CATHOLIC ENCYCLOPEDIA: Canon Law

CATHOLIC ENCYCLOPEDIA: Canon Law
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Canon Law
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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
General notions and divisions
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).
Canon law as a science
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.
Sources 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 (
fontes juris essendi
); or it may refer to the sources where canon law is to be found (
fontes 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 incommunicable 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, without 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.
Historical development of texts and collections
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".
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" were included 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 Neocæsarea (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.
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
COLLECTIONS OF ANCIENT CANONS
.) 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 council 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 Arles, 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 "Quesneliana", 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
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 Prüm (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", especially 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.
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 (
Latin
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.
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.
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), 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;
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.
Codification
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
Motu 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.
Ecclesiastical law
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.
The principal canonists
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):
Prospero Fagnani
, the distinguished secretary of the Sacred Congregation of the Council, "Jus canonicum seu commentaria absolutissima in quinque libros Decretalium" (Rome, 1661),
Manuel González* Téllez (d. 1649), "Commentaria perpetua in singulos textus juris canonici" (Lyons, 16, 3);
the
Jesuit
Paul Laymann, better known as a
moral theologian
, "Jus canonicum seu commentaria in libros Decretalium" (Dillingen, 1666);
Ubaldo Giraldi
, Clerk Regular of the Pious Schools, "Expositio juris pontificii juxta re centiorem Ecclesiae disciplinam" (Rome, 1769).
Among the canonists who have followed the order of the titles of the
Decretals
the
Benedictine
Louis Engel
, professor at
Salzburg
, "Universum jus canonicum secundum titulos libr. Decretalium" (Salzburg, 1671);
the
Jesuit
Ehrenreich Pirhing
, "Universum jus canonicum" etc. (Dillingen, 1645);
the
Franciscan
Anaclet
Reiffenstuel
, "Jus canonicum universum" (Freising, 1700);
the
Jesuit
James Wiestner, "Institutiones canonical" (Munich, 1705);
the two brothers Francis and Benedict Schmier, both
Benedictines
and professors at
Salzburg
; Francis wrote "Jurisprudentia canonico-civilis" (Salzburg, 1716); Benedict: "Liber I Decretalium; Lib. II etc." (Salzburg, 1718);
the
Jesuit
Francis Schmalzgrueber
, "Jus ecclésiasticum universum" (Dillingen, 1717);
Peter Leuren, also a
Jesuit
, "Forum ecclesiasticum" etc. (Mainz, 1717);
Vitus Pichler
, a
Jesuit
, the successor of
Schmalzgrueber
, "Summa jurisprudential sacrae" (Augsburg, 1723);
Eusebius Amort
, a
Canon Regular
, "Elementa juris canonici veteris et modern)" (Ulm, 1757);
Amort
wrote also among other works of a very personal character; "De origine, progressu . . . indulgentiarum" (Augsburg, 1735);
Carlo Sebastiano Berardi
, "Commentaria in jus canonicum universum" (Turin, 1766); also his "Institutiones" and his great work "Gratiani canonesgenuini ab apocryphis discreti", (Turin, 1752);
James Anthony Zallinger
, a
Jesuit
, "Institutiones juris ecclesiastici maxime privati" (Augsburg, 1791), not so well known as his "Institutionum juris naturalis et ecclesiastici publici libri quinque" (Augsburg, 1784).
This same method was followed again in the nineteenth century by Canon Filippo de Angelis, "Praelectiones juris canonici", (Rome, 1877);
by his colleague Francesco Santi, "Praelectiones", (Ratisbon, 1884; revised by Martin Leitner, 1903); and
E. Grand claude, "Jus canonicum" (Paris, 1882).
The plan of the "Institutiones", in imitation of Lancelotti (Perugia, 1563), has been followed by very many canonists, among whom the principal are:
the learned Antonio Agustin,
Archbishop
of
Tarragona
, "Epitome jurispontificu veteris" (Tarragona, 1587); his "De emendatione Gratiani dialogorum libri duo" (Tarragona, 1587), is worthy of mention;
Claude Fleury, "Institution au droit ecclésiastique" (Paris, 1676);
Zeger Bernard van Espen, "Jus ecclesiasticum universum" (Cologne, 1748);
the
Benedictine
Dominic Schram
, "Institutiones juris ecclesiastici" (Augsburg, 1774);
Vincenzo Lupoli, "Juris ecclesiastici praelectiones" (Naples, 1777);
Giovanni Devoti
, titular
Archbishop
of
Carthage
, "Institutionum canonicarum libri quatuor" (Rome, 1785); his "Commentary on the
Decretals
" has only the first three books (Rome, 1803);
Cardinal Soglia, "Institutiones juris privati et publici ecclesiastici" (Paris, 1859) and "Institutiones juris publici", (Loreto, 1843);
D. Craisson,
Vicar-General
of
Valence
, "Manuale compendium totius juris canonici" (Poitiers, 1861).
School manuals in one or two volumes are very numerous and it is impossible to mention all.
We may cite in
Italy
those of G.C. Ferrari (1847); Vecchiotti (Turin, 1867); De Camillis, (Rome, 1869); Sebastiano Sanguinetti, S.J. (Rome, 1884); Carlo Lombardi (Rome, 1898); Guglielmo Sebastianelli (Rome, 1898), etc.
For German speaking countries, Ferdinand Walter (Bonn, 1822);
F.M. Permaneder
, 1846; Rosshirt, 1858; George Phillips (Ratisbon, 1859: in addition to his large work in eight volumes, 1845 sq.); J. Winckler, 1862 (specially for
Switzerland
); S. Aichner (Brixen, 1862) specially for
Austria
; J. F. Schulte (Geissen, 1863);
F.H. Vering
(Freiburg-im-B., 1874); Isidore Silbernagl (Ratisbon, 1879); H. Laemmer (Freiburg-im-B., 188fi); Phil. Hergenröther (Freiburg-im-B., 1888); T. Hollweck (Freiburg-im-B. 1905); J. Laurentius (Freiburg-im-B., 1903); D. M. Prummer, 1907; J. B. Sägmüller (Freiburg-im-B., 1904).
For
France
: H. Icard, Superior of Saint-Sulpice (Paris, 1867); M. Bargilliat (Paris, 1893); F. Deshayes, "Memento juris ecclesiastici" (Paris, 1897).
In
Belgium
: De Braban dere (Bruges, 1903).
For English-speaking countries: Smith (New York, 1890); Gignac (Quebec, 1901);
Taunton
(London, 1906). For
Spain
: Marian Aguilar (Santo Domingo de la Calzada, 1904); Gonzales Ibarra (Valladolid, 1904).
There are also canonists who have written at considerable length either on the whole canon law, or on special parts of it, in their own particular manner; it is difficult to give a complete list, but we will mention:
Agostino Barbosa
(d. 1639), whose works fill at least 30 volumes;
J.B. Cardinal Luca (d. 1683), whose immense "Theatrum veritatis" and "Relatio curiae romance" are his most important works;
Pignatelli, who has touched on all practical questions in his "Consultationes canonicae", 11 folio volumes,
Geneva
, 1668;
Prospero Lambertini (
Pope Benedict XIV
), perhaps the greatest canonist since the
Council of Trent
in the nineteenth century we must mention the different writings of
Dominique Bouix
, 15 volumes, Paris, 1852 sq.;
the "Kirchenrecht" of J. F. Schulte, 1856 and of Rudolf v. Scherer, 1886; and above all
the great work of Franz Xavier Wernz, General of the
Society of Jesus
, "Jus decretalium" (Rome, 1898 sq.).
It is impossible to enumerate the special treatises. Among repertoires and dictionaries, it will suffice to cite the "Prompta Bibliotheca" of the
Franciscan
Ludovico Ferraris
(Bologna, 1746); the "Dictionnaire de droit canonique" of Durand de Maillane (Avignon, 1761), continued later by Abbé Andre (Paris, 1847) etc.; finally the other encyclopedias of
ecclesiastical
sciences
wherein canon law has been treated.
On
ecclesiastical
public law, the best-known hand books are, with Soglia,
T. M. Salzano, "Lezioni di diritto canonico pubblico et private" (Naples, 1845);
Camillo Cardinal Tarquini
, "Juris ecclesiastici publici institutiones" (Rome, 1860);
Felice Cardinal Cavagrus, "Institutiones juris publici ecclesiastici" (Rome, 1888);
Msgr. Adolfo Giobbio, "Lezioni di diplomazia ecclesiastics" (Rome, 1899);
Emman. de la Peña y Fernéndez, "Jus publicum ecclesiasticum" (Seville, 1900).
For an historical view, the chief work is that of Pierre de Marco,
Archbishop
of
Toulouse
, "De concordia sacerdotii et imperi" (Paris, 1641).
For the history of canon law considered in its sources and collections, we must mention
the brothers
Pietro and Antonio Ballerini
of
Verona
, "De antiquis collectionibus et collectoribus canonum" (Venice, 1757);
among the works of
St. Leo I
, in P.L. LIII;
the matter has been recast and completed by
Friedrich Maassen
, "Geschichte der Quellen und der Literatur des kanonischen Rechts im Abendland", I, (Graz, 1870);
for the history from the time of Gratian see J. F. Schulte, "Geschichte der Quellenund der Literatur des kanonischen Rechts von Gratian his zum Gegenwart" (Stuttgart, 1875 sq.), and "Die Lehre von der Quellen des katholiscen Kirchen rechts" (Giessen, 1860);
Philip Schneider, "Die Lehre van den Kirchenrechtsquellen" (Ratisbon, 1892),
Adolphe Tardif, "Histoire des sources du droit canonique" (Paris, 1887);
Franz Laurin, "Introductio in Corpus Juris canonici" (Freiburg, 1889).
On the history of
ecclesiastical discipline
and institutions, the principal work is "Ancienne et nouvelle discipline de l'Église" by the Oratorian
Louis Thomassin
(Lyons, 1676), translated into Latin by the author, "Vetus et nova discipline" (Paris, 1688).
One may consult with profit
A.J. Binterim
, "Die vorzüglich sten Denkwurdigkeiten der christkatolischen Kirche" (Mainz, 1825);
the "Dizionario di erudizione storico ecclesiastica" by Moroni (Venice, 1840 sq.);
also J.W. Bickell, "Geschichte des Kirchenrechts" (Gies sen, 1843);
E. Loening, "Geschichte des deutschen Kirchenrechts (Strasburg, 1878);
R. Sohm, "Kirchenrecht, I: Die geschichtliche Grundlagen" (1892).
About this page
APA citation.
Boudinhon, A.
(1910).
Canon Law.
In
The Catholic Encyclopedia.
New York: Robert Appleton Company.
MLA citation.
Boudinhon, Auguste.
"Canon Law."
The Catholic Encyclopedia.
Vol. 9.
New York: Robert Appleton Company,
1910.
.
Transcription.
This article was transcribed for New Advent by David K. DeWolf.
Ecclesiastical approbation.
Nihil Obstat.
October 1, 1910. Remy Lafort, Censor.
Imprimatur.
+John M. Farley, Archbishop of New York.
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