Collections of Legal Opinions (‘consilia’) from Medieval Jurists
Research Project
This project targets collections of consilia in general. It envisages printed editions as well as manuscripts, and it focuses in particular on the transition from manuscript to early printing. This phenomenon had previously been largely unexplored, in the literary genre of juridical works.
While collections of consilia usually comprise pieces of one particular author, there exist as well gatherings of pieces from various authors. The latter may be anthologies dedicated to a specific topic, but it will be shown below that there also exist miscellanies which lack any sense of homology.
It must be kept in mind that consilia were not decidedly written as pieces of juridical literature. They were rather issued in a view to bring about a desirable outcome in one specific law case. It was their common destiny to end up in files of case papers, and they got out of sight when such papers were discarded or archived. Indeed, archives in Europe contain miles of medieval case papers. Thousands of individual consilia may be hidden in them.
It should however also be remembered that lawyers of the 14th and 15th centuries commonly kept minutes of pieces of writing which they had issued. Such minutes were entered into a book. This task was called “transcriptio in ordine”, and it could be commissioned to a secretary. Lawyers used this technique in the first place to have a record of matters in which they had been involved, but the minutes also constituted for them a quarry of legal argument, to be exploited when similar legal problems might come up in future cases.
Books of “transcriptio in ordine” are seldom preserved. It can be difficult to identify them. The minutes need not be penned by the jurist in person, as secretaries could be involved, and they need not explicitly mention the jurist’s name, because the minute books were exclusively meant to be used in the author’s office (cf. Libri consiliorum 1995; Legal consulting 1999). Detection of a medieval jurist’s personal minute book is therefore always a spectacular discovery. In the present project such discovery was achieved for twelve volumes of minutes from Baldus de Ubaldis, and for autograph minutes of consilia by cardinal Franciscus Zabarella. Furthermore were recently identified the partly autograph minutes by Lapus de Castiglionchio (senior), datable as early as the third quarter of the 14th century (cf. Studi per... Mario Ascheri 2014).
When jurists of the 14th or 15th century submitted a legal opinion which they had composed (thus a ‘consilium’), they issued an authenticated piece of it. They thus added to the text an autograph clause certifying the authenticity, signed it, joined their personal wax seal to it, and then expedited the piece to the requesting person or institution – maybe together with one or more non-authenticated copies. As mentioned above, such pieces were joined to files of case papers. At times, however, after a law case was over, legal argument from it was not discarded or archived along with the other papers of the case. Its consilia and advocates’ juridical discussions could instead be picked out by judges or advocates who wanted to keep them for their own personal use, as a quarry of legal argument for future law cases. Indeed, many miscellaneous juridical manuscripts from the Middle Ages are known to contain substantial gatherings of consilia, bound together. In such manuscripts, most items are just copies, but often there also occur authenticated consilia with signature and seal.
There exist about 50 printed editions of consilia from medieval authors. At least 26 of them were printed before 1500. This results from a bibliography of early printed editions which was brought together in the ambit of the present project. It is interesting to watch the developments in the early book market and see which authors’ consilia were selected for printing (cf. Legal Consulting 1999).
For the most part of these early editions it was so far unclear on which manuscripts the printed texts had been modelled, and from where the printers got their text models. In the beginning, scholars had speculated that already before the invention of the printing press all noteworthy consilia of renowned authors had circulated in manuscript. Scholars had thus thought that the printers based their work on such manuscripts. This turned out to be an error, however. It clearly appeared that manuscript dissemination of collected consilia had been a rare phenomenon. It is known to have occurred for Oldradus de Ponte, Lapus de Castiglionchio (senior), Petrus de Ancharano, Alexander Tartagnus, Fridericus de Petrucciis, and it might come to the light for a few other authors, but as a rule it can be stated that it remained an exception before the printed editions appeared. Furthermore the selection and arrangement of consilia in the collections which had circulated in manuscript has no match in the printed editions. The printers must thus have used other sources for their text. Most likely they used authors’ minute books to which they still had access in that time, or copies from such minute books. Unfortunately the printers had a habit to destroy their models once they had finished using them.
It remains an interesting task to compare to the printed editions manuscript consilia by renowned authors which have been preserved in authenticated form, with signature and seal – as mentioned above. The historical development of the habit of signing and sealing a consilium before submission has been canvassed in 2016 in an article which is in galley proofs (cf. Insculpta imago, oncoming publication, Deutsches Kunshistorisches Institut, Florence).