GRATIAN THE TREATISE ON LAWS WITH THE ORDINARY GLOSS STUDIES IN MEDIEVAL AND EARLY MODERN CANON LAW Kenneth Pennington, General Editor Editorial Advisory Board Robert L. Benson, University of California, Los Angeles Uta-Renate Blumenthal, The Catholic University of America Richard Helrnholz, University of Chicago Stephan Kuttner, University of California, Berkeley John E. Lynch, The Catholic University of America Robert Somerville, Columbia University Brian Tierney, Cornell University STUDIES IN MEDIEVAL AND EARLY MODERN CANON LAW VOLUME 2 Gratian The Treatise on Laws (Decretum DD. 1-20) translated by Augustine Thompson, O.P. with the Ordinary Gloss translated by James Gordley and an introduction by Katherine Christensen The Catholic University of America Press Washington. D.C. NIHIL OBSTAT R. P. Alanus Duston, O.P., J.C.D. Censor ad Hoc IMPRIMI POTEST R. P. Johannes Flannery, O.P., M.D. Prior Provincialis Provinciae Ss. Nominis Jesu die 4 Novembris 1992 IMPRIMATUR Reverend Msgr. William J. Kane Vicar General for the Archdiocese of Washington July 22, 1993 The nihil obstat and imprimatur are official declarations that a book or pamphlet is free of doctrinal or moral error. No implication is contained therein that those who have granted the nihil obstat and the imprimatur agree with the content, opinions, or statements expressed. This volume was typeset by the translators using WordPerfect 5.1 Word Processing Software on the Linotronic System of Loyola Graphics, San Francisco, California. The plate included in this volume, from Munich, Bayerische Staatsbibliothek, Ms. Clm. 23552, fo. I, at D. I c. 1, with miniatures attributed to Nicolo di Giacomo da Bologna (XIV cent.), is reproduced with permission of the © 1993 The Catholic University of America Press All rights reserved Printed in the United States of America The paper used in this publication meets the mInimum requirements of the American National Standards for Information Science-Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. Library of Congress Cataloging-in-Publication Data Gratian, 12th cent. [Decretum. D. 1-20. English] The Treatise on laws (Decretum DD. 1-20) / Gratian, translated by Augustine Thompson, O.P. : with the Ordinary gloss, translated by James Gordley ; and an introduction by Katherine Christensen. p. cm.-(Studies in medieval and early modern canon law: v. 2) Includes bibliographical references. \. Canon law-Sources. I. Thompson, Augustine. II. Gordley, James. III. Christensen, Katherine. IV. Title. V. Title: Ordinary Gloss to Decretum DD. 1-20. VI. Series. LAW <CANON Gratian 1993> 262.9'22-dc20 93-19237 ISBN: 978-0-8132-0786-5 CONTENTS Translators' Preface . .. VB Introduction .................................................. ix Acknowledgments ........................................... xxviii THE TREATISE ON LAWS . .. I As outlined in the Summa Magistri Rolandi (jar a more complete summary of each distinction, see Introduction, pp. xxi-xxvi): DD. 1-2: What law, ordinance, and the species of law are ............... 3 D.3: What a canon, a privilege, and the purpose of ordinances are ........ 10 D. 4: Why laws are made, what qualities they should possess, and when judgments are to be passed on them and when according to them ............................................... 12 D.5: Concerning pregnant and menstruating women, and that they may always enter a church unless something else prevents this .......... 15 D. 6: That pollution due to excrescence or illness should not be feared; nevertheless, although pollution caused by overeating does not prevent required participation in the Sacred Mysteries, that resulting from impure thoughts requires one to abstain . 18 D.7: On the makers of ordinances ............................... 22 D.8: That custom yields to truth and reason ........................ 24 D.9: When imperial ordinances should be tempered; and that the can- ons do not contain falsehoods, although certain passages in the writings of theologians need to be corrected .................... 28 D. 10: That royal tribunals are subject to the sacerdotal power, and that pontiffs and kings need each other ........................... 32 D. 11: That custom should conform to ordinance and reason, and that custom should be observed ................................ 37 D.12: On the custom and usage of the Roman Church, that the same method of psalmody should be used everywhere, and that a mo- nastic custom should not be taken as an ecclesiastical norm ......... 42 D. 13: That the lesser of two evils should be chosen ................... 48 D. 14: That we should not do a lesser evil to prevent others from committing a greater one, and which enactments may be relaxed ..... 52 D. 15: When general councils began, and which writings of the fathers are received .......................................... 53 D. 16: That conciliar acts are confirmed by Roman authority ............. 59 D. 17: That synods are not to be convoked without the authority of the Roman pontiff ......................................... 66 D. 18: On the punishment of those who neglect to attend a synod, and on the authority of the Roman See ............................. 70 D. 19: That decretal letters are equivalent to canons, and that writers such as Augustine and others, although preferred in the interpretation of Scripture, are inferior to the canons for determining cases ........ 76 D. 20: On the decrees of the Roman pontiffs, and that the sacred canons govern ecclesiastical affairs . 84 Notes to the Decretum ........................................... 87 Notes to the Gloss ............................................. 113 Glossary . 117 Jurists in the Gloss ............................................ 122 Bibliography ................................................. 124 TRANSLATORS'PREFACE Gratian's Treatise on Laws incorporates passages from authors of different periods with widely different Latin styles. While we have attempted to produce a smooth, readily intelligible English version that avoids Latinisms, we have also tried to stay close to the forms and structure of the original language. One reason is fidelity to the nature of legal material. Although many passages were from sermons, letters, and theological treatises, Gratian treats them as legal sources. Thus the words used and the formal structure of the language often have legal significance. Moreover, the Ordinary Gloss often clarifies obscu- rities and ambiguities in the Treatise, and so we have preserved these in our text. Also, as explained in the Glossary, we have sought consistency in translating certain technical vocabulary by always using certain English words. Our translation was made from the Roman edition of Gratian and the Ordinary Gloss (1582). We chose that edition not only because it became the authoritative version for later canon law, but also because there was no obvious alternative. There is neither a satis- factory critical edition of the medieval Gratian nor a single base manuscript. There is an edition of Gratian by Emil Friedberg (2d ed., 1879), but we thought it would be unwise to use it. Friedberg created a hybrid text that is neither the Roman edition nor any medieval manuscript used by the medieval glossators. Consequently, this text cannot be used with the printed version of the Ordinary Gloss. We have, however, included in our backnotes the significant discrepancies between the Roman edition and that of Friedberg, explanatory commentary, and references to scholarly literature. The backnotes are found at the end of the Treatise and shown by raised numbers in the text of Gratian and by raised numbers in parentheses in the Gloss. The Greek canons reproduced in the notes follow the identical text of both editions with all its idiosyncrasies. Medieval manuscripts of Gratian usually included an introduction, which outlined and summarized the text of the Decretum. In the same spirit we have included in our table of contents the summaries of the first twenty distinctions as they appear in the Summa Magistri Rolandi, one of the earliest outlines of Gratian's compilation. A more compre- hensive outline can be found at the end of the Introduction. We have also included in our notes many of the comments made by the Roman Correctors in their edition. Our notes also reproduce the lists of parallel passages in the major pre-Gratian compilations: Anselm of Lucca, Burchard of Worms, the Polycarpus, and Ivo's Decretum, Tripartita (both recensions), and the Panormia, as these appear in the Roman and Friedberg editions. These have been checked and corrected, where possible, using the available editions listed in the bibliography. We also include refer- ences to modem editions and usable English translations, when these exist, for the patris- tic sources. We believe them of interest, even though Gratian generally took his material from earlier compilations, rather than directly from the fathers. viii TRANSLATORS' PREFACE The translation of the Gloss presented different problems. Its Latin is more consistent, pithy, and lawyerly than that of the Decretum itself. Our translation attempts to preserve this flavor. For reasons that are explained in the appendix, "The Jurists in the Gloss," we have left the abbreviations of the jurists' names found in the Gloss in their original abbre- viated form. We have converted the medieval citation system of the Gloss into modem notation. Medieval citation of the Roman law was by the incipits of the title, law, and, where appli- cable, paragraph. For example, Book