Tag Archives: Medieval canon law

The long years of the Council of Konstanz

Once upon a time the history of church councils seemed a matter of Christian theology slowly but inevitably reaching new levels of dogmatic intricacy, either led by wise popes or marred by popes who thought more of themselves than of the Catholic church. Things get more interesting when you look at the proceedings not as a distraction to theological matters at stake but as historical events just as important as the canons and decrees finally proclaimed. One of the longest councils was the Council of Konstanz (1414-1418). Recently I was alerted to a modern representation of a chronicle showing the daily business of this medieval council. The virtual presence of this council is worth the attention of legal historians, too. In this post you will find a tour of some of the most important resources. As in my earlier post about the Fourth Lateran Council (1215) I will look also at images of this international meeting in fifteenth-century Germany, close to the modern border with Switzerland.

Five long years

Logo Konstanz Konzilstadt

Probably the most famous event of the Council of Konstanz was the trial of Jan Hus. In order to avoid too much coverage of modern memorial years I decided not to write about him here. One reason for writing here about this church council was my amusement about the tweets of Ulrich Richental, a modern incarnation of the fifteenth-century author of a chronicle about the Council of Konstanz. The tweets tell you on a day-to-day basis about events during the council, and they are directly linked to the multilingual website Konstanz Konzilstadt.

King Sigismund of the Holy Roman Empire succeeded in conveying a church council at Konstanz in a time when Western Europe had to face the presence of three popes, three because one of them, John XXIII, was a so-called antipope who resided in Bologna. Gregory II was pope in Rome and Benedict XIII reigned from Avignon. One of the problems for this council was the division between those in favour of full power over the church in the hands of a council (conciliarists), and those sticking to papal and curial power (curialists). Imagine the international crowd of ecclesiastical dignitaries and the courtiers of king Sigismund all together in a small town on the lovely Lake Constance, and you get the picture.

Cover facsimile edition of Richtental's chronicle

We can form our own picture of this council in a very literal and pictorial way thanks to the illustrated chronicle of Ulrich Richental (around 1360-1437). The famous illustrated manuscript at the Rosgartenmuseum in Konstanz is available in a modern facsimile edition [Chronik des Konzils zu Konstanz 1414–1418. Die Konstanzer Handschrift der Konzilschronik des Ulrich Richental, Jürgen Klöckler (ed.) (2nd ed., Darmstadt 2015)]. Interestingly, the list of manuscripts given in the German Wikipedia article on Ulrich Richental contains more items than the online database of the Handschriftencensus which omits two manuscripts that went missing. Some manuscripts have been digitized. This chronicle is the well from which the modern successor of Ulrich gets the information for his tweets. The tweets started only in 2016. It is safe to assume the idea for daily tweets was inspired by similar Twitter accounts and blogs for the commemoration of the First World War.

As for scholarly literature concerning the Council of Konstanz I was surprised that the online bibliography of the Regesta Imperii (accessible in German and English) for some reason lists only literature published before 2010 when you use the thesaurus search. You will have to check many titles using the various translations of the city name Konstanz to find relevant publications.

Acts and decrees

A second reason to write here about the Council of Konstanz brings us safely back to the sources legal historians will want foremost to consult, the manuscripts and archival records, and when available critical editions of the sources. Finding out about such editions for medieval councils can be daunting. On my legal history website the first section of the page concerning relevant editions for canon law deals with councils. For sound foundations I could rely here on an article by Joseph Avril, ‘Les décisions des conciles et synodes’, in: Jacques Berlioz et alii (eds.), Identifier sources et citations (Turnhout 1994) 177-189. Lately I checked for the online availability of a number of Early Modern editions of conciliar decrees and decisions, but some modern editions, too, have been digitized, too. The edition of the Acta concilii Constantientis by Heinrich Finke (ed.) (4 vols., Münster 1896-1928) has been digitized at the Internet Archive. Finke gives in the first volume materials from the preparatory phase of the council (1410-1413). It was harder to find a complete set with a single point of reference for other modern editions. The Monumenta conciliorum generalium saeculi decimi quinti, F. Palacky et alii (eds.) (4 vols., Vienna 1857-1935), with sources for the Council of Basel can be found conveniently online in Gallica. The second major edition for the Council of Basel, Concilium Basiliense. Studien und Quellen zur Geschichte des Konzils von Basel, J. Haller (ed.) (8 vols., Basel 1896-1936) has been digitized in its entirety at the Bayerische Staatsbibliothek, Munich. In the case of Basel having easy access to the editions is only the start of finding your way in a myriad of documents.

Among the participants at Konstanz were French dignitaries with more than a basic knowledge of canon law, among them cardinal Pierre D’Ailly (1350-1420), Jean Gerson (1363-1429), and cardinal Guillaume Filastre (1348-1428). Finke published a journal held by Filastre in his Forschungen und Quellen zur Geschichte des Konstanzer Konzils (Paderborn 1889; online, Internet Archive). With Francesco de Zabarella (1360-1417) we meet a great canon lawyer. In 1410 he became archbishop of Florence and year later he was created cardinal, hence his nickname Cardinalis. Zabarella died in Konstanz on September 26, 1417. Studies by Dieter Girgensohn and Thomas Morrissey have considerably enlarged our knowledge about him and his views. As a papal legate he was involved with the Council of Konstanz from the moment he was sent in 1413 as a papal legate to king Sigismund to discuss the chances for a church council.

Another canon lawyer wrote a dedicatory letter in the first printed edition of the acts of the Council of Konstanz, the Acta scitu dignissima docteque concinnata Constantiensis concilii celebratissimi (Hagenau: Gran 1500) by Hieronymus de Croaria (ca. 1460/63-1527). The Gesamtkatalog der Wiegendrucke (GW 07287) and the Incunabula Short Title Catalogue (ISTC 00800000) habitually summarize titles of works stemming from institutions and authorities. Searching in the ISTC for Concilium Constantiense yields four results. The GW has a separate page for the incunabula editions of conciliar decrees. Both the GW and the ISTC point to digitized copies of incunabula. Konrad Summenhart (1460-1502) studied in Paris and Heidelberg before becoming a professor of theology and even chancellor of the university of Tübingen. In his work Opus septipartitum de contractibus he looked both at contractual law as administered in courts as on the impact on the forum conscientiae, the personal conscience. He wrote about subjects as usury and tithes. Hieronymus de Croaria had been his colleague in Tübingen as a professor of canon law before he went to Ingolstadt. Later on he worked also as a judge.

Heinrich Finke guided the research of Joseph Riegel who defended a thesis on the wildly varying numbers of participants at the Council of Konstanz [Die Teilnehmerlisten des Konstanzer Konzils. Ein Beitrag zur mittelalterlichen Statistik (Freiburg im Breisgau 1916; online, Internet Archive)], a thing already debated by contemporaries.The Council of Konstanz became during five years a focus of European politics and church reform, a place where many influential people met. The sheer number of participants, their background and views, and the impact on church life merit and warrant a good chance at finding always new perspectives, not to mention resources, to make it worthwhile to look again this event, not in the least with an eye to legal history.

A postscript

In this post I tried to be as concise as possible, but I think it is right to point here also to another old edition concerning the Council of Konstanz, the seven volumes of the edition edited by Hermann von der Hardt, Magnum Oecumenicum Constantiense Concilium (…) (Frankfurt am Main 1697-1700), digitized by the Universitäts- und Landesbibliothek Düsseldorf. I had preferred to give you the exact link to a completely digitised set, but searching in this digital library brings you quickly to the volumes. I found the reference to the digitised set at Düsseldorf in a 2015 blog post by Klaus Graf at Archivalia where he dealt with the entrance for this council in the Historisches Lexikon Bayerns. However, Graf mentioned only two volumes of Hardt’s edition.

 

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Between French and Roman law: Li livres de jostice et de plet

Image of the Livres de jostice de plet - image source: ENC / BNFA few days after the celebrations of Quatorze Juillet, the French national day, I looked in the digital library with editions of the École nationale de Chartes, one of the French grands établissements, the famous school for the training of archivists and palaeographers. Not only can you find here a heading Édition de textes juridiques, but the text edited here anew and online since November 2016, Li livres de jostice et de plet, belongs to the classic legal texts of medieval France. The edition appeared online in 2016. Interestingly this text survives in its entirety only in a single manuscript at the Bibliothèque nationale de France (ms. fr. 2844). The text shows clear influences of Roman law, a fact sometimes used to frown upon. How sensible is it to judge the value of its text depending on the presence or absence of influences? It seems useful to look at it here in some detail, also because the new edition curated by Graziella Pastore comes into its own thanks to an accompanying website with more information, a combination that could serve as a model.

Between two laws

Li livres de jostice de plet is a treatise written in Old French and composed in the mid-thirteenth century in the Orléanais, the region around Orleans. Its twenty chapters follow the divisions of the Digesta Iustiniani: The chapters 1 to 10 follow the Digestum Vetus (D. 1 to D. 24.2), chapters 11 and 12 correspond with the Infortiatum (D. 24.3-D. 38), and the remaining chapters 13 to 20 with the Digestum Novum (D. 38-D. 50). The university of Orleans was famous for its law faculty, a fact which came into new light only since the twentieth century in research conducted at Leiden. I will refer to both universities later on.

In the edition published in 1850 by P.N. Rapetti – online in the Internet Archive – the parts of the chapters which contained translations of the Justinian Digest had been skipped. The manuscript Paris, BnF, ms. français 2844 has been digitized (Gallica). Some rather prominent notes written in later centuries show up on the cover and the first pages of the black-and-white digitized microfilm. The description of the edition explains that two other manuscripts have been adduced to complete textual lacunae in the part corresponding to the Infortiatum.The manuscript Bordeaux BM, 354 can be consulted online in the Selène digital library of the Bibliothèque Municipale in Bordeaux, but I could not find an online version of the other manuscript, Rouen BM 794. The use of these manuscript reminded met about my post last year about medieval laws in translation where I did not mention the Livres de jostice et de plet. In the online Catalogue collectif de France you can restrict your search to manuscripts and archives, and you will find in it information about both manuscripts, although this often leads you only to the nineteenth-century Catalogue général. On the other hand, the information about the manuscript BnF, ms. fr. 2844 given in the online edition is also very general. In the new edition all paragraphs with direct translations from the Digest are given in blue print.

In my earlier post I referred to the online bibliography of the Dictionnaire étymologique de l’ancien français (DEAF), and this time I was much more aware how succinct the information it gives is. Interestingly there are two articles for the Livres de jostice et de plet, the first for the old edition without the Digest fragments, the second for those parts taken over from Roman law edited by Pastore. The entry in the DEAF points even to some mistakes in her edition.

Another rather elemental thing jumped into my face: How should one translate the title of this treatise, and where do we find online information about Old French? Jostice is clearly to be associated with justice, but plet is not a quite transparent word. Luckily a number of French dictionaries can be consulted online, including those for medieval French. The ATILF platform leads you to research projects, digital text corpora and dictionaries such as the Dictionnaire du Moyen Français for medieval French between 1300 and 1500, and the bibliography for the Godefroy, the nickname of the Dictionnaire de l’ancienne langue française et de tous ses dialectes du IXe au XVe siècle edited by Frédéric Godefroy (10 vol., Paris 1880-1905), digitized in the Gallica digital library of the BnF. It is also very nifty accessible at Lexilogos with an option to switch dictionaries. Godefroy brings you to the word plait, with as its primary meaning “accord, convention, traité”, but also “procès, querelle, jugement, discussion”, to mention only the most relevant meanings. The compact dictionary edited by the famous linguist A. Greimas, Dictionnaire de l’ancien français jusqu’au milieu du XIVe siècle (Paris 1968) gives for plait seven main meanings with brief examples.

The etymology of plait is revealing: Plait stems from placitum, explained in the lemma plaid as being conform to the will. In Italian legal history the placita are charters with verdicts which contain in a number of cases formulaic references to Justinian’s Digest. Only in the eleventh century such references clearly point to actual use of the Digest. The online version of the DEAF with a preliminary version of the letters G to K gives a very elaborate lemma for justice and its various spellings. It is seducing to translate the title of the treatise with an alliteration, The Book of Justice and Judgment, but “The Book of Justice and Procedure” seems a reasonable translation.

The second website

Banner "Li livres de jostice et de plet"

On purpose I wrote the first part of my post without using the accompanying website, in the hope it will correct some of my findings and anyway tell us much more than I can do here. However, I cannot hide some mixed feelings in my first impressions. The second website is to a large extent a kind of pilot project for the proper use of meta-data. In fact in the introduction Pastore states this clearly. With just twenty titles in the bibliography and five persons discussed in the biographical section this seems too much of a good thing, especially when you see the wide range of possible output forms and the thoughtful addition of preset links to a host of websites, catalogues and digital libraries. Pastore mentions at the second site only the 1918 offprint of an article by Henri Stein, ‘Conjectures sur l’auteur du Livre de jostice et de plet’, Nouvelle revue historique de droit français et étranger 41 (1917) 346-382, but it figures correct in the bibliographical section of her introduction to the online edition. Stein’s contribution is not included at all in the online Bibliographie d’histoire du droit en langue française (Université de Lorraine, Nancy). The bibliography at the second website consists of printed and online editions of archival resources and texts, but the critical studies do not figure in it. The DEAF bibliography refers to a short article by Jaana Seppänen, ‘”Livre de jostice et de plet” – un texte à rééditer?’, Neuphilologische Mitteilungen 91 (1990) 153-156. The references in Stein’s article were used as materials to give some bones to this prototype website.

The section Le manuscrit brings you to an embedded version of the digitized microfilm of the manuscript, and to a link for the description of it in the Jonas database of the IRHT at Paris-Orléans. This database with a repertory of medieval manuscripts with texts in medieval French and Occitan gives a short description of the manuscript in the BnF – essentially: written on parchment, 200 folia, dimensions: 350 x 270 mm; language: French (langue d’oil); datation: 1260-1275; origin: Orléanais-Île de France, and the incipit of the main text – and refers for more details to an upcoming article by Graziella Pastore and [Frédéric] Duval, ‘La tradition française de l’Infortiat et le Livre de jostice et de plet’ in the Bibliothèque de l’École des Chartes, one of the oldest European history journals; it appeared in 2017 in BEC 121 (2013) 199-226. The issues from 1840 to 2012 can be consulted online at Persée. The entry in the Jonas database does not give the first name of Duval. You might want to check in the online bibliography of the Regesta Imperii how many medievalists share the name Duval! At Academia you can look at a poster created by Pastore concerning the matters to be discussed in the promised article, and even better, you can view online a registration of her lecture about Li livres de jostice et de plet given at the École nationale de Chartes on November 29, 2016 for the presentation of the online edition. The results she announces in her lecture make you impatient to read the full story. I will not give a complete spoiler here, but one of the elements which comes into focus is the role of medieval canon law.

The Jonas database does not indicate the presence at the start of the BnF manuscript of a royal ordinance from 1254 (fol. 1r-3r) and some chapters of the Établissements de Saint Louis at fol. 3r-4r, things duly noted by Rapetti. His introduction is certainly still worth reading. For further study of this second legal text the translation by F.R.P. Akehurst, The Etablissements de Saint Louis. Thirteenth-century legal texts from Tours, Orléans and Paris (Philadelphia, 1996) offers itself as a starting point. Of course Pastore should get credits for giving some information about five historical figures around the Livres de jostice et de plet, but you would want to have not only references to old editions or to Stein’s article. These persons were mainly officers with a royal charge, for example baillif (bailli), and their presence is suggestive. A recent essay by Bernard Ribémont, ‘Compiling and writing a legal treatise in France: the Livre de Jostice et de Plet’, in: News from the Raven: Essays from Sam Houston State University on Medieval and Renaissance Thought, Darci N. Hill (ed.) (Newcastle upon Tyne, 2014) 133-142, gives you an idea of paths to pursue. Ribémont does look in particular at the role of medieval canon law and the way canon law texts were translated and adapted in the Livres de jostice et de plet.

Between Paris and Orleans

In my view there is another fruitful way to approach these legal treatises, by paying attention to the university of Orleans. Only last year the online legal history journal Clio@Themis published a special dedicated to the theme La forge du droit. Naissance des identités juridiques en Europe (IVe-XIIIe siècles), “The forge of law. The birth of legal identities in Europe (4th-13th centuries)”, with an article by Kees Bezemer (Leiden), ‘Jacques de Revigny (d. 1296): Roman law as a means to shape French law’. His footnotes refer to a number of his own publications, including ‘French customs in the commentaries of Jacques de Revigny’, Tijdschrift voor Rechtsgeschiedenis 62 (1994) 81-112. Bezemer devoted a book to Revigny, What Jacques saw. Thirteenth-century France through the eyes of Jacques de Revigny, professor of law at Orleans (Frankfurt am Main, 1997). Custom law in the eyes of De Revigny is the subject of the thesis of Laurent Waelkens (Universiteit Leuven) defended thirty years ago at Leiden, La théorie de la coutume chez Jacques de Révigny: édition et analyse de sa répétition sur la loi De quibus (D. 1, 3, 32) (Leiden, 1984). Sadly the online bibliography at Nancy does not contain this study of Waelkens, and for Bezemer only one publication has been entered. Bezemer and Waelkens follow the lead of the late Robert Feenstra who had entered the paths first walked by Eduard Maurits Meijers (1880-1954).

We will probably have to look also at an earlier generation of professors at Orleans, to the predecessors of Jacques de Revigny and Pierre de Belleperche, such as Guido de Cumis and Jean de Monchy. In this respect and for a good balance I have to mention a study by Marie Bassano, “Dominus domini mei dixit. . . “; Enseignement du droit et construction d’une identité des juristes et de la science juridique. Le studium d’Orléans (c. 1230-c. 1320) (Ph.D. thesis, Université Paris-2, 2008).

There is a clear need to look past the blinkers! From my point of view there seems to be a gap between an outdated belief on one side that any influence of Roman law in French medieval legal history is harmful, perhaps because this legal system contributed to the power of the French kings, and on the other side the fact Roman law offered itself as a normative system with the possibility to give legal customs a proper place. The French kings had indeed strong ambitions to become as powerful as their English counterpart and the German emperor, and they, too, enlisted everything and everyone that seemed useful for that purpose, with or without explicit use of Roman law. The online edition of Graziella Pastore should indeed offer yet another stimulus to look again at France in the thirteenth century in an open way. Using the French translations of Meijers’ articles concerning Orléans and French law provided by Robert Feenstra and H.FW.D. Fischer [Études d’histoire du droit (4 vol., Leiden 1956-1973)], and the studies of Bezemer and Waelkens, often accessible in French, give us the critical mass to do this. Let’s hope Pastore quickly puts things in order at the second website and brings us the promised new article in the Bibliothèque de l’École des Chartes which should do justice to the almost two centuries long tradition of the École nationale des Chartes.

A postscript

On September 22, 2017 Kees Bezemer will retire from Leiden University after 42 years. A meeting in his honour will be held at the Law Faculty.

Graziella Pastore kindly provided me with complete information about her article which finally has been published. The second website is indeed a prototype she built around Stein’s article. Pastore pointed me also to the description of the manuscript at the BnF in the Miroir des classiques project of Frédéric Duval at the École nationale des Chartes.

John Noonan, judge and historian

John T. Noonan Jr. - photo Kenneth Pennington, 1998

John T. Noonan Jr – Erice,1998 – photo Kenneth Pennington

Should an historian act as a judge, pronouncing verdicts on the past? Should a judge express views about the past or even use the past for his judgments? How can legal history help judges? Can you imagine that knowing about the history of medieval canon law, a subject seemingly quite distant from modern times, can prepare someone to become a respected judge? For a moment you might think I seduce you to follow me in an experiment, but I had rather tell here about the experiences of a scholar and judge who dealt in his life with exactly the questions at the start of this post. On April 17, 2017 John T. Noonan Jr. died. He served for thirty years as a judge of the Ninth U.S. Circuit Court of Appeals in San Francisco. Before and during his period as a judge he did research in the field of medieval and modern canon law. Noonan (1926-2017) wrote also about American law in past and present. A number of obituaries have appeared which focus on his contributions as a judge. Here I would like to honour his achievements by looking at his work as a legal historian.

Near to major themes in law and society

The obituaries I have seen until now understandably focus on his work as a judge. In particular the obituary issued by the Ninth Circuit Court of Appeals mentions a number of major cases – with full references – to which Noonan contributed, sometimes with a dissenting opinion which was eventually followed by the Supreme Court of the United States. Even Wikipedia gives substantial quotes from these important cases in the article about Noonan. The obituaries in the San Francisco Chronicle and The New York Times single out his political independence. Noonan was a Catholic who opposed abortion, but he certainly could not be labelled conservative. In the Commonweal Magazine‘s obituary there is attention for Noonan’s clear views about liberalism, but also on Shakespeare and the lack of attention to the Bard’s religion. The Faculty Lounge has a short notice by Alfred Brophy about Noonan’s passing, but he redeems it by sending you to a moving tribute at the blog of Diane Marie Amann (University of Georgia). She goes straight to the heart of the matter by showing Noonan in action. If you prefer to skip the section here below about the impact of medieval canon law you are right to proceed to her fine post.

Noonan came from Boston and studied at Harvard University, Cambridge and the Catholic University of America. To mention only his academic posts, he was a professor at Notre Dame University between 1961 and 1966 and from 1967 onwards at the University of California at Berkeley (Boalt Hall). His first book was on a subject touching medieval canon law, theology and economic history, The scholastic analysis of usury (Cambridge, MA, 1957). In a modern textbook about medieval views of the economy [Diana Wood, Medieval economic thought (Cambridge, etc., 2002)] the two chapters about usury frequently refer you to Noonan’s book. Intention is one of the keys in understanding and defining usury and interest. His second book, Contraception. A history of its treatment by the Catholic theologians and canonists (Cambridge, MA, 1965; enlarged edition, 1986) appeared at a crucial moment in the history of the Catholic Church, in the aftermath of the Second Vatican Council when pope Paul VI created a commission to study contraception. He invited Noonan to participate in it as a consultant. Another study, too, brought medieval theology and canon law together [Power to dissolve. Lawyers and marriage in the courts of the Roman curia (Cambridge, MA, 1972)].

How authors come to a subject can be mysterious, but I think it is not entirely by chance that Noonan wrote about matters of life and death, in particular about moral conduct. Bonds dissolved or not are also at stake in his book on The Antelope : the ordeal of the recaptured Africans in the administrations of James Monroe and John Quincy Adams (Berkeley-Los Angeles, 1977). I could not resist going to the digital collection Slavery in America – discussed here in some detail last year – and to check for the presence of this case around a ship with slaves in 1820. Changing views on slavery are among the subjects in his study A Church that can and cannot change. The development of Catholic moral teaching (Notre Dame, IN, 2005). The personal conduct of judges through the centuries is the subject of Bribes. The intellectual history of a moral idea (New York, 1984). Many students of American law will know about his volumes with selected cases around religious freedom and the responsibilities of lawyers.

It is tempting to discuss here more of Noonan’s books which discuss developments in American law from a historical perspective, but I promised you to focus on medieval canon law. A fair number of Noonan’s articles can conveniently be consulted in the volume Canons and canonists in context (Goldbach 1997). Articles about medieval canon law appear not only in the few journals created for this field, but also elsewhere, sometimes in Festschriften. Thus the volumes in this series are most useful, also for the additions and corrections added by the authors. The bibliographical database of the Regesta Imperii (Akademie der Wissenschaften, Mainz) lists most of Noonan’s articles about medieval canon law.

Noonan wrote two major articles about the author of the Decretum Gratiani, a subject at the heart of the modern study of medieval canon law, because Gratian’s book is often seen as the core and cause of the very birth of medieval canon law. In the first article, ‘Was Gratian approved at Ferentino?’, Bulletin of Medieval Canon Law N.S. 6 (1976) 15-28, he investigates the historical evidence around a papal approbation of Gratian’s textbook. The second article, ‘Gratian slept here: the changing identity of the father of the systematic study of canon law’, Traditio 35 (1979) 145-172, is an object lesson in making distinctions about reliable and unreliable evidence. Noonan crushes sloppy thinking and careless repetition of unchecked information. Even his colleague at Berkeley, Stephan Kuttner, receives a frown at one point. Thirty years later Anders Winroth could establish at last some facts about the life of Gratian with certainty in ‘Where Gratian Slept: The Life and Death of the Father of Canon Law’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung 99 (2013) 105-128. Kenneth Pennington gives at his website a more colourful presentation of John Noonan’s work on Gratian, including the covers of some books and some remarkable photographs of Noonan.

Intention is a matter of concern in medieval canon law ever since its appearance in the twelfth century as a subject in medieval theology. It is through canon law that intention became a theme in criminal law. Judges were called upon to consider someone’s intentions. Stephan Kuttner, Noonan’s teacher in Washington, D.C., wrote the classic study tracing this development [Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX systematisch auf Grund der handschriftlichen Quellen dargestellt (Città del Vaticano 1935)] and Noonan clearly studied it in great depth. For Noonan the facts and intentions counted in judging historical situations. In his view facts matter indeed, because he wanted to judge cases, not persons. Some of his views of famous American judges can be found in Persons and masks of the law : Cardozo, Holmes, Jefferson, and Wythe as makers of the masks (New York, 1976). Noonan did not keep ethics and moral questions at a safe distance. Making the right judgments is only possible when knowledge of the law, insight into what consist justice and a fine-tuned and ever developing conscience come into action, or to put it more briefly, where mind and heart fully work together. It is exactly how Noonan impressed those who met him. Being a judge and a historian in one person is challenging, but he had the greatness to achieve this in a long and fruitful life.

A personal touch: Chasing autograph manuscripts of medieval lawyers

The Middle Ages span a millennium, and the very term has long darkened our understanding of this period in European history. Somehow the image of the Dark Age keeps to some extent its force for children, the general public and scholars alike. Seemingly out of the dark come the persons whose names we know, and romantic phantasy has often been very active to make them as colourful as possible. Clovis, Charlemagne, William the Conqueror and Saint Louis, the holy French king pronouncing the law, are among the people for whom we can find out more than only battles, deeds and orders, but we hear seldom the voice of more ordinary people. Thus the counsels of Dhuoda to her son, the visions and songs of abbess and composer Hildegard von Bingen, and Christine de Pisan, a passionate writer and defender of women, stand out even stronger, because they shed light on the history of women, too. In the field of medieval art there has been a hunt to find traces of individual artists. Some works of art still bear their names, but others remain anonymous.

Cover Autographa I.2

Medieval law, too, can seem not only a very masculine, but also a very impersonal affair. However, juridical glosses from the twelfth century in the manuscripts with the main texts of Roman and canon law are sometimes signed with an abbreviated form of the names of lawyers such as Azo, Jacobus Bassianus, Rogerius and Pillius. In the last decades another hunt has brought some astonishing results. Scholars have been able to identify autograph manuscripts of a surprising number of medieval lawyers. Individual scholars succeeded in connecting one or more manuscripts directly to the author of a particular juridical text. Surprisingly this is indeed possible for medieval lawyers, for many scholars not the group in medieval society you would immediately pinpoint.

On February 8, 2017 the second volume of a series of studies about medieval autograph manuscripts will be presented at the École française de Rome. This post is a small tribute to the scholars contributing to these volumes, and especially to Giovanna Murano, the courageous editor who has set an example herself in approaching legal manuscripts with new questions and sharing her wisdom and results with others. The blog Storia del Diritto medievale e moderno alerted me to the presentation of the new volume, and apart from translating the main information of their message in French I will try to provide some context for this important publication.

The hands of the masters

During the thirteenth century a system for the reproduction of medieval texts used at universities came into existence. Book shops were given controlled master copies, exemplars of these texts. Students could hire quire after quire for scribes to make copies. The pecia system – literally “piece” – was first described for theological manuscripts by Jean Destrez. Last year Frank Soetermeer died, the Dutch scholar who did research about the use of the pecia system for legal texts in Italy and France. Giovanna Murano, too published a book about the pecia system, Opere diffuse per exemplar e pecia (Turnhout 2005). Since a few decades it becomes clear that the chances for survival of original author manuscripts were relatively high. In the sixteenth century, however, printers often discarded the very manuscript(s) they had used to produce printed versions of texts.

Recognizing the handwriting of a specific author can be easy, but first you have to connect an inimitable script with him or her. The almost illegible script of Thomas Aquinas (circa 1225-1274) got nicknamed littera inintelligibilis by his contemporaries, and the mirror writing of Leonardo da Vinci in the fifteenth century is rightly famous. Medieval lawyers signed in particular charters, acts written on parchment, or added some confirming lines in their own hand to consilia, legal consultations. The cover of the new volume shows a consilium with some of such closing lines and signatures. The interest in these consilia has helped very much to make the identification of the handwriting of medieval lawyers possible.

Perhaps the single most important step was the identification of a set of autograph manuscripts in the Vatican Library written by or produced under the direction of Baldo degli Ubaldi (1327-1400), first signalled by Giancarlo Vallone, ‘La raccolta Barberini dei “consilia” originali di Baldo’, Rivista di Storia del Diritto Italiano 62 (1989) 75-135. You can read online (PDF, 9 MB) an article by Vincenzo Colli, ‘Collezioni d’autore di Baldo degli Ubaldi nel MS Biblioteca Apostolica Vaticana, Barb. lat. 1398’, Ius Commune 25 (1998) 323-346. Twenty years ago Colli identified more autographs and other manuscripts close to their author for other medieval lawyers as well, for example for Guillelmus Duranti (around 1237-1296), the author of the Speculum iudiciale, a massive legal encyclopaedia, ‘L’apografo dello Speculum iudiciale di Guillaume Durand’, Ius Commune 23 (1996) 271-280 (online, PDF, 3 MB), and together with Giovanna Murano ‘Un codice d’autore con autografi di Giovanni d’Andrea (ms. Cesena, Biblioteca Malatestiana, S.II. 3)’, Ius Commune 24 (1997) 1-23 (online, PDF, 9 MB).

In the second volume of the series on medieval autograph manuscripts [Autographa I.2: Giuristi, giudici e notai (sec. XII-XV)Giovanna Murano (ed.) (Imola 2016)] you will find some eighty images of medieval manuscripts, and very often you will see a medieval consilium and a manuscript of a particular work as evidence for the identification of an author’s hand. Apart from lawyers who published legal works the team looks also at medieval judges (giudici) and notaries (notai). For the second volume twelve scholars have identified 49 authors and consulted more than one thousand manuscripts in more than two hundred libraries. The new volumes contains eighty photographs.

Giovanna Murano contributed an article about the autograph of Antonio de Roselli’s Monarchia for the second volume of the Festschrift for Mario Ascheri, Honos alit artes. Studi per il settantesimo compleanno di Mario AscheriPaola Maffei and Gian Maria Varanini (eds.) (4 vol., 2014), a publication briefly mentioned here, too, available in print and online. In the first volume a whole section is dedicated to articles concerning medieval legal consilia. Murano provides a must-read on this genre with her article ‘I consilia giuridici dalla tradizione manoscritta alla stampa’, Reti medievali. Rivista 15/1 (2014) 1-37. She offers an uptodate illustrated introduction to this medieval genre. It gives you an example of her rigorous thinking and dense argumentation. At every turn Murano makes you think and reconsider matters you had not thought about for a long time or simply not carefully enough. In a similar article she gives a status questionum for the study of the Decretum Gratiani, the great treatise for medieval canon law from the early twelfth century [‘Graziano e il Decretum nel secolo XII’, Rivista Internazionale di Diritto Comune 26 (2015) 61-139; online].

The first volume of the series Autographa appeared in 2012. In my view both volumes can serve also as a palaeographical atlas for anyone studying the learned law, i.e. the medieval – and Early Modern – use of Roman and canon law. Instead of hunting digitized manuscripts on your computer screen or tablet you might want to sit down and study the variety of handwriting offered by Murano and her international team. The books can be used indeed as a fine guide to medieval legal manuscripts. However, maybe it is simple the urge to come as closely as possible to the hands of the great magistri of Italian and French medieval universities that makes you want to have these books within your reach. The names of medieval lawyers change here from glorious but inevitable dead names into living persons, not just as law professors producing a theoretical frameworks for judges, advisors and officials all over Europe, but at work themselves, counseling parties or pronouncing judgment on cases which show law in action. These manuscripts and archival records offer a splendid window to medieval life and society. My warmest congratulations to Giovanna Murano and the scholars participating in this great project! It deserves your attention by all means.

From rules to cases in medieval canon law: A tribute to Charles Donahue

Banner Cause Papers - Histiry Online and Borthwick InstituteWhen you would ask me to single out any legal historian for his or her versatility, path-breaking articles and books, stimulating teaching and generous help I would answer that choosing anyone would mean that I seriously underestimate the qualities of a lot of other fine scholars. On November 29 Harvard Law Today published an article about the honours lately bestowed upon Charles Donahue. In October a conference was held to celebrate his efforts in the field of legal history, both for the history of the common law and medieval canon law. This last field offered me the original impulse to start my blog, and therefore it is fitting to create space for a truly great scholar.

John Witte, Sara McDougall and Anna di Robilante edited a Festschrift called Texts and Contexts in Legal History: Essays in Honor of Charles Donahue (Berkeley, CA, 2016). Remarkably this volume does not yet figure on the website of the publishing institution, the Robbins Collection at Berkeley’s School of Law. Its website might be in the midst of a substantial makeover, including the launch of a new website for the manuscript catalogue, but this surely is an omission, yet another reason to get into action here. In this post I will focus mainly on Donahue’s work for the history of canon law, but you will not mind reading some remarks about other periods and themes which received and receive his attention. A third reason for writing this post is the opportunity to look at two most interesting projects for digitizing archival records which form a wonderful window to the practice of medieval canon law.

Taking the plunge

Photo of Charkes Donanhue - source: Harvard Law SchoolMy most vivid memory of Charles Donahue is the way he presented a paper at the International Congress of Medieval Canon Law in 1996 at Syracuse, NY. He commented on the needs to combine the qualities of research into legal doctrine, ecclesiastical institutions and social history. The three of them benefit immensely by being studied together, not in isolation. Of course this is a huge challenge, but Donahue memorably ended saying: “Let’s get out here and do it!” He did indeed exactly what he announced. One of the challenges is having the courage and stamina to work at all in a field like the history of medieval canon law which is both utterly fascinating and bewildering in its complexity. Critical text editions are still scarce, and you might be the first scholar since decades to look at particular manuscripts, or literally the first in centuries to study archival records.

Cover Charles Donahue "Law Marriage and Society in the Later Middle Ages - source Cambridge UP

In order to assess the possibilities to use archival records from medieval church courts Donahue set out to create a survey of these records with reports by a team of scholars from all over the world, The Records of the Medieval Ecclesiastical Courts: Reports of the Working Group on Church Courts Records (2 vol., Berlin 1989-1994). Earlier on he published with Norma Adams Select Cases from the Ecclesiastical Courts of the Province of Canterbury, c. 1200–1301 (London 1981; Selden Society Publications, 95). A recurring theme in a number of his publications is medieval marriage. In 2008 Donahue’s great study Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts appeared. Cambridge University Press provides online access to some 300 additional pages with notes and texts. The five courts in this work are York, Ely, Paris, Cambrai and Brussels. At his Harvard homepage you can download Excel sheets from the databases with the materials from these courts. Sharing these data with other scholars is wonderful when you realize how much work it takes over many years to prepare these materials before you can execute the kind of study Donahue did.

Projects at York

For one of the dioceses Donahue studied in his great book about medieval marriage, law and society you can now access documents online. Surprisingly there are even two connected projects which bring you to ecclesiastical justice in the medieval archdiocese of York. The first project to come online was The Cause Papers in the Diocesan Courts of the Archbishopric of York, 1300-1858, the fruit of cooperation between the University of York, in particular the Borthwick Institute for Archives, the Andrew Mellon Foundation, History Online and JISC. The Borthwick Institute provides you with background information about the digitized records. It is also instructive to read entries at the project blog which ended in 2011 with the launch of the database. The Cause Papers can also be searched online at the portal Connected Histories. It is a bit weird to see at this portal the label Local records applied to both the Cause Papers and the Proceedings of the Old Bailey. It is precisely a strength that they are also important sources for local history, but they can bring those investigating them much more.

The core of the project for the York Cause Papers (CP) is the database which allow you to search more than 15,000 cases from many perspectives. For a number of cause papers images are provided, but I cannot determine the algorithm or human reasons behind the selection. Looking for cases after 1500 can bring you to images of the records involved. Earlier on the Borthwick Instituted had published guides to the cause papers, W.J. Sheils, Ecclesiastical Cause Papers at York: files transmitted on appeal 1500-1883 (Borthwick Texts & Calendars 9, 1983), D.M. Smith, Ecclesiastical Cause Papers at York: the Court of York 1301-1399 (Borthwick Texts & Calendars 14, 1988), and D.M. Smith, The Court of York 1400-1499: a handlist of the cause papers and an index to the archiepiscopal court books (Borthwick Texts & Calendars 29, 2003). At the website of the Borthwick Institute is also a very useful guide to records from other courts at Carlisle, Chester, Durham, Sodor, the diocese of the Hebrides, and Man, all of them, however, for the period after 1500. The database of the Cause Papers brings you to summarized information about the cases dealt with in these records. If you want to look in it for matrimonial cases you will see at least 1,600 cases from four centuries. A search with the keyword matrimonial brought me 241 results between 1300 and 1500. Donahue prepares for the Selden Society the volume Select cases from the ecclesiastical courts of York, 1300-1500 which will contain some 400 cases from the Cause Papers.

Logo York Archbishops'Registers RevealedThe medieval records themselves are at the center of a second project at York, York Archbishops’ Registers Revealed, The digitized registers cover the period 1225 to 1646. The contents here are much wider than only legal cases, but they, too, appear. As one of the showcases in the background information you can look at documents concerning the divorce of king Henry VIII from Anne of Cleves in 1540 (Abp Reg 28, f. 142r). For this project 32 registers have been digitized (Abp Reg) and also five Institution act books (Abp Inst AB) from the sixteenth and seventeenth century. You can browse a particular register and browse for people, religious institutions and groups. locations and subjects, or use the free text search field. A simple search for marriage yielded some 300 results. Supplementary indexes exist already for three registers. These indexes are rather important. When you look under A for Anne of Cleves she is absent in the database because in the standard view only input from indexed registers is shown. You cannot reach directly for records for people not included in these indexes. It is evident that the case from 1540 was found using earlier indexes, and primarily the historical overview of matters at the beginning of a register. The need for indexing some forty registers with 21,000 digitized images is clear and just as important as compliance with IIIF, the initiative for interoperability between images from various sources, rightly advocated in this project. Having the digitized images in front of you on your screen is great, but some of the classic activities of the historian’s craft are still indispensable, if only for deciphering the texts. Maybe I can seduce you to have a look at ‘Under a magnifying glass’, a recent post on my second blog Glossae concerning juridical glosses from the twelfth century, where I compare a number of online tutorials for medieval palaeography. By the way, the Borthwick Institute has also started digitizing seventeenth-century visitation records from York.

consistory-concordia

For yet another diocese in medieval England, London, you can consult at home records thanks to the Consistory database created by Shannon McSheffrey (Concordia University, Montreal) using registers covering the periods 1467-1476 and 1487-1496. The database contains transcriptions and translations of documents for this last period. McSheffrey helpfully provides a generous bibliography of modern scholarship about late medieval civil and ecclesiastical courts in England. McSheffrey provides introductions to major themes in the cases from London, such as defamation, marriage and divorce, tithes, testaments, clerical behaviour, and matters as debt and perjury. You can approach the cases directly or look for specific subjects, people, locations, and also for depositions. The variety in possible approaches to these records is not new for those already familiar with medieval canon law, but surely this range of subjects covered by ecclesiastical law should make more people curious about canon law.

Among the supporting institutions of the Canadian Consistory project is the Ames Foundation, since many years led at Harvard by Charles Donahue. One of the online resources of the Ames Foundation are the page proofs of The Register of the Official of the Bishop of Ely: 21 March 1374 – 28 February 1382 edited by Marcia Stentz and Charles Donahue. I had used the word opus magnum for Donahue’s book on the comparative history of medieval marriage courts, but this edition deserves this description, too. Marcia Stentz’ calendar of the Ely register formed the starting point for a full critical edition. As an asset the Ames Foundation has also put online digital images of this register [Cambridge, Cambridge University Library, Ely Diocesan Records, EDR D2/1]. Establishing a correct numbering of all pages in this register is just one of the myriad things needed to pursue the long road to the final edition. At the first folio the Ely register has the heading Registrum primum causarum consistorii episcopi Eliensis (..), but this register does not contain solely cases heard in an ecclesiastical court. Other tasks and actions of an officialis, the episcopal judge, come into view, too.

I leave it to my readers to see for themselves the recent additions concerning medieval canon law among the online publications of the Ames Foundation, a remarkable feature of a society promoting the history of English law! You will also spot Charles Donahue’s name for his support for the online edition of Appeals to the Privy Council from the American Colonies: An Annotated Digital Catalogue, edited by Sharon O’Connor and Mary Bilder, but his work for the Ames Foundation reaches beyond specific editions.

Editions in the digital age

When reading this contribution you will notice with me a great variety in editorial approaches for online editions or presentations of late medieval church court records. The Cause Papers of York are accessible in a database, but you will find for cases before 1500 only detailed summaries of cases. The range over the centuries is great. I would view it as a search tool. York Archbishops’ Registers Revealed does give you access to digitized images, but the online indexation of the records has not yet been completed. Here you will need medieval and Early Modern palaeography, and you have documents from an even longer time span. The Consistory database for diocesan records from London offers you detailed access to transcriptions and even translations, but for just one decade. Here you can quickly focus on the cases. The edition of the Ely register is certainly both a classic edition enhanced with images, and in a way it is in a class of its own. The context of an ecclesiastical judge during eight years is here right in front of you. Depending on your personal interest as a scholar or teacher you will sometimes prefer a full edition, to provide either students with a quick road to a first encounter with a source, or inversely make the importance of auxiliary sciences clear by showing images of historical records. Each approach is to some extent perfectly valid and valuable. Space forbids me to discuss here the editions by Monique Vleeschouwers-Van Melkebeek for Cambrai and Brussels of records of the officialis, let alone her work on Tournai with probably the earliest surviving records from the late twelfth century. Donahue does use these sources, too.

At the end of this contribution I am sure that Charles Donahue would very much want to make this extensive comparison of editions in print and online. Of course I could only point to some aspects of Donahue’s work. It makes me eager to look at his work in more depth! Studying medieval law is one of the means to discover the great differences of law and society in place and time during a millennium. It teaches you to be wary about rapid generalizations and labels. I confess to be charmed and sometimes very much moved by the records of medieval courts and the way they can be made tell-tale witnesses of society at large, of life in all its dimensions, of people trying to lead their lives. Somehow human interest is the greatest when you see people facing the machineries of the law, be they cunning plaintiffs, helpless defendants, shrewd or wise lawyers. In its best incarnations as in the work of Charles Donahue studying and writing about medieval canon law is both part of legal history and the humanities.

Digitizing legal manuscripts at the Vatican Library

In this century several major research libraries and national libraries have started to digitize their manuscript collections. On my blog I have reported for instance about digitized legal manuscripts in the British Library. Legal manuscripts were included also in the project Europeana Regia for the reconstruction of the medieval royal libraries. One of my earliest posts concerned the Swiss project e-codices. More recently I wrote here about digitized manuscripts from Chartres and the Mont Saint-Michel. The digitized medieval and Renaissance legal manuscripts at the Collegio di Spagna in Bologna did not escape my attention, too. In 2013 the project at UCLA for the Catalogue of Digitized Medieval Manuscripts came to a halt because the two courageous scholars responsible for this project could not cope anymore with the tasks of creating a consistent and yet detailed catalogue. The question how to find out about the presence of digitized manuscripts is not easily answered.

Logo Digivatlib

For one particular massive project there is a way to stay informed. The current digitization project for the manuscripts of the Vatican Library has made considerable progress. Already some three thousand manuscripts can now be viewed online. However, this library did until this week not publish lists of recent additions. How can you stay informed about manuscripts which might interest you? In this contribution I will look at the efforts of Jean-Baptiste Piggin, a journalist and historian in New-Zealand, who since 2015 has patiently reported at his blog Macro-Typography about recently added digitized items. His service to scholars and the general public deserves our thanks and admiration. For your convenience I have put together a list of the legal manuscripts Piggin signalled until now. Piggin himself is interested in the history and use of diagrams, including those created by medieval lawyers, and this offers me a chance to write here about legal iconography, too. At Twitter you can find Piggin, too (@JBPIggin).

Thousands of manuscripts

The collections of the Biblioteca Apostolica Vaticana (BAV) in Vatican City are truly extraordinary. Not only their sheer number is immense, but also the presence of many remarkable manuscripts make this library an institution beyond repositories elsewhere. During its long existence the BAV was able to acquire entire manuscript collections. The Palatini came from the ducal library at Heidelberg, the Ottoboniani from cardinal Ottoboni, the Urbinati from Urbino, the Chigiani from the Chigi family, and these are just a few examples. Luckily there are even special bibliographies for the modern scholarly literature about these manuscripts. The BAV has created a separate online manuscript catalogue. The main digitization project of the BAV has several sister projects, for example for Syriac and Chinese manuscripts.

Logo Bibliotheca Palatina Digital - UB Heidelberg

The most important accompanying project deals with the Palatini latini, some 2,000 Latin manuscripts originally kept at Heidelberg, and now digitized and only accessible online at the portal Bibliotheca Palatina digital of the Universitätsbibliothek Heidelberg. With the advanced search mode of the Palatina Search you can directly search for particular manuscripts. For the subject Recht you will find some 220 digitized manuscripts, but alas it turns out this search does not yield the result you would expect, because not only legal texts show up. Using filters such as Pal. lat. does help somewhat, but in my view it is not correct when the filters Justiz and Kanonistik give almost completely identical search results. The fact you can find individual texts within a manuscript is not only welcome, but simply necessary. The overview of Palatini latini is organized in some twenty lists with each one hundred manuscripts. Arranging by year, author or title does help a bit. However, a check with the lists’ view at Heidelberg makes clear you can confine your search for legal manuscripts among the Palatini latini mainly to the shelfmarks Pal. lat 621 to 800. The university library at Heidelberg has a separate website for searching images in the Palatini manuscripts.

Having the Palatina Search at your disposal is really useful and important when you look at Piggin’s series of posts with digitized Palatini latini. It would be a herculean task to add for each manuscript in his lists a short or long description. For the Palatini Piggin often gives the author’s name and the title of a work. So far Piggin has counted some 3,200 digitized manuscripts from the BAV. In his early posts he did not include complete lists. Until now he mentioned on his blog some sixty Palatini latini with legal texts. By the way, at the end of each post Piggin asks for comments and additions from people who know more about newly digitized manuscripts.

Apart from the Palatini latini Piggin mentions I have now a list in front of me with 33 legal manuscripts. This number puzzles me a lot. Stephan Kuttner and Reinhard Elze published two volumes of their Catalogue of canon and Roman law manuscripts in the Vatican Library, I: Codices Vaticani latini 541-2299, II: Codices Vaticani Latini 2300-2746 (Città del Vaticano 1986-1987). These two volumes should have been followed by three consecutive volumes, but for various reasons this has not yet happened. Gero Dolezalek and Martin Bertram have put PDF’s with the draft galley proofs of the third volume online. They bring us to Vat. lat. 11527. A similar project for other manuscript collections at the BAV is one of the projects that will bear fruits in particular for the field of medieval canon law. The overviews created by Brendan McManus for medieval canon law texts, the Manuscripta Iuridica database at Frankfurt am Main for texts concerning Roman and feudal law, and the Initia operum iuris canonici medii aevi of Giovanna Murano are at many points much more concise for manuscripts held at the Vatican Library. With this information at our disposal I should really look again at the nearly fifty (!) posts Piggin published and check them against these combined resources. For my consolation I can only remark that you will have to perform a similar task when you want to know about for example medieval medical or mathematical manuscripts at the Biblioteca Apostolica Vaticana.

After all these preliminary remarks I had better give you simply these thirty-three manuscripts as presented by Jean-Baptiste Piggin, starting for your convenience with the Vaticani Latini:

  • Vat.lat. 630 pt.1 – Isidorus Mercator, Decretalium collectio
  • Vat.lat. 841, De Regimine Principum, a guide-book for princes, by Giles of Rome (Aegidius Romanus)
  • Vat.lat. 1130, anonymous (John of Paris?) on papal authority
  • Vat.lat. 3978, handbook for the Inquisition
  • Vat.lat. 3740, about 60 texts on apostolic poverty made to advise Pope John XXII at the time of a controversy with the Franciscans 1322-23 on the issue
  • Vat.lat. 3833, Collectio Canonum by Deusdedit, written between 1083 and 1087. This is the sole complete manuscript of this legal work. See Lotte Kéry. Notable for tabular material, but no diagrams. This is a palimpsest with four Vulgate gospels from the 7th or 8th century underneath (see Trismegistos)
  • Vat.lat. 12723, manuscript records of the Inquisition

The presentation of these manuscripts differs from a short notice to a much fuller description for some of them. “Lotte Kéry” refers to her repertory Canonical collections of the Early Middle Ages (ca. 400–1140) : a bibliographical guide to the manuscripts and literature (Washington, D.C., 1999), partially digitized by The Company with the Search Engine. Trismegistos is a database for ancient papyri and inscriptions. I will expand later on Piggin’s interest in diagrams.

The descriptions for the other manuscripts I took from Piggin’s blog follow here in alphabetical order of their shelfmarks. Behind the arrows I expand or correct his notes:

  • Barb.lat. 1396, a consilium of Baldus de Ubaldis >> numerous consilia by Baldus and other authors
  • Borgh. 7, Pope Boniface, Decretales
  • Borgh. 12, Works of Godefridus Tranensis
  • Borgh. 26, 13th-century legal text, Apparatus Decretorum
  • Borgh. 95,14th century, legal, Arnoldus de Augusta
  • Borgh. 154, Tancredus, 1185-1236, Opera, 13th-14th century
  • Borgh. 214Opera quaedam de re iuridica, 14th century,
  • Borgh. 226, Novels of Justinian
  • Borgh. 230, Iohannes de Lignano, 1320-1383 Lectura super decretales
  • Borgh. 231, Abbas Antiquus
  • Borgh. 248, Rottfried: civil law, canon law >> Roffredus Beneventanus, Libellus de ordine iudiciorum
  • Borgh. 262Decretales of Pope Gregory IX, glossed by Bernardus Parmensis (also known as Bernard of Parma, Bernard Botone, Bernard Bottoni), seems similar to Ms. 1 at Syracuse University
  • Borgh. 290, Bottoni, Bernardo, Summa super titulis decretalium
  • Borgh. 348, collection of opinions written in 1320 for Pope John XXII before 14th-century decision to extend inquisition to practitioners of “black magic” in southern France. Notes >> a reference to Annelies Maier, Ausgehendes Mittelalter III (Rome 1977) 208.
  • Borgh. 372, Glossa on Justinian >> Codex Justinianus with the standard Accursian gloss
  • Borgh. 374: A 13th-century text of the Emperor Justinian’s legal codifications including the Institutions, annotated by medieval lawyers. Justinian was emperor at Constantinople 527-565. >> Institutiones, Novellae, Libri Feudorum and Tres Libri (Codex 10-12).
  • Ott.gr. 64, legal synopsis
  • Ott.lat.15, legal texts, compiled by Capuchins
  • Reg.lat. 189, papal register
  • Reg.lat. 1024, the Liber Judiciorum, an early-8th-century code of Visigothic law (probably) copied in Urgell, Spain
  • Ross. 555, a beautiful Hebrew codex with four fine Italian miniatures. From Evelyn Cohen I read that this is Jacob ben Asher’s legal treatise, the Arba’ah Turim, and that the images depict a synagogue scene, animals being slaughtered according to Jewish ritual, a wedding and a courtroom scene.
  • Urb.lat. 157, Innocent IV, decretals
  • Urb.lat. 158, Azo of Bologna, decretals >> Azo, Summa Codicis and other works
  • Urb.lat. 159, finely illuminated law text by Bernardo Bottoni on Gregory’s Decretals, with a 14th-century arbor consanguinitatis where the tree is held in a planter by the law-giver (discussed by Hermann Schadt, Arbores, at p 259 ff.)
  • Urb.lat. 160, Johannes Andreae, Boniface VIII, decretals dealing with marriage and other legal issues >> mainly the Liber Sextus of pope Boniface VIII
  • Urb.lat. 1057, bound book of papal records

Piggin very sensible enlivens his lists with small format images of often remarkable illuminations, but to keep it here within sensible length I have excised the images and his remarks, except for those concerning legal trees such as the arbor consanguinitatis. In a post about digitized manuscripts in Bologna I have looked at the Mosaico project and its section about the Arbor actionum, the “Tree of actions”, a tool designed for determining which legal action(s) you should choose. Among legal diagrams Piggin looks in particular at the arbores consanguinitatis et affinitatis, and he proposes some substantial revisions of the views expressed by Hermann Schadt in his classic study Die Darstellungen der Arbores Consanguinitatis und der Arbores Affinitatis : Bildschemata in juristischen Handschriften (Tübingen 1982). Piggin published a post about legal arbores, and he has even has written an accompanying guide, The Missing Manual: Schadt’s Arbores. The virtual exhibition Illuminating the Law of the Fitzwilliam Museum in Cambridge shows some examples of these arbores. Piggin questions the very use of the word tree and invites scholars to look more closely and use terms carefully.

In Piggin’s notes the sheer variety of manuscripts faithfully mirrors the wealth of the manuscript collections at the BAV. For the field of legal history I have included also some items concerning the papal inquisition (Borgh. lat. 348, Vat. lat. 3978 and 12732) and some papal records (Reg. lat. 189 and Urb. lat. 1057). The manuscript Vat. lat. 3740 with questions concerning apostolic poverty reminded me of Umberto Eco’s The Name of the Rose and this subject as a bone of contention figuring in his novel. DigiVatLib does in many cases include at least some bibliographical information with which you can start further exploration of a manuscript.

Apart from his interest in legal iconography Piggin explores the origin of the use of diagrams with stemmata. I can only admire his tenacious approach and the way he blogs about his research in ancient and medieval history. The main results of his research appear at his own website. One of his latest blog posts concerns the text of a medieval commentary on biblical arbores humani generis, a kind of genealogical schemes showing the genealogy of Christ. The text seems to have been overlooked because it only filled gaps in drawings. It seems the kind of discovery only made by those who look at things supposedly well-known with an ever open mind.

While finishing this post the staff of DigiVatLib is busy transferring digitized manuscripts and incunabula to a new platform with enhanced interoperability. There have been complaints presence of large watermarks on the digitized images. It is also remarkable to see an interface for English, Italian and Japanese. There is now an advanced search mode with even fuzzy filters (“partial match”). You can tick a field for non-digitized items and choose to search only manuscripts. The galleries with selected manuscripts and the twenty latest digitized items wet your appetite for more. Twice every month you can get at Piggin’s blog a preview of newly digitized manuscripts. Even if it is possible to correct and expand his notes on legal manuscripts, you must admit that creating commented lists does at least provide useful orientation. Perhaps some legal historian might take up the challenge of providing a regular list of updates for digitized legal manuscripts at the BAV with sufficient information to start benefiting truly from this massive digitization project.

Medieval laws in translation

Languages can act as formidable barriers to our understanding of both past and present. Even if you happen to have a talent for foreign languages translations can help you in many ways to gain insight into the messages and form of a source. In medieval Europe many legal sources were written or only accessible in Latin. However, a number of medieval legal texts have been translated into the vernacular. In this post I want to look at a number of medieval translations of such sources and at two modern translation projects. Recent news about these projects offers me an occasion to write about this subject.

Medieval translators at work

In the Middle Ages translating the works of Aristoteles from Greek – or Arabic – into Latin formed probably the largest translation project of a millennium. The volumes with the scholarly edition of the Aristoteles Latinus project are still being published. For many scientific disciplines medieval translators took the trouble of translating important sources. In the field of law, too, one can point to translations. The most massive project, the Basilica, is not only a translation but also an adaptation of Justinian’s Institutes, his Digest, Codex and the Novellae. For some parts of the Justinian codification older Greek translations exist which the translators around 900 used in Byzance. A team at the University of Groningen led by H.J. Scheltema produced a modern critical edition of the text and the scholia, the accompanying glosses [Basilicorum libri LX (17 vol., Groningen 1953-1988)].

A very interesting example of a translated medieval legal text is Lo Codi, a legal commentary from the twelfth century originally written in Occitan, a language spoken in Southern France and Catalonia. Lo Codi has been translated in French, Castilian, Latin and Franco-Provencal. I wanted to check information about this text at the homepage of Johannes Kabatek at the Universität Tübingen. Since his move to Zürich this page has been removed, but luckily he has put them on his private website. At this webpage you can compare different manuscripts and versions. An article about Lo Codi by Kabatek from 2000 is also available online (PDF). Kabatek does show Lo Codi is an independent adaptation of the Summa Trecensis, and not just a translation.

Banner The Medieval Nordic Legal Dictionary

The first large-scale project I want to introduce in this post is The Medieval Nordic Legal Dictionary, a project led by the University of Aberdeen. Not only a dictionary will be the fruit of this project, but also translations of Scandinavian laws. Two volumes with translated laws have already appeared. A few years ago I wrote here about medieval Scandinavian laws, and it is surely helpful to be able to use these translations alongside the original texts. The page for laws of this project provides you with a quick overview of the main laws. the current editions and the planned or already published translations. The bibliography of the dictionary project shows that luckily for some texts translations appeared in the twentieth century, however, in a number of cases into current Icelandic, Norwegian, Danish or Swedish.

Some medieval legal texts have been translated in the sixteenth century. This month I saw an announcement for a lecture in Paris on April 6, 2016 by Patrick Arabeyre (École nationale des Chartes, Paris) on ‘Deux exemples de traduction vers le latin dans le domaine juridique : la traduction d’ordonnances royales par Étienne Aufréri (1513) et la traduction des Coutumes d’Orléans par Jean Pyrrhus d’Angleberme (1517)’ as a part of a conference on La traduction en vernaculaire entre Moyen Âge et Renaissance. The first subject of his lecture were royal ordinances edited by Étienne Aufréri in 1513, and he looked also at the translation by D’Angleberme of the Coutumes d’Orléans (1517). A second lecture by Frédéric Duval, also attached to the ENC, concerned the versions of Lo Codi. In April 2015 Duval presented a paper about French translations of the Corpus Iuris Civilis.

Nowadays the French Biblissima portal is a fine gateway to several projects concerning the production and transmission of manuscripts, and using the English interface it is very much accessible. One of the online databases at the École nationale des Chartes is called Miroir des classiques, “Mirror of the Classics”, a project in which Duval participates. Unfortunately this database does not yet contain any notice about translated legal texts, but eventually they will be included. How can one trace more medieval translations? For Ancien Français, one of the phases of medieval French, there just happens to be a resource that can help you. The bibliography of the Dictionnaire Étymologique de l’Ancien Français (DEAF) does lead you to a number of translations, many of them still only existing in manuscripts. The section C of this bibliography shows for example two thirteenth-century translations of the Code de Justinien. The entry at CodiFr mentions Lo Codi and states flatly this is a translation of the Codex Justinianus, a notice clearly in need of some updating. Under the letter I you will find both a complete translation of the Institutiones Iustiniani and an abridged version. Five manuscripts exist with a French translation of the Digestae. The Summa Codicis of Azo, too, exists in a French version, the Somme Acé. By the way, you can find a number of online dictionaries and textual corpora at the website of the Dictionnaire de Moyen Français. For the field of medieval canon law one has to single out the medieval French translation of the Decretum Gratiani. This translation has been edited by Leena Lofstedt, Gratiani Decretum. La traduction en ancien français du Décret de Gratien (5 vol., Helsinki, 1992-2001). I have not taken a complete tour of the sources of the DEAF, but it is certainly rewarding to look for yourself, and not only for matters concerning France. Anglo-Norman texts appear here, too.

Searching in manuscript catalogues will no doubt yield further results. A search in the digital catalogue for archives and manuscripts of the British Library brought me to ms. Royal 20 D IX, a late thirteenth-century French translation of the Authenticum and the Tres Libri, the books 10-12 of the Codex Justinianus. The database Manuscripta Iuridica at Frankfurt am Main contains for example for the French translation of the Institutes – usefully put together as Institutiones Justiniani, versio Gallica – references to thirteen manuscripts. The manuscript in London, too, has not escaped the attention of Gero Dolezalek and Hans van de Wouw, the creators of the Verzeichnis der Handschriften zum römischen Recht bis 1600 (4 vol., Frankfurt am Main 1972) used for the database, nor did they miss the French version of the Digestum Vetus, and the Infortiatum. For Azo you will find not only the translation of his Summa Codicis, but also a translation of his summa on the Digesta.

Twelve volumes and an addendum

Five years ago the last of the twelve volumes of the modern Dutch translation of the Corpus Iuris Civilis appeared. I wrote here a post about the presentation of the final volume in 2011, and in that post I looked also at other complete translations of the Corpus Iuris Civilis. On Friday April 15, 2016 yet another volume was presented at a symposium in Utrecht. Jop Spruit, the indefatigable founder of the project, translated with Jeroen Chorus also the Libri Feudorum, a twelfth-century text from Lombardy concerning customary law dealing with fiefs. Kees Bezemer wrote the introduction to this translation with facing Latin text. In my view the translators wisely choose to follow the version of the Libri Feudorum as found within the Corpus Iuris Civilis. One of the arguments to include this work on customary law into the curriculum of the medieval law schools was the presence of glosses by Accursius. The modern critical edition gives both the oldest and the most used version (Vulgata) [Karl Lehmann (ed.), Das Langobardische Lehnrecht, (Handschriften, Textentwicklung, ältester Text und Vulgattext, nebst den capitula extraordinaria (Göttingen 1896; online in the Internet Archive)]. However, more versions came into existence. At the symposium in Utrecht Jeroen Chorus gave a talk about possession in the Libri Feudorum. Dirk Heirbaut compared the feudal law in the Libri Feudorum, the Leenrecht van Vlaanderen and the Lehnrecht of the Sachsenspiegel. Rik Opsommer discussed the use of the Libri Feudorum in the practice of Flemish feudal law, and Kees Bezemer looked at the role of feudal law in Early Modern Europe with a focus on a case in seventeenth-century Germany which became the subject of a disputation defended at Frankfurt an der Oder. The best point of depart to start exploring Early Modern German juridical disputations is the digital library of the Max-Planck-Institut für europäische Rechtsgeschichte, Frankfurt am Main.

The team of Dutch translators hesitated about the right number of the latest volume in the series of translated texts of Roman law. Twelve is such a beautiful number suggesting completeness! They finally opted for 12 Addendum. The set of twelve volumes can still be ordered from Amsterdam University Press.

Until now I have looked almost in vain for other translations of the Libri Feudorum. The translation by Lorenz Weidmann, Die Lehensrecht verdeutscht (…) was printed at least seven times between 1530 and 1541. The German bibliographical project VD 16 does not only make such statements possible, but it leads you also to the digital version of the first edition Augsburg 1530 (Munich, Bayerische Staatsbibliothek). Robert Feenstra wrote about it in his article ‘Kaiserliche Lehnrechte. Die Libri feudorum in deutscher Fassung nach Alvarotus und andere Inkunabeldrucke zum Lehnrecht. Mit Beiträgen über Johannes de Vanckel und die casus summarii des Baldus’, Tijdschrift voor Rechtsgeschiedenis 63 (1995) 337-354. There is also an online version of a translation by Jodocus Pflanzmann printed in an incunabula edition, Das buch der lehenrecht (Augsburg 1493; GW 7776). The Gesamtkatalog der Wiegendrucke (Staatsbibliothek zu Berlin) has a useful overview of editions and partial editions before 1501 of the Corpus Iuris Civilis. GW 7654 is a French translation printed at Paris around 1486 of Justinian’s Institutes, interestingly made in verses. The identification of the probable author, Richard d’Annebaut, is also given in the bibliography of the DEAF with references to the unique manuscript source, London, British Library, ms. Harley 4777.

Discussing the Libri Feudorum is entering a territory where three decades ago things might have seemed straightforward. Things have changed very much since Peter Weimar’s article ‘Die Handschriften der Libri feudorum und seine Glossen’, Rivista Internazionale di Diritto Comune 1 (1990) 31-98, reprinted in his volume of essays Zur Renaissance der Rechtswissenschaft im Mittelalter (Goldbach 1997) 171-238, and the study of Gérard Giordanengo, Le droit féodal dans les pays de droit écrit. L’exemple de la Provence et du Dauphiné XIIe – début XIVe siècle (Rome 1988). I must refer you here to online bibliographies such as the one provided by the Regesta Imperii at Mainz to see how much has been written recently about the approach of medieval lawyers to feudal law.

Of course it is possible to use modern translations of medieval legal texts, but in this post I wanted to investigate medieval translations. For searching modern translation one can benefit from the Online Medieval Sources Bibliography which even offers filters for translations containing also the original texts, translations in English, French or other languages. It might be helpful to end here with briefly noting the publication of the revised edition of Fred Blume’s translation of Justinian’s Code edited by Bruce Frier [The Codex of Justinian (3 vol., Cambridge, etc., 2016)]. The German translation project for the Corpus Iuris Civilis reached in 2012 its fifth volume with the books 28 to 34 of the Digest, edited by Rolf Knütel [Corpus Iuris Civilis, Band 5, Digesten 28-34 (Heidelberg 2012)]. Let’s hope the leaders and translators of such projects will and can benefit from the recent Dutch experience in completing a book project with nearly nine thousand pages.

A postscript

Frédéric Duval will present in June 2016 a paper about the late-medieval translations into French of parts of the Corpus Iuris Civilis at a two-day conference in Tours, Les traductions médiévales à la Renaissance et les auto-traductions (Tours, June 8-9, 2016).

In 2017 the Miroir des classiques project of Duval contains very detailed information also for medieval French translations of legal texts.