CHAPTER XV. POPE AND CLERGY. § 122. The canon Law. Literature: Decretum Gratiani emendatum et notationibus illustratum. Una cum glossis, Gregorii XIII. Pont. Max. jussu editum, 6 vols. Rome, 1582.—Corpus juris canonici, ed. J. H. Boehmer, 2 vols. Halle 1747, with Introductions by Boehmer on Gratian’s Decretum, I. 1–42, and the later collections of decretals, II. 1–34.—Best critical ed. by A. L. Richter, 2 vols. Leip., 1839, revised ed. by E. Friedburg Leip., 1879–1881, 2 vols. (vol. I., Decret. Gratiani, vol. II., Decretalium collectiones). —J. Fr. von Schulte (Old-Cath. Prof. in Bonn): D. Gesch. der Quellen und Lit. des kanonischen Rechts von Gratian bis auf die Gegenwart, 3 vols. Stuttg., 1875–1880. —Dodd: Hist. of canon Law, Oxf., 1884. —T. Hinschius: D. Kirchenrecht d. Katholiken und Protestanten, etc., 6 vols. Berl., 1869–1897. —E. Friedberg: Lehrbuch des kath. und evangel. Kirchenrechts, 6th ed., Leip., 1903. —A. von Kirchenheim: Kirchenrecht, Bonn, 1900. —P. Hergenröther (Rom. Cath.): Lehrbuch d. kathol. Rechts, 2d. ed., Freib., 1905. —Other works by Walter, 14th ed., 1877. —Richter-Dove, 8th ed., Leip., Phillimore: The Eccles. Law of the Ch. of Engl., 2 vols. London, 1873, Supplem., 1876.—F. W. Maitland: Rom. Can. Law in the Ch. of Engl., Lond., 1898.—The artt. in Herzog, vol. X. Kanonen-Sammlungen, Kanonisches Rechtsbuch, Kirchenrecht. —Stubbs: Const. Hist. of Engl., II. 170 sqq., III. 295–388.—For extensive list of works on canon Law, see Friedberg: Kirchenrecht, pp. 3–11, and Hergenröther: Kirchenrecht, pp. 15 sqq.
Not the least of the characteristic and imposing products of the mediaeval Church was the gigantic fabric of the canon law. 1838 It is embodied in a series of collections containing enactments of Councils and papal decretals, beginning with the collection of Gratian in the twelfth century and ending with the decretals of John XXII. in the fourteenth century. The canon law became the legal buttress of the papal theocracy and remained the ruling code till the Reformation.
The science of canon law looks back to Gratian as its father, and Bologna was the chief centre for its study. Although works on the subject were produced in other lands, Italy, through her universities, was far in the lead in their production till late in the fifteenth century. 1839
Under the Roman state, the religious laws—the jus sacrum, jus pontificium — were not a distinct body of legislation . In the Christian Church the conception of a distinct and superior divine law existed from the beginning. The formulation of a written code followed the meeting of Christian synods and their regulations. As the jurisdiction of the hierarchy and the institution of the mediaeval papacy were developed, this legislation came to include civil obligations and all civil penalties except the death penalty.0 The Church encroached more and more upon the jurisdiction of the civil court. Conflict was inevitable. Not only was the independence of civil law as a distinct branch of procedure threatened, but even its very existence. It was not till the fourteenth century that the secular governments were able successfully to resist such encroachments and to regain some of the just prerogatives of which the civil courts had been robbed. "Oh, that the canon law might be purged from the superfluities of the civil law and be ordered by theology," exclaimed Roger Bacon, writing in the thirteenth century. "Then would the government of the Church be carried on honorably and suitably to its high position." 1841
Gratian’s work was preceded by the Penitential Books and a number of imperfect collections of ecclesiastical decisions, the chief of which were, two books of synodal cases by Regino d. 915, the collections of Burchard, bishop of Worms d. 1025, Anselm of Lucca d. 1086, Cardinal Deusdedit about 1087, and Ivo of Chartres d. 1117.2 The pseudo-Isidorian decretals also belong to this class and they were much used, especially by Burchard.
The work of Gratian superseded these earlier compilations, and it enjoys the honor of being the monumental work on canon law. Gratian, a Camaldulensian monk, and an Italian by birth, taught at the convent of St. Felix, Bologna, at the same time that Irnerius was teaching civil law in the same city. No details of his life have been handed down. His biography is his great compilation which was made about 1140–1150. Its original title, A Concordance of Differing canons, concordantia canonum discordantium, has given way to the simple title, Decretum, the Book of Decrees. The work was a legal encyclopaedia, and at once became the manual in its department, as the Sentences of the Lombard, Gratian’s contemporary, became the manual of theology. 1843 This recognition was not due to formal, papal, or synodal sanction, for it never received any. It was issued again and again by learned commentators, the first being one of Gratian’s pupils, Paucapalea. These editors and commentators were called Summists or Glossarists. The official Roman edition was prepared by a papal commission of thirty-five members and issued by Gregory XIII. in 1582. Gregory declared the text to be forever authoritative, but he did not pronounce upon the contents of Gratian’s work. 1844
Gratian’s aim was to produce a work in which all real or apparent contradictions between customs and regulations in vogue in the Church should be removed or explained. This he secured by exclusion and by comments, called the dicta Gratiani, sayings of Gratian. The work is divided into three parts. The first, in one hundred and one sections or distinctiones, treats of the sources of canon law, councils and the mode of their convention, the authority of decretals, the election of the Roman pontiff, the election and consecration of bishops, the papal prerogative, papal legates, the ordination of the clergy, clerical celibacy, and kindred topics. The second, in thirty-six sections or causae, discusses different questions of procedure, such as the ordination and trial of bishops and the lower clergy, excommunication, simony, clerical and church property, marriage, heresy, magic, and penance. The third part is devoted to the sacraments of the eucharist and baptism and the consecration of churches. The scholastic method is pursued. A statement is made and objections, if any, are then formally refuted by citation of synodal acts and the testimony of the Fathers, popes, and other churchmen. The first distinction opens with the statement that the human race is governed by two principles, natural law and customs. Then a number of questions are propounded such as what is law, what are customs, what kinds of law there are, what is natural law, civil law, and the law of nations?
Gratian’s volume was soon found to require supplement. The two centuries following its appearance were most fruitful in papal decrees, especially in the pontificates of Alexander III., Innocent III., and Gregory IX. These centuries also witnessed the Lateran and other important Councils. The deliverances of popes and synods, made subsequently to the age of Gratian, were called extravagantes or fugitives.5 Five compilations, called "the old compilations," were made from 1191 to 1226. 1846 The third of these, issued by authority of Innocent III. and containing his decretals, was sent by that pontiff to the university of Bologna to be included in its course of instruction. This compilation was the first book of canon law having papal sanction.
The demand for a complete collection of these materials induced Gregory IX. to commit the task of gathering them into a single volume to his chaplain Raymund de Pennaforte. 1847 The work, usually called Decretales Gregorii IX, was finished and sent to Paris and Bologna in 1234 with the direction that it be used for purposes of instruction, and in the trial of cases. The preparation of other compilations was strictly forbidden. Gregory’s collection comprises 185 titles and 1871 decretals and follows the fivefold division of Bernard of Pavia’s work. 1848
A new collection, called the Sixth Book, liber sextus — or, as by English writers, the Sext,—was issued by the authority of Boniface VIII., 1298, and carried the collections of Gratian and Gregory IX. into Boniface’s reign. In 1314, Clement V. issued another collection, which included his own decretals and the decrees of the council of Vienne and was called the Seventh Book, liber septimus, or the Clementines. In 1317, John XXII. officially sent Clement’s collection to the universities of Bologna and Paris. Subsequent to the publication of the Clementines, twenty of John’s own decretals were added. In 1500 John Chappuis, in an edition of the liber sextus and the Clementines, added the decretals of John and seventy-one of other popes. This series of collections, namely, Gratian’s Decretum, Gregory IX,’s Decretales, the Sext, the Clementines, and the Extravagantes of John XXII., constitutes the official body of canon law—corpus juris canonici — and was published in the edition of Gregory XllI.
The canon law attempted the task of legislating in detail for all phases of human life—clerical, ecclesiastical, social, domestic—from the cradle to the grave by the sacramental decisions of the priesthood. It invaded the realm of the common law and threatened to completely set it aside. The Church had not only its own code and its specifically religious penalties, but also its own prisons.
This body of law was an improvement upon the arbitrary and barbaric severity of princes. It, at least, started out from the principles of justice and humanity. But it degenerated into an attempt to do for the individual action of the Christian world what the Pharisees attempted to do for Jewish life. It made the huge mistake of substituting an endless number of enactments, often the inventions of casuistry, for inclusive, comprehensive moral principles. It put a crushing restraint upon the progress of thought and bound weights, heavy to be borne, upon the necks of men. It had the virtues and all the vices of the papal system. It protected the clergy in the commission of crimes by demanding that they be tried in ecclesiastical courts for all offences whatsoever. It became a mighty support for the papal claims. It confirmed and perpetuated the fiction of the pseudo-Isidorian decretals and perpetrated new forgeries. It taught that the decisions of Rome are final.9 As Christ is above the law, even so is the pope. 1850 Döllinger closes his examination of the Decretum, by pronouncing it; "filled through and through with forgery and error" and says "it entered like a mighty wedge into the older structural organization of the Church and split it apart. "
The canon law also gave its sanction to the devilish principle of ecclesiastical compulsion, declaring that physical force is to be used to coerce ecclesiastical dissidents. It justified wars against the enemies of religion and the persecution of heretics, even as Sarah, the type of the heavenly Jerusalem, persecuted her handmaid Hagar. And it declared, with Urban II., that he who kills one who is under the sentence of excommunication is not to be dealt with as a murderer. 1851 These principles, set forth in clear statements, were advocated by Thomas Aquinas and the other Schoolmen and asserted by the greatest of the popes.
At last the legalistic tyranny became too heavy for the enlightened conscience of Europe to bear, as was the case with the ceremonial law in the days of the Apostles, against which Peter protested at the council of Jerusalem and Paul in his Epistles. The Reformers raised their voices in protest against it. Into the same flames which consumed the papal bull at Wittenberg, 1520, Luther threw a copy of the canon law, the one representing the effrontery of an infallible pope, the other the intolerable arrogance of a human lawgiver in matters of religion, and both destructive of the liberty of the individual. In his Address to the Christian Nobles, Luther declared that it did not contain two lines adapted to instruct a religious man and that it includes so many dangerous regulations that the best disposition of it is to make of it a dung heap.
Even in the Catholic world its enactments have been largely superseded by the canons of the council of Trent, the papal decretals issued since, and the concordats between Catholic princes and the papal see. By virtue of his official infallibility, the pope may at any time supersede them by decisions and dispensations of his own.
The words of Goethe may be applied to the canon law:—
Es erben sich Gesetz und Rechte
Vernunft wird Unsinn, Wohlthat Plage. § 123. The Papal Supremacy in Church and State. Literature: See the chapp. on Gregory VII. and Innocent III., and the works there cited.—Bernard: de consideratione, Migne, 182. 727–808.—Th. Aquinas: de regimine principum, and contra errores Graecorum. The latter ed. by *F. H. Reusch, d. 1900: D. Fälschungen in d. Tractat. d. Th. v Aq. gegen die Griechen, Munich, 1889.—The writings of Gregory VII., Alexander III., Innocent III., Gregory IX., etc. Corpus juris canonum, Friedberg’s ed.—*Mirbt: Quellen des Papstthums. —C. Lux: Constitutionum Apostolicarum de generali beneficiorum reservatione, 1265–1378, ... collectio et interpr., Wratislav, 1904.—Maassen: Primat des Bischofs von Rom, Bonn, 1853.—Schulte: D. Macht des röm. Papstthums, Prag, 2d ed., 1871,—*Döllinger-Friedrich: D. Papstthum, Munich, 1892.—*F. X. Leitner: D. hl. Th. von Aquino ueber d. unfehlbare Lehramt d. Papstes, Franf., 1872. Leitner wrote in opposition to Döllinger, and his work is of much importance,—*Bryce: Holy Rom. Emp., VI-XI.—G. B. Adams: Civilizat. during the M. A. chap. X.—W. Barry: The Papal Monarchy, 590–1303, N. Y., 1902. —*J. Haller: Papsttum und Kirchenreform, Berlin, 1903.—*A. Hauck: D. Gedanke der päpstl. Weltherrschaft bis auf Bonifaz VIII., Leip., 1904.—Ranke: Weltgesch., vol. VI.—Harnack: Dogmengesch., II. 392–419. The manuals on Canon Law by Friedberg, Hinschius, Hergenröther.
The papal assumptions of Gregory VII. and Innocent III. have already been presented (pp. 27 sqq., 152 sqq.). A large part of the history of this period is occupied by popes in the effort to realize the papal theocracy, from the opening struggle of Gregory VII. with Henry IV. to the death of Conradin, the Hohenstaufen. Their most vigorous utterances, so far as they are known, were not to summon men and nations to acts of Christian charity, but to enforce the papal jurisdiction. It is not the purpose here to repeat what has already been said, but to set forth the institution of the papacy as a realized fact and the estimate put upon it by Schoolmen and by the popular judgment.
Among the forty-one popes who occupied the chair of St. Peter from Gregory VII. to Boniface VIII., some, as has become evident, were men of rare ability, and occupy a place of first prominence as rulers. There were no scandals in the papal household such as there had been during the preceding period. No emperors from the North were required to descend upon Rome and remove pontiffs incompetent by reason of youth or profligacy. On the other hand, Rome had no reputation as a centre either of piety or of letters. Convents became noted for religious warmth, and Bologna, Paris, and other localities acquired a fame for intellectual culture, but Rome’s reputation was based solely upon her authority as a seat of ecclesiastical prerogative.
The sin of the popes was hierarchical pride, and yet we cannot help but be attracted by those imposing figures whose ideals of universal dominion equalled in ambition the boldest projects of the greater Roman emperors, but differed widely from theirs in the moral element which entered into them. 1852
In this period the loftiest claims ever made for the papacy were realized in Western Europe. The pope was recognized as supreme in the Church over all bishops, and with some exceptions as the supreme ruler in temporal affairs. Protest there was against the application of both prerogatives, but the general sentiment of Europe supported the claims. To him belonged fulness of authority in both realms—plenitudo potestatis.
The Pope and the Church. – favorite illustration used by Innocent III. to support the claim of supremacy in the Church was drawn from the relation the head sustains to the body. As the head contains the plenitude of the forces of the body, and has dominion over it, so Peter’s successor, as the head of the Church, possesses the fulness of her prerogatives and the right of rule over her. The pope calls others to share in the care of the Church, but in such a way that there is no loss of authority to the head.3 Innocent II., in opening the second Lateran Council, had used the same figure, and declared that no ecclesiastical dignity was lawfully held except by permission of the Roman pontiff. According to Gregory VII., he can depose and appoint bishops as he wills. The principle that the Apostolic see is subject to no human jurisdiction, stated by Gelasius, 493, was accepted by Bernard, though Bernard protested against the pope’s making his arbitrary will the law of the Church. 1854 The Roman church, said Lanfranc, 1072, is, as it were, the sum of all churches, and all other churches are, as it were, parts of it. The arrangement of all church matters is only authoritative when approved by Peter’s successors. 1855
The Fourth Lateran formally pronounced the Roman Church the mother and teacher of all believers, and declared its bishop to be above the patriarchs of Constantinople, Jerusalem, Antioch, and Alexandria in rank and authority. Leo IX., d. 1054, asserted this pretension against Caerularius, the patriarch of Constantinople.6 Innocent III. vindicated it by substituting a Latin patriarch for the Greek patriarch in that venerable see. The second council of Lyons, 1274, demanded that the Greeks should sign a document acknowledging the "full primacy" of the Roman pontiff and his right to rule over the universal Church.
This theory of papal absolutism found full theological and canonical recognition from Thomas Aquinas and Gratian. Gratian declared that to disobey the pope is to disobey God. 1857 Thomas reasoned that, as the bishop is head of a diocese, so there must of necessity be a supreme head uniting all dioceses and guaranteeing pure morals and teaching within the Church. The Church triumphant has one ruler, so also must the Church militant have one ruler, the pope. To the pope is committed the plenitude of power and the prelacy over the whole Church. To him belongs the right of determining what are matters of faith. 1858
Bonaventura took the same ground. The pope is supreme in all matters pertaining to the Church. He is the source of authority in all that belongs to prelatic administration, yea his authority extends from the highest to the humblest member of the Church.9 Great bishops might have their disputes with the Apostolic see, but, in the end, they yielded to its claim of supreme jurisdiction. So it was with Robert Grosseteste, bishop of Lincoln. He declared, "I know and know full well, that our lord, the pope, has authority to freely act concerning all ecclesiastical benefices." 1860
Clement IV. was simply expressing the general opinion of Latin Christendom, when he claimed for the Roman pontiff the "full right to dispose of all churches, ecclesiastical dignities, positions, and benefices."1
Theoretically it is a disputed point whether an oecumenical council or the pope was regarded as supreme. But, in fact, popes controlled the legislation of the general Councils in this period as though they were supreme, and they fixed the legislation of the Church, as was the case with Gregory IX. The relative authority of pope and council did not become an urgent question till the thirteenth century.
The pope also claimed the right to levy taxes at will on all portions of the Church. This claim, definitely made by the popes of the second half of the thirteenth century, led to the scandalous abuses of the fourteenth century which shocked the moral sense of Christendom and finally called forth the Reformatory Councils of Pisa, Constance, and Basel.
Beginning with Innocent III., it became the fixed custom for the pope to speak of himself as the vicar of Christ and the vicar of God. He was henceforth exclusively addressed as "holiness" or "most holy"—sanctitas or sanctissimus.2
The Pope and the Individual. – For Cyprian’s motto, "there is no salvation outside of the Church," was substituted, there is no salvation outside of the Roman Church. It was distinctly stated that all who refuse subjection to the pope are heretics.3 From the pope’s authority to loose and bind no human being is exempted. Nothing is exempted from his jurisdiction. 1864
The Pope and the State. – England, Poland, Norway, and Sweden, Portugal, Aragon, Naples, Sardinia, Corsica, and Sicily, not to speak of portions of Central Italy, were in this period, for a longer or shorter time, fiefs of the Apostolic see. In 1299, the same claim was made over Scotland. The nations from Edessa to Scotland and from Castile to Riga were reminded that Rome was the throbbing centre of divinely bequeathed authority. The islands of the West were its to bestow. To Peter was given, so Innocent wrote, not only the universal Church, but the whole earth that he might rule it.5 His practice, as we have seen, followed his pen. There was a time when the pope recognized the superior authority of the emperor, as did Gregory the Great in 593. 1866 Peter Damiani, writing in the age of Gregory VII., recognized the distinction and coordination of the two swords and the two realms. 1867 But another conception took its place, the subordination of all civil authority under the pope. To depose princes, to absolve subjects from allegiance, to actively foment rebellion as against Frederick II., to divert lands as in Southern France, to give away crowns, to extort by threat of the severest ecclesiastical penalties the payment of tribute, to punish religious dissenters with perpetual imprisonment or turn them over to the secular authorities, knowing death would be the punishment, to send and consecrate crusading armies, and to invade the realm of the civil court, usurp its authority, and annul a nation’s code, as in the case of Magna Charta,—these were the high prerogatives actually exercised by the papacy. The decision rendered on the field of Roncaglia by the jurists of Bologna, asserting the independent rights of the empire, was only an episode, and popes snapped their fingers at the academic impertinence. Now and then the wearers of the tiara were defeated, but they never ceased to insist upon the divine claims of their office. In vain did emperors, like Frederick II., appeal to the Scriptures as giving no countenance to the principle that popes have the right to punish kings and deprive them of their kingdoms.
The declarations of the popes were clear and positive. The figures employed by Gregory VII., comparing the two realms to gold and lead, sun and moon, soul and body, Innocent elaborated and pressed. Gregory asserted that it rested upon him to give account for all the kingdoms of God. 1868 To him had been committed universal dominion—regimen universale. 1869Innocent III. found in Melchizedek, the priest-king, the full type of the pope combining in himself the sacerdotal and regal functions.