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197
CANON LAW

richer of them; when necessary, he has recourse to the Roman laws, and he made an extensive use of the works of the Fathers and the ecclesiastical writers; he further made use of the canons of the recent councils, and the recently published decretals, up to and including the Lateran council of 1139. 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.) bearing on the question. But causa xxxiii. quaestio 3, headed Tractatus de Poenitentia, is divided like the main part into seven distinctiones, containing each several canones. The third part, which is entitled De Consecratione, gives, in five distinctiones, the law bearing on church ritual and the sacraments. The Mode of citation. following is the method of citation. A reference to the first part indicates the initial words or number of the canon and the number of the distinctio, e.g. can. Propter ecclesiasticas, dist. xviii. or c. 15, d. xviii. The second part is cited by the canon, causa and quaestio, e.g. can. Si quis suadente, C. 17, qu. 4, or c. 29, C. xvii., qu. 4. The treatise De Poenitentia, forming the 3rd quaestio of the 33rd causa of the second part, is referred to as if it were a separate work, e.g. c. Principium, D. ii. de poenit. or c. 45, D. ii. de poenit. In quoting a passage from the third part the canon and distinctio are given, e.g. c. Missar. solenn. D.I. de consecrat., or c. 12, D.I. de consecr.

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 Authority. been recognized as such, and the pretended endorsement of it 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. Further, there was as yet no idea of demanding an official compilation. The Decretum has thus remained a work of private authority, and the texts embodied in it have only that legal value which they possess in themselves. On the other hand, the Decretum actually enjoys a certain public authority which is unique; for centuries it has been the text on which has been founded the instruction in canon law in all the universities; it has been glossed and commented on by the most illustrious canonists; it has become, without being a body of laws, the first part of the Corpus juris canonici, and as such it has been cited, corrected and edited by the popes. It has thus, by usage, obtained an authority perfectly recognized and accepted by the Church.[1]

Gratian’s collection, for the very reason that it had for its aim the creation of a systematic canon law, was a work of a transitional character. Henceforth a significant differentiation began to appear; the collections of texts, the After Gratian. number of which continued to increase, were clearly separated from the commentaries in which the canonists continued the formation and interpretation of the law. Thus the way was prepared for official collections. The disciples of Gratian, in glossing or commenting on the Decretum, turned to the papal decretals, as they appeared, for information and the determination of doubtful points. Their idea, then, was to make collections of these points, to support their teaching; this is the origin of those Compilationes which were soon to be embodied in the collection of Gregory IX. But we must not forget that these compilations were intended by their authors to complete the Decretum of Gratian; in them were included the decretals called extravagantes, i.e. quae vagabantur extra Decretum. This is why we find in them hardly any documents earlier than the time of Gratian, and also why canonists have continued to refer to the decretals of Gregory IX. by the abbreviation X (Extra, i.e. extra Decretum).

There were numerous collections of this kind towards the end of the 12th and at the beginning of the 13th century. Passing over the first Additiones to the Decretum and the “Quinque compilationes.” Appendix concilii Lateranensis (council of 1179), we will speak only of the Quinque compilationes,[2] which served as a basis for the works of Raymond of Pennaforte. The first and most important is the work of Bernard, provost and afterwards bishop of Pavia, namely, the Breviarium extravagantium, compiled about 1190; it included the decretals Bernard of Pavia, “Breviarium.” from Alexander III. to Clement III., together with certain “useful chapters” omitted by Gratian. The important feature of the book is the arrangement of the decretals or sections of decretals in five books, divided into titles (tituli) logically arranged. The five books treat of (1) ecclesiastical persons and dignitaries or judges; (2) procedure; (3) rights, duties and property of the clergy, i.e. benefices, dues, sacraments, &c., with the exception of marriage, which is the subject of book (4); (5) of penalties. There is a well-known hexameter summing up this division:

Judex, judicium, clerus, connubia, crimen.

This is the division adopted in all the official collections of the Corpus juris. By a bull of the 28th of December 1210 Innocent “Compilatio tertia.” III. sent to the university of Bologna an authentic collection of the decretals issued during the first twelve years of his pontificate; this collection he had caused to be drawn up by his notary, Petrus Collivacinus of Benevento, his object being to supersede the collections in circulation, “Secunda.” which were incomplete and to a certain extent spurious. This was the Compilatio tertia; for soon after, Joannes Galensis (John of Wales) collected the decretals published between the collection of Bernard of Pavia and the pontificate of Innocent III.; and this, though of later “Quarta.” date, became known as the Compilatio secunda. The quarta, the author of which is unknown, contained the decretals of the last six years of Innocent III., and the “Quinta.” important decrees of the Lateran council of 1215. Finally, in 1226, Honorius III. made an official presentation to Bologna of his own decretals, this forming the Compilatio quinta.

The result of all these supplements to Gratian’s work, apart from the inconvenience caused by their being so scattered, was the accumulation of a mass of material almost as considerable as the Decretum itself, from which they Decretals of Gregory IX. tended to split off and form an independent whole, embodying as they did the latest state of the law. From 1230 Gregory IX. wished to remedy this condition of affairs, and gave to his penitentionary, the Dominican Raymond of Pennaforte, the task of condensing the five compilations in use into a single collection, freed from useless and redundant documents. The work was finished in 1234, and was at once sent by the pope to Bologna with the bull Rex pacificus, declaring it to be official. Raymond adopts Bernard of Pavia’s division into five books and into titles; in each title he arranges the decretals in chronological order, cutting out those which merely repeat one another and the less germane parts of those which he preserves; but these partes decisae, indicated by the words “et infra” or “et j,” are none the less very useful and have been printed in recent editions. Raymond does not attempt any original work; to the texts already included in the Quinque compilationes, he adds only nine decretals of Innocent III. and 196 chapters of Gregory IX. This first official code was the basis of the second part of the Corpus juris canonici. The collection of Gregory IX. is cited as follows: the opening words of the chapter are given, or else its order or number, then the title to which it belongs; earlier scholars added X (extra); nowadays, this indication is omitted, and the order or number of the title in the book is given

  1. See Laurin, Introductio in corpus juris canonici, c. vii. p. 73.
  2. By referring to the decretals of Gregory IX. for the texts inserted there, E. Friedberg has succeeded in giving a much abridged edition of the Quinque compilationes (Leipzig, 1882).