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§ 122. The canon Law.
Literature: Decretum Gratiani emendatum et notationibus illustratum. Una cum glossis, Gregorii XIII. Pont. Max. jussu editum, 6 vols. Rome, 1582.—Corpus juris canonici, ed. J. H. Boehmer, 2 vols. Halle 1747, with Introductions by Boehmer on Gratian’s Decretum, I. 1–42, and the later collections of decretals, II. 1–34.—Best critical ed. by A. L. Richter, 2 vols. Leip., 1839, revised ed. by E. Friedburg Leip., 1879–1881, 2 vols. (vol. I., Decret. Gratiani, vol. II., Decretalium collectiones). —J. Fr. von Schulte (Old-Cath. Prof. in Bonn): D. Gesch. der Quellen und Lit. des kanonischen Rechts von Gratian bis auf die Gegenwart, 3 vols. Stuttg., 1875–1880. —Dodd: Hist. of canon Law, Oxf., 1884. —T. Hinschius: D. Kirchenrecht d. Katholiken und Protestanten, etc., 6 vols. Berl., 1869–1897. —E. Friedberg: Lehrbuch des kath. und evangel. Kirchenrechts, 6th ed., Leip., 1903. —A. von Kirchenheim: Kirchenrecht, Bonn, 1900. —P. Hergenröther (Rom. Cath.): Lehrbuch d. kathol. Rechts, 2d. ed., Freib., 1905. —Other works by Walter, 14th ed., 1877. —Richter-Dove, 8th ed., Leip., Phillimore: The Eccles. Law of the Ch. of Engl., 2 vols. London, 1873, Supplem., 1876.—F. W. Maitland: Rom. Can. Law in the Ch. of Engl., Lond., 1898.—The artt. in Herzog, vol. X. Kanonen-Sammlungen, Kanonisches Rechtsbuch, Kirchenrecht. —Stubbs: Const. Hist. of Engl., II. 170 sqq., III. 295–388.—For extensive list of works on canon Law, see Friedberg: Kirchenrecht, pp. 3–11, and Hergenröther: Kirchenrecht, pp. 15 sqq.
Not the least of the characteristic and imposing products of the mediaeval Church was the gigantic fabric of the canon law.18391839 Jus canonicum or ecclesiastica constitutio, in distinction from the civil code, jus civile. See Decr. Grat. Dist., III. Friedberg’s ed., I. 5. The term "canones" was the prevailing term till the 12th century when the expression jus canonicum came into general use.atian in the twelfth century and ending with the decretals of John XXII. in the fourteenth century. The canon law became the legal buttress of the papal theocracy and remained the ruling code till the Reformation.
The science of canon law looks back to Gratian as its father, and Bologna was the chief centre for its study. Although works on the subject were produced in other lands, Italy, through her universities, was far in the lead in their production till late in the fifteenth century.18401840 See Schulte, I. 2 sq.
Under the Roman state, the religious laws—the jus sacrum, jus pontificium — were not a distinct body of legislation . In the Christian Church the conception of a distinct and superior divine law existed from the beginning. The formulation of a written code followed the meeting of Christian synods and their regulations. As the jurisdiction of the hierarchy and the institution of the mediaeval papacy were developed, this legislation came to include civil obligations and all civil penalties except the death penalty.18411841 Döllinger-Friedrich, Papstthum, p. 403, says, "Leaving out the execution of the death penalty, I do not know a single function of the state which the Church did not assume. Is it, therefore, strange that the thought should arise, that the state is really superfluous or that its only significance is to act as a dumb executioner of the will of the Church?" Church encroached more and more upon the jurisdiction of the civil court. Conflict was inevitable. Not only was the independence of civil law as a distinct branch of procedure threatened, but even its very existence. It was not till the fourteenth century that the secular governments were able successfully to resist such encroachments and to regain some of the just prerogatives of which the civil courts had been robbed. "Oh, that the canon law might be purged from the superfluities of the civil law and be ordered by theology," exclaimed Roger Bacon, writing in the thirteenth century. "Then would the government of the Church be carried on honorably and suitably to its high position."18421842 Bridges’s ed., I. p. Ixxxiii.
Gratian’s work was preceded by the Penitential Books and a number of imperfect collections of ecclesiastical decisions, the chief of which were, two books of synodal cases by Regino d. 915, the collections of Burchard, bishop of Worms d. 1025, Anselm of Lucca d. 1086, Cardinal Deusdedit about 1087, and Ivo of Chartres d. 1117.18431843 For full list see Friedberg, p. 126; Schulte, I. 43 sqq.; Hergenröther, p. 179. The pseudo-Isidorian decretals also belong to this class and they were much used, especially by Burchard.
The work of Gratian superseded these earlier compilations, and it enjoys the honor of being the monumental work on canon law. Gratian, a Camaldulensian monk, and an Italian by birth, taught at the convent of St. Felix, Bologna, at the same time that Irnerius was teaching civil law in the same city. No details of his life have been handed down. His biography is his great compilation which was made about 1140–1150. Its original title, A Concordance of Differing canons, concordantia canonum discordantium, has given way to the simple title, Decretum, the Book of Decrees. The work was a legal encyclopaedia, and at once became the manual in its department, as the Sentences of the Lombard, Gratian’s contemporary, became the manual of theology.18441844 Peter the Lombard drew heavily from Gratian, especially in the fourth book of his Sentences, where he reproduced many of Gratian’s distinctiones entire. See Baltzer, D. Sentenzen des P. Lombardus, pp. 10 sq., etc.ing one of Gratian’s pupils, Paucapalea. These editors and commentators were called Summists or Glossarists. The official Roman edition was prepared by a papal commission of thirty-five members and issued by Gregory XIII. in 1582. Gregory declared the text to be forever authoritative, but he did not pronounce upon the contents of Gratian’s work.18451845 Perpetuo integrum et incorruptum conservetur. See Schulte’s remarks on Gratian’s influences I. 69-71.
Gratian’s aim was to produce a work in which all real or apparent contradictions between customs and regulations in vogue in the Church should be removed or explained. This he secured by exclusion and by comments, called the dicta Gratiani, sayings of Gratian. The work is divided into three parts. The first, in one hundred and one sections or distinctiones, treats of the sources of canon law, councils and the mode of their convention, the authority of decretals, the election of the Roman pontiff, the election and consecration of bishops, the papal prerogative, papal legates, the ordination of the clergy, clerical celibacy, and kindred topics. The second, in thirty-six sections or causae, discusses different questions of procedure, such as the ordination and trial of bishops and the lower clergy, excommunication, simony, clerical and church property, marriage, heresy, magic, and penance. The third part is devoted to the sacraments of the eucharist and baptism and the consecration of churches. The scholastic method is pursued. A statement is made and objections, if any, are then formally refuted by citation of synodal acts and the testimony of the Fathers, popes, and other churchmen. The first distinction opens with the statement that the human race is governed by two principles, natural law and customs. Then a number of questions are propounded such as what is law, what are customs, what kinds of law there are, what is natural law, civil law, and the law of nations?
Gratian’s volume was soon found to require supplement. The two centuries following its appearance were most fruitful in papal decrees, especially in the pontificates of Alexander III., Innocent III., and Gregory IX. These centuries also witnessed the Lateran and other important Councils. The deliverances of popes and synods, made subsequently to the age of Gratian, were called extravagantes or fugitives.18461846 Quia extra Decretum Gratiani vagabantur. were made from 1191 to 1226.18471847 Friedberg’s ed., Quinque compilationes antiquae, Leip., 1882. The first, made by Bernard of Pavia, 1191 in his Breviarium extravagantium, distributes the materials under five heads,—judge, sentence, clergy, marriage, crime.f canon law having papal sanction.
The demand for a complete collection of these materials induced Gregory IX. to commit the task of gathering them into a single volume to his chaplain Raymund de Pennaforte.18481848 Gregory’s bull is given in Wetzer-Welte, III. 1146-1450. IX, was finished and sent to Paris and Bologna in 1234 with the direction that it be used for purposes of instruction, and in the trial of cases. The preparation of other compilations was strictly forbidden. Gregory’s collection comprises 185 titles and 1871 decretals and follows the fivefold division of Bernard of Pavia’s work.18491849 Friedberg gives the text, II. 6-927, and also Gregory IX,’s letter transmitting the decretals to the university of Bologna.
A new collection, called the Sixth Book, liber sextus — or, as by English writers, the Sext,—was issued by the authority of Boniface VIII., 1298, and carried the collections of Gratian and Gregory IX. into Boniface’s reign. In 1314, Clement V. issued another collection, which included his own decretals and the decrees of the council of Vienne and was called the Seventh Book, liber septimus, or the Clementines. In 1317, John XXII. officially sent Clement’s collection to the universities of Bologna and Paris. Subsequent to the publication of the Clementines, twenty of John’s own decretals were added. In 1500 John Chappuis, in an edition of the liber sextus and the Clementines, added the decretals of John and seventy-one of other popes. This series of collections, namely, Gratian’s Decretum, Gregory IX,’s Decretales, the Sext, the Clementines, and the Extravagantes of John XXII., constitutes the official body of canon law—corpus juris canonici — and was published in the edition of Gregory XllI.
The canon law attempted the task of legislating in detail for all phases of human life—clerical, ecclesiastical, social, domestic—from the cradle to the grave by the sacramental decisions of the priesthood. It invaded the realm of the common law and threatened to completely set it aside. The Church had not only its own code and its specifically religious penalties, but also its own prisons.
This body of law was an improvement upon the arbitrary and barbaric severity of princes. It, at least, started out from the principles of justice and humanity. But it degenerated into an attempt to do for the individual action of the Christian world what the Pharisees attempted to do for Jewish life. It made the huge mistake of substituting an endless number of enactments, often the inventions of casuistry, for inclusive, comprehensive moral principles. It put a crushing restraint upon the progress of thought and bound weights, heavy to be borne, upon the necks of men. It had the virtues and all the vices of the papal system. It protected the clergy in the commission of crimes by demanding that they be tried in ecclesiastical courts for all offences whatsoever. It became a mighty support for the papal claims. It confirmed and perpetuated the fiction of the pseudo-Isidorian decretals and perpetrated new forgeries. It taught that the decisions of Rome are final.18501850 Dist., XIX. 3, Friedberg, I. 61. Romana ecclesia, cui nos Christus preesse voluit, posita est, omnibus, quicquid statuit, quicquid ordinat, perpetuo, irrefragabiliter observandum est.18511851 Causa, XXV. I. 16; Döllinger, Papstthum, pp. 55 sqq. Gratian misquoted the 36th canon of the Sixth Oecumenical council which, giving to the patriarch of Constantinople equal rights with the patriarch of Rome, made it say the very opposite. Misquoting the synod of Carthage of 418, which forbade appeals across the sea, Gratian made the synod say the very opposite. Causa, II. 6, 37. Leaning upon pseudo-Isidore, Gratian allows the transfer of bishops from one see to the other with the assent of the pope. Causa, VII. I. 34. his examination of the Decretum, by pronouncing it; "filled through and through with forgery and error" and says "it entered like a mighty wedge into the older structural organization of the Church and split it apart. "
The canon law also gave its sanction to the devilish principle of ecclesiastical compulsion, declaring that physical force is to be used to coerce ecclesiastical dissidents. It justified wars against the enemies of religion and the persecution of heretics, even as Sarah, the type of the heavenly Jerusalem, persecuted her handmaid Hagar. And it declared, with Urban II., that he who kills one who is under the sentence of excommunication is not to be dealt with as a murderer.18521852 See Causa, XXIII. 4, 5, 6, Friedberg’s ed., I. 899-950.y Thomas Aquinas and the other Schoolmen and asserted by the greatest of the popes.
At last the legalistic tyranny became too heavy for the enlightened conscience of Europe to bear, as was the case with the ceremonial law in the days of the Apostles, against which Peter protested at the council of Jerusalem and Paul in his Epistles. The Reformers raised their voices in protest against it. Into the same flames which consumed the papal bull at Wittenberg, 1520, Luther threw a copy of the canon law, the one representing the effrontery of an infallible pope, the other the intolerable arrogance of a human lawgiver in matters of religion, and both destructive of the liberty of the individual. In his Address to the Christian Nobles, Luther declared that it did not contain two lines adapted to instruct a religious man and that it includes so many dangerous regulations that the best disposition of it is to make of it a dung heap.
Even in the Catholic world its enactments have been largely superseded by the canons of the council of Trent, the papal decretals issued since, and the concordats between Catholic princes and the papal see. By virtue of his official infallibility, the pope may at any time supersede them by decisions and dispensations of his own.
The words of Goethe may be applied to the canon law:—
Es erben sich Gesetz und Rechte
Wie eine ewige Krankheit fort
Sie schleppen von Geschlecht sich zum Geschlechte
Und schleichen sich von Ort zu Ort
Vernunft wird Unsinn, Wohlthat Plage.
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