Roman Law at the Papal Curia in the Early Twelfth Century

Kenneth Pennington


Over thirty years ago, Robert Somerville wrote an essay that dealt with one of the many puzzles facing scholars when they confront Gratian’s Decretum.[1]   He pointed out that although Gratian included many canons from the Second Lateran Council in the last version of his Decretum, he did not include canon nine, Prava autem consuetudo.  He wondered why.  The canon’s content was strange.  Pope Innocent II had promulgated a prohibition forbidding monks and canons regular to study Roman law.  The canon also barred them from representing litigants in law suits as “patroni.”[2]  It declared that those monks who used their glorious voices to participate in the clamor of the courtroom neglected their liturgical songs and prayer because of greed.  Instead, they argued cases using a thicket of legal citations that resulted in confusing the just with the unjust and divine law with impiety. This conciliar admonishment was hardly a positive view of an advocate’s job, whether a monk, canon regular or neither.[3]

There are two features of the canon that merit attention.  First, Innocent issued it at least three times earlier in his pontificate, almost word for word.   He had promulgated it at a council that he held at Clermont in 1130, at Reims in 1131, and Pisa in 1135.  In 1139 he included the canon in the legislation of the Second Lateran Council.[4]   Secondly, forbidding monks to study Roman law must have been an important “reform” item on Innocent’s agenda.  The Council underlined its displeasure with lawyer-monks by citing a constitution of the Roman Emperor Justin from Justinian’s Codex. The emperor had declared that it was absurd and shameful for clerics (not just monks) to want to become learned experts in the law courts. [5]   The wording of Justin’s statute incorporated into the conciliar canon was almost exactly the same as in the Codex; the only difference between the text of the conciliar canon and that of the Codex was that Justin’s decree stipulated a penalty of 50 pounds of gold for violating the canon’s strictures.  Innocent did not.  The juxtaposition of a prohibition against studying Roman law snuggled up against an authoritative text of Roman law in a papal conciliar decree gave Somerville pause — as it should have.  We are still struggling to understand the complex relationship between the rediscovery of Roman law, the emergence of ecclesiastical jurisprudence, and the papacy’s and the canonists’ attitudes towards the use and study of Roman law.

Besides the explicit citation of Justin’s statute there is another tacit citation to Roman law in the canon.  The source for canon’s elegant rhetorical flourish that described the voices of monk-lawyers in the courtroom, “gloriosae vocis confisi munimine,” was either an anonymous homilist’s sermon on the Resurrection that Migne included, wrongly, among the sermons of Peter Damian or another constitution in Justinian’s Codex, issued by the emperors Leo and Anthemius.  Undoubtedly, the homilist took his praise of lawyers from the Codex.[6]  Whoever drafted the text of the conciliar canon transformed these very positive views of a lawyer’s work in the courtroom into a dark picture of a lawyer’s being the sower of confusion in the courtroom.  The homilist had written: [7] 

This is a public act, and it is the duty of advocates to trust in the muniment[8] of their glorious voices to correct errors and to heal disturbances.  They do not do less for the human race than those who defend their country with shields and armor.

There is some irony that the metaphor used to praise lawyers’ courtroom gravity in the Codex and the sermon was employed in a diatribe against the practice of law in the conciliar canon.[9]

 Gratian and the canonists rejected Prava autem consuetudo.  It never entered the collections of canon law.   However, Leo’s, Anthemius’ and the homilist’s praise of advocates lived on in the literature for centuries.[10]  Lawyers continued to find comfort in the virtue of their calling when they read the Codex, and the writer of the sermon must have been well known, at least to John of Salisbury.  John quoted him without attribution in his Policraticus, a book that circulated widely in the medieval and early modern periods.[11]

These facts about Prava autem consuetudo lead to a few basic questions that lie at the center of this essay: How receptive were ecclesiastical judges, advocates, and compilers of canonical collections to the use of Roman law in the early twelfth century?[12]  When did the papacy begin to use Roman law in its curial court and in its legislation as an authoritative norm?  I have already treated these two questions in previous essays using secular and ecclesiastical evidence.[13]  In this essay I want to review the scholarship on these questions and examine a case heard at the papal court during the pontificate of Innocent’s predecessor, Honorius II, in detail.  In his essay Somerville attempted to provide a context for understanding  Prava autem consuetudo’s prohibition of studying Roman law and for Gratian’s rejection of the canon.  The goal in this essay is to continue to explore how Roman law developed as a tool of analysis in the courtrooms of the early twelfth century and to provide further evidence for its use in the papal curia.  I must confess at the beginning that the evidence that I will present in this essay makes it easier for us to understand why Gratian rejected the canon  but even more difficult to know why Pope Innocent II had promulgated Prava autem consuetudo repeatedly during his pontificate.

The Use of Roman Law in the Courts

Julius Ficker was the first to attempt a survey of Roman law in ecclesiastical and secular courts.[14]  He published 531 court cases that he excavated from manuscripts in European archives and from printed sources.  The earliest document dated to 776 and the last to 1474. The breadth and richness of his source collection has not yet been superseded.  His insights into legal practice in European courts over seven centuries are still worth reading. 

More recently Antonio Padoa Schioppa surveyed the use of Roman law in the eleventh and twelfth centuries basing his study on four of Ficker’s cases.[15]  Justinian’s Codex, Digest, and the Institutes were cited in theses court cases that chronologically extend from 1060 to 1107.   As Padoa Schioppa points out, the case from 1107 in Rome reached a new stage for the role of juridical learning in legal practice.[16]  The advocates in the case explicitly or tacitly cited Roman law texts almost a dozen times in the minutes of the proceedings. 

Padoa Schioppa noted that Roman law did not always win the day in these early cases.  Its standing was not yet preeminent.  In a dispute held before two delegated judges of the Countess Matilda of Canossa in 1098 between the monastery of San Prospero in Reggio Emilia and certain laymen “de Vallibus,” the monks were told that they must submit themselves to a trial by battle.  The monastery’s advocate displayed royal charters and cited Justinian’s Institutes and Codex in which gifts from the imperial home were always considered secure.   He also put forward many other “optimae allegationes.”  To no avail.  The monks were told to prepare for the ordeal.  The trial by battle was a disaster.  The laymen’s champion threw down a woman’s glove on the monks’ champion’s head maliciously and contrary to all the rules of proper behavior.   Laymen intervened in the fight and attacked the monks and their champions.  Matilda’s judges were at a loss and decided that a decision could not be rendered.[17]   Although customary norms trumped Roman law on this occasion, the ordeal as a mode of proof was fast disappearing in Italy.  The ordo iudiciarius was quickly taking its place, particularly in ecclesiastical courts.[18]   We have a number of papal letters in the mid-twelfth century that objected to clerics’ being subjected to procedures other than those dictated by the ordo iudiciarius.[19]              

            It should not surprise us that ecclesiastical courts would use Roman law.  Popes began to insert Roman law texts into their decretals in the 1120’s.  The earliest example I know of is a letter of Pope Calixtus II in 1123 in which the pope (or his curial staff) cited a constitution of the Emperor Constantine to justify the rights of people to make wills.[20]  The papal use of Roman law as an authoritative norm is not a remarkable or unusual fact for the early twelfth century.[21]  Secular law and Roman law were rife in canonical collections before Gratian.  Churchmen were never reluctant to bring secular law to bear on ecclesiastical legal problems in both ecclesiastical and secular courts.   A very rough piece of evidence to justify this statement can be gleaned from Linda Fowler-Magerl’s Clavis canonum.  She has listed secular and Roman laws under one rubric in her list of chapters ― and her list contains many repeated canons present in many collections ― but the numbers are still significant:  by her count there are 3967 secular legal texts in pre-Gratian collections.[22]   Consequently, although the evidence is sparse from the ninth to the beginning of the twelfth century, we should not be surprised that  advocates in ecclesiastical courts cited and used Roman law and other pieces of secular legislation.

Chris Wickham took a different route from Ficker’s in his recent study of twelfth-century central Italian court practices.[23]  Although his study is based on substantial unpublished and published archival materials, Wickham printed only small swatches of text in his notes and no complete texts.  Consequently, although Wickham developed a number of theses about how the courts of Central Italy used Roman law (or more significantly did not use Roman law or canon law in their decisions) during the twelfth century, because he presents so few texts to justify his generalizations, his conclusions about the use of Roman law are not convincing.[24]

Wickham argues that there were differences among the various urban centers in their use of Roman law in their judicial proceedings.    However, his conclusions are based upon evidence that is ex silentio: when a court decision did not cite Roman or canon law, then he concludes legal norms were not used by the judges when they decided cases.  His methodology is flawed because court decisions, whether ecclesiastical or secular, only rarely cited the legal texts upon which the judges or arbiters based their judgments in the first half of the twelfth century and almost never in the second half.   Unlike modern American or English court decisions in which courts cite precedents supporting their holdings, medieval secular and ecclesiastical decisions did so only rarely. 

Wickham’s study has another weakness.  He has a shaky grasp of procedure and not much knowledge about the enormous influence of Roman law on secular and ecclesiastical institutions in the first half of the twelfth century.[25]  He thinks that some courts ignore legal norms altogether and that Roman law was just an abstract science, “as divorced from practical knowledge as any Parisian theological treatise.” [26]  He argues that in many cases judges decided disputes on the facts of the case and common sense rather than on the law as late as the end of the twelfth century.[27]  Particularly startling is his assertion that “texts dealing with practical forensic issues” (i.e. the ordo iudiciarius) were rare in Italy.[28]    A glance at Linda Fowler-Magerl’s list of procedural treatises produced during the twelfth century would have quickly disabused him of that idea.[29]  Jurists began to write procedural treatises in the second half of the eleventh century.  This genre became very important in the twelfth century.  When the papal chancellor, Haimeric, asked the leading teacher of Roman law in Bologna, Bulgarus, for a treatise on procedure in the 1130s, he did so for practical reasons, not because of intellectual curiosity.[30]  Wickham does not seem to know about this very important early text.  Although many of these treatises are lost, many manuscripts have survived.  The canonists quickly followed in Bulgarus’ footsteps and wrote many procedural tracts.  As he expanded his Decretum in the 1130’s, Gratian emphasized procedure, often using Roman law to establish procedural principles in his first causae. 

We would have a much better idea about how advocates used Roman law in the courtroom if we had the minutes of the proceedings.   These courtroom minutes would have preserved the advocates’ arguments in court.  Padoa Schioppa’s conclusions about why these “memorie” have not survived are still as valid.[31]    He noted that “we should not be surprised by the fact that these documents (memorie) <containing the arguments of the parties> redacted by one of the parties or by their command are quite rare.”[32]   The victorious party might find the oral and written arguments useful in the future only if the decision had not definitively settled the dispute.[33]  For most court decisions litigants were probably satisfied to keep a copy of the final judgment in their archives and not the minutes.

We do have some rare examples of court cases in which the arguments of the advocates are recorded.  The case that we will discuss below is a splendid example.  We have another window into the clamor of the courtroom and clash of litigants in the courtroom in the first half of the twelfth century that has been too often overlooked.  In Causa 13 of his Decretum, which may have been drafted as early as the 1120s, Gratian constructed an elaborate courtroom scene in which the advocates put forward arguments that were replete with biblical, literary, and legal allegations.[34]  Whether Gratian’s courtroom scene reflects an actual case or not, his real or imagined description of the testy and acrimonious exchanges between the litigants is undoubtedly typical of advocates’ rhetorical maneuverings and arguments in the first half of the twelfth century.[35]


Siena v. Arezzo 1125

 An early and unusual example of a papal document that included legal arguments of the advocates is a decision of Pope Honorius II in 1125.   The bishops of Siena and Arezzo had been litigating over 18 parishes located within the diocese of Siena for years.  Since the judgment granted possession to the Aretines but left open questions of “proprietates” (rights or ownership) that the Siena might claim over the parishes, the pope, probably at the request of one of the litigants, committed the arguments and the decision  to writing (carta et atramentum, i.e. parchment and ink).[36]   Honorius’ letter was first published by Pflugk-Harttung.[37]  The pope wrote to Bishop Guido of Arezzo to document the decision that his papal judges rendered in his favor against Bishop Gualfredus of Siena.   At issue were 18 parishes over which both bishops claimed jurisdiction.  The report of the case is very unusual because the letter contains the arguments of the advocates and the decision of the six judges who heard the case ― i.e. the minutes of the proceedings.  The tone of the letter was set by the arenga.  It declared that the unity of religion and a love of justice demanded that the commands of the law should be obeyed:  to live honestly and to give each person their due.   Those sentiments and language were taken directly out of Justinian’s Institutes or Digest.[38] 

            The trial had begun under Pope Calixtus II before Christmas. The pope became ill and died.  Although the new pope and his cardinals tried to find a compromise, they had no success.  Honorius postponed the proceedings.[39]  The delay gave the two bishops time to send learned lawyers (legis periti) and advocates to the Lateran for the trial.  The Aretines opened their arguments with a slew of papal and secular documents that supported their claims.  They produced documents from Liutprand, the Lombard king (712-744), Pope Stephen (768-772), Charlemagne, and Pope Victor  (1055-1057 or 1086-1087).   These documents proved, they alleged, that the parishes were established through the preaching of St. Donatus of Arezzo. The dispute arose because, at an unspecified time, a judge named Godobertus, who had been killed by the Aretines,  gave the Sienese the cause to take possession of these churches that were located within the diocese of Siena.  The document stated that rights to the parishes were investigated during the reign of King Liutprand when the testimony of 70 clerics and honest laymen was gathered. [40]  This testimony evidently confirmed the Aretine claim that the parishes had been long in their possession.[41]   

            The advocates for the Sienese countered with their own dossier of materials.  They claimed to have charters from Pope Leo IV (847-855) and the Emperor Ludwig; however they did not produce them.  They did produce a letter of Pope Nicolas II (1058-1061) that they read in the papal curia.   Nicholas had decreed in a synod that the pope had invested the bishop of Siena with the 18 disputed parishes until the next synod when the claims of the Aretines could be considered.  They claimed that Arnaldus of Arezzo refused to attend the hearing.  The advocates then recited a charter confirming their investiture of the 18 churches issued by Pope Calixtus II.[42]  

            Both sides then turned to legal texts to support their case.  The Aretines  cited three imperial constitutions.  The first declared that the emperor could not revoke his judgment or the sentences of his predecessors.[43]   With a maxim that still remains valid today, the second affirmed that judicial decisions must be preserved:  “Rebus iudicatis standum est”.   Cicero used the phrase in his speech defending  Aulus Cluentius, it migrated into an imperial Roman statute, and two thousand years later, it still retains its place among the maxims of law. [44]  The Aretines cited a third constitution that  rescripts cannot be admitted in a matter that has been decided by a court.[45]  The Aretine argument was simple and straightforward:  what had been decided in the eighth and ninth centuries could not be undone.

            The Sienese countered with Roman law texts that supported their contention that they had rights to the parishes, held possession of them, and had been violently dispossessed by the Aretines.   When they were dispossessed is not clear.  These Roman norms, however, destroyed the Aretine case.  The Sienese cited a statute of the Emperors Valerius and Arcadius (389) that  if people seized a person’s property before a judgment of the court had been rendered,  they would lose all title claims as well as possession of the property.[46]  The second citation was from Book 48 of the Digest.  The third part of the Digest  (Digestum novum) had been circulating in Italy since ca. 1100 and was now brought to bear on an issue before the papal curia.[47]  The reference was very vague, but the citation to the text of the Digest was exact.   The passage contained an elegant definition of force,“vis.”  The emperor declared, “do you think that force is only defined by the wounding of men?   Force is whenever someone seeks that what is owed to him outside of the courtroom.”[48]

            The assessors who were assisting the judges in the courtroom became frustrated by the arguments of both parties.   The advocates for the parties, they noted,  alternated between putting forward arguments about possession and then about rights which led only to confusion in the courtroom.  Both parties were ordered to stick to the issue of possession.[49]    Assessors were officials in the courts of Rome who gave non-binding legal advice to the judges.[50]   This papal letter is the earliest documented use of an assessor in the papal curia.  It is further evidence of the influence of Roman law on curial practices in the early twelfth century.

            The bishop of Siena immediately broke with courtroom decorum and shouted that he wanted the judgment of Pope Calixtus put into effect: ten parishes that had been invested and eight more should be.[51]    Bishop Guido countered with two sophisticated arguments based on Roman law, but, if we accept the evidence of  Honorius’s letter, did not cite any specific texts.  First, he pointed out that Pope Nicolas’s legate had only invested two parishes “corporaliter.”  This fact is known through the testimony of the Sienese witnesses.  Second,  since the parishes were not in his possession, the bishop cannot ask for their restitution.  A legitimate restitution can only be one in which the prior legal state is restored.[52]  Roman law defined lawful possession has one that had been bestowed “corporaliter” or “possessio in corpore.”  This type of possession was not ownership (proprietas, which can mean ownership or more commonly right to property).[53]  The Aretine bishop made an excellent legal point:  the only restitution that is legitimate is, restitution to an earlier legal status.[54]

            The Sienese advocates were quick to employ arguments that used the norms taken from the Roman law of possession:  since Pope Nicolas’ nuncio had granted possession of  two of the parishes, he had granted them all.[55]  Their advocates probably cited or had in mind a passage from the Digest that the Aretines would quickly demonstrate could not be used to support their argument.[56]

            The Aretine closing arguments were detailed, Roman, and brutal.  They began with two citations to the Digestum novum.  Possession can not be gained with only the intent to possess if the intent is not preceded by “natural possession (naturalis possessio).”[57]  Natural possession was the simple possession or holding of property without ownership.  It was, however, a necessary prelude to claiming possession.[58]   In one of the few errors they made in their citations, Aretine advocates made the same point with a second text from the Digest.[59]

            The Sienese attempted a counter offensive with two more citations from the Digest.  They cited an excerpt from the Roman jurisconsult Paul that bodily possession and touch was not necessary for possession.[60]  To justify their claim that investiture of two parishes extended to the other sixteen, they turned to another text of Paul’s that, at first glance, seems to support their case:  One must not have to enter every part of a property in order to claim possession of the entire estate.[61]  The Aretines, however, pointed out the Paul’s text described taking possession of a contiguous piece of property, not scattered parcels.[62]

            The court then recessed for an unspecified time.  When it reconvened the Aretine’s petitioned the court that, after having given a security deposit, they should have the parishes returned to them.  They cited a statute  of Justinian supporting their contention:[63]

If, anyone, however, should possess property, not by force, but through a judicial decision, if perchance the prior absent possessor who having been summoned does not respond, the possessor, like others who possess property, shall be permitted, within a year, to take the said property if he presents himself, and offers security for the conduct of the case and promises to obey the decision of the court.

The Sienese jumped on the Aretine allegation and repeated an argument they had made earlier.  Arnarldus, the bishop of Arezzo, was contumacious, did not give security, and did not appear in court as Pope Nicolas had ordered.[64]  This time, however, the Aretines were prepared with final and clinching argument from Justinian’s Codex with a letter that Justinian wrote to Pope John II.  Comparing the bishop’s relationship to his church in Arezzo to a procurator or servant or other representatives of the owner of property, Justinian had declared that if the representative had acted with negligence or with fraud, this malfeasance would not injury the property rights of the owner.[65]

            That concluded the judicial debate.  The curial judges asked each party if they had new evidence to present and then examined the arguments and allegations that the parties had put forward.  After having taken the oath of calumny by swearing on the Gospels, the judges  rendered their decision.[66]  There were six judges, who were led by Ferrucius, Primicerius of the judges of the Lateran Palace.[67]  With the consent of the other judges,  Ferrucius first dealt with the issue of possession.  The decision was a triumph for the Aretines.  Gualfredus, the bishop of Siena, was ordered to restore possession of sixteen parishes to Guido, bishop of Arezzo and his church.  If the other two parishes were in Sienese possession, Gualfredus was to guarantee that the Aretines would be able to take possession of them.[68]  However, the triumph of the Aretines was not complete.  In order that the church of Arezzo did not escape judgment on the issue of rights to the parishes, Bishop Guido of Arezzo was ordered to give security immediately  that he would submit to the court on the matter of property rights.[69]   Ferrucius’ judgment was incorporated into Honorius’ letter.  For his part, Honorius then declared that he, with the counsel of his cardinals and bishops confirmed Ferrucius’ sentence.  The decretal letter  was endorsed by Haimeric, a friend of the Roman jurist, Bulgarus, from whom he had received the ordo iudiciarius  that I mentioned earlier.[70] 

            The relationship between the Pope Honorius, the Chancellor Haimeric, and Bulgarus has generated much speculation.  All three have been associated with the city of Bologna.  Some scholars have even placed Honorius and Haimeric in the same Bolognese church where they were thought to be canons regular.[71]  Others have doubted that one or the other was a canon regular.[72]  Perhaps, an exact location is not necessary.  All three may have had roots in Emilia-Romagna.  Haimeric must have had a connection with of some kind with the teaching of Roman law in Bologna to have become friends with Bulgarus.[73]  What cannot be doubted is the sophisticated use of Roman law in the papal curia by 1125, the year in which this case between Arezzo and Siena was decided.

            Scholars have differed over what the evidence provided by this case proves.  Hermann Kantorowicz observed that the trial demonstrated that Haimeric had learned “sufficient Roman law to decide an intricate cause with its help.”[74]  Anders Winroth objected that the case proved very little about Haimeric’s legal learning.  The case did demonstrate that there was a “greater currency of Roman law in Italy at this time.”  Winroth also concluded that it did not provide evidence for Bulgarus’ knowledge of Roman law since none of the citations in the case appear in Bulgarus’ tract that he sent to Haimeric.[75]  Winroth is right that the case proves nothing about Haimeric’s learning and Bulgarus’ knowledge of Roman law in 1125, but his observation that the eleven Roman law citations in the case do not appear in Bulgarus’ tract on procedure is besides the point.  Bulgarus’ tract dealt with issues of procedure not with problems of possession and property.  There would have been no reason for Bulgarus to cite these texts in his tract.   However, if Bulgarus’ influence cannot be detected in Honorius’ decretal, I have argued that within eight years to ten years a papal decretal of Innocent II did cite Bulgarus’ tract.[76]

            All this leads to the question:  what does the evidence in this papal letter prove?  Three major conclusions can be drawn from the document.  First, the advocates for both Siena and Arezzo had very good training and knowledge of Roman law.  Their use of the Digest is particularly impressive.  Whoever the assessor was who took the minutes of the trial and whoever drafted the decretal also knew Roman law.  The reference to Justinian’s Institutes at the beginning of the decretal set the tone for the entire text.  The references to possession “corporaliter” and the legitimate restitution of prior possession demonstrates that the assessor knew Roman legal principles.  Second, the judges did not decide this case on the basis of fact but according to Roman legal principles.  The advocates did not make their arguments to a panel of semi-literate judges who knew no Roman law.  Although the judges did have the assistance of assessors who knew Roman law ― this fact is underlined by the decretal’s evidence that it was the assessors who ordered the parties to restrict themselves to issues of possession and not mix property rights with possession ― the judges, perhaps with the assessors’ help, rendered a decision that conformed more or less to the principles of Roman law that were presented in the courtroom.  There are a few facts that we would like to know to understand the legal situation completely, e.g. how long had the Sienese held the parishes and which parishes they held;  what exactly was the Aretine claim to possess them (among others).  However, the decision was congruent with the principles of law and with the facts as they were presented in the decretal.   The third conclusion is perhaps the most important.  By 1125 advocates, assessors in the papal curia, and perhaps even papal judges had extensive training in Roman law.  The arguments of the advocates were subtle and demonstrated significant knowledge of Roman law.  They could have gotten that training only in a law school.  One does not find one’s way around in the Digest or the Codex with home schooling.  The only place we know that Roman law was taught in the first half of the twelfth century was Bologna.  Consequently, the Studium at Bologna must have been flourishing before 1125.

            In fact advocates had been studying Roman law long before 1125.  Another document printed by Ficker and analyzed by Padoa Schioppa offers evidence of advocates’ constructing sophisticated arguments about property disputes using Roman law during the pontificate of Pope Pascal II.[77]  In a hearing before Primicerius Ferrucius, who will preside over the 1125 case that we have just discussed, the two litigants cited the Codex, and, most likely although not with certainty, the Institutes and Digest for a total of a half dozen citations to Roman law.[78]  The document is not, however, a judgment of the court  but only the arguments put forward by each side.  In form it is only the minutes of a court hearing and not the resolution of the dispute.  In other words it is the same type of document that we have in the first section of Honorius’ decretal of 1125.  One might speculate that the document  might have been later included in a decision rendered in the papal curia and then sent out as a papal decretal under Pascal’s name, but there is no evidence for that conjecture.

            There are other questions that Honorius’ decretal of  1125 raises.  Its form is unique.  I know of no other papal decretal from this period or later that includes so much of the argumentation that preceded the decision.  Later decretals will consist of the arenga, a short description of the case, and the judgment of the court.  The arguments of the advocates or the authorities upon which the judges rendered their decision are only included in extremely abbreviated form.  Two copies of the letter are in the Cathedral Chapter Library in Arezzo.  One copy contains the decision without the argumentation of the advocates.  The other copy contains the entire text that I have discussed and that Pflugk-Harttung printed.[79]  The complete text, however, is without doubt a product of the Roman curia and not an ex parte draft of a member of the Aretine episcopal household.  Did the papal chancellery offer litigants minutes of the court proceedings?  If the chancellery did, it was a practice that seems to have quickly fallen into abeyance.

                Chris Wickham has argued that the style of citing Roman law such as is found in this decretal and in other texts, without the citations to titles of the Digest and the Codex as is common in later glosses and commentaries, is evidence of another school of law outside Bologna with another system of citation. [80]  This mode of citation is not tied to schools but to genres and to a time in which a system of citation had not yet been established.  Gratian sometimes used exactly the same method of citation in his Decretum when he cited Roman law texts in his dicta.[81]  In the canonistic literature of the period papal letters and the Church Fathers are often cited with only their names as well.

            Finally, to return to the question about Prava autem consuetudo that Robert Somerville asked thirty years ago that I discussed at the beginning of this essay.  Does this papal decretal, so laden with sophisticated arguments of Roman law, in a courtroom presided over by Chancellor Haimeric who would continue be to chancellor when Prava autem consuetudo was promulgated and re-promulgated at the beginning, middle, and end of Pope Innocent II’s pontificate, offer any clues as to why Gratian and the canonists completely rejected the conciliar canon?  The most obvious clue is a fact supported by Honorius’s decretal:  Roman law was an indispensible tool in ecclesiastical courts by the 1120’s.  During the 1130’s when Gratian added most of his texts of Roman law to his Decretum, he added Roman law not because he was interested in the jurisprudence of Roman law as an antiquarian, but because it was essential tool in the canonical courts.[82]  We may speculate endlessly about why Innocent II attempted to forbid monks and canons regular from studying Roman law and who else in the curia supported his campaign.  On that point,  I have no suggestions that would go beyond what Somerville wrote in his essay.[83]

What this decretal letter of Honorius II demonstrates is that Roman law brought clarity and precision into the courtroom, not, as Prava autem consuetudo contended, confusion and impiety.  Pope Innocent II, Haimeric, and the judges in the Roman curia must of known that was true.  So, all of Robert Somerville’s questions about Prava autem consuetudo can still not be answered.  They remain, however, excellent ― which is characteristic of all his scholarship:  sound, cautious, and anchored in the texts.


[1]  Robert Somerville, “Pope Innocent II and the Study of Roman Law,”  Revue des Études islamiques  44 (1976) 105-114, reprinted in Papcy, Councils and Canon Law in the 11th-12th Centuries  (Collected Studies 312; Aldershot: Variorum, 1990).

[2]  Decrees of the Ecumenical Councils, 1: Nicaea I-Lateran V, ed.  Norman P.  Tanner (2 Volumes;  London-Washington, D.C.: Sheed & Ward and Georgetown University Press, 1990)  198-199 at 198:  Prava autem consuetudo prout accepimus et detestabilis inolevit quoniam monachi et regulares canonici post susceptum habitum et professionem factam spreta beatorum magistrorum Benedicti et Augustini regula leges temporales et medicinam gratia lucri temporalis addiscunt. Avaritiae namque flammis accensi se patronos causarum faciunt.  Avaritiae namque flammis accensi se patronos causarum faciunt. Et cum psalmodiae et hymnis vacare debeant gloriosae vocis confisi munimine allegationum suarum varietate iustum et iniustum fas nefas que confundunt.

[3] Criticism of lawyers was a common theme in medieval writings; see James A. Brundage, The Medieval Origins of the Legal Profession:  Canonists, Civilians, and Courts (Chicago-London: University of Chicago Press, 2008)  125, 215-217.

[4] Somerville, “Pope Innocent II”  106;  the canon also appeared among  the decrees of Reims 1131 and Pisa 1135.  Atria Larson has noted that the early twelfth-century papacy issued identical or similar canons at councils fairly regularly; see her essay “Early Stages pf Gratian’s Decretum and the Second Lateran Council:  A Reconsideration,”  Bulletin of Medieval Canon Law 27 (2007) 21-56 at 37-39.

[5] Decrees of the Ecumenical Councils :  Attestantur vero imperiales constitutiones absurdum immo et opprobrium esse clericis si peritos se velint disceptationum esse forensium. Huiusmodi temeratores graviter feriendos apostolica auctoritate decernimus.  Cod. 1.3.40: “Absurdum etenim clericis est, immo etiam opprobrium, si peritos se velint disceptationum esse forensium: feriendis temeratoribus huius sanctionis poena quinquaginta librarum auri.”

[6] Most likely, however, the person who drafted the conciliar canon took the phrase from the sermon because  gloriosae vocis confisi munimine,” in the sermon and the in the papal conciliar canon is placed before the description of the lawyer’s work, both good and bad, reversing the order of the Codex.

[7]PL 144.563: “Si consulamus adjutorium [male auditorium] jurisperitorum, primum capituli propositi verbum sic describitur: postulare est desiderium suum, vel amici sui in jure apud eum, qui jurisdictioni praeest, exponere, vel alterius desiderio contradicere. Actus iste publicus est, et est officium advocatorum, qui gloriosae vocis confisi munimine, lapsa erigunt, fatigata reparant, nec minus provident humano generi quam si clypeis et thoracibus sese patriamque defendant.”  See Damian’s Sermons see the excellent essay by Kennerly M. Woody, “Peter Damian, St.Dictionary of the Middle Ages 9.508-509.  Woody lists all the spurious sermons in Migne.

[8]  The Latin word “munimem” generally meant defense, protection, or fortification.  In early medieval legal texts it was used to describe the evidentiary materials  put forward in court cases by advocates to  defend the rights of their clients.  Damian has this meaning of the word in mind when he thinks about purpose of the advocate’s voice in the courtroom.  There is no word in English that captures this meaning.  Perhaps in this context “munimem” should be rendered “force and weight.”

[9]  Cod. 2.7.14: “ Imperatores Leo, Anthemius. Advocati, qui dirimunt ambigua fata causarum suaeque defensionis viribus in rebus saepe publicis ac privatis lapsa erigunt, fatigata reparant, non minus provident humano generi, quam si proeliis atque vulneribus patriam parentesque salvarent.  Nec enim solos nostro imperio militare credimus illos, qui gladiis clupeis et thoracibus nituntur, sed etiam advocatos: militant namque causarum patroni, qui gloriosae vocis confisi munimine laborantium spem vitam et posteros defendunt.”   Dated 469.  See Brundage, Legal Profession 605 sub numero 2.7.14.

[10]  A version of the canon was inserted, evidently, into a manuscript of Ivo of Chartres’ Panormia, and printed by Migne, PL 161.1342, but with no indication as to which council it belonged.

[11]  John of Salisbury, Policraticus:  Of the Frivolities of Courtiers and the Footprints of Philosophers, ed. And trans. Cary Nederman (Cambridge Texts in the History of Political Thought; Cambridge-New York:  Cambridge University Press, 1990) Book 6, chapter one, p. 104: who does not quite capture the meaning of the passage.  The Latin text reads:  “sed et patroni causarum, qui gloriosae vocis confisi munimine, lapsa erigunt, fatigata reparant; nec minus provident humano generi, quam si laborantium vitam, spem, posterosque, armorum praesidio ab hostibus tuerentur.”  Because of the order of the phrases, John must have used the sermon and not the Codex.

[12] Most recently see Anders Winroth, The Making of Gratian’s Decretum  (Cambridge Studies in Medieval Life and Thought, 4th Series, 49;  Cambridge: Cambridge University Press, 2000) 146-174 and his essay “Neither Slave nor Free:  Theology and Law in Gratian’s Thoughts on the Definition of Marriage and Unfree Persons,” Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington, edd. Wolfgang P. Müller and Mary Sommar (Washington, D.C.: Catholic University Press of America, 2006)  97-109.  See the two recent essays by Somerville’s former Ph.D. students in Bishops, Texts and the Use of Canon Law around 1100: Essays in Honour of Martin Brett, ed. Bruce Brasington and Kathleen Cushing  (Church, Faith and Culture in the Medieval West;  Aldershot-Burlington: Ashgate, 2007): Greta Austin, “Secular Law in the Collectio duodecim partium and Burchard’s Decretum” 29-44 and Anders Winroth, “Roman Law in Gratian and the Panormia” 183-190. 

[13] Kenneth PenningtonAThe Birth of the Ius commune:  King Roger II=s Legislation,@ Rivista internazionale del diritto comune 17 (2006) 1-40  and AThe >Big Bang=: Roman Law in the Early Twelfth-Century,@ Rivista internazionale di diritto comune 18 (2007) 43-70,

[14]  Forschungen zur Reichs- und Rechtsgeschichte Italiens (4 vols. Innsbruck:  Wagner, 1868-1874, reprinted Aalen:  Scientia Verlag, 1961).

[15] Ficker, Forschungen  vol. 4, no. 67, p. 91-93,  no. 73, p. 99-100, no. 91, p.135-136, and  no. 92, p. 136-138.  Ficker. discussed Roman law in his cases in volume three, pp. 298-305.

[16] Padoa Schioppa, “Il ruolo” 276.

[17] Ibid. 274-275; Ficker, Forschungen 135-136.

[18] Another possible example of laymen trying to force the ordeal on an ecclesiastical might be

[19] See my discussion in The Prince and the Law 1200-1600:  Sovereignty and Rights in the Western legal Tradition  (Berkeley-Los Angeles:  University of California Press, 1993)  136-142 and a few more examples in my “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,”  Rivista internazionale di diritto comune 9 (1998) 9-47 at 14-17.

[20] JL 7075a,  July 10, 1123, Bullaire du pape Calixte II 1119-1124, ed. Ulysse Robert (2 vols. Paris:  Alphonse Picard, 1891) 2.214[410]:  “Sic enim et magnus ille Constantinus imperator legum suarum promulgatione constituit dicens: ‘Nihil est quod magis hominibus debeatur, quam supremae voluntatis, postquam iam aliud velle non possunt, liber sit stilus et licitum quod iterum non redit arbitrium’.”  The text is Cod. 1.2.1.


[21] For the intensive use of Roman law in the legislation of King Roger II (ca. 1140) in Sicily, see my AThe Normans in Palermo: King Roger II=s Legislation,@ The Haskins Society Journal 18 (2006) 140-167 and  AThe Birth of the Ius commune:  King Roger II=s Legislation,@ Rivista internazionale del diritto comune 17 (2006) 1-40.


[22] A search done electronically with Clavis canonum: Selected Canon Law Collections Before 1140:  Access with Data Processing (Monumenta Germaniae historica, Hilfsmittel 21;  Hannover:  Hahnsche Buchhandlung, 2005).

[23]  Chris Wickham, Courts and Conflict in Twelfth-Century Tuscany (Oxford:  Oxford University Press, 2003).

[24] Wickham, Courts and Conflict  171-172, 235-238 and passim.

[25]  See my essays AThe Birth of the Ius commune”  and ABig Bang”.

[26] Wickham, Courts and Conflict  4.

[27] Wickham, Courts and Conflict 236-237;  also 91, 100, 172 and passim.

[28] For a rather polemical discussion of the thesis that the study of  law was divorced from “practical forensic issues” in the medieval period, see my essay "Learned Law, Droit Savant, Gelehrtes Recht: The Tyranny of a Concept," Rivista internazionale di diritto comune 5 (1994) 197-209 and Syracuse Journal of International Law and Commerce 20 (1994) 205-215 and the many books and essays of Manlio Bellomo, beginning with, most conveniently, Manlio Bellomo, The Common Legal Past of Europe, 1000-1800 (Washington, D.C.:  Catholic University Press of America, 1995).

[29]  Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius: Begriff und Literaturgattung (Ius commune, Texte und Monographien, 19; Repertorien zur Frühzeit der gelehrten Rechte;  Frankfurt am Main: Vittorio Klostermann, 1984) and her Ordines iudiciarii and Libelli de ordine iudiciorum (from the Middle of the Twelfth  to the End of the Fifteenth Century) (Typologie des sources du moyen âge occidental, 63; Turnhout:  Brepols, 1994) .  Bruce Brasington, “Crimina que episcopis inpingere dicis:  The Contribution of the Collectio Polycarpus to an Early Ordo iudiciorum,”  Readers, Texts, and Compilers in the Earlier Middle Ages: Studies in Medieval Canon Law in Honour of Linda Fowler-Magerl, ed. Martin Brett and Kathleen Cushing  (Church, Faith and Culture in the Medieval West.  Farnham-Burlington: Ashgate Publishing, 2009) has edited and analyzed a short treatise on witnesses produced in Italy mid-twelfth century which is one example of many such treatises that were written by the canonists and the civilians.  The jurist’s citation of a canon from Polycarpus’ canonical collection instead of from Gratian is a good piece of evidence that it was written at a time when Gratian’s Decretum had not yet swept the field.

[30] On the date of Bulgarus’ treatise, see my essay “Big Bang” 48-52.

[31] Antonio Padoa Schioppa, “Il ruolo della cultura giuridica in alcuni atti giudiziari italiani dei secoli XI e XII,”   Nuova rivista storica 64 (1980) 265-289 at 284-289, where he outlines the various reasons why court decisions do not contain the allegations of legal norms.

[32] Padoa Schioppa, “Il ruolo” 284.

[33]  Ibid. 285.

[34] Melodie Harris Eichbauer, “St. Gall Stiftsbibliothek 673 and the Early Redactions of Gratian’s Decretum,”  Bulletin of Medieval Canon Law 27 (2007) 105-139 at 117-123, has argued that Causa 13 may represent one of the first Causae that Gratian drafted.

[35]  See Frederick S. Paxton,  “Gratian’s Thirteenth Case and the Composition of the Decretum,” Proceedings of the Eleventh International Congress of Medieval Canon Law, Catania, 30 July-6 August 2000, ed. Manlio Bellomo and Orazio Condorelli (Monumenta iuris canonici, Series C: Subsidia, 12;  Città del Vaticano:  Biblioteca Apostolica Vaticana, 2006) 119-137.  A translation of the case may be found at:

[36] J. von Pflugk-Harttung, Acta pontificum romanorum inedita, 2: Urkunden der Päpste vom Jahre c. 97 bis zum Jahre 1197 (Stuttgart:  Verlag von W. Kohlhammer, 1884) 252-257 at  252: “Ne igitur controversia, inter Senensem et Aretinum episcopos de decem et octo plebibus orta, recolendi obumbretur desuetudine, ad presentium et posterorum clariorem evidentiam rei geste ordinem carte et atramento duximus committendum.”

[37] J. von Pflugk-Harttung, Acta  252-257.

[38]  Dig. 1.1.10 and Institutes 1.1.3; See my “Big Bang” 50-51 for the same Roman law citation in letters of Pope Innocent II dated to 1133-1136 and 1137 (JL 7696 and JL 7864).

[39] Pflugk-Harttung, Acta 253: “Cumque protraheretur inter vos per dies aliquot altercatio et nos una cum fratribus nostris, episcopis et cardinalibus, ad pacem inter vos et concordiam componendam summopere studium preberemus, interveniente ipsius domni nostri obitu et, me in curam et administrationem sedis apostolice, disponente divina gratia, evocato, maiori, ut in talibus fieri assolet, sollicitudine occupati, negotium hoc usque ad mediam quadragesimam subsequentem distulimus.”

[40] It was an old tradition in canonical norms that 70 or 72 witnesses constituted a proof in serious ecclesiastical matters, see C.2 q.4 c.2 and c.3 (from Pseudo-Isidore and Pope Leo IV) that were transmitted through a number of canonical collections.

[41] Pflugk-Harttung, Acta 254:  “tu frater Guido, Aretine episcope, allegasti, parrochiam illam a beato Donato per predicationis fuisse offitium acquisitam, et a tuis predecessoribus per longa tempora quiete possessam, sed a Senensibus occasione mortis Godoberti iudicis, qui ab Aretinis occisus est, occupatam fuisse et, quia sita erat in Senensi territorio, vendicatam. Retulisti etiam, qualiter postmodum iussu Liuprandi regis ab Ambrosio, dispensatore domus sue, causa fuerit inquisita, et per septuaginta presbiteros et honestos laicos eiusdem parrochie antiquissima possessio fuerit iurata, et ab episcopis Tuscie atque a Liuprando rege in vico sancti Genesii honeste fuerit decisa, a papa Stephano firmata et a Karolo imperatore legaliter in Senensi civitate sopita. Insuper Aretinam muniebas ecclesiam decisione Victoris pape, qui in eadem parrochia inquisitionis causa per octo dies moratus est et Senensibus perpetuum silentium de eadem lite imposuit, Leonis, quoque Romani pontificis, Adriani, Paschalis, Stephani, Alexandri et Paschalis qui omnia privilegia eiusdem Aretine ecclesie confirmaverunt munimentis, preceptis etiam et confirmationibus imperatorum Karoli magni, Lodoici, Lotharii, Ottonis, Berengarii, Chonradi et Heinrici easdem plebes pertinere Aretine ecclesie affirmasti.” 

[42] Ibid. “Contra vero Senensis episcopus  affirmavit, easdem decem et octo plebes iuris esse Senensis ecclesie, et scriptum Leonis quarti pape ac Lodoici imperatoris se dixit habere. Nikolai quoque secundi pape scriptum  in medium protulit, in quo continebatur, Senensem episcopum fuisse in sinodo ab ipso papa de illis decem et octo ecclesiis, salva querela episcopi Aretini, usque ad aliam synodum investitum, eo quod Arnaldus Aretinus, vocatus ad synodum, venire comtempsit, et scriptum investitionis a predecessore nostro, sancte memorie Calixto secundo papa, factum fecit coram fratribus recitari.”


[43] Ibid. “Imperator Gordianus augustus Secundo:  neque suam neque decessoris sui sententiam quemquam posse revocare in dubium non venit.”  Cod.7.50.1: “Imperator Gordianus . Neque suam neque decessoris sui sententiam quemquam posse revocare in dubium non venit: nec necesse esse ab eiusmodi decreto interponere provocationem explorati iuris est.”  Pflugk-Harttung misunderstood some of these citations.  I have silently corrected his text.

[44] Ibid. “Imperator Antoninus Augustus Stellatorio.  Rebus iudicatis standum est.”  Cod. 7.52.1:  “Imperator Antoninus. Rebus quidem iudicatis standum est. Sed si probare poteris eum cui condemnatus es id quod furto amisisse videbatur recepisse, adversus iudicati agentem doli exceptione opposita tueri te poteris.”  See also Dig. “Si quis, cum esset exheredatus, pronuntiatus vel perperam sit exheredatus non esse, non repellitur: rebus enim iudicatis standum est.” See  The Speech of Cicero for Aulus Cluentius, ed. William Ramsey (Glagcow:  Glasgow University Press, 1858) 41 and Lateinische Fachausdrücke im Recht ed. Rolf Lieberwirth (Heidelberg:  C.F. Müller Juristischer Verlag, 1986) 50.

[45] Ibid. “Imperator Constantinus ad Proculum:  Impetrata rescripta non placet admitti, si decise semel causae fuerint iudicilai sentientia, quam provocatio nulla suspendit.”  Cod. 7.50.3: “Imperator Constantinus . Impetrata rescripta non placet admitti, si decisae semel causae fuerint iudiciali sententia, quam provocatio nulla suspendit: sed eos, qui tale rescriptum meruerint, etiam limine iudiciorum expelli.”

[46] Ibid.: “Imperatores Valerius et Archadius augusti et Thaeodorius ad Mesianum:  Si quis in tantam furoris pervenerit audaciam, ut possessions rerum apud fiscum vel apud homines quoslibet constitutarum ante eventum iudicialis arbitrii violenter invaserit, dominus quidem constitutes possessionem quidem, quam abstulit, restituat possessori et dominum eiusdem rei amittat.”  Cod. 8.4.7: “Imperatores Valentinianus, Theodosius, Arcadius . Si quis in tantam furoris pervenit audaciam, ut possessionem rerum apud fiscum vel apud homines quoslibet constitutarum ante eventum iudicialis arbitrii violenter invaserit, dominus quidem constitutus possessionem quam abstulit restituat possessori et dominium eiusdem rei amittat.”

[47] Müller, “Recovery of Justinian’s Digest” 7.

[48] Pflugk-Harttung, Acta 253:  Pretor ait:  extat edictum divi Marci in hec verba:  optimum est ut si quia putas te habere petitiones, actionibus experiaris.  caesar dixit: ‘tu vim putas esse solum, si homines vulnerentur?  vis est et tunc, quotiens quis id, quod deberi sibi putat, non per iudices reposcit’.”  Dig.48.7.7  “Callistratus 5 de cogn. Creditores si adversus debitores suos agant, per iudicem id, quod deberi sibi putant, reposcere debent: alioquin si in rem debitoris sui intraverint id nullo concedente, divus marcus decrevit ius crediti eos non habere. verba decreti haec sunt. ‘optimum est, ut, si quas putas te habere petitiones, actionibus experiaris: interim ille in possessione debet morari, tu petitor es.’ et cum Marcianus diceret: ‘vim nullam feci.’ Caesar dixit: “tu vim putas esse solum, si homines vulnerentur? vis est et tunc, quotiens quis id, quod deberi sibi putat, non per iudicem reposcit’.”

[49] Ibid.: “Ceterum advocatis alternatim, nunc de possessione ad propnetatem, nunc deproprietate ad possessionem confusum transitum facientibus, ab assessoribus imperatum est, ut de possessione inter se disceptarent.”

[50] Cod. 1.51 and 1.52.  Dig. 1.22.

[51] Pflugk-Harttung, Acta 253:  “Senensis igitur episcopus se de decem tantum plebibus investitum et de octo esse investiendum et clarissimi viri, domni pape Calixti sententiam effectui mancipandam, protinus acclamavit.”

[52] Ibid. 253-254: “Contra tu frater, Aretine episcope, respondisti, papam Nycolaum non investivisse per legatum suum corporaliter Senensem episcopum, nisi de duabus plebibus tantum, et hoc te per relatum tibi iuramentum testium Senensium cognovisse, atque ob hoc eum illam restitutionem non debere petere asserebas eo quod non fuerit destitutus.  Est enim restitutio prioris status redintegratio legitima.”

[53] E.g. Dig.41.2.3 and  Cod. 7.32, especially 7.32.10.  See Mary G. Cheney, “ ‘Possessio/proprietas in ecclesiastical courts in mid-12th-century England,” Law and Government in Medieval England and Normandy: Essays in Honour of Sir James Holt, ed. G. Garnett and J. Hudson (Cambridge:  Cambridge University Press, 1994) 245-254.

[54] Dig. 4.1.

[55] Pflugk-Harttung, Acta 254:  “Ex adverso Senenses dicebant, se a nuntio Nicolai pape fuisse de duabus plebibus et per illas de omnibus aliis investitos.”

[56] Dig.

[57] Pflugk-Harttung, Acta 254:  “Neritius et Proculus:  Solo animo non posse nos acquirere possessionem, si non antecedat naturalis possessio.”  Dig.  “Paulus 54 ad ed. Neratius et Proculus et solo animo non posse nos adquirere possessionem, si non antecedat naturalis possessio.”

[58]  Scholars have disputed the meaning of “possessio naturalis,” see  W.W. Error! Main Document Only.Buckland,  A Text-Book of Roman Law from Augustus to Justinian (2nd Edition;  Cambridge:  Cambridge University Press, 1932) 197.

[59] Pflugk-Harttung, Acta 254: “Celsus:  Possessio nisi naturaliter comprehensa ad nos non pertinent.”  Dig.41.2.23pr.:  “Iavolenus 1 epist.  Cum heredes institui sumus, adita hereditate omnia quidem iura ad nos transeunt, possessio tamen nisi naturaliter comprehensa ad nos non pertinet.”  Gratian analyzes possession with  similar arguments about the principles that governed possession in C.3 q.1 d.p.c.2 and referred to the same sections of the Digest; see my discussion in my essay “The Big Bang” 53-56.


[60] Ibid.: “Paulus: non est enim corpore et tactu necesse apprehendere possessionem, sed etiam oculis et affectu.”  Dig. “Paulus 54 ad ed. Si iusserim venditorem procuratori rem tradere, cum ea in praesentia sit, videri mihi traditam priscus ait, idemque esse, si nummos debitorem iusserim alii dare. non est enim corpore et tactu necesse adprehendere possessionem, sed etiam oculis et affectu argumento esse eas res, quae propter magnitudinem ponderis moveri non possunt, ut columnas, nam pro traditis eas haberi, si in re praesenti consenserint: et vina tradita videri, cum claves cellae vinariae emptori traditae fuerint.”

[61] Ibid.: Idem: non oportet omnes glebas fundi circumambulare, sed sufficit quandam partem eius fundi introire.” Dig.  “Paulus 54 ad ed. Et apiscimur possessionem corpore et animo, neque per se animo aut per se corpore. quod autem diximus et corpore et animo adquirere nos debere possessionem, non utique ita accipiendum est, ut qui fundum possidere velit, omnes glebas circumambulet: sed sufficit quamlibet partem eius fundi introire, dum mente et cogitatione hac sit, uti totum fundum usque ad terminum velit possidere.”


[62] Ibid.: “quod Aretini non de discretis, sed de continuis fundis dictum fuisse, firmabant.”

[63] Ibid:Imperator Iustinianus augustus Menne prefecto pretorio:  si quis non per vim sed per sententiam iudicis eam rem detinuit, ea tamen occasione, quod absens prior possessor et ad litem vocatus minime respondit, licebit ei ad similitudinem ceterorum, qui rei dominium habent, intra annum se offerenti cautionemque suscipiende litis danti eandem rem recipere superque ea cognitionalia subire certamina.”  Cod. “Imperator Justinianus.  Sed et si quis non per vim, sed sententia iudicis eam detinuit, ea tamen occasione, quod absens prior possessor et ad litem vocatus minime respondit, licebit ei ad similitudinem ceterorum, qui rei dominium habent, intra annum se offerenti cautionemque suscipiendae litis danti eandem rem recipere superque ea cognitionalia subire certamina” (528 AD).”  This text is not a model of clarity.  Parts of my translation are interpretations.


[64] Ibid.: “Contra Senenses, Arnaldum,Aretinum episcopum, infra annum nec venisse, ncc cautionem optulisse dixerunt.”

[65] Ibid: “Imperator Iustinus augustus Iohanni pape:  sive servus sive procurator vel colonus vel inquilinus vel quispiam alius, per quem licentia est nobis possidere, corporaliter nactam possessionem cuiuscumque rei eam derelinquerit vel alii prodiderit, desidia forte vel dolo, ut locus aperiatur alii eandem possessionem detinere, nihil penitus domino preiudicium generetur, ne ex aliena malignitate alienum damnum emergat.”  Cod. 7.32.12: “Imperator Justinianus.  Ex libris sabinianis quaestionem in divinas nostri numinis aures relatam tollentes definimus, ut sive servus sive procurator vel colonus vel inquilinus vel quispiam alius, per quem licentia est nobis possidere, corporaliter nactam possessionem cuiuscumque rei eam derelinquerit vel alii prodiderit, desidia forte vel dolo, ut locus aperiatur alii eandem possessionem detinere, nihil penitus domino praeiudicium generetur, ne ex aliena malignitate alienum damnum emergat” (531-532 AD).

[66] Ibid.: “Indagatis ergo utriusque partis allegationibus et advocatis, si quid novi possent addere, diligentius inquisitis, iudices nostri, prius utrinque tactis sacrosanctis evangeliis, de calumpnia hanc in scriptis communi assensu protulerat sententiam.”   On the oath of calumny see  Brundage,  Legal Profession  28-29, 182, 286, 293-294, 433-434.

[67] Primicerius was the highest official in the late antique Roman court system and was a title adopted by the Roman papal tribunal.

[68] Pflugk-Harttung, Acta 254: “Ego Ferrucius, primicerius iudicum sacri Lateranensis palatii, consensu iudicum, scilicet Benedicti, dativi iudicis, et Guittonis,primi defensoris iudicis, et Ildicii Tiburtini et advocatorum Nykolai et Seniorilis iubeo,Gualfredum, Senensem episcopum, restitutionem facere sedecim plebium Guidoni Aretino episcopo sueque ecclesie, de duabus quoque idem iubeo, si Senensis ecclesia eas possidet, sin autem, do ecclesie Aretine et eius episcopo securum in eas possidendi ingressum.”

[69] Ibid.: “De quibus omnibus plebibus ventilatum est iudicium ante presentiam domni Honorii secundi pape et totius curie, salva Senensis ecclesie proprietatis questione. Et ad hoc, ut Aretinus episcopus non effugiat iudicium de proprietate, iubeo eum facere cautionem ad presens Senensi episcopo de suscipiendo iudicio proprietatis.”  The case did drag on.  Pope Innocent II was still dealing with the dispute at the end of his pontificate.  See Paul F. Kehr, Italia Pontificia (Berlin:  Weidmann, 1908) 3.203.


[71] See the discussion of Ian S. Robinson, The Papacy 1073-1198:  Continuity and Innovation (Cambridge Medieval Textbooks;  Cambridge:  Cambridge University Press, 1990) 68 and 215-216.

[72] Werner Maleczek, “Das Kardinalskollegium unter Innocenz II. und Anaklet II.” Archivum historiae pontificiae  19 (1981) 33.

[73] Colin Morris, The Papal Monarchy: The Western Church from 1050 to 1250.  Oxford History of the Christian Church.  Oxford: Clarendon Press, 1989) 183, asserts that Haimeric was a Frenchman.  If that were true, that fact would make his connection with Bologna and Roman law problematic.  Morris offers no evidence.

[74] Hermann Kantorwicz with William Warwick Buckland,  Studies in the Glossators of the Roman Law: Newly Discovered Writings of the Twelfth Century,  edited by Peter Weimar  (Cambridge: Cambridge University Press, 1938; reprinted Aalen: Scientia Verlag, 1969) 71.

[75] Winroth,  The Making of Gratian’s Decretum 161-162.

[76] Pennington, “The Big Bang” 49-52.

[77] Ficker, Forschungen 4.136-138 and Padoa Schioppa, “Il ruolo” 276-278.

[78] Institutes 4.6. pr., Cod. 7.39.3, Cod., Cod.,  Dig. 44.7.51, Dig., Dig. 50.17.112.  The citations to the Institutes and the Digest are verbal  but not explicit.  Consequently, they are probable but not certain.

[79] Pflugk-Harttung, Acta 255, has a very brief description of both texts.

[80] Wickham, Courts and Conflict 119. The anonymous author of the text printed by Hermann Fitting, Questiones de iuris subtilitatibus des Irnerius (Berlin: Walter de Gruyter & Co.  1894, reprinted Berlin: Walter de Gruyter, 1977) used the same method of citation.  Also, as Padoa Schioppa, “Il ruolo” 278 n.63, also speculates that this mode of citation might be a style of the Roman curia.

[81] See e.g. C.2 q.6 d.p.c.27 and c.28. 

[82] See the analysis of José Miguel Viejo-Ximémez, “El Derecho Romano “Nuevo” en el Decreto de Graciano,”  Zeitschrift der Savigny-Stiftung der Rechtsgeschichte, Kan. Abt. 88 (2002) 1-19.  Viejo-Ximémez notes (p. 1) that Gratian included 259 fragments from Justinian’s codification:  107 from the Digest, 122 from the Codex, and 30 texts from the authenticae added to the margins of the Codex.

[83] Robinson’s discussion of the importance of canons regular and monks in the eleventh- and early twelfth-century papal curia, The Papacy 210-223, could lead one to speculate about the significance of banning monks and canons regular from the courtroom  in two different ways  1. the tawdry business of the law courts sullied their religious vocation (as described in Parva autem consuetudo).  This program of “reform” was rejected by the canonists and later popes.   Or  2. It simply seems contrary to reason that  Innocent and the curia would want to hinder these clerics from making significant contributions to their monasteries and cathedral chapters.  Therefore, unless we uncover some new evidence, there is no answer that can explain their motives.  Robinson notes that of the 19 popes between 1073 and 1198, eleven were monks or canons regular and that they were very important in the papal curia.