperienze feudali e scienza giuridica dal Medioevo all’Età moderna (Pisa, Pubblicazioni del seminario di scienze giuridiche e politiche dell’Università di Pisa 29, Ets, 1994). Greci, Roberto, Corporazioni e mondo del lavoro nell’Italia padana medievale (Bologna, Biblioteca di storia urbana medievale 3, 1988). Grossi, Paolo, A History of European Law (Oxford, Wiley-Blackwell, 2010). ——, Il dominio e le cose (Milan, Per la storia del pensiero giuridico moderno 41, Giuffrè, 1992). ——, L’ordine giuridico medievale (Bari-Rome, Laterza, 1994). ——, Locatio ad longum tempus – Locazione e rapporti reali di godimento nella problema tica del diritto comune (Naples, Morano, 1963). ——, “Somme penitenziali, diritto canonico, diritto comune”, Annali della Facoltà Giuridica di Macerata n.s. 1 (1966), 95–134. Gualazzini, Ugo, “Ancora sulla scuola giuridica reggiana nel Medio Evo”, Studi parmensi 4 (1953), 361–383. ——, “Contributi alla storia della scuola giuridica cremonese nel XII e XIII secolo”, in Studi in onore di Arrigo Solmi, II, 65–116 (Milan, Giuffrè, 1940). ——, La scuola giuridica reggiana nel Medio Evo con appendice di documenti e testi (Milan, Giuffrè, 1952). Guerra Medici, Maria Teresa, L’aria della città. Donne e diritti nel Comune medievale (Naples, Esi, 1996). Guillaume Durande, Evêque de Mende (v. 1230–1296), canoniste, liturgiste et homme politique (Paris, Cnrs, 1992). Guimbard, Catherine, “Appunti sulla legislazione suntuaria a Firenze dal 1281 al 1384”, Archivio storico italiano 150 (1992), 57–81. Hageneder, Othmar, Die geistliche Gerichtsbarkeit in Ober- und Niederösterreich von den Anfängen bis zum Beginn des 15. Jahrhunderts (Graz-Wien-Köln, Foschungen zur Geschichte Oberösterreichs 10, Böhlau, 1967). Hartmann, Wilfried and Pennington, Kenneth (eds.), The History of Medieval Canon Law in the Classical Period, 1140–1234. From Gratian to the Decretals of Pope Gregory IX (Washington D.C., History of Medieval Canon Law, The Catholic University of America Press, 2008). Haskins, Charles O., The Renaissance of the Twelfth Century (Cambridge, Mass., 1927). Hattenhauer, Hans, Europäische Rechtsgeschichte (Heidelberg, Müller, 1992). Haverkamp, Alfred, Herrschaftsformen der Frühstaufer in ReichsItalien, I-II (Stuttgart, 1970). ——, “Magna Carta and the ius commune”, University of Chicago Law Review 66 (1999), 297–371. ——, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, The Oxford History of the Laws of England I, 2004). ——, The Spirit of Canon Law (Charlottesville, Virginia University Press, 1997). Herde, Peter, Audientia litterarum contradictarum. Untersuchungen über die päpstlichen Justizbriefe und die päpstliche Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts (Tübingen, Niemeyer, 1970).

bibliography 395

Hoffmann, Hartmut and Pokorny, Rudolf, Das Dekret des Bischofs Burchard von Worms. Textstufen – Frühe Verbreitung – Vorlagen (München, MGH, 1991). Horn, Norbert, “Die legistische Literatur der Kommentatoren und der Ausbreitung des gelehrten Rechts”, HQLERG, 261–364. I rapporti contrattuali con la pubblica amministrazione nell’esperienza storico-giuridica (Naples, Società italiana di storia del diritto, Jovene, 1997). Ibbettson, David J., A Historical Introduction to the Law of Obligations (Oxford, University Press, 1999). Iglesia Ferreirós, Aquilino, “La formación de los libros de Consulado de mar”, Initium 2 (1997), 1–372. ——, (ed.), Actes del I Simposi jurídic Principat d’Andorra/República de San Marino, I-II, (Andorra, Institut d’Estudis Andorrans, 1994). ——, (ed.), El dret comú i Catalunya (Barcelona, Fondació Noguera, 1999). ——, “Rex superiorem non recognoscens. Hugolino de Sesso y el Studium de Palencia”, Initium 3 (1998), 1–205. Il contratto di mezzadria nella Toscana medievale, I, ed. Giuliano Pinto and Paolo Pirillo, II, ed. Oretta Muzzi and Maria Daniela Nenci, III, ed. Gabriella Piccinni (Florence, Studi 87, 89, 124, Accademia toscana di scienze e lettere La Colombaria-Olschki, 1987, 1988, 1992). Il notariato italiano del periodo comunale (Piacenza, Tip.Le.Co., 1999). Izbicki, Thomas M., Friars and Jurists. Selected Studies (Goldbach, Bibliotheca eruditorum 20, Keip). Jasper, John, Des Papstwahldekret von 1059, Überlieferung und Textgestalt (Sigmaringen, Thoerbecke, 1986). Jones, Philip, The Italian City-State. From Commune to Signoria (Oxford, Clarendon, 1997). Kantorowicz, Ernst H., The King’s Two Bodies (Princeton, Princeton University Press, 1957). Kantorowicz, Hermann, “De pugna. La letteratura longobardistica sul duello giudiziario”, in Rechtshistorische Schriften, ed. Helmut Coing and Georg Immel (Karlsruhe, Freiburger Rechts– und Staaswissenschaftliche Abhandlungen 30, 1970), 255–271. Kantorowicz, Hermann and Buckland, William W., Studies in the Glossators of the Roman Law, ed. with addenda by Peter Weimar (Aalen, Scientia, 1969, first publ. Cambridge, 1938). Kaser, Max, Storia del diritto romano (Milan, Cisalpino, 1977). Katz, Stanley N. (ed.), The Oxford International Encyclopedia of Legal History, I-VI (Oxford University Press, 2009). Kay, Richard, “Roman Law in Dante’s Monarchia”, in Councils and Clerical Culture in the Medieval West, chapter XIV. Aldershot,Variorum (CS), 1997. Keller, Hagen, “Das Bildnis Kaiser Heinrichs im Regensburger Evangeliar aus Montecassino (Bibl. Vat., Ottob. Lat. 74)”, Frühmittelalterliche Studien 30 (1996), 173–217. ——, “Gli statuti dell’Italia settentrionale come testimonianza e fonte per il processo di affermazione della scrittura nei secoli XII e XIII”, in Le scritture del Comune, ed. Giuliana Albini (Turino, Scriptorium, 1998), 61–94. ——, “I placiti nella storiografia degli ultimi cento anni”, in Fonti medievali e problematica storiografica, I (Rome, Isime, 1976), 41–68. ——, Signori e vassalli nell’Italia delle città (secoli IX-XII) (Turin, Utet, 1995; from German ed. 1979). Keller, Hagen and Neiske, Franz (eds.),Vom Kloster zum Klosterverband. Das Werkzeug der Schriftlichkeit (Munich, Fink, 1997). Kelly, John M., A Short History of Western Legal Theory (Oxford, University Press, 1992). Kéry, Lotte, “Inquisitio - denunciatio - exceptio, Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht”, ZRG kan. Abt. 87 (2001), 226–268. Kirshner, Julius and Fonay Wemple, Susanne (eds.), Women of the Medieval World. Essays in Honor of John H. Mundy (Oxford, Blackwell, 1987). Klein, Robert, Il processo di Girolamo Savonarola, Prefazione di Adriano Prosperi (Ferrara, Corbo, 1998).

396 bibliography

Köbler, Gerhard, “Recht, Gesetz und Ordnung im Mittelalter”, in Funktion und Forum, ed. Karl Kroeschell and Albrecht Cordes (Berlin, Schriften zur europäischen Rechts- und Verfassungsgeschichte 18, 1996). Körntgen, Ludger, Studien zu der Quellen der frühmittelalterlichen Bussbücher (Sigmaringen, Quellen und Forschungen zum Recht im Mittelalter 7, Thorbecke, 1993). Krynen, Jacques, L’empire du roi. Idées et croyances politiques en France XIIIe-XVe siècle (Paris, Gallimard, 1993). ——, (ed.), Droit romain Jus civile et droit français (Toulouse, Etudes d’histoire du droit et des idées politiques 3, Presses de l’Université de Toulouse, 1999). Kuehn, Thomas, Law, Family and Women, Toward a Legal Anthropology of Renaissance Italy (Chicago, The University of Chicago Press, 1991). Kunkel, Wolfgang, An Introduction to Roman Legal and Constitutional History, trans. John M. Kelly (Oxford, 1966). Kurze, Wilhelm, “Gli albori dell’Abbazia di Marturi”, in Monasteri e nobiltà nel senese e nella Toscana meridionale. Studi diplomatici, archeologici, genealogici, giuridici e sociali (Siena, Accademia Senese degli Intronati, 1989), 165–201; in German translation in QFIAB 49 (1969), 239–272). Kuttner, Stephan, “Bernardus Compostellanus Antiquus. A Study in the Glossators of the Canon Law”, in Gratian, chapter VII. ——, Gratian and the Schools of Law, 1140–1234. (London, Variorum, 1983). ——, “Notes on the ‘Glossa ordinaria’ of Bernard of Parma”, in Studies in the History, chapter XIV, with new retractationes. ——, “On ‘Auctoritas’ in the Writing of Medieval Canonists, the Vocabulary of Gratian”, in Studies in the History, chapter VII. ——, “Papst Honorius III. und das Studium des Zivilrechts”, in Gratian, chapter x. ——, “Raymond of Peñafort as Editor, The ‘decretales’ and ‘constitutiones’ of Gregory IX”, in Diritto persona e vita sociale. Scritti in memoria di Orio Giacchi, I (Milan, Giuffrè, 1984), 94–108. ——, “Réflexions sur les Brocards des Glossateurs”, in Gratian and the Schools of Law, chapter IX (London, Variorum, 1983). ——, Studies in the History of Medieval Canon Law (Aldershot, Variorum 1990). ——, “Urban II and Gratian”, Traditio 24 (1968), 504–505. ——, The Revival of Jurisprudence, in Studies in the History (see above), chapter III, with new retractationes). Kuttner, Stephan and Duggan, Charles, Twelfth-Century Decretal Collections and their Importance in English History (London, Athlone Press, 1963). Kuttner, Stephan and Smalley, Beryl, “The Glossa ordinaria to the Gregorian Decretals”, in Studies in the History (see above) chapter XIII. Lett, Didier and Lucken, Christopher (eds.), L’adoption, droit et pratiques, in Médiévales 35, Automne 1998. L’assicurazione in Italia fino all’Unità, Saggi storici in onore di Eugenio Artom (Milan, Giuffrè, 1975). La giustizia nell’alto Medioevo (secoli IX-XI), I-II (Spoleto, Settimane di studio 44, Cisam, 1997). La giustizia nell’alto Medioevo (secoli V-VIII) (Spoleto, Settimane di studio 42, Cisam, 1995). Landau, Peter, “Die kirchliche Justizgewährung im Zeitalter des Reform in den Rechtssammlungen”, in La giustizia… secoli IX-XI, 427–456. ——, Kanones und Dekretalen. Beiträge zur Geschichte der Quellen der kanonischen Rechts (Goldbach, Bibliotheca eruditorum 2, Keip 1997). ——, Kanonisches Recht und Religionsfreiheit in der europäischen Rechtsgeschichte (Goldbach, Bibliotheca eruditorum 30, Keip, 1997). Lang, Alois, “Die rethorische Einflüsse auf die Behandlung des Processes in der Kanonistik des 12. Jahrhunderts”, in Festschrift Eduard Eichmann (Paderborn, Schoningh, 1940), 69–97.

bibliography 397

Lange, Hermann, Römisches Recht im Mittelalter, I, Die Glossatoren (Munich, Beck, 1997). Laspeyres, Ernst A., Über die Entstehung und älteste Bearbeitung der Libri Feudorum (Berlin, 1830). Lattes, Alessandro, “Le ingrossazioni nei documenti parmensi”, Archivio storico per le provincie parmensi 14 (1914), 207–233. Le Pandette di Giustiniano. Storia e fortuna di un codice illustre, Giornate di studio (Florence, Olschki, 1986). Le Roy Ladurie, Emmanuel, Montaillou (New York, Vintage, 1979). Legendre, Pierre, “Alle origini della cultura occidentale, l’antico diritto della penitenza”, in Una componente, 103–124. ——, L’amour du censeur, essai sur l’ordre dogmatique (Paris, Le Seuil, 1974). ——, “Le droit romain, modèle et langage”, in Ecrits juridiques du Moyen Age occidental, chapter VIII (London, Variorum, 1988). Leicht, Pier Silverio, “I diplomi regi ed imperiali in favore delle città”, in Scritti vari di storia del diritto italiano, I (Milan, Giuffrè, 1943), 535–542. Leicht, Pier Silverio, “Leggi e capitolari in una querimonia amiatina dell’a. 1005–6”, Bullettino senese di storia patria 14 (1907), 536–557. ——, “Livellario nomine”, in Scritti vari di storia del diritto italiano, II 2 (Milan, Giuffrè, 1948), 89–146. ——, Storia del diritto italiano. Le fonti, repr. IV ed. rev. by Carlo Guido Mor (Milan, Giuffrè, 1966). Lepsius, Susanne, and Wetzstein, Thomas (eds.), Als die Welt in die Akten kam. Prozessschriftgut im europäischen Mittelalter (Rechtssprechung, Materialien und Studien 27, Klostermann, 2008). Les Universités du Langedoc au 13.e siècle (Toulouse, Cahiers de Fanjeaux 5, Privat, 1971). von Lingenthal, Zachariäe Karl Eduard, Geschichte des griechisch-römischen Rechts, III ed (Berlin 1892, repr. by M. San Nicolò, Aalen, Scientia, 1955). Liotta, Filippo, La continenza dei chierici nel pensiero canonistico classico (Milan, Quaderni di SS 24, Giuffrè, 1971). ——, “Vicende Bolognesi della constitutio “In Basilica Beati Petri” di Federico II”, in Vitam impendere magisterio. Profilo intellettuale e scritti in onore dei professori Reginaldo M. Pizzorni e Giuseppe di Mattia (Vatican City, 1993), 79–92. ——, (ed.), Studi di storia del diritto medioevale e moderno (Bologna, Monduzzi, 1999). Lombardi, Luigi, Saggio sul diritto giurisprudenziale (Milan, Giuffrè, 1967). Lucrezi, Francesco, Leges super principem. La monarchia costituzionale di Vespasiano (Neaples, Pubblicazioni della Facoltà Giurisprudenza 195, Università di Napoli, Jovene, 1982). Lupinetti, Mario Q., Francesco Petrarca e il diritto (Alessandria, Studi e ricerche 4, Ed. dell’Orso, 1995). Lupoi, Maurizio, “Il diritto comune europeo in Inghilterra. Profili terminologici”, in Scintillae iuris. Studi in memoria di Gino Gorla, I (Milan, Giuffrè, 1994), 1065–1076. ——, The Origins of the European Legal Order (Cambridge, University Press, 2000). Maffei, Domenico, “Fra Cremona, Montpellier e Palencia nel secolo XII. Ricerche su Ugolino da Sesso”, now with addenda in his Studi di storia, chapter I. ——, “Giovan Battista Caccialupi biografo”, in ZRG kan. Abt. 83 (1997), 392–400. ——, Giuristi medievali e falsificazioni editoriali del primo Cinquecento (Frankfurt am Main, IC, Sonderhefte 10, Klostermann, 1979). ——, Gli inizi dell’umanesimo giuridico (Milan, Giuffrè, 1956). ——, La donazione di Costantino nei giuristi medievali (Milan, Giuffrè, 1964). ——, Studi di storia delle Università e della letteratura giuridica (Goldbach, Bibliotheca eruditorum 1, Keip, 1995). ——, “Un trattato di Bonaccorso degli Elisei e i più antichi statuti dello Studio di Bologna nel manoscritto 22 della Robbins Collection”, now with addenda in his Studi di storia, chapter II.

398 bibliography

Maffei, Domenico and Maffei, Paola, Angelo Gambiglioni giureconsulto aretino del Quattrocento (Rome, Biblioteca della RSDI 34, Fondazione Mochi Onory, 1994). Maffei, Paola, “Un “consilium” della fine del Duecento in tema di acque (con notizie su Iacopo d’Arena, Riccardo Petroni ed altri consulenti)”, in Scritti di storia, 135–152. Maire-Vigueur, Jean-Claude and Paravicini Bagliani, Agostino (eds.), La parola all’accusato (Palermo, Sellerio, 1991). Mallet, Jean and Thibaut, André, Les manuscrits en écriture bénéventaine de la Bibliothèque capitulaire de Bénévent, II-III. (Turnout, CNRS Editions-Brepols, 1997). Manaresi, Cesare, “Introduzione”, in I placiti. Mancuso, Fulvio, Exprimere causam in sententia. Ricerche sul principio di motivazione della sentenza nell’età del diritto comune classico (Milan, Quaderni di SS 89, Giuffrè, 1999). Mannori, Luca, Il sovrano tutore. Pluralismo istituzionale e accentramento amministrativo nel principato dei Medici (Secc. XVI-XVIII) (Milan, Per la storia del pensiero giuridico moderno 45, Giuffrè, 1994). Manselli, Raoul, “Il matrimonio nei Penitenziali”, in Una componente, 185–213. Manzin, Maurizio, Il petrarchismo giuridico. Filosofia e logica del diritto agli inizi dell’umanesimo (Padua, Dipartimento di scienze giuridiche, Università di Trento 20, Cedam, 1994). Marino, John A., and Kuehn, Thomas (ed.), A Renaissance of Conflicts, Visions and Revisions of Law and Society in Italy and Spain (Toronto, Ont., Centre for Reformation and Renaissance Studies, 2004). Marrone, Matteo, Istituzioni di diritto Romano (Palermo, Palumbo, 1994). Martin, J. Doris, “The Continued Resonance and Challenge of the “Ius Commune” in Modern European Contract Law,” International Journal of Legal Information 34 (2006), 391–418. Martines, Lauro, Lawyers and Statecraft in Renaissance Florence (Princeton, University Press, 1969). Martino, Federico, Dottrine di giuristi e realtà cittadine nell’Italia del Trecento. Ranieri Arsendi a Pisa e a Padova (Catania, Studi e ricerche dei Quaderni catanesi, 5, Tringale, 1984). ——, “Giuristi di scuola e pratici del diritto a Reggio e a Padova. Il ms. Olomouc C. 0.40”, Quaderni catanesi di studi classici e medievali 16 (1986), 423–445. ——, “Umanisti, giuristi, uomini di Stato a Firenze fra Trecento e Quattocento. Lorenzo d’Antonio Ridolfi”, in Studi in memoria di Mario Condorelli, III (Milan, Giuffrè, 1988), 177–200. ——, “Una perduta Summa Authenticorum di Accursio”, RSDI 61 (1988), 171–179. Marvulli, Nicola, “Nómos Rhodìon e Ordinamenta et consuetudo maris edita per consules civitatis Trani”, Archivio storico pugliese 16 (1963), 42–64. Massetto, Gian Paolo, “Le fonti del diritto nella Lombardia del Quattrocento”, in Milano e Borgogna. Due Stati principeschi tra Medioevo e Rinascimento, ed. Jean-Marie Cauchies and Giorgio Chittolini (Rome, Europa delle corti 47, Bulzoni, 1990), 49–65. Mattone, Antonello, “Problemi di storia del parlamento sardo (XIV-XVII secolo)”, Università di Perugia, Annali della Fac. di Scienze politiche 19 (1982–83), 151–184. ——, “Un mito nazionale per la Sardegna. Eleonora d’Arborea nella tradizione storiografica (XVI-XIX secolo)”, in Società e cultura nel giudicato d’Arborea e nella Carta de logu, ed. Giampaolo Mele (Comune di Oristano, 1995), 28–39. Mattone, Antonello and Tangheroni, Marco (eds.), Gli statuti sassaresi. Economia, società, istituzioni a Sassari nel Medioevo e nell’età moderna (Sassari, Edes, 1986). Mayali, Laurent, Droit savant et coutumes. L’exclusion des filles dotées XIIème-XVème siècles (Frankfurt am Main, IC, Sonderhefte 33, Klostermann, 1987). Mazzacane, Aldo, “Lo Stato e il Dominio nei giuristi veneti durante il “secolo della Terraferma”, in Storia della cultura veneta, III.1 (Vicenza, Neri Pozza, 1979), 575–648. ——, “Sistematiche giuridiche e orientamenti politici e religiosi nella giurisprudenza tedesca del secolo XVI”, in Studi di storia ed. Filippo Liotta (Bologna, 1999), 213–252.

bibliography 399

McCormick, Michael, Eternal Victory, Triumphal Rulership in Late Antiquity, Byzantium and the Early Medieval West (Cambridge, University Press, 1990). Meccarelli, Massimo, Arbitrium. Un aspetto sistematico degli ordinamenti giuridici in età di diritto comune (Milan, Università di Macerata, Pubblicazioni della Facoltà di Giurisprudenza 93, Giuffrè, 1998). Ménager, Léon-Robert, “La législation sud-italienne sous la domination normande”, in I normanni e la loro espansione in Europa nell’alto medioevo (Spoleto, Settimane 16, Cisam, 1969), 439–496. ——, “Notes sur les codifications byzantines et l’Occident”, Varia. Etudes de droit Romain 16 (1958), 205–211. Menant, François, Campagnes lombardes au moyen âge (Rome, Collection de l’Ecole, Ecole Française de Rome, 1993). Menestò, Enrico (ed.), Gli statuti comunali umbri, Atti del convegno svoltosi in occasione del VII centenario della promulgazione dello statuto comunale di Spoleto, 1996 (Spoleto, Quaderno del Centro per il collegamento degli studi medievali e umanistici in Umbria 39, Cisam, 1997). Merlo, Grado Giovanni, Eretici ed eresie medievali (Bologna, il Mulino, 1989). ——, Eretici e inquisitori nella società piemontese del Trecento, con l’edizione dei processi tenuti a Giaveno (1335) e nelle valli del Lanzo (1373) (Turin, Claudiana, 1977). Mesini, Candido, “Postille sulla biografia del “magister Gratianus” padre del diritto cano nico”, Apollinaris 54 (1982), 509–537. Meyer, Christoph H.F., “Auf der Suche nach dem lombardischen Strafrecht. Beobach tungen zu den Quellen des 11. Jahrhunderts”, in Neue Wege strafrechtsgeschichtlicher Forschung, ed. Hans Schlosser and Dietmar Willoweit (Cologne, Böhlau, 1999), 341–388. Miccoli, Giovanni, Pietro Igneo. Studi sull’età gregoriana (Rome, Studi storici 40–41, Isime, 1960). Michaélidès, Nouaros Georges, “Quelques remarques sur le pluralisme juridique en Byzance”, Byzantiná 9 (1977), 419–446. Michaud-Quantin, Pierre, Universitas. Expressions du mouvement communautaire dans le Moyen Age latin (Paris, Vrin, 1970). Migliorino, Francesco, “Alchimia lecita e illecita nel Trecento. Oldrado da Ponte”, Quaderni medievali 11 (1981), 6–41. ——, In terris Ecclesiae, frammenti di ius proprium nel Liber Extra di Gregorio IX (Rome, I Libri di Erice 3, Il Cigno Galileo Galilei, 1992). Minnucci, Giovanni, “Alle origini del giubileo cristiano”, Annuario. Istituto storico dioce- sano Siena (1998–99), 11–27. ——, La capacità processuale della donna nel pensiero canonistico classico, I-II (Milano, Quaderni di SS 68, 79, Giuffrè, 1989–1994). Miquel, Juan, “Mechanische Fehler in der Überlieferung der Digesten”, ZRG rom. Abt. 80 (1963), 233–286. Mochi Onory, Sergio, Fonti canonistiche dell’idea moderna dello Stato (Imperium spirituale – iurisdictio divisa – sovranità) (Milan, Pubblicazioni dell’Università cattolica del S. Cuore n. s. 38, Giuffrè, 1951). Mommsen, Theodor, Disegno del diritto pubblico romano (Cisalpino, Varese-Milano, 1943; from German ed. 1893). Montanari, Massimo, Contadini e città fra ‘Langobardia’ e ‘Romania’ (Florence, Quaderni di storia urbana e rurale 8, Salimbeni, 1988). Montorzi, Mario, “Processi di ‘standardizzazione’ testuale, Margaritae, gemmae, tabulae. Un primo approccio di studio”, in Studi in onore di Piero Bellini, I (Soveria Mannelli, Rubettino, 2000), 501–522. ——, Taccuino feliniano. Schede per lo studio della vita e l’opera di Felino Sandei (Pisa, Acta doctorum Academiae Pisanae 1, Edistudio, 1984). Mordek, Hubert, “Dalla riforma gregoriana alla ‘Concordia discordantium canonum’ di Graziano, osservazioni marginali di un canonista su un tema non marginale”, in Chiesa

400 bibliography

diritto e ordinamento della ‘Societas christiana’ nei secoli XI e XII, 92–105 (Milan, Vita e pensiero, 1986). Morris, Colin, “Judicium Dei, the Social and Political Significance of the Ordeal in the Eleventh Century”, in Church, Society and Politics. Papers Read at the Thirteenth Summer Meeting and the Fourteenth Winter Meeting of the Ecclesiastical History Society, ed. Derek Baker, 95–111 (Oxford, Studies in Church History 12, Blackwell, 1975), 95–111. Moschetti, Guiscardo, “Tre documenti veronesi dei secoli XI e XII e la ‘Lex Romana canonice compta’. Nota per la storia del diritto romano nel Medioevo”, Atti e memorie della R. Accademia di scienze, lettere e arti di Padova n.s. 48 (1931–32), 401–436. Mueller, Reinhold C., The Venetian Money Market. Banks, Panics, and the Public Debt, 1200–1500 (Baltimore-London, The Johns Hopkins University Press, 1997). Müller, Wolfgang P., Huguccio. The Life, Works, and Thought of a Twelfth-Century Jurist (Washington (Washington D.C., Studies in Medieval and Early Modern Canon Law 3, Catholic University Press, 1994). ——, “The Recovery of Justinian’s Digest in the Middle Ages”, BMCL 20 (1990), 2–5. Müller, Wolfgang P. and Sommar, Mary E. (eds.), Medieval Church Law and the Origins of the Western Legal Tradition. A Tribute to Kenneth Pennington (Washington D.C., The Catholic University of America, 2006). Munier, Charles, “L’autorité de l’Eglise dans le systeme des sources du droit médiéval”, in Vie conciliaire et collections canoniques en Occident, IVe-XIIe siècles (London, Variorum, 1987), chapter XXI. Mura, Eleonora, “Ancora sulla comunione dei beni nel matrimonio assa sardisca”, Archivio storico sardo di Sassari 5 (1979), 125–138. Muzzarelli, Maria Giuseppina, Penitenze nel Medioevo. Uomini e modelli a confronto (Bologna, Il mondo medievale 22, Pàtron, 1994). ——, (ed.), Una componente della mentalità occidentale, i penitenziali nell’alto medioevo (Bologna, Pàtron, 1980). Muzzarelli, Maria Giuseppina and Campanini, Antonella (ed.), Disciplinare il lusso. La legislazione suntuaria in Italia e in Europa tra Medioevo ed Età moderna (Rome, Carocci, 2003). Nardi, Paolo, “Contributo alla biografia di Federico Petrucci con notizie inedite su Cino da Pistoia e Tancredi da Corneto”, in Scritti di storia, 153–180. ——, “Dalle Scholae allo Studium generale, la formazione delle università medievali”, in Studi di storia del diritto medievale, 1–32. ——, “Diritto civile e diritto canonico”, in Lo spazio letterario, 551–540. ——, “Fonti canoniche in una sentenza senese del 1150”, SG 29 (1998), 661–670. ——, “Le origini del concetto di ‘Studium generale’”, RIDC 3 (1992), 47–78. ——, Mariano Sozzini giureconsulto senese del Quattrocento (Milan, Quaderni di SS 32, Giuffrè, 1974). ——, Studi sul banchiere nel pensiero dei glossatori (Milan, Quaderni di SS 44, Giuffrè, 1979). Nehlsen von Stryk, Karin, ““Ius commune”, “consuetudo” e “arbitrium iudicis” nella prassi giudiziaria veneziana del Quattrocento”, in Diritto comune diritto commerciale diritto veneziano, ed. Karin Nehlsen von Stryk and Dieter Nörr (Venice, Quaderni 31, Centro Tedesco di studi Veneziani, 1985). ——, L’assicurazione marittima a Venezia nel XV secolo (Rome, il Veltro, 1988). Nicolaj, Giovanna, “Ambiti di copia e copisti di codici giuridici in Italia (secoli V-XII in.)”, in Studi in onore di Ennio Cortese (Roma, 1997), 478–496. ——, Cultura e prassi di notai preirneriani. Alle origini del rinascimento giuridico (Milan, Ius Nostrum 19, Giuffrè, 1991). ——, “Documento privato e notariato, le origini”, in Notariado público y documento privado, de los orígenes al siglo XIV, Actas del VII Congreso Internacional de Diplomática, Valencia, 1986, II (Valencia, Generalitat Valenciana, 1989), 973–990.

bibliography 401

——, “Forme di studi medioevali. Spunti di riflessione”, in L’Università e la sua storia, 59–91, and in Miscellanea Domenico Maffei dicata, III, 183–217. ——, “Formulari e nuovo formalismo nei processi del Regnum Italiae”, in La giustizia, 347–379. ——, “Il documento privato italiano nell’alto Medioevo”, in Libri e documenti d’Italia, dai Longobardi alla rinascita delle città, ed. C. Scalon (Tavagnacco, Libri e biblioteche 4, Arti grafiche friulane, 1996), 153–198. ——, “Per una storia della documentazione vescovile aretina dei secoli XI-XIII. Appunti paleografici e diplomatici”, Annali della Scuola speciale per archivisti e bibliotecari dell’Università di Roma 17–18 (1977–78), 144–145. Nicolini, Ugo, “Diritto Romano e diritti partioclari in Italia nell’età comunale”, RSDI 59 (1986), 13–172. Noonan, John T. Jr., Canons and Canonists in Context (Goldbach, Bibliotheca eruditorum 16, Keip, 1997). ——, “Gratian Slept Here, The Changing Identity of the Father of the Systematic Study of Canon Law”, Traditio 35 (1979), 145–172. Nörr, Knut Wolfgang, Iudicium est actus trium personarum. Beiträge zur Geschichte des Zivilprozessrechts in Europa (Goldbach, Bibliotheca eruditorum 4, Keip, 1993). ——, “Review” of Ennio Cortese, Il diritto, Paolo Grossi, L’ordine, Antonio Padoa Schioppa, Il diritto (see) in ZRG 140, kan. Abt. 83 (1997), 601–606. ——, “Zur Frage des subjektiven Rechts in der mittelalterlichen Rechtswissenschaft”, in Festschrift für Heinrich Lange, ed. Kurt Kuchinke (Munich, Beck, 1992), 193–204. Novarese, Daniela, “Un consilium maltese di Giovanni Nicoletti da Imola e la disciplina della comunione dei beni fra coniugi in Sicilia”, RSDI 60 (1987), 205–254. Oexle, Otto Gerhard, “Gilde und Kommune. Über die Entstehung von ‘Einung’ und ‘Gemeinde’ als Grundformen des Zusammenlebens in Europa”, in Theorien kommunaler Ordnung in Europa, ed. Peter Blickle (Munich, Schriften des Historischen Kollegs. Kolloquien 36, Oldenburg 1996), 75–97. Orlandelli, Gianfranco, “Appunti sulla scuola bolognese di notariato nel secolo XIII, per una edizione della “Ars notarie” di Salatiele”, Studi e memorie per la storia dell’Università di Bologna n.s. 2 (1961), 3–54. ——, “Boattieri, Pietro”, DBI 10 (Rome, 1968), 803–805. ——, “Irnerio e la teorica dei quattro istrumenti”, Atti dell’Accademia delle scienze dell’Istituto di Bologna. Rendiconti 61 (1972–73), 112–124. ——, “Petitionibus emphyteuticariis annuendo. Irnerio e l’interpretazione delle legge Iubemus (C. 1.2.14)”, Atti dell’Accademia delle scienze dell’Istituto di Bologna 71 (1982–83), 51–66. Ortalli, Gherardo, “L’outil normatif et sa durée. Le droit statutaire dans l’Italie de tradition communale”, Cahiers de Recherches Médiévales (XIIIe-XVe s). 4 (1997), 163–173. ——, “La perizia medica a Bologna nei secoli XIII e XIV”, Atti e memorie della Deputazione di storia patria per le provincie di Romagna” n.s. 17–19 (1965–68), 223–259. ——, “Venice and Papal Bans on Trade with the Levant, The Role of the Jurist”, Mediterranean Historical Review 10 (1995), 241–258. Osler, Douglas, “The Myth of European Legal History”, RJ 16 (1997), 393–410. Ostrogorsky, Georg, The History of Byzantine State (Oxford, University Press, 1980). Otto, Jochen, Bibliothek des Bundesgerichtshofs. Buchbestand und Rechtserfahrung, Ein juristischer Reiseführer durch Bücherlandschaften Europas in den Epochen gemeinsamen Rechts (Cologne, Heymann, 1996). Ourliac, Paul, “La ‘convenientia’”, in Etudes d’histoire du droit médiéval, I, 243–252 (Paris, 1979). Pace, Giacomo, “‘Garnerius Theutonicus’: nuove fonti su Irnerio e i ‘quattro dottori’,” RIDC 2 (1991), 123–133. ——, Riccardo da Saliceto. Un giurista bolognese del Trecento (Rome, I Libri di Erice 9, Il Cigno Galileo Galilei, 1995).

402 bibliography

Padoa Schioppa, Antonio, “Il diritto canonico come scienza nella prospettiva storica”, in Proceedings… IX, ed. Peter Landau and Joerg Muller (Vatican City, 1997), 419–444. ——, Il diritto nella storia d’Europa, Il medioevo, parte I (Padua, Cedam, 1995). ——, “Il ruolo della cultura giuridica in alcuni atti giudiziari italiani dei secoli XI e XII”, Nuova rivista storica 64 (1980), 276–278. ——, “La cultura giuridica”, in Storia di Pavia, II, L’alto Medioevo, 219–235 (Milan, 1987). Padovani, Andrea, “L’Inquisizione del podestà. Disposizioni antiereticali negli statuti cittadini dell’Italia centro-settentrionale nel secolo XIII”, Clio 21 (1985), 345–393. ——, “La politica del diritto”, in Storia di Venezia, II, L’età del Comune, 303–329 (Rome, Istituto della Enciclopedia italiana, 1995). ——, Perché chiedi il mio nome? Dio natura e diritto nel secolo XII (Turin, Giappichelli, 1997). ——, Studi storici sulla dottrina delle sostituzioni (Milan, Ius Nostrum 18, Giuffrè; 1983). Palazzini Finetti, Luigi, Storia della ricerca delle interpolazioni nel Corpus iuris giustinianeo (Milan, Giuffrè, 1953). Palazzini, Pietro, “Note di diritto romano in S. Pier Damiano”, SDHI 13–14 (1947–48), 235–268. Palmieri, Giovanni Battista, Appunti per la storia dei glossatori. I. Il formularium tabellionum di Irnerio (Bologna, 1882). Panero, Francesco, Schiavi servi e villani nell’Italia medievale (Turin, Le testimonianze del passato 11, Paravia, 1999). Pansolli, Lamberto, La gerarchia delle fonti di diritto nella legislazione medievale veneziana (Milan, Fondazione G. Castelli 41, Giuffrè, 1968). Paradisi, Bruno, Apologia della storia giuridica (Bologna, Il Mulino, 1973). ——, “Diritto canonico e tendenze di scuola nei glossatori da Imerio ad Accursio”, in Studi sul Medioevo giuridico, II (Rome, Studi storici 163–173, Isime, 1987), 525–656. ——, “Il giudizio di Màrturi. Alle origini del pensiero giuridico bolognese”, Atti della Acca demia Nazionale dei Lincei. Rendiconti della classe di scienze morali”, s. IX 5 (1994), 3–21. ——, “Massaricium ius”. Studio sulle terre “contributariae” e “conservae” nel Medioevo con particolare riguardo alle terre massaricie della Lombardia (Bologna, Biblioteca della RSDI 13, 1937). Pasciuta, Beatrice, “Gerarchie e policentrismo nel Regno di Sicilia. L’esempio del tribunale civile di Palermo (sec. XIV)”, Quaderni storici” 33/97 (1998), 143–169. Patetta, Federico, “I libri legali e il corredo di un giudice bolognese nell’anno 1211, e un caso di rappresaglia fra Bologna e Ferrara”, Atti della R. Accademia delle scienze di Torino” 50 (1914–15), 1168–1184. ——, Studi sulle fonti giuridiche medievali (Turin, Bottega d’Erasmo, 1967). Pazzaglini, Peter, The Criminal Ban of the Sienese Commune (1225–1310) (Milan, Quaderni di SS 45, Giuffrè, 1979). Pecorella, Corrado, “Fides pro se”, in Studi e ricerche di storia del diritto (Turin, Università di Parma and Università di Torino, Giappichelli, 1995), 373–450. Pene Vidari, Gian Savino, ““Assise”, consuetudini, statuti, note comparative”, in Alle origini del costituzionalismo, 191–217. ——, “Atteggiamenti della storiografia giuridica italiana”, in Catalogo della raccolta degli statuti, VIII, xi-xcvi. Pennington, Kenneth, “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius”, RIDC 9 (1998), 9–47. ——, “The Making of a Decretal Collection. The Genesis of Compilatio Tertia”, in Proceedings… V, 67–92 (Vatican City, 1980). Per Francesco Calasso. Studi degli allievi (Rome, Bulzoni, 1978). Pérez, Martín Antonio, “El estudio de la recepción del derecho común en España”, in I Seminario de historia (see Dolezalek, Nuove tecniche), 241–325. ——, “El ordo iudiciarius “Ad summariam notitiam” y sus derivados. Contribucíon a la historia de la literatura procesual castellana, I. Estudio”, Historia Instituciones Documentos 8 (1981), 195–266, 9 (1982), 327–423.

bibliography 403

Pertile, Antonio, Storia del diritto italiano dalla caduta dell’Impero romano alla codificazione, I-VI, II ed (Turin, 1896–1903, repr. Bologna, 1966). Pescani, Pietro, “La scoperta del Bononiensis, sue forme”, Università di Roma. Bullettino dell’Istituto di diritto Romano 88 (1985), 383–396. Petersohn, J., “Die päpstilche Kanonisationsgerichbarkeit des 11. und 12. Jahrhunderts und die Heiligsprechung Karls des Grossen”, in Proceedings… IV, ed. Stephan Kuttner (Vatican City, 1976), 163–206. Petronio, Ugo, “I Senati giudiziari”, in Il Senato nella storia, II, Il Senato nel Medioevo e nella prima età moderna (Rome, Poligrafico dello Stato, 1997), 355–452. ——, “La nozione di Code civil fra tradizione e innovazione (con un cenno alla sua pretesa ‘completezza’)”, QF 27 (1998), 83–115. Petrucci, Armando and Romeo, Carlo, “Scrivere ‘in iudicio’. Modi, soggetti e funzioni di scrittura nei placiti del ‘Regnum Italiae’ (sec. IX-XI)”, in “Scriptores in urbibus”. Alfabetismo e cultura scritta nell’Italia altomedievale (Bologna, il Mulino, 1992), 195–236. Petit, Carlos (ed.), Del ius mercatorum al derecho mercantil (Madrid, Pons, 1997). Piana, Celestino, “Scritti polemici fra Conventuali ed Osservanti a metà del ‘400 con la partecipazione dei giuristi secolari”, Archivum Franciscanum Historicum” 71 (1978) 339–405, 72 (1979), 37–105. Piana, Giannino, “Peccati e penitenza nel Medioevo”, in A pane e acqua (see Sources), 7–40. Picasso, Giorgio, Sacri canones et monastica regula (Milan, Vita e Pensiero, 2006). Pieler, Peter E., “Byzantinische Rechtsliteratur”, in Die hochsprachliche profane Literatur der Byzantiner, ed. Herbert Hunger, II, 343–527 (Munich, Byzantinische Handbuch V.2, Beck, 1978). Piergiovanni, Vito, “Diritto commerciale nel diritto medievale e moderno”, in Digesto, IV ed. (Turin, Utet, 1989), 333–345. ——, Gli statuti civili e criminali di Genova nel Medioevo. La tradizione manoscritta e le edizioni (Genoa, Ecig, 1980). ——, La punibilità degli innocenti nel diritto canonico dell’età classica, I-II (Milano, Collana degli Annali della Facoltà di Giurisprudenza 29, 38, Giuffrè, 1971–1974). ——, Lezioni di storia giuridica genovese. Il Medioevo (Genoa, Ecig, 1983). ——, “Rapporti tra diritto mercantile e tradizione romanistica tra Medioevo ed Età moderna, esempi e considerazioni”, Materiali per una storia della cultura giuridica 26 (1996), 5–24. Pini, Antonio Ivan, Città, Comuni e corporazioni nel medioevo italiano (Bologna, Clueb, 1986). ——, “Federico II, lo Studio di Bologna e il ‘falso Teodosiano’”, Deputazione di storia patria per le provincie di Romagna. Documenti e studi 27 (1996), 27–60. Pinto, Giuliano and Collodo, Silvana (eds.), La società medievale (Bologna, Monduzzi, 1999). Pitzorno, Benvenuto, “Il “Liber Romanae legis” degli “Iudicia a probis iudicibus promul- gata” in Rivista italiana per le scienze giuridiche 44 (1908), 269–292. ——, “Il “Liber Romanae legis” della “Ratio de lege Romana” in Rivista italiana per le scienze giuridiche 43 (1907), 101–136. Pivano, Silvio, Contratti agrari in Italia nel Medioevo (Turin, 1904). Pizzorusso, Alessandro, “Osservatorio sui problemi delle fonti del diritto”, in Scintillae iuris. Studi in memoria di Gino Gorla, I (Milan, Giuffrè, 1994, 299–317). Poly, Jean Pierre, “Le sac de cuir, la crise de l’an Mil et la première renaissance du droit romain”, in Droits savants et pratique françaises du Pouvoir, ed. Jacques Krynen–Albert Rigaudière (Bordeaux, Presses Universitaires, 1992). Post, Gaines, Studies in Medieval Legal Thought. Public Law and State 1100–1322 (Princeton N.J., Universty Press, 1964). Pratesi, Alessandro, “Appunti per una storia dell’evoluzione del notariato”, in Studi in onore di Leopoldo Sandri, III (Rome, Ministero per i beni culturali, 1983), 759–772. ——, “Il notariato latino nel Mezzogiorno medievale d’Italia”, in Scuole diritto e società, II, 139–168.

404 bibliography

Prodi, Paolo, Il sovrano pontefice. Un corpo e due anime, la monarchia papale nella prima età moderna (Bologna, il Mulino, 1982). Provero, Luigi, L’Italia dei poteri locali. Secoli X-XII (Rome, Carocci, 1998). Quaglioni, Diego, “Civilis sapientia”. Dottrine giuridiche e dottrine politiche tra medioevo ed età moderna (Rimini, Maggioli, 1989). ——, I Concili del Medioevo e dell’età moderna”, in Roger Aubert, Giorgio Fedalto and Diego Quaglioni (eds.), Storia dei Concili (Cinisello Balsamo, San Paolo, 1995), 101–166. ——, “Il pubblico dei legisti trecenteschi, i ‘lettori’ di Bartolo”, in Scritti di storia, 181–201. ——, Pietro del Monte a Roma. La tradizione del “Repertorium utriusque iuris” (c. 1453). Genesi e diffusione della letteratura giuridico-politica in età umanistica (Rome, Studi e fonti per la storia dell’Università di Roma 3, 1984). ——, “Tra bartolisti e antibartolisti. L’Umanesimo giuridico e la tradizione italiana nella Methodus di Matteo Gribaldi Mofa”, in Studi di storia medievale, 185–212. Quaglioni, Diego and Esposito, Anna, “I processi contro gli ebrei di Trento (1475)”, in La parola all’accusato, 282–306. Radding, Charles M., “Petrus te appellat Martinus. Eleventh-century Judicial Procedure as Seen Through the Glosses of Walcausus”, in La giustizia (see) II, 827–858. ——, The Origins of Medieval Jurisprudence, Pavia and Bologna 850–1150 (New Haven and London, Yale University Press, 1988). ——, “Vatican Latin 1406, Mommsen’s Ms. S, and the Reception of the Digest in the Middle Ages”, ZRG rom. Abt. 110 (1993), 501–551. Radding, Charles M. and Ciaralli, Antonio, The Corpus iuris civilis in the Middle Ages. Manuscripts and Transmission from the Sixth Century to the Juristic Revival (Leiden-Boston, Brill’s Studies in Intellectual History 147, 2007). Readers, Texts, and Compilers in the Earlier Middle Ages. Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, ed. Martin Brett and Kathleen G. Kushing (Aldershot, Ashgate, 2009). Redon Odile, Uomini e comunità del contado senese nel Duecento (Siena, Accademia Senese degli Intronati, 1982). Regoliosi, Mariangela, “L’Epistola contra Bartolum del Valla”, in Filologia umanistica. a, eds. Vincenzo Fera and Giacomo Ferraù, II (Padua, Antenore, 1997), 1501–1571. Renzi, Paolo (ed.), L’Università e la sua storia (Siena, Protagon, 1998). Reynolds, Susan, Fiefs and Vassals. The Medieval Evidence Reinterpreted (Oxford, University Press, 1994). ——, Kingdoms and Communities in Western Europe 900–1300, II ed (Oxford, Clarendon, 1997). Ricci, Dante (ed.), Il processo di Dante (Florence, Arnaud, 1967). Rigaudière, Albert, Gouverner la ville au Moyen Age (Paris, Anthropos, 1993). Robinson, Olivia F., Fergus, David and, Gordon, William M. (eds.), III ed., European Legal History. Sources and History (Abingdon, LexisNexis UK, 1994). Romano, Andrea, “Diritto romano e diritto longobardo nella legislazione delle Assise”, in Alle origini del costituzionalismo, 167–189. ——, Famiglia successioni e patrimonio familiare nell’Italia medievale e moderna (Turin, Il diritto nella storia 3, Giappichelli, 1994). ——, (ed.), Federico II legislatore del Regno di Sicilia nell’Europa del Duecento,… colendo iustitiam et iura condendo… (Rome, Comitato per le celebrazioni del VII centenario, Convegni 1, De Luca, 1997). ——, Giuristi siciliani dell’età aragonese. Berardo Medico, Guglielmo Perno, Gualtiero Paternò, Pietro Pitrolo (Milan, Pubblicazioni dell’Istituto di scienze giuridiche economi- che politiche e sociali dell’Università di Messina 117, Giuffrè, 1979). ——, “Tribunali, giudici e sentenze nel “Regnum Siciliae” (1130–1516)”, in Judicial Records, Law Reports, and the Growth of Case Law, ed. John H. Baker (Berlin, Comparative studies in Anglo-Continental Legal History, Duncker&Humblot, 1989), 211–301. ——, (ed.), Università in Europa. Le istituzioni universitarie dal Medio Evo ai nostri giorni (Soveria Manelli, Rubettino, 1995).

bibliography 405

Rondinini Soldi, Gigliola, Il trattato De principibus di Martino Garati da Lodi, with critical ed. of rubric De principibus (Milan-Varese, Cisalpino, 1968). Rossetti, Gabriella, “Il lodo del vescovo Daiberto sull’altezza delle torri, prima carta costituzionale della Repubblica pisana”, in Pisa e la Toscana occidentale nel Medioevo. A Cinzio Violante nei suoi 70 anni, II (Pisa, Ets, 1991), 25–48. Rossi, Giovanni, “Duplex est usufructus”. Ricerche sulla natura dell’usufrutto nel diritto comune, I-II (Padua, Dipartimento di scienze giuridiche, Università di Trento 22–23, Cedam, 1996). Rossi, Guido, Consilium sapientis iudiciale – Studi e ricerche per la storia del processo Romano-canonico, I (secoli XII-XIII) (Milan, Giuffrè, 1958). ——, “‘Universitas scholarium’ e Comune (sec. XII-XIV)”, in Studi e testi di storia giuridica medievale, ed. Giovanni Gualandi and Nicoletta Sarti (Milan, Seminario giuridico dell’Università di Bologna 175, Giuffrè, 1997), 141–264. Rubinstein, Nicolai, “Le origini medievali del pensiero politico repubblicano dei secoli XV e XVI”, in Cultura e politica della città-Stato, Firenze, Genova, Lucca, Siena, Venezia, ed. Simonetta Adorni Braccesi and Mario Ascheri (Rome, Istituto storico italiano per l’età moderna e contemporanea, 2000), 1–20. Russo, Giuseppe, Tradizione manoscritta di Leges romanae nei codici dei secoli IX e X della Biblioteca Capitolare di Modena (Modena, Biblioteca n.s. 56, Deputazione di storia patria delle antiche provincie Modenesi, 1980). Santarelli, Umberto, L’esperienza giuridica basso–medievale. Lezioni introduttive (Turin, Giappichelli, 1980). ——, La funzione del giudice nell’esperienza giuridica, dispense anno acc. 1982–83 (Pisa, Università di Pisa, Facoltà di Giurisprudenza, 1983). ——, Mercanti e società tra mercanti, III ed. (Turin, Il diritto nella storia 1, Giappichelli, 1998). ——, Review of Francesco Galgano, Lex mercatoria, QF 26 (1997), 420–427. Santini, Giovanni, ““Canones et leges”, il diritto canonico come diritto comune dell’Europa altomedievale. All’origine della penetrazione del diritto di Giustiniano nella penisola iberica nel XII secolo”, in Estudios de historia del derecho europeo. Homenaje al profesor Gonzalo Martínez Díez, I (Madrid, Universidad Complutense, 1994), 337–356. ——, “Problemi relativi alla Assise di Ariano, gli uomini di legge”, in Alle origini del costituzionalismo, 81–113. ——, Università e società nel XII secolo, Pillio da Medicina e lo Studio di Modena (Modena, Pubblicazioni della Facoltà di Giurisprudenza dell’Università di Modena, 143, 1979). Sarti, Nicoletta, “Appunti su carcere–custodia e carcere–pena nella dottrina civilistica dei secoli XI–XVI”, RSDI 53–54 (1980–81), 67–110. ——, Maximum dirimendarum causarum remedium. Il giuramento di calunnia nella dottrina civilistica dei secoli XI-XIII (Milan, Seminario giuridico dell’Università di Bologna 160, Giuffrè, 1995). ——, Un giurista tra Azzone e Accursio. Iacopo di Balduino (…1210–1235) e il suo “Libellus instructionis advocatorum” (Milan, Seminario giuridico dell’Università di Bologna 137, Giuffrè, 1990). Savelli, Rodolfo, “The censoring of law books”, in Church, censorship and culture in early modern Italy, ed. G. Fragnito (Cambridge, University Press, 2001), 223–253. von Savigny, Friedrich Carl, Geschichte des römischen Rechts im Mittelalter, II ed., I-VII (Heidelberg, 1834–1851, repr. Bad Homburg, 1961). Sayers, Jane E., Innocent III, Leader of Europe 1198–1216 (New York, Oxford University Press, 1999. Sbriccoli, Mario, Crimen lesae maiestatis. Il problema del reato politico alle soglie della scienza penalistica moderna (Milan, Per la storia del pensiero giuridico moderno 2, Giuffrè, 1974). ——, L’interpretazione dello statuto. Contributo allo studio della funzione dei giuristi nell’età comunale (Milan, Università di Macerata, Pubblicazioni della Facoltà di Giurisprudenza 1, Giuffrè, 1969).

406 bibliography

——, (ed.), La notte. Ordine, sicurezza e disciplinamento in età moderna (Florence, Ponte alle Grazie, 1991). ——, “‘Vidi communiter observari’. L’emersione di un ordine penale pubblico nelle città italiane del secolo XIII”, QF 27 (1998), 231–268. Scharff, Thomas, “Die Inquisition in der italianischen Geschichtsschreibung im 13. und frühen 14. Jahrhundert”, in Bene vivere, 255–277. ——, Häretikerverfolgung und Schriftlichkeit. Die Wirkung der Ketzergesetze auf die oberit- alienischen Kommunalstatuten im 13. Jahrhundert (Frankfurt am Main, Gesellschaft, Kultur und Schrift. Mediävistische Beiträge 4, 1996). Scharff, Thomas and Behrmann, Thomas (eds.), Bene vivere in communitate. Beiträge zum italienischen und deutschen Mittelalter. Hagen Keller zum 60. Geburtstag (Münster, Waxmann, 1997). Scheurmann, Ingrid (ed.), Frieden durch Recht. Das Reichskammergericht von 1495 bis 1806 (Mainz, van Zabern, 1994). Schmugge, Ludwig, “Codicis Iustiniani et Institutionum baiulus. Eine neue Quelle zu Magister Pepo von Bologna”, IC 6 (1977), 1–9. Schnerb-Lièvre, Marion and Giordanengo, Gérard, “Le Songe du vergier, et le traité des dignités de Bartole, source des chapitres sur la noblesse”, Romania 437–438 (1989), 181–232. Schrage, Eltjo J.H., Das Entstehen eines europäischen Rechtsbewusstseins im Mittelalter, Non quia romanum, sed quia ius (Goldbach, Bibliotheca eruditorum 17, Keip, 1996). Schupfer, Francesco, Il diritto privato dei popoli germanici con particolare riguardo all’Italia, I-V (Rome, 1908–13). ——, “Precarie e livelli nei documenti e nelle leggi dell’alto Medioevo”, Rivista italiana per le scienze giuridiche 40 (1905), 1–52, 137–200. Schwaibold, Matthias, Brocardica “Dolum per subsequentia purgari”. Eine englische Sammlung von Argumenten des römischen Rechts aus dem 12. Jahrhundert (Frankfurt am Main, IC, Sonderhefte 25, Klostermann, 1985). Sergi, Giuseppe, Curtis e signoria rurale, interferenze fra due strutture medievali (Turin, Scriptorium, 1993). ——, I confini del potere. Marche e signorie fra due Regni medievali (Turin, Einaudi, 1995). ——, “Le città come luoghi di continuità di nozioni pubbliche del potere. Le aree delle marche di Ivrea e di Torino”, in Piemonte medievale. Forme del potere e della società. Studi per Giovanni Tabacco (Turin, Einaudi, 1985), 5–27. Sestan, Ernesto, “La città comunale italiana dei secoli XI-XIII nelle sue note caratteristiche rispetto al movimento comunale europeo”, in Forme di potere e struttura sociale in Italia nel Medioevo, ed. Gabriella Rossetti (Bologna, il Mulino, 1977), 175–196. Sheedy, Anna T., Bartolus on Social Conditions in the Fourteenth Century (New York, 1967). Siciliano Villanueva, Luigi, “Diritto bizantino”, in Enciclopedia giuridica Italiana, 4.5 (1912), 36–95. ——, “Sul diritto greco-romano in Sicilia (diritto privato)”, Rivista di storia e di filosofia del diritto 2 (1902), 285–389. Simon, Dieter, “Provinzialrecht und Volksrecht”, Fontes minores 1 (1976), 102–116. Soetermeer, Frank P.W., “A propos d’une famille de copistes. Quelques remarques sur la librairie à Bologne aux XIIIe et XIVe siècles”, Studi medievali s. III 30 (1989), 425–478. ——, Livres et juristes au Moyen Age (Goldbach, Bibliotheca eruditorum 26, Keip, 2000). ——, “Un professeur de l’Université de Salamanque au XIIIe siècle, Guillaume d’Accurse”, Anuario de Historia del Derecho Español 55 (1985), 753–765. ——, Utrumque ius in peciis. Aspetti della produzione libraria a Bologna fra Due e Trecento (Milan, 1997, from Dutch ed. Utrecht, 1990). Soffietti, Isidoro, “Note sui rapporti tra diritto sabaudo, diritto comune e diritto locale consuetudinario”, RSDI 57 (1984), 265–270.

bibliography 407

——, “Osservazioni sulla normativa sabauda per la contea di Ventimiglia e valle Lantosca nei secoli XIV e XVI”, in Studi in onore di Ugo Gualazzini, III (Milan, Giuffrè, 1981), 313–318. Solmi, Arrigo, “Le leggi più antiche del Comune di Piacenza e l’origine del Comune”, Archivio storico Italiano 75 (1915), 3–71. Sorrenti, Lucia, Tra scuole e prassi giudiziaria. Giuliano da Sesso e il suo ‘Libellus quaestionum’ (Rome, Biblioteca di Erice 21, Il Cigno-Galileo Galilei, 1999). Sottili, Agostino, Università e cultura. Studi sui rapporti italo-tedeschi nell’età dell’Umanesimo (Goldbach, Bibliotheca eruditorum 5, Keip, 1993). Spagnesi, Enrico, Wernerius Bononiensis iudex. La figura storica d’Irnerio (Florence, Studi 16, Accademia toscana di scienze e lettere ‘La Colombaria’and Olschki, 1970). ——, (ed.), Le Pandette di Giustiniano. Storia e fortuna della “Littera Florentina” (Florence, Olschki, 1983). Speciale, Giuseppe, “Acursius fuit de Certaldo”, RIDC 1 (1990), 111–120. ——, La memoria del diritto comune. Sulle tracce d’uso del ‘Codex’ di Giustiniano (secoli XII-XV) (Rome, I libri di Erice 10, Il Cigno G. Galilei, 1994). Spicciani, Amleto, Capitale e interesse tra mercatura e povertà nei teologi e canonisti dei secoli XIII-XV (Rome, 1990). Stein, Peter, Roman Law in European History (Cambridge, University Press, 1999). ——, Roman Law in Scotland (Milan, Giuffrè, 1968). Stelling-Michaud, Sven, L’Université de Bologne et la pénétration des droits romain et canonique en Suisse aux XIIIe et XVIe siècles (Geneva, 1955). Stelzer, Winfried, Gelehrtes Recht in Österreich. Von den Anfängen bis zum frühen 14. Jahrhundert, Böhlau Nachf (Wien-Köln-Graz, Mitteilungen des Instituts für Österreichische Geschichtsfoschung, Ergän. 26, 1982). Stickler, Alfons Maria, “La norma canonica nel primo millennio della Chiesa”, Ius canoni- cum 16 (1976), 15–37. Storia del diritto italiano, pubblicata sotto la direzione di Pasquale Del Giudice, I 1–2, Enrico Besta, Fonti, legislazione e scienza giuridica… fino al secolo decimosesto (Milan, 1923–25); II, Pasquale Del Giudice, Fonti… ai giorni nostri (Milan 1923); III 1–2, Giuseppe Salvioli, Storia della procedura civile e criminale (Milan, 1925–27; repr. Frankfurt am Main- Florence, Sauer & Auverman-Libreria Gozzini, 1969). Storti Storchi, Claudia, “Aequalitas servanda est in iudiciis”. Il principio dell’uguaglianza delle parti nel processo del diritto comune classico”, Rivista internazionale dei diritti dell’uomo 2 (1991), 376–399. ——, Diritto e istituzioni a Bergamo. Dal Comune alla Signoria (Milan, Giuffrè, 1984). ——, Intorno ai costituti pisani della legge e dell’uso (secolo XII) (Neaples, Europa Medi terranea, Quaderni 11, Liguori, 1998). ——, “Per un’indagine sui costituti pisani”, in Tradizioni normative cittadine e diritto internazionale nell’Europa dei secoli XII-XV, a cura di Gabriella Rossetti (Naples, Europa mediterranea, Quaderni, Liguori, 2000). ——, Ricerche sulla condizione giuridica dello straniero in Italia dal tardo diritto comune all’età preunitaria. Aspetti civilistici (Milan, Università di Milano, Pubblicazioni dell’Istituto di Storia del diritto italiano 14, Giuffrè, 1989). Studi di storia del diritto, I (Milan, Università di Milano, Giuffrè, 1996). Tabacco, Giovanni, The Struggle for Power in Medieval Italy, Structures of Political Rule (Cambridge, University Press, 1989). Talamanca, Mario, “L’esperienza giuridica romana nel tardo-antico fra volgarismo e classicismo”, in La trasformazione della cultura nella tarda antichità. Atti del convegno di Catania del 1982 (Rome, 1985), 27–70. Tamassia, Nino, “L’enfiteusi ecclesiastica ravennate e un racconto di Agnello”, in Scritti di storia giuridica, III (Padua, Cedam, 1967), 735–744. ——, “Note per la storia del diritto romano nel medioevo”, in his Scritti (above), II (Padua, Cedam, 1967), 315–321.

408 bibliography

Tamburini, Filippo, Santi e peccatori. Le confessioni e suppliche dai registri della Pentenzieria dell’Archivio Segreto Vaticano 1451–1586, with Preface by Attilio Agnoletto (Milan, Il Sestante, 1995). Tangheroni, Marco, Commercio e navigazione nel Medioevo (Rome-Bari, Laterza, 1996). Tarello, Giovanni, Storia della cultura giuridica moderna, I (Bologna, il Mulino, 1976). Tavilla, Carmelo Elio, Homo alterius, i rapporti di dipendenza personale nella dottrina del Duecento. Il trattato de hominiciis di Martino da Fano (Naples, Pubblicazioni della Facoltà di Giurisprudenza di Catanzaro, 1993). Tierney, Brian, and Villey, Michel, “Ockham and the Origin od Individual Rights”, in Matters of the Law. A Tribute to Harold Berman (Atlanta, 1988), 1–31. Tirelli, Vito, “Il termine ‘beneficium’ nei documenti lucchesi (secc. IX-XI)”, in Atti del dec- imo convegno di studi (Borgo a Mozzano, Istituto storico lucchese, 1997), 81–176. Todeschini, Giacomo, Il prezzo della salvezza. Lessici medievali del pensiero economico (Rome, Argomenti di storia medievale, La Nuova Italia Scientifica, 1994). Tommasi, A. Francesco, “Interrogatorio di Templari a Cesena (1310)”, in Acri 1291. La fine della presenza degi ordini militari in Terra Santa e i nuovi orientamenti nel XIV secolo (Perugia, Quattroemme, 1996), 265–300. Torelli, Pietro, “Comune e Università”, in Scritti di storia del diritto italiano (Milan, Giuffrè, 1959), 451–494. ——, Un Comune cittadino in territorio ad economia agricola, I, Distribuzione della proprietà – sviluppo agricolo – contratti agrari - (Mantua, Miscellanea 7, R. Accademia Virgiliana di Mantua, 1930). Tort-Martorell, Carmen, Tradición textual del Codex Iustinianus. Un estudio del Libro 2 (Frankfurt am Main, IC, Sonderhefte 45, Klostermann, 1989. Toubert, Pierre, Dalla terra ai castelli. Paesaggio, agricoltura e poteri nell’Italia medievale, ed. Giuseppe Sergi (Turin, Einaudi, 1995). ——, “I poteri pubblici dei vescovi del Regno d’Italia nei secoli X-XI”, in Chiesa e società in Sicilia i secoli XII-XVI, ed. Giovanni Zito (Turin, Sei, 1995), 3–20. ——, “Il patrimonio di S. Pietro fino alla metà del secolo XI”, in Comuni e Signorie nell’Italia nordorientale e centrale, Lazio, Umbria e Marche, ed. Girolamo Arnaldi, Pierre Toubert, Jean-Claude Maire-Vigueur and Raoul Manselli (Turin, Storia d’Italia VII, 2, Utet, 1987), 188–190. ——, Les structures du Latium médiéval. Le Latium méridional et la Sabine du IXe à la fin du XII siècle, I-II (Rome, Bibliothèque 221, Ecole française de Rome, 1973). Tramontana, Salvatore, Il mezzogiorno medievale. Normanni, svevi, angioini, aragonesi nei secoli XI-XV (Rome, Carocci, 2000). Troje, Hans Erich, Graeca leguntur. Die Aneignung des byzantinischen Rechts und die Entstehung eines humanistischen Corpus iuris civilis in der Jurisprudenz des 16. Jahrhunderts (Cologne-Vienna, Forschungen zur neueren Privatrechtsgeschichte 18, Böhlau, 1971). ——, Humanistische Jurisprudenz. Studien zur europäischen Rechtswissenschaft unter der Einfluss des Humanismus (Goldbach, Bibliotheca eruditorum 6, Keip, 1993). Trombetti Budriesi, Anna Laura, “Il testo latino delle “Assise” di Ruggero II nella tradizione del “Liber Augustalis”, in Alle origini del costituzionalismo, 231–290. Trusen, Winfried, Gelehrtes Recht im Mittelalter und in der frühen Neuzeit (Goldbach, Bibliotheca eruditorum 23, Keip, 1997). Tutsch, Burckhardt, “Texttradition und Praxis von consuetudines und statuta in der Cluniacensis ecclesia (10.-12. Jahrhundert)”, in Vom Kloster, 173–205. Udovitch, Abraham L., “Banchieri senza banche, commercio, attività bancarie e società nel mondo musulmano del medioevo”, in Gli orizzonti aperti, 99–112. Vaccari, Pietro, Dall’età romana al particolarismo giuridico del medioevo (Italia, Francia, Germania). (Pavia, 1936). ——, La territorialità come base dell’ordinamento giuridico del contado nell’Italia medievale (Milan, 1963; I ed. Pavia, 1921).

bibliography 409

Vallerani, Massimo, “Conflitti e modelli procedurali nel sistema giudiziario comunale. I registri di processi di Perugia nella seconda metà del XIII secolo”, Società e storia 13 (1990), 267–299). ——, La giustizia pubblica medievale (Bologna, il Mulino, 2005). ——, “Pace e processo nel sistema giudiziario del Comune di Perugia”, Quaderni storici 34/101 (1999), 315–353). Vallone, Giancarlo, Le ‘decisiones’ di Matteo d’Afflitto (Lecce, Milella, 1988). ——, Le istituzioni feudali dell’Italia meridionale (Rome, Ius Nostrum 23, Università di Roma La Sapienza-Viella, 1999). Vantaggiato, Eugenio, “L’autonomia comunale delle città meridionali in età medievale e moderna”, Nicolaus. Studi storici 2 (1995), 381–442. Vauchez, André, “Homo mercator vix aut numquam potest Deo placere”, quelques réfle xions sur l’attitude des milieux ecclésiastiques face aux nouvelles formes de l’activité économique au XIIe et au début du XIIIe siècle”, in Le marchand au Moyen Age, XIX Congrès de la SHMES(Cid, 1992), 211–217. Verger, Jacques, Il Rinascimento del XII secolo (Milan, Jaca, 1997). ——, Les gens de savoir en Europe (Paris, Puf, 1997). Villata Di Renzo, Maria Gigliola, “La Constitutio in Basilica Beati Petri nella dottrina di diritto comune”, in Studi di storia del diritto, II (Milano, Università di Milano, Pubblicazioni dell’Istituto di Storia del diritto italiano 23, Giuffrè, 1999), 151–301. ——, “Persona e famiglia nel diritto medievale”, in Digesto, IV ed. (Turin, Utet, 1995), 467–527. Villey, Michel, “La genèse du droit subjectif chez Guillaume d’Occam”, Archives de Philophie du Droit 9 (1964); 97–127. Violante, Cinzio, “La territorialità delle istituzioni ecclesiastiche in alcuni documenti giudiziari (secc. VII-IX)”, in Santarelli, La funzione, 112–177. Violante, Cinzio, La società milanese nell’età precomunale (Rome-Bari, Laterza, 1953). ——, “Les prêts sur gages fonciers dans la vie économique et sociale de Milan au XIe siècle”, Cahiers de civilitation médiévale 5 (1962), 147–168, 437–459. Viroli, Maurizio, Repubblicanesimo (Rome-Bari, Laterza, 1999). Visconti, Alessandro, “Una legge feudale di Ottone III esclusa dal Capitolare italico”, R. Istituto lombardo di scienze e lettere. Rendiconti”, s. II 60 (1927), 198–208. “‘Visibilità’ delle donne tra Medioevo ed età moderna, carte private e pubbliche apparenze, lusso e prescrizioni”, ed. Giovanna Casagrande, Maria Giuseppina Muzzarelli, Maria Grazia Nico Ottaviani and Julius Kirshner, Annali della Facoltà di Lettere e Filosofia. (Università di Perugia, 2. Studi storico-antropologici) 34–35 (1996/97–1997/98), 9–88. Vismara, Giulio, “Edictum Theodorici”, in Scritti di storia giuridica, I, Fonti del diritto nei Regni germanici (Milan, Giuffrè, 1987), 3–338. ——, ““Leges” et “canones” negli atti privati dell’alto Medioevo, influssi provenzali in Italia”, in Scritti di storia giuridica, II, 3–47. ——, Scritti di storia giuridica, II, La vita del diritto negli atti privati medievali (Milan, Giuffrè, 1987). ——, Storia dei patti successori, II ed. (Milan, Giuffrè, 1986). Vodola, Elisabeth, Excommunication in the Middle Ages (Berkeley, The University of California Press, 1986). Volpe, Gioacchino, Movimenti religiosi e sette ereticali nella società medievale Italiana (secoli XI-XIV), with Introduction by Cinzio Violante (Rome, Donzelli, 1977). Volpini, Raffaello, “Placiti del “Regnum Italiae”. Primi contributi per un nuovo censimento”, in Contributi dell’Istituto di storia medievale dell’Università cattolica di Milano, III (Milan, Vita e Pensiero, 1975), 245–520. Walther, Helmut G., “Die Anfänge des Rechtsstudiums und die kommunale Welt Italiens im Hochmittelalter”, in Schulen und Studium im sozialen Wandel des hohen und späten Mittelalters, ed. Johannes Fried (Sigmaringen, Vorträge und Forschungen 30, Thorbecke, 1986), 121–162.

410 bibliography

Wandruszka, Nicolai, Die Oberschichten Bolognas und ihre Rolle während der Ausbildung der Kommune (12. und 13. Jahrhundert) (Frankfurt am Main, Europäische Hochschul schriften Reihe 3, 566, 1993). Watson, Alan, The Digest of Justinian (Philadelphia, University of Pennsylvania Press, 1985). ——, The Evolution of Western Private Law (Baltimore, John Hopkins University Press, 2001). ——, The Making of Civil Law (Philadelphia, University of Pennsylvania Press, 1985). Weigand, Rudolf, Glossatoren des Dekrets Gratians (Goldbach, Bibliotheca eruditorum 18, Keip, 1997). ——, Liebe und Ehe im Mittelalter (Goldbach, Bibliotheca eruditorum 7, Keip, 1993). Weimar, Peter, “Argumenta brocardica”, SG 14 (Collectanea St. Kuttner IV) (1967), 91–123. ——, “Die Handschriften des ‘Liber feudorum’ und seiner Glossen”, in RIDC 1 (1990), 31–98. ——, “Die legistische Literatur der Glossatorenzeit”, in HQLERG, 129–260. ——, “Federico II legislatore dell’Impero”, in Federico II legislatore, 81–90. ——, “Zur Entstehung der azoschen Digestensumme”, in Satura Feenstra, 371–392. ——, Zur Renaissance der Rechtswissenschaft im Mittelalter (Goldbach, Bibliotheca eruditorum 8, Keip, 1994). Westhues, Peter Lükte, “Beobachtungen zum Charakter und zur Datierung der ältesten Statuten der Kommune Pistoia aus dem 12. Jahrhundert”, in QFIAB 77 (1997), 51–83. Wickham, Christopher, Courts and Conflict in Twelfth-Century Tuscany (Oxford, Oxford University Press, 2003). ——, “Justice in the Kingdom of Italy in the Eleventh Century”, in La giustizia, 179–255. ——, “Lawyers’ Time, History and Memory in Tenth and Eleventh Century Italy”, in Studies in Medieval History presented to R.H.C. Davis, ed. Henry Mayr-Harting-Robert Ian Moore (London-Ronciverte, 1985). Wieacker, Franz, A History of Private Law in Europe with Particular Reference to Germany, trans. T. Weir, foreword by R. Zimmerman (Oxford, Clarendon, 1995). Winroth, Anders, The Making of Gratian’s Decretum (Cambridge, Studies in Medieval Life and Thought, Fourth Series, 2005). ——, “The Two Recension of Gratian’s Decretum”, in ZRG, kan. Abt. 83 (1997), 22–31. Withman, Q. James, The Origins of Reasonable Doubt, Theological Roots of the Criminal Trial (Yale, University Press, 2007). Wolf, Armin, Gesetzgebung in Europa 1100–1500. Zur Entstehung der Territorialstaates (Munich, Beck, 1996). Zanetti, Gianfrancesco (ed.), Filosofi del diritto contemporanei (Milan, Cortina, 1999). Zecchino, Ortensio, “I “parlamenti” nel Regno di Ruggero II”, in Alle origini del parlamenta- rismo, 55–80. Zordan, Giorgio, L’ordinamento giuridico veneziano. Lezioni di storia del diritto veneziano con una nota bibliografica (Padua, Cedam, 1980). Zorzi, Andrea, “Giustizia e società a Firenze in età comunale, spunti per una prima riflessione”, Ricerche storiche 18 (1988), 449–495. ——, “La storia della giustizia. Orientamenti della ricerca internazionale”, Ricerche storiche 26 (1996), 97–160. ——, “Politica e giustizia a Firenze al tempo degli ordinamenti antimagnatizi”, in Ordinamenti di giustizia fiorentini. Studi in occasione del VII centenario, a cura di Vanna Arrighi (Florence, Archivio di Stato di Firenze, 1995), 105–147. Zorzoli, Maria Carla, “Il Collegio dei giudici di Pavia e l’amministrazione della giustizia”, Bollettino della Società pavese di storia patria 81 (1981), 56–90. de Zulueta, Francis and Stein, Peter, The Teaching of Roman Law in England around 1200 (London, Supplementary Series 8, Selden Society, 1990).

INDEX

Abbas Modernus/Panormitanus, see Ancona 313, 319 Tudeschis, de, Nicolaus Andorra, Republic 358 Abbo of Fleury 120 Andreas de Isernia 246, 264, 267n41 Abelard, Peter 20, 55, 209 Andreas, judge of Bari 142 ablata, male 288 Andria 142n6 abuse of power 340 angariae 78, 168 Accolti, Franciscus 265, 347 Angelus de Ubaldis 165 Accursius xiiif, 117, 183, 189f, 198f, 205, 212, Angelus de Castro 265, 282n23 215, 219, 235, 238, 245, 258, 294 Angevins 165, 169, 245f, 250, 271n4, 299, actiones 206, 220n97, 221, 226 310, 333 additiones 254, 265, 300, 304 anointment 82 Adhemar de Chabannes 40n38 Anselmus de Orto 209 Admont, abbey 75n37 antinomiae 27 adprobatio 172 Antiqua ducum Mediolani decreta 312n37 Adriatic sea 79 Antonius de Butrio 338 adulterium 49, 163 Antonius de Canario 281n20 advocatus 92 apparatus 197f, 204 aequalitas 17f, 90 appeals 46, 56, 74, 84, 89, 100, 118, 132, 151, aequitas 148, 223 229, 249, 304n18 Africa 80, 136, 285; South Africa 358 appellatio extra-iudicialis 331 agreements 136–139, 269, 343 Aquinas, St. Thomas 278, 288 Aimericus, cardinal 117 Aragon 177f, 245, 279, 301, 311, 315, 319, 334f Aix-en-Provence 337n28 arbitri 145, 152, 227 Alanus Anglicus 213 arbitrium iudicis 238, 271, 278, 330, 338 Albenga 307, 339 Arbor actionum Bassiani 211 Albericus de Rosate 257n21, 266, 298 Arbor feudorum xii Albertus de Piacenza 210 Arborea 31, 316 Albigensians 230 arbores actionum 206, 286 albinagium 160, 317n53 arbores affinitatum 286 Albornoz, Giles 249 arbores iurisdictionum 286 Alciato, Andrea 25n42, 352 Ardizzone, Iacobus 185 Alessandria 152, 159, 306n22 Arduinus, marquis 83n56, 158 Alexander II, pope 88n81 Arezzo 63, 114, 159, 226, 265, 347 Alexander III, pope 123, 125, 129, 162n52, Argumenta atque contraria 228n, 240 Lombardae 203, 210 Alfonse the Magnificent, king 245, 301 Ariano 161 Alfonse the Wise, king 245, 301 Aribertus, archbishop of Milan 100 Alger of Liège 55, 58 Ariprandus de Piacenza 210 allegationes 27, 195 Aristotle 109n3, 273, 290 allodium 98, 157 Arles 140 Altamura 142n6 Armenians 33n6, 94 Amalfi 26n45, 31, 78, 80f, 142f, 175, 177 army, see Communes, condottieri, Empire, Ambra, valley 159 fiefs, milites, nobility Amedeus VIII, count of Savoy 317 arrêt 333 America 269, 285 ars dictaminis 23, 239 Amphytheatrum legale 367 Ars notaria 241 Anania de, Iohannes 266 ars notariatus 23n33, 241n152, 258, 329 Ancarano de, Petrus 266 artes liberales 55, 203, 249

412 index artes mechanicae 182 basileus 82, 161 assemblies 143n8, 153, 276, 303, 315n45; Basilicata 30 see concio, councils, parliaments Basilika biblia 36ff, 42, 228 Assizes 161 Basileus Macedonian, emperor 36 Ariano 146, 162–165, 367 Bassianus, Iohannes 114, 202, 205, 211, Jerusalem 161n48 226, 238 Asti 176 Baviana 21 Astolf, king 96n96 Beatrix of Tuscany 92 astrology 337n38 Bec, abbey 40 Atina 324n3 Becket, St. Thomas 294 Atto, bishop of Vercelli 86n70 Bellèmere, Giles 265, 332 audientia episcopalis 13, 48 Belviso de, Iacobus 264, 267n41, 339 Audientia litterarum contradictarum 233, Benedictines 133 337 Benedictus de Isernia 211 auditores domini papae 233, 332 beneficium 17, 56, 61, 70, 98f, 185f, 210n60, Augustine Aurelius, saint 123 331, 333 Augustus Ottavianus, emperor 13 Benevento 26, 30, 37f, 41, 88, 153, 164, 199 Aulus Gellius 109n3 Berenguer III 177f Aurea brocardica 212 Berenguer IV 178 Aurora novissima 258n23 Bergamo 266, 302n16, 307 Authenticum 15, 20, 45, 57n86, 58, 295 Berito 14 avaritia 182 Bernard, saint 216 averroism 278n13 Bernardinus of Feltre 283 Aversa 73 Bernardinus of Siena, saint 284, 290 Avignon 112n15, 140, 211, 264f, 287, 298, Bernardus de Parma 116, 199, 201n15, 214 313, 331 Bernardus de Pavia 125 Azo 194n2, 198, 205, 211–215, 220, 235, Bernold of Constance 55, 58 238n144, 245, 294n2, 298, 313 Bertacchinus, Iohannes 266 Bertaldus, Iacobus 278 Bagelardus 41 Biagius de Morcone 324 bailee in commodatum 219 Bible, Holy 25, 74, 81, 119f, 209, 216n90, baiulus 52, 167f 274, 294 Baldovinus, Iacobus 153, 194, 212, 238 bibliofulax 58n88 Baldus de Ubaldis xiv, 263, 265, 267n43, bishops 48ff, 54n76, 56n82, 65n4, 73, 122, 268, 289, 295, 367 129, 133, 181 Balearic Islands 80 Bitonto 142n6 Bamberg 24n37 Blanc, Jean 295 banks 282, 284, 327 blasphemy 263 Saint George 283 Boattieri, Petrus 258n23, 267n41 bannitus 322, 342 Bobbio, abbey 70 bannum 77 Bologna 20, 22, 62n105, 68n18, 103, 108, 110, Barbazza, Andreas 251, 261 115f, 149, 189, 198, 209n59, 217, 219, 252, Barcelona 80, 177f, 319 295, 304, 313; see universities Bari 32n3, 142, 166, 168, 308 Bolognini, Ludovico 265, 352 bariselli 342 Bona 80 Barattieri, Bartholomeus 295, 350 Bonaguida de Cremona 332 Barbarossa, see Frederick I Boncompagnus de Signa 238, 240, 271n4, bartolism 262, 268, 339, 346, 354 272 Bartolus of Sassoferrato 219n95, 251n9, Bonello, Andreas 264, 267n42, 324 260–264, 272, 274n8, 279, 284, 291, 297, Bonfilius, judge 41 302f, 326n6, 339, 346, 348n2, 354, Boniface VIII, pope 297f, 315, 337 365, 367 Bonizone, bishop of Sutri 120 Bartholomeus de Brescia 199, 213 Bononius, saint 91 Bartholomeus da Capua 247 Bonzo of Sutri 57n86

index 413

Bosco, Bartholomeus 289, 328 Carinthia 314 Bosquet, Bernard 332 Carniola 314 Brabant, house 274n8 Carolus de Tocco 114, 164f, 168n60, 199, 210 Bracciolini, Poggio 348 Carpi 313n41 Brachylogus iuris civilis 53, 208 Carta de Logu 315, 357 Bracton, Henry de 235, 245 Carta, Magna 137f, 273 Brescia 153n34, 266, 307 Casamari, abbey 37n24 brevia 65, 143, 151, 153, 159, 234 Cassiodorus 40n37 breve of the compagna 143f Castille 207, 245, 279, 301 breve sequimentis 144 castles 32, 77 Brigue 158 casus 203, 212 brocarda 203f, 211, 257 casus fortuitus 220 Brunettus Latini 74n8, 287n32 casus legis 257n21 Budé, Guillaume 348, 353 Catalogus baronum 164 Bulgars 94, 216 Catalonia 113, 176, 178 Bulgarus 109, 118, 150, 209n58, 211, 216f, 223 Catania 168 bulls, papal 252n12, 310 catepanus 32n3, 168 Execrabilis 299 Cathars 129, 160, 230 Inter coetera 285 causae 123, 273 Ratio iuris 332 maiores 118 Super speculum 115 piae 181 Unam Sanctam 298f causidicus 82 Burcardus Uspergensis 22 Celestine I, pope 82n52 Burgundio de Pisis 118 celibate, clergy 60 Burkhardt of Worms 55f, 59, 60n97, 119 centenarii 84 Butrigarius, Iacobus 339 Cepolla Bartholomeus 265 Butrio de, Antonius 266 Cesena 313 Byzantium 14, 30, 37, 57n88, 78–80 Chambéry 316 Champagne 137, 176 Caccialupi, Iohannes Baptista 26n43, Charles II of Anjou, king 247, 311 257n21, 261n29, 265, 349 Charlemagne, emperor 10n3, 41, 44, 54 Cadore 314 charters of freedom 73, 78, 85n64, 156; see Caffaro 177 Carta Magna, contractualism, freedom Cagliari 31, 316n50; see universities Chartres 182 Calabria 33, 37f, 161 Chiaravalle 152 Calderini, Iohannes 257n21 Chiarentana 309 Camera 91, 133 Chiusi 50 camerarii 168 chrysobulls 79, 178 Campania 76, 164, 252 Church/churches 16, 31, 42f, 48, 52, 71, 92, camparii 322 134, 285, 355; see Papacy Candiano, family 31 Cicero, Marcus Tullius 14, 23, 116, 156, 204, Canterbury 40, 234, 294 208, 225, 239, 352n9 capitanei 81, 96, 99f, 168 Ciprianus 73n31 capitula 138 citizenship 95, 175, 184, 225, 277 Angevin 311 city-states 156, 175, 180, 274, 296, 307, 362 Capitula Regni utriusque Siciliae 246n4, cives 81, 147 276 Cividale 314 Capitulare Italicum 40 Clement V, pope 298 capitularia 65n5 Clementinae decretales 256, 265, 299 ecclesiastica 54 clerics 51, 88, 95, 115, 123, 130, 180 Capocci cardinal, Petrus 313 Cluny, abbey 73n30 Capocotto 76n41 Codex canonum 54 captain of justice 335 Codex iuris canonici 133 Capua 76, 164f Codex repetitae praelectionis 15

414 index

Codi (Lo) 44, 205, 207 concio 146n1 Codex of Justinian 10, 13–15, 19f, 23, 24, 27, condottieri 183 35, 45f, 51f, 55f, 111, 115, 127, 155, 160, 165, coniurationes 109, 172, 186, 318 195, 346 concistorium 334 Gregorianus 10 Concordat of Worms 136 Hermogenianus 10 Concordia discordantium canonum, see Theodosius II, emperor 10, 14, 68, Decretum Gratiani 103n109 concubine 56n85, 57, 73 Coke, Edward 269 confession 59, 132 Cola of Rienzo 28n49 confraternitates 318, 323 collaterali, judges 326 Conrad II, emperor 60, 100, 185, 187, collatio, decima 295 210n60 collaudatio populi 47 Conrad III, emperor 61n102 Colle val d’Elsa 307 consecratio 124 collecta 169 consent 139, 145f; see assemblies, Collectio contractuum 258 contractualism, parliaments collectiones canonum, see Deusdedit consilia, medical 232, 326, 341n37 Admontensis 75n37 consilia sapientis 202, 217f, 227, 231, 238, Anselmo dedicata 44n50 257, 260, 263f, 267, 280f, 289, 296, Britannica 25n43, 57f 315n47, 319, 328, 333, 338f, 349 Dionysiana 54, 57 Consolato del mare 319 Dionysio-Adriana 54 consorteria 170 Hispana 54 consortes 186 in LXXIV titulos 57 consules maiores 150n25 of Anselm 57n86 Constantine I, emperor 27f, 37n24 of Bonzo 57n86 Constantinople 14, 178, 224 colleganza 173 constitutio 122, 130, 143n9 Collège de France 353 Ad decus 160, 165 College of Spain in Bologna 26n43, 249 Ad reprimendum 297 Cologne 15n10, 213 Cunctos populos 19, 196 colonna 142 Habita xiv, 110, 113, 159 Columbus, doctor legum 114 Imperatoriam maiestatem 14, 110 comes 31n2, 80 in basilica sancti Petri 160n45 Gothorum 75n37 Omnem 14 comitatus 147, 241, 303 Puritatem 166 Commandments Ten 71 Qui sint rebelles 297 commenda 173 Sancimus 311n34 commendatio 68n18 constitutions 11 commentaria 254, 258 Egidian 313, 357 commercial revolution 154; see law, of Clarendon 293 commercial, Mercanzia of Melfi, see Liber Augustalis commodatum 220 constitutionalism 273, 275, 291, 303, 358 common law 236, 269f Constitutiones patriae Fori Iulii 314f Como 74n34, 78n43, 153n34 Constitutiones Regni Siciliae see Liber compagna 143 Augustalis Compilationes antiquae 127, 213n82 constitutum 154 compositio 39, 41, 52, 145 legis 144 Communes usus 144, 149 cities 73, 78–81, 86, 100, 137f, 147, 152, consuetude 237n140 225, 237f, 240, 273, 282, 335 consuetude fundi 73 countryside 156f, 273, 309f, 322f Consuetudines feudorum, see Libri Compagni, Dynus 272n7 feudorum compalazzus 168 consul 31n2, 144, 146 compromissum 89 contracts 42, 65, 74, 136, 218, 226, 258n23

index 415

contractualism 145, 273, 275 Daibertus, bishop of Pisa 145 contraria 195 Dalmatia 79 contrarietates 260 Damasus, pope 19n24 convenientia 66n6 danni dati 36, 322 conventicula 109 Dante Alighieri 121, 165, 264, 272, 274n8, Cormons 314n44 279n15, 287n32, 291, 298, 337 Corpus iuris canonici 196, 300, 353n10, Daoyz, Stephanus 368 361ff; see Decretum Gratiani, Liber Datini, Francis 181 Extra, Liber Sextus, Clementinae, De assumpto homine Vacarii 234n135 Extravagantes Iohannis XXII, De inventione 225 Extravagantes communes De iure civili in artem redigendo 352n9 Corpus iuris civilis 24n38, 26, 36n20, 47, De legibus et consuetudinibus Angliae 235 53, 103, 111, 196, 198, 203, 207, 254, 273, De modo studendi in iure 261n29 361, 363 see Codex, Digest, Institutiones, De natura actionum 225 Novels De officiis 225 Corfu 261, 367 De oratore 23n32 Corpus legum 53 De voluptate 348 Correctores Romani 353n10 death 46 corsa/corsari 178 death penalty 14, 52, 84, 230, 285 Corsetti, Antonius 251 decisions, judicial 265, 332f Council, holy royal 265, 332 Decisiones Rotae Romanae 332f councils 53, 72, 139, 160, 274; see decree Haec sancta 266n40 assemblies, consent, constitutionalism, Decreta ducalia Sabaudiae 317, 368 contractualism decretales 53, 125, 228, 252 Basle 265f, 281, 317 Decretales Gregorii IX, see Liber Extra Berry 49 Decretales pseudo-Isidorianae 54f Constance 266, 281 decretalis Venerabilem 126 Lateran I 56, 128 decretalists 132, 213 Lateran II 119, 128f, 182 decretist 124 Lateran III 124, 129, 182f, 228n124f Decretum Burchardi 55 Lateran IV 126, 130, 228 Decretum Gratiani 54, 73n31, 86, 119–124, Lyons 132, 297 132, 134, 195, 199, 212ff, 224, 228n123, 245, Nicaea 19 264, 284, 299 of justice 334f Decretum Ivonis 58 Rheims 21 definitio 16 Trent 34, 353n10, 362 Desiderius, abbot of Montecassino 26n44 Vienne 298 desuetudo 27 counts 49f, 84, 90, 138, 226, 240, 314 Deusdedit, cardinal 57n86 Court of Common Pleas 235 Dictatus Papae 49, 73 court, royal 40f, 50 dictionaria 259 courts, judicial 84f, 89f, 131f, 148, 154, 184, Dictionarium iuris 257n21 272n5, 283, 329, 334; see Council, sacred diplomacy 180 royal, justice, Rota; Senate diet, see parliaments craftsmen 182; see guilds, populus of Roncaglia 109, 150, 159 Cremona 152, 211, 322 of Worms 21 Crescenzi, family 46n60 differentiae 260 crimen lesae maiestatis 91, 163, 230, 279f Differentiae inter ius Langobardorum et crusades 80, 110, 128, 135, 161n48, 312 Romanorum 324 culpa 185, 220 Digest 10–19, 24ff, 35f, 41–62, 77, 93, 112, customs 41f, 47, 51, 56f, 68n16, 72–75, 78f, 118f, 194, 196, 204f, 218f, 234, 275, 348, 84, 86n69, 95, 101, 122, 129, 139, 140ff, 351; see Corpus iuris civilis, 148–152, 158, 162, 166f, 173, 187ff, 214, 237, Digestum Infortiatum, Novum Vetus, 246, 272, 278ff, 308, 329 Justinianus, littera Bononiensis, litter Cynus de Pistoia 264 Florentina, littera vulgata

416 index

Digestum Infortiatum, Novum, Vetus 195, Empire 312 199 Roman 16, 18, 32, 53 Diocletianus, emperor 14 Holy Roman 21, 28, 30, 60, 62, 88, 103f, Dionysius Exiguus 54 123, 155, 186f, 273, 282, 293 Diplovatatius, Thomas 26n43, 261, 264n37, England 103, 137, 161, 174, 207, 234ff, 276f, 277, 365ff 293, 332, 334 discretio iudicum 143n8; see arbitrium Englishmen/women 252, 269 iudicum Epanagoghé ton nomon 36f dissensiones dominorum 202f epistulae decretales, see decretales distinctiones 58, 122, 231 Epitome districtio/districtus 77, 157 Codicis 45f divorce 60 Iuliani 15, 41n44, 43, 46 doctores 92, 171, 249, 329 Marciana 37n27 doge 31, 47, 79, 143 ton nomon 36n19 dominatus loci 77, 83, 156 equality 291; see aequalitas Dominicans 130, 133, 282, 284 estates 139, 275, 290, 319, 345 Dominicus de Sancto Giminiano 266 Este, family 334, 337 dominium 220; see lordship ethics 179n73, 181n75, 182 donationes pro anima 71 Etienne de Tournai, see Stefanus Donation of Constantine 54, 66, 122, 222, Tornacensis 224, 279, 281, 348, 351 Europe 55, 75n35, 98, 107, 109, 174, 180, 184, Doneau, Hugues 221n89 193, 195, 198, 209, 215f, 233–236, 240, 247, Donizone of Canossa 102 252, 262, 269f, 290, 293f, 296, 338, doubt 17 350f, 357 dowries 34f, 143, 190, 245, 258, 261n29, examina 253 264f, 283, 368; see Monte delle doti exceptio 92 duchy of Milan 295 Exceptiones legum romanarum Petri 52, due process of law 297, 338 103, 208n51 duel 41f, 62, 86–90, 130, 143n8, 166, 206, Excerpta legum 118 210, 226f, 229 exchange, bills of 179 Durand Guillaume, bishop of Mende 245, exclusio propter dotem 261n28 258, 261n29, 264f, 368 excommunication 47, 128, 132, 145, 287 Dutch scholars 270n2, 355 executio parata 259 dux/duces 30, 31n2, 80, 82, 226 exemplar 200 dux Veneticorum 79 exequatur 285 Dynus de Mugello 257, 264, 297 Expositio ad librum Papiensem 40ff, 96, 102 Extravagantes communes 299 East 312 Extravagantes Iohannis XXII 299 Mediterranean 136, 178 Eymerich, Nicolas 341 Ecloga ad Prochiron mutata 37 Ecloga Basilicorum 33n6 fabrica ecclesiae 133 Ecloga privata aucta 37 faida 84 Eclogè ton nomon 33f, 36f fakes 54, 116, 263 edictum, see Lombard law Falstof, Thomas 332 de beneficiis 61, 100f, 221 familia, of podestà 154 of Caracalla, emperor 9 family 140, 143, 148n19, 223, 303, 315 perpetuum/ pretorium 12 Fano 313 electiones 57, 143n8; see pars sanior Fara in Sabina 56n84 Elegantiae latinae linguae 348 Farfa, abbey 46n60, 56n84, 95 Elementarium 39 favor rei 356 Eleonor, judge of Arborea 316 federations 137, 252 Emilia Romagna 309 Felix V, pope 317 Emperors, Saxon/Salic 40 Felina 266 emphyteosis 23, 68, 70, 99, 151, 289 Felinus Sandei 266

index 417

Fermo 142n5 Genoa 74, 80f, 143f, 153, 175, 177f, 194, 212, 238, Ferrara 21, 296, 338n30 240, 249, 276, 283, 289, 305, 315, 319, 328f festuca 70n22 Gerardus Cagapesto 189 feudum, see fiefs Géraud, jurist 208 fideicommissa 288, 327, 354 Gerbert d’Aurillac, see Sylvester I fidelitas 69, 99, 269 Germans 251f, 262 fides publica 179 Germany 260n27, 284, 314, 334, 354f, 367 fiefs 69, 81, 83, 85n66, 97, 131, 138, 164, Gewere 69n20 169, 173, 190, 296 ghibellines 186, 306, 337 firmitas 66 Gilbert, archbishop of Ravenna 62 Flanders 137, 176 Giovinazzo 142n6 Florence 24f, 62, 92, 119n36, 249, 276, 280, Glanvill 235 282f, 287, 291, 305, 307, 338, 342n41, gloss 26f, 37, 167n58, 196f, 295 348–352, 359 ordinaria 197–200, 213f, 236, 245f, 254, Flos ultimarum voluntatum 259 264, 304, 354, 362 foedera 137 glossators 270; see post- glossators foenus nauticum 176 Goffredus de Trani 116, 213 Fontana, Agostino 367 Gorizia 314f foreigners 239, 317n58, 327 gosian jurists, see Martinus Gosia formularia 23, 39, 67, 83, 259n24, 336n22 Gospel 214n85 Formularium 241 Grado, patriarch 47 forum internum 241 grammatica 22 foundations 31; see institutions Grandi G., abbot 112n15 France 52f, 58, 60, 80, 99, 112f, 129, 140, 158, gratia 335 174, 177, 207ff, 212, 215, 224, 250, 264, 276, Gratian 54, 118, 122, 195, 197; see Decretum 279, 332, 337f, 352f, 355 Gratiani Francigena, strata 159 Gravina 142n6 Franciscus domini Accursii 199, 295 grazie, Aragonese 311 Francis, saint 132, 172, 184, 217 Greek, see law, Byzantine, Byzanthium, Franciscans 130, 133, 282ff, 299, 338n30 Constantinople Frederick I, emperor 55, 109, 115, 137, 147, culture 14, 25, 37ff, 118, 347 149f, 152, 185, 187, 189, 215, 217, 222 texts 166n57, 169 Frederick II, emperor 35n13, 114ff, 126, 132f, Gregory of Catino 56n84 151, 160, 163f, 168, 170, 190, 215, 238, 246, Gregory of St. Crisogonus 58n90 265, 297, 301, 311 Gregory I, pope 25n43 freedom 52, 87, 97, 274n9, 290, 293, 346, Gregory VII, pope 22, 45f, 49, 56, 62, 73, 355 88, 104, 121 Frenchmen/women 295 Gregory IX, pope 126ff, 131, 134; see Liber Friuli 34, 276, 315; see Constitutiones Extra patriae Gregory XIII, pope 353n10 Grimwald, king 96n96 gabellae 289 Gualcosius 42 Gaeta 31, 80 guarentigia 326 gairethinx 84 guarigangae 147 Gaius 14 Guarnerius, see Irnerius Galiardis de, societas 96 guelphs 186, 287, 306 Gallicus, Guillaume 332 Gui, Bernard 341 Gallura 31 Guibert, archbishop of Ravenna 62 Gambiglioni, Angelus 265 Guicciardini, Francesco 340 Gamboladus, Ugo 189n84 Guidi, family 159 Gandinus, Albertus 257, 264 Guido da Baysio 264 Garfagnolo 62 Guido de Suzzara 264, 269f Gelasius I, pope 53 guilds 155, 171, 174, 218, 232, 303, 319, 327 Gemona 314 Guillaume de Montlauzun 299

418 index

Guillelmus domini Accursii 199 inscription 119 Guillelmus, judge 92 Institor, see Kramer H. Guillelmus of Tyre 209n59 Institutions, Justinian’s 11, 14–19, 24n37, 41n44, 43, 52, 112, 195, 228, handwriting 26, 41; see Benevento 263, 295 Hapsburg, family 245, 305n21 institutions, social 318 Henricus de Susa, see Hostiensis instrumenta 241 Henry II, emperor 51 insurances 289, 328 Henry III, emperor 61 Instrumentum iuris civilis 209 Henry IV, emperor 51, 62, 80 intentio 92 Henry V, emperor 21, 61 interests 284; see loans, monti di pietà Henry VII, emperor 296, 299, 362 interpretatio 16, 143, 162, 216f, 236, heresy 16, 129, 155, 180, 183, 229, 278n13, 271f, 281 302, 337, 341, 343 investitura 69f, 90 hierocracy 74, 223 Iohannes Andreae 253, 257, 261n29, 264, Holmes, Oliver 269 279n15, 286n31, 299, 346, 365, 367 Holy Land 269 Iohannes Scriba 178 homicide 52, 60, 88n81 Iohannes Teutonicus 126, 199, 213 homines boni 84, 145 Ionic sea 38 honores 79, 99 Irnerius 20–28, 62n106, 102, 108f, 112, 121, Honorius III, pope 115, 126, 252n12 208ff, 223, 237, 334 Horborch, Wilhelm 332 Isidore of Seville 51f, 72, 112n16, 214n85 Hospitaller, knights 129 Islam 32, 178 hospitals 289, 318 Israel 82 Hostiensis 127n50, 200n15, 214, 245, 295 Istria 314n44 Howenstaufen, family 162 Italy, kingdom of 39, 42f, 70, 79, 84, 94f, humanism/humanists 346–362 101, 164, 186, 245 Humbert of Silvacandida 46, 57 iudices 16, 31, 45n55, 47, 59n94, 76, 83, 90, Hungarians 78 143, 218f, 232, 249, 271n4, 287, 325 Huss, Jan 338 iudicium Dei 86n69; see ordeals iura 13f Iacobus, jurist 109 communia 166 Iacobus de Arena 257n21, 264 regalia 61 iconoclasm 33 iuramentum calumniae 51 imbreviaturae 242 iurisdictio 48, 83, 123, 132, 187, 214, 219n95, immunitas 68, 83, 138, 152, 344 225, 286f, 303, 334, 355 Imola, Iohannes de 266, 268, 313 iurisprudentia 12f, 18 imperium mixtum 296 ius 12 Incmarus of Reims 73n31 ius ad rem 70n22 Index librorum prohibitorum 281n21 ius civile 16n13, 21, 237 indulgence 181 ius commune 21, 236, 245ff, 256, 258–261, infamia 160, 230 269ff, 276–280, 305, 309ff, 315f, 319, 329, inheritance 35, 39, 41, 130, 143, 185, 190, 333, 341, 354, 356ff 223, 261, 286, 288 ius congrui 33 iniuria 110, 130, 330 ius feudale, see law, feudal innocent 230 ius Francorum, see law, Frank Innocent III, pope 115, 125f, 130, 224, ius gentium 237 228n124f, 299n11 ius honorarium 12 Innocent IV, pope 116, 132, 214n84, 297; see ius proprium 237f, 271ff Sinibaldus de Fieschi ius publicum 146 innocents 223n101 Ivo of Chartres 55, 58, 73n31, 119 Inns of court 234 inquisition 84, 229f, 278, 288, 323, 341 Jacques de Révigny 264, 266fn41, 295 Spanish 285 Jason de Mayno 265

index 419

Jerusalem 145 criminal 35–39, 143n8, 159, 168, 206, Jesselin de Cassagnis 299 303, 340, 356n13; see composition, Jesus 181, 283 death penalty, duels, torture Jews 16, 76, 94, 129, 160, 167, 181f, 283f, divine 51, 58, 214f, 224, 274 337n28, 344 feudal 35n, 70n22, 98, 131, 153, 167f, 266f, Joan of Arc 338 295, 311, 351 John, judge 92 Frank 40ff, 62, 94, 96, 119, 165f John XXII, pope 299, 331, 337, 341n36 German 176, 364 John of Salisbury 207 Gothic 75 jubilee 250 international, private 238f jurisdiction, see iurisdictio local 239; see ius proprium Julianus de Sesso 202n22, 212 Lombard 34, 37–42, 52, 62, 94f, 119, 141f, Julianus, jurist 27, 28n48 153n32, 165–168, 200, 203ff, 210, 226, jurists 188, 236, 272, 280, 293, 301, 319, 260, 267, 295, 315, 324f 346ff, 350, 359 maritime 70, 74, 141, 173, 178, 319 justice 17f, 50, 72, 82f, 89, 113, 130, mercantile, see commercial 143, 158, 185, 207, 226f, 229, 287, 293, military 35 321–344 natural 14, 17, 51f, 122, 214, 273, 335 Justinianus, emperor 9–16, 22f, 27, 30, 32f, penal, see criminal 36, 39, 44, 46, 75, 118, 121, 145, 194–197, statutory 36, 85n66; see statutes 352; see Code, Corpus iuris civilis, Digest, Talmudic 94 Roman law, Institutions Latina 309 League, see agreements, federations Kantorowicz, Hermann 25n41 Lombard 137, 152, 237 kings 279, 287, 294, 334 of Tuscia 137 Lombard 40 Lectio legum 37 King’s Bench 235 lectura 195, 254, 256, 280, 286 knights 85n66, see Hospitaller, Templars Lectura Codicis Cyni 264 Koran 32 legatum ad pias causas 181 Kramer, Heinrich 284 legislation 135, 139ff, 162, 170, 238, 272, 293f, kritis 32n3 301, 306f, 311n36, 338, 357ff; see statutes Legnano of, John 265 Lactantius 11n6 Leipzig 26 lacunae 236 Lendinara 309 lambardi 148 Leo, bishop of Vercelli 88n75 Land, Holy 161n48 Leo III, Isaurian emperor 33, 35 Lanfranc, abbot 40f Leo IV, pope 129 L’Aquila 308 Leo VI the Wise, emperor 34n10, 162n52 laudemium 69 Leo VIII, pope 62n106 laudum 89, 146 Leo X, pope 284 launegild 71 lex/leges 72, 123, 143, 209, 215, 237n140; see Laurentius Hispanus 213 constitution, statutes law, see custom, international lex Dei 216 private law, ius, iura, lex divina 51 legislation, lex lex edictalis 160n44 Babylonian 177 lex mercatoria 173; see law, commercial Byzantine 32–35, 37ff, 44, 48, 70, 79, lex mundana 50 141f, 167, 178, 227, 277, 353 lex regia de imperio 28, 62, 110, 168, 237f, canon 51, 53, 118–130, 162n52, 286, 298, lex Rhodia de iactu 35n15, 176 347; see Corpus iuris canonici lex vulgaris 88n81 civil 17; see Codex, Corpus iuris civilis, Lex Romana 44, 45n55 Digest, Institutions, Justinian Lex romana canonice compta 43, 48, 95 commercial 90f, 101, 131n55, 143, 173, Ley de las Siete partidas 245, 365n12 175, 180, 289 leze see lex

420 index libelli 206, 326 locatio-conductio 154 Libelli de iure canonico 211 locatio ad longum tempus 70, 220f libelli de lite 61 Lodi 153n34 Libellus disputationum 202n22 Logudoro 31 Libellus disputatorius 204, 211 Lombarda 40, 101, 142, 148, 161, 164f, 199, Liber Augustalis 163f, 176, 246f, 307, 210, 215, 245 357, 368 Lombards 145, 160, 176, 190, 252 Liber de unitate ecclesiae 62n104 Lombardy 39f, 44, 51, 67, 70, 81n49, 88, 90, Liber de vera religione 123 101, 167, 227, 238n144 Liber diurnus 57n86 Longobardia minor 94 Liber Extra/ Extravagantium 127, 130, 132 lordships 45, 68, 77, 79, 138, 157, 212, 276, 134, 160, 170, 182, 199f, 214, 220, 234, 245, 285, 305 253, 265–268, 297, 299n11, 311 Lorenzo de Medici, the Magnificent 352 Liber Gazarie 177 Lothar I, emperor 43 Liber legis langobardorum 40 Lothar II, emperor 61, 185 Liber Papiensis 40, 42, 82, 101 Louisiana 358 Liber Paradisus 290 Lucania 38 Liber pauperum 234 Lucas de Penne 265, 267n42, 346f Liber Romanae legis 44 Liber Sextus 264, 297, 299n11, 332 Macerata 313 Liber Tubingensis 208n51 Maghreb 177 libertas Ecclesiae 117, 160, 331 magic 299 liberty 114; see freedom, libertas Magna Charta, see Carta Magna libraries 114, 251 magnates 291; see nobility Feliniana 266 Mahdia 80 Laurenziana 25 Mainz 211n67 of Italian Senate 302, 308, 319 Majorca 80, 319 papal 296n5 Malleus maleficarum 284 Paris 161n47 mallum 84 Vatican 161n47, 163n54 Malombra, Ricardus 264 Libri feudorum xii, 167, 188f, 198, 210f, 214, mandatum de lege romana 61n102 221, 237, 266f, 295f, 350 manentes 158 libri iurium 138, 240 Mansfield, lord 269 libri legales Mantua 114 209n57, 210f libri magistri 197 manumissio 181 libri magni quaestionum 256 manuscripts 24ff, 33, 37, 40n40, 45f, 55, libri poenitentiales, see penitentials 58n89, 114, 119n36, 141, 144n11, 161, libri terribiles 13 163n54, 169, 189f, 200ff, 204, 209n56, Libro de le uxanze e statuti 312n39 211n68, 213, 219, 251n9, 256n19, 295f, 310, licentia docendi 116, 248 332, 364 Liguria 141 Marche 276 Limonta 74n34, 78n43 Margaritae 260 littera see Digest Marinus de Caramanico 66n6, 246, 264 Bononiensis 25, 348 markets 174–177 Florentina 25, 44, 112, 265, 350, 352, Marquand of Randeck 314 362, 367 marriage 16, 34, 39, 43, 60, 123, 128, 130, grossa 304 162, 164, 234, 286, 288, 315, 333 Pisana 112, 118, 352 Marseilles 112, 250 Vulgata 44 Marsilius of Padua 274n8, 291 litterae arbitrariae 271n4 Martini, Simone 287, 298 Liutprand, king 41, 86n69 Martinus de Fano 212, 264 livellum 68, 70, 151, 185, 221 Martinus Gosia 62n106, 109, 150, 197, 206, Llibre de Consolat de mar 178 211, 223f loans 71, 76n41, 87n74, 122n44, 176, 181ff, Martinus Laudensis 265, 267n43 219, 282 Marturi 53, 62, 85, 91

index 421

Mary, our Lady 76n40 nationes 39, 78, 89, 95, 122, 151, 162f, 166, masnadieri 148 227, 252 massaricium ius 97 nature 20n25, 52, 214, 226 Mastinus Visconti 312 Neapolitans 265 Matilda of Canossa 21f, 62, 87, 90, 92, necessity 128 102, 112 negligence 17 Mattheus de Afflittis 265, Neuburg 50 311n34, 333 nicolaism 56n85 Maximilian I, emperor 334 nobility 47, 96, 139, 180, 186, 188, 218; see Medici, de, Cosimo 25n42, 362 knights, magnates Mediterranean sea 176, 319 nomofulax 58n88 Melchisedec 82 Nomos georgicós 35f Melfi 165 Nomos Rhodion nauticós 35 Memoratorium 88 Nomos stratiotikós 35 Mercanzia 319, 327f Nordilus 91ff mercatores 171, 175, 179, 181, 183f, 277, 328 Normans 30, 80, 94, 103, 138, 141f, 160, 163, merchants, see Mercanzia, law, commer- 177, 190, 311 cial, mercatores notaries 23, 39, 46, 65ff, 131, 171, 179, 227, Meridiana 258n23 239–242, 258, 290, 301, 316, 319, 325 Messina 168, 308, 325 notitia 65, 91, mezzadri 148; see sharecroppers Novae constitutiones, Venetian 143 migratio 115, 251 Novella Lombarda 295 Milan 39, 56n85, 96, 100, 149, 152f, 189f, Novels 33n6 210, 227, 248f, 265, 305, 350 Frederick II 165 Milis de, Iohannes 266 Innocent IV 56f, 132 Mincucci, Antonius 267n41, 296, 350 Justinian 10n3, 15f, 20, 38n29, 43, 45f, minors 65n4 110, 189, 195 Misericordia 319 missus 44n50, 84, 90, 92, 151 oath 66n6n, 87, 96n96, 141, 144, 184, 186, Modena 44, 194n2, 204f, 219, 238n145, 264 234, 269; see iuramentum calumniae modi arguendi 203 Obertus de Orto 70n22, 189, 227 Mohammed, prophet 32 obligation 46, 69 Mommsen, Theodor 25 Ockham, William 290n38 Monferrato 310n32 Oculus pastoralis 225 monopolium 115 Odofredus 22n31, 23n33, 111ff, 117, 189, 200, Monte de, Petrus 266 212, 238, 246 Montecassino 26, 37, 76, 161n47, 163n54 officium 46, 143n8, 155, 218, 286, 305 Montpellier 112, 116, 205, 207n50, 299 iudicis 336 morgengabe 34 Oldradus de Ponte 264, 298 Morosini, Domenico 143 Olivi, Petrus Iohannis 282n24 Mount Amiata 158 Olona 43 abbey 50, 76n41 Opera, of cathedral, see fabrica Monte delle doti, of Florence 283 opinio Bartoli 262 monte di pietà 283 opinio communis 261, 280, 339, 354 mos gallicus 354 ordeals 86ff, 226, 228 mos italicus 354 orders, religious 288, 319, 345 mundium 166 Ordinamenti di giustizia 302 mundualdus 167 Ordinaturus magister, apparatus 213 mutuum foeneratitium 181, 283 ordines iudiciarii 206, 217, 327 ordines 45, 48 Naples 24, 31, 39f, 45, 80, 114, 167n58, 168, Ordo iudiciarius Bassiani 211 191n88, 246, 250, 265, 276, 308, 310f, Ordo mellifluus in expositione legum 329, 350 Romanarum 75 Napoleon 10 Orléans, see universities Narbonne 116 Otto of Brunswick 126

422 index

Otto I, emperor 41, 55, 73, 86 Perpendiculum 203n26 Otto II, emperor 79 Perugia 45, 114, 307, 313 Otto III, emperor 45n55, 61, 70, 83n56, Pesaro 261 87, 102 Peter Damian 56ff, 194n2 Oxford, see universities Peter, see Exceptiones legum Romanarum Peter Lombard 209 pactum commissorium 183 Peter of Benevento 125 Padua 114f, 210, 266f, 272n5, 277, 325, 347 Peter II, count of Savoy 316 Palencia 212n74 petitio 326 Palermo 80, 161, 168, 308 Petrarch, Francis 264, 298, 346f Pandects, see Digest Petroni, Ricardus 297 Pandektenlehre 221n99 Petrucci, Federicus 265 Panormia 58n88 Petrus Crassus 62 Papacy 21, 28, 30, 45, 49f, 53–57, 86, 102f, Petrus de Anzola 258n23 115, 117f, 120f, 123, 126f, 130, 138, 155, 172, Petrus de Vinea 165 182, 184, 250, 252, 273; see Church Philip the Fair, king 298 Papias 39, 45, 112n16 philology 348, 352 paraphrase 228 philosophy, legal 215, 345 paratici 171 Piacenza 114, 150, 159, 164, 176, 210f, 269 paratitla 27 Piccolomini Aeneas Silvius, see Pius II Paris de Puteo 265 Piedmont 314, 317 Paris 52n71, 108, 111–115, 182, 300 Pierre de Belleperche 264 parliaments 139, 159, 161, 274ff, 313–345 Pillius de Medicina 114, 189, 194n2, 202f, Parlement of Paris 333 205, 211, 238 Parma 210, 302n16 Pio, cardinal Rudolph 313n41 pars sanior 129 Pipin king 68n18 partiti 306 Pisa 24, 26n44, 34, 74, 80f, 88, 92, 111ff, 118, pataria 57n26, 160 127, 143f, 147ff, 152n28, 175, 177, 190, 211, Patrimonium Beati Petri, see Pontifical 246, 304f, 307, 315f, 319, 338, 351f State Pisani, Luca 304n18 patrocinium 68n18 Pistoia 23n34, 46, 150, 152 Paucapalea 122, 212 Pithou, Pierre 75n37 Paul the Deacon 10n3, 24 Pius II, pope 266, 282, 284, 299 Paulus de Castro 265, 275, 281n19, 282n23, Placentinus 109, 114, 150, 209n57, 211, 224, 286, 289, 298, 300, 305, 331, 341, 354 226, 237 pauperistae, see Liber pauperum placet 285 Pavia 40–43, 89, 181n84, 267n43 placita 31, 76, 83ff, 87, 89–93, 126, 235n136, Pazzi, family 337f 134n45 peace 49, 66n6, 89, 131, 145 plague 253, 290, 297, 300 of Constance 73, 137, 152, 156, 237f, 295 Plantagenet, dynasty 234 peasants 68, 275 plenitudo potestatis 54n76, pecia 200f, 214, 253 273, 312n37 pedites 148, 171 podestà, see potestas Pedro de Santarém 289 Poggibonsi 62 Peña, Francisco 341 Polesine 309 Peñafort, see Penyafort Policarpus 58 penitence 123f, 336 Poliziano, Angelo 348, 352 penitentials 48f, 55, 58ff, 95, 120 Polycraticus 207 Penitentiary apostolic 233, 336 Poncius de Ilerda 211n70 Pentapolis 61n101 Pontano, Ludovicus 265, 281n21 Penyafort de, Raymond 126, 213, 245 Pontecorvo 161n47 people 17, 20n25; see populus Pontedera 207n50 Pepo, magister 52f, 90, 92f, 112f Pontifical State 44, 153, 222, 276, 307, perjury 87 310n31, 312ff, 350

index 423

populus 47, 51, 55f, 83ff, 139f, 146, 155, 237, publice disputatae 256 275, 291; see people sabbatinae 201n18, 211n71 Portugal 285, 289 statutorum 257, 331 positiones 326 veneriales 201n18 possessio 69, 122 Quaestiones de iuris subtilitatibus 208f iuris 70 Quaestiones in schola Bulgari post-glossators 255, 258, 264 disputatae 211n67 postilla 76 Quarantia civil/criminal 329 potestas 153ff, 159, 184, 214, 232, 323, 325, Quintilianus 11n6, 40n37 334, 342 quotations, law of 266, 350 statuendi 317n52 powers, divided 336, 342 Rachis, king 50 praescriptio 96n96, 166 Radulph Niger 21n28, 26n43 longissimi temporis 92 Raynerius Arsendi 264 prammaticae Aragonese 311 Raynerius de Perugia 241 Pratica, Venetian procedure 304n18 Ramée de la, Pierre 352n9, 353 Pratovecchio 296 ratio peccati 330 prefectus 31n2 ratio scripta 269f prestae 282 rationales 168 princeps 159, 273ff, 280, 334, 356 Ravenna 15, 22, 24n38, 30, 44f, 62, 68, procedure, see ius commune, ordines 99, 118, 240 iudiciarii reasons of the judgment 326n7 Roman-canon law 228, 233, 273, 311n36 rebellion 297, 337 summary 325, 327 Rebuf, Pierre xii privileges 43, 50f, 55, 57, 62n1, 74, 79, 83, rectores 256, 313 96f, 106, 115ff, 129, 136, 138, 141, 161n47, Reform 214, 274, 343, 355f Cluny 49 Procheiros nomon 36 Gregorian, see Gregory VII Prochiron legum 37, 227 reformationes 306 professiones iuris 94, 167 refutatio 91 promissio ducis 143, 304n18 regalia 163, 209 promissio maleficiorum 143n8 regulae 304, 318 proofs 131, 325f; see witnesses Reggio Emilia 114, 252 property 66, 68, 78, 87, 122, 131 regulae iuris 16n13, 17, 118, 203f, 297 collective 157, 175, 214n85, 221; see usi Reichskammergericht 334 civici Reims 103n109 protimesis 33 Renaissance, see humanists protospatarius 82 Rendella Prospero 325 prototabellio 45 renunciationes 241 Provence 44, 67, 75, 80, 112, 176, 205, 211, repertoria 259 250, 261n28 repetitiones 255f, 258 provisiones 306 reportationes 255 Prüm, monastery 66n9 representation 275; see constitutionalism, Puglia 30, 37, 94, 168, 267 parliaments pugna 42, 88; see duel reprisals 328 punctum examinis 253f res iudicata 132, 338 purgatio 48 res publica 146 Purgatory 181, 323 responsa, see consilia sapientis restitutio in integrum 330 quaestiones 123, 201, 211, 217, 254, 265 Rhodes 35 de facto 202, 218 Ricardus de Pisa 207 disputatae 202 Rieti 90 feudorum 257 Rimini 51 mercuriales 201n18 Rio nell’Elba 309

424 index ripaticum 146 schism 29, 44, 78, 317 Ritus Magnae Curiae Vicariae 246n4, 311 schools 41, 55, 130, 237n140, 246n2 Robert of Anjou, king 34n10, 297, 324n3, scriba 39, 119 337, 346 scriniarii Ecclesiae 45 Rocca d’Orcia 158 scrinium 15 Roffredus de Benevento 70n21, 210f, 238 sculdasci 84 Roger II, king 37n27, 138, 142, 160ff, 166f, Sebastian, Napodanus 247 169, 190, 227 securitas de valle de Serclo 145 Rogerius 109, 114, 205, 207 Segnatura apostolic 336 Rolandinus de Passeggieri 258f Senate 304n18 Rolandus Bandinelli 212; see Alexander III Senatusconsultus 12 Romans 252 Seneca 14 Rome 25n43, 26n43, 30, 42, 45f, 54, 57, 62, Serchio, valley 145 95, 104, 110, 114, 127, 129, 158 Sermoneta 309 Roncaglia 185; see diet of R. serfs 97, 113, 129, 147, 163n53, 168, 181, 212, Rosarium 264 290, 302 Rota, Holy Roman 265f, 331–336, 341 Sessa Aurunca 76 Rotari, king 34n12, 38, 41, 44n50, 119 sex 60 Rufinus 212f Sforza family 248, 312, 334 sharecroppers 328; see mezzadri Sabina 45 Sicily 30–34, 141, 191n88, 250, 260n26, 265, Sacco, Cato 348 267, 288n35, 301, 308, 324, 329, 357 sacramentum 86 Kingdom 79, 138, 142, 161, 164, 167, 169, sacrilege 51 190, 227, 246, 264, 266f, 274ff, 279, saisine 69n20 297, 301, 307, 311, 325n4 Salamanca 199 sicloti 308n28 salaries 150 Siena 26n43, 62, 114, 148, 151n27, 158n41, Salatiele 241f, 258 176, 226, 266, 276, 287, 304f, 309 Salerno 30, 164, 167f Siete Partidas, see Ley de las S. sales 23, 33, 128, 131, 176 significatio 16f, 127 Saliceto, Bartholomeus 265 Signoria 287, 304f; see lordships Saliceto, Ricardus 265 signum tabellionis 242 Salutati, Coluccio 266 silence 17 salvamentum 147 Simon de Bisignano 213 Salzburg 314 Simoninus, saint 283, 338n30 San Gimignano 114, 339 simony 16, 46, 56f, 73 San Marino 358 sindicatus, procedure 339 San Savino 207n50 sindicus 322 Sanseverino 265 singularia doctorum 257 Sant’Antimo, abbey 50 Sinibald de Fieschi 214; see Innocent IV Saorge 158 Siponto 211 Sapienza 249 Slavs 94 Saracens 30ff, 47, 78ff, 129, 160, 162, 177f, societas 111; see Galiardis 181, 285 commercial 144, 326 Sardinia 31, 34, 80, 276, 301, 315f, 324, 357 society of the towers 170 Sarpi, Paolo 277 Socini’s cautela 354 Sassari 307 Socinus, Bartholomeus 266 Savigny von, Fr. C. 26n46 Socinus, Marianus 266, 284, 348n3 Savonarola, Girolamo 338 Solomon 82 Savona 179 solutiones contrariorum 27, 202 Savoy, family 316, 355 Sommaria, court 329 region 316f sorcery 59 scabini 84 sors 186 scholia 36n20, 37 sovereignty 238

index 425

Spain 75, 80, 177, 207, 236, 245f, 262, 266, Summa Lombardae 210 285, 355 Summa Monacensis 213 Spanish 252 Summa notariae Arretii composita 259n24 Spalato 44n50 Summa notariae Belluni composita 259n24 Sparano of Bari 142 Summa Parisiensis 213 Speculum iudiciale 245, 258, 261n29, 367 Summa Perusina 23n34, 45, 89n83 Spello 311 Summa quaestionum 200n22 Splendor Venetiarum civitatis Summa theologica 282 consuetudinum 278n12 Summa Trecensis 207f, 211 Spoleto 311 Summa Trium librorum Placentini 194n2, Sprenger, Jacob 284 211 St. Gilles 207n50 summae 204f, 258 stamenti 315 confessorum 182 State 81, 357n14, 360 feudorum 296 of the Church, see Pontifical State Summula de feudis 210n60 stationarii 25n40, 200, 252 sumptuary, legislation 302, 342 statutarii 303 Swabians 162, 169, 228n122, 245, 311 statutes 12, 139, 146, 155, 172, 184, 194, 209, Switzerland 137, 215n86 212, 259n24 Sylvester I, pope 348 of the People 306 Sylvester II, pope 70 novum/ parvum 143 synods 139, 300 perpetua/precisa 304 Statutes of the Realm 293 tabellio 45 Stefanus Tornacensis 212f, 216, 228n123 Tables XII 71 stipulatio 46 tabolarios 39 Stracca, Benvenutus 319 Tabula Prothontina 141 Strasburg 21 Tancredus 126 stratigotus 168 Tartagni, Alexander 265 Studium generale 116f, 133, 248; see Tavola of Amalfi 141 universities taxes 276, 305f, 358; see agreements, Summa actionum Placentini 211 contractualism, parliaments Summa arboris actionum 211n69 Teano 76 Summa artis notariae 258 Templars 129, 337 Summa authenticorum 205 Tende 85n64, 158 Summa Codicis Azonis 194n2, 205, 212 tenimentum 97, 290 Summa Codicis Placentini 205, 211 Teramo 90 Summa Codicis Rogerii 205, 207, 211 Tertullianus 73n31 Summa Coloniensis 213 testament, see wills Summa Cum essem Bononiae 194n2 Theodoric, king 24n36, 75n37 Summa Cum essem Mantuae 194n2 Theodosius II, emperor 11, 116, 196; see Summa de matrimonio Vacarii 234n135 Codex Theodosianus Summa Decretalium Innocentii 214 Theophilus 228 Summa Decreti Iohannis Faentini 213 theoretron 34 Summa Decreti Paucapaleae 202 Tiepolo Iacobus, doge 143, 304n18 Summa Decreti Rolandi 212 Tintinnano 158f Summa Decreti Rufini 212 Tipucito 36 Summa Decreti Tornacensis 212 Torelli, Lelio 25n42, 362 Summa Decreti Uguccionis 213 Torquemada, Juan of 285 Summa feudorum 267n41, 295 Torres 31 Summa Hostiensis 214 Tortosa 80 Summa Institutionum ‘Iustiniani est in hoc torture 231, 326, 337n26 opere’ 112n15 Toschi, Domenico 368 Summa Institutionum Placentini 211 Toulouse 99, 207n50, 333; see universities Summa Institutionum Vindobonensis 208 tournaments 129, 228n124

426 index tractatus 205, 258 Ulpianus 19 criminum 206 Umbria 76, 309 de actionum varietatibus 226 universitas 133, 168 de amicitia 266 universities 101f, 107–117, 160, 162, 179, 188, de appellatione 211n69 228, 232, 235, 238, 241, 237, 251, 253, 259, de bello 265 261, 277f, 288, 301, 303, 319, 325, 339, 345, de carceribus 257 354; see Sapienza, Studium generale de cometa 266 Avignon 250, 265 de consiliis habendis 257 Bologna 115ff, 126, 129, 153, 164, 189, 200, de dote 206 202n23, 205, 208, 210f, 235, 241, 250, de feudis 267n43 252, 264, 270, 272, 280, 297ff, 301, de hominiciis 212 346, 352 de insigniis et armis 348 Catania 250 de maleficiis 267n41, 341n37 Ferrara 251, 266 de modo studendi in iure 349 Florence 249, 265 de pugna 205, 210n60 Naples 116, 164, 210f, 214, 248, 250f, de quaestionibus 257 264, 324 de recusatione iudicum 211n69 Orléans 250, 263f, 295 de schismate 266n40 Oxford 213, 234 de sindicatu 265 Padua 116, 250f, 270n2, 277, 346 de statutis 257, 331 Pavia 248, 250–253, 265, 348 de testibus 211n69, 257 Paris 116, 250, 298 de tyranno 266 Perugia 251, 279, 346 notularum 258n23, 259 Piacenza 116 traditio 67, 344 Pisa 250f, 266 Trani 35, 142 Rome 250f transactions 89, 131 Salamanca 116 Trent 283, 309, 314, 338 Siena 250f, 253, 265 Tres libri 23, 45n54, 145, 295 Toulouse 250 Treviso 153, 210, 277 Upsala 228n123 Tribonianus 16, 349 Urban II, pope 25n43, 73n31 Tripartita 58n89 usi civici 157 Trivium 23 usucaption 279 Troyes 207 usury 129, 132, 180, 182, 184, 265, 282, truces 49, 184 288, 348n3 Tubingen, Book of 52; see Liber T. usus 143, 148n20 Tudeschis, Nicolaus de 266, 280f, 347, 367 Usus venetorum 143 Turks 261 utraque lex/utrumque ius 51, 103, 224, Turin 24n37, 211n67 268, 355 Tuscans 252 Tuscany 52, 80, 91f, 207, 305n21 Vacarius 234 tyranny 82, 274, 279n15, 335 Vaccella 203, 210 Valencia 319 Ubaldis, de, family 251; see Angelus, Valla, Lorenzo 262, 279, 348 Baldus de Ubaldis Vasco, Guillelmus 115n26 Udienza, royal court 325 vassals 99ff, 148, 185f, 219n95 Udine 314 vassi casati 99 Ugo 41, 109, 210n60 Vaud 316, 325 Ugo, marquis of Tuscany 91f vavassours 81, 96, 100 Ugolinus 198, 212, 295n3 vendetta 143n8 Ugolinus de Sesso 211, 212n74 Venice 31, 38, 44, 47, 78–81, 136, 142f, 175, Ugolinus de Presbiteri 28n48, 189, 211, 178, 183, 227, 240, 246, 249, 261, 267, 237n143, 295 276ff, 293, 304f, 312, 319, 328ff, 350; see Uguccio de Pisis 213, 224, 229n123 doge

index 427

Ventimiglia 158 Volumen 237, 295f; see Corpus iuris civilis Vercelli 114, 212 vulgar language 309, 315 Verde, count of Savoy 317 vulgata editio 25f, 44 Verona 15n10, 210, 265, 277, 307 Vespasianus, emperor 28n48 Waldensians 230 Vespers, Sicilian 245, 250 war 265 vicarii 233, 312 Weber, Max 179 Vicaria, court 329 Wergeld 91 Vicenza 114, 210, 277 Wernerius, see Irnerius Vienne 337 wichtcraft 163, 263, 284f, 336n22, 341 Vigilius, pope 30 widows 34, 284, 288 villani 147 wills 23, 71, 180, 288, 312n39 vindicatio rei 221 witnesses 66n6, 86, 88n81, 93, 131, 231, virginitas 34 326, 328 Visconti, Milanese family 248, 276, women 35n13, 41, 74n33, 143, 148, 267n43, 312, 337, 349 228, 261 Pisans 146f Worms 21 Visigoths 24, 177 Viterbo 153 Yale 144n11 Vivianus Tuscus 212, 219 Volterra 92, 153 Zabarella, Franciscus 266, 281n21, 347