User:CanonLawJunkie/Jus novum

The jus novum is the second major period in the legal history of the Catholic Church, following the jus antiquum. It spans from the Decretum of Gratian to the Council of Trent in the 16th century.

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 {{EB1911 Shoulder Heading|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), 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 {{EB1911 Shoulder Heading|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 {{EB1911 Shoulder Heading|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 {{EB1911 Shoulder Heading|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 {{EB1911 Shoulder Heading|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.

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 {{EB1911 Shoulder Heading|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 {{EB1911 Shoulder Heading|“Quinque compilationes.”}} Appendix concilii Lateranensis (council of 1179), we will speak only of the Quinque compilationes, 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 {{EB1911 Shoulder Heading|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. It remained the manner of organizing canon law until the 1917 Code of Canon Law. By a bull of the 28th of December 1210 Innocent {{EB1911 Shoulder Heading|“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, {{EB1911 Shoulder Heading|“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 {{EB1911 Shoulder Heading|“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 {{EB1911 Shoulder Heading|“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 {{EB1911 Shoulder Heading|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 nonetheless 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

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.

Liber Sextus

Main article: Liber Sextus

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.).

Clementinae

Main article: Liber Septimus § Constitutiones Clementinae, 1314

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 {{EB1911 Shoulder Heading|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).

Extravagantes 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 study of canon law

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.

Glosses

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).

Summae

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), Rolando Bandinelli (afterwards Alexander III., c. 1150), Rufinus (c. 1165), Étienne of Tournai (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 (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.

References

Bibliography

• Sweet, Alfred H., A.B., A.M., Ph.D., The National Encyclopedia, Volume Two (New York: P.F. Collier & Son Corporation, 1935), entry "CANON LAW", pp. 415–416.
• This article incorporates text from a publication now in the public domain: Walter George Frank Phillimore (1911). "Canon Law". In Chisholm, Hugh (ed.). Encyclopædia Britannica. Vol. 5 (11th ed.). Cambridge University Press.