5

Decretal Collections and the Decretalists

Papal decretals had played an integral role in the canonical legal tradition from its earliest foundations. These letters contained the pope’s view on a particular legal matter, whether he was responding to a question or reacting to a situation that had come to his attention. Papal decretals sat alongside Scripture, writings of the Church Fathers, and conciliar canons as important sources of legal norms. The development of canonical courts in the twelfth century, refined, to some extent, the character of papal decretals. As the number of litigants bringing cases before the courts for resolution increased, so too did the pope’s legislative voice. Responsa/responsiones (responses) were decretal letters responding to questions from bishops seeking a legal opinion. Rescripta/rescriptae (rescripts) were decretal letters responding to judicial appeals.¹ These decretal letters were dispatched to the parties involved announcing papal decisions on individual cases, and frequently spelled out in some detail the rationale that underlay the decision. Because these rulings were not generally made public, their contents were often intended only for the parties who received them. Many of the decretals resemble, at least roughly, modern appellate court decisions and, as a result, practicing canonists and teachers of canon law found it useful, indeed essential, to make copies of these decretals and assemble them into collections. These private decretal collections soon emerged as important reference works for canon lawyers who wished to keep abreast of current law.²

1 A. Duggan’s essays “Current Research on the Decretals between Gratian’s Decretum and the Liber Extra,” Ephemerides Iuris Canonici 57 (2017): 245–275; and “Making the Old Law ‘New’, II. Canon Law in the New Environments: Norway and the Latin Kingdom of Jerusalem,” in Medieval Canon Law Collections and European ius commune= Középkori kánonjogi gyűjtemények és az európai ius commune, ed. S. Szabolcs Anzelm (Budapest, 2006), 236–262 offer excellent case studies demonstrating how popes used responsa and rescripta to address difficulties brought to them in a delicate and thoughtful manner as opposed to using such opportunities to augment their power.2 See G. Drossbach, “Decretals and Lawmaking,” in Cambridge History of Canon Law, eds. A. Winroth and J. C. Wei (Cambridge, 2022), 208–229, whom I thank for an offprint of her essay as the volume was not yet in print; A. Larson and K. Sisson, “Papal Decretals,” in A Companion to the Medieval Papacy: Growth of an Ideology and Institution, eds. A. Larson and K. Sisson (Leiden, 2016), 158–173; G. Fransen, Les décrétales et les collections de décrétales (Turnhout, 1972).

While not on account of the papacy’s intentional efforts, papal letters, along with newer conciliar legislation, served as the principal source of law included in most of the later twelfth-century collections. For this reason, “decretal law” is often referred to as “new law” and those who commented on it are referred to as “Decretalists”. The papacy was sensitive to the fact that they were shaping church law. Before 1234, compilers, not the papacy, determined which decretals and conciliar canons were important to include in their collections. By selecting and compiling this “new law” into collections and then by commenting on it, such canonists framed what the legal tradition should be.³ Together with the “old law” (ius vetus) found in Gratian’s Decretum, “new law” (ius novum) would form a unified body of canon law.

3 L. Kéry’s work is particularly important on this point. See, in particular, “Dekretalenrecht zwischen Zentrale und Peripherie,” in Römisches Zentrum und kirchliche Peripherie/Roman Center and Church Periphery: Das universale Papsttum als Bezugspunkt der Kirchen von den Reformpäpsten bis zu Innozenz III., eds. J. Johrendt and H. Müller (Berlin, 2008), 19–45.

The second half of the twelfth century witnessed a proliferation of canonical collections devoted principally to papal decretals. Three factors set the stage for this proliferation. The first, the sophistication of papal governance, had its roots in the reform movement of the eleventh and early twelfth century. A few innovations are worth noting as they contributed significantly to the rise of an organized bureaucratic structure.⁴ Among the most important is that the Roman cardinalate transformed from a local body focused on serving the city of Rome into the College of Cardinals, a body tasked with the election of the pope and to act as “spiritual senators of the universal church”. This collegium comprised of cardinal-bishops, -priests, and -deacons who were appointed from across Europe. Another key innovation was the reorganization of papal offices and, effectively, the creation of the Roman curia (curia Romana) under Pope Urban II. The chamberlain (camerarius) oversaw the financial office (camera), an office that was reorganized under Pope Urban II. The chancellery under the auspices of the papal secretary issued papal documents that confirmed, extended, or created privileges of rights and possessions, and also announced judicial decisions. The papal consistory dealt with the growing volume of business and offered advice on all matters concerning the welfare of the papacy and the government of the universal church. In addition to serving the curia, the cardinals also became involved in the resolution of questions concerning the Catholic faith and investigating the teachings of suspect theologians. The use of papal legates—representatives of the pope tasked with conducting business across Christendom on the papacy’s behalf—also increased dramatically. Legates confirmed ecclesiastical possessions and rights, confirmed episcopal elections and synodal judgments, and settled disputes between churches. The papacy also relied more heavily on “standing legates”. Rather than being appointed for a particular assignment, “standing legates” were on retainer in that they were commissioned long-term to act on the pope’s behalf. Papal legates also served on occasion as judges-delegate, judges appointed by the pope to investigate cases of particular complexity.⁵ Sometimes the judge-delegate might be from the area and thus knew the persons involved and the origins of the dispute; though associated with the papacy, they also knew how to work within the local or provincial legal tradition.⁶ Other times, the judge-delegate might be an outsider appointed for his objectivity.

4 For a fuller discussion of the papal government’s evolution, see I. S. Robinson, The Papacy 1073–1198: Continuity and Innovation (Cambridge, 1990), esp. ch. 2. For a discussion of the papal government within the wider reforms of the eleventh century, see K. G. Cushing, Reform and the Papacy in the Eleventh Century: Spirituality and Social Change (Manchester, 2005), 81–85.5 See K. R. Rennie, Law and Practice in the Age of Reform: The Legatine Work of Hugh of Die (1073–1106) (Turnhout, 2010). For a history of papal legates, see idem, The Foundation of Medieval Papal Legation (London, 2013)6 For the papacy’s use of the same judges-delegate in the province of Reims, see J. S. Ott, “Men on the Move: Papal Judges-Delegate in the Province of Reims in the Early Twelfth Century,” in The Use of Canon Law in Ecclesiastical Administration, 1000–1234, eds. M. H. Eichbauer and D. Summerlin (Leiden, 2018), 23–50.

Papal legates and judges-delegates became staples of the papal bureaucracy in the twelfth century because litigation was consuming much of the curia’s time and efforts. Since the fourth century Rome had claimed appellate jurisdiction over the other churches; that is, the Roman see was the court of appeal and the pope’s decision was final. This stance was echoed and strengthened in the Pseudo-Isidorian Decretals. It was strengthened again during the reform period; in 1115, Pope Paschal II reminded King Henry I of England that the pope’s purview included reviewing and handling the weightier matters that impacted any church. It would come to its fullest understanding in the late twelfth century as Pope Alexander III recognized that the procedure of appeal was the basis of the pope’s judicial primacy. In addition to acting as the final court of appeal, the papal curia also acted as a court of first instance (the court in which a case is first tried, not an appeals court) before the end of the twelfth century. The growth of the pope’s status prompted litigants to bring their cases directly to the curia without first having recourse to lower courts (the bishop’s or archdeacon’s court served as the court of first instance, followed by the court of the metropolitan).⁷

7 See Robinson, The Papacy 1073–1198, chs. 4 and 5.

Papal direction of councils, which reflected the overall growth of papal authority, was a second factor setting the stage for the proliferation of decretal collections. Regional councils had long been the venue at which local matters were discussed and resolved. While they continued to be so in the eleventh and twelfth centuries, the papacy used papal synods held at regional locations as the best place to promote its reform agenda.⁸ Pope Urban II upended the traditional conciliar process of bishops debating and formulating decrees at a council followed (usually) by papal ratification to now promulgating decrees and the bishops acclaiming those decrees at the council. Urban II, for example, held such councils at Piacenza (1095), Clermont (1095), Nîmes (1096), and Rome (1099).⁹ These papal synods often repeated common themes, such as those found at the general council, the First Lateran Council, held by Pope Calixtus II in 1123: simony, avoidance of excommunicates, canonical election, clerical celibacy, alienation of church property by laymen, consanguineous marriages, crusading indulgence, and the Peace and Truce of God. The council also brought the Investiture Controversy to a close by ratifying the Concordat of Worms and addressed a series of jurisdictional disputes between various ecclesiastics.¹⁰ Pope Innocent II, as another example, held councils at Clermont (1130), Reims (1131), Piacenza (1132), and Pisa (1135). Innocent II reiterated themes addressed at the Second Lateran Council (1139). He condemned the papal schism involving Anacletus II which had begun in 1130. He also condemned schismatics and heretics, simony, inheritance of ecclesiastical offices, clerical concubinage, nuns who married, sons of priests ministering at the altar, consanguineous marriages, lending at interest, assaults on clerics, and arson. Finally, he addressed episcopal behavior, the protection of ecclesiastical property, and the proper administration of the sacraments.¹¹ Papal councils thus became an important mechanism by which the papacy engaged with and steered the direction of the Church by promoting its agenda.

8 On general councils as an arm of papal government, see Robinson, The Papacy 1073–1198, ch. 3.9 On the council of Piacenza, see R. Somerville, Pope Urban II’s Council of Piacenza (Oxford, 2011).10 COGD II/1, 89–94 with an introduction on 75–85. See also A. J. Duggan, “Conciliar Law 1123–1215: The Legislation of the Four Lateran Councils,” in HMCL, 318–366, here 324–328.11 COGD II/1, 105–113 with an introduction on 97–101. See also Duggan, “Conciliar Law 1123–1215,” in HMCL, 328–333.

The third factor setting the stage for the proliferation of decretal collections arose out of the success of Gratian’s work. The previous chapter introduced us to the literary genres developed in the schools to comment upon texts such as the Decretum as vehicles to explain, cross-reference to other legal texts, or even to disagree with Gratian. The popularity of Gratian’s text at the schools was unparalleled and it continued to have texts added to it. Such texts were copied in the margins of Decretum manuscripts and, with successive recopying of manuscripts, would be woven into the main text. These texts are known as paleae, after the Bolognese canonist Paucapalea who was the first to comment on the Decretum. It quickly became clear to canonists serving as both teachers and administrators that they needed to keep their repository of law current, particularly as they came across problems for which existing canon law either furnished unsatisfactory solutions or none at all. They returned, in some cases, to Burchard of Worms’ Decretum or to the register of Pope Gregory I for additional texts.¹² They also turned to the papal decretals of popes from Eugenius III (1145–1153) to Clement III (1191–1198). The texts also could derive from recent councils, such as Pope Alexander III’s council of Tours (1163) and Third Lateran Council (1179). Such texts were collected together and became known as “extravagantes” (vagant extra Decretum),¹³ texts which circulated outside the Decretum. These early additions were texts that circulated as supplements to the Decretum, known as Dekretanhänge, and these appendices could be copied at the end of the Decretum or circulate independently. These appendices ushered what scholars have traditionally viewed as a new era: Gratian’s text and all that preceded it would be regarded as “old law” while newer collections, drawn principally, though not exclusively, from papal decretals and canons from recent papal councils would be regarded as “new law”.¹⁴

12 On the continued importance of the older legal tradition, see D. Summerlin, “Using the ‘Old Law’ in Twelfth-Century Decretal Collections,” in New Discourses in Medieval Canon Law Research: Challenging the Master Narrative, ed. C. Rolker (Leiden, 2019), 145–169.13 In the first edition, Brundage noted that extravagantes was commonly used to describe official papal utterances that had not yet been incorporated in an official collection of canons.14 C. Duggan, “Decretal Collections from Gratian’s Decretum to the Compilationes antiquae: The Making of New Case Law,” in HMCL, 246–292, here 253–256.

Decretal collections were instrumental to the legal practitioner. Take, for example, the English decretal collection, the Collectio Fontanensis, which was compiled at the abbey of Fountains and was used by its abbot. The Cistercian abbey had been founded in 1132 and by 1170/1180 had become an important player in English politics. The decretal collection, compiled between 1180 and 1190, was a reference tool for the abbot who was tasked to serve as a papal judge-delegate on difficult cases. The collection included decretals dealing with procedural law; marital law; property law involving the church, particularly as it pertained to the distribution of the tithe between churches and monasteries; and monastic law outlining rules and privileges.¹⁵ Ecclesiastical administrators viewed collections of the most recent law as critical to supplementing the old law found in the collections of Burchard of Worms, Ivo of Chartres, and Gratian, for example.

15 P. Landau, “Collectio Fontanensis: A Decretal Collection of the Twelfth Century for an English Cistercian Abbey,” in Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage, eds. K. Pennington and M. H. Eichbauer (Farnham, 2011), 187–204.

Decretal collections compiled between ca. 1150 and ca. 1190 are often categorized as either “primitive” or “systematic” collections. A “primitive” collection is one in which the texts were copied in no discernible order with no planned organization. Furthermore, they were largely compiled from recent decretal letters and conciliar decrees. Some of the earliest primitive collections originated in England.¹⁶ The collection known as Wigorniensis Altera serves as an example. It belonged to Worcester Cathedral and comprised of approximately ten decretals sent by Pope Alexander III to papal judges-delegates, the majority of whom worked in England. The Collectio Belverensis is a mishmash beginning with the canons from Pope Alexander III’s Council of Tours (1163), followed by decretals that are also found in the Collectio Wigorniensis Altera, followed then by nine additional letters, then canons from the Council of Westminster (1175), and finally nine more decretals received either at Canterbury or by Cistercian abbeys.¹⁷ In both examples the texts were simply added as is rather than being reorganized into a usable order, such as by topic. The decretals of Pope Alexander III play a key role in English, French, and Italian “families” of primitive collections.¹⁸

16 The best introduction to primitive and systematic decretal collections to ca. 1190 and their geographic scope remains C. Duggan, Twelfth-Century Decretal Collections and their Importance in English History (London, 1963); and idem, “Decretal Collections from Gratian’s Decretum to the Compilationes antique: The Making of the New Case Law,” in HMCL, 246–292.17 Duggan, Twelfth-Century Decretal Collections and their Importance in English History, 46–47.18 See Duggan, Twelfth-Century Decretal Collections and their Importance in English History, 124–135; idem, “Decretal Collections from Gratian’s Decretum to the Compilationes antique,” in HMCL, 256–269 for the collections contained in the particular families and respective branches of those families. G. Drossbach, “Die Collectio Victorina prima: Dekretalenrecht in Saint-Victor,” in Diligens Scrutator Sacri Eloquii: Beiträge zur Exegese- und Theologiegeschichte des Mittelalters Festgabe für Rainer Berndt SJ zum 65. Geburtstag, eds. H. Peter Neuheuser, R. M. W. Stammberger, and M. M. Tischler (Münster, 2016), 349–363 has analyzed the Collectio Victorina and demonstrated how the abbey of St. Victor was a key player in burgeoning legal tradition of northern France.

“Systematic” collections, by contrast, were thematic. Compilers organized recent decretals and conciliar decrees—in addition to a significant amount of pre-Gratian material—into books, or into titles, or into books and titles. Such an organization was suitable for working jurists and academics. The collection Parisiensis secunda (ca. 1177/1178) is the first such example.¹⁹ It included 95 sections with headings such as De consuetudine (“On custom”), De novis statutis (“On new statutes”), De appellationibus (“On appeals”), and De clericis depositis (“On clerics who have deposed”). The collection includes cross-references to Gratian’s Decretum and to Roman law in the margins of the text. As with primitive collections, scholars have organized systematic collections into groups: the Worcester Tradition, the Appendix group, the Anglo-Norman group, the Bamberg group, the Frankfurt group, and the Bruges group.²⁰ The collections in the Worcester Tradition (deriving from Worcester and Exeter, ca. 1181) owe their origins to judges-delegate and canonists at Worcester, particularly to decretals from Alexander III to Bartholomew of Exeter (d. 1184) and Roger of Worcester (d. 1179) as papal judges-delegate followed by Baldwin, archdeacon of Totnes and then monk (ca. 1169) and abbot (ca. 1175) of the Cistercian monastery of Forde. Individual books addressed by the collections in this tradition deal with marriage, status of the clerics and the religious, and procedural law. The Appendix group (originating either from Lincoln or Oxford after 1184) includes a significant amount of material from Pope Alexander III and demonstrates deep connections between the Angevin territories in England and in the Norman territories in France, particular Rouen. The Anglo-Norman group similarly demonstrates the close ties between England and Normandy. The Bamberg group (Tours, after 1184) was compiled in France shortly after the pontificate of Lucius III (d. 1185) and used titles to organize material into themes addressing clerical status, ecclesiastical property, criminal cases, judicial procedure, and marriage. The Frankfurt group (ca. 1183) originated in the area around Sens while the Bruges group (after 1187) originated around Reims. England, northern France, and the Norman territories that bound the two kingdoms proved to be fertile areas for the production of new law. Though the division and arraignment differ between the groups, the different groups of decretal collections circulated between regions and influenced one another. Collectively, they would lay the groundwork for the distinct fields of procedure, criminal, and marriage law.²¹

19 Duggan, “Decretal Collections from Gratian’s Decretum to the Compilationes antique,” in HMCL, 270–271. Peter Landau has attributed the origin of the collection to Bologna and the canonist Bernard of Pavia, see “Die Entstehung der systematischen Dekretalensammlungen und die europäische Kanonistik des 12. Jahrhunderts,” ZRG Kan. Abt. 65 (1979): 120–148.20 See Duggan, Twelfth-Century Decretal Collections and their Importance in English History, 49–57; idem, “Decretal Collections from Gratian’s Decretum to the Compilationes antique,” in HMCL, 270–287. See also Drossbach, “Decretals and Lawmaking,” in Cambridge History of Canon Law, eds. Winroth and Wei, 208–229.21 Of tremendous importance is the work of W. Holtzmann, Studies in the Collections of Twelfth-Century Decretals, eds., rev., and trans. C. R. Cheney and Mary G. Cheney (Vatican City, 1979). For recent reassessment of the Collectio Francofurtana’s place as a transitional text between primitive and systematic collections, see G. Drossbach, “Die Collectio Francofurtana und die fünf Bücher der Compilatio prima,” in Iuris Historia: Liber amicorum Gero Dolezalek, eds. V. Colli and E. Conte (Berkeley, 2008), 145–159; P. Landau and G. Drossbach, eds., Die Collectio Francofurtana: Eine französische Decretalensammlung. Analyse beruhend auf Vorarbeiten von Walther Holtzmann (Vatican City, 2007); Drossbach, “Schools and Decretals in the 12th century: The Collectio Francofurtana,” BMCL 24 (2000): 65–82.

The rate at which decretal collections quickened after 1190 as canonists teaching at the universities, notably at Bologna, sought to keep pace with increasing number of responsa and rescripta coming from the papal curia. The canonists who compiled and commented on decretal collections, the Decretalists, were in many cases the same men, the Decretists, who produced commentaries on the Decretum. For example, the canonist Petrus Hispanus glossed Gratian’s Decretum and Bernard of Pavia’s decretal collection the Breviarium, discussed below. Similar to the categorization of primitive and systematic collections into various family groups, scholars tend to group decretal collections dating between ca. 1190 and ca. 1234 into particular periods: 1190–1210, 1210–1217, 1217–1234, and 1234–1325.²²

22 What follows is grounded in K. Pennington, “The Decretalists, 1190–1234,” and “Decretal Collections, 1190–1234,” in HMCL, 211–245 and 293–317, respectively.

The period 1190 to 1210 was dominated by what would become known as the Compilationes antiquae (“Old Compilations”). It began with Bernard of Pavia (d. 1213)’s Breviarium extravagantium, compiled between 1188 and 1192 and after 1210 often referred to as Compilatio prima (“First Compilation”). Bernard organized nearly 1,000 decretals into five books, each dealing with a singular theme: iudex (“judge”), iudicium (“trial”), clerus (“clergy”), connubia (“marriage”), and crimen (“crime”). He further subdivided each book into titles that focused on subtopics within the book’s principal theme. He arranged the individual canons (capitula) within each title in chronological order, so that readers could determine which were the most recent decisions on that subject. The capitula are for the most part papal decretals, although Bernard included some conciliar canons, as well as citations from the Church Fathers and a few excerpts from Roman and Germanic laws. Bernard’s decretal collection was no doubt the product of his own experience as a canon law teacher at Bologna, and other teachers there and elsewhere quickly adopted it as a supplement to Gratian’s text and incorporated it into their syllabi. The Breviarium was the first of five such systematic decretal collections that the next generation of law teachers adopted as part of the curriculum. The English canonist Richard Anglicus taught at Bologna and while there wrote a fundamental commentary on the Breviarium ca. 1198 in which he cited Roman law. Petrus Beneventanus, a notary of the Roman curia under Pope Innocent III, compiled the collection Compilatio tertia (“Third Compilation”) around 1209/1210 at the request of the pope. All of the 482 chapters in the 122 titles of Compilatio tertia were drawn from the decretals issued by Pope Innocent III during the first twelve years of his pontificate. The pope transmitted it formally to the University of Bologna by the bull Devotioni vestri, which made Compilatio tertia the first papally authorized collection of canon law since the eighth-century Collectio Dionysio-Hadriana. In an odd, and oftentimes confusing ordering, the Englishman Johannes Galensis (John of Wales) compiled the collection known as Compilatio secunda (“Second Compilation”) sometime between 1210 and 1215, and after the compilation of Compilatio tertia. He drew from the decretals of Popes Alexander III, Clement III, and Celestine III. It, like the two compilations that preceded it, would be accepted by the law schools. Collectively, Compilationes prima, tertia, and secunda were glossed and taught alongside the Decretum.

The period 1210–1217 is marked by the glossing, teaching, and supplementation of Compilationes antiquae to keep the collections up to date. Glossing a text, as we saw with Gratian’s Decretum, was an important tool for furthering legal thought. As Ken Pennington has noted regarding Laurentius Hispanus’s glosses on Compilationes, “Laurentius had a gift of placing old problems in new settings—or seeing paradoxes or difficulties in the proverbial.”²³ Other significant glossators of the Compilationes were Vincentius Hispanus, Damasus Hungarus, and Johannes Teutonicus. Sometimes, particular needs resulted in an adaption and augmentation of the compilations to the point that new collections were created, such as the Pragensis, Palatina I, Abrincensis II, and Bambergensis secunda. Other times, decretals particular to a region were added to a current version, such as the northern French version of the Compilatio tertia. With the promulgation of seventy-one canons resulting from Innocent III’s Fourth Lateran Council (1215), Johannes Teutonicus added them along with decretals of Innocent III at the end of Compilatio tertia and called this work Compilatio quarta. However, unlike the first three Compilationes, this collection was not immediately accepted as Innocent III himself refused to approve it.²⁴ It was not until the 1220s that the work was firmly entrenched in the canonical tradition and regularly taught at the schools. With its acceptance Compilationes antiquae now included four collections.

23 Pennington, “The Decretalists, 1190–1234,” in HMCL, 229.24 K. Pennington has suggested that Teutonicus did not submit a completed version of Compilatio quarta to Innocent III for authentication but only a draft. In addition, the pope may have wished the council’s canons to circulate separately. See “The Fourth Lateran Council: Its Legislation, and the Development of Legal Procedure,” in The Fourth Lateran Council: Institutional Reform and Spiritual Renewal. Proceedings of the Conference Marking the Eight Hundredth Anniversary of the Council Organized by Pontificio Comitato di Scienze Storiche (Rome, 15–17 October 2015), eds. G. Melville and J. Helmrath (Affalterbach, 2017), 41–54, here 42–47.

The period 1217–1234 is marked by two canonists: Tancred of Bologna and Raymond of Penyafort. Tancred of Bologna (d. ca. 1236) studied Roman law under Azo and canon law under Laurentius Hispanus. Under the direction of Pope Honorius III, he compiled the last compilation to be included in the Compilationes antiquae, Compilatio quinta (“Fifth Compilation”). This collection comprised largely of the pope’s own decretals taken directly from his register. Tancred also commented on the Compilationes prima, tertia, and secunda, and this commentary became the Ordinary Gloss. Raymond of Penyafort (d. 1275), like Tancred and so many others, had studied and taught at Bologna. After returning to Spain and entering the Dominican order in 1222, Pope Gregory IX (d. 1241) recalled him to Rome in 1230 to compile a new official decretal collection that would include all of the relevant papal and conciliar law since Gratian up to his own time into one authoritative volume. Honorius III’s commissioning of Compilatio quinta had laid the groundwork for the “official” papal commissioning of canonical collections. On behalf of the pope and relying heavily on his register of letters, Raymond of Penyafort compiled the Decretales of Pope Gregory IX (1234), better known as the Liber extravagantium or Liber extra.²⁵ The structure of the Liber extra followed that of the Compilationes antiquae that Bernard of Pavia had laid out first in his Breviarium/Compilatio prima. The pope published the work, a massive compilation of almost 2,000 decretals, officially in September 1234, and in his letter of transmission to the Universities of Bologna and Paris directed that it be taught in the law faculties as the official law of the Roman church.²⁶ The Liber extra remained officially in force among Roman Catholics until 1918. With Compilatio quinta, but in particular with the Liber extra, we see that the compilation of legal texts was no longer a private affair. Papal responses (responsiones) and rescripts (rescriptae), once intended to assist the addressee with that particular matter, were now tailored so they could be applied universally.

25 For Liber extra manuscripts, see M. Bertram, “Signaturenliste der Handschriften der Dekretalen Gregors IX. (Liber extra),” Online-Publikationen des Deutschen Historischen Instituts in Rom (April 2014), available at http://www.dhi-roma.it/bertram_extrahss.html (accessed 1 April 2021). For an in-depth study of Raymond of Penyafort’s method of approaching the source material and his method of working, see E. Reno III, “The Authoritative Text: Raymond of Penyafort’s Editing of the Decretals of Gregory IX (1243)” (PhD diss., Columbia University, 2011); S. Kuttner, “Raymond of Peñafort as Editor: The ‘Decretales’ and ‘Constitutiones’ of Gregory IX,” BMCL 12 (1982): 65–80.26 For the Liber extra within a Parisian context, see F. Cahu, Un témoin de la production du livre universitaire dans la France du XIIIe siècle: La collection des Décrétales de Grégoire IX (Turnhout, 2013).

The writing and circulation of decretals continued after 1234, and within a few years of the Liber extra the publication of both official and unofficial collections commenced once again. Pope Innocent IV (d. 1254) published no less than three collections of Novellae (“New Laws”) in 1245, 1246, and 1253, while Gregory X (d. 1276) promulgated a further collection called, logically enough, the Novissimae (“Newest Laws”) in 1276. Pope Boniface VIII (d. 1303) incorporated most of the decretals officially published by his predecessors, together with other constitutions of his own, in the Sext or Liber sextus (“Sixth Book of Decretals”) in 1298. The Liber sextus consisted of five books structured on the conventional pattern of other decretal collections. The canons were drawn from the decrees of the first and second general councils of Lyon (1245 and 1274) and decretal letters of Gregory IX, Innocent IV (d. 1254), Alexander IV (d. 1261), Urban IV (d. 1264), Clement IV (d. 1268), Gregory X (d. 1276), Nicholas III (d. 1280), and Boniface VIII himself. Early in the fourteenth century another, and much smaller, official collection of new canons, the Constitutiones Clementinae (“Clementine constitutions”), was published by order of Pope John XXII (d. 1334) in 1317. The collection includes one decretal of Boniface VIII and one of Urban IV; the remaining decretals are all by Pope Clement V (d. 1314). Between 1325 and 1327 Zenzelinus de Cassanis (d. 1354), a former professor of canon and civil law at the University of Montpellier, compiled the Extravagantes Johannis XXII while a resident at the Roman curia in Avignon. This small private collection of twenty decretals was later divided into fourteen titles and published, together with the glosses of Zenzelinus, at the end of the fifteenth century by Jean Chappuis, a licentiate in canon law of the University of Paris. Chappuis would also compile the Extravagantes communes, a collection including sixty-nine decretals, which included three decretals of John XXII that also appeared in the Extravagantes Johannis XXII, two decretals of Clement V and one of Boniface VIII that also appeared in the Constitutiones Clementinae, and a decretal of Benedict XI (d. 1304) later revoked by Clement V. With the invention of printing in Europe at the end of the fifteenth century, the classical canonical texts—Gratian’s Decretum, the Liber extra, the Liber sextus, the Constitutiones Clementinae, the Extravagantes Johannis XXII, and the Extravagantes communes—appeared in Paris in 1500–1503 thanks to Chappius’s editing under the collective title the Corpus iuris canonici (“Body of Canon Law”), a title intended to parallel the publication of Justinian’s codification of Roman law, the Corpus iuris civilis (“Body of Civil Law”).²⁷

27 For more information on the collections in the Compilationes antiquae and the Corpus iuris canonci, see the “Bio-Bibliographical Guide to Medieval and Early Modern Jurists,” edited by K. Pennington and C. Donahue Jr., available at http://amesfoundation.law.harvard.edu/BioBibCanonists/.

The ius novum found in decretal collections comprised not only of thousands of papal decretals, but also hundreds of conciliar canons enacted at councils presided over by the pope. The canons of the Council of Reims (1148) convened by Pope Eugenius III were incorporated in six decretal collections. Seven English decretal collections incorporated the canons from Pope Alexander III’s Council of Tours (1163). Canons from the Council of Westminster (1175), convened by Alexander III’s legate Richard of Canterbury, likewise were included in decretal collections. Of particular importance to decretal collections through the Liber extra were the canons from the Third Lateran (1179) and the Fourth Lateran (1215). All of the canons from the Third Lateran Council circulated in decretal collections, twenty-two decretal collections to be exact, and they all found their way into the Liber extra. Johannes Teutonicus included the canons from the Fourth Lateran Council, canons which Innocent III and his curia had authored, in Compilatio quarta. From there they found their way into the Liber extra. The council was so influential that Teutonicus, Vincentius Hispanus, and Damasus Hungarus each compiled a set of glosses of the canons.²⁸ Canons from the First Council of Lyon (1245) and the Second Council of Lyon (1274) factor into the Liber sextus. The Council of Vienne (1311–1312) under Pope Clement V after the papacy had relocated to Avignon (France) was attended by only 170 prelates (though only 231 had been invited). The canons from this council factor heavily in the Constitutiones Clementinae, promulgated by Pope John XXII in 1317.²⁹

28 Duggan, “Conciliar Law 1123–1215,” in HMCL, 338–339 and notes for the specific collections, 353–354; A. García y García, “The Fourth Lateran Council and the Canonists,” in HMCL, 367–378, here 368, 370–373. Regarding the council’s impact on particular areas of law, see the essays in A. Larson and A. Massironi, eds., The Fourth Lateran Council and the Development of Canon Law and the ius commune (Turnhout, 2018).29 For the Council of Vienne, see R. Saccenti, “Concilium Viennese 1311–1312,” in COGD II/1, 361–367; J. LeClercq, Le concile de Vienne 1311–1312 (Paris, 1964); L. Veerecke, “La réforme de l’église au concile de Vienne 1311–1312,” Studia moralia 14 (1976): 283–337; S. Menache, Clement V (Cambridge 1998), 279–304. For a guide to the manuscript tradition of the Constitutiones Clementinae, see J. Tarrant, “The Manuscripts of the Constitutiones Clementinae, part I: Admont to München,” ZRG Kan. Abt. 101 (1984): 64–133 and part II: “Napoli to Zwettl,” ZRG Kan. Abt. 102 (1985): 76–146.

Compilers of decretal collections influenced the reception of conciliar canons by consciously deciding which to include or to exclude. Yet decretal collections were neither the official medium, nor the only medium, by which conciliar canons circulated. Prior to the thirteenth century, conciliar canons did not circulate in a definitive form. For example, the canons promulgated at Pope Urban II’s Council of Clermont (1095), at Pope Calixtus II’s First Lateran Council (1123), and at the councils of Pope Innocent II, including his Second Lateran Council (1139), circulated in varying number. That is, the manuscript tradition does not always agree about the number of canons promulgated at the council.³⁰ Decretal collections likewise varied as to which canons of Pope Alexander III’s Third Lateran Council (1179) were included.³¹ The reception of conciliar canons is thus particularly interesting because there is no guarantee that a copy of conciliar canons was complete with all of the canons promulgated. In addition, there was no guarantee that provincial and diocesan synods would re-promulgate the decrees. For example, Walter of Coutances selectively chose which canons from the Third Lateran Council to re-promulgate at the Council of Rouen in 1190. Roger, bishop of Cambrai, issued only one canon from the Third Lateran Council at the Council of Cambrai held sometime between 1181 and 1187.³² The Council of Westminster (1200) held under Hubert Walter adopted only those canons of the Third Lateran Council that suited the needs of the region, canons which he drew from the Anglo-Norman decretal collection Appendix Concilii Lateranensis.³³ A provincial or diocesan council could omit some canons, repeat others in their entirety, and adapt others to fit the needs of the council. For example, the Angers Compilation, dating between 1216 and 1219 and recording the decrees of synods in France and Anglo-Norman England, included canons promulgated at Pope Innocent III’s Fourth Lateran Council (1215). However, these canons were adapted. Canon 21 of the Fourth Lateran Council required the laity to confess yearly and to receive the eucharist at Easter, unless, having consulted with a priest, there was a good reason to refrain from receiving it for the time being. Those who failed to do so were barred from entering church for the remainder of their lives and denied a Christian burial. The canon as found in the Angers Collection failed to include the portion of the conciliar canon dealing with refraining from the eucharist and the repercussions for not receiving it. Richard Poore, bishop of Salisbury, also selectively included canons from the council; he likewise edited the language of the council’s canons in his collection of statutes for his diocese, particularly in the case punishment for clerical fornication.³⁴ As a final example, c.62 of the Fourth Lateran Council dealt with the proper storage, care, and use of holy relics: it sought the proper treatment of relics, to control the behavior of alms collections, to curb the abuses of indulgences, and to require authorization to beg for alms and to preach. However, which elements of the canon were emphasized depended upon local circumstances. The Benedictine abbeys of Sainte-Colombe, Saint-Pierre-le-Vif, and Saint-Loup-de Naud (a priory of Saint-Pierre-le-Vif) in the diocese of Sens side-stepped the portion of the canon that forbade the use of relics for financial gain.³⁵ While decretal collections may have recorded conciliar canons deemed essential by the compiler, (arch)bishops and abbots were equally important for the form and fashion in which conciliar canons were implemented.

30 M. Brett and L. I. Hamilton, “New Evidence for the Canons of the First Lateran Council,” BMCL 30 (2013): 1–20; M. Brett and R. Somerville, “The Transmission of the Councils from 1130 to 1139,” in Pope Innocent II (1130–43). The World vs the City, eds. J. Doran and D. J. Smith (London-New York, 2016), 226–271.31 For a detailed study, see D. Summerlin, The Canons of the Third Lateran Council of 1179: Their Origin and Reception (Cambridge, 2019), 125–182.32 Ibid., 206. For more on local reception of the canons from the Third Lateran Council see pp. 119–213.33 D. Summerlin, “Hubert Walter’s Council of Westminster in 1200 and Its Use of Alexander III’s 1179 Council,” in The Use of Canon Law in Ecclesiastical Administration, eds. Eichbauer and Summerlin, 121–139.34 J. M. Wayno, “Rethinking the Fourth Lateran Council of 1215,” Speculum 93, no. 3 (2018): 611–637, 622–627.35 C. Oakland, “The Legacy of Canon 62 in the Diocese of Sens in Northern France (1215–1469),” in The Fourth Lateran Council and the Development of Canon Law and the ius commune, eds. A. Larson and A. Massironi, 187–204.

The abundant literature on decretal law was almost invariably a by-product of the teaching process and represented lectures and observations on the texts made by law teachers of the period. Many of the more celebrated writers combined teaching with private practice, administrative careers, and/or judicial appointments. Geoffrey of Trani (d. 1245), author of an early and much-copied Summa on the Liber extra, first taught at Naples and then at Bologna, then took a judicial appointment at the papal curia, and finally ended with an appointment as a cardinal.³⁶ One of Geoffrey’s patrons was Sinibaldo dei Fieschi, who, after teaching for a time at Bologna and holding a succession of increasingly important curial positions, ultimately became Pope Innocent IV.³⁷ Even during his eventful pontificate, Sinibaldo continued his work as a legal scholar and completed his Apparatus in quinque libros decretalium, a commentary on the Liber extra shortly before his death. One of Sinibaldo’s contemporaries during his student years at Bologna was Henry of Susa (d. 1271), who taught canon law for a brief period at Paris but spent much of his mature life as an adviser to kings and popes. Like Sinibaldo, Henry of Susa continued to revise and expand his legal writings long after he had stopped lecturing. He completed a short Summa on the titles of the Liber extra (which later came to be called the Summa aurea or “Golden Summa”) while he was archbishop of Embrun and his lengthy Lectura on the Liber extra after he had become cardinal-bishop of Ostia in 1262. As a consequence of this last and highest of his ecclesiastical offices, Henry of Susa is usually referred to as Hostiensis.³⁸

36 S. Kuttner, “Der Kardinalat des Gottfried von Trani,” Studia et documenta historiae et iuris 6 (1940): 124–131.37 K. G. Cushing, “Sinibaldo Fieschi (Pope Innocent IV) 1180/90–1254,” in Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, eds. O. Condorelli and R. Domingo (London-New York: Routledge, 2020), 70–81.38 Pennington, “Enrico da Susa (Cardinal Hostiensis (ca. 1200–1271),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 82–97.

William Durand (d. 1296), a younger contemporary of Hostiensis and Innocent IV, likewise combined scholarship and an academic career with judicial and administrative appointments. After completing his doctorate at Bologna, Durand taught there for a while and later took a professorship at Modena. Subsequently he was appointed to a judgeship in the curia, then returned to Bologna as its papal governor, and late in life became bishop of Mende in the French Midi. Durand’s contemporaries rightly regarded him as a distinguished scholar, especially for his Speculum iudiciale, which he completed while serving as a judge and which he subsequently revised while he was a bishop. Durand’s Speculum became the leading procedural textbook of the later Middle Ages.³⁹

39 O. Condorelli, “Guillaume Durand (c.1230–1296),” in Great Christian Jurists in French History, eds. O. Descamps and R. Domingo (Cambridge, 2019), 52–70.

One of the last of the great figures of canon law in the period between 1234 and 1325 was Giovanni d’Andrea, commonly known by the Latinized form of his name as Johannes Andreae (d. 1348). Johannes Andreae, unlike the others, was a married layman and taught throughout most of his life, mainly at Bologna, where he completed his doctorate between 1296 and 1300. Johannes combined his teaching with service as a legal adviser to the municipality of Bologna and to several popes, notably John XXII, who appointed him a papal legate—a most unusual position for a layman to hold. Johannes compiled the standard gloss to the Liber sextus and to the Constitutiones Clementinae, wrote a lengthy Lectura (which he entitled Novella, in honor of one of his daughters who bore that name), and composed numerous additional comments on the Speculum iudiciale of William Durand.⁴⁰

40 P. D. Clarke, “Giovanni d’Andrea (1270–1348),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 145–159; J. Otaduy, “Juan de Andrés,” in Juristas universales, ed. R. Domingo (Madrid, 2004), 1:499–506; S. Stelling-Michaud, “Jean d’André,” in DDC, 6:89–92; F. Gillmann, “Zur Frage der Abfassungszeit der Novelle des Johannes Andreä zu den Dekretalen – Gregors IX.,” AKKR 104 (1924): 261–275.

Contributing further to the abundant literature on decretal law was the incorporation of Roman law which began to take off in the late eleventh/early twelfth century and increased exponentially throughout the twelfth and thirteenth centuries. Canonists in the late twelfth century habitually borrowed terms, ideas, concepts, and institutions from the civilians, while civilian writers frequently compared canonical institutions and practices with those that they found in Roman legal texts. By the early thirteenth century the symbiotic relationship between the two learned laws (so called in contrast to customary law and municipal statutory law, which were not typically subjects of formal study in university law faculties) had grown so close and pervasive that scholars sometimes speak of a “reception” of Roman law by the canonists. “Reception” in this context means that canonists accepted the law of Justinian’s Corpus as a supplementary source of canon law.⁴¹ Thus, when canonical sources failed to supply answers to a question or solutions to a problem, canonists sometimes drew the information and legal rules that they needed from Roman law sources. In a practical sense, as well, the two laws were interdependent. Law students who realistically hoped to make a living as practicing lawyers needed to study both laws in order to acquire the skills necessary to assure themselves a livelihood. Short handbooks of civil law for canonists and of canon law for civilians consequently found an eager readership and circulated widely.⁴²

41 E. C. C. Coppens, “L’interpétation analogique des termes de droit romaine en droit canonique médiéval,” in Actes du colloque “Terminologie de la vie intellectuelle au moyen âge” (Turnhout, 1988), 54–64; S. Kuttner, “Some Considerations on the Role of secular Law and the Institutions in the History of Canon Law,” in Scritti di sociologia e politica in onore di Luigi Sturzo (Bologna, 1953), 2:351–362, repr. in Kuttner’s Studies in the History of Medieval Canon Law.42 I. Baumgärtner, “‘Was muß ein Legist vom Kirchenrecht wissen?’ Rofredus Beneventanus und sein Libelli de iure canonico,” in Proceedings Cambridge 1984, 223–245.

Bologna was an important center for the teaching of Roman law and canon law. Bulgarus de Bulgarinis (d. ca. 1166), along with Martinus Gosia (d. ca. 1160), Hugo da Porta Ravennate (d. between 1166 and 1171), and Jacobus (d. 1178) were regarded as the “Four Doctors”. These jurists had studied under Irnerius and followed in his footsteps, teaching Roman law at Bologna between ca. 1130 and ca. 1170. Bulgarus and Martinus were the most renowned of the Four Doctors. Bulgarus studied the interpretation of a law and the particular purpose for its enactment. Martinus’s study of law led him to believe that a law could be modified by reference to equity. He is best known for his treatise on consanguinity and his treatise on dowry law. Hugo compiled a treaty on inheritance known as the Summa de petitione hereditatis. Finally, Jacobus may have compiled a treatise on criminal law. Among those in the generation that followed the “Four Doctors” as magisters of Roman law include: Rogerius (d. 1162); Placentius (d. ca. 1182), who taught at Montpellier; and Johannes Bassianus, who studied under Bulgarus (second half of twelfth century). The canonist and theologian Vacarius worked in the household of Theobald, archbishop of Canterbury and taught Roman law at Oxford possibly between 1149 and the 1190s. He compiled the Liber pauperum (“The Poor Men’s Book”) after 1149, which served as an introduction to the study of Roman law. The thirteenth century saw Roman jurists—such as Hugolinus de Presbytero (d. ca. 1235); Azo (d. ca. 1230), who had studied under Bassianus, Tancred (d. 1236); Accursius (fl. 1230s), who had studied under Azo; Odofredus (d. ca. 1265); and Cino Sinibuldi of Pistoia (d. 1336)—commenting on Justinian’s Corpus iuris civilis (Institutes, Digest, Codex, and Novellae) and, in turn, influencing canonical commentary.⁴³

43 E. Cortese, Il diritto nella storia medievale. II: Il basso medioevo (Rome, 1995), 145–195; M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. by L. G. Cochrane (Washington, DC, 1995), 167–174; Brundage, The Medieval Origins of the Legal Profession, 82–93; P. Stein, Roman Law in European History (Cambridge, 1999), 47–49. On Vacarius in particular, see the work of J. Taliadoros, Law and Theology in Twelfth-Century England: The Works of Master Vacarius (c.1115/1120–c.1200) (Turnhout, 2006). On Azo and Accursius in particular, see E. Conte, “Azo (ca. 1165 to ca. 1220/30) and Accursius (1182/5 to ca. 1263),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 56–69. On Cino Sinibuldi of Pistoia see G. Speciale, “Cino Sinibuldi da Pistoia (ca. 1265–1336),” in Law and the Christian Tradition in Italy, eds. Condorelli and Domingo, 128–144. Individual entries that can be accessed in K. Pennington and C. Donahue Jr., “Bio-Bibliographical Guide to Medieval and Early Modern Jurists,” available at http://amesfoundation.law.harvard.edu/BioBibCanonists/.

The marriage of lepers offers an excellent case study both of decretals engaging in a shifting social climate and of Decretalist commentary adapting Gratian’s Decretum and Roman law to newly perceived problems. Canonists of the mid-eleventh and early twelfth century, such as Gratian, interpreted leprosy through the lens of reform and renewal. The leprous sinner, marked by divine judgment (divinum iudicium), was an allegory for the need to confess and perform satisfaction to be cleansed by God. The leprous simoniac was a metaphor for the clerical sin of simony and rapid promotion through the ecclesiastical ranks.⁴⁴ The rapid proliferation of leprosaria (leper houses) in the twelfth century, however, marked a shift in thinking of leprosy as a spiritual affliction to one regarded as a significant threat to public health. Bernard of Pavia devoted an entire title to this issue, De coniugio leprosorum, in his Compilatio prima, a title which also would be incorporated into the Liber extra. The papacy and Decretalists grappled with the question of whether leprosy should be treated under the same umbrella as serious illnesses, and thus subject to the same legal principles, or was this disease separate and distinct enough to warrant a new legal principle. Of particular concern was whether a spouse could be forced to render the conjugal debt, a challenging issue that elicited different opinions. In one case, Pope Alexander III decreed that if wife could not be exhorted to render debt, then the couple should remain celibate.⁴⁵ In another case, he decreed that the debt should be rendered without exception.⁴⁶ Bernard of Pavia had concluded that leprosy (elephantinus) equated to scabies (an itch) and tigna (a bad smell caused by a discharge); they neither impeded the ability to contract a marriage, nor separated an already contracted marriage, nor negated the conjugal debt.⁴⁷ Geoffrey of Trani agreed that the healthy spouse should live nearby the leprous spouse if s/he had entered a leper house so as to render the debt upon request.⁴⁸

44 M. H. Eichbauer, “Legal Authorities and Their Legislative Priorities: The Treatment of Leprosy in the Sources of Canon Law,” ZRG Kan. Abt. 106 (2020): 153–195, here 163–174.45 1 Comp. 4.8.1 (X 4.8.1). See Brundage, “Marriage and Sexuality in the Decretals of Pope Alexander III,” in Miscellanea Rolando Bandinelli Papa Alessandro III, ed. F. Liotta (Siena 1986), 57–83; C. Duggan, “Decretals of Alexander III to England”, in Miscellanea Rolando Bandinelli Papa Alessandro III, 85–151.46 1 Comp. 4.8.2 (X 4.8.2).47 Bernard of Pavia, Summa Decretalium, eds. E. Adolph and T. Laspeyres (Regensburg 1860, rpt. Graz 1956), ad X 4.8 (pp. 152–153).48 Godfredus Tranensis, Summa super titulis Decretalium (Lyon 1519; rpt. Aalen 1968), ad X 4.8 (fol. 179vb / p. 360).

As martial law was a keen area of interest for the papacy, Hostiensis devoted particular attention to how leprosy impacted the rendering of the conjugal debt. He stressed the importance of conjugal affection and the duty to render the debt. Drawing from a gloss of Alanus Anglicus,⁴⁹ Hostiensis maintained that while a wife had to share neither the same bed nor the same house with the leprous spouse, she should reside nearby so her husband was not cheated of his debt.⁵⁰ What, however, should happen if she continued to resist rendering the debt despite being repeatedly chided to do so? Could she be compelled despite her refusal? Hostiensis leaned on Gratian’s Decretum—specifically C.33 q.5 c.2 in which a husband may not force his wife to consent to his vow of chastity, and C.32 q.5 c.17 in which a husband could not be sent away no matter how he changed—to argue that the healthy ought to render the debt. No leprous person, however, ought to be so wicked as to demand it too often, and therefore the husband ought to proceed with utmost caution. On this, Hostiensis commented, every master agreed: the wife was compelled to render the conjugal debt. “[W]hat is demanded must be rendered in accord with the Apostles’ general commandment, which gives no exception for this case.”⁵¹ This mandate originated not from a special positive right, which, as Gratian laid out in Cause 25, could be changed, but rather from apostolic precept and from a general positive right, which could not be changed.⁵² He offered a litany of cross-references to legal principles from the Digest and from Gratian’s Decretum to illustrate concepts generally held without exception: the definition of a proctor (Dig. 3.3.1), that all clerics should live a life in common (C.12 q.1 c.2), that decretal letters possessed authority (D.19 c.1), that those who waged wars by the authority of God did not transgress His precept not to kill (C.23 q.5 c.19), the method by which a debtor was formally released from his obligations (Dig. 46.4.6), and that investiture of a church by the laity was prohibited (C.1 q.3 c.8).⁵³

49 See P. Landau, “Alanus Anglicus,” in Lexikon des Mittelalters (Turnhout/München-Zürich, 1980), 1:267–268.50 Hostiensis, Lectura sive apparatus domini Hostiensis super quinque libris decretalium, 2 vols (Strasbourg 1512), ad X 4.8.1 s.v. §Quoniam igitur – Ministrent (vol. 2 fol. 217ra).51 1 Comp. 4.8.2 (X 4.8.2).52 Hostiensis, Lectura, ad X 4.8.1 s.v. §Quoniam igitur – Ministrent (vol. 2 fol. 217ra–217rb).53 Ibid., ad X 4.8.2 s.v. §Quod si virum – Generali (vol. 2 fols. 217rb–217va).

Having laid out the position that a wife should render the debt to her leprous husband, Hostiensis maintained that with her refusals she could not be compelled to do so.⁵⁴ He provided cross-references, also from the Gratian’s Decretum and the Digest, to illustrate the shades of grey in the law: though charged with a crime, defendants retained their possessions until the case against them has been proved (C.2 q.2 c.2); that law originated from different sources, for example, divine ordinances were established by nature while human ordinances were established by usage (D.1 c.1); while not committing the violent act, he who could have prevented it was liable for not doing so (Dig. 9.2.45.pr); that those who defended themselves were without fault unless they injured another accidently while defending themselves (Dig. 9.2.45.4); and while a debtor’s possessions could be taken to repay that which was owed, he must be allowed to keep household equipment and clothing (Dig. 20.1.6). Hostiensis then offered a few cross-references to Justinian’s Codex and the Decretum to point out that generally held principles could be changed as interpretations changed: concerning compromises (Cod. 2.4.3), that the emperor’s duty was to interpret questions involving equity and law (Cod. 1.14.1), and that second marriages were proven as lawful as first marriages (C.31 q.1 c.12). In each of these cases context and circumstances played key roles to interpreting the law. He maintained further that one ought not to be excommunicated by the Church in the event that an infirmity was so horrible that the healthy spouse was in no way able to be moved to marital relations. A sentence of excommunication could not bind that which was impossible to perform.⁵⁵ The Church ought to uphold, not loosen, the debt; if, however, the husband, perhaps on account of some horrible disfigurement or other cause, was no longer able to render it, there should be a relaxing of the norm.⁵⁶ While spouses were to render the conjugal debt, if, after having been advised to do so, the wife did not want to acquiesce, she was not to be compelled and the couple should remain chaste.⁵⁷ Stated another way, if the wife could not be convinced to render the debt and both spouses promised to remain celibate, the situation should be accepted. If, however, one of the two spouses violated the promise of continence, s/he would be excommunicated.⁵⁸ Pope Innocent IV would note that though the wife could be exhorted to render the debt, if, after all the exhortations, she refused, her decision should be tolerated.⁵⁹ Johannes Andreae would echo the position, maintaining that while the healthy should render the debt, they ought not to be compelled to do so.⁶⁰ If the wife could not be swayed, she was not to be compelled and the partners should promise to remain celibate. Papal responses to episcopal questions about the extent to which a leprosy diagnosis impacted a marriage underscores a papacy actively shaping the law in reaction to the current climate. The commentary of the Decretalists expounded on the pope’s decretals to flesh out the juridical implications using principals found in the decretals, the Decretum, and in Roman law.

54 Ibid., ad X 4.8.1 s.v. §Quoniam igitur – Ministrent (vol. 2 fol. 217rb); Ibid., ad X 4.8.1 s.v. §Quod si mandatum – Excommunicationis.55 Ibid., ad X 4.8.2 s.v. §Quod si virum – Precepto apostoli (vol. 2 fol. 217va).56 Ibid., ad X 4.8.2 s.v. §Quod si virum – Inventitur (vol. 2 fol. 217va).57 Hostiensis, Summa aurea (Venice 1574), ad X. 4.8 (col. 1322).58 Hostiensis, Lectura, ad X 4.8.1 s.v. Pervenit (vol. 2 fol. 217ra).59 Pope Innocent IV, Apparatus in quinque libros Decretalium (Frankfurt 1570), ad X 4.8.1 (fol. 473rb).60 Johannes Andreae, Apparatus glossarum in Decretales, ad X 4.8.1 s.v. Ministrent.

In the twelfth century, the papacy found itself more engaged as a driver of law. Papal decretals, which had been a feature of the canonical tradition since late antiquity, began to play a more important role. Responses (responsa/responsiones) and rescripts (rescripta/rescriptae) recorded the pope’s response to legal question or his decision on a case. Popes took an active role in holding councils, whether in person or via their legate, which added to their legislative activity. The pace of legislation had begun to quicken. Jurists gathered these papal decretals and conciliar acts into new collections to keep lawbooks current since the circulation of Gratian’s Decretum earlier in the century. Just as canonists had commented on the Decretum, some of these same jurists along with others of the age commented on the decretal collections compiled. Known as Decretalists, they were steeped in both the law found in Gratian as well as Roman law, which was burgeoning at places such as Bologna. The ius novum (“new law”) found in these decretal collections together with the ius vetus (“old law”) found in Gratian’s Decretum formed a unified body of canon law studied at universities and used by administrators. Despite a unified body of law, the source of law had taken a distinct turn with the thirteenth century. No longer was it the mining of the wide variety of texts from older collections which included texts from a diverse variety of legislative bodies—ancient church councils and papal decretals, the writings of Church Fathers, secular rulers, penitential manuals, and monastic rules. With the thirteenth century, legal norms largely emanated from a centralized authority, the papacy and the juridical commentary on their decretals and conciliar canons. This increasing acceptance of papal juridical authority, in turn, diminished the ability of judges elsewhere in the ecclesiastical hierarchy to make their own decisions and develop the legal sources.