Front Page Titles (by Subject) CANON LAW 1 - The Collected Papers of Frederic William Maitland, vol. 3
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CANON LAW 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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By the Canon Law we here mean the mass of legal rules administered by the ecclesiastical Courts during the Middle Ages. We must not endeavour to describe, even in the briefest manner, the prolonged process of development which issued in the existence of ecclesiastical Courts wielding compulsory powers, and claiming to be independent of the State. Nor may we dwell upon what may be called the embryonic stage in the growth of the rules which these Courts enforced, a stage which was already beginning in the first days of Christianity. It must suffice that no sooner had Christianity become a tolerated religion than the bishops were suffered, or even required, by the Roman State to hear and decide disputes touching the internal affairs of the Churches, and that the great ecumenical councils which were held at the Emperor’s command were settling the foundations not only of dogma but also of discipline. Books containing the rules or “canons” that were ordained by these councils became current among the Churches of the West. To these ecumenical canons, which might claim the authority of all the Churches or of an universal Church, transcribers added the canons of other famous but not ecumenical councils; and some of these were deemed to be hardly less authoritative. Also the pre-eminence of that ecclesia which had its home in the capital city of the world was already making itself felt. The Bishop of Rome was being consulted by other bishops, and his replies to their questions were preserved and reverenced. The germs of an elaborate system of appeal were already visible. In the Western world—the Orient we must leave out of sight—the pope was slowly acquiring a power of declaring law which would in course of time become a power of making law.
A distinct stage is marked by the Collectio Dionysiana. It was compiled about the year 500 at Rome by Dionysius Exiguus (so he called himself), a monk of Scythian birth. He collected and translated the canons of famous Eastern councils, and to these he appended some letters issued by the popes from Siricius onwards (384-498). Already conciliar canons and “decretal” letters of popes were being set side by side. His work became current in the West. A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774. But other collections were current. Canons of very various origins, Oriental, African, Spanish, Gallican, were often transcribed into one book. The bishops of one province would borrow the collection which had been made in another province, and still enjoyed a considerable liberty of choosing the rules that should be accepted in their dioceses. Another celebrated collection of canons and decretals seems to have taken shape in the Spain of the seventh century. It has been known as the Hispana or Isidoriana, for without sufficient warrant it has been ascribed to St Isidore of Seville.
Then about the year 850 this Spanish collection, which had found acceptance in Frankland, became the foundation for a superstructure of forgery. Someone who called himself Isidorus Mercator, and who seems to have tried to personate St Isidore, foisted into the old book a large number of decretals which purported to come from the earliest popes, the immediate successors of St Peter. That he lived in Frankland seems plain, though attempts to fix his home more accurately have not as yet been perfectly successful. His objects we are beginning to understand; they can only be explained out of the difficult history of the Frankish Church in its darkest age. There seems to be no reason for supposing that he had specially at heart the interests of the papacy; but those interests he indubitably furthered, not only by his endeavours to weaken the power of the metropolitans over their comprovincial bishops, but also (and this is of the utmost importance) by his propagation of the belief that ever since the apostolic age the Bishops of Rome had been declaring law for the universal Church in decretal letters. By this belief the Middle Ages were ruled. Some of the forger’s contemporaries seem to have had their doubts; but very soon the pseudo-Isidorian decretals were generally accepted in Rome and elsewhere.
The canonical materials had thus received a large accession. New and ampler collections were made, as bishop borrowed from bishop and transcriber from transcriber. Moreover, these books were beginning to take a more juristic form. A merely chronological arrangement of materials was abandoned in favour of a logical arrangement. The collector set himself to make what we might call a digest or manual of ecclesiastical law. The sphere of ecclesiastical law was now being rapidly widened. The Frankish empire was going to pieces. The State, if indeed we may talk of a State, was at its weakest, and the ecclesiastical tribunals were ever making new claims to jurisdiction over all causes in which the interests of the Churches or of the clergy were even remotely concerned. Then in the eleventh century the papacy emerged from an eclipse. It appeared as a reforming power making for righteousness. At the same time, in the schools of Italy, first at Pavia and then at Bologna, men were beginning ardently to study Justinian’s law-books. Here were models of jurisprudence which the collectors of ecclesiastical rules would strive to imitate. Here also was a formidable rival, which threatened their theory of Church and State, for the emperor of Justinian’s books is very truly supreme over all causes, ecclesiastical as well as civil, and will legislate even about dogma if he pleases. The jurisprudence of these renovated leges was to be met by an equally professional jurisprudence of canones. The study of ecclesiastical law could no longer be regarded as a department of theology; it was a jurisprudence to be taught in schools, to be debated in Courts, to be argued over and developed in a lawyer-like way by professional experts, by canonistae or decretistae. Many treatises, which in our own day are slowly coming to light, endeavoured to meet the new demand for scientific manuals. One treatise was so successful as to obliterate all others, and to usher in what we may call the classical age of the canon law.
About the year 1139, Gratian, a monk at Bologna, compiled a book which he called Concordia discordantium canonum, but which was soon universally known as the Decretum Gratiani. He wove together a large number of the authoritative texts (auctoritates), including many of pseudo-Isidorian origin, interspersing them with observations of his own (dicta Gratiani), which endeavoured to explain and harmonise them. This book, which was produced at the headquarters of the new secular jurisprudence, quickly supplanted all the older collections. The Church had now a text-book which could be compared with the civilian’s Digest; it became the base of a large mass of gloss and comment. Among those who made abridgments of it was Roland Bandinelli, who became pope as Alexander III, and whose long pontificate (1159-81) is marked by a large number of important decretals. These newer decretals were collected by divers canonists; five of their compilations (Quinque compilationes antiquae) were especially famous; the third bore the sanction of Innocent III, and the fifth was issued by Honorius III. Then in 1230 Gregory IX charged his penitentiary, Raymond of Peñaforte, with the task of codifying all such decretals as had been issued since the date of the Decretum and were to be in force for the future. The outcome was the Decretales Gregorii IX. This code was published in 1234. The topics dealt with by its five books are indicated by the mnemonic line Iudex, iudicium, clerus, sponsalia, crimen. It was intended by its author to be a statute-book for the universal Church. It is not a “code” in our modern sense of that term—that is to say, it does not aim at being an exhaustive statement of the whole law—but it was to be, like the code of Justinian, a complete collection of all the modern statutes. As such it was received by the canonists, and it was soon surrounded by a large commentatory apparatus. Innocent IV (1243-54) was among the commentators. In 1298 Boniface VIII published a new volume, compiled from the decretals issued since 1234. This, when added to Gregory’s five libri, became the Liber sextus decretalium, or, more briefly, the Sext. It was meant to be, and was received as a statute-book, and as an exclusive statute-book for the period between 1234 and 1298; in other words, decretals that were not taken into it were abrogated. In 1317, John XXII published a seventh volume, consisting chiefly of decretals issued by his predecessor, Clement V; this also had statutory authority; it is known as the Clementines. The great legislative period was now at an end. John XXII and his successors issued some decretals of considerable importance, but no official collection was made of them. The most generally valuable of them were read and glossed in the schools; as they were not contained in the old statute-books, they were known as “extravagants.” In 1500 two collections of them were added by Jean Chapuis to a Parisian edition of the older books. The one contained Extravagants of John XXII (1316-34), the other contained the best known Extravagants of other popes (Extravagantes communes), ranging from Martin IV to Sixtus IV (1281-1484).
For some time past the title Corpus Iuris Canonici had been given to the sum of the received books. A complete Corpus consists of six members—(1) the Decretum of Gratian, (2) the Decretals of Gregory IX, (3) the Sext, (4) the Clementines, (5) the Extravagants of John XXII, (6) the Common Extravagants. These six are not of equal force. The Decretum never received any formal sanction, and, according to the doctrine that prevails among the Roman Catholic canonists of modern times, no text (auctoritas) is any the better for being contained in that volume. Such a canonist would be quite free to say that a particular text was forged and of little, if any, value. As to the dicta Gratiani, they were never regarded as more than the opinions of a venerated master. However, an official edition of the Decretum was published by Pius V in 1582, and Catholics were prohibited from making changes in the text. On the other hand, the Decretals of Gregory IX, the Sext, and the Clementines are authoritative statute-books. Each of them is to be considered as a single whole published by a legislator at one moment of time, so that there can be no talk of one passage being prior to, and therefore abrogated by another and a later passage. Further, the book as a whole comes from a legislator; therefore no sentence in it can be invalidated by any discussion of its history previous to its insertion in that book, for the pope was free to alter the decretals that he was collecting and codifying. On the other hand, a passage in the Sext can overrule or abrogate a passage in the Decretals of Gregory IX, and a passage in the Sext may be overruled by a passage in the Clementines; the one will be lex prior, the other lex posterior. Lastly, the two books of Extravagants are unofficial; no decretal is the better for being in them; no decretal is the worse for not being in them. However, they have been considered to contain the most generally useful papal edicts of the period that they cover, a period of degeneration in the history of the papacy. Various portions of the Corpus were printed so soon as the day for print had come. The whole appeared in the Parisian edition of 1500. An official edition, the work of a congregation of cardinals, the so-called Correctores Romani, was issued in 1582. The Corpus was edited in modern times by Richter (1839) and Friedberg (1879-81); both editors were German Protestants; the existence of the official edition has hampered the Catholics. Friedberg’s edition should be in the hands of every student of the canon law; but for historical purposes it is often necessary to use an old edition which gives the gloss as well as the text, for in the later Middle Ages the gloss was venerated. The classical gloss (Glossa ordinaria) on the Decretum comes from Joannes Teutonicus (before 1215) and Bartholomew of Brescia (circa, 1236), that on the Decretales Gregorii from Bernard of Parma (circa, 1266).
An immense mass of legal literature, academic and practical, grew up around the Corpus Juris. The greater part of it comes from men who, if not Italians by birth, had studied in the Italian Universities; but France also produced many canonists of eminence. There were faculties of canon law in both the English universities. The doctors in canon law (doctores in decretis, in iure canonico) took precedence of the civilians (doctores in legibus, in iure civili). The course of lectures and exercises required of a candidate for a degree was long, and a degree was necessary to anyone who wished for practice in the ecclesiastical Courts. But the books read in England were for the most part foreign, and England produced no canonist of first-rate rank. In the twelfth century we may claim Ricardus Anglicus, who, however, has been too hastily identified with a bishop of Salisbury (Dict. Nat. Biog. XLVI. 108); in the thirteenth, William of Drogheda, a portion of whose work still exists in manuscript; in the fourteenth, John de Athona; and in the fifteenth, William Lindwood. Of the two last we shall speak below.
By members of the Roman Catholic Church of the present day the mediaeval canon law is still regarded as law in so far as it has not been changed by any competent ecclesiastical authority; but very considerable changes were introduced by the Council of Trent, and during the last three centuries the popes have legislated from time to time about many matters. The three statute-books issued by Gregory IX, Boniface VIII, and John XXII, are still statute-books, but they are old statute-books, and the law that is contained in them has been definitely and expressly altered at numerous points. The decisions and practice of the various tribunals and “congregations” at Rome would also have to be considered by anyone desirous of knowing the existing law about any particular matter. How far this system of law can be actively enforced in any given country is a different question, which in some cases is answered, at least in part, by a “concordat” between the See of Rome and the civil power. By English Courts the canon law of the Roman Catholics can only be regarded as a system of rules voluntarily accepted by the members, or at all events by the clergy, of a “non-conforming” religious body. The existence of a particular rule would therefore be, not a matter of law, but a matter of fact to be proved by the evidence of experts. Much information touching this point will be found in O’Keeffe v. Cullen, specially reported by H.C. Kirkpatrick (Longmans, 1874).
According to the theory propagated by the canonists of the classical age there was a great mass of law which was common to the universal Church (ius commune). Some room was left for local variations. In the first place, a metropolitan might make statutes for his province, and a bishop might make statutes for diocese, and these would be valid if they did not contradict law which proceeded from a higher source, in particular from the pope, and were in harmony with the first principles of ecclesiastical jurisprudence. In the second place, some respect was due to the customs of dioceses and provinces, provided that such customs were “prescript and laudable.” Further, it was admitted that in certain cases a rule of statutory origin, even though it came from the apostolic see, might become obsolete, owing to non-observance. However, the space thus allowed for divergence from the ius commune was by no means very wide.
The two best known works of English mediaeval canonists deal directly with local English law. One John of Acton, Ayton, or Athon, a canon of Lincoln, published (1333-48) a glossed version of the constitutions given to the English Church by the papal legates, Otto and Ottobon. In 1430 William Lindwood, being then the principal official of the Archbishop of Canterbury, published a glossed version of the constitutions given to the southern province by its metropolitans from the time of Stephen Langton downwards. The object of both books (a good edition of both in one volume was issued at Oxford in 1679) was to harmonise these local statutes with the general system in the ius commune. Uniformity in the law was secured by the appellate jurisdiction of Rome. Appeals were permissible at almost every stage of every suit, though the inferior judge was not always bound to “defer to” (i.e. to stay proceedings during) an appeal which he considered frivolous. But further, the doctrine gained ground that the pope was the judge ordinary of every man, and therefore that a plaintiff, neglecting all lower Courts, might, if he pleased, go straight to the supreme tribunal. This procedure was very commonly adopted by English litigants in the twelfth and thirteenth centuries. The first step which the plaintiff took was to “impetrate” a writ from Rome, which usually committed the cause to two or three English prelates, who would hear it in England, and in so doing would be acting as the pope’s delegates (iudices delegati). The writ sometimes gave them instructions as to the rules of law that they were to apply, and sometimes instructed to them no larger duty than that of deciding questions of fact.
The claims of the Church to jurisdiction when they had reached their full latitude were exceedingly wide. Any cause which, even remotely, concerned the doctrines, sacraments, or discipline of the Church was claimed as the exclusive property of the ecclesiastical tribunals ratione materiae. Thus, for example, the whole province of matrimonial law was annexed. Moreover, it was asserted that no criminal or “personal” action could be brought against a clerk before a secular forum; such an action would belong to the Court Christian ratione personae. it is improbable that these claims were ever admitted in all their fulness by any secular power, unless this happened in the States of the Church, where the pope was both spiritual and temporal lord. Certainly both in France and England the State’s Courts actively and successfully resisted what were regarded as encroachments. In particular, from Henry II’s days onwards, the temporal power in England, by means of “writs of prohibition,” kept to itself all litigation about advowsons; also the “benefit of clergy” that was conceded in cases of felony was but a small part of that immunity of the ordained from secular justice (privilegium fori), which was comprised in the Church’s demand. It is unquestionably true therefore that some parts of the canon law were not enforced in this country. We must not, however, infer from this that the ecclesiastical Courts did not consider themselves bound to administer the law that they found in the papal statute-books. It seems to be supposed by some eminent writers that in the later Middle Ages the rulers of the Church of England exercised a right of rejecting or declining to follow the decretals of Rome, even in matters which the State left to cognisance of the spiritual tribunals; but this has hardly been proved.
In the nineteenth century the history of the canon law became the subject of a large literature, German, French, and Italian. The student should be warned that any book on this topic becomes antiquated very soon, owing to the rapid output of previously unpublished documents. Here, however, it may be sufficient to refer him to A. Tardif, Histoire des sources du droit canonique, Paris, 1887.
Renton’s Encyclopedia of the Laws of England, 1897.