677 



CANON LAW. 



CANON LAW. 



578 



augmentation. The canon Jtecte et Retro has but one peculiarity, and 

 pretends to only one merit, namely, that it may be sung either for- 

 wards or backwards. And here we cannot forbear expressing a regret 

 that any composer of real talent should have exposed himself to the 

 mechanical drudgery of generating such ungrateful offspring as canons, 

 except those in the unison. In schools, as exercises for youth, they 

 may be of some use ; but even there, if much importance should be 

 attached to them, the imagination of the student will be in danger of 

 being chilled, and his taste depraved. To reduce art to such rule as 

 canon imposes, is preposterous, for it is impossible to name a single 

 composition of the kind that might not have been improved by a breach 

 of the laws laid down for its formation. Canons in music are what 

 acrostics and bouts-rimes are in poetry. Good sense now disdains such 

 laborious trifling in literature ; let us hope that it will soon prove as 

 influential in the sister-art. 



CANON LAW (adopted from the Greek word KOV&V, signifying a 

 rule,) a collection of ecclesiastical constitutions for the regulation of 

 the polity and discipline of the Church of Rome, consisting for the most 

 part of ordinances of oecumenical or general and provincial councils, 

 decrees promulgated by the popes with the sanction of the cardinals, 

 and decretal epistles and bulls of the popes. The origin of the canon 

 law is said to be coeval with the establishment of Christianity under 

 the apostles and their immediate successors, who are supposed to have 

 framed certain rules or canons for the government of the church. 

 These are called the apostolical canons ; and they are said to have 

 been drawn up by Clement, bishop of Rome, A.D. 93 : they did not, 

 however, appear till the 3rd century, and are now generally treated as 

 the production of that age. 



These rules were subsequently enlarged and explained by general 

 councils of the church. The canons of the four councils of, Nice, 

 Constantinople, Ephesus, and Chalcedon (which were held at different 

 times in the 4th and 5th centuries), received the sanction of the 

 secular power by a law of the Emperor Justinian. (Novel. 131, cap. 1.) 

 The chapter referred to, after confirming the decrees of the four 

 councils, adds, " we receive the doctrines of the aforesaid holy synods 

 (that is, councils) as the divine Scriptures, and their canons we observe 

 as laws." Collections of these canons were made at an early period. 

 The most remarkable of these collections, and that which seems to 

 have been most generally received, is the Codex Canonum which was 

 compiled by Dionysius Exiguus, a Roman monk, A.D. 520. This body 

 of constitutions, together with the capitularies of Charlemagne and 

 the decrees of the popes from Siricius (A.D. 398) to Anastasius IV. 

 (A.D. 1154), formed the principal part of the canon law until the 

 12th century. The power of the popes was then rapidly advancing to 

 the height which it afterwards attained, and their jurisdiction being 

 constantly extended by new encroachments, required a uniform system 

 of law for the regulation of their decisions. 



This necessity excited the active zeal of the monkish lawyers. After 

 some minor compilations had appeared, a collection of the decrees 

 made by the popes and cardinals was begun by Ivo, bishop of Chartres, 

 in 1114, and perfected by Oratian, a Benedictine monk, in the year 

 1150, who first reduced these ecclesiastical constitutions into method. 

 The work of Oratian is in three books, arranged and digested into 

 titles and chapters in imitation of the Pandects of Justinian, and is 

 entitled 'Concordia discordantium Canonum,' but it is commonly 

 known by the name of ' Decretum Gratiani.' It comprises a series of 

 canons and other ecclesiastical constitutions from the time of Con- 

 stantine the Great, at the beginning of the 4th, to that of Pope Alex- 

 ander 1 1 1., at the end of the 12th century. The Decretals, which were 

 rescripts or letters of the popes in answer to questions of ecclesiastical 

 matters submitted to them by private persons, and which had the 

 authority of laws, were first published in 1234, hi five books, by Rai- 

 mond de Renafort, chaplain to Pope Gregory IX. This work, which 

 consists almost entirely of rescripts issued by the later popes, especially 

 Alexander III., Innocent III., Honorius III., and Gregory IX. himself, 

 forms the most essential part of the canon law, the Decretum of 

 Gratian being comparatively obsolete. These decretals comprise all 

 the subjects which were in that age within the cognisance of the 

 ecclesiastical courts, as the lives and conversation of the clergy, 

 matrimony and divorces, inquisition of criminal matters, purgation, 

 penance, excommunication, and the like. To these five books of 

 Grtgory, Boniface VIII. added a sixth (in 1298), called ' Sextus Decre- 

 talium,' or the ' Sext,' which is itself divided into five books, and forms a 

 supplement to the first five books, of which it follows the arrangement. 

 The Sext consists of decisions promulgated after the pontificate of 

 Gregory IX. The Clementines, or Constitutions of Clement V., were 

 published by him in the council of Vienna (in 1308), and were fol- 

 lowed (in 1317) by those of his successor, John XXII., called 'Extrava- 

 gantes Johannis. To these have since been added some decrees of 

 later popes, arranged in five books after the manner of the ' Sext/ and 

 called ' Extravagantes Communes." All these together, namely, Gra- 

 tian's Decree, the Decretals of Gregory IX., the Sext, the Clementines, 

 and the Extravagant* of John XXII. and bis successors, form what is 

 called the Corpus Juris Canonici, or body of canon law. Besides these 

 the institutes of the canon law were compiled by one John Launcelot, 

 by order of Paul IV., in the 16th century ; but it appears from the 

 author's preface, that they were never publicly acknowledged by the 

 pope*. And in 1661 was published a collection of the decretals of 



AHTS AKD 801. DIT. VOL. II. 



different councils, which is to be found in some editions of the Corpus 

 Juris Canonici, but this likewise has never received the sanction of the 

 Holy See. It is to be remarked that the canons of the Roman or 

 Latin churches were never received by the Eastern or Greek Church. 



The introduction of this new code into the European commonwealth 

 gave rise to a new class of practitioners, commentators, and judges, 

 almost as numerous as those who had devoted themselves to the study 

 and exposition of the civil law, from which, as from an analogous 

 system of jurisprudence, they looked for aid in all cases of difficulty 

 and doubt. In fact, the two systems of law, though to a certain extent 

 rivals, became so far mutually entwined, that the tribunals of the one 

 were accustomed, wherever their own oracles were silent, to adopt the 

 rules of decision that prevailed in those of the other ; thus it became 

 customary for those practising before those tribunals, to assume the 

 degree of " Doctor utriusque juris." 



The main object of the canon law was to establish, by means of the 

 legislative authority of the pope, the supremacy of ecclesiastical 

 authority over the temporal power, or at least to assert the total 

 independence of the clergy upon the laity. The positions, that the 

 laws of laymen cannot bind the church to its prejudice, that the con- 

 stitutions of princes in relation to ecclesiastical matters are of no 

 authority, that subjects owe no allegiance to an excommunicated 

 lord, are among the most prominent doctrines of Gratian's Decretum 

 and the decretals ; but the constitutions of Clarendon, promulgated by 

 Henry II., to curb the arrogance of 'A Becket, put an end in England 

 to the claims of the clergy to exemption from secular jurisdiction. 

 We have shown in a former article [BENEFICE] that the encroachments 

 of the church upon temporal rights and authorities were never encou- 

 raged in England. The doctrines of passive obedience and non-resist- 

 ance, so slavishly inculcated by the Decretals, were not likely to be 

 relished by the rude and fierce barons who composed the parliaments 

 of Henry II., Henry III., and Edward I. Accordingly we find that 

 this system of jurisprudence never obtained a firm or extensive footing 

 in this country : and our most eminent lawyers, in all periods of our 

 history, have shown great unwillingness to defer to its authority. It 

 is well observed by Blackstone (' Com." i. p. 80), that " all the strength 

 that either the papal or imperial laws have obtained in this realm is 

 only because they have been admitted and received by immemorial 

 usage and custom in some particular cases and some particular courts ; 

 and then they form a branch of the leges non scriptce, or customary 

 laws ; or else, because they are in some other cases introduced by 

 consent of parliament, and then they owe their validity to the leges 

 scripts, or statute law." There was indeed a kind of national canon 

 law, composed of legatine and provincial constitutions, adapted to the 

 exigences of the English Church. Of these the former were ecclesi- 

 astical laws enacted in national synods held under the cardinals Otho 

 and Othobon, legates from Pope Gregory IX. and Clement IV., in the 

 reign of Henry III. The provincial constitutions were the decrees of 

 provincial synods held under divers archbishops of Canterbury, from 

 Stephen Langton, hi the reign of Henry III., to Henry Chichele, in 

 the reign of Henry V., and adopted also by the province of York in 

 the reign of Henry VI. (Blackstone, ' Com.' i. p. 83 ; Burn's ' Eccl. 

 Law,' preface.) 



Previous to the Reformation, the metropolitan of each province had 

 the power of making in convocation such canons as received its sanction ; 

 but when the king became the head of the church, it was enacted (25 

 Hen. VIII. c. 19), that no constitutions or ordinances, provincial or 

 synodal, or any other canons, should be made or promulgated by the 

 clergy without the king's assent and licence (this proviso stands unre- 

 pealed, it is therefore not competent to convocation to enact canons 

 independent of the sovereign's permission). The same statute (repealed 

 by 1 Philip & Mary, c. 8, but revived by 1 Eliz. c. 1) also provided that 

 such canons, &c., as had theretofore been made by the clergy of the 

 realm, should be reviewed by the king and certain commissioners to 

 be appointed under the act, but that, tUl such review should be made, 

 all canons, constitutions, ordinances, and synodals provincial, being 

 then already made and not repugnant to the law of the land or 

 the king's prerogative, should still be used and executed. No such 

 review took place in Henry's time ; but the project for the reformation 

 of the canons was revived under Edward VI., and a new code of eccle- 

 siastical law was drawn up under a commission appointed by the crown 

 under the stat. 3 & 4 Edward VI. c. 11, and received the name of 

 Reformatio Legum Ecclesiasticarum ; but the confirmation of-this was 

 prevented by the premature death of the king. 



In 1571, a Latin copy of the Reformatio Legum Ecclesiasticarum 

 was produced in parliament as the model for a code of canon law. It 

 was resolved that it should be translated into English, and referred to 

 a conference of members of the house to be had with the bishops, for 

 the purpose of reforming the ecclesiastical laws, and considering the 

 articles of religion. Archbishop Parker, however, objected to it as 

 omitting the Homilies, and containing no form for the consecration of 

 bishops, and claimed for himself and the bishops, without the inter- 

 vention of parliament, the sole right to judge of and determine the 

 matter. Some warm discussion took place between him and one of 

 the members of the conference (Wentworth), but the matter was 

 allowed to drop, and the Reformatio Legum Ecclesiasticarum remains 

 only as historically illustrating the principles which .actuated the early 

 reformers ; but although of no legal authority it is, as observed by 



