Rapid #: -12771191 CROSS REF ID: 662909 LENDER: GZM :: EJournals BORROWER: XFF :: Western Libraries TYPE: Article CC:CCG JOURNAL TITLE: Qurendo USER JOURNAL TITLE: Quærendo. ARTICLE TITLE: Authorship in Early Modern Jurisprudence: Paul Voet (1619-1667) on auctor and editor. ARTICLE AUTHOR: Varela, Laura Beck, VOLUME: 47 ISSUE: 3/4 MONTH: 07 YEAR: 2017 PAGES: 252-277 ISSN: 0014-9527 OCLC #: Processed by RapidX: 1/25/2018 12:19:57 PM This material may be protected by copyright law (Title 17 U.S. Code) Quærendo 47 (2017) 252-277 brill.com/qua Authorship in Early Modern Jurisprudence Paul Voet (1619-1667) on auctor and editor* Laura Beck Varela Universidad Autónoma de Madrid, Spain laura.beck@uam.es Abstract Paul Voet (1619-1669), law professor at the University of Utrecht, opened his most famous work, published in 1657, with an unusual discussion of the five different types of auctores of juridical books (juris libri)—a precious source for the history of authorship in the jurisprudence and in the early modern respublica litteraria in general. This essay discusses the key concepts for his understanding of auctor and auctoritas in the field of jurisprudence, as well as the motivations for this uncommon inquiry into the notion of authorship. Besides his personal reasons (the rumors about the illegitimate authorship of some of his works), the detailed taxonomy of legal auctores also helped him to build a cogent argument against the validity of canon law in the United Provinces. His aim was to redesign the history of legal tradition and to dispute the authority of certain canon law sources, such as Gratian’s Decretum. Keywords history of authorship – book history – history of law – canon law in the Dutch Republic – Gratian’s Decretum – legal interpretation – Paul Voet * Acknowledgements: This study was developed in the frame of the research project Tradición y Constitución (DER2014-56291-C3-1-P, Ministerio de Economía y Competitividad, Spain, directed by Marta Lorente), and thanks to a fellowship grant of the Max-Planck-Institut für europäische Rechtsgeschichte (Frankfurt am Main) during the spring of 2015. I am also indebted to Seán Dwyer, who helped to improve my English, and to the anonymous peer reviewers for their valuable suggestions. © koninklijke brill nv, leiden, 2017 | doi 10.1163/15700690-12341385 Authorship in Early Modern Jurisprudence 253 History of Early Modern Authorship: A World without Jurists? What was an author in early modern jurisprudence?1 Have early modern jurists tried to define the notion of auctor? Were there any specificities regarding authorship in law, compared to other fields of intellectual activity? The flourishing studies on the history of authorship have not paid much attention to books of law. According to António Manuel Hespanha, the silence of the historians of books on legal literature is nothing but a parallel to the accustomed oblivion regarding the world of law by general historians.2 Historians of the medieval and early modern time periods have shown the variety of historical forms of auctoritas and authorship in the various disciplines of knowledge, such as theology, literature, the fine arts or the natural sciences.3 A wide new range of topics has been explored, such as the vocabulary of literary composition, 1 Quoting R. Chartier, A. M. Hespanha raised this question in ‘Form and Content in Early Modern Lawyers’ Books: Bridging Material Bibliography with History of Legal Thought’, Rechtsgeschichte, 12 (2008), p. 19. Chartier discusses the historical implications of Foucault’s ‘author-function’ in ‘Figuras del autor’, in: El orden de los libros: lectores, autores, bibliotecas en Europa entre los siglos XIV y XVIII (Barcelona 1994), pp. 41-67. 2 Hespanha, op. cit. (n. 1), p. 12, n. 1. Three recent collections of studies on authorship do not include any essays on legal books: see Authority in European Book Culture, 1400-1600, ed. P. Bromilow (Farhnham 2013); Medieval and Early Modern Authorship, ed. G. Erne & L. Bolens (Tübingen 2011) and Plagiarism in Early Modern England, ed. P. Kewes (London 2002). Analogously, with very few exceptions, legal historians have not shown much interest in the recent contributions of book history, such as the history of authorship, publishing and reading practices. 3 A. Johns, The Nature of the Book. Print and Knowledge in the Making (Chicago 1998), M. Biagioli, Galileo, Courtier: The Practice of Science in the Culture of Absolutism (Chicago 1993). For the literary field, see for example the studies by D. Griffin, ‘The Social World of Authorship 1660-1714’, in: The Cambridge History of English Literature, 1660-1780, ed. J. Richetti (Cambridge 2005), pp. 37-60; and B. S. Hammond, Professional Imaginative Writing in England, 1670-1740: Hackney for Bread (Oxford 1997). For the fine arts, see P. Kewes, Authorship and Appropriation: Writing for the Stage in England, 1660-1710 (Oxford 1998); for the technical arts, see P. Long, Openness, Secrecy, Authorship: Technical Arts and the Culture of Knowledge from Antiquity to the Renaissance (Baltimore 2001). For the French, German and Spanish contexts, see A. Viala, Naissance de l’écrivain. Sociologie de la littérature à l’âge classique (Paris 1985); Autorschaft: Positionen und Revisionen, ed. H. Detering (Stuttgart 2002); J.-M. Buigues, ‘La sociedad de los autores’, in : Historia de la edición y de la lectura en España (1472-1914), ed. J.-F. Botrel et al. (Madrid 2003), pp. 292-301. Medieval historians have dealt with theological and juridical texts more often. See Auctor et auctoritas. Invention et conformisme dans l’écriture médiévale, ed. M. Zimmermann (Paris 2001); A. J. Minnis, Medieval Theory of Authorship. Scholastic Literary Attitudes in the Later Middle Ages (2nd edn.; Aldershot 1988). On medieval legal authorship, see V. Colli, ‘A proposito di autografi e codici d’autore dei Quærendo 47 (2017) 252-277 254 Varela authorship and plagiarism, authorial agency and self-fashioning, the continuities and differences between medieval and early modern authorship, the posthumous construction of authorship, and its nexus with authority and with the emergence of the printing press, among many others. This scholarship depicts, however, a world without jurists, even though the latter belonged to one of the most significant fields of intellectual activity in early modern times. Some studies have assessed the legal framework of increasing copyright regulations,4 but book historians have not investigated jurists as authors and active members of a broader respublica litteraria. Yet, in those centuries, law functioned like other disciplines of higher learning, with its set of themes, tropes, common topics and authoritative texts, based on a medieval scholastic methodology. It was not the product of a state-centered monopoly and relied largely upon the opinio communis doctorum, the authority of the learned jurists.5 Legal literature represented by that time one of the most significant branches of early modern book production, and this not only in quantitative terms.6 Paul Voet (1619-1669), a prominent Dutch jurist of the seventeenth century, offers us a unique source for the history of early modern authorship. He opens his most famous work, De usu iuris civilis et canonici in Belgio unito (1657) giuristi medievali (sec. XII-XIV)’, in: Iuris historia. Liber amicorum Gero Dolezalek, ed. V. Colli & E. Conte (Berkeley 2008), pp. 213-47. 4 M. L. McGill, ‘Copyright and Intellectual Property: The State of the Discipline’, Book History, 16 (2013), pp. 387-427. For the genesis of copyright in France, see C. Hesse, ‘Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777-1793’, in: Law and the Order of Culture (Berkeley 1991), pp. 109-37; for England see M. Rose, Authors and Owners. The Invention of Copyright (Cambridge 1993) and J. Feather, ‘From Rights to Copies to Copyright: The Recognition of Authors’ Rights in English Law and Practice in the Sixteenth and Seventeenth Centuries’, in: The Construction of Authorship. Textual appropriation in Law and Literature, ed. M. Woodmansee & P. Jaszi (Durham and London 1994), pp. 191-209. For a legal historical overview of copyright law in the nineteenth century in Europe, see F. Mazzarella, ‘Diritto e invenzioni. Un‘introduzione storica’, Rivista di storia del diritto italiano, 83 (2010), pp. 69-138, and H. Mohnhaupt, ‘Zur Entstehung der Rechtsdisziplin “Urheberrecht” im 19. Jahrhundert’, in: Grundlagen und Grundfragen des geistigen Eigentums, ed. L. Pahlow & J. Eisfeld (Tübingen 2008), pp. [131]-54. 5 On this topic—the historical process of reducing law to state legislation in continental Europe—exhaustively studied by legal historians, see P. Grossi, Assolutismo giuridico e diritto privato (Milano 1998). 6 B. Clavero and A. M. Hespanha have written extensively on the role of jurists in early modern European societies. See B. Clavero, La grâce du don. Anthropologie catholique de l’économie moderne (Paris 1996); A. M. Hespanha, ‘Una historia de textos’, in: Sexo barroco y otras transgresiones premodernas, ed. F. Tomás y Valiente (et alii) (Madrid 1990), pp. 187-96. Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 255 (‘On the Use of Civil and Canon Law in United Belgium’), with an interesting and unusual chapter, a kind of inquiry into the many ways in which someone might be called ‘auctor’, or ‘editor’ of a certain work (Quot modis quis editor, vel auctor, alicujus operis esse dicatur?). Since he announces a specific emphasis on juridical books (juris libri) and a systematic approach to this topic is quite rare in the legal literature of the time, this chapter is definitely a precious testimony for the history of authorship in jurisprudence and in the early modern respublica litteraria in general.7 Thus, in the subsequent pages, I will briefly discuss the five different types of auctor or editor according to Voet and some of the key concepts for his understanding of auctor and auctoritas in jurisprudence. What does it mean to be an auctor in jurisprudence according to Voet? Why does he develop this kind of argument in his De usu iuris civilis et canonici in Belgio unito? In other words, what is the role of the ‘auctor/editor-argument’ in his work? figure 1 Paul Voet, painted by Johan Bouman (1602-1658). [Wiki commons]. 7 ‘Quot modis quis EDITOR, vel AUCTOR, alicujus operis esse dicatur?’, in Pauli Voet, Gisb. F. Juris in Acad. Ultraject. Antecessoris, et Vianensis Camerae Senatoris, De usu iuris civilis et canonici in Belgio unito, deque more promovendi Doctores utriusque juris, &c. liber singularis (Ultrajecti: Ex Officina Johannis a Waesberge, 1657), pp. 6-12. Quærendo 47 (2017) 252-277 256 Varela Voet’s Taxonomy of Auctor and Editor Paul Voet (Paulus Voetius), born in Heusden, was appointed professor of law in Utrecht in 1654, after having taught philosophy at the same university.8 The Voet family provided three generations of prominent scholars during the convulsive decades of the early Dutch Republic. Paul’s father, the noted Gisbertus Voet (1589-1676), professor of theology in Utrecht, was known as no less than ‘the leading spokesman of Calvinist orthodoxy in the Republic’,9 whereas Paul’s son, Johannes Voet (1647-1713), became one of the most influential Leyden professors in Europe and abroad.10 Like many educated jurists of his time, Paul Voet wrote on theological, philological and legal subjects. Voet’s most significant legal writings are his commentary on the Institutes of Justinian (1668), his Jurisprudentia sacra (1662) and De usu iuris civilis et canonici in Belgio unito (1657), possibly his most famous work, often quoted as a reference for the study of the impact of the Reformation in the field of law.11 It was published in the context of the controversy regarding the ‘chapters’ (kapittels) of the five collegiate churches of Utrecht, which had not ceased to exist after the Reformation, granting rights to the same old patrician families for many generations.12 Around 1644, a conflict 8 9 10 11 12 On Paul Voet’s life and works see: J. van Kuyk, Nieuw Nederlandsch biographisch woordenboek, ed. P. J. Blok & P. C. Molhuysen (Leiden 1924), vol. 3, pp. 1329-1330; K. R. G. Kuipers, “Paulus Voet (1619-1667), Enkele opmerkingen over deze 17e eeuwse geleerde en zjn werken, in het bjzonder met bretrekking tot het internationaal privaatrecht”, in Uit bibliotheektuin en informatieveld, Opstellen aangeboden aan Dr. D. Grosheide (Utrecht 1978), pp. 51-63; J. W. Wessels, History of the Roman Dutch-Law (Grahamstown 1908), p. 300; A. J. van der Aa, Biographisch Woordenboek der Nederlanden Voortgezet (onder Redactie van K. J. R. van Harderwjk & C. D. J. Schotel; Amsterdam 1969); J. F. Jugler, Beyträge zur juristischen Biographie oder genauere litterarische und critische Nachrichten von dem Leben und den Schriften verstorbener Rechtsgelehrten auch Staatsmänner, welche sich in Europa berühmt gemacht haben (Leipzig 1775, II-2), pp. 340-7. J. Israel, The Dutch Republic. Its Rise, Greatness and Fall, 1477-1806 (Oxford 1995), p. 444 (on Gisbertius Voet and the role of Voetianism as Calvinist fundamentalism in the Republic’s political life of the time, see pp. 444, 608, 646; on the famous Cocceian-Voetian theological dispute pp. 662-76). See also A. Beck, Gisbertus Voetius (1589-1676). Sein Theologieverständnis und seine Gotteslehre (Göttingen 2007). R. Feenstra & C. J. D. Waal, Seventeenth-century Leyden Law Professors and their influence in the development of the Civil Law. A study of Bronchorst, Vinnius and Voet (Amsterdam 1975), pp. 69-80. A bibliography of Paul Voet’s works in M. Ahsmann & R. Feenstra, Bibliografie van hoogleraren in de rechten aan de Utrechtse Universiteit tot 1811 … (Amsterdam 1993), pp. 142-8. Until the ecclesiastical reorganization of 1559, most of the Netherlands lay within the diocese of Utrecht, which was created as a suffragan seat of the archbishopric of Cologne: Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 257 started between the Calvinist ministers and the city authorities, and it ceased only in 1660, with a decision of the States of the Province of Utrecht.13 Voet makes express allusion to this debate in his work.14 As is usual in the prefaces of the time, in his Proemium he complains about the false erudition (simulacrum eruditionis) and the errors of the legal practitioners (causidici) who wanted to achieve notoriety in jurisprudence without deserving it. He develops a set of tools to fight against these widespread literary vices in the first three sections of his work: the already-quoted chapter on authorship, a chapter on the doctors and professors of law and another one on the disciplines required for a proper legal education (theology, philosophy, Greek, Latin and ancient history).15 Voet’s taxonomy of authorship in jurisprudence comprises five categories: the materiarum collector (1); the auctor as the authority who approves or confirms legal texts or institutions (2); the ‘bee’-auctor (3); the auctor who adds his own opinion (4); and finally the so-called primus inventor (5). In his descriptions of the five types of auctores, he employs the common learned vocabulary for rhetoric and composition, one of the loci classici of which can be found in St. Bonaventure’s distinction between the scribe, the compiler, the commentator and the auctor.16 Voet illustrates the categories, however, with examples 13 14 15 16 see J. Witte Jr., ‘The Plight of Canon Law in the Early Dutch Republic’, in: Canon Law in Protestant Lands, ed. R. H. Helmholz (Berlin 1990), pp. 135-64. ‘Its [Utrecht’s] five collegiate churches, with their immunities, dominated the city both spatially and socially; together they controlled the first estate in Utrecht’s provincial estates and owned roughly a quarter of the land in Utrecht province’. After the ban of Catholic worship in 1580, the government of the United Provinces secularized the five chapters in 1582, but ‘Selected members of the chapters continued to form the first estate in the provincial Estates’ (B. J. Kaplan, ‘Utrecht’, in: The Oxford Encyclopedia of the Reformation, vol. 4, 1996, pp. 208-9). R. Feenstra, ‘Canon Law at Dutch Universities from 1575 to 1811’, in: Helmholz (ed.), op. cit. (n. 12), pp. 123-34. See also J. A. Fruin, ‘De stjd tusschen het Canonieke en het Romeinsche recht in de middeleeuwen en het tjdvak van de Republiek der Vereenigde Nederlanden’ (oration 1879), Jaarboek der Rjksuniversiteit te Utrecht (1880), pp. 31-71. Israel analyzes the difficulties in the formation of the Dutch Reformed Church, noting that, differently from other state churches in Protestant lands the Dutch Church ‘lacked the power to enforce church attendance and had no representation in Generality and provincial colleges and assemblies. Even in Utrecht the college of the first estate represented the province’s five “secularized” chapters, not the public Church’ (Israel, op. cit. [n. 9], p. 368). ‘… capitum, atque articulorum nonnullorum, qui in Provinciis foederatis improbandi mihi videntur …’ (Voet, op. cit. [n. 7], p. 204). Voet, op. cit. (n. 7), pp. 24 ff. I quote Minnis’ translation for this passage of St Bonaventure’s ‘Aristotelian preface’ in his commentary to Peter Lombard’s sentences: ‘The method of making a book is fourfold. Quærendo 47 (2017) 252-277 258 Varela taken from the legal tradition, mostly from Justinian’s texts and their commentators. Since in many of these examples the word auctor is not an equivalent to today’s author, but rather to what we would now call an authority, I will keep the original Latin expressions in parenthesis or the complete sentences in the footnotes, in order to avoid improper translations and ambiguities in modern English. Auctor or Materiarum Collector The first type of creator of legal books includes those who have put together in one volume (in unum volumen congerunt) what was said and dictated (dicta et dictata) ‘a thousand times’ by others, but without changing17 or adding anything besides the compilation itself (nihil de suo praeter compilationem adjicientes).18 They did not ‘digest’ (digerunt) what they read, either with intelligence (ingenium) or with discernment (iudicium), instead doing nothing more than ‘building bridges for the asses to cross’.19 Their activity is similar to that of the scribes (scriptores), who simply put down on paper or parchment 17 18 19 For someone writes the materials of others, adding or changing nothing, and this person is said to be merely the scribe [scriptor]. Someone else writes the materials of others, adding, but nothing of his own, and this person is said to be the compiler [compilator]. Someone else writes both the materials of other men, and of his own, but the materials of others as the principal materials, and his own annexed for the purpose of clarifying them, and this person is said to be the commentator [commentator], not the author. Someone else writes both his own materials and those of others, but his own as the principal materials, and the materials of others annexed for the purpose of confirming his own, and such must be called author [auctor]’ (note 87: Proemii qu. 4, conclusio; Bonaventurae operae, i, 14-5; F. Stegmüller, Repertorium commentariorum in sententias Petri Lombardi (Wurzburg 1947), Sent. 111 (apud Minnis, op cit. [n. 3], p. 94)). ‘… nonnulli ea tantummodo, quae ab aliis dicta et dictata forte millies, ne quidem mutatis mutandis, in unum volumen congerunt’, Voet, op. cit. (n. 7), p. 6. It is important to stress that the word used here is condo, condere; meaning to collect, but also to establish, to found; the expression legem condere is one of the central terms to explain the production and interpretation of law in the medieval and early modern European tradition: see J. Vallejo, Ruda equidad, ley consumada. Concepción de la potestad normativa (1250-1350) (Madrid 1992), pp. 263-5. Voet, op. cit. (n. 7), p. 7. ‘Dumque hac ratione per multis ignaviae deditis inserviunt, iisque qui nec ingenio nec judicio recte, quae legunt, digerunt, nisi ab aliis sint digesta satis; quid aliud agunt, quam quod pontes struant, quos asini superent’ (Voet, op. cit. [n. 7], pp. 6-7). Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 259 what others have issued.20 For Voet, the collectors of subjects (materiarum collectores) are improperly named ‘composers’ (compositores), without having added anything to the mere act of collecting. His examples for this category are the Roman decemviri (the ten commissioners who had been presumably in charge of collecting the Law of the Twelve Tables) and other ancient legal compilers, such as those of the collections known as Jus civile Flavianum (presumably collected by Gnaeus Flavius) and Jus civile Papirianum (by the jurist Papirius). Both had been wrongly named after their collectors, since they had made them public (publici juris facit) but had not added anything by themselves (de suo nihil adjecerit).21 At this point, Voet is reproducing widely known passages of the Digest (D. 1, 2; 2-4, 7)22 and of the Proemium of the Institutes of Justinian, which mentions the work of collatio of ancient jurisprudence by Tribonian and others.23 He uses also the notions of editor and edire but does not set a clear distinction between auctor and editor: in one passage, for example, he seems to use both terms interchangeably.24 In another paragraph, he refers to edire as a higher form of compiling or composing (superior to the 20 21 22 23 24 ‘… ut scriptores, qui librum in totum ex aliis conscripserunt, nihil de suo praeter compilationem adjicientes’ (Voet, op. cit., p. 7). It is noteworthy that the term scriptor here means he who writes down on parchment; it is not a synonym for author. Carruthers reminds us that the use of writer as a synonym for author as its primary meaning is quite recent, according to the Oxford English Dictionary (M. Carruthers, The Book of Memory. A Study of Memory in Medieval Culture [Cambridge 1990, repr. 1993], p. 336, n. 14). Voet, op. cit. (n. 7), pp. 7-8. D. 1, 2, De origine iuris et omnium magistratuum et successione prudentium, §2-3, 7. For the quotations of the Digest, I am using Mommsen and Krueger’s Latin edition, Digesta Iustiniani Augusti (Berlin 1870, repr. 1962), vol. 1. See Voet’s commentary on this passage, where he harshly condemned Tribonian’s compilation of ancient jurisprudence, due to its lack of order: Pauli Voet … In quatuor libros Institutionum Imperialium commentarius: ubi juris civilis tum antiqui, tum novi cum divino, forensi, canonico et feudali in multis collatio instituitur … (Gorichemi, ex Officina Pauli Vink …, 1668), Proemium, §4, p. 18. This negative consideration of the Byzantine jurist was a commonplace among the jurists since the spread of humanism. Voet’s critical intention was to place Tribonian on the same level as the mere materiarum collectores such as Gnaeus Flavius and Papirius, who enjoyed a subordinate position among the established authorities of iurisprudentia. Nevertheless, in the context of De usu iuris civilis et canonici in Belgio unito, Voet was not interested in developing arguments against the qualities of the ius civile, as I will show infra (see the last section). ‘Ubi, dum oculos et animum in Juris libros ab Auctoribus editos conjicio; videor mihi non incommode quinque AUCTORUM in scribendo genera observasse’ (Voet, op. cit. [n. 7], p. 6). He employs most of the time the term auctor. Quærendo 47 (2017) 252-277 260 Varela mere collectio) and he reproves those who vindicate the mere collectiones as if they had edited them (eundem tanquam a se editum sibi vindicent).25 Auctor, Auctoritas and Comprobatio The second category of auctores or editores in the field of law is formed by those who ‘confirm’ the writings of others: the key terms here are comprobare (which appears eight times in two pages), approbare and accomodare. These terms mean, in this case, not only to assert, to acknowledge, to sanction, but also to establish authority.26 He illustrates this category with four distinct examples: the first ones are the collection of decretals approved by the authority of Pope Alexander III (even though Alexander did not write or compile it by himself), and the Institutes of Justinian: although made (confecta) by jurists such as Tribonian, Theophilus, or Dorotheus, it was approved by the emperor.27 The third and fourth examples do not refer to concrete books. The third one alludes to another familiar topic for the learned jurists of the time: the decisive role of the jus Praetorium regarding the institution of bonorum possessio, since the Roman praetor had confirmed (comprobaverit) the system of inheritance of the old law (ius vetus).28 The fourth example concerns the libelli famosi, the defamatory pamphlets condemned in Justinian’s Codex (C. 9, 36, De famosis libellis). According to Voet, not only the ‘composers’ of the libelli were to be blamed, but also those who had edited and divulgated them are to be counted among their auctores (auctoribus annumerarentur) and therefore responsible for them, since they had approved their contents (iis contenta comprobant). 25 26 27 28 Voet, op. cit. (n. 7), p. 7. The term ‘editor’ and the verb ‘edire’ appear only three times besides the title of the chapter (only related to the first and second categories), while auctor makes eight appearances throughout the text. In the subsequent chapters, Voet employs ‘editor’ referring to the fourth and fifth books of the Corpus iuris canonici, known as the Clementines and the Extravagantes, both edited by Pope Johannes XXII (Voet, op. cit., p. 101). ‘Alii aliorum scripta comprobando, pro suis venditando, auctoritatem iis accommodando, (licet vel nova librorum editione, vel veteri sint contenti) etiam auctores eorum aliquo modo dici merentur’ (Voet, op. cit., p. 8). Voet, op. cit. (n. 7), pp. 8-9. In the study of Roman law, the extension of the principles of succession to the bonorum possessio is one of the examples of creative interpretation of the jurists (P. Bonfante, Scritti giuridici vari, IV [Rome 1925], pp. 5-6). For a definition of the bonorum possessio, see A. Berger, Encyclopedic Dictionary of Roman Law (Philadelphia 1953; repr. New Jersey 2004), p. 375. Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence figures 2-3 261 Pauli Voet, Gisb. F. Juris in Acad. Ultraject. Antecessoris, et Vianensis Camerae Senatoris, De usu iuris civilis et canonici in Belgio unito, deque more promovendi doctores utriusque juris, &c. liber singularis. Ultrajecti: Ex Officina Johannis a Waesberge, 1657 [München, Bayerische Staatsbibliothek, Signatur: 2343682]. Among all the categories drafted by Voet, this one is probably the most distant from our modern idea of authorship. He explains that auctor was also someone who approved or acknowledged contents: the term auctor in these cases did not refer to any form of literary activity. It did not imply the activities of compiling, amending or composing: decisive is the ‘reception’, the approval by some source of authority.29 Voet is emphasizing the nexus between auctor and 29 Equally significant, in this sense, is Voet’s reference to the ius civile as something which was not only constitutum by the people or the cives, but which must have been ‘received’ Quærendo 47 (2017) 252-277 262 Varela auctoritas in its sense of auctoritas condendi legis (authority to establish the law)—which was only one of the multiple uses of the term in the legal literature of the time. Auctor and auctoritas were used in a variety of contexts, such as the theory of proofs, guardianship, possessory writs and many others, not associated with any form of literary activity. In the entries of Barnabé Brisson’s famous Lexicon iuris, for example, auctor was the seller, the proprietor or the possessor (i.e., the one who transmitted a law and therefore assured it).30 Auctor and the ‘Bee’ Metaphor To the third type of auctores belong those who, like bees (adinstar apium), select materials of others, sometimes also offering abridgements or compendia (ad compendium trahendo). These ‘bee’-authors vindicate this kind of work as their own, because they have adapted the style and the form of materials discovered by others, making them appear—perhaps—more polished than before (magis forte polita, quam antea).31 Voet expresses an ambiguous opinion 30 31 (receptum) by the community, reproducing passages of the Digest. They are approved, or sanctioned laws, only if the one who approved or sanctioned them had the potestas to make law ( jus facere potest): ‘Jus Civile non tantum est, quod a populo, aut civibus, primo constitutum: verum etiam quod ab iis est approbatum, et in civitatem receptum: vel quo (licet alterius civitatis) populus aliquis utitur. Sic etenim aliorum dicta et scripta comprobata jus erunt, si modo, qui ea comprobat, jus facere potest’ (Voet, op. cit. [n. 7], p. 9). The term auctoritas appears only in Voet’s second category. Lexicon iuris sive de verborum, quae ad ius pertinent significatione libri XIX … (Francofurti apud Ioan. Wechelum, impensis Sigismundi Feyrabendij [et alii], 1587), I, pp. 68-9. These connotations were probably closer to the original Latin roots of auctor as the responsible or the original force in a general sense. See M.-D. Chenu, ‘Auctor, actor, autor’, in: Alma. Bulletin du Cange, III (Paris, E. Champion, 1927), pp. 81-6; H. Lévy-Bruhl, ‘Deux études: addicere et auctoritas’ in: Annales de l’Université de Lyon, 3è série. Droit. Fasc. 6 (Paris, 1942) & V. Piano Mortari, ‘L’argumentum ab auctoritate nel pensiero dei giuristi medievali’, in Dogmatica e Interpretazione. I giuristi medievali (Napoli 1976), pp. 77-91, on p. 85. One century later, Diderot’s Encyclopédie would register similar definitions for the auctor in law, besides new literary connotations: Encyclopédie ou dictionnaire raisonné des sciences, des arts et des métiers par une societé de gens de lettres. Mis en ordre & publié par M. Diderot … & quant à la partie mathématique par M. d’Alembert … T. I (Paris, etc.: Briasson, etc., 1751), p. 894. ‘Alii adinstar apium ex innumeris auctoribus, quod optimum est, elegendo, vel etiam ad compendium trahendo, nec quicquam de suo ratione materiae superaddendo, aliam orationis formam, alium stylum alienis adaptando, quaecunque ab aliis probe sunt inventa, sibi vindicant; quia magis forte polita, quam antea, apparent. Et ita (quod vitium hoc Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 263 regarding this category: on the one hand, he values positively (quod optimum est) the task of selecting materials from others and adapting them; on the other hand, he criticizes the bad habit of suppressing the names of the ones who had found (inventa) the materials which were being adapted. He defines it as a ‘vice’ of ‘our times’ and takes advantage of the occasion to attribute this condemnable practice to the Jesuits. This widely known metaphor of the author as a bee has a long history in Western literary tradition. Taken from Seneca’s epistles, it became a commonplace from the twelfth century onwards: ‘We ought to imitate bees … which fly about and gather [from] flowers suitable for making honey, and then arrange and sort into their cells whatever nectars they have collected’. For Carruthers, this metaphor ‘should be understood not as a mere decoration but a complex model of the process of composition and authorship’, and it is closely related to another commonplace metaphor, that of reading-as-digestion, the ‘ruminative’ process of composition, also mentioned by Seneca.32 Early modern lawyers extensively used both metaphors when describing their task of studying law or preparing law books.33 We should not be surprised, then, by the rather positive consideration of the ‘bee-authors’ by Voet. Two further examples endorse his positive view of this kind of authoring: The first example, once again, alludes to the labor of adaptation in the Digest, described in the preliminary constitutio known as Tanta, or De confirmatione Digestorum (on the confirmation of the Digests), especially its paragraphs 10 and 17, where the deletion of useless passages of the old law is praised.34 The second example is one of the few texts by early modern jurists entirely dedicated to complaining about literary plagiarism: an epistle written by the French jurist François Le Douaren (Duarenus) (1509-1559) to his younger friend François Baudoin 32 33 34 nostro seculo, praesertim inter Jesuitas, infrequens non est) suppressis auctorum nominibus, e quibus sua hauserunt, ea ac si noviter a se reperta forent, in publicum protrudunt’ (Voet, op. cit. [n. 7], p. 10). Carruthers, op. cit. (n. 20), pp. 191-2, see also pp. 37-9. We find similar images relating the bee to the tasks of writing or producing oral discourses in Quintilian, Virgil’s Fourth Georgic, or later in Petrarch. One example among many is that of Giulio Pace, complaining about the lack of order and ‘digestion’ of the compilers of the Digest (De iuris civilis difficultate ac docendi methodo … Apud Ioannem Mareschallum Lugdunensem, 1586), p. 16. See Dig., C. Tanta. De confirmatione … §. 10, and especially §17, where the reference to the work of composing and selecting is quite eloquent: Tribonian and other conditores had expelled (respuerunt) what was neither useful nor new. Quærendo 47 (2017) 252-277 264 Varela (Balduinus) (1520-1573) in 1549.35 I will not analyze here in detail Douaren’s arguments, but what lies under his complaints of plagiarism is, rather than our contemporary notion of originality, a kind of failure in memory and composition, i.e., a failure in the process of ‘digesting’ and borrowing others’ materials to bring something ‘of one’s own’ (de suo adjicere) to the readership.36 This idea of ‘digesting’ and bringing something new—a new and useful order for the contents, for example—might have functioned as a sort of ‘limitation’ for authorship—one of the various expressions of what we would later know as ‘author-function’. Its frontiers were certainly difficult to grasp. Similarly to what happened in other fields of intellectual activity, the jurists pushed the flexible definition of plagiarism from one side to another, according to criteria such as utility, order and style in the appropriation of others’ writings. Instead of novelty and uniqueness, it was utility, order and style which defined the complex process of composing and authoring a work.37 Auctor and Opinion To the fourth type of auctores belong those who besides working on the materials of others are capable of bringing to light their own opinion (suam promunt opinionem), making something of their own (suum faciunt). They correct (emendant) what was not developed enough by others—not said, or not declared well enough (non dictum, non declaratum satis)—through addition and deletion (addendo, detrahendo).38 Voet exemplifies this kind of literary activity once again with three examples taken from the Digest. The first one alludes to the very definition of the ius civile of the Roman citizens (D. 1, 1, 6), which is the outcome of the process 35 36 37 38 ‘De Plagiariis et scriptorum alienorum compilatoribus …’, in: Omnia quae quidem hactenus edita fuerunt opera: non tantum plurimis in Digesta seu Pandectas, et Codicem commentariis, ac methodicis expositionibus … (Francofurti: apud heredes Andreae Wecheli, Claudium Marnium, & Ioan. Aubrium, 1598), p. 1106. Carruthers, op. cit. (n. 20), pp. 218-20. On the debate on plagiarism in early modern jurisprudence and the ‘utility’ of legal works, see L. Beck Varela, Literatura Jurídica y Censura. Fortuna de Vinnius en España (Valencia 2013), pp. 64-75; and ibid., ‘The Diffusion of Law Books in Early Modern Europe: A Methodological Approach’, in: Spatial and Temporal Dimensions for Legal History. Research experiences and itineraries, ed. M. Meccarelli & J. Solla (Frankfurt am Main 2016), pp. 195-239. Voet, op. cit. (n. 7), p. 10. Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 265 of both adding and eliminating rules from the ‘common’ law.39 He repeats the example of the ius Praetorium, born out of the ius civile due to the labour of the praetors, adjuvandi, corrigendi, supplendi (adding, correcting, supplying), quoting again the title regarding the institution of the bonorum possessio.40 The last example is a general reference to the rules ‘most uprightly’ (rectissimi) selected in the Digest, for it had been necessary to add what was incomplete as well as to subtract what was superfluous in the ancient Roman laws.41 Auctor as Primus Inventor Finally, an auctor was also the one who, besides compiling, correcting, and including his own opinion, ‘first discovered’ a subject: the one who primus invenit. The key argument here is the notion of inventio, which appears twice in the short paragraph dedicated to the fifth category of authors. Once again, Voet transcribes passages of the Digest and of its preliminary constitutions (known by their introductory words, Deo Auctore, Omnem, and Tanta) stating that the jurist who must be praised the most (laudabilior) is not the one who only accurately amends the facts, but the one who first finds them out.42 Voet develops further important criteria for the attribution of this most 39 40 41 42 ‘Alii variorum sententias examinando, et ad Rationis trutinam expendendo, suam promunt opinionem: quodque ab aliis non dictum, non declaratum satis, addendo, detrahendo, emendant, adeoque suum faciunt. Quo sensu secundum Jurisconsultos dictum, “dum aliquid additur et detrahitur juri communi, jus proprium esse effectum alicujus civitatis, quod civile appelatur” ’ (Voet, op. cit. (n. 7), p. 10, reproducing D. 1, 1, 6: ‘Ius civile est, quod neque in totum a naturali vel gentium recedit nec per omnia ei servit: itaque cum aliquid addimus vel detrahimus iuri communi, ius proprium, id est civile efficimus’). D. 1,1,7,1 (Papinianus): ‘Ius praetorium est, quod praetores introduxerunt adiuuandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam. quod et honorarium dicitur ad honorem praetorum sic nominatum.’ ‘Sed et hoc studiosum uobis esse uolumus, ut, si quid in ueteribus non bene positum libris inueniatis uel aliquod superfluum uel minus perfectum, superuacua longitudine semota et quod imperfectum est repleatis et omne opus moderatum et quam pulcherrimum …’ (D.: Constitutio Deo auctore. De Conceptione Digestorum, §7). ‘Alii denique non tantum aliorum inventa congerendo, emendando, sed et propriis gaudendo, suos conatus eruditorum hominum turbae probare student. Et licet Jurisconsulto is, qui non subtiliter factum emendat, laudabilior eo videatur esse, qui primus invenit’ (Voet, op. cit., (n. 7) p. 11). He is transcribing the final words of the sixth paragraph of C. Deo Auctore. De Conceptione Digestorum: ‘nam qui non suptiliter [sic] factum emendat, laudabilior est eo qui primus inuenit’. The idea of the primus inventor appears again in subsequent passages (see e.g. p. 82). Quærendo 47 (2017) 252-277 266 Varela admirable type of authorship: auctor is the one who supplies what has been omitted by others (ab aliis praetermissa supplent) (1); who sets in order what was confusedly said (confuse dicta certo ordine digerunt) (2); who proves the truth of his statements with reasons (rationibus firmant) (3) and who adds his own discoveries, new thoughts and findings (suaque inventa et noviter excogitata adjiciunt) (4).43 The opposition between the compilator (the first three activities are closer to the task of the compiler) and the inventor was certainly not new,44 but Voet values the latter very positively. He supports these arguments with a quotation of Antonius Matthaeus II (1601-1654), his colleague at Utrecht, taken from the prologue of the treatise on auctions,45 and with a reference to the Roman jurist Marcus Antistius Labeus, to whom he attributes the quality of inventio, reproducing extracts of the Digest’s title De origine iuris (D. 1, 2, 47).46 Analogously to its primary juridical sense (that of inventio thesauri, the discovery of a treasure-trove, a valuable movable good hidden for a long time [Codex 10, 15, De thesauris]), invention in its rhetorical sense evoked the process of finding and selecting pre-existing arguments and loci, not an act of spontaneous creation. A similar process defined the medieval and early modern legal methodology: legal reasoning consisted of constructing solutions based on pre-existing arguments and loci (mainly leges, rationes and auctoritates), available in the wide treasure-trove of the juridical tradition. According to Cicero’s definition, invention meant, ‘the discovery of valid or seemingly valid arguments to render one’s cause plausible’ (excogitatio rerum verarum et veri similium quae causam probabilem 43 44 45 46 Voet, op. cit. (n. 7), p. 12. Vincent de Beauvais defined himself as compilator rather than inventor of his Speculum historiale: ‘huius libri compilator, non inventor’, according to Alastair Minnis, ‘Nolens auctor sed compilator reputari: The Late-Medieval Discourse of Compilation’, in: La Méthode critique au Moyen Âge, ed. M. Chazan & G. Dahan (Turnhout 2006), p. 48. ‘In utroque vero eum scribendi modum observare conatus sum, ut non solum aliorum placita congererem: quis enim hanc nomenclatoribus praeriperet palmam? Sed ut de meo quoque aliquid adjicerem: ab aliis confuse dicta certo ordine digererem, rationibus confirmarem, vocatoque in partes provinciali jure …’ (A. Matthaei, De auctionibus libri duo: quorum prior venditiones, posterior locationes, quae sub hasta fiunt, exequitur. Adjecto passim voluntariarum auctionum jure. Trajecti ad Rhenum: Typis Johannis à Waesberge, 1653), p. 3. This passage of the Digest alludes to Labeus, active during the Principate and member of the Proculian school, who enjoyed great authority in his time: ‘Labeo ingenii qualitate et fiducia doctrinae, qui et ceteris operis sapientiae operam dederat, plurima innovare instituit’ (D. 1, 2, §47). Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 267 reddant).47 Even by the beginning of the seventeenth century, after profound changes in the teaching of Rhetoric, Gerhard Vossius (1577-1649) still defined invention in very similar terms.48 Renaissance thought contributed to reinforcing this idea, since men of letters were engaged in recuperating the lost principles and sources of Antiquity.49 As Carruthers explains for the medieval tradition, invention belonged to the first stage of the process of literary compositio, the search in one’s own memory inventory, in one’s ‘treasurehouse of found-things’ (thesaurus inventorum, as memory is called in the Rhetorica ad Herennium, III, 16). Compositio, however, did not mean strictly the act of writing, but a more complex act of recollection, involving a trained memory, educated in the art of ‘finding’ and ‘gathering’ materials previously stored from one place to another.50 As expressions of the Aristotelian vis cogitativa, i.e., of the ‘sensorial-emotional’ soul (and not of the ‘intellectual’ one) all the stages of this process were understood as intense emotional, physical or meditational states, especially inventio.51 47 48 49 50 51 Cicero, De Inventione, I, VII, 9 (Loeb edition, English transl. by H. M. Hubbel, p. 19). Commentariorum rhetoricorum, sive oratoriarum institutionum libri sex. In tertia hac editio castigati, atque aucti, ut novum opus videri possint (Lugduni Batavorum: ex officina Ioannis Maire, 1630 [reprint Kronberg 1974]), cap. 2, I, p. 7. On the transformations in the teaching of rhetoric, see J. Knape, ‘Die Stellung der memoria in der frühneuzeitlichen Rhetoriktheorie’, in: Ars memorativa. Zur kulturgeschichtlichen Bedeutung der Gedächtniskunst 1400-1750, ed. J. J. Berns & W. Neuber (Tübingen 1993), pp. 274-85. In this context, instead of originality and novelty, authenticity might have been another sensitive issue. See for example Erasmus’ accusations of plagiarism: A. Wesseling, ‘Erasmus and Plagiarism’, in: Erasmus and the Renaissance Republic of Letters, ed. S. Ryle (Turnhout 2014), pp. 203-14. On the large-scale compilations in the Renaissance: A. Blair, Too much to know: managing scholarly information before the Modern Age (New Haven 2010). Carruthers, op. cit. (n. 20), pp. 34, 213, 243. The author explains that ‘… much of the process of literary composition was expected to occur mentally, in mature authors, according to a well-defined method that had postures, settings, equipment, and products all its own. The drafts that resulted were designated by different names, which do vary a bit according to the particular writer, but each of which denotes a fairly well defined stage of composition. These are, first, invention, taught as a wholly mental process of searching one’s inventory. It involves recollection primarily, and occurs with postures and in settings that are also signals of meditatio; indeed, it is best to think of invention as a meditational activity […]’ (Carruthers, op. cit. (n. 20), pp. 194-5). ‘In practice, invention was an intensely emotional state, more so than we now associate with thinking’ (Carruthers, op. cit. (n. 20), p. 199; see pp. 200-2. The physical accompaniments described in the medieval accounts of composition analyzed by Carruthers abound in early modern jurists’ prefaces and orations on the teaching and study of law. Quærendo 47 (2017) 252-277 268 Varela Although the other types of auctores have not worked in vain and have contributed to the respublica litteraria, the ones belonging to the fifth kind should precede the rest, according to Voet. Differently from the majority of auctores, this kind has all the important qualities: labor, auctoritas, ingenium and iudicium (work, authority, intelligence and discernment).52 Labeus is his only example of a primus inventor, although he neither creates nor invents anything, in the modern sense: he is the one who brings to light pre-existing arguments, solutions and loci, previously lost or forgotten in the legal tradition. Seen retrospectively, Voet’s descriptions seem closer to St. Bonaventure’s medieval nomenclature than to modern understandings of authorship. One century later, Samuel Johnson would set a neat distinction between author and compiler.53 In the field of law, old forms of ‘free’ textual borrowings dominated the adaptations, compilations and translations of legal books until the end of the nineteenth century.54 Together with other concepts, such as collectio, compositio and cogitatio, inventio played a central role in the early modern learned lexicon. It is clear that Voet used all of them deliberately in his taxonomy of authorship in jurisprudence, but why does he develop this kind of argument in his famous juridical essay, De usu iuris civilis et canonici in Belgio unito? What is the role of the ‘auctor/editor-argument’ in his work? What were Voet’s motivations in developing the ‘auctor-argument’? Voet as an Auctor: The Quarrel with Samuel Des Marets It is possible that he wrote his pages on authorship to defend himself against the suspicions regarding his own attitudes as a writer, such as the allegations of Samuel Des Marets (Desmarets, Maresius) (1599-1673). Des Marets, theologian 52 53 54 ‘Et suadet Ratio, maximam illis deberi gratiam, qui talem in modum reipublicae litterariae consulunt; eosque caeteris omnibus, licet non inutilem operam navantibus, esse anteponendos. Cum enim alii laborem, auctoritatem alii, ingenium alii, judicium alii ad scribendum adducant; hi postremi, et laborem, et auctoritatem, et ingenium, et judicium in commune conferunt’ (Voet, op. cit. [n. 7], p. 12). Author, according to Johnson, was: ‘1. The first beginner or mover of any thing; he to whom any thing owes its original. […] 2. The efficient; he that effects or produces any thing. […] 3. The first writer of any thing; distinct from the translator or compiler […] 4. A writer in general’ (A Dictionary of the English Language: In which the Words are deduced from their Originals, and illustrated in their different significations by Examples … London: W. Strahan for J. and P. Knapton etc., 1755). Beck Varela, op. cit. (n. 37), chapter 6. Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 269 and rector of the University of Groningen, was a public adversary of Voet’s father, although they shared the same Calvinist faith.55 In 1657, Des Marets published a virulent preface to a work on usury, accusing Gisbertus Voet of being the real author of theological and philosophical works printed under his son Paul’s name.56 The controversy between them was not new: ten years before, in 1646, three pieces addressed to Des Marets, in the midst of the polemic on Carthesianism and defending Gisbertus’ positions, were attributed to Paul, even if not all of them showed his name on the frontispieces.57 Due to these renewed charges—Paul affirms—he decided to insert an Appendix apologetica, written as a response to Des Marets and printed at the end of his De usu iuris civilis et canonici (pp. 258-99). Probably motivated by rumours was not only this Appendix, but also the opening chapter on authorship, as well as his preface, stressing the essential virtues of ingenium and iudicium in the literary task (prefaces and other paratexts were usually printed last). Similarly, other passages throughout his work might have also been inspired by Des Marets’ malicious accusations.58 In the preface of his Prima Philosophia Reformata, printed also in 1657, Voet dedicated many pages to reacting to Des Marets’ defamations.59 55 56 57 58 59 Des Marets seems to have reconciled with Gisbertus Voet after a dispute with Alting (a Cocceio-Cartesian supporter), where he defended the perils of Cartesianism (Israel, op. cit., [n. 9], pp. 586, 896). See Praefatio ad lectorem, De famosa, maledica et sycophantica Praefatione Voetiana nupera ad librum qui inscribitur Prima Philosophia Reformata, in Amplissimi, consultissimi et eruditissimi cujusdam viri considerationes erotematicae circa foenus trapeziticum, cum Samueli Maresii S.S. Th. Doctoris et Professoris, Brevi et sincera ad eas responsione. Praemittitur ejusdem Praefatio, de famosa praefatione nuper admodum praefixa libro cui inscribitur Nova philosophia reformata (Groningae: typis Francisci Bronchorstii, Civitatis Groninganae Ordin. Typogr., 1657). D. Nauta, Samuel Maresius (Amsterdam 1935); on the polemic pp. 249-54 (see the bibliographical references in Ahsmann-Feenstra, op. cit., [n. 11], nos. 384-6). Voet suggests that ‘even a son could correct his father’ if his reasoning was true, in a chapter dedicated to proving that the elderly should not be followed only because of their age (caput IV, Ostenditur, non omne, quod plerisque placet, aut aetate provectioribus, esse amplectendum, pp. 79-84; p. 83). ‘Verum non est […] quod meus Parens revera sit Author Theologiae Naturalis Reformatae, a me editae. Quinimo Parens nec particeps, nec conscius eorum, quae Mea Theologia Naturali Reformata continentur. Sciebat quidem, eam sub praelo sudare: veruntamen quid ea comprehenderetur, prorsus ignorabat; multo magis ea, quae in D. Maresium a me scribebantur. […]’, Praefatio, in Pauli Voet, Gisb. F. Juris in Academia Vltrajectina Antecessoris, Prima Philosophia Reformata (Trajecti Ad Rhenum, Ex Officina Johannis a Quærendo 47 (2017) 252-277 270 Varela In any case, the hundreds of prefaces and responses produced in the context of such quarrels offer us interesting sources about the ‘unprecedented scrutiny’ on plagiarism and other forms of textual appropriation which characterize the early modern era, as Paulina Kewes has pointed out.60 Nevertheless, Voet, as another victim of this ‘unprecedented scrutiny’, did not only have personal reasons to develop his views on this topic. He also made use of a systematic treatment of the notion of auctor as an additional argument in the ongoing dispute on the validity of canon law in the United Provinces. Auctores, Collectores, Relatores: Voet and the Dispute on Canon Law The main goal of De usu iuris civilis et canonici in Belgio unito was to deny that canon law was binding in the various provinces of the Dutch Federation.61 The debate on the validity of canon law was a sort of ‘trending topic’ by that time. Several Protestant jurists of the previous century, such as Alberico Gentile, François Hotman or Giulio Pace, had put it into question. In this context, one of their favorite targets was Gratian’s Decretum, the authority of which had been under dispute since the Middle Ages.62 Adopting this view, Voet presented the exclusion of canon law as a logical consequence in his narrative of the birth of the Belgian Federation, founded after the liberation from the ‘Hispanic tyranny’ and the ‘papal sect’ (ejurata Tyrannide Hispanica, ejurata Papali factione).63 He was writing against some widespread ideas of the time, such as Hugo Grotius’ defense of provincial sovereignty in the Dutch Federation, which implied the overturning of the National Synod of Dordrecht, and the whole concept of a public Church, maintained by the Union, with the 60 61 62 63 Waesberge, Bibliopolæ, 1657). One year earlier, in 1656, Voet had published his Theologia naturalis reformata (Ahsmann-Feenstra, op. cit. [n. 11], nos. 397-8). Kewes, op. cit. (n. 2), p. 5. Diderot’s definition of author in the Encyclopédie offers another example of this kind of ‘anxiety’ towards the identification of textual borrowings and originality (n. 30). ‘Ex nonnullorum sensu videntur canones in nostris Provinciis juris auctoritatem obtinere. […] Jus Canonicum in foederatis Provinciis vim legis non habere’ (Voet, op. cit., [ n. 7] p. 89). The Protestant jurists were especially interested in exploring the long history of criticism on Gratian’s Decretum, from Richard de Bury’s Philobiblion to Bartolomeo Cipolla and the famous critical notes by Felino Sandeo in the fifteenth century. For a synthesis, see G. Panciroli, De claris legum interpretibus libri quatuor (Venetiis 1655), pp. 405-6. Voet, op. cit. (n. 7), p. 88. Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 271 Catholic Church suppressed on a common basis, throughout the provinces and Generality Lands.64 Voet criticized also the custom of granting the title of doctor iuris utriusque, which was still in use in the Dutch universities, even though there were no faculties of canon law anymore.65 His theses were far from being pacific in those convulsive times. Cyprianus Regnerus van Oosterga (1614-87), for example, in the sixth volume of his Censura Belgica, published in 1669, had defended the force of canon law in Belgium. He had written a dissertation on the same topic in 1644, besides several pamphlets against Gisbertus Voet’s position concerning the dispute on the five chapters of Utrecht.66 But if Voet’s main concern was the refuting of the enforcement of canon law in the United Provinces as well as the defense of the ius civile against its attackers, such as Regnerus,67 why does he start with the notions of auctor and editor? The notions of auctor and editor, and the set of virtues implied in the early modern ethics of writing, helped him to attribute righteousness to civil law, 64 65 66 67 Israel, op. cit. (n. 9), p. 603. On the particularism and the political and religious conflicts between the various provinces in the Dutch republic, see J. L. Price, The Dutch Republic in the Seventeenth Century (London 1998), especially chapters 3-4; and ibid., Holland and the Dutch Republic in the Seventeenth Century: The Politics of Particularism (Oxford 1994). Voet, op. cit. (n. 7), pp. 239 ff. Both Feenstra, op. cit. (n. 13) and Witte Jr., op. cit. (n. 12) provide good overviews on the disputes concerning the validity of canon law in the seventeenth century Dutch Republic. On the teaching of canon law in Dutch universities see also: M. Ahsmann, ‘Teaching the Ius Hodiernum: Legal Education of Advocates in the Northern Netherlands (1575-1800)’, Tijdschrift voor Rechtsgeschiedenis, 65 (1997), pp. 42357; and Collegium und Kolleg. Der juristische Unterricht an der Universität Leiden 1575-1630 unter besonderer Berücksichtigung der Disputationen (Frankfurt am Main 2000), p. 97, n. 44 (on the teaching of canon law in Leiden in the frame of the disputationes). Feenstra, op. cit. (n. 13), p. 129 (see n. 12, 13). In his Inleydinge tot de Hollantsche rechtsgeleertheit (1631), Grotius had reproduced the most favorable position regarding the reception of canon law, quoting Neostadius’ compilation of the local courts’ decisions: ‘But as the Roman laws, especially those which were compiled in the time of the Emperor Justinian, have been found by the learned to be full of wisdom and equity, they were first followed as examples of wisdom and equity, and in process of time, through custom, were adopted as laws. In like manner it has subsequently happened that certain matters based on still superior equity, (having been adopted by a great part of Christendom and having very improperly obtained the appellation of Canon or Ecclesiastical Law,) have obtained in this country the force of law.’ The Introduction to Dutch Jurisprudence of Hugo Grotius, now first rendered into English by Charles Herbert […] (London 1845), p. 11. Voet, op. cit. (n. 7), p. 224. Quærendo 47 (2017) 252-277 272 Varela and iniquity and confusion to canon law. Dividing his discourse according to the traditional scheme of formal, material and final reasons (ratione formae, ratione materiae, ratione finis),68 Voet used a systematic treatment of the notion of auctor to construct consistent formal reasons against the validity of canon law. First, he asked if canon law had been received and approved (receptum et adprobatum) and then if it was just and according to reason (ut aequum est, et rationi per omnia consentaneum). From the beginning, his answers to these questions were categorically negative.69 Concerning the defense of ius civile, it is patent that when he brought examples of skillfulness in deleting, adding or adapting the texts, by explaining the three last categories of auctores, he was always quoting Roman texts or their authorities, such as Labeus or Justinian. Throughout the following pages of De usu iuris civilis et canonici, the allusions to primus inventor and to inventa, referring to what had been found and written for the common utility (pro communi utilitate inventa scriptaque), were connected with the Roman legal sources and not with those of canon law.70 Labeus, a legendary authority, is the only example quoted in his fifth category, based on the notion of primum invenire in law. On the contrary, when Voet considers canon law, he seems to be carefully applying the notion of collectio (or compilatio, both as inferior phases of compositio), as defined in the first chapter, to diminish the work of the monk Gratian. Thus, in Voet’s words, Gratian’s Decretum was the kind of work which consisted simply in putting together in one volume (in unum volumen congerunt) what had been said and dictated (dicta et dictata) ‘a thousand times’ by others, without changing or adding anything besides the compilation itself (nihil de suo praeter compilationem adjicientes), without discernment or intelligence, without ‘digesting’ correctly the readings (nec ingenio nec judicio recte, quae legunt, digerunt). Gratian would be one of the materiarum collectores, belonging to the first and least recommendable category of makers of legal books, formed by those who are improperly named their auctores. In these terms, deconstructing the Corpus iuris canonici as an authoritative text, Voet 68 69 70 Voet, op. cit. (n. 7), pp. 131-42. ‘Aut enim jus Canonicum in Foro nostro observaretur, ut Canonicum, et (ut Philosophico utar termino) formaliter consideratum; aut 2. ut vel quondam, vel jam receptum et adprobatum est; aut 3. ut aequum est, et rationi per omnia consentaneum. Verum neque illo, neque isto, neque hoc modo locum in Foro tenet. Itaque nullo prorsus modo’ (Voet, id., p. 119). Voet, op. cit. (n. 7), p. 204 (except, for example, when he refers to the ecclesiastic benefices and the patronate as ‘juris canonici inventa’, which are enforceable because of their reception by the Synod of Dordrecht of 1619). Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 273 attacks Gratian primarily as an auctor, who had produced a work full of errors. It is not right (aequum), he says, that the contents collected without discernment (sine judicio collegit) by Gratian, a private doctor, could enjoy any form of legal authority.71 He evokes a famous sentence of Alberico Gentile, playing with the words auctor and relator, i.e., a mere reporter or narrator, someone who is simply referring to or bringing something up: Moreover, since what the Decretum contains are not laws, Gratian, as a Master, could not make them into laws. The ones, which are not laws for their auctor, could not thus become laws for Gratian as their relator.72 After diminishing the authority of the Decretum, Voet alluded to other canon law texts also as collections and compilations, although in less pejorative terms. Specifically, the Liber Sextus73 and Gregory IX’s Decretals: Voet referred to the Pope as ‘Gregorius, auctor hujus collectionis’ and to Raymund of Penyafort as the collector of the Decretals. The Decretals are not as bad as the Decretum, though, since Penyafort had eliminated some superfluous passages (resecatis superfluis) and since they contained much of the ius civile.74 Nevertheless, Voet insisted, it was preferable to consult directly the ‘pure’ Roman sources instead of the ‘Canonistarum lacunas’ (canonists’ gaps).75 71 72 73 74 75 ‘Et quidem Decretum ab Innocentio III Corpus decretorum, appellatum (…) per Gratianum, Monachum sancti Felicis de Bononia collectum, multiplicis generis dicta continet; Legumlatorum, Ecclesiae Doctorum, ut et Pontificum, Conciliorum, ipsius Gratiani et Palae. Quae omnia, ut sine judicio collegit Gratianus, non intellectos a se Autores citando, et quae autorum non sunt allegando: ita multorum incurrit reprehensionem (…) Quo etiam nomine factum est, ut apud paucissimos dicta Gratiani habuerint vim legis. Neque enim aequum videbatur, ut quod a privato Doctore, et quidem sine judicio, collectum esset, juris niteretur auctoritate’ (Voet, op. cit. (n. 7), pp. 95-6) (The italics are mine.). ‘Accedit, quod cum, quae Decreto continentur, non sint leges, non potuerit Gratianus, ut Magister, eas facere leges. Neque enim, quae leges non sunt apud auctorem, leges erunt apud Gratianum relatorem’ (Voet, op. cit. (n. 7), p. 96). ‘Sequitur tertia juris Canonici pars, qui Decretalium Sextus est appellatus; non tam quod a Sexto quopiam Pontifice esset collectus: quam forte, quod esse sexta Decretalium compilatio […] vel, si mavis, quod esset sextus liber, quinque Decretalibus Gregorii superaddictus’ (Voet, op. cit. (n. 7), p. 99). ‘Decretalia […] nihil aliud sunt, quam Epistolae, Rescripta atque Edicta Pontificum Romanorum, jussu Gregorii IX […] per Raymundum ejusdem Pontificis Capellanum et poenitentiarium, in unum volumen, resecatis superfluis, collecta’ (Voet, op. cit. (n. 7), pp. 154-5; the passage transcribed here on p. 99; quoting A. Gentile). Voet, op. cit. (n. 7), p. 154. ‘Lacuna’, however, means both gap or void and a ditch (‘a place where water collects’, according to Lewis and Short’s Latin dictionary). Quærendo 47 (2017) 252-277 274 Varela In sum, as a result of an unskilled, lazy (ignavus) preparation, the body of canon law contains ridiculous absurdities, obvious contradictions and dispositions of extreme injustice and impiety (ridiculae absurditates, manifestissimae contradictiones, summa injustitia atque impietas). Quoting François Hotman, he offered a full list of errors, touching various topics such as the concubines of the priests, the consanguinity impediments, the Eucharist and various ‘ridiculous’ sentences.76 Even though they appear to be mere exaggerations of his baroque style, these arguments actually belong to one of the fundamental steps of his logical demonstration: they consist of ‘formal’ reasons against the validity of canon law (according to the previously mentioned traditional scholar scheme of formal, material and final reasons).77 Thus, all these formal literary deficiencies of canon law were not mere adornments in his discourse. On the contrary, Voet links this apparently ‘literary’ argumentation with another transcendent element: that of the injustice and impiety (summa injustitia atque impietas) of the canon law dispositions.78 According to the categories used by the jurists to explain the establishment of the law and the acts of jurisdiction (exposed meticulously in the commentaries to the corresponding chapters of the Digest and the Codex, which were familiar to every educated lawyer), impietas was the only cause to sustain the suppression of a norm. As Vallejo clarifies, every norm, every decision of the magistrates and authorities entitled with the power (imperium) to declare the law (iurisdictio), had to reflect a previous aequitas, a divine order and justice. The act of ius dicere meant to declare what was right and consisted of turning into aequitas constituta what originally was ruda aequitas, i.e., what existed in a pure form in an eternal, divine and transcendental order of justice. For this reason, the acknowledgement of an unjust norm and its necessary abrogation was especially sensitive for the medieval jurists, since it implied that a rule against the divine precepts had existed for a certain time and had thus determined human action against the divine precepts (this is why they wrote of derogatio odiosa, hateful derogation).79 76 77 78 79 Voet, op. cit. (n. 7), pp. 133-8. Voet, op. cit. (n. 7), pp. 131-42. It has connections with more elaborated discussions regarding the notion of order in law, especially since the Humanists, who offered excellent arguments to exclude Gratian. See I. Birocchi, Alla ricerca dell’ordine. Fonti e cultura giuridica nell’età moderna (Turin 2002). Vallejo, op. cit. (n. 17), pp. 315-7. Another seminal study on this topic is Pietro Costa, Iurisdictio. Semantica del potere politico nella pubblicistica medievale (1100-1433) (Milano 1969, repr. 2002). Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 275 The proof of impiety, though—with recourse to the ‘auctor-argument’— allowed Voet to go a step further in his reasoning: this was the step of comprobatio and adprobatio, mentioned in his second category of iuris auctores. Gratian, besides being a bad materiarum collector, was a mere professor (magister), a mere relator, who lacked the prerogative of declaring the law (potestas iuris dicendi). Voet connected this prerogative of potestas iuris dicendi with his second category of auctores, to affirm that Gratian lacked auctoritas.80 It was not reasonable that his sayings were considered a source of law. Even what a supreme authority says without the intention of founding new law (animo condendi iuris) should not be enforceable.81 In one passage, Voet refers again to the Institutes of Justinian, quoted in his first chapter: analogously to Gratian’s Decretum, the Institutes were also collected by private doctors (Tribonian, Theophilus, Dorotheus), but thanks to Justinian’s supreme authority they were confirmed (the key term is once again comprobare) and thus they could have force of law (vim legis habere).82 Justinian’s auctoritas was also determining in establishing the only four church councils forming the old canon law, according to Voet: the councils of Nicaea, Constantinople, Ephesus and Calchedon in late antiquity. Their cogency was due exclusively to the emperor’s authority.83 Conclusions A thorough understanding of Paul Voet’s legal reasoning would require a more detailed analysis of other related topics, such as the notions of lex, jurisdiction, sovereignty and the debate on the validity of canon law in Protestant lands. However, this is not the aim of this brief essay, focused on the idea of authorship in his work. 80 81 82 83 See n. 71. ‘Et si non, quicquid Princeps eloquitur, nisi animo condendi juris eloquatur; habeat vim legis, multo minus Patrum dicta, quae ipsi noluerunt esse jura, vim legis consequentur. Neque etiam canones Conciliorum, neque Pontificum decreta, neque ipsius Gratiani, ullam merentur auctoritatem, nisi quantum Ratione nituntur’ (Voet, op. cit., [n. 7] p. 97). ‘Tribonianus, una cum Theophilo atque Dorotheo, consensu Justiniani Imperatoris quatuor Institutionum libros in unum collegit. Neque tamen illa collectio, quia a privatis facta, ullam habebat auctoritatem, antequam ei robur Constitutionum Imperator accommodasset. Ita etiam Canones ecclesiastici, et per consequentiam totum jus Canonicum, in Provincis nostris, vel ante Reformationem, vel stante Reformatione, constitutionum robur non habuerunt, aut jam habent, antequam sint recepti. Neque aliter vim juris obtinent, nisi in quantum fuerunt ac jam sunt acceptati et comprobati’ (Voet, op. cit. [n. 7], p. 150). See footnote no. 23 on Tribonian as a compiler. Voet, op. cit. (n. 7), p. 94. Quærendo 47 (2017) 252-277 276 Varela Voet’s pages offer us strong evidence of how increasing ‘cultural concern’ about plagiarism and other forms of illegitimate textual composing expanded in the various fields of knowledge, helping to reshape the various textual traditions and their sets of tropes, topics and authorities. Echoing other Protestant writers, Voet contributed to building, retrospectively, a negative reputation for certain auctores, such as Gratian, whose ‘expulsion’ from the legal written tradition was being required. His taxonomy of auctores helped him to define his particular view of the main texts and authorities of the legal tradition, in a time of severe political and juridical controversies. It relied, on the one hand, on the common vocabulary of medieval and early modern rhetoric, dominated by the notions of collection, compilation and invention and their connections with a preexisting tradition, far removed from our modern understanding of authorship as an act of original creation. Law itself was not conceived as an act of creation: its production was seen as an act of declaration, selection and arrangement of materials inside a pre-established tradition. This general framework oriented both the compilations of norms promulgated by sovereigns and the commentaries written by the jurists. On the other hand, Voet’s taxonomy relied on a solid juridical notion: that of comprobatio as an expression of auctoritas. The one who approves is also auctor, according to his second category: this was another relevant step in diminishing the authority of Gratian, the founding father of canon law. Voet’s taxonomy displays also the flexibility of the notion of auctor in the early modern republic of letters. Subject to negotiation and renegotiation, the very definition of auctor was discussed in prefaces, public disputes and epistles, and served manifold purposes in the various fields of knowledge in the early modern times. The act of publishing a new piece of work was seen as a challenge in the context of the undesired librorum multitudo, which was negatively affecting the world of jurisprudence according to many critical voices. Early modern lawyers had to continuously justify their ‘audacity’ in multiplying the number of existing books. They did so by appealing to ‘Christian virtues’ (for example, denying the sins of vanity and search of fame, describing their physical and emotional sacrifice during the act of composing, etc.) and by mentioning standards such as utility, order and skillfulness in the selection of materials offered to the public. As late as in the nineteenth century, similar rhetoric practices abounded in the introductory pages, footnotes and book reviews of legal writings. Voet’s legal auctor was one of the necessary elements in reconstructing the legal tradition, which saw in Gratian one of its authorities. To rewrite the history of jurisprudence was, obviously, a political choice, which implied profound political effects: it meant nothing less than to support the construction of the Quærendo 47 (2017) 252-277 Authorship in Early Modern Jurisprudence 277 Dutch Reformed Church and a new form of political sovereignty in the early Republic. It meant to write against those who, like Grotius, supported certain forms of provincial sovereignty (and its logical consequence: a partial maintenance of the plurality of legal sources and jurisdictions, such as canon law). Voet’s arguments against Gratian and canon law were well known in the seventeenth century, but their connection with a systematic treatment of the notion of auctor was certainly new. Beyond a mere literary aspect, this new approach contributed to enriching and to redesigning the debate on canon law, attaching it to the growing concern about plagiarism and the various forms of illegitimate authorship in the early modern respublica iurisconsultorum. Quærendo 47 (2017) 252-277