Encyclopædia Britannica, Ninth Edition/Canon Law
CANON LAW. The law that is embodied in the Corpus Juris Canonici is termed the Canon Law. The rules enacted by the early church for its relations with the secular power, its own internal administration, or the con duct of its members, were called canons (/cavdves, regulce), in contradistinction on the one hand to its articles of doctrine (So y/j.a.Ta), and on the other to the enactments of the civil lawgiver (vo/j-oi, leges). Though at first applied only to the ordinances of an assembly of the church, the term canon came to be extended to include opinions of the fathers and decretals of the popes. Any collection of such laws was styled Jus Canonicum, a name which, ultimately came to be confined to the collection KO.T e^o^v, the Corpus Juris Canonici. Canon law must not be confounded with ecclesi astical law (Jus Jlcclesiasticum). The former has the church for its source ; the latter has the church for its subject. During the growth of the canon law the church extended her influence into all departments of life. Churchmen filled high offices of state and performed the duties of practical lawyers, while prelates often exercised civil jurisdiction over a considerable tract of country. Hence the legislation of the church embraced many subjects which properly belonged to the domain of muni cipal law. Ecclesiastical law on the other hand derives its binding authority solely from the state, and treats of the church as a religious institution. But its principles cannot be properly understood without a knowledge of the canon law, on which it is largely based.
I. Early History.—The earliest body known to us of purely church law is the spurious work called the Apostolic Constitutions (StSao-KuAto. rwv aTrocrroAwi , Constitutiones Aposlolorum), which originated in Syria. Its eight books, of which the first six date from the end of the 3d century, and the two remaining ones from the first quarter of the 4th century, contain a variety of moral and liturgical pre cepts, and regulations on ecclesiastical discipline, bearing to proceed from the apostles themselves. As a supplement to the eighth book there appeared also in Syria, about the beginning of the Gth century, a collection of eighty-five disciplinary regulations under the name of the Apostolic Canons (icai di/es TWV uTroo-ToAcov, Canones A postolorum) . The Council in Trullo (692) sanctioned the Constitutions as law for the Greek Church, but rejected the Canons. The Latin Church adopted neither, but subsequently fifty of the Canons found their way into the Western collec tions. Though not what they profess to be, these writ ings are instructive on early ecclesiastical usages and dis cipline.
Donaldson for Clark s Antc-Nicene Christian Library, Edinr. 1870; Ueltzen, Constitutiones Apostolicce (Greek text), Suerini, 1853; The Apostolical Canons, in Greek, Latin, and English, with notes, edited and translated by the Kev. Thos. ilacXally, London, 1867; Bunsen,Aiialccta Antcnicccna, London, 1854, vol. ii.;.
In the 4th and 5th centuries collections which have not come down to u.s were made of the canons of the Eastern councils of Antioch, Ancyra, Neocaesarea, Nicsea, Sardica, Gangra, Laodicsea, Ephesus, Constantinople, and Chalce- don. (See the Codex Canonum Ecclesice Universal of Justellus, Paris, 1G10.) Joannes Scholasticus, patriarch of Constantinople in the reign of Justinian (564), reduced these and other canons into a systematic work divided into fifty books. A little later this was digested with corre sponding fragments of the civil law relating to ecclesiastical affairs into a code called, from its combination of civil and ecclesiastical enactments, a Nomocanon. Of later compila tions of the same description the most widely-known was the Nomocanon of the patriarch Photius (883). A most important consolidation of Greek canon law was effected in the year 692 by the labours of the Council in Trullo (Concilium Trullanum, from Trullus, the hall in the imperial palace at Constantinople in which they sat, also called Concilium Quinisextum, from its being considered supplementary to the 5th and 6th general councils). They drew up an authoritative list of the subsisting laws of the church, comprising the Apostolic Canons, the canons of the ten councils mentioned above, those of several synods held at Carthage, and one at Constantinople (394), and the decisions of twelve Eastern patriarchs and prelates from the 3d to the 5th century. They added 102 canons of their own, and this code, with the addition of 22 canons of the Seventh (Ecumenical Council held at Kicaa in 787, was the leading authority in the Greek Church till the middle of the 9th century. (For the later ecclesiastical literature of the East see Zacharioe, llistorce Juris Grceco- Komani Delineatio, Heidelberg, 1839: and Mortreuil, Histoire du Droit Byeantin, Paris, 1843-46).
Translations from the Greek collections gradually came into circulation among the Western clergy. The best known are two that date from the 5th century, the Versio Isidoriana, originating in Spain, and the so-called Prisca (sc. Canonum Translatio), which came from Italy. The Latin Church was thus enabled to add to the canons of African, Italian, French, and Spanish provincial councils those of the ecumenical councils of Nice, Constantinople, and Chalcedon, and of numerous Oriental synods. About the same time a new source of church law rose into import ance in the letters addressed by the popes to the bishops of the various dioceses in answer to requests for advice on points of ecclesiastical management. Such letters were called epistolce decretales, or shortly decretales, sometimes constitutor decretalia or dccretalia. Being communicated by the bishops to whom they were addressed to the neighbour ing dioceses they ruled similar cases occurring there. They were regarded as of equal authority with the canons of councils, and soon proved the most prolific source of canon law.
Both classes of material contributed to the collection formed (in two separate parts afterwards conjoined) about the beginning of the 6th century by a learned Scythian monk Dionysius, surnamed Ejciyuus from the epithet he modestly applies to himself in the preface. The first part contains a translation of the Apostolic Canons, and of the canons of the councils of Nice, Ancyra, Neocjxsarea, Gangra, Antioch, Laodicaea, and Constantinople, those of Chalcedon and Sariica in the original Latin, and the acts of the synod of Carthage (419) and other African synods. The second part is made up of papal decretals from Pope Siricius (385) to Anastasius II. (498), arranged in chronological order. Though never formally authorized, this collection, from its clear arrangement, the fidelity of its translations from the Greek, and the general authenticity of its contents, obtained speedy acceptance, and long maintained its ground against later compilations.
Franc. Pithceus, Paris, 1687, fol. A copy of it, containing some additional matter, and known as the CoUcdio Dionyso-Hadriana, was presented to Charlemagne during his first visit to Rome in 774 by Pope Hadrian I., and was sanctioned by the synod of Aix-la- Chapelle (802) as the codex canonum for the Frankish empire. A collection of 232 African canons may also be mentioned, called the Brcviatio Canonum, published by the Carthaginian deacon, Fulgen- tius Ferrandus, about the year 547. It formed the basis of the Con- cordia Canonum, a more complete work, by the African bishop Cres- conius (690). A similar collection had been made about 580 by theSpanish bishop Martin of Braga (Martinus Bracarensis).
In Spain a large body of law had accumulated in the canons of the numerous councils which followed that of Elvira (305), the earliest known to us. A collection of native and foreign canons was in circulation there in the Gth century, and after being added to at various times was generally received towards the close of the next century. It was called the Hispana (sc. Collectio} from the country of its origin, and being erroneously attributed to Bishop Isidore of Seville, who died in 636, also acquired the name of Collectio Isidoriana. Like the Dionyso-lladriana it is divided into two parts, the first containing a classified series of Greek, African, French, and Spanish canons, and the second the decretals from Pope Damasus (366) to Gregory the Great (604).
The Frankish clergy used, besides the Dionyso-Hadri- ana, the original work of Dionysius Exiguus, as well as a collection of Greek and African canons, Papal decretals, imperial constitutions, &c., which was pro duced in Gaul about the beginning of the 6th century, and is known to us as Quesnel s Codex Canonum from the name of its first editor (Paris, 1675). The different ecclesiastical provinces possessed ia addition the canons of their own particular synods, and Papal decretals addressed to the bishops within their bounds ; and many Frankish prelates were in the habit of drawing up for their subordinate clergy short compendiums of canon law, in which they inserted any particular regulations the local circumstances demanded. These so-called Capitula Episco- porum are printed in vols. xiii. -xv. of Mansi s Sacrorum Conciiiorum Coilectio.
The Hispana got into circulation among the Franks in a more or less corrupt form. One edition, which appeared about the middle of the 9th century, has become celebrated in church history as the Collectio Pseudo-Isidoriana or False Decretals, Everything connected with this collection, its date, its author, its subject-matter, its purpose, has formed the subject of controversy, giving rise to a con siderable literature. We must here confine ourselves to the results of the latest criticism.
The following particulars seem to be settled. The wo^k, which is divided into three parts, was compiled by a single author, a Frankish ecclesiastic, between the years 8 40 and 860. From his styling himself in the preface fsidorus Mercator, Bishop Isidore of Seville was mistakenly supposed to be the author, and hence the name Pseudo Isidore. After the preface, and some minor apocryphal documents, the first part contains fifty of the Apostolic Canons extracted from the Ilispana, and sixty spurious decretals of the popes from Clement I (101) to Melchiades (314), chronologically arranged. The second part consists chiefly of canons taken from the Ilispana. The author has also used the latter as the substratum of the third part, but has interpolated thirty five fictitious decretals. A supple ment is appended to some of the manuscripts containing, with a few unimportant pieces, a series of brief regulations regarding processes against bishops. These are the so- called Capitula Angilramni (a bishop of Metz), which are now thought to be older than the main collection.
No suspicion attached to the Pseudo Isidore at the time of its appearance. On the contrary, it was everywhere accepted without question till Cardinal Nicolas of Cusa, in the 15th century, expressed doubts of the genuineness of some of its contents. During the next hundred years the untrustworthy nature of the book (printed by Merlin in his Concilia Generalia, Paris, 1523) was irrefragably demon, strated by the labours of Erasmus, the Magdeburg Centuriatorg, and especially the Calvinistic pastor, David Blondel. It was subjected to the fierce attacks of the Protestant Reformers, who approached the question less in a scientific spirit than with a desire to reveal the iniquities of the Church of Rome They maintained with much acrimony that the "work was a deliberate forgery, under taken by command, or at least with the connivance, of the Pope ; to exalt his temporal and spiritual power. In modern times the controversy has been carried on chiefly by lawyers, and, the theological dust having subsided, it has become easier to define the limits within which lie the only probable views as to the sources and object of the work. It is to be regretted that some symptoms have recently appeared of a revival of the former bitter feeling in con nection with the Old Catholic movement in Germany. (The Pope and the Council, by Janus, 3d. ed., London, 1870).
The idea is exploded that the False Decretals were tho invention of their author s brain, fabricated for purposes of Papal aggrandizement. Many of the apocryphal por tions (the Apostolic Canons, <fcc.) had been for centuries in circulation as genuine. Of the decretals a considerable number are authentic, though antedated and ascribed to early popes to give them the authority of antiquity, while others embody the traditional contents of actual but lost decretals. The sources from which the compiler prin cipally borrowed his materials were the Bible, the fathers, genuine canons and decretals, Roman law from the West Gothic Breviary of Alaric. the works of Rufinus and Cassiodorus on ecclesiastic?! history, and the biographies of popes in the Liber Pont ficalis. It is now admitted by Protestant writers that the compilation was produced in the interest, not of the Pope but of the bishops, in order, by protecting them from the oppression of temporal princes on the one hand and ecclesiastical councils on the other, to correct some abuses prevailing among the Franks. The tendency of the authorities collected, was to support a right of appeal to the Pope in every causa major, i.e., process where a bishop was concerned, and to make the permission of the Pope a necessary preliminary to the assembling of a provincial council. This arrangement did not really secure the independence of the episcopate. It merely shifted the supreme control from a body of men to a single individual, in accordance with the constitutional ideas of the Middle Ages.
Jt is still a matter of controversy how far the course of ecclesiastical history has been influenced by the False Decretals. On the one hand it is maintained, chiefly by Roman Catholic writers, that they effected no essential alteration on the previous constitution or discipline of the church, that they merely gave the form of enactment to the prevailing ideas of the time on church government, and that the latter would have developed in the same direction had no such compilation ever appeared. It is argued reasonably enough that if any great innovation had been introduced the genuineness of the work would not have remained so long xinchallenged. Some Protestant writers on the other hand assert that the Papal claim to absolute supremacy, over councils and hierarchy within the church and the laity without, was a pretension unknown till the 9th century, and entirely based upon the False Decretals. The truth probably lies between the two views. The influence of the Pseudo-Isidore has been greatly overrated. But it cannot be denied that the embodiment in a definite shape of the indistinct but yet perceptible tendency of church development in the 9th century was of considerable service to the popes during the struggle of the Hilde- brandine era. (The latest and best edition of the False Decretals is Decretales Pseudo- Isidoriance et Capitula Angilramni, by Hinschius, Leipsic, 1863.)
Other sources of church law prior to the Decrelum of Gratian may be mentioned. Many laws on the rights and duties of the clergy were contained in the different com pilations of Roman law (Theodosian and Justinian codes, Julian s Epitome of the Novels, and the Breviary of Alaric) and the Leges Barbarorum (especially the Lex Ripuaria Bajuvariorum and Alamannorum). Of a similar character were some of the capitularies of the Frankish kings, a collection of which in four books was made by the Abbot Ansegisus of Fontanella in 827, and officially pro mulgated. A more important collection from an eccle siastical point of view was that of Benedict, a deacon of Mainz (Benedictus Levita), who, by order of Bishop Otgar Benedictua of Mainz compiled a supplement to Ansegisus in three Levita. books about the year 850. In addition to capitularies the work comprises extracts from the above-named Roman and German sources, from the Bible, penitential-books, the fathers, and other ecclesiastical writers, as well as canons copied apparently from the Ilispana and Dicnyso-Hadriana It resembles the Pseudo- Isidore in containing much apo cryphal matter in the form of false capitularies directed to tha removal of certain grievances of the Prankish episcopate. Being circulated as a supplement to Ansegisus it gained a considerable reputation, but was never officially recog nized. The libri poenitentiales, or manuals of penance, are of importance as the foundation of the criminal branch of the canon law. The earliest ones of any note in the Western Church originated in England and Ireland, as for instance the Liber Davidis (Irish) of the 4th century, the penitential of Theodore, archbishop of Canterbury, in the 7th century, and in the 8th those of the Venerable Bede and of Egbert, archbishop of York. The Irish church - discipline was introduced among the Franks, by whom the Pcenitcntiale Cohimbani and the Canones and Judicia Cummeani (two Irish missionaries) were extensively used. (Consult Jacobson in Herzog s Real - Encyclopddie, art. " Bussbiicher.") The development of church-law was further influenced by the Ordines Komani, or books of ritual, the Ordines Judiciorum, or rules of procedure in the ecclesiastical courts, and the collections of formula or precedents used in the preparation of formal or official documents, notably the Liber Diurnus, a pontifical collection of the 8th century.
The Pseudo-Isidore continued to be the chief repertory of canon law till the time of Gratian ; but many other collections more or less corrupt, differing from the^ earlier ones in their arrangement according to systematic instead of chronological order, were made during these three centuries. It will be sufficient to name the following, as they seem to have been used by Gratian in compiling his great work : 1. A collection of the 9th century, dedicated to Archbishop Anselm (II.) of Milan (Collect Anselmo Dedicata), based mostly on the Hispana, and interesting as the first work of authority containing extracts from the Pseudo-Isidore ; 2. The Libri Duo de Synodalibus Causis et Disciplinis Ecdesiasticis of the 10th century, by Regino, abbot of the monastery of Priim in the Eiffel, drawn from Frankish and German sources; 3. The Colledarium or Decretum of Bishop Burchard of Worms, in twenty books, compiled in the llth century; The Pannormia of Bishop Ivo of Chartres, dating from the 12th century, and another work by the same author known as the Decretum ; 5. The Liber de Misericordia et Justitia of Algerus of Lie"ge, composed between 1120 and 1128.
II. The Corpus Juris Canonici.—The manuals of church law above referred to had not only become embarrassing by their number but laboured under defects that seriously impaired their practical utility. They con tained much that was obsolete and much that was con tradictory, many of them mixed up civil with church law, and their arrangement was unmethodical and cumbrous. These faults were to some extent remedied in the great collection that was formed between the middle of the 1 2th and the end of the 16th centuries, and became the recognized canon law code. The Corpus Juris Canonic/ , as it was called, consists of six portions, which may be classed under two heads, the Decretum and the Decretals.
1. The Decretum Gratiani. Up to this time canon law was regarded as a branch of theology, and was studied only the seminaries attached to cathedrals or monasteries. ratian, a Camaldolensian monk of Bologna, first taught iteration. is a separate science towards the middle of the 12th entury. The school of Roman law founded in that city thirty or forty years before by Irnerius was then flourishing, incl Gratian, living within the sphere of the new movement, secame ambitious of introducing a similar scientific cultiva- ion of canon law. He selected the whole subsisting law of the church from among the mass of canons, decretals, writings of the fathers, and ecclesiastical historians, fec., and digested it into the systematic work since called after aim the Decretum Gratiani, which soon superseded all preceding compilations. It was early known by the name of the Concordia Discordantium Canonum, from an expres sion in one of the author s notes (" auctoritatum dissonantia ad concordiam revocari") ; but whether Gratian himself made use of either name is uncertain. The work consists of three parts (paries). The first, treating of the sources of canon, law and of ecclesiastical persons and offices, is divided according to the method of Paucapalea, Gratian s pupil, into 101 distinctiones, which are subdivided into canones. The second part consists of 36 causce (cases proposed for solution), subdivided into qucestiones (the several questions raised by the case), under each of which are arranged the various canones (canons, decretals, &c.) bearing on the question. But causa xxxiii. qu&stio 3, headed Tractatus de Pcenitentia, is divided like the main part into seven distinctiones, containing each several canones. The third part, which is entitled De Cotisecratiowe, gives, in five distinctiones, the law bearing on church ritual and the sacraments. The following is the method of citation. A reference to the first part indicates the, initial words or number of the canon and the number of the distinctio, e.g., can. Propter ecclesiasticas, dist. xviii. or c. 15, d. xviii. The second part is cited by the canon, causa, and qua xtio, e.g., can. Si quis suadente, C. 17, qu. 4, or c. 29, C. xvii,qu. 4. The treatise De Pcenitentia, forming the 3d qucestio of the 33d causa of the second part, is referred to as if it were u separate work, e.g., c. Principium, D. ii. de prenit. or c. 45, D. ii. de poenit. In quoting a passage from the third part the canon and distinctio are given, e.g., c. Missar. solenn. D. I. de consecrat., or c. 12, D. I, de consecr.
The original notes appended by Gratian to many of the canons (Dicta Gratiani), though not entitled to the Dicta same weight as the text, are of great authority as emanat- Gratiani. ing from the " father of canon law." The passages headed " Palea " (about fifty in number) are supposed to be Paleoe. additions made by Gratian s pupil Paucapalea, and are of equal credit with the rest of the work. The notes in the modern editions with the prefix " corr. Rom." are by the Correctores fiomani, who published a revised text under the sanction of Pope Gregory XIII.
Gratian had included in the Decretum the Papal decretals down to the year 1139. During the following century, owing to the struggles of the popes and emperors, and the general extension of ecclesiastical jurisdictions, the pontifical constitutions increased greatly in frequency. Innocent III. alone (pater juris) is said to have published 4000 laws. These constitutions went by the name of decretales extrava gantes (i.e., extra decretum Gratiani vagantes). Of the fifteen known collections of them, five especially, which in contrast to that of Gregory IX. are called the Compilationes Antiques. Compila attained a high reputation in the schools and the courts. ^" es The Compilatio Prima, or oldest of them, is the Breviarium Extravagantium of Bishop Bernard of Pavia, which is noteworthy as the model of arrangement for all subsequent collections. It is divided into five books treating of (1) ecclesiastical officials and judges ; (2) procedure in ecclesi astical courts ; (3) rights, duties, and property of the clergy; (4) law of marriage; (5) criminal law and ecclesiastical discipline. This order is briefly summed up in the following hexameter:—
Judex, Judicium, Clems, Connubia, Crimen.
The comp. tertia and comp. quinta are the only two that received the Papal sanction.
2. The second part of the Corpus Juris Canonici is made up of the following four collections of decretals:—
(a.) Decretals of Gregory IX.—The same causes that occasioned the compilation of the Decretum induced Pope Gregory IX. to commission his chaplain, Raymond of Penna- forte (near Barcelona), formerly a professor of canon law in Bologna university (and since canonized), to digest into a code the decretals since the time of Gratian. The usual arrangement in five books was observed, and these were subdivided into tituli, consisting of capita in chronological order. It was completed in four years, and officially promulgated in 1234. Its original name was Libri extra (sc. Decretum} which was abbreviated to X. for convenience in citation, e.g., cap. 9, X. de eo qui cognovit (iv. 13), or c. 9, X. 4, 13 refers to the 4th book, title 13, chap. 9. The laws are in the form of decisions pronounced in cases submitted to the Pope from all parts of Christendom. Among these are several cases from England and Scotland. (For a list of the latter see Ecclesice Scoticance Statuta, ii. 232). Raymond, in accordance with the Pope s instruc tions, omitted such facts and other matter as he considered irrelevant to the case in hand. These so-called jxtrtes decisce (generally indicated in the text by the words " et infra" or shortly " et j.") have been restored in modern editions, since without them the law is often to us unintel ligible.
(b.) The Liber Sextus was published by Pope Boniface VIII. in 1298. It contains the decretals down to that date from the time of Gregory s collection, and acquired its name from being intended as a supplement to Gregory s five books. In one important respect it differs from the latter. Instead of a case being stated with the Papal decision thereon, abstract rules of law are laid down, extracted originally, no doubt, from actual judgments. A series of eighty-eight Regulce Juris, chiefly borrowed from Roman law, are appended to the work, having been added, it is said, by the civilian Dinus to procure its accept ance among the legistce of Bologna. In citing from the Liber Sextus it is usual to give the number of the chapter, with the abbreviation " in vi " or " in 6," the number of the book, and the number and rubric of the title, e.g., c. 1. in vi to de const. I., 2, or c. 1. de const, in 6, I. 2.
(c.) The Clementinæ.—By direction of Pope Clement V. the canons of the Council of Vienne in 1311 (at which he presided, the Papal court having been transferred to Avignon), and his own decretals before and after that date, were collected and published in 1313. They were almost immediately withdrawn again for revision, and were pro mulgated in their present form by his successor Pope John XXII. in 1317, under the name of Constitutions Clementis Papce V. or Clementince. The mode of citation is either by the chapter, the title-rubric, the words "in Clementinis," and the number of book and title (e.g., c. 1. de summa trin. in Clem. I. 1.), or by calling the chapter itself the Cle mentina, and adding its number, with the title-rubric, and numbers of book and title (e.g.. Clem. 1., de summa trin. 1.1).
(d.) The Extravagantes.—The Clementinas were the last of the collections formally promulgated by the popes. In the 15th century the term Corpus Juris Canonici was applied to the body of law composed of the Decretum and the collections of Gregory, Boniface, and Clement, as appears from the canons of the councils of Constance and Basel. The more important of the decretals omitted from the Clementinse or issued subsequently (distinguished from those in the Corpus Juris Canonici by the name " Extra vagantes ") were circulated or added in the manuscripts as a supplement to the Corpus Jiiris, and studied along with it at the universities. Two collections of them were printed by Jean Chappuis in his edition of the Corpus Juris Canonici, published at Paris in 1500. The first, which was entitled Extravagantes Joannis XXII., comprised twenty constitutions of that pope, arranged in fourteen titles. The second collection was called Extravagantes Communes, and consisted of 73 decretals issued in the period from Boniface VIII. to Sixtus V. (1298-1484), systematically arranged according to the traditional scheme of five books (" sed vacat liber quartus," devoted in pre vious compilations to the law of marriage), divided into titles and chapters. The following examples will explain the method of citing the first and second collections respectively: c. un. Xvag. lo. xxii. 12, or (mentioning the rubric of the title) c. un. de poenis in Extrav. lo. xxii. (12),andc. 2, Xvag. comm. III. 2, or (giving the title-rubric) c. 2, de prfeb. et dig. in Extrav. comm. III. 2. Neither collection was sanctioned as such ; each decretal is inde pendent, and authoritative propi io vigore. The two sets of Extravagantes being retained in subsequent editions have become by use and wont part of the Corpus Juris Canonici. They received a semi-official approval by being included in the edition revised by the Correctores Romani (a learned commission appointed by Pius IV. in 1563), and published as the authorized text by Pope Gregory XIII. in 1582.
The different portions of the Corpus Juris Canonici stand to each other in the relation of lex prior and lex post&)-ior, so that in cases of contradiction the latest in date is preferred. The same rule is applied to the single capita or laws of the private collections (the Decretum and the Extravagantes), but not to those of the other books, which were published as official codes, and the different capita of which are all regarded as bearing the date of promulgation of the whole. A distinction is also made respecting the authority of the rubrics of the titles. Those found in the Decretum, irrespective of the fact that they are not the work of Gratian, have no sanction except that of usage ; while in the decretals of Gregory, Boniface, and Clement the rubric (rubrum} has as much authority as the text (nigrum], both having been issued together. The sum- maria, or summce, prefixed to the canons and chapters emanate from the glossators, and have no legislative authority. But they generally state the substance of the law correctly, and are useful for purposes of interpretation. The Superscriptiones Capitulorum, giving the source and date of a law, and in the case of each decretal, the person to whom it was addressed, are, so far as we know, in their original state, but are not to be depended upon in all cases. A few of Gregory s decretals, for instance, bear the dates 1235 and 1236, whereas we know they must have been 1 pronounced prior to the promulgation of the collection in 1234. No decretal anterior to 1298 is of authority unless found in the Decretum or the collections of Gregory or Boniface. The Clementince and Extravagantes, on the con trary, are not exhaustive for the period they cover, find omission from them does not affect the credit of an other wise genuine constitution. Andre" (Cours de Droit Canon, 3 me <d., 1860, vol. iii. p. 151) gives a list of the apo cryphal laws in the Decretum and Gregory s Decretals. They are more numerous in the former, owing to Gratian s having selected his materials from the older compilations instead of the original sources, many of which were lost, and are of no authority except so far as adopted by sub- sequent cliurch usage. But the few spurious decretals in Gregory s collection are of equal authority with the others, the whole having received the papal imprimatur. The constitutions in the Liber Sextus, Clementina, and Extra- vagants are all genuine.
The Liber Septimus Decretalium, which appears in a supplement to some editions of the Corpus Juris, is a mere private collection formed by Peter Matthaeus, a lawyer of Lyons, in 1590. The Institution.es Juris Canonici of J. P. Lancelottus of Perugia are of the same character, but they form a useful and trustworthy compendium and are of considerable authority. They were written, as the author tells us in his preface, to complete the parallel between the two Corpora Juris, civil and canon. The Decretum of the canonists corresponded to the Pandects of the civilians ; the Decretals of Gregory to the Code ; the Liber Sextus, Cle- mentinis, and Extravagants to the Novels. At the Pope s suggestion Lancelot undertook to supply a text-book cor responding to the Institutes of Justinian. He completed and published it in 1563, but official confirmation never followed.
by jEmilius L. Richter (2 vols. 4to, Leipsic, 1839), of which a second edition is in the press. But it has not superseded that of J. II. Boehmer (2 vols. 4to, Halle, 1747), which is rendered valuable by his notes and copious indices, and contains much useful supplementary matter, including the Liber Septimus and Lancelot s Institutions.
III. Mediæval History.—From the 12th century Bologna university possessed two faculties of law a civil and a canon. The members of the latter were called doctores decretorum (a degree which required six years previous study) corresponding to the doctores legum of the civil law. Those who graduated in both faculties were doctors utriusque juris. The students were classed as canonistce or decretistce and civilistce or legistce. The system of tuition was oral (lecturce) with minute study of the original authorities. Explanatory notes (glosses) were added by many of the professors (hence called glossatores) to their copies of the text, written either on the margin or between the lines. These were transcribed along with the text in the manu scripts circulating among the students. Gradually the glosses took the shape of a consecutive commentary (appa ratus) in which the author incorporated what was most valuable in the notes of his predecessors. One of these always came to be accepted as of more authority than the rest, and on that account was entitled in the manuscripts Glossa Ordinaria, or simply Glossa. Such are the gloss on the Decretum by Joannes Teutonicus (1212), revised and supplemented by Bartholomseus Brixensis (of Brescia) in 1258, and that on Gregory s Decretals by Bernardus Parmensis (1266). The ordinary gloss of the Liber Sextus and Clementines is by Joannes Andreae (1348), the author of the Arbor Consanguinitatis et Affinitatis since inserted in the Decretum. (The last edition of the Corpus Juris Canonici, with the gloss, was published in 1671, 3 vols. fol., Lyons, sumpt. Huguetan et Barbier.) Abridgments of the text, giving briefly the substance of the titles in their order, with cross references, were composed under the name of Summae or Distinctions. The more intricate doctrines were explained in writings called Repetitiones at greater length than was suitable to the lecture-room. The law was also expounded by means of real or fictitious cases, of which digests were compiled (casus) for use by those who took part in the disputations or moots, which were regularly held (qucestiones). These were conducted by different professors on different days, and hence were often named from the days of the week Dominicales, Mercuriales, Veneriales, &c. Collections were made of unsettled and controverted points (Dissensiones Dominorum) and of rule or maxims of law (Brocarda, Brocardita, Parcemia, or Brocards. RegulfR Juris). In both faculties law was at this time cultivated in a thoroughly practical spirit, and their friendly rivalry and mutual influence were beneficial to both. The mode of study was similar in the other European schools, which were all modelled after those of Bulogna or Paris.
The church was thus supplied by the universities with well-educated class of lawyers for administering the business of the ecclesiastical courts those institutions which contributed so much to the growth and renown of the canon law. Their development was gradual but - steady. The primitive Christians, in pursuance of apostolic Ecclesias- precept (1 Cor. vi. 1-6), submitted their disputes to the *! J urU , / i i i i-i ti-L i diction, decision of their bishops, and it was enacted by several early councils that questions between churchmen should be settled by a spiritual tribunal. The episcopal jurisdiction was extended by Constantine to all matters which the con tending parties agreed to submit to it. This so-called Audientia Episcopalis was confirmed by several later Audientia, emperors, and the bishop s sentence was enforceable by the E l )isc - civil magistrate. By a law of Justinian, actions against 1>a the clergy were directed to be brought before the bishop in the first instance. In course of time the cliurch- courts absorbed many departments of civil jurisdiction. All matters connected in the most distant way with the church or religious duties were deemed proper subjects for disposal by her tribunals. The clergy dispensed the sacraments, and their assistance was required on the occasion of baptisms, marriages, and deaths. Hence the curice christianitatis took cognizance of questions relating to legitimacy, marriage, and succession. They assumed juris diction over not only the clergy, but all who were under the obligation of religious vows (e.g., Crusaders as well as widows and orphans (personce miserabiles) and minors. In the department of criminal law they were particularly active, punishing both ecclesiastical and religious offences, such as heresy, simony , blasphemy, sacrilege, and violation of personal and social morality (adultery, bigamy, fraud, perjury). For the administration of this extended judicial system the church had to enact her own rules of procedure, which were generally a great improvement on those prevailing in the civil courts. In fact it was by no means an evil at that period of European history that the administration of the law should fall into the hands of the clergy, who were the best educated men of their time, and had many of them been trained as lawyers in the schools of Bologna and Paris. The Teutonic and Gothic codes were very imperfect in most branches of the law, and the civil and criminal procedure of the native tribunals was far from settled. Their criminal law was little more than an elaborate system of fines, graduated according to the race or rank of the victim or the criminal. Evidence in our sense of the word was unknown, and innocence could only rely for protection on compurgation, ordeal, or judicial combat. Hence the people were, during several centuries, well content to resort to the church courts. The exemption of the clergy from civil jurisdiction was in accordance with the Teutonic principle that a man should be tried by his peers. And the laity were thankful to take shelter behind the church from the fines and exactions of the feudal courts, which were inflicted less in the interests of justice than for the profit of the overlord.
In the domain of public law the influence of the church was conspicuous. She may be said to have originated modern international law. The ancient Romans regarded interna- all foreigners as hostes. Christianity inculcated the tioual law principle of the brotherhood of nations. The popes acted as arbitrators between prince and prince, and between prince and people. They protected the weak against the strong, and right against might. The principle grew up that international questions should be decided according to law and Christian morality, and that war, when inevitable, should be conducted according to recognized rules laid down in the interests of humanity. The system of church administration served as a model for that of the state, which in mediaeval times was frequently controlled by Constitu- ecclesiastics. The constitutional duties of a sovereign to tional law. j^ g p e0 pj e W ere boldly aaserted by the church. Kings were taught that there were obligations for discharging which they were responsible to God, and that if these were neglected their subjects might be absolved from their allegiance. In after times the enemies of the church borrowed some of their most effective weapons from her own armoury. The writers on the law of nature and of nations, who headed the rebellion against the encroachments of ecclesiastical jurisdiction, adopted many principles which are to be found in the Corpus Juris Canonici, where we may also trace the germs of some leading doctrines of the French Revolution.
The canon law suited the civilization of the Middle Ages. It was natural that a system, claiming to regulate the most important concerns of practical life, administered by courts which, though belonging to different nations, were under the control of one central authority, and developed under the direction of a succession of able legislators, such as Hildebrand and Innocent III., should take the lead in forming the character and reconciling the conflicting interests of the rising nationalities. The canon law was not so much an independent system of law as a method of selecting what was best from the existing systems, and transforming it, by the help of Christian morality and feeling, into one homogeneous, eclectic whole. Much of the Roman element in the common laws of Europe at the present day has descended indirectly through the canon law, though modern jurists are too apt to ignore this and express their obligations to the ancient sources alone.
The decline of the canon law kept pace with that of the church from which it sprang. The strife of popes and antipopes, the increased strength of national feeling prompt ing the prelates to take their sovereign s part in his quarrels with the papacy, the arrogance of the ecclesiastical courts, the Reformation, the French Revolution, in short, all those causes that weakened the church s power and influence, were prejudicial to the authority of the canon law. And now that every country in Europe possesses, if not a code, at all events a matured system of national law, the Corpus Juris Canonici possesses little more than an historical and scientific interest.
IV. Present Authority.—Germany.—The Canon Law is still the common law of both sections of the Christian church of Germany, and in purely religious and eccle siastical questions affecting their internal affairs it is applicable, so far as not altered by modern church standards. Such are, for the Roman Catholics, the canons of the Tridentine (1545-1563) and Vatican (1869) councils, and the various concordats with the temporal power ; for the Protestants, the evangelical confessions (Augsburg, <tc.) and the Condusa Corporis Evangelicorum (1653-1806). The relations of the different churches with the state are regulated exclusively by the law of the land. In a ques tion of private law the canon law has no validity as an independent source. Till the end of last century both the civil and canon laws were by custom received as authoritative in Germany. They were applied universally in the civil courts, and the canon law as the lex posterior was preferred in case of conflict. These two systems, along with the feudal customs, were the three constituent elements of the common law or Gemeines Recht. The jurisdiction of the latter is now confined by the provisions of the modern codes to about one-third cf Germany. Within that area the Corpus Juris Canonici may be quoted to aid in interpreting a doubtful point of common law. In other words, it is of historical but not of legislative authority.
France.—The Constituent Assembly, after abolishing tithes and religious orders and secularizing church property, superseded the canon and all other laws for the government of the church by the Constitution Civile du Clerge, enacted in 1790. Finally, in 1793 the Convention suppressed altogether the Christian religion and its institutions. Since the restoration of the Church in the beginning of this century, both its internal government and external relations have been regulated exclusively by civil enactment, based on the concordat between Napoleon I. and Pope Pius VII. (1801), and the Articles Organiques which followed in 1802.
England.—The Canon Law is of no intrinsic obligation in England. The English people have in all ages shown a firm determination that neither the national church nor the national law should be subject to the Papal legislation or jurisdiction. As early as 1138 Archbishop Theobald of Canterbury brought over Vacarius and other learned ecclesiastics from Italy to introduce the study of civil and canon law into England. The bishops and clergy vigor ously supported the new system so favourable to their order ; but the nobility and laity generally adhered to the old common law with great pertinacity. The contest was practically decided when in the 13th century the Court of Common Pleas was fixed at Westminster. This brought together the practitioners in municipal law who had been, while the court was ambulatory, dispersed throughout the kingdom, and shortly afterwards the victory of common law was made secure by the establishment of the Inns of Court and Chancery for the education of youth in municipal law.
The system administered in the spiritual courts is known as " the king s ecclesiastical law." It is based on the canon law, a knowledge of which is highly useful to the English ecclesiastical lawyer. But only such portions of the canon law have been adopted as have been sanc tioned by the national legatine and provincial constitutions, the statutes of the realm, and immemorial church usage.
The canon law, though not binding proprio vigore, is one of the sources of the common law of England. The rules for the descent of land, for instance, are borrowed wholly from that system. But England assimilated less of it than other countries, or than might have been adopted by herself with advantage. It was not that the English people considered the provisions of the canon law inferior to their own customs ; they were as a rule entirely ignorant of it. But their struggles against appeals to Rome and other claims of ecclesiastical jurisdiction roused the feeling of the nation. They stoutly stood up for their common law, cumbrous and even barbarous in some respects as it was, not because they thought it perfect, but because they were resolved to manage their own concerns after their own fashion. At the parliament of Merton (1236) when the bishops proposed that legitimation by subsequent marriage should be legalized, alleging that holy church (that is, the canon law) sanctioned such legitimation, all the earls and barons, we are told, with one voice answered, " Nolumus leges Angliae mutari." This incident shows that even at that early date canon law was of no authority unless sanctioned by the law of the land, for the decretal (c. 6, X. qui filii sint legitimi, iv. 17) alluded to by the bishops was addressed by Pope Alexander III. to the bishop of Exeter in 1172, and was incorporated in the Decretals of Gregory promulgated in 1234, two years before the parliament of Merton.
Scotland.—Several causes conduced to the provisions of the canon law being extensively adopted by the law of Scotland. During the 16th and 17th centuries canon law was publicly taught in the Scottish universities ; and from a very early period it was the custom of the Scottish youth to resort for purposes of study to foreign countries, whence many of them returned doctors in utroque jure. A wide jurisdiction was exercised by the consistorial courts, from which for many centuries an appeal to Rome was competent, and at one time half of the senators of the College of Justice were necessarily clerical, while all were learned in both civil and canon law. Conveyancing, moreover, was in the hands of clerical notaries, who, till 1469, were, like those of Europe generally, appointed exclusively by the emperor and the Pope. But though one of the fontes juris Scot ice, canon law never was of itself authoritative in Scotland. In the canons of her national provincial councils (at whose yearly meetings representatives attended on behalf of the king) that country possessed a canon law of her own, which was recognized by the parliament and the popes, and enforced in the courts of law. Much of it, no doubt, was borrowed from the Corpus Juris Canonici, the Tridentine standards, and the English provincial canons. But the portions so adopted derived their authority from the Scottish Church. The general canon law, unless where it has been acknowledged by Act of Parliament, or a decision of the courts, or sanctioned ty the canons of a provincial council, is only received in Scotland according to equity and expediency.
Geschichte des Kirchenrcchts, vol. i. (never completed), Giessen, 1843; Rosshirt, Geschichte des Rechts im Mittclaltcr, vol. i. Kanonisches Recht, Mainz, 1846. The best bibliographical history when com pleted will be Maassen, Geschichte dcr Quellen und dcr Literatur des Canonisclicn Rechts im Abcndlande bis zum Ausgangc des Mittclaltcrs, vol. i. 1870. The Vienna Academy of Sciences have voted funds from the Savigny foundation to enable the author to visit foreign libraries for the purposes of his work, which contains in consequence the best account of the various MSS. The first volume comes down to, without including, the False Decretals. Four additional volumes are expected. The glossators and the mediaeval universities are treated of in Savigny, Geschichte des Romisclicn Rechts im Mittclaltcr, vol. iii. 2d ed. 1834*. The history and system of the constitution of the church, is handled with great learning and acumen by Thomassin, Ancienne et Nouvclle Discipline de I Eglise, Lyons, 1678, -(same work in Latin, but differently arranged, Veins et Nova Eccl. Disc., Paris, 1688, 3 vols. fol.). Consult also Wasserschleben s articles in Herzog s Real-Encyclopadie on Kanonen und Decrctalen- simmlungen, Kanonisches Recht, Glosscn und Glossatoren, and the text-books mentioned below. Text Books:—1. By Roman Catholic authors Doviatius (Doujat), Prcenotionum Canonicarum Libri Quinque, Paris, 1687, modern ed. by Schott, Mitav. et Lips. 1776, 2 vols. 8vo ; Van Espen, Jus Ecclcsiasticum Univcrsum, last ed. Mogunt. 1791, 3 vols. 4to; Gibert, Corpus Juris Canonici per Regu- las Naturali Ordine Digcstas Expositi, Col. Allobr., 1725, 3 vols. fol. ; Lancelottus, Institution s Juris Canonici, last ed. cum adnot. Ziegleri et Thomasii, Hal. 1716, 4 vols. 4to (the first ed. having been published in 1563, a few months before the dissolution of the Council of Trent, contains the law of the Corpus juris canonici with out the modifications introduced by that council); Devoti, Institu- tiomim Canonicarum libri iv., first ed. Eom. 1781, 4 vols. last ed. Leodii, 1860, 2 vols.; Phillips, Kirchenrccht (ecclesiastical law), Regensburg, 7 vols. 8vo, 1845-72 (not yet completed); Schulte, Das Katholische Kirchenrecht, Giessen, 1856-60, 2 vols. 8vo ; Ross- hirt, Canonisches Recht, Schaffhausen, 1857 ; Walter, Lchrbuch des Kirchenrechts allcr christlichen Confessioncn, 14th ed. Bonn, 1871. 2. By Protestant authors Gisbertus Voetius, Politico, Ecclcsiastica , Amsterdam, 1663-06, 4 vols. 4to ; J. H. Boehmer, Jus Ecclcsiasti- cum Protestantium (in the form of a commentary on Gregory s Decretals), 5th ed. Hal. 1756-63, 5 vols. 4to, and the same author s Institutiones Juris Canonici, 5th ed. Hal. 1770 ; Mejer, Lchrbuch <les Deutschen Kirchenrcchts, 3d cd. Gottingen, 1869 ; Richter, Lchrbuch des katholischen und cvangclischen Kirchenrcchts, 7th ed. by Dove, Leipsic, 1874. Dictionaries:—Durand de Maillane, Dictionnaire Canonique, last ed. 1786, 6 vols. 8vo -, Ferraris, Prompia Bibliothcca Canonica, Juridica, &c., Abbe Migne s ed. 8 vols. 1866 ; Andre, Cours Alphabetique et Methodique de Droit Canon, 3d ed. 6 vols. 8vo, Paris, 1860. Excellent articles on subjects relating to canon law are contained in Wetzer und Welte, KirchenlexiconoderEncyclo2)adiederkatholische?iTheologie,FreibiTg, 1847-56, 13 vols. 8vo, and Herzog, Real-Encyclopadie fur pro- tcstantische Thcologie und Kirche, 1854-68, 22 vols. 8vo. False Decretals:—The latest criticism is by Hmschius, Commentatio de Collections Isidori Mercatoris (prefixed to his ed. of the work, Lipsise, 1863), and art. Pseudo - Isidor by Wasserschleben in Herzog s Real-Encydop&die (xii. 337), 1860, and by Hefele in Wetzer und Welte s Kirchenlexicon (viii. 849), 1852. The text books of Phillips, Schulte, Walter, Richter, &c., give a resume of the different views. The older authorities ureEcclesiastica Historia, &c. (known as the Magdeburg Centuries, 13 vols. fol.), Basil. 1559- 74, vol. ii. c. 7, and vol. iii. c. 7 ; F. Turrianus, Adversus Magde- burgenscs Centuriatores, &c., Florent. 1572 ; Blondellus, Pseudo- isidorus ct Turrianus Vapulantes, Genev. 1628 ; Gallandius, De Vclustis Canonum Collectionibus Sylloge (2 vols. 4to), Mogunt. 1790, vol. i. p. 528, and vol. ii. p. 1 (dissertations by the brothers Bal- lerini and Car. Blascus); Knust, De Fontibus et Consilio Pseudoisi- doriance Collectionis, Getting. 1832 ; Rosshirt, Zuden kirchenrecht- lichen Quellen des ersten Jahrtausends und zu den Pseudoisidor- ischcn Dccrctal.cn, Heidelb. 1849. Canon Law in England:—Sir Matthew Hale s History of the Common Law, chap. 2 (6th ed. by Runnington, 1820); Reeve s Hist, of the English Law, chaps. 25 and 26 (new ed. by Finlason, 1869, 3 vols.); Introductions to Black- stone s Commentaries; Burn s Ecclesiastical Law (9th ed. by Phillimore, 4 vols. 1842), and Phillimore s Ecclesiastical Law of the Church of England (2 vols. 1873) ; Bowyer s Readings before the Society of tJie Middle Temple, 1851, lectures 12 to 15; The Queen v. Millis, 1844, 10 Clark and Finnelly s House of Loids Reports, 534 ; Martin v. Mackonochie and Flamank v. Simpson, 1868, Law Reports, 2 Admiralty and Ecclesiastical, 116 ; The Queen v. the Archbishop of Canterbury, 1848, 11 Adolphus and Ellis s Queen s Bench Reports, new series, 483 ; Marslwll v. the Bishop of Exeter, I860, 29 Law Journal, new series, Common Pleas, 354. Canon Law in Scotland:—Lord Stair s Institutions, bk. i. tit. i. sees. 14 and 16 ; Fergusson s Consistorial Law, 1829, p. 2 ; Riddell s Scot tish Peerage and Consistorial Law, 1842, vol. i. p. 449 ; Introduc tion to Fraser s Law of Husband and Wife, 2 vols. 1876 ; Mr Joseph Robertson s preface to Ecclesice Scoticance Staluta, 2 vols. 4to., 1866 (Bannatyne Club) ; Bell s Report of a Case of Legitimacy under a Putative Marriage, 1825 ; Lord Medwyn s opinion in the Marnoch case (Cruickshank v. Gordon], 10th March, 1843-45 ;Dunlop s Court of Session Reports, 941.
(w. f. h.)
- It is printed in vol. i. pp. 801-1232, of Baluze s Capitularia Regum Francorum, Paris, 1677.
- These are all printed by Wasserschleben in Die Bvssordnungen dcr Abendlandischen Kirche mil einer Rechtsgeschichtlichen, Einleitung, Halle, 1851.
- Edition by Wasserschleben, Leipsic, 1840.
- D. Burchardi Wormaciensis Decretorum, libri xx., Cologne, 1543, and other editions.
- Edition by Melch. a Vosmediano, Louvain, 1557.
- Edited by Molinoeus, Louvain, 1661.
- Printed by Martene in Novus Thesaurus Anecdotorum, vol. v. On these collections see Petr. et Hieron. Ballerinii, De Antiquis Collec- ticmibus et Collectoribus Canonum ad Gratianum usque Tractatus, p, iv. c. 10-18, Venice, 1757 ; and Wasserschleben, Beitrage zur Ge- schichte der Vorgratianischen Kirchenrechtsquellen, Leipsic, 1839.
- Printed in Labbe, Antiques Collectiones Decretalium, Paris, 160ft.
- The authority of this and most other French writers on canon law is to be received with caution on matters having any connection with the Gallican Liberties.