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2. The Development of Ecclesiastical Law.3030For the earliest period see Maassen, Gesch. der Quellen und Litt. des Kanonischen Rechts I. vol. (till Pseudoisidore) 1870. For the later period see v. Schulte, Gesch. der Quellen und Lit. des Kanonischen Rechts von Gratian bis auf Gregor IX., 1875. See the introductions to von Friedberg’s edition of the corp. jur. can.

Let us notice at least in a few words the increased activity in ecclesiastical law in the period under review, which was not without its influence on the mode of conceiving of dogma, and on the history of dogma.

First, it is a fact of importance that from the middle of the second half of the ninth century, Church law was framed more and more on a Pseudoisidorian basis. Second, the preponderating attention given to law in general, and the growing subjection of all ecclesiastical questions to legal conceptions are characteristics of the period. As to the first point, it is well known that the Popes always continued to take more to do with the administration of the dioceses,3131Nicholas I., Leo IX., Alexander II., Alexander III. represent the stages prior to Innocent III. But Gregory VII. was the soul of the great movement in the eleventh century. that the old metropolitan constitution lost its importance, and that the old constitutional state of things in general — during the first half of our period — fell into decay and ceased to exist. The Episcopal power, it is true, strengthened itself in many places by assuming a civil character, and on the other hand, the Emperors, from Otto I. to Henry III. after having reformed the enfeebled papacy, brought it for a time into dependence on the imperial crown. But as they also deprived all laymen, who were not princes, of all share in the direction of ecclesiastical affairs, and as they suppressed the independence of the local ecclesiastical bodies (the congregations), in the interests of imperialism and of “piety,” only the Emperor (who called himself rector ecclesiæ and vicarius Christi), the Pope, and the bishops remained as independent powers. It was about the property of the bishops, and on the question as to who was the true ruler of the divine state and the vicar of Christ, that the great battle was really waged between the empire and the reformed papacy. In this struggle the latter, acting on the 17impulse given by Gregory VII., developed itself into the autocratic power in the Church, and accordingly after having freed itself in Rome from the last remnants of older constitutional conditions, framed its legislation by means of numerous decretals. At the “œcumenical” Lateran Synods of 1123 and 1139, the papacy left no doubt as to this new position which it meant to assert.3232The numbering of the œcumenical Councils, which has now become a sententia communis among the curialist theologians, has been established on the authority of Bellarmin (see Döllinger and Reusch, Die Selbstbiographie des Cardinals Bellarmin, 1887, p. 226 ff. That previous to him Antonius Augustinus [ob. 1586] counted them in the same way, has been pointed out by Buschball: “Die Professiones fidei der Päpste,” separately printed from the Röm. Quartalschr. 10 Bd., 1896, p. 62). In the sixteenth century there still prevailed the greatest diversity in the enumeration: indeed the majority did not regard those Councils in which the Greek Church did not take part as œcumenical at all. There was likewise conflict of opinion as to whether the Councils of Bâsle, Florence (and Constance), were to be reckoned in. Antonius Augustinus and Bellarmin (in the Roman edition of the Concilia generalia of 1608 f.), included the Lateran Councils of 1123 and 1139 (and left out the Council of Bâsle). “The question, it is true, was of subordinate importance for Bellarmin, in as much as he places on the same level with the decrees of the General Councils those of the ‘Particular’ Councils held under the presidency of the Pope, or sanctioned by him; but having in view those who held, not that the Pope, but that the General Council was infallible, it was certainly necessary for him to discuss the question as to what Councils are to be regarded as general.” But in thus determining the question, he naturally allowed himself to be influenced by his strong curialistic standpoint, that is, he set aside the Council of Constance and Bâsle, and placed among the œcumenical Councils that of Florence, the fourth and fifth Lateran Councils, the first of Lyons, and that of Vienna, on the ground that these favoured the papacy. He thus arrived at the number of eighteen approved General Councils (eight from the first ten centuries, the Lateran Councils of 1123, 1139, 1179, 1215, those of Lyons in 1245 and 1274, that of Vienna in 1311, that of Florence, the fifth Lateran Council, and that of Trent). But here also, as everywhere in Catholic dogmatics, there are “half” authorities, and half genuine coin, in spite of the Holy Ghost who guides into all truth. That is to say, several Councils are “partly ratified, partly rejected,” those of Constance and Bâsle being among them, and the Council of Pisa in 1409 is “neither manifestly ratified nor manifestly rejected.” Since the year 1870, the question about the number of the Councils has completely lost all real interest for Catholics. But reactionary Protestantism has every reason to feel interested in it. Buschball (l.c. pp. 60, 74, 79), holds that in the Middle Ages a distinction in principle was not made between the view taken of the Councils of the first thousand years and that taken of those that were later. But he adduces no proof that prior to the Council of Constance the later Councils were placed quite on a level with the earlier, and even by what he adduces for the time subsequent uncertainty is suggested. How could the Mediæval Councils be regarded even before the Council of Trent as quite of equal standing with those of the first ten centuries, when, up to the time of this Council, the general opinion was certainly to the effect that dogma was contained in fundamental and final form in the twelve articles, and in the interpretation relating to them which they had received from the older Councils! The process of equalising was probably begun by the Councils of Florence and Basle, with their high degree of self-consciousnes. That Councils at all could be pointed to in the long period between the ninth and the fifteenth centuries, was necessarily of more importance than the taking account of what was decided at these Councils, of how they were constituted, and of the authority that guided them. We may very well venture to say therefore: in the fifteenth century the equalising had begun with some hesitation, the Council of Trent favoured it by its weight, and it then became established. The Popes afterwards, 18till the time of Innocent III., defended and strengthened their autocratic position in the Church amid severe but victorious struggles. No doubt, they had to hear many an anxious word from their most faithful sons; but the rise of the papacy to despotic power in the Church, and thereby to dominion over the world, was promoted by the piety and by all the ideal forces of the period. Not in opposition to the spirit of the times — how would that have been possible? — but in union with it, the papacy ascended the throne of the world’s history in the eleventh and twelfth centuries. Its opponents, so far as they possessed religion, were its secret allies, or contended with doubtful consciences, or, at least, were unable to show that the benefits for which they fought (national churchism, etc.) were the highest and the holiest. Under such circumstances the papal decretals obtained an ever-increasing authority.3333On the development of the primacy in the eleventh and twelfth centuries, see Döllinger, Janus, p. 107 ff. (Schwane, Dogmengesch. des Mittelalters, p. 530 ff.). How much stronger was the Gregorian party in the eleventh century than the Pseudoisidorian in the ninth, and how much more revolutionary and aware of his aim was Gregory VII. than Nicolas I.! “He was the first who, with full, clear consciousness, was determined to introduce a new condition of things into the Church by new means. He regarded himself not merely as the reformer of the Church, but as the divinely chosen founder of an order of things such as had never before existed.” His chief means were Synods held by the Pope (this was begun by Leo IX.) and new ecclesiastical law-books. The nephew of Pope Alexander II., Anselm of Lucca, became the founder of the new Gregorian Church law, this being effected by him partly by making apt use of that of Pseudoisidore, and partly by a new set of fictions (e.g., that the episcopacy everywhere originated from Peter) and forgeries. He was followed by Deusdedit, Bonizo, and Cardinal Gregorius. Deusdedit formulated the new principle, that contradictions in the traditional Church law must always be harmonised by letting, not the older, but the greater authority, that is, the dictum of the Pope cancel the opposite view. In this way the autocracy of the Popes was established. On the series of new fictions and falsifications of the old tradition, see Janus, p.:12 ff. Specially important is the way in which history was induced to furnish testimony in proof of the infallibility of the papal decretals, and in which even Augustine was pronounced an authority for this new doctrine (p. 119 ff. ). A sentence of his was so manipulated that it came to mean that the papal letters stood on a level with canonical Scripture. Since then the defenders of the infallibility of the Pope, to which Gregory VII. already made a distinct claim, and, indeed, treated it as concessum (p. 124 ff.), have always appealed to Augustine. Indeed, Gregory VII., following an earlier precedent, ciaimed for the Popes a complete personal holiness — for they have all that Peter had — and the Pope’s holiness, in addition to his infallibility, was so boldly taught by the Gregorians (imputation of the merit of Peter) that anything stronger in the way of claim became impossible. They took their place 19beside the old canons,3434Alexander II. wrote to King Philip of France, requesting him to rank the papal decrees along with the canons; see Jaffé, Regesta, 2 Edit., Nr. 4525. nay even beside the decrees of the œcumenical Councils. Yet, strictly speaking, the measure of their authority remained still quite uncertain, and prior to Innocent III. dogmatic questions were not treated in them, or treated only very seldom, while the Popes in general, in the period of 150 years from the Synod of Sutri till 1198, had their hands fully occupied with establishing the Roman autocratic and monastic Church order.3535The Lateran Synods of 1123, 1139, 1179, contain nothing whatever of a dogmatic character (excepting the twenty-seventh canon of the Council of 1179, which urges the extermination of the Cathari, but says nothing of their doctrine); see Mansi XXI., XXII., Hefele V.2, pp. 378 ff., 438 ff., 710 ff.

In developing itself as the supreme court of jurisdiction, the papacy could never have obtained in the Church, which assuredly is fellowship in faith and worship, monarchical rule as regards faith and morals, had not the amalgamation of dogma and law become perfect in this period. It was not the Popes who brought about this fusion; they merely turned to account a mode of view which prevailed everywhere, and from which scarcely an individual dissented. In what has been represented from the beginning of Book II. of our Second Part, it has been shown that the legal view of religion was an old inheritance of the Latin Church; religion is lex dei, lex Christi. In principle, it is true, this view had been radically corrected by Augustinianism; but Augustine himself allowed the legal schemes to remain in many important particulars. Then there followed the mission of the Western Church among the foreign nations, pagan and Arian. With these it came into contact, not merely as an institution 20for religious worship, but as the Roman Christian system of civilisation and law. Not simply as a system of faith did it wish and venture to assert itself; it could assert itself at all, rather, only by placing its entire equipment, and all its principles, some of which had an extremely profane origin, under the protection of the divine law. Thus the Germanic and Romanic nations came to regard all legal ordinances of the Church as ordinances of faith, and vice versâ. Boniface and Charlemagne then set themselves to secure that the two would harmonise. The “must” became identical in the three sentences: “He who will be saved must believe as follows”; “the Christian must pay tithes”; “adultery must be atoned for by this particular penalty.” How busily the framing, or the codification, of Church law was carried on from the time when Dionysius Exiguus made his collection till the time of Pseudoisidore, is shown by the numerous collections which were everywhere produced — even in Rome still — by the rich synodical life of the provincial Churches, and which were meant to guard the independence, the rights, and the distinctive life of the Church in the new world of Germanic manners. Everywhere (prior to the ninth century) dogma fell quite into the background; but just on that account the feeling became habitual, of regarding all deliverances of the Church as legal ordinances. The Cluniacensian-Gregorian reform of the eleventh century put an end to numerous traditional ordinances pertaining to constitution and law, and replaced them with new ones, in which the independence of the Church in relation to the State, and of Roman universalism in relation to the national Churches, found ever stronger expression. As the result of this, there developed itself in the eleventh century an imposing legislation, which was gathered up and completed in Gratian’s collection — though this collection was in so far out of date and behind the facts, as in it the legislation was not yet determined throughout by the thought of the concentration of ecclesiastical power in the hands of the Pope.3636 See v. Schulte, Lehrbuch des Kathol. und evang. Kirchenrechts 4 Aufl., p. 20. But besides their adoption of the Gregorian doctrines, this collection, and some older ones that preceded it, show quite a new turn of things, for they are the product of a study of law. Here also Gregory VII. was 21epoch-making. He was the great jurist in the papal chair, and from his time onward, the treatment of all functions of the Church in accordance with juristic science began to be the main problem. The study of law, carried on chiefly in Bologna,3737See Denifle, Die Univ. des Mittelalters I. 1885. Kaufmann, Gesch. der deutschen Univers. I., p. 157 ff. exercised an immeasurable influence on the intellectual vision of the Church throughout its whole extent; the study of law, indeed, moulded thought in general. Hellenism also at that time exerted an incalculable influence in the way of fostering this study. The Romo-Grecian legislation came into the West, and although, at the first, it began by modifying what was still a “barbarian” form of secular legal life there, and by building up a sovereign State with its laws and officials, it yet gradually exercised also a furthering influence on the construction of the strict monarchical Church system; for what is legal for the Emperor is allowable for the Pope; or rather — he is in truth the Emperor. It cannot be doubted that here also Rome knew how to gather grapes of thorns and figs of thistles. The new rights of its adversary, the Emperor, it applied to itself.

What had formerly developed itself under the force of circumstances — the Church as a legal institution — was now strengthened and built up by thought.3838See v. Schulte, Gesch. der Quellen, etc., I., p. 92 ff.; II., p. 512 f. As Gregory VII. held still more strongly than any of his predecessors that the Church is the kingdom founded upon Peter, and that everything is to be traced back to the power given to it, the legal organism was placed in the foreground; see Kahl, Die Verschiedenheit Kathol. und Evang. Anschauung über das Verhältniss von Staat und Kirche (1886), p. 7 f.: “The character of the Catholic Church as a legal organism is already involved in the doctrine of its founding, and in the conception of it.” The fullest and most reliable historic proofs in Hinschius, Kath. Kirchenrecht. Juristic thought laid its arrest on everything. And yet even here need controlled the situation. For when the impulse to reflect is once awakened, what else can those at first become, who still live in a world of abstractions and are blind to nature and history, but jurists and dialecticians? Thus there settled down upon the whole Church, even upon its faith, the spirit of jurisprudence, now grown conscious of itself. Everything was laid hold of by it. It was a strong force in what is styled “Scholasticism”; it governed the most powerful Popes (Alexander III. as Magister Rolandus), and it began to bring 22within its sweep the form in which the traditional dogmas were presented. Certainly this was an easy matter for it; for in their practical conclusions these dogmas had already been made to serve quite as legal means in a legal process. What still remained was to submit to juristic exposition even the central tenets of faith themselves, and so to justify and defend them “scientifically.” Here too, indeed, the material was not entirely in a raw state; to some extent, rather, the foundation stones had received a juristic shaping from the Latin fathers of dogma themselves (cf. Tertullian); but there was still an immense task presenting itself, to the full accomplishment of which an approach even had never been made; it was to re-think the whole dogmatic tradition in the spirit of jurisprudence, to represent every-thing under the categories of judge (God), accused, advocate, legal measures, satisfactions, penalties, indulgences, to make out of dogmas as many distinctions as obtain in secular legal order between universally valid, relatively valid, probable, consuetudinary law, positive law, etc., and to convert dogmatics into a chamber of justice, out of which there was afterwards to develop the merchant’s hall and the den of thieves.

But in the period we are considering, the Church was certainly the basis and sum of the highest ideals of the mediæval man, and the enormous contradiction on which one proceeded — had proceeded indeed, from the time of Augustine — of regarding the Church as at once the society of the faithful (societas fidelium), and as the hierarchically organised assemblage (coetus), of recognising the secular power in its divine right and yet suppressing its authority, was by many scarcely felt3939In the valuable inquiry of Mirbt, Die Stellung Augustin’s in der Publicistik des gregorianischen Kirchenstreits (1888) — cf. the same author’s work “Die Publicistik im Zeitalter Gregor’s VII.,” 1894 — the significance of Augustine for the struggles in Church politics in the eleventh century has for the first time been methodically and thoroughly described. It amounted directly to less than one would have expected, and it is noteworthy that the Antigregorians can show a larger heritage of Augustinian thoughts than their opponents (see Theol. Lit. Ztg., 1889, Col. 599).. Only at the end of the epoch did the inner antagonism become apparent; but the hierarchy had then already become the Church. Just at that time, therefore, the claim of the hierarchy, and specially of the papacy, was proclaimed as dogma, and the struggle of the 23civil powers against the despotism of the Pope was declared to be as really rebellion against Christ as was the assertion of the sects that the true Church is the opposite of the hierarchy. This will have to be dealt with in the following chapter.


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