Gratian and Compurgation: An Interpolation

Abstract

Gratian and Compurgation:An Interpolation Kenneth Pennington [End Page 249] The search for the earliest manuscripts of the Vulgate text of Gratian’s Decretum can be aided by two textual variants that are important guides to deciding which manuscripts are the earliest versions of his text. Undoubtedly with more research others will be found. The first was discovered more than 25 years ago. Gratian had included a small section of Justinian’s Institutes in his Tractatus de legibus, D.12 c.6: Diuturni mores consensu utentium approbati legem imitantur. In the earliest manuscripts of the Vulgate, the text remained intact. Early on, however, the canonist interpolated the phrase, ‘nisi legi sunt adversi’, after ‘mores’. Brendan McManus examined this textual addition in a short essay in 1988.1 It has proven to be a secure guide to dating the earliest manuscript texts. A second piece of textual evidence that is also a significant guide to establishing the earliest Vulgate text occurs at the end of Causa 6 where Gratian discussed the use of compurgation after a decision had been rendered in court. He had begun his treatment of compurgation in C.2 q.5 with an introductory dictum taken from Roman law. This reference to Roman law is present in the earliest version of Gratian’s Decretum.2 Gratian returned to the issue at the end of C.6 q.5 [End Page 250] and posited an exception to the general rule that compurgation should not be imposed on a defendant who has been exonerated: Must a defendant prove his innocence if his accuser’s proof fail? His conclusion was one that did not change from what may be his earliest version of the text until his final pen stroke. Gratian noted that normally a defendant was completely exonerated when his accusers could not prove his case. However, if the question before the court were an issue of public notoriety (infamia), then the defendant had to prove his innocence through oaths of compurgation.3 The jurists did not like Gratian’s conclusion, and the early manuscripts of his text reflect their objections. They interpolated a sentence in a dictum that purported to be Gratian’s words in which he explained that a defendant had only to prove exceptions and not his innocence: Accusatus non negationem sed exceptionem probare debet. Anonymous canonist(s) also added a text from Justinian’s Codex that made the same point:4 Actor quod asseuerat profitendo se probare non posse, reum necessitate monstrandi contrarium non astringit, cum per rerum naturam factum negantis probatio nulla sit. The text, ‘Accusatus non negationem sed exceptionem probare debet’, began life as a marginal gloss, as in Durham Dean and Chapter Library C.III.1, fol. 137r, after which it was placed into Gratian’s text as a dictum of Gratian in early manuscripts. Friedberg was guided by the early manuscripts he used, which were early but not the earliest, to add the passage to his edition as a dictum of Gratian after C.6 q.5 c.1. The very earliest manuscripts, however, omit it, e.g. Biberach an der Riss, Spitalarchiv B 3515, fol. 159v, Bremen, Universitätsbibl. a.142, fol. 90r (French),5 Brindisi, Biblioteca Annibale de Leo A/1, fol. 188v, [End Page 251] Florence, Bibl. Laur. Santa Croce 1 sin.1, fol. 143r (Italian), Munich, BSB Clm 28161, fol. 114r (Italian), Mainz, Stadtbibl. II.204, fol. 100v (Italian),6 Paris, BNF, nouv. acq. lat. 1761, fol. 132va (Italian) and the two other manuscripts of the earlier, pre-Vulgate recension (Florence and Admont). As with the additional phrase in D.12 c.6, Barcelona, Arxiu de la Corona d’Aragó, Ripoll 78, fol. 149v added both texts to the margin, which is an indication how early these two additions to Gratian’s text began to circulate. The text of Justinian’s Codex made it clear that a defendant was not encumbered if a plaintiff had not proven his case.7 This example is a good piece of evidence that shows Gratian did not understand the full ramifications of replacing Germanic modes of proofs, like compurgation, with the ordo iudiciarius. He still found older ideas of justice attractive and...