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CANON LAW

4. The Future Codification.—Neither Clement VIII. nor, at a later date, Benedict XIV., could have dreamt of the radical reform at present in course of execution. Instead of accumulating the texts of the laws in successive collections, Demand for
codification.
it is proposed entirely to recast the system of editing them. This codification in a series of short articles was suggested by the example of the French codes, the history of which during the 19th century is well known. 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. Finally, in the course of so many centuries, the number of ecclesiastical laws has increased to such an extent, and these laws have accumulated in such immense collections, that in a certain sense we can well say: We are crushed beneath the laws, obruimur legibus. Hence arise infinite and inextricable difficulties which obstruct the study of canon law; an immense field for controversy and litigation; a thousand perplexities of conscience; and finally contempt for the laws.”[1] We know how the Vatican council had to separate without approaching the question of canonical reform; but this general desire for a recasting of the ecclesiastical code was taken up again on the initiative of Rome. On the 19th of March 1904, Decision
of Pius X.
Pius X. published a Motu proprio, “de ecclesiae legibus in unum redigendis.” After briefly reviewing the present condition of the canonical texts and collections, he pointed out its inconvenience, referred to the many requests from the episcopate, and decreed the preparation of a general code of canon law. This immense undertaking involved the codification of the entire canon law, drawing it up in a clear, short and precise form, and introducing any expedient modifications and reforms. For this purpose the pope appointed Method. a commission of cardinals, of which he himself became president; also a commission of “consultors” resident at Rome, which asked for a certain amount of assistance from canonists at various universities and seminaries. Further, the assembled bishops of each province were invited to give their opinion as to the points in which they considered the canon law might profitably be modified or abrogated. Two consultors had the duty of separately drawing up a preliminary plan for each title, these projects being twice submitted for the deliberation of the commission (or sub-commission) of consultors, the version adopted by them being next submitted to the commission of cardinals, and the whole finally sent up for the papal sanction. These commissions started work at the end of 1904.

Local Law.—The common law of the Roman Church cannot by itself uniformly regulate all the churches of the different nations; each of them has its own local law, which we must briefly mention here. In theory, this law Local law. has as its author the local ecclesiastical authorities, councils or bishops; but this is true only for laws and regulations which are in harmony with the common law, merely completing or defining it. But if it is a question of derogating from the common law, the authority of the Holy See must intervene to legalize these derogations. This intervention takes the form either of “indults,” i.e. graceful concessions granted at the request of the episcopate, or of special approbation of conciliary resolutions. 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. Having made this remark, we must distinguish between the countries which are still subject to the system of concordats and other countries.

In the case of the former, the local law is chiefly founded on the concordat (q.v.), including the derogations and privileges resulting from it. The chief thing to note is the existence, for these countries, of a civil-ecclesiastical Countries subject to concordats. law, that is to say, a body of regulations made by the civil authority, with the consent, more or less explicit, of the Church, about ecclesiastical matters, other than spiritual; these dispositions are chiefly concerned with the nomination or confirmation by the state of ecclesiastics to the most important benefices, and with the administration of the property of the Church; sometimes also with questions of jurisdiction, both civil and criminal, concerning the persons or property of the Church. It is plain that the agreements under the concordats have a certain action upon a number of points in the canonical laws; and all these points go to constitute the local concordatory law. This is the case for Austria, Spain, Portugal, Bavaria, the Prussian Rhine provinces, Alsace, Belgium, and, in America, Peru. Up to 1905 it was also the case in France, where the ancient local customs now continue, pending the reorganization of the Church without the concordat.

We do not imply that in other countries the Church can always find exemption from legislative measures imposed upon her by the civil authorities, for example, in Italy, Prussia and Russia; but here it is a situation de facto rather than de jure, which the Church tolerates for the sake of convenience; and these regulations only form part of the local canon law in a very irregular sense.

In other countries the episcopal assemblies lay down the local law. England has its council of Westminster (1852), the United States their plenary councils of Baltimore (1852, 1866, 1884), without mentioning the diocesan synods; and Other Countries. the whole of Latin America is ruled by the special law of its plenary council, held at Rome in 1899. The same is the case with the Eastern Churches united to the Holy See; following the example of the famous council of Lebanon for the Maronites, held in 1730, and that of Zamosc for the Ruthenians, in 1720, these churches, at the suggestion of Leo XIII., have drawn up in plenary assembly their own local law: the Syrians at Sciarfa in 1888; the Ruthenians at Leopol in 1891; and a little later, the Copts. The framing of local law will certainly be more clear and more easy when the general code of canon law has been published.

Bibliography.—For the texts and collections: the dissertations of Dom Coustant, De antiquis canonum collectionibus, deque variis epistolarum Rom. Pont, editionibus (Paris, 1721); P. de Marca, De veteribus collectionibus canonum (Paris, 1681}; the brothers Peter and Jerome Ballerini, De antiquis tum editis tum ineditis collectionibus et collectoribus canonum ad Gratianum usque (Venice, 1757). This is the best of all these works; it is reproduced in Migne, P.L., vol. 56; C. Seb. Berardi, De variis sacrorum canonum collectionibus ante Gratianum (Turin, 1752); P. Quesnel, De codice canonum Ecclesiae Romanae; de variis fidei libellis in antiquo Rom. Eccl. codice contentis; de primo usu codicis canonum Dionysii Exigui in Gallicanis regionibus (Paris, 1675; with the critical notes of the brothers Ballerini, also in Migne, loc. cit.); and finally, Florent, De methodo atque auctoritate collectionis Gratiani (Paris, 1679), and Antonio Agustin, archbishop of Tarragona, De emendatione Gratiani (Tarragona, 1586); these have all been brought together in Gallandi, De vetustis canonum collectionibus dissertationum sylloge (Venice, 1778). The most complete work on the texts up to the 9th century is F. Maassen, Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande, vol. i. (all that has yet appeared, Gratz, 1870). For the period between the False Decretals and Gratian, there is no work of this sort, but the materials have been put together and published in part by M. P. Fournier. After Gratian, the classic work is Schulte, Geschichte der Quellen und Literatur des canonischen Rechts von Gratian bis auf die Gegenwart (3 vols., Stuttgart, 1875 et. seq.). Manuals for the study of the sources: Ph. Schneider, Die Lehre von den Kirchenrechtsquellen (Regensburg, 1892); F. Laurin, Introductio in Corpus juris canonici (Freiburg, 1889); Tardif, Histoire des sources du droit canonique (Paris, 1887). Most of the German manuals on canon law devote considerable space to the history of the sources: see Phillips, vol. ii (3rd ed., 1857; French translation by the abbé Crouzet); Vering, 3rd ed. (Freiburg, 1893); Schulte, Das katholische Kirchenrecht, pt. i. (Giessen, 1860), &c.
  1. Omnium concilii Vaticani ... documentorum collectio, per Conradum Martin (Paderborn, 1873), p. 152.