Gratian's Causa VII and the Multiple Recension Theories

Mary E. Sommar

 

For the past few years most of the conversation among Gratian scholars has concentrated on establishing the circumstances surrounding the composition of the Master's Decretum, especially the likelihood of there having been several recensions of the work.[1] The case discussed in Causa VII, that of whether or not it is permissible to consecrate a new bishop for a diocese whose previous bishop is still living, has received little attention in the literature about Gratian. However, Causa VII provides a good opportunity to examine the idea that there was more than one recension of the Decretum. Based on an analysis of both sources and content, the following provides further evidence that Anders Winroth's characterization of the two Decretum recensions may well be accurate, but only up to a point. One must ask if there is more to the story than simply an original Decretum and then a later recension done either by a student or by Gratian himself after years of feedback on his work. An examination of the Larrainzar hypothesis about an earlier draft of the Decretum in the St.Gall manuscript fails to provide support for this more recent proposal.[2] However, the analysis of C.7 q.1 d.p.c.18 and other anomalies forces one to consider that indeed, the so-called first recension may well not have been Gratian's first effort. Until all of the available manuscripts have been thoroughly analyzed we will not be in a position to understand the entire process involved in the composition of this remarkable work.[3]

 

The Winroth Hypothesis

The Manuscripts of Recension I:

There are four MSS discovered by Anders Winroth to belong to his first recension: MS Admont Stiftsbibliothek 23 and 43 (Aa); MS Barcelona, Arxiu de la Corona d'Aragó, Santa Maria de Ripoll 78 (Bc); MS Florence, Biblioteca Nazionale Centrale, Conventi Soppressi A 1.402 (Fd); and MS Paris, Bibliothèque Nationale, novelles acquisitions latines 1761 (P). They all show a remarkable congruity with one another and with the text of the Friedberg edition as well.[4] Comprised of two questions, the first recension of Causa VII contains twenty capituli and thirteen dicta; the second recension adds thirty-one new capituli and five new dicta, only one of which (d.p.c.48) provides any additional analytical insights to the problem under discussion in the causa. The capituli are listed in Table I.

Source Analysis:

1. Material Sources: Although Jean Gaudemet was certainly correct when he said that it is more important to analyze what Gratian thought he was using,[5] a careful check of Gratian's attributions for the capituli of Causa VII shows these to be roughly accurate according to modern understanding.[6] The first recension of the Decretum contains fifteen papal letters/decretals, including five from Gregory I and four from Pseudo-Isidorean decretals. The remaining texts include two texts of Cyprian,[7] two conciliar canons, and a letter of Paulinus of Nola. The second recension shows a very different pattern. The papal texts number thirteen, including seven from Gregory I, one Pseudo-Isidorean text, and one attributed to Pope Anacletus that is really from the III Council of Arles, while there are fourteen canons from various councils, as well as three excerpts from the writings of Cyprian and one capitulum (c.41) whose source is not certain.

Thus papal texts comprise the bulk of the first recension (75%) but a bit less than half (42%) of recension II. Yet the conciliar texts which form such a small part of the first recension (10%) provide almost half (45%) of recension II. The difference in the sources for the second recension cannot be explained simply by the idea that these were all that were left after the first round: there seems to have been a definite effort to include more conciliar material. Although one of the many questions in dispute in the twelfth century was that of the pope's exclusive right to approve episcopal translations, the Decretum's compiler/s ignored some well-known and relevant texts that condemned episcopal translation, including canon 1 from the Council of Sardica and a letter of Pope Siricius (JK 266).

2. Formal Sources: As Tables II and III show, the immediate sources used by the Decretum compilers were also very different. The author of recension I used mostly the Collectio canonum of Anselm of Lucca, with additions from the Collection in Three Books/3L (c.1, 17), Burchard of Worms' Decretum (c.13, 14), Tripartita (c.4, 45, q.2 c.1), and perhaps a collection of patristic letters (c.12). The author of the second recension was largely dependent on the Tripartita but also used Anselm of Lucca's collection (c.3, 20, 49), 3L (c.9, 28, 36, 48, and probably 8), and Ivo of Chartre's Panormia (c.32, 33). Such formal source attributions are provisional at best, yet a careful comparison of the Gratianic text with the various possible sources usually resulted in one strikingly superior match. Several cases, however, require some discussion.

Peter Landau has shown that most of Gratian's material can be traced to five collections: Ivo's Panormia, the Tripartita, Anselm of Lucca's Collectio canonum, the 3L, and the Polycarpus.[8] Based on Freidberg's variable quality apparatus, on the literature, and on the treasure trove of Prof. Landau's incipit catalogue to which he was gracious enough to allow me access, I was able to assemble a list of possible candidates to serve as the formal sources for each capitulum. A careful comparison of the full text of the available possibilities quickly narrowed the field and then those texts without significant differences from the Gratianic text were further sifted to establish similarity of inscriptions and to see where a block of text was transferred from one work to another.[9]

Anselm of Lucca's Collectio canonum, 3L, and the Polycarpus all have sections devoted to the question of episcopal translation.[10] And all three of these are present to a great extent in the first recension of Gratian's Decretum. Furthermore, the canons in the three earlier collections differ from one another only in minor details. How does one decide which collection Gratian used? Actually here the answer is quite simple. C.7 q.1 c.19 is the earliest conciliar canon dealing with episcopal translation, canon 15 from the Council of Nicaea in 315 CE. And this canon has been preserved in two traditions: that found in the Dionysiana and that found in the Hispana. Most medieval collections follow the Hispana version, but two, Gratian's Decretum and the Collectio canonum of Anselm of Lucca, follow the Dionysiana version.[11] It is also the case that more capituli find a closer match in Anselm's collection than in any of the other candidates. Thus, it seems clear that Gratian used Anselm's collection as his major source for this causa, at least for c.11, 19, 30, 31, 34, 35, 39, 42, 43, and 44 (Anselm 6.90-95,[12] 97-100). Where either the 3L or the Polycarpus were also a very close match, Anselm must be chosen on the grounds that it makes more sense for Gratian to have used a block of canons from one source.

This still leaves us with ten capituli for which we need a source. C.6 does not seem to be available anywhere other than Anselm 6.57, leading one to assume (on the above-mentioned grounds) that c.5 must then have come from Anselm 6.56. C.17 does not appear anywhere other than in 3L, 2.5.7-9, and 3L, 2.13.2 is the only possible source for c.1 because only there do we find the continuation of that letter (Si vero idem... see below for discussion) given in d.p.c.11.[13] C.4, 45, and q.2 c.1 occur only in the Tripartita. Peter Landau has demonstrated very convincingly that c.13 and 14 came from Burchard of Worm's Decretum 1.189 and 1.191,[14] and indeed, they are not present in any of Gratian's usual sources, while the text in Burchard is a perfect match.

Only c.12 remains without a definite formal source, and must remain so for the present. I have not been able to find this text, Non autem hoc tantum, a letter of Paulinis of Nola, in any other medieval collection.[15]

The formal sources of the second recension material are even easier to posit. Twenty of the capituli can be found only in the Tripartita, or elsewhere only with significant textual variants.[16] C.32 and 33 can be found only in Ivo of Chartre's Panormia, c.9, 28, 36 and 48, only in 3L. C.8 is also found only in 3L, but with a textual variation so that it seems safer to leave this attribution as merely probable.[17] C.3 and 20 occur only in Anselm of Lucca, and c.49 must also come from this collection since the only other possibility, the Polycarpus, does not include the last third of Gratian's capitulum. C.27 is in the Tripartita and also in the 3L, but without an inscription, thus it is safer to attribute it to the Tripartita where the inscription matches Gratian's.

This overall pattern of recension I coming largely from Anselm of Lucca and recension II from the Tripartita agrees with the literature,[18] although Causa VII seems to be richer in texts from Anselm than has been the case with some other causae.[19]

 

The Argument of Causa VII

If one supposes that the second recension is a later addition of canons and decretal material intended to enhance the argument of the original causa, then one must first determine if the causa as found in the first recension presents a coherent argument. And, indeed, to a great extent, it does.

The causa begins with two introductory dicta, the first (d.init.) explaining the overall problem: can a bishop be replaced by another while he is still living and, if so, can the first bishop return to his duties after another has been consecrated in his place? The second dictum (d.a.c.1) introduces the question of whether or not a living bishop may be replaced by another with a quotation from a council in Arles saying that no living bishop may be replaced by another unless the first has been forced out because of some crime. There then follow four capituli (1, 4, 5, 6) offering examples to show that a bishop and his church cannot be separated. The next capitulum (11) from Pseudo-Evaristus gives the reason for this unbreakable bond: the relationship between a bishop and his church is like that of husband and wife. The dictum p.c.11 says: "thus these authorities clearly show that a living bishop may not be replaced by another, not even in case of illness."[20]

But the dictum then goes on to introduce a new idea saying that sometimes a bishop might simply be too old or too sick to perform his duties, adding as an illustration of this point, the continuation of the Gregorian letter in c.1 -- an addition that in two of the recension I manuscripts is treated as an additional capitulum.[21] This is then followed by three capituli showing further situations when a bishop was not able to function for reasons of health or extreme age and had to have assistance (c.12, 13, 14).

The next section is very short, d.p.c.16 and c.17. This explains that a bishop consecrated to assist another bishop who is unable to perform his duties is "not his successor but his helper (coadjutor)"[22] and offers a letter from Pope Zacharias to provide an example of just such an occasion.

After c.17 in the first recension comes d.p.c.18, a very problematic passage. This dictum ignores all of the preceding two sections, beginning with d.p.c.11. It presents a brief summary of c.5 and 6 and also includes some material that is normally found in the Pseudo-Evaristus passage of c.11. This perplexing dictum will be discussed at length below.

One might well call the last few lines of d.p.c.18 (Ambicionis enim causa...) a new dictum, d.a.c.19, as it introduces the next section of Gratian's argument. Having established that under normal circumstances a bishop may not be replaced while he still lives, unless for reasons of illness or extreme age a coadjutor is appointed to help him, Gratian then goes on to consider the problem of episcopal translation, i.e. when a bishop leaves his diocese to go to another, leaving the first diocese without a shepherd. C.19, 30, and 31 all say that such a move is not permitted, but as introduced by d.p.c.33, capituli 34, 35, and 39 present the Pseudo-Isidorean idea already introduced in d.p.c.18 that there are sometimes extenuating circumstances that make a translation desirable: "for the good of the church is one thing, and greed or presumption or one's own desires are quite another."[23]

In d.p.c.41 Gratian offers a new idea, his major contribution to the developing theology of episcopal translation:

Thus we see in which cases a living bishop may be replaced by another, although really, these are not attempts to replace a living bishop.  For one who is translated from one city to another ceases to be the bishop of that city from which he was transferred, and thus the one who succeeds him, succeeds not a "living bishop" but a defunct bishop, in which situation a bishop may be replaced...[24]

And c.42 gives the example of a bishop who has been forced out of his see by invaders, one of the most dramatic reasons for an episcopal translation. This is followed by d.p.c.42, broadening the idea found in d.p.c.41, and by c.43, extending this same idea to the lower clergy.

D.p.c.44 and c.45 introduce the last theme of q.1: the question of a bishop who leaves his diocese to enter a monastery. This is seen as another possibility for those bishops forced to flee from an enemy. The question is brought to a close with a typical Gratianic ending: "It is then evident, having consulted many authorities, when someone may replace a bishop who is still living and when not."[25]

Question 2 has only one capitulum in the first recension and explains that a cleric who has not been able to function because of illness may resume his functions upon recovery, since he bears no guilt for the illness.

Thus, the argument of recension I is essentially as follows: a bishop and his church cannot be separated because of the marriage-like bond between them. Yet, if a bishop is sick or aged, a coadjutor may be appointed and, if the needs of the church or some other emergency require, the bond may actually be dissolved and the bishop can move to a new see or to a monastery. Also, in cases of illness, a cleric bears no guilt for ceasing to perform his duties and may resume them upon recovery. This argument is largely coherent, but some questions, e.g. about d.p.c.18, remain.

The material in the later recension of the Decretum that is not found in Aa, Bc, Fd, or P is not really necessary to the argument made by the causa. The largest chunk of new material is c.20-29, consisting of a varied assortment of texts about episcopal translation (c.24, 25, 26) and also about bishops and clerics who want to leave their station (c.20, 21, 23, 29) or to function in some way in another church (c.22, 27, 28). As this long insertion actually interrupts the flow and cogency of the argument, it seems likely that these capituli were added at a later time. Actually, the material exclusive to the second recension does not really show any consistent pattern. It seems to be the result of years of discovering additional texts that more or less "fit" into various locations, either further evidence in support of a particular capitulum, or similar difficulties that could be solved by the same reasoning. The only really new insights in the second recension of Causa VII are those found in d.p.c.48. This is a very long dictum, almost a tract in itself, and provides scriptural (and later) examples of people forced to flee in the face of danger to enhance the examples found in c.46 and 47. This dictum argues that while sometimes it is noble to stay and face danger, sometimes flight is the best choice.

The second recension material in q.2 consists of a single capitulum supporting the position of q.2 c.1 that a cleric whose illness might result in desecration or scandal should not continue to function.

 

 

 

Summary:

Thus, based on analysis of the sources and of the text itself, we can see that Winroth's first recension is indeed a fairly coherent document, compiled from distinct sources, and there is no reason to reject the idea that it circulated as such, however limited that circulation may have been. Yet, there is nothing here to indicate that there cannot have been an even earlier version. And, in fact, there are a few hints that this may well have been the case.

 

The Larrainzar Hypothesis: the St.Gall Manuscript

One major effort to establish such an earlier version of Gratian's Decretum has been the work of Carlos Larrainzar who has found a manuscript, Codex Sangallensis 673 (Sg), that he believes to have been a "rough draft" of the Florence MS of Winroth's first recension.[26] Causa VII in the St.Gall MS includes fifteen of recension I's twenty capituli and all thirteen dicta. A synopsis of the textual variations can be found in Appendix II.

In order to verify Larrainzar's hypothesis one must first consider the sources of the Sg version. Textual variants aside (see discussion below), if all or most of the capituli had been from one core source, then one could pretty well rule out the possibility of this MS being a later abbreviation. However, Table II shows quite clearly that the Sg capituli do not seem to have been drawn from any one particular source. Four of the twelve capituli from Anselm of Lucca and one of the pair from Burchard of Worms are missing, leaving all five of the formal sources for recension I represented in Sg. The material sources also show essentially the same pattern as in the first recension: four papal letters (including one pseudo-Isidorean letter and one from Gregory I) and a passage from Cyprian are missing, leaving eleven papal letters/decretals (75%), two conciliar canons (13%), and two patristic passages. Thus, the source analysis does not help to rule out either possibility, rough draft or later abbreviation.

The next question to be examined is the coherence of the argument of Causa VII in the Sg version. Larrainzar argues that since the Sg presents a clearer and more logical argument than do the four so-called first recension MSS, the Sg must be older.[27] Yet the capituli that are absent from the Sg neither detract from nor do they form a crucial part of the argument of Causa VII. Instead they serve to enhance the argument made by other capituli (c.5 to c.6; c.14 to c.13; c.30 and 31 to c.19; and c.35 to c.34). This analysis is also not very helpful in either proving or disproving the theory that the Sg is a coherent rough draft.

A consideration of the textual variations, however, provides some more useful information. First of all, we can consider the rubrics and inscriptions. If this were an early draft of the Decretum one might expect that there would be no rubrics, or if there were, that every capitulum would have a rubric. In Causa VII in the Sg seven of the capituli are without rubrics and of the eight that do have rubrics, seven match those in the other Decretum manuscripts. This pattern suggests a later abbreviation more than an early draft. The inscriptions for thirteen of the fifteen capituli in the Sg are essentially the same as the standard. C.6, which usually has Item eiusdem, referring to the immediately preceding c.5 taken from the same letter, in the Sg has Item Cyprianus, since in the absence of c.5 there is a need to identify the source. The inscription of c.45 provides some very interesting information for our purposes. Instead of giving the year as ccc.lxxx.viii, as it is found in the other MSS,[28] the Sg says ccc.lxxx.t'u-. This, of course, makes no sense, and appears to be a transcription error. But it does strongly suggest an error in copying to the Sg from another MS, rather than a first draft with a very peculiar entry.

The most startling differences between the Sg and the other Gratian MSS can be found in the dicta. All thirteen of the dicta in Causa VII of the first recension are present in the Sg. Seven of them are substantially different in form although generally not in overall meaning.[29] Regrettably this is not at all helpful in deciding whether the changes were made to the Sg or to later versions of the Decretum.

Finally we come to the texts of the capituli themselves. Nine of the capituli have at most a few minor changes from the other MSS, although the variant in c.42 is noteworthy. The scribe wrote in cardinales ordinatus for incardinatus. The correct variant, incardinatus, is a term frequently used by Gregory I to describe episcopal translation.[30] And the error here is significant because it suggests that the scribe of the Sg was not familiar with this rather technical term and tried to make sense of it as best he could. Anyone as expert as Gratian must have been would not be likely to make such an error.


Of the six remaining capituli with some to substantial textual variation, none matches any of the four recension I manuscripts, nor the versions of these canons found in Gratian's principal sources (Anselm of Lucca, the Tripartita, 3L, or the Polycarpus). The differences are not due merely to the omission of considerable blocks of text, but also due to variations within the texts. The only possibility to explain how an earlier draft could exist that does not match any of the known sources is that Gratian drew up this entire rough draft from memory without consulting any sources and then later expanded the draft and corrected it to match standard collections. However, it seems most unlikely that a reputable scholar would let such an unproofed draft leave his atelier.

What does seem likely, however, is the possibility suggested by Titul Lenherr that the Sg is a fair copy of a student's lecture notes.[31] Many of the textual variants can be explained as the result of mis-hearing a spoken text. And it is common for professors to omit relatively long passages of a text when lecturing in the exegetical style. I think it is also more likely that these are a student's notes rather than those of a professor because of a few errors that indicate a lack of familiarity with the material, e.g.: in cardinales ordinatus for incardinatus in c.42 (as above); the erroneous Episcopatum qualitas instead of Temporis qualitas as the incipit of c.44; pseudo for pseudoepiscopus in c.6; and the peculiar year, ccc.lxxx.t'u- in the inscription of c.45.

Thus the evidence of Causa VII provides no convincing evidence to suggest that the St.Gall MS is any more than a later abbreviation of the Decretum, although, quite interestingly, it seems to be an abbreviation only of material found in Winroth's first recension. Lenherr's suggestion that perhaps this was a fair copy of a student's lecture notes may well be accurate, given the sorts of textual variants found in this causa. Yet, despite the failure of Causa VII to provide strong support for the Larrainzar hypothesis, the evidence for an earlier version of the Decretum has not yet been exhausted. The problem of d.p.c.18 has yet to be answered.

 

The Problem Dicta

The problem with d.p.c.18 is that it provides a beautiful summary of c.5, 6, and 11, while completely ignoring c.12, 13, 14, and 17 that come in between. Why would Gratian include such a weakness in what is otherwise a fairly tight and well-crafted argument? Other anomalies suggest a possible answer. First, one cannot help but notice that c.12, 13, 14, and 17, which all discuss the replacement of a bishop for reasons of health, are not from Anselm of Lucca as are almost all of the other capituli of question 1. Secondly, one cannot help but notice that d.p.c.18 quotes a phrase missing from the Pseudo-Evaristus letter in c.11 in the Friedberg edition and in the manuscripts of the first recension: absque inevitabili necessitate, aut apostolica vel regulari mutacione, et alteri se ambitus causa coniungere. This passage, however, does appear in the pre-Gratian collections[32] and its appearance in a number of later manuscripts of the Decretum, and in the Roman edition of 1584, led a number of scholars to conclude that it was a palea, added at a later time. However, there is no attention given to the fact that the passage can be found in d.p.c.18.[33] When and why was this excised from the capitulum in the early Decretum? Lastly, it is surprising that Gratian would not have devoted a causa of his masterwork to the question of episcopal translation. Although this was a major problem for the twelfth century, as it had been for the eleventh, Gratian considers it only as a sub-type of the larger question of replacing a bishop who is, for whatever reason, no longer functioning as the shepherd of his flock.

One explanation for all of these questions could be that the original version of Causa VII consisted only of texts from Anselm of Lucca and that the Pseudo-Evaristus text in c.11 still contained the passage absque inevitabili The dictum p.c.18 would then make sense. One could then assume that at some later time, Gratian (or whoever) decided to expand on his analysis of Anselm's collection and added more capituli and their accompanying dicta, and also at some point the "palea" was deleted. If that is so, then the core of Causa VII is indeed about episcopal translation. And it was only later that Gratian realized that the contradictory traditions about episcopal translation could best be resolved if the problem were to be analyzed as one variation of the larger problem of replacing a bishop while he is still living. This core from Anselm of Lucca, taken mostly from Book 6, canons 90-100, is a block made up almost entirely of papal material and, together with the analytical dicta[34] might well be the De mutationibus episcoporum mysteriously alluded to in C.25 q.2 d.p.c.25.[35]

Further speculation can be made about the second half of d.p.c.18 (our d.a.c.19) which, as was mentioned above, introduces a slightly different theme from the previous capituli. This dictum is a summary of the passage from the letter of Pope Leo I found in c.31. While the intervening capituli, 19 and 30, as well as 31, are all from Anselm of Lucca, their order may have been changed more than once, as it certainly does not follow Anselm's organization. Another lesser problem in the logic of the first recension is d.p.c.11 which provides an enhancement of c.1 and which, as mentioned above, seems to have been treated as a capitulum in its own right in at least some early manuscripts. Perhaps at some point these fragments stood in closer proximity to each other.

In the second recension one finds additional evidence that Gratian's Decretum was probably not compiled in merely two steps. The inscription to c.23, Item ex eodem, refers back not to the immediately preceding c.22 from the V Council of Carthage, but to the Council of Nicaea cited in the first recension's c.19. It is inconceivable that one person inserted all ten capituli, 20 through 29, into the work without noticing that eodem was not the appropriate pronoun for the inscription of c.23. These capituli interpolated into an earlier recension must have been accumulated over some period of time and c.20-22 may have been added some while after c.23. The fact that most of the so-called second recension capituli are not found in Gratian's Decretum in the same order that they are found in Gratian's formal sources also argues for their gradual and unsystematic incorporation into Gratian's work.

In the absence of positive evidence to support the foregoing, i.e., at least one manuscript showing this shorter version of Causa VII and/or the other in-between possibilities, this must all remain in the realm of speculation. However, it does call our attention to the fact that the inconsistencies we find even in Winroth's first recension of the Decretum may well be the remains of a previous draft or recension. And just as the tradition of Gratian scholarship had long speculated that one day a discovery such as Winroth's might be made, today we must still keep an open mind about what future Gratian scholars may find. Perhaps there were only two "published" versions of the Decretum, but the compilation process certainly involved more that just two stages. Did one man, i.e. Gratian, compile the entire work? Was it the collection of a lifetime's worth of lecture notes published at intervals by students who did not see the "untidy seams"?[36] Or was there more than one "Gratian"? Unravelling the mystery of this monumental work will surely take longer than did its compilation.

 

 

 

                       APPENDIX I: Noteworthy Variations in Recension I Manuscripts

 

 

d.a.c.1:... in quo statutum legitur (Aa) -- additions in boldface

 

c.4:       ...nisi ex hac [illegible] si fuerint... (Fd)

end missing: Episcopo vero... triplecetur. (Aa, Bc, Fd, P)

 

c.6:       ...pseudoepiscopus non audet... (P)

...ecclesiastici corporis vel ordinis compaginem... (Aa)

...ecclesiastici corporis compaginem... (Fd)

...ecclesiastici ordinis vel corporis compaginem... (P)

...nec [om. unitatem spiritus] coniunctionem... (P)

 

c.11:     rubric includes ...dimittere et ad aliam transire (Aa, Bc, Fd, P)

sacratus for consecratus (Aa, Bc, Fd, P)

 

d.p.c.11:Unde in eodem capitulo sequitur -- as rubric (Aa)

Si vero... begins a new capitulum (P)

 

c.13:     ipsia for Christi (Aa)

 

c.14:     pulsat [illegible] est aculeo... (Fd)

...languente [om. pastore] grex... (Bc, Fd, P)

 

c.17:     ordinetur episcopus for eligatur (Fd)

 

d.p.c.18:subsecutor for subsequenter (Aa, Bc)

...se ambitus [om. causa]  coniungere... (Fd)

mediocritatis for mediocritate (Aa, Bc, Fd, P)

 

c.30:     fuerit for sit (Aa, P)

 

c.34:     ...utilitate [om. atque necessitate] fieri... (P)

...parva civitate [om. apostolica auctoritate] mutatis (P)

 

c.35:     ...et utilitatis et aliud... (Aa, Fd)

...nam aliud [om. est sponte transire et aliud] coacte (P)

 

c.39:     ...est uxor [om. viri] quamdiu... (Fd, P)

...similiter sponsaque episcopi...  (Bc, P)

adulteram for  ad alteram (P)

 

c.42:     ...licet a tua sede for licet tua sis (Aa, Bc)

c.44:        ...certis [om. civitatibus] ad alia... (Bc, P)

 

q.2.c.1:    consulendo for consulendum (Aa, Fd)

 

General observations: Many inconsistencies found in P can be attributed to mis-hearing a spoken text, rather than to misreading a written one (e.g. in c.39 adulteram for  ad alteram). Fd has many errors: omissions, misspellings, crossouts, repeats, blots, and corrections.

                                      APPENDIX II: Synopsis of St.Gall MS

 

d.init.:               text substantially changed

 

d.a.c.1:            text substantially changed

 

c.1:                   rubric; inscription; text has minor variations

 

c.4:                   no rubric; inscription; text ends like recension I

 

c.6:                   rubric; inscription Item Cyprianus

text:      factus for fieri; ecclesiae esse for per ambitum; una di for unus;

om. concordi; singulas for plurimas; om. suos; pseudo for

pseudoepiscopus; add. corporum; om. nec augere... ceperint;

om. Et infra qui ergo... pacem [end].

 

c.11:                 no rubric; inscription

text:"palea" missing; separare for segregare; om. sed aut... non accipiat;

om. si; om. Episcopum vero... veritatis [end].

 

d.p.c.11:           text substantially changed

 

c.12:                 no rubric; inscription; text: susciperet for perciperet

 

d.p.c.12:           minor variations in text

 

c.13:                 rubric; inscription; text substantially changed

 

d.p.c.16:           text substantially changed

 

c.17:                 no rubric; inscription; minor variations in text

 

d.p.c.18:           minor variations in text, numerous word order inversions

 

c.19:                 no rubric; inscription; no textual variants

 

d.p.c.33:           text substantially changed

 

c.34:                 no rubric; inscription

     text:      add. inquit; ac for et; add. utilitas causa est; translatus for mutatus;         add. -que; et toti synodi consilio for communi episcoporum et  reliquorum sacerdotum ac populorum consilio; om.est; add. de loco                                     ad locum; add. civitatem; om. Nam sicut... licentia; humilitatis for  utilitatis

 

c.39:                 rubric; inscription

text:  om vel parrochia; om. id est ordinatione; add. igitur/inquit[?]; om. Similiter sponsa... privabitur; om. eique sociandum; etcetera  for in una civitate fugite in aliam

 

d.p.c.41           minor variations in text

 

c.42:                 rubric; inscription;

text: in cardinales ordinatus for incardinatus; minor variants

 

d.p.c.42:           some textual variants

 

c.43:                 rubric; inscription; text: perg-nt for migrarunt

 

d.p.c.43:           minor variations in text

 

c.44                 rubric; inscription

text:      Episcopatum qualitas for Temporis qualitas; om. apostolum;

transmigrari for transmigrare; om. et illic... disponas [end].

 

d.p.c.44:           minor variations in text

 

c.45:                 rubric: om. monachus effitur;

inscription: year wrong, ccc.lxxx.t'u- for ccc.lxxx.viii;

text: reverti for resurgat

 

d.p.c.49           Apparet ergo auctoritatibus pluribusque for Multorum auctoritates apparet

 

q.2 d.a.c.1:       text substantially altered

 

q.2 c.1: no rubric; inscription; minor variations in text 


                          TABLE I: The Capitula of Causa VII

 

 

First Recension:                                                Second Recension:

q.1:      d. init.                                                   q.1    c.2

d.a.c.1                                                              c.3

c.1                                                                   c.7

c.4                                                                   c.8

c.5                                                                   c.9

c.6                                                                   c.10

c.11                                                                 d.p.c.14

d.p.c.11                                                           c.15

c.12                                                                 c.16

d.p.c.12                                                           c.18

d.13                                                                 c.20

c.14                                                                 c.21

d.p.c.16                                                           c.22

c.17                                                                 c.23

d.p.c.18                                                           c.24

c.19                                                                 c.25

c.30                                                                 c.26

c.31                                                                 c.27

d.p.c.33                                                           c.28

c.34                                                                 c.29

c.35                                                                 c.32

c.39                                                                 d.p.c.32

d.p.c.41                                                           c.33

c.42                                                                 c.36

d.p.c.42                                                           c.37

c.43                                                                 c.38

d.p.c.43                                                           d.p.c.39

c.44                                                                 c.40

d.p.c.44                                                           c.41

c.45                                                                 d.p.c.45

d.p.c.49                                                           c.46

              c.47

            c.48

           d.p.c.48

          c.4                            q.2              d.a.c.1                                                          q.2       c.2

c.1

 

 

TABLE II:      The Canons of Causa VII Version in Aa, Bc, Fd, P     Gratian's formal sources indicated in boldface blue.  Cha[ters in Sg are marked with *
C.7 q.1 Anselm Tripartita Panormia Three Books Polycarpus Other
1* 6.61 ― ― 2.13.2 2.17.1 Burch. 1.188
4* ― 1.65.19 ― ― ―  
5 6.56 3.9(10).16 ― 1.4.12 7.3.7  
6* 6.57 ― ― ― 7.3.7  
11* 6.98 1.3.3 ― 2.5.6 1.10.1  
12* ― ― ― ― ― Unknown
13* ― ― ― ― ― Burch. 1.189
14* ― ― ― ― ― Burch. 1.191
17* ― ― ― 2.15.7-9 ―  
19* 6.100 2.1.5 ― 2.5.21 2.34.5  
30 6.97 ― ― ― ―  
31 6.92 ― ― 2.5.4 1.10.5  
34* 6.90 1.15.1 3.69 2.5.2 1.10.3  
35 6.93 ― ― 2.5.5 1.10.6  
39* 6.99 ― 3.68 2.5.1 1.10.2  
42* 6.95 ― ― 1.7.8 1.9.10 - 2.14.1  
43* 6.91 ― ― 2.5.3 1.10.4  
44* 6.94 ― 2.37 ― 3.30.1 Burch. 3.89
45* ― 2.17.2 ― ― ―  
q.2 c.1* ― 3.10.40 ― ― ―  

TABLE III:    Remaining canons (Recension II)  Gratian's formal sources indicated in blue boldface.

 

can.      Anselm Tripartita          Panormia                3L                    Polycarpus

 

1.2       -                       1.57.96            -                       -                       -

3          7.106               -                       -                       -                       -

7          -                       3.9(10).17        -                       2.5.34              -

8          -                       -                       -                       3.1.7 (prob.)    -

9          -                       -                       -                       3.3.27-28         -

10        -                       1.62.21            -                       -                       -

15        -                       2.49.6              -                       -                         -

16        -                       2.35.1              -                       -                         -

18        -                       1.56.5              -                       -                         -

20        6.171               -                       -                       -                         -

21        6.169               2.22.5              -                       2.31.27              -

22        -                       2.22.8              -                       -                         -

23        -                       2.1.16              -                       -                       2.34.7

24        -                       2.6.1                -                       2.5.20              2.34.10

25        -                       2.6.15              -                       -                         -

26        -                       2.10.5              -                       -                         -

27        -                       2.20.12            -                       2.5.30                -

28        -                       -                       -                       3.26.9                -

29        -                       2.31.63            -                       -                         -

32        -                       -                       2.45                 -                         -

33        -                       -                       2.49                 -                         -

36        -                       -                       -                       2.5.32                 -

37        -                       2.21.26            3.70                 2.5.17                   -

38        -                       2.21.32            -                       2.5.1                    -

40        -                       1.57.62            -                       -                          -

41        -                       1.59.8              -                       -                          -

46        -                       1.36.5              -                       -                       4.16.1

47        -                       1.65.42            -                       -                         -

48        -                       -                       -                       3.19.73              -

49        13.20               -                       -                       -                       7.9.5

2.2       -                       1.46.43            -                       -                         -

     [1] Winroth's hypothesis was first announced at the Tenth International Congress of Medieval Canon Law in Syracuse, NY in August, 1996 and published as "The Two Recensions of Gratian's Decretum," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte KA 83 (1997) 22-31 and later in The Making of Gratian's Decretum (New York 2000) wherein he analyzed Causae 11 and 24. Since 1996 a number of scholars have been examining various causae to test this hypothesis including: Enrique de Leon, "La tradición mas antigua de C.30," and Fred Paxton, "Gratian's Thirteenth Case," Eleventh International Congress of Medieval Canon Law, in Catania, Sicily in August, 2000; Carlos Larrainzar, "El Decreto de Graciano del códice Fd," Ius ecclesiae 10(1998) 421-489; José M.Viejo-Ximénes, "La redacción del C.29 del Decreto de Graciano," Ius ecclesiae 10(1998) 149-185; Rudolf Weigand, "Das kirchliche Walhrecht im Dekret Gratians," Wirkungen europäischer Rechtskultur: Festschrift für Karl Kroeschell zum 70. Geburtstag, edd. G.Köbler, H.Nehlsen (Munich 1997) 1331-1345 (D.62, 63); idem, "Causa 25 des Dekrets und die Arbeitsweise Gratians," Grundlagen des Rechts. Festschrift für Peter Landau zum 65. Geburtstag, ed. R.H. Helmholz et al. (Paderborn, Munich 2000) 277-290; and Jean Werckmeister, "Les deux versions du `De matrimonio' de Gratien, Revue de droit canonique 48(1998) 301-316. A good summary of this research through 1988 can be found in Jean Werckmeister, "Les études sur le Décret de Gratien: essai de bilan et perspectives," Revue de droit canonique 48(1998) 363-379.

     [2] The primary exposition of this theory can be found in Carlos Larrainzar, "El borrador de la `Condordia' de Graciano," Ius Ecclesiae 11(1999) 593-666. Recently Titus Lenherr was kind enough to provide me with pre-publication copies of several articles he has written about the early phases of the Decretum's composition: "Die vier Fassungen von C.3 q.1 d.p.c.6 in Gratians Dekret," "Zur Überlieferung des Kapitels `Duae sunt, inquit leges' (Decretum Gratiani C.19 q.2 c.2)," and "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."

     [3] The following would not have been possible without the help of the Stephan Kuttner Institute of Medieval Canon Law and the Monumenta Germaniae Historica. I would also like to express my gratitude to Prof. Dr. Peter Landau of the Leopold Wenger Institüt für Rechtsgeschichte at the Ludwig Maximilians Universität in Munich, who read an early draft of this article and offered many helpful suggestions.

     [4] For a list of significant variations see Appendix I.

     [5] Jean Gaudemet, "Les sources du Décret de Gratien," Revue de droit canonique 48(1990) 247-261 here 248.

     [6] Other than c.28 which is from the III Council of Arles and not Pope Anacletus, and c.41 whose idem may not refer to Gregory I, the source for c.40, the differences are merely in numeration of canons, etc. and they do not affect the analysis.

     [7] According to Ute-Renate Blumenthal, Cyprian was considered at this time to be almost as good a source as a pope, in: "Fälschungen bei Kanonisten der Kirchenreform des 11. Jahrhunderts," in Fälschungen im Mittelalter: Internationaler Kongress der Monumenta Germaniae Historica München, 16.-19. September 1986. Teil II. Gefälschte Rechtstexte der bestrafte Fälscher (MGH Schriften 33.2; Hannover 1988)241-262, here 250.

     [8] Peter Landau, "Gratians Arbeitsplan," Iuri Canonico Promovendi: Festschrift für Heribert Schmitz zum 65. Geburtstag, edd. W.Aymans, K.-T.Geringer (Regensburg 1994) 691-707; idem,

"Quellen und Bedeutung des gratianischen Dekrets," Studia et Documenta Historiae et Iuris 52 (1986) 218-235; and idem, "Neue Forschungen zu vorgratianishen Kanonessammlungen und den Quellen des gratianischen Dekrets," Ius commune (Veröffentlichungen des Max-Planck-Instituts für Europäische Rechtsgeschichte Frankfurt am Main 11(1984) 1-29.

     [9] For further discussion of this attribution problem see Winroth, Making of Gratian's Decretum, 20-21; Landau, "Neue Forschungen," 14-15; and Stephan Kuttner, "De Gratiani opere noviter editer," Apollinaris 21 (1948) 118-128, here 125-127.

     [10] Anselm, 6.90-100; 3L, 2.5.1-38; and Polycarpus, 1.10.1-6.

     [11]  C.7 q.1 c.19, Dionysiana version: "Non oportet episcopum vel reliquos ordines de civitate in civitatem migrare; non episcopus, non presbiter, non diaconus transeat.  Si quis autem post diffinitionem ... diaconus ordinatus. (Corpus iuris canonici, ed. E.Friedberg [Leipzig 1879; rp.Graz 1959] 576. Also: Anselm of Lucca, Collectio canonum 6.100.

 

Hispana version: "Propter multam perturbationem et seditiones quae fiunt placuit consuetudinem omnimodus amputari, quae praeter regulam in quibusdam partibus videtur admissa: ita ut de civitate ad civitatem non episcopus, non presbyter, non diaconus transferatur. Si quis vero post definitionem... diaconus ordinatus." Conciliorum Oecumenicorum Decreta, ed. Centro di Documentazione Istituto per le Scienze Religiose - Bologna (Basel 1962) 13. Also see: Polycarpus, 2.34.5; 3L, 2.5.21; Tripartita, 2.1.15; Burchard of Worms, Decretum, 2.97; and Ivo of Chartres, Decretum, 6.174.

     [12] Anselm's canon 6.96, Et temporas qualitas et vicinitas, is concerned with the joining of two dioceses. Gratian does not consider this issue in C.7, but in C.16 q.1 c.48.

     [13] Although Burchard of Worms' Decretum 1.188 also provides a possible source for c.1, and Weigand's connection ("Mittelalterliche Texte:Gregor I., Burchard und Gratian," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte KA 84(1998) 330-344, here 399 n.20) of this canon with c.13 and 14 which do seem to have been taken from Burchard is persuasive, the passage from d.p.c.11 cannot be ignored.

     [14] Peter Landau, "Burchard de Worms et Gratien: à propos des sources immédiates de Gratien," Revue de droit canonique 48(1998) 233-245, here 236-237; and idem, "Das Register Papst Gregors I. Im Decretum Gratiani," in Mittelalterliche Texte: Überlieferung, Befunde, Deutungen, ed. R.Schieffer (MGH Schriften 42; Hannover 1996) 125-140, here 135.

     [15] Winroth has discussed Gratian's "unknown source" at some length in Making of Gratian's Decretum, pp.17, 116-121.

     [16] See Table III.

     [17] Where 3L has Genesis, Gratian has Esau,in the Friedberg edition, and in the Roman edition of 1584, in Genesi Esau.

     [18] Landau, "Das Register," idem, "Burchard de Worms et Gratien," Paxton, "Gratian's Thirteenth Case," and Weigand, "Causa 25."

     [19] Winroth, Making of Gratian's Decretum, 91.

     [20] "Ecce his auctoritatibus patenter ostenditur, quod episcopo vivente alius superordinari non potest, nec etiam pro eius egritudine."

     [21] This is most marked in P where the passage is set off with a large initial letter and a new paragraph. In Aa part of the dictum (Unde in eodem capitulo) has been made into a rubric, but there is no paragraph break.

     [22] "Senectute autem gravato non successor, sed coadiutor dari debet..." d.p.c.16.

     [23] "Alia etinim causa est utilitas, alia avariciae et presumptionis atque propriae voluntatis." c.34.

     [24] "Ecce in quibus casibus episcopo vivente alius potest ei substitui, quamquam secundum rei veritatem non vivente episcopo talis probetur succedere.  Translatus enim ab una civitate ad aliam desinit esse episcopus illius civitatis, a qua transfertur, atque ideo qui huic succedit non viventi, sed defuncto quodammodo episcopo probatur substitui.  Sed inter eum, qui hostilitatis necessitate, et eum, qui utilitatis causa transfertur, hoc interest, quod ille, qui metu hostilitatis ad aliam transit, si priorem contingerit aliquando ab hostibus liberam fieri, ad eandem illum redire oportet." d.p.c.41.

     [25] "Multorum auctoritatibus apparet, quando viventibus episcopus alii possint substitui, et quando non." d.p.c.49.

     [26] Larrainzar, "El borrador."

     [27] Larrainzar, "El borrador," 608-610.

     [28] Although the Council of Constantinople from which this capitulum was taken, the so-called Photian Synod, took place in 879.

     [29] Larrainzar's d.proprium ("El borrador," 625, 656) is actually a substantially altered d.p.c.33.

     [30] Stephan Kuttner, "Cardinalis: the history of a canonical concept," Traditio 3(1945) 277-340.

     [31] Lenherr, "Ist die Handschrift."

     [32] The Pseudo-Evaristus letter can be found in: Pseudo-Isidoris, Decretales, ed. P.Hinschius (Leipzig 1863; rp. Aalen 1963) 90. This canon can also be found in: Burchard of Worms' Decretum, 1.76; The Collection in 74 Titles, 25.186; Anselm of Lucca's Collectio canonum, 6.98; the Polycarpus, 1.10.1; 3L, 2.5.6; and Ivo of Chartre's Decretum, 5.182. In the Tripartita, this canon begins after the passage in question.

     [33] See Rudolf Weigand, "Versuch einer neuen, differenzierten Liste der Paleae und Doubletten im Dekret Gratians," Life, Law and Letters: Historical Studies in Honour of Antonio García y García, ed. P.Landau, Studia Gratiana 29(1998) 883-899; Hartmut Zapp, "Paleae-Listen des 14. und 15. Jahrhunderts," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, KA 59(1973) 83-111; J.Rambaud-Buhot, "Le legs de l'ancien droit: Gratien," in G.LeBras, ed. Histoire du Droit et des Institutions de l'Église en Occident VII: L'Age Classique 1140-1378 (Paris 1965) 103 (esp. notes 2 and 7).

     [34] Perhaps, d.a.c.1, d.p.c.18, d.p.c.33, d.p.c.41, d.p.c.42, d.p.c.43, and d.p.c.49.

     [35] "...sicut super in tit. de mutationibus episcoporum..." See Rudolf Weigand, "Causa 25" and idem, "Chancen und Probleme einer baldigen kritischen Edition der ersten Redaktion des Dekrets Gratians," Bulletin of Medieval Canon Law 22(1998) 49-73.

     [36] Stephan Kuttner, "Research on Gratian: Acta and agenda," Proceedings of the Seventh International Congress of Medieval Canon Law (Vatican City 1971); rp. Studies in the History of Medieval Canon Law (Aldershot, 1990) V.13.

     ak Anselm of Lucca, Collectio Canonum una cum Collectione Minore, ed. F.Thaner (Innsbruck 1906, rp. Aalen 1965). Anselm C: MS BAV Vat. lat. 4983.

     al MS Paris, BN, lat. 3858 and the transcription of Martin Brett which I was able to use at the Stephan Kuttner Institute for Medieval Canon Law in Munich.

     am PL 161 and ed., B.Brasington on the Internet at http://wtfaculty.wtamu.edu/~bbrasington.

     an MSS BAV, Vat. lat. 3831.

     ao The Monumenta Germaniae Historica in Munich graciously allowed me access to the provisional edition of U.Horst, C.Erdmann, and H.Fuhrmann, still in manuscript form. Also helpful was Uwe Horst, Die Kanonessammlung Polycarpus des Gregor von S.Grisogono: Quellen und Tendenzen (MGH Hilfsmittel 5; Munich 1980).

     ap Burchard of Worms' Decretum, PL 140.

     aq Although Friedberg's edition of Gratian's Decretum cerainly has many problems, it is still the best source for a comparison of this sort. See Rudolf Weigand, "Zur künftigen Edition des Dekrets Gratians," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 114, KA 83 (1997) 34.