Canon law

“ It would require volumes to point out the cruelties, absurdities and inconsistencies of the Canon Law. It has been thrown away by the world. Every civilized nation has a code of its own, and the Canon Law is of interest only to the historian, the antiquarian, and the enemy of theological government. ”

“ The faith needs no definition except in rare intervals of periodical intellectual disorder. The discipline of the Church reigns by an universal common law which seldom needs a change, and by local laws which are provided on the spot. Nevertheless, the legislation of the Church, the Corpus Juris, or Canon Law, is a creation of wisdom and justice, to which no Statutes at large or Imperial pandects can bear comparison. Human intellect has reached its climax in jurisprudence, but the world-wide and secular legislation of the Church has a higher character. ”

“ 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 ”

“ If the canon law had restricted itself to really spiritual questions, matters of belief or of morals for which the national code had no provision, it is not likely that the kings would have been jealous of papal or archiepiscopal enactments, or would have stood on their rights when the exact line was occasionally overstepped. ”

“ Has our learned historian ever heard of such a thing as canon law, which secures to the inferior clergy a perfect immunity from arbitrary interference by their superiors, and which is in force all over the Christian world, except in new countries, where the church is yet too young to complete her organization? ”

“ Canon law is the whole body of Church decrees enacted by councils, bulls, decretals, etc., and is recognized as a system of laws primarily established by the Christian Church, and enforced by ecclesiastical authority. ”

“ It might be possible to deal adequately with the growth of that system of theology and yet never touch either the Roman or the civil law, even to leave out of our view the canon law itself. In Europe the State may rule the Church, or the Church may rule the State ”

“ We shall see such rights in matters ecclesiastical as in the Church of Rome had still survived to the laity, the priests, and the bishops, gradually suppressed in action till the way was prepared for their abolition in law. We shall see the subordination of the civil law to the canon law, and the subjection of the civil magistrate to the "ecclesiastical magistrate" insisted upon as the essence of social order. ”

“ Thus the divine law on which the Church professed to be founded was superseded by human law administered by those who profited by its abuse. As Cardinal d’Ailly tells us, the doctors of civil law regarded the imperial jurisprudence as more binding than the commands of God, while the professors of canon law taught that the papal decretals were of greater weight{645} than Scripture. Such a theocracy, practically deeming itself as superior to its God, when it had overcome all dissidence, could have but one result. ”

“ While, then, as I have pointed out, in the East the Canon Law was developed and digested side by side and in consonance with the civil law, in the West the state of things was wholly different, and while in secular matters the secular power was supposed to be supreme, there grew up a great body of Ecclesiastical Law, often at variance with the secular decrees upon the subject. To trace this, step by step, is no part of my duty in this excursus, and I shall only give so brief an outline that the reader may be able to understand the references in the notes which accompany the Canons in the text. ”

“ From all quarters the Catholic episcopate had submitted to the Vatican council petitions in this sense. “It is absolutely clear,” said some French bishops, “and has for a long time past been universally acknowledged and asserted, that a revision and reform of the canon law is necessary and most urgent. 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. ”

“ But the canon law was nationalized, not abolished; the assumption of most churchmen throughout the sixteenth century was that it was to be administered; and the canon law included the whole body of legislation as to equity in contracts which had been inherited from the Middle Ages. True, it was administered no longer by the clergy acting as the agents of Rome, but by civilians acting under the authority of the Crown. True, after the prohibition of the study of canon law—after the estimable Dr. ”

“ Any collection of such laws was styled Jus Canonicum, a name which, ultimately came to be confined to the collection KO.T e^o^v, the Corpus Juris Canonici. Canon law must not be confounded with ecclesi astical law (Jus Jlcclesiasticum) . The former has the church for its source ; the latter has the church for its subject. During the growth of the canon law the church extended her influence into all departments of life. Churchmen filled high offices of state and performed the duties of practical lawyers, while prelates often exercised civil jurisdiction over a considerable tract of country. ”

“ Having in 1531 compelled the clergy by the threat of præmunire to recognise him as supreme head 'quantum per Christi legem licet,' he induced the Commons in 1533 to present a petition or remonstrance against the whole theory and practice of the canon law. They attacked the power of the clergy to make canons in convocation, they protested against the exaction of fees and mortuaries, and deliberately impugned the honesty and purity of the episcopal courts in all their branches and with reference both to jurisdiction and to procedure. ”

“ 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 ”

“ Thus the disciplinary canons of the Council of Trent were not published—and were never accepted—in many Catholic states. Canon law has been the constant butt of civil legislation which has denied one by one the immunities of ecclesiastics and abolished the existence of ecclesiastical courts for the trial of clerical offenders. The abstract question of the popes' relation to civil rights and to temporal power cannot be viewed apart from the sober teaching of history. ”

“ The positive ecclesiastical law forbids not only those books which are individually condemned by a special decree of the Holy See and placed on the Index of Forbidden Books, or which are proscribed by particular Councils or Ordinaries for their subjects, but also the books which are forbidden by the common law itself, that is, in virtue of the rules contained in Canon 1399, which forbids in a general manner nearly all books which are bad and harmful in themselves ”

“ 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.) ”

“ Such alterations or modifications as have, practically, been made and accepted by the Church and Realm, have been effected by enactments external to the Prayer-book. Injunctions, canons, statutes, judicial decisions, have from time to time been allowed, nemine contradicente, to interpret or even contravene particular provisions of the Book. And, not least of all, custom itself has, in not a few particulars, acquired the force of law, and though not as yet engrossed in any legal document, has long been, in practice, part and parcel of our ecclesiastical polity. ”

“ First, it may mean that all existing authority is to be viewed as from God, whether it originated in conquest, prescription, or vote; or, secondly, it may mean that no civil authority is legitimate which has not divine sanction; and as among the baptized that sanction cannot be received except through the Pope, the consequence of such an interpretation would be obvious. The nineteenth Canon deliberately confounds natural and legal rights, as if the laws that create and protect legal rights were not themselves the outgrowth of natural rights. ”

“ In the Catholic Church the law-making power established by Christ will ever have the authority to make laws previous to, and independent of, the acceptance of the faithful. If bishops or other prelates should enact a law contrary to the canons, there is the remedy or an appeal to the highest authority of the Church for its annulment. ”

“ The other bishops, singly or in a body, have the same right by divine authority to excommunicate or otherwise exercise authority over the bishop of Rome, having obtained the consent of the "legislator," as the bishop of Rome has to excommunicate or control them.
19. No mortal has the authority to permit marriages that are prohibited by the divine law, especially by the New Testament. The right to permit marriages which are prohibited by human law belongs solely to the "legislator" or to the one who rules by its authority. ”

“ Hereupon ensueth that no power on earth can forbid or punish any action which we are bound unto by the law of God, which is the true pattern of all justice. So that the laws against recusants, against receiving of Priests, against confession, against Mass, or other rites of Catholic religion, are to be esteemed as no laws by such as steadfastly believe these to be necessary observances of the true religion. ”

“ So, in like manner, bishops and priests possess the power to pardon, but jurisdiction is needed to say on whom and where this power is to be exercised. Merely because a man is ordained validly, this does not give him the power to absolve; without jurisdiction, his absolution has no more value than would that of a layman.
It will be evident that as jurisdiction comes from God but through the Church, she can control those who are to exercise the power of pardoning sin. Hence, she insists that her priests shall carefully study the moral law, just as a lawyer does civil law. ”

“ All that is required in making such canons is, that the clergy confine themselves to Church affairs, and do not meddle with things which are settled by 135the common law. But though no canons are absolutely confirmed by act of parliament, yet those which are neither contrary to the laws of the land, nor to the queen’s prerogative, and which are confirmed by her, are made good, and allowed to be so, by the statute 25 Henry VIII. And as to those canons which tend to promote the honour of God and service of religion, they must necessarily bind our consciences. ”

“ It may be supposed, that, as a matter of conscience and subjection to ecclesiastical superiors, a Catholic population would in general conform to the usages of the Church. But such conformity would be no evidence of the change of the law by the civil power. ”

“ All that we assert is, that where previous canons be not so, (and we fully believe those for which we contend do not come into collision with either law or prerogative at all,) and where the Church has not herself directly annulled them, there these same doctrines remain, as they have ever been received by the Church Catholic, and by the Church of England as a branch thereof;—as indeed she has, and had received them from primitive times and sources;—as she had accepted, guarded, and enforced them prior to the year 1540. ”

“ Because we have heard that ecclesiastics and others belonging to the Catholic religion are compelled by men of different religions to celebrate the sacrifices of the lustrum, we, by this decree, do ordain that if any one believes that those who observe the most sacred law ought to be compelled to take part in the rites of a strange superstition, let him, if his condition permits, be beaten with staves, but if his rank exempts him from such rigor, let him endure the condemnation of a very heavy fine, which shall fall to the State. ”

“ These can only be avoided by adopting and following out pure and perfect Catholic principles In all things whatsoever, and making the Catholic rule of submission to lawful authority, and conformity to the Catholic tradition, the Catholic spirit, and the common-sense which pervades the whole body of sound, loyal, hearty Catholics everywhere, without any exception or reservation, the standard of judgment and the law of action. ”