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 THE CANON LAW
 
 A descriplion oj the Frontispiece will he found on page 167. 
 
 Both the Jllustyations in this Book are taken frotn the famous 
 MS. of Gratian in the Library of Madrid.
 
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 ^:§^i-fa'ii.i^S':
 
 THE CANON LAW 
 
 BY 
 
 THE REVEREND R. S. MYLNE 
 
 B.C.L. OxON ; F.S.A. London; F.R.S. Edin. 
 
 MSMEER AND MEDALLIST OF THE ARCH,COLOGICAL SOCIETY OF FRANCE 
 FELIOW OF THE ACADEMY OF S. LUKE, ROME 
 
 WITH A 
 
 PREFACE 
 
 BY 
 
 J. MAITLAND THOMSON, LL.D. 
 
 SOMETIME CURATOR OF THE HISTORICAL MSS. OF SCOTLAND 
 
 MORRISON & GIBB LIMITED 
 1912
 
 Table of Contents 
 
 Preface 
 
 FAGK 
 
 ix-xxiv 
 
 CHAPTER I 
 
 The Origin of the Canon Law 
 
 CHAPTER n 
 
 Decretum Gratiani . 
 
 32 
 
 CHAPTER III 
 
 DeCRETALIA GREGORII IX. 
 
 (Books I., II., III.) 
 
 34 
 
 CHAPTER IV 
 
 DECRETALIA GREGORII IX. 
 
 (Books IV., V.) 
 
 76
 
 VIU 
 
 TABLE OF CONTENTS 
 
 CHAPTER V 
 The Canon Law of England 
 
 CHAPTER VI 
 
 The Ecclesiastical Courts . 
 
 "5 
 
 CHAPTER VII 
 
 Patronage 
 
 144 
 
 APPENDIX 
 The Distribution of Ancient MSS. of the Canon Law . 161 
 
 Index 
 
 • I 
 
 199 
 
 The Distribution of 250 Copies of this Book 
 
 306
 
 PREFACE 
 
 It has come to be an accepted maxim in our day that 
 
 history is a science, of which, as of other sciences, sound 
 
 and satisfactory knowledge cannot be obtained from 
 
 text-books alone ; as the facts of physiology, so the 
 
 sources of history, must be studied at first hand. That 
 
 English history must be read in the Statute Book has 
 
 grown to be a truism. The Corpus Juris Canonici is not 
 
 only the statute book of medieval Church history ; it is 
 
 also a primary document for social history. " There can 
 
 be very little doubt that the Canon Law was one of the 
 
 great factors of European civilisation in the Middle 
 
 Ages," so Lord Eraser wrote two generations ago ; the 
 
 modern man's difficulty would be to see where the 
 
 " little doubt " comes in. I think, therefore, that Mr. 
 
 Mylne does the State good service in imparting to " us 
 
 others " a litde of his own learning on this subject, and 
 
 (in his Appendix) bringing before us the very form and 
 
 colour of the tomes in which our ancestors studied it. 
 
 And I am very sensible of the honour he has done me 
 
 in inviting me to contribute a short preface to his book. 
 h 
 
 IX
 
 X PREFACE 
 
 What I shall say refers chiefly to the history of Canon 
 Law in my own country, Scotland. 
 
 With regard to the authority of Canon Law in 
 England and Scotland, it is certain that in neither 
 country was it administered in its entirety ; it could 
 hardly be so in any State not under the direct rule of the 
 Pope. Another truism is that, in the main, the reason 
 for this was the action of the State courts limiting the 
 scope of the jurisdiction of the courts of the Church. In 
 the controversy which has arisen as to the function ot 
 the National Church in this matter, our author has, I 
 think, done well to point out how narrow the limits 
 are within which difference of opinion is possible, 
 when we find Professor F. W. Maitland admitting the 
 existence of special customs having the force of law 
 within the national area, and Bishop Stubbs writing in 
 his Constitutional History, after specifying the sources of 
 general and local Canon Law, "all these were regarded 
 as binding on the faithful within their sphere of 
 operation, and, except where they came into collision 
 with the rights of the Crown, common law, or statute, 
 they were recognised as authoritative in ecclesiastical pro- 
 cedure." For Scotland, Bishop Dowden, in his monu- 
 mental work, speaking of provincial synods and legatine 
 councils, writes thus : " The laws and constitutions 
 enacted at such synods or councils are sometimes no 
 more than promulgations of canons already recognised, 
 but more often they are of the nature of working bye- 
 laws, adapting general principles to the requirements of
 
 PREFACE xi 
 
 the time and place." Set this alongside of the doctrine 
 stated in our standard authorities, that the synodal 
 statutes are the Canon Law of Scotland, and the contrast 
 is startling. But as a deduction from modern decisions, 
 the latter statement is accurate. One is reminded of 
 Professor Maitland's dictum : " A lawyer must be 
 orthodox, otherwise he is no lawyer ; an orthodox history 
 seems to me a contradiction in terms." But even had 
 the local legislation been much more intrinsically import- 
 ant than it was, we should still have to recognise that 
 when we think of Canon Law as a force making for 
 civilisation, it is not of local regulations we are thinking, 
 but of the jus coiiwnme, extra-national and endeavouring 
 to be extra-mundane. It was not diS jus cleri that it was 
 so potent a force, but a.sjuspoli (see p. 131 of this book). 
 And its force was both greater and more beneficent in 
 Scotland than in England. For in the south at an early 
 date justice was centralised and the municipal law taught 
 and studied as a system ; north of the Tweed that was 
 not so. The conditions there resembled more those 
 which prevailed in Germany, and paved the way there 
 for the " reception " of the civil law. 
 
 In England the influence of Canon Law upon 
 common law is admitted to have been considerable in 
 early times. Again, to quote Professor Maitland : " A 
 class of professional canonists is older than a class of 
 men professionally expert in English temporal law, and 
 the secular courts adopted many suggestions from with- 
 out." Moreover, for a long time the king's justices were
 
 xii PREFACE 
 
 churchmen and canonists, and their influence has power- 
 fully affected not only the principles but also the forms 
 of common law procedure (Pollock and Maitland, History 
 of English Law, i. 131 f). But these statements are 
 limited to the period before Edward i. In Scotland in 
 those days there was no body of learned lawyers, and 
 the justiciaries were, so far as can be inferred from the 
 records, generally laymen. Since the days of Saint 
 Marofaret there has never been a time when the lesser 
 kingdom has not been more or less powerfully influenced 
 by the greater ; but in no century before the nineteenth 
 was that influence so completely predominant as in the 
 thirteenth. At that period, then, the Canon Law influ- 
 enced Scotland mainly as a result of its influence in 
 England. But the want of a metropolitan made con- 
 stant recourse to Rome on all occasions a necessity ; 
 and, as will appear further on, the weakness of our 
 central power and of our legal profession made it im- 
 possible for them to vindicate for the king's courts 
 the whole extent of the jurisdiction which the English 
 king's courts successfully maintained against the 
 claims of the courts Christian. Among the results of 
 the wars of independence was the eclipse, though not the 
 disappearance, of the influence of England ; but Scotland 
 was not yet provided either with a strong government 
 nor with that tranquillity which is necessary to the growth 
 of legal or any other learning. Hence there was more 
 place for the canonist than ever ; of conflicts with Rome, 
 save over matters financial, no more is heard: "Scot-
 
 PREFACE xiii 
 
 land, though remote in^ place, "'had probably a closer 
 connexion with Rome than any other country in Christ- 
 endom, outside the ' Patrimony of St. Peter,' and was 
 thrown into particularly intimate relations with the Holy 
 See " (see Medieval Church in Scotland, p. 224). Of the 
 causes which at last alienated Scotland from the Pope, 
 it is, happily, unnecessary to say anything here. But it 
 was the influence, once more predominant, of a now anti- 
 papal England that made the final rupture possible. 
 
 This dependence of Scotland upon England is very 
 conspicuous when we come to the special customs recog- 
 nised in each country. In ritual, the " Sarum Use" is 
 believed to have been universal in Scotland till partially 
 superseded by the Aberdeen Breviary, itself only differ- 
 ing from its predecessor in matters of detail. The rule 
 which prescribes two godfathers and one godmother at 
 baptism for each boy, one godfather and two godmothers 
 for each girl, was laid down as the legal maximum for 
 the diocese of Exeter in 1287, and for that of Aberdeen 
 at an unknown date in the thirteenth century ; in the 
 town of Aberdeen, as the Registers show, this practice 
 continued for some years after the Reformation, and 
 it is still the rule throughout the Anglican Church. 
 The two customs specially mentioned and approved by 
 Lyndwood (see Canon Laiv in the Church of England, 
 p. 42) are that which makes parishioners responsible for 
 the upkeep of the nave of their parish church, and that 
 which assigns to the spiritual courts an exclusive juris- 
 diction in testamentary causes. Both of them obtained
 
 xiv PREFACE 
 
 in Scotland also. Another custom, by no means to be 
 approved of by any churchman, was that which per- 
 mitted the king to seize the moveable estates of deceased 
 bishops. This was in existence in England in King- 
 Stephen's days, and was practised for long afterwards 
 on the estates of such bishops as died intestate {History 
 of English Law, i. 519) ; but by the time of Edward i. 
 it seems to have gone out. That monarch refers to it 
 as the custom of Scotland. In that belated country, 
 though formally renounced by David 11. in full parlia- 
 ment, it revived, and was not finally abolished till 1450. 
 Another custom, that which gave to the king the advow- 
 son, sede vacante, of all livings in the bishop's gift was 
 early and easily established in England, where advow- 
 sons were by law temporal property, and cognisable by 
 the secular courts. In Scotland, where they were within 
 the jurisdiction of the courts of Christianity, the question 
 was not so simple. Not until the clergy had solemnly 
 in two successive provincial councils declared that the 
 king possessed the privilege, " by ancient and primitive 
 use," was the point definitely yielded by the Curia. 
 
 The particular points at which the law of the Church 
 had free scope in Scotland, while it was excluded in 
 England by the action of the common law courts, are 
 not numerous, and a few words may be said about each 
 of them. 
 
 I. As already noticed, advowsons were by English 
 law temporal property ; by Scottish law they were intej' 
 sacra, and causes relating to them went before the
 
 PREFACE XV 
 
 ecclesiastical courts. This, for England, was already 
 settled when Glanvill wrote. In Scotland there was a 
 prolonged contest. Under William the Lion a deter- 
 mined effort was made to introduce the English practice 
 {^Medieval Church in Scotland, p. 211). Ale.xander 11. 
 appears to have acquiesced in the claim of the Church. 
 But after his death the guardians of his youthful suc- 
 cessor not only changed the practice as to advowsons, 
 but also endeavoured to bring church lands, which in 
 Scodand were almost all held in " frankalmoign, " under 
 the burdens to which most of the English church lands 
 were subject ; they had claimed even tithes as within 
 the temporal sphere, and had deprived churchmen of 
 their privi/egium fori in real and to a large extent also 
 in personal actions. Innocent iv., pope and canonist, 
 in I 25 1 issued a commission to three English bishops to 
 deal severely with the offenders {Statuta Ecclesice Scot- 
 icancc, ii. 242 ff.). The result is not recorded ; but the 
 Bull not obscurely hints that the leaders of the move- 
 ment were churchmen, and a churchman resisting papal 
 authority found his position logically untenable. The 
 question of advowsons crops up again in 1273 {^Medieval 
 Church in Scotland, p. 212). But in our earliest law 
 book, the Regiam Majestatem, a rough adaptation of 
 Glanvill to Scottish practice, which appears to belong to 
 the fourteenth century, where Glanvill wrote : " In curia 
 domini regis habent ista tractari et terminari . . . placi- 
 tum de advocationibus ecclesiarum ; " we find this substi- 
 tuted : " Jus patronatus pertinet ad forum ecclesiasticum "
 
 svi PREFACE 
 
 (see p. 50). And such references to the subject as 
 occur in our early law reports show the civil court 
 simply enforcing the decreets of the court Christian. 
 
 2. In England a child born before the marriage of 
 its parents is illegitimate. In Scotland it is legitimated 
 by the subsequent marriage. At what date was our 
 municipal law assimilated to the Canon Law in this 
 respect ? For it is certain that our older law was the 
 same as that of England, and that it was from the 
 Canon Law that the present rule was adopted, though 
 the rule of the Civil Law is the same. Glanvill, in 
 stating the law of England, refers to the canones ct 
 leges Romanas as different. Regiavi Majestatem repeats 
 Glanvill's words without material alteration. Unless, 
 therefore, the passage was left standing thus per 
 incuriam, it follows that the change must have been 
 made subsequent to the composition (if that is the right 
 word) of the Regiam Majestatem. The earliest MS. 
 now known which contains that treatise seems to have 
 been written in the reign of Robert in. ; but the book 
 itself may well be a little earlier. Now, in 1371, King 
 Robert 11. 's eldest son by his first wife, Elizabeth More, 
 was recognised by Parliament as heir to the throne. 
 That son, and all the other sons of the first marriage, 
 were born out of wedlock ; on that point the testimony 
 of the chronicler is clear ; he is corroborated by the 
 papal dispensation for the marriage ; and Bower's com- 
 ment is, " Quia secundum canones matrimonium sequens 
 legitimat filios natos ante matrimonium." It is unneces-
 
 PREFACE xvii 
 
 sary to go into the delicate question how far the issue 
 were in truth vaHdly legitimated ; enough that in Scot- 
 land the Act of Parliament was understood as a sentence 
 in their favour to that effect, and a sentence given secttn- 
 dum canones. Parliament was and is a judicial as well 
 as a legislative body, and the student of the records of 
 those days does not find it easy to draw the line between 
 those two branches of its activity. May we not regard 
 this Act as the decision of our supreme court on the 
 leading case in this branch of the law, and the pre- 
 cedent by which similar cases were to be decided in 
 the future ? 
 
 3. Of the encroachments on the spiritual sphere 
 condemned by the Bull of 1251, above referred to, one 
 is the issue of the king's writ to inhibit the use of 
 ecclesiastical censure to enforce the observance of an 
 oath. It was exactly by this use of the oath that in 
 later times the courts Christian attracted to themselves 
 a large part of the legal business of the country. The 
 granter of a bond, or the parties to a contract, appeared 
 before the diocesan official and swore to observe their 
 engagements. Breach of the oath was punished, if 
 persisted in, by excommunication, which involved out- 
 lawry and confiscation of goods. So convenient was 
 this procedure found, that even after the Reformation 
 the commissary courts, coming in place of the old 
 Church courts, and using the process of " horning," 
 which came in place of the old excommunication, had 
 an advantage which they only lost by legislation putting
 
 xviii PREFACE 
 
 other courts of record on an equality with them in this 
 respect. In England, also, excommunication involved 
 serious temporal consequences ; but I do not read that 
 the process was used there as it was used in Scotland ; 
 the lay authorities were too strong and too vigilant to 
 allow such practices to grow up. 
 
 Now, as to the financial relations of Scotland with 
 Rome. The Curia was an expensive institution ; all 
 over Europe its exactions were a source of chronic dis- 
 content. Moreover, in the days of the Avignon popes, 
 Petrarch went so far as to inveigh against it by the 
 name of I'avara Babilonia. Scotland felt the pinch like 
 other countries ; Scotland was poor, and therefore by 
 good right frugal. Our ancestors' complaints survive 
 for us chiefly in the records of Parliament ; Parliament's 
 main concern was that money was being taken out of 
 the country, and that in two ways — in law expenses 
 and in payments for provisions to benefices. Under 
 the first head it is not likely that the well-meant activity 
 of the legislature produced much effect. Advice, influ- 
 ence, pressure, even coaxing, were freely employed ; the 
 home tribunals, where money could be spent at all 
 events more patriotically, are earnestly recommended 
 in preference to the Curia. But to prohibit appeals, or 
 even to punish appellants, was not practicable ; and 
 only by such measures could the defeated party in an 
 important " consistorial " case be prevented from trying 
 his luck in a higher court, whose decisions, all deduc- 
 tions made, commanded, I fear, more confidence than
 
 PREFACE xix 
 
 those of the most learned of Scottlsli archdeacons. In 
 the case of papal provisions to benefices, the result 
 was different. By the close of the great schism, which 
 nearly coincides with the period at which our Parlia- 
 mentary records begin to be appro.ximately continuous, 
 the popes had succeeded {the steps of the process 
 are described in Stubbs' Constitutional History') in 
 engrossing the right of providing to bishoprics all over 
 western Christendom. In England the monastic chapters 
 usually elected their own abbots or priors according to 
 ancient rule. In Scotland, abbacies were filled like 
 bishoprics by papal provision ; the difference between 
 the two countries in this respect appears plainly from 
 comparison of the sections relating to English and 
 Scottish monasteries respectively in Brady's Episcopal 
 Succession. At a later date the bishops of St. Andrews 
 and Glasgow obtained from Rome the privilege of con- 
 firming all elections to abbacies within their dioceses, 
 papal provisions being declared unnecessary in their 
 case ; Parliament in 1493 passed an Act reciting these 
 Bulls, and forbidding any person to renounce the benefit 
 of them without the king's consent. But the same Parlia- 
 ment in another Act recites another Bull, by which the 
 Pope promised to fill up no elective dignity without 
 awaiting for eight months the receipt of the king's 
 nomination ; and already the practice, so feelingly 
 deplored by Bishop Lesley, of conferring abbacies by 
 court favour, was in full swing ; the king was not 
 likely, even for the sake of keeping money in Scotland,
 
 XX PREFACE 
 
 to do anything to help the monastic chapters to recover 
 their rights. And even when, as sometimes happened, 
 the chapter was allowed to elect, the new abbot preferred 
 papal to episcopal confirmation, just as he preferred, if 
 possible, to be immediately subject to the Holy See 
 rather than to the diocesan bishop. So we are not 
 surprised to find that even in those two dioceses abbacies 
 were filled by papal provision after as well as before 
 1493. The system at all events was fairly effectual 
 in keeping foreigners out of Scottish benefices. Dr. 
 Joseph Robertson and Bishop Dowden give instances 
 of Italians holding churches in Scotland; but Scotland, 
 poverty-stricken and turbulent, did not tempt the 
 benefice-hunter as England did. In the first Scottish 
 Parliament of which the original record exists, held by 
 King John Baliol in 1293, the Bishop of Dunkeld was 
 accused of having aided and abetted the Pope in con- 
 ferring a prebend in Dunkeld Cathedral upon a certain 
 Roman ; to which the bishop pleaded not guilty. There 
 is one case on record of an Italian bishop in a Scottish 
 See — Prosper Cannilio of Genoa, Bishop of Caithness 
 from 1478 to 1484 — not a tempting piece of preferment, 
 one would have thought, for a " familiar " of the power- 
 ful Cardinal who afterwards became Pope Julius 11. 
 A little later the deanery of Aberdeen fell to Henry 
 Babington, "of the diocese of Chester," who came north 
 in the train of Queen Margaret Tudor ; the abbacy of 
 Tongland to the Italian Damian, alchemist and aeronaut; 
 and the abbacy of Glenluce to " Gaiter " Malynny, secre-
 
 PREFACE xxi 
 
 tary to the Regent John of Albany, presumably a 
 Frenchman. All these appointments were obviously 
 clue to court favour. After Flodden a cardinal was 
 provided to the abbacy of Inchaffray, and another 
 cardinal, the Pope's own nephew, to the archbishopric 
 of St. Andrews ; but neither of these appointments took 
 effect. Occasionally Roman influence proved strong 
 enough to overcome even active and seemingly resolute 
 opposition from king and Parliament, as in the case of 
 George Brown, Bishop of Dunkeld. But generally the 
 want of royal favour was a fatal bar to promotion. In 
 1540 the Pope wished to provide Robert Wauchope, 
 afterwards Archbishop of Armagh, to the abbacy of 
 Dryburgh, an appointment which a contemporary royal 
 letter describes as " that vain provision " — the nominee 
 had positively no qualifications except learning and 
 piety; the king adjured the Pope " not to prefer learning 
 to the profit and honour of the kingdom," and His 
 Holiness gave way. 
 
 It would give a very inadequate notion of the 
 activities of the Curia if no mention were made of 
 provisions other than those to the " elective " benefices. 
 The patronage of the clergy, monastic and secular, 
 was exercised subject to a flood of papal provisions or 
 Gratia; expeclativce, giving away over the heads of 
 the patrons, before or after vacancies occurred, some- 
 times one of their churches, sometimes whichever might 
 first fall vacant. Sometimes the same benefice was 
 bestowed in this way on two or three supplicants ; the
 
 xxii PREFACE 
 
 Curia might have to decide between them, and now 
 and then it calmly declared against both. In other 
 cases the claimants came to an agreement and divided 
 the spoil. It is not strange that the patrons cordially 
 disliked this system, or that they exercised their wits 
 to find grounds for disappointing those who came 
 armed with such provisions ; but direct disobedience 
 to papal mandates was out of the question ; the Pope 
 was within his recognised rights. Sometimes a bishop 
 compromised matters, and obtained a Bull reserving 
 to himself the benefices which fell vacant in February, 
 April, etc. ; those falling vacant in January, March, etc., 
 being left to the bearers of papal letters. On this 
 system no Act of Parliament could have any effect ; 
 it was a matter between the Pope and the clergy. And 
 it also was capable of being worked to the advantage 
 of the Crown. Pope Julius ii. granted to James iv. 
 of Scotland faculty to exercise on his own account 
 this papal power of nomination to thirty benefices ; 
 and the Register of the Privy Seal contains notes of 
 several of the nominations made accordingly ; some of 
 them to special benefices, others to any benefice within 
 the kingdom, vacant or next to fall vacant, which the 
 grantee should please to accept. Such grants when 
 made by the Pope were apparently taken to apply to 
 livings in ecclesiastical patronage only ; it would be 
 interesting to know whether the king's nominations 
 had a wider scope and covered livings in lay patronage 
 also ; this must be left to a more learned investigator.
 
 PREFACE xxiii 
 
 Similar privileges were doubtless conceded to other 
 monarchs ; one can conceive that in the hands of a 
 Tudor king they might be used to engross all ecclesias- 
 tical patronage, to whomsoever belonging, into the 
 hands of the supreme authority. With lay patronage 
 the Pope, in his own letters at anyrate, was not 
 accustomed to interfere. Bishop Uowden states that 
 he "does not remember" any instance of such inter- 
 ference. But by the established laws of the Church, 
 there were cases in which the next presentation belonged 
 to the Pope, whoever the patron might be ; e.g. if the 
 incumbent died at the Holy See, or within two days' 
 journey thereof, if he vacated his benefice by accepting 
 promotion from the Pope, if he resigned it into the 
 hands of the Pope or of a papal delegate. In all such 
 cases, where the Crown was patron, it would seem that 
 by the Concordat the Pope abdicated his rights of 
 interference on whatsoever ground ; in the case where 
 the patronage belonged to a subject, it is evident that 
 Parliament and the law courts maintained the patron's 
 rights very vigorously. But where the Lords of Council 
 deal with this matter, we find that they are backing 
 up the decision of a church court. That nominations 
 were unpopular with the clergy as with others, and that 
 the ecclesiastical judges would favour the lay patron 
 where they could, may be taken for granted. But the 
 law which they had to administer was in essentials the 
 common law of the Church ; there is, I think, no evidence 
 that there was any recognised custom of Scotland
 
 XXIV 
 
 PREFACE 
 
 derogating from the common law in this matter. And 
 the sturdiest nationalist ought not to forget that the 
 extension of the papal prerogative was a measure 
 devised by reformers to deal with very real evils. If, in 
 Scotland at least, it largely failed of its object, we must 
 own that among the reasons for this must be included 
 the fact that it was worked largely in subservience to 
 the secular authorities ; the guardians of the lex poli 
 gave or sold their influence to further the objects of the 
 ministers of the lex soli (see p. iii). 
 
 J. M. T.
 
 CHAPTER I 
 
 The Origin of the Canon Law 
 
 In the primitive Church there was a feeling widely 
 prevalent that Christian people should not go to law 
 with each other in the civil Courts presided over by 
 unbelieving judges, and this not unnatural sentiment 
 finds due expression in the actual text of Holy Writ, 
 for in the sixth Chapter of the first Epistle to the 
 Corinthians it is written : " Dare any of you, having a 
 matter against another, go to law before the unjust, 
 and not before the saints?" 
 
 Moreover, it is found that the precedent thus 
 early established was not only maintained, but also 
 developed, in the long history of the Christian Church 
 in after ages. At first the brief Canons enacted by 
 the first Councils were mainly based upon, and in 
 some sort intended to be authorised interpretations of, 
 the actual words of Holy Scripture as understood by 
 the Bishops of the Church, and were not enacted
 
 THE CANON LAW 
 
 with any great regard to logical sequence and definite 
 arrangement. 
 
 But by degrees the entire sphere of Ecclesiastical 
 Law* became enlarged, and the absolute necessity was 
 keenly felt of better arrangement and more logical 
 treatment. Collections of Canons were made by men 
 of learning and distinction, such as Burchart, Bishop 
 of Worms, Ivo of Chartres, and Anselm of Lucca, and 
 were referred to in disputed cases as of some sort of 
 authority ; and then at a later date a serious attempt 
 was made to simplify and codify the Canon Law. 
 
 The famous Decretum of Gratian is entitled 
 " Concordantia Discordantium Canonum : a Concordance 
 of Discordant Canons." But for this purpose, as 
 well as to satisfy the general requirements of a 
 rational system of law intended for universal sway, 
 it was requisite to have an efficient framework, wherein 
 to place in due gradation the fundamental principles 
 of law. Where could such a framework be better 
 
 * " If a man has stolen the goods of a temple, or palace, that man 
 shall be killed, and he who has received the stolen thing from his hand 
 shall be put to death." 
 
 Thus runs one of the oldest ecclesiastical laws known to the world, 
 issued by Hammurabi, King of Babylon, who reigned B.C. 2285-2242. 
 The remarkable monument, on which these early laws are inscribed, 
 consists of a block of black diorite nearly eight feet high, found in 
 pieces, but readily rejoined, the discovery and decipherment being 
 completed as recently as 1902, largely by the energy of the French 
 Government. 
 
 On the obverse is the curious representation of the Babylonian king 
 receiving his laws from the sun-god, the judge of heaven and earth. 
 Cf. tome iv. Textes Elaniites — Sdmitiques—les Memoires de la DiUgation 
 en Perse. Paris, 1902.
 
 THE ORIGIN OF THE CANON LAW 3 
 
 found than in the famous Institutes of the Emperor 
 Justinian, which contained the fundamental principles of 
 the law of Rome in ancient days, and at the opening 
 of this the twentieth century is found also to be the 
 general basis of half the law prevalent in the civilised 
 world. So thought the monk Gratian and his friends 
 learned in the law. So thought those distinguished 
 ecclesiastical statesmen, also learned in the law, who 
 in those distant days surrounded the Papal throne 
 and attended the Papal Court. So thought those 
 powerful prelates, who, within the wide borders of 
 the Holy Roman Empire and elsewhere, were 
 gradually strengthening and consolidating their 
 spiritual and temporal power in western Europe. 
 Hence it is that the early MSS. of the Decretum 
 all commence with Latin sentences closely parallel to 
 the opening words of the Institutes of Justinian ; and 
 in a general way we can trace throughout the 
 Decretum, especially in the earlier sections, a similar 
 plan of arrangement to that found in Justinian's 
 famous Book. Yet the Digest was mainly the basis 
 of Mediaeval Civil Law. 
 
 It may, however, be doubted whether the Decretum 
 of Gratian was really able to fulfil its proud boast of 
 being a thorough Concordance of discordant Canons : 
 for the Canons were so many and oftentimes contra- 
 dictory one with another, and dealt with such a great 
 variety of subjects and embraced so large a sphere of 
 human activity, that it were well nigh impossible to
 
 4 THE CANON LAW 
 
 compose an exhaustive treatise on this difficult and 
 intricate branch of law. 
 
 Yet the Decretum went a very great way in the 
 important direction of introducing some satisfactory 
 order into the existing chaos, and providing students of 
 Canon Law with an intelligible and fairly well arranged 
 text-book worthy of careful and assiduous study. 
 
 Moreover, that study was both careful and assid- 
 uous. The gloss became more and more elaborate, 
 and the written text of the glossators of high repute 
 extended by degrees beyond the full length of the 
 Decretum itself. In the numerous MSS. of the best 
 period this extensive gloss runs all round the actual 
 text of Gratian in somewhat smaller letters, sometimes, 
 but not always, by the same hand. Furthermore, in 
 the Middle Ages, when Canon Law was seriously 
 studied, there arose another somewhat inferior body of 
 Commentators who provided elaborate explanations of 
 the real meaning not only of the text of Gratian, but 
 also of the more famous glossators.* 
 
 Yet the Decretum of Gratian is but half the Corpus 
 Juris Canonici. About a century after, a collection of 
 Decretals was issued by lawful authority as a much 
 needed supplement to the Decretum. t They coincide 
 in date, for the most part, with that striking period of 
 mediaeval history when the Church was at the zenith 
 
 * All this was in conformity with what happened to the Corpus Juris 
 Civilis and its glosses. 
 
 t The Popes followed the example of the Roman Emperors in issuing 
 decreta and epistolas.
 
 THE ORIGIN OF THE CANON LAW 5 
 
 of her power — a period when naturally the subjects 
 and the area of ecclesiastical legjislation would be 
 expected to be more widely extended than in modern 
 times. Thus it is that the Decretals crown and com- 
 plete the Decretum. 
 
 Together they make up the bulk of that famous 
 volume entitled Corpus Juris Canonici, and with the 
 final completion of that volume the great period 
 of ecclesiastical legislation comes to an end. Other 
 canons there are of later enactment, but also of 
 less authority. For the most part, future efforts are 
 rather directed to the better elucidation of the 
 received text of the Canon Law than to the issue of 
 new laws by the ecclesiastical authority. There is, 
 moreover, no doubt whatever but that the system- 
 atised form which the Canon Law finally assumed 
 made the introduction of fresh Canons and Constitu- 
 tions all the more difficult after the close of the 
 fifteenth century. 
 
 Historical events also bore their fair share in the 
 gradual development of the Canon Law, influencing 
 not only its general character, but also the actual 
 extent of its sphere. But of this influence we cannot 
 now speak particularly. 
 
 By the side of the great body of the Canon Law 
 as incorporated in the Corpus Juris Canonici, there 
 also grew up in each particular country a recognised 
 body of Church customs which obtained the authority 
 of law by special local enactment or by long and un-
 
 6 THE CANON LAW 
 
 interrupted usage. Thus in our own land the Con- 
 vocations of Canterbury and York have long possessed 
 certain pow^ers of legislation for the Church, just as 
 the High Court of Parliament is the supreme legislative 
 authority in the State. 
 
 Sometimes ancient local ecclesiastical customs became 
 recognised in the received text of the Canon Law : 
 sometimes they were modified or materially altered, or 
 assimilated by special enactment of General Councils, 
 as for instance was the case in regard to the law of 
 tithe by the Lateran Council of a.d. ii8o: sometimes 
 they remained in force in their own locality ; as, owing 
 to special circumstances, only being appropriate to 
 that particular country. 
 
 It is, however, obvious that with the universal 
 rise of the principle of nationality at the beginning 
 of the sixteenth century, and the general decay of 
 the learned study of Canon Law with its imperial 
 ideas, the local Canons of the Church inevitably 
 obtained greater importance, and received more 
 general attention. 
 
 In some countries of modern Europe a large 
 modicum of the ancient Canon Law was incorporated 
 into the civil or domestic law, then being arranged 
 and partly codified ; and it would be a curious inquiry 
 to trace out the various examples in which the very 
 words and principles of the old Canon Law reappear 
 in the new civil guise. Such examples are probably 
 more numerous than is generally suspected, and we
 
 THE ORIGIN OF THE CANON LAW 7 
 
 are all familiar with the frequent references in our 
 Courts of Probate and Divorce for authoritative 
 precedents to the old ecclesiastical Courts, in part 
 swept away in 1858, in all such cases as do not 
 seem to come within the actual scope of recent Acts 
 of Parliament. 
 
 Moreover, there are noteworthy passages contained 
 in the Decretum which infer that the mantle of the 
 Emperor has fallen upon the Pope, that the position 
 held by the occupant of the Imperial throne in the 
 Justinian Code has been transferred to the Bishop of 
 Rome resident in the Palace of the Lateran ; and 
 certainly the actual claims to jurisdiction and power 
 put forth by the Papal Court in the days of Innocent iii. 
 maintain not only an equality between the heads of 
 the ecclesiastical and civil jurisdiction, but even an 
 innate superiority possessed by the former of these 
 authorities. This arrogant claim reached its climax in 
 the person of the Pope, who gave the Imperial crown 
 to the Emperor Rudolph, encircled by the legend— 
 
 Petra dedit Petro, Petrus diadema Rudolfo. 
 
 But the general principle of the Canon Law was rather 
 a laudable attempt to find a rational and reasonable 
 basis whereon to regulate ecclesiastical affairs, and thus 
 organise a strong and effective Church, much in the 
 same way as the mighty Empire of Rome had been 
 strengthened and consolidated by its marvellous legal 
 system in the days of the Caesars.
 
 8 THE CANON LAW 
 
 The prevalent idea in the Middle Ages was that the 
 Church and State were two co-ordinate institutions, 
 each with its own separate jurisdictions, independent 
 of each other, and yet most closely connected. Not 
 only did the development of the Canon Law further 
 this common notion, but the perfecting of the feudal 
 system worked in the same direction. Thus each 
 kingdom possessed its Archbishop as well as its King. 
 In like manner the Bishop possessed similar territorial 
 jurisdiction to the feudal noble, and these together 
 formed the upper House of Parliament. And in 
 England, as each county had its Earl and Sheriff, so 
 each county also had its Archdeacon. Each parish 
 likewise possessed a Rector and Lord of the Manor. 
 Briefly it may be said the feudal system was dove- 
 tailed into the Church system regulated by the Canon 
 Law ; and then each exercised a considerable influence 
 on the other. A very remarkable example of the 
 carrying out of this idea may be found in the legal 
 organisation of the Christian kingdom of Jerusalem 
 established by the Crusaders. This feudal influence 
 is in part responsible for the notion that corporate 
 bodies were real entities possessing perpetual succession, 
 etc., within whose definition were included rectors and 
 vicars of parishes as corporations sole. And further, 
 that such a body once created could not be destroyed 
 except by the same or a superior authority to the 
 original creator, and then only in due form of law. 
 An illustration of this general principle in civil
 
 THE ORIGIN OF THE CANON LAW 9 
 
 affairs may be found in the lont^ permanence of the 
 idea of the Empire, one and indivisible, commensurate 
 with Christendom, directly traceable to the throne of 
 Caesar ; resuscitated by the coronation of Charlemagne 
 in the year 800. 
 
 The practical activity of the Canon Law reached 
 the maximum under the pontificate of Innocent iii. 
 and his immediate successors. This powerful Pope's 
 Acta occupy four hundred and sixty-seven closely 
 printed quarto pages in the elaborate work of Aug- 
 ustus Polthast, published in 1874, and entitled " Re 
 Gesta Pontificum Romanorum." 
 
 In fact it is difficult in these modern days to 
 estimate fully the enormous importance of the Canon 
 Law in the practical administration of Europe and the 
 jurisdictional power of the Popes. To take a few 
 Scottish examples: In 1207 Innocent in. decides on 
 appeal a suit between the Prior of S. Andrews and 
 the Bishop of Dunkeld as to the possession of the 
 advowson of the church of Mighil. In 12 16 the 
 same Pope issues a Bull settling the lawsuit between 
 the Prior of S. Andrews and the Vicar of Rossin. 
 
 In 1325 John XXII. exercises the same jurisdic- 
 tion, for there still exists in the Advocates' Library 
 in Edinburgh the "Commissio Joan xxii. data ad 
 controversiam determinandum inter Thoman Epis- 
 copum Rossensem et Abbatem de Kynlos." Still 
 more curious is a grant in 1386 of " annalia " for 
 the repair of the Church of S. Andrews. Presumably
 
 10 THE CANON LAW 
 
 copies of these documents also exist in the Vatican 
 Library. Furthermore, Pope Adrian grants a Bull 
 of Indulgence to Robert in the year 1154. In 1170 
 the Abbey of Dunfermline obtains a Confirmation of 
 the possession* of the Churches of Perth, S. Leonard, 
 etc. In 1254 Innocent iv. grants a licence to William, 
 Archdeacon of S. Andrews, to hold another benefice. 
 There exists a Bull of Innocent iii. in relation to 
 Peter's Pence, making mention that by Harold, Earl 
 of Caithness, a penny yearly from each inhabited 
 house in his earldom be given to the Roman Church. 
 There is a Bull of Pope Honorius, " De Concilio 
 Provinciali Scoticani"; while John xxii. issues a Bull 
 " mandans episcopis S. AndrcoC et Glasg. ut coron- 
 ient Robertum i." 
 
 Moreover, t a letter of Alexander vi. has been 
 preserved — "dans potestatem episcopis Candide Case et 
 Dumblanensi et Abbati de Neobatyll ad procedendum 
 in erectione ecclesia; collegiatee de Seton, anno 1492." 
 There are also the Charters of the Preceptory of 
 S. Anthony ; a Bull of Pius 11. | " De instituendo 
 Coadjutore W. episcopi Dumblanensis " ; and a Bull of 
 
 * The Institution, by Radulphus, Bishop of Aberdeen, to the Vicarage 
 of Burdin, on the presentation of the Trior of S. Andrews in 1238, exists 
 in the Advocates' Library, 
 
 t In the Advocates' Library, Edinburgh, may be found a Norse case 
 on Canon Law ; the Judgment given between Ogmunder, Bishop of Skal- 
 doh and Hannes Eggertsson. 
 
 I This was the Pope who, as Cardinal ALnxas Silvius Piccolomini, 
 went on an embassy to the King of Scotland, and has left on record in 
 Latin a very amusing account of his travels.
 
 THE ORIGIN OF THE CAiNON LAW ii 
 
 Leo X., " De indulgentiis concedendis visitantibus 
 domum fratrum predicatorum in Scotia, anno 1518." 
 
 In Sir J. Balfour's curious collection of Papal 
 deeds may be found the "Commissio ad querelam 
 Prioris Sancti Andrese audiendam contra David dictum 
 cissorem burgensem de Berwick, anno 1292." In the 
 Laing collection there are letters by Alex. Lyndesay, 
 Canon of Aberdeen, setting forth the divorce of Lady 
 Arabella Stuart and George Earl of Huntly. Moreover, 
 a remarkable illustration of the monastic intercourse 
 between England and Scotland may be found in the 
 "Ordinatio de pensione 16 marcarum quae antiquitatis 
 solvebatur monasterio de Reddyng in Anglia a pri- 
 oratu de May et de Petgnivern solvenda monasterio 
 8. Andreas, anno 13 18." In 1533 Henry Lauder 
 receives permission " ut privatis altaribus et missis 
 uteretur." From the various MSS. already cited, some 
 rational opinion may be formed in regard to the actual 
 influence of the Canon Law in Scotland during the 
 Middle Ages ; and, it will be seen, a great variety of 
 questions come up for consideration and decision. 
 
 Patronage, annates, indulgences, licences to hold 
 benefices "in commendam," Peter's Pence in Caithness, 
 Scottish provincial councils, the Coronation of Robert i., 
 the foundation of the Collegiate Church of Seton, the 
 institution of suffragan Bishops, and monastic relations 
 with England, are all brought under consideration, 
 and submitted for decision to the ecclesiastical jurisdic- 
 tion in due form of law.
 
 12 THE CANON LAW 
 
 The Reformation wrought tremendous changes in 
 Scotland, and amongst later documents of the class 
 above mentioned it will suffice to mention the dis- 
 pensation for marriage between Patrick Hannay and 
 Margaret Mure granted by Pope Clement vii., the 
 legal process before the Papal Delegates respecting 
 the Priory of Coldingham, and the official consultation 
 in regard to the reception of the Nuncio of the Pope 
 in 1567. All these documents may be found in the 
 Advocates' Library. 
 
 During the Middle Ages the Canon Law exercised 
 a wider influence in Scotland than in England, just as 
 the Scottish Abbots occupied a more prominent position 
 in regard to the Episcopate than the English Abbots 
 did in relation to the Bishops of the Church of England. 
 
 A careful perusal of the Canon Law forces upon the 
 mind this conclusion, that the great principle which 
 underlies the whole canonical jurisprudence is the 
 endeavour to construct a rational and practical system 
 of ecclesiastical law, and to make provision for a certain 
 fixed relationship between Church and State, which has 
 perhaps come nearer than any other system to the great 
 ideal of the Italian statesman, who desired to see "a 
 free Church iii a free State." It is clear also that the 
 long history of the Middle Ages shows not unfrequent 
 instances in which popes and kings, as well as others 
 of high degree, have striven to wrest the forms of the 
 Canon Law to their own personal advantage, whether 
 in the sphere of politics or religion.
 
 THE ORIGIN OF THE CANON LAW 13 
 
 It may also be observed that some few at least of 
 the difficulties which beset certain ecclesiastical questions 
 in modern times may be traced to the modern fashion 
 of totally ignoring the Canon Law. 
 
 We now give certain MS. illustrations from 
 various unpublished documents. 
 
 By the great courtesy of the Dean and Chapter of 
 Barcelona, who possess a vast quantity of early charters 
 and legal documents in their archives, though there is 
 no Cathedral library, it was my lot to see and examine 
 with care the original charter of a grant of houses 
 by S. Olegarius, Archbishop of Tarragona, in the year 
 1 1 26. The text of this early charter, taken from the 
 original MS., seems worth reproducing here as a 
 practical illustration of the ecclesiastical law prevailing 
 in Catalonia in the twelfth century, more especially as 
 the early charters of Spain are well nigh unknown in 
 England and Scotland. 
 
 Grant by Charter of Archbishop S. Olegarius to 
 THE Chapter of Barcelona, a.d. 1126. 
 
 Cunctis fidelibus pateat quod ego Ollegarius dei gratia 
 tarrachonensis metropolis archiepiscopus done deo et 
 barchinonensi kanonice domos meas quas habeo infra 
 menia civitatis barchinone, illas videlicet quas Raimundus 
 arnalli pistor tenet et habitat per me. Iterum dono 
 jamdicte kanonice furnam cum suis pertinentiis sicut 
 dimisit michi berengarius bcrnardi in sue testamento post 
 mortem uxoris sue. Hanc autem donationem quam facio 
 propter deum et remedium anime mee eo pacto ut nulius 
 possit indc aliquid subtrahere a jure prephate kanonice
 
 14 THE CANON LAW 
 
 et possessione neque per donum neque per aliquam 
 alienationem : si quis in posterum disrumpere temptauerit, 
 donee emendat se sub anatemate esse cognoscat. 
 
 Actum est hoc X. kalendas May. Anno incarnationis 
 dominice CXXVI. post millesimo. 
 
 Oilegarius dei gratia tarrachonensis archiepiscopus. 
 
 s + 
 
 Petri diachoni et sacri scrini. 
 
 
 s + 
 
 Petri 
 
 primicherii. 
 
 
 s + 
 
 Rogerii leuita. 
 
 
 s + 
 
 num 
 
 Raimundi subdiachoni. 
 
 
 s + 
 
 nam 
 
 mironi presbiteri. 
 
 
 s + 
 
 num 
 
 Martini petit. 
 
 
 s + 
 
 num 
 
 Petri ottonis. 
 
 
 s + 
 
 num 
 
 Martinis urucie. 
 
 
 s + 
 
 num 
 
 Petri Marcucii. 
 
 
 s + 
 
 num 
 
 Johannis arnalli. 
 
 
 s + 
 
 num 
 
 Petri bernardi clerici qui hoc 
 
 scripsit die et 
 
 
 anno quo supra. 
 
 
 At this date Raymond Arnold was tenant in 
 occupation of the Archbishop's houses, which had been 
 bequeathed to his Grace by Berenger, son of Bernard. 
 One of the eariiest charters at present in the possession 
 of the Chapter of Barcelona contains a gift of ten 
 pounds towards the repair of the Cathedral from the 
 Emperor Charles, between the year 874 and 877, 
 directed to Bishop Frodoyno. 
 
 The text of this early document runs as follows : — 
 
 In nomine sanctJE et indiuiduje Trinitatis Karolus 
 ejusdem dei omnipotentis miseracordia imperator augustus 
 Omnibus barchinonensibus pecuiiaribus nostris Salutem. 
 
 Sciatis quoniam superno munere congrua prosperitate
 
 THE ORIGIN OF THE CANON LAW i? 
 
 valemus apiid nos quoque ut et idipsum maneat valde 
 desideramiis. Plurimas autem uobis grates referimus eo 
 quod in nostram fidelitatem semper omnimodis tenditis. 
 Ueiiit denique judas liebreus fidelis noster ad nos et de 
 uestra fidclitate multa nobis designauit. Unde uestrse 
 fidelitati condignam remunerationem et decens prsemium 
 referri parati sumus De nostra igitur fidelitatis assiduitate 
 nullo modo retardetis sed in ea prout melius scitis et 
 potestis in omnibus tendentes permaneatis sicuti hactenus 
 factum habetis. Valete et sciatis uos quia per fidelem 
 meum juda dirigo ad frodoynum episcopum libras X. 
 de argento ad suam ecclesiam reparare. 
 
 The Cartulary of Lundors concludes with some 
 curious legal decisions. Earl David, brother of King 
 William the Lion, founded this Abbey. 
 
 1. After the death of Earl David, his lands about 
 Lundors passed to the Earl of Mar, who claimed feudal 
 superiority, etc., over the Abbot as the representative of 
 Earl David in the lordship of the land. The Abbot 
 maintained he had no superior lord, except it be the king, 
 and that his land was holden in free alms. Judgment 
 in favour of the Abbot. 
 
 2. The Burgesses of Newburgh apply to the Abbot 
 as their superior lord for the renewal of their ancient 
 Charter, confirming their grants and privileges. This the 
 Abbot grants, 24th May 1457. 
 
 3. The Abbot holds tithe of many Churches, in which 
 he has appointed Vicars or Curates. Is he bound to 
 attend the Bishop's visitation, or only the said Vicars or 
 Curates? Decided he need not so attend, as he does not 
 personally exercise the cure of souls in these Parishes. 
 
 4. David, King of Scots, revokes alienations made by 
 former Abbots, as invalid in law, enrolling the revocations 
 in Chancery.
 
 1 6 THE CANON LAW 
 
 5. On the Feast of the Conversion of S. Paul, 1281, 
 the Abbot of Dunfermline, as representative or legate 
 of the Apostolic See, gave judgment in the case of the 
 Abbot of Lundors v. the Prioress of Elgoch in regard 
 to certain mill rights. The Dean of Christianity of 
 Aberdeen acted as commissary to the Abbot of Dun- 
 fermline. 
 
 6. The Archdeacon of Dunkeld binds Robert, brother 
 of the Steward of Strathern, not to prevent the Abbot 
 taking timber in the wood of Glenlithern in 1256. 
 
 The Cartulary of the Bishopric of Aberdeen con- 
 tains the following agreement : — 
 
 CONVENTIO INTER PET1;UM EPISCOPUM ET ALANUM 
 HOSTIARIUM. 
 
 Hec est conventio facta inter venerabilem patrem 
 episcopum Aberdonensem ex parte una et dominum 
 Alanum hostiarium justiciarium Scotie ex altera. 
 
 Videlicet quod dictus dominus Alanus hostiarius 
 dedit et concessit Deo et ecclesie beate Marie et Sancte 
 Machorij de Aberdon et episcopo Petro ej usque success- 
 oribus viginti duos solidos sterlingorum legalium de 
 terra sua de Schene ad duos terminos imperpetuam 
 percipiendos medietatem videlicet ad Penthecosten et 
 aliam medietatem ad festum Sancti Martini in yeme pro 
 decimis de Onele quas sui antecessores Episcopi ex 
 collatione illustris regis Dauid et regum successorem 
 ejusdem actenus percipere debuerunt quas quidem decimas 
 predictus Petrus ^piscopus prefato Alano hostiario et 
 heredibus suis pro dictife xxij solidis annuatim soluendis 
 imperpetuum dimisit et quiete clamauit. Ita tamen dicta 
 terra de Schen pro prefata quantitate pecunie dictis 
 terminis soluenda Episcopo Aberdonensi qui pro tempore 
 fuerit in perpetuum remaneat obligata. 
 
 In cujus rei testimonium parti hujus scripture in
 
 THE ORIGIN OF THE CANON LAW 17 
 
 modum cirograffi confecte penes dictum dominum Alanum 
 remanenti sigillum dicti domini Episcopi una cum 
 sigillo capituli ecclesije sue Aberdonensis est appositum. 
 Alter! vero parti penes dominum Episcopum resident! 
 sigillum prefati domini Alani est appensum. 
 
 His testibus domino Willelmo de Brechyne W. Byset. 
 Colmero hostiario. Johanne de vallibus. Gregorio de 
 maleuile. R. Flandrensi, magistro W. official! Aber- 
 donensi, domino Gilberto de Strivelyng et Hugo de 
 Bennam Canonicis ecclesie Aberdonensis et aliis. 
 
 In a Rental of the Bishopric, temp. Alex, iii., " De 
 terris de Shyen dentur domino Episcopo Aberdonensi 
 pro secundis decimis de Onele xxijs. ex conventione," etc. 
 
 These detailed points, largely illustrated from ancient 
 Scottish MSS., might just as well be illustrated from 
 the various canons that prevailed in the other parts 
 of Europe. They show very clearly the minuteness 
 of detail into which the Canon Law entered upon every 
 question, and prove its mastery in all such intricacies 
 of detail as well as in the enunciation of general 
 
 o 
 
 principles. 
 
 Look at the matter whichever way you will, you 
 will find, as you become better acquainted with the 
 Canon Law, a very remarkable body of jurisprudence, 
 well suited to the general circumstances of the age in 
 which it arose ; and you must needs admit — perhaps 
 with unfeigned astonishment — its real and substantial 
 merits as an effective system of ecclesiastical law. 
 
 The expression "Canon Law" is in reality used 
 with some considerable variety of meaning. In the 
 3
 
 1 8 THE CANON LAW 
 
 widest sense the expression denotes all ecclesiastical 
 law, including the Canons of those early Christian 
 Councils, which can hardly be said to be law in the 
 sense ascribed to the Decretum or the Decretals of 
 Gregory ix. 
 
 In one sense the Corpus Juris Canonici is the Canon 
 Law, but this meaning is generally felt to be too narrow; 
 and some writers have used the phrase Roman Canon 
 Law as equivalent to the Corpus Juris Canonici : yet 
 this phrase ought properly to contain more than the 
 Corpus, and especially those later Canons issued by 
 the authority of the Holy See after the date of the 
 completion of the Corpus, and now enforced by the 
 Vatican. 
 
 Then again the ecclesiastical law of each particular 
 nation is often spoken of as the Canon Law ; yet as 
 a rule such a body of law can only be a portion of the 
 whole Canon Law, otherwise the Corpus Juris would 
 be itself ignored, for that was not composed for any 
 one particular nation, but for the whole of Christendom. 
 Then again there are whole sections of the Canon 
 Law which have become obsolete by the lapse of 
 time, or the change in the manners and customs of 
 the people. Thus the provisions found in the Corpus 
 Juris concerning betrothals prior to marriage would 
 certainly not be enforced in their fulness even in 
 Roman Catholic countries. 
 
 It was also an acknowledged rule in England that 
 particular bulls of the Pope had no legal force within
 
 THE ORIGIN OF THE CANON I,AW 19 
 
 the realm until they had been "received," or, in other 
 words, had been published in due form of law within 
 the realm, and sometimes the King would punish those 
 who went to Rome to obtain bulls which he deemed 
 to be injurious to the country. Thus, on 9th November 
 1399, John Andrew, Canon of Christ Church, near 
 Southampton, was arrested for going to Rome and 
 getting Papal bulls contrary to the Statute of Provisors, 
 and exhibiting the same publicly in this country. It 
 was not uncommon in the Middle A^es to arrest 
 a monk who sought to land on our shores with 
 Papal bulls in his pocket unacceptable to the 
 Crown and people of England, or to send him 
 back to the Continent before he had set foot on 
 English soil. 
 
 Between the late Bishop Stubbs, of Oxford, and 
 the late Professor Maitland, of Cambridge, there was 
 a famous dispute as to whether the Corpus Juris 
 Canonici was recognised as part of the authoritative 
 Canon Law of England. But the area of disputation 
 is diminished when we remember that legal "reception" 
 was needed to make a Canon of this kind binding 
 in England, or, in other words, legal "publication" 
 within the realm, after which the Canon became 
 received law enforcible by the Courts of competent 
 jurisdiction. 
 
 A large part of the Corpus Juris Canonici was 
 received in England, and a certain portion even 
 incorporated in Acts of Parliament. As I understand
 
 20 THE CANON LAW 
 
 this matter, after reading the authorities with great 
 care and attention, the learned Bishop Stubbs regarded 
 no part of the Corpus Juris Canonici as binding law 
 in this realm, unless the legal reception thereof could 
 be clearly proved. 
 
 On the other hand, Professor Maitland* was of 
 opinion that the whole body of the Canon Law known 
 as the Corpus Juris Canonici was binding in England, 
 unless there was an English ecclesiastical custom 
 recognised by the Courts which acted as a limitation in 
 a particular case, or the non-reception of a particular 
 Canon could be positively proved. Hence the difference 
 of the teaching of these learned doctors is hardly as 
 divergent as it appears to be from the common contro- 
 versial statement that Professor Maitland was convinced 
 the whole Corpus Juris Canonici was binding in 
 England, while Bishop Stubbs disagreed with this view. 
 
 A similar sort of divergence may be noted amongst 
 ancient authorities of high repute. Thus William 
 Lyndwood in his famous Provinciale, containing the 
 Constitutions of the Archbishops of Canterbury from 
 Steohen Langton to Henry Chichely, as well as other 
 ecclesiastical laws, certainly inclines to Professor 
 Maitland's opinion, while certain famous judges in 
 the sixteenth and seventeenth centuries make an 
 opposite statement in their judicial capacity. The 
 personal fame of these distinguished disputants has 
 drawn special attention to this matter. 
 
 *Cf. Canon Law in England, by Professor Maitland, pp. lo and 42.
 
 THE ORIGIN OF THE CANON LAW 21 
 
 This chapter may well be concluded with a 
 quotation from a distinguished legal writer of the last 
 century : 
 
 The Canon like the Civil Law is not traceable to any 
 code, but is founded upon tlie general moral rules to be 
 collected throughout the New Testament. These were 
 made the basis of certain administrative rules for Church 
 Government, together with those enjoined partly orally 
 and partly by the Epistles of the Apostles : the Bishops 
 who succeeded them pursued the same practice ; until after 
 Christianity had obtained a firmer footing. Councils and 
 Synods were assembled, which passed legislative enact- 
 ments respecting Church Government, etc. 
 
 When the Emperors had been converted from 
 paganism to the new religion, they promoted its progress 
 by their Constitutions, which then became properly a part 
 of the Canon Law, although enacted with other municipal 
 laws. 
 
 These were followed by the Decretal Epistk-s of the 
 Popes, which, joined with the decrees of Councils, and 
 embodied in Constitutions, together with maxims taken 
 from the Civil Law, formed that entirety which we term 
 the Canon Law. The Pope, as the Arch-archbishop of 
 Christianity, enforced the observance of this code in all 
 Christian countries, except among those who adhered to 
 the Eastern Church.
 
 CHAPTER II 
 
 Decretum Gkatiani 
 
 The Decretum of Gratian is after all the most important 
 document to be found in the whole region of Canon 
 Law, apart from the Decretalia of Gregory ix. 
 
 In a certain sense all the earlier Canons lead up to 
 it ; and in a certain sense all the later Canons refer back 
 to it. The unknown monk of S. Felix, in the ancient 
 city of Bologna, won for himself immortal fame, when 
 the Decretum came forth from that famous seat of 
 learning in the middle of the twelfth century. 
 
 Yet in some respects the Decretalia of Gregory ix. 
 forms a more complete legal system, and also requires 
 careful consideration. Gratian reconciles discordant 
 Canons that came down to him from past ages : 
 Gregory arranges all the Canons on a logical plan and 
 uniform system. So many as thirty-six Collections of 
 Canon Law are known to have been brought into 
 existence before the year 1 1 50. The principal sources
 
 DECRETUM GRATIANI 23 
 
 from which Gratian derived his information in regard to 
 earlier Canons may be stated as follows : — 
 
 1. Collectio Anselmo dedicata, A.D. 8S3-897. 
 
 2. Rej^inonis Abbatis Prumensis libri duo de synodalibus 
 
 causis et disciplinis ecclesiasticis, A.D. 906. 
 
 3. Burchardi Wormatiensis Decretum, A.D. 1012-1023. 
 
 4. Anselmi Lucensis collectio Canonum, A.D. 1086. This 
 
 collection was apparently held in high esteem by 
 Gratian. 
 
 5. Deusdedit presbyteri Cardinalis tituH apostolorum in 
 
 Eudoxia Collectio Canonum, papre Victor! iii. 
 dedicata, A.D. 1086-7. 
 
 6. Ivonis Carnotensis Decretum, a.d. 1117. This great 
 
 work was also carefully studied by Gratian. 
 
 7. Ivonis Carnotensis Panormia. 
 
 8. Collectio trium Partium. 
 
 9. Collectio quae Polycarpus vocatur Cardinalis presbyteri 
 
 Gregorii tituli S. Grisogoni ad Didacum ecclesiae 
 S. Jacobi episcopum date annum 11 18 confecta esse 
 videtur. 
 10. Collectio Csesaraugustana. 
 
 The Decretum was issued in its complete form by 
 Gratian, a monk of the Benedictine Monastery of S. 
 Felix, in the city of Bologna, in the year 1151, during 
 the reign of Pope Eugenius in., or, as the best critics 
 now think, between 11 39 and 1142. 
 
 A curious confirmation of these facts may be found 
 in an ancient MS. in the \^atican Library entitled 
 " Pomaerium Ecclesiae Ravennatis," in which mention is 
 thus made of Gratian: "Anno Christi millesimo 
 centesimo quinquagesimo primo Gratianus Monachus 
 de Classa ? (probably Clusio, connected with Lars
 
 24 THE CANON LAW 
 
 Porsenna) civitate Tusciae natus, Decretum composuit 
 apud Bononiam in monasterio Sancti Felicis." 
 
 Ancient authority and the commonly received 
 opinion of the learned in modern times unite in attri- 
 butine this remarkable work to Gratian, the little 
 known Bolognese monk. And it is certainly fitting 
 that so great a legal book should be closely identified 
 with the city and university of Bologna, the dis- 
 tinguished seat of the systematic teaching of law 
 during a considerable part of the Middle Ages. 
 
 After the various sessions of the Council of Trent 
 were over, in the reign of Pius v. in the year 1566, 
 a commission of five Cardinals and twelve doctors, 
 with the addition of certain distinguished persons so 
 as to make the number up to thirty-five, made a 
 careful examination of the received text of the 
 Decretum, and, having inserted certain corrections, 
 brought out the famous Roman edition of the Corpus 
 Juris Canonici. Their fourteen 'heads of correction 
 show theological bias as much as legal acumen. For 
 by that date the great age of the study of Canon 
 Law was over, and the Latin Church was split up 
 into isolated fragments, each endeavouring to formu- 
 late a law of its own, especially in regard to heresy, 
 yet ever unmindful of schism. 
 
 The remarkable opening sentences of Gratian 
 seem worth quoting verbatim, for they are note- 
 worthy in more ways than one : — 
 
 Distinctio Prima. Gratianus. Humanum genus
 
 DECRETUM GRATIANI 25 
 
 duobus regitur, natural! videlicet jure et moribus. Jus 
 natunu est, quod in lege et evangelic continetur, quo 
 quisque jubetur alii facere, quod sibi vult fieri, et prohib- 
 etur alii inferre, quod sibi nolit fieri. 
 
 Unde Christus in evangelio : Omnia qua^cumque 
 vultis ut faciant vobis homines, et vos eadem facite 
 illis. Hanc est enim lex et prophetre. Hinc Ysidorus 
 in V. libro Ethimologiarum ait. CM. Divinae leges natura, 
 humanae moribus constant. Omnes leges aut divinas 
 sunt, aut humanae. Divina; natura, humance moribus 
 constant, ideoque hx discrepant, quoniam ali.-e aliis genti- 
 bus placent. Fas est lex divina : jus lex humana.* 
 
 And then there follows a series of definitions of 
 the different kinds of laws, as lex, mos, consuetude, 
 jus naturale, jus civile, jus gentium, jus militare, jus 
 publicum, and jus Quiritium. 
 
 The careful study of these opening sentences of 
 Gratian recalls the familiar commencement of Justinian's 
 Institutes and the Digest. There are, however, sub- 
 stantial differences in regard to the sphere of divine 
 and natural law, and their respective sanctions. While 
 the wording and arrangement corresponds to Justinian's 
 great work, there is in certain respects a new spirit 
 breathed into the old Roman forms, a new interest yiven 
 to the ancient legal principles. Distinctio iii. separates 
 ecclesiastical and civil law, or constitutions, and declares 
 that ecclesiastical constitutions are called Canons. 
 
 Porro canonum alii sunt decreta Pontificum, alii statuta 
 Conciliorum. Conciliorum vero alia sunt universalia, alia 
 provincialia. 
 
 * Cf. Serv ad Georg., I. 269. 
 4
 
 2 6 THE CANON LAW 
 
 In this passage it is clearly laid down that the 
 decrees of the Pope stand on the same footing and 
 have the same authority as the statutes enacted by 
 ecclesiastical councils, and it must always be remem- 
 bered that though much of the Corpus Juris Canonici 
 consists of the canons passed in early Church councils, 
 yet this whole body of Law was expressly issued to the 
 world by the authority of the Pope. 
 
 Moreover, although the Canon Law bestows exten- 
 sive power on the Pope, yet it also preserves, while it 
 defines, the powers of Bishops, the rights of the clergy, 
 and the parochial inhabitants. When the system of 
 pa[)al dispensations began to override even the Canon 
 Law itself, then first began the era of its decline. 
 
 Distinctio iii. and iv. considers why laws are made, 
 their quality, nature, and special characteristics. 
 
 On these points it is laid down that laws should be 
 just and possible of fulfilment, that they should be 
 according to nature and the customs of the country, 
 suitable to the place and the age ; needful, useful, free 
 from obscurity, not made for private convenience, but 
 tor the common good. 
 
 And Gratian's own comment is : — 
 
 Ideo autem in ipsa constitutione ista consideranda sunt, 
 quia cum leges institute fuerint, non erit liberum judicare 
 de ipsis, sed oportebit judicare secundum ipsas. 
 
 And then reference is made to S. Augustine's book 
 on true religion. The promulgation is important : —
 
 DECRETUM GRATIANI 27 
 
 Leges instituantur cum promulgantur, firmantur, cum 
 moribus utentium approbantur. 
 
 Gratian says that the Latin for the Greek name 
 Canon is regula, and gives a reason for the use of 
 this term taken from Isidore, or rather two or three 
 reasons ; and then defines the word Canon as an eccle- 
 siastical rule having the force of law made either by 
 the authority of the Roman Pontiff or by a council. 
 
 And further, councils possessing this power are 
 either general or provincial, and provincial councils 
 may be held under the presidency of a legate of the 
 Apostolic See, or of a Patriarch, a Primate, or a 
 Metropolitan. 
 
 Gratian next states that there are also leges 
 privatct in the ecclesiastical sphere of law as well 
 as the temporal, and that these laws are entitled 
 privilegia. 
 
 Nam privilegium inde dictum est, quod in private 
 feratur. 
 
 And then Gratian adds : — 
 
 Officium legum precipere quod necesse est fieri, aut 
 prohibere quod malum est fieri. 
 
 Then an example of an ecclesiastical law is given ; 
 and the example chosen is the decretal letter of Pope 
 Thelesphorus, ordaining the Lenten fast, which decree 
 is at a later date confirmed by a decree of Pope 
 Gregory the Great addressed to S. Augustine, who
 
 28 THE CANON LAW 
 
 was the first Archbishop of Canterbury, and here 
 entitled Episcopus Anglorum. 
 
 Distinctio v. commences with a statement by 
 Gratian dealing with the relation of husband and wife 
 and the baptism of their children. 
 
 Distinctio vi. commences with a general proposition 
 by Gratian himself And here the authority of Pope 
 Gregory the Great, in a letter to S. Augustine of 
 Canterbury, is cited. 
 
 In Distinctio vii. the law of the Twelve Tables 
 is cited, and in Distinctio viii. a further definition of 
 natural law is propounded. 
 
 Differt enim jus naturale a consuetudine et constitu- 
 tione. Nam jure nature sunt omnia communia omnibus. 
 
 Then Acts iv. 32 is cited, and also Plato, and S. 
 Augustine's Commentaries. In Anselm (xii. 62) and 
 Ivo Decretum (iii. 194) and Ivo Pan. (ii. 63) the same 
 arguments and positions may also be found. 
 
 By natural law all property is common, by enactment 
 and by custom private ownership is maintained. 
 
 Distinctio ix. declares : — 
 
 Quod autem constitutio naturali juri cedat multiplici 
 auctoritate probatur. 
 
 Distinctio x. lays down : — 
 
 Constitutioiies vero principum ecclesiasticis constitu- 
 tionibus non preminent, sed obsecuntur.
 
 DECRETUM GUATIANI 29 
 
 Distinctio xi. says: " Quod vero legibus coiisuetudo 
 cedat." Under this section in sub-section (caput) xi. it is 
 laid down: " Ab omnibus servari debet, quod Romana 
 servat ecclesia," — and Pope Innocent to Bishop 
 Decentius is quoted. 
 
 At this point, perhaps, the general design of the 
 Decretum in one very important point at least may be 
 said to be unfolded : for here we see plainly how, 
 starting on general principles, all things are in the 
 end brought into a logical scheme of subjection to the 
 Roman Church. Her authority is universal, extending 
 to the utmost limits of the known world. 
 
 There are altogether one hundred and one Dis- 
 tinctiones in the first portion of the Decretum of 
 Gratian, and to attempt to give any particular account 
 of each section would take much time and occupy too 
 much space. The last two sections refer to Archbishops 
 and Metropolitans, and the gift of the pall or pallium 
 distinguishing these dignitaries from ordinary Bishops. 
 
 The brief account, however, which has been given 
 of the opening sections of the Decretum will enable 
 every one to form some practical idea of the scope and 
 character of this most important and elaborate work. 
 
 The whole Decretum (without the Decretals) occupies 
 nearly 1500 very closely printed pages in the small type 
 quarto edition of Richter, published at Leipsic in 1879, 
 with Friedberg's Annotations. 
 
 While the first part, entitled in the Latin text Pars, 
 consists of one hundred and one Distinctiones, sub-
 
 so THE CANON LAW 
 
 divided into Canones, treating of the sources of 
 Canon Law, and ecclesiastical persons and the nature 
 of their offices ; the second part consists of thirty-six 
 Causae, or difficult cases for proper solution, subdivided 
 into Ouaestiones, or the several points raised by the 
 case, and then under these Quaestiones are arranged in 
 due order the various Canones relating to the case 
 under consideration. 
 
 One of these Causae, however, occupies a somewhat 
 different position to the rest. For Causa xxxiii., Ouaestio 
 3, headed " Tractatus de Paenitentia," is divided into 
 seven Distinctiones, each containing several Canones. 
 And in fact Causa xxxiii., Ouaestio 3, might almost 
 have formed a separate section of Gratian's great work. 
 
 The third part of the Decretum is entitled " De 
 Consecratione," and provides a concise summary, under 
 five Distinctiones, of the law relating to ritual and the 
 sacraments of the Church. 
 
 What are known as Dicta Gratiani, consisting of 
 notes appended by Gratian himself to many of the 
 Canons, are held to be of great authority, as emanating 
 from the honoured father of the Canon Law, but yet 
 are not entitled to the same weight as the actual text 
 of the Decretum ; and the passages which are headed 
 " Palaea," about fifty in number, considered to be 
 additions made by Gratian's favourite pupil Pauca- 
 palaea, are held to be of equal authority and weight 
 with the rest of the text. 
 
 Besides the old ecclesiastical law as handed down
 
 DECRETUM GRATIANI 31 
 
 from the earliest ages, Gratian had included in his great 
 work the principal Papal decretals which had been 
 issued to Christendom by the Roman See down to 
 the year 1 139. 
 
 But the eventful years in the varied history of 
 the Church which immediately followed the publication 
 of the Decretum, and more especially the remarkable 
 activity and wide success of Pope Innocent iii., and 
 one or two other Pontiffs following him, led to a 
 general widenin^^ of the sphere of the ecclesiastical 
 jurisdiction, and a vast increase in the number of the 
 pontifical constitutions. Innocent has been called 
 " pater juris," and is reputed to have published 4000* 
 decretal laws during his own Pontificate. In those 
 days the Roman See was assuredly not inactive! Not 
 content with the careful study of theology, the Roman 
 Curia boasted many a renowned jurist, and there was 
 scarcely any department of human intelligence which 
 escaped its ken. 
 
 The numerous constitutions thus published by 
 authority of the Holy See were described by mediaeval 
 lawyers as " decretales extra Decretum Gratiani 
 vagantes,"or more shortly as " decretales extra vagantes." 
 
 Five of the known Collections of these Extravagants 
 attained a very high reputation in the mediaeval schools 
 and courts of law ; and of these Five the Breviarium 
 Extravagantium of Bernard, Bishop of Pavia, in the 
 
 * He might well be compared with the Emperor Diocletian as a 
 Constitution maker.
 
 32 THE CANON LAW 
 
 sunlit plains of Lombardy, called " Compilatio Prima," 
 as being the oldest, forms a noteworthy model for all 
 subsequent collections. 
 
 The order of its arrangement in five Books 
 has been briefly summed up in the following quaint 
 mediaeval hexameter — 
 
 Judex, Judicium, Clerus, Connubia, Crimen. 
 
 Hence Bernard of Pavia stands in high repute 
 amongst Canonists. Of these Five collections, only 
 two, the third and fifth, actually received the formal 
 sanction of the Pope. 
 
 The classical gloss on the Decretum, called " Glossa 
 ordinaria," is the work of Johannes Teutonicus before 
 the year 1215, and of Bartholomew of Brescia who 
 flourished about 1235. 
 
 The entire Corpus Juris Canonici may be said to 
 consist of six principal members : — 
 
 1. Decretum Gratiani. 
 
 2. Decretalia Gregorii IX. 
 
 3. Liber Sextus. 
 
 4. The Clementines. 
 
 5. Extravagantes Johannis XXil. 
 
 6. The Common Extravagants. 
 
 The glossators are very numerous. We just give 
 a brief account of one or two for the purpose of 
 illustration. 
 
 Pilius was a native of Bologna, and Professor of Law 
 at Modena about 1187. He was employed by the Monks 
 of Canterbury to plead their cause against the Archbishop
 
 DECRETUM GRATIANI 33 
 
 before Urban ill., while Peter Blesensis was pleader on 
 the other side. The Pope came to no definite decision, 
 but is said to have leaned to Pilius' side. 
 
 Peter was born at Blois in France, and died Arch- 
 deacon of London ; while John of Salisbury died Bishop 
 of Chartres, showing the close intercourse between the 
 two countries in the twelfth century. 
 
 Rofifredus Epiphanii of Beneventum was one of the 
 numerous writers on Canon Law in the thirteenth century. 
 We know that he was alive in 1243 from his mention 
 of the election of Innocent IV. in that year. His work 
 on the Canon Law is methodical, being divided into twelve 
 parts in the following way: — i. Elections; 2. Episcopal 
 rights; 3. Marriage; 4. Tithes; 5. Patronage; 6. Spoliation; 
 7. Criminal matters ; 8. Excommunications ; 9. Judges ; 
 10. Appeals; 11. Execution; 12. Pardon. Of these various 
 parts only seven are now in existence. 
 
 Azo was also a famous Canonist. Most of these 
 writers on the Canons also composed commentaries on 
 Roman Law : but sometimes their commentaries are 
 somewhat confused, and lacking in proper arrangement 
 and due order.
 
 
 CHAPTER III 
 
 Decretalia Gregorii IX. — Books I. II. III. 
 
 Decretalia Book I. 
 
 Though the general circumstances of issue were some- 
 what different, yet the same causes in the main, whicli 
 brought about the compilation in Bologna of the 
 Decretum Gratiani, induced Pope Gregory ix. to 
 grant a commission to his learned chaplain Raymond 
 of Pennaforte in the neighbourhood of Barcelona in 
 the mountainous parts of Spain, and sometime Pro- 
 fessor of Law in the University of Bologna, to make 
 a collection of the numerous Canons issued since the 
 time of Gratian, and to digest them into an iiitel- 
 lieent and workable code. In this manner the famous 
 Decretals of Gregory ix. came into existence. Ray- 
 mond of Pennaforte did his work well, following with 
 great care and diligence the arrangements which had 
 obtained in the compilations in the five Books, which 
 formed in reality a kind of unauthorised basis for
 
 DECRETALIA GREGORII IX. 35 
 
 the Decretalia ; and then proceeding to make sub- 
 divisions into iiiuli, which consisted of capita arranged 
 in due order. Raymond was occupied for four years on 
 this important work, and then Pope Gregory, on the 
 final completion of Raymond's labours, promulgated his 
 Decretals in the year 1234. The original name " Libri 
 extra," etc., was abbreviated for convenience by the 
 jurists into " X," and in this form commonly quoted. 
 Now, these laws are in the form of authoritative 
 decisions pronounced by the Papal Courts in Rome 
 in all the different cases submitted to the Pontiff from 
 all parts of Christendom. It is obvious that many of 
 these cases will be in the form of appeals from the 
 special judicature of each particular country, and hence, 
 sometimes, of international interest. We find various 
 cases from England and Scotland,* and these have 
 special interest for ourselves. Pope Gregory prefixed 
 an interesting letter addressed to the University of 
 Bologna. He also instructed Raymond to omit such 
 facts and other matter as he considered irrelevant to 
 the case under consideration, but, in modern editions 
 of the Decretals, t these so-called paries decis<B have 
 
 * Cf. Ecclesice ScoticancB Statuta, II. 232. 
 
 + Six of the principal glosses on the Decretalia are the work of the 
 following authors : — 
 
 1. Vincentius Hispanus. 
 
 2. Goffredus Tranensis. 
 
 3. Sinibaldus Fliscus, afterwards Innocent IV. 
 
 4. /Egidius Fuscararius. 
 
 5. John Andreas, and the famous — 
 
 6. Bernard of Parma, who flourished about the year 1266.
 
 36 THE CANON LAW 
 
 been generally restored, in order to make the point 
 of law under discussion intelligible to the student of 
 the twentieth century. 
 
 In one way many of the Decretals of Gregory 
 form an authorised commentary on the Decretum of 
 Gratian, explaining more perfectly and fully some 
 principle of Canon Law which had been already 
 accepted at an earlier date, and numerous decretal 
 letters, addressed to the various archbishops and high 
 ecclesiastical dignitaries throughout Christendom, will 
 be found incorporated in Pope Gregory's collection. 
 
 Title I. of the first Book deals with the doctrine 
 of the Trinity, following Title i. of Justinian's Code. 
 
 Title II. deals with the Constitution of the Church. 
 
 Section 3 gives the Vicar of Christ power to change 
 the law. 
 
 Section 4 says everything forbidden by the law is sin. 
 
 Section 5 places the Decretals above private opinion. 
 
 Section 7 declares lay constitutions do not bind 
 the Church or the goods of the Church. 
 
 Section g allows an increase in the number of 
 Canons, even if that number has been confirmed by 
 the Pope, provided the profits and rents of the 
 capitular body justify such an increase. 
 
 Section 1 2 says Canons are not able without good 
 reason to restrict or diminish the number of Canons 
 or Prebends. 
 
 Section 13 says a constitution regards the future, 
 not the past.
 
 DECRETALIA GREGOKII IX. 37 
 
 Title III. deals with Rescripts. 
 
 Section 2 declares that rescripts of the Holy See 
 assume a clause of this kind " si preces veritate 
 nituntur," as was also the practice of the Roman Em- 
 perors. Furthermore, if the rescript prohibit the hearing^ 
 of the case, it may fairly be suspected of falsity. 
 
 Section 5 declares that obedience should follow 
 tlie receipt of a Papal rescript, or good cause shown 
 for non-compliance. 
 
 Section 6 announces that it is a privilege of the 
 Cistercians that they cannot be sum.moned by the 
 Pope, unless mentioned by name. 
 
 Section 1 1 says that bad Latin vitiates a Papal 
 rescript. 
 
 Section 2 1 says that in monastic causes the Abbot 
 may be summoned by rescript without mention of 
 the convent. 
 
 Title IV. concerns Custom. 
 
 Section 3 declares no custom valid which allows 
 the voice of the people to control ecclesiastical affairs, 
 as Innocent iii. informed the Bishop of Poitiers. 
 
 Section 4 says a custom is of no avail which 
 allows a priest to perform any episcopal duties. 
 
 Section 5 declares any custom which interferes 
 with the sentence of interdict to be invalid. 
 
 Section 7 declares any custom invalid which 
 authorises the resignation of a dignity without licence 
 of the superior. 
 
 Section 9 declares a chapter cannot make new
 
 38 THE CANON LAW 
 
 customs nor change old without the Bishop's 
 consent. 
 
 Section 1 1 says a custom cannot derogate from 
 the natural or divine law, whose transgression is sin ; 
 nor from positive law unless it be reasonable, and 
 according to prescription. 
 
 Title V. is " De Postulatione Praelatorum." 
 
 Section i says " Impostulabilis est qui violat inter- 
 dictum." 
 
 Section 6 says a bishop is not "eligendus, sed 
 postulandus," to another dignity. 
 
 Title VI. deals with Elections. 
 
 Section i says that collegiate churches should 
 elect their own head, who should not be appointed 
 by collation or provision. 
 
 Section 2 forbids confirmation of an election made 
 in deference to popular clamour. 
 
 Section 3 orders the confirmation of canonical 
 elections. 
 
 Section 4 orders Archbishops to take an oath of 
 fidelity and obedience before receiving the pall. 
 
 Section 6 declares anyone elected to the Roman See 
 by two parts of the cardinals out of three parts is Pope. 
 This decree of Alexander iii. made and confirmed in 
 a council at the Lateran is of great importance, for 
 it governs the Conclave at the present day. 
 
 Section 7 declares a Bishop on his election must be a 
 man of learning, of good character, fully thirty years 
 of age, and born in lawful wedlock.
 
 DECRETALIA GREGORII IX. 39 
 
 Section 9 says the Bishop Elect cannot confer 
 benefices or otherwise administer the diocese before 
 Confirmation. 
 
 Section 1 1 says a MetropoHtan having been 
 confirmed can consecrate suffragans, though he has not 
 received the pall. 
 
 Section 14 says electors must be free at the time 
 of election. 
 
 Section 1 7 says that if the elect have not sufficient 
 knowledge, or perform acts of administration before 
 confirmation, the election must be quashed. 
 
 Section 22 declares that he who is elected by the 
 majority and wiser part of the chapter, if he be suitable, 
 shall have his election confirmed ; but if he be 
 unworthy in regard to age, knowledge, or Orders, 
 then the elect of the minority, if worthy, shall be 
 confirmed. 
 
 Section 27 declares that if one who is not a monk 
 is elected head of a monastic establishment the election 
 is bad. 
 
 Section 29 says election by the minority of the 
 chapter is void. 
 
 Section 31 says that by custom chapters can elect 
 their own canons. 
 
 Section 34 says that a majority of the seven electors 
 may elect the Emperor. The Pope may examine 
 and approve, and crown the Emperor. 
 
 Section 38 says the Abbot elected must understand 
 monastic rule.
 
 40 THE CANON LAW 
 
 Section 45 orders payment of the chapter's necessary- 
 expenses out of episcopal estate on the election of 
 a bishop. 
 
 Section 54 says the Pope can give dispensation 
 for a plurality of benefices. 
 
 Title VII. deals with Episcopal translations, which 
 can be made by the Pope alone. 
 
 Title VIII. illustrates a tendency prevalent in 
 Gregory's time. Here the use of the pall is very 
 clearly defined, and the proper distinction drawn 
 between the dignity of bishops and archbishops, while 
 the extensive rights of th^ Roman See are maintained 
 as being the only authority capable of granting the 
 pallium to the prelates of Christendom. 
 
 Take by way of example the decretal letter of 
 Pope Innocent iii. to C. tit. S. Laurentii in Lucina 
 presb. Cardinali, apostolicae sedis Legato. 
 
 Nisi specialis dilectio ilia (Et infra [cf. c. 8 de off. 
 leg. I. 30]). Sane, si postulatio venerabilis fratris nostri 
 Troiani episcopl regni Siciliae cancellarii ad Panormitanam 
 ecclesiam fuisset per nos etiam approbata, non tamen 
 deberet se archiepiscopum appellare prius quam a nobis 
 pallium suscepisset, in quo pontificalis officii plenitudo cum 
 archiepiscopalis nominis appellatione confertur. Tu ergo, 
 sicut vir providus et discretus quod factum est sic 
 studeas palliare, ut id in confusionem tuam, et sedis 
 apostolicae opprobrium non redundet, quoniam si oporteat, 
 ut vel nos vel tu ex hoc negotio confundamur, eligimus 
 potius te confundi, quam laedamus sedis apostolicae 
 dignitatem.
 
 DECRETALIA GRKGORII IX. 41 
 
 But a further point is decided in the letter of 
 Pope Innocent iii. to the Archbishop of S. James of 
 Compostella. 
 
 As a general rule an Archbishop should only use 
 the pall within his own province, unless indeed a 
 special licence be obtained from the Holy See. 
 
 These minute resfulations in reference to the use 
 of the pall helped to consolidate the power and 
 influence of the Papacy. 
 
 Title IX. is De Renunciatione, and opens with an 
 interesting letter to the Bishop of London from 
 Alexander in. 
 
 Literas tuas niiper accepimus, devotione plenas et dolore 
 non vacuas, quando quidem et tuam nobis insinuaverunt 
 affectuosissimam caritatem, et tui archiepiscopalis officii, 
 quod fideltter gessisse, et adhuc te gerere gaudemus, 
 contrariam exigebant ecclesia; utilitatibus cessionem. 
 Nosti enim, sicut vir providus et prudens, quod tanta est 
 diei malitia, et contra ecclesiam Dei tarn gravis, tain 
 diuturna persecutionis instantia, ut nequaquam ei cedat 
 ad commodum, si tuam sedem contigerit subire defectum. 
 Si tuam aut senectutem aut insufficientiam forte consideraiis, 
 te tanquam emeritum postulas relaxari : scito, nos credere 
 et pro certo tenere quod tutius sit hoc tempore, si commissa 
 tibi ecclesia sub umbra tui nominis gubernetur, quam si 
 alteri novae incognitjeque personje gubernanda in tanto 
 discrimine committatur, maxime quia in te vigor devotionis 
 et fidei etiam corpore senescente non deficit, sed vergente 
 deorsum conditione corporea fervor spiritus in sublimiora 
 conscendit. Ne igitur hujus doloris aculeus vividam circa 
 te nostri pectoris vulneret caritatem, monemus te igitur 
 ut super hoc diebus istis nulla te facias importunitate 
 molestum, quia incedens omnino probatur, prius solvere 
 6
 
 42 THE CANON LAW 
 
 militiae cingulum, quam cedat victori adversitas prae- 
 liorum. 
 
 Insta igitur sicut bonus miles Christi, et in tuas 
 sollicitudinis officio persevera ; ne dum tu£ qiiietis 
 desideria quffiris, tu aliquid talenti tibi crediti detrimentum 
 patiaris. 
 
 Illud quoque te oportet attendere, quod si pennas 
 habeas, quibus in solitudinem volare satagis, ut quiescas: 
 ligatze sunt tamen nexibus prasceptorum, quae ita ut 
 nosti, ex sacrorum canonum institutione te vinciunt, ut 
 liberum non habeas absque nostra permissione volatum. 
 Ceterum ne, frater, te intolerabiliter nos gravare causeris. 
 qui melius tui potes tam animi debilitatem nosse, quam 
 corporis: hoc tandem tibi, si judicio conscientice tuas res 
 id prorsus exigit, indulgemus, ut suscepta opportunitate, 
 tam per te quam per principem terrae, vel etiam per 
 literas tuas, et idoneos nuntios, si corporalem ibi vel non 
 potueris, vel nolueris exhibere praesentiam, aliosque regni 
 illius religiosos, et industries de substituenda sis persona 
 sollicitus, et talem invenire satagas successorem, qui non 
 a fidei claritate degeneret, neque a tramite rectitudinis et 
 honestatis aberret. De his quoque quae tuis duxeris 
 necessitatibus reservanda, cum eisdem personas tractare et 
 deliberare te convenit : ut quum nobis haec omnia tam 
 tua quam illorem fuerint assertione comperta, ita provide 
 ac secure possimus in facto procedere, quod neque nos, 
 neque te ipsum oporteat hujus operis in posterum paenitere. 
 
 In this same title a number of other points are 
 laid down in regard to the resignation of ecclesiastical 
 preferment. A few of these points are given below : — 
 
 (a) Qui renunciavit beneficio suo, illud repetere non 
 potest. 
 
 (d) Beneficiatus sine licentia praelati sui beneficio 
 renunciare non potest.
 
 DECRETALIA GHEGORII IX. 4 3 
 
 (c) Qui sponte renunciavit electioni de se factae, super 
 ipsa ulterius audiri non debet. 
 
 (d) Renunciatio beneficii facta in manibus laici non 
 tenet ; renuncians tamen est beneficio spoliandus. 
 
 (f) Papa concedit licentiam cedendi episcopo, qui sine 
 mortis periculo in ecclesia sua morari non potest. 
 
 (/) Qui petit cedendi licentiam, ex quo illam obtinuit, 
 cedere compeliitur. 
 
 (^) Non renunciat juri suo, qui gratiae adversarii se 
 submittit. 
 
 {/i) Abbas exemptus sine licentia Paps renunciare 
 non potest. 
 
 The various decisions quoted above prove that 
 resignation was not in reaUty a very easy matter under 
 the Decretals of Gregory ix. 
 
 Title XI. names the appropriate time for Ordination, 
 and the proper qualifications for the candidates are 
 laid down. In the first place, it is held " Diebus 
 dominicis vel sabbato Pentecostes sacri ordines ab 
 alio, quam a Papa, conferri non debent." Moreover, 
 customs of another kind must not be allowed to 
 prevail. " Non valet consuetudo, quod extra statuta 
 tempora sacri ordines conferantur." In reference to 
 this point there is a decretal letter from Alexander iii. 
 to the Bishop of Hereford, which is interesting to 
 quote on account of the connection with the realm of 
 England, and the English Church. 
 
 Alexander III Episcopo Herfordensi (i.e. Hereford). 
 Sane super eo, quod moris esse dixisti in ecclesiis 
 quibusdam Scotiae et Valliae in dedicationibus ecclesiarum 
 vel altarium extra jejunia quatuor temporum clericos ad
 
 44 THE CANON LAW 
 
 sacros ordines promovere, prudentize tujE significamus, 
 quod consuetude ilia, utpote institutioni ecclesiasticae 
 inimica, et detestabilis est et penitus improbanda, et nisi 
 multitudo et antiqua consuetude terras esset (in causa) 
 taliter ordinati non deberent permitti in susceptis ordinibus 
 ministrare. Nam apud nos sic ordinati deponerentur, et 
 ordinantes privarentur auctoritate ordinandi. [De eo 
 autem, etc., cf. cap. seq.] 
 
 Furthermore, a monk must not be ordained contrary 
 to the prohibition of his ecclesiastical superior. " Re- 
 ligiosus contra prohibitionem prselati sui ordinari non 
 debet." For this point was laid down by Lucius in. 
 Archiepiscopo Turonensi. 
 
 In fact, in this and the immediately following titles 
 the laws relating to Holy Orders are very carefully 
 laid down. 
 
 It will suffice to quote a decretal letter of Alexander 
 III. to the Archbishop of Canterbury (Tit. xiv. sec. 2). 
 
 Ex ratione commissae tibi dignitatis et consideratione 
 legationis ad universas ecclesias tuae legationis aciem 
 sollicitudinis tua: debes extendere, et quae enormiter seu 
 contra justitiam facta fucrint pastorali cura corrigere et 
 emendare, quatenus de commissis ovibus coram patre- 
 familias plenam reddere valeas rationem, et tibi pro labore 
 et sollicitudine tua merces copiosa cumulatur in caslis. 
 
 Accepimus, autem, quod Conventrensis episcopus, non 
 attendens quid sacrorum canonum statuta decernant, nee 
 modestiam pontiiicalem conservans, pueris, qui sunt infra 
 decennium constituti, in archidiaconatu dilecti filii nostri 
 R. archidiaconi Cistrensis ecclesias piures concessit, qua; 
 non per clericos, sed per laicos dispensantur et disponuntur. 
 Unde quoniam hoc ecclesiasticae utilitati est inimicum et
 
 DECRETALIA GREGORII IX. 45 
 
 ration! contrarium, et ideo non debet hoc aliquatenus 
 tolerari, fraternitati tuae per apostolica scripta prsecipiendo 
 mandamus, quatenus, si ita res se habet, praedictum 
 episcopum super his viva increpatione corripias et castiges, 
 et clericis idoneis administrationes et custodiam prasscrip- 
 tarum ecclesiarum, donee [irredicti pueri ad congruam 
 veniant a;tatem, omni occasione et appellatione cessantibus 
 laicis amotis committas, eidem episcopo arctius prohibens, 
 ne de cetero ecclesias, nisi personis, quse aetatem et scien- 
 tiam habeant, regendas concedat. Quod si secus egerit, ei 
 debitam pa^nam infligens, institutionem et concessionem 
 ipsius omnino viribus carere decernas. 
 
 Title XXIII. concerns the office of an Archdeacon, 
 and here we find Alexander in. instructing the Bishop 
 of Coventry and the Abbot of Chester concerning the 
 Archdeacon of Chester's visitation : 
 
 Mandamus, quatenus prohibeatis R. Cestrensi archi- 
 diacono, ne clericos sive laicos, qui pro suis excessibus 
 puniendi sunt, pa;na pecuniaria mulctare, sive in examina- 
 tione ignis vel aquK a quolibet viro vel muliere extorquere 
 praesumat, aut pro annua et indebita exactione pecuniae 
 personas suspendere, vel ecclesias interdicere, neque ad 
 ecclesias sui archidiaconatus visitandas nisi semel in anno 
 accedat, nisi forte talis causa emerserit, propter quam ipsum 
 oporteat praefatas ecclesias saepius visitare. 
 
 Title XXVIII. defines the office of a Vicar, quoting 
 from Alexander iii. to the Bishop of Norwich, and the 
 same Pope to the Bishop of Ely, and also to the 
 Bishop of Winchester; while Innocent in. declares the 
 Pope's Vicar has only jurisdiction within the city of 
 Rome.
 
 46 THE CANON LAW 
 
 Title XXIX. deals at considerable length with the 
 power and position of a Judge Delegate, for the Popes 
 were constantly deciding judicial causes by the authority 
 or instrumentality of legates, or other official representa- 
 tives, and in like manner Archbishops and Bishops were 
 prone to delegate their judicial authority. The first 
 section gives us a decretal letter of Alexander iii. to 
 the Bishop of London (though some MSS. apparently 
 read Bath or Exeter), concerning the powers of the 
 Pope's representative. 
 
 Quia quaesitum est a nobis ex parte tua, quid faciendum 
 sit de potestatibus, quae, quum prjecipimus alicui justitiam 
 exhiberi de his quos diligunt, aut tueri volunt, minis aut 
 terroribus suis conquerentes silere compellunt, et sic 
 mandatum nostrum eluditur, sic tibi respondemus, quod, 
 sicut agentes et consentientes pari pasna scripturae testi- 
 monio puniuntur, sic tarn eos, qui trahuntur in causam, 
 quam principales eorum fautores, si eos manifeste cogno- 
 veris justitiam impedire, districtione ecclesiastica poteris 
 coercere. 
 
 In consequence of the practical importance of 
 Papal delegations in the Middle Ages, and the general 
 consequences of this principle, there are no fewer than 
 forty-three sections or caputs dealing with this matter. 
 
 And these various rules naturally lead up to the 
 subject of the next title, which deals with the office 
 of Legate. 
 
 And from the consideration of the powers, duties, 
 and privileges of a Papal Legate, and the difference 
 between a Legate in general and a Legate "de latere,"
 
 DECRETALIA GREGORII IX. 47 
 
 Gregory ix. passes on to the office of the Judge in 
 Ordinary, which for most purposes is the Bishop. 
 
 Title XXXIII. is headed De Majoritate et Obedientia. 
 Here section 14 states a well known and famous law. 
 " Vacante episcopatu Capitulum confirmat et infirmat 
 electiones." And the decretal letter of Gregory ix. 
 himself is Sfiven " Priori fratrum Prsedicatorum et archi 
 diacono Rheginensi." 
 
 Section 16 lays down the general principle that 
 if a church be raised to the rank and dignity of a 
 Cathedral, the jurisdiction of the Archdeacon over 
 that church is thereby extinguished. 
 
 Title XXX IV. is De Treuga et Pace ; and opens with 
 a decree of Alexander in. published in the Lateran 
 Council. 
 
 Title XXXV. is De Pactis. There are letters decretal 
 to the Archbishop of York, and the Bishops of Exeter 
 and Worcester, amongst other prelates, laying down 
 various rules, forbidding the payment of money to 
 procure the resignation of a benefice, or the making 
 of a contract promising the succession on the death 
 of a particular priest, etc. etc. 
 
 Title XXXVI. is De Transactionibus (cf. Digest 11. 
 14 and 15). 
 
 Section 2 lays down that a composition concerning 
 tithe holds good when it has received the consent of 
 the superior, or ordinary. 
 
 The third section contains a letter to the Bishop 
 of " Dulmen," laying down that, if the chapter consent
 
 48 THE CANON LAW 
 
 to a transaction which the Bishop has made in the 
 name of the Church, none other can dissent. This 
 ecclesiastical law gave rise in after ages to much 
 discussion and elaborate interpretation. Thus, an 
 important gloss declares "abbas simpliciter ad agendum 
 constitutus, sine licentia capituli transigere non 
 potest." 
 
 In section 8 it is laid down that any transaction 
 made by a prelate concerning the goods of the Church 
 without the consent of the superior or ordinary will 
 not be binding upon his successor. 
 
 In this case the decretal letter is addressed to the 
 Abbot of Straphor and the Prior of Phe, two monastic 
 establishments whose position appears to be uncertain. 
 
 Title XXXVII. is headed De Postulando. 
 
 Section i forbids ecclesiastical persons from pleading 
 in secular courts, unless on their own behalf, on behalf 
 of the Church or of poor people. 
 
 Title XXXVIII. concerned Proctors. 
 
 Section 7 gives a decretal letter of Innocent iii. 
 to the University of Paris. 
 
 Scholaribus Parisiensibus. 
 
 Quia in causis qua; contra vos et vobis moventur, 
 interdum vestra universitas ad agendum et respondendum 
 commode interesse non potest, postulastis a nobis, ut 
 procuratorem instituere super hoc vobis de nostra permis- 
 sione liceret. Licet igitur de jure communi hoc facere 
 valeatis, instituendi tamen procuratorem super his auctori- 
 tate praesentium vobis concedimus facultatem.
 
 DF.CRETALIA GREGORII IX. 49 
 
 Section 10 declares that a proctor should enjoy 
 full liberty, especially in matrimonial cases. The 
 letter of Gregory ix. to Ubaldus of Pisa is then 
 quoted. The next section contains a letter to the 
 Archbishop of Canterbury. 
 
 Title XL. is headed De His, quae vi metusve causa 
 fiunt. 
 
 In section 4 Innocent in. addresses the Dean 
 and Sub- Dean of Lincoln from the Lateran Palace 
 on the nones of February in the year i 200. 
 
 Qui per metum, qui cadere potuit in constatem virum, 
 beneficio suo renunciare juravit, et renunciavit, illud repetere 
 poterit. 
 
 Title XLi. concerns Restitutio in integrum. 
 The first section declares — 
 
 Si in contractu venditionis vel locationis ecclesia fuit 
 enormiter la;sa, potest adversus talem contractum petere 
 restitutionem in integrum : emptor tamen sive conductor 
 non debet fraudari in pretio suo, vel in sumptibus per eum 
 factis. 
 
 This principle of ecclesiastical law is laid down 
 by Alexander iii. Alphanensi Episcopo. 
 
 Title XLiii. deals with Arbitration, and opens with 
 a decree or canon of the African Council, which is 
 also found in Burchart and Ivo. 
 
 Si autem ex communi placito episcoporum, inter quos 
 causa versatur, arbitros elegerint, aut unus eligatur aut 
 tres, ut si tres elegerint, aut omnium sequantur sentent'am, 
 aut duorum. 
 7
 
 50 THE CANON LAW 
 
 The object is to obtain a clear majority in every 
 decision. 
 
 Section 3 contains a decretal letter of Alexander in. 
 to the Bishop of Exeter, which lays down that 
 "arbiter assumptus in patrimoniali causa clerici non 
 potest adjudicare rem ecclesiae possidendam, etiam ad 
 vitam clerici." This is called a notable case. 
 
 Section 6 is addressed to the Bishop of St. Andrews 
 and the Abbot of Arbroath, latinised Bechot. 
 
 Section 8 forbids laymen being arbiters in spiritual 
 matters. 
 
 Decretalia, Book II. 
 
 Book II. of the Decretals contains 30 Titles. Title i. 
 is De Judiciis. 
 
 Section 2 provides for the transaction of ecclesiastical 
 business in the Consistory, or other similar Courts. 
 
 Section 3 provides that "causa juris patronatus 
 spectat ad judicium ecclesiae." The authority quoted is 
 the decretal letter of Alexander in. to the King- of 
 England. 
 
 & 
 
 Quanto te divina gratia. . . . Causa vero juris 
 patronatus ita conjuncta est et connexa spiritualibus 
 causis, quod non nisi ecclesiastico judicio valeat definiri, 
 et apud ecclesiasticum judicem solummodo terminari. 
 
 Section 5 lays down that " Vasallus coram domino 
 feudi conveniendus est, etiamsi dominus feudi sit 
 ecclesiastica persona, dummodo ibi actor possit suam
 
 DECUETALIA GUEGOUII IX. 51 
 
 juslitiam consequi : alias loci ordinarius poterit adiri." 
 This is called a notable case. 
 
 Section 8 says that clerics can only be summoned 
 before the ecclesiastical Court. 
 
 Lucius III. Strigonensi Archiepiscopo is here quoted. 
 
 Section 12 makes the Pope alone judge in doubtful 
 points relating to the privileges of the Holy See. 
 As might be expected, this decretal was issued by 
 Innocent iii. to the Abbots of S. Sergius and 
 S. George ; and the words are " Ouum enim super 
 privilegiis sedis apostolicse vertatur, nolumus de ipsis 
 per alios judicari." In the next section the same Pope 
 declares that the ecclesiastical judge may proceed 
 against laymen who are sinners, especially in cases of 
 perjury and breaking the peace. This principle is laid 
 down in a long letter to the Bishops of France. 
 
 Section 20 declares that " lapsu triennii non obstante 
 potest delegatus in causa sibi commissa procedere," 
 and is addressed to Tancred, Canon of Bologna. 
 
 Title II. deals with the nature of competent 
 Tribunals. 
 
 Section 1 quotes the Council of Calcedon, and 
 declares clerics should be summoned before the 
 Bishop. 
 
 Section 6 recognises the feudal jurisdictions, but 
 places the Pope above them, if an ecclesiastic is 
 concerned, and the feudal lord is negligent. 
 
 Section 9 says that clerical cases must be decided 
 according to the laws, and not according to lay customs.
 
 5 2 THE CANON LAW 
 
 Section i6 makes laymen usurping ecclesiastical 
 rights guilty of sacrilege, on the authority of a decretal 
 letter of Gregory ix. to brother Palmerius, Canon of 
 the Holy Trinity. 
 
 The next Titles explain more fully the ways of 
 procedure. 
 
 Title IX. forbids Legal Proceedings on Sundays and 
 festivals, and Title xiii. states the various methods of 
 Restitution. Here section 7 contains a decretal letter 
 of Alexander iii. to the Archbishop of Canterbury. 
 
 Spoliatus etiam a judice, juris ordine prsetermisso, ante 
 omnia restituatur. 
 
 The Pope reinstates R. in the Church of Werfort, 
 and appoints the Bishop of Exeter his delegate to 
 hear any matter in dispute between R. and the 
 Archbishop of Canterbury. The name of the Church 
 is very uncertain, the MSS. here varying very much. 
 We find Wefort, Nefort, Dorefort, Dinodium, Deufort, 
 Dureforti, Dimifort, Verfor, Durifort, and Dumolin. 
 
 Title XVI. is entitled " Ut Lite Pendente Nihil 
 innovetur." 
 
 Section i gives a decretal letter of Alexander in. 
 to the Archbishop of York about carrying his cross 
 erect throughout England. 
 
 Section 2 lays down on the authority of 
 Clement in. — 
 
 Accusatus de adulterio ad separationem tori noii 
 debet lite pendente privari possessione conjugali.
 
 DECUETALIA GUEGOKII IX. S3 
 
 Title XIX. is headed De Probationibus. 
 Title XX. concerns Witnesses. Section 28 requires 
 the evidence of more than one witness. 
 
 Innocent in. Consulibus et Populo Beneventano. 
 
 Canonica et civilia jura sequentes districtius inhibemus, 
 ne unius judicis, quantaecumque fuerit auctoritatis, verbo 
 credatur in causis, sive super testamentis, sive super 
 quibuslibet aliis contractibus quaestio agitetur. Nee 
 scriptum eorum, nisi testium adminiculo fulciatur, earn 
 obtineat firmitatem, quin ei possint et debeant duorum 
 vel trlum testium bonorum testimonia pra;valcrc, salva 
 in omnibus sedis apostolicE auctoritate. 
 
 This letter is dated the 4th of the Ides of June 1 198. 
 
 Title XXII. is De Fide Instrumentorum. 
 
 Title XXIII. De Prsesumptionibus. 
 
 Section 1 1 states " per cohabitationem diutinam et 
 famam de matrimonio et contractibus matrimonialibus 
 ac alia adminicula probatur matrimonium." Alex. 111. 
 Genuensi Archiepiscopo. 
 
 Title XXV. is De Exceptionibus. 
 
 Title XXVI. De Prsescriptionibus. 
 
 Section 6 states "una ecclesia in parochia alterius 
 quadraginta annorum spatio decimas praescribit." 
 
 Section 13 requires 100 years' prescription against 
 the Roman Church. 
 
 Title XXVII. is De Sententia et Re Judicata, and 
 Title XXVIII. De Appellationibus. 
 
 Section i contains a letter of Alex. iii. to the 
 Bishop of Exeter and Dean of London concerning 
 the collation to benefices.
 
 54 THE CANON LAW 
 
 Section 7 refers to papal appeals. Section 2)7 
 declares an interdict is not suspended by an appeal. 
 Section 65 forbids a third appeal. 
 
 Decretalia, Book III. 
 
 Book III. of the Decretals deals with the Clergy. 
 Title II. forbids Marriage. 
 
 Title III. deals with the case of Clergy who are 
 married and the treatment they should receive. 
 Section 3 provides — 
 
 Si clericus in minoribus beneficiatus matrimonium con- 
 trahat, privatur beneficio, et quod dedit ecclesiae sibi 
 restituitur. 
 
 The authorities quoted by Pope Gregory not un- 
 frequently belong to the earlier period when the 
 enforced celibacy of the clergy was first imposed on 
 the Roman Church, and many curious points arose as 
 to the treatment of wives and concubines. Section 6 
 recognises the son of a Greek priest born in wedlock. 
 
 Title IV. deals with the residence of Prebends and 
 Canon.s. The general rule laid down requires constant 
 residence, but as most of these officials held more than 
 one appointment they could not be in two places at 
 one and the same time, and so it came to pass that 
 a large number of legal exceptions to the rule of 
 constant residence were allowed to prevail. Thus the 
 rule of Pope Leo iii., quoted in Section 2, would
 
 DECRETALIA GREGORII IX. 55 
 
 certainly very much astonish a modern Cardinal of the 
 Roman Church. We just give the heading " Deponitur 
 Cardinalis, qui in suo titulo non residet." 
 
 It is then stated that a certain Cardinal priest 
 Anastasius, by the title of S. Marcellus, was thus 
 deposed in early times after five years' absence. 
 
 But all this seems to go back to the remote days 
 when the Cardinals were really the active Rectors of 
 the Churches in the city of Rome. 
 
 Canonical reasons for partial exemption from resid- 
 ence are given, and include such grounds as these : — 
 Study in the theological faculty of the University, the 
 business of the Church, and journeying with the 
 Bishop. 
 
 Title V. deals with Prebends and other dignities. 
 Section i declares the goods of the Church cannot pass 
 by right of consanguinity, and the third that the goods 
 of the Church are common property, as Pope Gregory 
 wrote to the sub-deacon Anthemius. 
 
 Section 6 makes the first mention of provision— so 
 famous a matter throughout the later Middle Ag-es. 
 
 And then there follows various rules as to the 
 position of monks in regard to the parochial property 
 of the Church. 
 
 And then the close connection between cathedral 
 chapters and the Pope is shown, and the special privi- 
 leges sometimes granted by the Holy See. 
 
 Section 7 declares that if a clerk has more than one 
 benefice he may select which to retain, and which to
 
 56 THE CANON LAW 
 
 resign, and the authority quoted is a decision of 
 Alexander in. 
 
 Section 8 forbids the division of Prebends and 
 other ecclesiastical dignities, or any change in their 
 character or condition. 
 
 This section seems more important than at first 
 appears, because in the Middle Ages rectories were 
 often divided and turned into rectories and vicarages 
 with the consent of the Bishop and the Pope, frequently 
 at the instance of an Abbey or Priory. As a matter of 
 fact this course was taken in regard to about half of the 
 parishes in England, and the laws then made now 
 govern those parishes. 
 
 Section lo forbids monks to try to diminish the 
 payments due to rectors or vicars, or to make a division 
 of parochial endowments. Alexander in. wrote in 
 strong terms on this subject to the canons and monks 
 in the diocese of York. 
 
 Section i6 provides that if a Bishop ordains any one 
 without a title, he must provide all necessaries till a 
 title is obtained. 
 
 And this rule also binds the Bishop's successor, and 
 is based upon a decretal letter of Innocent in. to the 
 Bishop of Zamora. 
 
 Section 21 is curious — 
 
 Si duo electi ad aliquam dignitatem compromittant in 
 judices, poterit judex alterum confirmare, et alteri pro bono 
 pacis de proventibus provisionem facere. Ista est pulcherrima 
 dispositio, et in toto corpore juris non habes consimilem.
 
 DECRETALIA GREGORII IX. 57 
 
 Section 24 permits investiture, or induction to a 
 benefice by deputy. 
 
 " Investiare " seems to include both induction by the 
 Archdeacon, and institution by the Bishop. 
 
 Section 25 gives the curious case of the cellarer 
 who claimed a Prebend also claimed by another 
 ecclesiastic. 
 
 Section 28 lays down six months as the time at 
 which the first benefice is vacated on acceptance of a 
 second, but the Pope has a power of dispensation. 
 
 Section 30 forbids the grant of pensions out of 
 Rectories. Both Bishops and patrons appear from 
 time to time to have endeavoured to make grants of 
 pensions in this way. 
 
 Section 32 makes a distinction between the rents 
 attached to a benefice, and any daily allowances attached 
 to the same. The first may be received, but not the 
 second, by a priest out of residence for the purpose of 
 theological study. 
 
 The case of the Archdeacon of York or of Evreux 
 is quoted, according to the MS. reading " Eboracensi " 
 or " Ebroicensi." The papal authority is that of 
 Honorius iii., Abbati Sanctae Genovefae. 
 
 Title VI. concerns Sick Clergy, and authorises a 
 coadjutor for rectors suffering from leprosy. 
 
 Title VII. deals with Institution : forbidding the 
 
 institution of laymen, and confining this power to 
 
 Bishops. 
 
 Section 7 provides that whoever possesse.'= the 
 8
 
 58 THE CANON LAW 
 
 power of collation to dignities cannot institute himself 
 — a very necessary provision in mediaeval times. 
 
 Title VIII. forbids Institution to a benefice not 
 vacant, and a promis ; to institute before vacancy is 
 null and void. When the right of patronage becomes 
 vested in a Bishop by lapse, he must exercise that 
 right within six months of the date of the lapse. 
 This rule is based on a Canon of the Lateran 
 Council. 
 
 In section i6 the Countess of Flanders incurs the 
 papal displeasure for making illicit promises concerning 
 benefices which were not vacant. 
 
 Title IX. declares nothing can be done during the 
 vacancy of a Bishopric, and a judgment against the 
 Church at that time does not hold good. 
 
 Title X. provides that no Ecclesiastical Property 
 can be alienated without the consent of the Chapter. 
 In a Collegiate Church the chapter or the majority 
 thereof makes a presentation to a vacant benefice in 
 their own gift. 
 
 The heading of section 7 is interesting — 
 
 Tenet donatio, quam de solius diocesani consensu facit 
 laicus ecclesiae de decimis, quas ab alia ecclesia habet 
 in feudum ab antique, ie ante Lateranense concilium. 
 
 Here is an illustration of the fact that the Lateran 
 Council of 1 180 for all practical purposes finally fixed 
 the law of tithe. 
 
 Innocent m. lays down that cathedral chapters 
 have a right to be summoned to provincial councils.
 
 DECRETALIA GREGORII IX. 59 
 
 Title XI. concerns the Powers of the Majority in 
 cathedral and collegiate chapters. 
 
 Title XII. forbids the Conferring of Benefices subject 
 to a diminution of value and rights of property. 
 
 Title XIII. forbids the alienation of the property 
 of the Church : but a rector may manumit slaves 
 on his estate, and they become "sub patrocinio 
 ecclesiae." 
 
 Land may be granted "in emphyteusis" to a tenant 
 who will prepare the same for cultivation by clearing 
 away useless woods. Such a case occurred in the 
 Bishopric of Worcester. 
 
 A Canon cannot let in perpetuity a farm belonging 
 to the Church. A certain Canon of Exeter had 
 wished to do this, but was prevented by Caelestine iii. 
 
 Section 1 1 provides for the Restitution of alienated 
 Church property. 
 
 Title xiv. concerns Precaria. 
 
 Title XV. deals with Commodatum. 
 
 Title XVI. deals with Depositum and xvii. with 
 Emptio at Venditio. There is a wholesome provision 
 that a person who uses fraudulent weights and measures 
 must do penance for 30 days on bread and water. 
 
 If a seller is deceived beyond half the fair and 
 just price, he may bring an action for the restitution 
 of the thing sold or a just price. 
 
 Title xviii. concerns Locatum et Conductum. 
 
 Title XIX. is De Rerum Permutatione. 
 
 A prince may acquire Church property by exchange,
 
 6o THE CANON LAW 
 
 but he must give property of equal or greater value. 
 All exchanges are invalid, if not made in due form 
 of law, and can be revoked by the next successor in 
 title. Benefices may also be exchanged, but nothing 
 temporal for anything spiritual. 
 
 Title XX. deals with Feus, and Innocent iii. gives 
 the Archbishop of Milan three cases, "in quibus, non 
 obstante juramento de non infeudando, potest episcopus 
 antiquam feudum ad ecclesiam reversum novo vassallo 
 concedere. H. d. est casus notabilis, interpretans 
 juramentum de alienando." 
 
 Title XXI. concerns Pledges, and only allows 
 Church goods to be pledged from necessity, or for a 
 reasonable cause. 
 
 Gregory in. informs the Bishop of Exeter that a 
 free man may not be put in pledge. If a rector 
 pledge the property of the Church, his heir must 
 redeem and restore the property to the Church. 
 
 Title XXII. is De Fidejussoribus. 
 
 Title XXIII. is De Solutionibus. 
 
 If a prelate charges a Church with external debts 
 he is suspended from the administration of both spirit- 
 ual and temporal affairs, and the Church is not bound 
 by any obligation. Gregory ix. issued a decretal 
 letter in 1232 to this effect, addressed to all the 
 Bishops of Christendom. 
 
 Title XXIV. is De Donationibus. A gift by a 
 prelate is invalid, if made without consulting the 
 Chapter, and to the injury of the Church.
 
 DECRETALIA GREGORII IX. 6i 
 
 It is provided by section 9 that " Donatio quinqua- 
 gesimse vel centesimae, quam facit episcopus cum gravi 
 ecclesiae suee detrimento, potest ki^itime revocari ; nee 
 etiam potest ultra quinquagesimam vel centesimam 
 conferre, etiam cessante laesione ecclesiae, sine auctoritate 
 superioris." The papal authority quoted is Innocent 
 III. to the Bishop of S. Andrew. 
 
 Title XXVI. deals with the very important question 
 of Wills. A Bishop may make a will of " res patri- 
 moniales," but not of "res ecclesiae." Yet an Abbess 
 has no power of making a will. The execution of a 
 will falls upon the Bishop after the lapse of one year 
 from the day of monition. A legacy is payable, though 
 left by word only, but a legacy involving the goods 
 of the Church is not payable. 
 
 Title xxvii. Intestate Succession. 
 
 Section i permits an ecclesiastic to bequeath his 
 goods to whom he will ; but if he make no will, and 
 has no relations by consanguinity, then the Church 
 succeeds. If an ecclesiastic, once a slave, die intestate, 
 his goods {i.e. peculium) are divided into four parts, 
 one to the bishop, one to the Church, one to the poor, 
 and one to his parents ; and if there be no parents 
 alive, then the bishop distributes this last fourth part 
 for the use and benefit of the Church. 
 
 Title xxviii. Burial. 
 
 Section i declares that on the death of an intestate 
 he must be buried in the sepulchre of his ancestors, 
 or where he selects as his place of burial, but the
 
 62 THE CANON LAW 
 
 parish Church shall have the canonical portion of that 
 which he shall have left for his burial to the Church, 
 
 Section 4 says that if a man in his mortal sickness 
 offer himself and his goods to a monastery, the parish 
 Church yet has the canonical portion. 
 
 Section 7 authorises a married woman to select her 
 own place of burial. 
 
 Section 9 says the amount due to the parish Church 
 is regulated by custom. 
 
 Section 11 declares that anyone dying " casualiter " 
 cannot be deprived of his right of burial. 
 
 Section 1 3 forbids the sale of burial grounds. 
 
 Section 14 authorises burial in the churchyard of the 
 excommunicated, absolved at the hour of death by his 
 parish priest, the heirs having to make satisfaction, as 
 Gregory ix. directed. 
 
 Title XXIX. Parishes. 
 
 Section 2 provides that parochial incumbents should 
 not be admitted to mass in other than their own parishes 
 on Sundays and Holy Days. 
 
 Title XXX. Tithe, First Fruits and Oblations. 
 
 Section 4 declares monks bound to pay praedial tithe 
 on farms newly brought into cultivation, out of which 
 tithe had formerly been paid : as Hadrian iv. informed 
 Thomas, Archbishop of Canterbury. 
 
 Section 7 declares the tenth part of the fruits actually 
 collected must be paid without deducting expenses. 
 
 Section 8 says that a dispensation from paying tithe 
 does not include hired lands.
 
 DECRETALIA GREGORII IX. 63 
 
 Section 10 says Cistercians, Templars, and Hos- 
 pitallers need not pay tithe on lands of their own, 
 cultivated by their own hands, or at their own expense. 
 
 Section 13 declares tithe of " novale " due to the 
 Church of the parish in which it arises. 
 
 Section 15 declares tithe cannot be granted to a 
 layman by hereditary right as a certain Abbot seemed 
 to think, whose error Alexander in. clearly pointed out. 
 
 Section 16 orders Jews to pay praedial tithes. 
 
 Section 17 forbids grants of tithe or oblations to lay- 
 men, and prelates making such grants must be punished. 
 
 Section 19 forbids a layman to transfer tithe to 
 another layman. 
 
 Section 21 declares that all kinds of farm produce 
 pay tithe. 
 
 Section 25 declares an imperial grant cannot remit 
 the payment of tithe. 
 
 Section 27 says that a dispensation as to tithe granted 
 to an ecclesiastical person includes "novalia." 
 
 Section 29 declares that he who owns tithe in 
 another parish (than his own) cannot thereby claim 
 " novalia " if they arise, as Innocent iii. decided at the 
 Lateran Palace in the year 12 10, saying that Cistercian 
 monks could not claim tithe of "novale," which by 
 common law belonged to the parish Church. 
 
 Section 33 makes tithe a first charge. 
 
 Section 34 says that all estates acquired by Cistercian 
 Abbots after the General Council will remain liable to 
 tithe exactly as was the case before they passed into
 
 64 THE CANON LAW 
 
 monastic hands. This also applies to Templars and 
 Hospitallers. 
 
 Title XXXI. concerns the Monastic Life. 
 
 Section i declares a monk must take his vows 
 willingly, and be of suitable age. 
 
 Section 2 says that the parents cannot claim a youth 
 (impubes) after he has spent one year in a monastery. 
 
 Section 3 says that a secular priest, accustomed to 
 use the monastic habit, must become a monk or give 
 up the habit. 
 
 Section 5 says a monk may not in a bold spirit pass 
 to another monastery, or possess separate estate. 
 
 Section 7 says that a Cistercian monk, going into 
 another monastery (presumably not Cistercian ?) must be 
 sent back to the monastery whence he came, as Alex- 
 ander III. informed the Archbishops and prelates of 
 France. 
 
 Section 8 declares a profession (of monastic vows) 
 made before the fourteenth year is not binding. 
 
 Section 9 declares that anyone who receives the 
 habit of a professed monk must become a monk, but he 
 who receives the habit of the novitiate may afterwards 
 return into the world. 
 
 Section 12 says that a daughter under 12 years 
 old placed in a monastery by her parents, cannot return 
 to the world, if she willingly take the veil after reaching 
 the age of 12. 
 
 Section 15 says a lunatic is not bound by the monastic 
 vow.
 
 DECRETALIA GREGORII IX. 6$ 
 
 Section i6 forbids profession during the time of 
 probation, yet if made, and the party is received, it 
 holds good. 
 
 This is called a very notable decision, and is con- 
 tained in a decretal letter of Innocent iii. to the Arch- 
 bishop of Pisa. 
 
 Section 17 declares that one who has been professed, 
 even if he never live in the cloister, is yet bound by 
 his monastic ru/e of life. 
 
 Section 2 1 allows those who have returned to the 
 world, not having made profession within the year of 
 probation, to be admitted to Holy Orders, and be pre- 
 ferred to benefices. 
 
 Section 24 says that fugitive monks are sought 
 for "annuatim" and compelled to return to their 
 monastery. 
 
 Title XXXII. is De Conversione Conjugatorum. 
 
 Section i declares that if a husband make profession 
 with his wife's permission, and the wife does not take a 
 vow of continency, and enter the religious life, the 
 Bishop will restore the husband to the wife. 
 
 Section 3 says that a husband making profession 
 without his wife's consent, and having therefore been 
 restored to her, is not on her death of necessity com- 
 pelled to enter a monastery. He should not, however, 
 marry again. 
 
 Then there follow a number of further enactments 
 framed to prevent husbands entering mofiasteries to get 
 rid of their wives or vice versa. 
 9
 
 66 THE CANON LAW 
 
 Section 1 7 says a wife can demand back a husband 
 who has made profession of reHgion, nothwithstanding 
 leave to do so had been obtained from her by fear. 
 
 Title xxxiii. is De Conversione Infidelium, and 
 contains only two short sections. 
 
 Title XXXIV. is De Voto. 
 
 Section i declares that "vota" may be redeemed by 
 giving alms for a just cause, application being made to 
 the superior ecclesiastical authority. 
 
 Section 2 declares the Pope can commute " votum 
 ultramarinum " — especially if made by the young. 
 
 Section 6 says the Church can compel the heir to 
 make good " vota ultramarina." 
 
 Title XXXV. De Statu Monachorum ut Canonicorum 
 Regularium. 
 
 Section i forbids the Bishop to molest a monastery, 
 except for purposes of correction. 
 
 Section 3 warns Cistercians to keep strictly to th« 
 original rule of their order. 
 
 A canon regular may be a parish priest, but he 
 should have one of his order with him, if possible. 
 
 Section 6 deals with the monastic habit, resignation 
 of private property, monastic silence, food, and per- 
 formance of offices duly appointed by the Abbot. 
 
 Section 7 declares monastic provincial councils should 
 as a rule be held every third year. This is the first of 
 twelve rules laid down concerning monastic establish- 
 ments, and the holding of monastic chapters. 
 
 Section 8 deals with the correction of monks, abbots,
 
 DECRETALIA GREGORII IX. tj 
 
 and the powers of visitors, as well as the position of 
 secular priests holding monastic benefices. 
 
 Title XXXVI. De Religiosis Domibus, ut Episcopo 
 sint subjectce. 
 
 Section 4 declares that a place once used for a 
 hospital or almshouse by episcopal authority is " religi- 
 osus," and can never again pass back to worldly uses ; 
 as Urban iii. informed the Bishop of Rimini. 
 
 Section 5 contains a decretal letter of Innocent in. 
 to the Patriarch of Constantinople concerning Greek 
 monasteries which were being turned into chapters of 
 secular canons. The Pope will only approve of such a 
 change if there is a total lack of suitable monks. 
 
 Section 7 says that a Bishop suing for possession 
 of a church "quoad temporalia et spiritualia" will 
 obtain the spiritualities for himself, unless the church 
 be exempt, but he must prove his right to the 
 temporalities. 
 
 Section 8 says a monastery is subject to the Bishop 
 in whose diocese it is situated, unless it is proved to 
 be excepted. 
 
 A famous case in England is the position of 
 Westminster Abbey, which is exempt from the juris- 
 diction of the Bishop of London, although situated 
 in the metropolis of England. 
 
 Section 9 requires every new order of monks to 
 obtain the direct sanction of the Bishop of Rome. 
 
 Title XXXVII. is De Capellis Monachorum. 
 
 Section 2 says that if a church (not a cathedral)
 
 68 THE CANON LAW 
 
 claim rights in another church, they must be proved 
 by prsescription, or in some other legal way. 
 
 Section 3 forbids single monks to occupy priories. 
 The apostolic rescript, and the decrees of the Lateran 
 Council coincide on this point, as Honorius in. informed 
 the Bishop of Venice. 
 
 Title XXXVIII. concerns Patronage. 
 
 Section 3 lays down the rule that if patrons 
 disagree then the person to be presented who has the 
 support of the majority is to be preferred, if a suitable 
 man. If the patrons do not present in due time then 
 the Bishop appoints. 
 
 Section 4 forbids lay institution under pain of 
 excommunication. 
 
 Section 5 declares that if a lay patron successively 
 presents two persons, and the second receives episcopal 
 institution, that institution is valid. 
 
 Section 7 says an advowson passes with the 
 transfer of other temporal property unless it be specifi- 
 cally excepted. 
 
 Section 1 1 says monasteries cannot retain churches 
 granted them by laymen without the formal consent 
 of the Bishop, except by prsescription, or subsequent 
 episcopal consent. 
 
 Section 14 forbids anyone to take possession of a 
 church without the patron's consent. 
 
 Section 1 7 forbids a patron to confer the tithe of 
 a church or any other spiritual property upon a 
 religious house without episcopal or papal authority.
 
 DECRETALIA GREGORII IX. 69 
 
 Section 18 declares that the presentee of a bishop 
 in another diocese should be admitted, if suitable. 
 
 This point is of practical importance, as bishops 
 have sometimes sought to claim all episcopal patronage 
 within their own dioceses. 
 
 Section 19 declares that anyone instituted after 
 due presentation ought not to be removed. 
 
 Section 20 declares that a second grant of a 
 church made by authority of the Bishop and the 
 patron is good, notwithstanding a prior grant by 
 the patron alone, as Alexander in. informed the 
 Archbishop of York. 
 
 Section 22 authorises the Bishop to appoint a 
 rector if the question of the patronage is not settled 
 within six months. 
 
 Section 23 declares that a patron cannot by his 
 own authority alienate his patronage unless this privi- 
 lege were reserved at the time of foundation by the 
 diocesan. 
 
 Section 25 declares that any one building a church 
 with the consent of the Bishop thereby acquires the 
 right of patronage. 
 
 Section 26 says a patron cannot present himself, 
 as Innocent iii. declared in 11 98. 
 
 Section 28 allows a legate de latere " to reserve 
 the right of collation to a church of which another 
 church is patron, though that church be not vacant, 
 and to make a grant thereof, when it is vacant." This 
 decretal was issued by Innocent iii. a.d. 1206, and,
 
 70 THE CANON LAW 
 
 as might be expected in the days of that Pope, tended 
 largely to increase the power of the Holy See. 
 
 Section 29 says that if a lay patron present two 
 persons successively, the institution of the second by 
 the Bishop holds good ; yet if the Bishop acted 
 maliciously he may be compelled to find a proper 
 benefice for the first. 
 
 Title XXXIX. De Censibus, Exactionibus et Procura- 
 toribus. 
 
 Section 3 declares the bishop is unable to impose 
 a fresh charge on a monastery. 
 
 Section 5 says the claimant of a charge must clearly 
 explain its reason. 
 
 Section 6 limits the number of horses a bishop 
 should require during his visitation. 
 
 Section 7 forbids the impost of new charges on 
 churches, or the increase of old charges. 
 
 Section 8 declares a prelate or rector cannot create 
 a new charge on his church, especially (to be valid) 
 after his own death. 
 
 Section 10 declares that he who imposes fresh 
 tribute* without the consent of the prince, should be 
 deprived of communion. 
 
 Section 1 5 forbids ecclesiastical patrons to impose 
 fresh charges on their churches, or increase the 
 old. 
 
 Section 17 makes all churches, except those which 
 
 * The word "pedagia" here used is found in a Charter of William, 
 Duke of Acquitaine, in 1087, and in many later mediaeval documents.
 
 DECRETALIA GREGORII IX. 71 
 
 are exempt, bound to provide procurations for the 
 Legates and Nuncios of the Apostolic See. 
 
 Section 19 says churches are bound to make answers 
 to the Bishop concerning procurations and a fourth part 
 of the tithes. 
 
 Section 20 provides for payment of charges in the 
 ancient money, according to which they were first 
 created, unless there be a custom by preescription to the 
 contrary, as Innocent in. informed the Bishop of Spoleto. 
 
 Section 23 says prelates receive procurations when 
 they hold visitations in person. 
 
 Section 25 says that he who visits a province in 
 the right of the metropolitan or the legate, can pass 
 sentence on those who refuse to pay procurations in 
 that province. 
 
 Section 27 declares a private oratory not liable to 
 procurations on a visitation. 
 
 Title XL. deals with Consecration. 
 
 Section 2 authorises the consecration of churches, 
 even on days that are not festivals, under the authority 
 of a decretal letter of Innocent iii., given at Rome 
 A.D. 1205. 
 
 Section 4 gives Innocent in.'s directions to the 
 Archbishop of S. James of Compostella as to how 
 a church must be " reconciled," after being polluted 
 by homicide, by the use of consecrated water with 
 wine and ashes. 
 
 Section 8 declares that he who desires a church 
 to be consecrated must first endow it.
 
 72 THE CANON LAW 
 
 Section 9 declares that a church which has been 
 polluted cannot be " reconciled " by an ordinary 
 priest. 
 
 Title XLi. deals with the Celebration of Divine 
 Service. 
 
 Section 3 declares it is enough for a priest to 
 celebrate once a day. 
 
 Section 6 says that any words in the Canon 
 of the Mass not actually found in the Gospels are 
 believed to have been received by the Apostles 
 from Christ, and handed down to their successors. 
 In this section it is also stated that "in sacramento 
 altaris aqua cum vino transubstantiatur in sanguinem." 
 
 Section 8 declares the right opinion to be that 
 Christ is very God and very man. The words of 
 Holy Scripture are here quoted at length in regard 
 to this mystery, with special reference to the soldier 
 who pierced Christ's side on the Cross. 
 
 Section 9 orders all bishops and priests with care 
 and devotion to celebrate the daily and nightly offices 
 of the Church. 
 
 Section 1 1 orders two masses to be celebrated 
 daily in collegiate churches for the college. 
 
 Section 12 says that on the Thursday before Easter 
 the Bishop ought to celebrate in his own cathedral 
 church, hallow the oil, etc. 
 
 Section 13 orders more wine than water to be 
 placed ready for use at the celebration. 
 
 Title XLii. concerns Baptism.
 
 DECRETALIA GKEGORII IX. 73 
 
 Section i declares the formula necessary, " Ego te 
 baptizo in nomine Patris, et Filii, et Spiritus sancti." 
 
 Section 2 provides a form for use in doubtful 
 cases. 
 
 Section 3 declares baptism remits original sin. 
 
 Section 5 says there is no baptism without water 
 and the proper formula. 
 
 Section 6 forbids Greeks to re-baptize those who 
 have been baptized in the Latin Church. 
 
 Title XLiii. declares Baptism necessary before 
 Ordination to the Priesthood. 
 
 Tide XLVi. regulates the Observance of days of 
 fasting. A vigil coming on Sunday must be observed 
 on Saturday ; and flesh may be eaten on Christmas Day 
 and the following days on account of the excellence 
 of that great Festival, as Honorius in. informed the 
 Bishop of Prague in a.d. 12 16. 
 
 Title XLVii. provides for the Churching of Women. 
 
 Title XLViii. deals with the Building and Repair of 
 Churches. 
 
 Section i says those who have benefices should 
 contribute to the repair of the fabric of the church. 
 
 Section 3 declares that on account of distance a new 
 church may be built in an old parish, and a portion of 
 the parish assigned to the new church, as Alexander 
 III. wrote to the Archbishop of York. 
 
 Section 4 compels rectors to repair their churches. 
 
 Section 3 explains how a secular church may be 
 
 provided with a monastic chapter, due regard beino- 
 10
 
 74 THE CANON LAW 
 
 had to the Hfe interest of the clergy already 
 attached to that church. After the consent of the 
 Bishop has been obtained, then application may be 
 made to the Apostolic See for a charter, etc. 
 
 Title XLi.x. concerns the Immunity of Churches and 
 their Property. 
 
 Section i forbids a lay judge to give judgment in 
 regard to ecclesiastical establishments. 
 
 Section 2 provides that in times of great necessity 
 all men may help defend the city. 
 
 Section 3 forbids rustics, bound to cultivate the 
 lands of the Church, from departing from their labour. 
 Apparently a system of serfdom prevailed in certain 
 parts of Europe at this time. 
 
 Section 4 forbids laics to impose taxes on ecclesi- 
 astics, or to usurp their jurisdiction. If after due 
 warning they do not cease so doing, they are ex- 
 communicated together with their abettors, yet the 
 bishop has power "cum clero eis in necessitate prsebere 
 subsidia." 
 
 Section 5 forbids the Church to hear cases involving 
 blood. 
 
 Section 6 maintains the right of sanctuary in holy 
 places. The accused must not be forcibly driven 
 therefrom under any pretext whatever, yet a slave is 
 returned to his master. On this matter Innocent iii. 
 wrote a decretal letter to the King of Scotland from the 
 Palace of the Lateran in the year 1200. 
 
 Section 8 forbids Bishops to exact more than is due
 
 DECRETALIA GREGORII IX. 75 
 
 by the name of "procurations," or under any other 
 name. If they do so, they ought to make restitution. 
 
 Section 9 declares that a Church in which the 
 divine offices have been celebrated enjoys the right of 
 immunity, even if that Church has not been consecrated. 
 
 Title L. forbids Ecclesiastics to embark on secular 
 business. 
 
 Section i mentions fourteen different kinds of 
 business, which were expressly forbidden by the Council 
 of Maguntum ; according to the precept of the Apostle, 
 " Nemo, militans Deo, implicat se negotiis saecularibus." 
 
 Section 2 forbids clerics to be proctors for laymen. 
 
 Section 3 orders monks to be excommunicated who 
 spend more than two months at a time hearing lectures 
 on law or medicine without returning to the cloister ; 
 but the Pope may grant dispensations, "ex misericordia 
 sedis apostolicae." 
 
 Section 6 forbids clergy and monks to make 
 business profits. 
 
 Section 8 forbids clerics to hold the office of 
 " tabellionatus," or the writers or copyists of legal 
 documents, as Innocent iii. decreed a.d. 121 i. 
 
 This fiftieth Title concludes the Third Book of the 
 Decretals of Gregory ix.
 
 CHAPTER IV 
 
 Decretalia Gregorii IX. — Books IV. V. 
 
 Decretalia Book IV. 
 
 Book IV. of the Decretalia deals with Marriage, and 
 other kindred matters ; and is of special importtince 
 in view of its practical influence on the modern law 
 of Europe. 
 
 Here is the opening statement : — 
 
 Matrimonium solo consensu contrahitur, nee invalidatur, 
 si consuetudo patriae non servetur. 
 
 These words correspond with the rules and regula- 
 tions of the Roman Law in the days of the Empire 
 rather than with the final decrees of the Church. Here 
 the old Roman influence is clearly seen in the actual 
 form of the Canon. 
 
 But Vicarius, the famous Professor of Law at 
 
 Oxford, who came from the University of Bologna, 
 
 taucjht that " traditio " was of the essence of 
 
 marriage, and the later Canons regarded the presence 
 
 of the priest and his benediction as an essential part 
 
 76
 
 DECRETALIA GREGORII IX. 71 
 
 of the ceremony. In fact marriage became an ecclesi- 
 astical function, and was regarded as a sacrament of 
 the Church.* This view was upheld by the famous 
 Council of Trent. The law of England also requires 
 the celebration of marriage by the clergy after banns 
 or by licence. 
 
 The first law case quoted may be interesting to 
 give in detail. 
 
 Ex Concilio Triburiensi. 
 
 De Francia nobilis quidam homo nobilem mulierem 
 de Saxonia lege Saxonam duxit in uxorem, tenuitque 
 earn multis annis, et ex ea filios procreavit. Verum quia 
 non eisdem utuntur legibus Saxones et Francigena;, 
 causatus est, quod earn non sua, id est Francorum lege 
 desponsaverat, vel acceperat, vel dotaverat, dimissaque 
 ilia aliam superduxit. 
 
 Diffinivit super hoc sancta synodus, ut ille transgressor 
 evangelical legis subjiciatur pfenitentia-', et a secunda 
 conjuge separetur, et ad priorem redire cogatur. 
 
 So the poor nobleman of France was unable to 
 have his desire satisfied, and found it impossible to 
 marry a second wife. 
 
 Section 2 deals with Sponsalia, and the sections 
 immediately following. The intricate rules, however, 
 connected with sponsors in relation to marriage are 
 for the most part obsolete, and have long been so. The 
 godfathers and godmothers were brought into spiritual 
 relationship with the godchild, and in this way a special 
 
 * Four great Canonists have occupied the Papal throne— AIe.\ariclei ni. 
 Innocent ni., Gregory ix. and Innocent iv.
 
 78 THE CANON LAW 
 
 impediment to lawful matrimony might be, and often. 
 was, created. The various results, which arose in 
 consequence of this spiritual relationship, became the 
 appropriate subject of spiritual censure, and also of an 
 elaborate system of spiritual dispensations issued by the 
 Holy See. Much the same may also be said of the 
 rules relating to betrothals. Here, as in other ways, the 
 Canon Law goes behind the simple consent of the 
 parties required by the old Roman Law. 
 
 Section 23 allows deaf and dumb, but section 24 
 forbids madmen to enter into matrimony. 
 
 Section 25 requires consent to be in suitable words, 
 lawful, and easily understood. 
 
 Section 26 is of importance. 
 
 Si alter contrahentium utitur verbis dubiis, animo 
 decipiendi mulierem, et earn postmodum cognoscit car- 
 naliter, judicatur pro matrimonio in foro judicial!, secus in 
 psenitentiali. 
 
 Title II. deals with De Desponsatione Impuberum. 
 
 Section 3 names 14 years as the age of puberty. 
 
 Section 9 provides that minors suitable for marriage 
 are bound by a contract of marriage, unless force be 
 pleaded, but by section 10 a contract before puberty 
 does not effect a marriage. 
 
 Title III. concerns Clandestina Desponsatio. 
 
 Title IV. is De Sponsa Duorum. 
 
 Section 4 provides that the appellant in a matri- 
 monial suit can have an interdict forbidding a marriage 
 while the suit is pending.
 
 DECRETALIA GREGORII IX. 79 
 
 Title V. deals with the position and status of persons 
 wishing to marry. 
 
 Section 5 declares that a contract of marriage made 
 under a proper condition need not be consummated until 
 the fulfilment of the condition. 
 
 Title VI. considers the Marriage of the Clergy. 
 Deacons and sub-deacons cannot marry. 
 
 Section 3 provides that — 
 
 Votum solenne impedit et dirimit matrimonium post 
 contractum : votum simplex tantum impedit contrahendum, 
 sed non dirimit post contractum. 
 
 This proposition is laid down in a decretal letter of 
 Ale.xander iii. to the Bishop of Worcester. 
 
 Title VII., section i, declares that if anyone marries 
 a second wife, the first being alive, but not known to 
 be so, he cannot on his own petition, when the first 
 dies, be separated from the second wife. 
 
 Section 4 provides that if a man knowingly marries 
 a second wife, the first being alive, and even judicially 
 separated, he shall be separated from the second wife, 
 notwithstanding the death of the first wife. 
 
 Title i.\. deals with the Marriage of Slaves. 
 
 Section 2 provides a marriage between a freeman 
 and a slave may be annulled, if the freeman was unaware 
 of the slavery. If it be customary that the offspring 
 follow the status of the father, the child of a free man 
 and a slave girl is free. 
 
 Title XI. concerns Spiritual Relationship, and Titles
 
 8o THE CANON LAW 
 
 XIII. and XIV. concern other kinds of Relationship, 
 especially in so far as they may be a bar to marriage. 
 Title XIV., section i, provides that — 
 
 Separatur matrimonium contractum inter affines primi 
 generis at qiiarti gradus. 
 
 Section 3 declares on the authority of Pope Cseles- 
 tine III. — 
 
 Si dispensatur cum aliquo, ut possit contrahere in certo 
 gradu alias prohibito, requiritur, quod uterque contrahen- 
 tium toto gradu distet a stipite, priesertim si hoc habet 
 consuetudo. 
 
 Section 4 lays down that infidels married within 
 the prohibited degrees are not separated after baptism. 
 To this effect Innocent iii. wrote, " Archiepiscopo et 
 capitulo Tirensibus." 
 
 Title XV., section 2, declares impotent Persons incap- 
 able of marrying. Moreover on this or kindred grounds 
 a marriage may be dissolved. 
 
 Title XVI. enjoins Penance on all those who marry 
 in spite of the interdict of the Church, and those who 
 are deemed relatives, and have contracted to marry 
 against the Judge's precept, should be separated until 
 their case has received due cognisance. 
 
 Title XVII. deals with Legitimacy. 
 
 The first section lays down the important principle 
 (which has borne remarkable fruit in both English and 
 Scottish history) that a child borne before wedlock may
 
 DECRETALIA GIIEGORII IX. 8i 
 
 be made legitimate by the subsequent marriage of the 
 parents, even to the extent of becoming the heir. 
 
 Section 2 lays down that children born before a 
 sentence of judicial separation are legitimate. 
 
 Both these sections are based on decretal letters 
 of Pope Alexander iii. We give the first, owing to 
 its importance : 
 
 Conquestus est nobis H. lator praesentium quod, quum 
 qiiandam mulierein Neptem R. in iixorem acceperit, pras- 
 fatus R. patruus mulieris ipsam exheredare conatur eo, 
 quod ante desponsationem matris suae nata fuerit, licet 
 postea, prout dicitur, pater mulieris pra^fatse matrem ipsius 
 acceperit in uxorem. Ideoque fraternitati vestra; per 
 apostolica scripta praicipiendo mandamus, quatenus, si est 
 ita nullius contradictione vel appellatione obstante, earn 
 legitimam esse judicetis, prredicto R. ex nostra et vestra 
 parte inhibentes, ne szepe dictse mulieri et heredibus suis 
 hac occasione super heredidate paterna molestiam inferat 
 vel gravamen. Si autem contra hoc venire prsesumpserit 
 eum sublato appellationis remedio severitate ecclesiastica 
 percellatis. 
 
 This famous canon was incorporated into the 
 law of Scotland, but never at any time prevailed in 
 England, and when the Bishops proposed its intro- 
 duction in 1236, the Barons at Merton made the 
 famous pronouncement :— " Nolumus leges Angliae 
 mutari." So our own law still remains as it was 
 in regard to this matter before the days of Pope 
 Alexander iii. 
 
 Section 3 provides that if the parentage of the 
 II
 
 82 THE CANON LAW 
 
 child is denied, this statement hold 5 good, unless proof 
 to the contrary is forthcoming. 
 
 Section 5 deals with jurisdiction, and is entitled a 
 " very notable " portion of the text. 
 
 Quaestio nativitatis, opposita petenti hereditatem coram 
 judice saeculari, est ad ecclesiasticum judicem transmit- 
 tenda. 
 
 Section 6 provides that "spurii" are not legitimated 
 by subsequent marriage. 
 
 Section 7 contains a letter of Alexander iii. to the 
 Bishops of London and Worcester to the effect that the 
 Church does not hear civil actions, but always inquires 
 into the lawfulness of marriage. 
 
 Section 9 provides that children of a clandestine 
 marriage approved by the Church are legitimate. 
 
 Section 10 contains a decretal letter of Caelestine in. 
 to the Archbishop of York denying legitimacy or right 
 of heirship to " nati ex matrimonio contracto contra 
 publicse honestatis justitiam." 
 
 Section 1 1 provides that proof of an impediment (in 
 the canonical sense) is not of itself enough to make the 
 offspring illegitimate, if the marriage was contracted 
 " in facia ecclesise." 
 
 Section 13 declares that the Pope can issue letters 
 of legitimation within the States of the Church, as 
 
 Innocent iii. informed that noble gentleman, G of 
 
 Monte Pessulo. 
 
 Title xviii. deals with Witnesses, who must appear 
 in person, and be worthy of credit.
 
 DECRETALIA GREGORII IX. 83 
 
 Title XIX. concerns Divorce. 
 
 Section 3 provides that a man cannot put away his 
 wife without a judicial decree of the Church. 
 
 Section 5 declares the wife's adultery to be a good 
 ground of separation. 
 
 Section 7 declares the marriage bond is not dissolved 
 by a lapse into heresy. Yet certain regulations are 
 necessary for this particular case. If the parties should 
 separate owing to the lapse of one, on that one's restora- 
 tion they must unite again. 
 
 Section 8 provides that heathen already married 
 within the prohibited degrees must not be sparated on 
 their conversion to the faith. If there be many wives, 
 a Christian must keep to the first. 
 
 Section 9 enacts — 
 
 Non licet relictam fratris in uxorem accipere, et de 
 facto ducta separanda est, nisi aliter ecclesia dispensit. 
 
 This canon has a certain interest in regard to modern 
 controversies, forbidding marriage with a deceased 
 brother's wife. It is also noteworthy that nothing is 
 anywhere said which involves divorce in the modern 
 sense, namely, a separation with permission to marry a 
 second time. 
 
 Title XX. deals with Dowry, and gifts jointly to man 
 and wife. 
 
 By section 2, on a dissolution of marriage, the 
 husband must restore the dowry and divide the goods. 
 
 Section 4 deprives an adulteress of her right of dowry.
 
 84 THE CANON LAW 
 
 Section 5 contains a long decretal of Innocent in. to 
 the Archbishop of S. James of Compostella, and all the 
 Bishops of the kingdom of Leon in Spain, concerning 
 gifts made on account of marriage, and involving the 
 rights of the royal families of Leon and Castile, which 
 was given at the Lateran Palace on the eighth of the 
 Kalends of June in the year 1 199. 
 
 We give one of the concluding sentences — 
 
 Quia vero castra qusedam, quje rex Legionensis dictae 
 filiae regis Castella; in dotem tradidisse proponitur ita, ut, 
 si earn aliqua occasione relinqueret, ipsa cederent in jus 
 ejus, impedimentum prsestare videntur hujusmodi copulse 
 dissolvendje, quum castra ipsa non tarn ob turpem, quam 
 ob nullam potius causam sint data, utpote, quum inter cos 
 matrimonium non existat, et ideo nee dos, nee donatio 
 propter nuptias, ne ad commodum ei cedat quod debet in 
 psenam ejus potius retorqueri, castra ipsa restitui volumus 
 et ad id puellam ipsam per excommunicationis sententiam 
 coarctari, etc. etc. 
 
 Section 7 enacts — 
 
 Vir, agens pro dote, non omnino excluditur ex eo, quod 
 vergat ad inopiam, nee pra;cise cogitur satisdare ultra 
 facultatem propriam, sed dos sibi assignatur sub cautione, 
 quam przestare potest. Et si per illam cautionem non 
 esset sufficienter provisum consumptioni dotis, deponetur 
 dos apud mercatorem, ut de honesto lucro vir sustineat 
 onera matrimonii. 
 
 Some such arrangement as is here indicated appears 
 to have been common in mediaeval times, and was suited 
 to the particular circumstances of those days.
 
 DECIIETALIA GREGORII IX. 85 
 
 Book V. Decretalia Gregorii IX. 
 
 This last Book of the Decretals deals mainly with 
 crimes and procedure. 
 
 Title I. concerns Accusers, Inquisitors, and De- 
 nouncers. 
 
 Section 6 forbids a second prosecution for the same 
 crime, for the Council of Maguntum declared by a 
 Canon — 
 
 De his criminibus, de quibus absolutus est accusatus, 
 non potest accusatio replicari. 
 
 Section 9 allows the judge to proceed in the case of 
 a notorious crime without any individual undertaking 
 the prosecution, and curiously enough the authority here 
 quoted is the Commentary of S. Augustine on the story 
 of Cain and Abel in the opening chapters of the Book 
 of Genesis. 
 
 Evidentia patrati sceleris non indiget clamore accus- 
 atoris. 
 
 Section 10 declares laymen cannot bring accusations 
 against the clergy, as has been laid down by Alexander 
 III. 
 
 Section 1 1 allows a monk to prosecute an abbot, 
 the monk's expenses being paid by the abbey. 
 
 Section 25 recommends metropolitans to summon 
 provincial councils, and bishops to summon synods, for 
 the correction of excesses and reformation of morals. 
 
 Section 27 provides that if a prelate be accused of
 
 86 THE CANON LAW 
 
 dilapidating ecclesiastical property a commission of 
 inquiry must be held, and during the progress of the 
 business no alienation can be permitted. 
 
 Title II., section i, orders a sub-deacon calumniating a 
 deacon to be publicly whipped and deprived of his office. 
 
 Title III. deals with Simony, and is very lengthy, 
 consisting of 46 sections. 
 
 Section 4 provides that a priest charged with simony 
 may not perform divine service while the charge has 
 not been dealt with by the ecclesiastical authority. 
 
 Section 6 orders the deposition of simoniacal clergy, 
 as Pope Lucius directed. 
 
 Section 8 attempts a difficult matter, a definition of 
 simony. Here are the words — 
 
 Simoniacum est pretium recipere pro ingressu religionis, 
 pro prioratibus vel capellis concedendis, et pro prslatis 
 instituendis, pro concedenda sepultura, pro chrismate, pro 
 oleo sancto, pro benedictionibus nubentium, vel aliis sacra- 
 mentis : Nee valet consuetudo in contrarium. 
 
 This definition is based on an edict of Alexander in. 
 
 In the above statement matters of really very 
 different importance seem all placed in the same 
 category. The general result is, however, perfectly clear. 
 
 Section 10 says that the procuration is the only 
 lawful payment on the consecration of Churches. 
 
 Section 14 includes the concealment of a sinner and 
 the reconcilement of the impenitent under the head 
 of simony; and section 15 includes the purchase of a 
 church.
 
 DECRETALIA GREGORII IX. 87 
 
 Section 19 declares that an abbot and convent 
 receiving money by agreement for the reception of a 
 monk are suspended ; that money must be restored, 
 and the monk transferred to another monastery. 
 
 Section 20 declares it simony for one about to be 
 ordained to give anything by agreement to his patron. 
 
 Section 24 forbids payment for the absolution of the 
 excommunicated. 
 
 Section 27 declares an election bad and tainted with 
 simony if for the purpose of the election money has been 
 promised to the electors, even if the person elected was 
 not aware of it. 
 
 Section 31 allows an abbot, against witnesses who 
 have made a deposition against him of simony "in 
 judicio inquisitionis," to make use of the exception 
 that these witnesses are enemies and conspirators. 
 
 Section 35 says that no one ought to receive the mon- 
 astic habit from him who is believed to be simoniacal. 
 
 Section 36 forbids payment for the chrism or ecclesi- 
 astical investiture, as Innocent in. wrote to the Arch- 
 bishop of Canterbury. 
 
 Section 38 provides that payment for a vicarage or 
 any other spiritual or ecclesiastical office is simony. 
 
 Section 41 declares bishops must take nothing for 
 institution, professing monks, or burials ; anything 
 exacted must be restored twofold. 
 
 Section 42 says the sacraments are freely given. 
 
 Section 43 gives the form in which abbots of the 
 Cistercian order must undertake to obey the bishops.
 
 88 THE CANON LAW 
 
 Ego frater abbas Cistcrciensis ordinis subjectionem et 
 reverentiam et obedientiam a Sanctis Patribus constitutam 
 secundum regulam sancti Benedict!, tibi, domine episcope, 
 tuisque successoribus canonice substituendis, et sanctas sedis 
 apostolicae salvo ordine meo perpetuo me exhibiturum 
 promitto. 
 
 Title IV. forbids Prelates to make an annual charge 
 on Churches. 
 
 Title v., section i, provides that the licence to teach 
 should be freely granted. 
 
 Section 4 provides that every dean and chapter 
 should elect one master, to whom one prebend should 
 be assigned, who should teach grammar, and metro- 
 politan churches should have one theologian as 
 well. This canon is based on an edict of Innocent 
 III., and became of general force throughout western 
 Christendom. Thus each English cathedral has now 
 its choir school and headmaster, and in many cases 
 the o-rammar schools of cathedral towns arose in this 
 way. 
 
 Title VI. concerns Jews, Saracens, and their slaves. 
 
 Section 2 forbids a Jew to put a Christian into 
 slavery ; section 3 allows the retention of old syna- 
 gogues, but not new. 
 
 Section 8 forbids Christians to be household servants 
 to Jews. 
 
 Section 9 forbids baptism of Jews unwillingly. 
 
 Section 12 excommunicates all those who carry on 
 trade with the Saracens in time of war.
 
 DECRETAI.IA GREGORII IX. 89 
 
 Section 15 orders Jews and Saracens in Christian 
 lands to be distinouished by a particular dress, and on 
 no account to walk abroad on the day consecrated to 
 the memory of the Passion of our Lord. 
 
 Section 16 forbids Jews to hold any ofiice of 
 administration over Christian people, for Innocent in. 
 in a General Council of the Church, declared — 
 
 Quum sit nimis absurdum, ut blasphemus Christi in 
 Christianos vim potestatis exerceat, quod super hoc 
 Toletanum concilium provide statuit, nos propter transgress- 
 orum audaciam in hoc generali concilio innovamus, 
 prohibentes ne Judaei publicis officiis prasferantur. 
 
 Title VII. deals with Heretics. 
 
 Section 9 declares the heretic who thinks or teaches 
 wrongly concerning the sacraments of the Church is 
 excommunicated, and on conviction, unless he corrects 
 himself and abjures his error, if an ecclesiastic is 
 degraded and handed over to the secular court, by 
 which, as a layman, he can be punished. 
 
 Section 1 2 forbids lay preaching, secret conventicles, 
 and rebuking priests. This last matter appertains to 
 the Bishops, as Innocent 111. clearly laid down at the 
 Lateran, a.d. 1199. 
 
 By section 13 the goods of convicted heretics 
 are forfeited, and, if beneficed clergy, go to the 
 Church. 
 
 Title VIII. declares Ordination by schismatics of no 
 
 avail. 
 
 12
 
 go THE CANON LAW 
 
 Title IX. concerns Apostates. An ecclesiastic, giving 
 up his habit and tonsure, and committing enormities, 
 loses the privileges of the Canons. 
 
 Title X. condemns a Woman who kills her child to 
 perpetual detention in the penitentiary of a monastery. 
 
 Title XII. deals with Homicide. 
 
 Section 3 declares you may kill a thief in the 
 night without blame, but not in the daytime. A judge 
 in imposing penance must carefully consider all the 
 circumstances which tend to augmentation or diminution 
 of the crime. 
 
 There is a curious provision in section 19 that a 
 monk, who follows the profession of a doctor, on the 
 occurrence of a death, is placed outside his rule, but a 
 dispensation may be granted. 
 
 Section 24 declares that if an ecclesiastic while 
 fighting against the enemies of the Catholic faith 
 strike any man so that he die, and his conscience 
 troubles him, he should refrain from ministering at 
 the altar. 
 
 Title XVI. concerns Adultery. 
 
 Title XVII. deals with Violators and Burners of 
 Churches. If such persons make due satisfaction, and 
 do penance, then they are admitted to Christian 
 burial. Any one who has set fire to a church, but 
 is penitent at death and has been absolved, may 
 have Christian burial, and his heirs can make satis- 
 faction. 
 
 Title xviii. deals with Thieves,
 
 DECRETALIA GREGORII IX. 91 
 
 Thieves and robbers should be denied the sacra- 
 ments. A theft from necessity is sin, but not very 
 grievous, and the penance should be light. 
 
 Title XIX. concerns Usury. 
 
 Usury is thus defined, " lucrifacere fructus rei 
 pignoratae." 
 
 Section 3 excludes notorious usurers from the 
 communion of the altar, Christian burial, and offering 
 the oblation. 
 
 Section 5 compels solvent usurers to restore their 
 usury under the penal decrees of the Lateran Council. 
 
 Section 7 declares that a usurer, after fair warning, 
 not having desisted from his usury, if he be an 
 ecclesiastic, is deposed from his benefice, if a layman, 
 is excommunicated. 
 
 Section 12 declares Jews compelled to restore their 
 usury by secular princes. 
 
 Section 15 declares that if through fear of the 
 great and powerful, no one will appear as accuser 
 against notorious usurers, then the Bishop may enforce 
 the penalties prescribed by the Lateran Council. 
 
 Section 18 compels Jews to restore usury extorted 
 from Christians. They are also liable to pay tithes and 
 oblations. 
 
 Title XX. concerns False Witness, which injures God, 
 the judge, and the party to the suit, and consists not 
 only of lying, but also of concealing the truth. A 
 sentence obtained by false documents ought not to be 
 executed ; and an ecclesiastic who forges the seal of a
 
 92 THE CANON LAW 
 
 prince is deposed. Letters of the Apostolic See must 
 be delivered by the official of the Pope, or his deputy, 
 or by the hands of the Pope himself, as Innocent iii. 
 laid down in the first year of his pontificate, 1198. 
 There are nine ways of issuing false papal documents, 
 the first of which consists in affixing a false "bulla," 
 and the second in affixing a true "bulla" to a false 
 document. In papal documents a bishop is never 
 called "son," and the use of this expression is a mark 
 of falsehood. All such falsifiers and their abettors are 
 excommunicated, and if ecclesiastics are degraded and 
 handed over to the secular court to be punished. 
 
 Title XXI. forbids the study of Astrology, and casting 
 lots on future events. 
 
 Title XXII. forbids Collusion, which in the case of a 
 benefice acts as deprivation. 
 
 Title XXIV. forbids Hunting. 
 
 Title XXVI. forbids Evil Speaking, especially of the 
 Pope, which merits condign punishment. The blas- 
 phemer of God or the blessed Virgin must also be 
 punished. 
 
 Title XXVII. declares that an Ecclesiastic celebrating 
 after deposition is excommunicated. Likewise anyone 
 celebrating after excommunication is deprived of his 
 benefice. If anyone celebrate after having notice of 
 excommunication by report alone, he should be deposed, 
 though a dispensation is obtainable for pity's sake. A 
 collation of a benefice is not deemed made to one who 
 is excommunicated ; but a collation holds good made
 
 DECRETALIA GREGORII IX. 93 
 
 to one who was formerly excommunicated, but at the 
 date of the collation has received absolution. 
 
 Title XXXI. concerns the legal powers of bishops. 
 They must not without reason alter or rearrange the 
 existing jurisdiction over Churches. Where they have 
 the right of collation, they must not retain or confer the 
 benefice on themselves. 
 
 Section 13 provides that a priest is never compelled 
 to reveal the name of the sinner, if the sin were con- 
 fessed in penitence. 
 
 Section 14 declares that private individuals have not 
 the power to establish a college of regular or secular 
 canons, unless this power be duly granted. 
 
 Section 1 5 imposes the penalty of deposition on the 
 ecclesiastic who denies that his bishop is his lord, or 
 seeks ought from him before a secular judge. 
 
 Section 16 contains fifteen monastic gravamina, in 
 a decretal letter of Gregory ix. to the Episcopate of the 
 whole Church. 
 
 Section 17 contains twelve gravamina, relating to the 
 friars preachers, etc., issued by Gregory ix. 
 
 Section 18 imposes the penalty of suspension on any 
 one who does not observe an interdict. 
 
 Title XXXIII. concerns Privilege, 
 
 Section 2 provides that notwithstanding any privi- 
 lege of forum, a layman who does evil to the Church 
 may be punished by the Church. 
 
 Section 3 forbids monks to receive churches and 
 tithes from the laity without the consent of the bishop.
 
 94 THE CANON LAW 
 
 Section 4 forbids the derogation of privileges on 
 pain of deprivation of the privilege. 
 
 Section 6 declares that thirty years' prescription, but 
 now forty years, is required to nullify an ecclesiastical 
 privilege. 
 
 Section 8 declares that an exemption by episcopal 
 jurisdiction is not good against a payment of money 
 authorised by the Church of Rome. 
 
 Section 10 forbids the hanging of public bells in a 
 private oratory. 
 
 Section 12 says that the contents of a lost document 
 may be proved by witnesses who have read it, if they 
 can depose to its tenour, and that it was good in itself. 
 
 Section 13 gives preference to old privileges over 
 new. 
 
 Section 17 declares that an exemption granted to a 
 monastery does not cover the chapelries attached to that 
 monastery, as Innocent in. informed the monks of Eves- 
 ham on the 15th of the Kalends of February 1206. 
 
 Section 18 declares that anyone received under 
 Papal protection is not by this alone exempt. 
 
 Section 19 lays down a point of law which often 
 arose in the thirteenth century. Monks who by Papal 
 CTrant were able to convert their churches to their 
 own use, must still receive possession of the said 
 churches from the bishop of the place where they are 
 situated. 
 
 Section 22 declares that a bishop remitting the pay- 
 ment of episcopal tithe from any church remits the
 
 DECRETALIA GREGORII IX. 95 
 
 payment now and for ever. This is called a notable 
 case, and was laid down by Innocent in. in 1213 in a 
 decretal letter to the Bishop of London, legate of the 
 Apostolic See. 
 
 Section 23 enumerates three privileges of the four 
 patriarchal sees — the granting the pall, carrying the 
 cross, and the right to hear appeals, subject to the Pope. 
 
 Section 31 mentions " novale," that curious mediceval 
 Latin word meaning tithe on land freshly cultivated. A 
 privilege in regard to tithe does not include "novale," 
 unless mention is made thereof. 
 
 Title XXXIV. deals with Canonical Purgation. 
 
 Section 6 declares a bishop may compel his parish 
 priests to purgation on an evil report, unless they should 
 appeal in a lawful manner. 
 
 Section 7 declares compurgators must be honest 
 men, of good reputation. 
 
 Section 8 declares that absolution made accordino- 
 to vulgar purgation does not hold good. 
 
 Title XXXV. is entitled concerning Vulgar Purgation, 
 and forbids duelling. 
 
 Title XXXVI. concerns Injuries, for which compensa- 
 tion should be made, and penance done. If a secular 
 authority banish an ecclesiastic, as the republic of 
 Florence drove out the Bishop of Fiesole in the days 
 of Honorius in., then the ecclesiastic judge must esti- 
 mate the payment due from the aforesaid civil authority. 
 Honorius put it at 1000 pieces of the usual money of 
 Florence.
 
 96 THE CANON LAW 
 
 Title xxxvn. concerns Punishment. 
 
 Section 3 declares that bishops ought not to impose 
 a fine out of cupidity, even if for the sake of correction. 
 
 Section 4 declares the defeated litigant must pay 
 costs. 
 
 Section 6 declares that for a great crime an ecclesi- 
 astic must be deposed, and placed in a monastery to do 
 penance. 
 
 Section 9 declares part payment good, so far as it 
 goes, and the whole sum cannot be demanded after 
 part payment, but only the balance remaining due, as 
 Innocent iii. informed the Bishop of Spoleto. 
 
 Section 10 declares that those who kill a bishop 
 forfeit the feus they hold of the Church of that bishop, 
 and their heirs can never be reinstated. 
 
 Section 12 declares that patrons exceeding their 
 rights are liable to ecclesiastical censures. 
 
 Section 13 absolves vassals from their fidelity to a 
 lord who is excommunicated. 
 
 Title xxxviii. concerns Penance, which must not be 
 excessive, but regulated according to circumstances, as 
 Alexander iii. informed the Archbishop of Milan. If 
 the penance be feeding on bread and water, and the 
 bread runs short, then other food may be used. 
 
 Section 10 authorises the abbess to pronounce the 
 benediction over "moniales," that is nuns, who were 
 thus entitled in the 4th century, but she cannot hear 
 confessions or preach. By old ecclesiastical writers nuns 
 were also sometimes called " sanctimoniales."
 
 DECRETALIA GREGORII IX. ^j 
 
 Section 1 1 grants the use of the sacrament of 
 penance and the viaticum for the dying during the 
 span of a general interdict. 
 
 Section 13 recommends medical men to urge their 
 patients to confession for their soul's health. 
 
 Section 14 relates to briefs for alms. 
 
 Section 15 allows archbishops to grant indulgences 
 within their own province according to the form pre- 
 scribed by the General Council. 
 
 Section 16 allows bishops to appoint discreet con- 
 fessors without the permission of superior authority. 
 
 Title xxxix. deals with Excommunication, and is 
 very lengthy, containing as many as 60 sections, for 
 this was a powerful weapon in the hands of the mediseval 
 Church. 
 
 Section 3 provides that if an ostiarius, i.e. one who 
 held the lowest rank in the four minor orders, should 
 strike a priest, he may be absolved by the bishop. 
 
 Section 4 declares that if a man strike a priest, being 
 ignorant that he is a priest, then he is not liable to 
 excommunication, but his ignorance must be proved 
 on oath. 
 
 Section 15 declares that before absolution no com- 
 munication must be held with the excommunicated. 
 
 Section 20 empowers legates " de latere " to absolve 
 "pro injectione manuum in clericos." 
 
 Section 30 declares that the oath of the excom- 
 municated to keep the commandments of the Church 
 has not the force of absolution. 
 13
 
 98 THE CANON LAW 
 
 Section 40 allows an appeal from the bishop to the 
 metropolitan : yet the metropolitan can remit the case 
 back again, if he so desire. 
 
 Section 48 declares a prelate ought not to excom- 
 municate but for a clear and reasonable cause after 
 due warning. 
 
 Section 50 declares the Prior of the Hospital of 
 (S. John of) Jerusalem may absolve the brethren of 
 his own order, except for enormous excesses. 
 
 Section 52 allows an "absolutio ad cautelam," i.e. 
 while the case is under consideration, if the sentence of 
 excommunication itself be doubtful. 
 
 Section 53 authorises the excommunication of the 
 officials of the districts where statutes are maintained 
 contrary to the liberties of the Church. 
 
 Section 57 allows celebrations once a week in time of 
 interdict. 
 
 Title XL. explains the meaning of Words. 
 
 In all great systems of law a number of terms or 
 words come to be used in a special and peculiar sense 
 only appropriate to the particular system with which 
 they are connected. 
 
 And so in ecclesiastical law a certain number of 
 words occur which have a special and peculiar mean- 
 ing, not recognised in ordinary Latin as known and 
 taught in the schools. Thus, for example, in the 
 Latinity of the Church " officialis " means the judge of 
 the Court of the Archdeacon or the Bishop, commonly, 
 if episcopal, called the Consistory Court.
 
 DECRETALIA GREGORII IX. 99 
 
 Section 5 says that " primogenitus " is properly used 
 of the eldest son, even if he have no brothers or sisters. 
 
 Section 11 describes "pactum" according to the 
 views of Isidore. 
 
 Pactum dicitur inter partes ex pace conveniens scriptura, 
 legibus ac moribus comprobata : et dictum pactum quasi ex 
 pace factum. 
 
 Section 13 declares that the " oblatio " can never be 
 possessed by secular persons. 
 
 Section 14 declares that a priest is the only person 
 who is authorised to administer the sacrament of ex- 
 treme unction, and the use of the word sacerdos in this 
 section is worthy of special notice, for that word rarely 
 occurs in the Decretalia. 
 
 Section 15 declares that "statuo et praecipio " are 
 appropriate words to use in the formal pronouncement 
 of a definitive sentence. 
 
 Section 17 says a general interdict includes the 
 village and castle as well as the province. 
 
 Section 19 declares that an oath to obey the Bishop 
 and the Church, means the Bishop and the Chapter, and 
 not the whole body of the clergy, as Innocent iii. in- 
 formed the Chapter of Piacenza in the year 1203. 
 
 Section 20 announces that ecclesiastical censures 
 include " excommunicatio, suspensio et interdictum." 
 
 Section 21 contains an interesting decision of 
 Innocent iii. relating to tithe ; given at Viterbo in the 
 year 1207 :
 
 loo THE CANON LAW 
 
 Quid per novale vocabulum intelligi debeat, a nobis tua 
 fraternitas requisivit. Licet autem quidam dixerint, quod 
 novale sit terra pracisa, qua; anno cessat, aliis asserentibus, 
 quod ex silva, quJE arboribus exstirpatis ad cultum redigitur, 
 fieri novale dicatur, quarum utraque interpretatio ex civilibus 
 legibus colligitur : Nos igitur inquisitioni tuae taliter re- 
 spondemus, quod earn credimus praedecessorum nostrorum 
 intentionem fuisse, quum piis locis indulgentiam de novalibus 
 concesserunt, ut novale intellexerint agrum, de novo ad 
 cultum redactum, de quo non exstat memoria, quod 
 aliquando cultus fuisset. Sed nee de quolibet tali novali 
 credimus eis indulgentiam fore concessam, nisi de illo 
 duntaxat, cujus decimam religiosus potest conventus 
 absque gravi detrimento parochialis ecclesias detinere, 
 quum talis sit saepe locus incultus, de quo parochialis 
 ecclesia magnos percipit decimarum ratione proventus. 
 
 Section 22 announces that the term Mother Church 
 means the Cathedral Church, not the Roman Church. 
 
 Section 25 declares the words of a privilege must be 
 intelligible, and not ambiguous. 
 
 Section 28 says a papal indulgence to the accused is 
 good for a year, particularly in the case of absence. 
 
 Section 29 declares that by the word "oblatio" is 
 understood anything offered as a gift to the Church in 
 whatever way the offering may be made, — at mass or 
 otherwise. 
 
 Section 32 declares the word "benefice" includes a 
 prebend, and in fact the " majora beneficia." 
 
 Section 33 declares the word " moderatio " implies a 
 diminution, and not an increase. The example given is 
 the reduction of the number of canons in a cathedral 
 church.
 
 DECRETALIA GREGORIl IX. loi 
 
 Title XLi. concerns the rules of Law, in eleven 
 sections. Doubtful matters should be interpreted in 
 the more favourable way. To avoid scandal truth 
 must not be concealed. Necessity may make what is 
 forbidden allowable. Sacrilege is an offence against 
 ecclesiastical property or persons. Ignorance does not 
 excuse a prelate in regard to the offences of his 
 " subditores." 
 
 Homage must not be done for spiritualities. Such 
 a thing as this is " Indignum et a Romanae ecclesia; 
 consuetudine alienum." 
 
 How much mediaeval history seems summed up in 
 these last few simple words.
 
 CHAPTER V 
 
 The Canon Law of England 
 
 That portion of the Canon Law of England which 
 may be considered as more exclusively English dates 
 from very various periods of our history. 
 
 In the first place, there are the early Canons and 
 Constitutions issued in the remote period anterior to 
 the Norman Conquest. For example, the first Canon 
 in reference to tithe was issued a.d. 785, at a Legatine 
 Council held by two Italian Bishops under the direct 
 authority of Pope Adrian i. Afterwards, about the 
 year 970, the laws of King Edgar recognise the 
 customary payment of tithe, and duly enforce the 
 same. Hence the famous decree of the Lateran Council 
 a.d. 1 1 80 by no means first enforced the payment of 
 tithe* in England, but rather had the effect of regu- 
 
 * There exists a letter of Pope Innocent ni. to Walter, Archbishop of 
 Canterbury, dated from the Palace of the Lateran a.d. 1200, in reference to 
 the payment of tithe, on which Sir E. Coke lays much stress. The late 
 Lord Chancellor Selborne, however, thought Sir E. Coke was inclined to 
 make too much of this papal epistle.
 
 THE CANON LAW OF ENGLAND 103 
 
 lating the distribution thereof. And it is worthy of 
 note that the law then laid down has continued in 
 force to the present day. Before that date there was 
 apparently no absolute uniformity in regard to the 
 person to whom tithe was payable, but what the 
 learned Selden entitles "arbitrary consecrations" of 
 tithe was permissible. Good authority for this view 
 may be found in well-known English writers on legal 
 subjects. 
 
 For example, in Mr. Cruise's Digest of the Laiv 
 of Real Property it is stated : — 
 
 Before the Council of Lateran, which was held A.D. 
 1 1 80, every person was at liberty to pay his tithes to 
 whatever church or monastery he pleased ; or he might 
 pay them into the hands of the bishop, who distributed 
 the revenues of his church among his diocesan clergy. 
 But when dioceses were divided into parishes, the tithes 
 of each parish were allotted to its own particular minister ; 
 first by common consent, or appointment of the lord of 
 the manor ; and afterwards by law. 
 
 The Council here referred to, according to Selden 
 
 and the best authorities, was the third Lateran 
 
 Council : and amongst its Acta are found the fol- 
 lowing : — 
 
 So far has the boldness of laymen been carried, that 
 they collate clerks to churches without institution from the 
 bishops and remove them at their will ; and, besides this, 
 they commonly dispose as they please of the possessions 
 and goods of churches.
 
 104 THE CANON LAW 
 
 Therefore the Council forbids landowners and lords 
 of manors from making appropriations of tithe at their 
 own will and pleasure, which Selden calls " arbitrary 
 consecrations " of tithe. Henceforth tithe is due to 
 the Parish Church. 
 
 Thus in the Chronicle of Battle Abbey {circa 1 1 76) 
 it is stated — 
 
 As it was permitted (to the time of the foundation, 
 i.e. the Norman Conquest) for everyone to pay his tithes 
 where or to whomsoever he would, many of those who 
 resided in the neighbourhood assigned theirs to the abbey 
 in perpetuity ; and these, being confirmed by episcopal 
 authority, remain payable to the abbey until this day. 
 
 Lyndwood says much the same in the Pro- 
 vinciale. 
 
 In the reign of Henry iv. a peculiar light is thrown 
 upon the character of the Papal Court by the unusual 
 action of the British Parliament, in passing an enact- 
 ment* strictly prohibiting the purchase of Papal Bulls 
 by landowners for the effectual discharge of the payment 
 of tithes, a curious forerunner of the recent Tithe 
 Redemption Acts, and two years later another Act was 
 passed annulling all appropriations + of vicarages and 
 vicarial tithe. This Act apparently in no way interfered 
 with the appropriation of rectories, a process which by 
 this date must have taken place in nearly half the 
 
 * 2 Hen. IV. cap. 4. Cf. the case of the founder of New College, 
 Oxford, obtaining a discharge of tithe on certain lands included in the site 
 of the College. 
 
 t 4 Hen. IV. cap. 12.
 
 THE CANON LAW OF ENGLAND 105 
 
 parishes in England, but very properly absolutely 
 forbad any attempt to further impoverish the already 
 poor vicarages.* 
 
 The following entry in the Close Rolls of 15 
 Edward 11., anno 1322, sheds a curious light on the 
 relations of Church and State : — 
 
 February 9 — To the Sheriff of London. 
 An order sent to supersede the arrest of John de Derset, 
 Vicar of All Saints', Caterington, in the diocese of Win- 
 chester, by virtue of the king's order to justice him by 
 his body until he should satisfy Holy Church, which order 
 the king issued because W., Archbishop of Canterbury, 
 certified the said John was excommunicated at the instance 
 of Thomas Cosyn, parson of Chalghton, by the authority 
 of the Court of Canterbury, and that he would not be 
 justiced by ecclesiastical censure ; as the archbishop has 
 now signified that it appears by instruments exhibited and 
 examined before him that the cause for which the said 
 John was excommunicated is pending in the Court of 
 Rome. 
 
 * M. de Lavergne, an eminent French writer, makes the following 
 remarks on the effect of the French legislation in 1789 which led to 
 the entire abolition of tithe throughout France : — The abolition of tithes 
 has really been of much less importance than is sometimes supposed. 
 The charge has been shifted, but not altogether destroyed, for the cost 
 of public worship at this day to the taxpayers is nearly fifty million 
 francs ; and the promise made to the clergy {cures) in 1789 to provide 
 them with minimum stipends of 1200 francs, or ^48, per annum has not 
 yet been fulfilled to all of them. The clergy (by the Revolution) have 
 lost altogether twenty millions of revenue ; but does anyone suppose 
 that the ta.\payers are gainers to the same amount ? I should have no 
 difficulty in pointing out in our budget not twenty but a hundred 
 millions less usefully spent in the interest of the rural districts than was 
 the produce of the old tithe. On the other hand, the rent paid for land 
 has been increased generally by the amount of the tithe ; and the 
 cultivators properly so called, with the exception of those who farm their 
 own land, have gained nothing.
 
 io6 THE CANON LAW 
 
 At the same time a similar order was sent by the 
 King to the Sheriff of Southampton. 
 
 On March 26 of this same year the King asks the 
 Abbess of Fontevrault to admit Perotta de Beaumond 
 as a nun in her Abbey; and the Abbot of Caen to 
 admit Peter de Berowes as a monk in his house. 
 
 On April 9, 1322, the King inhibits the Archbishop 
 of Canterbury from publishing or executing any process 
 or sentence against Robert de Baldok, Archdeacon 
 of Middlesex, by virtue of any mandate made to him 
 concerning the prebend of Aylesbury, in the church 
 of Lincoln, which the King had conferred upon the 
 said Archdeacon, when the Bishopric was in the King's 
 hands through voidance, in all its entirety, before it 
 was divided, and especially in regard to the Church 
 of Milton (of which Gaillard de Mota was incumbent), 
 part of the said prebend, the King having proved his 
 right in his own court as to this church being part 
 and parcel of the prebend . . . the King now under- 
 standing that the said Gaillard has caused Robert to 
 be cited to appear outside the realm, and procured 
 grievous processes against him to be published and 
 executed by the Archbishop. 
 
 The following entry in Close Rolls 16 Edward 11., 
 anno 1323, concerning Ireland seems characteristic, 
 and illustrates ecclesiastical law : — 
 
 July 3 — To the Dean and Chapter of S. Patrick's. 
 
 R., Bishop of Coventry and Lichfield, collector of the 
 tenth for two years imposed on the clergy of Ireland by
 
 THE CANON LAW OF ENGLAND 107 
 
 Pope John XXII. for the king's use, has intimated to tlie 
 i<ing that whereas he, by apostolic authority, sent to the 
 Dean and Chapter his letters executory to exact and 
 receive the tenth, the Dean and Chapter have replied 
 that the prelates and clergy having understood his letters, 
 alleged that they were not bound to obey his letters 
 iniless the original bull was shown to them, and that 
 they had appealed frivolously to the Pope, in contempt 
 of the apostolic order, to the king's astonishment, especially 
 as the canon law does not admit such allegation and 
 such excuse ; — the king therefore, willing that the apostolic 
 order should be executed, now transmits the original bull of 
 the Pope to the Dean and Chapter, which is to be brought 
 back after it has been inspected, and orders the Dean 
 and Chapter to execute the matter with such diligence 
 and care that their filial obedience may be evident to His 
 Holiness the Pope. 
 
 On July 25 the King requests the Abbot of 
 Waledon (Saffron Walden ?) to admit into his house 
 Hugh de Beaurepeir, who has long served the King, 
 upon such maintenance for life as Huward now deceased 
 had in their house at the request of Humphrey, Earl 
 of Hereford, by whose death the advowson of that 
 house came to the King. 
 
 On July 21, John de Depyng, clerk, obtains letters 
 to the Bishop of Coventry and Lichfield to receive 
 the pension due to one of the King's clerks by reason 
 of the Bishop's new creation. 
 
 On August 12 a prohibition is issued to Master 
 John Luterel, sometime Chancellor of the University 
 of Oxford, from going beyond seas, or sending anything 
 thither, respecting disputes which had arisen between
 
 o8 THE CANON LAW 
 
 him and the masters and scholars of the University, 
 until the King, having had information from both 
 sides, shall order to be done what he shall see fit, for 
 if the disputes be divulged in parts beyond the sea, 
 scandal and danger may arise. 
 
 The History of Donatives in England and Wales 
 is curious. A decretal letter of Pope Alexander iii. to 
 Archbishop Becket of Canterbury makes sad complaint 
 of the " bad and irregular custom which has obtained 
 prevalence for a long time past ; that clerks influenced 
 by blind covetousness accept churches and ecclesiastical 
 benefices without consent of the Bishop of the diocese, 
 or his official," or, as we may put it in other words, 
 without episcopal institution. Yet though the Pope 
 thus complains in the days of Becket of donatives, it 
 would seem that some of the churches which thus 
 escaped episcopal institution were monastic property 
 under the special protection of great and powerful 
 abbots, and that the few donatives existing during the 
 last four centuries, and brought within the Canon Law 
 as to institution by a very recent Act of Parliament, 
 were nearly all in the gift of abbots or priors before 
 the Reformation. 
 
 For the case of donatives must be distinguished 
 from the case, comparatively very rare, in which there 
 is an ecclesiastical rectory and vicarage in one and 
 the same parish tenable by different persons. Here 
 the advowson of the vicarage generally rests with the 
 rector, though the advowson of the rectory may be
 
 THK CANON LAW OF ENGLAND 109 
 
 vested in any way duly recognised by the ecclesiastical 
 law. 
 
 Such for instance was formerly the case with the 
 parish of Great Dunmow. In early days the advowson 
 of the rectory was vested in the Mortimers, Earls of 
 March, and the vicar who had the cure of souls was 
 appointed by the reverend rector whom the said Earls 
 had selected. In the year 1479 the advowson of the 
 rectory passed into the possession of the Collegiate 
 Church of Stoke next Clare, and the advowson of the 
 vicarage became alternate between these canons and 
 the Bishop of London, who, on the dissolution of 
 monastic and collegiate churches, became the sole 
 patron. 
 
 At the Council of London held under Archbishop 
 Anselm in the year 1107, King Henry i. finally gave 
 up the entire practice of royal or any other manner of 
 lay investiture, by delivery of the pastoral staff and 
 ring which are symbols of spiritual power. On the 
 other hand, the Archbishop consented that prelates and 
 abbots should do homage to the king for their temporal- 
 ities on their appointment. And the arrangement then 
 made has been continued without any alteration to the 
 present day. It is well known what deadly strife 
 prevailed on the continent of Europe on this particular 
 question from the days of Pope Gregory vii., better 
 known as Pope Hildebrand, and the English solution 
 seems wise and reasonable, though this point of law 
 was of far greater importance in the eleventh and
 
 no THE CANON LAW 
 
 twelfth centuries than can possibly be the case at the 
 present time. 
 
 The Pope was sometimes wont to provide for the 
 needs of churches before they became vacant. 
 
 The king did not always regard provision by the 
 Pope in the same light ; for it sometimes happened that 
 the action of the Holy See fell in with the royal 
 wishes and desires, and sometimes exactly the opposite 
 occurred. 
 
 Thus, in the year 1401, John Prene was Dean of 
 S. Patrick's, Dublin, and in high favour with the 
 English Court. Yet he had not obtained his deanery 
 from the Crown : for at that date the deanery was an 
 elective ofifice. Yet he had not been elected by the 
 Chapter. He was one of the auditors of causes of the 
 Palace of Pope Boniface, and in high favour with 
 the Court of Rome. It was by virtue and force of 
 papal provision that John Prene found himself in the 
 Deanery of S. Patrick's. He explains his position to 
 the king, who on March 9 grants his pardon, and 
 confirms his estate in the deanery. Here it is evident 
 that the practical result of the provision precisely coin- 
 cided with the royal wishes ; and when Pope and king 
 agree, nobody troubles about the rights of the Chapter. 
 
 Sometimes the provision acted harshly. Here is a 
 case where the king comes to the rescue. Thomas 
 Merk, D.D., was Bishop of Carlisle, and on an evil day 
 for himself the Pope thought fit to translate him to the 
 Church of S., a strange place where there were no
 
 THE CANON LAW OF ENGLAND in 
 
 clergy and no Christian people, apparently situated "in 
 partibus infidelium." The result was that the good 
 bishop found himself in great poverty, and sadly rued 
 the day of his unhappy translation by papal provision. 
 He applied to the king in his great straits, who on 
 March 21, 1401, granted him licence to sue in the 
 Court of Rome for benefices to the value of 100 marks 
 yearly, but not to seek another bishopric. Why the 
 Pope made this provision is not at all clear. 
 
 Ireland was apparently a country in which the Pope 
 was fond of exercising his special privilege of making 
 provisions. Thus on April 11, 1401, a mandate is 
 issued to the Keeper of the Great Seal in Ireland for 
 the restitution of the temporalities of the Bishopric of 
 Ferns to Patrick Barret, whom the Pope has appointed 
 bishop on the death of Thomas Den, the last bishop, and 
 who has renounced everything prejudicial to the king 
 in the bull of the said Pope, and done fealty. Here 
 again the Pope and the king- appear to be in perfect 
 accord. Under such circumstances old Canons and 
 Statutes of Provisors are of little import ! 
 
 About the same time — in May 1401 — the king 
 orders a revocation of a grant made in favour of the 
 Abbot of Stretford Langthorn, that neither he nor his 
 successors should be made collectors of the tenths, etc., 
 granted by the Pope to the king, or to other purposes, 
 because a grant of this kind was highly prejudicial both 
 to the king and also to the prelates. 
 
 So it may be concluded that monastic collectors of
 
 112 THE CANON LAW 
 
 papal grants were very convenient both to the King 
 and the Pope, while it is easy to understand that the 
 bishops did not wish to have anything to do with such 
 matters. A notable collector, at one time, was the 
 Abbot of S. Mary, in the City of York. 
 
 In February of this same year a grant of Incorpora- 
 tion was made for the vicars choral or minor canons of 
 Exeter, with power to elect a warden from one of their 
 own number from time to time without any royal licence, 
 as well as certain other privileges much sought after in 
 those days by ecclesiastical corporations. This grant is 
 interesting as illustrating the fact that in many of our 
 cathedrals the minor canons became a corporate body 
 distinct from the dean and chapter, with their own 
 property and seal, though the modern tendency has 
 been to sweep away and utterly destroy all such 
 institutions. 
 
 Around the cathedral church, as it grew and 
 developed in importance, and sometimes assumed secular 
 jurisdiction as well as spiritual, there grew up a large 
 body of customs, which came to have the force of law 
 by long usage, or special enactment. These ecclesi- 
 astical customs differ in detail in each church ; thus, 
 some of our own cathedrals are governed by statutes 
 made at the Reformation, as is the case with the 
 Chapter of Chester : while others possess medijeval 
 statutes. Yet in every cathedral church there is 
 a close general resemblance in the whole system of 
 administration ; the chief officials bear the same names,
 
 THE CANON LAW OF ENGLAND 113 
 
 and take the same precedence, having special stalls in 
 the choir in the same rank and order. 
 
 The Chapter of Durham is the greatest and most 
 magnificent of English Chapters, as being the Chapter 
 of a former Prince Bishop, and still retains certain 
 special and peculiar privileges, as for instance the pos- 
 session of the temporalities of the Bishopric during a 
 vacancy. But the Chapter of S. David's, not being 
 monastic, underwent no change at the Reformation, and 
 thus retains its mediaeval organisation as well as certain 
 mediieval characteristics which are peculiarly its own. 
 
 By a careful study of the arrangement of the stalls 
 in the choir, which in their present form was made in 
 the sixteenth century on the mediaeval basis, a great 
 deal may be learnt as to the ecclesiastical law relating 
 to cathedrals in mediaeval times. 
 
 Now the principal officials occupy the chief stalls 
 in the usual way, the Dean, Precentor, Chancellor and 
 Treasurer, and then the Archdeacons and Prebends. 
 These are cursal Prebends, and Prebends to which 
 appropriate rectories are attached, and thus named after 
 their respective Churches. These very naturally receive 
 less in the apportionment of the common fund of the 
 Chapter than the cursal Prebends or Canons, who are 
 without cure of souls, and so can devote their time more 
 completely to the services of the Cathedral, for cursal 
 is said to be abbreviated from "sine cura salutis." 
 
 It is worthy of notice that the Dean received six 
 Prebendal portions, and that the Bishop was himself 
 15
 
 114 
 
 THE CANON LAW 
 
 Dean from very early times, this large proportion being 
 a substantial augmentation of the Bishopric. But it 
 was contrary to mediaeval usage and the ordinary rules 
 
 NAVE. 
 
 Screen. 
 
 
 
 by Bishop 
 by Bishop 
 
 B< 
 B 
 
 
 Sci;EErj. 
 
 Man 
 Dewi 
 
 Arch S. 
 David 
 
 Decanu-, 
 
 Ol 
 
 Episc. 
 
 Precentor 
 
 or 
 
 Dean 
 
 P. Spital 
 
 founded 
 
 1224 
 
 Arch 
 
 of 
 Brecon 
 
 S. Nichula-^, 
 
 C. Cursal 
 
 (King) 
 
 Endowed 
 
 ck, 1287 
 
 
 Llangan 
 
 Treflod 
 
 
 C. Cursal 
 
 
 
 
 Vice Deca 
 Bishop's 
 
 nus or 
 Vicar 
 
 
 Succentor 
 
 C. Cursal 
 
 C. Cursal 
 
 C. Cursal 
 
 
 C. Cursal 
 
 CluJen 
 
 
 Caerfai 
 
 
 
 
 Caerfarche 
 
 1 
 larthen 
 
 Arch 
 Aurea 
 
 . Cardigan 
 
 Arch. Cam 
 
 r Mathrey 
 
 Chancellor 
 
 1 End( 
 
 )wet 
 
 eck 
 
 . 1287 1 
 
 
 Treasurer 
 
 The i6th Century Arrangement of the Stalls of S. David's. 
 
 of the Canon Law for the Bishop to be a member of the 
 Chapter, because he was Visitor. Hence the Precentor, 
 still occupying his appropriate stall, became the head 
 of the Chapter of S. David's, as the official next in rank
 
 THE CANON LAW OF ENGLAND 115 
 
 to the Dean, and occupied this position for many- 
 centuries. In the middle of the last century it was 
 thought odd that no member of the Chapter was called 
 Dean, and an Act of Parliament was procured, apparently 
 in ignorance of the facts of the case, by which it was 
 enacted that the Precentor might henceforth use * and 
 assume the title of Dean of S. David's, and some three 
 or four Deans have already held office in this way. 
 
 Besides this curious bit of ecclesiastical law relating- to 
 S. David's, we have the remarkable fact that the Sove- 
 reign is always admitted to the first Cursal Prebend. 
 
 The origin of this custom is lost in obscurity. It 
 probably goes back to the days of the old Welsh 
 princes, when the sacred shrine of S. David was held in 
 the highest honour throughout Cambria, and was largely 
 enriched by the offerings of the faithful. Students, 
 however, will at once be reminded of the striking 
 analogy in the chapter of S. John Lateran in Rome, 
 where the Emperor after his Coronation by the Pope 
 was always admitted a canon, and, being regarded as a 
 "persona mixta" by the canonists, was not held 
 to infringe the legal rule, which confined canonries to 
 ecclesiastical persons, for the crowned king or emperor 
 was deemed to hold a unique position, partly lay and 
 partly ecclesiastical. 
 
 There is a third peculiar point about the ecclesi- 
 astical laws of S. David's. The Prebenda Regis is 
 7iot the Prebend to which the king is admitted. This 
 * 3 & 4 Vict. cap. 113.
 
 II 6 THE CANON LAW 
 
 Prebend, better endowed than the rest, is held by 
 the Principal of Jesus College, Oxford. Ecclesiastical 
 lawyers and students of the constitutions of the Church 
 have inquired why this should be so. Should not the 
 king, if he hold any Prebend at all, hold the Prebenda 
 Regis ? However, any one examining the splendid 
 ruins at S. David's, must be struck by the lovely 
 remnants — for that is all — of S. Mary's College hard 
 by the Cathedral. In the Middle Ages the head 
 of this College held this Prebenda in the chapter 
 of S. David's, which at the dissolution of the 
 College fell to the Crown, and was given by Queen 
 Elizabeth to Jesus College, and in this way came to be 
 called Prebenda Regis. Thus this matter is explained. 
 
 The canons and constitutions issued by the arch- 
 bishops, or enacted by the Convocations of Canterbury 
 and York between the Norman Conquest and the 
 Reformation, form part of the ecclesiastical law. Some 
 of these are parallel to, and some subordinate to, the 
 more general canons, and other authoritative documents 
 issued during this period by the Court of Rome for the 
 general use of Christendom. 
 
 Early in this period the ecclesiastical Courts success- 
 fully established their right to separate and exclusive 
 jurisdiction, and there soon grew up a special system of 
 judicial practice around these powerful institutions. 
 
 Their history in England is not exactly parallel to 
 their history in the other countries of Latin Christendom : 
 as their sphere of influence was very extensive, including
 
 THE CANON LAW OF ENGLAND 117 
 
 such matters as the probate of wills, and they were not 
 shorn of their importance until the reign of her late 
 Majesty Queen Victoria. 
 
 Yet in other countries which protested against the 
 authority and usurpations of the Bishop of Rome, 
 these Courts were either abolished altogether or shorn 
 of all practical power, while in most countries which con- 
 tinued within the Roman obedience, some other method 
 was adopted of dealing with ecclesiastical causes, owing 
 to the altered relations which had arisen between 
 Church and State. 
 
 In France, in Italy, in Spain, the Canon Law is not 
 now recognised as part of the law of the land, though 
 this was once the case. Though a portion of the Canon 
 Law may have been incorporated in the ordinary civil 
 law, there are now no ecclesiastical courts of competent 
 jurisdiction in which the Canon Law is used in ordinary 
 practice. 
 
 In regard to Italy, the case is somewhat peculiar, 
 and the fact that the Pope had so long been civil as 
 well as ecclesiastical sovereign in the central part of 
 that country, made the reorganisation of legal affairs 
 after the war of 1870 somewhat more complicated in the 
 States of the Church than in the rest of the Italian 
 peninsula.* 
 
 * In Italy there is growing up, if it may be thus stated, a secular Canon 
 Law not administered by the Roman Church, but by the judges of the new- 
 kingdom. All laws relating to monastries are abolished, but the parochial 
 clergy are fully recognised, and their rights and privileges naturally become 
 an integral portion of the administration of the new kingdom. But for
 
 ii8 THE CANON LAW 
 
 Now the principal Provincial Constitutions of Eng- 
 land may be enumerated as follows : — 
 
 1 The Constitutions of Stephen Langton, Archbishop. 
 
 2 „ Richard Wethershed. 
 
 3 „ S. Edmund of Abingdon. 
 
 4 „ Boniface of Savoy. 
 
 5 „ John Peckham, at Reading. 
 
 6 „ Robert Winchelsey. 
 
 7 „ Walter Reynold. 
 
 8 „ Simon Mepham. 
 
 9 „ John Stratford. 
 
 10 „ Simon Islip. 
 
 11 „ Simon Langham. 
 
 12 „ Simon of Sudbury. 
 
 13 ,, Thomas Arundel. 
 
 14 „ Henry Chicheley. 
 
 Moreover, the Provincial Constitutions of these 
 fourteen distinguished Archbishops of Canterbury pos- 
 sessed the great advantage of the learned commentary of 
 William Lyndwood, official of the Court of Canterbury, 
 and afterwards Bishop of S. David's, and were also 
 received by the Convocation of York in the year 1463 ; 
 and are now known by the title of " Provinciale " in the 
 catalogues of our libraries. 
 
 Other constitutions were doubtless issued by the 
 archbishop, but these have obtained the widest recogni- 
 
 purposes of precedent, of guidance, and of direction, it is necessary to 
 .appeal to the old sources in making judicial decisions, and thus it is that 
 the new system grows up side by side with the old, and if not recognised by 
 the Roman Church has all the same the full force of law throughout the 
 kingdom of Italy.
 
 THE CANON LAW OF ENGLAND 1 1 9 
 
 tion and regard, owing to the manner of issue, and the 
 great legal reputation of William Lyndwood, their com- 
 mentator. They were also confirmed by the northern 
 and southern Convocations of England, and are there- 
 fore strictly English Canon Law. 
 
 The Legatine Constitutions of Otho, legate in 
 England of Gregory ix., and of Othobon, legate of 
 Clement iv., stand in much the same position, for they 
 were made in national synods, binding on both pro- 
 vinces, presided over by these legates, and were illus- 
 trated by the learned commentary and gloss of John 
 de Athon. Cardinal Othobon afterwards ascended the 
 papal throne as Adrian v. 
 
 Then there are the Canons and Constitutions enacted 
 after the period of the Reformation, which are appli- 
 cable to the Church of England alone, and are ordi- 
 nances of a particular church in Christendom, made 
 when the theory of one universal Church had in practice 
 been abandoned, and seemed unlikely to be revived. 
 Much of the older Canon Law of necessity became 
 inapplicable, yet was never formally abrogated in 
 England, while certain sections of the Canon Law ob- 
 tained a greater prominence than heretofore, especially 
 the sections relating to the probate of wills and the 
 nature of heresy. 
 
 The principal Canons enacted after the Reformation 
 were the Canons of 1604, at the commencement of the 
 reign of King James i.
 
 I20 THE CANON LAW 
 
 The Canons of 1604. 
 
 These famous Constitutions* and Canons were 
 agreed upon by the Convocation of Canterbury in synod 
 assembled with the King's Majesty's licence, and after- 
 wards published by His Majesty's authority under the 
 Great Seal of England. 
 
 There are altogether 141 Canons and Constitutions, 
 which deal with various subjects relating to the Church ; 
 and may be divided into the following heads : — 
 
 I. Canons i to 12 deal with the true nature and 
 actual characteristics of the Church of England. 
 Canon 9 censures schism. 
 
 II. Canons 13 to 30 deal with the due celebration 
 of divine service, and the right administration of the 
 sacraments. The 30th Canon gives a long explana 
 tion of the lawful use of the cross in holy baptism. 
 
 III. Canons 31 to 76 concern the Christian ministry. 
 Canon 36 contains the three articles to be subscribed 
 
 by ministers ; and Canon 40 an oath against simony. 
 
 Canon 42 orders deans to reside ninety days at the 
 least. 
 
 Canon 55 contains the bidding prayer so familiar 
 in the University pulpit at Oxford and Cambridge. 
 Canon 59 orders catechising on Sundays. 
 
 * In the case of Middleton -'. Croft, lo George ll., Lord Hardwicke lays 
 it down that these Canons are binding on the clergy, but not the laity, 
 inasmuch as they never received the assent of Parliament, but only of the 
 Crown and Convocation. Ayliffe in the Parergon takes the precisely 
 opposite view, holding that the consent of the Crown was sufficient : 
 though Ayliffe is a great enemy to ecclesiastical prerogative.
 
 THE CANON LAW OF ENGLAND 121 
 
 Canon 62 requires due publication of banns or a 
 licence before the celebration of holy matrimony. 
 
 Canon 70 requires the proper maintenance of a 
 parchment register book in each parish. 
 
 Canon 74 rebukes "the newfangleness of apparel 
 in some factious persons," and enjoins the use of 
 priests' cloaks on journeys, "without guards, welts, 
 long buttons, or cuts." And further no ecclesiastical 
 person shall wear any coif. 
 
 IV. Canons ']'] to 79 relate to schoolmasters, and 
 recommend curates for that position. 
 
 V. Canons 80 to 88 relate to the fabric and main- 
 tenance of churches ; while Canon 88 commands a 
 terrier of all glebe lands, etc., to be taken, and laid up 
 in the bishop's registry. 
 
 Canons 89 to 91 relate to the lay officers of the 
 Church, which are churchwardens, sidesmen, and 
 parish clerks. 
 
 VL Canons 92 to 138 concern the ecclesiastical 
 
 courts, their judges and officers, and the lawyers 
 
 practising in those courts. The Prerogative Court of 
 
 Canterbury possessed general jurisdiction over the 
 
 probate of wills, and the entire administration of the goods 
 
 and chattels of persons dying intestate ; and Canons 92 
 
 and 93 have reference to this very important subject : 
 
 " Whoso hath not goods in divers dioceses to the value 
 
 of ^5 shall not be accounted to have "bona notabilia." 
 
 In these words an important principle is laid down in 
 
 regard to the personal property of deceased persons. 
 16
 
 t22 THE CANON LAW 
 
 Moreover, the duties of apparitors and proctors are 
 limited and defined, so that "causeless and unnecessary 
 troubles, molestations, and expenses," may be in future 
 avoided. 
 
 Canon 94 forbids the issue of original citations to 
 any persons to appear in the Court of Arches, or the 
 Court of Audience, except in the cases reserved by 
 Statute 23 H. viii. cap. 9, because these Courts hear 
 appeals from the Consistory Courts. 
 
 Canons 99 to 108 relate to marriage and divorce, 
 forbidding marriage within the table of prohibited 
 degrees set forth by authority in the year 1563, nor 
 under the age of twenty-one without the full consent 
 of parents and guardians. 
 
 In the ordinary way marriages are celebrated after 
 banns. 
 
 Marriage licences may only be issued by those 
 having episcopal authority, or their deputies lawfully 
 constituted, and then under proper conditions. 
 
 Sentence of divorce must be pronounced in open 
 Court by the ecclesiastical judge, and must never be 
 given on the sole confession of the parties. 
 
 Churchwardens and ministers may present to the 
 Ordinaries parishioners guilty of seri< us offences for due 
 punishment in the consistory or aichidiaconal courts. 
 
 Presentments to be made once (or at most twice) 
 in every year. 
 
 No ecclesiastical judge may suffer any processes 
 of " quorum nomina " to be sent out of his Court, nor
 
 THE CANON LAW OF ENGLAND 123 
 
 may the same person be cited into several Courts for 
 one crime, nor any Act sped but in open Court. 
 
 No Court of ecclesiastical jurisdiction can have 
 more than one seal, and Courts of Peculiars and 
 inferior Courts must exhibit the original copies of 
 wills into the bishop's registry. The ecclesiastical 
 judge must be over twenty-six years of age, learned 
 in the law, and of the degree of Bachelor of Law, or 
 Master of Arts at the least, and his Surrogate must 
 be either a grave minister and graduate, a licensed 
 preacher beneficed near the place where the Court is 
 kept, or a Bachelor of Civil Law, or Master of Arts 
 at the least. Proctors must not retain causes for 
 two court-days without the counsel and advice of an 
 advocate, and are prohibited the use of the oath " in 
 animam domini sui." 
 
 The various abuses which have arisen in regard to 
 registrars are reformed, and the table of fees ratified 
 and approved by the most reverend Father in God 
 John Archbishop of Canterbury in the year 1597 is to 
 be placed in all the courts and registries and enforced. 
 The great number of sumners or apparitors is restrained. 
 
 VIL Canons 139 to 141 concern the high authority 
 of synods, and the first of these three Canons affirms 
 that " the sacred Synod of this nation, in the name of 
 Christ and by the King's authority assembled, is the 
 true Church of England by representation." 
 
 Upon the whole, the Canons of 1604 are a very 
 fair attempt, based upon a very careful adherence to
 
 124 
 
 THE CANON LAW 
 
 ecclesiastical precedent, to define in important respects 
 the somewhat novel position of the Church on the 
 accession of King James I. ; notwithstanding that there 
 are some references to the bitter controversies of those 
 days which are now obsolete, as well as out of harmony 
 with the tolerant spirit of the twentieth century.
 
 CHAPTER VI 
 
 THE ECCLESIASTICAL COURTS 
 
 Amidst all the changes wrought during the stormy 
 period of the Reformation, when so much that was 
 old and venerable was ruthlessly swept away, the 
 Ecclesiastical Courts retained their power and rights 
 of jurisdiction unimpaired. 
 
 In the frequent ritual cases which arose half a 
 century ago, both the Court of Appeal and the House 
 of Lords from time to time confirmed the complete 
 freedom of these Courts in spiritual causes, though this 
 was not the direct object of these expensive and 
 litigious suits. 
 
 This independent ecclesiastical jurisdiction gave rise 
 to a body of English law of a peculiar kind, regulating 
 the precise position of cases which seemed on the 
 border line between the Courts of the Church and 
 the State. 
 
 Matrimonial and testamentary causes were regarded
 
 126 THE CANON LAW 
 
 as belonging to the jurisdiction of the Church, but rights 
 of presentation to a benefice and the advowson were in 
 part under the cognizance of the King's Court, and 
 numerous early cases may be found in both Courts in 
 regard to this last matter. Moreover, if the question of 
 the limits of jurisdiction arose, and the ecclesiastical 
 judge seemed about to exceed those limits, whether by 
 authority of the Pope or in some other way, then he 
 could be stopped by a writ of prohibition issued by the 
 King's Court to the parties to the suit, and the judge ; 
 and if there was found to be no excess of jurisdiction, 
 then a message called "a consultation" was sent to the 
 spiritual judge to that precise effect. The whole 
 custom which prevailed is dealt with by Bracton, one 
 of the judges of Henry in., in his fourth Book " De 
 Exceptionibus." Attempts were made by Archbishop 
 Boniface, in the reign of the same King Henry, to 
 extend the ecclesiastical jurisdiction, but without much 
 success, and the majority of the points then raised were 
 afterwards regulated by the celebrated Statute of King 
 Edward ii., known as Articuli Cleri (9 Ed. 11. stat. i. 
 cap. I -1 6). 
 
 On one question the legal constitution of the Church 
 of England was unlike that of the Church on the conti- 
 nent of Europe, in that the Convocations of Canterbury 
 and York have from the time of King Edward 11. 
 possessed certain powers of legislation and synodical 
 action ; and also voted for a considerable period 
 subsidies or taxes to the Royal Exchequer.
 
 THE ECCLESIASTICAL COURTS 127 
 
 The late Earl of Selborne, Lord High Chancellor 
 of Great Britain, makes the following statement 
 in regard to the legal meaning of the word 
 Establishment, which seems worthy of careful con- 
 sideration : — 
 
 The Establishment of the Church by law consists 
 essentially in the incorporation of the law of the Church 
 into that of the realm, as a branch of the general law 
 of the realm, though limited as to the causes to which 
 and the persons to whom it applies ; in the public recog- 
 nition of its Courts and Judges, as having proper legal 
 jurisdiction ; and in the enforcement of the sentences of 
 those Courts, when duly pronounced according to law, by 
 the civil power. The " Establishment" grew up gradually 
 and silently, out of the relations between moral and 
 physical power natural in an early stage of society; not 
 as the result of any definite act, compact, or conflict, but 
 so that no one can now trace the exact steps of the pro- 
 cess by which the voluntary recognition of moral and 
 spiritual obligation passed into custom, and custom into 
 law. 
 
 Under the Anglo-Saxon kings the ecclesiastical and 
 temporal judges sat together in one Court. 
 
 In the days of William the Conqueror the two 
 jurisdictions began to sit separately in separate Courts ; 
 and they have done so ever since that period of our 
 history. In the result, therefore, the Ecclesiastical 
 Courts possess the power of enforcing their decisions 
 just as well as the civil Courts ; and in this respect 
 their position is well - nigh unique. Yet in Scotland 
 and Austria the ecclesiastical authority possesses e.\- 
 tensive legal powers.
 
 128 THE CANON LAW 
 
 From the date of the Norman Conquest * to the time 
 of Henry ii. the procedure in the Ecclesiastical Court 
 became systematised, and the power and influence of 
 that Court became greater, and more generally recog- 
 nised amongst the people, in accordance with a move- 
 ment which was spreading throughout Europe in favour 
 of the strengthening of ecclesiastical authority. 
 
 During the confusion of King Stephen's reign the 
 power of the Church was ever on the increase, and the 
 Canon Law was wielding a wider force. Thus the way 
 was prepared for the bitter conflict between Becket and 
 Henry H., and the Archbishop's martyrdom in his 
 
 * The origin of the temporahties of the Roman Church, an important 
 matter which has played so large a part in Christian history, and in ecclesi- 
 astical law, is involved in some obscurity. But, after the western Empire 
 came to an end with the conclusion of the reign of Romulus Augustulus, 
 A.D. 476, the Bishop of Rome seemed naturally the most important person- 
 age in Italy, and soon began to exercise some of the ordinary attributes of 
 sovereignty. 
 
 According to the Earl of Selborne, sometime Lord High Chancellor, 
 and other well-known legal authorities, these Roman temporalities date 
 from the year 755, when Pepin, the father of Charlemagne, made a grant of 
 the E.xarchate of Ravenna to Pope Stephen ui. 
 
 Further gifts were made by Charlemagne himself, and by the Emperor 
 Henry ni. in the year 1053. The famous Countess Matilda in the year 
 1102 made over her vast possessions to the Holy See, and this liberal 
 donation was the true basis on which the mediaeval kingdom of the Bishop 
 of Rome in reality rested — a kingdom which endured till 1870, or nearly 
 Soo years. In the hands of a Pope like Gregory vil., better known as 
 Hildebrand, the opportunity these temporalities created for grasping at 
 fresh power was not likely to be let slip, and these temporalities became 
 one powerful element in the building up of the vast influence and pre- 
 rogatives of the Papacy in the M iddle Ages. The Popes of the Renaissance, 
 including the unscrupulous .Alexander vi., who was elected in 1492, added 
 various fresh principalities to the ancient dominions of the Church, but 
 failed to realise the chimerical dream of a United Italy with the Pope 
 as King.
 
 THE ECCLESIASTICAL COURTS 129 
 
 Cathedral. In the result neither king nor prelate was 
 absolutely victorious, but yet from these days the respect- 
 ive spheres of civil and ecclesiastical jurisdiction remained 
 practically the same for some centuries. 
 
 Two classes of cases particularly belong to the 
 ecclesiastical jurisdiction, — those in which the matter 
 in dispute is of a spiritual kind, and those in which 
 the persons concerned are specially subject in some 
 way or other to the Church. 
 
 Under the first of these two headings we may appro- 
 priately place the whole law of ecclesiastical status, the 
 ordination of clerks, the consecration of bishops, the 
 celebration of divine service, the regulation and admini- 
 stration of ecclesiastical corporations. Yet in Eno-Hsh 
 law the advowson of a parish was temporal property, 
 while the act of institution was purely ecclesiastical. 
 
 Another matter which appertained to the Courts 
 Christian was the regulation of ecclesiastical dues, and 
 this was generally acknowledged, but tithe was con- 
 sidered as having to some extent a dual character, as 
 being a charge on real estate devoted to a religious 
 purpose. 
 
 Furthermore, questions relating to marriage, divorce, 
 and legitimacy were deemed to appertain to the ecclesi- 
 astical jurisdiction, yet the decretal relating to legitima- 
 tion " per subsequens matrimonium " has never been 
 received as law in England, the barons declaring in 
 the year 1236 " Nolumus leges Anglise mutari." 
 
 Testamentary cases also were included in the pro- 
 17
 
 I30 THE CANON LAW 
 
 vince of the Church ; and this arrangement controlled 
 the devolution of all personal property, whether by will 
 or intestacy, but not real estate, which in the Middle 
 Ages passed direct to the heir, and could not generally 
 be made the subject of a devise. Hence it is that the 
 law of personal and real property is so different in this 
 twentieth century. 
 
 There remained two matters more vague and 
 uncertain, yet of great importance. The pledge of 
 faith, or promises made under oath, were deemed to be 
 the proper subject of spiritual censures ; but in England 
 they were not brought exclusively under the view of 
 the ecclesiastical Court, unless both parties were clerks, 
 or both parties desired thus to have the cause tried. 
 
 The other matter was the general correction of 
 sinners, to set the evil doer some corporeal penance 
 for his soul's health. This claim is extensive, but vague, 
 and in practice was limited to those cases in which the 
 King's Court had no power of inflicting punishment. 
 Yet in the case of laying violent hands upon an ecclesi- 
 astic, the spiritual Court could inflict penance, and the 
 lay Court imprisonment for the breach of the peace as 
 well as damages for trespass. 
 
 It is clear, then, that the sphere of the jurisdiction 
 of the Courts Christian was wide and extensive, and 
 that the Canon Law tended to uphold that width and 
 extension, not only in England, but throughout the 
 whole of Western Europe. For some three centuries 
 or more this arrangement was universally acknowledged.
 
 THE ECCLESIASTICAL COURTS 131 
 
 The civil law was regarded as the "jus soli," the church 
 law as the "jus poll." One was the law of earth, the 
 other the law of heaven. 
 
 In the year 1342 Archbishop Stratford issued 
 provincial constitutions condemning all those who on 
 their deathbeds make gifts inter vivos for the purpose 
 of defrauding the Church of mortuaries, the creditors 
 of debts, or their wives and children of the portions 
 that belong to them by custom and law. And at a 
 later date Lyndwood, Official Principal of the Court of 
 Canterbury, declares "these portions" are regulated 
 by the custom of the place in which they arose, thus 
 recognising a variety of law on this subject. And this 
 brings up the consideration of the doctrine and principle 
 of legitim, a point which was entirely within the 
 ecclesiastical jurisdiction. 
 
 And it is curious to note that here there was at 
 one time a distinct difference between the law adminis- 
 tered in the province of Canterbury, and the law 
 administered at York. 
 
 Legitim is a claim against the executor ; and, where 
 it exists, provides a portion for the wife and child, 
 one-third for each if there is both wife and child, one- 
 half of the movable goods if there is but one of them. 
 Now this claim was admitted at York down to the year 
 1692, and some particulars of how it was administered 
 may be read in the Book of Henry Swinburne, who 
 was sometime Judge of the Prerogative Court of York. 
 Yet, strange to say, this claim was not admitted at
 
 132 THE CANON LAW 
 
 Canterbury, unless some local custom of the peculiar 
 or the diocese made that way. On the other hand, it 
 may here be noted that the Canon Law in Scotland 
 acknowledged the binding force of the principle of 
 legitim. 
 
 Moreover, we find it stated on good authority that 
 there was a custom in favour of legitim in the county 
 of Berks. 
 
 In the period when the power of making a will 
 of movable goods was first recognised under the 
 authority and protection of the Church, the idea was 
 prominent that out of such goods the deceased man 
 should make some suitable provision for his soul's 
 health, by giving gifts to pious uses, by founding a 
 chantry chapel, or some other similar act, and even to 
 the present day a certain religious character surrounds 
 a will. It is not unusual to commence the document 
 in the name of the Father, the Son, and Holy Ghost, 
 and to bequeath the soul to the care of God. A notable 
 instance may be found of quite recent occurrence in 
 the opening sentence of Pope Leo xiii.'s will : — 
 
 Before all things, we humbly pray the infinite goodness 
 and mercy of God to pardon us the errors of our life, 
 and graciously to receive our soul into the beatitude of 
 eternity. 
 
 And it was fairly early in the history of will making 
 that the ecclesiastical Courts extended the power of 
 dealing in this way with a third or a half of the movable 
 estate to the whole of the personal property.
 
 THE ECCLESIASTICAL COURTS 133 
 
 It is, however, remarkable that while the king did 
 not interfere with the Courts Christian, the Pope did 
 so ; for we find Alexander iv. bestowing upon the 
 Cistercian Order in England the peculiar right to 
 grant probate of the wills of their own tenants and 
 farmers, thus exempting their manors from the juris- 
 diction of the "ordinary," or, in other words, the 
 ecclesiastical judge. These "exemptions" were often 
 carried very far in the Middle Ages, as against both 
 bishop and king. 
 
 In fact, there were occasions in which the grasping 
 character of the papal claims knew no bounds. For 
 Innocent iv. would have liked to take possession of all 
 the goods of intestate clerks. In the year 1246 three 
 rich English archdeacons had died intestate, a condition 
 which in those days was deemed worthy of great blame. 
 Had not these distinguished clerics failed to leave 
 anything to Holy Church ? Therefore was it not 
 perfectly reasonable that " the servant of all the servants 
 of God," the occupant of the Holy See, should at once 
 order the conversion of these archdeacons' goods to 
 his own particular use and benefit. The great Canonist 
 who then occupied the papal throne was clearly of this 
 opinion. Apparently he would even have gone further, 
 and not allowed even the appointment of an executor to 
 defeat the papal claim. But this was not pressed ; and 
 the earlier claim was never admitted as settled and 
 received law. Yet in the year 1284 we find Edward i. 
 asking the Pope for a grant of the goods of intestate
 
 134 THE CANON LAW 
 
 clerks throughout his dominions, which was promptly 
 refused by Martin iv. 
 
 In the following year, 1285, a statute is passed by 
 which the "ordinary" is in future to be bound to pay 
 the debts of an intestate in the same way as the executor. 
 
 And in the year 1357 another statute directs the 
 ordinary to hand over this work to the " next and most 
 lawful friends " of the deceased person, who are hence- 
 forth known as the administrators. The earliest known 
 letters of administration still existing in the original form 
 were issued by the Bishop of Durham in 13 13 to 
 Margaret, widow of Hannsard, knight, and two others. 
 
 Monastic property often became the subject of litiga- 
 tion, partly on account of the vast amount of real estate 
 held by the abbots and priors ; and on this matter 
 Bracton lays it down : — 
 
 If an abbot, prior, or other collegiate men demand 
 land or an advovvson or the like in the name of their 
 Church on the seisin of their predecessors, they say " And 
 whereof such an abbot was seised in his demesne," etc. 
 They do not in their count trace a descent from abbot to 
 abbot, or prior to prior, nor do they mention the abbots or 
 priors intermediate, for in colleges and chapters the same 
 body endures for ever, although all may die one after the 
 other, and others may be placed in their stead ; just as with 
 flocks of sheep, the flock remains the same, though the 
 sheep die ; nor does one succeed to another by right of 
 succession as when a right descends heritably, for the right 
 always belongs to the Church, and the Church is perma- 
 nent ; and this one sees in charters, where the gift is made 
 first and foremost to God and such a Church, and only in 
 a secondary way to the monks and canons.
 
 THE ECCLESIASTICAL COURTS 135 
 
 The power of the abbot or prior over the internal 
 affairs of the institution over which he presided was 
 very great, for he usually kept the seal, and by the 
 seal the whole community was bound. It was only 
 the principal establishments which possessed two seals, 
 one for the abbot and another for the community. If, 
 for instance, Brother Walter, Sacrist of S. Edmunds, 
 takes possession of the seal which hangs by the holy 
 bier, and seals a bond for forty marks to one Benedict, 
 the Jew of Norwich, the bond itself being under seal is 
 good ; and the abbot can only shew his anger against 
 Brother Walter by pronouncing upon him sentence of 
 deposition from his office. The idea of a civil action 
 in those days being brought against Brother Walter, 
 or rather a criminal charge in a civil court, was not 
 to be entertained ; and, in any case, the seal was 
 paramount, and could not be ignored. A corporate 
 body was bound by its seal, and without it was not 
 bound. 
 
 The Reformation naturally weakened the Courts 
 Christian, though it did not abolish them ; and for 
 many years the probate of wills seems to have been 
 their chief business. 
 
 Sir George Lee was a distinguished ecclesiastical 
 judge in the middle of the eighteenth century, and heard 
 a large number of cases, many of which concerned the 
 probate of wills. 
 
 In Pytt V. Fendall he lays down that an excom- 
 munication must be published in the parish of the person
 
 136 THE CANON LAW 
 
 excommunicated, unless there be grave objection, and 
 the clergy refuse, as occurred in an Irish case, and so 
 publication at Westminster against a party living at 
 Gloucester was irregular, and of no effect. Yet the 
 judge may pronounce sentence of excommunication 
 without calling in a presbyter for that purpose, accord- 
 ing to the authority of Statute 37 H. viii. cap. 17. But 
 a schedule of the actual sentence of excommunication 
 must be issued, and was indispensably necessary. A 
 schedule was the proper way, though it might be done 
 by interlocutory. 
 
 In the same year, 1753, Sir George Lee, sitting in 
 the Arches Court of Canterbury, decided that the Rev. 
 T. Castleman, Vicar of South Petherton, Somerset, could 
 not claim a marriage fee from one of his own parishioners, 
 who was married in the church of another parish. This 
 case is cited as Patten v. Castleman. 
 
 Hillier v. Milligan is a curious case as to the powers 
 of the Commissary of Buckinghamshire in the diocese 
 of Lincoln. 
 
 Conran v. Lowe, heard in 1754 in the Arches Court, 
 raises the question as to the validity of a Fleet marriage, and 
 decides the marriage is not sufficiently proved, reversing 
 the decision of the Chancellor of Londoji. 
 
 It would be easy to multiply cases of this kind, 
 for they mainly occupied the Courts Christian in the 
 eighteenth century. 
 
 In more recent times there have been important
 
 THE ECCLESIASTICAL COURTS 137 
 
 suits, and important decisions on questions of ritual, 
 which have been much canvassed. Where leno-th of 
 usage and custom generally received bears one way, 
 and the written text of the ancient canon another, the 
 judge has always a task of great difficulty. He has to 
 reconcile, if reconciliation be possible, two different 
 propositions which apparently seem to be altogether 
 irreconcilable. But judges are very able men, and their 
 powers very great. 
 
 It is not possible to go into these ritual cases in 
 detail, but we may just give by way of example of this 
 class of case the recent decision by the Dean of Arches 
 on March 11, 1901, in regard to Pinner Church. 
 
 Chancellor Tristram had refused to grant a faculty 
 to the Vicar of S. Anselm, Pinner, to erect a new screen 
 m the Church, on the ground that certain ornamentation 
 carved thereon, and more particularly a crucifix, tended 
 to superstition, and was therefore illegal. 
 
 The Dean of Arches, Sir A. Charles, reversed the 
 decision of the Chancellor of London. He held he 
 was bound by the authority of Clifton v. Ridsdale, and 
 Philpotts V. Boyd, that a crucifix was not in itself illegal 
 if it formed part of an historic scene for the architectural 
 adornment of the Church. Yet it was illegal if tending 
 to superstition, as might be the case in churches where 
 the stations of the Cross were found. 
 
 It was illegal if tending to superstition, as previous 
 authorities had laid down, but there was nothing what- 
 ever of this character at S. Anselm's, Pinner — no 
 
 18
 
 138 THE CANON LAW 
 
 stations of the Cross — no excessive ritual. Sir A. 
 Charles, therefore, felt entitled to exercise his power 
 of discretion, and issued a faculty reversing the 
 decision of the Chancellor of London. 
 
 From the various proceedings in this case it is 
 apparent how much depends upon the discretion of 
 the judge in a certain class of legal cases, for 
 there is room for a variety of legal opinion as to the 
 true interpretation of such phrases as " tending to 
 superstition " and the like, just as much as is the case 
 amongst theologians. 
 
 Narrowness of interpretation may often lead to 
 curious and unlooked for results, and may have the 
 effect of indirectly giving a new colour to the old law 
 of the land. 
 
 Another recent case which aroused some interest, 
 and gave occasion for the discussion of some curious 
 points of law, is the King v. the Bishop of Chester, and 
 Davies ex parte the Dean and Chapter. 
 
 The Reverend Timothy Davies, Head Master of 
 the King's School, Chester (a school formerly closely 
 connected with the chapter), claimed a right to a special 
 seat in the choir, and to be a member of the cathedral 
 body. Such a position was doubtless contemplated by 
 the statutes of Chester Cathedral passed in the reign 
 of Henry viii., for the master and all the boys were 
 enjoined to attend and take part in the cathedral 
 services on all Sundays and holy days. But under 
 the scheme framed in 1869, under the Endowed Schools
 
 THE ECCLESIASTICAL COURTS 139 
 
 Act, all obligation on the part of the master and boys 
 to attend the cathedral services in the manner and way 
 above prescribed was done away, and the dean and 
 chapter were of opinion that by that scheme the official 
 right of the head master to a special seat in the choir 
 was likewise abolished, more particularly as the chapter 
 possessed the general right of regulating the position 
 and use of all seats within the cathedral, and their old 
 right of appointing the Head Master of the King's 
 School had been abrogated by recent changes under 
 the authority of Parliament. The bishop was of the 
 contrary opinion. Therefore the chapter sought a 
 prohibition in the King's Bench prohibiting the bishop 
 from entertaining during his legal visitation of the 
 chapter the petition of the said Reverend Timothy 
 Davies, whereby he claimed he was entitled of right 
 to occupy a seat in the choir of the Cathedral Church 
 of Chester ; and the ground of the chapter's application 
 was that the decision of this point was beyond the legal 
 jurisdiction and power vested in the bishop in his 
 capacity of visitor of the cathedral chapter, for it was 
 already decided by valid legal authority. 
 
 Mr. Justice Darling and Mr. Justice Channell were 
 the judges of the Court of King's Bench who heard 
 this case on March 21, 1901. The actual statutes or 
 ecclesiastical law now in force in Chester Cathedral 
 were carefully considered, especially in regard to the 
 relation of the chapter and the school, and in particular 
 Statute 32 : —
 
 140 THE CANON LAW 
 
 To the end that prayers and services be duly and con- 
 stantly performed in our church, and the praises of God 
 be every day celebrated with singing and joyfulness, we 
 appoint and ordain that the minor canons and conducts, 
 with the deacon and subdeacon and master of the choristers, 
 do perform divine service in the choir of our church accord- 
 ing to the rites and ceremonies of other cathedral churches ; 
 but we do not oblige them to the performance of nightly 
 services. 
 
 It was clear then by the cathedral statute that the 
 master and his scholars were bound to attend in the 
 choir on Sundays and holy days ; but it was also clear 
 that by the scheme which had been passed under the 
 Endowed Schools Act the master and scholars were 
 not so bound to attend, and in fact did not so attend. 
 It was a common rule of law that the duties being 
 abrogated the rights attached to those duties were also 
 abrogated. 
 
 Their Lordships therefore held that the prohibition 
 applied for by the dean and chapter would lie, and 
 made order accordingly ; and though they held that the 
 bishop alone could pronounce judgment on the claim 
 of Mr. Davies to be a member of the cathedral body, 
 and to have of right a seat in the choir, )et they held 
 the bishop bound by the cathedral statute and the 
 sch' me of the Endowed School Commissioners. 
 
 From the point of view of ecclesiastical law this 
 d cision is of remarkable interest, because in the result 
 it upholds very distinctly, though on somewhat different 
 grounds, the general principle of the later Canon Law
 
 THE ECCLESIASTICAL COURTS 141 
 
 that the dean and chapter alone have control over the 
 cathedral church in every question that can arise. The 
 chapter alone possess seats, or stalls, as of right, and the 
 bishop, who is visitor, possesses his episcopal throne. 
 But the ordering of the services, the maintenance of the 
 fabric, and all the various details coimected with the 
 administration of a great cathedral rest entirely with 
 the dean and chapter. 
 
 So much controversy has arisen in regard to the 
 election of bishops, that it may be of interest to recall 
 the legal proceedings on the occasion of the election of 
 the present Bishop of London. It will be seen that all 
 the canonical forms and ceremonies were carefully com- 
 plied with at S. Paul's. 
 
 The Dean and Chapter being assembled in the Chapter 
 House, the King's Letters Patent and Letter Recom- 
 mendatory were produced by the Registrar, and read. 
 The verger also produced the Citatory Mandate, with a 
 certificate of its execution, and then proclaimed : — Oyez, 
 Oyez ! All and singular the Canons and Prebendaries of 
 the Cathedral Church of S. Paul in London having a right, 
 voice, or interest in the election of a Bishop of the Sec of 
 London now vacant are hereby required to attend at this 
 day, hour, and place, etc. etc. 
 
 H. W. Lee, notary public, was then made actuary, and 
 VV. P. Moore and F. H. Lee were made witnesses of the 
 election, and all absent Canons being pronounced con- 
 tumacious, the Dean read and signed the monition warning 
 non-electors to depart from the Chapter House, and 
 declared the Canons and Prebendaries present to be a full 
 Chapter. He then set forth the three canonical ways of 
 election — (i) by acclamation, (2) by scrutiny, ("3) by com-
 
 142 THE CANON LAW 
 
 promise. The election was resolved on by acclamation. 
 The Dean then signed the schedule of election, and was 
 empowered to publish and make known the same to the 
 clergy and people, and by lawful proxy to the Bishop 
 elect, to our Sovereign King Edward, and the Archbishop 
 of Canterbury. 
 
 The following notice was then attached to the door of 
 the Chapter House : — 
 
 To all and singular Christian people whom the under- 
 written may concern : Robert Gregory, clerk, D.D., Dean 
 of S. Paul's, London, and the Chapter of the said Church, 
 greeting in the Lord Everlasting. We do make it known 
 to you universally by these presents that the See of London 
 being vacant by death, etc. etc. We, the Dean and Chapter 
 aforesaid, by virtue of the King's licence granted to us for 
 the election of another Bishop and Pastor of the said 
 Church, being assembled together in our Chapter house 
 on the 25th day of March 1901, and making Chapter there, 
 and observing the laws and statutes of this kingdom, and 
 the ancient customs of the said Cathedral Church in this 
 behalf to be observed, did unanimously elect the Right 
 Reverend Father in God Dr. A. F. Winnington Ingram, 
 Bishop of Stepney, to be Bishop and Pastor of the said 
 Cathedral Church of S. Paul, London. 
 
 The various steps in the process of election have 
 remained the same for many centuries, and bring to 
 mind the ancient canons of the Church, and all the 
 mediaeval legal lore on the matter. Though the King's 
 letter nominates the ecclesiastic who is to be elected, 
 yet the election itself is vested in the chapter alone, 
 and the new Bishop holds his See from the moment the 
 election is completed, and not from the date of the 
 King's letter. There has been no case in modern times
 
 THE ECCLESIASTICAL COURTS 
 
 143 
 
 of the chapter not electing the clergyman recommended 
 in the King's letter. 
 
 What would happen in such a case it is difficult to 
 say. It is certainly within the power of the chapter so 
 to do; but then they may suffer the penalty of praemunire. 
 Generally, however, the chapter is unwilling to con- 
 template such a course of action, being well satisfied 
 with the ecclesiastic recommended. The common idea 
 that the action of the chapter is only a farce in regard 
 to the making of a bishop is founded on a total miscon- 
 ception of the legal powers and legal rights of chapters. 
 If a new bishopric is made, it certainly seems a pity 
 that a chapter should not be formed at once, and every- 
 thing thus brought into line with the ancient ecclesiastical 
 law. For, after all, those institutions flourish best which 
 develop along the lines of their existing constitutions, 
 and so make all their arrangements decently and in 
 order.
 
 CHAPTER VII 
 
 Patronage 
 
 In all ages the question of patronage has been fraught 
 with difficulty in the Christian Church. Various views 
 have been, and still are, held by Christian people in 
 absolute and diametrical conflict one with another, 
 and these views are often advanced with an excess 
 of earnestness and force. 
 
 There is the monarchical view, in which the bishop, 
 or in some Protestant countries the sovereign prince, 
 is deemed the proper and legitimate source of patronage; 
 then, on the other hand, there is the democratic view, 
 in which the inhabitants are deemed the best suited 
 to select the clergyman of the parish ; and though 
 they doubdess possess excellent knowledge of local 
 requirements, yet in the case of a contested election 
 the parish will be divided into two hostile camps, and 
 the defeated party will always remain a source of 
 bitterness and contention for the future.
 
 PATRONAGE 145 
 
 Another way of dealing with patronage was to 
 vest it in the lord of the soil, the owner of the land, 
 upon which the church itself was built. Looking 
 back over past centuries, history points out how it 
 was the lord of the soil who in general first erected 
 the parish church, sometimes as a private chapel or 
 place of worship for his own family, and continued to 
 claim some right in the fabric he had built, when the 
 ecclesiastical authority and the churchwardens were 
 held in law to possess more extensive rights than the 
 heir of the founder. 
 
 And this plan of various co-ordinate rights, so to 
 say, in the church of the parish, recognised by the 
 civil and the ecclesiastical law, has been found to 
 work quite as well as any other in the legal history 
 of Christian institutions. 
 
 While great variety was allowable, arising from 
 local custom or otherwise, the general plan which 
 prevailed placed the patronage in the hands of the 
 landowner or his heir, the ownership of the fabric of 
 the church in the rector or vicar, and for some 
 purposes with the churchwardens, one of whom 
 represented the incumbent and the other the inhabit- 
 ants. As the incumbent alone, and also the incumbent 
 and churchwardens, formed a corporate body, they 
 were able to possess a good title to the church and 
 site thereof, as against the hereditary heirs of the 
 landowner or lord of the manor, a point of practical 
 importance in early times — a point which is sometimes 
 19
 
 146 THE CANON LAW 
 
 nowadays a matter of practical difficulty in regard to 
 Episcopal churches in Scotland, as may be seen in 
 the recent proceedings in the Earl of Rosslyn's 
 bankruptcy case. 
 
 And this ownership of the fabric by the vicar, and 
 for some purposes by the vicar and churchwardens, 
 became an established principle of ecclesiastical law, 
 though the chancel always belonged to the rector 
 alone, and the soil on which the rest of the church 
 stood, together with the churchyard, to the vicar. 
 And this ownership was of such a kind as to confer 
 a parliamentary vote as a freeholder. But the advowson 
 in most cases remained with the lord of the manor, 
 or the lord of the soil, and in the case of manors was 
 often deemed in early days to be inalienable from the 
 ownership of the manor ; but as time went on this 
 became inconvenient, and the advowson became 
 generally transferable as a separate piece of property. 
 No doubt the abbots of the more powerful monasteries 
 did all they could to advance this movement, as they 
 frequently desired to become owners of patronage, 
 but had no object in becoming lords of the soil. 
 
 In this way the English system of patronage has 
 arisen, and upon the whole works remarkably well. 
 In the case of private patronage, it is found in practice 
 that the patron is inclined to take considerable interest 
 in the prosperity of the Church, and to do far more 
 to advance that prosperity than would be the case if 
 he were not patron. Indeed, instances of the generous
 
 PATRONAGE 147 
 
 liberality of patrons are very numerous. A remarkable 
 recent example may be found in the case of the parish 
 of Wraxall, where the emoluments of the rector have 
 been very largely increased. There are, of course, 
 some instances of unworthy patrons ; but if the legal 
 process by which patronage could be transferred was 
 made more simple, such patrons would slowly but surely 
 drop out of the way, and their places would be taken 
 by more worthy successors. The law of simony is 
 uncertain and vague, and needs better definition. 
 
 If the transfer of advowsons, under proper limitations 
 and conditions, were facilitated and a substantial regis- 
 tration fee charged, part of which should go to the 
 augmentation of the endowment, a great practical benefit 
 would be conferred on the Church, and patrons would 
 be encouraged to take more interest in the parishes with 
 which they are connected. 
 
 Besides private patrons, there are a number of cor- 
 porate bodies, ecclesiastical and civil, which possess the 
 right of exercising patronage : such as the King, the 
 Archbishop of Canterbury, the Lord Chancellor, the 
 Archbishop of York, the Bishops, Deans and Chapters, 
 the Corporation of London and some other civic bodies, 
 the Colleges of Oxford and Cambridge, and Eton College. 
 Of these bodies, the King is perhaps the most important, 
 not only because he nominates to the most important 
 posts in his own right, but also because he has much 
 indirect preferment. 
 
 For, in the first place, there were the vacancies in
 
 148 THE CANON LAW 
 
 bishoprics, and some other high ecclesiastical offices, 
 when the temporalities became for the time being vested 
 in the Crown ; * including the patronage of vacant 
 churches. Then there were presentations on behalf 
 of minors, heirs of feudal tenants in capite, which passed 
 to the Crown. Then there was, during the great war 
 with France, all the extensive patronage hitherto vested 
 in the alien priories. We will illustrate this curious 
 point from a variety of cases. 
 
 Examples of Presentations by the King not in Ids 
 oivn right. 
 
 In the year 1378 the patronage of the Church 
 of La More in the diocese of Lincoln is stated to be 
 in the King's hands, since the Priory of Durhurst is 
 an alien priory, and Nicholas Moryns, Vicar of the 
 Church of the Holy Trinity, Gloucester, is presented 
 thereto on exchange of benefices with Richard Har- 
 bergh. 
 
 In the previous year the King presented John de 
 Bellerby to the Church of Southgosseforth in the diocese 
 of Durham, which had come into his hands by reason 
 of his custody of the land and heir of Robert Lyle, 
 tenant in chief. 
 
 In the year 1379 the King presented Richard de 
 Osset to the Church of Remston, in the diocese of York, 
 by reason of the temporalities of the Priory of Lenton 
 
 * But not in the bishopric of Durham, where the chapter exercises 
 this semi-regal privilege.
 
 PATRONAGE 149 
 
 being in the King's hands on account of the French 
 war. 
 
 In the year 1381 King Richard II. presented WilHam 
 Sempiere to the vicarage of Crymplesham in the diocese 
 of Norwich, and also John Hervy, Chaplain, to the Church 
 of Little Gelham in the diocese of London. The 
 patronage of both these churches belonged to the Prior 
 of Stoke, which being an alien priory was vested in the 
 King on account of the war with France. 
 
 In this same year King Richard grants a licence in 
 mortmain to William, Bishop of Winchester, to alienate 
 the advowson of the Church of Abberbury, Oxon, from 
 the bishopric of Winchester to the Warden and Scholars 
 of New College. Since this date there has been no 
 change in this patronage. 
 
 In the Patent Rolls of i Henry iv. we find the king 
 granting his clerk, Simon Bache, the Prebend of Thame 
 in Lincoln Cathedral ; and there is a mandate in pur- 
 suance thereof to the Bishop of Lincoln, and to the 
 Dean and Chapter. 
 
 The king also presents Richard Clifford to the 
 Church of Seggesfeld in the diocese of Durham ; 
 Richard Kyngeston to Stokenham in the diocese of 
 Exeter ; and Thomas More to Patryngton in the 
 diocese of York. The king also presented Maurice 
 ap David to the Church of Walssh Bykenore in the 
 diocese of Hereford ; and John Ambell to Tryngge in 
 the diocese of Lincoln ; as well as Nicholas Bury to the 
 Church of S. Magnus in the City of London.
 
 ISO THE CANON LAW 
 
 John Welynton, Prior of Lanthony, gets two 
 attorneys for his business in Ireland for three years, 
 so that this priory apparently had Irish estates. 
 
 The king, by reason of the French war, found him- 
 self in possession of the alien Priory of Andevere, 
 Southampton, and presented Nicholas Gwyn, a 
 Benedictine monk. He also presented John de 
 Wissyngsete, king's clerk, to Bokyngton in the diocese 
 of Exeter. 
 
 On October 21, 1400, there is a restitution to 
 Thomas, Archbishop of Canterbury, of his temporalities, 
 which had been taken by the late king under colour of 
 a judgment in Parliament. In this same year a number 
 of the alien priories were restored, and appointments 
 made to them, as S. Mary Magdalen, Barnstaple, 
 Lodres, Salisbury, and S. Michael's Mount, Cornwall. 
 The Abbot of Sdez in Normandy obtains licence to 
 sell wood at his manor of Atheryngton notwithstanding 
 the French war, because his abbey was founded by the 
 king's progenitors. Under the circumstances this royal 
 erant is remarkable. The king would on occasion grrant 
 licences for the execution of papal Bulls; for instance, 
 on November 25, 1399, he made such a grant to 
 William Langton, parson of Wellys by Walsyngham, 
 to execute papal Bulls concerning a benefice in the 
 Church of Chichester. 
 
 The following is an Irish presentation by the 
 sovereign, viz. John Belynges to S. Patrick's, Trym, 
 in the diocese of Meath.
 
 PATRONAGE i 5 i 
 
 A few more examples of the exercise of patronage 
 may be given. 
 
 Thus, on January 20, 1400, the king grants to 
 WilHam Bramley the wardenship of the chapels of 
 Octon and Swathorpe in the county of York, which 
 are in the king's gift in consequence of the forfeiture 
 of Ralph Lumley, knight. 
 
 On January 22 he presents William Mel, 
 chaplain, to the Church of S. Peter, in Old Sarum, by 
 Salisbury. 
 
 In the previous December he presented William 
 Forester, an alien monk and chaplain, to the alien 
 priory of Durhurst in the diocese of Worcester, void 
 by the death of Drugo (or Hugo?) Grenyer, the last 
 prior, and in the king's hands by reason of the war 
 with France. He also presented Thomas Wilymot 
 to the Church of Ernemouth in the Isle of Wight. 
 
 On February 6, 1400, there is a curious revocation 
 of a presentation. For the Prior and Convent of 
 Launceston say they had obtained an appropriation of 
 the Church of Leskyrd before the date of the Statute 
 of Mortmain, and therefore the king cannot appoint 
 Simon Gaunstede, who on being summoned did not 
 appear, and the claim of the prior was allowed, 
 judgment being given against the said Simon by the 
 Sheriff of Cornwall. 
 
 On the same day the king grants to his clerk, 
 Richard Kyngeston, dean of the chapel within the 
 royal household, the prebend which Richard Randes
 
 152 THE CANON LAW 
 
 lately had within the king's free chapel of Wyndesore, 
 void by the death of the said R. Randes. 
 
 On February 7 there is a grant to John, Bishop of 
 Leghlyng in Ireland, of the custody of the temporalities 
 of the bishopric of Osserye, so long as they remain in 
 the king's hands, by reason of his translation from 
 Leghlyng to Osserye. 
 
 On February 17 John Coryngham, clerk of the 
 closet, obtains a grant of the wardenship of the Hospital 
 of S. Mary, Wyche, in the county of Worcester. 
 
 On February 21 Robert Trays is presented to the 
 Church of Wadenho in the diocese of Lincoln. The 
 next day Henry Dymmok is presented to Wodnesbery 
 in the diocese of Coventry and Lichfield. 
 
 On February 20, 1401, John Crane is presented to 
 the Vicarage of Polyng, Chichester ; and Robert Kyng, 
 on the nomination of the mayor, etc,, to the Hospital of 
 S. Bartholomew, Rye. 
 
 In the Patent Rolls 2 Henry iv., anno 1401, on 
 August 3, a grant is made to Robert Keten, Prebendary 
 of Taffhmon in the Cathedral of Ferns, Ireland, of 
 licence to receive for four years all fruits of his prebend, 
 as though he were resident, notwithstanding" the ordi- 
 nance that non-resident holders of benefices in Ireland 
 shall pay two parts of the profits of their benefices in 
 aid of the king's wars in that country. 
 
 On August 4 Thomas Burdet, the king's clerk, is 
 presented to the Church of Aston Cauntlowe in the 
 diocese of Worcester.
 
 PATRONAGE i 5 3 
 
 The following entry is noteworthy, dated August 
 3 1 :— Whereas the Pope lately made a provision to the 
 king's clerk Nicholas Bubbewyth, one of the Masters 
 in Chancery, in the Cathedral of York, and Richard 11. 
 granted licence for the execution of the provision, and 
 after the coronation the archdeaconry of Richmond 
 and the prebend of Bool fell vacant, and the proctors of 
 the said Nicholas took possession of the same, and the 
 king pardoned him ; the king grants licence to sue his 
 right in the Court Christian, and continue possession. 
 
 On September 22 licence is granted to Angelo, 
 Cardinal Priest of S. Laurence in Damaso, to take 
 possession of the canonry and prebend of Blebury in 
 the Cathedral of Salisbury, void by the consecration 
 of Richard Clifford as Bishop, with which the Pope 
 has provided him. 
 
 On the same day Thomas Barton, Vicar of Hyston, 
 is presented to the Church of Harnhull in the diocese 
 of Worcester, on an exchange of benefices with John 
 Yong. The letters are addressed to the guardian of the 
 spirituality of the bishopric, because the See is vacant. 
 
 There is a mandate to the escheator in the county 
 of Somerset for the restitution of the temporalities of 
 the bishopric of Bath and Wells to Henry Bowet, 
 sometime Archdeacon of Lincoln, Doctor of Laws, 
 whom the Pope has appointed Bishop on the translation 
 of Richard, Bishop Elect, to the See of Worcester, 
 and who has renounced everything prejudicial to the 
 
 king in the Papal bull, whose fealty the king has taken. 
 20
 
 154 THE CANON LAW 
 
 There is a similar mandate to the escheator of 
 Worcester in favour of the above-mentioned Richard. 
 
 In the thirteenth century the law of England 
 regarded the advowson as being normally an appurten- 
 ance of some manor. Hence it follows that if you 
 make a feoffment of the manor, the advowson is 
 thereby conveyed without any further formal conveyance 
 thereof. But when the advowson came to be separated 
 from the manor by legal process, and thus became 
 an advowson in gross, then that advowson must be 
 conveyed by deed, much as real estate is conveyed. 
 
 Yet the advowson is incorporeal, not corporeal. 
 It cannot be touched like a house or walked over like 
 a field, and at first this difference seems to have puzzled 
 and perplexed the learned administrators of our law. 
 
 There was a writ of right for the recovery of an 
 advowson, similar, yet differing from the writ of right 
 for the recovery of land. 
 
 There was also the writ, or rather the assize of 
 darrein presentment, for the adequate protection of 
 the possessor of an advowson. And the act of presenta- 
 tion was itself regarded as the seisin of the advowson. 
 And so it comes to pass that the form of the question 
 addressed to the recognitors of the assize runs in this 
 way : — 
 
 Who was the patron who in time of peace presented 
 the last parson, who is now dead, to the Church of 
 Middleton, which is vacant, and the advowson whereof 
 Alan claims against William?
 
 TATRONAGE i 5 5 
 
 If, however, it can be shewn by way of an 
 "exceptio," that Alan had granted the advowson to 
 William, then in the days of Glanville William will 
 have the next presentation, Alan's title having been 
 proved good. 
 
 And seisin could be delivered, on speaking the 
 proper words of grant, at the church door. 
 
 Furthermore, there is also the "Ouare impedit." 
 
 Yet, if a clerk be wrongfully presented, and he 
 obtains episcopal institution, then in the case now 
 under consideration it appears that William will lose 
 his right of presentation altogether, for he has not 
 obtained seisin of the advowson. 
 
 By statute, however, passed in the year 1285, six 
 months was allowed after the usurpation for the use 
 of "Quare impedit," and this was the state of the law 
 down to Queen Anne's time. 
 
 Both the common law and the statute law was very 
 unwilling to appear in any way to interfere with the 
 canonical act of Institution, as laid down by Innocent 
 III. and succeeding Pontiffs, and incorporated in the 
 general Canon Law of Europe. 
 
 But yet the actual number of cases in which Institu- 
 tion was obtained, so to say, by tort cannot have been 
 very numerous, and as a general rule it appears that 
 the patron was perfectly free to exercise those rights 
 which were conferred upon him by the joint operation 
 of the common and the Canon Law. 
 
 The effectual separation of an advowson from the
 
 iS6 THE CANON LAW 
 
 lordship of a manor was sometimes a matter of consider- 
 able difficulty — possibly of some uncertainty. 
 
 For example, the abbot and convent of Roche, on 
 July 14, 1379, petition the king at Westminster, and 
 obtain a ratification of their estate in the advowson of the 
 church of Heytefeld in the county of York, which advow- 
 son had been granted to them by John de Warenne, Earl 
 of Surrey, but the manor had been previously granted 
 to King Edward 11., on which account they feared 
 an attempt at disturbance in their peaceable possession 
 of the said advowson, unless they obtained a declaration 
 that the advowson was an advowson in gross. 
 
 In this same year the king grants letters to John 
 Brian, Prebendary of Lusk in Dublin Cathedral, staying 
 in England, to nominate Thomas Bathe, clerk, and 
 John More of Dublin, his attorneys for one year ; and 
 also ratifies the estate of William de Hoton in the 
 treasurership of S. Patrick's Cathedral. In the same 
 year the king appoints Richard de Foxton, king's clerk 
 to the church of Herynggeswell in the diocese of 
 Norwich, the Abbey of Bury being then vacant. He 
 also appoints Ralph de Pynyngton to the Church of 
 Stokes in the diocese of Norwich, on account of the 
 alien Priory of Eye being in his hands. 
 
 The king also presented Richard Bolteford to the 
 Chantry of the Altar of S. Giles, in the Hospital of 
 S. Giles without Wylton, Sarum ; and gave licence to 
 the Prior and Convent of Pershore to elect an abbot in 
 the room of Peter Bradeway, deceased.
 
 PATROx\AGE 157 
 
 In 1380 the king presents Thomas Boteler, chaplain, 
 to the Church of Ravenston in the diocese of Lincoln, 
 in his gift by reason of his custody of the land and heir 
 of Henry de Beaumont, tenant in chief; and presents 
 John Tornour to the vicarage of Holy Trinity, York, 
 belonging to the alien Priory of Holy Trinity, York. 
 
 The exceedingly close union between Church and 
 State * may be illustrated by the curious order made on 
 May 7, 1339, to the Abbot of S. Mary in the city of 
 York, to pay to Thomas Ughtred, keeper of the town 
 of Perth, the 100 marks the king ordered the abbot 
 to pay him for the munition of the town, etc. 
 
 It may be noted that the Abbot of S. Mary was the 
 collector within the archbishopric of York of the triennial 
 tenth granted by the clergy. 
 
 A curious case arose in relation to the Church of 
 Wimbledon, known as the King v. Simon Islip, Arch- 
 bishop of Canterbury. 
 
 On the ground that John Sandale was a pluralist, 
 the church was supposed to be vacant, and the vacancy 
 was said to have arisen while the temporalities of the 
 archbishopric were in his Majesty's late father's hands. 
 Could the king present? John of Gaunt pleaded the 
 royal cause in the lay court, and the jury decided in the 
 king's favour. However, the royal plea was afterwards 
 withdrawn as feigned and untrue. So the ecclesiastical 
 
 * A similar order was made on August l6, 1321, to the Abbot of S. Mary, 
 York, collector of the tenths, etc., to pay 100 marks to the king's clerk 
 Robert de Barton, for certain works at the Castles of Carlisle and Coker- 
 mouth.
 
 158 THE CANON LAW 
 
 Court did not have to pronounce any definite 
 decision. 
 
 To come to more modern times. The disputed 
 cases on patronage are much less frequent after the 
 Reformation, yet some very curious cases arose from 
 time to time. 
 
 Take by way of example the legal opinions given 
 in regard to the questions which arose in 1 718 in regard 
 to the advowson of the Rectory of Little Bardfield in 
 Essex. 
 
 In that year Thomas Barnard died, and the manor 
 and advowson attached descended by heirship to the 
 Reverend Thomas Barnard, who as patron was for- 
 bidden by the Canon Law to present himself. He 
 therefore suffered the patronage to lapse, and was then 
 collated by the Bishop of London. 
 
 But a legal investigation was instituted on the question 
 whether the bishop could, if he had so desired, collate the 
 patron before sufficient time had passed for the lapse to 
 take place ; for, if not, and the bishop should die, or be 
 translated, the Crown or the archbishop might step in, and 
 the patron as well as the bishop would lose the next 
 presentation altogether. Dr. Andrews therefore main- 
 tained, looking to the patron's interest, that under all the 
 circumstances of the case the bishop could collate ; but 
 Dr. Henchman declared that this could not be done until 
 after the expiration of the six months prescribed by the 
 canon ; for otherwise the law of the Church would be 
 broken ; and this appears to be the better legal opinion, 
 though possibly working with some harshness to the 
 patron under special circumstances, such as those above 
 mentioned.
 
 PATRONAGE 159 
 
 It is, however, worthy of note that in this case the 
 canon was strictly obeyed, and the lapse suffered before 
 the collation. 
 
 Patronage is a wide subject, more particularly so 
 when we attempt to look into the large amount of case 
 law on this matter. In the cases, however, already 
 quoted there is sufficient evidence by which some wise 
 and national opinion can be formed as to the general 
 question of advowsons, and what may be the best form 
 of patronage. 
 
 In practice, popular election is not satisfactory, nor 
 entire control by the bishop, who is so much occupied 
 with other business. Upon the whole the varied 
 system prevalent in England works well, and is worthy 
 of support, being strictly based on the canons and 
 ancient laws of the land. 
 
 The author of a system of patronage approved by 
 all men would possess perfectly marvellous ability, and 
 be worthy of high position in Church and State.
 
 APPENDIX. 
 
 Thk Distribution of Ancient MSS. of the Canon 
 Law, especially in regard to the Decretum and 
 
 THE UECRETALIA. 
 
 The Library of the Vatican is naturally the special place where 
 the largest number of ancient MSS. of the Canon Law are to 
 be found, and by the courtesy of the distinguished scholar 
 Monsignor Ehrle,* D.C.L. Oxon, who at present holds the 
 important post of Librarian of the " Biblioteca Apostolica," an 
 inspection has been made of some of the more important of 
 these MSS. For the most part they are well preserved, and 
 now every care is taken that no damage shall accrue in any 
 way whatever to the unique collection contained within the 
 walls of the Vatican Palace. Once incorporated in this great 
 Library, the MS. rests safe and secure. Before it reaches this 
 magnificent haven it is liable to injury by sudden transfer of 
 ownership, long journeys about the civilised world, mutilation 
 by savants anxious to possess some particular page of its parch- 
 ment. Thus, for instance, the fourth century MS. of the Gospels 
 (B) is far better preserved than many later MSS. which are found 
 elsewhere. But the Vatican is by no means the only receptacle 
 
 * Dr. Ehrle recoived the Hon. Degree of D.C.L. at Oxford on the same day as 
 Cecil Rhodes. 
 
 21 '6«
 
 1 62 THE CANON LAW 
 
 for the ancient MSS. of the Canon Law. All over Europe some 
 such MSS. are found in the best libraries. More especially is 
 this the case in those countries which still owe obedience to the 
 Roman Church ; for amongst the northern nations MSS. of this 
 class and character were largely destroyed during the exciting 
 period of the Reformation of religion. This is the reason why 
 the Bodleian possesses but few MSS. of the Canon Law. There 
 is one large folio of Gratian, No. 290 (Old C. 2441), which com- 
 mences in the usual way, " Humanum genus," and these words 
 are included in the illuminated letter H on the first sheet of 
 parchment, there being altogether 236 sheets. There appears 
 to be no copy of Gregory's Decretals, but the Laudian MS. 
 527, beautifully bound, with the celebrated Archbishop's arms 
 stamped thereon, contains a section entitled "Juris Canonici 
 Particula," though the other six sections do not relate to Canon 
 Law. The whole MS. comprises 287 sheets of parchment, and 
 on sheet two is written " Liber Guil. Laud Archiep. Cant. & 
 Cancellar. Universit. Oxon. 1640": on the fly-leaf, "In hoc 
 MS. continentur Miscellanea varia." 
 
 In the Advocates' Library in Edinburgh there is preserved 
 a splendid thirteenth century MS. of the Decretum of Gratian, 
 with the gloss of Bartholomew of Brescia ; there is also one fine 
 thirteenth century MS. of the five Books of the Decretals of 
 Gregory IX., as well as a collection of Decretals — a folio on 
 vellum of the fourteenth century, presented by Sir G. Mackenzie, 
 Earl of Cromartie. 
 
 The Advocates' Library also possesses Apparatus Gencellini 
 de Cassa, super Constitutionibus Clementinis, a folio of 64 leaves, 
 and ejusdem super Constit. Sexti, and de Matrimoniis. This 
 MS. has fine illuminated initial letters. Tliere is also the 
 Compertorium D. Bartoli, a paper folio belonging to the 
 fourteenth or fifteenth century.
 
 APPENDIX 163 
 
 Details concerning the Distribution of the MSS. 
 OF THE Canon Law in the Principal Libraries 
 OF Holland, Belgium, Italy, France, and Spain, 
 which have been visited by the Author of 
 THIS Book. 
 
 The Libraries of Holland. 
 
 The University of Leiden possesses an ancient Library, 
 chiefly rich in classical MSS. But there is also the Codex 
 Gronovianus of the fifteenth century relating to Canon Law 
 and comprising the Liber Sext, with gloss. 
 
 There are also Regulze Canonicorum sub Ludovico Pio, 
 A.D. 816. This MS. is numbered 126, is written on 6"] sheets 
 of parchment, and belongs to the end of the tenth century. 
 
 Codex Vossianus Latinus (No. 66), on 86 sheets of parch- 
 ment, is entitled Legum summa in Latinum translata ab 
 magistro Ricardo Pisano. 
 
 The MS. numbered 636 consists of a Commentary on the 
 first part of the Decretum of a late date. 
 
 The Royal Library at the Hague is the finest modern 
 library in Holland, but is naturally not rich in ancient MSS. 
 This is also the case in regard to ecclesiastical records, * with 
 the other libraries of the land, owing to frequent wars and 
 religious changes in former years. 
 
 The Libraries of Belgium. 
 
 The Royal Library at Brussels is by far the most important 
 Library -f- in the kingdom. And the most interesting section 
 of this library consists of the early collection of MSS. formed 
 
 *In the Archiepiscopal Museum of Utrecht there is a curious series of money 
 coined by the Bishops, commencing with Bishop Bernalphus in 1027. 
 
 t At Antwerp there is a fourteenth century MS. Liber Miraculorum B. V. Maria? 
 with a Life of S. Hugh of Lincoln at the end. It came from the Chartreuse of 
 Herinnes, in Hainault.
 
 1 64 THE CANON LAW 
 
 by Philip the Good, Duke of Burgundy, though the MSS. 
 collections have also been enriched by many valuable modern 
 purchases. Many of the miniatures and illuminated letters are 
 very remarkable. This library possesses two fine MSS. of 
 the Decretum of Gratian, and five MSS. of the Decretals. 
 There is also an MS. of the Liber Sext, and of Execrabilis 
 Johannes XXII. Constitutio. 
 
 No. 5668 is a fine MS. of the Decretum, of the same type 
 as found elsewhere, with all the usual characteristic features. 
 No. 7451 is also a fine copy of the Decretum, belonging to the 
 fourteenth century, with the gloss of Bartholomew of Brescia, 
 containing numerous fine illuminated letters. It formerly 
 belonged to the monastery of Tourgot. 
 
 One of the five copies of the Decretals was bought at the 
 sale of Sir T. Phillips at Cheltenham. This fine MS. contains 
 334 sheets with gloss, and belongs to the fourteenth century. 
 It is No. 2530. 
 
 Another MS. of the Decretals with gloss also belongs to the 
 fourteenth century, and is No. 266. No. 1857 is a similar 
 copy to the last, but smaller and not so well written, and 
 probably slightly later in date. No. 4710 is a well written MS. 
 of the Decretals on 193 sheets of parchment, and came from 
 the Church of S. Mary de Villers de ville in Brabant. 
 
 No. 19,692 is a fourteenth century copy of the Decretals 
 which came from the Abbey of Orval in Luxemburg. 
 
 In the Royal Library there are also some other interesting 
 MSS. of Canon Law. By way of example we may mention MS. 
 No. 5564, the Liber Sext of Boniface Vlll., in 133 sheets. Then 
 there is an eleventh century MS. of Burchart of Worms, 
 beautifully written in quite small letters on 78 sheets of 
 parchment. 
 
 No. 2055 is a small MS. beautifuU}- written, containing the 
 Extravagants on 54 sheets of parchment, and dated the .'-ccond 
 year of the Pontificate of John XXII. There are no illuminated 
 letters, and no commentary or gloss, and this MS. was once 
 the property of the Chartreuse de Herinnes. No. 1440 is
 
 APPENDIX 165 
 
 the famous Execrabilis Johannes XXII. Constitutio, con- 
 sisting of 272 sheets, written on paper, and bought at Sir 
 T. Philhps' sale, and is entitled on the cover ConciHa de Senis, 
 scripta 1450. No. 16S3 contains the Clementine Constitutions, 
 on 98 sheets of paper, issued at the Council of Vienne. 
 
 No. 14,037 is another copy of the Extravagants dated 1438. 
 No. 5471 contains the Tituli Clementini in lOi sections, written 
 on 1 12 sheets of paper. There are two good illustrations. The 
 first shows the Pope giving the Book of the Clementines to a 
 Cardinal. The second shows the Cardinal handing on the 
 Book to three eager and earnest students. The text begins on 
 page 2, Johannes, episcopus, servos servorum dei, dilectis, etc., 
 and there is a gloss. 
 
 There are also a good many commentaries on the Canon 
 Law. We may mention the Panormia of Ivo, Hishop of 
 Chartres, the works of Guido, and other distinguished Canonists. 
 No. 10,138 is an interesting collection of miscellaneous Canons, 
 in part of the tenth century. The wise example of this famous 
 library is worthy of imitation in other countries of Europe, 
 for some excellent accessions have been made to the MSS. 
 department in recent years. 
 
 The Library of the University and City of Ghent also 
 contains some good MSS. of the Canon Law. No. 286 is a 
 thirteenth century folio cojiy of the Decretum on 386 sheets of 
 parchment, with 35 fine illuminated capital letters, and the gloss 
 of Bartholomew of Brescia, the friend of S. Dominic. On the 
 first sheet is written at the foot : — Ex Musaeo A. B. de 
 Requeleyne. There is another example of the Decretum on 
 353 sheets, in small letters, with a fine ancient binding, 
 belonging to the first half of the thirteenth century. The text 
 commences on sheet 15, and is preceded by a kind of 
 analytical table. It is followed by various extracts from papal 
 bulls, and other similar documents. This MS. was at one time 
 the property of Louis Van Cotthem, Provost of Tusschenbeke, 
 an ancient ecclesiastical establishment near Lede in the old 
 province of Alost ; and afterwards belonged to the convent of
 
 1 66 THE CANON LAW 
 
 Tronchiennes, before it reached its present destination in the 
 library of Ghent. Five other MSS. relating to the Canon Law 
 may also receive brief mention. This library contains the 
 Summa Raymundi ; the Summa Confessorum conipilata a fratre 
 Johanne Lectore, ordinis fratrum prredicariim ; Libellus a 
 magistro Guillelmo de IVIandagoto archidiacono in Vasconia ; 
 Ranfredi Beneventani Libelli ; and Instructio circa diversas 
 materias, an ancient manual of Canon Law, which was used by 
 the Bishop of Bruges. Tliere are no copies of the Decretals. 
 
 Yet it is not amongst the northern nations, but in the sunlit 
 lands south of the Alps and the Pyrennees that the finest 
 examples of MSS. of the Canon Law are to be found. Italy, 
 whence the Canon Law sprang, is richest in this respect, and 
 the authorities always show the greatest courtesy in exhibiting 
 their various treasures. 
 
 Perhaps, however, the notes on the Canon Law MSS. in 
 Spain may be deemed the most valuable, because so little is 
 known of the general resources of the Iberian peninsula. 
 
 In the various wars of past ages but scant respect 
 was shewn to ancient libraries, which were pillaged and 
 ransacked by foreign troops in the most ruthless way. Hence 
 it is that some MSS. have altogether disappeared, while others 
 have been much mutilated. 
 
 Moreover, a large number of the best libraries belong to 
 Cathedral Chapters, and are not always open to the passing 
 visitor. Yet there are stored away in out of the way parts of 
 Spain many early documents of very great antiquarian interest, 
 which will doubtless become better known to scholars in the 
 coming years. 
 
 The great Library at Madrid in its present form is a modern 
 institution, in the hands of able men, who are determined to 
 make it a real credit to their country. And indeed there is 
 every reason to look forward to an epoch of real progress not 
 only for the library, but for all the interesting collections in 
 Madrid, provided the country can maintain a settled Govern- 
 ment as has been the case of recent years.
 
 APPENDIX 167 
 
 The distiiiE^uished chief of the manuscript department of liic 
 Library of Madrid most readily gives every facility for the 
 examination of the rare treasures under his care. Through his 
 courtesy and assistance it became possible to photograph two 
 sheets * of the famous MS. of the Decretum of Gratian known as 
 C. 4. The first of these reproductions represents the Pope 
 enthroned, surrounded by archbishops, bishops, and monks, 
 eager to read and study the Decretum. The artistic style and 
 ecclesiastical costumes in this very beautiful miniature are well 
 worthy of careful and detailed examination. 
 
 The archbishops are carefully distinguished by their palls, 
 the priests and monks by their tonsures and habits, the Pope 
 by his appropriate vestments ; while the embroidery below His 
 Holiness' feet is both curious and fine, the central pattern failing 
 into the form of a cross. Above all, the vividness of the expres- 
 sion of the faces is quite remarkable. Note the archbishop and 
 bishop recounting the salient points as they are impressed on 
 their minds, on the right hand side of the picture. Just behind 
 stands a monk all attention. On the other side is a priest seated 
 reading aloud from the text of the Decretum, which rests upon 
 a bench, and explaining the difficult points of the text to a 
 comrade, who is evidently deeply interested. P'our monks are 
 also listening to the exposition of the Canon Law with profound 
 respect, while an archbishop hard by seems absorbed in con- 
 templation of His Holiness. By the doorway stands a man 
 who seems to disapprove ail the proceedings. Has he a 
 turban? Is he a Turk? The architectural design shown in 
 this miniature is peculiar, and the throne is not very beautiful, 
 and does not appear to be taken from a Roman model. Yet, 
 taking the composition as a whole, this miniature is a wonderful 
 effort of art, worthy to take high rank amongst mediaeval 
 illuminations which serve to illustrate valuable manuscripts. 
 
 The other illustration exhibits the Crucifixion. Here 
 again the workmanship is remarkable, and the expression of 
 
 * These photographs were very successfully taken by Messrs. Hauser and Menet, 
 photographers to the Royal Library.
 
 1 68 THE CANON LAW 
 
 the faces extraordinarily vivid and striking. Note the resigna- 
 tion, almost despairing, on the dying face of Christ, and the 
 angels waiting in calm silence. How different is the case of 
 the unrepentant thief, in the terrible death struggle, vainly 
 striving to get away from the devil, disguised as an imp, at 
 the top of the cross ! In the group below, upon the cold earth, 
 there is a marked contrast between the impassive faces of the 
 Roman soldiers and the sharp sorrow depicted on the counten- 
 ances of the women who had known the Saviour during His 
 earthly sojourn. At the foot of the cross S. John is kneeling 
 in an attitude expressive of the profoundest grief, or possibly 
 this sorrowing figure may be meant to represent the Virgin 
 Mary, while the other women are looking towards the group 
 of soldiers on the right hand side, who are casting lots for the 
 coat that was woven throughout without seam. Just behind 
 this group stands the centurion with his finger pointed to the 
 cross of Christ, and the words on his lips, " Truly this was the 
 Son of God." It is curious that the cross itself is made of a 
 rough-hewn tree, not sawn or planed. Near the entrance gate 
 on the left stands a bishop and a priest. They are interpreting 
 the blood and water flowing from the Saviour's side. Altogether 
 the artistic merit of this remarkable miniature is quite excep- 
 tional as well as new to the North of Europe. 
 
 MSS. relating to Canon Law in certain Spanish Libraries. 
 
 I. Madrid. 
 
 The Royal or National Library. 
 
 II. Seville. 
 
 The Columbus Library of the Chapter of Seville. 
 
 III. Toledo. 
 
 The Chapter Library. 
 
 IV. Leon. 
 
 The Chapter Library.
 
 
 cMg-^; 
 
 §1.1^ 
 
 saiSMIIilMIIIliillltl 
 
 ■ wr ■ ''"1 
 
 Sm^
 
 APPENDIX 169 
 
 V. Salamanca. 
 
 The University Library. 
 
 VI. OVIEDO. 
 
 The Chapter Library. 
 
 VII. Barcelona. 
 
 University Library. 
 
 Library of the Archives of the Kings of Aragon. 
 
 The National Library of Spain contains four fine MSS. of 
 Gratian. 
 
 MS. E. E. 3 is an early copy of Gratian, and contains one 
 illumination of the letter H on the first sheet of the MS., with 
 a picture of an ecclesiastic delivering the Decretum to a humble, 
 devout recipient. 
 
 There is the ordinary gloss, occupying about half the page. 
 
 The MS. consists of 360 sheets of parchment. There are 
 a few illuminated letters in the earlier part of the MS., but in 
 the latter part these spaces are left blank. This MS. belongs 
 to the fourteenth century. 
 
 MS. C. 390 is Distinctiones Gratiani, written on 98 folio 
 sheets of parchment. 
 
 MS. C. I. 87 is a magnificent large folio of Gratian in 406 
 sheets of parchment, issued under the authority of Gregory xin. 
 The text of Gratian begins on the latter part of sheet 17. 
 
 This MS. is bound in green and gold, and is veiy heavy. 
 
 MS. C. 4 is a magnificent folio in 323 sheets of parchment, 
 containing Bartholomeus Brixensis on the Decretum of Gratian. 
 On the second half of sheet 4 the text of Gratian commences in 
 the usual form, with a very elaborate gloss. There is a very fine 
 illumination at the head of the title-page. On one side the 
 Pope is giving the Decretum to a kneeling monk, and on the 
 other side the Emperor crowned, surrounded by bishops, is 
 presenting a sword to a trusty knight. 
 
 The next sheet has a beautiful illumination of the Magi 
 22
 
 I70 THE CANON LAW 
 
 offering their gifts to the infant Christ seated on the lap of 
 the Virgin Mary, with the angels of heaven looking down 
 from above. 
 
 The second book of the Decretum has for a heading a very 
 beautiful illumination of the Pope enthroned with bishops and 
 monks eager to read the Decretum. 
 
 On sheet 263 there is another very fine illumination, and 
 throughout the MS. a large number of smaller illuminations 
 of very great merit. 
 
 On sheet 298 there is a fine crucifixion. 
 
 MS. S. 272 is a small MS. of the Decretals on 444 sheets of 
 parchment, followed by the Decretals of Boniface in a different 
 hand. There is an elaborate gloss in very small handwriting. 
 
 MS. C. 5 is another copy of Gratian with very fine illumina- 
 tions (but not equal to those in C. 4) in a very perfect and 
 complete state. There are very fine half-page illuminations at 
 the usual places, and smaller illuminations elsewhere. This 
 MS. consists of 338 sheets of parchment.* 
 
 MS. C. 3 (MS. 115s) consists of 218 sheets of parchment, 
 and contains the Decretals of Gregory IX. in five books, with an 
 elaborate gloss in two or more handwritings. There is an 
 index written in a much later hand, giving the headings of the 
 various sections. 
 
 MS. R. 68 consists of extracts from the Decretals of 
 Gregory IX., and apparently once belonged to the Church of 
 Placencia. 
 
 MS. Dd. 47 contains the Bulls and Privileges relating to the 
 Church of Toledo, with a Bull of Confirmation of the Primacy 
 of Spain to Archbishop Rodrigo by Gregory IX. 
 
 MS. Dd. 41 consists of documents relating to the Founda- 
 tion of the Church of Toledo, and to the Archbishops thereof 
 
 MS. R. I II consists of 160 sheets written in double columns, 
 bound in an old binding with clasps, and gives a summary of 
 cases from the Decretum. 
 
 * This copy is generally exhibited among the select MSS. in glass cases in the 
 Nacional Library of Spain.
 
 APPENDIX 17 1 
 
 There are various MS. of Gregory IX. besides the text of 
 the Decretals : — 
 
 1. A Brief to the Spanish Bishops. 
 
 2. A Brief relating to the lawsuit between the Archbishops 
 
 of Toledo and Santiago relating to the Church of 
 Placentia. 
 
 3. A Brief delegating the Archbishop of Toledo and Bishop 
 
 of Placentia to attend, etc., the election of a Bishop 
 of Lisbon. 
 
 4. A Bull to Theobold I., King of Navarre, concerning the 
 
 excommunication of the Emperor Frederick. 
 
 5. A Bull confirming the Legate's decision in a controver.sy 
 
 about Episcopal Boundaries. 
 
 6. A Bull called la misina. 
 
 7. A Bull as to the Archbishopric of Toledo. 
 
 8. A Bull to the Cistercians. 
 
 9. A Bull to the Archbishop of Toledo in reference to 
 
 King Ferdinand III. 
 
 10. Casus breves Decretorum, edited by Raymond de Salia. 
 
 11. Copy of a process at law between the Archbishops of 
 
 Toledo and Tarragona in regard to the Church of 
 Valencia. 
 
 12. Briefs to Archbishop Rodrigo. 
 
 13. A Bull confirming the Primacy of Toledo. 
 
 The Columbus Library of the Chapter of Seville possesses 
 a copy of the Decretum Gratiani, printed at Rome in 1726. 
 
 This library also possesses a MS. of the Decretales P. 
 Gregorii IX. This MS. consists of 380 sheets of parchment. 
 Book III. begins on sheet 192. There are no large illuminated 
 capital letters at the commencement of the books, but small 
 illuminated letters to the paragraphs. 
 
 Garsia Marani, the scribe, completed the text, January 21, 
 1 381, and wrote at Avenione, i.e. Avignon. 
 
 This MS. is marked^e * 4. 3.
 
 172 THE CANON LAW 
 
 There is a blank sheet of parchment inserted between 
 Books III. and IV. 
 
 The Library of the Chapter of Toledo is rich in early MSS. 
 and contains few modern books. 
 
 There is a fine MS. of Burchart of Worms, entitled Concilia, 
 with date 1023, in good preservation. 
 
 A Canon of the Cathedral very kindly allowed me to visit 
 the manuscript room, though it was not possible to make a 
 very long stay. The copy of the Decretum mentioned in the 
 catalogue could not be found, but there is a copy of the 
 Decretals with the apparatus of Innocent IV. 
 
 The Cathedral Chapter of Leon possess no MSS. of Gratian 
 or the Decretals, but only printed copies, dated 1606 and 1624. 
 
 They do possess the sixth century palimpsest of the Lex 
 Romana Visigothicorum, over which is written an ecclesiastical 
 history, while part of the MS. is a seventh century Bible. There 
 are 185 sheets. They possess a ninth century MS. of Concilia 
 Ecclesiastica, as well as a Gothic Bible of the tenth century 
 and a musical Gothic MS. of the eleventh century with curious 
 illustrations. There are also a few other mediaeval MS., but 
 the whole library is small. There are also the wills of the 
 kings in the twelfth century in 43 sheets. 
 
 The Library of the University of Salamanca contains : — 
 
 MS. 2. I. 28, a "tabula" of the Decretals on 94 sheets of 
 parchment. The last words are, " Explicat et finit tabula super 
 decreta et super decretales." 
 
 MS. I. 3. 6 is entitled Summa super decretum. 
 
 The first sheet is mutilated, and the first capital letter cut 
 out, and the last sheets have disappeared. 132 sheets remain. 
 The last word is "voluntate" in the existing MS. 
 
 The Library of Santa Cruz at Valladolid possesses a 
 (i) fourteenth century MS. of Seneca in the dialect of Castille ; 
 (2) the Primus Liber Speculi doctrinis ; (3) the Collectio 
 Ordinis Militaris, an early printed book with illustrations of 
 ancient Monastic Orders; and (4) a rare Dutch book on 
 Butterflies.
 
 APPENDIX 173 
 
 The Library in the Institute of Gihon in Asturias possesses 
 the Collections of Jovellanos, amongst which are : — 
 
 1. Horae Virginis secundum usum Romanum A.D. 1492: a 
 
 very beautiful MS. 
 
 2. Speculum vitae, printed in Paris 1520. 
 
 3. A Book by the Bishop of Zamora, printed 1468. 
 
 4. Lactantius, printed in Venice 1484. 
 
 The Library of the University of Oviedo has : — 
 
 1. A fine Vulgate of the fourteenth century. 
 
 2. Periera's Book printed in 1554 at Medina del Campo, 
 
 by Will. Millis. 
 
 Medina is now a small country village, with no printing 
 press. 
 
 The Chapter Library has: — 
 
 1. Grant of Alfonso XII. A.D. 812. 
 
 2. Libro Gotico, twelfth century, with illustrations. 
 
 3. Libro Becerro on the Constitution of the Church, 
 
 dated 1385. 
 
 The University of Barcelona * possesses : — 
 
 1. One MSS. of the Decretum of Gratian, very much 
 
 damaged ; a large folio with gloss : many of the 
 capital painted letters are cut away, but some beautiful 
 borders remain. There are 210 sheets still existing, 
 and no cover. 
 
 2. A very early printed copy of the Decretals, with capital 
 
 letters beautifully painted, and borders to title-page. 
 The gloss is printed in smaller letters. The bronze 
 edging of the original binding is preserved. This 
 remarkable book was printed at Venice 1475, by 
 Nicholas Jenson, Sixtus IV. being Pope, and Peter 
 
 * In the Archives of the Kings of Aragon, preserved in Barcelona in a special 
 building dedicated to this purpose, there are said to be more than a million MSS., 
 many bulls of the Popes, and a few MSS. of Canon Law.
 
 174 THE CANON LAW 
 
 Mocenico, Doge. There are 304 sheets of parchment 
 on which the book is printed. It is a very beautiful 
 production. On the title-page there is an illuminated 
 portrait of the Pope, with a dove on his shoulder, the 
 triple crown, and vestments, and the Book of the 
 Decretals in his hand, bound in red leather. At the 
 foot of the page is a shield, with a bell in the centre. 
 
 3. MS. of Decretalia without any cover, in a moderately fair 
 
 state of preservation. The gloss, and the commentary 
 on the gloss, in some places is not very legible. It 
 consists of 256 sheets of parchment, and the five Books 
 appear to be complete. There are no illuminated 
 letters, but the first word of each book is painted in 
 red and blue, in letters of- uneven size. It belongs 
 to the end of the thirteenth century. 
 
 4. Summa super rubricos of Godfrey of Trano, a medium- 
 
 sized folio, well written in two columns, without 
 commentary, but with occasional notes. It consists 
 of 150 sheets, being incomplete at the end, and 
 belongs to the beginning of the fourteenth century. 
 
 There are various other MSS. commentares, etc., on 
 Gratian and Gregory IX., at Barcelona. 
 
 MSS. relating to Canon Laiv in some Italian Libraries. 
 
 I. Rome. 
 
 The Vatican. 
 
 The Royal or National Library. 
 
 II. Bologna. 
 
 The Spanish College. 
 The City Library. 
 The University Library. 
 III. Milan. 
 
 The Ambrosian Library. 
 The Brera or City Library.
 
 APPENDIX I7S 
 
 IV. Parma. 
 
 The Ducal or Town Library. 
 
 V. Pavia. 
 
 University Library. 
 
 The Canon Laiv in the Biblioteca Apostolica, or the Vatican 
 
 Library. 
 
 The third volume of the Inventory of Latin MSS. in the 
 Vatican Library^ in the first part or section, contains a list 
 of the strictly Vatican Collection of MSS. relating to Canon 
 Law. This list contains 138 MSS., numbered 13 19 to 1457. 
 The first relates to the Council of Ephesus, and the last to 
 the work of Johannes Andreas Novella Decretalium. Of 
 course such well-known names as Burchart of Worms 
 (Vuormacien) Anselm, Mincmar of Rheims, and Gratian 
 occur from time to time, as well as Isidore of Spain. 
 
 No. 1340 is the collection of the Canons of Isidore, and 
 inter alia contains some letters stated to have passed between 
 the Council of Carthage and Pope Innocent. 
 
 No. 1342 contains the Canons made by the Council of 
 Calcedon. 
 
 No. 1368 contains the Decretum of Gratian, executed on 
 310 large sheets of parchment, with a somewhat elaborate 
 frontispiece on the first sheet, representing a bishop or abbot 
 discoursing on Canon Law to his pupils, some of whom are 
 seated on the ground, and others on wooden benches. Below 
 on the same page are various other figures. 
 
 The text commences " Humanum genus duobus regitur," and 
 there is an elaborate gloss all round the border of each sheet. 
 There are many abbreviations, as " phibet " for " prohibetur." 
 Folio 217 has a fine miniature. 
 
 No. 1369 (slightly earlier in date than 1368). This is a 
 magnificent folio, consists of 374 sheets, with the text well 
 executed in the centre of each sheet of parchment, and the 
 gloss running all round at each side, as well as below and
 
 176 THE CANON LAW 
 
 above. The gloss is as long or longer than the text itself, 
 and not quite so clearly written. 
 
 Spaces are apparently left here and there for illuminated 
 capital letters which have not been filled in. 
 
 The text commences " Humanum genus," etc., and on the 
 first page the familiar questions are asked, What is jus naturale, 
 jus civile, lex, etc. Here the questions are in red, and the 
 answers in black. 
 
 This collection of MSS. of the Canon Law is only one 
 section of the whole of the MSS. on this subject in the 
 Vatican Library. 
 
 There is the Palatine Collection called Codiciim MSS. Lat. 
 Vatic. Palatines Bibliotlieccs Index 1678, sedente Innocentio 
 XL Laurentius Brancatus a Laurea, Librarian. 
 
 The following MSS. may be noted : — 
 
 1. Decretals of Gregory IX. 
 
 2. Decretum Gratiani cum glossa. 
 
 3. Decretum Gratiani. 
 
 There are titles of five other MSS. on the Decretum or 
 the Decretals. 
 
 There are also MSS. under the usual names of the chief 
 Commentators. 
 
 The Vatican Library also contains the MSS. of Christina, 
 Queen of Sweden, entitled Index Codicum MSS. Latinorum * 
 Regitim Svecorum. 
 
 The following MSS. are worthy of note : — 
 
 1. Gratiani Decretum cum glossa Cod. ex memb. in 
 
 fol. c. s. 296. 
 
 2. In Gratiani Decretum Glossae Cod. ex. memb. in fol. 
 
 c. s. 64. 
 
 * The Library of Christina, Queen of Sweden, came to the Holy See after her 
 death in Rome, far away from her native land.
 
 APPENDIX i;7 
 
 3. Gratiani Decreti ordo, versibus Exametris. 
 
 4. Gregorii Cardinalls S. Chrysogoni Policarpi Canonum 
 
 Collectio Libris octo. 
 
 5. Canonum Collectio, in duos Libros divisa, constans 
 
 Capitulis cxxxii. 
 
 Tlie Library of Cardinal Ottobon is in the Vatican, entitled Index 
 Ottoboniance Bibliothecce. 
 
 No. 1 19, Gratiani Decretum cum Glossis is noteworthy. 
 
 This is a magnificent large folio in the Ottobon Collection 
 of MSS., with an illustration on the first page of a professor of 
 law teaching his pupils, and a bishop or mitred abbot kneeling 
 in the foreground. 
 
 Similar pictures occur at the beginning of new Divisions of 
 the Decretum. There appear to be various small variations 
 from the received printed text of the Corpus Juris Canonici, 
 but none of any real importance. 
 
 Another Vatican Collection is Urbinatce Bibliothecce 
 Index MSS. 
 
 Decretum, sive Concordia discordantium Canonum, cum 
 Glossis Codex pergam. antiq. in fol. numerato 161, pag. i. 
 
 The Manuscript thus entitled is the finest in the Urbinatine 
 Index or Catalogue of MS. in the Vatican Library. 
 
 Prima Pars Decreti, Distinctio L, C. i gives a quotation 
 from Pope Gregory to Constantine, Bishop of Milan, about 
 restoring the lapsed. Sometimes clericus, sometimes sacerdos 
 is used. Secunda Pars Decreti Causa XXIII, Letter Q, 
 contains a vigorous miniature of a heretic given over to 
 destruction by apostolic mandate. Causa XXX. has a curious 
 illustration of a child in the font, about to be baptized, — no very 
 willing victim to this means of grace. 
 
 Pars III. has an illustration near the commencement of a 
 bishop standing before the altar, with another bishop and 
 23
 
 178 THE CANON LAW 
 
 monks standing behind. Letter D has a portrait of a bishop 
 within it. 
 
 The Royal or National Library of Rome. 
 
 The few MSS. have apparently largely come from monastic 
 libraries after the war of 1870, more especially from the 
 monasteries of — 
 
 Sessoriano. 
 
 S. Pantaleone. 
 
 M. Tarfensis. 
 
 S. Maria de Victore. 
 
 S. Gregorii. 
 
 S. Lorenzo in Lucina. 
 
 S. Andrea del Valle. 
 
 From the first-mentioned monastery there came the 
 valuable sixth century MS. of S. Eucherio, Divina Scientia 
 Lib. viii., and an MS. of Pliny, probably of the same century. 
 There are also four MSS. of the seventh century, and one of 
 the eleventh century. 
 
 MSS. preserved in tJie Libraries of ike City of Bologna. 
 
 I. The Spanish College was founded by Cardinal Albornoz 
 
 in 1366, a Spanish prelate sent to Italy by Innocent IV. 
 This College was restored in 1565, and was intended 
 to give noble Spaniards the opportunity of a liberal 
 education in the University of Bologna. 
 
 II. The Municipal Library. 
 
 III. The University Library. 
 
 Library of the Spanish College in Bologna. 
 
 Codex Mag. Memb. No. 281. — Decretum Gratiani — a fine MS. 
 of the fourteenth century with an elaborate gloss. 
 
 Codex Mag. Memb. No. 280. — Decretales Gregorii IX. — a
 
 APPENDIX 179 
 
 S. Raymundo compilatse. Clementinae cum notis et glos. 
 A fourteenth century MS. It consists of 264 sheets of 
 parchment. 
 
 Cod. Mag. Menib. No. 279. — Sextus Liber Decret. cum glos, 
 et apparatus Johannis Andre.x. Bulla dementis VI. on Papal 
 Elections. Given at Avignon, 1352, with other Bulls. This 
 fourteenth century MS. consists of 168 sheets of parchment. 
 
 Cod. Mag. Memb, No. 27S. — Liber Sextus Decret. Auctoritate 
 Boniface Vlll. with gloss. A fourteenth century MS., consisting 
 of 90 sheets of parchment, with illuminations to Gregory's 
 Preface, and each of the five Books. 
 
 Codex Mag. Cart. No. 277. — Clementinse Constitutiones. 
 Dated 25th June 1460. It consists of 50 sheets of parchment 
 very beautifully written, with an illumination of the Pope 
 wearing the triple crown in the first letter. 
 
 Codex Memb. in folio No. 276. — Extravagantes Joannis xxii. 
 
 Codex Memb. folio No. 275. — Provinciale omnium Ecclesi- 
 arum. MSS. of thirteenth century. Incipit, Isti sunt Episcopi 
 sub R. Pontifice qui non sunt in alterius Provincia constituti 
 Hostiensis Portuensis, etc. Then comes a list of the Archi- 
 episcopal Sees with their Suffragans, etc. etc. etc. 
 
 Codex Mag. Memb. No. 273.— Hieronymianum John. Andresr. 
 Dated 1346. 
 
 Codex Mag. Cart. No. 229. — Petrus Ancaranus super 
 Clementinas. Dated 1334. 
 
 Codex Mag. Memb. Nos. 228 atid 227.— Bartholomei 
 Brixiensis Commentaries on Canon Law belonging to thirteenth 
 century. 
 
 Cod. Mag. Memb. No. 226.— Guilielmi Durand (speculator 
 dictus) Repertorium Juris. 
 
 Cod. Mag. Memb. No. 225. — Abbas Siculus sive Panormianus 
 (Nicolas Tudiseus) super Decret. 
 
 Cod. Mag. Memb. No. 222. — Archidiaconus Guido de Baiisio 
 super VII. Decret. Fifteenth century MS. 
 
 Cod. Mag. Memb. No. 220.— Innocent IV. Apparatus ad sing, 
 cap. 5 Libror. Decretalium. Fifteenth century MS.
 
 i8o THE CANON LAW 
 
 Cod. Mag. Memb. No. 219. — Bernardus Compostellanus 
 super Decretal. MS. of thirteenth century. 
 
 Besides these above mentioned the Spanish College has some 
 fifty other MSS. relating to Canon Law. 
 
 The Municipal Libraiy of Bologna, 
 
 (Notes on twelve MS., relating chiefly to Canon Law, in this Library.) 
 
 1. Dominicus Venetus, Episcopus Turcellanus is MS. A. 2. 
 
 17, and is entitled De Potestate Papae. This MS. 
 belongs to the fifteenth century, having been written 
 A.D. 147s, when Clement VL was Pope. It consists of 
 260 sheets of paper. 
 
 2. Compendium Decretalium, and from sheet 168 Statuta 
 
 Generalia is MS. A. 5. 11, and belongs to the sixteenth 
 century. It is a very small MS., and commences with 
 a Brief of Leo X., entitled Apostolicum. 
 
 3. Raymondi Summa de Paenitentia is MS. A. 2. 11, and 
 
 belongs to the fifteenth century. 
 
 4. Passageri Rolandinus Bonon. de Testamentis is MS. 
 
 A. 2. 13, and belongs to the fifteenth century. It 
 consists of 48 sheets of paper, and deals with Wills, 
 etc. 
 
 5. Legnani super IL Lib. Decretalium Comment, is MS. 
 
 A. 2. 9, and belongs to the fourteenth century. 
 
 6. Regula de li Frati e Sorelle de psenitentia is MS. A. 5. 5. 
 
 7. Notitia Summon Pontific. et Conciliorum is MS. B. i. 17, 
 
 of the sixteenth century. 
 
 8. Decisiones Sac. Congregat. Cardinalium Sacri Concilii 
 
 Tridentini Interpretum is MS. B. 4. i, and belongs to 
 the seventeenth century. 
 9 Privilegia et Immunitates quae a diversis Summ. Pontif. 
 ordini sunt is the title of MS. B. 4. 8, and belongs to 
 the fourteenth century. 
 10. Margarita, excerpta ex Decreto et Decretalibus is MS. 
 
 B. 4. 21, and belongs to the fourteenth century. The
 
 APPENDIX i8l 
 
 contents of this MS. are arrano^ed alphabetically. It 
 came from San Domenico, from whence, says the title- 
 page, it is not to be taken under pain of excommuni- 
 cation, by order of Urban VIII. and Innocent XII. 
 II. Summa Pisanella is MS. B. 4. 10, and belongs to the 
 fourteenth century. 
 
 There is also an MS. which consists of 322 sheets of paper, 
 and the date 6 Oct. 1499 occurs on sheet 2. It relates to 
 Canon Law. On sheet 140 Antonius de Butrio is mentioned, 
 and also elsewhere. On sheet 146 there is a Rescript of 
 Innocent VIII., dated 1497. On sheet 153 the heading occurs : 
 Incipit Concordia Discordantium Canonum. On the last sheet: 
 Questo Libro a Di fra Theodoro da Prato. 
 
 MSS. in the University Library of Bologna. 
 
 The University Library of Bologna contains various MSS. 
 relating to Civil and Canon Law. 
 
 There are two MS. of Burchart : — Nos. 2239, 2599: 
 
 I. De Jure Canonico, No. 2239. The first of these MSS. is 
 a large folio in good condition, consisting of 327 sheets 
 of parchment, and came from the Library of the 
 Monastery of S. Salvator in the city of Bologna. 
 (In the ancient catalogue of that monastery it was 
 numbered 461.) It begins " Burchardus solo nomine 
 VVormaciensis episcopus Bruchoni fideli," etc. It is 
 divided into 20 Books, of which the headings are 
 given, and the introductory matter ends on sheet 3 
 with the words " Bene valeas, et in sacris orationibus 
 tuis mei peccatoris memoriam deprecor ut habeas." 
 Then follows the capitula of the first Book. The 
 text proper commences on sheet 7 of the MS. with 
 an ornamental letter. " In Novo Testamento post 
 Christum dominum nostrum a petro sacerdotalis cepit
 
 l82 THE CANON LAW 
 
 ordo quia primo pontificatus in ecclesia Christi datus 
 est, dicente domino ad eum, tu es inquidem Petrus 
 et super banc petram edificabo ecclesiam meam," etc. 
 Tbus at the very threshold of the Book the main 
 argument may be said to be clearly stated. On 
 sheet 324 we have the date A.D. 1023. On sheet 
 326 we find the Nicene Creed. 
 
 2. The other MS. of Burchart is No. 2599, and is a small 
 
 volume of 128 sheets of parchment bound in wooden 
 boards, closely written, and not so clear and easy 
 to read as No. 2239, nor so ancient. It also belonged 
 to the Monastery of S. Salvator, and was No. 470 in 
 the ancient catalogue. It is probably of the thirteenth 
 century. The original clasps remain. As Book XII. 
 begins on sheet 118, the M.S. is incomplete. Both 
 these MSS. have the stamp " Bibliotheque Nationale 
 R.F." They were taken to Paris, and sent back again 
 after the wars of Napoleon. 
 
 3. MS. No. 2256 belongs to the fifteenth century, and is a 
 
 folio consisting of 157 sheets of paper neatly written. 
 It is entitled Antonius de Butrio, Opuscula Varia, 
 Tractatus Juris Canonici. 
 
 4. Summa Pisanella : MS. No. 2262 is a folio of 225 sheets 
 
 of parchment belonging to the fifteenth century. The 
 first page contains the Prologue, with a portrait of the 
 Pope in the letter O. The second page has the portrait 
 of an abbot in the letter A ; but there is no portrait 
 of an abbess at the section commencing Abbatissa. 
 On sheet 221 commences the table of contents 
 alphabetically arranged, and at the foot of sheet 224, 
 " Pelegrinus Petri de Colonia scripsit." 
 
 5. Summa Pisanella: MS. No. 2264 is another copy of the 
 
 same work, and forms a folio of 284 sheets of parch- 
 ment, closely written. The first page contains a por- 
 trait of a monk in the letter Q. The MS. is bound in 
 wooden boards, and probably belongs to the fifteenth
 
 APPENDIX 183 
 
 century. These two last MSS. belonged to S. Salvator, 
 and were taken to Paris and returned. 
 
 6. Sententia Lata Gregorii XIII. contra Bar. Caranza, Arciep. 
 
 Toletanum is MS. 2362, and is a small folio of 30 
 sheets of paper. 
 
 7. Johannes Salisberiensis Policraticus sive de nugis 
 
 curialium is the title of MS. 2454, and consists of 
 264 small sheets of parchment clearly written, and in 
 beautiful condition. It is divided into eight books, the 
 last of which begins on sheet 197, and probably 
 belongs to the thirteenth century. 
 
 8. Another copy of the same work consists of 160 sheets 
 
 of parchment of medium size (small quarto) with 
 which is also bound 40 sheets of paper, headed Tabula 
 mei Johannis, etc. etc. This MS. appears to be 
 rather later in date than No. 2454. 
 
 9. MS. 2585, belonging to the early part of the fourteenth 
 
 century, consists of 200 small sheets of parchment 
 beautifully written, and was given to the Monastic 
 Library by John, Prior of S. Salvator, Jan. 23, 1599. 
 146 sheets contain works of Cicero. 54 sheets contain 
 the work Francisci Barbari Veneti patricii et equestris 
 ordinis De re uxoria. He treats of the duties and 
 privileges of wives. This book is entered in the 
 Catalogue of the University Library as relating to 
 Canon Law. 
 
 The following four MSS. relate to the Civil Law: — 
 
 10. Orlandini sive Rolandini Passagerii Summa is MS. 
 
 2404, and consists of 82 sheets of parchment and 
 4 sheets of paper, making 86 in all. The author was 
 a learned lawyer of Bologna in the latter part of the 
 Middle Ages. This MS. belongs to the fifteenth 
 century, and is a commentary on the Civil Law of 
 Rome. 
 
 11. Ventura — Opuscuia Legalia is the title of MS. 2484, and
 
 1 84 THE CANON LAW 
 
 consists of a variety of Tracts written on paper by 
 Francesco Ventura, in explanation of certain difficult 
 points of Law. 
 
 There are three principal divisions — 
 I. De Substitutione Vulgari. 
 IL De Substitutione Compendiosa. 
 III. De Generalibus circa Fideicommissa. 
 It is not early in date. 
 
 12. Institutiones Justiniani cum glossis is MS. 2226, a large 
 
 folio on 58 sheets of parchment, belonging to the 
 fourteenth century. The gloss is very elaborate. 
 
 13. MS. 2606 consists of two parts, the first consists of 
 
 47 sheets of paper containing a brief commentary on 
 the Laws of Justinian, and the second consists of 
 25 sheets of paper with notes on Rhetoric. It is 
 apparently late in date, and of little value. 
 
 Besides these manuscripts above mentioned, there are two 
 early printed copies of the Decretalia which deserve particular 
 mention. The first was printed at Paris in 1520 by James 
 Ferrebone on 532 sheets of paper, with red capital letters, and 
 elaborate gloss. This curious volume has a good frontispiece — 
 Gregory IX. handing the Decretals to a student. 
 
 The second was printed in Venice in 1591, and has a 
 curious frontispiece — Gregory xiii. in prayer before the crucifix. 
 The pages are numbered in the usual way, and there is a table 
 of contents at the commencement. At the beginning of the 
 text there is a picture of a student receiving this book from the 
 Pope, and also pictures of the trees of consanguinity and 
 affinity, with fairly long explanations thereof. The five books 
 of Gregory with gloss fill 1388 closely printed pages. 
 
 Milafi. 
 
 The Ambrosian Library of Milan contains above twenty 
 MSS. of early canons, one of these being the Apostolic Canons
 
 APPENDIX 185 
 
 in Syriac characters ; one MS. of Burchart of Worms ; and a 
 few MSS. of the Decretum of Gratian, and the Decretah'a. 
 
 1. MS. 73 Sup. entitled Gratianus seu Decretum Cod. Mem., 
 
 consists of 116 sheets of parchment carefully written 
 on both sides, without illuminations, and given to 
 the Library in 1607 by Mclchior Casanova. It is 
 probably of the thirteenth century. 
 
 2. Decretum cum Glossis E. 44 Inf. is a iine MS. of Gratian 
 
 on 322 sheets of parchment with illuminated capital 
 letters, though the illustrated frontispiece and various 
 letters are now cut away. The MS. begins in the 
 usual way, " Humanum," etc., in a curious device, and 
 belongs to the fourteenth century. Here and there we 
 find illustrated capital letters in the gloss as well as 
 the text. The MS. is bound between wooden boards 
 coated with leather much decayed. In very small 
 letters there are sometimes comments on the gloss 
 itself 
 
 3. MS. E. 144 Sup. is entitled Burcardi Wormaciensis 
 
 Decretales Antiquorum Conciliorum, and was bought 
 for the Ambrosian Library in 1601, and is of the 
 eleventh century, consisting of twenty Books, not all 
 written by the same hand, inscribed on both sides on 
 214 sheets of parchment. This MS. has been a good 
 deal damaged by damp, especially the earlier sheets. 
 
 On sheet 2 the headings or capitula of Book i. begin, and 
 deal first with the authority of the Apostolic See, Patriarchs, 
 Archbishops, etc., and extend to sheet 32. 
 
 Book II. deals with the condition and status of the 
 clergy. 
 
 Book III. deals with the consecration of churches, tithes, 
 and oblations, in fact, as is stated on sheet 52, " Quid sit 
 ecclesia." 
 
 Book IV. deals with baptism. 
 
 Book V. deals with " sacramento corporis et sanguinis 
 24
 
 I 86 THE CANON LAW 
 
 domini." We find in red letters on sheet 86, " Ut in sacrificio 
 panis et vinum cum aqua mixtum offeratur." 
 
 Section 17 commands the laity to receive the sacrament 
 thrice a year. 
 
 On sheet 88 there is a prayer for use at the Holy 
 Communion, entitled " Oratio simplex eulogii." 
 
 Domine Sancte et pater omnipotens benedicere digneris 
 hunc panem tua sancta et spirituali benedictione ut sit omnibus 
 salus . . . extra omnos morbos et universas inimicas insidias 
 tutum per dominum nostrum Jesum Christum, filium tuum, 
 panem vita;, qui de ccelo dcscendit, et dat vitam et salulem 
 mundo, et tecum vivit et regnat per omnia. 
 
 Book VI. deals with homicide, etc. 
 
 Book VII. deals with relationship and marriage, and on 
 sheet 100 gives a table of relationship. 
 
 Book VIII. deals with the celibacy of priests and nuns, the 
 tonsure, etc. 
 
 Book IX. considers the position of virgins and widows. 
 Section 59 states, " Quod non conveniat Christianos cum 
 hereticis nuptialia jura contrahere." 
 
 Book X. deals with exorcism and delusions of the devil. 
 Section 45 explains the nature of devils. 
 
 Book XI. deals with excommunication. 
 
 Book XIII. deals with the sacred seasons of the year. 
 
 Book XIX. commences on sheet 170, and deals with penance 
 under various capitula. The general plan is to give a list of 
 offences, and then note against them the appropriate penance. 
 
 4. Capitularia antiqua seu excerpta Sacris Canonibus is the 
 title of MS. A. 46 Inf. It formerly belonged to the 
 Monastery of S. Dionysius of the Benedictine Order, 
 and passed into the Ambrosian Library in 1603, 
 when the following title was inserted on a separate 
 sheet : — " Excerpta ex sacris Canonibus Capitularibus 
 et Patribus. Codex antiqui characteris anno 700.
 
 APPENDIX 187 
 
 The MS. is apparently of the tenth century. The contents 
 of the MS., which consists of 159 sheets of parchment, may 
 thus be described : — 
 
 I. Capitula from S. Augustine's book Enchiridion. 
 II. Capitula from the writings of the Catholic fathers. 
 
 III. Capitula of Charlemagne, "the illustrious Emperor." 
 
 IV. Excerpts from the Laws of Theodosius. 
 V. First Book of Capitula. 
 
 VI. Second Book of Capitula. 
 
 On sheet 72 Pope Anacletus is quoted. 
 
 On sheet 80 there is a quotation from the 20th Capitula of 
 the Decreta of Pope Lucius. 
 
 On sheet 86 commence the extracts from S. Augustine's 
 Enchiridion, consisting of 133 sections. 
 
 On sheet 107 the excerpts from the writings of the Fathers 
 begin. 
 
 On sheet 116 S. Paul is quoted : — Infelix ego homo quis me 
 liberabit de corpore mortis hujus. 
 
 Sheets 131 to 151 contain extracts from the Capitularies of 
 Charlemagne. 
 
 On sheet 143 Britain is divided into 5 provinces. 
 
 On sheet 144 Constantinopolitanus Episcopus habeat honoris 
 primatum post Romanum Epm. propterea urbs ipsa sit junior 
 Roma;. 
 
 On sheet 149, Ut nullus Presbyter missas celebret, nisi in 
 sacratis ab episcopo locis. 
 
 Sheets 152 to 156 contain extracts from the Laws of 
 Theodosius. 
 
 The second half of sheet 156 is entitled Incipit Discretio 
 Childeberti Regis Francorum viri Illustri. 
 
 5. MS. A. 87 Inf is entitled Isidori Mercatoris Decretalium 
 Epistolarum Conciliorum Collectio, and consists of 222 
 sheets of parchment closely written. It commences 
 with the " Preface of Saint Isidore," and the collection 
 of Canons attributed to him.
 
 1 88 THE CANON LAW 
 
 Then comes a letter of Aurelius, Archbishop of Carthage, and 
 the rescript of Pope Damasus addressed to the said Archbishop : 
 — " Reverendissimo fratri et co-episcopo Aurelio Damasus." 
 
 Then follows the " ordo de celebrando concilio." 
 
 And then 78 of the Apostolic Canons, No. 44 to 50 being 
 taken from Greek Councils, 51 to 60 from French, and 61 to 78 
 from Spanish Councils. Then follow 50 more Canons. 
 
 Then comes the letter of Clement to James, brother of the 
 Lord. 
 
 On sheet 13 begins the general Epistle of Clement, Bishop 
 of Rome. 
 
 On sheet 16 another Epistle of Clement commences, and on 
 sheet 18 another; and on a later part of this sheet, " Epistola 
 Anacleti Papse de oppressione et laceratione Christianorum." 
 
 Then follows Anacletus on the ordination of bishops. 
 
 On sheet 23 we learn "quod ecclesia Romana est cardo et 
 caput omnium ecclesiarum." The use of '' cardo " is noteworthy. 
 
 On sheet 25 Decreta begin on the ordination of deacons ; and 
 letters attributed to the Popes are quoted. 
 
 On sheet 81 the Synod or Council of Nicaea is quoted, and 
 on sheet 82 the Constitutions of the Emperor Constantine, 
 followed by the Canons of Nicaea. 
 
 Sheet Sj gives Capitula of twenty Canons, followed by the 
 Nicene Creed. 
 
 On sheet 89, " Incipit sinodus anchiritani." 
 
 On sheet 91, " Incipit concilii Neocesariensis." Other decreta 
 of Councils follow — to that of Carthage. 
 
 Sheet 125 gives rescripts of Cyril, Bishop of Alexandria, to 
 the African Council, and quotations from the Canons of Nicsea. 
 
 Sheet 127 gives a letter of the African Council to Pope 
 Celestus, and the African Canons follow ; and then the 
 Canons of Aries and Valentia and other Councils of minor 
 importance. 
 
 Sheets 152 to 206 give in thirteen sections the Canons of 
 the Council of Toledo. 
 
 Then come Canones Bracarenses, Lucenses, and Spalenses.
 
 APPENDIX 189 
 
 6. Canones Conciliorum (Grece) Cod. M. 63 Sup. is an 
 early collection of Canons in Greek cursive characters, con- 
 sisting of 293 sheets, in some places much damaged and 
 difficult to read. 
 
 On sheet 45 there is mention of the Emperor Leo — Afojv 
 I3(urt\ivs. 
 
 7. Gratianus, seu Leges constitut.ne et observatae in correctione 
 
 decrcti Gratiani is MS. I. 230 Inf H. 12. 
 
 This MS. consists of 3 sheets of paper, bound together with 
 17 other tracts, and is signed by various Doctors and seven 
 Cardinals, who have drawn up 14 heads for the correction or 
 further elucidation of the text of Gratian, Cardinal Alciatus 
 taking the lead. The first heading insists on the importance of 
 distinguishing between the words of Gratian and the quotations 
 from the writings of the Fathers of the Church. 
 
 The sixth heading states that the more obscure passages in 
 Gratian require further annotation, especially those which have 
 seemed capable of an interpretation contrary to the Catholic 
 faith. 
 
 The twelfth heading runs, " Ouoties Gratianus ex auctoribus 
 sacris sensum potius expressit, quam verba ipsa, si adhibita 
 diligenti investigatione, et cum in perquirendo loco proprio alius 
 non occurrat, annotetur in margine, Gratianum non verba 
 expresisse." 
 
 The document belongs to the latter part of the sixteenth 
 century. Tract XI, of 2 sheets, gives the statutes of Innocent III. 
 and Honorius III. relating to the Church of Constantinople. 
 
 8. Cod. Memb. S. XIV. B. 43 Inf. — Gregorii IX. Decretales 
 
 cum Glossis, scripts ab Alberto filio Bartholomei Gisii 
 de Argellate, etc. Vide ad finem libri v., et in folio 
 ultimo lib. i. 
 
 This Albert was a native of Bologna and attached to the 
 Chapel of S. Christopher. Brief Decretals of Innocent IV. and
 
 190 THE CANON LAW 
 
 Gregory X. are appended, covering 15 sheets of parchment, 
 with elaborate glosses. 
 
 This MS. consists of 284 sheets of parchment, making a 
 large and weighty folio, and the gloss is very full and elaborate. 
 The Decretals of Gregory ix. commence with a short preface 
 above the first letter, in which there is an illumination of Gregory 
 giving the Decretals to a monk or priest in the presence of two 
 cardinals. 
 
 The first title begins, " Innocent III. in concilio generali. De 
 summa Trinitate et fide catholica." Then follows an illumination 
 of the Holy Ghost as a dove descending from heaven on the 
 heads of the Bishops in Council. 
 
 The first book of the Decretals covers 72 sheets of 
 parchment, and Albert is given as the name of the scribe 
 at the bottom of the sheet. 
 
 The second book is headed with an illumination of the 
 Pope consecrating a bishop, and commences with a quotation 
 from an African Council, and extends to the end of sheet 
 136, on which a space is left immediately above the words 
 " Explicit liber secundus." 
 
 Book III. commences with an illumination of a priest in the 
 act of consecrating the host. 
 
 Sheet 158 quotes Innocent III. on De feudis. 
 
 Sheet 182 gives De religiosis domibus, ut episcopo possint 
 subjecta;, followed on sheet 184 by De Capellis Monachorum. 
 
 Book IV. commences on sheet 200, and extends to the end 
 of sheet 221, when the scribe writes at the foot, "Deo gratias. 
 Amen." The first title has an appropriate illumination. 
 
 Book V. covers sheets 222 to 267, and commences with an 
 illumination of the Pope announcing the law. At the end Albert 
 gives thanks for the completion of the work. 
 
 The Decretals of Innocent I v. occupy 11 J sheets of parch- 
 ment. 
 
 There is an illumination of Innocent IV. giving the Decretals 
 to a cardinal and two other ecclesiastics. 
 
 Title 2 is De Electione, and there are titles on appeals, the
 
 APPENDIX 
 
 191 
 
 goods of the church, procurators, excommunication, and the 
 meaning of words. 
 
 The Decretal of Gregory X.* occupies one side of one 
 sheet of parchment, and after the usual salutation has one title, 
 De summa Trinitate et fide Catholica. There is a long gloss. 
 
 9. MS. S. 33. Sup. consists of Canons, written by direction of 
 Agilulphus, Abbot of S. Columba, 893-900, to whom 
 Charles HI. confirmed the grant of the county of 
 Bobio. 
 
 S. Columbanus, the first Abbot, died in November 615, and 
 is called " Fundator Bobiensis, prope Placentiam." This MS., 
 therefore, belongs to the latter part of the ninth century, and is 
 in beautiful condition, well preserved, and each letter clearly 
 and distinctly formed. It became the property of the Ambrosian 
 Library in 1606. It consists of 323 sheets of parchment. The 
 contents may be thus summarised : — 
 
 1. Calendarium Metricum. 
 
 2. Ordo celebrandi Concilii. 
 
 3. Beatorum Apostolorum Constitutiones. 
 
 4. Niceni Concilii Canones xx. 
 
 5. Anegrani Canones xxiv. 
 
 6. Neocoesariensis Can. xiv. 
 
 7. Sardicensis Can. xxi. 
 
 8. Gangrensis Can. xx. 
 
 9. Antiocheni Can. xxv. 
 
 10. Laodiceni Can. lviii. 
 
 11. Constantinopolitani Can. vi. 
 
 12. Concil. Ejihes, viii. Can. cum. xii. Cap. B. Cyrilli. 
 
 13. Chalcedonensis Canones xxvii. 
 
 14. Constantinopol. sub. Justiniano Can. xiv. 
 
 15. Conciliorum Diversorum in Africa, cxxxviii. 
 
 16. Symbolum Concil. Chalcedonensis. 
 
 17. Cresconii ad Liberium Pontific. de Concordia Canonum. 
 
 * Gregory x. defines tlie Catholic foilh in regard to tlie Procession of tlie Holy 
 Ghost from the Father and the Son, " non duobus principiis, sed ex uno, non duabus 
 inspiratoribus sed unica."
 
 192 THE CANON LAW 
 
 1 8. S. Hieronymi Epistola ad Damasum. 
 
 19. Rescriptum Pamasi. 
 
 20. Dionysii Collectio Decretalium. In which are quoted Popes 
 
 Sirius, Innocent, Zosimus, Boniface, Celcsliue, Leo, Gelasius, 
 Anastasius, Simmachus, and Gregory the Great, with 10 
 capitula given to Augustine, first Bishop of the English ; 
 as well as Hilary, Simplicius, Boniface, Felix, Gregory, 
 Eugenius, and Zachary. 
 
 10. MS. Extravagantes Cod. Chart., sjec. xv., is marked 
 
 T. 83 Sup., and consists of 245 sheets of paper, with 
 blank sheets at both ends. 
 
 It was bought for the Ambrosian Library in 1822.* On 
 sheet 156 begins a tract on buying and selling by Henry of 
 Hassia, D.D. 
 
 Sheet 200 begins the Prologue, and sheet 205 the tract of 
 Henry de Oyta, on contracts. 
 
 Sheet 258 commences another tract on buying and selling. 
 
 In the numbering of the sheets in this MSS. the first 24 
 blank sheets are included. 
 
 11. MS. F. 105 is a fourteenth century MS., consisting of 
 
 106 sheets of parchment, bound in boards, containing 
 a variety of tracts, most of which relate to Canon 
 Law. No. I is a Calendar with the Festivals of the 
 Saints. No. 2 gives Isidore on the divisions of Law. 
 
 This MS. also contains the Canons of Carthage, of Toledo, 
 etc., and quotations from the Fathers. 
 
 Sheet 72 contains a curious map of the world. 
 
 The Brera Library of Milan contains Tabula sive Summarium 
 in Decretum Gratiani. 
 
 This short MS. of the fourteenth century consists of 23 
 sheets of paper, bound together with various other short MSS., 
 entitled Miscellania Varia. There are 37 sections, divisions, or 
 causae. 
 
 * The Ambrosian Library contains at least three MSS. relating to the Council 
 of Trent.
 
 APrENDIX 193 
 
 Parma. 
 
 The University Library, partly founded by the Dukes of 
 the House of Farnese, and housed in their old palace, contains a 
 very beautiful MS. (No. 95) entitled Decretalia Johannis XXII., 
 and consists of 68 sheets of parchment of large folio size. It 
 is clearly written, in excellent condition, and belongs to the 
 fifteenth century. 
 
 The first sheet has a very fine illumination of the Pope 
 surrounded by cardinals and princes, with the motto, " Cedant 
 arma togae," and underneath a cardinal giving the decretals to 
 two monks. The gloss is very elaborate, often covering more 
 than half the page. There are decretal letters of various Popes, 
 as Clement and Boniface, as well as John XXII. 
 
 The last two sheets contain Execrabilis without any gloss. 
 Francesco Sforza is mentioned on sheet 66. 
 
 Explicit apparatus clarissimi doctoris dmi Jo. Andres super 
 textu dementis V. die v. Decembris 1463, quern scribi ego 
 augustinus de Adalmariis pro dmo Eleutherio de Rusconibus 
 juris utriusque scolare peritissimo et in civitate Papien Pii 
 Pape II. et Illusmi Principis dffii Francisci Sforza Vicecomitis 
 ducis Mediolani. 
 
 On the top of the first page is a cherub, beautifully painted, 
 blowing a trumpet, standing under a canopy, surmounted by a 
 flag. On the right hand side, where the gloss begins, a man's 
 head appears in the first letter. The coat of arms may belong 
 to the Bishopric of Reggio — a lion on a shield with four cross 
 bands below. 
 
 There is also in the Library of Parma a commentary on the 
 Decretals of Gregory ix., not very well written, not very old, 
 and not all in the same handwriting. There are over 500 
 sheets altogether. 
 
 Pavia. 
 
 The University Library possesses a small fourteenth century 
 copy of the Decretals, written on paper, on 389 sheets, with two 
 columns on each page. The title is in red letters, and many of 
 the capital letters are not filled in with colour. 
 25
 
 194 THE CANON LAW 
 
 Turin. 
 
 The MSS. in the University Library were very seriously 
 damaged by fire in 1904. 
 
 France. 
 
 (MSS. relating to the Canon Law in certain French Libraries,* i.e. Paris, 
 Rouen, Chartres, Amiens, and other smaller towns.) 
 
 The National Library of France — the largest library in the 
 world — possesses various MSS. of the Canon Law. 
 
 There are twelve MSS. of Gratian, two of which have the 
 gloss of Bartholomew of Brescia ; and nineteen other MSS. of 
 Abbreviations, Commentaries, etc.; while three more MSS. 
 have been added since 1875, two of which have the apparatus 
 of Bartholomew of Brescia. 
 
 There are also, in this library, ten MSS. of the Decretals 
 of Gregory IX., and eight MSS. of Abbreviations and Commen- 
 taries, besides two MSS. of the Constitutions of Gregory IX. 
 
 Since 1875 there has also been added a MS. of the Decretals 
 in the French language, and a MS. entitled Casus Summarii 
 Decretalium, as well as six MSS. of Commentaries on the 
 Decretals. 
 
 There are besides a large number of MSS. relating to the 
 Canon Law; thus MSS. numbered 9628-9642 all relate to this 
 subject, besides other MSS. 
 
 There are MSS. of Irish Canons, Canons dedicated to 
 Anselm, Canons of the Visigoths, and of Isidore. There are 
 four MSS. of Burchart— I of Canons, 3 of Decreta. 
 
 The Library of Evreux has one thirteenth century MS. of 
 Gratiam on 275 sheets, which came from the Abbey of Lyre. 
 
 Rouen. 
 
 The City of Rouen is rich in MSS. of the Canon Law. 
 There are 3 copies of Isidorus Mercator, one of the eleventh, 
 two of the twelfth century. 
 
 One MS. of collectio Canonum et excerptorum S.S. 
 
 * The Libraries of France are so well catalogued that there is Utile difficulty 
 in ascertaining the value and nature of the MSS. collections.
 
 APPENDIX 195 
 
 Patrum, and one MS. uf Panormia Ivonis, Carnotensis episcopi, 
 belonging to the thirteenth centurj'. 
 
 There is a MS. of Gratian with the gloss of Bartholomew 
 of Bresica, which once belonged to Georges d'Amboise, Cardinal 
 Archbishop of Rouen, and has his initials and coat of arms in 
 various parts.* 
 
 This very magnificent MS. belongs to the fifteenth century, 
 and consists of 257 sheets. 
 
 These four MSS. came from the Abbey of Jumieges : — 
 
 1. Summa super Decretum Gratiani Sicardi Cremonensis, 
 consisting of 141 sheets, and belonging to the thirteenth 
 century. 
 
 2. MS. Commentary on Gratian of the thirteenth century. 
 
 3. MS. Commentary of Henry of Segusia, Cardinal Bishop 
 of Ostia. This MS. is of the fourteenth century on 325 sheets. 
 
 4. Another MS. of the same Commentary belonging to the 
 same century on 340 sheets. 
 
 Rouen possesses fifteen MSS. of the Decretals of Gregory ix., 
 nine of which came from the Abbey of Jumieges, three from 
 Fecamp, and three from S. Ouen de Rouen. They all belong 
 to the thirteenth or fourteenth centuries. 
 
 There is also one MS. of the Decretals in French, and three 
 MS. of the Statuta Gregorii Noni. 
 
 The Library of Alen^on has one fourteenth century MS. of 
 the Decretals, on 314 sheets, which came from Saint-Evroult. 
 
 Chartres. 
 
 This Library possesses a fine copy of the Decretum of 
 Gratian with the gloss of Bartholomew of Brescia. This MS., 
 No. 269, consists of 437 sheets of parchment without illustra- 
 tions. 
 
 The text commences " Humanum genus," and the gloss 
 commences " Quoniam novis supervenientibus causis "... and 
 finishes " Decretum compilatum a Graciano, monacho monas- 
 terii Sancti Felicis de Bononia." 
 * See article by M. Beaurain xa Journal de Routu, 4th Jan. 1882.
 
 196 THE CANON LAW 
 
 MS. 207, on sheets 308-316, gives a list of the Titles of 
 Gratian, and sheets 317-23 other Titles of the Canon Law. 
 This part of the MS. is of the fourteenth century, but the earlier 
 part belongs to the thirteenth century. 
 
 MS. 169 contains at the close of an abbreviated Bible, at 
 folio 69, a brief Commentary on a part of the Decretum of 
 Gratian, and at folio •]& a passage commencing "Jus naturale." 
 These fragments are arranged in no sort of order. This MS. 
 is of the thirteenth and fourteenth centuries. 
 
 MS. 514 is a fine fourteenth century MS. of the Decretals 
 in five books, and 276 sheets of parchment. 
 
 MS. 149 is a thirteenth century MS. of the Decretals in 
 338 sheets. 
 
 MS. 280 is a MS. of the Decretals with the gloss of Bernard 
 of Parma in 499 sheets. 
 
 MS. 332 contains the Decretals in 255 sheets. 
 
 MS. 384 contains the Decretals in 317 sheets. 
 
 MS. 145 is the Decretals with a commentary in 169 sheets. 
 
 MS. 296 contains an incomplete and imperfect Commentary 
 on the Decretals. 
 
 MS. 305 contains the Decretals with the apparatus of Guido 
 in 155 sheets. 
 
 A miens. 
 
 This Library possesses over 500 MSS. and 80,000 books. 
 
 Many of the early MSS. came from the Abbey of S. Acheul, 
 the original site of the Bishopric of Amiens, and other ecclesias- 
 tical corporations. 
 
 There are three copies of the Decretum of Gratian, and all 
 three contain the gloss of Bartholomew of Brescia. 
 
 One copy of the Decretum came from the Church of 
 Corbey. 
 
 Sciunt cuncti quod istud Decretum est de ecclesia 
 Corbeyensi ; verum quod, postquam magister Stephanus de 
 Contyaco recepit eum ab ecclesia ante dicta in commodato, 
 fecit addere in eo hysterias et paleas decretorum cum bro-
 
 APPENDIX 197 
 
 cardicis juris canoiiici ; idco studens cum appetitu in illo, oret 
 Deum pro co. 
 
 Thus runs the fly-leaf. The text of Gratian begins on 
 foUo 46, certain other matter preceding, as well as the Tabula 
 of John de Dios. 
 
 In three of these preliminary treatises the arms of Stephen 
 Conty occur within the first initial letter. There are numerous 
 other painted initial letters. This MS. belongs to the fourteenth 
 century, and consists of 392 sheets of parchment. 
 
 Another fourteenth century MS. of Gratian also came from 
 Corbey, but was of Italian origin, having on the first sheet the 
 name Johannes de Socco. It has various painted initial letters, 
 and consists of 281 sheets of parchment. 
 
 The third MS. of Gratian at Amiens also came from Corbey, 
 and is of Italian origin. It belongs to the fourteenth century, 
 and consists of 413 sheets of parchment. 
 
 There are also two copies of the Decretals of Gregory IX,, 
 with the gloss of Bernard of Compostella. Both belong to the 
 fourteenth century. One has 294 sheets of parchment, and the 
 other 273. Both came from Corbey. On the outer leaf of one 
 of them (No. 358) is written — 
 
 Pars prior officia parat ecclesiasque ministros 
 Altera pars testes et cetera judicioruni, 
 Tercia de rebus et vita presbiterorum 
 Dat formam, recte nubem quarta docet. 
 Ultima de viciis et pcenis tractat eorum. 
 
 A third fourteenth century copy from Corbey consists of 
 368 sheets of parchment, with gloss, and the Decretals of 
 Gregory ix. end at sheet 345. Then there follows " Consti- 
 tutiones Gregorii X. in generali concilio Lugdunensi edite." To 
 these constitutions there is an elaborate gloss.* 
 
 Gregorius vigilans interpretatur quasi gregem regens. 
 
 * On a copy of the Hours of the Virgin, No. 331 (MSS. Amiens, old cat.ilogue 
 of Corbie) : — 
 
 Hunc sudore gravi quondam varioque libellum 
 Conscripsit Monachus cui Belvacensis origo est.
 
 198 THE CANON LAW 
 
 Folio 359 contains the constitutions of Simon the Legate 
 
 Symon miseratione divina, tituli Sancte Cecilie presbiter 
 cardinalis, etc. Inter curas, etc.. 
 
 FoHo 361 contains the Tabula of John de Dios, and folio 363 
 his " Questiones Canonice in IV. librum Decretalium " ; and 
 folio 364 his " Tituli." Folio 365 gives the Tractatus de 
 Consanguinitate of Jean Andr^, with two elaborate painted 
 genealogical trees. 
 
 On the first sheet of this MS.,* and also on sheet 362, this 
 note is found : — 
 
 Magister Stephanus de Contyaco, decretorum doctor istas 
 Decretales emit a magistro Johanne de Belvaco, librario 
 Parisiensi jurato, in 11. anno quo audivit jura canonica in vico 
 Brunelli, pro pre (cio xx)xiiij francorum : ideo studens in ipsis 
 cum devotioue roget Deum pro eo, filium virginis Marie. 
 
 Nice. 
 
 This Library contains : — 
 
 1. Summa S. Raymondi de Pennaforte. 
 
 2. The Commentary of Isidore, Epus. Hispalensis. 
 
 Lille. 
 
 This Library contains an MS. of the Rule of the Cistercian 
 Order, dated 1289, and a few commentaries on the Canon 
 Law. 
 
 * The Abbey of Cotbey was founded in the beventh century by Queen Bathilde, 
 was filled with monks from Luxeuil, and once contained the finest monastic library 
 in Picardie, possessing Italian, German, and Irish MSS., as well as French.
 
 INDEX. 
 
 Abberbury, 149. 
 
 Abbot, 37, 39, 66. 
 
 Aberdeen, 11. 
 
 Acquitaine, 70. 
 
 Adrian I., 102. 
 
 Adrian v., iig. 
 
 Advocates' Library, g, 12, 162. 
 
 Advowson, 109, 154. 
 
 Agilulphus, 191. 
 
 Alan, 1 54. 
 
 Albert, the scribe, 190. 
 
 Albornoz, Cardinal, 178. 
 
 Alciatus, Cardinal, 189. 
 
 Alenc^on, 195. 
 
 Alexander ill., 43, 45, 52, 73, 77, 
 
 81,96. 
 Ale.xander I v., 133. 
 Alexander vi., 128. 
 Alost, 165. 
 
 Amboise, Cardinal, 195. 
 Ambrosian Library, 185, 186. 
 Amiens, 196. 
 Anastasius, 55. 
 Andevere, 150. 
 Andrew, Canon John, ig. 
 Angelo, Cardinal, 153. 
 Anthemius, 55. 
 Anthony, 10. 
 Antwerp, 163. 
 
 Aragon, i6g, 173. 
 
 Arbroath, 50. 
 
 Archdeacon, 8, 10, 45, 47, 98, 133. 
 
 Arches, 122, 136. 
 
 Arnold, 14. 
 
 Articali Cleri, 126. 
 
 Arundel, Archbishop, 118. 
 
 Atheryngton, 150. 
 
 Audience, 122. 
 
 Augustine of Canterbury, 28, 192. 
 
 Augustine of Hippo, 26, 85, 187. 
 
 Austria, 127. 
 
 Avignon, 171, 179. 
 
 Ayliffe, 120. 
 
 Aylesbury, 106. 
 
 Azo, 33. 
 
 Baldok, 106. 
 
 Barcelona, 13, 34, 169. 
 
 Bardfield, 158. 
 
 Barnard, 158. 
 
 Bartholomew of Brescia, 162, 164, 
 
 i6g, ig4. 
 Bath, 46. 
 Bathe, 156. 
 Bathilde, Queen, 198. 
 Battle Abbey, 104. 
 Bechot, 50. 
 Beck, 114.
 
 200 
 
 THE CANON LAW 
 
 Becket, Archbishop, io8, 128. 
 
 Belvaco, 198. 
 
 Belynges, 150. 
 
 Benedict the jew, 135. 
 
 Benevento, 53. 
 
 Berenger, 14. 
 
 Bernard of Parma, 35, ig6. 
 
 Bernard of Pavia, 31, 32. 
 
 Berwick, 11. 
 
 Blebury, 153. 
 
 Blois, 33. 
 
 Bologna, 22, 32, 34, 51, 76, 180. 
 
 Boniface vill., 164. 
 
 Boniface of Savoy, iiS, 126. 
 
 Bool, 153. 
 
 Boteler, 157. 
 
 Bowet, Archdeacon, 153. 
 
 Brabant, 164. 
 
 Bracton, 126, 134. 
 
 Bramley, 151. 
 
 Brecon, 114. 
 
 Brera, 192. 
 
 Brussels, 163. 
 
 Burchart, 2, 23, 49, 164, 182, 185, 
 
 194. 
 Burdet, 152. 
 Burgundy, 164. 
 Bury, 149. 
 Butrio, i8r, 182. 
 Bykenore, 149. 
 
 Caen, 106. 
 
 Caerfai, 114. 
 
 Caithness, 10, 11. 
 
 Calcedon, 51, 175. 
 
 Candida Casa, 10. 
 
 Canterbury, 28, 44, 49, 62, 87, 147. 
 
 Caranza, 183. 
 
 Cardigan, 114, 
 
 Cardinal, 55. 
 
 Cardo, 188. 
 
 Carlisle, 1 10. 
 
 Carthage, 175, 1S8, 192. 
 
 Castille, 172. 
 
 Castleman, 136. 
 
 Catalonia, 13. 
 
 Cauntlow, 152. 
 
 Celestine in., 59, 80, 82, 192. 
 
 Censibus, 70. 
 
 Charlemagne, 9, 128, 187. 
 
 Charles, Sir A., 137. 
 
 Charles the Emperor, 14. 
 
 Chartres, 33, 165, 194. 
 
 Cheltenham, 164. 
 
 Chester, 45, 1 12, 138. 
 
 Chichely, 20, 1 18. 
 
 Christianity, 16. 
 
 Cistercian, 37, 63, 66, 133, 171, k 
 
 Clare, 109. 
 
 Clement, 188. 
 
 Clement in., 52. 
 
 Clement v., 193. 
 
 Clement VI., 180. 
 
 Clement vii., 12. 
 
 Clementines, 32, 165, 179. 
 
 Clifford, 149, 153. 
 
 Cluden, 114. 
 
 Coadjutor, 57. 
 
 Coif, 121. 
 
 Coke, Sir E., 102. 
 
 Cokermouth, 157. 
 
 Coldingham, 12. 
 
 Compilatio prima, 32. 
 
 Compostella, 41, 71, 84. 
 
 Conclave, 38. 
 
 Concordantia, 2, 3. 
 
 Consecration, 71. 
 
 Constantinople, 67, 187, 189. 
 
 Conty, 198. 
 
 Corbey, 197. 
 
 Cornwall, 151. 
 
 Corpus Juris C, 4, 5, 18, 20, 24, 2 
 
 Coryngham, 152. 
 
 Cosyn, 105. 
 
 Cotthem, 165. 
 
 Coventry, 45, 107. 
 
 /
 
 INDEX 
 
 201 
 
 Cremona, 19;. 
 Christina, Queen, 176. 
 Cromartie, Earl of, 162. 
 Cruise, 103. 
 Cursal, 114. 
 
 Darling, Mr. Justice, 139. 
 
 David I., 15, 16. 
 
 David, the Burgess, 11. 
 
 David, the Earl, 15. 
 
 David's, S. 114, 116. 
 
 Davies, Timothy, 138, 140. 
 
 Decentius, Bishop, 29. 
 
 Decretals, 4, 5, 22, 34, 43, 75, 162, 176. 
 
 Decretum Gratiani, 2, 3, 7, 18, 23, 
 
 28, 31, 169. 
 Den, Bishop, 11 1. 
 Depyng, 107. 
 Deusdedit, Cardinal, 23. 
 Digest, 25, 47, 103. 
 Diocletian, Emperor, 31. 
 Dionysius, 186, 192. 
 Divorce, 7, 11, 83. 
 Donatio, 61. 
 Donative, 108. 
 Dorefort, 52. 
 Dowry, 83. 
 Dublin, 156. 
 Dunblane, 10. 
 Dunfermline, 10, 16. 
 Dunkeld, 9, 16. 
 Dunmow, 109. 
 Durham, 113, 134. 
 Durhurst, 148, 151. 
 Dymmok, 152. 
 
 Edgar, King, 102. 
 Edinburgh, 9. 
 Edmund, Saint, 1 18. 
 Edward II., 126. 
 Edward Vll., 142. 
 Eggertsson, 10. 
 Ehrle, 161. 
 
 26 
 
 Elect, 39. 
 
 Elgoch, 16. 
 
 Ely, 45- 
 
 Emperor of Rome, 4, 7, 169. 
 
 Empire, 9. 
 
 Eton, 147. 
 
 Eudoxia, 23. 
 
 Evesham, 94. 
 
 Evreux, 57, 194. 
 
 Evroult, 195. 
 
 Extravagants, 31, 32. 
 
 Exeter, 46, 47, 59, 60, 150. 
 
 Eye, 156. 
 
 Farnese, 193. 
 
 Felix, Saint, 22, 192. 
 
 Ferns, 152. 
 
 Ferrebone, 184. 
 
 Feu, 60. 
 
 Fiesole, 95. 
 
 Flanders, 17. 
 
 Fliscus, 35. 
 
 Fontevrault, 106. 
 
 France, 77, 149. I94- 
 
 Frederick the Emperor, 171. 
 
 Friedberg, 29. 
 
 Frodoyno, Bishop, 14. 
 
 Fuscararius, 35. 
 
 Gaillard, 106. 
 
 Gaunstede, 151. 
 
 Gaunt, 157. 
 
 George, Earl of Huntly, 11. 
 
 George, Saint, 51. 
 
 George 11., 120. 
 
 Gihon, 173. 
 
 Giles, Saint, 156. 
 
 Glanville, 155. 
 
 Gloucester, 148. 
 
 Godfrey, 174. 
 
 Goffredus, 35. 
 
 Gotico, 173. 
 
 Guido, 179.
 
 202 
 
 THE CANON LAW 
 
 Gratian, 2, 22, 25, 27, 30, 36, 162 
 
 169, i73> 178, 185, 195- 
 Gregory I., 27, 192. 
 Gregory vil., 128. 
 Gregory ix., 22, 34, 40, 43, 60, 75, 
 
 93, 162, 170, 178, 190, 195, 197. 
 Gregory X., 191. 
 Gregory XIII., 183. 
 Gregory, Dean of S. Paul's, 142. 
 Grenyer, 151. 
 Gwyn, 150. 
 
 Hadrian iv., 62. 
 Hague, 163. 
 Hammurabi, 2. 
 Hannay, 12. 
 Hannsard, 134. 
 Harbergh, 148. 
 Hardwicke, Lord, 120. 
 Henchman, 158. 
 Henry I., 109. 
 Henry 11., 128. 
 Henry III., 126. 
 Henry IV., 104, 149. 
 Henry viil., 122. 
 Hereford, 43, 107. 
 Herinnes, 163, 164. 
 Hervy, 149. 
 Herynngeswell, 156. 
 Heytefeld, 156. 
 Hilary, 192. 
 Hildebrand, 109, 128. 
 Hillier, 136. 
 Hispalensis, 198. 
 Honorius ill., 68, 95, 189. 
 Hospitalers, 64, 98. 
 Hoton, 156. 
 Hyston, 153. 
 
 Innocent hi., 9, 31, 40, 45, 51, 58, 
 
 63. 71, 74, 99- 
 Innocent IV., 10, 178. 
 Innocent xii., 181. 
 
 Institution, 155. 
 
 Ireland, 106, in. 
 
 Isidore, 25, 175, 187, 194, 198. 
 
 Islip, 118, 157. 
 
 Italy, 117, 128, 174, 178. 
 
 Ivo, 2, 23, 28, 49, 165, 195. 
 
 James 1., 119, 124. 
 
 Jenson, 173. 
 
 Jerusalem, 8. 
 
 Jews, 15,63,88. 
 
 John, Archbishop of Canterbury, 123. 
 
 John de Derset, 105. 
 
 John of Salisbury, 33. 
 
 John, Saint, 168. 
 
 John the Reader, 166. 
 
 John the Teuton, 32. 
 
 John XXII., 9, 10, 32, 107, 164. 
 
 Jumieges, 195. 
 
 Justinian, 3, 7, 36, 184. 
 
 Keten, 152. 
 Kyngston, 151. 
 Kynlos, 9. 
 
 Lactantius, 173. 
 
 Langham, Archbishop, 118. 
 
 Langthorn, in. 
 
 Langton, Archbishop, 20, 1 1 8. 
 
 Langton, W., 1 50. 
 
 Lanthony, 150. 
 
 Laodicea, Council of, 191. 
 
 Laud, Archbishop, 162. 
 
 Lauder, 11. 
 
 Launceston, 151. 
 
 Lateran, 6, 38, 58, 63, 74, 84, 102, 
 
 115. 
 Lavergne, 105. 
 Lee, Sir G., 135. 
 Lee, H., 141. 
 Lade, 165. 
 Legate, 71, 171. 
 Leghlyng, 152.
 
 INDEX 
 
 203 
 
 Legitim, 131. 
 
 Legitimacy, 80. 
 
 Leipsic, 29. 
 
 Lenten Fast, 27. 
 
 Lenton, 148. 
 
 Leo X., II, 180. 
 
 Leo XIII., 132. 
 
 Leon, 84. 
 
 Leskyrd, 151. 
 
 Lichfield, 106. 
 
 Lincoln, 106, 148, 149, 163. 
 
 Llandewi, 1 14. 
 
 Llangan, 114. 
 
 Lodres, 150. 
 
 London, 33, 41, 46, 67, 82, 109, 158. 
 
 Lowe, 136. 
 
 Lucca, 23, 188. 
 
 Lucina, 40, 178. 
 
 Lucius III., 44, 51. 
 
 Lundors, 16. 
 
 Lumley, 151. 
 
 Lusk, 156. 
 
 Luterel, 107. 
 
 Luxemburg, 164. 
 
 Lyndvvood, 104, 118, 131. 
 
 Lyle, 148. 
 
 Madrid, 166, 168. 
 Magnus, Saint, 149. 
 Maguntum, 85. 
 Mandagoto, 166. 
 Mar, Earl of, 15. 
 Marani, 171. 
 Marcellus, Saint, 55. 
 Martin, 14. 
 Martin, Saint, 16. 
 Martin iv., 134. 
 Mathrey, 114. 
 Matilda, Countess, 12S. 
 May, II. 
 Meath, 150. 
 Mel, 151. 
 Mepham, Archbishop, 1 10. 
 
 Merk, Bishop, 1 10. 
 Merton, 81. 
 Michael's Mount, 150. 
 Middlesex, 106. 
 Middleton, 120, 154. 
 Mighil, 9. 
 
 Milan, 96, 174, 177, 184, 192. 
 Minis, 173. 
 Milton, 106. 
 Monte Pessulo, 82. 
 Moore, W. P., 141. 
 More, Thomas, 149. 
 Mortimer, Earl, 109. 
 Moryns, 148. 
 Mure, 12. 
 
 Nefort, 52. 
 Neobatyll, 10. 
 Neocscsaria, 191. 
 Newburgh, 15. 
 Nic;ea, 188. 
 Nicolas, Saint, 1 14. 
 Norman Conquest, 102, 104. 
 Normandy, 150. 
 Norwich, 45, 135, 149. 
 Novale, 63, 100. 
 
 Official Principal, 131. 
 
 Olegarius, Archbishop, 13. 
 
 Onele, 16. 
 
 Orval, 164. 
 
 Ossery, 152. 
 
 Ostia, 195. 
 
 Ostiarius, 97. 
 
 Otho, 119. 
 
 Othobon, 119, 177. 
 
 Oviedo, 169, 173. 
 
 Oxford, 76, 147, 162. 
 
 Palatine, 176. 
 Pall, 38, 40, 167 
 Palmerius, 52. 
 Pantaleone, 178.
 
 204 
 
 THE CANON LAW 
 
 Parergon, 120. 
 
 Paris, 48, 194. 
 
 Parma, 35, 193. 
 
 Pars, 29, 177. 
 
 Patrick, Saint, 106, Iio, 150. 
 
 Patryngton, 149. 
 
 Patten, 136. 
 
 Paucapalasa, 30. 
 
 Pavia, 31. 
 
 Peckham, Archbishop, 118. 
 
 Peculiars, 123. 
 
 Pedagia, 70. 
 
 Pennaforte, 34. 
 
 Pershore, 156. 
 
 Perotta, 106. 
 
 Perth, 10. 
 
 Petra, 7. 
 
 Peter the Bishop, 16. 
 
 Peter the Deacon, 14. 
 
 Peter's Pence, 10. 
 
 Petgnivern, 11. 
 
 PhilHps, SirT., 165. 
 
 Philpotts, 137. 
 
 P'acenza, 99. 
 
 Picardy, ig8. 
 
 Pinner, 137. 
 
 Pisa, 65, 163. 
 
 Pisanella, 182. 
 
 Pius II., 10, 193. 
 
 Pius v., 24. 
 
 Placencia, 170, igi. 
 
 Pliny, 178. 
 
 Poitiers, 37. 
 
 Polthast, 9. 
 
 Polycarp, 23, 177. 
 
 Polyng, 152. 
 
 Prebend, 36, 54, 56, 106, 116, 141, 
 
 149. 
 Precentor, 113, 114. 
 Prene, Dean, 1 10. 
 Prerogative Court, 121, 131. 
 Provinciale, 20, 118, 179. 
 Provisors, 19, ill. 
 
 QUESTIO, 30. 
 Quiritium, 25. 
 
 Radulph, Bishop, 10. 
 
 Raimund the Subdeacon, 14. 
 
 Ralph de Pynyngton, 156. 
 
 Randes, 151. 
 
 Ravenna, 23. 
 
 Raymond of Pennaforte, 34, 166, 
 
 180, 198. 
 Raymond de Salia, 171. 
 Reddyng, 11. 
 Reggio, 193. 
 Remston, 148. 
 Reynold, Archbishop, 118. 
 Richard, Bishop, 153. 
 Richard II., 149, 153. 
 Richter, 29. 
 Ridsdale, 137. 
 Rimini, 67. 
 Robert 1., 11. 
 Roche, 156. 
 
 Rodrigo, Archbishop, 170. 
 Roland, 180, 183. 
 Rome, 3, 7, 29. ?>y, 40, 94. 105, m, 
 
 176. 
 Romulus, 128. 
 Ross, 9. 
 
 Rosslyn, Earl, 146. 
 Rouen, 194. 
 Rudolf, Emperor, 7. 
 Rye, 152. 
 
 Salamanca, 172. 
 Salisbury, 151. 
 Sandale, 157. 
 Santiago, 171. 
 Saracens, 88. 
 Schene, 16. 
 
 Scotland, 11, 35, 74. 127- 
 Seez, 150. 
 Seggesfeld, 149. 
 Selborne, Earl, 102, 127.
 
 INDEX 
 
 205 
 
 Selden, 103. 
 
 Sessoriano, 178. 
 
 Seville, 168, 171. 
 
 Sforza, 193. 
 
 Simon the Legate, 198. 
 
 Somerset, 136. 
 
 Southampton, 106. 
 
 Spain, 163. 
 
 Spoleto, 96. 
 
 Stephen, King, 128. 
 
 Stoke, 149. 
 
 Stokenham, 149. 
 
 Straphor, 48. 
 
 Stratford, Archbishop, 118, 131. 
 
 Strathern, 16. 
 
 Stretford, in. 
 
 Stubbs, Bishop, ig. 
 
 Sudbury, Archbishop, 118. 
 
 Swathorpe, 151. 
 
 Sweden, 176. 
 
 Swinburne, Judye, 131. 
 
 Symbolum, 191. 
 
 Taghmon, 152. 
 Tarfensis, 178. 
 Tarragona, 13. 
 Templars, 63. 
 Thame, 149. 
 Thelesphorus, 27. 
 Theobald I., 171. 
 Theodosius, 187. 
 Tithe, 104. 
 
 Toledo, 168, 170, 192. 
 Torcello (Turcell), iSo. 
 Tornour, 157. 
 Tourgot, 164. 
 Trano, 174. 
 Trays, 152. 
 Treflod, 114. 
 Trent, 24, 77, 180. 
 Tristram, Chancellor, 137. 
 Trym, 150. 
 Tryngge, 149. 
 
 Turin, 194. 
 Tusschenbeke, 165. 
 
 UliALDUS, 49. 
 Ughtred, 157. 
 Urban ill., 33. 
 Urban viii., 181. 
 Urbinatine, 177. 
 Usury, gi. 
 Utrecht, 163. 
 
 Valladolid, 172. 
 
 Vasconia, 166. 
 
 Vatican, 10, 18, 161, 174, 177. 
 
 X'enice, 68. 
 
 Victor in., 23. 
 
 Vienne, 165. 
 
 Viterbo, 99. 
 
 Vuormacien, 175. 
 
 Waledon, 107. 
 Wales, 108. 
 
 Walter, Archbishop, 102. 
 Walter, the Sacrist, 135. 
 Warenne, Earl, 156. 
 Wellys, 150. 
 
 Westminster, 67, 136, 156. 
 Wethershed, Archbishop, 118. 
 William of Brechin, 17. 
 William, King, 15. 
 Wimbledon, 157. 
 Winchelsey, Archbishop, iiS. 
 Winchester, 45, 149. 
 Wodnesbery, 152. 
 Worcester, 79, 82, 152. 
 Wraxall, 147. 
 Wylton, 156. 
 
 York, 52, 56, 69, 73, 82, 112, 131, 
 147, 153- 
 
 Zachary, 192. 
 Zamora, 56, 173. 
 Zosimus, 192.
 
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