Canon law may be taken to include theology, or may be limited to the law of the organization and functions of the Church taken in a large sense as inclusive of the laity in their relations to the religion of Christ.[402] Obviously part comes from Christ directly, through the Old Testament as well as New. The other part, and in bulk far greater, emanates from His foundation, the Church, under the guidance of His Spirit, and may be added to and modified by the Church from age to age. It is expressed in custom, universal and established, and it is found in written form in the works of the Fathers, in the decrees of Councils, in the decretals of the popes, and in the concordats and conventions with secular sovereignties. From the beginning, canon law tacitly or expressly adopted the constitutions of the Christian emperors relating to the Church, as well as the Roman law generally, under which the Church lived in its civil relations.
The Church arose within the Roman Empire, and who shall say that its wonderfully efficient and complete organization at the close of the patristic period was not the final creation of the legal and constructive genius of Rome, newly inspired by the spirit of Christianity? But the centre of interest had been transferred from earth to heaven, and human aims had been recast by the Gospel and the understanding of it reached by Christian doctors. Evidently since the ideals of the Church were to be other than those of the Roman Empire, the law which it accepted or evolved would have ideals different from those of the Roman law. If the great Roman jurists created a legal formulation and rendering of justice adequate for the highly developed social and commercial needs of Roman citizens, the law of the Church, while it might borrow phrases, rules, and even general principles, from that system, could not fail to put new meaning in them. For example, the constant will to render each his due, which was justitia in the Roman law, might involve different considerations where the soul’s salvation, and not the just allotment of the goods of this world, was the law’s chief aim. Again, what new meaning might attach to the honeste vivere and the alterum non laedere of pagan legal ethics. Honeste vivere might mean to do no sin imperilling the soul; alterum non laedere would acquire the meaning of doing nothing to another which might impede his progress toward salvation. Injuries to a man in his temporalities were less important.
Further, Christianity although conceived as a religion for all mankind, was founded on a definite code and revelation. The primary statement was contained in the canonical books of the Old and New Testaments. These were for all men, universal in application and of irrefragable validity and truth. Here was some correspondence to the conception of the jus gentium as representative of universal principles of justice and expediency, and therefore as equivalent to the jus naturale. There was something of logical necessity in the transference of this conception to the law of Christ. Says Gratian at the beginning of his Decretum: “It is jus naturae which is contained in the Law and the Gospel, by which every one is commanded to do to another as he would be done by, and forbidden to inflict on him what he does not wish to happen to himself.” Since the Law and the Gospel represent the final law of life for all men, they are par excellence the jus naturae, as well as lex divina. Gratian quotes from Augustine: “Divinum jus in scripturis divinis habemus, humanum in legibus regum.”[403] And then adds: “By its authority the jus naturale prevails over custom and constitution. Whatever in customs or writings is contrary to the jus naturale is to be held vain and invalid.” Again he says more explicitly: “Since therefore nothing is commanded by natural law other than what God wills to be, and nothing is forbidden except what God prohibits, and since nothing may be found in the canonical Scripture except what is in the divine laws, the laws will rest divinely in nature (divine leges natura consistent). It is evident, that whatever is proved to be contrary to the divine will or canonical Scripture, is likewise opposed to natural law. Wherefore whatever should give way before divine will or Scripture or the divine laws, over that ought the jus naturale to prevail. Therefore whatever ecclesiastical or secular constitutions are contrary to natural law are to be shut out.”[404]
The canon law is a vast sea. Its growth, its age-long agglomerate accretion, the systematization of its huge contents, have long been subjects for controversialists and scholars. Its sources were as multifarious as those of the Roman law. First the Scriptures and the early quasi-apostolic and pseudo-apostolic writings; then the traditions of primitive Christianity and also the writings of the Fathers; likewise ecclesiastical customs, long accepted and legitimate, and finally the two great written sources, the decretals or decisions of the popes and the decrees of councils. From patristic times collections were made of the last. These collections from a chronological gradually acquired a topical and more systemic arrangement, which the compilers followed more completely after the opening of the tenth century. The decisions of the popes also had been collected, and then were joined to conciliar compilations and arranged after the same topical plan.
In all of them there was unauthentic matter, accepted as if its pseudo-authorship or pseudo-source were genuine. But in the stormy times of the ninth century following the death of Charlemagne, the method of argument through forged authority was exceptionally creative. It produced two masterpieces which won universal acceptance. The first was a collection of false Capitularies ascribed to Charlemagne and Louis the Pious, and ostensibly the work of a certain Benedictus Levita, deacon of the Church of Mainz, who worked in the middle of the century. Far more famous and important was the book of False Decretals, put together and largely written, that is forged, about the same time, probably in the diocese of Rheims, and appearing as the work of Saint Isidore of Seville. This contained many forged letters of the early popes and other forged matter, including the Epistle or “Donation” of Constantine; also genuine papal letters and conciliar decrees. These false collections were accepted by councils and popes, and formed part of subsequent compilations.
From the tenth century onward many such compilations were made, all of them uncritical as to the genuineness of the matter taken, and frequently ill-arranged and discordant. They were destined to be superseded by the great work in which appears the better methods and more highly trained intelligence developing at the Bologna School in the first part of the twelfth century. Its author was Gratianus, a monk of the monastery of St. Felix at Bologna. He was a younger contemporary of Irnerius and of Peter Lombard. Legend made him the latter’s brother, with some propriety; for the compiler of those epoch-making Sentences represents the same stage in the appropriation of the patristic theological heritage of the Middle Ages, that Gratian represents in the handling of the canon law. The Lombard’s Sentences made a systematic and even harmonizing presentation of the theology of the Fathers in their own language; and the equally immortal Decretum of Gratian accomplished a like work for the canon law. This is the name by which his work is known, but not the name he gave it. That appears to have been Concordia discordantium canonum, which indicates his methodical presentation of his matter and his endeavour to reconcile conflicting propositions.
The first part of the Decretum was entitled “De jure naturae et constitutionis.” It presents the sources of the law, the Church’s organization and administration, the ordination and ranking of the clergy, the election and consecration of bishops, the authority of legates and primates. The second part treats of the procedure of ecclesiastical courts, also the law regulating the property of the Church, the law of monks and the contract of marriage. The third part is devoted to the Sacraments and the Liturgy.
Gratian’s usual method is as follows: He will open with an authoritative proposition. If he finds it universally accepted, it stands as valid. But if there are opposing statements, he tries to reconcile them, either pointing out the difference in date (for the law of the Church may be progressive), or showing that one of the discordant rules had but local or otherwise limited application, or that the first proposition is the rule, while the others make the exceptions. If he still fails to establish concord, he searches to find which rule had been followed in the Roman Church, and accepts that as authoritative. A rule being thus made certain, he proceeds with subdivisions and distinctions, treating them as deductions from the main rule and adjusting the supporting texts. Or he will suppose a controversy (causa) and discuss its main and secondary issues. Throughout he accompanies his authoritative matter with his own commentary—commonly cited as the Dicta Gratiani.[405] The Decretum was characterized by sagacity of interpretation and reconcilement, by vast learning, and clear ordering of the matter. Only it was uncritical as to the genuineness of its materials; and a number of Gratian’s own statements were subsequently disapproved in papal decretals. The Dicta Gratiani never received such formal sanction by pope or council as the writings of Roman jurists received by being taken into Justinian’s Digest.
The papal decretals had become the great source of canonical law. Gratian’s work was soon supplemented by various compilations known as Appendices ad Decretum or Decretales extravagantes, to wit, those which the Decretum did not contain. These, however, were superseded by the collection, or rather codification, made at the command of the great canonist Gregory IX. and completed in the year 1234. This authoritative work preserved Gratian’s Decretum intact, but suppressed, or abridged and reordered, the decretals contained in subsequent collections. Arranged in five books, it forms the second part of the Corpus juris canonici. In 1298 Boniface VIII. promulgated a supplementary book known as the Sextus of Boniface. This with a new collection promulgated under the authority of Clement V. in 1313, called the Clementinae, and the Extravagantes of his successor John XXII. and certain other popes, constitute the last portions of the Corpus juris canonici.[406]
According to the law of the Empire the emperor’s authority extended over the Church, its doctrine, its discipline, and its property. Such authority was exercised by the emperors from Constantine to Justinian. But the Church had always stood upon the principle that it was better to obey God rather than man. This had been maintained against the power of the pagan Empire, and was not to be sunned out of existence by imperial favour. It was still better to obey God rather than the emperor. The Church still should say who were its members and entitled to participate in the salvation which it mediated. Ecclesiastical authorities could excommunicate; that was their engine of coercion. These principles were incarnate in Ambrose, Bishop of Milan, withstanding and prohibiting Theodosius from Christian fellowship until he had done penance for the massacre at Thessalonica. Of necessity they inhered in the Church; they were of the essence of its strength to fulfil its purpose; they stood for the duly constituted power of Christian resolution to uphold and advance the peremptory truth of Christ.