Chapter XXXV

., I.

[391] The Bologna school is commonly called the school of the glossators. Their work was to expound the law of Justinian; and their glosses, or explanatory notes, were the part of their writings which had the most permanent influence. The glosses were originally written between the lines or on the margins of the codices of the _Digest_, _Codex_, _Novels_, and _Institutes_.

[392] Savigny gives examples of Irnerius’s glosses in an appendix to the fourth volume of his _Geschichte_. Pescatore (_Die Glossen des Irnerius_, Greifswald, 1888) maintains that Savigny overstates the difference between the interlinear and the marginal glosses of Irnerius.

[393] On Placentinus see Savigny, _Geschichte_, iv. pp. 244-285.

[394] _Proemium_ to _De var. actionum_, given by Savigny, iv. p. 540.

[395] This is from the _proemium_ attached to one old edition, and is given in Sav. _Ges._ iv. p. 245. In an appendix, p. 542, Savigny gives an even more florid _proemium_ to the _Summa Codicis_ from a manuscript.

[396] On Azo, see Savigny, _Ges._ v. pp. 1-44.

[397] Quoted by Savigny. On Accursius see Sav. _Ges._ v. pp. 262-305.

[398] On Bartolus see Savigny, _Ges. etc._ vi. pp. 137-184.

[399] Cf. Savigny, _Ges._ v. pp. 222-261.

[400] “Ecclesia vivit lege Romana,” _Lex Ribuaria_, 58. This was universally recognized, although the individual _clericus_ might remain amenable to the law of his birth.

[401] For these matters see primarily the sixteenth book of the Theodosian Code, and book i. chap. 27. Also the suspected _Constitutiones Sirmondianae_ attached to that Code. Justinian’s _Codex_ and _Novellae_ add much. Zorn, in his _Kirchenrecht_, p. 29 _sqq._, gives a convenient synopsis of the matter.

[402] One observes that the opening chapter of Justinian’s _Digest_ speaks of _jurisprudentia_ as knowledge of divine as well as human matters.

[403] _Decretum_, i. dist. viii. c. i.

[404] _Decretum_, i. dist. ix. c. xi.; see _ibid._ dist. xiii., opening.

[405] Tardif, _Sources du droit canonique_, p. 175 _sqq._, has been chiefly followed here.

[406] On the above matters see (with the authorities and bibliographies therein given) Maasen, _Geschichte der Quellen, etc., der canonischen Rechts_ (Bd. i., to the middle of the ninth century); Tardif, _Sources du droit canonique_ (Paris, 1887); Zorn, _Lehrbuch des Kirchenrechts_ (Stuttgart, 1888); Gerlach, _Lehrbuch des catholischen Kirchenrechts_ (5th edition, Paderborn, 1890); Hinschius, _Decretales pseudo-Isidorianae_ (Leipzig, 1863); _Corpus juris canonici_, ed. by Friedberg (Leipzig, 1879-1881).

[407] Jurisdiction of the ecclesiastical courts embraced marriage and divorce, wills and inheritance, and, by virtue of their surveillance of usury and vows and oaths, practically the whole relationship between debtor and creditor.

[408] Volume ii. of R. W. and A. J. Carlyle’s _History of Mediaeval Political Theory in the West_ (1909) maintains that the statements of papal pretensions which were incorporated in the recognized collections of _Decretals_ were less extreme than those emanating from the papacy under stress of controversy.

[409] See Gierke, _Political Theories of the Middle Ages_, trans. by Maitland (Cambridge, 1900), p. 22 _sqq._ and notes. I would express my indebtedness to this book for these pages on mediaeval political theories. Dunning’s _History of Political Theories_ is a convenient outline; Carlyle’s _History of Mediaeval Political Theory_ gives the sources carefully.

[410] Occasionally _studium_ (knowledge, study, or science) is introduced as a third part or element of the human community or of human life. Thus in the famous statement of Jordanes of Osnabrück--the Romans received the Sacerdotium, the Germans the Imperium, the French the Studium. See Gierke, _Political Theories_, p. 104, note 8.

[411] Cf. Gierke, _o.c._ p. 109, note 16. But compare Carlyle, _o.c._ vol. ii. part ii. chaps. vii.-xi.

[412] Even toward the close of the Middle Ages Marsilius of Padua was almost alone in positing the absolute supremacy of the State, says Gierke.

[413] See Gierke, _o.c._ p. 144, note 131, and compare notes 132, 133, and 183 for attacks upon the plenary power of the pope.

[414] Gierke, _o.c._ pp. 31-32, and p. 139, notes 107 and 108.

[415] _Dig._ i. 4, 1; Gierke, _o.c._ p. 39 and pp. 146, 147.

[416] Gierke, _o.c._ p. 64.

[417] Gierke, _o.c._ p. 172, note 256. Cf. _ante_, p. 268.

[418] See Gierke, _o.c._ pp. 73-86, and corresponding notes.

[419] Little will be said in these pages of palpable crass heretics like the Cathari, for example. The philosophic ideas of such seem gathered from the flotsam and jetsam of the later antique world; their stock was not of the best, and bore little interesting fruit for later times. Such mediaeval heresies present no continuous evolution like that of the proper scholasticism. Progress in philosophy and theology came through _academic_ personages, who at all events laid claim to orthodoxy. All lines of advance leading on to later phases of philosophic, scientific, and religious thought, lay within the labours of such, some of whom, however, were suspected or even condemned by the Church, like Eriugena, Abaelard, or Roger Bacon. But these men did not stand apart from orthodox academic circles, and were never cast out by the Church. Thought and learning in the Middle Ages were domiciled in monastic, episcopal, or university circles; and these were at least conventionally orthodox.

It has been said, to be sure, that the heresy of one generation becomes the orthodoxy of another; but this is true only of tendencies like those of Abaelard, which represent the gradual expansion and clearing up of scholastic processes. For the time they may be condemned, perhaps because of the vain and contentious character of the suspected thinker; but in the end they are recognized as admissible.

The Averroists constitute an apparent exception. Yet they were a philosophic and academic sect, whose heresy consisted in an implicit following of Aristotle as interpreted by Averroes. Moreover, they sought to save their orthodoxy by their doctrine of the two kinds of truth, philosophic and theological or dogmatic. It is not clear that much fruitful thought came from their school. The positions of Siger de Brabant, a prominent Averroist and contemporary of Aquinas, are referred to _post_,