LEGAL TREATISES, including the Tiberiadis of Bartolus de Sassoferrata, in Latin, ILLUSTRATED MANUSCRIPT ON PAPER
[Italy, second half 15th century]
308 x 212mm. 331 leaves 1-410, 512, 6-710, 812, 9-2610, 278, 28-3210, 339(of 10, lacking x blank), final double leaf with list of contents preserved separartely, catchwords in centre of lower margins of final versos, between 40-55 lines written in a small cursive script in brown ink between two verticals obtained by folding the sheets in half and then half again, written area approx. 208 x 106mm, rubrics in red, red paraphs, spaces for large initials, 39 DIAGRAMS IN RED, BLUE AND BROWN illustrating the Tiberiadis, two later diagrams of the tables of consanguinity in red and brown (margins worn, water staining to upper margins, on some leaves extending into the text without loss of legibility, upper part of final double leaf missing into text, marginal annotations by various contemporary and later hands, corroded later ink blot in text f.140). Wooden boards on three leather bands, remains of leather to spine and inside covers, title on lower page edges (wormed, upper and lower covers split along wormholes, lacking two clasps). Two parchment bifolia from a twelfth-century Italian antiphonal, with the chants for Easter and part of its octave, used as pastedowns removed and preserved separately: ten lines written in a protogothic bookhand in black ink between two verticals and 20 horizontals and below three-line staves ruled in metalpoint of Beneventan neumes, the ruling above each line of text reinforced in red, large initials in red, one very large red initial with an infill of scrolling red stems on blue (worn and stained, tear through much of text on one folio).
AN EXTENSIVE COMPENDIUM OF LEGAL TEXTS, INCLUDING AN EARLY COPY OF THE FIRST WORK TO APPLY GEOMETRIC PRINCIPLES TO LAND-SURVEYING AND MAP-MAKING
1. This compilation was assembled in Italy as a legal reference work; the inclusion of the treatise on the Guelphs and the Ghibellines perhaps suggests that it was made for an Italian rather than for one of the many foreigners who came to study law at the acknowledged centres of excellence in Italy. The twelfth-century antiphonal leaves used as pastedowns probably originated in central Italy.
2. Library number 171 on detached pastedown.
Albericus de Maletis: Tractatus de testibus (Tractatus Universi Iuris, Venice, 1583-4, 4, 162-179) ff.1-45v; Angelus de Ubaldi, as stated in the text (1328-1423), attributed by an annotator to his more famous brother, Baldus (1327-1400): Ad reprobandum testes ff.46-48v; blanks ff.49-52v; Jacobus Egidii: De reprobatione testium ff.53-64; Jacobus de Arena (d.c.1296): De sequestratione ff.64v-65v; Angelus de Ubaldi: De sequestratione (TUI, 3) ff.66-67v; Jacobus de Arena: De quaestionibus ff.67v-69; Dinus de Mugello (c.1253-c.1303): De praescriptionibus ff.69v-72v; Tractatus protestationum, ff.73-76; Ubertus de Bobbio (d. by June 1245): De positionibus ff.76v-82; Matthaeus Mateselanus: De electione opinionum ff.82-83; Baldus de Ubaldi, the more famous brother of Angelus, (1327-1400): Forma adictionis cum inventario (TUI, 8.2, 323) ff.83v-84v; Bartolus de Sassoferrato (1313-1357): Tractatus de questionibus ff.84v-89v; Baldus de Ubaldi: Tractatus de tabellionibus cum adictione domini Martini de Fano (d. after 1272) (TUI, 3, 364v-366v) ff.89v-94v, and Tractatus de colectis, ff.94v-98; Johannis Andreae (c.1270-1348): Tractatus seu summula super matrimoniis, Book IV of Apparatus glossarum in Decretales, Hain 1068-1077, ff.98-101v, and Lectura super arbore consanguinitatis et affinitatis, ff.101v-105; Guillelmus de Cunio (fl.c.1310): Tractatus securitatum ff.106-107; Tractatus de cicatricibus f.107v; Matthaeus Mateselanis: Tractatus extensionis iuris civilis et canonici, so attributed in Leiden, UB, Ms d'Ablaing 28, ff.107v-110; Petrus de Ubaldi, brother of Baldus and Angelus (1336-1406): Tractatus permutationum beneficiorum, TUI, 12, ff.110v-117v; Baldus de Ubaldi: Tractatus in arte mercancie ff.118-119v; Jacobus de Arena: De cessione iurium ff.119v-122; De dotis restitutione ff.122v-126; Thomas de Piperata (d. after 1282): De fama ff.126-129v; Tractatus de diversis contractibus usurarum, as found in Leiden, UB, Mss d'Ablaing 20 and 28, ff.129v-132; Manfredus de Tortona or Terdona (fl.c.1268): Tractatus de modo procedendi contra apostatos, so attributed in Leiden, UB, Ms d'Ablaing 28, ff.132v-133v; Jacobus de Arena, as plausibly attributed by an annotator: Tractatus expensarum or De expensis ff.134-137; Bartolus de Sassoferato: Tractatus de alimentis ff.137v-139v; Martinus de Fano: Tractatus de alimentis ff.139v-141; Angelus de Ubaldi: Tractatus inventarii (TUI, 8) ff.142-146, with additional material in the margins of ff.145v-146; Matthaeus Mateselanus: De successionibus ab intestato ff.146-156; Guido de Suzaria (d. after 1292): Tractatus de iure empheotice ff.156v-168; Martinus de Salimanis (d.1306): Summa in usibus feudorum ff.168v-183v; Baldus de Ubaldi: Quaestiones feudorum sparsas quas d. bal. collegit ff.183v-186; Tractatus de muneribus ff.186-195v; Joannis Andreae: De testibus sive summula in materium testium ff.196-199; Bartolus de Sassoferrato: Liber testimoniorum, commentary on Justinian's Digest XXI, ff.199-214; Jacobus de Arena: De fideicomissariis ff.215-218; De pugna credited in the rubric to Bartolus de Sassoferrato but by an annotator, as sometimes elsewhere, to Roffredus Beneventanus (c.1170-1244) ff.219-221v; Manfredus de Tortona: Tractatus de restitutione male ablatorum, so attributed in Leiden UB, Ms d'Ablaing 28, ff.221v-224v; Bartolus de Sassoferrato: Tractatus de pace Guelfa et Gebelina, ff.224v-226v, and Tractatus de regimine civitatis ff.227-230 (both texts edited by D. Quaglioni, Politica e diritto nel trecento Italiano, 1983); Ludovicus Pontanus (1409-1439): Rubrica de arbitris ff.230v-234; blanks ff.234v-250v; Baldus de Ubaldi: Tractatus sindicatuum officilium (TUI, 7, 224-226v) ff.251-257; Angelus de Ubaldi: Tractatus sindicatuum (TUI, 7) ff.257-262v; Martinus de Fano: De ypotecaria et pignoribus, ff.263-264v, Tractatus de alimentis praestandis, ff.265-266, and Tractatus de prescriptione ff.266-267; Jacobus de Arena: Tractatus de duobus fratribus f.267; Martinus de Fano: Tractatus de filiis, f.268, and De natis ex da[m]nato coitu f.268v; Angelus de Ubaldis: Repetitio super nemo carcerem, commentary on Justinian Code X, ff.269-273; Jacobus Butrigarius (c.1274-1347): Tractatus super actione ypotecaria ff.273-274v; Martinus Garatus de Laude (doc.1430-d.1453): Tractatus de moneta ff.274v-279; Utilis notula super privilegiis exemptorum ff.279v-280v; Martinus Garatus de Laude: Aditiones ad tractatum bar. de alimentis, commentary on Bartolo de Sassoferrato's treatise (here ff.137v-139v), ff.281-284; Bartolus de Sassoferrato: Opiniones ff.284v-287v; Questio an imperator ante susceptas coronas..., attributed by an annotator to Sys., ff.287v-289v; Bartolus de Sassoferrato: Rubrica de justicia, partly on Jews and the law, ff.289v-292v, and Tiberiadis (Tractatus de fluminibus seu Tyberiadis, Bologna, 1576, reprinted Turin 1964) ff.293-322: Proemium f.322, De alluvione ff.293v-305v, De insula in flumine nata ff.306-318, De alveo ff.318-322.
Essentially a collection of treatises on civil law, this volume includes some writings on the aspects of canon or church law which impinged most on the laity: marriage and the truth of witnesses secured by oath. Many lawyers were doctors of 'both laws' and Matthaeus Mateselanis's treatise on the limits of the two jurisdictions is included (ff.107v-110). Civil law was based upon the compilations of Roman law produced in the 6th century under Justinian, which also provided a framework for canon law, first organised in the 12th century and continually enlarged and revised. Formal commentaries on these sources, in whole or part, were supplemented by opinions on specific issues and by the decisions of revered practising lawyers, often also academics. Because canon law applied to the whole western Church under Rome and Roman law was the basis of civil law in most European countries, foreign students flocked to the great Italian universities and returned home to spread the work of Italian jurists.
Since the respect accorded to a legal text depended in large part on the author to whom it was credited and since lawyers were constantly debating the same issues, the attribution of many legal writings is far from agreed. Texts in this volume have been attributed according to their original rubrics, if no further explanation is given. Writings frequently circulated in various forms, so that references given above to printed editions with the same titles by the same authors may not always be identical to the manuscript version in this collection. For varying attributions, titles and contents of many civil law texts, see G. Dolezalek, Verzeichnis der Handschriften zum römischen Recht bis 1600, 1972.
The latest authors included here are Ludovicus Pontanus, f.230v, who died aged thirty at the Council of Basel in 1439 after studying and teaching in Perugia, Bologna and Siena, and Martinus Garatus de Laude, ff.274v and 281, who obtained his doctorate at Pavia in 1430, taught at Siena, Bologna, Parma and Ferrara and died in 1453, ff.274v and 281. Between come the greatest names of civil law: Bartolus de Sassoferrato, the lucerna iuris or 'lantern of the law', famed for the practicality of his interpretation and application of Roman law, and his pupil at Perugia, Baldus de Ubaldi, who succeeded him as the most revered jurist in Europe. His equivalent in canon law is also present: Johannis Andreae, the fons et tuba iuris or 'source and conduit of the law', who lectured at Bologna. Two other authors are well represented: Martinus de Fano, who taught at Bologna in 1255 and at Modena 1259-59 and was twice podestà of Genoa before becoming a Dominican, and Jacobus de Arena, pupil of Guido da Suzzaria (see f.156v) at Modena and teacher at Bologna, Padua and Toulouse. The compiler was collecting works on topics ranging from inheritance and dower rights to commercial law and from the Guelfs and the Ghibellines to imperial insignia.
The final treatise, Bartolus's Tiberiadis, deals with the ownership of land newly created by alluvial deposits, along river banks in the first book or as islands in the second book, or newly exposed by the changing courses of rivers in the third book. Traditional in format, being prompted by the questions raised in Justinian's Digest, 41.1.7 and 30, it was revolutionary in its solutions, which relied on geometric constructions to ensure an equitable distribution of the new land between adjacent owners. Bartolus was very aware of the novelty of his approach in an age when tradition imparted authority so that novelty was highly suspect. He therefore fell back on the device of the creators of literary fictions, who in a sense denied their authorship and gave their inventions an external validity be casting them as dreams. In the proemium, f.293, Bartolus describes how a man came to him as he slept and gave him the compasses and ruler necessary to carry out the command to make the diagrams. Although Bartolus was helped, as he relates, by a chance visit of the geometrician Guido of Perugia, he himself was responsible for the diagrams, which survive in his own hand in his autograph manuscript of the first book, preserved by Baldus de Ubaldi, (Rome, Biblioteca Vaticana, Ms Barb.lat.1398, see V. Colli in Ius commune, XXV, 1998, pp.324-346). That, like most other copies dates the work to 1355; the present copy gives 1356, f.293v.
Bartolus's own diagrams do appear to have been constructed with compasses and ruler, whereas in this copy they have been drawn freehand while still detailing the arcs needed for accurate execution. The splendid grotesque heads spewing forth the waters also derive from Bartolus's originals. These fantasies should not obscure the fact that Bartolus was the first to apply geometric principles in this way. Although he presented solutions to abstract problems, he envisaged their application to actual land formations, being inspired by the Tiber, and so heralded one of the greatest innovations in land surveying and map making. The significant contribution of the Tiberiadis is evident in its European circulation: by 1467 the Parlement in Dijon was calling a map-based land dispute a Tiberiade (see for discussion and illustrations, F. de Dainville, 'Cartes et contestations au XVe siècle', Imago mundi, XXIV, 1970, pp.99-121; H.G. Walther, 'Wasser in Stadt und Contado...', Mensch und Natur in Mittelalter, A. Zimmermann and A. Speer eds, 1992, II, pp.882-892). About twenty manuscripts survive in public collections but some, like Barb.lat.1398, include only one of the three books. Bartolus's work was still in demand in the sixteenth century when editions were printed at Bologna in 1576 and at Rome in 1587 (see Dolazelek, Verzeichnis, and F. Calasso's entry in Dizionario Biografico degli Italiani, VI, pp.640-669).