Chapter XIII: Part 13

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 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.

Greek collection.

These compilations began in the East. It appears that in several different districts canons made by the local assemblies[1] were added to those of the council of Nicaea which were everywhere accepted and observed. The first example seems 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.

Its final form.

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 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]

Nomocanon.

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 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).

In the West.

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 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.

Africa.

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 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.

Rome.

Dionysius Exiguus and his collection.

Dionysio-Hadriana.

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 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 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 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.

In Gaul.

Quesnel collection.

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 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 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.

Councils.

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 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 Hispana.

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; 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, 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 Elvira[9] (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.

Great Britain and Ireland.

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 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.

Penitentials.

The Penitentials[10] 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 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 Cambrai[12] 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.

Irish collection.

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 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.

The false decretals.

Systematic collections.

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 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 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.

Regino.

Burchard.

Anselm Deusdedit.

Ivo of Chartres.

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 _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 Prum, and dedicated to Hatto of Mainz, relatively a very original treatise; the enormous compilation 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 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 Chartres[22] are of great importance. His _Panormia_, compiled 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 Liege, in 3 books, compiled at latest in 1123.

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

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 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.

Dicta Gratiani.

Contents.

Mode of citation.

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 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 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 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.

Authority.

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 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]

After Gratian.

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 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_).

"Quinque compilationes."

Bernard of Pavia, "Breviarium."

"Compilatio tertia."

"Secunda."

"Quarta."

"Quinta."

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 _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 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 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, 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 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 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_.

Decretals of Gregory IX.

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 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_.

Their relation to the general law.

The "Liber Sextus."

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 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 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 "Clementinae."

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 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)_.

"Extravagantes" of John XXII.

And "communes."

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 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 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)._

The "Corpus juris canonici."

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 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 study of canon law.

The glosses.

The "Summae."

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 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 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 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 Bandinelli[28] (afterwards Alexander III., c. 1150), Rufinus[29] (c. 1165), Etienne of Tournai[30] (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 Pavia[31] (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.

Editions.

The "Correctores romani."

"Institutiones Lancelotti."

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, &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 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, 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.

Final state of the law.

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; 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.

Dispersion of the texts.

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 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.

Decrees of the Council of Trent.

Pontifical constitutions.

Decrees of the Curia.

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 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 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 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.

"Liber septimus" of P. Mathieu.

of Clement VIII.

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 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 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.

Demand for codification.

Decision of Pius X.

Method.