User:CanonLawJunkie/Latin canon law

The canon law of the Latin Church is forms the oldest continuously functioning legal system in Western Europe and the first modern legal system in the West. It is the particular law of the Latin sui juris particular church. Relative to each diocese—a particular church within the Latin Church, including other canonical structures equivalent to dioceses in law—the 1983 Code is called "universal law" and the laws of each diocese are called "particular law". Both particular and universal law form the tradition of Latin canon law.

History and codification

This subject will be treated under the following heads:

I. General Notion and Divisions

II. Canon Law as a Science

III. Sources of Canon Law

IV. Historical Development of Texts and Collections

V. Codification

VI. Ecclesiastical Law

VII. The Principal Canonists

Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members. The word adopted is here used to point out the fact that there are certain elements in canon law borrowed by the Church from civil law or from the writings of private individuals, who as such had no authority in ecclesiastical society. Canon is derived from the Greek kanon, i.e. a rule or practical direction (not to speak of the other meanings of the word, such as list or catalogue), a term which soon acquired an exclusively ecclesiastical signification. In the fourth century it was applied to the ordinances of the councils, and thus contrasted with the Greek word nomoi, the ordinances of the civil authorities; the compound word "Nomocanon" was given to those collections of regulations in which the laws formulated by the two authorities on ecclesiastical matters were to be found side by side. At an early period we meet with expressions referring to the body of ecclesiastical legislation then in process of formation: canones, ordo canonicus, sanctio canonica; but the expression "canon law" (jus canonicum) becomes current only about the beginning of the twelfth century, being used in contrast with the "civil law" (jus civile), and later we have the "Corpus juris canonici", as we have the "Corpus juris Civilis". Canon law is also called "ecclesiastical law" (jus ecclesiasticum); however, strictly speaking, there is a slight difference of meaning between the two expressions: canon law denotes in particular the law of the "Corpus Juris", including the regulations borrowed from Roman law; whereas ecclesiastical law refers to all laws made by the ecclesiastical authorities as such, including those made after the compiling of the "Corpus Juris". Contrasted with the imperial or Caesarian law (jus caesareum), canon law is sometimes styled pontifical law (jus pontificium), often also it is termed sacred law (jus sacrum), and sometimes even Divine law (jus divinum: c. 2, De privil.), as it concerns holy things, and has for its object the wellbeing of souls in the society divinely established by Jesus Christ.

Canon law may be divided into various branches, according to the points of view from which it is considered:

• If we consider its sources, it comprises Divine law, including natural law, based on the nature of things and on the constitution given by Jesus Christ to His Church; and human or positive law, formulated by the legislator, in conformity with the Divine law. We shall return to this later, when treating of the sources of canon law.

• If we consider the form in which it is found, we have the written law (jus scriptum) comprising the laws promulgated by the competent authorities, and the unwritten law (jus non scripture), or even customary law, resulting from practice and custom; the latter however became less important as the written law developed.

• If we consider the subject matter of the law, we have the public law (jus publicum) and private law (jus privatum). This division is explained in two different ways by the different schools of writers: for most of the adherents of the Roman school, e.g. Cavagnis (Instit. jur. publ. eccl., Rome, 1906, I, 8), public law is the law of the Church as a perfect society, and even as a perfect society such as it has been established by its Divine founder: private law would therefore embrace all the regulations of the ecclesiastical authorities concerning the internal organization of that society, the functions of its ministers, the rights and duties of its members. Thus understood, the public ecclesiastical law would be derived almost exclusively from Divine and natural law. On the other hand, most of the adherents of the German school, following the idea of the Roman law (Inst., I, i, 4; "Publicum jus est quad ad statuary rei Romanae spectat: privatum quad ad privatorum utilitatem"), define public law as the body of laws determining the rights and duties of those invested with ecclesiastical authority, whereas for them private law is that which sets forth the rights and duties of individuals as such. Public law would, therefore, directly intend the welfare of society as such, and indirectly that of its members; while private law would look primarily to the wellbeing of the individual and secondarily to that of the community.

• Public law is divided into external law (jus externum) and internal law (jus internum). External law determines the relations of ecclesiastical society with other societies. either secular bodies (the relations therefore of the Church and the State) or religious bodies, that is, interconfessional relations. Internal law is concerned with the constitution of the Church and the relations subsisting between the lawfully constituted authorities and their subjects.

• Considered from the point of view of its expression, canon law may be divided into several branches, so closely allied, that the terms used to designate them are often employed almost indifferently: common law and special law; universal law and particular law; general law and singular law (jus commune et speciale; jus universale et particulare; jus generale et singulare). It is easy to point out the difference between them: the idea is that of a wider or a more limited scope; to be more precise, common law refers to things, universal law to territories, general law to persons; so regulations affecting only certain things, certain territories, certain classes of persons, being a restriction or an addition, constitute special, particular, or singular law, and even local or individual law. This exceptional law is often referred to as a privilege (privilegium, lex privata), though the expression is applied more usually to concessions made to an individual. The common law, therefore, is that which is to be observed with regard to a certain matter, unless the legislator has foreseen or granted exceptions; for instance, the laws regulating benefices contain special provisions for benefices subject to the right of patronage. Universal law is that which is promulgated for the whole Church; but different countries and different dioceses may have local laws limiting the application of the former and even derogating from it. Finally, different classes of persons, the clergy, religious orders, etc., have their own laws which are superadded to the general law.

• We have to distinguish between the law of the Western or Latin Church, and the law of the Eastern Churches, and of each of them. Likewise, between the law of the Catholic Church and those of the non-Catholic Christian Churches or confessions, the Anglican Church and the various Eastern Orthodox Churches.

• Finally, if we look to the history or chronological evolution of canon law, we find three epochs: from the beginning to the "Decretum" of Gratian exclusively; from Gratian to the Council of Trent; from the Council of Trent to our day. The law of these three periods is referred to respectively as the ancient, the new, and the recent law (jus antiquum, novum, novissimum), though some writers prefer to speak of the ancient law, the law of the Middle Ages, and the modern law (Laurentius, "Instit.", n.4).

As we shall see in treating of the gradual development of the material of canon law (see below, IV), though a legislative power has always existed in the Church, and though it has always been exercised, a long period had necessarily to elapse before the laws were reduced to a harmonious systematic body, serving as a basis for methodical study and giving rise to general theories. In the first place, the legislative authority makes laws only when circumstances require them and in accordance with a definite plan. For centuries, nothing more was done than to collect successively the canons of councils, ancient and recent, the letters of popes, and episcopal statutes; guidance was sought for in these, when analogous cases occurred, but no one thought of extracting general principles from them or of systematizing all the laws then in force. In the eleventh century certain collections group under the same headings the canons that treat of the same matters; however, it is only in the middle of the twelfth century that we meet in the "Decretum" of Gratian the first really scientific treatise on canon law. The School of Bologna had just revived the study of Roman law; Gratian sought to inaugurate a similar study of canon law. But, while compilations of texts and official collections were available for Roman law, or "Corpus juris civilis", Gratian had no such assistance. He therefore adopted the plan of inserting the texts in the body of his general treatise; from the disordered mass of canons collected from the earliest days, he selected not only the law actually in force (eliminating the regulations which had fallen into desuetude, or which were revoked, or not of general application) but also the principles; he elaborated a system of law which, however incomplete, was nevertheless methodical. The science of canon law, i.e. the methodical and coordinated knowledge of ecclesiastical law, was at length established.

Gratian's "Decretum" was a wonderful work; welcomed, taught and glossed by the decretists at Bologna and later in the other schools and universities, it was for a long time the textbook of canon law. However his plan was defective and confusing, and, after the day of the glosses and the strictly literal commentaries, it was abandoned in favour of the method adopted by Bernard of Pavia in his "Breviarium" and by St. Raymund of Pennafort in the official collection of the "Decretals" of Gregory IX, promulgated in 1234 (see CORPUS JURIS CANONICI). These collections, which did not include the texts used by Gratian, grouped the materials into five books, each divided into "titles", and under each title the decretals or fragments of decretals were grouped in chronological order. The five books, the subject matter of which is recalled by the well-known verse: "judex, judicium, clerus, connubia, crimen" (i.e. judge, judgment, clergy, marriages, crime), did not display a very logical plan; not to speak of certain titles that were more or less out of place. They treated successively of the depositaries of authority, procedure, the clergy and the things pertaining to them, marriage, crimes and penalties. In spite of its defects, the system had at least the merit of being official; not only was it adopted in the latter collections, but it served as the basis for almost all canonical works up to the sixteenth century, and even to our day, especially in the universities, each of which had a faculty of canon law.

However, the method of studying and teaching gradually developed: if the early decretalists made use of the elementary plan of the gloss and literal commentary, their successors in composing their treatises were more independent of the text; they commented on the titles, not on the chapters or the words; often they followed the titles or chapters only nominally and artificially. In the sixteenth century they tried to apply, not to the official collections, but in their lectures on canon law the method and division of the "Institutes" of Justinian: persons, things, actions or procedure, crimes, and penalties (Institutes, I, ii, 12). This plan, popularized by the "Institutiones juris canonici" of Lancellotti (1563), has been followed since by most of the canonist authors of "Institutiones" or manuals, though there has been considerable divergence in the subdivisions; most of the more extensive works, however, preserved the order of the "Decretals". This was also followed in the 1917 code. In later times many textbooks, especially in Germany, began to adopt original plans. In the sixteenth century too, the study of canon law was developed and improved like that of other sciences, by the critical spirit of the age: doubtful texts were rejected and the raison d'être and tendency or intention of later laws traced back to the customs of former days. Canon law was more studied and better understood; writings multiplied, some of an historical nature, others practical, according to the inclination of the authors. In the universities and seminaries, it became a special study, though as might be expected, not always held in equal esteem. It may be noted too that the study of civil law is now frequently separated from that of canon law, a result of the changes that have come over society. On the other hand, in too many seminaries the teaching of ecclesiastical law is not sufficiently distinguished from that of moral theology. The publication of the new general code of canon law will certainly bring about a more normal state of affairs.

The first object of the science of canon law is to fix the laws that are in force. This is not difficult when one has exact and recent texts, drawn up as abstract laws, e.g. most of the texts since the Council of Trent, and as will be the case for all canon law when the new code is published. But it was not so in the Middle Ages; it was the canonists who, to a large extent, formulated the law by extracting it from the accumulated mass of texts or by generalizing from the individual decisions in the early collections of decretals. When the law in force is known it must be explained, and this second object of the science of canon law is still unchanged. It consists in showing the true sense, the reason, the extension and application of each law and each institution. This necessitates a careful and exact application of the triple method of exposition, historical, philosophical, and practical: the first explains the law in accordance with its source and the evolution of customs; the second explains its principles; the last shows how it is to be applied at present. This practical application is the object of jurisprudence, which collects, coordinates and utilizes, for more or less analogous cases, the decisions of the competent tribunal. From this we may learn the position of canon law in the hierarchy of sciences. It is a judicial science, differing from the science of Roman law and of civil law inasmuch as it treats of the laws of an other society; but as this society is of the spiritual order and in a certain sense supernatural, canon law belongs also to the sacred sciences. In this category it comes after theology, which studies and explains in accordance with revelation, the truths to be believed; it is supported by theology, but in its turn it formulates the practical rules toward which theology tends, and so it has been called "theologia practica", "theologia rectrix". In as far as it is practical the science of canon law is closely related to moral theology; however, it differs from the latter which is not directly concerned with the acts prescribed or forbidden by the external law, but only with the rectitude of human acts in the light of the last end of man, whereas, canon law treats of the external laws relating to the good order of society rather than the workings of the individual conscience. Juridical, historical, and above all theological sciences are most useful for the comprehensive study of canon law.

This expression has a twofold meaning; it may refer to the sources from which the laws come and which give the latter their judicial force (fortes juris essendi); or it may refer to the sources where canon law is to be found (fortes juris cognoscendi), i.e. the laws themselves such as they occur in the texts and various codes. These sources are also called the material and the formal sources of canon law. We shall consider first the sources under the former aspect.

The ultimate source of canon law is God, Whose will is manifested either by the very nature of things (natural Divine law), or by Revelation (positive Divine law). Both are contained in the Scriptures and in Tradition. Positive Divine law cannot contradict natural law; it rather confirms it and renders it more definite. The Church accepts and considers both as sovereign binding laws which it can interpret but can not modify; however, it does not discover natural law by philosophic speculation; it receives it, with positive Divine law, from God through His inspired Books, though this does not imply a confusion of the two kinds of Divine law. Of the Old Law the Church has preserved in addition to the Decalogue some precepts closely allied to natural law, e.g. certain matrimonial impediments; as to the other laws given by God to His chosen people, it considers them to have been ritual and declares them abrogated by Jesus Christ. Or rather, Jesus Christ, the Lawgiver of the spiritual society founded by Him (Con. Trid., Sess. VI, "De justif.", can. I), has replaced them by the fundamental laws which He gave His Church. This Christian Divine law, if we may so call it, is found in the Gospels, in the Apostolic writings, in the living Tradition, which transmits laws as well as dogmas. On this positive Divine law depend the essential principles of the Church's constitution, the primacy, the episcopacy, the essential elements of Divine worship and the Sacraments, the indissolubility of marriage, etc.

Again, to attain its sublime end, the Church, endowed by its Founder with legislative power, makes laws in conformity with natural and Divine law. The sources or authors of this positive ecclesiastical law are essentially the episcopate and its head, the pope, the successors of the Apostolic College and its divinely appointed head, Saint Peter. They are, properly speaking, the active sources of canon law. Their activity is exercised in its most solemn form by the ecumenical councils, where the episcopate united with its head, and convoked and presided over by him, with him defines its teaching and makes the laws that bind the whole Church. The canons of the Ecumenical councils, especially those of Trent, hold an exceptional place in ecclesiastical law. But, without infringing on the ordinary power of the bishops, the pope, as head of the episcopate, possesses in himself the same powers as the episcopate united with him. It is true that the disciplinary and legislative power of the popes has not always, in the course of centuries, been exercised in the same manner and to the same extent, but in proportion as the administration became centralized, their direct intervention in legislation became more and more marked; and so the sovereign pontiff is the most fruitful source of canon law; he can abrogate the laws made by his predecessors or by Ecumenical councils; he can legislate for the whole church or for a part thereof, a country or a given body of individuals; if he is morally bound to take advice and to follow the dictates of prudence, he is not legally obliged to obtain the consent of any other person or persons, or to observe any particular form; his power is limited only by Divine law, natural and positive, dogmatic and moral. Furthermore, he is, so to say, the living law, for he is considered as having all law in the treasury of his heart ("in scrinio pectoris"; Boniface VIII. c. i, "De Constit." in VI). From the earliest ages the letters of the Roman pontiffs constitute, with the canons of the councils, the principal element of canon law, not only of the Roman Church and its immediate dependencies. but of all Christendom; they are everywhere relied upon and collected, and the ancient canonical compilations contain a large number of these precious "decretals" (decreta, statuta, epistolae decretales, and epistolae synodicae). Later, the pontifical laws are promulgated more usually as constitutions, Apostolic Letters, the latter being classified as Bulls or Briefs, according to their external form, or even as spontaneous acts, "Motu proprio". Moreover, the legislative and disciplinary power of the pope not being an in communicable privilege, the laws and regulations made in his name and with his approbation possess his authority: in fact, though most of the regulations made by the Congregations of the cardinals and other organs of the Curia are incorporated in the Apostolic Letters, yet the custom exists and is becoming more general for legislation to be made by mere decrees of the Congregations, with the papal approval. These are the "Acts of the Holy See" (Acta Sancte Sedis), and their object or purpose permitting, are real laws (see ROMAN CURIA).

Next to the pope, the bishops united in local councils, and each of them individually, are sources of law for their common or particular territory; canons of national or provincial councils, and diocesan statutes, constitute local law. Numerous texts of such origin are found in the ancient canonical collections. At the present day and for a long time past, the law has laid down clearly the powers of local councils and of bishops; if their decrees should interfere with the common law they have no authority save in virtue of pontifical approbation. It is well known that diocesan statutes are not referred to the sovereign pontiff, whereas the decrees of provincial councils are submitted for examination and approval to the Holy See (Const. "Immensa" of Sixtus V, 22 Jan., 1587). We may liken to bishops in this matter various bodies that have the right of governing themselves and thus enjoy a certain autonomy; such are prelates with territorial jurisdiction, religious orders, some exempt chapters and universities, etc. The concessions granted to them are generally subject to a certain measure of control.

Other sources of law are rather impersonal in their nature, chief among them being custom or the unwritten law. In canon law custom has become almost like a legislator; not in the sense that the people are made their own lawgiver, but a practice followed by the greater part of the community, and which is reasonable and fulfills the legal requirements for prescription and is observed as obligatory, acquires the force of law by at least the tacit consent of the legislator. Under such circumstances custom can create or rescind a legal obligation, derogate from a law, interpret it, etc. But it must be remarked that in our days, owing to the fully developed body of written law, custom plays a much less important part than did the practices and habits of early Christian times, when there was but little written law and even that seldom of wide application. The civil law of different nations, and especially the Roman law, may be numbered among the accessory sources of canon law. But it is necessary to explain more exactly its role and importance. Evidently secular law cannot be, strictly speaking, a source of canon law, the State as such having no competence in spiritual matters; yet it may become so by the more or less formal acceptation of particular laws by the ecclesiastical authorities. We pass by in the first place the laws made by the mutual agreement of both parties, such as the legislation of the numerous assemblies in the Visigothic kingdom, and the Frankish kingdom and empire, where the bishops sat with the lords and nobles. Such also is the case of the concordats of later ages, real contracts between the two powers. In these cases we have an ecclesiastico-civil law, the legal force of which arose from the joint action of the two competent authorities. It is in a different sense that Roman law, Germanic law, and in a lesser degree modern law, have become a subsidiary source of canon law.

It must be remembered that the Church existed for a long time before having a complete and coordinated system of law; that many daily acts of its administration, while objectively canonical, were of the same nature as similar acts in civil matters, e.g. contracts, obligations, and in general the administration of property; it was quite natural for the Church to accommodate itself in these matters to the existing flows, with out positively approving of them. Later when the canonists of the twelfth century began to systematize the ecclesiastical law, they found themselves in presence, on the one hand, of a fragmentary canon law, and on the other hand of the complete methodical Roman code; they had recourse to the latter to supply what was wanting in the former, whence the maxim adopted by the canonists and inserted in the "Corpus Juris", that the Church acts according to Roman law when canon law is silent (cap. 1. "De novi op. nunc.", X, i, V, tit. xxxii). Moreover, in the Teutonic kingdoms the clergy followed the Roman law as a personal statute. However, in proportion as the written canon law increased, Roman law became of less practical value in the Church (cap. 28, X, "De priv.", X, lib. V, tit. xxxiii). Canon law, it may be said, adopted from Roman law what relates to obligations, contracts, judiciary actions, and to a great extent civil procedure. Other Roman laws were the object of a more positive recognition than mere usage, i.e. they were formally approved, those, for instance, which though of secular origin, concerned ecclesiastical things, e.g. the Byzantine ecclesiastical laws, or again laws of civil origin and character but which were changed into canonical laws, e.g. the impediment of marriage arising from adoption. The juridical influence of Teutonic law was much less important, if we abstract from the inevitable adaptation to the customs of barbarous races, yet some survivals of this law in ecclesiastical legislation are worthy of note: the somewhat feudal system of benefices; the computation of the degrees of kindred; the assimilating of the penitential practices to the system of penal compensation (wehrgeld); finally, but for a time only, justification from criminal charges on the oath of guarantors or co-jurors (De purgatione canonica, lib. V, tit. xxxiv).

Modern law has only a restricted and local influence on canon law, and that particularly on two points. On the one hand, the Church conforms to the civil laws on mixed matters, especially with regard to the administration of its property; on some occasions even it has finally adopted as its own measures passed by the civil powers acting independently; a notable case is the French decree of 1809 on the "Fabriques d'église". On the other hand, modern legislation is indebted to the canon law for certain beneficial measures: part of the procedure in criminal, civil, and matrimonial cases, and to some extent, the organization of courts and tribunals.

Considered under the second aspect, the sources of canon law are the legislative texts, and the collections of those texts whence we derive our knowledge of the Church's laws. In order to appreciate fully the reasons for and the utility of the great work of codification of the canon law, recently begun by order of Pius X, it is necessary to recall the general history of those texts and collections, ever increasing in number up to the present time. A detailed account of each of the canonical collections is here out of place; the more important ones are the subject of special articles, to which we refer the reader; it will suffice if we exhibit the different stages in the development of these texts and collections, and make clear the movement to wards centralization and unification that has led up to the present situation. Even in the private collections of the early centuries, in which the series of conciliary canons were merely brought together in more or less chronological order, a constant tendency towards unification is noticeable. From the ninth century onwards the collections are systematically arranged; with the thirteenth century begins the first official collections, thenceforth the nucleus around which the new legislative texts centre, though it is not yet possible to reduce them to a harmonious and coordinated code. Before tracing the various steps of this evolution, some terms require to be explained. The name "canonical collections" is given to all collections of ecclesiastical legislative texts, because the principal texts were the canons of the councils. At first the authors of these collections contented themselves with bringing together the canons of the different councils in chronological order; consequently these are called "chronological" collections; in the West, the last important chronological collection is that of Pseudo-Isidore. After his time the texts were arranged according to subject matter; these are the "systematic" collections, the only form in use since the time of Pseudo-Isidore. All the ancient collections are private, due to personal initiative, and have, therefore, as collections, no official authority: each text has only its own intrinsic value; even the "Decretum" of Gratian is of this nature. On the other hand, official or authentic collections are those that have been made or at least promulgated by the legislator. They begin with the "Compilatio tertia" of Innocent III; the later collections of the "Corpus Juris", except the "Extravagantes", are official. All the texts in an official collection have the force of law. There are also general collections and particular collections: the former treating of legislation in general, the latter treating of some special subject, for instance, marriage, procedure, etc., or even of the local law of a district. Finally, considered chronologically, the sources and collections are classified as previous to or later than the "Corpus Juris".

A. Canonical Collections In the East

Until the Church began to enjoy peace, the written canon law was very meagre; after making full allowance for the documents that must have perished, we can discover only a fragmentary law, made as circumstances demanded, and devoid of all system. Unity of legislation, in as far as it can be expected at that period, is identical with a certain uniformity of practice, based on the prescriptions of Divine law relative to the constitution of the Church, the liturgy, the sacraments, etc. The clergy, organized everywhere in the same way, exercised almost everywhere the same functions. But at an early period we discover a greater local disciplinary uniformity between the Churches of the great sees (Rome, Carthage, Alexandria, Antioch, later Constantinople) and the Churches depending immediately on them. Further it is the disciplinary decisions of the bishops of the various regions that form the first nucleus of local canon law; these texts, spreading gradually from one country to another by means of the collections, obtain universal dissemination and in this way are the basis of general canon law.

There were, however, in the East, from the early days up to the end of the fifth century, certain writings, closely related to each other, and which were in reality brief canon law treatises on ecclesiastical administration the duties of the clergy and the faithful, and especially on the liturgy. We refer to works attributed to the Apostles, very popular in the Oriental Churches, though devoid of official authority, and which may be called pseudo-epigraphic, rather than apocryphal. The principal writings of this kind are the "Teaching of the Twelve Apostles" or "Didache", the "Didascalia", based on the "Didache"; the "Apostolic Constitutions", an expansion of the two preceding works; then the "Apostolic Church Ordinance", the "Definitio canonica SS. Apostolorum", the "Testament of the Lord" and the "Octateuch of Clement"; lastly the "Apostolic Canons". Of all this literature, only the "Apostolic Canons" werein cluded in the canonical collections of the Greek Church. The most important of these documents the "Apostolic Constitutions", was removed by the Second Canon of the Council in Trullo (692), as having been interpolated by the heretics. As to the eighty-five Apostolic Canons, accepted by the same council, they rank yet first in the above-mentioned "Apostolic" collection; the first fifty translated into Latin by Dionysius Exiguus (c. 500), were included in the Western collections and afterwards in the "Corpus Juris".

As the later law of the separated Eastern Churches did not influence the Western collections, we need not treat of it, but go on to consider only the Greek collection. It begins early in the fourth century: in the different provinces of Asia Minor, to the canons of local councils are added those of the ecumenical Council of Nicea (325), everywhere held in esteem. The Province of Pontus furnished the penitentiary decisions of Ancyra and Neocaesarea (314); Antioch; the canons of the famous Council "in encaeniis" (341), a genuine code of metropolitan organization; Paphlagonia, that of the Council of Gangra (343), a reaction against the first excesses of asceticism; Phrygia, the fifty-nine canons of Laodicea on different disciplinary and liturgical matters. This collection was so highly esteemed that at the Council of Chalcedon (451) the canons were read as one series. It was increased later by the addition of the canons of (Constantinople (381), with other canons attributed to it, those of Ephesus (431). Chalcedon (451), and the Apostolic canons. In 692 the Council in Trullo passed 102 disciplinary canons, the second of which enumerates the elements of the official collection: they are the texts we have just mentioned, together with the canons of Sardica, and of Carthage (419), according to Dionysius Exiguus, and numerous canonical letters of the great bishops, SS. Dionysius of Alexandria, Gregory Thaumaturgus, Basil, etc. If to these be added the canons of the two ecumenical councils of Nicea (787) and Constantinople (869) we have all the elements of the definitive collection in its final shape. A few "systematic" collections may be mentioned as pertaining to this period: one containing fifty titles by an unknown author about 535; another with twenty-five titles of the ecclesiastical laws of Justinian; a collection of fifty titles drawn up about 550, by John the Scholastic, a priest of Antioch. The compilations known as the "Nomocanons" are more important, because they bring together the civil laws and the ecclesiastical laws on the same subjects; the two principal are the Nomocanon, wrongly attributed to John the Scholastic, but which dates from the end of the sixth century, with fifty titles, and another, drawn up in the seventh century, and afterwards augmented by the Patriarch Photius in 883.

B. The Canonical Collections in the West to Pseudo-Isidore

In the West, canonical collections developed as in the East, but about two centuries later. At first appear collections of national or local laws, and the tendency towards centralization is partially effected in the ninth century. Towards the end of the fourth century there is yet in the West no canonical collection, not even a local one, those of the fifth century are essentially local, but all of them borrow from the Greek councils. The latter were known in the West by two Latin versions, one called the "Hispana" or "Isidorian", because it was inserted in the Spanish canonical collection, attributed to St. Isidore of Seville, the other called the "Itala" or "ancient" (Prisca), because Dionysius Exiguus, in the first half of the sixth century, found it in use at Rome, and being dissatisfied with its imperfections improved it. Almost all the Western collections, therefore, are based on the same texts as the Greek collection, hence the marked influence of that collection on Western canon law.

(1) At the end of the fifth century the Roman Church was completely organized and the popes had promulgated many legislative texts; but no collection of them had yet been made. The only extra-Roman canons recognized were the canons of Nicea and Sardica, the latter being joined to the former, and at times even cited as the canons of Nicea. The Latin version of the ancient Greek councils was known, but was not adopted as ecclesiastical law. Towards the year 500 Dionysius Exiguus compiled at Rome a double collection, one of the councils, the other of decretals, i.e. papal letters. The former, executed at the request of Stephen, Bishop of Salona, is a translation of the Greek councils, including Chalcedon, and begins with the fifty Apostolic canons; Dionysius adds to it only the Latin text of the canons of Sardica and of Carthage (419), in which the more ancient African councils are partially reproduced. The second is a collection of thirty-nine papal decretals, from Siricius (384) to Anastasius II (496-98). (See CANONS, COLLECTIONS OF ANCIENT.) Thus joined together these two collections became the canonical code of the Roman Church, not by official approbation, but by authorized practice. But while in the work of Dionysius the collection of conciliary canons remained unchanged, that of the decretals was successively increased; it continued to incorporate letters of the different popes till about the middle of the eighth century when Adrian I gave (774) the collection of Dionysius to the future Emperor Charlemagne as the canonical book of the Roman Church. This collection, often called the "Dionysio-Hadriana", was soon officially received in all Frankish territory, where it was cited as the "Liber Canonum", and was adopted for the whole empire of Charlemagne at the Diet of Aachen in 802. This was an important step towards the centralization and unification of the ecclesiastical law, especially as the Latin Catholic world hardly extended beyond the limits of the empire, Africa and the south of Spain having been lost to the Church through the victories of Islam.

(2) The canon law of the African Church was strongly centralized at Carthage; the documents naturally took the form of a collection, as it was customary to read and insert in the Acts of each council the decisions of the preceding councils. At the time of the invasion of the Vandals, the canonical code of the African Church comprised, after the canons of Nicea, those of the Council of Carthage under Bishop Gratus (about 348), under Genethlius (390), of twenty or twenty-two plenary councils under Aurelius (from 393 to 427), and the minor councils of Constantinople. Unfortunately these records have not come down to us in their entirety; we possess them in two forms: in the collection of Dionysius Exiguus, as the canons of a "Concilium Africanum"; in the Spanish collection, as those of eight councils (the fourth wrongly attributed, being a document from Aries, dating about the beginning of the sixth century). Through these two channels the African texts entered into Western canon law. It will suffice to mention the two "systematic" collections of Fulgentius Ferrandus and Cresconius.

(3) The Church in Gaul had no local religious centre, the territory being divided into unstable kingdoms; it is not surprising therefore that we meet no centralized canon law or universally accepted collection. There are numerous councils, however, and an abundance of texts; but if we except the temporary authority of the See of Arles, no church of Gaul could point to a permanent group of dependent sees. The canonical collections were fairly numerous, but none was generally accepted. The most widespread was the "Quesnelliana", called after its editor (the Jansenist Paschase Quesnel), rich, but badly arranged, containing many Greek, Gallic, and other councils, also pontifical decretals. With the other collections it gave way to the "Hadriana", at the end of the eighth century.

(4) In Spain, on the contrary, at least after the conversion of the Visigoths, the Church was strongly centralized in the See of Toledo, and in close union with the royal power. Previous to this, we must note the collection of St. Martin of Braga, a kind of adaptation of conciliary canons, often incorrectly cited in the Middle Ages as the "Capitula Martini papae" (about 563). It was absorbed in the large and important collection of the Visigothic Church. The latter, begun as early as the council of 633 and increased by the canons of subsequent councils, is known as the "Hispana" or "Isidoriana", because in later times it was attributed (erroneously) to St. Isidore of Seville. It comprises two parts: the councils and the decretals; the councils are arranged in four sections: the East, Africa, Gaul, Spain, and chronological order is observed in each section; the decretals, 104 in number, range from Pope St. Damasus to St. Gregory (366-604). Its original elements consist of the Spanish councils from Elvira (about 300) to the Seventeenth Council of Toledo in 694. The influence of this collection, in the form it assumed about the middle of the ninth century, when the False Decretals were inserted into it, was very great.

(5) Of Great Britain and Ireland we need mention only the Irish collection of the beginning of the eighth century, from which several texts passed to the continent; it is remarkable for including among its canons citations from the Scriptures and the Fathers.

(6) The collection of the False Decretals, or the Pseudo-Isidore (about 850), is the last and most complete of the "chronological" collections, and therefore the one most used by the authors of the subsequent "systematic" collections; it is the "Hispana" or Spanish collection together with apocryphal decretals attributed to the popes of the first centuries up to the time of St. Damasus, when the authentic decretals begin. It exerted a very great influence.

(7) To conclude the list of collections, where the later canonists were to garner their materials, we must mention the "Penitentials", the "Ordines" or ritual collections, the "Formularies", especially the "Liber Diurnus"; also compilations of laws, either purely secular, or semi-ecclesiastical, like the "Capitularies" (q.v.). The name "capitula" or "capitularia" is given also to the episcopal ordinances quite common in the ninth century. It may be noted that the author of the False Decretals forged also false "Capitularies", under the name of Benedict the Deacon, and false episcopal "Capitula", under the name of Angilramnus, Bishop of Metz.

C. Canonical Collections to the Time of Gratian

The Latin Church was meanwhile moving towards closer unity; the local character of canonical discipline and laws gradually disappears, and the authors of canonical collections exhibit a more personal note, i.e. they pick out more or less advantageously the texts, which they borrow from the "chronological" compilations, though they display as yet no critical discernment, and include many apocryphal documents, while others continue to be attributed to the wrong sources. They advance, nevertheless, especially when to the bare texts they add their own opinions and ideas. From the end of the ninth century to the middle of the twelfth these collections are very numerous; many of them are still unpublished, and some deservedly so. We can only mention the principal ones:

• A collection in twelve books, compiled in Northern Italy, and dedicated to an Archbishop Anselm, doubtless Anselm II of Milan (833-97), still unedited; it seems to have been widely used.

• The "Libri duo de synodalibus causis" of Regino, Abbot of Prum (d. 915), a pastoral visitation manual of the bishop of the diocese, edited by Wasserschleben (1840).

• The voluminous compilation, in twenty books, of Burchard, Bishop of Worms, compiled between 1012 and 1022, entitled the "Collectarium", also "Decretum", a manual for the use of ecclesiastics in their ministry; the nineteenth book, "Corrector" or "Medicus", treats of the administration of the Sacrament of Penance, and was often current as a distinct work. This widely circulated collection is in P.L., CXL. At the end of the eleventh century there appeared in Italy several collections favouring the reform of Gregory VII and supporting the Holy See in the in vestiture strife; some of the authors utilized for their works the Roman archives.

• The collection of Anselm, Bishop of Lucca (d. 1086), in thirteen books, still unedited, an influential work.

• The collection of Cardinal Deusdedit, dedicated to Pope Victor III (1087), it treats of the primacy of the pope, of the Roman clergy, ecclesiastical property, immunities, and was edited by Martinucci in 1869, more recently and better by Wolf von Glanvell (1905).

• The "Breviarium" of Cardinal Atto; edited by Mai, "Script. vet. nova collect.", VI, app. 1832.

• The collection of Bonizo, Bishop of Sutri in ten books, written after 1089, still unedited.

• The collection of Cardinal Gregory, called by him "Polycarpus", in eight books, written before 1120, yet unedited.

• In France we must mention the small collection of Abbo, Abbot of Fleury (d. 1004). in fifty-two chapters, in P. L., CXXXIX; and especially

• the collections of Ives, Bishop of Chartres (d. 1115 or 1117), i.e. the "Collectio trium partium", the "Decretum", es pecially the "Panormia", a short compilation in eight books, extracted from the preceding two works, and widely used. The "Decretum" and the "Panormia" are in P. L., CLXI.

• The unedited Spanish collection of Saragossa (Caesar-augustana) is based on these works of Ives of Chartres.

• Finally, the "De misericordia et justitia", in three books, composed before 1121 by Algerus of Liège, a general treatise on ecclesiastical discipline, in which is fore shadowed the scholastic method of Gratian, reprinted in P.L., CLXXX.

D. The "Decretum" of Gratian: the Decretists

The "Concordantia discordantium canonum", known later as "Decretum", which Gratian published at Bologna about 1148, is not, as we consider it today, a collection of canonical texts, but a general treatise, in which the texts cited are inserted to help in establishing the law. It is true that the work is very rich in texts and there is hardly a canon of any importance contained in the earlier collections (including the decisions of the Lateran Council of 1139 and recent papal decretals) that Gratian has not used. His object, however, was to build up a juridical system from all these documents. Despite its imperfections, it must be admitted that the work of Gratian was as near perfection as was then possible. For that reason it was adopted at Bologna, and soon elsewhere, as the textbook for the study of canon law. (For an account of this collection see CORPUS JURIS CANONICI; CANONS.) We may here recall again that the "Decretum" of Gratian is not a codification, but a privately compiled treatise; further, that the building up of a general system of canon law was the work of the canonists, and not of the legislative authorities as such.

Quite as the professors at Bologna commented on Justinian's "Corpus juris civilis", so they began at once to comment on Gratian's work, the personal element as well as his texts. The first commentators are called the "Decretists". In their lectures (Lat. lecturae, readings) they treated of the conclusions to be drawn from each part and solved the problems (quaestiones) arising therefrom. They synopsized their teaching in "glosses", interlinear at first, then marginal, or they composed separate treatises known as "Apparatus", "Summae", "Repetitiones", or else collected "casus", "questiones", "Margaritae", "Breviaria", etc. The principal decretists are:

• Paucapalea, perhaps the first disciple of Gratian, whence, it is said, the name "palea" given to the additions to the "Decretum" (his "Summa" was edited by Schulte in 1890);

• Roland Bandinelli, later Alexander III (his "Summa" was edited by Thaner in 1874);

• Omnibonus, 1185 (see Schulte, "De Decreto ab Omnibono abbreviate", 1892);

• John of Faenza (d. bishop of that city in 1190);

• Rufinus ("Summa" edited by Singer, 1902);

• Stephen of Tournai (d. 1203; "Summa" edited by Schulte, 1891);

• the great canonist Huguccio (d. 1910; "Summa" edited by M. Gillmann);

• Sicard of Cremona (d. 1215);

• John the Teuton, really Semeca or Zemcke (d. 1245);

• Guido de Baysio, the "archdeacon" (of Bologna, d. 1313); and especially

• Bartholomew of Brescia (d. 1258), author of the "gloss" on the "Decretum" in its last form.

E. Decretals and Decretalists

While lecturing on Gratian's work the canonists laboured to complete and elaborate the master's teaching; with that view they collected assiduously the decretals of the popes, and especially the canons of the Ecumenical councils of the Lateran (1179, 1215); but these compilations were not intended to form a complete code, they merely centred round and supplemented Gratian's "Decretum"; for that reason these Decretals are known as the "Extravagantes", i.e. outside of, or extraneous to, the official collections. The five collections thus made between 1190 and 1226 (see DECRETALS), and which were to serve as the basis for the work of Gregory IX, mark a distinct step forward in the evolution of canon law: whereas Gratian had inserted the texts in his own treatise, and the canonists wrote their works without including the texts, we have now compilations of supplementary texts for the purpose of teaching, but which nevertheless remain quite distinct; in addition, we at last find the legislators taking part officially in editing the collections. While the "Breviarium" of Bernard of Pavia, the first to exhibit the division into five books and into titles, which St. Raymund of Pennafort was later to adopt, is the work of a private individual, the "Compilatio tertia" of Innocent III in 1210, and the "Compilatio quinta" of Honorius III, in 1226, are official collections. Though the popes, doubtless, intended only to give the professors at Bologna correct and authentic texts, they nevertheless acted officially; these collections, however, are but supplements to Gratian.

This is also true of the great collection of "Decretals" of Gregory IX (see DECRETALS and CORPUS JURIS CANONICI). The pope wished to collect in a more uniform and convenient manner the decretals scattered through so many different compilations; he entrusted this synopsis to his chaplain Raymund of Pennafort, and in 1234 sent it officially to the universities of Bologna and Paris. He did not wish to suppress or supplant the "Decretum" of Gratian, but this eventually occurred. The "Decretals" of Gregory IX, though composed in great part of specific decisions, represented in fact a more advanced state of law; furthermore, the collection was sufficiently extensive to touch almost every matter, and could serve as a basis for a complete course of instruction. It soon gave rise to a series of commentaries, glosses, and works, as the "Decretum" of Gratian had done, only these were more important since they were based on more recent and actual legislation. The commentators of the Decretals were known as Decretalists. The author of the "gloss" was Bernard de Botone (d. 1263); the text was commented on by the most distinguished canonists; among the best known previous to the sixteenth century, we must mention:

• Bernard of Pavia ("Summa" edited by Laspeyres, 1860),

• Tancred, archdeacon of Bologna, d. 1230 ("Summa de Matrimonio", ed. Wunderlich, 1841);

• Godfrey of Trani (1245);

• Sinibaldo Fieschi, later Innocent IV (1254), whose "Apparatus in quinque libros decre taliurn" has been frequently reprinted since 1477;

• Henry of Susa, later Cardinal-Bishop of Ostia (d. 1271), hence "Hostiensis"; his "Summa Hostiensis", or "Summa aurea" was one of the best known canonical works, and was printed as early as 1473;

• Aegilius de Fuscarariis (d. 1289);

• William Durandus (d. 1296, Bishop of Mende), surnamed "Speculator", on account of his important treatise on procedure, the "Speculum judiciale", printed in 1473;

• Guido de Baysio, the "archdeacon", already mentioned;

• Nicolas de Tudeschis (d. 1453), also known as "Abbes siculus" or simply "Panormitanus" (or also "Abbas junior seu modernus") to distinguish him from the "Abbas antiques", whose name is unknown and who commented on the Decretals about 1275); Nicolas left a "Lecture" on the Decretals, the Liber Sextus, and the Clementines.

For some time longer, the same method of collecting was followed; not to speak of the private compilations, the popes continued to keep up to date the "Decretals" of Gregory IX; in 1245 Innocent IV sent a collection of forty-two decretals to the universities, ordering them to be inserted in their proper places; in 1253 he forwarded the "initia" or first words of the authentic decretals that were to be accepted. Later Gregory X and Nicholas III did likewise, but with little profit, and none of these brief supplementary collections survived. The work was again undertaken by Boniface VIII, who had prepared and published an official collection to complete the five existing books; this was known as the "Sextus" (Liber Sextus). Clement V also had prepared a collection which, in addition to his own decretals, contained the decisions of the Council of Vienne (1311-12); it was published in 1317 by his successor John XXII and was called the "Clementina." This was the last of the medieval official collections. Two later compilations included in the "Corpus Juris" are private works, the "Extravagantes of John XXII", arranged in 1325 by Zenzelin de Cassanis, who glossed them, and the "Extra vagantes communes", a belated collection; it was only in the edition of the "Corpus Juris" by Jean Chappuis, in 1500, that these collections found a fixed form. The "Sextus" was glossed and commented by Joannes Andrae, called the "fons et tuba juris" (d. 1348), and by Cardinal Jean Le Moine (Joannes Monachus, d. 1313), whose works were often printed.

When authors speak of the "closing" of the "Corpus Juris", they do not mean an act of the popes for bidding canonists to collect new documents, much less forbidding themselves to add to the ancient collections. But the canonical movement, so active after Gratian's time, has ceased forever. External circumstances, it is true, the Western Schism, the troubles of the fifteenth century, the Reformation, were unfavourable to the compiling of new canonical collections; but there were more direct causes. The special object of the first collections of the decretals was to help settle the law, which the canonists of Bologna were trying to systematize; that is why they contain so many specific decisions, from which the authors gathered general principles; when these had been ascertained the specific decisions were of no use except for jurisprudence; and in fact the "Sextus", the "Clementinae", and the other collections contain texts only when they are the statement of a general law. Any changes deemed necessary could be made in teaching without the necessity of recasting and augmenting the already numerous and massive collections.

F. From the Decretals to the Present Time

After the fourteenth century, except for its contact with the collections we have just treated of, canon law loses its unity. The actual law is found in the works of the canonists rather than in any specific collection; each one gathers his texts where he can; there is no one general collection sufficient for the purpose. It is not a case of confusion, but of isolation and dispersion. The sources of law later than the "Corpus Juris" are:

• the decisions of councils, especially of the Council of Trent (1545-1563) and the Second Vatican Council, which are so varied and important that by themselves they form a short code, though without much order;

• the constitutions of the popes, numerous but hitherto not officially collected, except the "Bullarium" of Benedict XIV (1747);

• the Rules of the Apostolic Chancery (q.v.);

• the 1917 Code of Canon Law;

• lastly the decrees, decisions, and various acts of the Roman Congregations, jurisprudence rather than law properly so called.

For local law we have provincial councils and diocesan statutes. It is true there have been published collections of councils and Bullaria. Several Roman Congregations have also had their acts collected in official publications; but these are rather erudite compilations or repertories. The method followed, both by private individuals and the popes, in drawing up canonical collections is generally rather that of a coordinated compilation or juxtaposition of documents than codification in the modern sense of the word, i.e. a redaction of the laws (all the laws) into an orderly series of short precise texts. It is true that antiquity, even the Roman law, did not offer any model different from that of the various collections, that method, however, long since ceased to be useful or possible in canon law. After the "closing" of the "Corpus Juris" two attempts were made; the first was of little use, not being official; the second, was official, but was not brought to a successful issue. In 1590 the jurisconsult Pierre Mathieu, of Lyons. published under the title "Liber septimus" a supplement to the "Corpus Juris", divided according to the order of the books and titles of the Decretals. It includes a selection of papal constitutions, from Sixtus IV to Sixtus V (1471-1590), but not the decrees of the Council of Trent. This compilation was of some service, and in a certain number of editions of the "Corpus Juris" was included as an appendix. As soon as the official edition of the "Corpus Juris" was published in 1582, Gregory XIII appointed a commission to bring up to date and complete the venerable collection. Sixtus V hastened the work and at length Cardinal Pinelli presented to Clement VIII what was meant to be a "Liber septimus". For the purpose of further studies the pope had it printed in 1598: the pontifical constitutions and the decrees of the Council of Trent were inserted in it in the order of the Decretals. For several reasons Clement VIII refused to approve this work and the project was definitively abandoned. Had this collection been approved it would have been as little used today as the others, the situation continuing to grow worse.

Many times during the nineteenth century, especially at the time of the Vatican Council (Collectio Lacensis, VII, 826), the bishops had urged the Holy See to draw up a complete collection of the laws in force, adapted to the needs of the day. It is true, their requests were complied with in regard to certain matters; Pius X in his "Motu proprio" of 19 March, 1904, refers to the constitution "Apostolicae Sedis" limiting and cataloguing the censures "latae sententie", the Constitution "Officiorum", revising the laws of the Index; the Constitution "Conditre" on the religious congregations with simple vows. These and several other documents were, moreover, drawn up in short precise articles, to a certain extent a novelty, and the beginning of a codification. Pius later officially ordered a codification, in the modern sense of the word, for the whole canon law. In the first year of his pontificate he issued the Tutu Proprio "Arduum", (De Ecclesiae legibus in unum redigendis); it treats of the complete codification and reformation of canon law. For this purpose the pope requested the entire episcopate, grouped in provinces, to make known to him the reforms they desired. At the same time he appointed a commission of consultors, on whom the initial work devolved, and a commission of cardinals, charged with the study and approval of the new texts, subject later to the sanction of the sovereign pontiff. The plans of the various titles were confided to canonists in every country. The general idea of the Code that followed includes (after the preliminary section) four main divisions: persons, things (with subdivisions for the sacraments, sacred places and objects, etc.). trials, crimes and penalties. It is practically the plan of the "Institutiones", or manuals of canon law. The articles were numbered consecutively. This great work was finished in 1917.

The sources of canon law, and the canonical writers. give us, it is true, rules of action, each with its specific object. We have now to consider all these laws in their common abstract element, in other words Ecclesiastical Law, its characteristics and its practice. According to the excellent definition of St. Thomas (I-II:90:1) a law is a reasonable ordinance for the common good promulgated by the head of the community. Ecclesiastical law therefore has for its author the head of the Christian community over which he has jurisdiction strictly so called; its object is the common welfare of that community, although it may cause inconvenience to individuals; it is adapted to the obtaining of the common welfare, which implies that it is physically and morally possible for the majority of the community to observe it; the legislator must intend to bind his subjects and must make known that intention clearly; finally he must bring the law under the notice of the community. A law is thus distinguished from a counsel, which is optional not obligatory; from a precept, which is imposed not on the community but on individual members; and from a regulation or direction, which refers to accessory matters.

The object therefore of ecclesiastical law is all that is necessary or useful in order that the society may attain its end, whether there be question of its organization, its working, or the acts of its individual members; it extends also to temporal things, but only indirectly. With regard to acts, the law obliges the individual either to perform or to omit certain acts; hence the distinction into "affirmative or preceptive" laws and "negative or prohibitory" laws; at times it is forced to allow certain things to be done, and we have "permissive" laws, or laws of forbearance; finally, the law in addition to forbidding a given act may render it, if performed, null and void; these are "irritant" laws. Laws in general, and irritant laws in particular, are not retroactive, unless such is expressly declared by the legislator to be the case. The publication or promulgation of the law has a double aspect: law must be brought to the knowledge of the community in order that the latter may be able to observe it, and in this consists the publication. But there may be legal forms of publication, requisite and necessary, and in this consists the promulgation properly so called (see PROMULGATION). Whatever may be said about the forms used in the past, today the promulgation of general ecclesiastical laws is effected exclusively by the insertion of the law in the official publication of the Holy See, the "Acta Apostolical Sedis", in compliance with the Constitution "Promulgandi", of Pius X, dated 29 September, 1908, except in certain specifically mentioned cases. The law takes effect and is binding on all members of the community as soon as it is promulgated, allowing for the time morally necessary for it to become known, unless the legislator has fixed a special time at which it is to come into force.

No one is presumed to be ignorant of the law; only ignorance of fact. not ignorance of law, is excusable (Reg. 1:3 jur. in VI). Everyone subject to the legislator is bound in conscience to observe the law. A violation of the law, either by omission or by act, is punishable with a penalty (q.v.). These penalties may be settled beforehand by the legislator, or they may be left to the discretion of the judge who imposes them. A violation of the moral law or what one's conscience judges to be the moral law is a sin; a violation of the exterior penal law, in addition to the sin, renders one liable to a punishment or penalty; if the will of the legislator is only to oblige the offender to submit to the penalty, the law is said to be "purely penal"; such are some of the laws adopted by civil legislatures, and it is generally admitted that some ecclesiastical laws are of this kind. As baptism is the gate of entrance to the ecclesiastical society, all those who are baptized, even non-Catholics, are in principle subject to the laws of the Church; in practice the question arises only when certain acts of heretics and schismatics come before Catholic tribunals; as a general rule an irritant law is enforced in such a case, unless the legislator has exempted them from its observance, for instance, for the form of marriage. General laws, therefore, bind all Catholics wherever they may be. In the case of particular laws, as one is subject to them in virtue of one's domicile, or even quasi-domicile, passing strangers are not subject to them, except in the case of acts performed within the territory.

The role of the legislator does not end with the promulgation of the law; it is his office to explain and interpret it (declaratio, interpretatio legis). The interpretation is "official" (authentica) or even "necessary", when it is given by the legislator or by some one authorized by him for that purpose; it is "customary", when it springs from usage or habit; it is "doctrinal", when it is based on the authority of the learned writers or the decisions of the tribunals. The official interpretation alone has the force of law. According to the result, the interpretation is said to be "comprehensive, extensive, restrictive, corrective," expressions easily understood. The legislator, and in the case of particular laws the superior, remains master of the law; he can suppress it either totally (abrogation), or partially (derogation), or he can combine it with a new law which suppresses in the first law all that is incompatible with the second (abrogation). Laws co-exist as far as they are reconcilable; the more recent modifies the more ancient, but a particular law is not suppressed by a general law, unless the fact is stated expressly. A law can also cease when its purpose and end cease, or even when it is too difficult to be observed by the generality of the subjects; it then falls into desuetude (see CUSTOM).

In every society, but especially in a society so vast and varied as the Church, it is impossible for every law to be applicable always and in all cases. Without suppressing the law, the legislator can permanently exempt from it certain persons or certain groups, or certain matters, or even extend the rights of certain subjects; all these concessions are known as privileges. In the same manner the legislator can derogate from the law in special cases; this is called a dispensation. Indults or the powers that the bishops of the Catholic world receive from the Holy See, to regulate the various cases that may arise in the administration of their dioceses, belong to the category of privileges; together with the dispensations granted directly by the Holy See, they eliminate any excessive rigidity of the law, and ensure to ecclesiastical legislation a marvellous facility of application. Without imperilling the rights and prerogatives of the legislator, but on the contrary strengthening them, indults impress more strongly on the law of the Church that humane, broad, merciful character, mindful of the welfare of souls, but also of human weakness, which likens it to the moral law and distinguishes it from civil legislation, which is much more external and inflexible.

It is impossible to draw up a detailed and systematic catalogue of all the works of special value in the study of canon law; the most distinguished canonists are the subject of special articles in this Encyclopedia. Those we have mentioned as commentators of the ancient canonical collections are now of interest only from an historical point of view; but the authors who have written since the Council of Trent are still read with profit; it is in their great works that we find our practical canon law. Among the authors who have written on special chapters of the "Corpus Juris", we must mention (the date refers to the first edition of the works):

Those subject to Latin canon law

In general, only Latin Catholics are subject to Latin canon law. Catholics of the Eastern Churches are subject to the Code of Canons of the Eastern Churches and to the particular law of their sui juris particular church. A non-Latin Catholic may become subject to Latin canon law when seeking to marry a Latin Catholic.

CHAPTER IV

HISTORY OF THE SOURCES AND LITERATURE OF CANON LAW s

The chief authorities to be consulted are:

Ballenini, Peter and Jerome, in their ed. of the Opera Leonis M., t. 3 (Migne, Pat. Lai., t. 56) ;

P. Coustant, O.S.B., Epistolae Rom. Pontificum, Parisiis, 1721, Praef.; _^-F. Laurin, lntroductio in Corpus Juris Can., Friburgi, 1889;

F. Maassen, Geschichte der Quellen u. der Literatur

des Canonischen Rechts, Gratz, 1870 (Vol. 1, the only one

published) ;

_^-^J. F. Schulte, Geschichte der Quellen w. Literatur des

Canonischen Rechts von Gratian bis auf die Gegenwart,

i&75* 3 vo13 -; Aug. Theiner, Disquisitlones Critlcae, 1836.

The critical and historical method of treating the sources of Canon Law began with Humanism, or, more properly, with Nicholas of Cusa (Cusanus, + 1464). That the Pseudo-Isidorian Collection should be first at- tacked was natural. But this was but a beginning. Much remained to be done in regard to papal letters and conciliary decrees. A great deal had been achieved by the Spaniard Antonius Augustinus, in the sixteenth cen- tury, but his work was left incomplete. More elaborate were the critical labors of the brothers Peter and Jerome Ballerini, who deserve a distinguished place in canonistic

18

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HISTORY AND LITERATURE 19

literature. The names of Maassen and Schulte also are favorably known in this line of studies.

We can give only a brief historical sketch of the col- lections made according to the various epochs which Canon Law traversed.

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SECTION i

FIRST PERIOD (TO ABOUT IISO)

Some disciplinary regulations are to be found in the so-called " Constitutiones Apostolorum/' a fifth-century collection, made up of the " Doctrina XII Apostolorum," " Didascalia Apostolorum," and " Canones Ecclesiastic! Apostolorum," to which were added the "Canones Hip- polyti." 1 This collection, made by an anonymous writer imbued with heretical tendencies, contains some tradi- tional customs concerning episcopal elections, ordination and qualities of aspirants to the priesthood, minor orders, etc. But it cannot properly be termed a source of Canon Law.

A collection of conciliar canons must have existed at the time of the Council of Chalcedon (451). Most probably this collection contained the enactments of "Seven Councils/' vis.: those of Nice, Ancyra, Neo- Caesarea, Gangra% Antioch, Laodicaa, and Constantinople. To these were added later the canons of the councils of Ephesus, Chalcedon and Sardis (343), and the com- bined collection was eventually called Collectio Decern Conciliorum. 2 To this were prefixed the " Canones Apostolorum," 85 in number, which were received by the Trullan Synod held in the year 691-692 and are still

1 Cfr. Funk, Didascalia <-f Consti- denhewer Shahan, Patroloay, 1908.

tul\ones, 1906; O. Bardenhcwcr, Ge- pp. 349 ff.

ichichlc dcr allchrtJtlichen Literatur, 2 Maaswn, op. cit, pp. 126 ff.; P.

1003. Vol. 2, pp. 69, 355 ff.; Bar- Coustant, op. cit.. pp. LVIII.

20

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EARLY COLLECTIONS 21

acknowledged in the Eastern Church as " Codex Ecclesiae Orientalis" 8

Whilst these collections were chronological, the later ones were systematic, beginning with one by an unknown author and another by Joannes Scholasticus (c. 550), distributed into 50 titles.

Another species of systematic collections were those styled " Nomocanones/' containing, as the name implies, both civil (vono'i) and ecclesiastical (*<W0 laws. Several such collections were made in the sixth and seventh cen- turies and one of them was revised by Photius (c. 883).* This caesaro-papistic collection was based on the still acknowledged principle of the Oriental Church that " in illis quae canones non determinarunt, debemus sequi leges

civiles." 5

-

ARTICLE 1

c

OCCIDENTAL COLLECTIONS

c

The Greek collections mentioned above found their way into the Latin Church as early as the close of the , fifth century, when a translation of the Greek canons was made and spread in Italy and Spain. In this latter country the spread of the Latin translation of the Eastern Councils was due especially to Isidore of Seville, and hence it goes by the name of Isidoriana, whilst the Latin ' translation used in Italy was called " Prise a." *

In the latter country, most probably in Rome, a

S Mi]ascli-Pc38ic ( Kirchenrecht der preface of the Dionyeian version*

abendldndischcn Kirche t 1905, pp. " priscae trnnslationis." Cfr. I'ocW

81 ff. el Juslelli Biblioiheca Juris Can. t

4 V. Scherer, /. c, I, ip7- Paris. 1661. t. 1, p. xoi; Maassen.

8 Cfr. Syntagma Atheniense. 1. 68 /. c. pp. 87 ff: Ballerini (MiRne. 56.

(Milasch, /. c, p. 50)- col. 83 f.).

a It was thus called from the

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22 INTRODUCTION

St

Scythian monk, Dionysius Exiguus (Denys the Little, -|- before 555), made a translation of the Greek canons, 213 in number, to which he added fifty " Canones Apo- stolorum" and 138 canons of African councils. This collection was increased by the *' Decretales SS. Pontifi- cum" issued from the time of Siricius (384-94) to the pontificate of Anastasius (+498), 197 in number. A copy of this double collection of conciliar canons and papal decrees, with some additional decretals, was do- nated by Pope Hadrian T to Charlemagne in 774, and 1 subsequently called Dionysio-Hadriana. It enjoyed great authority in Italy, Gaul, Africa, Spain, and Eng- land. 7

In Africa a collection of the decrees of councils held from 397 onward was made at an early date and con- densed into the " Breviatio Canonum" of Fulgentius Furandus towards the middle of the sixth century. A systematic handbook destined for school use was the work entitled " Concordia Canonum " of Cresconius, published in the year 690/

Of Gallic origin are the so-called " Statute Ecclesiae Antiqua" of the sixth century." Another collection of French descent is that named from its editor Paschase Quesnel, Questielliana, and the one published by d'Achery, O.S.B. (-|- 1685), called Dackeriena™ The latter au- thor also edited a collection of penitential canons which goes by the same name, but was originally called " Collec- tio Canonum."

Spain had the fsidoriana, which through the magic name of St. Isidore (+636) gained great authority, and

7 Maassen, /. c. pp. 444 ff.; pp- B Migne, 56, 28*; 273 f.; Maaswn,

965 ff.; Migne, /. c, 19s f. I. c, 79 t .; 806 ff.

a Mabillon, Iter Italicum f 1724, W Ballcrini, /. c. (Migne, 53,

II; cd. Th. Sickel, 1889. 106 f.>; Maawen, ft, c, 38a t

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1

SPURIOUS COLLECTIONS 23

was twice revised between 589 A. D. and the close of the seventh century ; and a collection made by, or pub- lished under the name of, Martin of Braga, and circu- lated as "Capitula Martini. 1 * u

Besides these collections of Canon Law proper, the Penitential Books, published especially in Ireland, Eng- land and France, enjoyed great esteem. 12

For the jus liturgicum the Sacramentaria 13 and Ordines Romani M are of great importance. For the chancery of the Roman Curia, its style and methods of expedition, the " Liber Diurnus " is invaluable.

ARTICLE 2

SPURIOUS COLLECTIONS OF THE NINTH CENTURY

The ninth century was rife with fabrications, not only in hagiography, but also in Canon Law. To this cate- gory belongs a collection named Continuatio ad Capita- laria Regum Francorum, which the Levite Benedict of Mayence professes to have taken from the archives of that Church and compiled at the request of Bishop Hatto (825-47). It contains genuine canons and decrees side by side with spurious ones manufactured by Benedict. 15 Not much different in character and style are the Capitula Angiiratnni. Roth this and the former collections origin- atcd in northeastern France, 1 "

c a

U Mipn, 141 f.; 309; Maassen, l* Probst, Die altesten r$m. Sacra-

436 f.; 536 IT ; 848 ff mentarien, 1A92.

"'- \1i,-ik-. 53, 218; Maassen, 8oa l&Clr. Monumenta Germaniat

ff.; 677 ff. Hutorica, Leges, II, a, 39-158.

lBCfr. Wasserschleben, Die Buss- 18 Cf r, Hinschius, Decretties

ordnungen der abendlandischen Pseudo-Isidorianoe et Capitula An-

Kirche, 1851; Schmitz, Die Buss- gilramni, 1863, PraeL, CXCIIIff.;

buchtr, 1883. CtXXX, p. 7S7-

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24 INTRODUCTION

The Pseudo-Isidorian Decretals

This collection has, since the fifteenth century, claimed the attention of critics. That it contained considerable fraudulent matter was perceived by the famous human- ist, Cardinal Nicholas of Cusa, 11 and has since been acknowledged by most w Romanists," although some later writers, like Torres, Malvasia, and Cardinal d'Aguirre, defended its genuineness.

i. Contents. The collection consists of a preface and three parts. The Prtpfatio contains the foreword of pseudo-Isidore (Mercator or Pcccator), a spurious let- ter of Aurelius of Carthage to Pope Damasus with the latter's equally spurious reply, and the " Ordo de Cele- brando Concilio."

Part I contains 50 Canones Apostolorum and decretals of Popes from Clement I to Melchiades (-(- 314) — the latter, with the exception of the Clementine letters, all manufactured by " Mercator." lfl

Part II is made up of (a) De Primitiva Ecclcsia, (b) Exemplar Constihtti Constantim, and (c) Canons of Councils from the Nicene to the second of Spain, partly in the form of the Hispana, partly in that of the Qucs- nelliana. 19

Part III exhibits some excerpts from Pope Silvester

en

and a number of genuine decretals from Mark (-(- 336) to Gregory II (715-31) in the form of the Hispana. 20 The number of apocryphal decretals is about 46 and that of the chapters which the author himself compiled

about 104."

■

it Concordanlia Catholica, III, 2; ft.

Ballcrini (Mignc, 5S. 210). 20 Hmschius, LXXXIX

lBHinschiua, /. c. t p. LXX. fli Cfr. Coustant, /. c, CXXVI;

IB Hintchiui, I. c, pp. LXXXIII Hinachiut, CVIIL.

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SPURIOUS COLLECTIONS 25

2. Author and Time of Composition. It is commonly held that the birth-place of these pseudo-decretals must be sought, not in Rome (as Eichhorn and Theiner claimed), but in the western part of France. The exact place still forms a matter of controversy. While some {v. g. Hinschius - 2 and von Scherer 23 ) regard the diocese of Rhcims as the home of the fraudulent compiler, oth- ers (especially Fournier 24 ) assign him to the province of Tours and in particular to Le Mans.

As to the time of compilation there is no great diver- gency of opinion, for it is generally set between 847 and

I 853 " 25

3. Purpose of the Compiler. It is scarcely credible that

the author had for his sole purpose the aggrandizement and defense of the Apostolic See, 20 or that of the bishops of Gaul or any particular part of it. 27 He says in the preface that he desired to gather the scattered canons into one volume. However, this was not his only pur- pose, otherwise his fabrications would have been super- fluous. There can be no doubt that the compiler had still another end in view. This was, as Fournier 28 and others set forth, a twofold one: (a) to protect the au- thority of the bishops and clergy against encroachments of the potentates and lay-power at large, and (b) to secure the authority of the Roman Pontiff over particu- lar synods, and to defend the hierarchy in all its degrees. Concerning the first point the emphasis laid on immunity is most notable. As to the other point it may be noticed

22 Pscudo-Dccretals, Pief., CCXI. 25 HinachiuB, /. C. p. CCI.

38 Uandbich des KirchtnveeHs, 26 Ballerim (Migne, 53. 346).

1RR7, I, 23i f. 27 Hinschius. /. r., CCXIII f.

24 Les Faustes DicrHais. in Rt- 2SRtvue. d'Hist. Eccl.. iqo6, p.

vue d'Hittoire Eccl., 1906, 784. 548.

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26 INTRODUCTION

that the Apostolic See was not in need of apocryphal documents to assert its rights. 20

4. Influence of the Collection. It has frequently been said that Pseudo- Isidore ushered in an entirely new dis- cipline. If this were true, only a solemn anathema on that fraudulent writer could repair the damage done to Canon Law. However, we must beware of both ex- tremes — overrating the influence exercised by this col- lection as well as minimizing it unduly. A little distinc- tion may be helpful in determining its true influence.

The material sway it exerted we see in the greater dependence of bishops and provinces on the Holy See — more centralisation — and in the outspoken tendency of the compiler to accentuate what we comprise by the term " immunity," and by extending the matrimonial degrees, which was then unheard of.

The formal influence consisted in the precision and divulgation of laws which, though already existing, were not yet accurately determined, v. g., concerning the con- firmation and deposition of bishops, appeals, immunity. It cannot be denied that this fraud rendered a bad serv- ice to Canon Law, bringing it into discredit and evil repute for a time. 30

In Germany two collections were widely known and made use of, to which may be added a third. They are:

a) Regino of PriinVs " De Synodalibus Causis et Dis- cipline Ecclcsiasticis," which was made between 906 and 915, in which latter year Abbot Regino died. 81

29 Dallcrini (Mignc, $6, 246). H. Dnvenport, Oxford, 1916.

SO Von Scherer, /. c, X, M7; 31 Cfr. Ttallerini (Mijn«, 56. 3*9)1

Coustant, /. c, Praef.. CXXVIL Regino's collection was published in

An excellent monograph in English, Migne, i\;-> 17 f. and by Wasser-

by a Protestant lawyer, is now avail* schleben, 1840. able in Tht Faht D$cretals, by E.

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MEDIEVAL COLLECTIONS

b) More renowned is the " Decrctum Burchardi." Burchard was Bishop of Worms, and composed his col- lection for practical purposes, especially for the visitation of his diocese. It consists of twenty books, the nine- teenth of which is called " Corrector sive Medicus " and treats of penitential discipline. Burchard's chief sources were the " Collectio Anselmo Dicata," whose arrange- ment he adopted, and Regino's collection. Besides, he quoted many false decretals (about 173 in number), and invented new ones (about 59). He also changed or mutilated the inscriptions of titles and chapters. 82 But despite all these shortcomings the work found a ready reception, not only in Germany, but also in Italy, where Gratian introduced it into his Decretum " as " Brocardi-

cae."

c) Belonging to the " Gregorian M group is the " Capi- tulare" or " Breviarium Hattonis," composed about 1080."

c

ARTICLE 3

COLLECTIONS OF THE TRNTH AND ELEVENTH CENTURIES

h

The Pseudo-Isidorian Decretals were followed by other collections, more or less spurious, not only in France, but in Italy and Germany as well. The age was prolific in forgeries.

I. In Italy there was one published which is not as yet printed, although it would, according to our view, based upon inspection of the original MSS.," deserve

a» Cfr. Fcurnirr. Etudes Critiques. tktca Patrum, VII, P, III, 1-76; v.

as See Fiicdberg, Decrttum Ma Scherer, /. c, I, 240- ffistri Gratiani, Leipsic, 1879, pp. <*& Contained in the Cod. Paris.

XLVff. 1539a. Cod. Mutinens.; bealdca in

■4 Edited by Mai, Nova Bibiio- the Palat. Vat. 580 and 581, which

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28 INTRODUCTION

more attention. This, the " Col ice tin Anselmo Dicata" was made towards the end of the ninth century.

The investiture controversy brought forth some col- lections which are all imbued with the spirit of Gregory VII and therefore called " CoUectiones Gregorianae." To this group belong :

a) The Collectto Anselmi Lucani (Anselm of Lucca, + 1086);

b) The " Collectio Canonutn Cardinalis Deusdedit," dedicated to Pope Victor III (1086-87) ; 34

c) The " Decretales Bonizonis," composed soon after \^ 1089;

d) The " Poly car pus" of Cardinal Gregory, issued soon after the death of Pope Calixt II (+ 1124).

The Vatican Library furthermore contains some in- teresting MSS. pertaining to collections of that period, which await publication. 87

3. In France some notable special treatises were pub- lished, e. g., Hincmar of Rheims' " De Divortio Lothari Regis" 8a and Jonas of Orleans' (+ 843) " De Laicali et Institutione Regali." *• Collections proper are :

a) The " Canones Domni Abbonis" of Fleury (-}- 1004), dedicated to King Hugh and his son Robert, a collection of genuine canons and papal decretals, also containing Capitularia Regum Francorum and Novel- he.*

b) A " Compilatio Juris Canonici" of about the

are written in the Carol ingian sa Published by Martinucci, i860,

minuKulei. This Anselm, to whom and by Wolf von Glanvell, 1905.

it is dedicated, was Archbishop n? Cod. 1339 in 5 books; Cod. 1346

of Milan, 683-97; cfr- Ballerini in 7 books, more or less dependent

(Migne, 56, 315 flf.), Coustant,^/. c, on Pseudo- Isidore.

Praef., CXXVI; Fournier, Etudes 88 Migoe, Pal. Lot., 12$, 623 ff.

Critiques sur le Dicret de Burchard «9 Migne, /. c. t io6 f iai ff.

de Worms, 1910, p. 10. 40 Ballerini (Migne, 56. 320, 130.

47jfJ.>.

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MEDIEVAL COLLECTIONS 29

same date, treating of the reception of heretics and some of the sources of Canon Law. 41

c) The " Decretutn Ivonis Carnotensis" (-\- 1117), which consists of seventeen books, and the same author's " Panormia" in eight parts. The former is a rich col- lection not only of canonical matter but also of theological lore, e. g., on baptism, confirmation and the Holy Euchar- ist The " Panormia w was said to be the compilation made from Ivo's Decretum by the Catalonian Hugo, but it is probably Ivo's work.* 2

d) A " Collectio Triutn Partium," divided into 29 titles, was made from Ivo's work soon after his death. 4 ' Then there is the work of Alger of Lidge " De misericor- dia et justitia," c 1121, consisting of three parts. 44

In Spain a collection of 15 books appeared shortly after the Pontificate of Urban II (1088-1109).* 5

41 V. Scherer, I, 238. 44 Migne, 180, 857 ff,; v. Scherer

4lTheiner, I. c, pp. 162 f.; Migne, I, 242.

56, 104. ftoBallerini (Migne, 56, 353 f.). « Tackier, /. c, pp. 154 ff.

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SECTION 2

SECOND PERIOD (*TO THE COUNCIL OF TRENT)

This epoch is distinguished by two prominent charac- teristics. Canon Law becomes independent of theology as such and is cultivated as a science proper. The " Magister n ushers in that period, so glorious for canon- ical lore and resplendent with names immortal. The appearance of standard or authentic collections sheds lustre on Canon Law, which now grows into Pontifical Law and irradiates immediately from St. Peter's Chair. These authentic collections are now, first of all, to be considered. It is necessary, however, to premise a few

words on the famous Decretum Gratiani.

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c

ARTICLE I

THE DECRETUM MAGISTRI GRATIANI

I. Author and Name. — As the glossators testify, the author of the famous Decree is Gratian, who lived and taught as a member of the monastery of SS. Felix and Nabor at Bologna. It is most probable that this mon- astery then belonged to the Camaldulese. Of Gratian's career we know nothing, except that he died before A. D. 1160. 1

There is historical evidence that the M Magister," as he was called, had entitled his work " Concordia Discordan-

1 Cfr. Maurus Sarti, 0. Cam., De QutUen, 1875. Vol. I, pp. 46 1; Lau- Clarix Archigymnasii Bononitnsis rin, /, c, p. 10. Proftstoribui, 1769-72; Schulte,

30

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DECRETUM GRATIANI 31

tium Canonum" 3 His purpose, according to his disciple, the famous Magister Rolandus (later Alexander III), 8 was to make apparently contradictory canons agree and to remove latent divergencies. However, already towards the end of the twelfth century, the collection was commonly called Decretunt Magistri Gratiani, al- / though it was also cited by the names " Codex/' " Cor- pus," or " Liber Decretorum," or simply, " Corpus Juris Canonici." *

2. Division. — The threefold general division was made by Gratian himself, — De Personis, De Causis, De Sacra- mentis}

Part I consists of 101 distinctions, divided into canons, — but not by Gratian. It contains a treatise on the prin- ciples of Canon Law and a long treatise " De Electione et Ordinatione Clcricorum."

Part II was divided by Gratian himself into 36 Causae, and each causa into Qucestiones, which, in their turn, were subdivided into Canones. The first ten Causae might be inscribed " De Judiciis"; Causae 11-20, " De Bonis Ecclesiasticis ct Regularibus." Causae 21—26 treat of benefices and privileges, Causae 27-36, of marriage.

Causa 23, Quaestio HI, contains the " Tractatus de Poenitentia," which Gratian inserted here, but did not himself divide into seven DisHnctiones, as we now have it.

Pari III was inscribed, "Liber de Sacramentis," for which title Paucapalea substituted " De Consecratione." It is divided into five distinctions.

3. Mode of Alleging. — A canonist will never quote,

p

2 Friedberg, Dec-return Magistri 4 Latino, Fntroductio, p. 35.

Cratiani, 1879. Prol., X. 6 CFr. Schulte, Quellen, I, 50B.

s Summa Magistri Rolenii, ed. 9 Ibid., I, 50 ff. Thaner, 1874. P- 4-

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32 INTRODUCTION

St

e. g., " in Decreto Gratiani," but follow the usual mode of citing the decree :

Part I: c. i, D. i, which would read : Canon first, Dis- tinction first. Sometimes we find the initial words only quoted, e. g., " Si quis apostolicae," LXXIX, which is Can. 1, Dist. 79. Of course, in that case the index must be consulted, which now takes the place of memory, on which the law-students of former times had to rely.

Part II has the distinctive sign C (Causae, written with a capital C), taking the middle between canons and ques- tions, thus : c. 29, C. tf $ q. 4, or again with the initial words of the canon: Si quis suadente diabolo," which is the canon quoted in number and abbreviated letters. De Poenit entia: c. i, Dist. 5 de Poenit. which reads: canon I, Distinction 5, with the characteristic sign, " De Poenit." We must draw attention to the fact that two of the Causae exhibit a transposition of questions ; in Causa 2, quaestio 5 is placed immediately after 3 ; and in Causa 16, quaestio 5 directly follows 3. 7

Part III ; c. 16, Dist. 5 de consecr(atione), which signi- fies canon 16, Distinction 5 de consecratione ; or again with the beginning words: " Quadragesima summac" de consecr.

Note that older canonists simply quote " in Decretis " with the initial words of the canons, and if the text does not fully cover the proof, they say " org " (argumen- tum). 8

4. Rubricae, Dicta Gratiani, Paleae. — To show the author's method it suffices to point out the brief sum- maries which precede almost every canon or authority alleged by the n Magister." These summaries are placed at the head in red (ruber) ink and hence called rubricae. 9

7 Laurin, i, c, p. 7 (thus al&o in • id., pp. 9 f.

Fricabctg's edition). 9 Cfr. Schultc, /. c, I, 54-

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DECRETUM GRATIANI 33

Furthermore, the Master employed at times some longer expositions, which were either to prove his view on certain canons or a deduction from the authorities alleged. These elucidations were styled paragraphi or d'eta Gratiani They are to be found either before or after a distmctio or causa or quaestio, and savor of the scholastic disputation. 10 They were intended to remove contradictions between different canons by pointing out that one canon formed the rule, whereas the other was an exception, or that one contained a precept, whereas the other was only a counsel ; one emanated from a higher, the other from some inferior authority; one was given for the universal Church, whereas the other referred to a particular province, etc."

The Decretum, as now published, contains many addi- tions which are not the work of Gratian. It is certain that the Master's disciple, Paucapalea, added some de- cretals, wherefore all the additions were called paleae. 12 Their number is not quite certain, perhaps they form 166 out of the 3848 chapters of which the Decretum con- sists. 18

5. Sources and Authority. — (1) The sources are either directly or indirectly taken from their collections and collectors. The direct sources are 17 apostolic can- ons, apocryphal as well as genuine decretals from Pseudo- Isidore, the writings of the Fathers, four chapters from St. Benedict's Rule, and Roman, Visigothic and Frankish civil laws.

Indirect sources were those of the collections : Anselmo dicata, Regino, Burchard, Luccani, Deusdedit, Polycarp,

10 lb., ss ff. A famous "die- 12 Another explanation, vi*. that

turn Gratiani" is that ad c. 16, C. of "straw" (palea), is given by Hu-

25* 3- '1 on the nature of privileges. guccio, ad c. 51, C .7. Q. 2-

xi Schulte, /. c.j I, Co; v. Scherer, is Friedbern, /. c, Proleg., y.

/. c. t I, *41- XIV; Schultc, /. c, 1, 56 ff.

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34 INTRODUCTION

Ivo, Algerius. 14 But the lack of critical genius of his age is also noticeable in Gratians' work.

(2) The reception given to the Decretum is almost incredible in our critical time. It was called "opus aureum " or " divinum decretorum opus." 1B There seems to be a reason for the applause with which the Magister's work was hailed : on account of the rich ma- terials he had gathered and the scientific method he had adopted, especially in his " dicta " and general arrange- ment, the Decree soon made other collections superfluous and was generally used in schools and courts. 18 •»*'■* In spite of all this veneration, however, the Decretum Gratiani has never been considered or declared an au- thentic collection. It was made by private authority and remained such. Hence its authority is neither more nor less than the sources laid under contribution are worth. A decree made by a universal council (consideratis con- siderandis) has the value of a universal law; a canon adopted by a particular council receives no additional force by being inserted in the Decree beyond that which it had before Gratian, etc. Hence each source must be examined independently as to its origin, authenticity, and authority.

At the same time it must be remembered that the Decree, on account of its popularity and the influence it exerted on teachers and judges, paved the way for other collections, which were no longer of merely private authority.

6. Time and Editions. — When Gratian composed his Decretum is a matter of controversy. We do not bc-

p

HFriedberg, /. c. t pp. XIX ff.; p. Laurin, i. c, pp. 44 *•

--.

XLII. wSarti. /. c. I. 347: Berardi,

lfiCfr. Berardi, Gratieni Canon** I c, Praef., XXVIII; Schulte, L C. Cenuini, 1783, I; Sarti, /. c, 1, J47; I, 329.

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DECRETUM GRATIANI 35

lieve that intrinsic reasons will ever be found to clearly determine the time of its birth. What has been urged lT in favor of an earlier than the usually accepted date, is not solidly proved nor free from bias. Extrinsic rea- sons rather favor 1150-1151 as the probable year of pub- lication. The glossa of Joannes Teutonicus ad c. 31, C 3, q. 6 and an old MS. state these two years, respec- tively. 18

In the course of centuries the Decretum was often copied, sometimes with and sometimes without glossae, and the faithful rendering of the original text depended on the care of the copyists. Mistakes and corrections were already noticed by St. Antoninus (-(- 1459) and they increased after the art of printing had been invented. Antony de Mouchy, in the edition of 1547, and Antony Conte, in the Paris edition of 1556 and the Antwerp edi- tion of 1570, drew attention to spurious decretals. The Correctores Romani endeavored to eliminate some palpa- ble errors and to render the text more intelligible. In 1580 and 1582 appeared a so-called official but not au- thentic text. 1 * Henceforward the Decretum was re- printed by private savants, generally in connection with the " Corpus Juris Canonici." 20

Appendices and Compilations.— Soon after the pub- lication of the Decree some decretals were added to it or separately published, e. g. t the "Appendix Concilii Lateranensis," the " Colledio Bambergensis," the "Col- lectio Lipsiensis," the "Decretales AUxaniri 1IL" %1

it The formula " satvQ sedis apo- tempore Eugtnii ttrtii; " Lauria, /,

ttelieae auctoritate " has been alleged c, p. 34.

by Thriner and Schulte to prove lOTheiner, I. c, app., p. j; Fried-

1139 u the year of divulgation. berg, Prolog. t L XXV if.

ie The codex reads: "Decretum 20 Cfr. below on the whole C. J,

Gratiani, monochi, Felicis Bononien- C.

iu, Ord. S. Benerlicti completum in 21 Cfr. Theiner, /. c, p. 4 ff. ;

dicio monaiterio anno Dmi. MCLI, Schulte, /. c. t I, 77 ff.

sd by GoOgle

j ^ Original from

UNIVERSITY OF WISCONSIN

36 INTRODUCTION

St

Of greater importance than these were the five so- called Compilationes, vis.:

a) Compilatio I Bernardi Papiettsis, entitled by the author " Breviarium Extravagantium," issued between 1 187 and 1 191, divided into 5 books with titles and chap-

/ ters according to the famous verse, " iudex, judicium, clerus, connubia, crimen"

b) Compilatio II, by John of Wales (Joannes Walen- sis), published before 1200. Neither of these compila- tions is authentic, whereas the folowing three must be considered authentic:

c) Compilatio III, made at the request of Innocent ITI by Perrus Collavicinus or Beneventanus (1210).

d) Compilatio IV, perhaps made by Innocent III him- self, and consequently before or about 1216, although published only in 1217.

c) Compilatio V, made and promulgated under the auspices of Honorius III, 1226. 22 These three collections were alleged in schools and courts in the same manner as the Decretals.

ARTICLE 2

DECEETALES GREGORII IX (l234)

I. Name. — By a Bull dated Sept. 5th, 1234, Gregory IX promulgated a collection of " Constitutions and De- cretals," to which he himself, referring to the five pre- ceding, attributed the name " compilatio." It was soon called "nova" (scil. compilatio) as well as "Liber Ex- travagantium" (scil. extra Decretum) and added to the five other compilations. However, the name u Decre-

32 Cfr. Theiner, /. c, pP- ■ **-! tiottes Antiqua*. i88j; v. Scherer, I, Schulte, /. c, I, 80 ft'.: Laurin, J. c, a*7. Jl. 97 ff.; Friedberg, Quinque Comptia-

oogle

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DECRETALS OF GREGORY

37

■

tales " became more usual and finally exclusive, 28 and is now constantly employed.

The reason for this collection is stated in the Bull " Rex pacincus " as follows : Some decretals, on account of their length and resemblance to each other, appeared to cause confusion and uncertainty in the schools as well as courts, and to remedy this evil, the present collection is issued as an authentic one, to be employed in schools and ecclesiastic courts exclusively of all others. This meant that (a) the former five compilations were hence- forward destitute of juridical value, and therefore could not be alleged as law-texts by the ecclesiastical judges; (b) each and every chapter in its dispositive part, no matter what its source or authority, was to have full juridical value as a law-text; (c) the collection was to be considered the Code of Law for the universal (Latin) Church, to the exclusion of all others of a general character. But this collection did not abrogate either the Decretum Gratiani or existing particular laws and cus- toms, nor did it prevent the publication of later codes. 24

2. Compiler and Matter. — As the Bull u Rex pacifi- cus " tells us, the Pope commissioned his chaplain and confessor, Bl. Raymund de I'enaforte (-f 1275), to make this compilation, and he accomplished his task within the space of four years, so that the collection could be pub- lished in 1234.

The material was gathered from Holy Scripture, from the canons of particular as well as universal councils, and from papal decretals. A few are taken from the civil laws. Most of the Decretals, with the exception of those of Innocent III and Gregory IX, were copied from the " five compilations." There are 1971 chapters, of which

MFricdbcrt, Corpus Juris Can., 24 Laurin, i. c, pp. Miff.! T« 

II, Prolcg., p. X. Schcrer, I, 251 £.

oogle

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38 INTRODUCTION

1766 are borrowed from the compilations mentioned. 3. Order and Mode of Quoting. — The whole collec- tion is divided into five books according to the well-known verse quoted above (p. 36), each book into titles, and each title into chapters. Each title has an inscription, and the chapters are generally preceded by rubrics or brief summaries, which, however, are of purely private authority, whereas the titles, whenever their words ex- hibit a complete meaning (e. g., " Ne sede vacante aliquid innovetur," III, 9) have legal value. When the decretals appeared too long, Raymund cut off the arenya, or nar- ratio, retaining only the dispositive part. The cut-off parts (partes decisae ") were marked " et infra." The

SI •

modern way of quoting these decretals is: f. 4, X, I, 4, i. e„ chapter 4, liber extravangantium (viz. extra or out- side the Decreturn Gratiani and the h\e compilations), book first, title fourth. Sometimes the beginning of the chapter is quoted with " extra " and the inscription of the title, v. g., De Consuetudine.

ARTICLE 3

DECBETALES BONIPACII VIII (l208)

From the time of Gregory IX the Roman Pontiffs de- veloped much legislative activity. Thus Innocent IV (Fiesco), a canonist of merit, issued various Decretals, which he himself collected and divided into 28 titles with 42 chapters. Another collection was sent by the same Pope to the famous University of Bologna, in 1253. M Alexander IV, Clement IV, and Urban IV also issued Decretals, which were sometimes simply added to Greg-

WThcincr, I. c, p. 66; Schulte, Quelten, II, 30 ft.; Laurin, I, c.

Pp. 166 fl.

'■-.

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/""* -» -. iL» Original fro m

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DECRETALS OF BONIFACE VIII 39

j

ory's collection, sometimes remained " x," as Novellae?* These motley decretals caused some uncertainty. Where- upon three dignitaries, William, Archbishop of Embruns, Berengarius, Bishop of Beziers, and Richard of Siena, Vice-chancellor S.R.E., were ordered by the Pope to " revise " the Decretals, and after revision, to send them to the universities of Bologna and Paris. This was done in 1298, and the collection thus made at the request of Boniface VIII was added to the existing Decretals of Gregory IX as a continuation to the same, and therefore called "Liber Sextos." So we read in the Bull " Sa- crosanctae," March 3, 1298."

1. Matter and Arrangement. — The three above- named compilers took their materials from the canons of the first and second Councils of Lyons (1245, 1274) and from the Decretals of Gregory and his successors up to Martin IV and Boniface VIII. The Decretals of the latter form 229 chapters. The compilers made use of the preceding compilations and added the eighty-eight " Regu- lae Juris," taken from Dinus of Mugello (de Rossoni- bus). 2S

The title headings were taken from Gregory's, also the rubrics as well as the inscriptions of the single chapters. The latter, however, were often abridged, sometimes changed, and sometimes even wrongly quoted. The " partes decisae " were no longer marked " et infra/' but simply " cut off." On the whole this collection is not as faithful and precise a rendering of the original text of the Decretals as one might have expected from Boniface VIII, but it has the character of a juridical code. Al-

p

2fl Schulte, I. c, pp. 31 f.; Laurie, 28 Sarti, I. c. t 1, 234 ft; ▼■

I. e. t pp. 171 ff. Schcrer, /. ft, I, 352; Laurin, I. e., 2T Friedberg, Corpus Juris Can., 177.

II, 933 t

v ,1,., Original fro ni

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40 INTRODUCTION

though called Liber Sextus " and intended, as it were, to be a continuation of the Gregorian Decretals, it is I really an independent collection, consisting, like the first authentic collection, of five books with their respective titles divided into chapters.

Hence the mode of alleging this collection is the same as that of the Gregorian compilation, with the sole differ- ence that VI or 6° is substituted for X; hence: c. i, 6\ r, *=chap. I (Liceat), in the Liber Sextus, book I, title 2 de Constitutione.

2. The juridical value of the Liber Sextus is nearly the same as that of Gregory's Decretals, which were not abrogated by this collection. But it invalidated all the Decretals issued between Sept. 5, 1234, and Dec 24, 1294, and not inserted in the " Sextus " or reserved, i. e. $ indicated as such. The "Regular Juris" have no legal value."

ARTICLE 4

CLEMENTINAS (1317)

t. As the troublesome times required, Clement V pub- lished several constitutions, especially at the Council of Vienne in France (1313). He had them collected later, it seems, and sent to the two French universities of Or- leans and Paris. This was after their promulgation at a public consistory held in the castle of Monteaux (de Montiliis), near Carpentras, in southern France. This collection, for some reason or other, was revoked by Clement himself, and only after his death (1314) were these Decretals, which had meanwhile been revised by " more skilful " hands, promulgated by his successor,

a» Schulte. I *., II, p. 4; Friedberg, C. J. C, II, 935 *•

§le

£ * ^ ^ -J,-. Original from

UNIVERSITY OF WISCONSIN

"

CLEMENTINAE 41

John XXII, in the Bull " Quoniam nulla," October 25th, 1317. This collection is styled in the manuscripts " Liber Septimus," but owing to the influence of the glossators, the title was soon changed into " Constitutiones Clemen- tinae " or simply " Clementinae." 80

2. Matter, Arrangement and Legal Value.— With the exception of two decretals, one of Urban IV and one of Boniface VIII, all the "Clementinae" belong to the first Pope of the so-called " Babylonian Captivity." These decretals are, like the two preceding collections, divided into five books, and these into titles and chapters, the sum total of the latter being 106. The mode of quoting the Clementinae is, with the exception of the characteristic sign "Clem." the same as that of the Gregorian or Bonifacian Decretals, vis.: c. 1, Clem. I, 2 de rescriptis = chapter 1, Clementinae, book i, title 2 de rescriptis ; or, as in the ancient canonists, cap. Abbates, Clem, (de rescriptis, which is not seldom omitted).

John XXII in his Bull of publication commands the addressees to receive these Decretals with good will (prompto affectu) and to make use of them in future "in the courts and schools" (in judiciis et scholis). Hence the Clementinae enjoy the same authentic valor as the decretals of Gregory IX and Boniface VIII. But it must be added that the other decretals which issued from the Apostolic See after the Bonifacian collection but not inserted or mentioned in the Clementinae, did not lose their legal value because the Clementinae contain

soCfr. Schulte, Quellen, IT, lection on account of aorae decretals

451 ft.; Corpus I wis Can., ed. being too long, othcra faulty, others

Friedberg, II, Pro]., pp. LVII ft", unsuitable, and that these mistakes

Joannes Anrfreae in his glossa ad were then corrected by " more

verbum " de rartero " in Const. skilled hands"; that Jolin XXII

" Quoniam nulla " narrates that changed them cannot be proved. Clement V himself revoked the col-

Gw >gle

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i r

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42 INTRODUCTION

no invalidating clause with regard to them, as was the case in the Bull of Boniface VIII, " Sacrosanctae." 8l

ARTICLE 5

EXTRAV AG ANTES

1. Pope John XXII published several important con- stitutions, touching chiefly upon beneficiary subjects, not contained in the Clementinae and yet commented on by the glossators. Thus "William de Monte Laudano had furnished " glossae" on three decretals of the aforesaid Pope: " Sedes aposiolica," " Suscepti reglmlnis/' and " Execrabilis," issued in the first year of John's pon- tificate (1317). Zen2elinus de Cassanis also composed glosses on these three constitutions and, besides, on seventeen others of the same Pontiff, in the year 1325. These twenty decretals became known as the " Dccretales extravagantes, quae emanaverunt post Scxtum," or later as " Extravagantes Johannis XXII." They were divided into 14 titles and 20 chapters**

2. These " Extravagantes" were published by John Chappuis in 1501 and 1503, together with some other decretals which had emanated from the Holy See, from John XXII to Sixtus IV. Out of these materials Chap- puis made a collection, which he called " Extravagantes Communes in five books with titles and chapters. However, the fourth book (De Matrimonio) is missing, for lack of materials. The whole collection is poorly digested and cannot claim authenticity as a collection, though the decretals taken singly have the authority due to pontifical laws, as far as they are still in force (v. g. f " Ambitiosae" in III, 4).'

(13

Si I .nurin, /. r. f pp. 90t f. SB I .Turin, ■'. c, p. 302.

■2 Schulte, op. cit., II, 59 f.

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THE CORPUS JURIS 43

Mode of quoting:

c. 2, Extr. Joannis XXII, tit. I (suscepti regiminis), C. un. Extr. Cotnm. Ill, 4 (Ambitiosae) .

v-

s

-

ARTICLE 6

T ■

THE "COBPL'S JURIS CANONICI " c s

After having considered the several collections which were all published after the art of printing had been invented, cither in R\e or in three volumes, a word must be added concerning the whole body of them, known as " Corpus Juris Canonici."

1. " Corpus Juris" was a term applied at first to any body of laws, and later, in the twelfth century, to the collection of civil laws. 8 * In a Brief of Gregory XIII, " Quum pro munere pastorali," July 1, 1580, the collection containing the Decretum Gratiani, the Decretales Gre- gorii, the Decretales Bomfacii, the Clemctttinae and the two Extravagantes was styled " Corpus Juris Canonici." Hence, in a wider sense, these five collections may be said to constitute the Corpus.

In the strict sense, however, the title can be applied only to the three authentic collections, viz.: to the Decre- tals of Gregory IX and Boniface VIII, and the Clemen- tinae. The nomenclature " Corpus Juris Canonici Clau- suvri * is arbitrary and without foundation. 85

2. If we regard the structure or make-up of the C. J. C. in its strict sense, i. e. t of the three authentic collections, we find inscriptions prefixed to the single titles as well

Si Kipp, Gesch. d. Qutllm d. tits" (BuUariftm, ed. Mechlin, 1826,

Rom, Rechtt, 1909, 168; v. Scherer, I, XIV); Laurin, /. c, pp. 19, 25,

1, 270. 22s t.

sa Benedict XIV, "Jam fert sex-

• x/\dL» Original from

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44 INTRODUCTION

as to the chapters, which latter, moreover, have sum- maries put immediately before the text.

a) Concerning the inscriptions above the titles there is a twofold class. Some exhibit simply the subject they treat of, z/. g. f De Consuetudine (I, 4), while others are longer and offer a clause or sentence com- plete in meaning, v. g. t " Ne sede vacante aliquid inno- veHr" (X, III, 9). The former inscriptions have no legal value, whereas the latter have.

b) The "summaria" placed at the head of nearly every chapter are additions of the glossators and, there- fore, destitute of legal value.

c) Neither legal nor historical merit can be attached to the indications of the sources whence the composer pretends to have borrowed his matter.

d) As to the text itself, juridical value can be attrib- uted only to the pars decisiva or dispositiva, regardless of whether the source is genuine or spurious, but not to the narrative part or to the allegations of the contending parties. 36

3. Mention must be made of the various editions of the Corpus Juris Canonici which are not all of equal au- thority.

a) Authentic is the edition published after the commis- sion consisting of six cardinals and fifteen "doctors" had corrected fhe C. J. C. at the command of Gregory XIII in Rome, in 1582." But the work of the " Correc- tors Romani/' incomplete as it is, can claim only doc- trinal value. 89 However, the Roman edition had the distinction that it could be quoted in the ecclesiastical

courts as well as outside of them. 89

-

88 Wcrnz, Jus Decretalnim, I, 30 Greg. XIII., " Quum pro mu-

325 I. nere," July i, 1580; Fricdberg, II,

«7 Thcincr. /. ft. app. I, pp. 3 f. p. LXXXII.

K

>■ L-Ui n:i, I. C., p. 69.

jle

C^ ^ ^ -Ar* Original from

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THE CORPUS JURIS 45

b) Of purely private authority were the editions made by the brothers Pierre and Francois Pithou, at Paris in 1687. The same holds good of the critical edition of Justus H. Bohmer, Halle, 1747, whose "emendations" are not always happy.* For official purposes these edi- tions are useless.

Belter and worthy of attention is the edition which

-— Emil Frederick Richter published at Leipsic in 1839.

He used the Roman edition as basis and added textual

a

corrections of his own. This edition can be safely used in practice, although it is not authentic. -"""" A later critical edition is that of Emil Friedberg, pub-

■n

lished in two 4to volumes under the title, Corpus Juris Canonki. Vol. I, 1879, contains the Dec return Magistri Gratiani, Vol. II, 1881, the Decretals and Extrava- gantes. This edition is based on extensive MS. re- searches, but neglects the Roman edition and omits all

r

1 glosses, though inserting the partes dectsae.

40 Friedberg;, II, XLU.

G I Originalfrom

OOglL UNIVERSITY 0FWI5C0NSIN

SECTION 3

SOURCES OF THE LAST PERIOD

1. After the golden age of Canon Law, resplendent with works and authors some of whom shall he mentioned later, there was a setting of the sun, until the Council of Trent seemed to breathe new life into the half-motionless frame of the Church at large and the skeleton of canonis- tic science in particular.

This gathering of learned men had, of course, for its chief aim not a reform of laws, but of morals. Still dis- cipline and morals cannot easily be separated, and hence we see that the Council, especially in its third period, is- sued many important enactments bearing directly on Canon Law. These decrees form a real source of Canon Law. Pius IV confirmed them and ordained that, after they had been duly promulgated in the city of Rome, legal force should be attributed to them from the first day of May, 1564. 1

2. But, surprising though it be, it is a fact that, at least to our knowledge, there exists no authentic collection of these decrees. Some private editions were even placed on the Index.

The most noteworthy editions are :

a) Aug. Barhosa's " Collectanea Bullarti aliarumve Sutnm. PP. Cons tit utionum nee non Praccipuarum Dc- cisionum, quae ab Apost. Sede et s* Congregationibus

1 Constitutions of Pius IV: "A"i- Lateran, St. Peter's, the Apost. cnt ai sacTotHm," July 18, 1 64 . Chancery, the Camjio de' Fiurt; ex- " Benedictus Dcui," Jon. 26, 1.^.4. ception was made for the " Ta- — The promulgation was made at the raeuri " (e. I, seas. 34 de rcf. mat.).

46

od by GoOgle

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POST-TRIDENTINE SOURCES 47

S.R.E. usque ad a. idjj emanaverunt," Lyons, 1634 (formerly on the Index). 3

b) John Gallem art's "Concilium Tridentinutn cum Declarationibus Cardinalium ejusdem Interpretum," ed. Guerra, Venetiis 1780, 2 Vols, (formerly on the Index).

c) Richter and Schulte's " Canones el Decreia Con- cilii Tridentini ex ed. Rom. a. 1834 repetiti," Berlin, 1864 (repr. Naples, 1869).*

3. Towards the close of the sixteenth century an at- tempt was made to gather the three authentic collections of Gregory IX, Boniface VIII, and Clement V into one body together with the decrees of the V Lateran and the Tridentine councils. Cardinal Pinello offered an un- digested digest, which he styled "Liber Septimus," to Clement VIII, in 1598, whence it was also called: "Ssmi. D. N. Clementis P. VIII Decretales." However, the Pope declined the offer and Pinello's work, though printed, was never promulgated. 4

This was the last effort to codify the laws of the Church, until Pius X, of happy memory (" Arduum sane" March 19, 1904), instituted his commission, to which we owe the New Code.

4. After the Council of Trent (1563) the legislative activity of the Popes was by no means stayed. But this period, owing to a more intensified centralization, made it imperative for the Pontiff not to divide but rather to distribute his power among various tribunals and con- gregations which came into existence soon after the Council. Thus the channel of laws, as it were, was two- fold: constitutions and decisions,

(M

2H. Rcusch, Per Index, II, 74. lished by the GorresgeseUachaft,

SConct-rning the history of the Herder, 1901 ::.

Council »f Trent see Pallavicini, 4 Sentis, Clem, VIII. Decrttalts,

Istoria <-.'■/ Conciho d\ Trento, 1666; 1870; v. Scherer, I, 275.

and Concilium Tridentinum, pub-

t I Original fro ni

.OO^lt UNIVERSITY OF WISCONSIN

48 INTRODUCTION

a) The Constitutions emanated chiefly in the form of Bulls, sometimes also in the form of Briefs, directly from the Pontiff and touched upon matters of importance for the Church at large. These have so far not been pub- lished in an authentic collection. All the so-called Bui- laria, with the exception of that of Benedict XIV, S are of a purely private character. The chief Bullaria are:

a) L. Cherubini's Bttllarium seu Collectio Diversa- runt Constitutionum Multorum PonHficum a Gregorio VII usque ad Sixtutn V, Rome, 1586. The second and third editions of this work comprised the constitutions of the Popes from Leo I to Paul V, to which Angelus a Lantusca and John Paul a Roma added those from Urban VIII to Clement X (Rome, 1672).

And. Barberi and Alex. Spetia published the so- called Continuatio Bullarii (Clement XIII to Gregory XVI), Rome, 1825-57. Here must also be mentioned the Acta Pii IX, 1854 fT. and the Acta Leonis XIII, 1881 ff., which, however, appear to lack authentic character, whilst the Acta Pii X (Vatican Press, 1907 fT.) are au- thentic and official.

P) Bullariutn Luxemburgense (first printed at Ge- neva), or Bullariutn Magnum Romanum a Leone I ad Benedictum XIV, 1717-28.

y) Turinense (Al. Tomasetti), Diplomatum et Privi- leg. S.R. Pont, a Leone I ad Clement, XII editio, 1857-72, without critical discernment and with a great number of printing errors.

Mention must here be made of P. Coustant, Epistolae RR. Pontificum a Clem. I ad Innoc. I, Paris, 1721 ; And. Thiel, Epistolae RR. PP. Genuinae ab Hilario ad Pela- gium II, 1868. Of value are also the Regesta edited by

l" Jam fere sextus," 1746, sent e Coqvtiines, BMllarum Atnpiissima

to Bolosrna University. Collectio, Rome, 1739-44-

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POST-TRIDENTINE SOURCES 49

Jaffe, Lowenfeld, Pflugk-Harttjng, Ewald-Hapt- mann (Greg. L), and P. F. Kehr.

b) The decrees and decisions of the Roman Congrega- tions, especially those of the Congr. of the Council, were collected and published. The only authentic collections, however, are the following:

S. Rit. C. Decreta Authentica, Rome, 1898-1912, 6 Vols.

Collectanea S. C. de Propaganda Fide, Rome, 1907, 2 Vols.

The collection of decrees of the Congr. of the Council, which ran first under the name of " Libri Decretorum," from 1573 on were gathered in the Thesaurus Resolu- tionum S.C.C. 1718 (resp. 1745) to 1908, in 167 vols. Strictly private collections are Zamboni's Coll. Declara- tionum S.C.C, Atrebati, 1868, 4 Vols.; Pallotini, Coll. Omnium Concl. et Resolv., 1564-84 (alphabetic) ; Lingen and Reuss, Causae Selectae, Ratisbon, 1871. There are also many scattered volumes of decisions of the S. R. R. 7

Q

STUDY OF CANON LAW

It would be worth while to enter the studio of one of those learned canonists of the past in order to observe his way of studying, not only Canon Law, but also civil law, from which was borrowed the method of applying Canon Law (" ordinem placitandi ex legibus"). Then we might enter a law school and learn their manner of teaching. There, in the midst of hundreds of disciples,

7 Besides the authors mentioned Bononiensis Profejsoribvs, Rome,

above, the student may consult: 1768, t. I; Savigny, Geschichte des

Doujat, Praenotionum Canonicantm Rom. Rechts im Mittelalter, 1834-

libri qMinque, Venice, 1769; Sarti, 54, Vols. Ill and IV. O. Cam*l., Dt Claris Archiffi'mnasii

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50 INTRODUCTION

eagerly intent on the teacher's words, a Decretum might be seen on the professor's table. First, with a sonorous voice, he reads the summary of the chapter he is about to expound. After that follows the reading of the litera, i. e., the text of the chapter (or canon), with distinct ac- centuation and more slowly, that the students might be enabled to take down the wording in case they could not, because of poverty (books at that time were rare and expensive), or for other reasons, acquire the volume. Then the litera, if necessary, 8 is corrected, which was called emendatio literae. Hereupon the proper work of the teacher began — the exposition or expounding of the canon. This work comprised different acts: Contradic- tions were pointed out and solved by the method assigned by the " magister," then followed casuistry and corrobora- tion of the explanation given and other arguments taken

SI

from the Decree or other sources.

The students under the supervision of the teacher are busy at work, engaged partly in repetitions, partly in dis- putations. The former are much like our modern " sem- inars," in which postgraduates or aspirants to the laurea expound some particular text more elaborately. Dispu- tations were held diebus Mercurii (Wednesdays), and conducted in scholastic style — sometimes, we fear, to extravagance.

This method of training, if kept up from six to ten years, was apt to produce thorough scholars and future 41 masters," which title towards the end of the twelfth century was changed to " doctors." Note must be taken of the fact that the universities, being few in number, attracted the cream of professors and were efficient in maintaining a choice staff. The clerical character of

8 Cfr. Huffaccio'i Clossa on c. 31, C. a, q. 6.

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POST-TRIDENTINE SOURCES 51

these flourishing schools, endowed by Popes and Bishops with benefices and other sources of revenue, was carefully maintained and proved no hindrance to effective teach- ing, intense study, and good morals. 8

• Cfr. Schulte, Quellen, I, pp. in ff. ; 196; II, pp. 214 f., 493, etc.

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SECTION 4

THE GLOSSATORS

If we call the epoch extending from the appearance of Gratian's Dec-return to the Council of Trent the period of the Glossators, we look to the majority of writers (de- nontinatio fit a potiori) without intending to exclude other writers and writings of a different kind.

i. Mention was made of the method the teachers were

D

wont to employ in school. It was but natural that the work of the school should not be confined within the school-walls but also prove a fertile soil for literary products. These are, to a great extent at least, still pre- served, either in the form of Glossae, or in the more stately shape of Sumtnae and Tractatus.

In order of time the Glossae were the first literary out- put of the followers of the Master. A gloss : or verbal explanation was generally placed above the word to be explained, and therefor, called glossa interlinearis. Not rarely these glosses were placed on the margin or at the bottom of the page (glossae tnarginales). If continu- ously applied to the whole text of the Decree or the De- cretals, such a series was styled apparatus.

Some authors, v. g. Bcrnardus Papiensis, preferred another way, viz.: that of writing commentaries, called Summae. These either followed the order of the text

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l From the Greek yXuffera (Wn- dieitur glosta, i. *., lingua." Doujal,

Qua) ; " dieitur expositio sententiae t. c, 1, V. c. a. n. a.

litiram continuans et erPonens, %nde

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(Decree or Decretals) closely and uninterruptedly, or left the order of the text and exhibited only a summary, using the text for the sake of proof. In this lat- ter case they might just as well be called Tractatus, al- though these, properly speaking, were rather essays on some particular subject (v. g. Durantis* " Ordo Judicia- rius"). It is sometimes difficult to distinguish between Sumtnae and Tractatus. 2 The glossators had the cus- tom of distinguishing their glosses from those of others by certain initials or sigla, v. g. Huguccio used H., Bar- tholomaeus of Brescia, B. or Bart., etc.

2. We will name some of the most noteworthy glossa- tors and authors of canonical works, retaining their Latin names, as they were then known. To the Decretum Joannes Faventinus composed an apparatus about 1179-87. Cardinaus introduced the jus civile into the Decree. Bazianus (+ 1197) in his glosses employed the decretals. The famous " Glossa Ordinaria " was furnished by Johannes Teutonicus, about the year 1215. A rich glossary based upon the preceding and on the compilations is that of Bartholomaeus Brixiensis, about 1240-45 ; it is the last gloss on the Decretum?

The Decretales Gregorii were glossed by Vincentius Hispanus and Bernardus Parmensis de Botone (+ 1263), whose glossa is called "ordinaria*'

The " Liber Sextus " and the " Clementinae " were adorned with the glosses of Joannes Andreae (+ 1348), one of the most illustrious canonists, " fons et tuba juris/' as he was called.*

3. Summae and Tractatus. — An entire catalogue would be necessary to do justice to the galaxy of writers who flourished from the twelfth to the fifteenth

2 Schulte, Quelle*, I, 219. * His daughter Novella also taught

%Ib., I, 145. 19*1 17*; H, 86 f. Canon Law,— but behind a curtain!

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century. We select the best known without wishing to detract from the fame of the others. Summa Magistri Rolandi ( Bandinelli ), later Pope Alexander III ; * Summa Rufini, about Ii66; Summa Stephani Tomacensis (1203) ; Summa Simonis de Bisiano, made about 1174- 79; Summa Huguccionis, about 1187; Summa Bernardi Papiensis, about 1191-98; this is a sort of compendium of Canon Law."

What were called Lecturae were in fact commentaries, and might also be styled Summae. Such were com- posed by Innocent IV (Sinibaldus Fliscus, 1243-54), " Apparatus in quinque libros Decretalium "; Hostiensis (Henricus de Scguesia, -|- 1271), " Lectura in Gregorii IX Decretales"; Abbas Antiquus, "Lectura seu Appa- ratus ad Decretales Gregorii IX," composed about 1270;

JECIDIUS DE FuSCARARIIS (1289) ; JOANNES GARSIAS HlS-

panus (c. 1282) ; GuiDO de Baysio, " Commentarius in Sextum" (c. 1299-13^2); Guilielmus de Monte Laudano (1343), "Lecturae super Sextum, Clemen- tinas et tres Extravagantes Joannis XXII" ; Zenzelinus de Cassanis (the same). Of great authority are the following: Petrus de Ancharano (1416), Francis- cusdeZabarellis (1417), Antonius de Butrio (1408), Joannes ab Imola (1436), and especially Panormi- tanus, also called Nicolaus de Tudeschis, O.S.B., Abbas Modernus or Abbas Siculus ( + 1453),— all of whom composed commentaries on the Decretals and the Clemen- tinae.

The following works rather resemble treatises or es- says:

Bernardus Papiensis, "Summa de Matrimonio," "Summa de Electione ; " Tancred, "Summa de Sponsa- libus et Matrimonio/' and " Ordo Judiciarius; " Wil-

I Ed. Thaner, 1874- • Ed. Laspeyret, i860.

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liam of Durant (1296), called M Speculator," " Specu- lum Legatorum" " Speculum Judiciale" " Rationale Divinorum Ofiiciorum." T

Some works are especially concerned with the papal power, which was, at times, rather insipidly defended. To this class belong: Joannes Parisiensis (+ r 3o6)» " Tractatus de Rcgia Potentate et Papali"; -^gidius Romanus (Colonna, + 1315), " De Excellentia Pon- tificatus/' "De Potestate Ecclesiastica libri tres," " De Regimine Principum"; Augustinus Triumphus (+1328), "Sumtna de Potestate Ecclesiastica"; Ro- deric Sancius de Arevalo (+ 1470), " Defensorium Status Ecclesiastici," " De Monorchia Or bis" (the Pope is the monarch of the whole universe) ; John a Tur- recremata (-f 1468), " De Potestate Papae et Concilii Generalis Auctoritate;" Thomas de Vio (Cajetan) (+ r 534)» " De Auctoritate et Potestate Rom. Pont.," " De Auctoritate C ' onciliorum." Of some interest are the works of Dominicus de Dominicis (+ 1478). " De Re- formationibus Romanae Curiae," " De Cardinalium Elec- tione et Legitima Creatione" etc. 9

7 Edited, respectively, hy Wunder- lich, 1841, and Bergmann, 1842. ■ Cfr. Scbolr, Publuuttk sur Zt*

Philipps des Schotun. K.-R. Ab- hnndl. v. Stutx, 190J, 618. Cfr. Schulte, Qnelltn, H, pas-

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SECTION 5 POST-TRIDENTINE LITERATURE

The reformation initiated by the Council of Trent was vigorously carried out by the later Popes, who proved themselves excellent legislators. The tendency of gravi- tation towards the centre became more accentuated. This is very noticeable in Canon Law. Besides this centraliz- ing tendency there are two other characteristics which single out this period from those preceding. Humanism invaded the realm of law on a side where it was particu- larly vulnerable by introducing historical criticism. This operation was no detriment to the science, but it might have proved dangerous in the hands of an unskilful sur- geon. It has produced works of great and lasting merit.

Another innovation, less necessary and rather cumber- some, is the moralising strain now brought into Canon Law. This was a disadvantage because it obscured the character of the Church as a public society and made the law appear to be an appendix of the confessional. The moralists entered into the vineyard of Canon Law and — but melius est silere quant loqui.

The following list may serve students especially in their selection of canonical books. The works may be divided into historico-critical writings, commentaries, and man- uals; those which, for one reason or another, are pre- ferred at the Roman Curia are marked with an asterisk.

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I. HISTORICO-CRITICAL WRITINGS

Besides the authors mentioned above the following may be recommended :

Card. John Baptist Pitra, O.S.B., "Juris Ecclesia- stici Graecorum Historic et Monumental* Rome, 1864-68; " Analecta Novissima Spicilegii Sole sinensis Tusculi, 1885; L. Thomassin, " Vetus et Nova Eccles. Disciplina circa Beneficial Magontiaci, 1787; E. Loen- ing, Geschkhte des deutschen Kirchenrechts, 1878, 2 vols, (still a standard work).

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2. commentaries

Although not a commentary in the proper sense, yet as embracing almost the whole range of Canon Law, we must mention the works of the " Princeps Canonista- rum" 1 Benedict XIV, whose Opera Omnia (Prati, 1839 ff.) are a rich source of information.

A. Barbosa, Opera Omnia, Lugdun., 1660.

C. S. Berardi, " Commentaria in Jus Eccl. Universum/' Taurini, 1766 (critical).

De Angelis, " Praelectiones Juris Canonici" Rome,

1877 ff-

L. Ferraris, " Prompta BibUotheca Canonica" etc., various editions, the latest by J. Bucceroni, S.J., Romae, 1885-99, 9 Vols., but with little improvement as to dates of the decisions of the S. Congregations.

♦Card. Vincent Petra (-f 1747), " Commentarxa tn Constitutiones Apostolicas" Romae, 1705-1726, 5 Vols., besides " De S. Poenitentiaria A post oik a," 1712.

E. Pirhing, S.J., " Universum Jus Canonicum" Dill- ingae, 1674.

1 Cfr. Hurter, Nomtndator, 3rd «d-, Innsbruck, 1910. Vol. IV, col.

1595 *iq.

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58 INTRODUCTION

Pichler, S.J., "/us Can. Univcrsum," Ingolstadii,

1735-

• Anacletus Reiffenstuel, O.F.Min., "Jus Canoni-

cum Univcrsum" Antwerpiae, 1743, 3 Vols.

• John Bapt. RlGANTI, u Commentary in Regulas,

Constitutiones et Ordinationes Cancellariae Apostolicae," Romae, 1744 (an important work for the Rules of the Apostolic Chancery).

Santi-Leitner, * Praelectiones Juris Canonici" Ra- tisbonae, 1898 f.

• F. Schmalzgrueber. S.J., " Jus 'Eccl. Uniuersum,"

Romae, 1843 ff-» I2 Vols.

♦Gonzalez Tellez, " Commeniaria perpetua in singu- los textus quinque lib. decretal. Gregorii IX," Lugduni,

1673.

Wernz, S.J., "Jus Decretalium" Romae, 1898 ff.

John Bapt. Card. De Lcca (+1683), "Theatrum Veritatis et Justitiac " (a prolix work of motley content), Romae, 1671 f., 18 Vols.

3. manuals

Aichner, " Compendium Juris Eccl.," Innsbruck, 1895. J. Devoti, " Juris Canonici Universi Publ. et Privati libri quinque," Romae, 1803, 3 Vols, (still useful).

F. Heiner (S.R.R. Auditor), " Katholisches Kirchen- rccht,' r Paderborn, 1897.

Jos. Laurentius, S.J., " Institutiones Juris Ecclesia- stici," Freiburg, 1903.

G. Phillips, " Kirchenrecht," 1845 ff., 8 Vols.

Vox Scherer, " Handbuch d. Kirchenrechts," Graz, 1886, 2 Vols, (incomplete, but very thorough and criti- cal).

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J. R Schulte, "Lehrbuch d. Kath. Kirchenrechts,"

1863.

S. B. Smith, "Elements of Ecclesiastical Law," 1891, 3 Vols. These we have frequently consulted.

It may be permitted to add a few Benedictine authors.

Placidus Boekhn (-f- 1752), " Cotnmentarius in Jus Canonicum Universum," 1735 & (commentary-like and extensive ) .

• Lud. Engel (+ 1674 at Melk in Austria), "Colle-

gium Univcrsi Juris Canonici," Salisburgi, 1671-74; I D -» " Tractatus de Privilegiis et Juribus M onasteriorum" ibid.

Martin Gerbert (S. Blasii, +1793), " Principia Theoriae Canonicae" 1758; " De Communione Potesta- tis Ecclesiasticae inter Sutnmos Ecclesiae Principe s et Episcopos" 1761 ; " De Legitima Ecclesiastica Potestate circa Sacra et Prof ana," 1761.

Rob. Konig (+ 1713), " Principia Juris Can.'* Salis- bury, 1691-97. Maurus Sciienkl (■+- 181C), " Institutiones Juris Eccl. Gertnanlae Accommodatae," Ingolstadii, 1760; Ratisbonae, 1853.

♦Francis Schmier ( -|- 1728), " Juris prudentia Cano- nic o-C Wilis," Salisburgi, 1716.

Coel. Sfokdrati (+ 1696), "Regale Sacerdotium R. Pontifici Assertum," 1684; "Gallia Vindicate? S. Galli, 1687.

Greg. Zallwein (+ 1766), "Principia Juris Ecclesi- astici Universalis et Particul. Germaniae" 1763 (con- sidered one of the best manuals in its day).

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CHAPTER V

OLD AND NEW LAW

Our gloriously reigning Holy Father Benedict XV, in his Bull of promulgation, refers to the Motu proprio " Arduum sane," which was issued by Pius X, March 17, 1904, and gave rise to the present Code. In that memor- able pronouncement the late Pontiff stated the reasons which prompted him as the supreme Pastor of souls, who has the care of all the churches, to provide for a new codification of ecclesiastic laws, with a view " to put together with order and clearness all the laws of the Church thus far issued, removing all those that would be recognized as abrogated or obsolete, adapting others to the necessities of the times, and enacting new ones in conformity with the present needs." We leave it to the reader and the watchmen of Sion to judge whether this purpose has been achieved. A fair-minded and unbiassed critic will certainly acknowledge the juridical genius of H. E. Cardinal Gasparri, who bore the heaviest part of the burden, and of his zealous collaborators in getting up, within the short space of twelve years, a collection covering centuries of legislation and volumes of laws and commentaries. Those who will have to make practical use of the New Code will not fail to admire, first and above all, its brevity as well as the convenient arrangement of the matter and the clearness of the style. The canonist is grateful and in his heart will muse over Virgil's verse, " Redeunt Saturnia regna/' because, after

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a long period of relative neglect, his office again becomes important and, we dare say, necessary. For although the advantages of the New Code are undeniable, a com- mentary is necessary in order to grasp the full meaning of the text. This is evident from the fact that the Code embodies "nova et veiera."

The old laws must be explained, according to the gen- eral rules of interpretation indeed, but also in harmony with the traditional significance that can be gathered only from an acquaintance with bygone ages and authors. This is plainly stated in canon 6, which reads:

11 The Code for the most part retains the discipline thus far in use, although it also offers opportune changes. Hence: i.° All laws, both universal or particular, which are opposed to the laws prescribed in this Code, are abrogated, with the exception of those particular laws for which express provision is made."

The term law is to be taken in the strict sense of a written enactment. Privileges are not included, for they are special,, not particular, laws. The provision con- cerning particular laws must be expressly mentioned, at least in a general way. Cfr. Can. 1253 concerning feast- days, which is specially applicable to our country.

" 2. Canons which state the old law unchanged, must be understood according to the authority of the old law and therefore according to the interpretations given by recognized authors.

" 3. Canons which conform to the old law only in part, must be understood according to the old law as far as they agree with it ; in so far as they differ from it, they must be explained in their own light.

" 4. When there is doubt whether an enactment of the Code differs from the old law, the latter must be upheld."

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These rules not only establish the continuity of the law, but also offer a key to the interpreter. It is evident that a society which has lasted for centuries cannot en- tirely overthrow and set aside all of its old laws.

Hence we find throughout the Code not only allusions to, but almost verbal restatements of, the old law. When the Code says " ex Integra," which we translate by w un- changed," this term must be taken in its substantial, not verbal meaning. Thus, concerning postulation, the Code (Can. i8o, § 2) is almost a repetition of the text of the Corpus Juris, though not ad verbum.

When a canon is divisible, i. e., when it partly rehearses an old law, and partly gives new regulations, the inter- pretation and application must necessarily conform to the old law, as well as to the ratio legis and the wording of the newly enacted part, as shall appear more fully in the course of this Commentary. It were useless to set forth examples which occur in nearly every canon. But these rules show and clearly prove that even the new Code does not make the authority of the school superfluous or useless.

" 5. All penalties not mentioned in this Code, of whatever denomination, spiritual, temporal, medicinal or vindictive (so called), whether ferendae or latae sententiae, are hereby abrogated."

The " Apostolicae Sedis" of Pius IX (1868) had a similar purpose, *. e., to reduce the penal Code to a unit and to certain limits. The new Code embodies another attempt to simplify the penal law.

" 6.° As regards the other disciplinary laws thus far in use, those that are neither explicitly nor implicitly contained in this Code must be held to have lost obliga- tory force, unless they are found in approved liturgical

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books or are part of the divine law, either positive or

natural."

This is another guiding line along which the interpreter has to move. With the exception of natural and divine positive law and such rules as arc contained in the ap- proved liturgical books (the Pontifical, the Missal, the Roman Ritual, and the Ceretnoniale Episcoporum) all disciplinary laws made by human authority cease to be binding. The commentator may take illustrations from them, but is not allowed to confound them with the exist- ing law or to represent them as still binding.

Having before our mind these wise rules, we shall, with God's help, endeavor to comply with them scrupulously and to follow the injunction of the S. C. Sem. ct Stud., Aug. 7, 1917, concerning the teaching of Canon Law. 1

It remains to point out the division of the new Code. It consists of five books, doubtless as a remembrance of the Decretals. However, a mere glance at the Code will convince the student that the real principle of division is the threefold time-honored one according to personae, res, and actiones. The first book contains all that was embraced in the first book of the Decretals and is here called " general rules," whilst the fourth and fifth books form one subject, viz.: the actiones, with this sole differ- ence that procedure is separated from the penal code. The second book is entitled De Personis, and the third, De Rebus. But the ancient trilogy certainly is apparent in the new Code.

3 Acta Ap. Secis, IX, p. 439.

References

Bibliography

• Old Catholic Encyclopedia, A. BOUDINHON

[[Category:Canon law (Catholic Church)]]