I. 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).
II. 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.
III. 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 (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". (See BULLS and BRIEFS.) 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 (q.v.) 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.
IV. 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".
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 (q.v.).
(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-lsidore
(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 (see FALSE
DECRETALS).
(7) To conclude the list of collections, where the later
canonists were to garner their materials, we must mention the "Penitentials"
(q.v.), 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" (q.v.),
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, undertaken by Pope Pius X;
- the 1983 Code of Canon Law (for the Western Church), and a
subsequent Code for the Eastern Churches;
- 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.
V. 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 First 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.
In 1983, Pope John Paul II issued an entirely new Code of Canon
Law for the Western Church; he followed it with a new code for the Eastern Churches.
VI. 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 (q.v.). In the same manner the legislator can
derogate from the law in special cases; this is called a dispensation (q.v.). 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.
VII. 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, 170O);
- 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. Hergenroether (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 practica1 questions in his
"Consultationes canoniccae", 11 folio volumes, Geneva, 1668;
- Prospero Lambertini (Pope Benedict XIV), perhaps the greatest
canonist since the Council of Trent (q.v.);
- 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, "Introduc tio in Corpus Juris canonici"
(Freiburg, 1889).
- On the history of ecclesiastical discipline and institutions, the
principal work is "Ancienne et nouvelle discipline de l'Eglise" 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).
Book I
Book II
Book III
Book IV
Book V
Book VI
Book VII
A. BOUDINHON
From the Catholic Encyclopedia, copyright © 1913 by
the Encyclopedia Press, Inc
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