Published in the Bulletin of Medieval Canon Law  27 (2007) 21-56

Early Stages of Gratian’s Decretum and the Second Lateran Council: A Reconsideration

Atria A. Larson

            The traditional dating of Gratian’s Decretum to ca. 1140 has been modified within the past decade due to Anders Winroth’s discovery of an earlier recension of the work surviving in four manuscripts.[1] Scholars can no longer just mention 1140 as the date of the completion of the Decretum.  They must clarify which Decretum they are talking about.  The scholarship of the twentieth century originally settled on the date of ca. 1140 partly because of the apparently hasty incorporation of canons from Innocent II’s Lateran Council of 1139, known later as the Second Lateran Council.[2] Although no canons from Lateran II appear in the recension Winroth discovered, he is confident that the recension does refer to Lateran II in D.63 d.p.c.34 when it mentions a general synod (‘generalis sinodus’) held by Pope Innocent in Rome.[3] The final stage of Gratian’s work adds a canon from Lateran II (canon 28 of the council; D.63 c.35 of the Decretum) which fits the description given by Gratian in the preceding dictum.[4] Winroth, together with Rudolf Weigand, assert that Gratian is referring to Lateran II in the dictum of that earlier recension.[5] The pope matches, the city matches, the type of synod (general/universal/ecumenical) matches, and the substance of the canon (the involvement of religious clerics in episcopal elections) matches. The conclusion is obvious to both scholars: the earlier recension refers to Lateran II, and thus that recension must be dated to ca. 1140 while the date of the completion of the final recension has to be pushed back. The only objection to this assertion that they consider is a hypothesis that this could be a later interpolation in the earlier recension. Since the phrase appears in all four manuscripts, this seems doubtful.  Winroth adds that if it were an interpolation added by Gratian in 1139 or 1140 to a text he wrote many years earlier, modern scholars cannot possibly know when Gratian did write that work and thus must operate on the basis of the evidence at hand: a completed work referring to Lateran II and thus finished ca. 1139-1140.[6] That is the end of the story in Weigand and Winroth’s view, but the issue is hardly an open-and-shut case.

            Two serious problems emerge if this earlier stage of Gratian’s work does indeed refer to Lateran II. The first major problem facing scholars is that, if this is so, one must postulate a timeline compressed to the point of incredulity with regards to the production of the final stage and dissemination and beginning scholarship on the Decretum. As Peter Landau has recently pointed out, the earlier recension seems to have been known at the papal curia under Celestine II (1143-44). He notes that Weigand has shown that the jurists began to gloss the final recension as early as the late 1140s, for the first glosses appear ca. 1150. In addition, Paucapalea wrote the first Summa on the Decretum as early as 1148, and the first known abbreviation of the work (‘Quoniam egestas’) appeared in Southern France around 1150 as well.[7] In addition, the work of Gratian was being practically applied in courts in Italian cities by 1150, for a court record of Siena from that year exhibits usage of Gratian’s final recension.[8] From this evidence and having no evidence or reason to question Winroth’s and Weigand’s argument that Gratian mentioned Lateran II in the earlier recension, Landau concurs with them and dates the completion of the final recension around 1145.[9] Winroth, Weigand and Landau know that they must allow several years for the manuscripts to be disseminated, for the text to begin to be taught and to be accepted as authoritative, for students and magistri to produce scholarly work on it, and for even small town Tuscan lawyers to become familiar with the text.  On the other hand, they believe they must allow several years for the transformation of the earlier recension into the final recension. All of this activity has to occur within a mere eight-to-ten years and all the post-final recension activity within a mere four or five if the first recension was only finished in 1140.

This timeline becomes even further compressed to an unreasonable degree when one considers the possibility of an even earlier stage of Gratian’s work preserved in St. Gall, Stiftsbibliothek 673 (Sg), which also contains the reference to Innocent’s ‘generalis synodus’ in Rome. While Winroth maintains that the manuscript is an abbreviation of the ‘first recension’, and John Wei is currently propounding the hypothesis that it contains an abbreviation of that recension along with interpolations from the final one, much good evidence has come to light to support the notion that the manuscript contains an earlier stage in the development of Gratian’s work. Not the least of such evidence is the recent work by Melodie Harris Eichbauer on the rubrics in Sg.[10] The notion of Sg as representing an earlier stage seems impossible, however, if it necessarily was finished no earlier than 1139 as well. Then one must posit the completion of a very early stage of the Decretum, the expansion (roughly a doubling) of this into Winroth’s ‘first recension’, and the expansion (again, a doubling) of that recension into the final stage within the time-span of five years. That seems not merely improbable but impossible. These facts alone would lead some scholars who may be tempted to view Sg as containing an earlier version to remain permanent skeptics.

If D.63 d.p.c.34 originally referred to Lateran II, a second problem arises. Fransen and Lenherr and others, including Weigand and Landau, have argued that the canons of the council were the last to enter into the work.[11] If all earlier stages in the formation of the Decretum were finished after the council and Gratian added the Lateran texts to the collection in 1145, he would not have scrambled to put in the canons, seeing that they would already be five years old. One would have to suppose that Gratian had been completely ignorant of that council for five years or, for some unaccountable reason, suddenly decided that those canons were worthy of being included in his collection. Either supposition stretches credulity.

These two problems lead one to question whether the ‘generalis synodus’ of D. 63 d.p.c.34 originally (i.e. in the stages represented by Sg, Fd, Bc, P, and the majority of Aa) referred to Innocent II’s Lateran Council of 1139. An overview of the meaning of the designation ‘synodus generalis’ in Gratian’s time and, more significantly, in Gratian’s own work, a brief look at the habit of repeating conciliar canons at later councils, and an examination of the activities of Innocent II earlier in his pontificate reveals a tantalizing possibility: Gratian was not referring to Lateran II and very well could have been referring to a synod in either Lent 1130 or, more likely, June 1133, all of which would open up a more reasonable timeline for the composition of Gratian’s Decretum and confirm what some twelfth-century chroniclers claimed: Gratian was working in the early 1130s. Moreover, regardless of whether or not Gratian was in fact referring to a council in June 1133 (which cannot be proven with the evidence available), a letter from Innocent II’s chancery from the same period proves that Gratian was active and influential in the early 1130s and thus that the completion of the early stages of his work could not have been as late as 1139.

The Meaning of ‘Synodus generalis’

            Part of the attractiveness of assigning the reference to a synod held under Innocent in Rome to Lateran II seems to rest in the specific designation of the synod as ‘generalis’ and what that designation signifies to modern ears. In the mind of twentieth and twenty-first century Christians, the modifier ‘generalis’ appears synonymous with ‘universalis’ and ecumenical.[12] Thus Gratian’s reference to a ‘synodus generalis’ in Rome automatically conjures up the picture of a great ecumenical council such as the Second Lateran Council. The association of Lateran II as one of the ecumenical councils in the line from Nicaea to Vatican II comes, however, only later in history when Robert Bellarmine first numbered the ecumenical councils in his Disputationes de controversiis christianae fidei (1586-91).[13] But if, in terms of the mid-twelfth century, the association of a ‘synodus generalis’ with an ecumenical council is anachronistic and the inclusion of Lateran II within the series of ecumenical councils from the early church is anachronistic, what do Gratian and his contemporaries mean when they call a gathering a general council or synod? This question, at least as applied to the early and high Middle Ages, has been the focus of considerable attention in German scholarship and has yielded fairly conclusive results, and an examination of Gratian’s usage of this and similar terminology, particularly in ‘pars prima’ of the Decretum, reveals unequivocally his meaning.

            The sources of the eleventh and early twelfth century yield up quite a variety of usages of the term ‘synodus generalis’ or ‘concilium generale’ and similar terms, including the nouns without the adjectives, but some things stand out clearly.[14] First, quantitatively speaking, a general synod was more general, that is, involved more participants and affected more of the faithful, than a lower synod.[15] This means that even a provincial synod could be termed ‘generalis’ because it was more general than a meeting of, say, the canons of a cathedral. Second, qualitatively speaking, a general synod signified for many medieval writers, from a tradition going back to Isidore of Seville, a catholic or universal synod, that is, one which espoused catholic doctrine.[16] In this sense, the moral or doctrinal statutes of a general synod bear more authority and significance than those of a lesser synod. Third, a synod or council needed papal approbation for validity.[17] For diocesan and provincial synods, such papal approval could not be given explicitly in each case but was always present indirectly in the form of the ancient canons of the church prescribing meetings twice a year. For special meetings, the pope’s specific and direct approval would be required, at least in the eyes of the reformers and the reform popes, in order to make the gathering a valid assembly. Fourth, in many though certainly not all cases, ‘synodus generalis’ or a similar term in the late eleventh and the twelfth century designated a council presided over, not simply approved by, the pope, and ‘generalis’, at least in the eyes of the popes when they specifically termed one of their councils as such, implied the participation of bishops from a wide geographical spread.[18]

As is clear from these four points, one can expect to find great variety in the usage of ‘synodus generalis’ or equivalent term in the period leading up to and around Gratian, and one indeed does find such variety. Rupert of Deutz speaks of a provincial synod called by a bishop as a ‘synodus generalis’. For the year 1076, he records the consecration of a certain Henry as bishop of Liège performed by Archbishop Anno of Cologne; according to Rupert, Anno essentially commissioned Henry to destroy Abbot Wolbodo of St. Laurence. Henry apparently took up the task; after Wolbodo fled to the pope for refuge and the pope ordered Henry to restore the abbot to his position or render an official and legitimate deposition, Henry called a ‘synodus generalis’, at which the abbot was to present himself for judgment; he did not show, and Henry and the others there officially deposed him.[19] Thus, the pope ordered the bishop to call a synod but was not present at it and left the proceedings to Henry. Others could refer to diocesan or provincial synods without any seeming connection to the pope as ‘synodi generales’. A cartulary of the Cluniac monastery of St. Stephen in northeastern France contains a charter from the year 1111 which was composed during a ‘synodus generalis’ under the bishop (Riquinus of Toul). Riquinus is the only bishop mentioned as a witness, along with two abbots, other ecclesiastical officials, and some laymen.[20] In a letter to Pope Paschal II, Ivo of Chartres presents a progression of lesser councils to greater councils, implying that the greater ones have greater authority than the lesser ones, and the type of council above a provincial one he labels as ‘generale’.[21] That Ivo’s usage points particularly to a papal synod is not surprising, for in his Panormia and Decretum, he drew canons from Burchard of Worms that have papal synods and even the ecumenical councils of the early church in view when using the adjective ‘generalis’.[22] None of these usages would give credence to the idea that Gratian was necessarily referring to the Second Lateran Council, at least not based on his decision to term the council a ‘synodus generalis’.

Gratian himself actually provides a specific and consistent usage of ‘synodus generalis’. All six times he uses the term (whether in a dictum, inscription, or rubric), he is referring to a papal synod. In five of these instances (i.e. all but the dictum in question, D.63 d.p.c.34), the council in mind is clearly not an ecumenical or even a very significant council from the modern perspective. In some of the cases, the identification of the councils is questionable. Gratian’s point seems merely to say that these canons have authority because they were issued by a pope in the context of a synod over which he presided. The six instances are: D. 54 d.p.c.22,[23] D.63 d.p.c.34,[24] D.98 c.1 (inscription),[25] C.2 q.4 d.p.c.1,[26] C.2 q.7 c.58 (inscription),[27] and C.16 q.7 c.12 (inscription).[28] In the case of D. 54 d.p.c.22, the pope is Gregory I (590-604), under whose pontificate no ecumenical councils took place. In D.98 c.1 (inscription), Gratian refers to a synod of Silvester I (314-335). Silvester was pope during the Council of Nicaea, but Gratian is not quoting a canon of that council here. The text became known to canonists as a decree of Silvester I in the Pseudo-Isidorian Decretals.[29] Gratian knew the canons of Nicaea and introduced them as such in his work, so he is under no illusion that he is quoting a canon from that council.[30] As for C.16 q.7 c.12, Gratian is referring to Gregory VII’s Lenten synod of 1080, one of the several Lenten synods held during his pontificate. In each of these cases, Gratian believes himself to be taking canons from papal councils. How many bishops participated and how important the council was for posterity are irrelevant issues to Gratian’s understanding of what a general synod is. The essential element is the presence of the pope.

One can gather a greater understanding of Gratian’s emphasis on the papal role in general synods from distinctions fifteen to eighteen in the prima pars. Gratian’s major terminological distinction lies between a ‘synodus generalis/ universalis/sacra’ and a ‘synodus particularis/episcopalis/ provincialis’, with ‘synodus’ and ‘concilium’ being used interchangeably throughout these four distinctions.[31] Most of the time, an adjective does not accompany the noun, but the context makes clear of which type of gathering Gratian is speaking.[32] These two types of councils may be distinguished both in terms of their function and in terms of the role of the pope in them. As D.18 makes clear with much support from early canons, episcopal synods/councils are to occur twice (or in the very least, once) a year, and all summoned bishops are to attend without excuse.[33] Such councils are non-legislative; their purpose consists in enforcing the enactments of the church, whether that be the moral or the canon law as put forward in ecclesiastical authorities from Scripture to conciliar canons to papal decretals. Gratian’s opening dictum summarizes this point nicely:[34]

Episcopal councils, therefore, as appears from the preceding, may not validly define or enact, but they may correct. Episcopal councils are needed for exhortation and correction, because, although they do not have the power to enact, they do have the authority to impose and declare what has been otherwise decreed and commanded to be generally or particularly observed.

Thus provincial synods have the character of courts at which cases within the province are dealt with under the judgment of the bishops gathered together, and they also serve as a channel through which ecclesiastical enactments become known to the church at large.[35] The popes have no direct involvement. In clear contrast to these councils, general councils have the pope at their head and perform more of a legislative function.[36] The opening dictum of D.17 plainly states, ‘Authority for convoking councils belongs to the apostolic see’.[37] As a letter of Pope Julius I says (D.17 c.2), no council which has not been validated by the pope has or will be valid, and a gathering which occurs without or against the authority of the pope, as Pope Pelagius II says (D.17 c.5), is not even a council, but a mere ‘conventiculum’.[38] That the true, general councils can legislate becomes clear from the discussion of the canons of these councils and the contrasting description of provincial synods. General councils produce canons, and this production represents a significant part of their duties and even raison d’être, otherwise Gratian would not deal in such detail with the issue of whether or not the sixth general council even composed canons.[39] Thus, for Gratian, general councils/synods are summoned by the authority of the pope, normally are presided over by him (the exception being some councils in the early church which were nevertheless approved by the pope), and are about the business primarily of producing statutes for the church.

In short, all Gratian means by ‘synodus generalis’ in D.63 d.p.c.34 is a papal synod – a gathering summoned by and presided over by the pope (in this case, Innocent II) which can be expected to produce some sort of binding legislation for the church. How big the synod is, how many bishops are in attendance, and from where they come do not comprise chief concerns for Gratian, and the canons of a larger synod such as Lateran II would not impress Gratian as being any more authoritative than those of a small papal synod. The ecumenical councils of the early church hold a high and irreplaceable position in the estimation of Gratian and all medieval jurists, but, beyond them, as Schmale so succinctly states, ‘Päpstliches Konzil war päpstliches Konzil’ – equal in authority, regardless of size or location.[40]

The Reiteration of Conciliar Canons

            The chief reason for Weigand and Winroth’s insistence that this dictum in the earlier recension refers to Lateran II no doubt (although they do not explicitly state as much) lies in the fact that Gratian eventually added a canon from that council. Indeed, the canon (canon 28 of Lateran II) does fit the description provided by Gratian in his dictum. This fact does not, however, provide definitive proof, for popes frequently repeated canons from previous councils, whether their own or those of their predecessors.

The habit of repeating canons from one’s own earlier councils was one practiced by some of Innocent II’s more immediate predecessors and, more significantly, by Innocent himself. The reasons for such repetition perhaps cannot be fully known, but I. S. Robinson speaks of Urban II’s practice this way: ‘The re-promulgation of virtually the same decrees at each synod of the pontificate tended to transform the synod into a papal instrument for publicizing the reform program’.[41] Whatever the precise reasons, Innocent II also took up this practice in the 1130s, as research by Robert Somerville has made clear. The major synods of Innocent known to modern scholarship are the Councils of Clermont (1130), Liège (1131), Reims (1131), Piacenza (1132), Pisa (1135), and Lateran II (1139).[42] No canons survive from Piacenza or Liège, although a chronicler reports that clerical chastity was one topic dealt with at the latter.[43] The decrees of Innocent’s councils at Clermont (1130) and Reims (1131) survive in one and two manuscripts, respectively.[44] While the canons of Pisa have survived in two manuscripts, they remain incomplete, with one manuscript, though, having more of the canons than the other.[45] From the more complete manuscript, only the sixth canon is not repeated in the canons of the Second Lateran Council.[46] In addition, some of the canons shared between Pisa and Lateran II were promulgated as early as 1130 at Innocent’s Council of Clermont.[47] Thus, even though Innocent’s decrees from all his councils in general have a rather scanty survival, the record reveals that he repeated canons throughout his pontificate and included canons in Lateran II that he had first promulgated even back in his pontificate’s first year.

What the discussion thus far leaves as absolutely certain as to the mention of a ‘synodus generalis Innocentii Papae Romae habita’ in D.63 d.p.c.34 amounts to less than what is usually thought. Gratian is referring to a papal synod. The pope is Innocent II. The place is Rome. Nothing internal to the text specifically as it appears (viz. without the canon) in the earlier stages of Gratian’s work gives any indication as to the date of the council. The council makes a decree mandating the inclusion of the religious within a diocese as participants in an episcopal election. This decree appears within the canons of Lateran II but very possibly could have been promulgated at earlier councils under Innocent II as well.

Since scholarship thus far has not unearthed a council held by Innocent II in Rome besides Lateran II, this hesitation about Gratian’s reference may perhaps seem like a foolish exercise of informed skepticism unless a plausible scenario can be put together from the historical record that posits an earlier time when Innocent very well could have held another synod in Rome. In fact, the timeline of Innocent II’s pontificate places him in Rome for a few months beginning on April 30, 1133, and chronicles and documents tell of a synod in June 1133, even if the word ‘synodus’ or ‘concilium’ never arises. This synod, whose existence rests on circumstantial but I think plentiful evidence, could be Gratian’s referent, and Gratian’s few words, I propose, comprise the lone testimony to a decree at that synod, just as the monks of Erfurt seem to give the lone testimony to a decree at Innocent’s Council of Liège in March 1131.

Innocent II’s Council of Rome (June 1133)

Two possibilities actually emerge if one is looking for a synod held by Innocent II in Rome earlier in his pontificate (the early 1130s). The first possibility has traditional papal activity to support it; the second has support from the historical sources. Innocent was elected on February 14, 1130 and consecrated on February 23. Easter that year fell on March 30. Given the tradition of popes, especially from the middle of the eleventh century on, to hold synods around Easter, whether during Lent or in the immediate weeks after Easter, Innocent may have held a synod within the first month or two of his pontificate before fleeing north of the Alps due to his rival, Anacletus II’s, firm position in the city.[48] The short timeframe between Innocent’s election and Easter would not necessarily have prohibited his holding of a Lenten or Easter synod that year (Gelasius II held a Lenten synod in 1118 in Gaeta after being elected in January[49]), but perhaps the chaos surrounding the schism would have. In any case, no historical evidence survives to suggest that a synod did in fact take place around that time. In contrast, much historical evidence points to a synod held by Innocent II the next time he was in Rome after being driven out by Anacletus II and his supporters. The year was 1133, and the circumstances were the imperial coronation of Lothar III.

Late in the summer of 1132, Lothar headed out on an Italian expedition with the purpose of re-establishing Innocent II in the city of Rome and, in return, receiving the imperial crown. Accompanying him was his newly appointed chancellor for the Italian kingdom, Archbishop Norbert of Magdeburg.[50] Lothar III and Innocent II reached Rome on April 30, and, despite the attempts of Anacletus’ supporters to woo the German king, Lothar maintained his support for Innocent and succeeded in entering the city. Anacletus’ men maintained control of the Leonine city and St. Peter’s, the traditional location for imperial coronations, so, on Sunday, June 4, Innocent II crowned Lothar III in the Lateran.[51] There, after his coronation, Lothar repeated a request he had made in Liège: the right to invest bishops. As Robert Benson explains, the investiture controversy continued on for more than a decade after the Concordat of Worms in 1122, and Lothar’s imperial coronation stands as the last time pope and emperor debated and compromised on this issue.[52] Where in all of this is a council to which Gratian might be referring in D.63 d.p.c.34? The evidence points to sometime between May 27 and June 8, and most likely June 4-8.

The historical evidence for such a council remains circumstantial, that is to say, no source specifically mentions a ‘synodus’ or ‘concilium’ in connection with these events, but the sources do point to an assembly of bishops and other ecclesiastical and lay figures, a consideration of issues of ecclesiastical politics and practice, and a significant output from the papal chancery. First, several sources, from documents such as letters to chronicles, prove that Innocent had the personnel available in Rome in May and June of 1133 to hold a papal council.[53] In an encyclical to all Christians prior to his coronation, Lothar III condemns Anacletus and mentions the large group of Germans and Italians accompanying him on his journey to Rome: ‘Cum igitur, ascitis nobis archiepiscopis, episcopis et abbatibus, principibus, ducibus, comitibus et marchionibus regni nostri, episcopos etiam, comites et alios barones Italiae nobiscum ducentes, bellico apparatu stipati ad Urbem proficisceremur…’[54] Thus, Lothar and Innocent were surrounded with German archbishops, bishops, abbots, and lay nobility as well as Italian bishops and nobility. One account of Innocent II’s life tells the same tale, though in less detail. Bernardus Guido records that ‘Anno Domini 1132 Lotharius II imperator expeditiones in Italiam parat, et cum episcopis et archiepiscopis Innocentium papam Romam deducens contra Petrum Leonis’ (Anacletus).[55] One of these German archbishops Guido has in mind is undoubtedly Norbert of Magdeburg, and his Vita testifies not just to a horde of ecclesiastical and lay figures accompanying Lothar and Innocent but specifically to an assembly of bishops at Lothar’s coronation. The author recounts Lothar’s request for the right to invest bishops, which is, in his view, equivalent to wanting to take away the liberty of the churches. Somewhat surprisingly, the person who objects to Lothar’s request and steps in to stop Innocent II from immediately caving in is none other than Lothar’s own chancellor, Norbert. The narrator expresses shock that ‘no one among so great a multitude of bishops’ recoils at Lothar’s significant demand. Amidst this large gathering of bishops, Norbert alone emerges as a hero, the defender of ecclesiastical liberty.[56]

Two extant privileges from four days later (Thursday, June 8) clarify the role of the bishops. They were not merely spectators watching an imperial coronation; they participated in discussions and decisions about important matters in ecclesiastical-imperial relations and ecclesiastical practice, at least as regards episcopal elections and consecrations. The one privilege grants the Mathildine lands to Lothar III for his lifetime in the hopes of cutting off the attempts of anti-king Conrad of Staufen to acquire these lands and build up his power from them, and the other, referred to in the scholarship as the Innocentianum or the Concordat of Rome, laid out a rather vague but apparently politically acceptable compromise on the investiture issue.[57] Most of Innocent’s letters and privileges come from him and him alone and do not mention any others in his presence at the time of composition. These two privileges, however, both written on June 8, mention that the decision at hand was made in the presence of, and even with the counsel of, a variety of ecclesiastical and lay figures. First, the privilege regarding the lands of Countess Matilda of Tuscany (d. 1115) states that Innocent’s grant was being made ‘in presentia fratrum nostrorum archiepiscoporum, episcoporum, abbatum, necnon principum et baronum’.[58] Second, the privilege regarding investiture adds the element of ‘will and counsel’ on the part of those present with the pope: ‘cognita fratrum nostrorum episcoporum et cardinalium [atque] nobilium Romanorum prompta voluntate atque consilio’.[59] All of this evidence makes abundantly clear that Innocent had a circle of high ecclesiastical officials around him and they were involved in deciding matters of ecclesiastical politics and norms.

Moreover, these two privileges share in a rather compressed period of activity coming from Innocent II’s chancery. For the period May 27-June 8, Jaffé lists fourteen extant documents (JL 7621-7634), seven or eight of which were produced on May 27 and three of which were produced on June 8, including the two privileges (JL 7632 and 7633) for Lothar III just discussed. Although Innocent had other times of atypically high productivity, this evidence combined with the evidence of the assembling of cardinals, archbishops, bishops, abbots, and lay nobility provides very strong reasons for supposing that a synod actually did occur in Rome at this time. Either June 8 itself or June 8 combined with the days leading up to it after Lothar’s coronation ceremony constitute the most likely days because of the significance of the two privileges dated to June 8 for Rome’s relationship with the German empire and the practice of electing and consecrating bishops within in the empire.

Additional support for this hypothesis comes from the very recent research and book by Georg Gresser on synods and councils from Leo IX to Calixtus II, that is, the years 1049 to 1123. In that book, he posits the existence of synods that previous scholarship has not mentioned. In many of the cases, just as with the proposed synod of Rome in 1133, extant canons do not exist. Just a look at the first five councils he lists for Paschal II makes this abundantly clear. His councils at Melfi (October 1100) and Rome (March 1101) have left no surviving canons.[60] The next council, one in Rome in November 1101, has left no canons and may have no extant mention of it as a ‘synodus’ or ‘concilium’ per se, but the sources do make known that a series of negotiations between bishops and abbots was involved.[61] As for the March 1102 synod in Rome, there are no extant canons, though its business was discussed in a letter to Anselm of Canterbury by the pope; this synod involved a privilege, as did several others.[62] Paschal II held another Easter-time synod the following year, but, once again, no canons have survived; Paschal conferred a privilege on Archbishop Gerald of Braga, but it has been lost.[63] As this short list indicates, papal synods of the early twelfth-century may not leave an obvious record of their existence, and these synods involved matters of daily ecclesiastical issues, not just large-scale matters of doctrine and clerical reform. Gresser summarizes and clarifies these points in his definition of a synod: ‘the definition of ‘synod’ is, in the most general terms, a gathering of bishops (plural!) which in some form makes a statement on an ecclesiastical question, totally irrespective of whether or not this has found expression in written form in the sources’.[64] He also explains that a great portion of the work of these synods centered around rather specific, daily issues in small segments of the church. Contemporaries naturally paid most attention to the canons because they had the broadest appeal and application, while only those directly involved in specific issues paid attention to the privileges granted for them.[65] Working from this understanding of papal synods, Gresser posits the existence of a synod under Calixtus II in Benevento in September 1120 with the following evidence: the presence of cardinals and bishops and a great outpouring from the papal chancery, both of which circumstances, Gresser maintains, make the supposition very likely that the pope held a synod there.[66] Such evidence matches, if not is exceeded by, the type of evidence available for a gathering of cardinals, archbishops, bishops, abbots, and laymen under Innocent II that debated and came to decisions on ecclesiastical matters and resulted in the production of papal privileges – in short, a ‘synodus generalis’ – in Rome in early June 1133.

What Gresser’s research demands is a revision of the modern conception of an early twelfth-century council. As Gratian’s usage of the term ‘synodus generalis’ shows as well, the key point is the presence of the pope. Canons would be issued, but so also would letters of negligible interest to the church broadly speaking. Privileges (such as the ones granted in June 1133) were very often made, but these, of course, would interest only those whom they concerned. In short, any gathering of several bishops (and there certainly were several in Rome in June 1133) which dealt with ecclesiastical issues, both of broad and local significance, constituted a council, and, very often, such councils do not garner attention in contemporary sources.

Although the historical record points to a synod presided over by Innocent II in Rome in 1133, that synod does not necessarily constitute the one Gratian originally referred to in D.63 d.p.c.34. Nevertheless, an identification of the two councils is conceivable based on the issue at hand in that dictum. Gratian is making the point that the canons of a cathedral should not be the only electors of a bishop, but that the religious within the diocese also have the right to vote. In short, the issue is one of episcopal elections, an issue extremely closely tied to the issue of investiture. Gratian’s mind itself connected these two issues, for the dictum in question appears within a series of distinctions (DD.62-63) which deal with who should elect and consecrate bishops and what the role of the emperor and other secular princes properly is. The opening dictum of D.62 (which is also present in both Sg within ‘causa prima’ and Winroth’s ‘first recension’) clearly states the next material to be treated: ‘Nunc uidendum est, a quibus sunt eligendi et consecrandi’.[67] In D.63 c.7 (also present in Sg and Winroth’s ‘first recension’), Gratian quotes a canon from the Second Council of Nicaea of 787 which was popular in pre-Gratian canonical collections. Gratian’s rubric for the canon, which essentially quotes its first sentence, states that an election of a bishop or priest or deacon made by princes is erred.[68] D.63 d.p.c.27, c.28, and d.p.c.28 (in Sg and Winroth’s ‘first recension’ as well) deal with the role of princes and emperors in the elections of popes and other bishops. In the distinctions immediately following, Gratian addresses where and by whom clerics of various ranks should be ordained. In short, Gratian sees the issue of the prince’s role in an episcopal election as part of the issue of the rules for episcopal and other elections in general, and, since Innocent II and the bishops around him discussed episcopal investiture after Lothar’s coronation, they very well could have treated other issues of episcopal election and ordination as well, including that of the role of the religious.

One other tie between Gratian’s work and the events of May-June 1133 exists and gives testimony to an active and even influential Gratian in the early 1130s, long before Lateran II. The heightened output from Innocent II’s chancery began on May 27, eight days before Lothar’s coronation. On that day, Innocent penned a letter on the Aventine Hill in Rome to Ascerus, Bishop of Lund.[69] Archbishop Adalbero of Hamburg had complained repeatedly about the insubordination of Ascerus, first to Calixtus II and Honorius II and now to Innocent himself. In the letter, Innocent orders Ascerus to obey Adalbero as his metropolitan. For his justification, Innocent does not go to notions of ecclesiastical hierarchy; instead he leans on the nature of his office to protect, assist, and preserve his own in all circumstances, especially when they have been harmed. He compares his duty to help the harmed to the prescription of natural law not to harm another: ‘Just as it belongs to natural law not to harm another, so it belongs to our office to assist the one who has been harmed’.[70] In the Latin, two phrases are key: first, for ‘natural law’, Innocent uses ius naturale, not lex naturalis, and second, the phrase for ‘not to harm another’ is alterum non laedere, a direct quotation from the Roman jurist Ulpian in his definition of the precepts of ius (note ius, not lex) in Dig. 1.1.10.1.[71]

Innocent himself or the more likely actual author of this letter, his chancellor, Haimeric, thus knew a bit of Roman law. Haimeric identifies himself as the author of the related letter written on the same day to Adalbero of Hamburg,[72] so, in the very least, Haimeric was present for the letter to Ascerus and very well could have penned it himself. Regardless of Haimeric’s specific role in the composition of the letter, what is noteworthy is that, though Burgundian by birth, Haimeric had been and perhaps still retained his status as a regular canon of S. Maria in Rheno in Bologna.[73] This fact places Haimeric in possible proximity to and acquaintance with Gratian as a person, but the usage of ius naturale and alterum non laedere makes Haimeric’s knowledge of Gratian’s work indisputable.

At the beginning of his Tractatus de legibus (distinctiones 1-20 of the ‘prima pars’ of the Decretum, which first appears in the stage represented by Fd, Bc, P, and the main parts of Aa), Gratian defines the key principle of ius naturale as the Golden Rule, and his entire prologue is influenced by Dig. 1.1.9-10. First he states that ‘the human race is ruled by two things, namely ius naturale and long-standing custom (moribus)’,[74] modifying but clearly echoing Gaius’ assertion that ‘all peoples (omnes populi) who are ruled (reguntur) by laws (legibus) and long-standing custom (moribus) use partly their own law and partly that law (iure) which is common to all men’.[75] Gratian then defines ius naturale:[76]

Natural law is what is contained in the Law and the Gospel, by which each person is commanded to do unto others what he wants done to him and is prohibited from inflicting on others what he does not want done to him. Whence Christ in the Gospel: ‘Whatever things you want people to do unto you, do also the same things to them. This is the Law and the Prophets’.

Gratian gives a positive and a negative formulation of the Golden Rule and ius naturale; similarly Ulpian in Dig. 1.1.10.1 (a text immediately following the one from Gaius which influenced Gratian’s opening statement) gives a positive and negative formulation of the precepts of ius: ‘suum [ius] cuique tribuere’ (positive: giving to each person his right/what he deserves) and ‘alterum non laedere’ (negative: not harming another person). Gratian was definitely familiar with this alterum non laedere principle of Roman law.[77] Given the overlap of basic ideas between Ulpian’s ‘do not harm another’ and Gratian’s biblical ‘do not do to others what you would not want done to you’ (and likewise for the positive sides of the equation) and Gratian’s indubitable familiarity with Dig. 1.1.10.1 and the influence of that section of the Digest on his opening dictum, one can affirm that, for Gratian, the Golden Rule stands as the Christian version of the essence of the Roman law concept of ius.

            That Innocent and/or Haimeric in the letter to Ascerus sees the same connection as Gratian between the alterum non laedere principle and natural law (and thus the Golden Rule, which had for centuries in the Christian tradition been identified with natural law), is suggestive that the papal court was familiar with and influenced by Gratian’s work. What clinches the connection for the modern scholar, however, is the specific usage of ius naturale, not lex naturalis, in the letter. Gratian’s predecessors and contemporaries always used the term lex naturalis; Gratian was the first to exchange ius for lex. A disciple of Jerome wrote that lex naturalis prescribes that we do unto others what we desire from others.[78] Haimo of Halberstadt (d. 853) said that lex naturalis had two principles and then proceeded to give both the positive and negative formulation of the Golden Rule.[79] Gratian’s near-contemporary, Rupert of Deutz (d. 1130), also defined lex naturalis with the Golden Rule and added that this law was written on the heart.[80] Hugh of St. Victor (d. 1141) in his De sacramentis christianae fidei also put forward the positive and negative formulations of the Golden Rule and identified them as the principles of lex naturalis. He emphasized the comprehensive nature of this law: lex naturalis prohibits what can never be done licitly and commands what can never be passed over licitly.[81] Thus, many before and at the same time as Gratian identified natural law with the Golden Rule; Gratian’s innovation, then, which was clearly influenced by his understanding of the Roman law concept of ius in contradistinction from lex, consisted in his labeling the Golden Rule as the overarching principle of ius naturale, not lex naturalis. Since he was the first and only person in his time to do this, Innocent and/or Haimeric had to be familiar with his work. Gratian may not necessarily have fully composed his Tractatus de legibus yet in the form in which it appears in Fd, but he certainly had by May 1133 been teaching the content of that treatise and must also, then, have composed in some form, however advanced and developed, an initial version of what would become the first few distinctions of his Decretum. With such evidence, the idea that Gratian did not complete the earliest stages of his work until after 1139 and the Second Lateran Council and that he was referring to that Council in D.63 d.p.c.34 becomes increasingly implausible, for this letter to Ascerus is proof that Gratian is teaching and writing and even influencing the papal chancery in the early 1130s.

Conclusion

            The most important conclusion here for understanding D.63 d.p.c.34 is that a ‘synodus generalis’ does not mean a general council in the modern sense. Gratian’s choice to use that term in no ways intimates that Lateran II was the council on his mind. In addition, the fact that Gratian ultimately incorporated a canon from Lateran II and thus interpreted the ‘synodus generalis’ of D.63 d.p.c.34 as that council does not prove that Gratian originally intended Innocent’s 1139 council. Just as Lateran II repeated canons from the Council of Pisa and from his earlier Council of Clermont, Lateran II could have repeated additional canons from earlier councils whose canons have not survived. Such a situation seems not just possible but also likely given the poor survival of the decrees from Innocent II’s councils (except for Lateran II). Based on Innocent’s travels, the two possibilities for a council in Rome early on in his reign to which Gratian might be referring are during Lent 1130 just a few weeks after his consecration and in June 1133 after Lothar III’s coronation. Given the historical evidence of a council and the known focus on episcopal elections in 1133, this latter possibility holds more credibility for being Gratian’s referent. In this case, Gratian’s few words about a decision made in a general synod under Innocent II would stand as the only surviving witness to a canon of the Council of Rome (1133). In addition, and very importantly, although one cannot prove absolutely that Gratian was aware of the proceedings of such a council and was referring to it, one can be absolutely sure based on the usage of ius naturale in Innocent’s letter to Ascerus of Lund that the papal chancery at that time was quite familiar with Gratian’s work and that its epistolary output was influenced by it.

If in D.63 d.p.c.34 Gratian was originally referring to a council in June 1133 and not Lateran II and to a canon promulgated at that earlier council and repeated as canon 28 of Lateran II, such a timeline creates significantly more space for the various stages in the production of Gratian’s Decretum and for the dissemination of its final form. Seven more years are added to Weigand and Winroth’s chronology. A plausible terminus post quem of June 1133 appears for the completion of the stage represented in Sg and also for a succeeding stage as represented in Fd, Bc, P, and the majority of Aa. Much of the work for the version represented in Sg probably was done in the late 1120s, especially since Melodie Harris Eichbauer’s research suggests that ‘causa prima’ was among the last to be composed.[82] Also, May 1133 becomes the terminus ante quem for Gratian’s initial formulations of his Tractatus de legibus. Gratian was already teaching at least some of the content that would comprise this treatise and thus had already formulated some draft of these distinctions, if not fully composed them in the form preserved in Fd. Moreover, under this analysis, the generally accepted date for the final recension of ca. 1140 which accounts for the rushed input of the canons of Lateran II remains intact, producing a much more believable timeframe in the 1140s for the dissemination of, beginning scholarship on, and first practical uses of the Decretum. Whether or not Gratian is in fact referring in D.63 to a council in June 1133, scholars should at least not feel rigidly tied to the date of 1139 or 1140 for the completion of the early stages of Gratian’s work. So much evidence has pointed to an earlier completion, and that one supposed reference to Lateran II has led many to doubt that evidence. Now that supposed reference can be doubted and the other evidence can be embraced more assuredly.

No doubt Gratian and probably others around or under him were working hard in the late 1120s and 1130s to collect and comment on hundreds and hundreds of canons, and the terminus post quem of June 1133 proposed here for Gratian’s earlier recensions presses for a flurry of activity in Bologna in the 1130s of great scholarly proportion. Perhaps modern scholars should give more credence to those chroniclers of the late twelfth-century who took note of such work and placed it in that very timeframe: the late 1120s and the early-to-mid 1130s. In his chronicle, Robert of Torigny (writing between 1162 and 1184) places Gratian’s work ca. 1130 and describes his work this way:[83]

Gratian, bishop of Chiusi, united the most useful decrees from the decrees, canons, doctors, and Roman laws, which are sufficient for determining all ecclesiastical cases. They are frequently made use of in the Roman curia and in other ecclesiastical courts. Afterwards Master Omnibonus, bishop of Verona, abbreviated these decrees. He had been Gratian’s disciple.

John T. Noonan has noted that Robert got the information about Gratian’s work correct, Omnibonus’ work correct, and Omnibonus’ ecclesiastical position correct, but, on the basis of Robert’s placing of Gratian’s work about a decade too early from his perspective (working from the date of 1140 and before the discovery of the earlier recensions), Noonan rejected as at least very doubtful Robert’s assigning the bishopric of Chiusi to Gratian.[84] But Robert seems to have his dating correct, so perhaps he correctly identifies Gratian’s final ecclesiastical position as well. Besides Robert of Torigny, another chronicler, Burchard of Ursberg, writes about the significant work of Gratian in the field of canon law and of Irnerius in the field of Roman law.[85] These descriptions appear within Burchard’s discussion of Lothar III’s reign (1125-1137), and, remarkably enough, they fall directly after his account of nothing other than Lothar’s imperial coronation in June 1133. Though living a couple generations after Gratian, Burchard may have been far more accurate in his chronology than even he realized, or perhaps he knew something modern scholars have not. Innocent II’s letter to Bishop Ascerus of Lund proves that Gratian was active and flourishing, even influencing papal letters, at that time, and the reference in D.63 d.p.c.34 opens up the possibility that Gratian was privy to some proceedings surrounding Lothar’s coronation, a ‘generalis synodus Innocentii Papae Romae habita’.