Chapter 15
The Mysterious Canonist Bazianus on Marriage1

Charles Donahue, Jr.

Since Tommaso Diplovatazio’s De claris iurisconsultis scholarship has, for the most part, recognized the existence of two Bolognese glossators of the last quarter of the twelfth century with similar names, Johannes Bassianus and Bazianus (or Basianus).² The former was a civilian, who wrote numerous glosses on all parts of the Corpus iuris civilis, a summa on the Novels, summae on titles of the Digest, Institutes and Code, distinctiones, commenta and lecturae, and a number of important procedural works.³ He was the teacher of, among others, Azo, and his opinions are frequently cited in the Accursian gloss. The latter was a canonist, largely known for his glosses on Gratian’s Concordance of Discordant Canons, whose work is frequently cited in manuscripts that date from or are copies of works from the late twelfth and early thirteenth centuries, but whose work thereafter seems largely to have been forgotten.⁴ Biographical details about both men are sparse. In the case of Bassianus, they consist largely of scurrilous anecdotes.⁵ In the case of Bazianus, there is a plaque on what purports to be his tomb in the cathedral of Bologna that gives a few tantalizing hints about his life and a group of notarial documents concerning a case in which he sat as one of the judges in 1193.⁶ The first tells us that he was a doctor of both laws (Summus in alterutro doctoris iure peregit / hactenus officium …), and if that is right, he is the first person known to have been such. On the basis principally of the second (the case was turned into a quaestio disputata and reported under the name of Bassianus), it has recently been suggested that Bassianus and Bazianus were, in fact, the same man.7

The basic arguments against this suggestion can be briefly outlined. First, the sigla used to identify the work and opinions of the civilian (Io., Iob., Io. Ba.) are not the same as those used to identify the canonist (b., Baz., bas., baç., bar., etc.),⁸ but this could be the product of different scribal traditions in the two disciplines.⁹ This differentiation could even have been conscious, as authors and scribes sought to separate the work of a man who may have been the first to operate in the two disciplines. Indeed, Bazianus is one of the few, perhaps the only, twelfth-century canonist, who is known only by what seems to be a family name or toponym.¹⁰ This is just what we would expect if the scribes were trying to distinguish the canonistic work of a man whose civilian work was already firmly associated with his Christian name.

Second, the civilian probably came from Cremona, whereas the tomb inscription seems to give the canonist Bolognese origins. The tomb inscription, however, is sufficiently vague (flos roseus patrie) that it could have been applied to one who, though born in Cremona, had spent many years teaching in Bologna.

Third, in the Latin and Italian of the twelfth century (as in modern Italian) Bassianus and Bazianus or Basianus are not homonyms, the intermediate consonantal sound being quite different. Unfortunately, the wide variations in the spellings of the two names (Bassianus, Bossianus, Boxianus vs. Basinus, Bassianus, Baxianus, Bazanus, Bazianus, Bosianus) suggest that there was no consistent tradition of how the names were pronounced.

Fourth—and perhaps most telling—is the fact that there is evidence that the civilian died in England, whereas the tomb inscription suggests that the canonist died in Bologna (and states that his mortal remains are within).11 It may be, however, that the inscription is of a later date (or even that his remains within were shipped from England to Bologna).¹²

Finally—and this argument does not seem to have been made before—the known product of Bassianus is quite large. One really has to wonder whether a man who produced as much as Bassianus did on the basic corpus of Roman law, Romano-canonical procedure, and the Libri feudorum would also have had the time to lecture on the Decreta and produce the not inconsiderable number of glosses that are attributed to Bazianus.

In the absence of further discoveries in documents or manuscripts, it seems unlikely that progress on the issue is going to be made by pursuing the admittedly scanty evidence of the lives of the two men. There is now, however, a rather large body of work that has been quite firmly identified as that of the civilian and the canonist, respectively. More careful examination of that work may cast light both on the question why the civilian’s work continued to be respected and that of the canonist did not, and on the question whether the style and opinions of the two are sufficiently consistent that they could have been the same man. This is a large undertaking. Particularly in the case of the civilian, the known corpus of work is large, and quite a bit of it is unpublished.¹³ It is also a delicate undertaking, because both style and opinions can change over a long career. Nonetheless, I would like to make a start here, first by examining what is known of the canonist’s views on the topic of marriage, and then, very briefly, those of the civilian. This examination will not prove that the two are not the same man, but it will suggest that they probably are not.

We begin with two opinions of Bazianus that are cited in the Summa of Robert of Corson (1208 × 1212), a work which, so far as I am aware, has not previously been used as a source for the work of Bazianus.14 Robert was a student of Peter the Chanter, the Paris moralist of the late twelfth century.¹⁵ How he acquired his knowledge of Bazianus’s opinions we cannot say.¹⁶ Neither of the opinions is recorded as such in the known glosses of Bazianus, but as we have noted, these glosses tended to be ignored by the subsequent canonists.¹⁷ What follows may give us some indications of why that is the case, because both times that Robert cites Bazianus it is to disagree with him.

The first disagreement is relatively minor: in expounding on the three Augustinian “goods” of marriage, Robert tells us:

Bazianus and his followers expound these [goods] negatively, saying that in marriage there ought to be offspring, that is a spirit not opposed to offspring, and faith, that neither will go to another’s bed, and sacrament, that there will never be a divorce. But this does not explain what each of these things is, and therefore it seems to us that [the problem] is to be solved in another way, so that we say that “offspring” is the hope of procreating offspring for the service of God, “faith” is the observance of mutual servitude and conjugal chastity, and “sacrament” is the holiness or firmness of matrimony, or, if you prefer, inseparability.¹⁸

What is interesting about this is not so much that Robert disagreed with Bazianus, but that Bazianus dealt with the issue at all. Most of the canonists say little or nothing about the goods of marriage, leaving that topic to the writers of sentences. Huguccio does not deal expressly with the topic, nor do the summae of Bernard of Pavia or Tancred.19 When Raymond of Peñafort returns to the topic, he derives his material from Peter Lombard.²⁰ It is only with Hostiensis that we find a canonist expounding once more on the goods of marriage, and Hostiensis’s treatment may well come from his pastoral experience not from his canonic learning.²¹

Robert’s disagreement with Bazianus on this issue tells us something about the emerging divide between theologians and lawyers. Bazianus’s negative definitions of the goods of marriage are more legal in two senses. First, they are closer to the text of Augustine’s that is being expounded.²² Two of the three goods are there stated negatively.²³ It is also more legal in that Bazianus was probably concerned about the minimum requirements for validity in marital consent. One cannot validly marry and exclude the possibility of offspring; one cannot marry on the understanding that one will be free to commit adultery; one cannot marry with the understanding that if it does not work out, one will divorce. Bazianus’s statement of the “good” of offspring also neatly sidesteps the difficulty of the validity of marriages of those who are beyond normal child-bearing age. Such people do not marry “with a spirit opposed to offspring.” It is just that they know that it is highly unlikely that they will have any.

Robert’s positive conception of the “goods” of marriage fits much better with the sacramental theory that he and the sentence-writers espoused. Marriage involves the hope of procreating offspring for the service of God.24 It is a fulfillment of the command to “increase, multiply, and fill the earth.”²⁵ It involves a commitment to mutual servitude and conjugal chastity, and hence is the sacrament of the promise of redemption given to Abel.²⁶ It is holy and firm, as is the union of Christ and the church or the unity of humanity and divinity in Christ.²⁷ Robert’s theology of marriage is sounder than what we find here reported in the name of Bazianus. Whether his theology is taking him beyond what is legally possible is a question about which we may have more doubt.

But did Bazianus actually hold the opinion that Robert ascribes to him? There is one reported gloss of Bazianus’s on the topic, not where we would expect to find it at C.27 q.2 c.10, but at C.27 q.2 d.p. c.39, where Gratian tells us that Mary and Joseph had a perfectum coniugium, not ex officio, but “from those things that accompany (cominantur) marriage, to wit, from faith, offspring, and sacrament.” This prompts Bazianus to write:²⁸

The three goods of marriage (coniugii) are in matrimony itself sometimes only according to what is required (secundum exigentiam), sometimes according to what is required and what is done (secundum actum). For it is said that offspring belong with marriage (proles matrimonio esse), not because offspring is always there, but because the nature and law of matrimony require that one not have sexual relations with another. The sacrament is of Christ and the church, not that the commingling (commixtio) is the sacrament of Christ and the church, as some say, because sometimes commingling is fornication, but it, that is to say matrimony, is the sacrament of Christ and church by reason of the commingling. Sometimes, however, these three goods are in marriage in deed (actualiter), when one does not have sexual relations with another, and offspring are raised up, and they do not depart from each other. You should say that the three goods of marriage were with Mary and Joseph at least (saltem) according to what is required.

The difficulties that writers on marriage in the twelfth century had with the marriage of Mary and Joseph are well known. Gratian’s theory that marriages became indissoluble only when the couple had sexual intercourse created a considerable tension—as the tortured sentence of the master quoted above suggests that he was aware—with the traditional doctrine that Mary and Joseph were truly married and never had sexual intercourse. Hugh of St. Victor’s theory of the dual sacramentality of marriage allowed the marriage of Mary and Joseph to be regarded as sacramental (by the exchange of consent), but still not doubly sacramental (and perhaps not indissoluble), because the sacrament of the union of Christ and the church was, since its announcement in the letter to the Ephesians (Eph. 5:31–32), firmly associated with Genesis 2:24 (“and the two shall become one flesh”).29 Bazianus’s gloss solves none of these problems. He substitutes a distinction between “requirement (exigentia)” and “deed (actus),” for Gratian’s distinction between “office (officium)” and “accompaniment (cominantur).” That distinction does not work at all well with the good of offspring, because offspring are not required in order for there to be a marriage (as Bazianus recognizes), and the requirement that the couple not have intercourse with others is not the good of offspring, but the good of faith. Bazianus affirms that the sacrament of Christ and the church comes about by reason of a married couple’s having sexual intercourse (and his distinction between the marriage being sacramental and the intercourse being sacramental is well enough taken), but that fails to explain how that sacrament was present in the virginal marriage of Mary and Joseph.

Whether Bazianus expounded the negative version of the goods of marriage that Robert ascribes to him (perhaps in gloss on C.27 q.2 c.10 that has not survived with his siglum or in the proemium that the canonists wrote to Causa 27),30 we cannot say. What we can say is that he did try his hand at a positive version at C.27 q.2 d.p.c.39, and that that version is positively bad.³¹

The other place where Robert disagrees with Bazianus is on the argumentation to be used in a case involving the possible application of error of condition. A man marries a woman believing her to be of servile condition. She is, in fact, free. Is the marriage invalid because of error of condition? There are those who think that it is

… because there is disparity of condition that impedes matrimony; therefore the marriage is null. On the other hand, if I owe you a hundred [sous] and pay you two hundred, I am absolved from the hundred. By similar reasoning, I wish to contract with a woman who is of praiseworthy condition and I contract with her who is of doubly better condition, I am not defrauded in anything that I had proposed. Therefore, if the marriage contracted with the slave woman would stand, much more so ought the marriage contracted with a free woman.³²

According to Robert, both he and Bazianus agree with this second conclusion. They disagree on how it is to be reached.

Bazianus and his followers wish to prove the contrary [that the marriage is not impeded], persuaded by this reason: If I sell to you all my wine except what is sour and musky,³³ and in the meantime it all becomes sour, I have thus sold nothing. If, however, I say: “I sell you all my wine of whatsoever quality it may be,” if it all becomes sour, it is clear that such a sale holds. Similarly, in the marriage contract, if the wife is better than I thought, the marriage holds.34

“Arguments by analogy are never necessary ones,” Robert continues,

and therefore determine that the reason of Bazianus and others like it should be blown away. We say that error of condition impedes matrimony only where someone is deceived: believing that he is contracting with a free woman, he contracts with a slave. But when the converse obtains, he is not deceived. Hence when someone contracts de facto with a free woman, believing that she is a slave, the marriage stands unbroken, because he then does not err, but acts wisely, improving his condition in something.³⁵

Both the argument reported in the name of Bazianus and that of Robert are fundamentally bad arguments. Bazianus’s argument would seem to depend on the basic Roman law of sale about stipulations and errors of quality. If the quality is stipulated in the sale and then the goods delivered do not meet the stipulated quality, then the sale may be voided by the buyer. If, on the other hand, the quality is not stipulated, it is up to the buyer to determine their quality, and he takes the risk that they may go bad between the formation of the contract and the delivery.³⁶ This rule, of course, does not answer the question what is to happen if the quality of the goods is better than that stipulated or if the quality of the goods is better than what the parties thought it was, even though they did not stipulate. Even if we accept the analogy of marriage contracts to sales contracts (something which Robert seems unwilling to do), we need other rules of sales law to complete the analogy and justify the result.37

Once more we must ask whether Robert got Bazianus’s argument right. The Glossa Palatina, reports Bazianus’s opinion on this topic at C.29 q.2 pr:³⁸

And because we deal here with error of condition, note that h. [Huguccio] says that only the worse condition impedes. baç [Bazianus], however, says that both the better and the worse condition impede. For if my slave believes that he is contracting with a slave woman and contracts with a free woman, there is no matrimony.

The opinion reported by Robert in the name of Bazianus fits better with what the Glossa Palatina (not quite correctly)³⁹ reports in the name of Huguccio. The situation, however, described in the Glossa Palatina is different from the one Robert puts (a slave contracts with a free woman thinking she is a slave vs. a free man contracts with a free woman thinking she is a slave). Hence, it is possible that Bazianus held to the opinion later reported in the Glossa Palatina under the name of “b.” (?Bernard of Pavia, ?Bernardus Compostellanus Antiquus), that both errors of “better” and “worse” condition impede, but not in the situation where the parties end up with a person of the same status as theirs.40 If he did so hold, it is difficult to see how he could have used Roman sales law to justify the result.⁴¹

Robert’s argument is even worse. However much Robert would like us to believe that there is no deception in the case where a free man contracts with a free woman whom he thinks is a slave (but there is where he contracts with a slave woman whom he thinks is free), that statement is simply wrong.⁴² In both cases the man is deceived (whether the woman contributed to the deception is an independent variable that is not discussed here), and in both cases he errs.

We can rescue the conclusion, but only if we offer a different argument, one that depends on a previous passage in this section:

We say that servile condition, according to the fiction of the law and the interpretation of it, make the slave to be considered as not a human being, because just as our first parent lost his true essence to servitude to sin, so, he who is made a slave loses his free essence, because he does not have power over his body, but his master does. Whence condition [slave or free] refers more to the what than to the what sort, but those things which pertain to fortune and quality refer to the what sort rather than the what.⁴³

Behind this effort to distinguish error of condition from error of quality, we can see why this impediment is sometimes called, even in Robert’s time, “disparity of condition.” It refers to the fact that in Roman law a slave could not validly marry. Hadrian IV’s decretal Dignum est had emphatically put an end to the church’s acceptance of the Roman law rule,44 but the notion that a slave had no power over his body remained (creating considerable moral difficulties that are explored both by Robert and Peter the Chanter).⁴⁵ In these circumstances it is understandable why the rule developed that one who married a slave must know that he or she was a slave. Such marriages might not be regarded as marriages by the secular law, and entrance into such a marriage was likely to cause considerable difficulty for both partners. No such difficulties would occur if someone thinking that he or she was marrying a slave in fact married a free person. Hence, there was no reason to allow error of condition to void such a marriage. Hints of this argument are found in Robert’s discussion of the problem. It is surprising that he was not able to tie it down.⁴⁶

Most of the known glosses of Bazianus that were not reported in his name in the glossa ordinaria are quite short and technical.47 A couple of them cast some light on his thought about marriage generally.

A passage from Gregory’s Moralia quoted in D.13 c.2 expounds on 1 Cor. 7:6 (“I say this [that “every man should have his own wife and every woman her own husband”] by way of indulgence, not precept.”)⁴⁸ Gregory puzzles over why Paul should have phrased this as a concession. Bazianus puts the problem more starkly:⁴⁹

If matrimony or the good of nuptials is always good, as Augustine says [C.27 q.1 c.41], did the Apostle permit a good “since what is forgiven is not without vice”⁵⁰ (argument [C.22 q.1 c.3])?⁵¹ No way! But it is said that he permitted matrimony on account of the fault inhering in it, because the lawful mingling of the couple cannot be without delight of the flesh, as [C.33 q.4 c.7] and here: “that this that he had conceded [he showed to be] not without fault [(albeit very small)].”⁵² Or he permitted the immoderate exaction of the conjugal debt or the conjugal work that is derived from incontinence, in order to avoid unlawful lyings together, which is also judged venial on account of the nuptial good, as [C.33 q.2 d.p. c.2] and [c.3].

Bazianus here sticks close to Gregory’s text. He emphasizes, perhaps a bit more than does Gregory, the goodness of marriage (his source for this is Augustine). He adds, as Gregory does not, the possibility that the Apostle’s concession rendered venial the “immoderate exaction” of the debt. Although he does not say this, that possibility might make the “moderate” exaction of the debt not even venially sinful. This is not much from which to draw any firm conclusions, particularly when Bazianus does not purport to be giving his own opinion but that of others (dicitur). It is perhaps enough that we can suggest that in the general effort to mollify the ancient rigorism about the sexual act that is characteristic of the twelfth-century canonists, Bazianus is to be found more in the vanguard than in the rearguard (a position that one might assign to Huguccio).53

The passage from Augustine cited in the previous gloss (C.27 q.1 c.41), becomes for Bazianus the occasion for a brief discussion of sins committed by intent alone. Augustine had argued that for those who have vowed chastity not only was contracting marriage sinful but also wishing to do so. Bazianus remarks:⁵⁴

Pay attention. Because the very act of contracting does not seem to be a sin,⁵⁵ as is understood from the preceding words “not in the undertaking [of marriage]” and “not in the marrying,” what sin there is here may be doubted. And it can be said that it is the deliberation that precedes the contract that is rightly called the breach of faith, as is argued above [C.17 q.1 c.4],⁵⁶ just as is also said of the wicked focus of the hireling on money alone, whose preaching is nonetheless good, for the Apostle rejoiced at it to the Philippians: “whether in pretense or in truth Christ is proclaimed I rejoice in it and shall continue to rejoice. [Phil. 1:18]” But this only about those who vow simply; it is otherwise about those who vow solemnly.

This gloss is more peculiar than it looks at first glance. Gratian included Augustine’s text at this point in order to show that Augustine did not invalidate the marriages of those who had taken vows. He did not, and so the passage was on point for his purposes. Augustine, however, clearly thought that getting married after one had taken a vow of chastity was sinful, more sinful, he says, than adultery. The rhetoric of the passages that Bazianus refers to is a bit tortured, but the meaning is clear enough: “undertaking [a marriage] is not condemned by the lesser good but by the ruin that comes out of the higher good;” faith is broken, “even if not by marrying, nonetheless by willing [marriage].”⁵⁷ There is no way that the first passage can be read to hold that the undertaking of the marriage is not sinful, and while the second could be so read, it is probably better read in the context to say that the breach of faith occurs by willing marriage, even if the marriage does not take place (in which case we should translate “even if by not marrying”).

Hence, the question is why does Bazianus, who normally sticks quite close to his texts, twist this one to say something that it almost certainly does not say? It is possible that he does so because he wants to bring to the fore that point that Augustine makes at the beginning of the passage: “The good of nuptials is indeed always a good ….” That must mean that it can never be a sin to marry for one who is free to marry. But to state the principle is not to solve the problem at hand, for the question is whether those who have taken vows of chastity are free to marry. Augustine’s answer seems to be that they are not, but the marriage is not invalid if they do. Bazianus seems reluctant to hold that a valid marriage is ever a sin, and so he turns his attention to the violation of the vow. That is what constitutes the sin, not the marrying. Once more, we may suggest that Bazianus is emphasizing the good of marriage.

A canon of uncertain origins is one, among many, that Gratian includes in C.27 q.2 in order to establish the proposition that a married person cannot take monastic vows without the consent of his or her spouse. This canon, speaking of the husband, warns that if the wife, remaining in the world, marries another, she is “without doubt an adulteress.” Bazianus glosses:58

You should assert⁵⁹ that without doubt the adulteress⁶⁰ can be dismissed by the man in this case, and even if the man gave occasion for the adultery, she will nonetheless be held to keep the faith of the marriage. Find this stated in the decretal of Alexander [X 4.19.4] and above [C.27 q.2 c.21], where an inquiry was ordered concerning the fornication of Agathosa so that she could not recall her husband [from the monastic life], when he was seeking to be converted [to the monastic life] against her will.⁶¹ But when the husband has converted without the permission of his wife, can she without asking him and against his will be converted. Of course! For faith is not to be kept to him, as is argued in [C.28 q.2 c.2], since it is in the discretion of the one dismissed whether he or she wishes to ratify the conversion of the one dismissing, as in [C.33 q.5 c.2]; a good argument in [?X 4.1.6].⁶²

Most of this is derivable from the well-known decretal of Gregory the Great that precedes it (C.27 q.2 c.21). The delegate is to inquire into whether Agathosa consented to her husband’s conversion and agreed at the time to her own conversion or whether she has committed “fornication.”63 In either event she is not to be permitted to recall him from the monastery. Otherwise she may, even if he is tonsured. That the argument that the husband’s conversion gave the wife occasion to commit adultery is not to be countenanced is derived from a decretal of Alexander III, which states, pretty clearly, that this argument is not to prevail, not in the situation where one of the spouses has joined a monastery, but where both of them have committed adultery and neither wants the other back. The application to this situation is not inevitable (in the decretal the couple were being forced to reunite, whereas here the man is being allowed to dismiss his wife and choose the monastic life, even though his initial entry was wrongful, illegal, and arguably occasioned the wife’s adultery), but one can see how the extension was made. More strained is the citation of C.28 q.2 c.2, a text ascribed to Gregory the Great but in fact by Ambrose, on the topic of the “Pauline privilege” (1 Cor. 7:13). That faith is not to be kept to the pagan spouse of a convert to Christianity, which pagan spouse engages in “contumely of the Creator,” is one thing, that it is not to be kept to one who “espouses a higher life” is another. Even more troubling is the fact that it is a pagan marriage that is dissolved in 1 Cor. 7:13, while what we have here is a sacramental Christian marriage. Again, however, one can see how the argument is made. C.33 q.5 c.2 is also far from the point. In that case Alexander II holds that a man who extorted the consent of his wife to enter the monastery must return to her. It is Bazianus who derives from this decretal the proposition that since the consent to enter the monastery must be arrived at mutually between the spouses, if one enters without one’s spouse’s consent, the non-consenting spouse has discretion whether to accept the act or not. The conclusion follows logically from the proposition that the consent must be mutual, so long as we do not require that the consent be mutual and simultaneous. Finally, the citation of the decretal De illis (if that is what it is) is the most strained of all. In that case, Alexander holds that a woman whose fiancé has disappeared may marry another, although she is to do penance if it was her fault that the previous marriage was not consummated. The argument, I take it, is that just as the woman whose fiancé has disappeared may marry another, so too, a woman whose husband has entered a monastery without her permission may enter a monastery herself. The analogy is hardly “on all fours.” The woman in De illis had engaged in what was, at most, a dissoluble initiate marriage, perhaps the obligation was only contractual; in the case at hand, we are dealing with an indissoluble sacramental marriage. De illis does not raise the question of what was to be done if the man was present but simply delaying in going through with the marriage. Presumably in that situation, his consent would have to be sought, although the engagement might be dissolved if he failed to consummate the marriage within a reasonable period of time. In the case at hand, the husband’s consent is deemed irrelevant.

While the argumentation of this gloss is problematical, its basic conclusions seem sound. This is because of a doctrine that is at least implied in a number of texts in the Decreta (and that had been resoundingly confirmed by Alexander III)64 that the only way in which a married person could espouse the monastic life was if his or her spouse not only consented but also took a vow of chastity. Under Alexander’s decretals, in most instances, the spouse also had to embrace the monastic life. Under these circumstances, one can easily see how the conversion of one spouse without the consent of the other would give the non-consenting spouse discretion. He or she could follow the other into the monastic life or call the other back. Those were the only possibilities. Once the first spouse had committed to the monastic life, he or she no longer had a choice. The choice rested with the non-consenting spouse.

Bazianus’s gloss on C.27 q.2 c.24—a text of Augustine’s that says that a man who abstained from sexual relations with his wife without her consent gave her occasion to commit “fornication” and that her sin will be attributed to his abstinence—continues the previous discussion:⁶⁵

Above [D.50 c.50]. There is an argument here that one who gives occasion for harm is deemed to have given the harm. This raises the question whether an adulteress separated from her husband or vice versa can be converted [to the monastic life] the other willing.⁶⁶ A distinction should be drawn: Are they separated for a period of time, for example, for doing penance, or are they separated permanently? If the former, s/he cannot [be converted without the consent of the other], because they are to be reconciled when the penance is satisfied. [C.32 q. 1 cc.4, 6]. It is otherwise if it is permanent. This does not happen because of adultery, but because in the separation the husband renounced his right, because he cannot take back what he once granted, as [C.7 q.1 c.8].

The basic text could have been used to cast doubt on the proposition announced in the previous one that it makes no difference whether the husband gave his wife occasion to commit adultery. It is not. Rather, after a brief reference to a complicated and growing body of doctrine about the imputation of responsibility,67 the text is used as a springboard for an issue that had not been previously discussed, whether the innocent party of a couple who are already separated because of the adultery of one them has to consent to the monastic profession of the guilty party. The answer seems straightforward enough: yes, if the separation is temporary; no, if it is permanent. When we look to the texts, the conclusion becomes less straightforward. C.32 q. 1 cc.4, 6, are both texts from the early Middle Ages that say that a husband who has sexual relations with his wife after she has committed adultery and before she has completed her penance is himself to do penance (of two or three years). After this, they are to return to normal marital relations. While the text do not say so, one could easily derive from this that the party doing penance could not unilaterally choose the monastic life. The citation of C.7 q.1 c.8 can only be regarded as bizarre. In it St. Cyprian warns that it is dangerous to cede one’s rights in divine matters. He cites the example of Esau, whom he says “could not afterwards get back what he once granted.” It is quite a step to go from that to the proposition that a husband who has separated from his wife on the ground of her adultery cannot revoke that separation, and, so far as I am aware, none of the other canonists said so. The couple are still married, and to deny the possibility of reconciliation would seem to violate not only the spirit but also the letter of 1 Cor. 7:11 (“if she does separate, let her remain unmarried or be reconciled with her husband”).⁶⁸

There are three opinions of Bazianus’s on the topic of marriage reported in the glossa ordinaria to the Decreta. Two of the three opinions that they report are both troubling and peculiar.69

A canon from the Penitentials of Theodore, reported by Gratian under the name of a Pope Eusebius, is the principal authority, prior to the decretals of Alexander III, that an “espousal” (interpreted by Alexander as an espousal of the present tense) may not be dissolved in preference to another espousal but may be dissolved by entry of one of the parties into the religious life: “Parents may not hand over an espoused girl to another man, but she may choose a monastery.”⁷⁰ The ordinary gloss reports the opinion of Huguccio that if the man permits this, he too must enter the monastery, and the marriage is not dissolved.⁷¹ Bazianus apparently also held that the marriage was not dissolved, but that the man was not to be compelled to enter a monastery, but could remarry, in which case he would have two wives.⁷² The opinion of Johannes Teutonicus, which became the communis opinio, was that the marriage was dissolved, and hence the party remaining in the world could remarry.73

The problem is a difficult one. If the exchange of present consent creates a marriage, why is one of the couple allowed to enter religion without the permission of the other? If it does not create a marriage, then why is it indissoluble in all but a few circumstances? The opinion of Huguccio seems to be that the present-consent marriage is, at least under most circumstances, indissoluble. If one of the couple gives permission, then he or she must also enter religion, just as would be the case if the marriage had been consummated.⁷⁴ Johannes Teutonicus, in what is certainly a better reading of Alexander, holds that an unconsummated marriage can be dissolved, even if the party remaining in the world gives permission.

Both opinions are possible. Johannes’s certainly seems to fit better with the authorities. What are we to say of Bazianus’s position? Surely, his suggestion, though a logically possible resolution of the problem at hand, must be regarded as bizarre. If there was any principle that was firmly established about marriage in the late twelfth century it was that one could not have two living wives (or husbands). To hold as Bazianus holds is to violate the principle of monogamy in order to solve a relatively minor problem in reconciling conflicting decretals.

The other opinion also concerns entry into religion, but this time after the consummation of the marriage. A canon of the council of Compiège (757) provided: “If a woman puts the veil on her head without the license of her husband, if the man wishes, he may take her back as wife.”⁷⁵ The proposition was clear enough and had been established from at least the time of Gregory the Great: a spouse who had professed religion without the consent of the other could be called back from religion by the non-consenting spouse. But that raised the question how long did the non-consenting spouse have to exercise his or her option?⁷⁶ Some said a year and a day, citing a canon Tribur that held that if a girl under the age of 12 took the veil, her parents or guardians had a year and a day to nullify the act.77 Some said that he could call her back when he first had the power to do so, citing a decretal of Innocent I (404) that held that where someone who had been ordained unwillingly by heretics was to be received in his orders if he escaped as soon as he could.⁷⁸ The glossator (probably Johannes Teutonicus) thinks that he could do it whenever he could, citing the succeeding canon in which Augustine, writing about the same situation, says to a woman: “For if you never obtained his assent, no number of years will defend you.”⁷⁹ Bazianus, again, attempts a middle ground, saying that the husband may seek her back so long as he does it within three years, citing a canon attributed to a council of Toledo (but in fact a slight reworking of the Epitome of Nov. 123.35).⁸⁰ This text is, in fact, quite analogous. It says that monasteries are not to give the habit to strangers for three years. During that period any can claim the erstwhile monk as (in the original) a servus, a colonus, or an adscriptus.

Before we consider what these examples tell us about Bazianus generally, we may ask what they tell us about his views on marriage. In the great debate of the day between Gratian’s view of marriage formation and that of Parisian sentence-writers (ultimately, with some qualifications, accepted by Alexander III), Bazianus seems to have taken the latter view. He did not make much of a contribution to the debate, but that he adopted the latter view seems reasonably clear from his position on the topic of dissolution of an unconsummated present-consent marriage by entry into religion.⁸¹ The unconsummated present-consent marriage is a marriage, which, as he says at one point, can only be dissolved by the death of one of the parties. He also, as we have already noted, seems to have emphasized quite firmly the goodness of marriage and may have taken a somewhat laxist view of the sinfulness of marital intercourse.⁸²

For the rest, it is difficult to characterize his thought. Five of the eight opinions reported deal with vows or entry into the religious life, a fact that may indicate a personal interest in the problem.⁸³ The overall direction of his thought on this issue, however, is by no means clear. In two instances he arrives at a compromise, compromises that ultimately proved to be untenable.84 In two others he seems at pains to allow a married person to make a unilateral choice of the religious life, admittedly in somewhat narrow circumstances.⁸⁵ And in one he simply follows the view that had prevailed since Gratian, that solemn vows impede a marriage but simple ones do not.⁸⁶

One more example, not about marriage, and we will be in a position to essay some more general conclusions: the gloss on the rubric of De penitentia, distinctio 1, has close to the beginning:

[I]n the first distinction he treats of whether contrition of heart alone wipes away sin or confession after contrition. Baz. says that contrition alone does not wipe away sin when there is a supply of priests … And Gratian seems to incline to this opinion …, although [previously] … he says that this is to be left to the judgment of the reader. But whatever Bar. says, say that sins are remitted neither by contrition of the heart nor by confession of the mouth but solely by the grace of God ….⁸⁷

The picture that emerges here is of a lawyer who sticks close to expounding his texts.⁸⁸ His negative statement of the goods of marriage is closer to Augustine’s text than Robert’s positive ones.⁸⁹ His statement about the necessity for auricular confession is, as Johannes Teutonicus admits, probably a faithful reflection of what Gratian meant.⁹⁰ His ruling on the three-year period has a solid base in one of Gratian’s authorities.⁹¹ In two instances Bazianus seems to have Roman law more in mind than do his contemporaries dealing with the same problem. Although the doctrine of error had a Roman-law base from the time of its appearance in Gratian,⁹² Bazianus has what seems to be specific reference to Roman sales law in his attempt to solve the problem of an error of condition that does not harm. We cannot be sure that he knew that the text that Gratian ascribes to a council of Toledo was, in fact, a well-known text in Justinian’s novels,93 but the fact that it is may account for the fact that he prefers this authority to the ones on which others were relying to set the limit on calling a spouse back from the religious life.

Bazianus’s mastery of theology seems to have been, to put it charitably, imperfect. Robert Corson has a much more fruitful exposition of the goods of marriage. Johannes Teutonicus’s rebuke of him on the question of penance is well taken. The distinction that Bazianus draws between exigentia and actus in the case of the goods of marriage just does not work. The proposition that someone whose spouse living might take a second spouse is both theologically and canonically startling.⁹⁴ Bazianus’s analogy to the Pauline privilege in the case of entry into the monastic life suggests an insensitivity to the fundamental distinction between sacramental and non-sacramental marriages, and his analogy (if that is what it is) in the same situation to Alexander’s decretal De illis suggests an insensitivity to the distinction between sacramental marriages and mere promises to marry.⁹⁵

Nor, in some instances, does Bazianus seem to have been a very good lawyer. Admittedly, in the case of Robert’s report of his argument about error of condition, the argument might have been more sophisticated than Robert’s report of it. What we have of it, however, does not give us much confidence in Bazianus’s lawyerly skills. The same might be said of Bazianus’s espousal of the notion that an unwilling spouse has three years to call his errant spouse back from a religious house. If their marriage is indissoluble (as Bazianus clearly held it was), then we can certainly see the force in Johannes’s argument that there is no limit of time on the unwilling spouse’s power to recall.⁹⁶ In a strikingly large number of instances, Bazianus makes analogies that are quite strained. All the glossators do this, but normally it is to service some overall goal that makes sense. Most of Bazianus’s goals seem reasonably sensible, but his torturing of his texts sometimes leads him to create larger problems than the ones he set out to resolve. This is particularly noticeable in the case of the adulteress choosing the monastic life, where, in his effort to allow her to do so unilaterally, he argues that a separation once ordered cannot be revoked.97

All of these characteristics of Bazianus’s thought may go some way toward explaining why he was so quickly forgotten. They are also consistent with, though they do not prove, the hypothesis that Bazianus was a civilian who dabbled in teaching the canons and incurred the wrath of the canonists (and of the Paris moralists) because he had not totally mastered their discipline as they saw it. This, in turn, is consistent with his being the same person as Bassianus, but they do not show that he was. The hypothetical career outline for the canonist could have been that of a civilian other than Bassianus, who “converted” to being a canonist.

Bazianus does, however, have his moments. If he made the negative argument about the goods of marriage that Robert ascribes to him, it was a good legal argument, both because it allows one to focus on the essential conditions for a marriage to be a marriage, and also because it solves the difficult problem of the marriage of the elderly. His emphasis on the good of marriage resonates with modern thought on the topic and with some twelfth-century thought (such as Hugh of St. Victor). It is possible that that emphasis is also a reason why he was forgotten. The dominant figure in his period was his contemporary Huguccio, who had a decidedly darker view of marriage.

Now let us look briefly at the opinions of the civilian Bassianus on the topic of marriage.⁹⁸ We begin with his commentary on the regula “marriages are not made by bedding together but by consent.”⁹⁹

Immediately when the espoused woman is led (ducta) the nuptials are perfected and remain perfected although no bedding together (concubitus) intervenes, but despite the fact that nuptials are perfected by the leading, nonetheless they are said to be made by consent, because it is from consent alone that the leading makes a marriage.

The commentary shows obvious evidence of Gratian’s influence and none at all of Alexander’s. Suppose we look at the Roman law texts in the light of Gratian’s distinction between matrimonium initiatum and matrimonium ratum or perfectum, Johannes seems to say. We find support for Gratian’s view that marriage is initiated by consent, but we find nothing to support Gratian’s view that it is perfected by intercourse. Rather, in the Roman texts marriage is perfected by the ductio. This, of course, is not to say that a ductio without marital consent makes a marriage, any more than intercourse without marital consent makes a marriage in Gratian’s scheme.100

Once it became apparent that the canon law was not going to follow what the glossators thought was the Roman law in the matter of the formation of marriage, they had three alternatives open to them: they could continue to state the Roman law as they perceived it, with or without recognition that the canon law differed; they could attempt to argue that the canon law was wrong, as they had to some extent in the case of Gratian; or they could try to reconcile their texts with the canon law. They chose the last course.¹⁰¹ We may see the beginnings of this process already in a Summa Codicis, that has been variously ascribed to Johannes Bassianus, Hugolinus, and the youthful Azo, and probably written between 1185 and 1190.¹⁰² All three may have had a hand in it, and we certainly cannot be sure that the following passage is by Bassianus, but it certainly could have been, or have been reflecting his thought, since he was Azo’s teacher:¹⁰³

Item, when is marriage perfected?: if words of the present tense come between them, such as “I [the man] take thee as mine” and “as mine” on the part of the wife;¹⁰⁴ (And this is what the law says, marriage is contracted by consent alone [D.50.17.30].) or if espousals of future nuptials are made, there is no marriage unless there is a ductio into the house of the husband present or absent. A man, however, does not become a husband, even though he is led into the house of an absent woman. And this is what is said about the ductio: “not [in the house of the wife as if into the marital domicile]” [D.23.2.5].

The suggestion, then, is that the civilians will accept the canon law scheme, save that the ductio rather than intercourse will perfect a marriage begun by future consent.

Johannes Bassianus’s commentary on D.50.17.30 shows, I would suggest fairly clearly, that he knew of Gratian’s work, and that he sought to reconcile it with the Roman law to the extent that he could. The uncertainty of his authorship of the relevant passage in the anonymous Brussels Summa makes it uncertain, though possible, however, that he later attempted to reconcile the Roman law with the emerging consensus among the canonists who followed Alexander III. The summa on the Authentic, frequently attributed to Bassianus, leaves little doubt that that is what happened, though perhaps not in Bassianus’s time..105

In commenting on the Novel “Concerning nuptials,” the summist says:¹⁰⁶ “Consent alone, by words of the present tense, makes nuptials, whether dowry is there or not, as [Nov. 22.3; C.29 q.2 c.3; C.27 q.2 c.2; D.50.17.30.]” The citations are telling. D.50.17.30 has been dealt with above. C.27 q.2 c.2 is from the famous letter of Nicholas I to the Bulgarians (“According to the laws, there suffices consent alone of those whose joining is at stake”). C.29 q.2 c.2 is reported by Gratian as being a decretal of Pope Julius, but is, in fact, as the summist almost certainly knew, a quotation from a law of Justinian’s (C.5.4.26). It says, among other things, that “all nuptials come about by affect.” Nov. 22.3, in addition to suggesting that marriages are made by affect, orders that the same dissolution procedures be followed whether the marriage is accompanied by dowry or not.¹⁰⁷ The only thing in the summary that is not supported by the citations is the reference to “words of the present tense,” and that, of course, is pure Alexander III.

So far as I am aware there is only one gloss attributed to Bassianus in the printed edition of the glossa ordinaria on titles 1–2 of book 23 of the Digest (On espousals, and On the right of nuptials), but it is an important one. Digest 23.1.11–12 is a catena of texts on the topic of parental consent. Digest 23.1.11 reports the opinion of Julian on the basic principle: “Espousals like nuptials are made by the consent of the contracting parties, and therefore in espousals as in nuptials it is necessary that a daughter in power consent.” Ulpian, however, in his monograph on espousals qualifies this: “But she who does not oppose the will of her father is understood to consent. Then, however, permission is granted to the daughter to dissent only if the father chooses for her a fiancé who has an unworthy or disgraceful style of life (indignum moribus vel turpem).” The contrast between the two passages is quite stark, and the fact that they are in a catena shows that the contrast was perceived by the compilers of the Digest, if not before.

The gloss begins by stating the obvious inference: “Therefore if the father chooses someone worthy, espousals are contracted without the will of the daughter; the opposite, however, is asserted in the case of a son [D.23.1.13 (“If a son in power dissents, espousals cannot be contracted in his name.”]108 Bassianus rejected this conclusion:

Jo[hannes Bassianus], however, says that the same applies to the daughter as it does to the son, that espousals cannot exist without the will of sons and daughters, but nonetheless where the father chooses someone worthy she incurs a case of ingratitude if she does not consent, as is the case in other situations as in [Nov.115.3.11 (listing the “cases of ingratitude,” i.e., situations in which a parent may deny his or her child a “lawful portion” of the inheritance)].¹⁰⁹

It should not surprise us that a man who wrote a summa on the Novels should come up with a citation to them that resolved a difficult problem.110

As I have argued previously, the issue being considered here is an important one in the relationship of Roman and canon law with regard to marriage.¹¹¹ The Roman law texts are quite clear that the consent of the father must be obtained for the marriage of children in power, and some texts, of which D.23.1.12 is one of the most important, suggest that a daughter in power had little to say about it. The emerging canon law in the late twelfth century gave no legal role to the consent of the father and emphasized the equal choice of the bride and groom. The civilian glossators never abandoned their requirement of parental consent, but they did yield to the canon law in that they interpreted the Roman law texts as requiring that both the bride and groom consent. Johannes Bassianus’s gloss was an important step in this latter process.

Johannes Bassianus thus emerges as a quite important figure in the overall effort that the Roman law glossators made to come to grips with the emerging canon law of marriage. That a man who did this should also have turned his attention to the canons more generally toward the end of his life is certainly possible.

Nonetheless, on the basis of what is admittedly a limited body of evidence, I am inclined to think that the Bassianus and the man who wrote the Bazianus glosses are not the same man. Bassianus’s mastery of Roman law was comprehensive. He had the entire corpus at his fingertips. The glossator Bazianus did know some Roman law. There was a tradition that he had a doctorate in it, and what we have seen shows evidence of knowledge of Roman law, though what we have seen does not suggest that it was particularly profound. If Bassianus and Bazianus were the same man, we would expect to find more references to Roman law than we do. Citations to Roman law in the canonic glossatorial tradition were just beginning in this period, but they were beginning. Weigand’s collection of glosses has a number of direct citations of Roman law, but none are found in the known glosses of Bazianus. If, as Weigand suggests, there were Romanizierungstendenzen in the canonic glossators of this period, we would expect that Bassianus/Bazianus would have been leading the way.¹¹² That is not our Bazianus.

Indeed, what characterizes the glosses of Bazianus is not a large number of citations of Roman law but a fairly large number of citations of the Bible.113 Bazianus is, of course, not alone in this regard in this period, and there is no reason to believe that some civilians did not have a quite profound knowledge of the Bible, but citations of, and quotations from, the Bible are not common in civilian literature. Nor are they common in all the canonists, but they are in some. If Bassianus is Bazianus, he not only changed his focus when he moved from one discipline to another, he also changed his method. That is possible, but it does not seem likely.

Not only is the method of Bassianus’s glosses different from those of Bazianus, but the style is also quite different.¹¹⁴ Bazianus’s product, at least as we have it now, is a written product. That of Bazianus shows obvious evidence of the class room. Exhortations to the reader and interjections abound.¹¹⁵ This may be the result of the fact that in the case of the canonist we are looking at reports of what he said in the classroom whereas in the case of the civilian we are looking at written compositions, but the differences in style are there.

Turning from style to substance, it seems unlikely, though not impossible, that the Bassianus that wrote about the Roman law of marriage in the way that he did is also the Bazianus who wrote about the canon law texts on the same topic. There are no striking inconsistencies, situations in which Bassianus espoused one view and Bazianus the opposite. One would expect, however, that the Bassianus who had made contributions to the topics of the moment of the formation of marriage and to the question of parental consent would, as Bazianus, have talked about the same issues. There is nothing in the known glosses of Bazianus on the topic of parental consent. There is one gloss that is relevant to the question of the moment of marriage formation reported under the name of Bazianus, and it is an important one, but it seems most likely that this is, in fact, a gloss of Cardinals, which, if the attribution is correct, Bazianus shortened (and somewhat garbled).¹¹⁶

Finally—and this point must obviously be the most subjective but to me it is the most telling—Bassianus had a first-rate legal mind. He is not the easiest writer to read. His distinctions are multiple and subtle and what he is saying is not always completely clear, but if one spends time with him one comes away with the impression that a powerful intellect was at work there.117 Bazianus, by comparison, is second-rate. It is hard to believe that the man who wrote the apparatus on D.50.17, the materia ad Pandectas, and the ordines Quicumque vult and Quoniam omnium legumlatorum¹¹⁸ is also the author of what goes under the name of Bazianus.

¹ Copyright © 2003 Charles Donahue, Jr. After I submitted this to the editors of this volume, an expanded version appeared in Rivista internazionale di diritto comune: “Bassianus, that is to say, Bazianus? Bazianus and Johannes Bassianus on Marriage,” 14 (2003): pp. 41–82.

² Thomas Diplovatatius, De claris iuris consultibus, eds F. Schulz, H. Kantorowicz and G. Rabotti, Studia Gratiana, 10 (1968): p. 56, pp. 59–62.

³ Ugo Gualazzini, in Dizionario biografico degli italiani, s.v. Bassiano, Giovanni.

⁴ F. Liotta, in Dizionario biografico degli italiani, s.v. Baziano.

⁵ Friedrich Carl von Savigny, Geschichte des römischen Rechts im Mittelalter (8 vols, Heidelberg, 1850), vol. 4, pp. 292–293. V. Piano Mortari in Enciclopedia del Diritto, 19 (Milan, 1970), p. 629, reports, without citation, that he is not definitely referred to as alive after 1187.

⁶ Annalisa Belloni, “Baziano, cioé Giovanni Bassiano, legista e canonista del secolo XII,” Tijdschrift voor Rechtsgeschiedenis, 57 (1989): pp. 69–70, pp. 83–85.

⁷ Belloni, “Baziano, cioé Giovanni Bassiano”; cf. Domenico Maffei, “Fra Bologna, Montpellier et Palencia: Studi su Ugolino de Sesso,” Revista internazionale di diritto commune, 1 (1990): p. 13, n. 16, who offers further evidence. Contra, Rudolf Weigand, “Frühe Kanonisten und ihre Karriere in der Kirche,” ZRG KA, 107(76) (1990): p. 155, n. 97.

⁸ Compare Belloni, “Baziano, cioé Giovanni Bassiano,” p. 72, n. 16, with Liotta, in Dizionario biografico degli italiani, p. 314. In his essay “Frühe Kanonisten,” Weigand in a note appended to an article that he had obviously prepared before he saw Belloni’s contribution, seems to have regarded this argument as decisive. He repeated it in Die Glossen zum Dekret Gratians, Studia Gratiana, 26 (Rome, 1991), p. 618, n. 75, once again, a work that was substantially complete before he saw Belloni. Unfortunately, he did not live to return to the issue.

⁹ References to the civilian do appear in canonistic glosses, but they are rare: e.g., Weigand, Die Glossen zum Dekret, p. 487, no. 70 (C.2 q.6 d.p.c.41 “io.b.”); p. 496, no. 93 (C.4 q.2 et 3 d.p.c.23, “Jo. b.”); p. 510, no. 122 (C.10 q.2 c.2 § 10 “Io. B.”); p. 529, no. 161 (C.16 q.3 d.p.c.15 § 1 “ut dicit bul. pla. Io.b.”) (all in the apparatus Ordinaturus magister); p. 894 (Paris MS. lat. 3905 B “Jo. bo.”) (probably the same as the first cited). The first two are procedural, as is the fourth. The third deals with an addition that Irnerius made to the text of November 7. The Paris manuscript does not seem to contain any glosses of Bazianus; hence, the apparatus Ordinaturus magister is the only work in which we have to posit that scribes were consciously distinguishing different types of work of the same man.

¹⁰ This is not to say that all the others are known by their Christian names. “Paucapalea” is probably a nick-name, and “Benencasa” may be.

¹¹ See Laurent Mayali, “Johannes Bassianus-Nachfolger des Vacarius in England?,” ZRG RA, 99 (1982): pp. 317–325.

¹² Belloni, “Baziano, cioé Giovanni Bassiano,” p. 81.

¹³ Gero Dolezalek, Verzeichnis der Handschriften zum römischen Recht bis 1600 (4 vols, Frankfurt, 1972), vol. 3; Auctores, sub Iohannes Bassianus, gives six pages of citations to manuscripts of his work, to which should be added those of his student, Nicolaus Furiosus, which are said to report Bassianus’s lecturae.

¹⁴ My knowledge of Corson’s Summa is derived from the edition by Louis Malherbe in Le mariage au début du xiiie siècle d’après la Summa du Cardinal Robert de Courson (1924), an unpublished thesis found in the library of the Institut Catholique in Paris (côte 9099DC.25). I am grateful to John Baldwin for having called my attention to this work and to Sarah Donahue for photocopying it. Because Malherbe is so difficult to obtain, I have treated it like a manuscript and have given the Latin in the footnotes.

¹⁵ See John Baldwin, Masters, Princes and Merchants: The Social Views of Peter the Chanter and His Circle (2 vols, Princeton, NJ, 1970). For Corson, see, most recently, Werner Maleczek, Papst und Kardinalskolleg von 1191 bis 1216 (Wien, 1984), pp. 175–179, with ample references to previous literature.

¹⁶ It is particularly unfortunate that the Summa Casinensis, which appears to be by a student of Bazianus, is incomplete in the versions yet discovered and does not contain the causae on marriage. See Stephan Kuttner, Repertorium der Kanonistik, Studi e Testi, 71 (Città del Vaticano, 1937), p. 158, p. 166. That Robert is deriving his material from the Summa, or something like it, is made more likely by the fact that both times when he cites Bazianus, he says “Bazianus and his followers” (Bazianus et sui sequaces [var. filii]). Corson, Summa, tit. De bonis matrimonii, tit. De secundo impedimento, scilicet de errore, in Malherbe (ed.), Le mariage au début, p. 19, p. 49.

¹⁷ For known glosses on these issues, see below text and notes 24–27, 34–36.

¹⁸ “Bazianus et sui sequaces exponebant hec negative, dicentes quod in matrimonio debet esse proles, id est animus non contrarius proli, et fides, ut neuter ad alienum thorum transeat, et sacramentum, ut nunquam divortium fiat. Sed sic non exponitur quid unumquodque istorum sit, et ideo nobis videtur aliter solvendum, ut dicamus quod proles hic dicitur spes prolis procreande ad cultum Dei, et fides observantia mutue servitutis et coniugalis castitatis, et sacramentum matrimonii sanctitas sive firmitas, vel si mavis dicere inseparabilitas.” Corson, Summa, tit. De bonis matrimonii, in Malherbe (ed.), Le mariage au début, p. 19.

¹⁹ See J. Roman, “Summa d’Huguccio sur le Décret de Gratien d’après le Manuscrit 3891 de la Bibliothèque Nationale, Causa XXVII, Quaestio II,” Revue historique de droit français et étranger, 27 (1903): p. 757; Bernardus Papiensis, Summa de matrimonio, in Ernst A.T. Aspeyres (ed.), Summa decretalium (Ratisbon, 1860), pp. 287–306; Tancredus Bononiensis, Summa de matrimono, ed. Agathon Wunderlich (Göttingen, 1841). The ordinary gloss focuses on indissolubility, C.27 q.2 c.10 v^o omne, sacramentum, and nullum divortium (Venetiis, 1572), p. 989a. It does not comment on the other two, other than to refute the opinion of Gandulphus that the other two are the only ones. The approximately 55 pre-Johanine glosses on C.27 q.2 c.10 reported in Weigand, Die Glossen zum Dekret, pp. 237–247 (nos. 1200–1255), cover a wide range of topics, but the focus is on the marriage of Mary and Joseph, the possible contradiction in C.27 q.2 d.p.c.29, and the possible sinfulness of marital sexual intercourse.

²⁰ Raymundus de Peniafort, Summa de poenitentia et matrimonio 4.2.12 (Roma, 1603), pp. 518–519; cf. Petrus Lombardus, Sententiae 4.31, ed. PP. Collegii S. Bonaventurae Ad Claras Aquas, Spicilegium Bonaventurianum, 5 (Grottaferrata, 1981), tom. 2, pp. 442–451.

²¹ Hostiensis [Henricus de Segusio], Summa aurea, tit. De matrimoniis, § Et quare contrahatur (Venetiis, 1574), cols. 1257–1258, reads more like the outline of a homily of the archbishop of Embrun than it does like either a canonic or theological treatise.

²² C.27 q.2 c.10.

²³ Two of the surviving glosses (each in only one manuscript) carry this further. Weigand, Die Glossen zum Dekret, p. 237, no. 1200.1; p. 241, no. 1222. The former simply glosses the initial word of the text omne as totum legitur per negationem. The latter (apparently on proles) tells us: “Ex nullius rei defectu bone que soleat prouenire de nuptiis possunt parentes Christi notari, quia nec tunc ex defectu prolis nec fidei siue castitatis nec temporis discessions, et sic per negationem exponendum est quod quasi affirmando dictum est.”

²⁴ Corson, Summa, tit. De bonis matrimonii, in Malherbe (ed.), Mariage, p. 18, p. 19.

²⁵ Ibid., p. 10.

²⁶ Ibid., p. 19, 1 (a reference to Gn. 4:3).

²⁷ Ibid., (the first being a reference to Eph. 5:32).

²⁸ Rudolph Weigand, “Bazianus- und B.-Glossen zum Dekret Gratians,” in Stephan Kuttner and Alfons Stickler (eds), Mélanges G. Fransen, Studia Gratiana, 20 (2 vols, Rome, 1976), vol. 2, p. 472, n. 61.

²⁹ Hugh’s views are most fully expounded in his De beatae Mariae virginitate, PL, vol. 176, col. 860, col. 864, cols 874–875; cf. De sacramentis Christianae fidei 2.11.3, trans. Roy J. Deferrari (Cambridge, MA, 1951), pp. 325–327.

³⁰ C.27 q.1 pr. v^o quidam votum (Venetiis, 1573), pp. 970a–971a. The origins of this little introductory lecture have never been fully explored, but it clearly goes back to the early summae (e.g. Rufinus, Summa decretorum C.27 pr, ed. H. Singer [Paderborn, 1902], pp. 430–435), and, ultimately, to the sentence-writers.

³¹ Evaluation of arguments obviously runs the risk of anachronism, but I believe that I am applying standards that would have been recognized as such in the twelfth century. Our evaluation might change somewhat if we assume that a line was left out in our text before “but because.” (Thanks to Philip Reynolds for this suggestion.)

³² “[S]i debeo tibi centum et do tibi ducenta, absolutus sum a centum; pari ratione, si volo contrahere cum aliqua que est laudabilis conditionis et contraho cum illa que est duplo melioris conditionis, non defraudor in aliquo de proposito meo; ergo si staret matrimonium sic contractum cum ancilla, multo fortius debet stare contractum cum libera.” Corson, Summa, tit. De secundo impedimento, scilicet de errore, in Malherbe (ed.), Le mariage au début, p. 49. See the discussion of this problem in Tancred, Summa de matrimonio, tit. 17, ed. Wunderlich, p. 20, where the argumentation is also questionable.

³³ acidum et muscidum. The latter word means “mossy” in classical Latin, but muscus comes to be applied to wine produced of the muscat grape in the thirteenth century. J.F. Niermeyer, Mediae latinitatis lexicon minus (Leiden, 1976), s.v. Here, clearly, we are dealing with an undesirable quality, hence, probably, something smells or tastes musky when it should not.

³⁴ “Bazianus tamen et sequaces eius volebant probare contrarium hac ratione inducti, quod si vendo tibi omne vinum meum preter acidum et muscidum et interim totum fiat acidum, sic nihil vendidi. Si autem dicam econtra ‘Vendo tibi totum vinum meum qualecumque ipsum est,’ si totum acidum efficiatur constat quod talis tenet venditio. A simili, in contractu matrimonii, si melior est uxor quam credidi, tenet matrimonium.” Corson, Summa, tit. De secundo impedimento, scilicet de errore, in Malherbe (ed.), Le mariage au début, p. 49.

³⁵ “Argumenta a simili nunquam habent necessitatem, et ideo predictam rationem Baziani et similes exsuflandae iudicimus, dicentes quod ibi tantum error conditionis impedit matrimonium, ubi quis decipitur, credens se contrahere cum libera, contrahit cum ancilla. Sed cum econtrario sit, non decipitur. Unde cum aliquis contrahat de facto cum libera, credens eam esse ancillam, inconcussum stat matrimonium, quia tunc non errat sed scienter agit, in aliquo meliorans suam conditionem.” Ibid.

³⁶ The text considerably oversimplifies because it combines the Roman rules about error in substantia, those about warranty (dicta promissave) and those about risk (periculum), none of which is as clear as what is stated, and all of which changed over time. See Francis de Zulueta, The Roman Law of Sale (Oxford, 1945), pp. 25–28, pp. 30–35, pp. 46–51. The text does reflect, however, the doctrine that Bazianus seems to have been assuming. The first result that Bazianus states would apply only in the situation where the stipulation expressly referred to the time of delivery, unless the souring of the wine occurred through the fault of the seller. That qualification may have been Bazianus’s original statement of the analogy and ignored in Robert’s restatement of it. It is also possible that Bazianus in the first example was thinking of a somewhat different sales doctrine: that the contact is not perfected until a specific quantity of goods is identified to the contract. Zulueta, The Roman Law of Sale, pp. 14–15.

³⁷ It is not at all clear what such rules might be. If we apply the doctrine of error in substantia, the contract is void from the beginning; there was no “meeting of the minds.” Zulueta, The Roman Law of Sale, p. 26. If we apply the doctrine about stipulations of quality (express or implied), the delivery of goods better than what was stipulated might give rise to a rescission action on the part of the buyer (if he acted quickly), but it is hard to see why he would bring it. Ibid., p. 47.

³⁸ Stephan Kuttner (ed.), “Bernardus Compostellanus Antiquus,” Traditio, 1 (1943): p. 297; reprinted in Gratian and the Schools of Law, 1140–1234 (London, 1983), no. VII (with original pagination).

³⁹ Huguccio, Summa ad C.29 q.2 pr (Admont, 7, fol. 154ra–b): “Notandum quod non cuiuslibet condicionis error impedit matrimonium, sed tantum servilis condicionis error. Nec semper talis error impedit matrimonium sed tantum tunc cum libera persona errat in tali condicione; ergo tantum error condicionis deterioris impedit matrimonium, non paris vel melioris. Qui enim errat in condicione meliori vel pari non intelligitur decipi nec ob hoc impeditur matrimonium; qui vero errat in deteriori intelligitur decipi et non contrahit; ergo secundum hoc libera persona potest dimittere servilem personam sed servilis persona nullam potest dimmitteret scilicet servilem vel liberam. Si enim servilis persona contrahit cum aliqua persona quam putat liberam personam et est servilis, non potest tali errore eam dimittere, quia est ibi matrimonium. Qui vero consentit in hominem alterius condicionis verisimile est quod libentius consentiat in [hominem condicionis] sue. Preterea neuter potest aliquid alteri obiicere sicut dicitur de duobus adulteris, ut [C.32 q.6 c.1], et sic talis error condicionis non impedit matrimmonium cum sit error paris condicionis. Item si servilis persona contrahat cum libera persona quam putat esse servilem non potest eam dimittere pretextu talis erroris, quia meliorem condicionem invenit quam crederet. Et favorabilius est contrahere cum libera persona quam cum ancilla. Pretera verisimile est eum libentius consentire in liberam personam qui consentit in servilem. Et sic talis error non impedit matrimonium cum sit error melioris condicionis.” Hence, Huguccio’s position was that the impediment applied only when a free person made the error and only of “worse condition.” See note 46, below.

⁴⁰ Kuttner (ed.), “Bernardus Compostellanus Antiquus,” p. 297.

⁴¹ See n. 36, above.

⁴² The same argument, among others, is made in Tancred, Summa de matrimonio, tit. 17, in Malherbe (ed.), Le mariage au début, p. 20. The source of both arguments is probably Huguccio, n. 39 above, who, as we have seen, is more qualified (non intelligitur decipi).

⁴³ “Dicimus quod servilis conditio, secundum legis fictionem et interpretationem iuris, ipsum servum facit non hominem reputari, quia sicut primus parens perdidit verum esse per servitutem peccati, ita qui efficitur servus liberum esse perdit, quia non habet potestatem sui corporis, sed dominus suus. Unde conditio refertur pocius ad quid quam ad quale, sed ea que fortune et qualitatis sunt referuntur ad quale non ad quid.” Corson, Summa, tit. De secundo impedimento, scilicet de errore, in Malherbe (ed.), Le mariage au début, p. 45.

⁴⁴ X 4.9.1. See Peter Landau, “Hadrians Dekretale ‘Dignum est’ und die Eheschliessung Unfreier in der Diskussion von Kanonisten und Theologen des 12. und 13. Jahrhunderts,” Studia Gratiana, 12 (1967): pp. 513–553; Antonia Sahaydachny, “De coniugio seruorum: A Study of the Legal Debate about Marriage of Unfree Persons among Decretists and Decretalists from A.D. 1140–1215” (Ph.D. dissertation, Columbia University, 1994).

⁴⁵ Malherbe (ed.), Le mariage au début, p. 44 (just briefly); Petrus Cantor, Summa de sacramentis et animae consiliis §208, §274, ed. Jean-Albert Dugauquier, Analecta mediaevalia namurcensia 4, 7, 11, 16, 21 (Louvain 1954–1967), (much more fully). The latter section also suggests that Peter did not accept the canonical notion of error condicionis.

⁴⁶ Huguccio, as is frequently the case, does not disappoint, if we stick with him. After making the somewhat logic-chopping arguments quoted above, in note 39, he goes on, in a passage too long to quote here, to consider why error of condition is an impediment. After considering a number of unsatisfactory views, he concludes that the impediment is a matter of positive law, introduced by a constitution of the church in favor of free men and women (hoc esse factum in favorem liberorum et liberarum personarum). This is why it only operates for the benefit of free people. Huguccio, Summa ad C.29 q.2 pr (Admont, 7, fol. 154ra–b). As such, the church could change it. It could make it like error of fortune or quality (i.e., not impeding) or it could make error of fortune or quality like it (i.e., impeding). But the church could not make error of person non-impeding, for error of person, and only error of person vitiates consent. We do not have to agree with this argument, but it explains Huguccio’s position, and it makes sense.

⁴⁷ I have gone through all the glosses of Bazianus on the topic of marriage reported in Weigand, “Bazianus- und B-Glossen” and in J. von Schulte, Die Glosse zum Decret Gratians von ihren Anfängen bis auf die jüngsten Ausgaben, Denkschriften der kaiserliche Akademie der Wissenschaften, Wien, Phil.-hist. classe, 21.2 (Wien, 1872), pp. 56–64.

⁴⁸ Whether Gregory was right in reading 1 Cor. 7:6 with 1 Cor. 7:2 (“every man,” etc.) rather than with the preceding verses need not detain us here. He did, and Bazianus assumes that that is the correct reading.

⁴⁹ Weigand, “Bazianus- und B-Glossen,” p. 460, no. 8.

⁵⁰ A direct quotation of Gregory in D.13 c.2.

⁵¹ The citation is odd, because there the argument is reversed. The passage explains the commandment “Do not swear,” on the basis of a desire to avoid perjury.

⁵² Again, a direct quotation of Gregory in D.13 c.2.

⁵³ See James Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, IL, 1987), pp. 278–288, pp. 323–324.

⁵⁴ Weigand, “Bazianus- und B-Glossen,” p. 470, no. 54.

⁵⁵ One adds: In coniugio enim lex est, non culpa.

⁵⁶ The text is on point, though it is ambiguous (arg.) whether Bazianus thinks that the argument is made in the text or can be derived from the text. The latter is clearly the case; the former may be doubted.

⁵⁷ “dampnatur non susceptio a bono inferiore sed ruina ex bono superiore … fidem irritam fecerunt etsi non nubendo tamen uolendo.” C.27 q.1 c.41.

⁵⁸ Weigand, “Bazianus- und B-Glossen,” p. 471, no. 59.

⁵⁹ Reading asseveres for asseveras.

⁶⁰ Reading adulteram for adulterium.

⁶¹ I have little confidence in this reading. Two of the manuscripts have quem for quando and that would make sense (and fit better with the text of the case) if we left out esse: “whom she was seeking when he had been converted against her will.”

⁶² The identification is problematical (Weigand did not make it), and it ignores proposito, of which I can make little sense (perhaps the text should read Argumentum optimum in eo proposito extra De illis, taking the variant eo, and leaving in the extra but moving it). Of a number of decretals De illis, this is the only one out of which I can construct an argumentum that is relevant to the case at hand. See below.

⁶³ “Fornication” almost certainly because that is the word used in Mt 19:9. I am inclined to think that the better reading of Gregory’s decretal is that the wife has to have committed adultery before the man entered the monastery. That is not, however, how Bazianus read it, and his contemporary Huguccio came to the same conclusion. Huguccio, Summa ad C.27 q.2 c.21, v^o crimen fornicationis, ed. Roman, p. 773.

⁶⁴ C. 27 q.2 c.19; X 3.32.1, 4, 5.

⁶⁵ Weigand, “Bazianus- und B-Glossen,” pp. 471–472, no. 60.

⁶⁶ The translation is free and employs a variant reading of the question. The other manuscripts seem fairly clearly to have left something out.

⁶⁷ On the importance of D.50 c.50 in this effort, see Stephan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX, Studi e Testi, 64 (Città del Vaticano, 1935), p. 68, p. 202, p. 203, p. 213.

⁶⁸ I have not found the converse of this proposition until Raymond of Peñafort’s Summa de mattrimonio, tit. 22, § 6 (Roma, 1603), p. 577: If a man dismisses his wife for adultery and then wishes to be reconciled to her, she may not, in Raymond’s view, refuse to be reconciled, citing C.1.14.6 (quod favore meo introductum est, in damnum meum retorqueri non debet).

⁶⁹ The third one, C.27 q.2 c.30 v^o qui dormierit, is in the main stream. Bazianus agrees with Huguccio (and Johannes Teutonicus) that post-marital incest cannot deprive the innocent spouse of the right to require the debt, and hence marriages are not to be separated on that ground.

⁷⁰ C.27 q.2 c.24.

⁷¹ Id., v^o desponsatam (circa finem) (Venetiis, 1572), p. 995a: “Et dicit Hug. quod sponsus cum dat licentiam sponsae uel econverso intrandi monasterium matrimonium non soluitur, sed compellendus est et ipse intrare, et si contraxerit duos habet uiros mulier, uel uir duas uxores. Tu dic, quod siue ea vuolente siue inuita transeat alter non compellitur intrare monasterium. … Ioan.” The opinion of Huguccio as we have it in the Summa is not quite the same as that reported here: “Item (si) sponsa de voluntate sponsi intrat monasterium, frangitur coniugium? Dico quod non. Imo videtur hoc ipso novisse sponsus [?sponsam], unde compellendus est ut, vel intret monasterium si est juvenis, vel saltem promittat perpetuam continentiam si est senex. Si tamen expresse dicat nolo continere, et volo contrahere, credo quod tunc frangitur conjugium, illa intrante, quia non videtur intrare eo volente.” Huguccio, Summa ad C.27 q.2 c.24, ed. Roman, p. 781. That consenting to one’s fiancée’s entry into a monastery should be regarded as the equivalent of having intercourse with her is peculiar, but that seems to be what it says.

⁷² Id., v^o desponsatam (circa finem) (Venetiis, 1572) p. 995a–b: “Baz. dicit quod non soluitur, nec intrare compellitur, et si contraxerit habet duas uxores. Tu dic quod non compellitur intrare, quia cum ei dat licentiam intelligitur dare authoritate et iure illius canonis [X 3.32.7 (Alexander III)] et dissolvitur matrimonium. … Ioan.” That this was what Bazianus held seems reasonably clear, because the opinion is repeated in C.32 q.7 c.2 v^o nunquam (id.), p. 1071b: “[D]icit Baz. quod matrimonium non solvitur ingressu monasterii quia dicitur hic quod sola morte solvitur matrimonii sacramentum.” This latter gloss also suggests that these opinions arose in the context of the quaestio about the raising of Lazarus. (What would have been the law if Lazarus’s wife had remarried between the time that he died and the time that he was raised?)

⁷³ Johannes goes on to deal with the troublesome novel of Justinian on the topic (Nov. 123.35), a novel that still seemed to be causing difficulty later on if the unsigned addition to the gloss (probably by Bartholomew of Brescia, though it is not signed in the printed editions) is any indication.

⁷⁴ Many of those who espoused a consensualist view of marriage sought to restrict the ability of an espoused unilaterally to choose the religious life. Peter the Chanter, for example, took the two-month period that Alexander III set in X 3.32.7 (where the woman had been contumacious) as stating a rule of law (she may not do so after two months). Petrus Cantor, Summa de sacramentis et animae consiliis § 314, p. 366. Huguccio is more nuanced (Summa ad C.27 q.2 c.6, ed. Roman, p. 756), but his technique, like the Chanter’s, may be described as “limiting the case to its facts.”

⁷⁵ C.33 q.5 c.3.

⁷⁶ Id., v^o coniugium (Venetiis, 1572), p. 1202a–b.

⁷⁷ C.20 q.2 c.2.

⁷⁸ C.1 q.1 c.111.

⁷⁹ C.33 q.5 c.4.

⁸⁰ C.33 q.5 c.3, v^o coniugium, above n. 75: “Ba. dicebat quod intra triennim [C.17 q.2 c.3].”

⁸¹ Above, text and n. 71.

⁸² Above, text and nn. 46–54. To this may be added his unwillingness, which he shared with a number of other canonists, to enforce the ancient incest penalty on those who commit incest after marriage. Above, note 67.

⁸³ Having been married, did he become a canon of the cathedral of Bologna? The latter has been suggested on the basis of the tomb inscription.

⁸⁴ Above, n. 70, n. 78.

⁸⁵ Above, following n. 56, n. 63.

⁸⁶ Above, following n. 52.

⁸⁷ De pen. D.1, rubr v^o utrum (Venetiis, 1572), p. 1091a.

⁸⁸ Already noted by Weigand, “Bazianus- und B-Glossen,” p. 475.

⁸⁹ Above, text and nn. 18–27.

⁹⁰ Above, text at n. 85.

⁹¹ Above, text at n. 78.

⁹² See Jean Gaudemet, “Droit canonique et droit romain: à propos de l’erreur sur la personne en matière de mariage (C. XXXIX, qu. 1),” Studia Gratiana, 9 (1966): pp. 47–64; reprinted in Sociétés et mariage (Strasbourg, 1980), pp. 320–337. Interestingly, this passage, with its heavy basis in Roman law, appears in the “first recension” of Gratian’s work. Anders Winroth, The Making of Gratian’s Decretum (Cambridge, 2000), p. 222.

⁹³ Of course, if Bazianus and Bassianus are the same, he would have known this, because Bassianus wrote a summa on the Authentica. But that is petitio principii.

⁹⁴ Above, text and n. 71.

⁹⁵ Above, text following n. 61.

⁹⁶ It is possible, however, that Bazianus was more influenced than most of the canonists were by the need to put some end to rights of this kind, or that he was accepting Justinian’s (decidedly non-canonical by Bazianus’s time) views on the possibility of divorce and remarriage.

⁹⁷ Above, text and n. 66.

⁹⁸ A careful examination of both printed and unprinted material would almost certainly reveal more than what is reported here, but this is enough for our purposes.

⁹⁹ D.35.1.15 = D.50.17.30. Severino Caprioli (ed.), “Quem Cuiacius Iohanni tribuerat,” Annali di Storia di Diritto, 7 (1963): p. 149, separately published: Johannes Bassianus, De regulis iuris, eds Severino Caprioli and Ferdinando Treggiari, Pubblicazioni della Facoltà di giurisprudenza di Perugia, 29 (Rimini, 1983). The attribution to Bassianus is not completely certain, but the arguments for the attribution are convincing.

¹⁰⁰ See Charles Donahue, Jr., “The Case of the Man Who Fell into the Tiber: The Roman Law of Marriage at the Time of the Glossators,” American Journal of Legal History, 22 (1978), p. 15.

¹⁰¹ Ibid., p. 28.

¹⁰² Brussels, Bibliothèque Royale, 131–134, fols 62r–103v. On the attribution and date see Peter Weimar, in Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, 1 Miltelalter (1100–1500) (München, 1973), p. 202; literature cited in Dolezalek, Verzeichnis der Handschriften, vol. 1, sub cit.

¹⁰³ “Item quando perficiatur matrimonium?: si verba de presenti intercedunt, puta ‘accipio te in meam,’ et ‘in meum’ a parte uxoris; (Et hoc est quod dicit lex, solo consensu contrahitur matrimonium, ut [D.50.17.30].) sive sponsalia de futuris nuptiis interceduntur, non sit matrimonium nisi est ductio in domum mariti presentis vel absentis. Maritus vero non est licet in domum absentis mulieris ducatur. Et hoc est quod dicitur de ductione, non, etc. ut [D.23.2.5].” Brussels, Bibliothèque Royale, 131–134, above, note 102, fol. 81rb.

¹⁰⁴ Cf. Alexander III’s decretals, Licet praeter solitum, X 4.4.3, and Significasti, 1 Comp. 4.4.6(8).

¹⁰⁵ The doubt is caused by the fact that all the printed editions of the summa, and the one manuscript that I have been able to check (Cambridge, MA, Harvard Law School, 89) all contain the additions of Accursius. I explore the problem at greater length in “Bassianus, that is to say, Bazianus?” Rivista internazionale di diritto comune, 14 (2003): pp. 68–69, n. 113, and conclude that this passage is probably by Accursius.

¹⁰⁶ Johannes Bassianus, Summa in Authentica, coll. 4, tit. 1 (= Nov. 22), ed. H. Draesius (Venetiis, 1610), col. 1246.

¹⁰⁷ Justinian’s law required dowry in certain situations (marriage of the highest dignitaries). Nov. 74.4.1, 117.4. The summist recognizes this requirement, but he does his best to limit it. Bassianus, Summa in Authentica, coll. 6, tit. 1 (= Nov. 74), ed. cit., col. 1257; coll. 8, tit. 13 (= Nov. 117), ed. cit., col. 1277.

¹⁰⁸ D.23.1.12 v^o eligat (Lugduni, 1604), col. 2105; (Venetiis, 1488), fol. 329vb.

¹⁰⁹ Ibid. The 1488 edition (Baptista de Tortis) has indignum for dignum, but that cannot be right. It is corrected in the 1604 edition (Godefroy). The Novel is squarely on point, though it does add that the daughter must not only refuse to accept an appropriate match, but also choose instead a life of debauchery. My previous account of this gloss is wrong. Donahue, “The Case of the Man Who Fell into the Tiber,” p. 44. The rest of the gloss is also of some interest, but we cannot be sure whether it is by Bassianus. It considers whether C.5.4.18 (viduae intra quintum et vicesimum annum degentes, etiam si in emancipationis libertate gaudent, tamen in secundas nuptias sine patris sententia non conveniant …) is contra in that it implies that the daughter must accept the father’s choice even if he chooses someone unworthy, and concludes (at least in the 1488 ed.) that the two texts may be reconciled either on the ground that C.5.4.18 concerns an emancipated daughter and D.23.1.12 one in power, or on the ground that D.23.1.12 denies the daughter power to choose only where she has chosen someone unworthy (and, presumably, the father someone worthy). The first distinction is specious. The daughter should have more power, not less, if she is emancipated. The second distinction does have some support in the text of C.5.4.18.1 (quod si in condicionis delectum mulieris voluntas repugnat sententiae propinquorum, placet admodum, ut in virginum coniunctionibus sanctum est, habendo examini auctoritatem quoque iudiciariae congnitionis adiungi, ut, si pares sunt genere ac moribus petitores, is potior aestimetur, quem sibi consulens mulier adprobaverit).

¹¹⁰ See above, text at n. 3, and n. 107.

¹¹¹ Donahue, “The Case of the Man Who Fell into the Tiber,” pp. 34–41.

¹¹² Rudolph Weigand, “Romanisierungstendenzen im frühen kanonischen Recht,” ZRG KA, 100(69) (1983): pp. 200–249.

¹¹³ In addition to the citation, above, text at note 52 (which is particularly telling because it involves a combination of a citation to and quotation from Phil. 1:18 and a reminiscence of Jn. 10:12–13 [mercennarii]), we find citations to and quotations from scripture in Weigand, “Bazianus- und B-Glossen,” p. 463, no. 20 (Ps. 98:6); p. 466, no. 40 (Eph. 5:18); pp. 468–469, no. 48 (Mt. 18:15–17); p. 471 no. 57 (2 Tim. 2.24).

¹¹⁴ Obviously, this cannot be based on what is offered above, but space does not permit extensive citations of sources. Further research would be necessary to confirm that these characterizations are correct, but they seem worth putting forward, at least tentatively.

¹¹⁵ E.g., the glosses quoted above following n. 47, n. 52, and n. 56.

¹¹⁶ Compare Weigand, “Bazianus- und B-Glossen,” p. 471, no. 58, with Weigand, Die Glossen zum Dekret, p. 216, no. 1077a.

¹¹⁷ Gualazzini, in Dizionario biografico degli italiani, pp. 140–141, offers a more qualified assessment, but he seems to be reacting to the same characteristics that I have noted. My acquaintance with Bassianus comes principally, though not exclusively, from the procedural works.

¹¹⁸ Above n. 97; L. Wahrmund (ed.), Quellen zur Geschichte des römisch-kanonischen Processes im Mittelalter (5 vols, Innsbruck, 1925), vol. 4.2; Bibliotheca iuridica medii aevi, eds J. Tamassia and J.B. Palmieri (Bologna, 1892), pp. 225b–229a.