Sine testibus tabulariis: a late-twelfth century civilian notabilium in memory of Professor Dr. Peter Landau

Sine testibus tabulariis: un notabilium civil de finales del siglo XII en memoria del profesor Dr. Peter Landau

Esta obra está bajo una Licencia Creative Commons Atribución-NoComercial 4.0 Internacional.

Oxford, University College MS. 117 dates to 1180-1200 and originally belonged to the library of St. Augustine’s at Canterbury¹. It contains many canon and civil law texts, the best-known an early treatise on presumptions, the Perpendiculum². We also find several notabilia. One of these, Sine testibus tabulariis, (fol. 144vb) in a contemporary hand different from the texts surrounding it, is an anonymous work entirely derived from the Novels of Justinian. It occupies much of the right-hand column and spills into the bottom margin. A transcription of Sine testibus appears as an appendix to this note. In the following, I discuss its content, its possible formal sources, for example the Authenticum³, and also compare it with contemporary treatises, for example Vacarius’ Liber pauperum. I conclude by briefly reflecting on the purpose of this short collection of excerpts.

While often very brief, most excerpts preserve the legal context of the original text which the author never cites. These treat secular issues such as legacies, who might bring a charge or the punishment for judicial misconduct, and ecclesiastical matters, for example the number of clergy at Constantinople. Others, however, stand as moral exhortations, for example to chastity or maintaining the purity of monastic profession. We shall return to this moralizing emphasis in my conclusion.

The brevity of the excerpts is, I believe, quite intentional. Here we see how little the excerpt retains from a very lengthy Novel⁴:

Elsewhere, Sine testibus not only drastically excerpts but also reverses the Novel’s contents:

Clearly, the excerptor did not slavishly copy his texts. He could manipulate them to select and highlight what he thought most important in his source, which was most likely the Authenticum. Any connections to an Authentica seems remote, if not mposible:

The first item, exhorting chastity among clergy, and prohibiting them, save for those in the minor orders of cantor and lector, to marry, does compare well with Authenticae that circulated during the period. One even appears as a dictum of Gratian in the second recension⁸. A similar congruence is found in the excerpt from the Novel on the judicial oath. However, there is also divergence, for example with the Authentica on Nov. 6.6. While this references the prohibition of deaconesses’ ordination if they under the age of forty or remarried, the Sine testibus excerpts, instead, the Novel’s exhortation to chastity.

There is almost no congruence between Sine testibus and contemporary civilian and canonistic works. There is only slight comparison with Vacarius⁹, and none at all with the contemporary, English brocardia, Dolum¹⁰. The same holds true for canonistic works, apart from the single authentica in Gratian II mentioned above. There is no echo in any Anglo-Norman decretist works, or in early procedural ordines iudiciorum such as the Pseudo-Ulpianus De edendo or the Ordo Bambergensis¹¹.

Our excerptor’s method differs as well from that found in other legal notabilia. Compare, for example, the canonistic collection of excerpts, Qui multum (nimium) emungit, in London, BL Add. 18325, fol. 13r-17v¹². In this work, the excerptor systematically went through his source, Gratian, and excerpted passages he found interesting. Our scribe, instead, does not entirely preserve the sequence of texts taken from the Authenticum¹³. He is more clearly interested in certain themes rather than trying to cover as much of his source as possible.

Sine testibus is certainly not an unusual text. Collections of legal excerpts are common in twelfth-century manuscripts¹⁴. At first glance, our texts appear random and also not too carefully copied, as we see from the likely error of naciones for exceptions or exoruat for exornat. But I should like to think that there is more at work that, at the very least, there are some themes. To begin with, some of the excerpts from the Novels were legally relevant in terms of procedure. Requiring witnesses to be notarized demonstrates the growing influence of civil law in the Anglo-Norman world. Professor Cheney noted some years ago that the contemporary English church was familiar with papal notarial practice, not only through travels to Rome but also, and especially, as evidenced by Alexander III’s decretal “Meminimus,” written ca. 1167-1169 to Bishop Roger of Worcester¹⁵, though we should note that the decretal, unlike our excerpt, did not require notarization of witnesses. Likewise, even a brief glance at contemporary works such as episcopal acta reveals how disputes could arise over legacies when those bequests were intended for ecclesiastical foundations¹⁶. As contemporary canonistic and civilian works demonstrate, there was also a considerable interest in the qualifications and duties of the ecclesiastical judge¹⁷. If only an individual thoroughly familiar with the Novels could have recognized them as the ultimate source for the excerpts, the phrases themselves would have been useful not only to someone studying or practicing the civil or canon law but also for anyone seeking useful quotations for other works, for example sermons or letters.

The overall tone of Sine testibus is moralizing. It notes both virtue and vice. Perhaps the excerptor intended a series of maxims, pointed, in particular, towards the judge. We note how often chastity is emphasized, whether in marriage, the purity of deaconesses, the prohibition of marriage towards higher clergy; etc. The judge is to rule in a similarly “chaste” way, as emphasized by the multiple excerpts from Nov.8. Proper authority is also emphasized, with the requirement of the notarized witness at the start of list and the judicial oath towards its end. After the excerpts from Nov. 8, one wonders as well if the seemingly startling reference to pandering might not also, by extension, remind the judge not to prostitute his judgment.

While we cannot measure its audience, there was surely interest in what the Novels could teach the church. By the time the Sine testibus was written, all sorts of ecclesiastics had at least some exposure to the civil law and, for the Anglo-Norman world, this could be had close to home at places such as Oxford, Northampton, and Lincoln¹⁸. Explicit references to the law appear as well in the letters of men such as Gilbert Foliot who, according to Morey and Brooke, chiefly relied on the Codex¹⁹. Perhaps this cache of maxims from the Novellae not only reminded the reader of the law’s moral dimension, and in particular, the responsibilities of the judge, but also furnished phrases, even exempla, for letters and other works²⁰. If far more modest a contribution than that made by the elaborate summae of the glossators or the sophisticated procedural manuals of the ius commune, Sine testibus still contributed to the enterprise of enabling the church to live, as an ancient maxim had declared, “by the Roman law”²¹.

Historians have described notabilia such as Sine testibus as a “minor genre”²². That is unquestionably true, particularly when one compares the Sine testibus, itself brief by the standards of notabilia, to the sprawling commentaries by civilians like Placentinus or decretists like Huguccio. But no source is minor if we are to understand the emergence of the legal profession and Romano-canonical jurisprudence in the twelfth century²³. In this regard, we might consider the following excerpts from Peter Goodrich²⁴:

“Lawyers were called glossators. They were trained to write in the margins and between the lines. And at the top and the bottom of the page…The margin is where the reader writes […] We ignore the marginalia and we overlook the near misses […] As a culture we tend to pay rather little attention to the peripherally visible”.

Paying more attention to such ‘peripheral’ works should help better understand legal study in the late twelfth century. For there, in the margins, we may glimpse the elusive reader, teacher, student of the early ius commune.