CANON LAW is a term used to denote the ecclesiastical law sanctioned by the church of Rome, and possessing more or less direct influence in all countries which acknowledge the authority of the pope. The word καvω∣∕ signifies a rule, and this word was not at first considered as too feeble to express the claims of the church to the obedience of her children; but, in the progress of priestly usurpation, the successor of St Peter began to arrogate a more ample and definite jurisdiction, and to extend his regulations to many causes which are not strictly ecclesiastical. The stupendous fabric of papal dominion attained its full height in the eleventh century, under the auspices of Hildebrand, who was elected in the year 1073, and assumed the name of Gregory VII. It was one of his dictates, that the church of Rome has never erred, and, according to the testimony of Scripture, never shall err;^[1. Mastricht Historia Juris Ecclesiastici et Pontificii, p. 297· Amst. 1G8G, 8vo. ] and after this maxim was fully admitted, nothing remained to obstruct the progress of spiritual arrogance. What had formerly been described as a rule, was now dignified with the name of law ; and from this period, a period of the deepest ignorance and superstition, the canon law obtained great influence in most countries of Europe. After the foundation of those seminaries of learning which we denominate universities, it acquired a distinguished place among the other faculties; and a knowledge of the canon law became a common road to the highest honours. It is a maxim of the commentators, that a Doctor of the Canon Law is to be preferred to a Doctor of Divinity in such dioceses as do not contain many heretics.^[2. Lancelotti Institutiones Juris Canonici, tom. i. p. 232. edit. Doujat. Paris. 1G85, 2 tom. 12mo. ]

The canon law is derived from many different sources. The authority of the Scriptures cannot be entirely disregarded; but the writings of the fathers and doctors of the church, the decrees of councils, and the decretals of popes, are much better adapted to the general views of the canonists. The canon is to a great extent to be considered as the spurious offspring of the civil law: what is most valuable it has derived from the Roman jurisprudence; and its own peculiar maxims and rules have all the same general tendency towards the power and aggrandizement of churchmen.

The Greek church has bequeathed various reliques, which cannot be safely neglected by those who investigate the history of the canon law, as well as the general history of the church. Its Codex Canonun ^[3. Codex Canonum Ecclesiae universae, a Justiniano confirmatus. Christophorus Justellus, J. C. nunc primum restituit, ex Graecis codicibus editis et MSS. collegit et emendavit, Latinum fecit, et notis illustravit. Paris. 1610, 8vo. ] is confirmed by the 131. Novel of Justinian, and is therefore considered as a portion of the civil law. From this collection the emperor borrowed those ecclesiastical constitutions which occur in the Code and Novels. We cannot however pursue this branch of enquiry, but shall merely direct the reader’s attention to two very elaborate publications. The first of these is the “Bibliotheca Juris Canonici veteris; ex antiquis codicibus MSS. bibliothecas Christophori Justclli, opera et studio Gulielmi Voelli et Henrici Justelli.” Lutetiae[7:6:92] Paris. 1661, 2 tom. fol. For the other we are indebted to Dr Beveridge, the very learned bishop of St Asaph: “2υwδ∕κo∣∕, sive Pandectae Canonum SS. Apostolorum, et Conciliorum ab Ecclesia Graeca receptorum; nec non canonicarum SS. Patrum Epistolarum: una cum scholiis antiquorum singulis eorum annexis, et scriptis aliis huc spectantibus.” Oxonii, 1672, 2 tom. fol. This publication was followed by his “Codex Canonum Ecclesiae pri-mitivae vindicatus et illustratus.” Lond. 1678, 4to. Nor must we here neglect to mention a very recent work by Professor Biener of Berlin: “De Collectionibus Canonum Ecclesiae Graecae Schediasma litterarium.” Berolini, 1827, 8vo.

Of the rules or laws received by the Latin church, there were many ancient collections. Dionysius Exiguus, an abbot who flourished about the beginning of the sixth century, formed two different compilations, one of the canons of the church, another of the decretals of the bishop of Rome; and this was the earliest collection of decretals. These were followed by the collections of Fulgentius Ferrandus, who flourished soon afterwards; of Isidorus Hispalensis, who was bishop of Seville from 595 to 636; of Cresconius, who flourished about the year 690; of Isidorus Mercator, otherwise called Peccator, who wrote about the year 800, and is described as “impostor nequissimus and of various other compilers, whose labours we have not at present an opportunity of reviewing. Burchardus, who was bishop of Worms from 996 to 1025, formed a compilation of the canon law, described as “Magnum Decretorum Volumen,” and divided into twenty books. Ivo Carnotensis, bishop of Chartres from 1092 to 1115, was the author of a similar compilation, which bears the title of Decretum ; and to him is ascribed another work on the canon law, sometimes called Pannomia, and sometimes Pannormia. Both these works have been repeatedly printed.

Ivo was followed by Gratian, whose Decretum forms the first and most ample part of the Corpus Juris Canonici. He was a native of Clusium, or Chiusi, near Florence, and, according to a very improbable account, was the brother of Petrus Lombardus and Petrus Comestor. One of these three individuals was a native of Tuscany, another, as his name denotes, of Lombardy, and the third of France; but, in order to remove the difficulty which arises from this variety in the places of their nativity, some writers do their mother the honour of supposing that her three distinguished sons were the fruit of her unlawful intercourse with three different fathers, at different periods, and in different places. Gratian was a Benedictine monk of the monastery of St Felix and St Nabor at Bologna. His work has long been commonly known by the,, title of Decretum, but is more correctly described as “Decretorum Collectanea;” and it is remarked by the very learned archbishop of Tarragona, that the old manuscripts scarcely ever bear the former title, but generally that of “Concordia discordantium Canonum.”^[4. Augustinus de Emendatione Gratiani, p. 3. edit. Baluzii. Paris. 1G72, 8vo. ] According to the usual account, it was compiled in the year 1151: this may indeed have been the period of its completion, but it evidently was not the labour of a single year. Cardinal Bellarmin has endeavoured to reconcile two conflicting authorities, by supposing that Gratian commenced his work in 1127, and completed it in 1151, thus allowing a period of twenty-four years for its composition.^[5. Bellanninus de Scriptoribus Ecclesiasticis, p. 187- edit. Colon. 1684, 4to. ] The Decretum was presented to his holiness Eugenius HL, who is said to have testified his approbation by conferring upon him the bishopric of Chiusi.^[6. Pancirolus de claris Legum Interpretibus, p 317∙ edit. Hoffmanni. Lipsiae, 1721, 4to. ] It never obtained the formal sanction of the pope; but although it is thus to be regarded as the work of a private individual, it speedily secured, and has ever since maintained, a degree of authority which makes a near approach to that which belongs to written law.^[7. Mastricht, p. 332. Doujat, Histoire du Droit Canonique, p. 92. Paris, 1677, 12mo. Doujat, Praenotionum Canonicarum libri quinque, p. 547∙ edit. Paris. 1687, 4to. ] The principal sources from which his compilation is derived, are the sacred Scriptures, the spurious work described as the Apostolical Canons, the decisions of ecumenical and local councils, the decretal epistles, partly genuine and partly spurious, of seventy-eight Roman pontiffs, the works of the Greek and Latin fathers and other ecclesiastical writers, the Theodosian Code and the Corpus Juris Civilis, the capitularies of kings of France and the rescripts of emperors. It is divided into three parts; of which the first and third are subdivided into distinctions, and the second into causes and questions.^[8. Of the usual method of quoting the Decretum and other portions of the canon law, the reader will find an account in Bishop Hallifax’s Analysis of the Roman Civil Law, p 2. ] Gratian, who wrote in an unenlightened age, is chargeable with many errors of ignorance or inadvertence, which the canonists have not scrupled to detect and expose. Augustinus has composed a series of dialogues De Emendatione Gratiani, in which the reader will find much learned and curious disquisition; and many other writers, editors as well as commentators, have endeavoured to rectify errors and supply defects. “To the compilations of Isidore and Gratian,” says a catholic lawyer, “one of the greatest misfortunes of the church, the claim of the popes to temporal power by divine right, may in some measure be attributed. That a claim so unfounded and so impious, so detrimental to religion, and so hostile to the peace of the world, should have been made, is strange—stranger yet is the success it met with.”^[9. Butler’s Horae Juridicae subsecivae, p. i70. ]

The second collection which appears in the body of the canon law is entitled Decretalium D. Gregorii Papoe IX. Compilatio. It was formed under the direction and authority of this pontiff, who filled the chair of St Peter from 1237 to 1241. He is himself commended for his skill in jurisprudence, and in the execution of this plan he employed Raymundus de Penyafort, a learned Spaniard, who was afterwards enrolled in the catalogue of saints.^[10. Antonii Bibliotheca Hispana vetus, tom. ii. p. 67∙ edit. Bayerii. ] The work is divided into five books, and each book into various titles. “Epistolae decretales” are rescripts of the popes, in answer to prelates or other individuals by whom they have been consulted. They are sometimes called Decretalia, but commonly Decretales, the words Rescripta and Epistolae being respectively understood. The work however is not strictly conformable to· its title; for although the greater part of it is composed of decretals, the compiler has had recourse to various other authorities.

Gregory’s decretals are followed by Liber sextus Decretalium D. Bonifacii Papae VIII. which, notwithstanding the general title, is divided into five books. It was intended as supplementary to the other collection, and was compiled under the authority of Boniface, whose pontificate extended from 1294 to 1303. Besides the decretals of Boniface himself, and of preceding popes, ascending [7:6:93] to Gregory IX., it includes decrees of the two general councils held at Lyons in 1245 and 1274.

The next work in the series bears the title of Constitutiones Clementis Papce V. in Concilio Vienensi editae, and is likewise divided into five books. Clement, whose residence was at Avignon, presided in the council of Vienne in the year 1312; and in addition to the constitutions there enacted, his collection comprehends some other constitutions and decretals which he himself divulged before or after the holding of that council. After his death, these Clementìnoe were promulgated in the year 1317 by his successor John the Twenty-first, otherwise called John the Twenty-second.

Of the same pope, who likewise resided at Avignon, there is a collection of twenty consitutions, which bear the name of Extravagantes Joanms XXII. They were so called, because for some time they wandered beyond the limits of the collection which contained the works already enumerated as belonging to the body of the canon law. The next work, which is entitled Extravagantes Communes, and is divided into five books, comprehends the constitutions of various popes, concluding with Sixtus IV. whose pontificate extended from 1471 to 1484.

These are all the different compilations which constitute what is denominated the body of the canon law. It may be proper to add that the best edition bears this title: “Corpus Juris Canonici, Gregorii XIII. Pont. Max jussu editum: a Petro Pithoeo et Francisco fratre, Jurisconsultis, ad veteres codices manuscriptos restitutum, et notis illustratum.” Parisiis, 1687, 2 tom. fol. Of a more recent as well as more early date, there are many other editions which we cannot here enumerate; and we shall only mention another, which was published by a protestant professor: “Corpus Juris Canonici: Justus Henningius Boehmer, J. C. recensuit, cum codicibus veteribus manuscriptis aliisque editionibus contulit, variantes lectiones adjecit, notis illustravit.” Halae Magdeburg. 1747, 2 tom. 4to.

The Institutes of Jo. Paulus Lancelottus, divided into four books, are inserted in different editions of the Corpus; and this circumstance has led some individuals, superficially acquainted with the subject, to suppose that they form an essential part of the authorized collection. They are however the production of a private lawyer, and having never received the sanction of the pope, they possess no authority beyond that which belongs to the character of the author as an able interpreter of the canon law. This work was undertaken with the approbation of Paul IV.: fifteen years elapsed before its completion; and Lancelottus, having at length submitted it to the papal censors, and lingered two years in Rome, was compelled to abandon the hope of obtaining the sanction of his holiness Pius IV. The book was published in 1563, a few months before the dissolution of the council of Trent. The only favour which the author could obtain was that his Institutes might be added to the Corpus, but without any confirmation of their authority. They are sometimes inserted, and sometimes omitted; nor do they occur in that edition which we have already mentioned as the best. As they do not include the changes and modifications introduced by the council of Trent, they require the aid of a perpetual commentary. The Institutes of Lancelottus are closely modelled upon those of Justinian. His subject does not easily admit of any high degree of classical purity, but the work is at least written with much neatness and perspicuity. The notes of Doujat form a very important addition: they evidently proceed from a man of ability and learning, and are generally composed in a style of pregnant brevity.

The subsequent progress of the canon law, together with the more recent method of expounding it, must be learned from other writers. The most distinguished canonist of the last century was Dr Van Espen, professor of the canon law in the university of Louvain, whose works extend to five volumes in folio. His Jus Ecclesiasticum universum Mr Butler has described as “a work which, for depth and extent of research, clearness of method, and perspicuity of style, equals any work of jurisprudence which has issued from the press; but which, in some places, where the author’s dreary Jansenism prevails, must be read with disgust.”^[11. Butler’s Horae Juridicae subsecivae, p. 184. ] The life of the learned and conscientious author, it may be proper to state, has been elaborately written by Bellegarde.”^[12. Vie de Μ. Van Espen, Docteur ès Droits, et Professeur des Saints Canons dans l’Université de Louvain; où l’on trouve des éclaircissemens historiques sur tous les Ecrits ci-devant imprimés de ce Docteur. Louvain, 1767, 8vo. ] There are other two recent works on the canon law which we must recommend to the student’s notice. “Caroli Sebastiani Berardi Commentaria in Jus Ecclesiasticum universum.” Venetiis, 1789, 4 tom. 4to. “Joannis Devoti Institutionum Canonicarum libri IV.” Florentiae, 1816-7, 4 tom. 8vo. Neither of these is the earliest edition. Those who have any wish to ascertain how the canon law is now taught by the catholics of Germany, may consult the following works. “Mauri de Schenkl Institutiones Juris Ecclesiastici communis: editio emendata et valde adaucta a Josepho Scheill.” Landishuti in Bavaria, 1830, 2 tom. 8vo. “Fundamenta Juris Ecclesiastici Catholicorum: in usus scholastico conscripsit Jos. Anton. Sauter.” Rotwilae, 1825-6, 2 tom. 8vo. The canon law was ably illustrated by some of the German protestants, particularly by Ziegler, Thomasius, and Böhmer. Such was the reputation enjoyed by the last of these individuals, that difficult and intricate processes were frequently transmitted from Italy, to be decided by the law-faculty of the university of Halle, during the period when Böhmer was dean. Nor is this ' study neglected by the protestants of our own age. Dr Walter, professor of law in the university of Bonn, is the author of a work, published for the fourth time, under the title of “Lehrbuch des Kirchenrechts aller Christlichen Confessionem” Bonn, 1829, 8vo. And a similar work has more recently been published by Eichhorn of Göttingen, well known for his history of the German law.

While the papal power was yet in its meridian height, this system of jurisprudence could only claim the proper force of law within the papal dominions. It maintained a very powerful and direct influence in every other country which acknowledged the bishop of Rome’s supremacy; but its dictates were controlled by the legislative authority, and modified by the practice of the courts, in each of the countries where it found admission. Thus the canon law of France differed in many respects from that of Spain, and the canon law of England from that of Austria. “All the strength,” says Sir Matthew Hale, “that either the papal or imperial laws have obtained in this kingdom, is only because they have been received and admitted either by the consent of parliament, and so are part of the statute law’s of the kingdom, or else by immemorial usage and custom in some particular cases in courts, and no otherwise, and therefore so far as such laws are received and allowed here, so far they obtain, and no further; and the authority and force they have here is not founded on, or derived from themselves; for so they bind no more with us than our laws bind in Rome or Italy.”^[13. Hale’s Hist, of the Common Law of England, p. 27∙ ] These remarks, written in protestant times, were equally applicable during the times of popery.
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The influence of the canon law in countries which have long abjured the authority of the pope, renders it even there a study of occasional importance to lawyers. “So deep,” says Lord Stair, “hath this canon law been rooted, that even where the pope’s authority is rejected, yet consideration must be had to these laws, not only as those by which church benefices have been erected and ordered, but as likewise containing many equitable and profitable laws, which, because of their weighty matter, and their being once received, may more fitly be retained than rejected.”^[14. Stair’s Institutions of the Law of Scotland, b. i. tit. i. § 14. ] We cannot refrain from adding, that some knowledge of the canon law, at least of its history and external form, is of no small consequence to those who wish to understand the history and literature of the middle ages. This remark we shall endeavour to confirm by one or two examples. Winton, the venerable prior of Lochleven, after having mentioned the irregular manner in which Walter Danielstoun took possession of "the see of St χAndrews, subjoins this observation:
Yeit be this electioune
He dyd all ministratioune
In jurisdictioune spirituale,
And in all thingis temporale,
All that quhile, rycht as he
Had had lauchful autorite,
Pretendand ay for his resown
Nichil de electione. ^[15. Winton’s Cronykil of Scotland, vol. ii. p. 398. ]

This passage, which to most readers must appear sufficiently obscure, the very accurate and intelligent editor, Macpherson, has left without explanation or conjecture. It bears an allusion to the Decretales Gregorii IX. lib. i. tit. vi. cap. xliv. § 2. Nihil is the first word of tire chapter, and de electione denotes the subject of the title, or subdivision of the book. Danielstoun, whose election had not been confirmed by the pope, evidently relied on the authority of the subsequent passage: “Ita quod interim valde remoti, videlicet ultra Italiam constituti, si electi fuerint in concordia, dispensative propter necessitates ecclesiarum et utilitates, in spiritualibus et temporalibus administrent, sic tamen ut de rebus ecclesiasticis nihil penitus aliènent.”

Sir David Lindsay, another Scotish poet, makes the following allusion to the inordinate pretensions of the pope:
His style at lenth gif thow wald knaw,
Thow moste ga luke the cannon law:
Baith in the Śext and Clementene
His staitlie style thair may be sene^[16. Lindsay’s Works, vol. iii∙ p. 89. ]. 3

His editor, Mr George Chalmers, who was guilty of a radical error when he supposed himself to be a man of learning, has subjoined this curious annotation. “The allusion is to the works of Pomponius Sextus, the great jurist of the third century.” It is first to be remarked that Pomponius did not flourish in the third, but in the second century;^[17. Guil. Grotii Vitae Jurisconsultorum, p. 150. Bachii Hist. Jurisprudentiae Romanae, p. 477∙ ] but if this “great jurist,” of whom he speaks so familiarly, had actually written in the third century, how could he have illustrated the temporal power and splendour of the pope before Christianity was established in the Roman empire? The Sext to which Lindsay refers is manifestly the “Liber sextus Decretalium ;” and the other authority which he appropriately quotes are the Clementinae, or constitutions of Clement V. (x.)