Published in the Bulletin of Medieval Canon Law  26 (2004-2006) 59-123


The Evolution of Gratian’s Tractatus de penitentia


Atria A. Larson


            Scholars have long questioned the authenticity of two treatises in Gratian’s Decretum, one called De penitentia and the other De consecratione. For many great mid-twentieth-century Gratian scholars, including Jacqueline Rambaud and Adam Vetulani, they were clearly later additions and probably not even authored by Gratian. More recent scholars, including Peter Landau and Stephan Kuttner, have accepted these general conclusions although they differ in their opinion of whether Gratian himself authored the treatises (Landau denies Gratian’s authorship of them while Kuttner, at least for De penitentia, sees no reason to do so).[1] They seem out-of-place, separable treatises appended to the most important canonical collection ever made. While De consecratione appears at the end of the whole collection, De penitentia appears within the main text, constituting the third question of Causa 33. If De penitentia was indeed a later addition and not even penned by Gratian, this raises more questions. Why was the treatise not merely placed at the end of the work along with De consecratione? Why was it integrated within the causae, and why Causa 33?

            Other questions arise from the manuscript tradition. The scholar most attuned to these issues based upon the variations and trends in the presentation of De penitentia in manuscripts is Rambaud.[2] In the early stages of her research (1950), Rambaud concluded that, in general, the treatise was not original to Gratian’s work but was a later addition, which, when it was first added, was not incorporated into C.33.[3] By 1965, her conclusions became more complex: not only was De penitentia not originally part of the Decretum, the treatise itself developed in stages. Sections frequently absent from early manuscripts she judged to be later additions.

For instance, while the treatise contains seven distinctions, her research has revealed that three of them (D.2-D.4) are entirely absent from many twelfth-century manuscripts. As a young scholar, Pope John Paul II (then Karol Wojtyła) found the same absence in a Gratian abbreviation he studied in Gdańsk.[4] The frequent absence of these distinctions among relatively early manuscripts and the allegedly more theological tenor of these distinctions in comparison with the other four led Rambaud, Vetulani, and Wojtyła to conclude that D.2-D.4 were not part of the original composition of the De penitentia.[5] This conclusion is partially based on the viewpoint that Gratian was not very concerned with theoretical matters of theology. After all, Rambaud notes, Gratian’s habitual tendency in his work is much more practical and juridical.[6]

Rambaud adjudged other portions of the treatise also to be later additions, namely D.1 c.6-c.30 and D.5, c.2-c.8.[7] She concludes that ample evidence exists from the abundant abbreviations of the Decretum to suppose that the original q.3 of C.33 of Gratian’s Concordia discordantium canonum contained D.1 (minus c.6-c.30), D.5 d.a.c.1 and c.1, D.6, and D.7. Then someone added D.1 c.6-c.30, D.5 c.2-c.8, and D.2-D.4. Only then did canonists view the collection of canons as a distinguishable treatise, sometimes tacking it on the end of the work.[8] All these changes must have come about quite rapidly, though, because most manuscripts from the second half of the twelfth century incorporate the treatise into that question of C.33 in which it remains in Emil Friedberg’s 1879 print edition.[9] Rambaud’s conclusions seem mostly plausible given her evidence,[10] much of which, she admits, seems to preclude the possibility of discovering the original contents of the treatise: ‘It seems paradoxical to search for the primitive form of the Decretum in abbreviations, which are necessarily later than it and which, having for their end the presentation of a more accessible version of Gratian’s compilation, deliberately lay aside all the texts which appear to them superfluous for the elaboration of a precise response to the questions posed.’[11] Little could Rambaud imagine that forty years later a more ‘primitive form’ of Gratian’s work would be discovered in physical manuscripts long thought to be mere abbreviations like the ones she studied so diligently.

            The small world of medieval canon law studies is now well aware of the ground-breaking doctoral research of Anders Winroth during the 1990s which came to print in his The Making of Gratian’s Decretum (2000). Winroth’s work confirmed what Gratian scholars had long suspected, namely that the Concordia discordantium canonum developed in stages and that the Friedberg edition represented only the last of these. What was so remarkable about his work was his assertion that he had discovered the earliest, or at least earlier, version (what he terms the ‘first recension’) in extant manuscripts.[12] Scholars no longer had to try to reconstruct Gratian’s earlier work from the final version; they could see it first-hand. Winroth does not work specifically with De penitentia, but his book and the edition of the Decretum he creates from his manuscripts would substantially discredit much of Rambaud’s work and the assumptions of the many other scholars who basically agreed with her conclusions.[13] In a very helpful appendix, Winroth provides a listing of the contents, distinction by distinction and causa by causa, of his ‘first recension.’ His listing for C.33, q.3 shows that the first recension of Gratian’s Decretum contained the vast majority of De penitentia in its present form. This means that the general conclusion of twentieth-century scholarship that the treatise was not part of the original plan and composition of Gratian was wrong. Some of Rambaud’s assessment of the development of the treatise, however, finds support in Winroth’s work. As she supposed, D.1 c.6-c.30 is not in the first recension; neither is D.5, c.2-c.8. Nevertheless, D.2-D.4 are present nearly in their entirety. In light of Winroth’s work, De penitentia becomes integral to Gratian’s original project, an extensive treatise he decided to insert into one of his causa. Later on, either Gratian or someone else just added a few canons here and there until, eventually, the treatise took on its finished form.

            These are the conclusions Winroth’s work would lead one to make. One cannot accept them, though, without first dealing with the still-controversial article published by Carlos Larrainzar.[14] In that article, he claims that the Decretum manuscript in the Stiftsbibliothek in Sankt Gallen presents an even earlier version of the work. In other words, Winroth’s ‘first recension’ is no ‘first recension’ at all; it is merely a recension earlier than the final one. While Winroth still adamantly denies Larrainzar’s findings and Larrainzar still holds fast to them, the scholarly world also remains divided.[15] Mary E. Sommar has written an article on C.7 with conclusions between Winroth’s and Larrainzar’s,[16] while Kenneth Pennington has come to be convinced that Larrainzar’s general conclusion is correct: the St. Gall manuscript (Sg) is an earlier version of the Decretum than Winroth’s ‘first recension.’ The final section of this essay will put Larrainzar’s hypothesis to the test. I will examine what Sg in addition to Winroth’s “first recension” can contribute to our understanding of the development of the De penitentia and its place in the Decretum.

            To trace the development of the De penitentia and eventually assess Rambaud’s conclusions and others, one now has the advantage of being able to utilize manuscripts presenting earlier versions of Gratian’s work. I will start at the end of the story with the vulgate version, placing the treatise in the context of Causa 33 and giving an overview of the contents of each of the seven distinctions. Then I will move backwards in time to examine the two manuscripts used by Winroth that are complete enough to contain C.33, q.3 (Admont, or Aa, and Florence, or Fd).[17] Lastly I will examine Sg and question whether the version of C.33, q.3 in it supports Larrainzar’s view that Sg is an earlier version of the Decretum. From my answer to that question, I will conclude by mapping out the development of the treatise and address what these findings say about Rambaud, Vetulani, Wojtyła, and others’ previous assertions, the dissemination of the Decretum, and the authorship and intellectual milieu of De penitentia.

De penitentia in the Vulgate Version

            The vulgate version of De penitentia as presented in Friedberg takes up just over eighty-six columns of the print edition and contains, according to Friedberg’s rendering, 225 canons, 184 of which make up the first three distinctions of the seven. Gratian’s favorite auctoritates include Augustine, Ambrose, Jerome, John Chrysostom, Leo the Great, and Gregory the Great. One work by Augustine (or so Gratian thought) that he found amenable to lengthy excerpts was the De vera et falsa penitentia, in reality an anonymous late eleventh-century work written by someone favorable to the Gregorian reform movement.[18] Some of the passages that Gratian quotes in the treatise appear in earlier canonical collections, but many more do not.[19] Gratian uses few decretals or conciliar canons. He does make extensive use of the Bible. A few Roman law sources arise, mostly in c.6-c.30 of D.1. On the whole, Rambaud finds that Gratian’s auctoritates in the treatise differ from those of the rest of the Decretum.[20]

            At least by the time of this version, the author seems to have conceived of the De penitentia as a distinguishable treatise, for he makes an internal cross-reference to it in an earlier causa. Because this reference (C.11, q.3 d.p.c.24) appears in virtually all of the earliest manuscripts and there was no good reason to suspect it was a later addition, it has always been a problematic passage for the proponents of the idea that the original Decretum did not contain the treatise on penance. Gratian here directs his readers to his treatise, saying, ‘Require infra Causa: Maleficiis impeditus, quest. I De penitentia.’ Gratian is thus referring to C.33, which begins with the words Quidam vir maleficiis inpe-ditus, and the first question addressed in De penitentia.[21] Mid-twentieth-century scholars had interesting ways of getting around this problem. Believing that De penitentia was not in the original Decretum but being forced to admit in her studies that C.11, q.3 d.p.c.24 was, Rambaud theorized that Gratian was not referring to a treatise by the name of De penitentia but was merely referring to the section of C.33 in which he spoke “concerning penance” (de penitentia) (i.e. C.33, q.3).[22] The logical conclusion for the time being is that that dictum in Causa 11 is referring to a work designated by the author by the name De penitentia which is contained within Causa 33. Put another way, here in the vulgate version, Gratian himself, not later scribes, conceives of the treatise as a separable work which, nevertheless, he has decided to embed within one of his causa rather than at the end of the entire work.[23] The question then necessarily arises, ‘Why this causa?’

The Placement of the Treatise

            If by the time of the vulgate version Gratian had decided to include a treatise on penance within a causa, C.33, q.3 actually represents the only rational choice. It is the only place in the causae that asks a general question on penance. Gratian brings up the issue of penitentia only three other times within his thirty-six causae. Each of these instances either addresses a very specific point about penance or is not ultimately about penance at all. The first question which addresses penance in the Decretum is C.14, q.6. This question deals specifically with the sin of usury and asks whether those who have committed usury may perform penance if they have not paid back the interest accrued illegally.[24] Gratian uses only four canons to answer the question. The second instance is C.16, q.1. This question asks whether a monk may celebrate offices with lay people, assign penances, and baptize. That is, it focuses on the proper extent of the duties and activities of monks, especially in relation to the laity, not on penance itself.[25] The third mention of penance appears in C.26, q.7. The causa deals with a priest convicted of fortune-telling. He is eventually excommunicated although another priest reconciles him to the church on his deathbed and assigns a time-conditioned penance. Question seven asks whether those dying should be assigned a penance that requires a certain amount of time to be completed.[26] Again, it is a very specific question concerning the penance of people in a certain condition of life, namely those about to die. None of these three questions naturally lend themselves to a broad discussion of penance.

            On the other hand, C.33, q.3 asks a rather broad question about penance and one which has the potential to have an answer which engages important theological as well as practical issues about penance. The causa deals with a husband who has become impotent due to some sin in his life. In the meantime, another man seduces his wife and marries her. After confessing his sin to God alone, the original husband is cured of his impotence and takes back his wife. He now desires, however, to live a life of continence, a desire his wife does not share. The third question focuses on the part of the case that emphasizes the man’s private confession to God and asks ‘whether a sin is able to be blotted out by confession of the heart alone.’[27] Such a query questions the very necessity of confession to a priest and acts of penance assigned by that priest. It raises theological issues about what brings about the remission of a sin. If, in the course of this answer, Gratian decides that oral confession and physical acts of penance are necessary, then issues could arise as to the actual practice of penance, what penance means for the life of the penitent, to whom the sinner should confess and from whom he should be assigned penance, what constitutes true penance, etc. In fact, Gratian addresses all of these questions and more in the course of the treatise.

The Contents of the Treatise

            Gratian’s treatment of penance deserves in-depth study in all its canonical and theological details. Many of his arguments display intricate technicality but also manifest the nascent quality of the theology of penance in the middle of the twelfth century. Here I merely want to briefly lay out the contents of each distinction and thereby to give a general impression of the issues addressed and the general flow of the treatise. I will pay particular attention to portions of the text which have been seen as problematic by previous scholars or are essential to my subsequent arguments.

            The first distinction deals most specifically with the question raised in the presentation of the case. It asks ‘whether someone is able to make satisfaction to God by contrition of the heart and secret satisfaction alone without oral confession.’[28] The first thirty-seven canons and interspersed dicta argue in the positive. The first five begin to make the case that God looks at the heart, not external works, and that he forgives sins before humans can do any work to make up for them. Then comes the problematic canons (6-30) absent from so many manuscripts and deemed by Rambaud to be later additions. They focus on the guilt as opposed to the remission of a deed. Drawing upon both Roman law and patristic sources, Gratian argues that a man intending to commit a crime is just as guilty of that crime as the one who executes it.[29] Oddly enough, as Rambaud points out, these canons deal most frequently with homicide despite the fact that C.33 deals with sexuality.[30] The second half of c.30 (from a different work of Augustine from the first half) returns to the direct contrast of cordis contritio and oris confessio. The unspoken analogy here in these twenty-five canons which contributes to Gratian’s argument is that, just as a person is guilty of a sin even if he sins only in his voluntas and never in act, so also a person can receive forgiveness of a sin from God even if he confesses his sin only silently in his voluntas and not by a physical act of oral expression. Gratian also makes the argument that Christians are made alive by grace and are sons of God, not of the Devil, before any confession. These considerations lead Gratian to the conclusion in d.p.c.37 that ‘a sin is not remitted in confession, for it is proved to be already remitted. Confession is thus done as a display of repentance not as a request for mercy.’[31] Gratian has now concluded his arguments for the positive answer to his question.

            D.1 c.38-c.89 argue in the negative, that contrition of the heart is not enough to obtain remission for a sin; oral confession and an act of penance are also required.[32] Many of the arguments presented focus on the authority God has given to the Church, specifically the power to bind and loose. If people do not have to confess to priests and do what satisfactory works they command, then how can they exercise their power to control who gets into heaven and who does not? Gratian draws a parallel between several instances of godly men acting as mediators in the Old Testament and the activities of priests hearing confession and assigning penance. Priests are the present-day version of Old Testament figures such as Moses and David who brought peace between sinful humans and God and brought serenity to their souls. In d.p.c.87, Gratian revisits and reinterprets canons he utilized in support of the opposite position. One method of reinterpretation he uses is to restate the verbs used to describe God’s forgiving (remittere and dimittere) as meaning ‘to judge remissible’ (remissibilis iudicare).[33] Thus sins are not really remitted only by contrition or prior to confession but are only judged by God to be remissible at that moment, to be remitted in actuality at the time of confession and satisfaction. He argues forcibly that confession is necessary, that the priests are in charge of assigning the act and length of penance (which should be in proportion to the sin), and that a person is prideful and a hypocrite if he stays silent about his sin.

            While some abbreviators seem to have agreed whole-heartedly with this second conclusion, Gratian leaves the matter open at the end of D.1.[34] Gratian notifies his readers that he is leaving the conclusion up to their own minds (d.p.c.89): ‘We have briefly made known on which authorities or which rational foundations both the positions of confession and of satisfaction are based. But to which one of these positions people should hold is reserved to the judgment of the reader. For both have wise and religious men as advocates.’[35] He seems to find a solution in a passage he attributes to Theodore, Archbishop of Canterbury (c.90). This passage acknowledges that some people say sins ought to be confessed to God alone, and some affirm the need to confess sins to priests. It then goes on to claim that in fact both are necessary but the first is what actually causes the remission of sins: ‘Thus confession, which is done to God alone, which is right, purges sins. But that confession which is done to a priest teaches how those sins are purged. For God, the author and bestower of salvation and holiness, offers this medicine of his penance often by an invisible administration and often through the operation of physicians.’[36] Theodore fails to provide a solution here that would be acceptable to any current systematic theologian, but he does attempt a reconciliation of the opposing positions which Gratian apparently found helpful. He tries to maintain God as the one true judge and giver of salvation but also uphold priests and confession to priests as instruments of God in giving that salvation. If nothing else, this whole distinction exemplifies the still-developing thinking about penance in the first half of the twelfth century. As Paul Anciaux observed sixty years ago, ‘The lack of clarity in the exposition of the renowned canonist illustrates in its way the complexity of the problem of confession as well as the hesitations of authors of the first half of the twelfth century.’[37]

            The content of the next three distinctions were extremely instrumental in persuading Rambaud, Wojtyła, and others that the original De penitentia was not as it appears in Friedberg. From their perspective, these distinctions are of a different character—a far more theological one—than the others. The problem with this assertion and particularly with arguing that this suggests the inauthenticity of these canons is that such a view displays an anachronistic conception of the clear division between theology and canon law, a division which did not appear until later in the twelfth century and which would not be institutionalized until the thirteenth with the different faculties of the universities.  

            D.2 opens by acknowledging some unfinished business in D.1. Gratian says that he will now specifically address the issue (alluded to in D.1) of whether penance is a one-time affair, or whether, if another sin is later committed, penance can be reiterated: ‘But because the discussion about one-time penance was begun, it seems that some bit of the other opinion ought to be revisited, [and so we are] setting forth in the sight of all the opinions of diverse persuasions defended by good authorities.’[38] Gratian begins by discussing the opinion of some that penance cannot be repeated. This was in fact the opinion of all authorities of the early Church and remained the accepted position into the early Middle Ages. Penance was considered to be like baptism, a one-time affair which remitted actual sins (while baptism remitted original sin). Those who had done penance were expected to renounce sin and basically live a monastic life in renunciation of the world for the rest of their lives. As a result, most Christians waited until their death-beds to confess their sins and do penance.[39] Thus Gratian rightly notes that ‘some say that penance is profitable only once, for it is unique, and cannot be reiterated.’[40] What if the sinner does repeat penance? It means that the earlier ‘penance’ was no penance at all, i.e. was not true penance and was not satisfactory. The discussion very quickly turns to love or charity (caritas), without which, Gratian argues, no remission of sin occurs: ‘Likewise, without love, no adult has his sin remitted. He who is ready to commit a deadly sin (peccare criminaliter) at some point does not have love.’[41] But once a person has true love, it cannot be lost. Since love is required for true penance as well as the avoidance of deadly sins, any deadly sin becomes proof not only that the person does not have true Christian charity but also that any former penance was invalid and unsatisfactory.[42] In the complete sense of the word, the man did not do ‘penance.’

            At the end of the d.p.c.14, Gratian begins to move to the other side of the debate. He qualifies his previous assessment of the authorities, asserting that those statements are to be understood with regard to a perfected entity, in this case ‘perfected love, which is never lost once had.’ Gratian continues, ‘But the seedlings of love are nourished so that they may grow and are trampled underfoot so that they may grow weak. No one immediately becomes the best, but, by leading a good life, which does not exist without love, everyone begins at the bottom so that he may reach the top. Therefore there are degrees not only from one virtue to another, but also within each virtue.’[43] This softening of his discussion of love serves to qualify the notion that true penance is a one-time affair, that the person who commits a deadly sin ever again never performed penance in the first place. The emphasis lies on growth. Gratian quotes Augustine’s De libero arbitrio c.17: ‘Love has securely been born in you, but it has not yet been perfected; do not despair, nurture it lest you suffocate it.’[44] Gratian uses Augustine once more to make clear that setbacks occur during this growth and that those blessed by God’s grace are corrected and put back on the right path.[45] As Gratian continues his argument, he embeds himself in some of the deepest theological debates of the Christian tradition, debates about the relationship of sin and virtue to God’s grace, the status of virtue and love in non-Christians (or ‘the reprobate,’ as he refers to them here), and the relationship between God’s virtues and virtues of the same name in humans.

            Before his readers feel too lost in the major Christian theological and philosophical disputes of the first millennium, Gratian brings them back to the issue at hand in his opening statement in D.3: ‘We have briefly written about love on account of those who deny that penance can be repeated.’[46] He proceeds to present some additional arguments from their point of view. The thrust of their argument rests on the very definition of penance as lamenting over one’s sins and not sinning again. Gratian then counters that those words of definition refer not to any time but only to the specific time in which the sinner is repenting.[47] That is, while performing true penance, a penitent cannot be sinning in some other way. One cannot be reveling in one sin while lamenting another. Such ‘penance’ is not true, satisfactory penance. One can perform true penance, however, and receive remission of a sin and then later sin again, only to receive God’s mercy again through an act of penance. Gratian makes the following analogy: ‘Just as he who is freed from a just slavery into liberty is in the meantime truly free even if he is later recalled into his slavery on account of his ingratitude, so also a penitent may receive true remission for his sins even if he later is entangled in them [again] on account of his ingratitude.’[48] At the end of D.3, Gratian makes clear that the person persevering in a sin after a supposed period of penance does not receive the fruit of penance. But, at the same time, this does not mean that he cannot later perform penance for another sin, do it properly, and receive the full benefits of such a penance.[49]

            While D.2-D.3 focused on the question of whether a penitent could ever sin again, D.4 asks whether sins already remitted through penance can return. This distinction remains more purely theological than D.2 and D.3, which involved some direct application, and even the question is vague. What exactly Gratian means by it becomes a bit clearer in the next sentence. What he is really asking seems to be whether sins that are forgiven receive some sort of punishment or not or come back in some sense to haunt future generations. Do they ‘return’ to a person or group of people in any way? Once again, Gratian acknowledges the differences of opinion, but then states, ‘That sins once forgiven may return is proven by many authorities.’[50] The first twelve canons support this side of the argument. Gratian spends some time explaining the position of those who say that sins do return and who make a distinction between forgiveness secundum iustitiam and forgiveness secundum prescientiam (this is the position Gratian himself embraces). These people interpret the question as follows: Can sins be forgiven temporally and return to be reckoned to a sinner’s account on Judgment Day if he is not predestined to eternal life? They answer in the positive. A person can do penance at a stage of their life in which they appear to be a Christian. They truly do penance and so truly (and justly) receive remission for that sin in the temporal sphere (forgiveness secundum iustitiam). Nevertheless, if they become apostate later in life, that sin will ‘return’ to them when they die and condemn them to eternal damnation (condemnation secundum prescientiam). While developing these ideas, Gratian once again faces head-on the issue of predestination. This distinction also plunges Gratian into the issue of the sins of the fathers being visited upon their sons. Nothing in this distinction directly relates to the practice of penance or the evaluation of true penance. It deals strictly with theological implications of the doctrine that penance provides the remission of sins. What if a man does penance to the end of his life and so has brought about the remission of all of his sins but at the moment of death renounces the Christian faith? Could God condemn him? Based on what sins, if they have all been remitted through penance? Although Gratian never explicitly lays out these questions, much of the distinction seems to stand in response to them.

            Gratian moves back into more concrete territory in D.5. It consists of a long excerpt from Pseudo-Augustine’s De vera et falsa penitentia and then seven canons reiterating certain points of that text. Gratian indicates in the d.a.c.1 of D.5 that his attention is now turning to ‘what things the sinner ought to consider during penance.’[51] Quoting Pseudo-Augustine, he indicates to his readers the things the penitent should think about with regard to the sin, including its place of occurrence, time, amount of perseverance, the people involved, what kind of temptation incited it, and how many times it was executed. The passage continues on with a long series of hortatory subjunctives, enjoining the penitent sinner to grieve and weep over certain things, including not only the sin, but the loss of virtue during that time, as well as the fact that that one sin made him or her guilty of all sins, that the sin served as an example of evil, and that he or she unjustly offended God through the sin. Then the text indicates what the penitent should give up: ‘Grieving over all these things, let him relinquish either the world or at least those things that are not administered without an admixture of evil, such as commerce and military service, and other things which are harmful to its users, such as the administrations of secular powers, unless he uses these things on account of the freedom resulting from obedience.’[52] The repentant sinner is also to place himself wholly in the hands of the priest, his judge, to avoid illicit behavior, and to offer his mind, a contrite heart, and a portion of his possessions (as much as he is able) to God. The sincerity of the mind and heart of the giver, however, rather than the quantity of the gift determines the acceptability of that gift.[53] In addition, until the sinner ‘has been strengthened by a good conscience,’ he is not to partake of the Eucharist.[54] Those who desire complete remission of their sins are also to avoid games and worldly spectacles. Thus this paragraph not only addresses what the penitent should think about during penance but also what he should avoid and should do during and after penance.

            In the vulgate version, seven canons follow upon this first one. They, along with some canons in D.1 which appear only in the vulgate version and a couple in D.6, are the only canons preceded by rubrics. These canons add further clarification on the issue of commerce and military life brought up in the De vera et falsa penitentia. Pseudo-Augustine prescribes that the true penitent, if he does not renounce the world entirely to enter a monastery, must at least give up those activities, specifically commerce and warfare, which are necessarily accompanied by evil. Following the rubrics for cc.2-8, one sees that cc.2, 7, and 8 deal with commerce or business (negotium), cc.3-4 with the military, c.5 with reversion to worldliness in general, and c.6 with the exposition of false penance in general. These canons are not presented in a logical order but rather haphazardly. Gratian tells us that c.2 insists that the penitent must throw away the profits of his business, for, as Pope Leo says, ‘it is more profitable for the penitent to suffer losses than to be bound by the dangers of business.’[55] Gratian interprets c.3 as meaning that no one may return to secular military service after penance.[56] Based on the canons of the Council of Nicaea, c.4 prescribes a penance of ten years to those who do return to secular military service.[57] C.5 suspends from communion anyone who returns ad secularia after penance.[58] Presumably the assessment of this falling away to worldiness would be left to the local priest or bishop. Given the majority of sources in the De penitentia, Gratian’s source for c.6 is surprisingly recent: Gregory VII’s Synod of Rome in 1078. Its contents also focus on problematic professions (business, the military, political office) in addition to the sins of theft and hatred. True penance cannot occur, Gregory says, unless these things are given up. Men may bear arms in one instance, however, namely if religious bishops counsel them to do so for the purpose of defending justice.[59] C.7 (Gregory I) concedes that not every business venture entails sin, but the penitent cannot return to the ones that do necessarily involve sin.[60] C.8 is very recent and echoes the thoughts of Gregory VII in c.6. It comes from the Second Lateran Council held by Innocent II in 1139. It emphasizes that true penance must include a respect for and concern to keep all commandments while the penitent repents for the breaking of one. It goes on to describe what professions and activities indicate that false rather than true penance has been performed. These include being court officials and businessmen involved in activities incapable of being free from sin.[61] On the whole, then, these seven canons expand upon that one statement in Pseudo-Augustine about true penitents leaving sin-laden occupations.

            D.6 and D.7 deal with two final practical issues in penance, namely to whom one should confess (and consequently who should judge sins and assign penance) and the fact that penance can be done up to one’s final breath in this life. Significantly, just as D.5, c.1, the opening canon of D.6 consists of a lengthy excerpt from Pseudo-Augustine’s De vera et falsa penitentia, and, despite the fact that the canon immediately preceding D.6 c.1 (de pen. D.5 c.8) does not come from this work, the first chapter is introduced as coming ‘from the same book’ (ex eodem libro).[62] Here then is one of those famous ‘untidy seams’ in the Decretum that indicated to earlier scholars that the work had to have developed in phases. The distinction closes by addressing three issues about priests in quick succession. First, Gratian notes that any priest who makes the sins of a penitent public knowledge must be deposed.[63] Second, Gratian reconciles two canonical principles, one which says a man can choose his confessor and another which says no priest can judge people of another parish. He explains that the first principle is meant to condemn a priest acting out of favor or hatred while the second is meant to prevent having the blind lead the blind (i.e. having a priest who does not know the person or parish lead the sinner).[64] Third, and related to this second issue, Gratian makes clear that a priest must not receive the confession of a person entrusted to another priest’s care unless he does it out of ignorance.[65] In general, then, D.6 deals with the priestly side of confession and penance.

            Without any transitional statement, Gratian jumps into the last issue he will address in his treatise. He opens D.7 with the statement, ‘Moreover, the time for penance is all the way until the last moment of life.’[66] This distinction is the only one that does not begin with some kind of question, direct or indirect.[67] It too is short (only six canons) and fittingly closes with another long excerpt from Pseudo-Augustine’s De vera et falsa penitentia.

            To review, here is the general outline of the De penitentia according to the distinction divisions provided in the vulgate version as presented by Friedberg. D.1 answers the question of whether a contrite heart and silent confession to God suffices for the remission of sins or whether oral confession and an act of penance are necessary. This distinction contains the only Roman law sources in the whole treatise (c.6-c.22). It also contains some technical theological argumentation. D.2 and D.3 answer the question of whether true penance is a one-time affair or whether a person can perform multiple genuine penances for various sins. This question has a very practical application, but the distinctions have more in-depth theological digressions than the first question. D.4 answers the question of whether sins already remitted through penance can return in some way to a person, for example, on Judgment Day if he or she is reprobate. It has the least practical application. D.5 answers the question of what the penitent must think about during penance and do during and after penance for it to be satisfactory. Along with a few canons in D.1 and D.6, its final seven canons are notable for having rubrics. D.6 answers the question of to whom Christians should confess and seek judgment for their sins. It begins as if it continues on from the first canon of D.5. Finally, D.7 states that people can do true penance up to the moment of death. It closes with an excerpt from the same forged work, the eleventh-century De vera et falsa penitentia, that opens D.5 and D.6 and virtually concludes D.1.

Observations on Vulgate Manuscripts

            Some of the early manuscripts of the vulgate version of Gratian’s Decretum exemplify a few of the oddities of this version and elucidate others that Friedberg’s print edition masks. First, D.1 c.6 to the first half of c.30 occasionally are not included and sometimes appear elsewhere in C.33. As mentioned in the introduction, Rambaud found several very early manuscripts in France that did not include any of these canons but were otherwise complete.[68] Several abbreviations, such as the Gdańsk manuscript studied by Wojtyła, likewise omit all of these canons.[69] Other manuscripts, such as Darmstadt, Landes-bibliothek 2513 (first half of the twelfth century) now in Cologne, insert these canons after C.33, q.2, c.18 and so they appear before the De penitentia even begins.[70] Some manuscripts from this very early period, however, include these canons in the location now standardized in Friedberg (e.g Bremen, Univer-sitätsbibliothek 142 and Munich, Bayerische Staatsbibliothek lat. 28161, and, from the decade 1150-1160, Biberach an der Riss, Spitalarchiv B.3515 and Salzburg, Stiftsbibliothek a.XI.9).[71]

            Second, the presentation of manuscripts reveal D.5, c.2-c.8 to be somewhat anomalous compared with the rest of the treatise. Above all, as noted above, these canons are quite unique in the treatise for having rubrics. Darmstadt 2513 shows this very well. These canons are the only ones in the whole treatise to have rubrics. Some other places are set slightly apart with introductory red capital letters, but only these canons (and some of the ones from D.1 that actually appear in C.33, q.2, outside of the treatise) have both red capital letters and rubrics.[72] This oddity also supports the idea that these canons are later additions to the treatise. According to Friedberg, two of the other canons that should have rubrics are D.6, c.2 and c.3. The texts of both of these do not appear as rubrics in Darmstadt 2513 but are present in lighter ink in the margin. Thus, in this manuscript, the only canons to have true rubrics within the treatise are c.2-c.8 of D.5.

            Bremen 142 and Munich 28161 give evidence, however, that the Darmstadt scribe made a mistake and that D.6, c.2 and c.3 should have rubrics. Both these manuscripts likewise present the vast majority of the treatise without clear distinctions between canons. Few have rubrics. The only ones that do are the Roman law canons and those immediately following in D.1, D.5 c.2-c.8, and D.6, c.2-c.3. These rubrics are in a different ink but incorporated into the text. Oddly enough, while these rubrics in Munich 28161 are filled in, the scribe leaves places for rubrics where Friedberg has none (e.g. D.1 c.65-c.68, middle of c.68, c.84, c.86, and c. 89; D.2 c.6), but these spaces were never filled in. Either this scribe is leaving room where he sees rubrics in his exemplar or he is trying to make the text appear less ‘treatise-like’ and be divided up more, intending new rubrics to be composed. The fact that these unique locations for rubrics remain empty but the normal locations for rubrics in the vulgate text are filled in give additional evidence that the rubrics in D.5 and D.6 are authentic to this version of the Decretum.

            Third, early manuscripts lack distinction and canon divisions and clear markers of Gratian’s dicta. As Rambaud notes, ‘[In early manuscripts] the auctoritates and the dicta are not neatly separated in the treatise as in the other parts of the work.’[73] The canon divisions seem arbitrary and do not appear in any manuscript prior to the fourteenth century. Likewise, the distinction divisions do not appear regularly in early manuscripts or are only later marginal additions.[74] Darmstadt 2513 provides a good example of a manuscript without distinction or canon divisions and only later, marginal labels for each of the seven distinctions. The title also appears in the margin and “de pen” is written in the top right-hand corner of each recto page. All of these marginal identifications come from the same hand in the same ink, which is a darker black than the body of the text. These divisions and labeling are clearly later insertions, as is evident not only by the different hand and ink but also by the fact that the scribe of the body of the text made no effort to distinguish in any way the start of a new distinction. Most of the time, all that is present is a small paragraph marker (as appears frequently throughout the distinctions). The first letter is not even in red. In other words, the original scribe was unaware of any distinctions and did not recognize this extended portion as a treatise under the title of ‘De penitentia.’

The same formatting is apparent in Bremen 142, Munich 28161, Biberach B.3515, and Salzburg a.XI.9. Most distinctions begin on the same line as the final canon of the previous one, sometimes with a paragraph marker, sometimes not. In Bremen 142, no title appears at the beginning of C.33 q.3. Each dis-tinction is indicated in a much lighter ink in the margin. The Munich manuscript has such marginal notations in a later script. The same hand indicates the beginning of the treatise, identified as the Tractatus de penitentia, and each of the distinctions. Here there is no doubt that the person writing in the margin is writing much later than the original scribe, who, like the scribes of the other manuscripts did not divide the treatise into distinctions and did not label the question as a treatise with a distinct title.[75] Rambaud has found manuscripts from the thirteenth century, however, which do include contemporary marginal notes indicating the beginning of the distinctions. The earliest manuscript she found containing intra-text distinction divisions and even an opening rubric for the entire treatise (Incipit tractatus de penitentia) was produced in 1314.[76] Clearly the canon, dictum, and even distinction divisions in C.33, q.3 came much later than the other divisions within the Decretum.

            What these technicalities indicate is that early copiers of the vulgate version viewed the De penitentia as a different kind of work than the rest of the text. C.33 q.3 did not represent another section of a canonical collection; rather it was a treatise. Like any medieval treatise, it cited many authorities to make its case. Gratian did not intend these auctoritates to stand as individual canons supporting his argument but to be integral components woven into a composition.[77] All the early manuscripts point to this understanding of the quaestio. In each one, the scribe presents the quaestio visually as a composition with no rubrics and very few red capital letters (used throughout the rest of the work at the beginning of a new canon). The text goes on and on, almost all in black, and all in the same size. One has to look closely to discern where he is quoting an authority, for the ‘canons’ do not stick out as such. But was this Gratian’s original intention? Did he initially write a treatise about penance, include it within his canonical collection, and view it as a different genre from the majority of his work? Or, on the contrary, did he merely compose a question within a causa, only a little longer than usual, perhaps, after which another canonist or theologian added in large new sections of canons and dicta, combining it with the original text of C.33, q.3 and, in the process, changing the nature of the text from a collection of canons with interspersed dicta to a composition interspersed with authoritative quotations? Rambaud’s approach to these questions was, ‘I will venture a guess based on the abbreviations at my disposal since I do not have earlier recensions of the text.’ Now scholars can turn to Winroth’s ‘first recension,’ which provides some answers and leaves some lingering puzzles.

De penitentia in Winroth’s ‘First Recension’: The Admont and Florence Manuscripts

            Winroth’s ‘first recension’ has now found universal acceptance as an earlier version of Gratian’s Decretum. Winroth persuaded scholars that his four manuscripts and one manuscript fragment are not abbreviations of the vulgate version, as previously thought, but are in fact copies of a text representing an earlier stage in the development of this monumental work.[78] His ‘first recension’ gives important clues about the development of the De penitentia. Winroth notes that this recension as represented in the Admont (Aa) and Florence (Fd) manuscripts does contain the treatise in shorter form, but with all seven distinctions.[79] The versions in the two manuscripts, however, are slightly varied. While Winroth acknowledges that Aa diverges from Fd and the other three manuscripts of the recension, he maintains that these differences (primarily the presence of additional canons) does not necessarily indicate that Aa represents an intermediate version of Gratian’s work between his first and second (vulgate) recensions. He clearly prefers his theory that Aa was not an intermediate version but rather the copy of a manuscript which already possessed marginal additions from the vulgate version, which the Admont scribe then incorporated within the text.[80] Whatever the case, the contents of Winroth’s ‘first recension’ De penitentia and the variants between the treatise in Fd and Aa (which Winroth does not specify) are significant for the understanding of the evolution of the treatise in Gratian’s work.

            Winroth’s ‘first recension’ De penitentia stands virtually complete.[81] The significant omissions are: (1) D.1 c.6-(first half of) c.30, (2) D.5, c.2-c.8, and (3) D.6 d.p.c.1, c.2, c.3. Some other scattered canons are absent. The most notable inclusion in this version is D.2-D.4 in their entirety (minus a few canons). These contents apply specifically to Fd. Aa adds D.5, c.2-c.8 (with rubrics) in addition to D.6 d.p.c.1, c.2 (including rubric), c.3 (including rubric), and D.7, c.1. Consequently, neither Fd nor Aa contain the Roman law canons and both of them contain the so-called ‘theological’ distinctions. Fd includes none of the canons with rubrics while Aa includes all of canons of the vulgate version with rubrics, excepting the few scattered throughout D.1 c.6-c.30.

            The general absence of rubrics within these manuscripts affects the overall presentation of the treatise, as it does in the manuscripts of the vulgate version. Both Fd and Aa’s De penitentia reads like a treatise, not like a question in the same vein as any other in the causae.[82] The scribes have laid out the text in a continuous way. In Aa, quotations from authorities begin with slightly larger uppercase letters but are not in a different color ink. The authorities rarely begin on a new line. Compared with the other parts of the manuscript, the scribe makes far less distinct the various auctoritates of the De penitentia, treating them as quotations in a composition as opposed to a series of canons. The only ‘canons’ that are treated as such are the ones that appear in the vulgate version but not in Fd in D.5-D.7. These have rubrics and begin with a capital letter in the same color as the rubrics. These evidently are later additions to the original De penitentia as represented in Fd. In short, the scribes do not conceive of any of the ‘canons’ in both Fd and Aa as canons. Especially given the early date of these two manuscripts (middle of twelfth century), we can assume that neither did Gratian.[83]

            In addition, not surprisingly given the evidence of the vulgate manuscripts, neither Fd nor Aa divide the treatise into distinctions. In some cases, the movement from distinction to distinction as presented in Friedberg has no marking whatsoever, not even a paragraph marker.[84] As for a title, Fd does not provide one. It merely indicates in the margin that this is q.3 (i.e. of C.33). In contrast, Aa provides a title in lighter ink but within the body of the text. The title given is Tractatus pulcher et utilis de confessione. The scribe marks the ending with the words (also in lighter ink) Finit de penitentia.

            Given this evidence, we can deduce that (1) the De penitentia did advance in stages, but not the drastic ones inferred by Rambaud and others, and (2) Gratian wrote a treatise on penance, decided to include it within one of his causae, and perceived it as a different kind of work from the rest of his collection. The development from this version to the vulgate one involved not the addition or alteration of arguments but, in general, the addition of individual or small clusters of canons in further support of the arguments already laid out. The movement from one version to the other is not one from the practical to the theological or speculative. Both components are present in the treatise in Aa and, more importantly, Fd, for Gratian was intentionally writing a treatise on penance which, if it were to be comprehensive, would have to deal with both the theological underpinnings and practical out-workings of penance. In addition, these observations lead to the conclusion that, whether Aa represents an intermediate version or a manuscript based on an exemplar having the first recension as the main text and canons from the second recension in the margin, Fd seems to be the earlier of the two manuscripts and a purer representation, perhaps the purest present-day scholars have, of Gratian’s original treatise.[85] These conclusions must remain tentative, however, until the Saint Gall manuscript (Sg) is taken into consideration. Perhaps Winroth’s ‘first recension’ is not the first. Perhaps it was the first coherent version of Gratian’s work to be widely distributed, but it may not be all the evidence we have about the early development of the Decretum and De penitentia.

C.33, q.3 in the Saint Gall Manuscript

            The third question of C.33 in Sg is so reduced in size compared to both Winroth’s ‘first recension’ and the vulgate version that it hardly deserves a name like De penitentia. Textual reasons also exist for conscientiously refraining from calling this portion of the manuscript by the name of the treatise which holds its place in the versions of the Decretum discussed above. This question provides evidence to support Larrainzar’s basic claim that Sg represents an earlier stage in the development of Gratian’s work. If that is true, Sg, not Fd, would be the earliest version of C.33, q.3 available to scholars and would allow significant advancement in the understanding of the development, literary nature, and even authorship of the De penitentia. Sg does in fact resolve many of the mysteries surrounding this treatise.

The Contents of Sg C.33, q.3

            As those familiar with recent Gratian studies are well aware, Sg contains only the second part, that is, the causae, of the Decretum. The entire first part, the distinctions (including the Tractatus de legibus of D.1-D.20), is missing, as well as the De consecratione. Because Sg contains fewer causae than the vulgate version, C.33 actually appears as C.30, but, for the sake of simplicity, I will continue to use the numbering of Friedberg. C.33, q.3 in Sg contains only fifteen canons, compared with the 225 of the vulgate, the vast majority of which appear in Fd and Aa. According to Friedberg’s divisions, here are the contents of the question in Sg: D.1: d.a.c.1, c.1 (second half)-c.5, c.30 (second half)-d.p.c.30, d.p.c.37 (second half)-c.40, c. 42, c.44 (first half); D.6: d.p.c.1-c.3; D.7: d.a.c.1-c.2.[86] Completely missing are D.2-D.5, all of the canons taken from Roman law, and all of the long canons from Pseudo-Augustine’s De vera et falsa penitentia. In addition, the canon from the Second Lateran Council in 1139 (D.5, c.8) is absent; the most recent auctoritas used is Urban II (D.6 c.3). A few canons in Sg appear in Aa and the vulgate version but not in Fd (D.6 d.p.c.1-2, c.3; D.7 c.1).

            The contents of C.33, q.3 quite neatly divide into two parts, each part giving the opposite answer to the first question posed (whether a contrite heart is sufficient for the remission of sins). The first part consists of D.1 d.a.c.1, c.1-c.5, c.30 d.p.c.30, d.p.c.37 (‘Fit confessio…remissionis accipiendae’). To the question of ‘whether someone is able to make satisfaction to God with contrition of the heart and secret satisfaction alone without oral confession to a priest and the church’, this section answers in the affirmative.[87] Gratian employs patristic authorities such as Augustine and John Chrysostom as well as biblical authorities such as David in the Psalms to argue that God remits the sins of those who are internally sorrowful and repentant about those sins. According to this point of view, oral confession is not necessary for the remission of sins, i.e. ‘satisfaction.’ The end of this section draws an analogy using Abraham’s circumcision. Gratian notes that just as Abraham’s circumcision served as a sign of, not a reason for, his justification, so also oral confession serves as a sign of mercy already received, not as a reason for receiving it. The second section consists of D.1 d.p.c.37 (Alii…)-c.40, c.42, c.44 (…mea confiteri), D.6 d.p.c.1-c.3, D.7 d.a.c.1-c.2 (…dum sanus es) and answers the question in the negative, asserting that ‘no one can be cleansed from a sin without oral confession and a work of satisfaction if he has the time for making satisfaction.’[88] He quotes passages suggesting that confession and acts of penance are required for forgiveness of sins. He then makes the point that confession is to be private and so priests are not to make known the sins of those who confess to them in confidentiality. He also briefly addresses the apparent conflict between the principles of choosing your own confessor and not being able to confess to a priest outside one’s parish. Then he addresses penance at the end of life, explaining what he meant in the d.p.c.37 where he added the phrase si tempus habuerit satisfaciendi. The general structure is coherent, but is Sg just a coherent, very short abbreviation, or does the text give evidence that it is an earlier version of C.33, q.3 than what appears in Fd and Aa?

Arguments for Sg C.33, q.3 being a Predecessor of the De penitentia of Fd

            More than anything else, the presence of the treatise within a question of one of Gratian’s causae has caused suspicion as to the authenticity of the De penitentia. Whether or not one goes so far as to deny Gratian as the treatise’s author, that fact alone leads one to wonder whether Gratian originally planned his thirty-third causa to progress that way. Why would Gratian conceive of a pedagogical text consisting of several cases and then decide to include a lengthy treatise within the answer to a question arising from one of those cases? This is indeed a puzzle. But what if Gratian initially intended C.33, q.3 to be just like every other question in his causae? What if Gratian initially intended that question to be a collection of canons as opposed to a composition filled with patristic and biblical citations? The structure of Sg suggests that this was Gratian’s intention. Its general length and lack of long dicta, its flow of argumentation, and its specific variants and stylistic differences from Fd’s De penitentia suggest that the chronological relationship between the version in Sg and the one in Fd is forward moving from the former to the latter.[89] None of the arguments that follow is conclusive in and of itself, but, taken together, they provide a strong argument for viewing Sg’s C.33, q.3 as the earliest extant version of that question and as proof that a treatise on penance was not part of Gratian’s original intention for his work. They also suggest that the movement from the version in Sg to the one in Fd and Aa was done much more carefully and conscientiously than the movement from the Fd and Aa version to the vulgate version. In terms of De penitentia specifically, Gratian was not merely inserting canons here and there; he was deliberately creating a treatise on penance based upon a rough outline provided by his initial answer to the third question posed in C.33.

The Prologue: D.1 d.a.c.1

            The introductory remarks to the question in Sg and Fd are very similar yet with significant differences. Fd’s D.1 d.a.c.1 matches the version in Friedberg exactly. It reads, ‘His breuiter decursis, in quibus extra negocii finem aliquantulum euagati sumus, ad propositae causae terciam questionem pertractandam, qua queritur utrum sola cordis contritione, et secreta satisfactione, absque oris confessione quisque possit Deo satisfacere, redeamus.’[90] In contrast to Gratian’s general style, this sentence is quite complex, but the actual re-statement of the question now at hand is precise: ‘whether anyone can make satisfaction to God by a contrite heart and private satisfaction alone without oral confession.’ The basic structure of this sentence in Sg is simpler while the re-statement of the question is a bit convoluted: ‘His decursis ad terciam questionem accedamus si sola cordis contritione ac secreta confessione sine oris confessione ecclesie et sacerdotali officio quisque Deo satisfacere possit.’[91] One must ask what is more likely, that a scribe abbreviated the Fd text to form the Sg text, or that an author edited and improved the Sg text in a later version of his work. Abbreviators did change this introduction. The Gdańsk scribe did, but his abbreviation was the following: ‘Queritur, utrum sola cordis contricio et secreta satisfactione absque oris confessione quisque possit Deo satisfacere.’[92] The indirect question remains unchanged in its wording and is preceded by a simple and extremely common introductory word, queritur. Supposing the Sg scribe was an abbreviator, I think that the ‘accedamus’ would be a very unusual choice. Besides the actual word choice, the usage of a first person ending strikes me as odd. A scribe would be more likely, if he wanted to change the verb, to use a neutral verb in the third person (like the Gd scribe) than to assume the role of author and apply a first-person ending. More significantly, why insert ‘ecclesie et sacerdotali officio’? It is a very awkward phrase in the context (how does one confess to a priestly office?) and there is no reason to add it into what is a perfectly clear and concise sentence. What is more likely is that the author of the text later did a thorough editing job.

The Leap from D.1 d.p.c.30 to d.p.c.37 in Sg

            In the section still arguing that confession is a matter purely of internal contrition, the text of Sg moves directly from Friedberg’s D.1 d.p.c.30 to the middle of d.p.c.37. It reads,[93]

[d.p.c.30] It is clearly apparent (liquido patet) that sins are forgiven by contrition of the heart, not by confession of the mouth, and many other things [are done] in this way (et multa alia in hunc modum). [d.p.c.37] Confession is thus done as a sign (in signum) of penance not as a request for mercy, just as circumcision was given to Abraham as a sign of righteousness not as the cause of justification. Confession is offered to the priest as a sign of the mercy already received not as the cause of forgiveness still to be received.

Several variants occur in this text in Fd, Aa, and Friedberg, as is evident from examining the Latin texts side by side.


St. Gall 673 (Sg)

Fd, Aa, Friedberg

De pen. D.1 d.p.c.30

Liquido patet cordis contricione non oris confessione peccata dimitti, et multa alia in hunc modum

[Sg omits D.1 c.31-c.37]


















Fit ergo confessio in signum penitentiae non ad impetrationem ueniae sicut circumcisio data est Abrahae in signum iustitiae, non in causam iustificationis. Confessio sacerdoti offertur in signum ueniae acceptae, non in causam remissionis accipiendae.


De pen. D.1 d.p.c.30

Luce clarius constat cordis contritione, non oris confessione peccata dimitti.

[D.1 c.31-c.37 are present]

D.1 d.p.c.37

Si ergo vivit, et diligit; si diligit, dilectio in eo est; dilectio autem in malo non est. Est enim fons bonorum proprius, in quo non communicat alienus. Ergo bonus factus est iste per gratiam ante confessionem peccati: non itaque malus est; bonus enim et malus aliquis simul esse non potest. Quod si malus non est, membrum diaboli non esse probatur: nec ergo dignus est gehenna, que

diabolo et eius membris solummodo debetur, sicut eterna beatitudo solummodo membris Christi paratur. Non ergo in confessione peccatum remittitur, quod iam remissum esse probatur. Fit itaque confessio ad ostensionem penitenciae, non ad inpetrationem veniae, sicut circumcisio data est Abrahae in signum iusticiae, non in causam iustificationis, sic confessio sacerdoti offertur in signum ueniae acceptae, non in causam remissionis accipiendae.


This section provides much evidence that Sg represents an earlier version rather than an abbreviation of Fd. First, the phrase ‘et multa alia in hunc modum’ constitutes either an intentional insertion by an abbreviator or an original phrase in Gratian’s text later removed in a subsequent version. The phrase possesses a couple, very specific, standard usages in the twelfth century. If Sg were an original text, Gratian would be using the phrase in one of its two most conventional ways. If Sg were an abbreviation, the abbreviator would be using the phrase in a very unconventional way. A brief examination of some other texts in which the phrase is used will make this point very clear.

            The first and most common usage of this phrase involves lining up a series of brief, Scriptural quotations which demonstrate a certain point. The author then says, ‘et multa alia in hunc modum’, meaning, ‘and there are many other texts which are of the same vein (and it would be superfluous for me to mention them all)’. For example, in his Quaestiones et decisiones in Epistolas D. Pauli, Hugh of St. Victor addresses the question of whether the fulfillment of the law justifies. First he presents auctoritates to support an answer in the affirmative. Then he says, ‘But the Apostle asserts that the law leads no one to perfection, saying, “No flesh is justified by works of the law, for if righteousness came from the law, Christ died in vain”; et multa alia in hunc modum’.[94] Hugh is saying that he is not going to list out the other biblical texts that support this side of the argument, but there are many of them which say the same thing. A certain Gerard uses the phrase in this way several times in both of his commentaries on the Sentences of Stephen of Gradmont. In one place, he states that a certain opinion seems to be in line with statements of the Savior. He proceeds to quote two such statements and then says, ‘et multa alia in hunc modum’.[95] In another place, he uses the phrase and then explicitly states why: there is no need at this time to quote them individually (‘et multa alia in hunc modo, de quibus non est modo dicendum per singula’).[96] In short, this phrase is used with biblical quotations to indicate an omission for the sake of brevity and avoidance of redundancy; the point is that many other biblical quotations exist to support a position, but the author finds it unnecessary to list out numerous texts which all say essentially the same thing.

            The second conventional usage of ‘et multa alia in hunc modum’ is closely related to the first, only in this usage the author is concerned to indicate similar or analogous examples of a phenomenon or principle instead of similar biblical texts. In this usage, the sense of the phrase is ‘and there are many other instances of this phenomenon (or applications of this principle)’ or ‘many other things occur or happen in this manner about which I have been speaking’. This usage of the phrase appears in one of Thomas Becket’s letters to King Henry II. Drawing heavily upon Gratian’s own treatment of the relationship between the two swords in D.96 c.10, Thomas states a principle: ‘There are indeed two things whereby the world is principally ruled, the sacred authority of the priests and the royal power; of these, the authority of the priests is the greater to the extent that they will render an account for the kings themselves in the divine judgment.’ Thomas explains that this point is very clear from historical examples of bishops excommunicated kings and even emperors. He mentions the excommunication of Arcadius by Innocent I and that of Theodosius by Ambrose. Then comes the phrase ‘et multa alia in hunc modum.’[97] Henry follows up this phrase with another example, this time from the Bible. Naturally the example is that of David, who humbles himself and confesses his sin before the prophet Nathan. The phrase thus indicates that Thomas could bring up many other examples to demonstrate this principle if he so desired, and then, for added support, he throws in the biblical example.

            The options for the phrase in Sg are three: first,  the phrase has been inserted by an abbreviator to indicate that he has omitted texts but that these texts are similar to the one he just copied (‘Liquido patet cordis contritione non oris confessione peccata dimitti’); second, the phrase is original to an earlier version by Gratian and is used to set up the example of Abraham, which demonstrates the principle that an internal act saves while an external act manifests or is a sign of the internal act, and third, the phrase has been inserted by an abbreviator in order to create a smooth transition from d.p.c.30 to the example of Abraham in d.p.c.37. The semantic meaning of the phrase would be the same in options two and three—the issue is whether that usage of the phrase makes more sense as the work of an original author or an abbreviator.

Upon close consideration, option two is the only plausible explanation. The function of the phrase ‘et multa alia in hunc modum’ matches nearly exactly how that phrase is used in Thomas Becket’s letter and other texts. Gratian is arguing that internal contrition alone is necessary for the remission of sins; oral confession is, as he will shortly put it, a sign of the forgiveness already received. Gratian uses that standard phrase to indicate that many things work in this way, i.e. a way in which an external act serves as a sign of an internal act. The example of Abraham’s circumcision follows as a biblical example of this principle. The comparative conjunction ‘sicut’ relates the circumcision to confession, and both of them exemplify what Gratian means by ‘in hunc modum’: ‘…and many things occur in this way. Confession is made as a sign of penance, not as a request for mercy, just as circumcision was given to Abraham as a sign of righteousness, not as a cause of justification.’ In short, confession and Abraham’s circumcision as well as ‘multa alia’ (which he will not take the time to mention) function in the same way or according to the same principle.

Option three is implausible because it would require an immense amount of effort completely uncharacteristic of abbreviators to create an extremely tight-knit argument and try to, as it were, hide the fact that he is abbreviating the text. Most abbreviators do not go to great efforts to hide the fact that they are abbreviating, but neither do they usually announce it openly, and that is what option one would require.

More significantly, option one requires that the supposed abbreviator use the phrase ‘et multa’ in a very unusual way. He would be using it to indicate that he has omitted a portion of Gratian’s text. This would only be plausible if what was omitted from the Fd version was a string of compact, almost redundant biblical quotations, for, as we have seen, that is the primary usage of the phrase. In fact, however, the portion omitted consists of several canons and a new line of argumentation, which, though all related to the point that contrition is that which causes remission of sins regardless of confession, hardly say the same thing. In sum, if an abbreviator has supplied the ‘et multa’ phrase, he is using a phrase with a standard set of meanings and usages in a very unconventional way. If Gratian included it as part of the original text, however, he is using the phrase in a very standard way, and this is certainly the most plausible of the two options.

Second, the absence of the ‘sic’ in Sg and its presence in Fd give a completely different quality to d.p.c.37 in the two texts. In Sg, the clause ‘fit ergo confessio in signum penitenciae non ad impetrationem ueniae’ is joined to the next clause concerning Abraham by ‘sicut’. Then comes a punctuation mark followed by a capital C to begin a new sentence with Confessio. This sentence presents a fresh way of stating the basic point Gratian has been arguing: ‘Confession is offered to a priest as a sign of mercy already received, not as the cause of remission yet to be received.’ The sentence with the ‘sicut’ explains the ‘et multa alia in hunc modum,’ comparing two of the ‘multa’ which act according to a particular ‘modus’. In Fd, the clause about Abraham’s circumcision is grammatically related not to the previous clause but, through the presence of sic, to the clause following it: ‘just as circumcision was given…so also confession is offered.’ What explains this difference? Again, an abbreviator would have no reason to take out the sic. If one considers, however, that the chronological movement is from Sg to Fd, one sees that, with the removal of ‘et multa alia in hunc modum,’ the reference to Abraham’s circumcision and the preceding clause acquire a different quality. Now a new direction of argu-mentation and several ‘auctoritates’ stand where the ‘et multa’ phrase had been. The ‘fit itaque confessio…’ clause (Sg: ‘fit ergo confessio’) now serves as a summarizing conclusion to the lengthy preceding line of argumentation, not as an example to be compared with Abraham’s circumcision to explain ‘et multa alia in hunc modum’ (which has been removed). The comparison with Abraham’s circumcision is still a useful one, though, and Gratian sees that he can easily connect it to the following sentence with the simple insertion of sic to create a correlative construction.

            Third, the change from ‘liquido patet’ (Sg) to ‘luce clarius constat’ (Fd) seems a very odd one if Sg is an abbreviation. First, this cannot be the result of a scribal copying error, for the words are too different. Second, no good reason exists for consciously making this change, for the change involves simplifying a phrase and making it less pleasing stylistically while retaining the exact same meaning. Nevertheless, Gratian himself would have reason for changing the version in Sg as he edited his previous work and expanded it into his treatise on penance. Fd is stylistically more advanced. The new version creates an attention-getting alliterative scheme with the letter ‘c’: Luce clarius constat cordis contritione. With the insertion of c.31-c.37, this sentence becomes both a concluding statement to what precedes it and a heading for what follows. In other words, it gains a prominent position. It is plausible that Gratian decided to make it more impressive stylistically given its new prominent place in the distinction. Even without this prominence, this could just be an instance where Gratian saw an opportunity to improve his style and took advantage of it.

            These variants suggest that, when he sat down to compose the De penitentia, Gratian was carefully crafting well-developed arguments and a work of literary quality. He began with some of the canons and the short dicta in his original composition and then created a whole new treatise around that very bare skeleton. In the process, he aimed to improve the style and grammar of the work and also to formulate complete and coherent arguments. After d.p.c.30, he incorporated a completely new and highly theological argument, touching on conversion, the quickening of the soul, the soul being alive because of God (the life of the soul), the relationship between love and life, the status of the wicked, who deserve hell, as sons of the devil and of the good, who deserve heaven, as sons of Christ. Despite this vastly different line of argumentation, the transition back into the text of Sg, while a bit forced upon close scrutiny, on the surface appears natural and fluid.[98] In short, Gratian is carefully formulating his treatise; he is not making haphazard additions without paying attention to how his new arguments flow from and into the few statements he had already composed or at least taught.

The Leap from D.1, c.44 to D.6 d.p.c.1 in Sg

            Next, the smooth transition from D.1, c.44 to D.6 d.p.c.1 is highly indicative of original composition. After his example of Abraham and circumcision, Gratian begins to answer the main question in the opposite way. Beginning with c.38, he presents arguments supporting the idea that the cleansing of sins requires oral confession and a work of satisfaction.[99] Gratian took D.1 c.44 from one of Augustine’s homilies and speaks of doing penance in the church because the church holds the keys to the kingdom. Sg breaks off before the text in Fd specifically addresses those unfaithful in marriage or those who have broken vows of chastity and enjoins them to go perform penance. The last sentence of this canon in Sg is the quotation from Job 31:33 (‘If I blushed in the sight of the people to confess my sins’), which points to the shame of public confession of wrong-doing. Sg then moves directly to D.6 d.p.c.1, which continues the themes of the church and the negativity of publicly confessing sins, warning priests not to share someone’s confession with anyone else: ‘Let the priest not make public the sins of penitents to others. If he does this, let him be deposed.’[100] The next canon (from Gregory the Great; D.6, c.2) supports this injunction.

            Again, the most plausible explanation of the text should take into account the structure of the argument. If Sg is an abbreviation of Fd, that means the abbreviator finds nothing interesting in the rest of D.1 (not even those long dicta after c.60 and c.87, nor the long excerpt from the very popular and widely known De vera et falsa penitentia, nor Gratian’s very direct statement in d.p.c.89 that he is ultimately leaving the resolution of this first question up to readers), nothing remotely interesting in D.2-D.4 (not surprising—many other abbreviators did not either), nothing interesting in D.5 (not the long passage from De vera et falsa penitentia [the favorite of other abbreviators] or the canon from a recent pope and major council [the pick of the Gdansk abbreviator]), and nothing interesting about the question addressed in D.6, c.1, namely to whom a person should confess and by whom he should be assigned penance in the first place. Consequently, and significantly, the abbreviator actually finds every single quotation from Pseudo-Augustine’s De vera et falsa penitentia uninteresting or unimportant. He also does not care much about Gratian’s own thoughts and arguments. He is interested in creating an extremely short abbreviation, only one-eightieth the size of the original, and one in which the canons which follow upon one another share themes so as to seem to move naturally from one to another. He consequently skips over all of D.2 through the first half of D.6 to find a canon that alludes to the power of priests as confessors and absolvers and prohibits them from divulging confessed sins to the public, topics that fit in very nicely with the canon he just chose to copy. Such a scenario necessarily posits a very active abbreviator who devotes much time and energy into making C.33, q.3 have a completely fluid argument within a length comparable to other questions in the causae while ignoring virtually all the dicta. At the same time, this gifted abbreviator, while creating a coherent argument in a length less than 2% of the original, carelessly changes and diminishes the literary quality of the text he is copying. This scenario seems unlikely, at best.

            The other option is that Sg is not an abbreviation but an earlier version of the causae than the one present in Winroth’s ‘first recension’, and this very smooth transition may be the best evidence for it from this quaestio. Gratian originally moved from the quotation from Job in Augustine’s homily about the shame of confessing before a crowd to a canon prohibiting priests from making public knowledge sins confessed privately to them in confidentiality. When he wrote the treatise, he decided to have a separate section devoted to the priest’s character and responsibilities (D.6). I would argue that this second scenario is both simpler and more logical and hence more likely.

The Place of D.7 in Sg

            Both Fd and Sg conclude by addressing penance late in life. Such a topic certainly provides a fitting conclusion to any treatment of penance.[101] Once again, these last two canons in Sg and how they fit with the previous canons strongly suggest that Sg does represent an earlier version of C.33, q.3 than Fd. I noted earlier that D.7 is the only distinction to not be framed by a question. Although Gratian did not originally divide his treatise into ‘distinctions,’ he did have separate sections, the beginning of each of which he indicated by the statement of a new question. In contrast, Gratian introduces the topic of penance at the end of life with a statement that penance at this time is indeed possible and important. The fact that this topic is unique in not being introduced by an indirect question suggests that Gratian began thinking about this issue and composing this portion of the treatise before he had decided to organize his treatise into extended answers to clearly stated questions.

            On the other hand, at first glance, the presence of these final two canons seems out-of-place in Sg. No transitional statement exists, and this final topic seems only vaguely related to the main question about the necessity of penance for the remission of sins. One small phrase earlier on, however, is very significant. When Gratian begins the second part of the main question (support for the notion that oral confession and an act of penance are requisite for making satisfaction to God), he includes the phrase ‘si tempus satisfaciendi habuerit.’ The dictum thus reads, ‘In contrast, others testify, saying that no one may be cleansed without oral confession and a work of satisfaction, if he has time for making satisfaction’.[102] That phrase suggests that Gratian will soon speak of the time when there is no longer opportunity for penance or, in other words, how late in life one can successfully do penance. The phrase attracts no notice in Fd, Aa, and the vulgate version because these versions do not address this issue until D.7, after hundreds of canons, thousands of lines, and several unrelated issues intercede. In Sg, that discussion (D.7, c.1-c.2) does follow quite quickly (only seven canons separate that discussion from that phrase), which highlights that phrase as an anticipatory statement about a related issue Gratian intends to address before leaving this side of the debate (confession and penance are necessary). Here, then, is another piece of evidence that C.33, q.3 as presented in Sg constitutes Gratian’s original plan for that question, for the lay-out in Sg is much more logical and indicative of an original composition. When Gratian sat down to write his treatise, he still wanted to end with the issue of penance at the end of life, but he failed to perceive that the phrase ‘si tempus satisfaciendi habuerit’ no longer had a reason to be present in D.1 d.a.c.37 since he was not going to return to that topic for a very long time.

Sg: Canons, Rubrics, and Commands

            In my discussions of vulgate manuscripts, Fd, and Aa, I emphasized the presentation of the De penitentia on the page, the general lack of rubrics, and the virtual indistinguishability of the canons from the dicta. I argued that the treatise was being presented as a treatise within a causa of a canonical collection, not as a further question of that canonical collection. In contrast, Sg is clearly presenting a question in a causa, a question like any other within the causae.

            Sg makes very clear the beginning of most canons. While other early Decretum manuscripts do not even necessarily provide paragraph markers for new canons in C.33, q.3 (one has to scan the words for phrases like Item Aug., Item Amb., paulo post, or et infra), Sg provides much more help. Five of its fifteen canons are introduced by large, dark, marginal capital letters. Each dictum is introduced by a paragraph marker. In addition, two of the canons with rubrics in Aa and the vulgate version that do not appear in Fd appear in Sg, although only the second of these (D.7, c.3) has the rubric. (The rubric is, however, presented as such in Sg.) While Winroth admits that the presence of such canons in Sg (that is, ones which appear in Sg and the vulgate but not in his ‘first recension’) does not mean in and of itself that Sg could not represent an earlier development of the Decretum, he fails to provide a satisfactory account for their presence in a supposed abbreviation of a version in which they do not exist. He suggests that these may be evidence of an as-yet unknown intermediary version (after his ‘first recension’ but before the vulgate) of the Decretum.[103] At least for the De penitentia, one can create a plausible scenario for the presence, omission, and reappearance of such canons to counter the theory that Sg represents an abbreviation of an intermediate recension.

            By looking at Sg’s C.33, q.3 as a question of a causa and looking at Fd as a treatise, a logical explanation arises for the presence of canons in Sg, Aa, and the vulgate but not in Fd. When Gratian wrote and taught his original version of his causae, C.33, q.3 was similar to other questions, consisting of canons of various types, some consisting of more theological reflection, some of an exhortational quality from patristic sermons, and some of clear-cut commands established by popes and councils.[104] The first five canons, for instance, are of the first type, D.1 c.39 of the second, and D.6, c.2 and c.3 of the third. These last two are the ones that are absent from Fd but reappear in Aa and the vulgate version. When Gratian made the decision to write a treatise on penance and use C.33, q.3 as the basic framework for it, he changed the overall quality of that question. He did not now want commands and prohibitions; this was to be a treatise, not a collection of rules and regulations. As the vulgate version was developing, someone, either Gratian or someone else, violated this original intention for the De penitentia and began inserting canons, and most likely the ones that were a part of the original causa were the first to be re-introduced. These were viewed as separable canons, not as integral quotations of a treatise, and so they were presented with rubrics and large initial capital letters.

            This theory works for all the parts of D.6 present in Sg and Aa but not in Fd. It does not, however, help explain the same life of D.7, c.1 in the Decretum. This canon is more theoretical; it certainly is not a command or rule. For now, the simplest conjecture will suffice: for some reason, unbeknownst to us, Gratian decided to omit this canon from his treatise, and he or someone else later desired to re-insert it. Whatever the case for this canon, the presence of texts in Sg’s C.33, q.3 that are not in Fd’s De penitentia does not invalidate the conclusion that Sg represents the earliest version of C.33, q.3 available for scholarly study today. In fact, their presence and then omission is easily understood by the consideration of Gratian’s own development and his decision to write a treatise on penance based upon one of his typical causa questions. That decision altered the nature of that quaestio and therefore the types of canons he chose to incorporate into his new composition.


The Puzzles Sg Solves

            Sg proves the basic instinct and conclusion of twentieth-century scholarship to be correct: the De penitentia was not part of Gratian’s original composition. He wrote the causae first as a pedagogical tool for students studying canon law, and an extended treatise on the theory and general practice of penance would not have served that initial purpose. He first wrote C.33, q.3 (originally C.30) just like the other questions. Previous scholars were thus right in thinking that the presence of a treatise in the middle of a causa was odd and surely a later addition. Gratian did originally write his causae in one coherent, uniform manner.

            Sg also proves that earlier scholars were correct that the treatise developed in stages, but these stages were not quite what the scholars had deduced. The first stage of the ‘treatise’ was a small collection of canons with a few short dicta comprising a quaestio in a causa. The next stage of the treatise was a full-fledged composition contained within the general outline provided by most of the canons of the original quaestio. Gratian wrote D.2-D.4 at the same time as he wrote the majority of D.1 the long first canon of D.5, and most of D.6-D.7. Fd and Aa demonstrate that the absence of D.2-D.4 in several manuscripts, then, did not result from the absence of them in the original treatise, but from the preferences of scribes as they decided what portions were most important for the intended purpose of the new manuscript. If the manuscript was to serve canon law students, they would not need portions of the text more appropriate for students of theology. If the manuscript was to guide legal practice in a diocese, the bishop would not be interested in that much theological background for the practice of penance in the parishes under his care.

            Last, Sg resolves the issue of the internal cross-reference to De penitentia in C.11, q.3 d.p.c.24. This reference had been the thorn in the side of Rambaud, Vetulani, Wojtyła, and others’ theory that the original Concordia discordantium canonum did not contain the treatise on penance in C.33, q.3 but did seem, according to the early manuscript tradition, to include this reference to just such a treatise. Winroth’s ‘first recension’ provides a partial solution to this problem, for it does not contain that dictum, but it does contain the De penitentia in the form of a treatise, suggesting that the original composition did contain virtually the whole treatise. Sg gives the complete solution to the puzzle, however; it contains neither that dictum of C.11 nor the De penitentia in the form of a distinguishable treatise. Early on in his work, what would become C.33, q.3 constituted a normal question which he then greatly expanded into a treatise by the time of the completion and beginning circulation of the Fd version (c.1135). By the time of the vulgate version, Gratian included a reference to the De penitentia, which he had written several years earlier, in a new dictum. Rambaud, Vetulani, and Wojtyła were correct, then, in their assertion that the treatise did not comprise part of Gratian’s original plan. Sg proves both this and that C.11, q.3 d.p.c.24 was not part of the original work. In short, Sg silences the objection based on that cross-reference to Rambaud, Vetulani, and Wojtyła’s conclusions.           

Puzzles Still Remaining

            Unfortunately, the study of Sg and the Fd version leaves some issues unresolved. First, the inclusion of D.1 c.6-c.30 remains a mystery. As we have seen, both Sg and Fd lack these canons entirely, and many early vulgate manuscripts either do not include them or insert them in C.33, q.2. They consist of some patristic auctoritates but also the only Roman law sources in the work. They supplement the argument as a whole by creating a parallel case, but they do not constitute a significant addition to the work and line of argumentation. Second, D.5, c.2-c.8 also remains a bit mysterious, in addition to the other canons with rubrics later added. In a work clearly viewed by its author and subsequent scribes as a treatise and completely devoid of separate canons with rubrics, why did these canons appear within the treatise, and why were they not blended into the treatise to be merely additional quotations within the extended text?

            These unresolved issues lead to the question of authorship. We now know with certainty that these canons and others were later additions, but not much later additions (for example, D.5, c.2-c.8 appears in Darmstadt 2513, which is dated in the first half of the twelfth century, as mentioned above). But what seems undiscoverable is who added them. One thing is clear, despite Rambaud and Landau’s opinions to the contrary, Gratian did write De penitentia. Inasmuch as Gratian was the author of the version completed c.1135-1140 and represented most clearly in Fd, he was the author of the vast majority of the treatise as it appears in Friedberg’s print edition. In contrast, one cannot argue conclusively that the same man was responsible for some or all the additions which eventually made their way into the vulgate version. On the one hand, the notion that a person would add portions completely out of line with his original plan for the text seems unlikely. Sometime in the early 1130s (most likely), Gratian wrote a highly theological treatise utilizing primarily biblical and patristic texts and biblical characters and stories. He intended it to have practical application but not by way of a list of canons and rules prescribing terms of penance, forbidden occupations, or priestly offences related to confession deserving of deposition. Nor did he look to Roman law as an authority in this theological and doctrinal matter. Gratian would have had to seriously break from this consistent program for his treatise, which seems unlikely, given the care and attention he put into writing it. On the other hand, authors can and do change their minds, and perhaps Gratian later returned to the text with what he felt were good supplementary arguments and canons, some very recent, and, for whatever reason, chose to clearly identify and explain some of these canons with rubrics.

            I believe the first option is the more likely, but, if Gratian did not add much of the material found in the vulgate but absent from Fd, who did? Given the evidence of the canons found in Sg, missing in Fd, but present once again in Aa and the vulgate version, the person who added in these canons and perhaps the additional arguments was probably close to Gratian and most likely a student. This student may have heard and recorded those canons taught by Gratian in class when he presented C.33, q.3. Later, he may have approached Gratian’s masterpiece, come to the De penitentia, and realized that some of the canons presented in the quaestio in class were not present in the treatise. He then decided to add these in as well as additional canons, ancient and recent, which supported some of Gratian’s main points. He or someone else also began to realize that some principles of Roman law could also contribute to parts of Gratian’s original argument. Such a theory, however, must ultimately remain in the realm of conjecture.

De Penitentia, Gratian, and the Dissemination of the Decretum

            The comparison of the three known versions of C.33, q.3 suggests a few conclusions about Gratian and the dissemination of his work. The fact that Gratian was the author of a complete, predominantly theological treatise on penance means that he had a talent for theological as well as legal thinking, as is increasingly being acknowledged.[105] In addition, he was attuned to some of the lively topics of debate in his century, especially in Paris and France, a point brought out in recent scholarship.[106] He was well-educated in the great issues of the Christian tradition and brought them to bear on the relatively new concerns to deal comprehensively with penance in a doctrinally sound way. The fact that he could and was interested in both compiling an extensive canonical collection and composing a theological treatise should not be surprising, especially considering that Irnerius, that famous if enigmatic teacher of Roman law, was the author of the Liber divinarum sententiarum, a florilegium of theological sentences.[107] The era of the university with a strong division between faculties of law and theology had not yet arrived. Gratian was well-versed in both and was not opposed to combining the two in one work.

Why the particular issue of penance gripped him remains unclear. One can only observe that he was a man of innovation. He recognized areas of inquiry which needed further investigation. Just as he appears to have decided that his students needed a greater introduction to the idea of ‘law’ and so wrote the Tractatus de legibus, so he appears to have realized the lack of a solid and definitive treatment of penance and so wrote the Tractatus de penitentia. With the notable exception of the relatively recent De vera et falsa penitentia, the works on pe-nance in the previous centuries were practical, prescriptive guides to the administration and ritual of penance in the church.[108] Living at the beginning of the era of growing theological systematization, Gratian perceived the need for a clear theological explication for a practice which had been prescribed in the church for centuries. While, admittedly, in the growing distinction between canon law and theology, the theologians of the late twelfth and thirteenth centuries were working primarily off of the treatment of penance in Lombard’s Sentences, the widespread study of Gratian’s Decretum and consequently this treatise certainly could not have detracted from the increased attention given to the topic by the Church as the whole.

            The widespread influence of the Decretum is well-known, but this study of the three versions of C.33, q.3 also suggests that the Fd version reached many parts of Europe and influenced abbreviations of the vulgate version. Many manuscript abbreviations follow several of the patterns of the Fd version. Many later abbreviators did omit D.1 c.6-c.30 as well as D.5, c.2-c.8, two significant sections missing from the Fd version. The tendency of abbreviators to include only the first canon of D.5 can thus be attributed to the influence of the De vera et falsa penitentia, especially in light of its attribution to Augustine, but also to the familiarity of the scribes with the earlier version. Twelfth-century manuscripts from all over Europe are abbre-viated along the lines of that recension (minus the less practical D.2-D.4). The logical conclusion is that, by the time a copy of the later version reached a monastery or cathedral school, the people there were already quite familiar with the Fd version and that this familiarity at least partially influenced their determination of what they found necessary and important to keep from the version recently arrived.

            Finally, the juxtaposition of C.33, q.3 of Sg, Fd, and the vulgate suggests one additional point, which may in fact explain why Carlos Larrainzar’s theory about Sg has received more resistance than Winroth’s about Fd, Aa, Bc, P, and Pfr. While Gratian is exalted as the ‘Father of Canon Law’ and one of the two most influential figures of the twelfth century (Lombard being the other), he also receives criticism. Students learn about the disorganized nature of the Decretum and the many untidy seams suggesting careless later additions, if he was indeed the one who made these additions. These untidy seams immensely helped Winroth make his case. Those places in which Gratian referred to ‘the same book,’ which he had in fact not quoted for several canons, simply did not appear in Winroth’s ‘first re-cension.’ Consequently, the transition from any earlier recension (which many scholars believe in even if they do not believe Sg is it) must have been much smoother and more carefully done than the one from the Fd version to the vulgate. The textual evidence of Sg’s C.33, q.3 compared with Fd’s supports this notion. Although this is a special case (Gratian was writing a new com-position based ever so loosely on an earlier quaestio in a causa, not just expanding a causa), it does point to a careful editing of the text along the way. Gratian made both grammatical and stylistic improvements. Very plausibly, he was moving from writing a text for personal pedagogical use to writing a work to be disseminated and used by other teachers, students, and legal practitioners. He consequently needed to pay attention to both careful revision and extensive yet seamless expansion. In short, scholars may be reluctant to accept Larrainzar’s hypothesis because the textual transition from Sg to Fd is much less obvious (because much more well done) than the one from Fd to the vulgate. Maybe Gratian deserves a little more credit than some scholars are currently willing to afford him.


Catholic University of America,

Washington, D.C.










Appendix 1: Contents of Sg C.33 q.3


Friedberg Distinction, canon

Sg 673

(The symbol * indicates the presence of variants from Fd and the vulgate; see Appendix 2)

D.1 d.a.c.1


D.1 c.1

Lacrimas…non lego.*

D.1 c.2


D.1 c.3


D.1 c.4


D.1 c.5


D.1 c.30

Item, sicut auctoritas…in oris confessione.

D.1 d.p.c.30


D.1 d.p.c.37

Fit confessio… ‘ut iustificeris.’*

D.1 c.38


D.1 c.39


D.1 c.40


D.1 c.42


D.1 c.44

Agite penitentiam… ‘peccata mea confiteri.’

D.6 d.p.c.1


D.6 c.2

[no rubric; otherwise complete]

D.6 d.p.c.2


D.6, c.3

[complete, including rubric]

D.7 d.a.c.1


D.7 c.1


D.7 d.a.c.2


D.7 c.2

Si quis positus…dum sanus es.









Appendix 2: Variants of Sg C.33 q.3





Fd, Aa, Vulgate

D.1 d.a.c.1

His decursis ad terciam questionem accedamus si sola cordis contritione ac secreta confessione sine oris confessione ecclesie et sacerdotali officio quisque deo satisfacere possit.

His breuiter decursis, in quibus extra negocii finem aliquantulum euagati sumus, ad propositae causae terciam questionem pertractandam, qua queritur utrum sola cordis contritione, et secreta satisfactione, absque oris confessione quisque possit Deo satisfacere, redeamus.

D.1 d.a.c.1

…iuxta illud Leonis pape

…iuxta illud Leonis pape (Fd, Aa)

…iuxta illud Ambrosii super Lucam (vulgate)

D.1 c.1

Lacrimas Petri lego…

… Lacrimas eius lego…

D.1 d.p.c.30

Liquido patet cordis contritione, non oris confessione peccata dimitti.

Luce clarius constat cordis contritione, non oris confessione peccata dimitti.

D.1 d.p.c.37

Fit ergo confessio in signum penitentiae, non ad inpetrationem veniae sicut circumcisio data est Abrahae in signum iustitiae, non in causam iustificationis. Confessio sacerdoti…

… Fit itaque confessio ad ostensionem penitenciae, non ad inpetrationem veniae; sicut circumcisio data est Abrahae in signum iusticiae, non in causam iustificationis, sic confessio sacerdoti…

D.1 d.p.c.37

…sine confessione oris et satisfactione operis neminem a peccato posse mundari, si tempus habuerit satisfaciendi.

…sine confessione oris et satisfactione operis neminem a peccato posse mundari, si tempus satisfaciendi habuerit.




[1] Landau and Kuttner give their brief evaluation of the issue in their encyclopedia entries for Gratian: P. Landau, ‘Gratian’,  TRE 14 .124-130 and S. Kuttner, ‘Gratien’,  DHGE 21.1235-1239. Many thanks are due to Kenneth Pennington and Wolfgang P. Müller for reading earlier drafts of this paper and providing very helpful criticism and guidance. Thanks also to Frank A.C. Mantello for assistance with some fine points of translation and paleography.

[2] See J. Rambaud-Buhot, ‘L’étude des manuscrits du Décret de Gratien conserves en France’, SG 1.119-145. This article presents findings from the study of 50 of the 136 manuscripts of the Decretum preserved in France. See also the article by L. Guizard, who concurred that the two treatises were later additions: ‘Manuscrits du Decretum Gratiani conservés à l’Université de Paris’, SG 3.19-50.

[3] The evidence she presents in ‘L’étude’ comes primarily from Paris B.N. lat. 3884 and 3895. In the former, originally C.33, q.3 consisted only of D.1 c.1-c.49 and D.7 c.5-c.6. Later on, three gatherings of folios were added into manuscript with the complete treatise. In the latter, D.1 c.6-c.30 appear before the last canon of C.33, q.2 while the remainder of the treatise appears at the end of the causa with De consecratione. See ‘L’étude’ 130-31.

[4] K. Wojtyła, ‘Le traité de ‘penitentia’ de Gratien dans l’abrégé de Gdańsk Mar. F. 275’, SG 7. 355-390.

[5] Rambaud’s assessment of Wojtyła’s work and her own additional conclusions based upon her manuscript studies in France appear in her ‘Le legs de l’ancien droit: Gratien’, L’àge classique 1140-1378,  ed. Gabriel Le Bras, Charles Lefebvre, and Jacqueline Rambaud (Histoire du droit et des institutions de l’Eglise en Occident 7; Paris 1965) 47-129.

[6] Rambaud, ‘Le legs’ 85-86: ‘Telle n’est pas la tendance habituelle de Gratien qui est généralement beaucoup plus pratique et juridique.’

[7] D.1 c.6-c.30, Rambaud points out, is frequently missing from manuscripts, including Gent, Bibl. Rijkuniversiteit 55, Paris, Bibl. Sainte Geneviève 342 (341 male), Cambrai, Bibl. mun. 645, Paris, B.N. 3888. As for D.5 c.2-c.8, she concludes that it is a later addition since D.6 opens with the phrase ‘ex eodem libro’, referring to a text not quoted since D.5 c.1. See Rambaud, ‘Le legs’ 84-85.

[8] This occurs in Paris, B.N. lat. 3895 (thirteenth century) and the two surviving manuscripts of the abbreviation or Compendium of Werner of Schussenried (probably composed in the early thirteenth century): St. Gall, Stiftsbibliothek 683 and a manuscript in Kynžvart. For discussions of these manuscripts, see, respectively, A.M Stickler, ‘Iter helveticum’, Traditio 14 (1958) 475-77 and M. Bohácek, ‘Un manuscrit intéressant du “Compendium” de Werner von Schussenried’, Traditio 18 (1962) 472-82.

[9] Rambaud, ‘Le legs’ 89-90. Note: Throughout this essay, I will frequently refer to the version of the Decretum present in Friedberg’s print edition as the ‘vulgate version.’ I will also use the following method of identifying passages through their designation in Friedberg: the fourth canon of distinction one as ‘D.1 c.4.’

[10] One aspect of her timetable that seems implausible given her evidence is her apparent opinion that the treatise was recognized as such after many additions and put at the end of the work and then re-incorporated back into C.33 where it had begun. First, she does not explain what would motivate scribes to put the treatise back in C.33 once it had already begun to be thought of as a treatise in its own right. Second, the manuscripts she cites as having the treatise at the end are from the thirteenth century, while she acknowledges that most manuscripts in the second half of the twelfth century have the treatise within C.33.

[11] Rambaud, ‘Le legs’ 86.

[12] The manuscripts/manuscript fragments which Winroth asserts represent an earlier version of the Decretum are (1) Admont, Stiftsbibliothek 23 and 43 (Aa), (2) Barcelona, Arxiu de la Corona d’Aragó, Santa Maria de Ripoll 78 (Bc), (3) Florence, Biblioteca Nazionale Centrale, Conv. Soppr. A. 1.402 (Fd), (4) Paris, Bibliothèque Nationale de France, nouvelles acquisitions latines 1761 (P), and (5) Paris, Bibliothèque Nationale de France, latin 3884 I, fo. 1 (Pfr). Winroth gives descriptions of the contents of these manuscripts in his The Making of Gratian’s Decretum (Cambridge 2000) 23-32.

[13] Winroth gives a brief paragraph-long overview of the historiography on the De penitentia in his first chapter. It serves as an example of past scholarly work that posited an evolution of the Decretum. See his The Making of Gratian’s Decretum 13.

[14] Carlos Larrainzar, ‘El borrador de la ‘Concordia’ de Graciano: Sankt Gallen, Stiftsbibliothek MS 673 (= Sg)’, Ius ecclesiae: Rivista internazionale di diritto canonico 11 (1999) 593-666.

[15] For Winroth’s critique of Larrainzar’s work, see ‘Le manuscrit florentin du Décret de Gratien: Une critique des travaux de Carlos Larrainzar sur Gratien, I’,  RDC 51 (2001) 211-231.  In a recent article on Causa 29 of the Decretum, Winroth treats the St. Gall manuscript as belonging to the same recension as the Admont and Florence manuscripts. See A. Winroth, ‘Neither Slave nor Free: Theology and Law in Gratian’s Thoughts on the Defence of Marriage and Unfree Persons’, Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington, ed. W.P. Müller and M.E. Sommar (Washington DC 2006) 98 n. 3.

[16] Mary E. Sommar, ‘Gratian’s Causa VII and the Multiple Recension Theories’, BMCL 24 (2000-2001) 78-96. Sommar agrees with Winroth that Sg is not an earlier version of the Decretum, sees as tempting Titus Lenherr’s hypothesis that Sg represents one of Gratian’s student’s lecture notes, and at least agrees with Larrainzar on this point: Winroth’s ‘first recension’ is not the first. She does not believe Sg to represent an earlier version but does hold out the possibility that such a manuscript will be found. T. Lenherr’s article is entitled: ‘Ist die Handschrift 673 der St.Galler Stiftsbibliothek (Sg) der Entwurf zu Gratians Dekret? Versuch einer Antwort aus Beobachtungen an D.31 und D.32.’ It has never been published.

[17] See n.7 above for full details on the manuscripts.

[18] I must give thanks to Prof. Joseph Goering at the University of Toronto for pointing out to me the importance of this Pseudo-Augustinian treatise in Gratian’s De penitentia. Among other, shorter quotations, Gratian inserts long ones from this work in D.1 c.88, the first canon of both D.5 and D.6 and the very last canon of the whole work (D.7 c.6). Each of these quotations takes up at least one column in Friedberg’s edition. For the best edition of the Pseudo-Augustinian text, see K. Wagner, ‘ “De vera et falsa penitentia”: An Edition and Study’ (Ph.D. diss., University of Toronto 1995).

[19] Rambaud, ‘Le legs’ 82.

[20] Rambaud, ‘Le legs’ 82-83.

[21] The other possibility is that Gratian mistakenly refers to question 1 of C.33 when he should cite question 3.

[22] Rambaud, ‘Le legs’ 90.

[23] At this point, I will not make a judgment on the issue of single versus multiple authorship of the Decretum. Throughout the essay, for simplicity’s sake, I will refer to the author as ‘Gratian,’ no matter which version of the work I am discussing.

[24] ‘Sexto, an usurarii penitenciam agere ualeant, nisi quod male acceperunt restituant.’

[25] ‘Hic primum queritur, utrum monachis liceat offitia populis celebrare, penitenciam dare et baptizare?’

[26] ‘Septimo, si morientibus est indicenda penitencia sub quantitate temporis?’

[27] Here is the entire case: ‘Quidam uir maleficiis inpeditus uxori suae debitum reddere non poterat. Alius interim clanculo eam corrupit; a uiro suo separata corruptori suo publice nubit; crimen, quod admiserat, corde tantum Deo confitetur; redditur huic facultas cognoscendi eam: repetit uxorem suam; qua recepta, ut expedicius uacaret orationi, et ad carnes agni purus accederet, continentiam se seruaturum promisit; uxor uero consensum non adhibuit. Queritur, an propter inpossibilitatem coeundi, a uiro suo aliqua sit separanda? Secundo, an post separationem ei nubere ualeat, cum quo prius fornicata est? Tertio, si sola confessione cordis crimen possit deleri? Quarto, si tempore orationis quis ualeat reddere coniugii debitum? Quinto, an uir sine consensu uxoris continenciam uouere possit, uel si minis uel terroribus licentiam uouendi ab ea extorquere ualeat?’ Emphasis mine.

[28] D.1 d.a.c.1: ‘Utrum sola cordis contritione, et secreta satisfactione, absque oris confessione quisque possit Deo satisfacere, redeamus.’ This is evidently the ‘quaest. I’ referred to in C.11, q.3 d.p.c.24.

[29] For example, c.6 comes from Jovinian’s laws on bishops and clerics: ‘If anyone should dare to, I will not say seize, but merely strive after the most sacred virgins for the purpose of joining them in marriage, let him be smote with capital punishment (Si quis non dicam rapere, sed attemptare tantum matrimonii iungendi causa sacratissimas uirgines ausus fuerit, capitali pena ferietur).’ C.24 is taken from Clement I’s letter to a certain James, and Gratian introduces it with the following rubric: ‘Those who kill, disparage, and hate brothers are considered murderers (Interfectores fratrum, detractores eorum, eosque odientes, homicidae habentur).’

[30] Rambaud, ‘Le legs’ 82.

[31] De pen. D.1 d.p.c.37: ‘Non ergo in confessione peccatum remittitur, quod iam remissum esse probatur. Fit itaque confessio ad ostensionem penitenciae, non ad inpetracionem ueniae.’

[32] Besides many auctoritates, Gratian makes this argument through what Friedberg sets off as two very important and lengthy dicta: d.p.c.60 and d.p.c.87.

[33] De pen. D.1 d.p.c.87, §2: ‘Item illud prophetae: “Dixi: confitebor, et tu remisisti,” id est remissibilem iudicasti, “inpietatem peccati mei.” Ita et illud Augustini intelligitur: “Magna pietas Dei, ut ad solam promissionem peccata dimiserit,” id est remissibilia iudicauerit.’

[34] Wojtyła argues that the author of the Gdańsk manuscript possibly believed that confession and penance were requisite for the remission of sins and wanted to present that side of argument as the conclusive one in his abbreviation. He thus left out d.p.c.89 (see ‘Le traité’ 376-78).

[35] ‘Quibus auctoritatibus, uel quibus rationum firmamentis utraque sentencia confessionis et satisfactionis nitatur, in medium breuiter proposuimus. Cui autem harum potius adherendum sit, lectoris iudicio reseruatur. Utraque enim fautores habet sapientes et religiosos uiros.’

[36] De pen. D.1 c.90 (in its entirety): ‘Quidam Deo solummodo confiteri debere peccata dicunt, ut Greci. Quidam uero sacerdotibus confitenda esse percensent, ut fere tota sancta ecclesia. Quod utrumque non sine magno fructu intra sanctam fit ecclesiam, ita dumtaxat, ut Deo, qui remissor est peccatorum, peccata nostra confiteamur, et hoc perfectorum est, et cum Dauid dicamus: ‘Delictum meum cognitum tibi feci, et iniusticiam meam non abscondi. Dixi, confitebor aduersum me iniusticiam meam Domino, et tu remisisti inpietatem peccati mei.’ Sed tamen Apostoli institutio nobis sequenda est, ut confiteamur alterutrum peccata nostra, et oremus pro inuicem, ut saluemur. Confessio itaque que soli Deo fit, quod iustorum est purgat peccata. Ea uero, que sacerdoti fit, docet, qualiter ipsa purgentur peccata. Deus namque, salutis et sanctitatis auctor et largitor, plerumque prebet hanc suae penitenciae medicinam inuisibili amministratione, plerumque medicorum operatione.’

[37] P. Anciaux, La Théologie du Sacrement de Pénitence au XIIe siècle (Louvain and Gembloux 1949) 207.

[38] De pen. D.2 d.a.c.1: ‘Quia uero de penitencia semel cepit haberi sermo, aliquantum altius repetendum uidetur, diuersorum sentencias certis auctoritatibus munitas in medium proponentes.’

[39] B. Poschmann, Penance and the Anointing of the Sick, trans. Francis Courtney (New York 1964) 104-109.

[40] De pen. D.2 d.a.c.1: ‘Alii dicunt penitenciam semel tantum esse utilem. Unica enim est, nec reiterari potest.’

[41] De pen. D.2 d.p.c.1: ‘Item sine karitate nulli adulto peccatum remittitur. Non autem habet karitatem qui aliquando peccaturus est criminaliter.’

[42] De pen. D.2 d.p.c.13: ‘Cum ergo qui criminaliter peccat karitatem numquam habuisse probatur, euidenter colligitur, penitenciam non agere, qui quandoque criminaliter peccauit.’

[43] De pen. D.2 d.p.c.14: ‘Hec, que de karitate dicuntur, de perfecta intelligi possunt, que semel habita numquam amittitur. Exordia uero karitatis enutriuntur, ut crescant, et conculcantur, ut deficiant. Nemo enim repente fit summus, sed in bona conuersatione, que sine karitate nulla est, a minimis quisque inchoat, ut ad magna perueniat. Sunt itaque gradus non solum inter uirtutem et uirtutem, sed etiam in eadem uirtute.’

[44] De pen. D.2 c.18: ‘Forte nata est in te karitas, sed nondum perfecta; noli desperare, nutri eam, ne forte suffocetur.’

[45] De pen. D.2 d.p.c.24: ‘Unde Augustinus in libro de correctione et gratia: [c. 7.] “Quicumque ab illa originali dampnatione ista diuinae gratiae largitate discreti sunt, non est dubium, quin procuretur eis euangelium, et, cum audiunt, credunt, et in fide, que per dilectionem operatur, usque in finem perseuerant, et, si quando exorbitant, correcti emendantur, et quidam eorum, etsi ab hominibus non corripiantur, in uiam, quam reliquerant, redeunt et cetera.’”

[46] De pen. D.3 d.a.c.1: ‘Hec de karitate breuiter scripsimus propter eos, qui penitenciam negant reiterari posse.’

[47] De pen. D.3 d.p.c.17: ‘Sed uerba diffinitionis non ad diuersa tempora, sed ad idem tempus referuntur, uidelicet, ut tempore, quo deflet mala, que conmisit, non conmittat quod adhuc eum flere oporteat.’

[48] De pen. D.3 d.p.c.22, §1: ‘Sicut enim ille, qui ex iusta seruitute in libertatem manumittitur, interim uere liber est, quamuis ob ingratitudinem in seruitutem postea reuocetur: sic et peccata uere remittuntur penitenti, quamuis ob ingratitudinem ueniae eisdem postea sit inplicandus.’

[49] De pen. D.3 d.p.c.49: ‘Penitencia ergo, ut ex premissis apparet, nulli in peccato perseueranti utilis est, non tamen alicui deneganda est, quia sentiet fructum eius, cum alterius criminis penitenciam egerit. Sic itaque penitenciae diffinitio, et ceterae auctoritates sibi consonantes negant, eum agere penitenciam, qui perseuerat in crimine, utilem uidelicet sibi et fructuosam.’

[50] De pen. D.4 d.a.c.1: ‘Quia uero multorum auctoritatibus supra monstratum est, penitenciam uere celebrari, et peccata uere dimitti ei, qui aliquando in crimen recasurus est: queritur, an peccata dimissa redeant? Huius questionis diuersorum uaria est sentencia, aliis asserentibus, aliis econtra negantibus, peccata dimissa ulterius replicari ad penam. Quod autem peccata semel dimissa redeant, multorum probatur auctoritatibus.’

[51] De pen. D.5 d.a.c.1: ‘In penitencia autem, que peccatorem considerare oportet, Augustinus in libro de penitencia docet, dicens…’

[52] De pen. D.5 c.1 §6: ‘In omnibus dolens aut seculum derelinquat, aut saltim illa, que sine ammixtione mali non sunt amministrata, ut mercatura, et milicia, et alia, que utentibus sunt nociua, ut amministrationes secularium potestatum, nisi his utatur ex obedientiae licentia.’

[53] Ibid.: ‘In iudicio itaque cordis consideranda est elemosina tribuentis, nec iam considerandum est quantum, sed qua mente, qua affectione dat quod potest.’

[54] De pen. D.5 c.1 § 8: ‘Paueat preterea quem uera delectat penitencia; non prius ad corpus Domini accedat, quam confortet bona conscientia.’

[55] De pen. D.5 c.2: ‘Penitens negotiationis lucra abiciat. Item Leo Papa. [epist. XC. al. XCII. ad Rusticum, Episcopum, c. 9.] Qualitas lucri negotiantem aut accusat, aut arguit, quia et est honestus questus, et turpis. Verumtamen penitenti utilius est dispendia pati, quam periculis negotiationis astringi, quia difficile est inter ementis uendentisque commercium non interuenire peccatum.’ For the next several footnotes, I have included the rubric in italics before the inscription and canon.

[56] De pen. D.5 c.3: ‘Post penitenciam ad miliciam secularem redire non licet. Idem. [ibidem, c. 10.] Contrarium omnino est ecclesiasticis regulis, post penitenciae actionem redire ad miliciam secularem, cum Apostolus dicat: “Nemo militans Deo inplicat se negociis secularibus.” Unde non est liber a laqueis diaboli qui se miliciae mundanae uoluerit implicare.’

[57] De pen. D.5 c.4: ‘Decennio peniteant qui post penitenciam ad secularem miliciam redeunt. Item ex Niceno Concilio. [c. 11.] Si qui uero per Dei gratiam uocati primo quidem ostenderunt fidem suam deposito miliciae cingulo, post hec autem ad proprium uomitum reuersi sunt, ut et pecunias darent, et ambirent rursus ad miliciam, isti decem annis sint inter penitentes post primum triennium, quo fuerint inter audientes. Ab omnibus uero illud precipue obseruetur, ut animus eorum et fructus penitenciae attendatur.’

[58] De pen. D.5 c.5: ‘A communione suspendantur qui post penitenciam ad secularia redeunt. Item ex Concilio Aurelianensi. [I., c. 13.] De his, qui suscepta penitencia religionem suae professionis obliti ad secularia relabuntur, placuit eos et a conmunione suspendi, et ab omnium catholicorum conuiuiis separari. Quod si post interdictum cum eis quisque presumpserit manducare, et ipse conmunione priuetur.’

[59] De pen. D.5 c.6: ‘Que sit falsa penitencia. Item Gregorius. [VII. in Sinodo Romana, celebrate anno 1078., c. 6.] Falsas penitencias dicimus, que non secundum auctoritatem sanctorum Patrum pro qualitate criminum inponuntur. Ideoque miles, uel negotiator, uel alicui offitio deditus, quod sine peccato exerceri non possit si culpis grauioribus irretitus ad penitenciam uenerit, uel qui bona alterius iniuste detinet, uel qui odium in corde
gerit, recognoscat, se ueram penitenciam non posse peragere, per quam ad eternam uitam ualeat peruenire, nisi negotium relinquat, uel offitium deserat, et odium ex corde dimittat, bona quidem que iniuste abstulit, restituat, arma deponat, ulteriusque non ferat, nisi consilio religiosorum episcoporum pro defendenda iusticia. Ne tamen desperet, interim quicquid boni facere poterit hortamur ut faciat, ut omnipotens Deus cor illius illustret ad penitenciam.’

[60] De pen. D.5 c.7: ‘Post conuersionem ad negotium redire non licet, quod sine peccato agi non potest. Item Gregorius in omelia XXIV. [Euangel.] Negotium, quod ante conuersionem sine peccato extitit, hoc etiam post conuersionem repetere culpa non fuit. Sunt enim pleraque negotia, que sine peccatis exhiberi aut uix, aut nullatenus possunt. Que ergo ad peccatum inplicant, ad hec necesse est ut post conuersionem animus non recurrat.’

[61] De pen. D.5 c.8: ‘De eodem. Item Innocentius II. [in Concilio Romano, c. 22] Fratres nostros et presbiteros ammonemus, ne falsis penitenciis laicorum animas decipi et in infernum pertrahi patiantur. Falsam autem penitenciam esse constat, cum spretis pluribus de uno solo penitencia agitur, aut cum sic de uno agitur, ut ab alio non discedatur. Unde scriptum est: “Qui totam legem obseruauerit, offendat autem in uno, factus est omnium reus;” scilicet quantum ad uitam eternam; sicut enim si peccatis omnibus esset inuolutus, ita si in uno tantum maneat, eternae uitae ianuam non intrabit. Falsa est etiam penitencia, cum penitens ab offitio uel curiali uel negotiali non recedit, quod sine peccatis nullatenus agi preualet; aut si odium in corde gesserit, aut si offenso cuilibet non satisfaciat, aut si offendenti offensus non indulgeat, aut si arma quis contra iusticiam gerat.’

[62] De pen. D.6 d.a.c.1: ‘Cui autem debeat fieri confessio, uel qualem illum oporteat esse, qui aliorum crimina iudicat, ex eodem libro [de penitencia c. 10.] docetur, cum dicitur:…’

[63] De pen. D.6 d.p.c.1-c.2: ‘Caueat sacerdos, ne peccata penitencium aliis manifestet. Quod si fecerit, deponatur. Unde Gregorius: Deponatur sacerdos, qui peccata penitentis publicare presumit. Sacerdos ante omnia caueat, ne de his, qui ei confitentur peccata sua, recitet alicui quod ea confessus est non propinquis, non extraneis, neque, quod absit, pro aliquo scandalo. Nam si hoc fecerit, deponatur, et omnibus diebus uitae suae ignominiosus peregrinando pergat.’ Again, the italics indicate the rubric.

[64] De pen. D.6 d.p.c.2: ‘Quod autem dicitur, ut penitens eligat sacerdotem scientem ligare et soluere, uidetur esse contrarium ei, quod in canonibus inuenitur, ut nemo uidelicet alterius parrochianum iudicare presumat. Sed aliud est fauore uel odio proprium sacerdotem contempnere, quod sacris canonibus prohibetur; aliud cecum uitare, quod hac auctoritate quisque facere monetur, ne, si cecus ceco ducatum prestet, ambo in foueam cadant.’

[65] De pen. D.6 c.3: ‘Cuilibet sacerdoti conmissum, nisi pro eius ignorantia, alter sacerdos ad penitenciam non suscipiat. Placuit, ut deinceps nulli sacerdotum liceat quemlibet conmissum alteri sacerdoti ad penitenciam suscipere sine eius consensu, cui se prius conmisit, nisi pro ignorantia illius, cui penitens prius confessus est. Qui uero contra hec statuta facere temptauerit gradus sui periculo subiacebit.’

[66] De pen. D.7 d.a.c.1: ‘Tempus uero penitenciae est usque in ultimum articulum uitae.’ For a discussion of Lombard’s position on this issue in its own right and in comparison with Gratian’s, see T. Tentler, ‘Peter Lombard’s “On Those Who Repent at the End”: Theological Motives and Pastoral Perspectives in Redaction of Sentences 4.20.1,’ Studi e Testi 9 (1996) 281-318.

[67] One could object, and rightfully so, that D.3 does not begin with a question in any form either. Nevertheless, D.3 carries on the response first posed in D.2 so its content presupposes that question and begins by answering that question in a particular way.

[68] Rambaud, ‘Le legs’ 85. These manuscripts include Gand 55, Sainte Geneviève 341, Cambrai 645, and Paris B.N. lat. 3888.

[69] See Wojtyła’s lay-out of the manuscript contents of D.1 pp. 359-68.

[70] These canons appear on 261v-262v. De penitentia begins after the next canon (C.33, q.2, c.19). This manuscript is available on-line. Go to, click on ‘Handschriften,’ go to the Erzbischöfliche Diözesan- und Dombibliothek in Cologne in the bottom left-hand box. The manuscript is Codex 127. The treatise appears on folios 262v-282v. Codices 128 and 129 are also Decretum manuscripts, but they are later and they are not complete enough to contain the De penitentia. The dating of the manuscript to the first half of the twelfth century would put it within ten years (and probably far fewer) of the completion of the vulgate version of the text. Rambaud also notes this placement of these canons in some of the French manuscripts she studied, including Gand 55 and Sainte Geneviève 341. See Rambaud, ‘Le legs’ 84.

[71] Unfortunately the folios of Bremen 142 have not been numbered. In Munich 28161, De penitentia appears on folios 235r-255v. In Salzburg, Stiftsbibliothek a.XI.9, the treatise appears on folios 258r-282r.

[72] In fact, c.7-c.8 of the manuscript do not have the rubrics in Friedberg, but the original scribe left space for them to be filled in later. Apparently someone forgot. Both these canons appear on the verso side of the same folio on which c.2-c.6 appear. When the scribe doing the rubrics flipped over the folio, he inserted the red capital letters for the inscriptions but failed to fill in the openings for the rubrics. See 281r-281v.

[73] Rambaud, ‘Le legs’ 83.

[74] Rambaud, ‘Le legs’ 83.

[75] Of the manuscripts mentioned, Biberach gives the most evidence of being heavily used. Besides having various marginal notes and sketches, the manuscript also shows that two different hands later went in and added labels for the distinctions. These two annotators also ensured that all the folios on which the treatise appeared were titled, either by ‘De pen’ in the one case or ‘De Pe’ in the other. Originally, the folios simply had the causa and question numbers at the top.

[76] Rambaud, ‘Le legs’ 84. The manuscript is B.N. lat. 3893.

[77] The same type of format is seen in the very early twelfth-century treatise by Alger of Liège addressing the difference between misericordia and iustitia. The dicta and canons are intertwined. While the canons can be quite long, so can Alger’s own dicta. It is a true composition, not just a collection of canons. See Alger von Lüttichs Traktat ‘De misericordia et iustitia’: Ein kanonistischer Konkordanzversuch aus der Zeit des Investiturstreits: Untersuchungen und Edition, ed. R. Kretzschmar (Quellen und Forshungen zum Recht im Mittelalter 2, Sigmaringen 1985). Kretzschmar accepts ca. 1105/1106 as the date of composition.

[78] See above, n. 7, for a list of these manuscripts. Because Winroth’s work is now widely accepted, I am not testing his idea that Fd and Aa represent an earlier recension as opposed to an abbreviation of the vulgate version. Nevertheless, I do want to mention two very clear instances in which the De penitentia in Fd supports Winroth’s main assertion. In two places in Fd (only one in Aa), an ‘untidy seam’ in the vulgate appears as a seamless continuation. The first instance of this is the gap from D.1 c.50 to the second sentence of c.51. D.1 c.50 is a quotation from book 1, chapter 1 of Ambrose’s De penitentia. The first sentence of c.51 in the vulgate is from Ambrose’s work on Cain and Abel. The second sentence of c.51 begins with the inscription et paulo post; what follows is a quotation from chapter 2 of book 1 of Ambrose’s De penitentia, not from a later section of De Cain et Abel. In short, the first sentence of c.51 is a later addition, and Fd presents the passages in their original way. The second instance is the gap from D.5 c.1 to D.6 d.a.c.1. The d.a.c.1 of D.6 reads, ‘But to whom confession ought to be made or what the nature ought to be of the man who judges the sins (crimina) of others is taught in the same book (ex eodem libro), where it says: (c.1).’ Gratian is making reference to Ps.-Augustine’s De vera et falsa penitentia. Not one of canons two through eight of D.5 comes from this work or any other work of (Pseudo-)Augustine. The last time Gratian quoted this work was c.1 of D.5. In Fd, the d.a.c.1 of D.6 follows directly upon D.5 c.1. The other seven canons of D.5 (which are present in Aa) are obviously later insertions, and Fd presents the flow of texts originally intended by Gratian.

[79] Winroth, The Making of Gratian’s Decretum 128.

[80] See his extended argument, The Making of Gratian’s Decretum 131-34.

[81] For a canon-by-canon break-down of the treatise in this version (specifically as present in Fd), see Winroth’s appendix, ‘The Contents of the First Recension of Gratian’s Decretum,’ pp. 224-26.

[82] The location of the De penitentia in these manuscripts are as follows: for Fd, ff. 88r-99v, and for Aa, ff. 145v-184r.

[83] For the dating of Aa and Fd, see Winroth, The Making of Gratian’s Decretum 23, 30-31. On Fd in particular, see n.77 below.

[84] A good example of this is the movement from D.1 c.90 to D.2 d.a.c.1 in Aa.

[85] Despite their strong disagreements over other matters, Winroth and Larrainzar at least agree that Fd is a very early manuscript of the Decretum and certainly earlier than Aa. Ken Pennington also concurs with this assessment. For Winroth’s position on the matter, see A. Winroth, ‘Le Décret de Gratien et le manuscrit florentin: une critique des travaux de Carlos Larrainzar sur Gratien, I’, RDC 51:2 (2001) 211-231. The article to which Winroth is responding and which presents Larrainzar’s opinions on Fd is C. Larrainzar, ‘El Decreto de Graciano del códice Fd (= Firenze, Biblioteca Nazionale Centrale, Conventi Soppressi A.1.402): In memoriam Rudolf Weigand ’, Ius ecclesiae : Rivista internazionale di diritto canonico 10 (1998) 421-489. K. Pennington has personally related his view of the early nature of the manuscript to me.

[86] See Appendix 1 for the exact contents of Sg and Appendix 2 for variants from Fd, Aa, and the vulgate. Appendix 1 is slightly more detailed than C. Larrainzar’s presentation of this question in his lay-out of the contents of Sg in his first appendix found in ‘El borrador’ 651-662.

[87] This is the wording of the opening question in Sg. In Latin, ‘…si sola cordis contritione ac secreta confessione sine oris confessione ecclesie et sacerdotali officio quisque deo satisfacere possit…’ (fol. 183r).

[88] D.1 d.p.c.37: ‘… sine confessione oris et satisfactione operis neminem a peccato posse mundari, si tempus habuerit satisfaciendi’ (183r).

[89] I am mostly concentrating on relating Sg with Fd for two reasons: (1) if Sg is shown to be the earliest version we have, it must be earlier than Fd, a very early ms and Winroth’s major source for his ‘first recension,’ and (2) Winroth has argued that Sg is most likely an abbreviation of his ‘first recension.’ See his ‘Gratian’s Decretum and the Transformation of Sankt Gallen: Une critique des travaux de Carlos Larrainzar sur Gratien, II,’ available at: The article in this form has not been formally published in a journal. Much of its content, however, was presented at the Twelfth International Congress of Medieval Canon Law in Washington, DC on 5 August, 2004. See the published form, ‘Recent Work on the Making of Gratian’s Decretum,’ in this issue above.

[90] Fd fol. 88r.

[91] Sg fol. 183r.

[92] Wojtyła, ‘La traité’ 360.

[93] Sg 183r: ‘Liquido patet cordis contricione non oris confessione peccata dimitti, et multa alia in hunc modum. Fit ergo confessio in signum penitentie non ad impetrationem uenie sicut circumcisio data est Abrahae in signum iusticiae, non in causam iustificationis. (om. sic Sg) Confessio sacer-doti offertur in signum ueniae acceptae, non in causam remissionis accipiendae.’ Italicized portions of the text indicate variants from Fd. In this case, they are variants from Fd, Aa, and the vulgate.


[94]Sed Apostolus asserit, quod lex neminem ad perfectum perduxit, dicens “ex operibus legis non justificatur omnis caro, et si ex lege justitia, tunc Christus gratis mortuus est” (Gal. 2): et multa alia in hunc modum’. Hugh of St. Victor, Quaestiones et decisiones in Epistolas D. Pauli: In Epistolam ad Romanos, q. 57, PL 175: 450C.

[95] ‘Haec sententia, ni fallor, Saluatoris sententiae assimilari uidetur ubi ait: Attendite a falsis prophetis qui ueniunt ad uos in uestimentis ouium, intrinsecus autem sunt lupi rapaces, et alibi: Multi uenient in nomine meo et seducent uos; et multa alia in hunc modum’. Scriptores ordinis Gradimontensis, Explanatio altera super Librum Sententiarum beati Stephani auctore Gerardo Iterii, ll. 168-72, CCCM 8: 469.

[96] Explanatio super Librum Sententiarum beati Stephani confessoris, l. 765, CCCM 8: 445.

[97] ‘Duo quippe sunt quibus principaliter regitur mundus, auctoritas sacra pontificum et regalis potestas. In quibus tanto grauius est pondus sacerdotum, quanto et de ipsis regibus in diuino sunt reddituri examine rationem….Plurimi namque pontificum, alii reges, alii imperatores, excommunicauerunt. Et si speciale aliquid de personis principum inquiratis, beatus Innocentius Archadium imperatorem excommunicauit .  .  .  Sanctus etiam Amrosius, pro culpa que aliis sacerdotibus non adeo uidebatur grauis, Theodosium magnum imperatorem excommunicauit, et ab ecclesia exclusit; qui tandem satisfactio condigna meruit absolui. Et multa alia in hunc modum.’ Letter 82, The Correspondence of Thomas Becket, Archbishop of Canterbury, 1162-1170, ed. and trans. Anne J. Duggan (Oxford 2000) 1.336-39.

[98] [Fd] c. 37 Likewise (1 John 3:14)

‘Everyone who does not love remains in death.’

[Gratian] ‘If, then, he lives, he also loves; if he loves, love is in him; but love is not in a wicked person. For the fount of good persons is their own, in which that of another does not communicate. Therefore he is made good through grace before the confession of sin: he is thus not wicked; for someone cannot be a good person and a wicked person at the same time. But if he is not wicked, he is proven to not be a member of the devil: he therefore is not worthy of hell, which is owed to the devil and his members alone, just as eternal blessing is prepared for the members of Christ alone. Therefore, sin is not remitted in confession; it is proved to be already remitted. [Sg and Fd] Confession is thus done as a display of penance not as a request for mercy…’

[Fd] [C. XXXVII.] Item. ‘Omnis, qui non diligit, manet in morte.’
[Gratian.] ‘Si ergo uiuit, et diligit; si diligit, dilectio in eo est; dilectio autem in malo non est. Est enim fons bonorum proprius, in quo non conmunicat alienus. Ergo bonus factus est iste per gratiam ante confessionem peccati: non itaque malus est; bonus enim et malus aliquis simul esse non potest. Quod si malus non est, membrum diaboli non esse probatur: nec ergo dignus est gehenna, que diabolo et eius membris solummodo debetur, sicut eterna beatitudo solummodo membris Christi paratur. Non ergo in confessione peccatum remittitur, quod iam remissum esse probatur. [Sg and Fd] Fit itaque confessio ad ostensionem penitenciae, non ad inpetracionem ueniae…’

The clearest connection of Gratian’s ideas here and how his discussion of sons of the devil and of God support the notion that oral confession is not required for the remission of sins is provided in the previous dictum of Fd (d.p.c.36), which reads, ‘Solo enim peccato filii diaboli sumus. Ergo de regno eius translati sumus in regnum karitatis filii Dei, et sumus erepti de potestate tenebrarum, et facti filii lucis. Cum ergo ante confessionem, ut probatum est, simus resuscitati per gratiam, et filii lucis facti, euidentissime apparet, quod sola contritione cordis sine confessione oris, peccatum remittitur.’

[99] For example, c.39 comes from one of Ambrose’s sermons on Lent. It reads, ‘Behold, now the acceptable time is here in which confession frees the soul from death, confession opens paradise, confession gives the hope of salvation. Whence Scripture says, “Tell of your iniquities so that you may be justified.” With these words, it is shown that he who does not want to confess his sins in this life does not deserve to be justified. That confession which is done with penance frees you. True penance is the anguish of the heart and the bitterness of the soul toward evil things which each one has committed. Penance is also to lament former evils and not to commit the things to be lamented again [Ecce nunc tempus acceptabile adest, in quo confessio a morte animam liberat, confessio aperit paradysum, confessio spem saluandi tribuit. Unde scriptura dicit: ‘Dic tu iniquitates tuas, ut iustificeris.’ His uerbis ostenditur, quia non meretur iustificari qui in uita sua peccata non uult confiteri. Illa confessio uos liberat, que fit cum penitencia. Penitencia uera est dolor cordis, et amaritudo animae pro malis, que quisque conmisit. Penitencia est et mala preterita plangere, et plangenda iterum non conmittere].’

[100] Sg fol. 183v: ‘Caveat sacerdos, ne peccata penitentium aliis manifestet. Quod si fecerit, deponatur.’

[101] Such a placement, though, was certainly not the only or most common option at the time. Hugh of St. Victor included his discussion of penance in extremis in the middle (chapter five of nine) of his treatment of penance in his De sacramentis fidei. His final chapter deals with the re-occurrence of pardoned sins. For an outline of Hugh’s section on penance, see Anciaux, Théologie 71. Peter Lombard includes his discussion of this issue in d. 20 of Book IV of his Sentences. Distinctions 14-22 all deal with penance. He concludes his treatment with a discussion of the problem of res et sacramentum in penance, i.e. what is the res of penance, and what is the sacramentum? For an outline of Lombard’s section on penance, see Anciaux, Théologie 81-82.

[102] De pen., D.1 d.p.c.37: ‘Alii e contra testantur, dicentes sine con-fessione oris et satisfactione operis neminem a peccato posse mundari, si tempus satisfaciendi habuerit.’

[103] Winroth, ‘Gratian’s Decretum and the Transformation of Sankt Gallen’ n.13 and The Making of Gratian’s Decretum 133. Based upon the fact that all four passages in Sg’s C.33, q.3 which appear in the vulgate but not in Fd (D.6 d.p.c.1, c.2, c.3; D.7 c.1) also appear in Aa, if Winroth wants to insist on Sg being an abbreviation and not an earlier version, he may want to consider it as an abbreviation of Aa’s exemplar, not Fd or Fd’s exemplar.

[104] Perhaps someone might object that this presentation of the causa could not be the original because Gratian does not resolve the question at hand. In these fifteen canons in Sg, he never says precisely that oral confession and an act of penance are necessary for the remission of sins or that they are not. This objection, however, is not always true. Despite his title for his work (Concordia discordantium canonum), Gratian does not always find that concord. He leaves some issues unresolved. John T. Noonan, Jr. believes this to be the case, for example, with C.29. See his ‘Catholic Law School—A.D. 1150’, Catholic Law School Review 47 (Summer 1998) 1189-1205; available at Law/Gratian/-Causa29Noonan.htm.  He also left the question open in Causa 13.

[105] In his most recent article, Winroth writes, ‘On evidence of C.29, Gratian was a legal scholar with a strong theological bent…’ (‘Neither Slave nor Free’ 97). See also R. W. Southern, Scholastic Humanism and the Unification of Europe, Vol. I, Foundations (Oxford 1995); E. De Leon, ‘La biografia di Graziano’, E. De Leon and N. Álvarez de las Asturias, eds., La cultura giuridico-canonica medioevale: Premesse per un dialogo ecumenico (Milan 2003) 89-107; T. Lenherr, ‘Die Glossa Ordinaria zur Bibel als Quelle von Gratians Dekret: Ein (neuer) Anfang’, BMCL 24 (2000) 97-129.

[106] One particular piece of evidence in De penitentia hints that Gratian was familiar with specific debates and personages in France. In Sg, Fd, and Aa, Gratian incorrectly attributes his first canon to Pope Leo I. (In reality it is from Ambrose.) In many pre-Gratian collections, this passage (Lacrimas Petri lego, satisfactionem non lego) and all of c.2 are attributed to Jerome as a continuous passage, including Collectio V librorum, Collectio Hibernensis B, Collectio IX librorum, Sammlung der Hs Berlin SBPK Savigny 3, Sammlung der Hs Turin UB D.IV.33, Collectio der Hs Vat. lat. 4977. The one pre-Gratian author who attributes at least the first part of the canon (which is not Sg or Fd) to Leo is Peter Abelard in his Sic et Non. Such a fact is inconclusive regarding any connection between the two men, but it does suggest at least a common source between them and that Gratian was not relying on all the same sources as previous canonical compilers. As for the disagreement about the necessity of penance for the forgiveness of sins between Abelard and the Victorines and Peter Lombard’s role in creating some consensus, see Wojtyła, ‘Le traité’ 378-79. For the influence of French theologians on Gratian’s views on marriage in particular, see Winroth ‘Neither Slave nor Free’, in which he says explicitly, ‘In defining marriage, Gratian’s closest inspiration came from the thought of French theologians’ (102).

[107] The authorship of this work has historically been a matter of debate, but the editor of the critical edition argues that Irnerius is indeed the author. See Guarnerius Iurisperitissimus, Liber divinarum sententiarum, ed. G. Mazzanti (Testi, Studi, Strumenti 14, Spoleto 1999). The section on penance is short (pp. 274-78), contains plenty of Augustine, but no Pseudo-Augustine.

[108] Most notably, the collection of Regino of Prüm (ca. 906) and Book 19 (‘The Corrector’) of the collection of Burchard of Worms (ca. 1020). See Regino of Prüm, De synodalibus causis et disciplinis ecclesiasticis, ed. F.G.A. Wasserschleben (Graz, 1964 [reprint of Leipzig ed. 1840]) and Burchard of Worms, Decretorum libri XX, ed. Gérard Fransen and Theo Kölzer (Aalen 1992 [reprint of Cologne ed. 1548]). For a recent discussion of these works, see chapter two of S. Hamilton, The Practice of Penance, 900-1050 (Woodbridge, Suffolk 2001).