Rivista Internazionale di Diritto Comune 21 (2010) ???-???

KENNETH PENNINGTON

The Constitutiones of King Roger II of Sicily in Vat. lat. 8782

In an essay that was published in 2006 I argued that a manuscript

in the Vatican Library (Vat. lat. 8782) contained a collection of Roger II’s constitutions that jurists who were working for the king at his court in Palermo put together at Roger’s royal command ca. 11401. In the last volume of this journal Ennio Cortese has thrown doubt on my conclusions2. I will deal with some of Professor Cortese’s arguments later on in this essay, but first I will discuss the evidence for dating the manuscript because its date is crucial for his doubts and for my conclusions. If, as I have argued, it dates to the mid-twelfth century, Professor Cortese’s arguments and those of his scholarly predecessors cannot be sustained. In first part of this essay I will argue that the evidence contained in the margins of Vat. Lat. 8782 supports a date for the manuscript of ca. 1150 – at the latest.

Professor Cortese’s dating of the manuscript to the end of the twelfth century is supported by a long scholarly tradition. Many previous and recent scholars have concluded that Vat. lat. 8782 is a late twelfth- or even early thirteenth-century manuscript3. Because of the manuscript’s late date, ca. 50 years after Roger II promulgated his Constitutiones, Professor Cortese argues that the compilation of laws was not a product of Roger’s court. The individual Constitutiones were, however, authentic. He thinks that there may have been a constitution or two of Roger’s successors mixed into the collection. Consequently, Professor Cortese does not believe that the collection of Roger’s legislation was, as I have

1 ‘The Birth of the Ius commune: King Roger II’s Legislation’, Rivista internazionale del diritto comune 17 (2006) 23-60.

2 Ennio Cortese, ‘Il diritto romano in Sicilia prima e dopo l’istituzione del Regno’, Rivista Internazionale di diritto comune 19 (2009) 1-13.

3 Most recently Francesca Macino, Sulle tracce delle istituzioni di Giustiniano nell’alto medioevo: I manoscritti dal VI al XII secolo (Studi e testi 446. Città del Vaticano 2008) 156-160, who dates the manuscript to the second half of the twelfth century and argues for a Northern Italian scriptorium; I would accept her conclusion about the origins of the manuscript for the first part containing the Lombarda but not for the second half of the manuscript.

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contended, a precocious and first example in European law of a monarch promulgating a collection of his statutes. If, indeed, the manuscript was written ca. 1190 or later Professor Cortese’s scepticism would be justified.

The most convincing proof of the manuscript’s pre-1150 date is contained in the marginal glosses. In my essay I had noted that the glosses to Justinian’s Instiutes always cited the Digest with a maiuscule D bisected by a horizontal line through the letter. Professor Cortese agrees with me that this usage fell into desuetude in the second half of the twelfth century but makes two arguments to counter an early date for the manuscript.: 1. Scribes who worked in the law schools on the periphery still used the maisucule Đ and other more archaic forms of citing the Digest in the 1150’s4 and that 2. the scribe could have been old and set in his scribal ways. Since the Vatican manuscript is Italian and not a product of the periphery his first argument loses much of its force. His second argument is unverifiable.

The Vatican manuscript contains two parts that were joined together at an unknown time. The first part contains the Leges Longobardorum or Lombarda (fol. 1r-47ra) with an appendix of constitutions taken from Justinian’s Codex (fol. 47ra-48vb). The second part contains Justinian’s Institutes (fol. 49ra-91ra), followed by Roger’s Constitutions (fol. 91rb-94va) and an appendix of two early twelfth-century ordines iudiciarii (fol. 94va-96vb). The first part of the manuscript was trimmed by ca. .8 of a centimeter to make it conform to the size of the second half. I think that the appendix of constitutions taken from the Codex was written by a scribe whose hand is similar to that of the scribes who wrote the Lombarda. Further, the last quire of the Lombarda ends at fol. 48v. As Professor Cortese has pointed out, the first section of the manuscript was owned by someone who lived in a city squarely in the land of Lombard law5. However, the ownership stamps that appear twice in the first part of the manuscript cannot be used to attribute ownership to the second part. They were not written in the same scriptorium and the format of each part is slightly different6.

4 Cortese, ‘Diritto Romano in Sicilia’ 4. 5 Ibid. 5. 6 The first part of the manuscript is in two columns of 37-41 lines; the second

part is two columns that has 40 lines consistently. The scribes of the Lombarda vary between an uncial and a straight ascender d. The scribes of the Institutes use only the uncial d. This fact reinforces my impression that the first part is an earlier text than the second part. The text of Roger’s Constitutiones and the two ordines use both d’s and appear to be written by scribes using an older style of writing. Some scholars have localized the Institutes to Southern Italy (Salerno). Although that would be convenient for my argument, I cannot see any evidence

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As I will demonstrate, the scribes who wrote the marginal glosses in both halves of Vat. lat. 8782 used the Đ to identify allegationes to the Digest. Further, all the scribes were professional. It is impossible, I think, to imagine that three or more different scribes in both parts of the manuscript would employ a long abandoned system of notation in the late twelfth century. There are a number of references to the Digest in the first half of the manuscript that contains the Leges Longobardorum. They all cite it with Đ’s7. The glosses to the texts in the second half of the manuscript, as we will see, were also the product of the law schools. These scribes also invariably cited the Digest with Đ. I think that these glosses, as well the sigla used to cite the libri legales, are an excellent guide to the date of the manuscript.

Since Roger’s Constitutiones are added to the end of Justinian’s Institutes, the second part of the manuscript is crucial for dating them8. The same scriptorium produced both texts. If we can date the text of Justinian’s Institutes with some certainty, then we can have some confidence about the date of Roger’s Constitutiones.

The text of the Institutes is in a hand that is typical of the mid-twelfth century. However, even expert paleographers can disagree about dating, especially if one conjectures, as Professor Cortese has, that a scribe employed an old fashioned style of writing. A more certain proof of a legal manuscript’s date can be found in the glosses added to the margins. Consequently, let us turn to the glosses on the Institutes in Vat. lat. 8782.

There are two primary sets of glosses to Justinian’s Institutes. The first is a very early and primitive set of allegationes to the text with only

that would validate that conjecture. The manuscript’s strongest link to Southern Italy is, of course, Roger’s Constitutiones, and, perhaps, a set of glosses signed with the Greek letter Φ: see my discussion below. See Giovanni Santini, ‘Problemi relativi alle assise di Ariano: Gli uomini di legge’, Alle origini del costituzionalismo europeo: Le Assise di Ariano, 1140-1990, ed. Ortensio Zecchino (Collana di Fonti e Studi, 1; Ariano Irpino 1996) 81-106 at 85 and the literature that he cites.

7 E.g. Vat. lat. 8782, fol. 14rb, fol. 16ra, fol. 19vb, fol. 20vb, fol. 21vb, and 24ra. I do not believe that the text of the Leges Langobardorum can help us to date the second half of the manuscript, but I do think that the two parts of the manuscript were probably joined together by the middle of the twelfth century. The glosses to the Leges demonstrate a good knowledge of Roman law, with many references to the Codex as well as the Digest.

8 I prefer to call them constitutions rather than assizes. Only the Montecassino manuscript labels them assizes. Montecassino is both late, late twelfth or early thirteenth century, and clearly not the product of a law school scriptorium. Roger called his laws sanctiones in his prologue.

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two sigla of “y.” which has been traditionally attributed to Irnerius9. The hand of the scribe who wrote the first layer of glosses is very similar to that of the scribe who wrote the main text (see figure one: Vat. lat. 8782, fol. 53rb). These primitive glosses are typical of the earliest glosses to the Institutiones and Codex and resemble the earliest glosses to Gratian’s Decretum10. The early canonists and civilians put simple allegationes in the margins that were placed next to the text to which they referred but without any marks to indicate exactly which words of the text they were meant to explicate11. The first layer of glosses in Vat. lat. 8782 contains almost no text other than allegationes to the libri legales. Their author(s) concentrated on bringing the reader’s attention to parallel texts in other parts of Justinian’s codification. This layer of glosses reflects the earliest teaching of Roman law in Bologna. It is impossible to imagine that a jurist in the late twelfth century would have wished to have this layer of glosses added to his manuscript. We can, then, with some confidence date these glosses to the first half of the twelfth century.

The second layer of glosses is of much greater juristic interest. It was written later than the first layer and contains extensive comments on the content of the Institutes. This layer contains over 60 glosses signed

9 e.g. Vat. lat. 8782, fol. 80r and 80va (figures 7 and 8). The manuscript

tradition proves that the twelfth-century jurists certainly believed that Irnerius taught law at Bologna and preserved his memory by citing his glosses; see the information on the 53 Codex manuscripts containing marginal glosses with the siglum y. in Giuseppe Speciale, La memoria del diritto commune. Sulle tracce d’uso del Codex Giustiniano (secoli XII-XV) (I Libri di Erice, 10; Roma 1994) 239-340 and 375-376.

10 See the splendid work of Glosse preaccursiane alle Istituzioni: Strato azzoniano libro primo, edited by Severino Caprioli, Victor Crescenzi, Giovanni Diurni, Paolo Mari, and Piergiorgio Peruzzi. (Istituto Storico Italiano per il Medio Evo, Fonti per la Storia d’Italia, 107. Roma: Nella Sede dell’Istituto, 1984) and Glosse preaccursiane alle Istituzioni: Strato azzoniano libro secondo, edited by Severino Caprioli, Victor Crescenzi, Giovanni Diurni, Paolo Mari, and Piergiorgio Peruzzi. (Istituto Storico Italiano per il Medio Evo, Fonti per la Storia dell’Italia medievale, Antiquitates, 14. Roma: Nella Sede dell’Istituto, 2004). I will cite these two works as Glosse I and Glosse II.

11 The work that Rudolf Weigand has done for the earliest glosses to Gratian’s Decretum has not yet been done for Justinian’s texts; see Die glossen zum Dekret Gratians: Studien zu den frühen Glossen und Glossenkompositionen (Studia Gratiana 25-26; Rome 1991) and his summary of his work, ‘The Development of the Glossa ordinaria to Gratian’s Decretum’, in The History of Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX, edd. W. Hartmann and K. Pennington (History of Medieval Canon Law; Washington, D.C.: The Catholic University of America Press, 2008) 55-97.

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with the siglum of “o” with a “j” drawn vertically through it (see figure two: Vat. lat. 8782, fol. 58rb). Federico Patetta was the first scholar to study Vat. lat. 878212. He concluded that the siglum belonged to Johannes Bassianus, and Professor Cortese has followed his attribution. The siglum is unique in Roman law manuscripts and almost unique in all legal manuscripts. Peter Landau has written about a similar siglum found in a Bamberg manuscript that contains a version of the Collectio Cassellana, a collection of decretals compiled ca. 118713. Landau preferred to read the siglum as the Greek letter Phi (Φ) rather than as Johannes. The only other sigla in the Vat. lat. 8782 in the second layer of glosses are f. and p.14 There many references in the signed and unsigned glosses to a jurist, “b.” who must be Bulgarus. Indeed, in one gloss the jurist’s name is written out as Bulgarus15. Bulgarus is cited constantly in the second layer of glosses. I have found one reference to Martinus. Unfortunately, these references to Bulgarus do not help us in deciding to whom this layer of glosses should be attributed nor do they help us localize or date this layer. The many references to Bulgarus do, however, lead us to the conclusion that Φ was educated in Bologna and was probably a student of Bulgarus.

The glosses in Vat. lat. 8782 also provide evidence for deciding which jurists were not Φ. Johannes Bassianus studied with Bulgarus, and he taught Azo. Azo’s glosses contain a lot of material taken from Johannes Bassianus. Therefore, if the layer of glosses in Vat. lat. 8782 are by Johannes Bassianus, we should find many of the manuscript’s glosses in Azo’s glosses. We can test that theory by looking at the meticulous work

12 Federico Patetta, ‘Nota sopra alcuni mss. delle Istituzioni di Giustiniano

con appendice di glosse inedite’, Bulletino dell’Istituto di Diritto Romano 4 (1891 [1892]) 17-96.

13 Peter Landau, ‘The Phi.-Glossen der Collectio Cassellana’, Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington, edd. Wolfgang P. Müller and Mary E. Sommar (Washington, D.C. 2006) 159-169. On the Cassellana see W. Deeters, Die Bambergersisgruppe der Dekretalensammlungen des 12. Jahrhunderts (Ph.D Dissertation; University of Bonn 1956).

14 Vat. lat. 8782, fol. 67ra and 67rb. If Φ is a siglum for Philippus, then the p. and f. sigla could be attributed to the same jurist.

15 First printed by Patetta, ‘Nota’ 92, Vat. lat. 8782, fol. 78rb: Cum conuenit ut emptio scriptis perficeretur Non aliter uires habuit quam si fuit omne Mundum completum quod uulgo carta uocatur. Si tamen is qui uendidit hoc quia se putat esse Emptor namque rei dominus tunc incipit esse. Bulgarus hoc dicit qui quondam carmina finexit; Nunc dicit plane contra quod

dixerat ante’.

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that Severino Caprioli and his team of scholars did on the glosses of books one and two of Justinian’s Institutes. They examined the ‘Azonian layer’ of glosses in 53 manuscripts. They looked at every gloss in Vat. lat. 8782. They found that none of the glosses with “Jo.” siglum in the manuscripts could be found in Vat. lat. 8782. Further, they found very few glosses in Vat. lat. 8782 that could be attached to the ‘Azonian layer’16. From that evidence it is clear that Φ was a jurist who studied in Bologna with Bulgarus, but whose apparatus of glosses, if we may attribute the entire second layer of glosses to Φ, as I think we can, was not a source for Johannes Bassianus or Azo.

If I am correct, how does this evidence affect our dating of Vat. lat. 8782? First, the contents of the second layer of glosses rely primarily on Bulgarus. Φ cites almost no other jurists. If Φ were writing in the 1190’s, that would be very strange. By then he should have referred to the work of other Bolognese jurists and not focused his work solely on Bulgarus. If however, he were writing in the 1140’s or 1150’s, then his reliance on Bulgarus is much more understandable. The earlier date is also supported by his method of citing the Digest. Glosses with the siglum of Φ always cite it with Đ (see figure Three)17. So do all the other glosses in the layer in which Φ’s glosses appear. This evidence does not completely counter Cortese’s arguments about the date. Even if the glosses were not those of Johannes Bassianus, Φ’s much more sophisticated glosses could have been entered into the manuscript when it was copied in the 1190’s.

There is conclusive evidence, however, that the second layer of glosses was added after the main text of the Institutes and after the first layer of primitive glosses. They cannot, therefore, be used to date the second half of Vat. lat. 8782. Five of the glosses with the siglum of Φ are wrapped around allegations of the first layer of glosses (see figures One, Four and Five: Vat. lat. 8782, fol. 58va and Vat. lat. 8782, fol. 53ra)18. Over ten of the unsigned glosses are also wrapped around the first layer of glosses19. This is clear evidence that the second layer of glosses was added after the main text and after the first layer of glosses. Consequently, even if we could date the second layer of glosses with

16 5 glosses in Book I and 9 glosses in Book II of the Institutes; see the table at

the end of Glosse I (which lists only four) 327-356 and my count of the glosses in Glosse II (no. 38, 160, 161, 172, 185, 225, 264, 327, 1029). The majority of these glosses do not exactly reproduce the texts in the “Azonian layer’, but only approximate them.

17 Đ de captiuis et postl. Postliminium § ult. (Dig. 49.15.19.10). 18 Vat. lat. 8782, fol. 50vb, 51rb, 53ra, 58va, 65rb. 19 Vat. lat. 8782, fol. 50rb, 50vb, 51ra, 51rb, 53rb, 53va, 54rb, 58va, 68rb,

70rb, 77va, 79va.

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certainty, these glosses could not be used to date the manuscript’s text of the Institutes and Roger’s Constitutiones.

From this evidence I conclude that Φ’s glosses cannot be dated later than the 1150’s or 1160’s. No jurist studying in Bologna after the 1160’s would have concentrated so exclusively on Bulgarus’ teaching. With this evidence, combined with the primitive layer of allegationes in the margins of Vat. lat. 8782, one must conclude that the main text of the manuscript probably dates no later than 1150, probably before. No one in the 1190’s would have wanted to own and to pay for a manuscript of the Institutes that was provided with the primitive (Irnerian?) glosses contained in the first layer and then added glosses of the Φ layer that were 30 or 40 years old20. Jurisprudence had evolved too much and come too far by the 1190’s. Such a manuscript would not have been of much interest to its owner. Consequently, the method of citing the Digest with a Đ in these simple allegationes and in the glosses of Φ points not to an old fashioned scribe but to a date for the texts of the Institutes and Roger’s Constitutiones as being no later than ca. 1150. The hand of the scribe that entered Roger’s Constitutiones is not exactly the same as the scribal hand of the Institutiones, but it is very close.

There are two more pieces of codicological evidence that one must consider when dating the second half of the manuscript. The second tract on procedure is considered to be earlier than Bulgarus’ letter to Haimeric. It was added to the manuscript before Bulgarus’ treatise. The proof for that statement is the fact that the text of Bulgarus’ tract was squeezed between Roger’s Constitutiones and the second tract. Bulgarus’ tract on fol. 95r is written in a much smaller script than the beginning of the tract on 94v and divided into three columns to accommodate the glosses. The scribe clearly tried to fit the remaining text of Bulgarus’ tract on 95r. The second tract is carefully rubricated, unlike Bulgarus’s treatise. Further, the rubricator of the second tract, used the same abbreviation for “De” as the rubricator of Justinian’s Institutes: a maiuscule D with a line through it; exactly the same abbreviation as the scribes used for the Digest. One can conclude that Justinian’s Institutes, Roger’s Constitutiones, and the second tract on procedure were written at the same time in the same scriptorium. Bulgarus’ tract was added later.

20 It is very common for earlier glosses to be erased by scribes who added later

apparatus to a manuscript. Munich, Staatsbibl. Clm 3509 has a primitive layer of glosses with many of the same glosses in Vat. lat. 8782. But like 8782, later glosses are wrapped around the more primitive layer. To date no one has done the work on these early Roman law glosses that Rudolf Weigand did for primitive canon law glosses: again see the summary of his magnum opus, ‘The Development of the Glossa ordinaria to Gratian’s Decretum’ 55-97.

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These tracts are fairly unsophisticated tracts on procedure 21. These tracts are fairly unsophisticated tracts on procedure. It is hard to imagine that a jurist in the 1190’s would have found them useful. Even more striking are the marginal glosses that were added to Bulgarus’ texts. These glosses, the only glosses to Bulgarus’ letter that we have in the manuscripts, cite the Digest with Đ. Further, the Digest is also cited with Đ in the text of the second procedural tract. Four different scribes in the second part of Vat. lat. 8782 used Đ to refer to the Digest.22 I know of no other late twelfth-century legal manuscript that contains such archaic citations by every scribal hand involved in writing the texts. I cannot believe they all could be using such an outmoded system of citation at the end of the twelfth century. Taking account of all the evidence that argues for a mid-twelfth-century or earlier date for Vat. lat. 8782, I see little reason to alter my conclusions about Roger II’s Constitutiones: They were compiled and promulgated during Roger II’s reign, probably ca. 114023. 2. They represent the earliest example that we have of a secular European monarch promulgating a compilation of statutes for his kingdom.

Finally a few reflections on the evidence provided by Vat. lat. 8782. I think there can be little doubt that the manuscript dates to Roger’s reign and, therefore, close to the time when Roger’s Constitutiones were promulgated. Although Roger’s Constitutiones have been dated to ca. 1140, the date rests upon very feeble evidence. Roger died in 1154 and might have promulgated his Constitutiones long after 1140. However, since Vatican lat. 8782 itself and no text contained in it can be dated later than ca. 1150, the traditional date is probably more or less correct.

The person who owned this manuscript probably came from Southern Italy. There are two reasons for concluding that he was from the Kingdom of Sicily. The first is that he wished to have a copy of Roger’s legislation. The second is that he had a layer of glosses added to the manuscript by an unknown jurist, who studied in Bologna, whose glosses did not become part of the Bolognese tradition, and whose glosses

21 Cortese, ‘Diritto Romano in Sicilia’ 5 n.13. I discussed both tracts in my

essay ‘The Birth of the Ius commune’ 27-28. 22 I.e. both layers of glosses to the Institutes, the glosses to Bulgarus, and the

references to the Digest within the text of the final Ordo iudiciarius (on which see Pennington, ‘Birth of the Ius commune’ 28.

23 I think that we should not call the Constitutiones Assisae for two reasons. First, the terminology is only preserved in the Monte Cassino manuscript that is late and not a reliable witness. Second, the Proemium refers to the legislation as sanctiones, not assizes. Finally, Frederick II referred to them as constitutions. They also should not be called the ‘Assisae di Ariano’ because, as I have noted in my essay, ‘The Birth of the Ius commune’ 36, there is no evidence that a diet in that city was the place where they were promulgated.

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are signed with a Greek letter. Since the glosses cannot be attributed to Johannes Bassianus, I think we must conclude that the jurist came from Southern Italy and used a Greek letter to distinguish his glosses. He most likely had a Greek background. The owner of the manuscript wanted Φ’s glosses in his book. It is not stretching the evidence too far to conclude that the second half of the manuscript was produced for a Southern Italian.

The final doubt that Professor Cortese raises is whether the jurists who compiled Roger’s legislation were educated in Bologna. If there were jurists in Sicily before Φ (assuming that he was Greek) who got their legal training from native or Byzantine traditions they have left very few traces in our sources. If Φ were Southern Italian, if he studied with Bulgarus in Bologna, it might not be too far-fetched to imagine that others preceded him North. When I wrote about Roger’s legislation I emphasized the compilers’ dependence upon Justinian’s Codex and Digest. Because of their dependence on the Codex and because, as far as we know, Byzantine jurists did not use the entire Latin Codex, I think that the evidence I presented in my 2006 essay justifies my conclusion that they must have been trained in Bologna.

Professor Cortese argues that the primary influence on Roger’s legislation came from Byzantine jurisprudence. I would agree if one deleted the adverb ‘primarily’ from the last sentence. He thinks that the Roman law in Roger’s Constitutiones is the product of indigenous Byzantine-Southern Italian traditions. Roger’s jurists were not shaped and formed by Bolognese jurisprudence24. However, if we look at the broader landscape of the spread of the knowledge of Roman law in the first half of the twelfth century, Roman jurisprudence had already spread far South of Bologna. In two recent essays I have demonstrated that the papal court had been already influenced significantly by Roman law in

24 Ibid. 10: ‘Quanto più conta, lo stesso Ruggero legislatore appare

chiaramente influenzato più da Oriente che da Occidente’.

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the 1120’s and 1130’s25. I do not find it inconceivable that Roger had Bolognese jurist(s) at his court26.

I would not deny Byzantine or native southern Italian influence. In my previous essay I emphasized the Latin/Bolognese influence because I think it is greater than the Byzantine/Greek. Seeing a Byzantine/Greek influence in the shaping of Roger’s Constitutiones is not new. Over 100 years ago, after a careful study of Roger’s legislation, Francesco Brandileone came to the conclusion that Roger’s jurists must have had Byzantine and Latin sources in front of them when they drafted the Constitutiones27. He gave several examples to prove the Byzantine influence but also pointed out that they must have had access to and knowledge of Justinian’s codification in Latin. Bologna would have been the most likely source of their knowledge. Brandileone’s most striking example of Byzantine influence was his observation that the phrase in Roger’s Proemium ‘peritus iuris interpres, iuris sacerdotes appellat’ was most likely taken from Leo III Isaurian’s Ecloga and that it was not a slight expansion of Ulpian’s text in Dig. 1.1.1 (although there is influence from that text too)28. He also observed that Roger’s constitution 21, ‘Adulterinam monetam’ showed influence of Byzantine and Latin jurisprudence29. As I wrote, however, in my previous essay, the strongest argument that the compilers of Roger’s legislation used the Latin Codex is the rubric to constitution 43, ‘Si iudex accepta’. This maxim, ‘Si iudex litem suam fecerit’ can only have been understood by someone who was

25 Pennington, ‘The “Big Bang”: Roman Law in the Early Twelfth-Century’,

Rivista internazionale di diritto comune 18 (2007) 43-70 and ‘Roman Law at the Papal Curia in the Early Twelfth Century’ Canon Law, Religion and Politics: Liber Amicorum Robert Somerville (Studies in Medieval and Early Modern Canon Law; Washington, D.C. 2011). Santini, ‘Problemi’ 99-102 makes an argument similar to mine, i.e. the Roman Curia already was using Roman law in its decretals from the end of the eleventh century and that the connections between the Curia and Sicily were close.

26 Santini, ‘Problemi’ 90-105, has done a prosopographical survey of jurists in Sicily during Roger’s reign. The most important point of his study is that they were not all Greek jurists.

27 Francesco Brandileone, ‘Il diritto greco-romano nell’Italia meridionale sotto la dominazione normanna’, Archivio Giuridico 36 (1886) 63-101 and 238-291, reprinted in Scritti di storia giuridica dell’Italia meriddionale, ed. Carlo Guido Mor (Società di Storia Patria per la Puglia, Documenti e Monografie 34; Bari 1970) 211-313. My thanks to Orazio Condorelli for bringing Brandileone’s essay to my attention.

28 Vat. lat. 8782, fol. 91rb: “Unde quidam sapiens legisque peritus iuris interpres iuris sacerdotes appellat”. Ulpian had formulated the phrase as “Cuius merito quis nos sacerdotes appellet” in Dig. 1.1.1.

29 Brandileone, ‘Diritto greco-romano’ 304.

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very familiar with the Latin Codex and Latin jurisprudence30. Besides this small slice of text, however, is the organization and shape of the individual constitutions. The Sicilian jurist(s) who drafted Roger’s legislation undoubtedly knew the Latin Codex and Digest.

Whether Roger’s jurists would have drafted the Proemium must remain a subjective judgment. Mario Caravale has argued that the concept of justice in it was an expression of Roger’s theory of monarchy. He finds Roger’s ideals of kingship in the Proemium to be convincing expressions of rulership congruent with ideas circulating in the first half of the twelfth century. Caravale notes that the Proemium did not mention ‘equitas’ and its relationship to the law, a concept that the Bolognese jurists were in the process of developing31. By the 1190’s the connection between equity and legislation was well established. Why, one may ask, would a person drafting the Proemium later in the twelfth century ignore this fundamental principle of kingship? But this is a argumentum ex silentio and therefore not particularly compelling. I have also argued that the Proemium fits into the jurisprudential thought of the 1130’s or 1140’s32. However, these judgments by Cortese, Caravale, and me cannot definitively establish the date of the Proemium. If the manuscript itself can be dated to the 1140’s, then the Proemium must, ipso facto, be genuine and an expression, quite precocious, of Norman kingship.

Appendix

Patetta printed a number of glosses in Vat. lat. 8782’s second layer of glosses that I will reprint for book one, titles 1-6 below with some corrections. I will also add some other glosses from this layer. Some of the glosses are provided with sigla to indicate to which lemmata they refer. I will note those glosses with the notation, s.v. (sub verbo[is]). For those glosses that do not have sigla, I shall give the section of the Institutiones opposite to the gloss. Most of the second layer glosses, however, do not have sigla, which is typical of early glossed manuscripts.

30 Pennington, ‘Birth of the “Ius commune”,’ 47-51. 31 Mario Caravale, ‘Giustizia e legislazione nelle assise di Ariano’, Alle origini

del costituzionalismo europeo: Le Assise di Ariano, 1140-1990, ed. Ortensio Zecchino (Collana di Fonti e Studi, 1; Ariano Irpino 1996) 3-20 at 4-5, reprinted in his La monarchia meridionale: Istituzioni e dottrina giuridica dai Normanni ai Borboni (Centro Europeo di Studi Normanni: Collana di Fonti e Studi, 6; Ariano Iripino 1998) 3-23 at 4-7.

32 Pennington, ‘Birth of the “Ius commune”,’ 31-37.

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This is another piece of evidence that the manuscript is not late twelfth century.

Inst. Proemium, fol. 49rb, s.v. non solum armis decoratam: Arrepto penna et calmo ei scribere uolenti sic opponitur ‘non est tuum scribere set armis desudare’. Cui respondet ‘decet imperatoriam maiestatem, etc.’ Φ

Inst. 1.1, fol. 49rb: Iurisprudentiam ideo hic diffinit quia cum de iure tractare debeat, hoc facere non potest.

Inst. 1.1, fol. 49rb: Prudentia est ueri et falsi perspicatio iustum ab iniusto decernens. § Idest scientia iusti et iniusti habita in rebus diuinis et humanis. Φ

Inst. 1.1.2, fol. 49va: idest huius artis adipiscende per uehemens studium. Φ33

Inst. 1.2, fol. 49va: Ius est preceptum quod ex ea pendet auctoritate cui est obediendum ex necessitate parendum et quamdam nobis utilitatem affert.

Inst. 1.2, fol. 49va: § Qualiter ius naturale separatur ab his duobus dixi, nunc qualiter ius gentium, etc. inter se differatur a superiori.

Inst. 1.2.1, fol. 49va: Ius ciuile duobus modis dicitur uel quod ipsa ciuitas sibi constituit uel quod auctoritate confirmauit.

Inst. 1.2.1, fol. 49va: Populus est multitudo hominum ad iure bene uiuendum collecta. Set si collecta non ad iure uiuendum, multitudo quidem est, set non dicitur quidem populus. Cum autem populus Romanus post exactos reges incerto iure utebatur, placuit publica auctoritate x. uiros constitui qui peterent leges a duabus Grecis ciuitatibus; quibus legibus sequenti anno additis duabus tabulis, ex accidenti uocatur lex xii. tabularum. Deinde populus Romanus cepit condere leges consulibus interrogantibus; postea uero plebe a populo separata in sacro monte condidit ius, quod appellatur plebiscitum. Item a senatoribus senatus consulta; ab imperatoribus principum placita; post magistratum edicta responsa prudentum. Omnes autem iste species iuris quas supra numerauimus multum a constitutione differunt, set in ui et potestate nichil differunt.

Inst. 1.2.2, fol. 49va: Ius gentium aliud est cum ipsa natura humana proditum ut religio quod naturale <ius> uocatur; aliud est ab ipsis gentibus constitutum ut seruitus de qua hic legitur.

Inst. 1.2.7, fol. 49vb: Senatores quorum sedes in curribus erant in iudiciis residendo per quas discrepant a superioribus magistratibus.

Inst. 1.2.11, fol. 50ra, s.v. Set naturalia quidem iura: Scilicet, quia constituit ius ciuile et ius naturale uno modo quantum ad hoc quod

33 Patetta prints a gloss Ysidorus – affert that does not belong to the second

layer of glosses.

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THE CONSTITUTIONES OF KING ROGER II OF SICILY IN VAT. LAT. 8782

dictum est de scripto et de non scripto iuri, unde uidetur uno modo perseverare. S7 ?

Inst. 1.2.11, fol. 50ra: idest que persone sui iuris sunt et que subicere et qui neutro iure teneantur quemmodo sub tutore uel curatore agantur a patria seu dominica potestate liberetur. Φ

Inst. 1.3, fol. 50ra: Divisio est immemorabilis materie comprehensio. § Sunt tamen et ascriptitii qui nec proprie liberi nec proprie serui, sic <non> in diuisione actionum reperies, nam actio ad exibendum nec in rem est nec in personam proprie dicitur …

Inst. 1.3.4, fol. 50ra, s.v. viginti annis: Ad hoc ut liber seruus efficiatur necesse est ut haec tria concurrant, scilicet maiorem esse xx. annis, ad pretii partem habeat et emptor liberum eum ignoret, altera istarum deficiente seruus esse non potest. Φ

Inst. 1.5, fol. 50rb, s.v. quis in seruitute: Iustam dicit respectu imaginarie seruitutis que erat in filiis quando ducebantur in seruitutem et sic manumittebantur.

Inst. 1.5.3, fol. 50va: Latini ideo dicuntur quia sub Latino rege morabantur, scilicet extra urbem, set non ultra septimum miliarium urbi accedebatur. Dediticii dicebantur illi qui cum hostes essent uicti detinebantur (recte dedebant?) se Romanis ciuibus prius quam caperentur.

Inst. 1.6.4, fol. 50vb, s.v. si uindicta apud consilium: Vindicta dicitur uirga pretoria qua tangebat eos qui manumittebantur, c. pro. ap. et ce. (?) Vnde dicebantur uindicta manumissi uel uindicta dicitur libertas a populo uel eius ministro data, eo quod ab eo primum seruo uindici Romane libertatis data est ad uindictam.

Inst. 1.6.6, fol. 50vb, s.v. Semel autem causa adprobata: Hec regula tantum locum habet in manumissionibus. Quod dumtaxat uindicata apud concilium causa probata.

Inst. 1.6.7, fol.50vb: Ex quo quis testari potest et libertatem in testamento relinquere et inter uiuos dare potest, ut B . ait. M. autem negat eum inter uiuos dare posse liberatatem. Φ

Inst. 1.6.7, fol. 50vb: Hodie autem ex quo testatur manumittitur, ut in aut. ut sponsalitia largitate (Authen. 9.2 = Nov. 119).

Summary: Scholars have dated Vat. lat. 8782 to the end of the of the twelfth

century. As a consequence, they have concluded that Constitutions of King Roger II contained in the manuscript were probably not a collection that was compiled during Roger’s reign. This essay evaluates the evidence for dating the manuscript and concludes that the manuscript could not have been written later than the middle of the twelfth century. Therefore, the compilation of Roger’s Constitutions was made during his reign and can be called the first example we have of a European monarch exercising his legislative authority. These royal legislative were based on the newly revived study of Roman law.

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Sommario: Alcuni studiosi hanno ritenuto che il ms. Vat. lat. 8782 debba essere datato verso la fine del secolo XII. Di conseguenza, hanno concluso che le Costituzioni di re Ruggero II contenute nel manoscritto probabilmente non rappresentano una compilazione redatta durante il regno di Ruggero. Questo saggio valuta gli elementi che consentono di datare il manoscritto, e conclude che esso non può essere stato scritto più tardi della metà del secolo XII. Perciò la compilazione delle Costituzioni fu fatta durante il suo regno e Ruggero può essere definito come il primo esempio di un monarca europeo che esercita l’attività legislativa. Tale prerogativa legislativa regia si basava sullo studio del diritto romano a quel tempo appena riscoperto.

Key Words: Roger II’s Constitutions; Vat. lat. 8782; Institutiones; glossae. Parole chiave: Costituzioni di Ruggero II; Vat. lat. 8782; Institutiones;

glosse.

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Figure 1: Vat. lat. fol. 53rb Detail Institutes 1.14.1

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Figure 2: Vat. lat. 8782, fol. 58rb Detail Institutes 2.2.1

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THE CONSTITUTIONES OF KING ROGER II OF SICILY IN VAT. LAT. 8782

Figure 3: Vat. lat. 8782, fol. 52vb Detail Institutes 1.12.5

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Figure 4: Vat. lat. 8782, fol. 58va Detail

Institutes 2.4.1

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THE CONSTITUTIONES OF KING ROGER II OF SICILY IN VAT. LAT. 8782

Figure 5: Vat. lat. 8782, fol. 53ra Detail Institutes 1.13.1

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Figure 6: Vat. lat. 8782, fol. 80rb Detail Institutes 3.27.4

Figure 7: Vat. lat. 8782, fol. 80va Detail Institutes 3.29.1