Catholic Encyclopedia (1913)/Corpus Juris Canonici
The term corpus here denotes a collection of documents; corpus juris, a collection of laws, especially if they are placed in systematic order. It may signify also an official and complete collection of a legislation made by the legislative power, comprising all the laws which are in force in a country or society. The term, although it never received legal sanction in either Roman or canon law, being merely the phraseology of the learned, is used in the above sense when the "Corpus Juris Civilis" of the Roman Christian emperors is meant. The expression corpus juris may also mean, not the collection of laws itself, but the legislation of a society considered as a whole. Hence Benedict XIV could rightly say that the collection of his Bulls formed part of the corpus juris (Jam fere sextus, 1746). We cannot better explain the signification of the term corpus juris canonici than by showing the successive meanings which were assigned to it in the past and which it usually bears at the present day. Under the name of "corpus canonum" were designated the collection of Dionysius Exiguus and the "Collectio Anselmo dedicata" (see below). The "Decree" of Gratian is already called "Corpus Juris Canonici" by a glossator of the twelfth century, and Innocent IV calls by this name the "Decretals" of Gregory IX (Ad expediendos, 9 Sept., 1253). Since the second half of the thirteenth century, Corpus Juris Canonici in contradistinction to Corpus Juris Civilis, or Roman law, generally denoted the following collections:
- (1) the "Decretals" of Gregory IX;
- (2) those of Boniface VIII (Sixth Book of the Decretals);
- (3) those of Clement V (Clementinæ) i. e. the collections which at that time, with the "Decree" of Gratian, were taught and explained at the universities.
At the present day, under the above title are commonly understood these three collections with the addition of the "Decree" of Gratian, the "Extravagantes" of John XXII, and the "Extravagantes Communes".
Thus understood, the term dates back to the sixteenth century and was officially sanctioned by Gregory XIII (Cum pro munere, 1 July, 1580). The earliest editions of these texts printed under the now usual title of "Corpus Juris Canonici", date from the end of the sixteenth century (Frankfort, 8vo, 1586; Paris, fol., 1587). In the strict sense of the word the Church does not possess a corpus juris clausum, i. e. a collection of laws to which new ones cannot be added. The Council of Basle (Sess. XXIII, ch. vi) and the decree of the Congregation "Super statu regularium" (25 Jan., 1848) do not speak of a corpus clausum; the first refers to reservationibus in corpore juris expresse clausis, that is, reservations of ecclesiastical benefices contained in the "Corpus Juris", especially in the "Liber Sextus" of Boniface VIII, to the exclusion of those held in the "Extravagantes" described below, and at that time not comprised in the "Corpus Juris Canonici"; the second speaks of cuilibet privilegio, licet in corpore juris clauso et confirmato, i. e. of privileges not only granted by the Holy See but also inserted in the official collections of canon law.
II. PRINCIPAL CANONICAL COLLECTIONS
We shall briefly sketch the history of the earliest collections of canons, and shall add a brief description of the "Corpus Juris Canonici" as it is now understood. The history of canon law is generally divided into three periods. The first extends to the "Decree" of Gratian, i. e. to the middle of the twelfth century (jus antiquum); the second reaches to the Council of Trent (jus novum); the third includes the latest enactments since the Council of Trent inclusively (jus novissimum).
(1) Jus antiquum
The most ancient collections of canonical legislation are certain very early pseudo-Apostolic documents: for instance, the Didache ton dodeka apostolon or "Teaching of the Twelve Apostles", which dates from the end of the first or the beginning of the second century; the Apostolic Church Ordinance; the "Didascalia", or "Teaching of the Apostles" (third century); the Apostolic Canons (see CANONS, APOSTOLIC); and Apostolic Constitutions. These collections have never had any official value, no more than any other collection of this first period. It was in the East, after the Edict of Milan (313), that arose the first systematic collections. We cannot so designate the chronological collections of the canons of the councils of the fourth and fifth centuries (314-451); the oldest systematic collection, made by an unknown author in 535, has not come down. The most important collections of this epoch are the Synagoge kanonon, or the collection of John the Scholastic (Joannes Scholasticus), compiled at Antioch about 550, and the Nomocanons, or compilations of civil laws affecting religious matters (nomos) and ecclesiastical laws (kanon). One such mixed collection is dated in the sixth century and has been erroneously attributed to John the Scholastic; another of the seventh century was rewritten and much enlarged by the schismatical patriarch Photius (883). In the Western Church three collections of canons have exercised an influence far beyond the limits of the country in which they were composed; they are the "Collectio Dionysiana", the lengthy Irish collection (Hibernensis), and the "Decretals" of Pseudo-Isidore. The "Dionysiana", also called "Corpus canonum", "Corpus codicis canonum", was the work of Dionysius Exiguus who died between the years 540 and 555; it contains his Latin translation of the canons of the councils of the Eastern Church and a collection of (38) papal letters (Epistolæ decretales) dating from the reign of Pope Siricius (384-398) to that of Anastasius II (died 498). The authority of this Italian collection, at once quite considerable at Rome and in Italy, was greatly increased after Adrian I had sent to Charlemagne (774) a modified and enlarged copy of the collection, thenceforth known as the "Collectio Dionysio-Hadriana", and the Synod of Aachen (802) accepted it as the "Codex Canonum" of the immense Empire of the Franks.
The lengthy Irish collection of canons, compiled in the eighth century, influenced both Gaul and Italy. The latter country possessed, moreover, two fifth-century Latin translations of the Greek synods (the collection erroneously called "Isidoriana" or "Hispana", and the "Collectio Prisca"); also an important collection of pontifical and imperial documents (the "Avellana", compiled in the pontificate of Gregory the Great, 590-604). Africa possessed a collection of 105, or more exactly 94, canons, compiled about 419; also the "Breviatio Canonum", or digest of the canons of the councils by Fulgentius Ferrandus (died c. 546), and the "Concordia Canonum" of Cresconius, an adaptation of the "Dionysiana" (about 690). In Gaul are found, at the beginning of the sixth century, the "Statuta Ecclesiæ antiqua", erroneously attributed to Africa, and, among many other collections the "Quesnelliana" (end of the fifth or beginning of the sixth century) and the "Dacheriana" (about 800), both so called from the names of their editors, Paschase Quesnel and d'Achéry. Spain possessed the "Capitula Martini", compiled about 572 by Martin, Bishop of Braga, and a "Codex canonum" or "Collectio Hispana" dating from about 633, attributed in the ninth century to St. Isidore of Seville. In the ninth century arose several apocryphal collections, viz, those of Benedictus Levita, of Isidorus Mercator (also Peccator or Mercatus), and the "Capitula Angilramni". An examination of the controversies which these three collections give rise to will be found elsewhere (see FALSE DECRETALS). The Pseudo-Isidorian collection, the authenticity of which was for a long time admitted, has exercised considerable influence on ecclesiastical discipline, without however modifying it in its essential principles. Among the numerous collections of a later date, we may mention the "Collectio Anselmo dedicata", compiled in Italy at the end of the ninth century, the "Libellus de ecclesiasticis disciplinis" of Regino of Prum (died 915); the "Collectarium canonum" of Burchard of Worms (died 1025); the collection of the younger St. Anselm of Lucca, compiled towards the end of the eleventh century; the "Collectio trium partium", the "Decretum" and the "Panormia" of Yves of Chartres (died 1115 or 1117); the "Liber de misericordiâ et justitiâ" of Algerus of Liège, who died in 1132 - all collections which Gratian made use of in the compilation of his "Decretum". The aforesaid collections and others are described more fully in the article CANONS, COLLECTIONS OF ANCIENT.
(2) Jus novum and Corpus juris canonici
It was about 1150 that the Camaldolese monk, Gratian, professor of theology at the University of Bologna, to obviate the difficulties which beset the study of practical, external theology (theologia practica externa), i. e. canon law, composed the work entitled by himself "Concordia discordantium canonum", but called by others "Nova collectio", "Decreta", "Corpus juris canonici", also "Decretum Gratiani", the latter being now the commonly accepted name. In spite of its great reputation the "Decretum" has never been recognized by the Church as an official collection. It is divided into three parts (ministeria, negotia, sacramenta). The first part is divided into 101 distinctions (distinctiones), the first 20 of which form an introduction to the general principles of canon Law (tractatus decretalium); the remainder constitutes a tractatus ordinandorum, relative to ecclesiastical persons and function. The second part contains 36 causes (causœ), divided into questions (quœstiones), and treat of ecclesiastical administration and marriage; the third question of the 33rd causa treats of the Sacrament of Penance and is divided into 7 distinctions. The third part, entitled "De consecratione", treats of the sacraments and other sacred things and contains 5 distinctions. Each distinction or question contains dicta Gratiani, or maxims of Gratian, and canones. Gratian himself raises questions and brings forward difficulties, which he answers by quoting auctoritates, i. e. canons of councils, decretals of the popes, texts of the Scripture or of the Fathers. These are the canones; the entire remaining portion, even the summaries of the canons and the chronological indications, are called the maxims or dicta Gratiani. It is to be noted that many auctoritates have been inserted in the "Decretum" by authors of a later date. These are the Paleœ, so called from Paucapalea, the name of the principal commentator on the "Decretum". The Roman revisers of the sixteenth century (1566-82) corrected the text of the "Decree" and added many critical notes designated by the words Correctores Romani.
the "Decretum" is quoted by indicating the number of the canon and that of the distinction or of the cause and the question. To differentiate the distinctions of the first part from those of the third, question of the 33rd cause of the second part and those of the third part, the words de Pœn., i. e. de Pœnitentiâ, and de Cons., i. e. de Consecratione are added to the latter. For instance, "c. 1. d. XI" indicates the first part of the "Decree". distinction XI, canon 1; "c. 1., de Pœn., d. VI," refers to the second part, 33rd cause, question 3, distinction VI, canon 1; "c. 8, de Cons., d. II" refers to the third part, distinction II, canon 8; "c. 8, C. XII, q. 3" refers to the second part, cause XII, question 3, canon 8. Sometimes, especially in the case of well-known and much-quoted canons, the first words are also indicated, e. g., c. Si quis suadente diabolo, C. XVII, q. 4, i. e. the 29th canon of the second part, cause XVII, question 4. Occasionally the first words alone are quoted. In both cases, to find the canon it is necessary to consult the alphabetical tables (printed in all editions of Gratian) that contain the first words of every canon.
The general laws of a Later date than the "Decree" of Gratian have been called "Extravagantes", i. e. laws not contained in Gratian's "Decree" (Vagantes extra Decretum). These were soon brought together in new collections, five of which (Quinque compilationes antiquæ) possessed a special authority. Two of them, namely the third and the fifth, are the most ancient official compilations of the Roman Church (see DECRETALS, PAPAL). Among other compilations at the end of the twelfth and the beginning of the thirteenth century the following deserve special attention: "Appendix concilii Lateranensis III"; the collections known as "Bambergensis" (Bamberg), "Lipsiensis" (Leipzig), "Casselana" (Cassel) "Halensis" (Halle), and "Lucensis" (Lucca), so named from the libraries it which the manuscripts of these collections were found; the collection of the Italian Benedictine Rainerus Pomposianus, that of the English canonist Gilbert (Collectio Gilberti), that of his countryman Alanus, professor at Bologna (Collectio Alani), and that of the Spaniard Bernard of Compostella. But soon the new era of official collections began to dawn. In 1230 Gregory IX ordered St. Raymund of Pennafort to make a new collection, which is called the "Decretals of Gregory IX" (Decretales Gregorii IX). To this collection he gave force of law by the Bull "Rex pacificus", 5 Sept., 1234. This collection is also known to canonists as the "Liber extra", i. e. extra Decretum Gratiani. Boniface VIII published a similar code 3 March, 1298, called the "Sixth Book of the Decretals" (Liber Sextus). John XXII added to it the last official collection of Canon law, the "Liber septimus Decretalium", better known under the title of "Constitutiones Clementis V", or simply "Clementinæ" (Quoniam nulla, 25 Oct., 1317). Later on the canonists added to the manuscripts of the "Decretals" the most important constitutions of succeeding popes. These were soon known and quoted as "Extravagantes", i. e. twenty constitutions of John XXII himself, and those of other popes to 1484. In the Paris edition of the canonical collections (1499-1505) Jean Chappuis drew them up in the form since then universally accepted, and kept for the first the name "Extravagantes Joannis XXII", and called the others, "Extravagantes communes", i. e. commonly met with in the manuscripts of the "Decretals" (see DECRETALS, PAPAL).
The "Corpus Juris Canonici" was now, indeed, complete, but it contained collections of widely different juridical value. Considered as collections, the "Decree" of Gratian, the "Extravagantes Joannis XXII", and the "Extravagantes communes" have not, and never had, a legal value, but the documents which they contain may possess and, as a matter of fact, often do possess, very great authority. Moreover, custom has even given to several apocryphal canons of the "Decree" of Gratian the force of law. The other collections are official, and consist of legislative decisions still binding, unless abrogated by subsequent legislation. The collections of Gregory IX (Libri quinque Decretalium) and of Boniface VIII (Liber Sextus) are moreover exclusive. The former, indeed, abrogated all the laws contained in the aforesaid compilations subsequent to the "Decree" of Gratian. Several authors, however, have maintained, but wrongly, that it abrogated also all the ancient laws which had not been incorporated in Gratian. The second abrogated all the laws passed at a later date than the "Decretals" of Gregory IX and not included in itself. Each of these three collections is considered as one collection (collectio una), i. e. one of which all the decisions have the same value, even if they appear to contain antinomies. It is to be noted, however, that, in cases of contradiction, the decisions of the collections of later date invalidate those found in a collection of an earlier date.
The "Decretals" of Gregory IX, those of Boniface VIII, and the "Clementinæ' are divided uniformly into five books (liber), the books into titles (titulus), the titles into chapters (caput), and treat successively of jurisdiction (judex), procedure (judicium), the clergy (clerus), marriage (connubium), and delinquencies (crimen). The rubrics, i. e. the summaries of the various titles, have the force of law, if they contain a complete meaning; on the other hand, the summaries of the chapters have not this juridical value. It is customary to quote these collections by indicating the number of the chapter, the title of the collection, the heading of the title, the number of the book and the title. The "Decretals" of Gregory IX are indicated by the letter "X", i. e. extra Decretum Gratiani; the "Sixth Book" or "Decretals" of Boniface VIII by "in VIº" i. e. "in Sexto"; the "Clementines" by "in Clem.", i. e. "in Clementinis". For instance: "c. 2, X, De pactis, I, 35", refers to the second chapter of the "Decretals" of Gregory IX, first book, title 35; "c. 2, in VIº, De hæreticis, V, 2", refers to the second chapter of the "Decretals" of Boniface VIII, fifth book, title. 2; "c. 2, in Clem., De testibus, II, 8", refers to the second chapter of the "Clementines", second book, title 8. If there is only one chapter in a title, or if the last chapter is quoted, these passages are indicated by "c. unic.", and "c. ult.", i. e. "caput. unicum" and "caput ultimum". Sometimes also the indication of the number of the chapters is replaced by the first words of the chapter, as for instance: c. Odoardus. In such cases the number of the chapter may be found in the index-tables printed in all the editions. The "Extravagantes Communes" are divided and quoted in the same manner as the "Decretals", and the collection is indicated by the abbreviation: "Extrav. Commun." For instance: "c. 1 (or unicum, or Ambitiosæ), Extrav. Commun., De rebus Ecclesiæ non alienandis, III, 4", refers to the first chapter (the only chapter) in book III, title 4 of the "Extravagantes Communes". This collection omits the usual "Liber IV" which treats of marriage. The "Extravagantes of John XXII" are divided only into titles and chapters. They are indicated by the abbreviation, "Extrav. Joan. XXII". For instance: "c. 2, Extrav. Joan. XXII, De verborum significatione XIV" refers to the second chapter of the fourteenth title of this collection.
Very soon after the invention of printing editions of the "Corpus Juris", with or without the gloss (comments of canonists) were published. We have already mentioned the importance of the Paris edition (1499-1505) for the two collections of "Extravagantes". This edition includes the gloss. The last edition with the gloss is that of Lyons. (1671). Though the Council of Trent did not order a revision of the text of the canonical collections, St. Pius V appointed (1566) a commission to prepare a new edition of the "Corpus Juris Canonici". This commission devoted itself especially to the correction of the text of the "Decree" of Gratian and of its gloss. Gregory XIII ("Cum pro munere", 1 July, 1580; "Emendationem", 2 June, 1582) decreed that no change was to be made in the revised text. This edition of the "Corpus" appeared at Rome in 1582, in œdibus populi Romani, and serves as exemplar for all subsequent editions. The best-known, previous to the nineteenth century, are those of the brothers Pithou (Paris, 1687), Freiesleben (Prague, 1728), and the Protestant canonist Böhmer (Halle-Magdeburg, 1747). It is to be noted that the text of the latter edition differs from that of the Roman edition of 1582, and does not therefore possess practical utility. The edition of Richter (Leipzig, 1833-39) avoids this defect and is valuable for its critical notes. The edition of Friedberg (Leipzig, 1879-81) does not reproduce the text of the Roman edition for the "Decree" of Gratian, but gives the Roman text of the other collections. it is the best and most critical edition.
(3) Jus novissimum
After the Council of Trent, an attempt to secure a new official collection of church laws was made about 1580, when Gregory XIII charged three cardinals with the task. The work continued during the pontificate of Sixtus V, was accomplished under Clement VIII, and was printed (Rome, 1598) as: "Sanctissimi Domini nostri Clementis papæ VIII Decretales", sometimes also "Septimus liber Decretalium". This collection, never approved either by Clement VIII or by Paul V, was recently edited (Freiburg, 1870) by Sentis. In 1557 an Italian canonist, Paul Lancelottus, attempted unsuccessfully to secure from Paul IV, for the four books of his "Institutiones juris canonici" (Rome, 1563), an authority equal to that which its model, the "Institutiones" of Emperor Justinian, once enjoyed in the Roman Empire. A private individual, Pierre Mathieu of Lyons, also wrote a "Liber septimus Decretalium", inserted in the appendix to the Frankfort (1590) edition of the "Corpus Juris Canonici". This work was put on the Index. The sources of modern Canon law must be looked for in the disciplinary canons of the Council of Trent (see TRENT, COUNCIL OF), in the collections of papal Bulls (see BULLARIUM), of general and local councils, and in the collections of the decisions and answers of the Roman Congregations (see CONGREGATIONS, ROMAN). However, the ancient "Corpus Juris Canonici" forms yet the basis of the actual canonical legislation. The present position is not without grave inconveniences. At the Vatican Council several bishops asked for a new codification of the canon law, and since then several canonists have attempted to compile treatises in the form of a full code of canonical legislation, e. g. de Luise (1873), Pillet (1890), Pezzani (1894), Deshayes (1894), Collomiati (1898-1901). Finally Pius X determined to undertake this work by his decree "Arduum sane munus" (19 March, 1904), and named a commission of cardinals to compile a new "Corpus Juris Canonici" on the model of the codes of civil law. (See LAW.)
LAURIN, Introductio in corpus juris canonici (Freiburg, 1889); SCHNEIDER, Die Lehre von den Kirchenrechtsquellen (2nd ed., Ratisbon, 1892); TARDIF, Histoire des sources du droit canonique (Paris, 1887); GALLANDI, De vetustis canonum collectionibus dissertationum sylloge (Mentz, 1790); VOELLUS AND JUSTELLUS, Bibliotheca juris canonici veteris (Paris, 1661); MAASSEN, Geschichte der Quellen und der Literatur des kanonischen Rechts im Abendlande bis zum Ausgang des Mittelalters (Graz, 1870); SCHULTE, Geschichte der Quellen und Literatur des canonischen Rechts von Gratian bis auf die Gegenwart (Stuttgart, 1875-1880); SMITH, Elements of Ecclesiastical Law (New York, 1881), I, 62 sqq.; SCHERER, Handbueh des Kirchenrechts (Graz, 1886), I, 178 sq.; WERNZ, Jus Decretalium (Rome, 1898), I, 272, seq.; SÄGMÜLLER, Lehrbuck des katholischen Kirchenrechts (Freiburg, 1900-1904), 104 sqq.; TAUNTON, The Law of the Church (London, 1906), 258, 274, 336, 354, 355, etc.
A. VAN HOVE