A successful vademecum about the civil procedure
1The following essay is a summary of some results of a group research, coordinated by Prof. Francesco Mastroberti (University of Bari Aldo Moro)1, on the Consolatio peccatorumor Processus Belial, written by Giacomo Palladino aliasJacopo da Teramo (1349-1419)2. The research was followed the reading of the French printed edition, translated by Pierre Farget and published by Mathis Husz (Lyon) in 1487, and went on with the identification and the comparison of the main European editions, the Italian ones particularly. Its purpose was to develop a historical-juridical research so to reconstruct the roman-canonical procedure made between XIII and XVI centuries3, to trace its sources and outline the procedural differences within several European areas, through the Palladino’s work4.
2It is possible to collocate Liber Belialbetween several printed works or manuscripts (spread across Europe during XIV and XVI centuries) on treaties of procedure such as Speculum Iudicialeby Guilelmus Durandus5or the “mock trials” e.g. Satan contra Mariam attributed to Bartolus de Saxoferrato6, which sought to explain deeply the procedural system and the apprentice in the courts. It was well-identified by Carmen Cardelle de Hartmann, in ‘Satanprozesse’ - «eine Gruppe von Texten, die zwischen dem zwölften und dem sechzehnten Jahrhundert in verschieden europäischen Sprachen entstanden sind»7- was staged a judgement: «der Teufel kommt vor das himmlische Gericht und reicht eine Klage ein, denn er will sein ihm entwendetes Eigentum, nämlich die Menschheit, zurückhaben. Im Prozess steht vor ihm ein Anwalt der Menschheit, dem es gelingt, die Ansprüche des Teufels abzuwenden»8.
3Between the ‘Satanprozesse’, the case ioco serius of Palladino - in which the author described an imaginary lawsuit brought against the dispossession suffered by Jesus, who had gone down into hell after his resurrection and had liberated all the souls of the Patriarchs9- had a vast diffusion in all the Europe since the XVth century with several translations (there were manuscripts10and printed editions11currently identified only in part), that passed the border of the Channel12 . Jörg Müller wrote: «Durch diese Art ist der Belial im lit. Genre der Teufelsprozesse wohl einer der erfolgreichsten, was sowohl die hss. Überlieferung, als auch die rasche Aufnahme in frühe Drucke und etliche Übersetzungen (u.a. dt., franz., engl., dän., ung.) bezeugen»13. The success of this work was justified by the fact that Liber Belial became an easy reading vademecum about Civil law procedure that was «elaborate, written, with a specific vocabulary, solemn and long»14, with a very strong fragmentation between Justinian sources and Papal provisions15. So it was requested to be «popularized»16. Carmen Cardelle de Hartmann wrote: «Aber das ganze didaktische Potential des ‘Processus’ hat erst Jacobus von Theramo in seinem Belial ausgeschöpft. Dort wird ganz genau ein Verfahren dargelegt, alle Urkunden werden angeführt, so dass der Belial als Lehrbuch des Verfahrensrechts eingesetzt werden konnte, ein geradezu unterhaltsames Lehrbuch für ein ausgesprochen trockenes Fach»17. The large compendium of juridical citations, given by Palladino for accompanying the reader with «small steps or detailed and pre-determined formal words» of the so-called Romano-canonical proceeding18, doubtless made a success of the work.19
4But which were the sources suggested by the author and which main sources did he refer to especially? For answering these questions I thought of grouping all the legal references in the italian Beliale volgare20into categories and comparing them with the French printed edition translated by Pierre Farget and the German one, which we assume to be the first one published in Germany and the most ancient edition found in Europe, edited by Albrecht Pfister and printed in Bamberg in 1464.
5It is possible to group the legal notes21of Beliale volgare into “simple notes”, formed by a unique reference to a doctrinal or a law source (canonical or roman) and “complex notes” formed by more references to doctrinal and law sources or between Canon law and Roman law sources. So we can say that the purpose of the author was to give a complete picture of juridical references to the readers, which possibly show satisfactory indications and instructions.
7 Another subdivision into three groups was made according to the previous classification:
- Simple citations (a citation of a fragment of a source):
- Canon law
- Roman law
- Complex citations (more citations of more passages from doctrinal or legal sources)
- Canon law
- Roman law
- Complex mixed citations (more citations of more passages from doctrinal and legal
- commentaries and Canon law
- Canon and Roman law
First group: simple citations
8There are 121 simple notes written in Liber Belial (Italian edition). Among these, 53 refer to Liber Extra24, 34 to Decretum by Gratianus25, 13 to Liber Sextus26, 6 to Codexby Justinian27, 3 to Clementinae28, 3 to Digesta29, 3 to Authenticum30, 3 to Glossae to Liber Extra31and 3 to Glossae to Clementinae32. By this synthetic numerical summary it is possible to understand immediately the preponderance (for this group of sources, but it is also possible to generalize this concept) of the canon law and especially the absolute predominance of the citations of Liber Extra33.
9There are only 6 simple citations of doctrinal sources. In this group there are 3 simple notes referting to Glossa ordinaria to Liber Extra by Bernardus Parmensis34and another 3, that refer to Glossa ordinaria to Costitutiones Clementinae by Johannes Andreae35. For instance the note n. 6 of Beliale Volgare: written in the chapter III linked to the «rescritto della delegatione», in which God choses as expert judge King Salomon, it is possible to read: «Come si nota nel ditto §. In la glosa. Olim». First of all «ditto §», which the author refers to individuate the title of Liber Extra (it has to be identified with the main source, when there is no other identifying information about a normative body) corresponds to the title I, title III «de rescriptis», obtainable from the previous note, in which the homonymous title of Liber Sextus is recalled36. In this title, chapter XXV was opened with the word «Olim ex literis»37, to which corresponds glossa with the same incipit38.
10Conversely, there are 103 simple citations of canonical law sources, that have an absolute numeric predominance, compared to the others with the prevalence to the citations to Liber extra, mentioned 53 times. It is possible to discover the importance for the author of this source not only through the recurrence of the notes, but also because he did not use abbreviations to identify the work.
11There are only 12 simple Roman law citations, divided into Authenticum,Digesta and Codex: the last one is mentioned more often.
Second group: complex citations
12There are 84 notes39, which are the result of more citations of the same or different sources. They belong to this huge group, but just one of them links two different canonical doctrinal sources, 80 refers to different canonical law sources and 3 to roman law sources.
13Among the few doctrinal notes, 12 in total between simple and complex, just one refers two canonical law sources. It is the note n. 103 composed of two parts: the first (Come si nota nella glosa nel cap. Impetrandis de iuramento calumniae) refers to Glossa ordinaria to Liber Extra, book II, title VII de iuramento calumniae, chapter III in perpectrandis40; the second one (Et in quel medesimo tito. capit. penulti. lib. vi. ne la glosa) refers to Glossa ordinaria to Liber Sextus by Johannes Andreae41, book II, title IV de iuramento calumniae, chap. II which begins with the words «In appellationis causa»42 .
14Among the 80 citations to canonical law sources, 26 refer to more decretals of Liber Extra43; 6 more canons of Decretum44; 1 more constitutions of Liber Sextus45; whilst 22 combine Liber Extra with Decretum46; 12 Liber Extra with Liber Sextus47, 5 Decretum with Liber Sextus48; 3 Liber Extra and Decretum with Liber Sextus49; 2 Liber Extra with Clementinae50, 1 Liber Extra, Clementinaewith Liber Sextus51; 1 Liber Sextus with Clementinae52and 1 Decretum with Clementinae53.
15An example of multiple citation of the same source may be found in the note 14 «come si nota, de probationibus. Quoniam igitur, e de appellationibus. cum pati», placed at the bottom of the very short chapter VII, which describes the «Relatione per lo nuncio fatta secondo la commissione data à lui». This recalls two decretals of Liber Extra54: the first refers to book II, title XIX De probationibus, chapter XI, which incipit is formed by the words «Quoniam contra»55; the second one also to book II, title XXVIII De appellationibus, recusationibus, et relationibus, chapter XIX, which begins with the words «Quum parati»56.
16In the group of the Roman law complex citations it is possible to attribute just 3 notes that combine more constitutions of Codex57, Codex with Authenticum58and Codex with Digesta59. The small number of citations, which unifies different roman law sources, allows to verify the absolute predominance of the canonical element in Palladino’s works. For this reason it is very important to study the cases, in which the canonical sources were not considered.
Third group: mixed complex citations
17In this group there are 44 notes and just 4 of them combine commentaries
(the note 119 is the only, that refers to Speculum Iudiciale linked
to Liber Extra and to Clementinae) and
canonical law sources (in the Italian version of Consolatio
peccatorum there are not links between commentaries and roman law sources). The
other 40 notes combine canonical and roman law sources. In general, also in this case, it
is possible to highlight
the strong presence of Liber Extra, that was frequently combined with sources of Justinian
compilation, to Speculum Iudiciale and to glossae to other canonical sources.
18The notes, combining commentaries (canonical or roman) and canonical law sources, are completely different. Indeed the first one refers to Liber Extra, Decretum and glossae to Liber Sextus60; 1 to Speculum Iudiciale, Liber Extra and Clementinae61; 1 to Clementinae and glossae to the Clementinae62; 1 to Liber Extra and Novella by to Liber Sextus63.
19Among the 40 notes that combine sources of canonical and roman law, 9 of
them mention fragments of Liber Extra and Digesta by Justinian64; 7 of Liber Extra and Codex65; 5 of Digesta, Liber Extraand Decretum by Gratianus66; 4 of Decretum and Digesta67; 3 of Liber Sextus and Digesta68; 2 of Decretum and Codex69; 2 of Codex, Decretum, Liber Extra and Clementinae70; 2 of Codex, Liber Sextus and Liber
Extra71; 2 of Decretum, Codex and Liber Extra72; 1 of Digesta, Decretum and Liber Sextus73; 2 of Liber Extra and Authenticum74; 1 of Istitutiones by Justinian, Liber
Extra, Clementinae and Digesta75. Again, the source most commonly recurring is the Liber
Extra, which brings together different sources of Roman law. It is probably enough
to examine the note n. 20 (Come si nota nel cap. de iudiciis.
Intelleximus. Et nel digesto. si quis casu. lege Servus) in chapter XI entitled
«Oppositioni fatte per Moise procuratore di Giesù contra Belial procuratore dell’inferno,
et altri»: on the specific objection raised by Moses on the inability to stand on a trail
for excommunicated people, It referred above all to a decretal of Liber
Extra and in addition a fragment of Digesta. The first part (Come si nota nel cap. de iudiciis. Intelleximus) clearly
identifies Liber Extra (without a different reference to other
sources), book II, title I De iudiciis, chap VII (its heading
concerns exactly the question addressed in the Italian text: «
Excommunicatus in iudicio, nisi tanquam reus, stare non potest. Idem Paduano Episcopo») which incipit is the verb «Intelleximus» 76. The second part of the note (Et nel digesto. si quis casu.
lege Servus) refers to Digesta, title «Si quis cautionibus
in iudicio sistendi causa factis non obtemperabit», fragment D.2.11.9 which begins with
the words: «Si servus»77.
The impact of Liber Belial in modern and contemporary historiography
20The large compendium of quotations that accompanied the judicial phases of the trial may have been the reason why the Liber Belial had a vast fortune during the Middle Ages78. As matter of fact, despite not having a scientific character, the work lent itself well to the needs of practical people that, through it, could easily learn how the process works, reference principles, terms and formulas of acts79.
21The reasons that led Jacopo Palladino to begin the Work must be seized in the political situation that was living the Church in the Fifteenth Century as a result of the Great Western Schism of 1378: the book of Belial was, in fact, an important allegorical work impersonating Jesus and Satan in the battle fought with religious, political and legal weapons between the Roman Pope Urban VI - perhaps the real inspirator of the work - and the french Antipope Clement VII80. The multidisciplinary approach among law, prophecy and theology would then allowed to argue before the people of God the Pope’s reasons, in Rome, in proceedings with the cyclopean dimensions that was tearing the Church: and in fact the imaginative process established by Satan against Jesus to regain possession of the souls of the Patriarchs was the obvious metaphor of Avignon seizure and the return of the papacy in Rome that had triggered the reactions of French ecclesiastics. Such references were anything but hidden by the author, whom in one passage of Liber Belial makes specific reference to the Avignon captivity, comparing the French city to the demonic ancient Babylon81.
22Although the work was banned by the Council of Trent in the first edition of the Index in 155982the text returned to prominence in 1611 as Processus Luciferi contra Jesum coram judice Salomone in the collection Processus iuris joco-serius, published in Hanover in 1611, along with Processus Satanae contra Divam Virginem coram judice Jesu attributed to Bartolo da Sassoferrato83and Arresta amorum, sive processus inter amantes, cum decisionibus Parlamenti by Marziale d’Auvergne84: these were all imaginary processes of the Fourteenth and Fifteenth Century (age can be said of consolidation of the roman-canonical procedure85) processed by different authors and in different geographical contexts shared by a plot of the case still considered useful ad usum fori. And in fact the legal interest for Liber Belial continued until the end of Seventeenth Century: in 1617 the jurist Jacob Ayer (1569-1625) puts it in his collection Historicher Processus Juris, explicitly direct to the practice of judgments and republished in 1691 with additions of Ashaver Fritsch86.
23An inevitable loss of interest for Consolatio peccatorum came with the Enlightenment that - condemning all the works of the Middle Ages, considered a barbaric century - did not spare the text of Palladino, one of the most genuine expressions of Medieval world with his load vague of mysticism, theology, politics and law. We read in Encyclopédie ou dictionnaire raisonné des sciences, des artes et des métiers of 1771: «tout cela est aussi grossiérement traité […]. Les passages de l’écriture y sont cités d’une maniere comique, et plus propre à faire rire qu’à édifier»87. This negative opinion reverberated in Italy, in Nuovo Dizionario Istorico published in Naples in 1791, in which we read that the titles of Consolatio «mostrano bastantemente quale sia il libro, nel quale sono tali cose ridicole e talvolta quasi empie, che ad alcuni è venuto in sospetto sienvi state fatte non poche aggiunzioni da qualche maligno impostore … Palladino lo compose in età di trentatrè anni e forse in età più matura avrebbe scritto diversamente, oltredicchè molto bisogna donare alla nota barbarie e strana maniera di pensare di que’ tempi»88; and in Storia della letteratura italiana by abbot Girolamo Tiraboschi, published in Florence in 1807, in wich Liber Belial was defined «insulso libercolo», whose «titolo abbastanza ci mostra la sciocchezza del libro»89.
24After negative opinions matured in the Enlightenment, who had led the Liber Belial in oblivion, in 1820 the text was rediscovered for its practical purposes by André-Marie-Jean-Jacques Dupin - in the renewed romantic climate of Nineteenth Century, inclined to be seduced by the medieval world - wanted to add it in his Notices historiques, critiques et bibliografiques sur plusieurs livres de jurisprudence française, attributing a relief for the lawyers training90. Perhaps thanks to the opinion of Dupin, in the following years the interest around the work of Palladino grew again surpassing the borders of Europe: The correspondent of New York in the First number of 1827 (January 20) opened the Miscellaneous section with a long article on Liber Belial - attributed to Palladino «Archbishop of Florence, and legate Pope" - was described as «very extraordinary and curious book»91.
25Friedrich Carl von Savigny’s opinion was different: in his Geschichte des römischen Rechts im Mittelalter (Bd. 6, 1831), examining the Quaestio inter verginem Maria et diabolum generally attributed to Bartolo da Sassoferrato92, Savigny felt that Liber Belial, s. processus Luciferi contra Christum by Iacopo da Theramo was a mere imitation of the long pedantic joke of Bartolo and as such almost irrelevant93 . The opinion of the illustrious German jurist engraved significantly on luck of Consolatio peccatorum in later historiography, which could not help but overshadow the text of Palladino with respect to the process of the great commentator coming from Bologna94 . In fact, references to the book of Belial in the following years were rare. Among these, are the short contributions merely descriptive of the work by italian historians coming from Teramo, birthplace of Jacopo Palladino, and in particular by the priest Niccola Palma in his Storia della città e diocesi di Teramo (1836)95; and by Gaetano Crugnola in the essay entitled Belial o Consolatio Peccatorum di Giacomo Paladini published in 1897 in the Rivista abruzzese di scienze, lettere ed arti96 . In 1866, the book of Belial also appeared under the heading «Teramo» in Nuova Enciclopedia Popolare for which «il Processus Luciferi doveva servire, nell’intenzione dell’autore, a far conoscere in una forma meno arida dell’usato i segreti della procedura»97.
26Except for these interventions, the first to react to the minimization of Savigny on Liber Belial was Roderich Stintzing in his Geschichte der populären Literatur des römisch-kanonischen Rechts, published in Leipzig in 1867: he assigned a prominent place at Liber Belial within the legal literature of the reception of the roman-canonical procedure and ius commune in Germany,98calling it a «prozessualische Lehrbuch»99 . In the same way Emil Ott in his Beiträge zur receptions-geschichte des römisch-canonischen processes in den böhmischen ländern (Leipzig 1879) supported the importance of Liber Belial as part of the reception, highlighting the interesting legal content100. At the end of the nineteenth century, therefore, in Germany, began a reassessment of the text, for his profile of procedural manual devoted to the practice. And those comments were reflected also in Italy, where in 1925, the legal historian Gaetano Salvioli in his Storia della procedura civile e criminale inserted between the major works of procedure made in Italy in the Fourteenth Century both Processus of Bartolo and Liber Belial, recognizing authoritatively to the work of Palladino a significant legal meaning101.
27The renewed interest in the work especially in the German scientific community, made to mature the conviction that it was necessary a critical edition of the Liber Belial that would help solve the doubts about the legal or theological identity of the text and identifying differences between the different printed editions than the original latin manuscript, never identified. A first comparative approach to Liber Belial was the one followed by the english medievalist Paul B. Salmon102who, in the early fifties of the Twentieth Century, had tried to compare the latin edition of the text - that the author identified with the first edition in latin printed in Augsburg in 1472103- with the german edition, found in a manuscript of the early Fifteenth Century preserved in the University Library of Heidelberg104. A series of aspects, writes Salmon, differentiate the two versions. Stylistic aspects, first of all, but also of content: for example, the almost total absence, in the german version, of references to the Schism, or the fact that in the german version, there would be a greater number of references to legal texts as if Belial could have hired just beyond the Alps its nature of matrix legal text105. However, as pointed out Norbert Ott in his detailed study on the german editions of Consolatio peccatorum106, Salmon considered a base of manuscripts relatively narrow and rather random: it was a useful work, but certainly not exhaustive of the text. Further attempt to publish a critical edition of the text of Palladino was experienced in Italy in 1985 by the historian Angelo Lettieri who merely give to the press the venetian edition in latin of 1533, accompanied by introductory notes in which refuted every heresy of work, reconstructing the Palladino biography and bibliography and attributing to his work a prevalent theological character107.
28In the last decade, the european scientific historiography has shown a growing interest in the work from a historical-legal profile: in this line fit interventions of Eltjio Schrage of 2001, who recognized the pratical purpose of the Work «as an introduction to the law of procedure, for students, legal clerks, proctors, solicitors and other practitioners. For that purpose it illustrates every possible stage of the procedure and shows, a complete, ordinary procedure, from the beginnings (the citatio) until the final judgement, at first instance and in later stages, including the form in which compromissa are concluded. The legal acts in writing are discussed, the oaths, the hearing of witnesses, etc»108; Carmen Cardelle de Hartmann in his essay on “Processus Satanae” (2004), in which the author has highlighted the great educational potential of the book of Palladino and its importance for the reconstruction of the civil medieval trial: «Aber das ganze didaktische Potential des “Processus” hat erst Jacobus von Theramo in seinem Belial ausgeschöpft. Dort wird ganz genau ein Verfahren dargelegt, alle Urkunden werden angeführt, so dass der Belial als Lehrbuch des Verfahrensrechts eingesetzt werden konnte, ein geradezu unterhaltsames Lehrbuch für ein ausgesprochen trockenes Fach»109. Of the same opinion was Jörg Müller who attributed an important role to Liber Belial in the reception of Roman law in Germany110. And also in 2006 Anne Lefevre-Teillard analyzed the Consolatio peccatorum with reference to that part of the processus Belial relative to arbitration, identifying cases and practical issues - in which the author sees the obvious references to Speculum by Guillaume Durande - about les pouvoirs des arbitres, l’objet du compromis, l’engagement de respecter la décision des arbitres, les renonciations, les garaties as an example of a consolidated practice «d’un droit canonique relatif à l’arbitrage»111.
29Finally, the collective book published in 2013 in the series of Jonian Department of the University of Bari by Francesco Mastroberti, Stefano Vinci, Michele Pepe has offered an original contribution on the analysis in detail of the legal sources used by Palladino and differences between the european editions of Belial in the parts related to the articulation and operation of the process. The comparative examination conducted by the authors allowed to detect a substantial conformity between the italian manuscript and other issues identified, leading to the hypothesis that there was a single reference model and that the translators are adhered to it without making upheavals: what to suggest that the Belial already in the original manuscript had the legal content present in the printed editions and that the pattern of the case articulated by Palladino in Italy in 1382 was available throughout Europe, except for some variants, especially in the german edition, in which it is recorded the highest number of omissions of legal citations compared to the italian edition112. The missing references are placed mostly in those sections of the book of Belial relating not to procedural matters, but to substantive criminal law matters, by virtue of the fact that in germanic territories, regarding criminal law and criminal procedure regulated in different states from ancient customary practices, showed greater resistance to the phenomenon of reception113.