Canon Law in Europe

Definition of Canon Law

A body of Roman ecclesiastical law, compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the Holy See. It was codified in the 12th century by Gratianus, and added to by subsequent collections, and known as the Corpus Juris Canonica. There is also a kind of national canon law adapted only to this country. It was enacted in 1533 that a review should be had of the canon law, and till then the existing canon law should be valid and binding. No such review has been made. (1) Canon Law in the Dictionaries.

Early History of the Canon Law

Growth of canon law

A body of jurisprudence was coming into being (in Europe). From humble beginnings the canon law had grown into a mighty system. Already it asserted its right to stand beside or above the civil law. The civil law might be the law of earth, ius soli; here was the law of heaven, ius poli. The time had now come when the Hildebrandine papacy could insist that, subject to small variations, the universal church had a common law. Many men had been endeavouring to state that law, but the fame of earlier labourers was eclipsed by that of Gratian.

A monk of Bologna, that city which was the centre of the new secular jurisprudence, he published between the years 1139 and 1142 (the work used to be ascribed to a somewhat later date) a book which he called Concordia discordantium canonum, but which was soon to become for all mankind simply the Decretum Gratiani, or yet more simply the Decretum. It is a great law-book. The spirit which animated its author was not that of a theologian, not that of an ecclesiastical ruler, but that of a lawyer. One large section of his work is taken up with the discussion of hypothetical cases (causae); he states the various questions of law (quaestiones) that are involved in these cases; he endeavours to answer the questions by sorting and weighing the various “authorities” (to use our English word) which bear upon them.

These authorities consist of canons new and old, decretals new and old, including of course the Isidorian forgeries, principles of Roman law, passages from the fathers and the Bible. The Decretum soon became an authoritative text-book and the canonist seldom went behind it. All the same, it never became “enacted law.” The canonist had for it rather that reverence which English lawyers have paid to Coke upon Littleton than that utter submission which is due to every clause of a statute. A sure base had now been found for the new science. Gratian became the master of a school, a school of lawyers well grounded in Roman law, many of them doctors utriusque iuris, who brought to bear upon the Decretum and the subsequent decretals the same methods that they employed upon Code and Digest. Legists and decretists alike looked to Italy for their teachers; but the papal system was even more cosmopolitan than the imperial; the sway of the Roman church was wider than that of the Roman empire. Gratian, Rufinus, Johannes Faventinus, Pillius, Hostiensis—these names we read in English books, to say nothing of those great canonists who attain to the papal throne, of Alexander III. and Innocent III., Gregory IX. and Innocent IV.

The Decretals

Gratian had collected decretals down to the year 1139. But the time had now come when the popes were beginning to pour out decretals for the whole of western Christendom in great abundance. Under Alexander III. and Innocent III. the flow was rapid indeed. From time to time compilations of these were made (compilationes antiquae) and Englishmen in Italy took part in this work;6 but they were all set aside by a grand collection published by Gregory IX. in 1234. This was an authoritative statute book; all the decretals of a general import that had not been received into it were thereby repealed, and every sentence that it contained was law. It comprised five books. In 1298 Boniface VIII. added to these the “Sext,” the Liber Sextus, a collection of those decretals issued since the Gregorian codification, which were to be in force for the future. Another collection of decretals known as the Clementines (they had proceeded from Clement V) was added in 1317, and in 1500 the Corpus Iuris Canonici was completed by yet another collection—this had no statutory authority—known as the Extravagants; but by this time canon law had seen its best days. We must yet say a few more words of its vigorous maturity.

The canonical system

It was a wonderful system. The whole of western Europe was subject to the jurisdiction of one tribunal of last resort, the Roman curia. Appeals to it were encouraged by all manner of means, appeals at almost every stage of almost every proceeding.8 But the pope was far more than the president of a court of appeal. Very frequently the courts Christian which did justice in England were courts which were acting under his supervision and carrying out his written instructions. A very large part, and by far the most permanently important part, of the ecclesiastical litigation that went on in this country, came before English prelates who were sitting, not as English prelates, not as “judges ordinary,” but as mere delegates[94] of the pope commissioned to hear and determine this or that particular case. When once the supreme pontiff has obtained seisin of a cause, that cause proceeds under his directions.

He bids two or three English prelates try it, but he also tells them by what rules they are to try it, he teaches them, corrects them, reproves them, expresses in a fatherly way his surprise at their ignorance of law. Very many of the decretals are mandates issued to these judges delegate, mandates which deal with particular cases. Others are answers to questions of law addressed to the pope by English or other prelates. These mandates and these answers were of importance, not merely to the parties immediately concerned, but to all the faithful, for the canonist would treat as law in other cases the rules that were thus laid down. His science was to a great degree a science of “case law,” and yet not of case law as we now understand it, for the “dicta” rather than the “decisions” of the popes were law; indeed when the decretals were collected, the particular facts of the cases to which they had reference, the species facti, were usually omitted as of no value. The pope enjoyed a power of declaring law to which but wide and vague limits could be set.

Each separate church might have its customs, but there was a ius commune, a common law, of the universal church. In the view of the canonist, any special rules of the church of England have hardly a wider scope, hardly a less dependent place, than have the customs of Kent or the by-laws of London in the eye of the English lawyer.10 During the time with which we are now dealing, the twelfth and thirteenth centuries, no English canonist attempts to write down the law of the English church, for the English church has very little law save the law of the church Catholic and Roman. When in the next century John de Athona wrote a commentary on the constitutions made by certain papal legates in England, he treated them as part and parcel of a system which was only English because it was universal, and brought to bear upon them the expositions of the great foreign doctors, Hostiensis, Durandus and the rest.

On the other hand, a large portion of this universal system was in one sense specifically English. England seems to have supplied the Roman curia with an amount of litigation far larger than that which the mere size or wealth of our country would have led us to expect. Open the Gregorian collection where we will, we see the pope declaring law for English cases. The title De filiis presbyterorum ordinandis vel non has eighteen chapters; nine of these are addressed to English prelates. The title De iure patronatus has thirty-one chapters and at least fifteen of them are in this sense English. But if an English advocate made his way to Rome, he was like to be told by the pope that his doctrine was the product of English beer, and might carry home with him a rescript which would give the English bishops a sound lesson in the law of prescription.

Relation of canon to Roman law

The relation between the two great systems was in the twelfth century very close. The canon law had borrowed its form, its language, its spirit, and many a maxim from the civil law. Of course, however, it had to deal with many institutions which had never come within the ken of the classical Roman lawyers, or had been treated by them in a manner which the church could not approve. Thus, for example, the law of marriage and divorce, a topic which the church had made her own, had to be rewritten. Some elements which we may call Germanic had made their way into the ecclesiastical system; in penal causes the proof by compurgation was adopted, and, wherever the testamentary executor may come from, he does not come from the Roman law. Still the canonist’s debt to the civilian was heavy; he had borrowed, for instance, the greater part of his law of procedure, and he was ever ready to eke out Gratian by an appeal to Justinian.

In (England) Richard I.’s day the monks of Canterbury went to law with the archbishop; a statement of their case has come down to us; probably it was drawn up by some Italian; it contains eighty citations of the Decretum, forty of the Digest, thirty of the Code. The works of the classical Roman jurists were ransacked to prove that the archbishop’s projected college of canons would be an injury to his cathedral monastery.12 In the thirteenth century the canon law began to think that she could shift for herself and to give herself airs of superiority. The bishops of Rome began to discourage a system which had only too much to say about the grandeur of emperors and hardly a word of popes. If they could have had their way, the civil law would have been but the modest handmaid of the canon law. But in the days of our King Stephen the imperial mother and her papal daughter were fairly good friends. It was hand in hand that they entered England.

Scientific work in England

But the Italians had been first in the field and easily maintained their preeminence. During the rest of the middle ages hardly a man acquires the highest fame as legist or decretist who is not Italian, if not by birth, at least by education. The second place must be conceded to the French universities; in particular to the school of Orleans. There are some signs of original work in England. The scholars of Vacarius glossed his glosses. Some manuals of procedure have been preserved which good critics have ascribed to the England or the Normandy of the twelfth century.

Of these the most interesting to us is one which has been attributed to no less a man than William Longchamp. A clerk of Norman race, he became for some years, as all know, King Richard’s viceroy and the true ruler of England. Even after his fall he was still the king’s chancellor.38 Another lawyer who for a while controls the destiny of our land is Cardinal Guala Bicchieri,39 but it were needless to say that he was no Englishman. Probably that one of our countrymen who gains most fame in the cosmopolitan study is Ricardus Anglicus. He has been somewhat hastily identified with Richard le Poore, who became Dean of Salisbury, Bishop of Chichester, of Salisbury, of Durham.41 In the next century the most prominent name is that of William of Drogheda, who taught at Oxford and wrote a Summa Aurea.

But the Roman Catholicism—we need no better term—of the canon law made against the development of national schools. All the great cases, the causes célèbres, went to Rome, and the English litigant, if prudent and wealthy, secured the services of the best Italian advocates. In their dispute with the archbishop, the monks of Canterbury retain the illustrious Pillius and the illustrious Ugolino, who will be Gregory IX.43 Thomas of Marlborough, prior of Evesham, despite his having taught law at Oxford, attended the lectures of Azo, “master of all the masters of law,” before he trusted himself to plead the cause of his abbey at the threshold of the Apostles.

It was not from any English civilian but from Azo himself that our Bracton borrowed. Henry III. kept in his pay Henry of Susa, who was going to be cardinal Bishop of Ostia, and who, for all men who read the law of the church, will be simply Hostiensis. Edward I. had Franciscus Accursii at his side. The great “prizes of the profession” were beyond the reach of the Englishman; “the leaders of the profession” whose books, he had to read, whose opinions he had to quote, were Italians. (…)

The sphere of canon law

Large then is the province of ecclesiastical law; but it might have been much larger. Despite the many advantages that Henry II (of England) gave to his antagonists by his rages and his furies, he handed down to his successors a larger field of purely temporal justice than was[111] to be found elsewhere.84 Even in Normandy Richard had to consign to the ecclesiastical forum all questions about broken oath or broken faith. But we are here concerned with the fact that from the middle of the twelfth century onwards a very large mass of litigation, of litigation too which in no very strict sense can be called ecclesiastical, was handed over to tribunals which administered the canon law, tribunals which were often constituted by a papal rescript, and from which there lay an appeal to the Roman curia.

Influence of canon upon English law

The canon law begins to affect our temporal law sometimes by way of repulsion, sometimes by way of attraction. It is in opposition to “the canons and Roman laws”86 that (if we may so speak) our English law becomes conscious of its own existence. In the Constitutions of Clarendon we have our first authoritative redaction of hitherto unwritten customs. If our consuetudines are to prevail against the leges and canones, they must be accurately formulated and set in writing. The “Nolumus leges Angliae mutare” of 1236 is no announcement of a purely abstract conservatism; our English rule is to be maintained in opposition to the canons. Repulsion begets emulation. Glanvill will have it that the English laws, at least those made by the king with the counsel of his barons, are leges, just as much leges as any that are studied at Bologna. But this is not all.

In later days, in the fourteenth and fifteenth centuries, the canon law can be administered in England without influencing our common law. The king’s justices, the practitioners in the king’s court, are in all probability profoundly ignorant of the Digest and the Decretals. The learned doctors who practise before the episcopal tribunals are not so ignorant of the temporal law, for it sets limits to their sphere of action; still they would not profess themselves masters of it. But in the twelfth, and even in the thirteenth, century this was not so. Henry’s greatest, his most lasting triumph in the legal field was this, that he made the prelates of the church his justices.

Nothing could be less true than that he quarrelled with the whole mass of bishops and clergy. No doubt his bestowal of the great places of the church upon men who had earned, or were to earn, them by fiscal and justiciary labours, has an evil side as well as a good. We are here concerned with its good side. English law was administered by the ablest, the best educated, men in the realm; nor only that, it was administered by the selfsame men who were “the judges ordinary” of the church’s courts, men who were bound to be, at least in some measure, learned in the canon law. At one moment Henry has three bishops for his “archjusticiars.”89 The climax is reached in Richard’s reign. We can then see the king’s court as it sits day by day. Often enough it was composed of the Archbishop of Canterbury, two other bishops, two or three archdeacons, two or three ordained clerks who were going to be bishops and but two or three laymen.90 The majority of its members might at any time be called upon to hear ecclesiastical causes and learn the lessons in law that [142] were addressed to them in papal rescripts. Blackstone’s picture of a nation divided into two parties, “the bishops and clergy” on the one side contending for their foreign jurisprudence, “the nobility and the laity” on the other side adhering “with equal pertinacity to the old common law” is not true.

It is by “popish clergymen” that our English common law is converted from a rude mass of customs into an articulate system, and when the “popish clergymen,” yielding at length to the pope’s commands, no longer sit as the principal justices of the king’s court, the creative age of our medieval law is over. Very characteristic of our thirteenth century is it that when there is talk of legitimation per subsequens matrimonium, the champion of the common law is a canon of St. Paul’s, William Raleigh, who is going to be a bishop and somewhat of a martyr, whose name is to be joined with the names of Anselm and Becket.

These royal clerks have two sides; they are clerks, but they are royal. It would not surprise us to discover that Martin Pateshull, justice of the Bench, had prohibited Martin Pateshull, archdeacon of Norfolk, from meddling with lay fee. But as archdeacon he was bound to have a decent acquaintance with the canon law, and as justice he could not forget what he knew as archdeacon. In the second half of Richard’s reign Hubert Walter, the chief justiciar of England, who sat day by day at Westminster, was also the Archbishop of Canterbury. A spiteful tongue has told us that he was no great Latinist, that he could be guilty of “Tres sunt species cautionis, fideiussoriam, iuratoriam, pignoraticiam” and the like;93 still, though we can suppose that this busy primate of England was not deeply read in the Decretum, he must have heard a great deal of Decretum and Code and Digest, even before his prolonged struggle with the Canterbury monks and their Pillius and their Ugolino.

English law administered by ecclesiastics.We attribute to these clerical justices in general no more than a superficial acquaintance with the canon law, an acquaintance with its main principles and with its methods. But this much we must attribute to them, and it means a great deal. Let us conceive a man, whose notion of law and the logic of law is that which is displayed in the Leges Henrici, coming upon a glossed version of the Decretum, or still better upon some Summa such as that attributed to William of Longchamp. His whole conception of what a law-book, what a judgment should be, of how men should state law and argue about law, must undergo a radical change. Viewed therefore from one point, the effect produced on English law by its contact with the romano-canonical learning seems immeasurable, or measurable only by the distance that divides Glanvill’s treatise from the Leges Henrici.

Nature of the canonical influence

Law, it may be said, is one thing and the expression of law another. But we can hardly, even in thought, divorce the matter of law from its form. Old traditional rules must lose their old meaning so soon as men attempt to weave them into a reasonable system. English law, more especially the English law of civil procedure, was rationalized under the influence of the canon law. Here and there we may note a plain case in which the one system has borrowed a whole set of rules from the other. Thus Glanvill tells us that the “exceptions,” or as we should say the “challenges,” which can be made against jurors are the same as the exceptions which can be made against witnesses in the courts Christian.

Here a whole chapter of law, which in the hands of the canonists is already becoming a bulky chapter, is borrowed. Such instances, however, are rare, and this instance is typical and instructive. Our English jurors are already very unlike, and are becoming more unlike, the canonical testes; and they will not be made any more like the canonical testes by the application to them of these rules about exceptions or challenges. Another mass of rules is borrowed. The elementary outlines of the science of pleading can only be expressed in terms familiar to civilians and canonists. In any case we must begin by saying that “of exceptions (special pleas) some are dilatory, while others are peremptory.”

But in our lay courts a distinctive form is given to these rules by the mode of trial which prevails there, the trial by jury, and before long the canonist will hardly be able to understand the English lawyer’s doctrine of special pleas. The assize of novel disseisin is suggested by the actio spolii; but it is not the actio spolii. Our English law shows itself strong enough to assimilate foreign ideas and convert them to its own use. Of any wholesale “reception” of Roman law there is no danger. From the day at Clarendon onwards it is plain that we have many consuetudines which must be maintained in the teeth of leges and canones.

The king’s justices, more especially those of them who are clerks, become interested in the maintenance of a system that is all their own. From time to time the more learned among them will try to attain a foreign, an Italian, standard of accuracy and elegance; they will borrow terms and definitions, they will occasionally borrow rules; but there must be no dictation from without. The imperial laws as such have no rights in England; the canon law has its proper province and should know its place.

Source: Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)

The Canon Law of Divorce

The canon law of Rome was based on two main principles:

That there could be no divorce a vinculo matrimonii, but only a mensa et thoro. The rule was stated in the most absolute terms: ”Quamdiu vivit vir licet adulter sit, licet sodomita, licet flagitiis omnibus coopertus, et ab uxore propter haec scelera derelictus, maritus ejus reputatur, cui alterum vivum accipere non licet” (Caus. 32, Quaest. 7, c. 7).
That no divorce could be had at the will of the parties, but only by the sentence of a competent, that is to say, an ecclesiastical, court. In this negation of a right to divorce a vinculo matrimonii lies the broad difference between the doctrines of the Eastern and Western Churches of Christendom. The Greek Church, understanding the words of Christ in the broader sense above mentioned, has always allowed complete divorce with a right to remarry for the cause of adultery. And it is said that the form at least of an anathema of the council of Trent was modified out of respect to difference on the part of the Greek Church (see Pothier 5. 6. 21).

The papal canon law allowed a divorce a mensa et thoro for six causes:

adultery or unnatural offences;
impotency;
cruelty;
infidelity;
entering into religion;
consanguinity.

The Church, however, always assumed to itself the right to grant licences for an absolute divorce; and further, by claiming the power to declare marriages null and void, though professedly this could be done only in cases where the original contract could be said to be void, it was, and is to this day, undoubtedly extended in practice to cases in which it is impossible to suppose the original contract really void, but in which a complete divorce is on other grounds desirable.(2)

Resources

Notes and References

Definition of Canon Law is, temporally, from A Concise Law Dictionary (1927)
Encyclopedia Britannica (1911)

Canon Law