Canon Law

Canon Law. Canon law, jus canonicum, is the sum of the laws which regulate the ecclesiastical body; for this reason it is also called ecclesiastical law, jus ecclesiasticum. It is also referred to under the name of canones, sacri canones, a title of great antiquity, for the κανόνες, regulae, were very early distinguished from the secular laws, the νόμοι, leges.

The word κανών, canon, has been employed in ecclesiastical literature in several different senses (see Canon above). The disciplinary decisions of the council of Nicaea, for example (can. 1, 2, &c.), employ it in the sense of an Word “canon.” Different meanings. established rule, ecclesiastical in its origin and in its object. But the expression is most frequently used to designate disciplinary laws, in which case canons are distinguished from dogmatic definitions. With regard to form, the decisions of councils, even when dogmatic, are called canons; thus the definitions of the council of Trent or of the Vatican, which generally begin with the words “Si quis dixerit,” and end with the anathema, are canons; while the long chapters, even when dealing with matters of discipline, retain the name of chapters or decrees. Similarly, it has become customary to give the name of canons to the texts inserted in certain canonical compilations such as the Decretum of Gratian, while the name of chapters is given to the analogous quotations from the Books of the Decretals. It is merely a question of words and of usage. As to the expression jus canonicum, it implies the systematic codification of ecclesiastical legislation, and had no existence previous to the labours which resulted in the Corpus juris canonici.

Canon law is divided into public law and private law; the former is concerned with the constitution of the Church, and, consequently, with the relations between her and other bodies, religious and civil; the latter has as its object Divisions. the internal discipline of the ecclesiastical body and its members. This division, which has been found convenient for the study of canon law, has no precedent in the collections of texts. With regard to the texts now in force, the name of jus antiquum, ancient law, has been given to the laws previous to the Corpus juris canonici; the legislation of this Corpus has been called jus novum, new law; and finally, the name of recent law, jus novissimum, has been given to the law established by the council of Trent and subsequent papal constitutions. There is a further distinction between the written law, jus scriptum, laws made by the councils or popes, which are to be found in the collections, and the unwritten law, jus non scriptum, a body of practical rules arising rather from natural equity and from custom than from formal laws; with this is connected the customary law. In the Church, as in other societies, it has happened that the unwritten customary law has undergone a gradual diminution in importance, as a consequence of centralization and the accumulation of written laws; nowadays it need not be reckoned with, save in cases where local customs are involved. The common law is that which is intended to regulate the whole body; special or local law is that which is concerned with certain districts or certain categories of persons, by derogation from or addition to the common law.

By the sources or authors of the canon law are meant the authorities from which it is derived; they must obviously be of such a nature as to be binding upon the whole religious body, or at least upon a specified portion of it. In the Sources. highest rank must be placed Christ and the Apostles, whose dispositions for the constitution and government of the Church are contained in the New Testament, completed by tradition; for the Church did not accept the disciplinary and ritual provisions of the Old Testament as binding upon her (see Acts xi., xv.). To the apostles succeeded the episcopal body, with its chief the bishop of Rome, the successor of St. Peter, whose legislative and disciplinary power, by a process of centralization, underwent a slow but uninterrupted development. It is then to the episcopate, assembled in ecumenical council, and to its chief, that the function of legislating for the whole Church belongs; the inferior authorities, local councils or isolated bishops and prelates, can only make special laws or statutes, valid only for that part of the Church under their jurisdiction. Most of the canons, however, which constitute the ancient law, and notably those which appear in the Decretum of Gratian, emanate from local councils, or even from individual bishops; they have found a place in the common law because the collections of canons, of which they formed the most, notable part, have been everywhere adopted.

Having made these general observations, we must now consider the history of those texts and collections of canons which to-day form the ecclesiastical law of the Western Church: (1) up to the Decretum of Gratian, (2) up to the council of Trent, (3 and 4) up to the present day, including the codification ordered by Pius X.

1. From the Beginning to the Decretum of Gratian.—At no time, and least of all during the earliest centuries, was there any attempt to draw up a uniform system of legislation for the whole of the Christian Church. The various communities ruled themselves principally according to their customs and traditions, which, however, possessed a certain uniformity resulting from their close connexion with natural and divine law. Strangely enough, those documents which bear the greatest resemblance to a small collection of canonical regulations, such as the Didache, the Didascalia and the Canons of Hippolytus, have not been retained, and find no place in the collections of canons, doubtless for the reason that they were not official documents. Even the Apostolical Constitutions (q.v.), an expansion of the Didache and the Didascalia, after exercising a certain amount of influence, were rejected by the council in Trullo (692). Thus the only pseudo-epigraphic document preserved in the law of the Greek Church is the small collection of the eighty-five so-called “Apostolic Canons” (q.v.). The compilers, in their several collections, gathered only occasional decisions, the outcome of no pre-determined plan, given by councils or by certain great bishops.

These compilations began in the East. It appears that in several different districts canons made by the local assemblies1 were added to those of the council of Nicaea which were everywhere accepted and observed. The first example seems Greek collection. to be that of the province of Pontus, where after the twenty canons of Nicaea were placed the twenty-five canons of the council of Ancyra (314), and the fifteen of that of Neocaesarea (315-320). These texts were adopted at Antioch, where there were further added the twenty-five canons of the so-called council in encaeniis of that city (341). Soon afterwards, Paphlagonia contributed twenty canons passed at the council of Gangra (held, according to the Synodicon orientale, in 343),2 and Phrygia fifty-nine canons of the assembly of Laodicea (345-381?), or rather of the compilation known as the work of this council.3 The collection was so well and so widely known that all these canons were numbered in sequence, and thus at the council of Chalcedon (451) several of the canons of Antioch were read out under the number assigned to them in the collection of the whole. It was further increased by the twenty-eight (thirty) canons of Chalcedon; about the same time were added the four canons of the council of Constantinople of 381, under the name of which also appeared three (or seven) other canons of a later date. Towards the same date, also, the so-called “Apostolic Canons” were placed at the head of the group. Such was the condition of the Greek collection when it was translated and introduced into the West.

In the course of the 6th century the collection was completed by the addition of documents already in existence, but which had hitherto remained isolated, notably the canonical letters of several great bishops, Dionysius of Alexandria, St Basil and others. It was at this time that the Latin collection of Dionysius Exiguus became known; and just as he had given the Greek councils a place in his collection, so from him were borrowed the canons of councils which did not appear in the Greek collection—the twenty canons of Sardica (343), in the Greek text, which differs considerably from the Latin; and the council of Carthage of 410, which itself included, more or less completely, in 105 canons, the decisions of the African councils. Soon after came the council in Trullo (692), also called the Quinisextum, because it was considered as complementary to the two councils (5th and 6th ecumenical) of Constantinople (553 and 680), which had not made any disciplinary canons. This assembly elaborated 102 canons, which did not become part of the Western law till much later, on the initiative of Pope John VIII. (872-881). Now, in the second of its canons, the council in Trullo recognized Its final form. and sanctioned the Greek collection above mentioned; it enumerates all its articles, insists on the recognition of these canons, and at the same time prohibits the addition of others. As thus defined, the collection contains the following documents: firstly, the eighty-five Apostolic Canons, the Constitutions having been put aside as having suffered heretical alterations; secondly, the canons of the councils of Nicaea, Ancyra, Neocaesarea, Gangra, Antioch, Laodicea, Constantinople (381), Ephesus (the disciplinary canons of this council deal with the reception of the Nestorians, and were not communicated to the West), Chalcedon, Sardica, Carthage (that of 419, according to Dionysius), Constantinople (394); thirdly, the series of canonical letters of the following great bishops—Dionysius of Alexandria, Peter of Alexandria (the Martyr), Gregory Thaumaturgus, Athanasius, Basil, Gregory of Nyssa, Gregory of Nazianzus, Amphilochus of Iconium, Timotheus of Alexandria, Theophilus of Alexandria, Cyril of Alexandria, Gennadius of Constantinople; the canon of Cyprian of Carthage (the Martyr) is also mentioned, but with the note that it is only valid for Africa. With the addition of the twenty-two canons of the ecumenical council of Nicaea (787), this will give us the whole contents of the official collection of the Greek Church; since then it has remained unchanged. The law of the Greek Church was in reality rather the work of the Byzantine emperors.4

The collection has had several commentators; we need only mention the commentaries of Photius (883), Zonaras (1120) and Balsamon (1170). A collection in which the texts are simply reproduced in their chronological order is obviously inconvenient; towards 550, Johannes Scholasticus, patriarch of Constantinople, drew up a methodical classification of them under fifty heads. Finally should be mentioned yet another kind of compilation still in use in the Greek Church, bearing Nomocanon. the name of nomocanon, because in them are inserted, side by side with the ecclesiastical canons, the imperial laws on each subject: the chief of them are the one bearing the name of Johannes Scholasticus, which belongs, however, to a later date, and that of Photius (883).

The canon law of the other Eastern Churches had no marked influence on the collections of the Western Church, so we need not speak of it here. While, from the 5th century onwards a certain unification in the ecclesiastical law began to take place within the sphere of the see of Constantinople, it was not till later that a similar result was arrived at in the West. For In the West. several centuries there is no mention of any but local collections of canons, and even these are not found till the 5th century; we have to come down to the 8th or even the 9th century before we find any trace of unification. This process was uniformly the result of the passing on of the various collections from one region to another.

The most remarkable, and the most homogeneous, as well as without doubt the most ancient of these local collections is that of the Church of Africa. It was formed, so to speak, automatically, owing to the plenary assemblies of the Africa. African episcopate held practically every year, at which it was customary first of all to read out the canons of the previous councils. This gave to the collection an official character. At the time of the Vandal invasion this collection comprised the canons of the council of Carthage under Gratus (about 348) and under Genethlius (390), the whole series of the twenty or twenty-two plenary councils held during the episcopate of Aurelius, and finally, those of the councils held at Byzacene. Of the last-named we have only fragments, and the series of the councils under Aurelius is very incomplete. The African collection has not come to us directly: we have two incomplete and confused arrangements of it, in two collections, that of the Hispana and that of Dionysius Exiguus. Dionysius knows only the council of 419, in connexion with the affair of Apiarius; but in this single text are reproduced, more or less fully, almost all the synods of the collection; this was the celebrated Concilium Africanum, so often quoted in the middle ages, which was also recognized by the Greeks. The Spanish collection divides the African canons among seven councils of Carthage and one of Mileve; but in many cases it ascribes them to the wrong source; for example, it gives under the title of the fourth council of Carthage, the Statuta Ecclesiae antiqua, an Arlesian compilation of Saint Caesarius, which has led to a number of incorrect references. Towards the middle of the 6th century a Carthaginian deacon, Fulgentius Ferrandus, drew up a Breviatio canonum,5 a methodical arrangement of the African collection, in the order of the subjects. From it we learn that the canons of Nicaea and the other Greek councils, up to that of Chalcedon, were also known in Africa.

The Roman Church, even more than the rest, governed itself according to its own customs and traditions. Up to the end of the 5th century the only canonical document of non-Roman origin which it officially recognized was Rome. the group of canons of Nicaea, under which name were also included those of Sardica. A Latin version of the other Greek councils (the one referred to by Dionysius as prisca) was known, but no canonical use was made of it. The local law was founded on usage and on the papal letters called decretals. The latter were of two kinds: some were addressed to the bishops of the ecclesiastical province immediately subject to the pope; the others were issued in answer to questions submitted from various quarters; but in both cases the doctrine is the same. At the beginning of the 6th century the Roman Church adopted the double collection, though of private origin, which was drawn Dionysius Exiguus and his collection. up at that time by the monk Dionysius, known by the name of Dionysius Exiguus, which he himself had assumed as a sign of humility. He was a Scythian by birth, and did not come to Rome till after 496, his learning was considerable for his times, and to him we owe the employment of the Christian era and a new way of reckoning Easter. At the desire of Stephen, bishop of Salona, he undertook the task of making a new translation, from the original Greek text, of the canons of the Greek collection. The manuscript which he used contained only the first fifty of the Apostolic Canons; these he translated, and they thus became part of the law of the West. This part of the work of Dionysius was not added to later; it was otherwise with the second part. This embodied the documents containing the local law, namely 39 decretals of the popes from Siricius (384-398) to Anastasius II. (496-498). As was natural this collection received successive additions as further decretals appeared. The collection formed by combining these two parts remained the only official code of the Roman Church until the labours undertaken in consequence of the reforming movement in the 11th century. In 774 Pope Adrian I. gave the twofold collection of the Scythian monk to the future emperor Charlemagne as the canonical book of the Roman Church; this is what is called the Dionysio-Hadriana. This was an important stage in the history of the centralization Dionysio-Hadriana. of canon law; the collection was officially received by the Frankish Church, imposed by the council of Aix-la-Chapelle of 802, and from that time on was recognized and quoted as the liber canonum. If we consider that the Church of Africa, which had already suffered considerably from the Vandal invasion, was at this period almost entirely destroyed by the Arabs, while the fate of Spain was but little better, it is easy to see why the collection of Dionysius became the code of almost the whole of the Western Church, with the exception of the Anglo-Saxon countries; though here too it was known.

The other collections of canons, of Italian origin, compiled before the 10th century, are of importance on account of the documents which they have preserved for us, but as they have not exercised any great influence on the development of canon law, we may pass them over.

The Dionysio-Hadriana did not, when introduced into Gaul, take the place of any other generally received collection of canons. In this country the Church had not been centralized round a principal see which would have In Gaul. produced unity in canon law as in other things; even the political territorial divisions had been very unstable. The only canonical centre of much activity was the Church of Arles, which exercised considerable influence over the surrounding region in the 5th and 6th centuries. The chief collection known throughout Gaul before the Dionysio-Hadriana Quesnel collection. was the so-called collection of Quesnel, named after its first editor.6 It is a rich collection, though badly arranged, and contains 98 documents—Eastern and African canons and papal letters, but no Gallic councils; so that it is not a collection of local law. We might expect to find such a collection, in view of the numerous and important councils held in Gaul, but their decisions remained scattered among a great number of collections none of which had ever a wide circulation or an official character.

It would be impossible to enumerate here all the Gallic councils which contributed towards the canon law of that country; we will mention only the following:—Arles (314), of great importance; a number of councils in the district Councils. of Arles, completed by the Statuta Ecclesiae antiqua of St Caesarius;7 the councils of the province of Tours; the assemblies of the episcopate of the three kingdoms of the Visigoths at Agde (506), of the Franks at Orleans (511), and of the Burgundians at Epaone (517); several councils of the kingdoms of the Franks, chiefly at Orleans; and finally, the synods of the middle of the 8th century, under the influence of St Boniface. Evidently the impulse towards unity had to come from without; it began with the alliance between the Carolingians and the Papacy, and was accentuated by the recognition of the liber canonum.

In Spain the case, on the contrary, is that of a strong centralization round the see of Toledo. Thus we find Spanish canon law embodied in a collection which, though perhaps not official, was circulated and received everywhere; In Spain. this was the Spanish collection, the Hispana.8 The collection is well put together and includes almost all the important canonical documents. In the first part are contained the councils, arranged according to the regions in which they were held: Greek councils, following a translation of Italian origin, The Hispana. but known by the name of Hispana; African councils, Gallican councils and Spanish councils. The latter, which form the local section, are further divided into several classes: firstly, the synods held under the Roman empire, the chief being that of Elvira9 (c. 300); next the texts belonging to the kingdom of the Suevi, after the conversion of these barbarians by St Martin of Braga: these are, the two councils of Braga (563 and 572), and a sort of free translation or adaptation of the canons of the Greek councils, made by Martin of Braga; this is the document frequently quoted in later days under the name of Capitula Martini papae; thirdly, the decisions of the councils of the Visigothic Church, after its conversion to Catholicism. Nearly all these councils were held at Toledo, beginning with the great council of 589. The series continued up to 694 and was only interrupted by the Mussulman invasion. Finally, the second part of the Hispana contains the papal decretals, as in the collection of Dionysius.

From the middle of the 9th century this collection was to become even more celebrated; for, as we know, it served as the basis for the famous collection of the False Decretals.

The Churches of Great Britain and Ireland remained still longer outside the centralizing movement. Their contribution towards the later system of canon law consisted in Great Britain and Ireland. two things: the Penitentials and the influence of the Irish collection, the other sources of local law not having been known to the predecessors of Gratian nor to Gratian himself.

The Penitentials10 are collections intended for the guidance of confessors in estimating the penances to be imposed for various sins, according to the discipline in force in the Anglo-Saxon countries. They are all of Anglo-Saxon or Penitentials. Irish origin, and although certain of them were compiled on the continent, under the influence of the island missionaries, it seems quite certain that a Roman Penitential has never existed.11 They are, however, of difficult and uncertain ascription, since the collections have been largely amended and remodelled as practice required. Among the most important we may mention those bearing the names of Vinnianus (d. 589), Gildas (d. 583), Theodore of Canterbury (d. 690), the Venerable Bede (d. 735) and Egbert of York (732-767); the Penitentials which are ascribed to St Columbanus, the founder of Luxeuil and Bobbio (d. 615), and Cumean (Cumine Ailbha, abbot of Iona); in the Prankish kingdom the most interesting work is the Penitential of Halitgar, bishop of Cambrai12 from 817 to 831. As penances had for a long time been lightened, and the books used by confessors began to consist more and more of instructions in the style of the later moral theology (and this is already the case of the books of Halitgar and Rhabanus Maurus), the canonical collections began to include a greater or smaller number of the penitential canons.

The Irish collection,13 though it introduced no important documents into the law of the Western Church, at least set canonists the example of quoting passages from the Irish collection. Scriptures and the writings of the Fathers. This collection seems to date from the 8th century; besides the usual sources, the author has included several documents of local origin, beginning with the pretended synod of St Patrick.

In the very middle of the 9th century a much enlarged edition of the Hispana began to be circulated in France. To this rich collection the author, who assumes the name of Isidore, the saintly bishop of Seville, added a good number The false decretals. of apocryphal documents already existing, as well as a series of letters ascribed to the popes of the earliest centuries, from Clement to Silvester and Damasus inclusive, thus filling up the gap before the decretal of Siricius, which is the first genuine one in the collection. The other papal letters only rarely show signs of alteration or falsification, and the text of the councils is entirely respected.14 From the same source and at the same date came two other forged documents—firstly, a collection of Capitularies, in three books, ascribed to a certain Benedict (Benedictus Levita),15 a deacon of the church of Mainz; this collection, in which authentic documents find very little place, stands with regard to civil legislation exactly in the position of the False Decretals with regard to canon law. The other document, of more limited scope, is a group of Capitula given under the name of Angilram, bishop of Metz. It is nowadays admitted by all that these three collections come from the same source. For a study of the historical questions connected with the famous False Decretals, see the article Decretals (False); here we have only to consider them with reference to the place they occupy in the formation of ecclesiastical law. In spite of some hesitation, with regard rather to the official character than to the historical authenticity of the letters attributed to the popes of the earlier centuries, the False Decretals were accepted with confidence, together with the authentic texts which served as a passport for them. All later collections availed themselves indiscriminately of the contents of this vast collection, whether authentic or forged, without the least suspicion. The False Decretals did not greatly modify nor corrupt the Canon Law, but they contributed much to accelerate its progress towards unity. For they were the last of the chronological collections, i.e. those which give the texts in the order in which they appeared. From this time on, canonists began Systematic collections. to exercise their individual judgment in arranging their collections according to some systematic order, grouping their materials under divisions more or less happy, according to the object they had in view. This was the beginning of a codification of a common canon law, in which the sources drawn upon lose, as it were, their local character. This is made even more noticeable by the fact that, in a good number of the works extant, the author is not content merely to set forth and classify the texts; but he proceeds to discuss the point, drawing conclusions and sometimes outlining some controversy on the subject, just as Gratian was to do more fully later on.

During this period, which extended from the end of the 9th century to the middle of the 12th, we can enumerate about forty systematic collections, of varying value and circulation, which all played a greater or lesser part in preparing the juridical renaissance of the 12th century, and most of which were utilized by Gratian. We need mention only the chief of them—the Regino. Collectio Anselmo dedicata, by an unknown author of the end of the 9th century; the Libri duo de synodalibus causis et disciplinis ecclesiasticis,16 compiled about 906 by Regino, abbot of Prüm, and dedicated to Hatto of Mainz, relatively a very original treatise; the enormous compilation Burchard. in twenty books of Burchard, bishop of Worms (1112-1122), the Decretum or Collectarium,17 very widely spread and known under the name of Brocardum, of which the 19th book, dealing with the process of confession, is specially noteworthy. Towards the end of the 11th century, under the influence of Hildebrand, the reforming movement makes itself felt in several collections of canons, intended to support the rights of the Holy See and the Church against the pretensions of the emperor. To this group belong an anonymous collection, described by M.P. Fournier as the first manual of the Reform;18 the collection of Anselm, bishop of Lucca,19 in 13 Anselm Deusdedit. books (1080-1086); that of Cardinal Deusdedit,20 in 4 books, dedicated to Pope Victor III. (1086-1087); and lastly that of Bonizo,21 bishop of Sutri, in 10 books (1089). In the 12th century, the canonical works of Ivo of Chartres22 are of great importance. His Panormia, compiled Ivo of Chartres. about 1095 or 1096, is a handy and well-arranged collection in 8 books; as to the Decretum, a weighty compilation in 17 books, there seems sufficient proof that it is a collection of material made by Ivo in view of his Panormia. To the 12th century belong the collection in the MS. of Saragossa (Caesaraugustana) to which attention was drawn by Antonio Agustin; that of Cardinal Gregory, called by him the Polycarpus, in 8 books (about 1115); and finally the Liber de misericordia et justitia of Algerus,23 scholasticus of Liége, in 3 books, compiled at latest in 1123.

But all these works were to be superseded by the Decretum of Gratian.

2. The Decretum of Gratian and the Corpus Juris Canonici.—The work of Gratian, though prepared and made possible by those of his predecessors, greatly surpasses them in scientific value and in magnitude. It is certainly The Decretum of Gratian. the work which had the greatest influence on the formation of canon law; it soon became the sole manual, both for teaching and for practice, and even after the publication of the Decretals was the chief authority in the universities. The work is not without its faults; Gratian is lacking in historical and critical faculty; his theories are often hesitating; but on the whole, his treatise is as complete and as perfect as it could be; so much so that no other work of the same kind has been compiled; just as there has never been made another Book of the Sentences. These two works, which were almost contemporary (Gratian is only about two years earlier),24 were destined to have the same fate; they were the manuals, one for theology, the other for canon law, in use in all the universities, taught, glossed and commented on by the most illustrious masters. From this period dates the more marked and definitive separation between theology and ecclesiastical law.

Of Gratian we know practically nothing. He was a Camaldulensian monk of the convent of St Felix at Bologna, where he taught canon law, and published, probably in 1148, his treatise called at first Concordantia discordantium canonum, but soon known under the name of the Decretum. Nowadays, and for some time past, the only part of the Decretum considered is the collection of texts; but it is actually a treatise, in which the author endeavours to piece together a coherent juridical system from the vast body of texts, of widely differing periods and origin, which are furnished by the collections. These texts Dicta Gratiani. he inserts bodily in the course of his dissertation; where they do not agree, he divides them into opposite groups and endeavours to reconcile them; but the really original part of his work are the Dicta Gratiani, inserted between the texts, which are still read. Gratian drew his materials from the existing collections, and especially from the richer of them; when necessary, he has recourse to the Roman laws, and he made an extensive use of the works of the Fathers and the ecclesiastical writers; he further made use of the canons of the recent councils, and the recently published decretals, up to and including the Lateran council of 1139. His immense Contents. work consists of three parts (partes). 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 causae (cases proposed for solution), subdivided into quaestiones (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. quaestio 3, headed Tractatus de Poenitentia, is divided like the main part into seven distinctiones, containing each several canones. The third part, which is entitled De Consecratione, gives, in five distinctiones, the law bearing on church ritual and the sacraments. The Mode of citation. 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 quaestio, e.g. can. Si quis suadente, C. 17, qu. 4, or c. 29, C. xvii., qu. 4. The treatise De Poenitentia, forming the 3rd quaestio of the 33rd causa of the second part, is referred to as if it were a separate work, e.g. c. Principium, D. ii. de poenit. 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.

Considered from the point of view of official authority, the Decretum occupies an intermediate position very difficult to define. It is not and cannot be a really official code, in which every text has the force of a law. It has never Authority. been recognized as such, and the pretended endorsement of it by Pope Eugenius III. is entirely apocryphal. Moreover, it could not have become an official code; it would be impossible to transform into so many laws either the discordant texts which Gratian endeavoured to reconcile or his own Dicta; a treatise on canon Law is not a code. Further, there was as yet no idea of demanding an official compilation. The Decretum has thus remained a work of private authority, and the texts embodied in it have only that legal value which they possess in themselves. On the other hand, the Decretum actually enjoys a certain public authority which is unique; for centuries it has been the text on which has been founded the instruction in canon law in all the universities; it has been glossed and commented on by the most illustrious canonists; it has become, without being a body of laws, the first part of the Corpus juris canonici, and as such it has been cited, corrected and edited by the popes. It has thus, by usage, obtained an authority perfectly recognized and accepted by the Church.25

Gratian’s collection, for the very reason that it had for its aim the creation of a systematic canon law, was a work of a transitional character. Henceforth a significant differentiation began to appear; the collections of texts, the After Gratian. number of which continued to increase, were clearly separated from the commentaries in which the canonists continued the formation and interpretation of the law. Thus the way was prepared for official collections. The disciples of Gratian, in glossing or commenting on the Decretum, turned to the papal decretals, as they appeared, for information and the determination of doubtful points. Their idea, then, was to make collections of these points, to support their teaching; this is the origin of those Compilationes which were soon to be embodied in the collection of Gregory IX. But we must not forget that these compilations were intended by their authors to complete the Decretum of Gratian; in them were included the decretals called extravagantes, i.e. quae vagabantur extra Decretum. This is why we find in them hardly any documents earlier than the time of Gratian, and also why canonists have continued to refer to the decretals of Gregory IX. by the abbreviation X (Extra, i.e. extra Decretum).

There were numerous collections of this kind towards the end of the 12th and at the beginning of the 13th century. Passing over the first Additiones to the Decretum and the “Quinque compilationes.” Appendix concilii Lateranensis (council of 1179), we will speak only of the Quinque compilationes,26 which served as a basis for the works of Raymond of Pennaforte. The first and most important is the work of Bernard, provost and afterwards bishop of Pavia, namely, the Breviarium extravagantium, compiled about 1190; it included the decretals Bernard of Pavia, “Breviarium.” from Alexander III. to Clement III., together with certain “useful chapters” omitted by Gratian. The important feature of the book is the arrangement of the decretals or sections of decretals in five books, divided into titles (tituli) logically arranged. The five books treat of (1) ecclesiastical persons and dignitaries or judges; (2) procedure; (3) rights, duties and property of the clergy, i.e. benefices, dues, sacraments, &c., with the exception of marriage, which is the subject of book (4); (5) of penalties. There is a well-known hexameter summing up this division:

Judex, judicium, clerus, connubia, crimen.

This is the division adopted in all the official collections of the Corpus juris. By a bull of the 28th of December 1210 Innocent “Compilatio tertia.” III. sent to the university of Bologna an authentic collection of the decretals issued during the first twelve years of his pontificate; this collection he had caused to be drawn up by his notary, Petrus Collivacinus of Benevento, his object being to supersede the collections in circulation, “Secunda.” which were incomplete and to a certain extent spurious. This was the Compilatio tertia; for soon after, Joannes Galensis (John of Wales) collected the decretals published between the collection of Bernard of Pavia and the pontificate of Innocent III.; and this, though of later “Quarta.” date, became known as the Compilatio secunda. The quarta, the author of which is unknown, contained the decretals of the last six years of Innocent III., and the “Quinta.” important decrees of the Lateran council of 1215. Finally, in 1226, Honorius III. made an official presentation to Bologna of his own decretals, this forming the Compilatio quinta.

The result of all these supplements to Gratian’s work, apart from the inconvenience caused by their being so scattered, was the accumulation of a mass of material almost as considerable as the Decretum itself, from which they Decretals of Gregory IX. tended to split off and form an independent whole, embodying as they did the latest state of the law. From 1230 Gregory IX. wished to remedy this condition of affairs, and gave to his penitentionary, the Dominican Raymond of Pennaforte, the task of condensing the five compilations in use into a single collection, freed from useless and redundant documents. The work was finished in 1234, and was at once sent by the pope to Bologna with the bull Rex pacificus, declaring it to be official. Raymond adopts Bernard of Pavia’s division into five books and into titles; in each title he arranges the decretals in chronological order, cutting out those which merely repeat one another and the less germane parts of those which he preserves; but these partes decisae, indicated by the words “et infra” or “et j,” are none the less very useful and have been printed in recent editions. Raymond does not attempt any original work; to the texts already included in the Quinque compilationes, he adds only nine decretals of Innocent III. and 196 chapters of Gregory IX. This first official code was the basis of the second part of the Corpus juris canonici. The collection of Gregory IX. is cited as follows: the opening words of the chapter are given, or else its order or number, then the title to which it belongs; earlier scholars added X (extra); nowadays, this indication is omitted, and the order or number of the title in the book is given instead, e.g. Quum olim, de Consuetudine, X.; or cap. 6, de consuet. (I. iv.); that is to say, book I., title iv., de consuetudine, chapter 6, beginning with the words Quum olim.

Though Gregory IX. wished to supersede the compilationes, he had no idea of superseding the Decretum of Gratian, still less of codifying the whole of the canon law. Though his collection is still in theory the chief monument of Their relation to the general law. ecclesiastical law, it only marked a certain stage and was before long to receive further additions. The reason for this is that in most cases the decretals did not formulate any law, but were merely solutions of particular cases, given as models; to arrive at the abstract law it was necessary to examine the solution in each case with regard to the circumstances and thus formulate a rule; this was the work of the canonists. The “decretalists” commented on the new collection, as the “decretists” had done for that of Gratian; but the canonists were not legislators: even the summaries which they placed at the head of the chapters could not be adduced as legislative texts. The abstract law was to be found rather in the Summae of the canonists than in the decretals. Two important results, however, were achieved: on the one hand, supplementary collections on private authority ceased to be made, for this Gregory IX. had forbidden; on the other hand, the collections were no longer indefinitely swelled by the addition of new decisions in particular cases, those already existing being enough to form a basis for the codification of the abstract law; and for this reason subsequent collections contain as a rule only the “constitutions” of popes or councils, i.e. rules laid down as of general application. Hence arose a separation, which became more and more marked, between legislation and jurisprudence. This change was not produced suddenly, the old method being at first adhered to. In 1245 Innocent IV. sent to the universities a collection of 45 decretals, with the order that they should be inserted under their proper titles in the collection of Gregory IX. In 1253 he sent a further list of the first words (principia) of the complementary constitutions and decretals; but the result was practically nil and the popes gave up this system of successive additions. It was, however, found expedient to publish a new official collection. At the instance of the university of Bologna, Boniface VIII., himself an eminent canonist, had this prepared by a committee of canonists and published it in 1298. As it came as an addition to the five The “Liber Sextus.” books of Gregory IX., it was called the sixth book, the Liber Sextus. It includes the constitutions subsequent to 1234, and notably the decrees of the two ecumenical councils of Lyons, and is arranged in books and titles, as above described; the last title, de regulis juris, contains no less than eighty-eight legal axioms, mostly borrowed from Roman law. The Liber Sextus is cited like the decretals of Gregory IX., only with the addition of: in sexto (in VI^o.).

The same observations apply to the next collection, the Clementinae. It was prepared under the care of Clement V., and even promulgated by him in consistory in March 1314; but in consequence of the death of the pope, which The “Clementinae.” took place almost immediately after, the publication and despatch of the collection to the universities was postponed till 1317, under John XXII. It includes the constitutions of Clement V., and above all, the decrees of the council of Vienne of 1311, and is divided, like preceding collections, into books and titles; it is cited in the same way, with the additional indication Clem-(entina).

At this point the official collections stop. The two last, which have found a place in the editions of the Corpus, are collections of private authority, but in which all the “Extravagantes” of John XXII. documents are authentic. Evidently the strict prohibition of the publishing of collections not approved by the Holy See had been forgotten. The Extravagantes (i.e. extra collectiones publicas) of John XXII. number 20, And “communes.” and are classified under fourteen titles. The Extravagantes communes (i.e. coming from several popes) number 73, from Boniface VIII. to Sixtus IV. (1484), and are classified in books and titles. These two collections were included in the edition of Jean Chappuis in 1500; they passed into the later editions, and are considered as forming part of the Corpus juris canonici. As such, and without receiving any complementary authority, they have been corrected and re-edited, like the others, by the Correctores romani. They are cited, like the decretals, with a further indication of the collection to which they belong: Extrav. Jo. XXII., or inter-comm-(unes).

Thus was closed, as the canonists say, the Corpus juris canonici; but this expression, which is familiar to us nowadays, is only a bibliographical term. Though we find in the 15th The “Corpus juris canonici.” century, for example, at the council of Basel the expression corpus juris, obviously suggested by the Corpus juris civilis, not even the official edition of Gregory XIII. has as its title the words Corpus juris canonici. and we do not meet with this title till the Lyons edition of 1671.

The history of the canonical collections forming the Corpus juris would not be complete without an account of the labours of which they were the object. We know that the universities of the middle ages contained a Faculty The study of canon law. of Decrees, with or without a Faculty of Laws, i.e. civil law. The former made doctores decretorum, the latter doctores legum. The teaching of the magistri consisted in oral lessons (lecturae) directly based on the text. The short remarks explanatory of words in the text, originally written The glosses. in the margin, became the gloss which, formed thus by successive additions, took a permanent form and was reproduced in the manuscripts of the Corpus, and later in the various editions, especially in the official Roman edition of 1582; it thus acquired by usage a kind of semi-official authority. The chief of the glossatores of the Decretum of Gratian were Paucapalea, the first disciple of the master, Rufinus (1160-1170), John of Faenza (about 1170), Joannes Teutonicus (about 1210), whose glossary, revised and completed by Bartholomeus Brixensis (of Brescia) became the glossa ordinaria decreti. For the decretals we may mention Vincent the Spaniard and Bernard of Botone (Bernardus Parmensis, d. 1263), author of the Glossa ordinaria. That on the Liber Sextus is due to the famous Joannes Andreae (c. 1340); and the one which he began for the Clementines was finished later by Cardinal Zabarella (d. 1417). The commentaries not so entirely concerned with the text were called Apparatus; and Summae was the name given to The “Summae.” general treatises. The first of these works are of capital importance in the formation of a systematic canon law. Such were the Summae of the first disciples of Gratian: Paucapalea (1150),27 Rolando Bandinelli28 (afterwards Alexander III., c. 1150), Rufinus29 (c. 1165), Étienne of Tournai30 (Stephanus Tornacensis, c. 1168), John of Faenza (c. 1170), Sicard, bishop of Cremona (c. 1180), and above all Huguccio (c. 1180). For the Decretals we should mention: Bernard of Pavia31 (c. 1195), Sinibaldo Fieschi (Innocent IV., c. 1240), Henry of Susa (d. 1271), commonly called (cardinalis) Hostiensis, whose Summa Hostiensis or Summa aurea is a work of the very highest order; Wilhelmus Durantis or Durandus, Joannes Andreae, Nicolas de Tudeschis (abbas siculus), &c. The 15th century produced few original treatises; but after the council of Trent the Corpus juris was again commented on by distinguished canonists, e.g. the Jesuit Paul Laymann (1575-1635), the Portuguese Agostinho Barbosa (1590-1649), Manuel Gonzalez Tellez (d. 1649) and Prospero Fagnani (1598-1687), who, although blind, was secretary to the Congregation of the Council. But as time goes on, the works gradually lose the character of commentaries on the text, and develop into expositions of the law as a whole.

We can mention here only the chief editions of the Corpus. The council of Trent, as we know, ordered that the official books of the Roman Church—sacred books, liturgical books, Editions. &c.—should be issued in official and more correct editions; the compilations of ecclesiastical law were also revised. The commission of the Correctores romani,32 established The “Correctores romani.” about 1563 by Pius IV., ended its work under Gregory XIII and the official edition, containing the text and the glosses, appeared at Rome in 1582. Richter’s edition (2 vols., Leipzig, 1839) remains valuable, but has been greatly surpassed by that of E. Friedberg (Leipzig, “Institutiones Lancelotti.” 1879-1881). Many editions contain also the Institutiones composed at the command of Paul IV. (1555-1559) by Giovanni Paolo Lancelotti, a professor of Bologna, on the model of the Institutes of Justinian. The work has merits, but has never been officially approved.

Though the collections of canon law were to receive no more additions, the source of the laws was not dried up; decisions of councils and popes continued to appear; but there was no attempt made to collect them. Canonists obtained the recent texts as they could. Moreover, it was an epoch of trouble: the great Schism of the West, the profound divisions which were its result, the abuses which were to issue in the Reformation, were conditions little favourable for a reorganization of the ecclesiastical laws. Thus we are brought to the third period.

3. After the Council of Trent.—The numerous important decrees made by the council of Trent, in the second part of its sessions, called de reformatione, are the starting-point of the canon law in its latest stage, jus novissimum; it is this which is still in force in the Roman Church. It has in no way undermined the official status of the Corpus juris; but it has completed the legislation of the latter in many important respects, and in some cases reformed it.

The law during this period, as abstracted from the texts and compilations, suggests the following remarks. The laws are formulated in general terms, and the decisions in particular cases relegated to the sphere of jurisprudence; Final state of the law. and the canonists have definitely lost the function which fell to them in the 12th and 13th centuries: they receive the law on authority and no longer have to deduce it from the texts. The legislative power is powerfully centralized in the hands of the pope: since the reforming decrees of the council of Trent it is the pontifical constitutions alone which have made the common law; the ecumenical council, doubtless, has not lost its power, but none were held until that of the Vatican (1870), and this latter was unable to occupy itself with matters of discipline. Hence the separation, increasingly marked, between the common law and the local laws, which cannot derogate from the common law except by concession of the Holy See, or by right of a lawfully authorized custom. This centralization, in its turn, has greatly increased the tendency towards unity and uniformity, which have reached in the present practice of the Roman Church a degree never known before, and considered by some to be excessive.

If we now consider the laws in themselves, we shall find that the dispersed condition of the legislative documents has not been modified since the closure of the Corpus juris; on the contrary the enormous number of pontifical Dispersion of the texts. constitutions, and of decrees emanating from the Roman Congregations, has greatly aggravated the situation; moreover, the attempts which have been made to resume the interrupted process of codification have entirely failed. As regards the texts, the canon law of to-day is in a very similar position to that of English law, which gave rise to J.S. Mill’s saying: “All ages of English history have given one another rendezvous in English law; their several products may be seen all together, not interfused, but heaped one upon another, as many different ages of the earth may be read in some perpendicular section of its surface.”33 Nothing has been abrogated, except in so far as this has been implicitly demanded by subsequent laws. From this result insoluble controversies and serious uncertainties, both in the study and practice of the law; and, finally, it has become impossible for most people to have a first-hand knowledge of the actual laws.

For this third period, the most important and most considerable of the canonical texts is the body of disciplinary decrees of the council of Trent (1545-1563). In consequence of the prohibition issued by Pius IV., they have not Decrees of the Council of Trent. been published separately from the dogmatic texts and other acts, and have not been glossed;34 but their official interpretation has been reserved by the popes to the “Congregation of the cardinal interpreters of the Council of Trent,” whose decisions form a vast collection of jurisprudence. Next in importance come the pontifical constitutions, which Pontifical constitutions. are collected together in the Bullarium; but this is a collection of private authority, if we except the Bullarium of Benedict XIV., officially published by him in 1747; further, the Bullarium is a compilation arranged in chronological order, and its dimensions make it rather unwieldy. In the third place come the decrees of the Roman Congregations, which have the force of law. Several Decrees of the Curia. of these organs of the papal authority have published official collections, in which more place is devoted to jurisprudence than to laws; several others have only private compilations, or even none at all, among others the most important, viz. the Holy Office (see Curia Romana). The resulting confusion and uncertainty may be imagined.

These drawbacks were felt a long time back, and to this feeling we owe two attempts at a supplementary codification which were made in the 16th century, both of which are known under the name of Liber Septimus. The first “Liber septimus” of P. Mathieu. was of private origin, and had as its author Pierre Mathieu, the Lyons jurist (1563-1621); it appeared in 1590 at Lyons. It is a continuation of the Extravagantes communes, and includes a selection of papal constitutions, from Sixtus IV. (1471-1484) to Sixtus V. (1585-1590) inclusive, with the addition of a few earlier documents. It follows the order of the decretals. This collection has been of some service, and appears as an appendix in many editions of the Corpus juris; the chief reason for its failure is that it has no official sanction. The second attempt was official, but it came to nothing. It was connected with the movement of reform and revision which followed the council of Trent. Immediately after the publication of the official edition of the Corpus juris, Gregory XIII. appointed a committee of cardinals charged with the task of drawing up a Liber septimus. Sixtus V. hurried on its execution, which was of Clement VIII. rapidly proceeded with, mainly owing to Cardinal Pinelli, who submitted the draft of it to Clement VIII. The pope had this Liber VII. printed as a basis for further researches; but after long deliberations the volume was suppressed, and the idea of a fresh codification was abandoned. The collection included the decrees of the council of Trent, and a number of pontifical constitutions, arranged in the order of the titles of the decretals.35 But even had it been promulgated, it is doubtful whether it would have improved the situation. It would merely have added another collection to the previous ones, which were already too voluminous, without resulting in any useful abrogations.

4. The Future Codification.—Neither Clement VIII. nor, at a later date, Benedict XIV., could have dreamt of the radical reform at present in course of execution. Instead of accumulating the texts of the laws in successive collections, Demand for codification. it is proposed entirely to recast the system of editing them. This codification in a series of short articles was suggested by the example of the French codes, the history of which during the 19th century is well known. From all quarters the Catholic episcopate had submitted to the Vatican council petitions in this sense. “It is absolutely clear,” said some French bishops, “and has for a long time past been universally acknowledged and asserted, that a revision and reform of the canon law is necessary and most urgent. As matters now stand, in consequence of the many and grave changes in human affairs and in society, many laws have become useless, others difficult or impossible to obey. With regard to a great number of canons, it is a matter of dispute whether they are still in force or are abrogated. Finally, in the course of so many centuries, the number of ecclesiastical laws has increased to such an extent, and these laws have accumulated in such immense collections, that in a certain sense we can well say: We are crushed beneath the laws, obruimur legibus. Hence arise infinite and inextricable difficulties which obstruct the study of canon law; an immense field for controversy and litigation; a thousand perplexities of conscience; and finally contempt for the laws.”36 We know how the Vatican council had to separate without approaching the question of canonical reform; but this general desire for a recasting of the ecclesiastical code was taken up again on the initiative of Rome. On the 19th of March 1904, Decision of Pius X. Pius X. published a Motu proprio, “de ecclesiae legibus in unum redigendis.” After briefly reviewing the present condition of the canonical texts and collections, he pointed out its inconvenience, referred to the many requests from the episcopate, and decreed the preparation of a general code of canon law. This immense undertaking involved the codification of the entire canon law, drawing it up in a clear, short and precise form, and introducing any expedient modifications and reforms. For this purpose the pope appointed Method. a commission of cardinals, of which he himself became president; also a commission of “consultors” resident at Rome, which asked for a certain amount of assistance from canonists at various universities and seminaries. Further, the assembled bishops of each province were invited to give their opinion as to the points in which they considered the canon law might profitably be modified or abrogated. Two consultors had the duty of separately drawing up a preliminary plan for each title, these projects being twice submitted for the deliberation of the commission (or sub-commission) of consultors, the version adopted by them being next submitted to the commission of cardinals, and the whole finally sent up for the papal sanction. These commissions started work at the end of 1904.

Local Law.—The common law of the Roman Church cannot by itself uniformly regulate all the churches of the different nations; each of them has its own local law, which we must briefly mention here. In theory, this law Local law. has as its author the local ecclesiastical authorities, councils or bishops; but this is true only for laws and regulations which are in harmony with the common law, merely completing or defining it. But if it is a question of derogating from the common law, the authority of the Holy See must intervene to legalize these derogations. This intervention takes the form either of “indults,” i.e. graceful concessions granted at the request of the episcopate, or of special approbation of conciliary resolutions. It would, however, be impossible to mention any compilations containing only local law. Whether in the case of national or provincial councils, or of diocesan synods, the chief object of the decrees is to reinforce, define or apply the law; the measures which constitute a derogation have only a small place in them. It is, then, only in a limited sense that we can see a local canon law in the councils of the various regional churches. Having made this remark, we must distinguish between the countries which are still subject to the system of concordats and other countries.

In the case of the former, the local law is chiefly founded on the concordat (q.v.), including the derogations and privileges resulting from it. The chief thing to note is the existence, for these countries, of a civil-ecclesiastical Countries subject to concordats. law, that is to say, a body of regulations made by the civil authority, with the consent, more or less explicit, of the Church, about ecclesiastical matters, other than spiritual; these dispositions are chiefly concerned with the nomination or confirmation by the state of ecclesiastics to the most important benefices, and with the administration of the property of the Church; sometimes also with questions of jurisdiction, both civil and criminal, concerning the persons or property of the Church. It is plain that the agreements under the concordats have a certain action upon a number of points in the canonical laws; and all these points go to constitute the local concordatory law. This is the case for Austria, Spain, Portugal, Bavaria, the Prussian Rhine provinces, Alsace, Belgium, and, in America, Peru. Up to 1905 it was also the case in France, where the ancient local customs now continue, pending the reorganization of the Church without the concordat.

We do not imply that in other countries the Church can always find exemption from legislative measures imposed upon her by the civil authorities, for example, in Italy, Prussia and Russia; but here it is a situation de facto rather than de jure, which the Church tolerates for the sake of convenience; and these regulations only form part of the local canon law in a very irregular sense.

In other countries the episcopal assemblies lay down the local law. England has its council of Westminster (1852), the United States their plenary councils of Baltimore (1852, 1866, 1884), without mentioning the diocesan synods; and Other Countries. the whole of Latin America is ruled by the special law of its plenary council, held at Rome in 1899. The same is the case with the Eastern Churches united to the Holy See; following the example of the famous council of Lebanon for the Maronites, held in 1730, and that of Zamosc for the Ruthenians, in 1720, these churches, at the suggestion of Leo XIII., have drawn up in plenary assembly their own local law: the Syrians at Sciarfa in 1888; the Ruthenians at Leopol in 1891; and a little later, the Copts. The framing of local law will certainly be more clear and more easy when the general code of canon law has been published.

Canon Law in England and in the Anglican Communion.—There were matters in which the local English and Irish canon law, even before the 16th century, differed from that obtaining on the western part of the European continent. Thus (1), it has been said that—whereas the continental canon law recognized a quadripartite division of Church revenue of common right between (a) the bishop, (b) the clergy, (c) the poor, (d) the fabric—the English law maintained a tripartite division—(a) clergy, (b) the poor, (c) the fabric. Lord Selborne (Ancient Facts and Fictions concerning Churches and Tithes, 2nd ed., 1892) denies that there was any division of tithe in England. (2) By the general canon law the burden of repairing the nave, as well as the chancel of the church, was upon the parson or rector who collected the whole tithe. But the custom of England transferred this burden to the parishioners, and some particular local customs (as in the city of London) placed even the burden of repair of the chancel on them. To meet this burden church rates were levied. (3) A church polluted by the shedding of blood, as by suicide or murder, was reconsecrated on the continent. In England the custom was (and is) simply to “reconcile.” (4) A much more important difference, if the decision of the Irish court of exchequer chamber upheld in the House of Lords, where the peers were equally divided, correctly stated the English Canon law (Reg. v. Millis, 10 Cl. & Fin., 534) was in regard to the essentials of marriage. By the general Western canon law before the council of Trent, the parties themselves were said to be the “ministers of the Sacrament” in the case of holy matrimony. The declared consent of the parties to take each other there and then constituted at once (although irregularly) holy matrimony. The presence of priest or witnesses was not necessary. In Reg. v. Millis, however, it was held that in England it was always otherwise and that here the presence of a priest was necessary. High authorities, however, have doubted the historical accuracy of this decision. (5) The addition of houses of priests to the provincial synods seems peculiar to England and Ireland.

The historical position of the general canon law of the Catholic Church in the English provinces has, since the separation from Rome, been the subject of much consideration by English lawyers and ecclesiastics. The view taken by the king’s courts, and acquiesced in by the ecclesiastical courts, since Henry VIII., is that the Church of England was always an independent national church, subject indeed to the general principles of the jus commune ecclesiasticum (Whitlock J. in Ever v. Owen, Godbolt’s Reports, 432), but unbound by any particular constitutions of council or pope; unless those constitutions had been “received” here by English councils, or so recognized by English courts (secular or spiritual) as to become part of the ecclesiastical custom of the realm. Foreign canon law never bound (so it has been taught) proprio vigore.

The sources of English ecclesiastical law (purely ecclesiastical) were therefore (1) the principles of the jus commune ecclesiasticum; (2) foreign particular constitutions received here, as just explained; (3) the constitutions and canons of English synods (cf. Phill. Ecc. Law, part i. ch. iv., and authorities there cited).

1. On the existence of this jus commune ecclesiasticum and that the Church of England, in whatever sense independent, takes it over until she repeals it, see Escott v. Mastin, 4 Moo. P.C.C. 119. Lord Brougham, in delivering the judgment, speaks of the “common law prevailing for 1400 years over Christian Europe,” and (p. 137) says that “nothing but express enactment can abrogate the common law of all Christendom before the Reformation of the Anglican Church.”

2. As to foreign particular constitutions in England, there are a great number of them, of which it has been and is admitted, that they have currency in England. However papal in their origin, post-Reformation lawyers have regarded them as valid, unless they can be shown to be contrary to the king’s prerogative, or to the common or statute law of the realm. To this doctrine express statutory authority (as the events have happened) has been given by 25 Hen. VIII. c. 19, sect. 7. A striking example of the doctrine is furnished by the decree of Innocent III. in the Fourth Lateran Council against pluralities. This decree was enforced in the court of Arches against a pluralist clerk in 1848 (Burder v. Mavor, I Roberts, 614). The courts of common law from Lord Coke’s time downwards have recognized this “constitution of the pope” (as the queen’s bench called it in 1598). The exchequer chamber, in 1837, declared it to have “become part of the common law of the land” (Alstan v. Atlay, 7 A. and E. 289).

3. The particular constitutions of English synods are numerous and cover a large field. At least in legal theory, the only distinction between pre-Reformation and post-Reformation constitutions is in favour of the former—so long as they do not contravene the royal prerogative or the law of the land (see 25 Hen. VIII. c. 19). The most important are collected together and digested (so far as regards England) in Lyndwood’s Provinciale, a work which remains of great authority in English courts. These constitutions are again divided into two classes: (a) provincial constitutions promulgated by provincial synods, usually in the name of the presiding archbishop or bishop; and (b) decrees of papal legates, Otho in 1236 and Othobon (Ottobuono de’ Fieschi, afterwards Pope Adrian V.) in 1269. Canons passed since 25 Hen. VIII. c. 19 have not the parliamentary confirmation which that act has been held to give to previous canons, and do not necessarily bind the laity, although made under the king’s licence and ratified by him. This doctrine laid down by Lord Hardwicke in Middleton v. Croft (2 Stra. 1056) was approved in 1860 in Marshall v. Bp. of Exeter (L.R. 3 H.L. 17). Nevertheless, there are many provisions in these post-Reformation canons which are declaratory of the ancient usage and law of the Church, and the law which they thus record is binding on the laity. The chief body of English post-Reformation canon law is to be found in the canons of 1603, amended in 1865 and 1888. The canons of 1640 are apparently upon the same footing as those of 1603; notwithstanding objections made at the time that they were void because convocation continued to sit after the dissolution of parliament. The opinion of all the judges taken at the time was in favour of the legality of this procedure. 13 Car. ii. c. 12 simply provided that these canons should not be given statutory force by the operation of that act.

In addition to the enactment of canons (strictly so-called) the English provincial synods since the Henrician changes have legislated—in 1570 by the enactment of the Thirty-Nine Articles, in 1661 by approving the present Book of Common Prayer, and in 1873 by approving shorter forms of matins and evensong.

The distinction between pre-Henrician and post-Henrician procedure lies in the requirement, since 25 Hen. VIII., of the royal licence and confirmation. Apparently diocesan synods may still enact valid canons without the king’s authority; but these bodies are not now called.

The prevailing legal view of the position of the Church of England in regard to canon law has been just stated, and that is the view taken by judicial authority for the past three centuries. On the other hand, it is suggested by, e.g., the late Professor Maitland, that it was not, in fact, the view taken here in the later middle ages—that in those ages there was no theory that “reception” here was necessary to validate papal decrees. It is said by this school of legal historians that, from the Conquest down to Henry VIII., the Church of England was regarded by churchmen not as in any sense as separate entity, but as two provinces of the extra-territorial, super-national Catholic Church, and that the pope at this period was contemplated as the princeps of this Catholic Church, whose edicts bound everywhere, as those of Augustus had bound in the Roman empire.

It is right that this view should be stated, but it is not that of the writer of this article.

As to Ireland, in a national synod of the four Irish provinces held at Dublin before the four archbishops, in 1634, a hundred canons were promulgated with the royal licence, containing much matter not dealt with by similar constitutions in England. In 1711, some further canons were promulgated (with royal licence) by another national synod. Some forms of special prayer were appended to these canons.

In 1869 the Irish Church Act (32 and 33 Vict. c. 42) “disestablished” the Irish Church, sect. 19 repealed any act of parliament, law or custom whereby the bishops, clergy or laity of the said church were prohibited from holding synods or electing representatives thereto for the purpose of making rules for the well-being and ordering of the said church, and enacted that no such law, &c., should hinder the said bishops, clergy and laity, by such representatives, lay and clerical, and so elected as they shall appoint, from meeting in general synod or convention and in such general synod or convention forming constitutions and providing for future representation of the members of the church in diocesan synods, general convention or otherwise. The Church of Ireland, so set free, created for herself new legislative authorities, unknown to the old canon law, viz. mixed synods of clergy and laity, and a system of representation by election, unknown to primitive or medieval times. Similar changes had, however, been introduced during the preceding century in some parts of the Anglican communion outside the British Isles (see infra). Sect. 20 of the same statute kept alive the old ecclesiastical law of Ireland by way of assumed contract (cf. Ecclesiastical Jurisdiction).

Under the provisions of this statute, the “archbishops and bishops of the ancient Apostolic and Catholic Church of Ireland” (so they describe themselves), together with representatives of the clergy and laity, assembled in 1870, in “General Convention,” to “provide for the regulation” of that church. This Convention declared that a General Synod of the archbishops and bishops, with representatives of the clergy and laity, should have chief legislative power in the Irish Church, with such administrative power as might be necessary and consistent with the church’s episcopal constitution. This General Synod was to consist of two Houses—the House of Bishops and the House of Lay and Clerical Representatives. No question was to be carried unless there were in its favour a majority of the clerical and lay representatives, voting either conjointly or by orders, and also a majority of the bishops, should they desire to vote. This General Synod was given full power to alter or amend canons, or to repeal them, or to enact new ones. For any alteration or amendment of “articles, doctrines, rites or rubrics,” a two-thirds majority of each order of the representative house was required and a year’s delay for consultation of the diocesan synods. Provisions were made as to lay representation in the diocesan synods. The Convention also enacted some canons and a statute in regard to ecclesiastical tribunals (see Ecclesiastical Jurisdiction). It expressly provided that its own legislation might be repealed or amended by future general synods.

In 1871 the General Synod attempted to codify its canon law in forty-eight canons which, “and none other,” were to have force and effect as the canons of the Church of Ireland. Since 1871 the General Synod has, from time to time, put forth other canons.

The post-Reformation history of canon law in the Anglican communion in Scotland has differed from the story of that law in the last four centuries in Ireland. After the legislation under William and Mary disestablishing episcopacy in Scotland and subjecting its professors to civil penalties, little attention was given to canon law for many years. Synods of bishops at Edinburgh in 1724 and 1731 dealt with some disputed questions of ritual and ceremonial. In 1743 an assembly of five bishops enacted sixteen canons. A “primus” was to be chosen indifferently from the bishops, but to have no other powers than those of convoking and presiding over synods. He was to hold office only during pleasure of the other bishops. Bishops were to be elected by the presbyters of the district. Such election was subject to the confirmation of the majority of the bishops. In 1811, a “Code of Canons” was enacted by a “General Ecclesiastical Synod,” consisting of the bishops, the deans (viz. presbyters appointed by the bishops in each diocese to defend the interests of the presbyters and now for the first time given “decisive” voice in synods) and certain clerical representatives from the “districts” or dioceses. Future synods, called for the purpose of altering the code, were to consist of two chambers. The first was to be composed of the bishops; the second to consist of the “deans” and clerical representatives. No law or canon was to be enacted or abrogated, save by the consent of both chambers. These canons were revised in 1828, 1829 and 1838. The code of this last year created diocesan synods, to be held annually and to consist of the bishop, dean and all instituted clergy of the diocese. It also provided for the annual meeting of a purely episcopal synod, which was to receive appeals from either clergy or laity. In 1862-1863, another General Synod further revised and amended the Code of Canons. This revised code enabled the bishop to appoint a learned and discreet layman to act as his chancellor, to advise him in legal matters and be his assessor at diocesan synods. Assistant curates and mission priests were, under certain restrictions, given seats in diocesan synods. Male communicants were also permitted to be present at such synods, with a deliberative but not “decisive” voice; unless in special circumstances the bishop excluded them. Canon 46 provides that “if any question shall arise as to the interpretation of this Code of Canons or of any part thereof, the general principles of canon law shall be alone deemed applicable thereto.” This provision was reenacted in Canon 47 of 1876. Canon 51 of 1890, however, weakens this provision. It enacts that: “The preceding canons shall in all cases be construed in accordance with the principles of the civil law of Scotland. Nevertheless, it shall be lawful, in cases of dispute or difficulty concerning the interpretation of these canons, to appeal to any generally recognized principles of canon law.” The canons of 1862-1863 also provided for a lay share in the election of bishops. In 1890 the 32nd canon enacted that the “General Synod” should thereafter be called the Provincial Synod.

The canon law in Scotland before the 16th century was generally that of the continent of Europe. The usages of the church were similar to those in France, and had not the insular character of those in England and Ireland. The canon law regulating marriage, legitimacy and succession was taken over by the Scottish secular courts (see Ecclesiastical Jurisdiction) and survived as part of the common law of the land almost unimpaired. Thus, the courts recognize marriages by verba de praesenti or by verba de futuro cum copula—in this last matter following a decree of Gregory IX.—and also legitimation per subsequens matrimonium. But though one of the fontes juris Scotiae, 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 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 by the canons of a provincial council, is only received in Scotland according to equity and expediency.

The “Protestant Episcopal Church in the United States” is the organization of the Anglican Communion in the American colonies before the separation. This communion was subject to “all the laws of the Church of England applicable to its situation” (Murray Hoffman, A Treatise on the Law of the Protestant Episcopal Church, New York, 1850, p. 17). This body of law the Protestant Episcopal Church of the United States took over (op. cit. p. 41 et seq.; F. Vinton, A Manual Commentary on the General Canon Law and the Constitution of the Protestant Episcopal Church, New York, 1870, p. 16 et seq.). Much, however, of the English post-Reformation canonical legislation was not applicable to the United States, because of different circumstances, as e.g. a very large portion of the canons of 1603 (Vinton, p. 32). In 1789, a General Convention, consisting of clerical and lay deputies as well as of bishops, assumed for itself and provided for its successors supreme legislative power. The concurrence of both “orders,” clerical and lay, was required for the validity of any vote. Since 1853 a lay deputy to the Convention has been required to be a communicant (ib. p. 102). Upon the American bishops numbering more than three, they became a separate “House” from the “Convention.” The House of Bishops was given a right to propose measures to the “House of Deputies,” and to negative acts of the House of Deputies, provided they complied with certain forms. Similar “constitutions” providing for representation of the laity have been adopted by the different dioceses (Hoffman, op. cit. p. 184 et seq.). Deacons are also admitted to a deciding voice in every diocese but New Jersey, where they may speak but not vote. A great body of legislation has been put forth by these bodies during the past century.

Since 1870, at least, the “Church of the Province of South Africa” has secured autonomy while yet remaining a part of the Anglican Communion. By its constitution of that year the English Church in South Africa adopts the laws and usages of the Church of England, as far as they are applicable to an unestablished church, accepts the three creeds, the Thirty-Nine Articles, the Book of Common Prayer, the decisions of the undisputed general councils, the Authorized English Version of the Scriptures, disclaims the right of altering any of these standards of faith and doctrine, except in agreement with such alterations as may be adopted by a general synod of the Anglican Communion. But in interpreting these standards of faith and doctrine, the Church of the Province of South Africa is not bound by decisions other than those of its own Church courts, or such court as the Provincial Synod may recognize as a tribunal of appeal. The Provincial Synod is the legislative authority subject to a general synod of the Anglican Communion, provided such latter synod include representatives from the Church of South Africa. The Provincial Synod consists of (1) the House of Bishops, (2) the House of the Clergy, (3) the House of the Laity. No resolution can be passed which is not accepted by all three orders. Bishops are elected by the clergy with the assent of lay representatives, subject to the confirmation of the metropolitan and comprovincial bishops. The metropolitan is to be consecrated in England by the archbishop of Canterbury. He now bears the title of archbishop. All bishops are to enter into a contract to obey and maintain the constitution and canons of the province. Canon 18 of the Code of 1870 recognizes the offices of catechist, reader and sub-deacon (Wirgman, The English Church and People in South Africa, p. 223 et seq.).

In the West Indies, Canada, Australia and New Zealand, provincial and diocesan synods or conventions have been formed on one or other of the types above mentioned and have enacted canons.

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