Rebirth of Canon Law Studies

Rebirth of Canon Law Studies

Rebirth of Canon Law Studies: 11th Century On

Domus Gratiani: Gratian Studies

Gratian was a 12th-century Benedictine monk and canon lawyer from Bologna. Little is known about him beyond the fact that he compiled and wrote this collection of legal texts, which became the code of canon law used in the Roman Catholic Church until 1918. Anders Winroth’s important book, The Making of Gratian’s Decretum (Cambridge: Cambridge University Press, 2000), is a fundamental one.

The Life of Burchard Bishop of Worms

Some excerpts:

  • I mean by “the most serene light” sacred Scripture in which each of the faithful is corrected in their words and deeds, and for this reason, it is rightly called the mirror of life. Indeed, sacred Scripture is the declaration of both laws and of the Old and New Testament. If someone crazy in the head is not corrected by its most lucid judgments, he has been deluded in the mockery of vanity. Anyone is deceived by the mockery of vanity who is captured by the most vain vice of stupidity and neither seeks virtue nor flees vice. Therefore we should flee every vice, and certainly we should flee stupidity, for certainly it is a human vice. In contrast, we should seek every virtue, we should seek wisdom, for it is the virtue of God. Whoever wishes to know the strong virtue of God shall seek wisdom with the utmost zeal and greatest diligence. For what is stronger than the virtue of God, what is brighter than what is illuminated by the ray of God, the true sun, and what more truthful than what the hand of the Truth itself has written? Indeed, Scripture says: Moses came down from the mountain bearing two stone tablets in his hands, both inscribed by the finger of God. Also on these tablets it was added: Moses, the servant of God, fasted forty days and nights that he might merit to receive the law of the Lord.
  • Justice, judgments of the laws, or assiduous sacred reading were never absent from his mouth. It is unnecessary to praise the prudence in him, because an incredible number of people not only from the palace but also from various regions gathered to know his advice.

His collection of canons

This collection, known as the Decretum, assumed its final form around 1015 and became one of the most influential collections of the eleventh and early twelfth centuries; for a brief discussion of Burchard’s sources and methods, see B. Brasington & R. Somerville, Prefaces to Canon Law Books in Latin Christianity. Selected Translations, 500-1245, New Haven, 1998, 72-75 with earlier bibliography, and R. Somerville’s translation of the preface, 99-104. Brunicho’s role in stimulating Burchard’s canonistic efforts is suggested by the latter’s dedication of the Decretum to him.

Source: trans. William North, 1025

Papal Election Decree, 1059, Papal and Imperial Versions

Decree of 1059: On Papal Elections

(Doeberl: Monumenta Germaniae selecta,” 3rd vol.)

A: PAPAL VERSION.

In the name of the Lord God our Saviour Jesus Christ, in the year of his incarnation 1059, in the mouth of April, in the 12th indiction-the holy Gospel being placed before us and the most reverend and blessed apostolic pope Nicholas presiding, while the most reverend archbishops, bishops, abbots and venerable priests and deacons assisted -in the church of the Lateran patriarch, which is called -the church of Constantine, this same venerable pontiff decreeing by apostolic authority, spoke thus concerning the election of the supreme pontiff:
Ye know, most blessed and beloved fellow bishops and brothers-nor has it been hidden from the lower members also – how much adversity this apostolic chair, in which by God’s will I serve, did endure at the death of our master and predecessor, Stephen of blessed memory: to how many blows, indeed, and frequent wounds it was subjected by the traffickers in simoniacal heresy; so that the columns of the living God of the chief seemed almost to totter already, and the net of the chief fisher to be submerged, amid the swelling blasts, in the depths of shipwreck. Wherefore, if it please ye brethren, we ought prudently to take measures for future cases, and to provide for the state of the church hereafter, lest-which God forbid-the same evils may revive and prevail. Therefore, strengthened by the authority of our predecessors and of the other holy fathers, we decree and establish.

1. That, when the Pontiff of this Roman universal church dies, the cardinal bishops, after first conferring together with most diligent consideration, shall afterwards call in to themselves the cardinal clergy; and then the remaining clergy and the people shall approach and consent to the new election.

2. That-lest the disease of venality creep in through any excuse whatever-the men of the church shall be the leaders in carrying on the election of a pope, the others merely followers. And surely this order of electing will be considered right and lawful by those who, having looked through the rules or decrees of the various fathers, also take into consideration that sentence of our blessed predecessor Leo. ” No reasoning permits,” he says, ” that those should be considered as among the bishops who have neither been elected by the clergy, nor desired by the people, nor consecrated by the bishops of their province with the approval of the metropolitan.” But since the apostolic chair is elevated above all the churches of the earth, and thus can have no metropolitan over it, the cardinal bishops perform beyond a doubt the functions of that metropolitan, when, namely, they raise their chosen pope to the apex of apostolic glory.

3. They shall make their choice, moreover, from the . lap of this (Roman) church itself, if a suitable man is to be found there. But if not, one shall be chosen from another church.

4. Saving the honour and reverence due to our beloved son Henry who is at present called ‘king, and will be in the future, as it is hoped, emperor by God’s grace; according as we now have granted to him and to his successors who shall obtain this right personally from this apostolic see.

5. But, if the perversity of depraved and wicked men shall so prevail that a pure, sincere and free election can not be held in Rome, the cardinal bishops, with the clergy of the church and the catholic laity, may have the right and power, even though few in numbers, of electing a pontiff for the apostolic see wherever it may seem to them most suitable.

6. It is to be clearly understood that if, after an election has been held, a time of war, or the endeavours of any man who is prompted by the spirit of malignity, shall prevent him who has been elected from being enthroned according to custom in the apostolic chair: nevertheless he who has been elected shall, as pope, have authority to rule the Holy Roman church and to have the disposal of all its resources; as we know the blessed Gregory to have done before his consecration.

But if any one, contrary to this our decree promulgated by a synodal vote, shall, through sedition or presumption or any wile, be elected or even ordained and enthroned: by the authority of God and of the holy apostles Peter and Paul he shall be subjected, as Antichrist and invader and destroyer of all Christianity, to a perpetual anathema, being cast out from the threshold of the holy church of God, together with his instigators, favourers and followers. Nor at any time shall he be allowed a hearing in this matter, but be shall irrevocably be deposed from every ecclesiastical grade, no matter what one he had previously held. Whoever shall adhere to him or show any reverence to him, or shall presume in any way to defend him, shall be bound by a like sentence. Whoever, moreover, shall scorn the importof this our decree, and shall attempt contrary to this statute, presumptuously to confound and perturb the Roman church, shall be condemned with a perpetual anathema and excommunication and shall be considered as among the impious who do not rise at the Judgment. He shall feel against him, namely, the wrath of Almighty God, the Father, the Son and the Holy Ghost, and shall experience in this life and in the next the fury of the holy apostles Peter and Paul whose church he presumes to confound. His habitation shall be made a desert, and there shall be none to dwell in his tents. His sons shall be made orphans and his wife a widow. He shall be removed in wrath, and his sons shall go begging and shall be cast out of their habitations. The usurer shall go through all his substance and strangers shall destroy the results of his labours. The whole earth shall fight against him and all the elements oppose him ; and the merits of all the saints at rest shall confound him, and in this life shall take open vengeance against him. But the grace of Almighty God will protect those who observe this our decree, and the authority of the blessed apostles Peter and Paul will absolve them from the bonds of all their sins.

I, Nicholas, bishop of the holy Catholic and apostolic Roman church, have signed this decree promulgated by us as it stands above. I Boniface, by the grace if God bishop of of Albano, have signed. I, Humbert, bishop of the holy church of Sylva Candida, have signed. I, Peter, bishop of the church of Ostia, have signed. And other bishops to the number of 76, with priests and deacons have signed.

IMPERIAL VERSION
The beginning and the ending of the imperial version are, with the exception of a word or two, identical -with those of the papal. The differences are to be found in the numbered paragraphs. The cardinals in general and not only the cardinal-bishops are to be the prime movers in the election, and the emperor’s share in their proceedings is largely increased.

1. That, when the pontiff of this Roman church universal dies, the cardinals, after first conferring together with most diligent consideration-saving the honour and reverence due to our beloved son Henry, who is at present called king, and will be in the future, as it is hoped, emperor by God’s grace, according as we now, by the mediation of his envoy W. the chancellor of Lombardy, have. granted to him and to those of his successors who shall obtain this right personally from this apostolic see,-shall approach and consent to the new election.

2. That-lest the disease of venality creep in through any excuse whatever-the men of the church, together with our most serene son king Henry, shall be the leaders in carrying on the election of a pope, the others merely followers.

3. They shall make their choice, moreover, from the lap of this (Roman) church itself, if a suitable man is to be found there. But if not, one shall be chosen from another church.

4. But, if the perversity of depraved and wicked men shall so prevail that a pure, sincere and free election can not be held in Rome, they may have the right and power, even though few in numbers, of electing a pontiff for the apostolic see wherever it may seem to them, together with the most unconquerable king, Henry, to be most suitable. It is to be clearly understood that if, after an election has been held, a time of war, or the endeavour of any man who is prompted by the spirit of malignity, shall prevent him who has been elected from being enthroned according to custom in the apostolic chair: nevertheless he who has been elected shall, as pope, have authority to rule the holy Roman church, and to have the disposal of all its resources; as we know the blessed Gregory to have done before his consecration.

But if, etc.

Source: trans in Ernest F. Henderson, Select Historical Documents of the Middle Ages, (London: George Bell and Sons, 1910), pp. 361-364

Election of the Popes

The supreme headship of the Church is, we have seen, annexed to the office of Roman bishop. The pope becomes chief pastor because he is Bishop of Rome: he does not become Bishop of Rome because he has been chosen to be head of the universal Church. Thus, an election to the papacy is, properly speaking, primarily an election to the local bishopric. The right to elect their bishop has ever belonged to the members of the Roman Church. They possess the prerogative of giving to the universal Church her chief pastor; they do not receive their bishop in virtue of his election by the universal Church. This is not to say that the election should be by popular vote of the Romans. In ecclesiastical affairs it is always for the hierarchy to guide the decisions of the flock. The choice of a bishop belongs to the clergy: it may be confined to the leading members of the clergy. It is so in the Roman Church at present. The electoral college of cardinals exercise their office because they are the chief of the Roman clergy. Should the college of cardinals ever become extinct, the duty of choosing a supreme pastor would fall, not on the bishops assembled in council, but upon the remaining Roman clergy. At the time of the Council of Trent Pius IV, thinking it possible that in the event of his death the council might lay some claim to the right, insisted on this point in a consistorial allocution. See more on the entry about Election of the Popes here. There is also an entry on papal decrees.

Source: Catholic Encyclopedia:

Council of Rome, 1074

Gregory VII: Simony and Celibacy 1074

Church reformers in the late 11th century sought to attack what they saw as “abuses, especially simony[paying for ecclesiastical office] and clerical marriage. Both practices were condemned by a Roman council held in 1074 early in the pontificate of Pope Gregory VII (I 073 -1085)..

Those who have been advanced to any grade of holy orders, or to any office, through simony, that is, by the payment of money, shall hereafter have no right to officiate in the holy church. Those also who have secured churches by giving money shall certainly be deprived of them. And in the future it shall be illegal for anyone to buy or to sell [any ecclesiastical office, position, etc.].

Nor shall clergymen who are married say mass or serve the altar in any way. We decree also that if they refuse to obey our orders, or rather those of the holy fathers, the people shall refuse to receive their ministrations, in order that those who disregard the love of God and the dignity of their office may be brought to their senses through feeling the shame of the world and the reproof of the people.

Decree of Council at Rome 1074, [Mansi XX. P. 404], in Oliver J. Thatcher, and Edgar Holmes McNeal, eds., A Source Book for Medieval History, (New York: Scribners, 1905), pp. 134-135

Gregory VII: Dictatus Papae, 1075

Gregory VII: Dictatus Papae 1090
The Dictatus Papae was included in Pope’s register in the year 1075. Some argue that it was written by Pope Gregory VII (r. 1073-1085) himself, others argues that it had a much later different origin. In 1087 Cardinal Deusdedit published a collection of the laws of the Church which he drew from any sources. The Dictatus agrees so clearly and closely with this collection that some have argued the Dictatus must have been based on it; and so must be of a later date of compilation than 1087. There is little doubt that the principals below do express the pope’s principals.

The Dictates of the Pope
That the Roman church was founded by God alone.
That the Roman pontiff alone can with right be called universal.
That he alone can depose or reinstate bishops.
That, in a council his legate, even if a lower grade, is above all bishops, and can pass sentence of deposition against them.
That the pope may depose the absent.
That, among other things, we ought not to remain in the same house with those excommunicated by him.
That for him alone is it lawful, according to the needs of the time, to make new laws, to assemble together new congregations, to make an abbey of a canonry; and, on the other hand, to divide a rich bishopric and unite the poor ones.
That he alone may use the imperial insignia.
That of the pope alone all princes shall kiss the feet.
That his name alone shall be spoken in the churches.
That this is the only name in the world.
That it may be permitted to him to depose emperors.
That he may be permitted to transfer bishops if need be.
That he has power to ordain a clerk of any church he may wish.
That he who is ordained by him may preside over another church, but may not hold a subordinate position; and that such a one may not receive a higher grade from any bishop.
That no synod shall be called a general one without his order.
That no chapter and no book shall be considered canonical without his authority.
That a sentence passed by him may be retracted by no one; and that he himself, alone of all, may retract it.
That he himself may be judged by no one.
That no one shall dare to condemn one who appeals to the apostolic chair.
That to the latter should be referred the more important cases of every church.
That the Roman church has never erred; nor will it err to all eternity, the Scripture bearing witness.
That the Roman pontiff, if he have been canonically ordained, is undoubtedly made a saint by the merits of St. Peter; St. Ennodius, bishop of Pavia, bearing witness, and many holy fathers agreeing with him. As is contained in the decrees of St. Symmachus the pope.
That, by his command and consent, it may be lawful for subordinates to bring accusations.
That he may depose and reinstate bishops without assembling a synod.
That he who is not at peace with the Roman church shall not be considered catholic.
That he may absolve subjects from their fealty to wicked men.

Source: translated in Ernest F. Henderson, Select Historical Documents of the Middle Ages, (London: George Bell and Sons, 1910), pp. 366-367

Gregory VII: Lay Investitures Forbidden, 1074, 1080

Gregory issued a decree in 1073 forbidding prelates to receive their churches from lay rulers. The text of this decree against “lay investiture” has been lost. The following text is a reenactment of the same prohibition in 1078.

Inasmuch as we have learned that, contrary to the establishments of the holy fathers, the investiture with churches is, in many places, performed by lay persons; and that from this case many disturbances arise in the church by which the Christian religion is trodden under foot: we decree that no one of the clergy shall receive the investiture with a bishopric or abbey or church from the hand of an emperor or king or of any lay person, male or female. But if he shall presume to do so he shall clearly know that such investiture is bereft of apostolic authority, and that he himself shall lie under excommunication until fitting satisfaction shall have been rendered.

Source: translated in Ernest F. Henderson, Select Historical Documents of the Middle Ages, (London: George Bell and Sons, 1910), p. 365

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