V. CANON LAW

Side by side with this complex and colorful liturgy there developed the even more complex body of ecclesiastical legislation that regulated the conduct and decisions of a Church governing a wider and more varied realm than any empire of the time. Canon law—the “law of the rule” of the Church —was a slow accretion of old religious customs, scriptural passages, opinions of the Fathers, laws of Rome or the barbarians, the decrees of Church councils, and the decisions and opinions of the popes. Some parts of the Justinian Code were adapted to govern the conduct of the clergy; other parts were recast to accord with the views of the Church on marriage, divorce, and wills. Collections of ecclesiastical legislation were made in the sixth and eighth centuries in the West, and periodically by Byzantine emperors in the East. The laws of the Roman Church received their definitive medieval formulation by Gratian about 1148.

As a monk of Bologna, Gratian may have studied under Irnerius in the university there; certainly his digest shows a wide acquaintance with both Roman law and medieval philosophy. He called his book Concordia discordantium canonum—reconciliation of discordant regulations; later generations called it his Decretum. It drew into order and sequence the laws and customs, the conciliar and papal decrees, of the Church down to 1139 on her doctrine, ritual, organization, and administration, the maintenance of ecclesiastical property, the procedure and precedents of ecclesiastical courts, the regulation of monastic life, the contract of marriage, and the rules of bequest. The method of exposition may have stemmed from Abélard’s Sic et non, and had in turn some influence on Scholastic method after Gratian: it began with an authoritative proposition, quoted statements or precedents contradicting it, sought to resolve the contradiction, and added a commentary. Though the book was not accepted by the medieval Church as a final authority, it became, for the period it covered, the indispensable and almost sacred text. Gregory IX (1234), Boniface VIII (1294), and Clement V (1313) added supplements; these and some minor additions were published with Gratian’s Concordia in 1582 asCorpus iuris canonici, a body of canonical—Church-regulating—law comparable with the Corpus iuris civilis of Justinian.*

Indeed, the field covered by canon law was larger than that covered by any contemporary civil code. It embraced not merely the structure, dogmas, and operation of the Church, but rules for dealing with non-Christians in Christian lands; procedure in the investigation and suppression of heresy; the organization of crusades; the laws of marriage, legitimacy, dower, adultery, divorce, wills, burial, widows, and orphans; laws of oath, perjury, sacrilege, blasphemy, simony, libel, usury, and just price; regulations for schools and universities; the Truce of God and other means of limiting war and organizing peace; the conduct of episcopal and papal courts; the use of excommunication, anathema, and interdict; the administration of ecclesiastical penalties; the relations between civil and ecclesiastical courts, between state and Church. This vast body of legislation was held by the Church to be binding on all Christians, and she reserved the right to punish any infraction of it with a variety of physical or spiritual penalties, except that no ecclesiastical court was to pronounce a “judgment of blood”—i.e., condemn to capital punishment.

Usually, before the Inquisition, the Church relied on spiritual terrors. Minor excommunication excluded a Christian from the sacraments and ritual of the Church; any priest could pronounce this penalty; and to believers it meant everlasting hell if death should reach the offender before absolution came. A major excommunication (the only kind now used by the Church) could be pronounced only by councils or by prelates higher than a priest, and only upon persons within their jurisdiction. It removed the victim from all legal or spiritual association with the Christian community: he could not sue or inherit or do any valid act in law, but he could be sued; and no Christian was to eat or talk with him on pain of minor excommunication. When King Robert of France was excommunicated (998) for marrying his cousin he was abandoned by all his courtiers and nearly all his servants; two domestics who remained threw into the fire the victuals left by him at his meals, lest they be contaminated by them. In extreme cases the Church added to excommunication anathema—a curse armed and detailed with all the careful pleonasm of legal phraseology. As a last resort the pope could lay an interdict upon any part of Christendom—i.e., suspend all or most religious services. A people feeling the need of the sacraments, and fearful of death supervening upon unforgiven sins, sooner or later compelled the excommunicated individual to make his peace with the Church. Such interdicts were laid upon France in 998, Germany in 1102, England in 1208, Rome itself in 1155.

The excessive use of excommunication and interdict weakened their effectiveness after the eleventh century.105 Popes employed interdict, now and then, for political purposes, as when Innocent II threatened Pisa with interdict if it did not join the Tuscan League.106 Wholesale excommunications—e.g., for false returns of tithes due the Church—were so numerous that large sections of the Christian community were outlawed at once or without knowing it; and many who knew it ignored the curse or laughed it off.107Milan, Bologna, and Florence thrice received wholesale excommunications in the thirteenth and fourteenth centuries; Milan ignored the third edict for twenty-two years. Said Bishop Guillaume le Maire in 1311: “I have sometimes seen with my own eyes three or four hundred excommunicates in a single parish, and even seven hundred … who despised the Power of the Keys, and uttered blasphemous and scandalous words against the Church and her ministers.”108 Philip Augustus and Philip the Fair paid little attention to the decrees that excommunicated them.

Such occasional indifference marked the beginning of a decline in the authority of canon law over the laity of Europe. As the Church had taken so wide an area of human life under her rule when, in the first Christian millennium, secular powers had broken down, so in the thirteenth and fourteenth centuries, as secular government grew stronger, one phase after another of human affairs was recaptured by civil from canon law. The Church properly won in the matter of ecclesiastical appointments; in most other fields her authority began to decline—in education, marriage, morals, economy, and war. The states that had grown up under the protection, and by the permission, of the social order that she had created declared themselves of age, and began that long process of secularization which culminates today. But the work of the canonists, like most creative activity, was not lost. It prepared and trained the Church’s greatest statesmen; it shared in transmitting Roman law to the modern world; it raised the legal rights of widows and children, and established the principle of dower in the civil law of Western Europe;109 and it helped to shape the form and terms of Scholastic philosophy. Canon law was among the major achievements of the medieval mind.

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