Transcribed by David K. DeWolf
|This subject will be
treated under the following heads:
I. General Notion 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, inter-confessional 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 super-added to the general law.
We have to distinguish between the law of the Western or Latin Church, and the law of the Eastern Churches, and of each of them. Likewise, between the law of the Catholic Church and those of the non-Catholic Christian Churches or confessions, the Anglican Church and the various Eastern Orthodox Churches.
Finally, if we look to the history or chronological evolution of canon law, we find three epochs: from the beginning to the "Decretum" of Gratian exclusively; from Gratian to the Council of Trent; from the Council of Trent to our day. The law of these three periods is referred to respectively as the ancient, the new, and the recent law (jus antiquum, novum, novissimum), though some writers prefer to speak of the ancient law, the law of the Middle Ages, and the modern law (Laurentius, "Instit.", n.4).
As we shall see in treating of the gradual development of the material of canon law (see below, IV), though a legislative power has always existed in the Church, and though it has always been exercised, a long period had necessarily to elapse before the laws were reduced to a harmonious systematic body, serving as a basis for methodical study and giving rise to general theories. In the first place, the legislative authority makes laws only when circumstances require them and in accordance with a definite plan. For centuries, nothing more was done than to collect successively the canons of councils, ancient and recent, the letters of popes, and episcopal statutes; guidance was sought for in these, when analogous cases occurred, but no one thought of extracting general principles from them or of systematizing all the laws then in force. In the eleventh century certain collections group under the same headings the canons that treat of the same matters; however, it is only in the middle of the twelfth century that we meet in the "Decretum" of Gratian the first really scientific treatise on canon law. The School of Bologna had just revived the study of Roman law; Gratian sought to inaugurate a similar study of canon law. But, while compilations of texts and official collections were available for Roman law, or "Corpus juris civilis", Gratian had no such assistance. He therefore adopted the plan of inserting the texts in the body of his general treatise; from the disordered mass of canons collected from the earliest days, he selected not only the law actually in force (eliminating the regulations which had fallen into desuetude, or which were revoked, or not of general application) but also the principles; he elaborated a system of law which, however incomplete, was nevertheless methodical. The science of canon law, i.e. the methodical and coordinated knowledge of ecclesiastical law, was at length established.
Gratian's "Decretum" was a wonderful work; welcomed, taught and glossed by the decretists at Bologna and later in the other schools and universities, it was for a long time the textbook of canon law. However his plan was defective and confusing, and, after the day of the glosses and the strictly literal commentaries, it was abandoned in favour of the method adopted by Bernard of Pavia in his "Breviarium" and by St. Raymund of Pennafort in the official collection of the "Decretals" of Gregory IX, promulgated in 1234 (see CORPUS JURIS CANONICI). These collections, which did not include the texts used by Gratian, grouped the materials into five books, each divided into "titles", and under each title the decretals or fragments of decretals were grouped in chronological order. The five books, the subject matter of which is recalled by the well-known verse: "judex, judicium, clerus, connubia, crimen" (i.e. judge, judgment, clergy, marriages, crime), did not display a very logical plan; not to speak of certain titles that were more or less out of place. They treated successively of the depositaries of authority, procedure, the clergy and the things pertaining to them, marriage, crimes and penalties. In spite of its defects, the system had at least the merit of being official; not only was it adopted in the latter collections, but it served as the basis for almost all canonical works up to the sixteenth century, and even to our day, especially in the universities, each of which had a faculty of canon law.
However, the method of studying and teaching gradually developed: if the early decretalists made use of the elementary plan of the gloss and literal commentary, their successors in composing their treatises were more independent of the text; they commented on the titles, not on the chapters or the words; often they followed the titles or chapters only nominally and artificially. In the sixteenth century they tried to apply, not to the official collections, but in their lectures on canon law the method and division of the "Institutes" of Justinian: persons, things, actions or procedure, crimes, and penalties (Institutes, I, ii, 12). This plan, popularized by the "Institutiones juris canonici" of Lancellotti (1563), has been followed since by most of the canonist authors of "Institutiones" or manuals, though there has been considerable divergence in the subdivisions; most of the more extensive works, however, preserved the order of the "Decretals". This was also followed in the 1917 code. In later times many textbooks, especially in Germany, began to adopt original plans. In the sixteenth century too, the study of canon law was developed and improved like that of other sciences, by the critical spirit of the age: doubtful texts were rejected and the raison d'κtre and tendency or intention of later laws traced back to the customs of former days. Canon law was more studied and better understood; writings multiplied, some of an historical nature, others practical, according to the inclination of the authors. In the universities and seminaries, it became a special study, though as might be expected, not always held in equal esteem. It may be noted too that the study of civil law is now frequently separated from that of canon law, a result of the changes that have come over society. On the other hand, in too many seminaries the teaching of ecclesiastical law is not sufficiently distinguished from that of moral theology. The publication of the new general code of canon law will certainly bring about a more normal state of affairs.
The first object of the science of canon law is to fix the laws that are in force. This is not difficult when one has exact and recent texts, drawn up as abstract laws, e.g. most of the texts since the Council of Trent, and as will be the case for all canon law when the new code is published. But it was not so in the Middle Ages; it was the canonists who, to a large extent, formulated the law by extracting it from the accumulated mass of texts or by generalizing from the individual decisions in the early collections of decretals. When the law in force is known it must be explained, and this second object of the science of canon law is still unchanged. It consists in showing the true sense, the reason, the extension and application of each law and each institution. This necessitates a careful and exact application of the triple method of exposition, historical, philosophical, and practical: the first explains the law in accordance with its source and the evolution of customs; the second explains its principles; the last shows how it is to be applied at present. This practical application is the object of jurisprudence, which collects, coordinates and utilizes, for more or less analogous cases, the decisions of the competent tribunal. From this we may learn the position of canon law in the hierarchy of sciences. It is a judicial science, differing from the science of Roman law and of civil law inasmuch as it treats of the laws of an other society; but as this society is of the spiritual order and in a certain sense supernatural, canon law belongs also to the sacred sciences. In this category it comes after theology, which studies and explains in accordance with revelation, the truths to be believed; it is supported by theology, but in its turn it formulates the practical rules toward which theology tends, and so it has been called "theologia practica", "theologia rectrix". In as far as it is practical the science of canon law is closely related to moral theology; however, it differs from the latter which is not directly concerned with the acts prescribed or forbidden by the external law, but only with the rectitude of human acts in the light of the last end of man, whereas, canon law treats of the external laws relating to the good order of society rather than the workings of the individual conscience. Juridical, historical, and above all theological sciences are most useful for the comprehensive study of canon law.
This expression has a twofold meaning; it may refer to the sources from which the laws come and which give the latter their judicial force (fortes juris essendi); or it may refer to the sources where canon law is to be found (fortes juris cognoscendi), i.e. the laws themselves such as they occur in the texts and various codes. These sources are also called the material and the formal sources of canon law. We shall consider first the sources under the former aspect.
The ultimate source of canon law is God, Whose will is manifested either by the very nature of things (natural Divine law), or by Revelation (positive Divine law). Both are contained in the Scriptures and in Tradition. Positive Divine law cannot contradict natural law; it rather confirms it and renders it more definite. The Church accepts and considers both as sovereign binding laws which it can interpret but can not modify; however, it does not discover natural law by philosophic speculation; it receives it, with positive Divine law, from God through His inspired Books, though this does not imply a confusion of the two kinds of Divine law. Of the Old Law the Church has preserved in addition to the Decalogue some precepts closely allied to natural law, e.g. certain matrimonial impediments; as to the other laws given by God to His chosen people, it considers them to have been ritual and declares them abrogated by Jesus Christ. Or rather, Jesus Christ, the Lawgiver of the spiritual society founded by Him (Con. Trid., Sess. VI, "De justif.", can. I), has replaced them by the fundamental laws which He gave His Church. This Christian Divine law, if we may so call it, is found in the Gospels, in the Apostolic writings, in the living Tradition, which transmits laws as well as dogmas. On this positive Divine law depend the essential principles of the Church's constitution, the primacy, the episcopacy, the essential elements of Divine worship and the Sacraments, the indissolubility of marriage, etc.
Again, to attain its sublime end, the Church, endowed by its Founder with legislative power, makes laws in conformity with natural and Divine law. The sources or authors of this positive ecclesiastical law are essentially the episcopate and its head, the pope, the successors of the Apostolic College and its divinely appointed head, Saint Peter. They are, properly speaking, the active sources of canon law. Their activity is exercised in its most solemn form by the ecumenical councils, where the episcopate united with its head, and convoked and presided over by him, with him defines its teaching and makes the laws that bind the whole Church. The canons of the Ecumenical councils, especially those of Trent, hold an exceptional place in ecclesiastical law. But, without infringing on the ordinary power of the bishops, the pope, as head of the episcopate, possesses in himself the same powers as the episcopate united with him. It is true that the disciplinary and legislative power of the popes has not always, in the course of centuries, been exercised in the same manner and to the same extent, but in proportion as the administration became centralized, their direct intervention in legislation became more and more marked; and so the sovereign pontiff is the most fruitful source of canon law; he can abrogate the laws made by his predecessors or by Ecumenical councils; he can legislate for the whole church or for a part thereof, a country or a given body of individuals; if he is morally bound to take advice and to follow the dictates of prudence, he is not legally obliged to obtain the consent of any other person or persons, or to observe any particular form; his power is limited only by Divine law, natural and positive, dogmatic and moral. Furthermore, he is, so to say, the living law, for he is considered as having all law in the treasury of his heart ("in scrinio pectoris"; Boniface VIII. c. i, "De Constit.' in VI). From the earliest ages the letters of the Roman pontiffs constitute, with the canons of the councils, the principal element of canon law, not only of the Roman Church and its immediate dependencies. but of all Christendom; they are everywhere relied upon and collected, and the ancient canonical compilations contain a large number of these precious "decretals" (decreta, statuta, epistolae decretales, and epistolae synodicae). Later, the pontifical laws are promulgated more usually as constitutions, Apostolic Letters, the latter being classified as Bulls or Briefs, according to their external form, or even as spontaneous acts, "Motu proprio". (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'eglise". On the other hand, modern legislation is indebted to the canon law for certain beneficial measures: part of the procedure in criminal, civil, and matrimonial cases, and to some extent, the organization of courts and tribunals.
Considered under the second aspect, the sources of canon law are the legislative texts, and the collections of those texts whence we derive our knowledge of the Church's laws. In order to appreciate fully the reasons for and the utility of the great work of codification of the canon law, recently begun by order of Pius X, it is necessary to recall the general history of those texts and collections, ever increasing in number up to the present time. A detailed account of each of the canonical collections is here out of place; the more important ones are the subject of special articles, to which we refer the reader; it will suffice if we exhibit the different stages in the development of these texts and collections, and make clear the movement to wards centralization and unification that has led up to the present situation. Even in the private collections of the early centuries, in which the series of conciliary canons were merely brought together in more or less chronological order, a constant tendency towards unification is noticeable. From the ninth century onwards the collections are systematically arranged; with the thirteenth century begins the first official collections, thenceforth the nucleus around which the new legislative texts centre, though it is not yet possible to reduce them to a harmonious and coordinated code. Before tracing the various steps of this evolution, some terms require to be explained. The name "canonical collections" is given to all collections of ecclesiastical legislative texts, because the principal texts were the canons of the councils. At first the authors of these collections contented themselves with bringing together the canons of the different councils in chronological order; consequently these are called "chronological" collections; in the West, the last important chronological collection is that of Pseudo-Isidore. After his time the texts were arranged according to subject matter; these are the "systematic" collections, the only form in use since the time of Pseudo-Isidore. All the ancient collections are private, due to personal initiative, and have, therefore, as collections, no official authority: each text has only its own intrinsic value; even the "Decretum" of Gratian is of this nature. On the other hand, official or authentic collections are those that have been made or at least promulgated by the legislator. They begin with the "Compilatio tertia" of Innocent III; the later collections of the "Corpus Juris", except the "Extravagantes", are official. All the texts in an official collection have the force of law. There are also general collections and particular collections: the former treating of legislation in general, the latter treating of some special subject, for instance, marriage, procedure, etc., or even of the local law of a district. Finally, considered chronologically, the sources and collections are classified as previous to or later than the "Corpus Juris".
A. Canonical Collections In the East
Until the Church began to enjoy peace, the written canon law was very meagre; after making full allowance for the documents that must have perished, we can discover only a fragmentary law, made as circumstances demanded, and devoid of all system. Unity of legislation, in as far as it can be expected at that period, is identical with a certain uniformity of practice, based on the prescriptions of Divine law relative to the constitution of the Church, the liturgy, the sacraments, etc. The clergy, organized everywhere in the same way, exercised almost everywhere the same functions. But at an early period we discover a greater local disciplinary uniformity between the Churches of the great sees (Rome, Carthage, Alexandria, Antioch, later Constantinople) and the Churches depending immediately on them. Further it is the disciplinary decisions of the bishops of the various regions that form the first nucleus of local canon law; these texts, spreading gradually from one country to another by means of the collections, obtain universal dissemination and in this way are the basis of general canon law.
There were, however, in the East, from the early days up to the end of the fifth century, certain writings, closely related to each other, and which were in reality brief canon law treatises on ecclesiastical administration the duties of the clergy and the faithful, and especially on the liturgy. We refer to works attributed to the Apostles, very popular in the Oriental Churches, though devoid of official authority, and which may be called pseudo-epigraphic, rather than apocryphal. The principal writings of this kind are the "Teaching of the Twelve Apostles" or "Didache", the "Didascalia", based on the "Didache"; the "Apostolic Constitutions", an expansion of the two preceding works; then the "Apostolic Church Ordinance", the "Definitio canonica SS. Apostolorum", the "Testament of the Lord" and the "Octateuch of Clement"; lastly the "Apostolic Canons". Of all this literature, only the "Apostolic Canons" werein cluded in the canonical collections of the Greek Church. The most important of these documents the "Apostolic Constitutions", was removed by the Second Canon of the Council in Trullo (692), as having been interpolated by the heretics. As to the eighty-five Apostolic Canons, accepted by the same council, they rank yet first in the above-mentioned "Apostolic" collection; the first fifty translated into Latin by Dionysius Exiguus (c. 500), were included in the Western collections and afterwards in the "Corpus Juris".
As the later law of the separated Eastern Churches did not influence the Western collections, we need not treat of it, but go on to consider only the Greek collection. It begins early in the fourth century: in the different provinces of Asia Minor, to the canons of local councils are added those of the ecumenical Council of Nicea (325), everywhere held in esteem. The Province of Pontus furnished the penitentiary decisions of Ancyra and Neocaesarea (314); Antioch; the canons of the famous Council "in encaeniis" (341), a genuine code of metropolitan organization; Paphlagonia, that of the Council of Gangra (343), a reaction against the first excesses of asceticism; Phrygia, the fifty-nine canons of Laodicea on different disciplinary and liturgical matters. This collection was so highly esteemed that at the Council of Chalcedon (451) the canons were read as one series. It was increased later by the addition of the canons of (Constantinople (381), with other canons attributed to it, those of Ephesus (431). Chalcedon (451), and the Apostolic canons. In 692 the Council in Trullo passed 102 disciplinary canons, the second of which enumerates the elements of the official collection: they are the texts we have just mentioned, together with the canons of Sardica, and of Carthage (419), according to Dionysius Exiguus, and numerous canonical letters of the great bishops, SS. Dionysius of Alexandria, Gregory Thaumaturgus, Basil, etc. If to these be added the canons of the two ecumenical councils of Nicea (787) and Constantinople (869) we have all the elements of the definitive collection in its final shape. A few "systematic" collections may be mentioned as pertaining to this period: one containing fifty titles by an unknown author about 535; another with twenty-five titles of the ecclesiastical laws of Justinian; a collection of fifty titles drawn up about 550, by John the Scholastic, a priest of Antioch. The compilations known as the "Nomocanons" are more important, because they bring together the civil laws and the ecclesiastical laws on the same subjects; the two principal are the Nomocanon, wrongly attributed to John the Scholastic, but which dates from the end of the sixth century, with fifty titles, and another, drawn up in the seventh century, and afterwards augmented by the Patriarch Photius in 883.
B. The Canonical Collections in the West to Pseudo-Isidore
In the West, canonical collections developed as in the East, but about two centuries later. At first appear collections of national or local laws, and the tendency towards centralization is partially effected in the ninth century. Towards the end of the fourth century there is yet in the West no canonical collection, not even a local one, those of the fifth century are essentially local, but all of them borrow from the Greek councils. The latter were known in the West by two Latin versions, one called the "Hispana" or "Isidorian", because it was inserted in the Spanish canonical collection, attributed to St. Isidore of Seville, the other called the "Itala" or "ancient" (Prisca), because Dionysius Exiguus, in the first half of the sixth century, found it in use at Rome, and being dissatisfied with its imperfections improved it. Almost all the Western collections, therefore, are based on the same texts as the Greek collection, hence the marked influence of that collection on Western canon law.
(1) At the end of the fifth century the Roman Church was completely organized and the popes had promulgated many legislative texts; but no collection of them had yet been made. The only extra-Roman canons recognized were the canons of Nicea and Sardica, the latter being joined to the former, and at times even cited as the canons of Nicea. The Latin version of the ancient Greek councils was known, but was not adopted as ecclesiastical law. Towards the year 500 Dionysius Exiguus compiled at Rome a double collection, one of the councils, the other of decretals, i.e. papal letters. The former, executed at the request of Stephen, Bishop of Salona, is a translation of the Greek councils, including Chalcedon, and begins with the fifty Apostolic canons; Dionysius adds to it only the Latin text of the canons of Sardica and of Carthage (419), in which the more ancient African councils are partially reproduced. The second is a collection of thirty-nine papal decretals, from Siricius (384) to Anastasius II (496-98). (See CANONS, COLLECTIONS OF ANCIENT.) Thus joined together these two collections became the canonical code of the Roman Church, not by official approbation, but by authorized practice. But while in the work of Dionysius the collection of conciliary canons remained unchanged, that of the decretals was successively increased; it continued to incorporate letters of the different popes till about the middle of the eighth century when Adrian I gave (774) the collection of Dionysius to the future Emperor Charlemagne as the canonical book of the Roman Church. This collection, often called the "Dionysio-Hadriana", was soon officially received in all Frankish territory, where it was cited as the "Liber Canonum", and was adopted for the whole empire of Charlemagne at the Diet of Aachen in 802. This was an important step towards the centralization and unification of the ecclesiastical law, especially as the Latin Catholic world hardly extended beyond the limits of the empire, Africa and the south of Spain having been lost to the Church through the victories of Islam.
(2) The canon law of the African Church was strongly centralized at Carthage; the documents naturally took the form of a collection, as it was customary to read and insert in the Acts of each council the decisions of the preceding councils. At the time of the invasion of the Vandals, the canonical code of the African Church comprised, after the canons of Nicea, those of the Council of Carthage under Bishop Gratus (about 348), under Genethlius (390), of twenty or twenty-two plenary councils under Aurelius (from 393 to 427), and the minor councils of Constantinople. Unfortunately these records have not come down to us in their entirety; we possess them in two forms: in the collection of Dionysius Exiguus, as the canons of a "Concilium Africanum"; in the Spanish collection, as those of eight councils (the fourth wrongly attributed, being a document from Aries, dating about the beginning of the sixth century). Through these two channels the African texts entered into Western canon law. It will suffice to mention the two "systematic" collections of Fulgentius Ferrandus and Cresconius (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-Isidore (about 850), is the last and most complete of the "chronological" collections, and therefore the one most used by the authors of the subsequent "systematic" collections; it is the "Hispana" or Spanish collection together with apocryphal decretals attributed to the popes of the first centuries up to the time of St. Damasus, when the authentic decretals begin. It exerted a very great influence (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 Liθge, 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.
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.
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 imperiling the rights and prerogatives of the legislator, but on the contrary strengthening them, indults impress more strongly on the law of the Church that humane, broad, merciful character, mindful of the welfare of souls, but also of human weakness, which likens it to the moral law and distinguishes it from civil legislation, which is much more external and inflexible.
It is impossible to draw up a detailed and systematic catalogue of all the works of special value in the study of canon law; the most distinguished canonists are the subject of special articles in this Encyclopedia. Those we have mentioned as commentators of the ancient canonical collections are now of interest only from an historical point of view; but the authors who have written since the Council of Trent are still read with profit; it is in their great works that we find our practical canon law. Among the authors who have written on special chapters of the "Corpus Juris", we must mention (the date refers to the first edition of the works):
Prospero Fagnani, the distinguished secretary of the Sacred Congregation of the Council, "Jus canonicum seu commentaria absolutissima in quinque libros Decretalium" (Rome, 1661),
Manuel Gonzαlez Tellez (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 ecclesiasticum 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 ecclesiastique" (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. Sagmόller (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 Abbe 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 Peρa y Fernendez, "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 vorzόglich 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).
From the Catholic Encyclopedia, copyright © 1913 by the Encyclopedia Press,
Inc. Electronic version copyright © 1996 by New Advent, Inc.
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