wild oversimplification, precept in canon law has two basic meanings that have a vague family resemblance, but neither of which does much to clarify the other. On the one hand, there is praeceptum as commandment, the term used in Latin for the Decalogue, a permanent element of divine law. On the other hand, there is precept in the sense of a procedural device, which may or may not be or become a permanent order. While the second has elements, sometimes strong elements, of the first, the first may have nothing at all to do with the second. That precepts have in modern canon law become almost (but not quite) exclusively penal, a permanent sentence handed down in the wake of an infraction, further helps set up the expectation that they always meant more nearly commandment than a possibly temporary maneuver without moral content. Precept belongs in a complicated conceptual field, stretching from mandates to sentences, from citation to monitions, the meanings of which shift depending where and in what kind of process they appear. In order to understand Galileo’s precept, we shall have to try to define it as well as may be in a constantly changing relationship to these ideas and others. It helps to conceive of precept as a dialectical term, stretching from permanent to temporary and from utterly authoritative command to mere procedural device.
Although precepts of various kinds and with various meanings appear fairly frequently in one of the principal sources of canon law, Justinian’s Code, Roman jurists and their medieval civilian successors never gave much systematic attention to them. The most important postglossators, especially Azo and Accursius, said nothing, and their later medieval successors barely mentioned them. A survey of the commentaries of three representative and, in their day, highly regarded civilians, Bartolo Da Sassoferrato (1313–1357), Paolo Da Castro († 1441), and Giason Del Maino (about a half-century later) produces almost no results. Of the approximately eighty-five places in the Digest and Code on which the three might have seized, Bartolo discussed by far the most, while Paolo and Giason commented on only three or four each.26 All three treated precepts as a procedural issue, reducing them almost entirely to those issued by trial judges. For our purposes, Bartolo’s most important passage draws on his contemporary Cino da Pistoia (1270–1336/37) who, according to Pietro D’Ancarano, created an important distinction between “a precept, a decree, and a definitive or interlocutory sentence.” The first was implicitly parallel to the last and came before a case proceeded to litis contestatio, the formal laying of claim and counterclaim in a civil suit or of charges in a criminal trial. Pietro further defined an interlocutory sentence as one made by a judge ex officio and incidental to a case.27 Bartolo agreed, calling such a precept an “interlocutory sentence,” that is, a temporary, procedural, or administrative move.28 Bartolo also maintained that a judge’s precept lasted until he was removed from office unless it was against public utility; two additiones possibly misinterpreted Bartolo as arguing against the opinion that assimilated such a precept to a mandate that expired with the mandater’s death and therefore implicitly said he thought a judge’s precept was permanent. In support, the author of the second additio cited the canonist Panormitanus (Niccolò De’ Tudeschi).29 Bartolo argued that a precept issued without regard to due process (ordo iudiciarius), especially causa cognitionis and citation, could be revoked.30 He also raised the possibility that a precept “has the force of a certain citation,” although he appeared to reject it in the case of an order to pay issued before sentence.31 Lanfranco Da Oriano († 1488), a professor at Padua, agreed, asking whether a precept was valid “without a precedent citation” (nulla praecedente citatione) and replied that it was not, citing as proof God’s citation of Adam.32
Paolo and Giason largely agreed with Bartolo, usually likening a judge’s precept to an interlocutory sentence. As Paolo put the point succinctly, “a judge’s precept is not a definitive but [rather] interlocutory sentence.”33 They also tried on the one hand to distinguish them from citations, consilia (advice or legal opinions) and other judicial actions, and on the other to assimilate them to concepts like mandate.34 In fact, Paolo defined a mandate issued by a superior “with power” as a precept.35 Paolo nearly followed Bartolo when he argued that a precept, specifically to pay, could not initiate ordinary judicial process.36 Giason in addition discussed precepts as expressing a testator’s wishes, probably the most common use in Justinian’s law book but irrelevant here. The only significant point in his discussion is that he [mis]quoted a canonist, Francesco Zabarella, on a precept’s binding force while correctly citing Guido de Baysio’s triad of consilium-mandatum-praeceptum (see below).37 Although it is impossible to predict where a given legist or canonist might choose to comment on a particular term and I cannot pretend to have read all twenty volumes of these two commentaries, that the canonists picked up this handful of citations but little else from either author suggests that this is the sum total of what they said.38
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