Auguste Boudinhon and Walter G. F. Phillimore

“ Considered from the point of view of official authority, the Decretum occupies an intermediate position very difficult to define. It is not and cannot be a really official code, in which every text has the force of a law. It has never been recognized as such, and the pretended endorsement of it Authority. by Pope Eugenius III. is entirely apocryphal. Moreover, it could not have become an official code; it would be impossible to transform into so many laws either the discordant texts which Gratian endeavoured to reconcile or his own Dicta; a treatise on canon Law is not a code. ”

“ Thus the only pseudo-epigraphic document preserved in the law of the Greek Church is the small collection of the eighty-five so-called “Apostolic Canons” (q.v.) . The compilers, in their several collections, gathered only occasional decisions, the outcome of no pre-determined plan, given by councils or by certain great bishops.
These compilations began in the East. It appears that in several different districts canons made by the local assemblies [1] were added to those of the council of Nicaea which were everywhere accepted and observed. The first example seems Greek collection. ”

“ Similarly, it has become customary to give the name of canons to the texts inserted in certain canonical compilations such as the Decretum of Gratian, while the name of chapters is given to the analogous quotations from the Books of the Decretals. It is merely a question of words and of usage. As to the expression jus canonicum, it implies the systematic codification of ecclesiastical legislation, and had no existence previous to the labours which resulted in the Corpus juris canonici.
Canon law is divided into public law and private law ”

“ It would, however, be impossible to mention any compilations containing only local law. Whether in the case of national or provincial councils, or of diocesan synods, the chief object of the decrees is to reinforce, define or apply the law; the measures which constitute a derogation have only a small place in them. It is, then, only in a limited sense that we can see a local canon law in the councils of the various regional churches. ”

“ From this time on, canonists began Systematic collections. to exercise their individual judgment in arranging their collections according to some systematic order, grouping their materials under divisions more or less happy, according to the object they had in view. This was the beginning of a codification of a common canon law, in which the sources drawn upon lose, as it were, their local character. This is made even more noticeable by the fact that, in a good number of the works extant, the author is not content merely to set forth and classify the texts ”

“ The usages of the church were similar to those in France, and had not the insular character of those in England and Ireland. The canon law regulating marriage, legitimacy and succession was taken over by the Scottish secular courts (see Ecclesiastical Jurisdiction) and survived as part of the common law of the land almost unimpaired. Thus, the courts recognize marriages by verba de praesenti or by verba de futuro cum copula—in this last matter following a decree of Gregory IX.—and also legitimation per subsequens matrimonium. ”

“ There is a further distinction between the written law, jus scriptum, laws made by the councils or popes, which are to be found in the collections, and the unwritten law, jus non scriptum, a body of practical rules arising rather from natural equity and from custom than from formal laws; with this is connected the customary law. In the Church, as in other societies, it has happened that the unwritten customary law has undergone a gradual diminution in importance, as a consequence of centralization and the accumulation of written laws ”

“ The Roman Church, even more than the rest, governed itself according to its own customs and traditions. Up to the end of the 5th century the only canonical document of non-Roman origin which it officially recognized was the group of canons of Nicaea, under which name were also Rome.included those of Sardica. A Latin version of the other Greek councils (the one referred to by Dionysius as prisca) was known, but no canonical use was made of it. The local law was founded on usage and on the papal letters called decretals. ”

“ The Decretum of Gratian and the Corpus Juris Canonici.—The work of Gratian, though prepared and made possible by those of his predecessors, greatly surpasses them in scientific value and in magnitude. It is certainly the work which had the greatest influence on the The Decretum
of Gratian. formation of canon law; it soon became the sole manual, both for teaching and for practice, and even after the publication of the Decretals was the chief authority in the universities. The work is not without its faults; Gratian is lacking in historical and critical faculty; his theories are often hesitating ”

“ It is then to the episcopate, assembled in ecumenical council, and to its chief, that the function of legislating for the whole Church belongs; the inferior authorities, local councils or isolated bishops and prelates, can only make special laws or statutes, valid only for that part of the Church under their jurisdiction. Most of the canons, however, which constitute the ancient law, and notably those which appear in the Decretum of Gratian, emanate from local councils, or even from individual bishops ”

“ As matters now stand, in consequence of the many and grave changes in human affairs and in society, many laws have become useless, others difficult or impossible to obey. With regard to a great number of canons, it is a matter of dispute whether they are still in force or are abrogated. ”

“ Thus we find Spanish canon law embodied in a collection which, though perhaps not official, was circulated and received everywhere; In Spain. this was the Spanish collection, the Hispana. [8] The collection is well put together and includes almost all the important canonical documents. In the first part are contained the councils, arranged according to the regions in which they were held: Greek councils, following a translation of Italian origin, but known by the name of Hispana; African councils, Gallican councils and Spanish councils. ”

“ The laws are formulated in general terms, and the decisions in particular cases relegated to the sphere of jurisprudence; and the canonists have definitely lost the Final state
of the law. function which fell to them in the 12th and 13th centuries: they receive the law on authority and no longer have to deduce it from the texts. The legislative power is powerfully centralized in the hands of the pope: since the reforming decrees of the council of Trent it is the pontifical constitutions alone which have made the common law ”

“ The African collection has not come to us directly: we have two incomplete and confused arrangements of it, in two collections, that of the Hispana and that of Dionysius Exiguus. Dionysius knows only the council of 419, in connexion with the affair of Apiarius; but in this single text are reproduced, more or less fully, almost all the synods of the collection; this was the celebrated Concilium Africanum, so often quoted in the middle ages, which was also recognized by the Greeks. The Spanish collection divides the African canons among seven councils of Carthage and one of Mileve ”

“ Nowadays, and for some time past, the only part of the Decretum considered is the collection of texts; but it is actually a treatise, in which the author endeavours to piece together a coherent juridical system from the vast body of texts, of widely differing periods and origin, which are furnished by the collections. These texts Dicta Gratiani. he inserts bodily in the course of his dissertation; where they do not agree, he divides them into opposite groups and endeavours to reconcile them ”

“ The House of Bishops was given a right to propose measures to the “House of Deputies,” and to negative acts of the House of Deputies, provided they complied with certain forms. Similar “constitutions” providing for representation of the laity have been adopted by the different dioceses (Hoffman, op. cit. p. 184 et seq.) . Deacons are also admitted to a deciding voice in every diocese but New Jersey, where they may speak but not vote. A great body of legislation has been put forth by these bodies during the past century. ”

“ The history of the canonical collections forming the Corpus juris would not be complete without an account of the labours of which they were the object. We know that the universities of the middle ages contained a Faculty of Decrees, with or without a Faculty of Laws, i.e. The study of
canon law. civil law. ”

“ In the 12th century, the canonical works of Ivo of Chartres [22] are of great importance. His Panormia, compiled about 1095 or 1096, is a handy and well-arranged collection in 8 books; as to the Decretum, a weighty compilation in 17 books, Ivo of Chartres. there seems sufficient proof that it is a collection of material made by Ivo in view of his Panormia. To the 12th century belong the collection in the MS. of Saragossa (Caesaraugustana) to which attention was drawn by Antonio Agustin; that of Cardinal Gregory, called by him the Polycarpus, in 8 books (about 1115) ”

“ Soon afterwards, Paphlagonia contributed twenty canons passed at the council of Gangra (held, according to the Synodicon orientale, in 343) , [2] and Phrygia fifty-nine canons of the assembly of Laodicea (345–381?) , or rather of the compilation known as the work of this council. [3] The collection was so well and so widely known that all these canons were numbered in sequence, and thus at the council of Chalcedon (451) several of the canons of Antioch were read out under the number assigned to them in the collection of the whole. ”

“ The other papal letters only rarely show signs of alteration or falsification, and the text of the councils is entirely respected. [14] From the same source and at the same date came two other forged documents—firstly, a collection of Capitularies, in three books, ascribed to a certain Benedict (Benedictus Levita) , [15] a deacon of the church of Mainz; this collection, in which authentic documents find very little place, stands with regard to civil legislation exactly in the position of the False Decretals with regard to canon law. ”

“ He was to hold office only during pleasure of the other bishops. Bishops were to be elected by the presbyters of the district. Such election was subject to the confirmation of the majority of the bishops. In 1811, a “Code of Canons” was enacted by a “General Ecclesiastical Synod,” consisting of the bishops, the deans (viz. presbyters appointed by the bishops in each diocese to defend the interests of the presbyters and now for the first time given “decisive” voice in synods) and certain clerical representatives from the “districts” or dioceses. ”

“ Canon 18 of the Code of 1870 recognizes the offices of catechist, reader and sub-deacon (Wirgman, The English Church and People in South Africa, p. 223 et seq.) .
In the West Indies, Canada, Australia and New Zealand, provincial and diocesan synods or conventions have been formed on one or other of the types above mentioned and have enacted canons. (W. G. F. P.)
↑ The councils which we are about to mention, up to the 9th century, have been published several times, notably in the great collections of Hardouin, Mansi, &c. ”

“ As was natural this collection received successive additions as further decretals appeared. The collection formed by combining these two parts remained the only official code of the Roman Church until the labours undertaken in consequence of the reforming movement in the 11th century. In 774 Pope Adrian I. gave the twofold collection of the Scythian monk to the future emperor Charlemagne as the canonical book of the Roman Church; this is what is called the Dionysio-Hadriana. This was an important stage in the history of the centralization Dionysio-Hadriana. of canon law ”

“ The most important are collected together and digested (so far as regards England) in Lyndwood’s Provinciale, a work which remains of great authority in English courts. These constitutions are again divided into two classes: (a) provincial constitutions promulgated by provincial synods, usually in the name of the presiding archbishop or bishop; and (b) decrees of papal legates, Otho in 1236 and Othobon (Ottobuono de’ Fieschi, afterwards Pope Adrian V.) in 1269. ”

“ His immense Contents. work consists of three parts (partes) . The first, treating of the sources of canon law and of ecclesiastical persons and offices, is divided according to the method of Paucapalea, Gratian’s pupil, into 101 distinctiones, which are subdivided into canones. The second part consists of 36 causae (cases proposed for solution) , subdivided into quaestiones (the several questions raised by the case) , under each of which are arranged the various canones (canons, decretals, &c.) ”