'A Bald Statement of a Summarist with no Axe to Grind': The Notabilia Clericus apud civilem.

In memory of Paul Hyams

Collections of excerpts from Gratian's Decretum are overshadowed by the more elaborate summae and gloss apparatus. Yet such notabilia also reveal how canon law was studied in the late twelfth century.² One example is Clericus apud civilem, (henceforth Clericus) preserved in Cambridge, Sidney Sussex College 101 (C) and Durham, Cathedral Library C.I.I (D).³ Likely composed at Durham around 1170,⁴ its frequently reworked canons, accompanied by six argumenta, deserve closer attention.

For notabilia, we turn to the Repertorium der Kanonistik.⁵ The term betrays its origins in marginal notae, 'glosses used to draw the attention of the reader to a particular point of the legal text'.⁶ This may explain the following passage in Clericus: 'Nota puelle in domo patris in puerili etate iurantis statim ut nouit patre reclamante rumpitur ut c.xxii. q.ult. c.ult. Pueri'.⁷ In most respects, Clericus differs little from the early brocards. It preserves 'normative texts', albeit frequently in altered form.⁸ Its embedded argumenta propose 'legal concepts' supported by 'one or more texts' also intended to provoke disputation.⁹ Including argumenta with the excerpted canons also does not surprise. Such mixture was not unusual, and a sign of 'conceptual overlap'.¹⁰ At the same time, Clericus does not anticipate the brocards' subsequent development of an explicitly dialectical structure.¹¹ While we find distinctions, even oppositions, among the excerpted canons, they are never presented pro-contra nor do we find solutiones.

Our understanding of Clericus has not progressed much beyond my title, taken from Geoffrey Barraclough's review of the Repertorium for the English Historical Review.¹² Later, Kuttner and Eleanor Rathbone noted that it 'fits nowhere better than in the climate of the Becket controversy',¹³ and highlighted its treatment of criminous clerics, on which more shortly. In 1956, G. V. Scammell judged both manuscripts products of 'the Durham school', and Clericus inspired more by French than Bolognese jurisprudence.¹⁴ More recently, I briefly discussed it at the 2016 International Congress of Medieval Canon Law, noting its selection of canons on marriage with a non-Christian, the conjugal debt, and the first argumentum.¹⁵ This did not do justice to its rich contents. I have now provided an edition to enable a fuller analysis and possible comparisons with other canonistic notabilia. (See appendix.)

Composition at Durham would place Clericus during the lengthy tenure of Bishop Hugh of Le Puiset (1153-1195).¹⁶ Who might have been the author? Two possible candidates are Roger of Howden and William of Blois, though neither likely had the necessary legal training.¹⁷ Bishop Hugh also knew Master Vacarius through a dispute involving the presentation of the church of Eston;¹⁸ however, it seems unlikely the Master had a hand in Clericus. More promising is Gervase, a cleric who studied under Gérard Pucelle at Paris and authored glosses in the Decretum found in the same manuscript as Clericus. (I have, however, not seen any connection between them and the notabilia.¹⁹) There were also ties to Lincoln, where Hugh patronized John of Tynemouth and Simon of Southwell, both more than capable of composing our work. On the other hand, their careers may well have begun later than the composition of Clericus.²⁰

While I chose D, the earlier of the two manuscripts, as a base for collation, it is worth noting an interesting variant in C: Filii. uel propinqui²¹ fundatorum ecclesiarum²² clericos bona illarum dilapidantes honesta conuentione compescant uel episcopis denuntient uel regi ut c.xvi²³q.ult. filii.s quicumque decernimus.²⁴ Gratian's canons never mention clericos which, modified initially by C with criminos, echoes of course the dispute between Becket and Henry II..²⁵ It also addresses a growing problem in the late twelfth century.²⁶

I must also note the brief mention of Clericus by Richard Fraher in his essay on canon law and the Becket dispute. He noted its first entry:²⁷

Clericus...