Chapter 5

When we had arranged and brought into perfect harmony the hitherto confused mass of imperial constitutions (i.e. the Code), we then extended our care to the vast volumes of ancient law; and, sailing as it were across the mid ocean, have now completed, through the favour of heaven, a work that once seemed beyond hope (i.e. the Digest).

When by the blessing of God this task was accomplished, we summoned the most eminent Tribonian, master and ex-quaestor of our palace, together with the illustrious Theophilus and Dorotheus, professors of law, all of whom have on many occasions proved to us their ability, legal knowledge, and obedience to our orders; and we have specially charged them to compose, under our authority and advice, Institutes, so that you may no more learn the first elements of law from old and erroneous sources, but apprehend them by the clear light of imperial wisdom; and that your minds and ears may receive nothing that is useless or misplaced, but only what obtains in actual practice. So that, whereas, formerly, the junior students could scarcely, after three years' study, read the imperial constitutions, you may now commence your studies by reading them, you who have been thought worthy of an honour and a happiness so great that the first and last lessons in the knowledge of the law should issue for you from the mouth of the emperor.

When, therefore, by the assistance of the same eminent person Tribonian and that of other illustrious and learned men, we had compiled the fifty books, called Digests or Pandects, in which is collected the whole ancient law, we directed that these Institutes should be divided into four books, which might serve as the first elements of the whole science of law.

In these books a brief exposition is given of the ancient laws, and of those also, which, overshadowed by disuse, have been again brought to light by our imperial authority.

These four books of Institutes thus compiled, from all the Institutes left us by the ancients, and chiefly from the commentaries of our Gaius, both in his Institutes and in his work on daily affairs, and also from many other commentaries, were presented to us by the three learned men we have above named. We have read and examined them and have accorded to them all the force of our constitutions.

Receive, therefore, with eagerness, and study with cheerful diligence, these our laws, and show yourselves persons of such learning that you may conceive the flattering hope of yourselves being able, when your course of legal study is completed, to govern our empire in the different portions that may be entrusted to your care.

Given at Constantinople on the eleventh day of the calends of December, in the third consulate of the Emperor Justinian, ever August (533)[28]

(4) The Novellae (Novels), or new statutes issued by Justinian between the final edition of the Code and his death (534-565). These are really a continuation of the Code, but they were never officially collected.

The Code and the Institutes were known and studied in Italy throughout the Dark Ages, but the Digest, much the largest and most important part of the Corpus Juris, was almost wholly neglected, if not unknown, until the time of Irnerius of Bologna (_c._ 1070-1130). He and his co-laborers collected and arranged the scattered parts of the entire Body of Civil Law, and in particular introduced the Digest to western Europe. "Without the Digest the study of Roman Law was in a worse position than the study of Aristotle when he was known only from the Organon." In a most important sense, therefore, the recovery of the Corpus Juris was a contribution of the twelfth century to the group of available higher studies. Hitherto Law had been taught usually as a mere branch of Rhetoric, and as a part of a liberal education. The body of material now made available was sufficient to occupy the student's entire time for several years. It therefore attained standing as an independent subject, and as a distinctly professional study.

The effect of this newly recovered body of learning upon the rise of universities was very much like that of Abelard and his new method. Students flocked in thousands to study law at Bologna, and toward the close of the twelfth century the University was organized. Numerous other universities arose directly from the same impulse, and "Law was the leading Faculty in by far the greater number of mediaeval universities" (Rashdall). Except for Canon Law, the Corpus Juris Civilis remained the chief study of the Faculties of Law for more than five centuries. Roman Law is still very generally taught in European universities. Thus the impulse given by Irnerius and his co-laborers is influential in university affairs of to-day.

The influence of Roman Law upon the social and political history of Europe is far-reaching. The subject is beyond the limits of the present work; but it is to be noted that this influence was exerted as a result of its study in the universities (see Rashdall, Vol. II, Pt. II, pp. 708-709).

Rashdall and Denifle think that the example of Justinian inspired the first mediaeval grant of special privileges to scholars (see p. 82). If this is true, the Roman Law had a most important effect upon the history of universities themselves. Two important mediaeval privileges for masters and scholars were exemption from taxation and the right of trial before special courts. Whether or not these were copied from the Roman Law is a question; but the Code of Justinian, following the statutes of earlier emperors, explicitly grants both of these privileges to teachers. These are so often mentioned that it is worth while to present those bearing on the subject:

THE EMPERORS LEO AND ZENO, AUGUSTI, TO EUSEBIUS, MASTER OF OFFICES.

By this law we decree that those who serve in the individual schools, and who, after completing the curricula of their duties, shall have reached the rank of chiefs and through the adored purple of our divinity have won the dignity of most illustrious Counts, shall enjoy both the girdle and all the privileges open to them, and hereafter to their life's end shall be subject to the court of Your Highness only, nor shall they be compelled by the command of any one else whomsoever to undergo civil litigation.

Yet in criminal suits and in matters connected with public tribute we wish the appropriate jurisdiction of the rulers of the provinces to be recognized against even such men, lest, under the pretext of a granted privilege, either the influence of the wicked be increased or the public good be diminished.[29]

THE EMPEROR CONSTANTINE, AUGUSTUS, TO THE PEOPLE.

We direct that physicians, and chiefly imperial physicians, and ex-imperial physicians, grammarians and other professors of letters, together with their wives and sons, and whatever property they possess in their own cities, be immune from all payment of taxes and from all civil or public duties, and that in the provinces they shall not have strangers quartered on them, or perform any official duties, or be brought into court, or be subject to legal process, or suffer injustice; and if any one harass them he shall be punished at the discretion of the Judge. We also command that their salaries and fees be paid, so that they may more readily instruct many in liberal studies and the above mentioned Arts.

Proclaimed on the fifth day before the Kalends of October (Sept. 27) at Constantinople, in the Consulship of Dalmatius and Zenophilas.[30]

(c) _Canon Law_

About 1142 (the year of Abelard's death) Gratian, a monk of Bologna, doubtless influenced by the school of Roman Law in that city, made a compilation of the Canon Law, which included the canons or rules governing the Church in its manifold activities,--"its relations with the secular power, its own internal administration, or the conduct of its members." Hitherto Canon Law had been regarded as merely a subdivision of Theology, just as Roman Law had been considered a branch of Rhetoric. It now became an independent subject,--further addition to the body of higher studies. As an influence upon the development of universities it was not less important than the _Corpus Juris Civilis_.

The compilation made by Gratian was added to in later generations, and the whole body of church law was known in the fifteenth century as the _Corpus Juris Canonici_ (Body of Canon Law). Its main divisions are:

1. The Decree of Gratian _(Decretum Gratiani)_ in three parts, published c. 1142. Part I contains one hundred and one distinctions (_distinctiones_) or divisions, which treat of matters relating to ecclesiastical persons and offices. Dist. XXXVII is translated below. Part II contains thirty-six cases (_causae_) each of which is divided into questions (_quaestiones_). These questions deal with problems which may arise in the administration of the canon law. Part III contains five distinctions which deal with the ritual and the sacraments of the church. Under each distinction, or question, are arranged the canons--the views of ecclesiastical authorities--on the matter under discussion.

2. The Decretals (_Decretales_), in five books, published by Pope Gregory IX in 1234.

3. The Sixth Book (_Liber Sextus_), a supplement to the Decretals by Pope Boniface VIII, 1298.

4. The Constitutions of Clementine (_Constitutiones Clementinae_), 1317.

5. Several collections of papal laws not included in those above, known by the general title of _Extravagantes_, i.e., laws _extra vagantes_, or outside of, the four compilations just mentioned.

Among all these the _Decretum_ of Gratian was the great innovation which first marked out Canon Law as a distinct field of learning, separate from both Theology and Roman Law. It was written as a text-book; "it was one of those great text-books which take the world by storm." It created an entirely new class of students, separate from those devoted to Arts, Theology, Roman Law, and Medicine,--just as the development of Engineering and other new professional studies have created new groups of university students to-day,--and thereby increased the resort to the universities.

The selection following illustrates numerous characteristics of mediaeval university study. (1) The question itself is a very ancient subject of debate; the controversy, on religious grounds, concerning the study of the classics, had already continued for nearly a thousand years, and was destined to continue for centuries after the appearance of the _Decretum_. Many such questions were debated in the universities for generations. The debate on the classics still rages, though the arguments pro and con no longer raise the point of their influence on religious belief. (2) The selection is one among many examples of the powerful influence of Abelard's method in mediaeval writing and teaching. The reader will at once see in it the form of the "Yes and No." (3) It gives a very good idea of the substance of a university lecture, which would ordinarily consist in reading the actual text and comments here set down (see p. 111). (4) It shows how the mass of comments came to overshadow the original text, and by consequence to absorb the greater part of the attention of teachers and students. One object of university reform in all studies at the end of the fifteenth and the beginning of the sixteenth century was to sweep away this burdensome and often useless material, and to return to the study of the text itself (see p. 48). (5) It illustrates a common mode of interpreting in a figurative sense passages from the Bible which to the modern reader seem to have no figurative meaning. Thus (pp. 64, 66) the plagues of frogs and flies which Moses brought upon Egypt typify "the empty garrulousness of dialecticians, and their sophistical arguments "; the gifts of the three Magi to the infant Jesus signify "the three parts of philosophy," etc. Mediaeval literature contains a great mass of such interpretations.

The text and the "gloss," or commentary, are here placed on opposing pages for the sake of clearness. The text is a compilation, chiefly from earlier compilations; Gratian did not as a rule consult the sources themselves. His pupil, Paucapalea, made many additions to the text, one of which appears in this selection. The gloss here translated is the standard commentary (_glossa ordinaria_) which was used for centuries in the regular university lectures (see p. 108). Like the text, it is a compilation from many sources. It was first made (c. 1212) by John the German (Joannes Teutonicus), who added his own notes--usually signed "John"--to his selections from earlier glossators. The names or titles, often abbreviated, of commentators whom he quotes are frequently appended to their notes, e.g. John of Fa[ënza], Hugo [of Pisa], C[ardinalis], Lau[rentius Hispanus]; many notes are unsigned. About 1238 the compilation of John the German was revised and enlarged by Bartholomew of Brescia, who also added comments from other writers, e.g. Arc [hidiaconus]. This revision forms the greater part, if not the whole, of the gloss which appears below.

The cross-references, in the comments below, are left untranslated. They are mainly citations of other passages in the _Decretum_ itself. Such references as XVI. quaest III. nemo are to be read, Case XVI, question III, in the section beginning _Nemo_; XLVIII dist. sit rector means Distinction XLVIII, in the section beginning _Sit rector_. Several of the references in this selection are incorrect.

The gloss on this page belongs to the first line of text on page 60. It forms, with the Summaries on later pages, a complete analysis of the text. It indicates, first, the five subdivisions of the _distinctio_; second, its general purport. Later summaries analyze small portions of the text. (Cf. the description of the lecture by Odofredus, p. 111.)

This division is divided into five sections; the second begins: "Then why ..." (p. 68); the third begins: "The report has come to as" (p. 74); the fourth begins: "Christians are forbidden" (p. 75); the fifth begins: "As therefore is evident" (p. 75). John of Fa.[A]

Summary. Here follows the thirty-seventh division in which the question is asked whether it is fitting that the clergy be made acquainted with profane literature, that is, the books of the heathen. And first he proves that they should not be read (as far as "But on the other hand," p. 64). Then he proves the opposite and afterwards gives the solution (to "Then why," p. 68). The first two chapters are plain.

[SHALL PRIESTS BE ACQUAINTED WITH PROFANE LITERATURE, OR NO?]

=But the question (_h_) is asked whether these men should be made acquainted with profane literature.=

Here is what is written upon the matter in the fourth Carthaginian Council:

=A Bishop should not read the books of the (_i_) heathen.=

A bishop should not read the books of the heathen: those of heretics he may read carefully, either of necessity (_k_) or for some special reason.

So Jerome to Pope Damasus on the prodigal son:

=Priests are blameworthy who, to the neglect of the Gospels, read comedies.=

We see priests of God, to the neglect of the Gospels and the Prophets, reading comedies, singing the Amatory words of bucolic verses, keeping Vergil in their hands, and making that which occurs with boys as a necessity (_k_) ground for accusation against themselves because they do it for pleasure.

Idem:

=They walk in the vanity and darkness of the senses who occupy themselves with profane learning.[B]=

Does he not seem to you to be walking in the vanity of the senses, and in darkness of mind, who day and night torments himself with the dialectic art; who, as an investigator of nature, raises his eyes athwart the heavens and, beyond the depths of lands and the abyss, is plunged into the so-called void; who grows warm over iambics, who, in his over zealous mind, analyses and combines the great jungle of metres; and, (to pass to another phase of the matter), who seeks riches by fair means and foul means, who fawns upon kings, grasps at the inheritances of others, and amasses wealth though he knows not at the time to whom he is going to leave it?

(_h_) In this thirty-seventh division Gratian asks[C] whether one who is to be ordained ought to be acquainted with profane literature. First, however, he shows that the clergy ought not to give attention to the books of the heathen.[D] Then he gives the argument on the other side and offers this solution, that some read the books of the heathen for amusement and pleasure, and this is forbidden, while some read for instruction, and this is lawful, in order that, through these books they may know how to speak correctly and to distinguish the true from the false. John, as far as "Then why" (p. 68). And notice that in all the chapters up to "But on the other hand" (p. 64) pleasure alone seems to be forbidden.

(_i_) Therefore they ought not to hear the laws, for it is a disgrace to them if they wish to be versed in forensic training. C. de testa consulta divalia. But, on the other hand, the laws are divinely promulgated through the mouths of princes as XVI. quaest. III, nemo.[E] Some say that it is lawful to hear the laws in order that through them the canons may be better understood. He argues in favor of this division in the section beginning "Some read profane literature" (p. 70). John.

(_k_) In order that they may know how to speak correctly.

Likewise [Jerome] on Isaiah:

He who misunderstands the sacred scriptures, or makes a wrong use of profane wisdom, is drunken with wine[F] and with strong drink.

They are drunken with wine who (_l_) misunderstand the sacred scriptures and pervert them, and through strong drink they make a wrong use of profane wisdom and the wiles of the dialecticians, which are to be called, not so much wiles as figures, that is, symbols, so-called, and images, which quickly pass away and are destroyed. Likewise, in accordance with tropology (_m_), we ought to regard as false prophets those who interpret the words of the scriptures otherwise than as the Holy Spirit utters them, and as divine those who from the inferences of their own minds and apart from the authority of divine words, proclaim as true the uncertain events of the future. Likewise, those who do not understand the Scriptures according to the actual truth eat sour grapes.

Likewise [Jerome] in the Epistle to the Ephesians:

Bishops are blamed who train their own sons in profane literature.[G]

Let those bishops and priests read [this] who train their own sons in profane literature, and have them read those well-known comedies and sing the base writings of the actors of farces, having educated them perhaps on the money of the church.(_a_) And that which a virgin, or a widow, or any poor person whatever had offered, pouring out her whole substance as an offering for sin, this [is devoted] to a gift (_b_) of the calendar, and a saturnalian offering, (_c_) and, on the part of the grammarian and orator, to a thank-offering to Minerva, or else it is turned over for domestic expenses, or as a temple donation, or for base gain. Eli, the priest, was himself holy, but because ...

(_l_) The ears of those who misunderstand the words of the Master should be cut off: as XXIV. quaest. I. si Petrus.[H]

(_m_) That is, in accordance with the moral[I] meaning, from trope, i.e. a turning[J] or application, when we apply our words to the shaping of character.

XLIII. distinct. sit rector.

Additio. They did the opposite and he writes of penitence, distinct. I. super tribus. Archi.

(_a_) He argues contrariwise in dist. XXXI. omnino.

(_b_) Strena,--the first gift which is given at the beginning of the Calendar[K]. It is given for a good omen. XXV. quaest. ulti. non observetis.

It is called Strena as if from sine threna, i.e. without lamentation.

(_c_) Sportula (a gift) which is given for fables of Saturn, or for celebrating the festival of Saturn, or for games of Saturn,--for good luck.

...he trained not his sons (_d_) in every form of improving discipline, he fell prostrate and died.

(Also from the replies of Pope Urban to Charles, Chapt. 48).

Palea [Paucapalea, a pupil of Gratian]:

Heretics, when disputing,[L] place the whole strength of their wits upon the dialectic art, which, in the judgment of philosophers, is defined as having the power not of aiding but of destroying study. But the dialectic art was not pleasing[M] to God the Father, Son, and Holy Spirit, for the Kingdom of God is in the simplicity of faith, not in contentious speech.

Also Rabanus on the Afflictions of the Church:

The blessed Jerome is beaten by an angel because he was reading the works of Cicero.

We read about the blessed Jerome that when he was reading the works (_e_) of Cicero he was chidden by an angel because, being a Christian man, he was devoting himself to the productions of the pagans.

[The discussion which follows, to "Hence Bede," etc., p. 66, is attributed, in modern editions, to Gratian.]

Hence, too, the prodigal son in the Gospel is blamed because he would fain have filled his belly with the husks (_f_) which the swine did eat.

Hence, too, Origen understands by the flies and frogs with which the Egyptians were smitten, the empty garrulousness of the dialecticians and their sophistical arguments.

From all which instances it is gathered that knowledge of profane literature is not to be sought after by churchmen.

But, on the other hand[N] one reads that Moses and Daniel were learned in all the wisdom of the Egyptians and Chaldeans.

One reads also that God ordered the sons of Israel to spoil (_g_) the Egyptians of their gold and silver; the moral interpretation of this teaches that should we find in the poets either the gold of wisdom or the silver of eloquence, we should turn it to the profit of useful learning. In Leviticus also we are ordered to ...

(_d_) Such a one is rejected by the evidence, as VI. quaest. I. qui crimen. Also, he cannot be a bishop. As XLVIII. dist. § necesse. Nay he is called a dog rather than a bishop. As II. quaest. VII. qui nee. John.

(_e_) Because he read them for pleasure not for instruction, as de conse. dist. V. non mediocriter.

(_f_) That is, with profane wisdom which fills but does not satisfy,[O]

(_g_) XIIII. quaest V. dixit.[P]

...offer up to God the first fruits of honey, that is, the sweetness of human eloquence. The Magi, too, offered three gifts, by which some would have us understand the three parts _(h)_ of philosophy.

[The reader will note that the two paragraphs following belong more properly to the first part of the argument; they may be inserted just before the third paragraph above,--"From all which instances," etc.]

Finally in his exposition of the Psalms, Cassiodorus bears witness that all the splendor of rhetorical eloquence, all the melody of poetic speech, whatever variety there may be of pleasing pronunciation, have their origin in divine Scriptures.