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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.
5 fc-H 'r C (y : t fc ? sr iJ ;3 :5 r- ■§ K <■
^:§^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
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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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