No More Learning

One of the most remarkable reforms of this later period sprang from
the house of canons regular at Windesheim near Zwolle in Friesland. Its
founder, Florens Radewin, was a disciple of Gerhard Groot of Deventer;
he after 1374 had gathered round him a body of clerks who, without
formal monastic organisation, were called the Brethren of the Common
Life and are famous in the annals of Christian mysticism. After Gerhard's
death in 1384 his work was carried on by Radewin; and the foundation
of Windesheim shortly afterwards fulfilled his ultimate aims. In 1395
a congregation was formed consisting of Windesheim and three other
houses ; and statutes were promulgated in 1402. In this union the auto-
nomy of the constituent members was respected; the prior-superior of
Windesheim was merely a moderator, nor was the expedient of annual
or triennial elections of priors adopted. The congregation, however, held
tenaciously to uniformity of habit and customs, and was slow to admit
monasteries which did not readily conform to its rules. It was only by
a compromise on the question of habit that the monastery of Neuss, with
some allied houses, was united to Windesheim in 1430. Its influence,
however, worked wonders in the Low Countries and in Germany; and
one of its sons, Johann Busch, was among the most prominent reformers
of claustral discipline in his age. Of the difficulties with which he had to
contend and the stern determination with which he met them he has left
us a full record. In house after house of canons and nuns, in which the
substantial vows were neglected or wholly abandoned, he met with fear,
suspicion, or active hostility. His efforts, however, attended with not
a little danger, had at least a temporary success, and were undertaken
with the concurrence of diocesan authorities who recognised the importance
of the restoration of order in the cloister. The congregation of Windes-
heim maintained the high spiritual ideals of its founder ; in some of its
houses a Carthusian severity of life was pursued. Groenendael in Brabant,
of which the famous mystic Jan Ruysbroek had been prior in the fourteenth
century, joined its stricter observance in 1448; and the reputed author
of the Imitatio Christi was a canon of its monastery at Kempen.
The house of Jesus of Bethlehem at Syon, already mentioned, belonged
to an order, established in Sweden in the middle of the fourteenth century,
which was in part an Augustinian reform. The order of the Saviour,
founded by the Swedish princess St Bridget, was the last attempt at a
community of both sexes in one monastery. Side by side with a cloister
of sixty nuns there was another, in which thirteen priest-canons, four
deacons, and eight conversi lived. Thus, as in previous attempts of a
similar kind, the spiritual and temporal needs of the nuns were supplied
by a male convent; the abbess, as at Fontevrault, being the head of the
whole community. The order was approved by Urban V; and, although


## p. 695 (#741) ############################################

Fifteenth-century attempts at reform
695
its monasteries were not numerous, the magnificent endowment of Syon,
which at the suppression was among the most prosperous of English
houses, gives it a special importance.
No congregational movement was initiated by the Benedictines and
canons regular of England before the suppression; and the events of the
Reformation period put an end to the congregation of Bursteld in
Germany. In Spain, the gradual growth of a Benedictine congregation
proceeded from the priory of San Benito el Real at Valladolid, founded
by John I of Castile towards the close of the fourteenth century, which
attracted other monasteries into union with it. The congregation, with
its system of perpetual enclosure and frequent change of priors, was
recognised by Innocent VIII, and the Prior of Valladolid was made an
abbot by Alexander VI. If the Papacy throughout the fifteenth century
was more remarkable for political than for religious zeal, successive
Popes at any rate countenanced the restoration of order in monasteries.
Eugenius IV, in his early years one of the founders of the reformed house of
secular canons at San Giorgio in Alga, displayed an activity in furthering
reform which contrasted favourably with the divided efforts of the Council
of Basle to assert its authority against the Pope's. The zeal of Ambrogio
of Camaldoli, the faithful henchman of Eugenius, restored discipline in
his own order and was used to stir up the flagging energy of others. In
1444 Eugenius, acting upon information from France and Spain, urged
the Cistercian chapter-general to take measures to combat slackness. The
Cistercians had revised their constitutions in 1350 ; but growing disunion
was felt in their ranks, and in 1426 the forward spirits of the order in
Spain had formed a separate congregation under the headship of the
Abbot of Poblet, which was eventually recognised by one chapter-general
and disowned by the next. The arrest of decline was impossible; when,
in 1475, Sixtus IV revived the constitution of Benedict XII against the
promiscuous use of Hesh-meat, the power of dispensation permitted to
abbots led to the complete loss of that uniformity of practice which was
a substantive principle of the order. In 1485 came the decision of the
chapter-general to allow flesh-meat on three days a week in a separate
refectory as the general practice. This concession, however, was no avenue
to reform; and in 1487 Innocent VIII issued fresh constitutions for the
improvement of monasteries. Early in 1494 a number of French abbots
met at the college of the order in Paris and drew up articles of reform
which shew that its shortcomings were those habitual in monasteries of
other bodies. Monks roamed outside their houses in secular habits; within
the monastery they lived too comfortably; the gates were not closed
at the proper hours; there was unchecked communication with secular
persons, and women were allowed to enter the cloister. It is significant
of the strength of the opposition that these articles were quashed on
petition by the Parlement of Dijon, on the ground that they had not
been drawn up at Cîteaux, within its jurisdiction. The order was saved
CH. XX.


## p. 696 (#742) ############################################

696
The Reformation and monasticism
from extinction only by the perseverance of the Spanish congregation in
face of rebuffs, and by the activity of a group of new monasteries in the
Low Countries and western Germany. In 1497 a congregation was formed
in Tuscany and Lombardy; and, in the century following the Council of
Trent, the congregational system was extended to the whole order.
To the same period belongs the extension of the system to France;
for, although sporadic reforms had taken place there about the end of the
fifteenth century, like that of Chézal-Benoît in the diocese of Bourges,
recognised in 1516 as the head of a small congregation, the sufferings of
France during the long wars with England, and the civil strife of
Burgundians and Armagnacs, had vitally injured her religious life. The
growth, however, of later congregations is beyond the scope of this clfapter.
The Reformation, bringing complete extinction to the monasteries of
countries and provinces which rejected the papal authority, put an end
to the medieval monastic system. Monasticism, in the later centuries of
the Middle Ages, had lost touch with the main currents of progress ;
once the vital force at the back of ecclesiastical reform, it had now become
merely a department of ecclesiastical affairs which exercised little influence.
It had long lost the position in which it could control the Papacy and
command the reverence of the secular power. Such incidents as the sup-
pression of the Templars, the seizure of the alien priories in England,
the summary dissolution of small and inactive houses by papal bulls,
were evidences of monastic weakness and precedents for wholesale acts of
confiscation and destruction. While Henry VIII took advantage of his
breach with Rome to put an end to the English monasteries, the monas-
teries and military orders of Spain were equally at the mercy of the most
Catholic king, if it had been to his advantage to pursue the same line of
policy. The monastery, however, is an institution which in every age
meets a certain class of human needs. Though deprived of its old promi-
nence, it survived the troubles of the Reformation. Under the fostering
care of national congregations, it entered upon a new phase of existence;
and, if it was still subject to the inevitable alternation of lapse and revival,
such bodies as the congregation of Saint-Maur were still to exhibit a
pious fervour comparable to that of Cluny and Cîteaux in their best days,
and a learning which more than equalled the best traditions of Monte
Cassino and Saint-Victor. If the ordinary medieval monastery has been
somewhat overrated as a centre of learning and education, the later
achievements of Benedictinism in this direction have renewed the lustre
of the age when religious houses, in the midst of a chaotic society, were
chief among the formative influences of European civilisation.


## p. 697 (#743) ############################################

697
CHAPTER XXI.
ROMAN AND CANON LAW IN THE MIDDLE AGES.
I.
The age of the Crusades was also the age of the revival of legal
studies in Italy. These studies were devoted chiefly to two legal systems
closely related to each other not only in their historical origin and evo-
lution but also in their form and content. Neither the Civil Law nor the
Canon Law had originated in the medieval centuries immediately pre-
ceding the Italian legal renascence. Both of these systems were outgrowths
of the age of antiquity; both of them were integral parts of the civilisa-
tion which the Middle Ages inherited from the ancient world. The Civil
Law—the medieval Roman Law—was a system created by the ancient
Romans and transmitted by them to the peoples of the East and the
West; while the Canon Law, an adaptation and expansion of the
Roman Law to meet the purposes of the Christian Church, was in its
origins and earlier development not less a creation of the Roman legal
genius than the Civil Law itself.
At the time, however, when by slow processes of movement and change
ancient society was gradually transforming itself into medieval society,
these two bodies of law were in different stages of evolution. The Roman
Law had already passed the period of its maturity in the time of the
classical jurists and was in process of adaptation to meet the altered social
conditions of the world. Canon Law, on the other hand, was still in the
earlier stages of its growth. This difference between the state of Roman Law
and the state of Canon Law at the beginning of the medieval epoch—a
difference marked by the character of the sources and the literature of the
two systems and by the scope and manner of the application of these
legal materials to human affairs-determined in many ways the main
lines of their separate but related histories in the Middle Age. In the
case of the Roman Law the work of the medieval centuries was to adapt,
modify, and apply a system which the Romans of antiquity had already
perfected; while in the case of the Canon Law, on the other hand, the
work of the Middle Age was to develop, expand, and apply a system which
the ancient Roman world had only begun to evolve for the needs of the
youthful Church.
The main purpose of the present chapter is to sketch in outline the
history of these two systems of law throughout the medieval age. Two
preliminary matters must engage our attention, however, at the very
outset of the enquiry. It will be necessary, in the first place, to observe
CH. XXI.


## p. 698 (#744) ############################################

698
Origins in antiquity
the processes of the inner growth and the world-wide spread of the
Roman Law in the age of antiquity, for this earlier development lies at
the very basis of the history of the Roman system in the Middle Ages;
and, at the same time, we must gain some notion of the nature of the
Roman legal materials that were to influence the growth of law in
medieval times. A second subject of study, not less important than the
first, is the history of the origins of Canon Law in the age of antiquity,
and of its general development and its sources in the periods of the
Middle Age. Not until we understand these two preliminary matters can
we proceed to the study of our main subject, the history of the Roman
and Canon Laws in the Later Roman Empire of the East, in the Germanic
kingdoms of the West during the early medieval centuries, and in the
several national areas — Italy, Spain, France, Germany, and England-
of the later Middle Age. What were the processes whereby the Roman
and Canon Laws spread throughout the world—in the East as well as
in the West—during the medieval epoch? What was the result of the
contact of these laws with other legal systems ? Where and how were
the two Romanic systems studied ; and what was the influence of such
studies ? These are some of the historical problems with which we shall
be concerned.
We shall not, therefore, restrict our attention to the age of the
Crusades and the revival of juristic studies. To do so would result in the
loss of perspective and conceal from our gaze all but a small part of the
complete picture. The complete picture, however, must be at best but
a rough sketch, an impressionist design. The sources and the literature
of the history of Roman and Canon Law in ancient and medieval times
fill thousands of volumes. Only a few of these can be drawn upon for
the purposes of this chapter. Only a few of the rich and varied colours
of medieval legal life can be spread upon our canvas. All but the barest
outlines must be left undrawn.
Let us begin with the two preliminary subjects which are to furnish
us with the background of our picture.
II.
The history of the evolution of the Roman Law and of its world-wide
extension can be traced in unbroken continuity throughout twenty-
five centuries. In one sense the ancient history of this greatest of all
the legal systems of antiquity reaches its end when the decay of the
classical jurisprudence set in, as a part of the general decline of the
Roman world, about the middle of the third century after Christ. In
another sense, however, the ancient period of Roman legal history does
not finally terminate until the completion and promulgation of Justinian's
1 The bibliography to this chapter contains certain of the more important
sources and writings.


## p. 699 (#745) ############################################

Periods of Roman legal history
699
codification in the first part of the sixth century. The transition from
ancient to medieval times was in fact a slow process of centuries; and in
no respect is this more noticeable than in the history of the law. Legal
decay, adaptation, and transformation were at work in the regions of the
West long before the time of Justinian; and from his time onwards these
processes also became a marked feature of the legal history of the East.
In legal history the chronological boundaries of great eras cannot be
marked out with nicety and precision. Transition sometimes takes decades
or even centuries.
Let us for the moment fasten our attention upon the authenticated
evolution of Roman Law during the ten centuries before the death of
Justinian; for the first three hundred years of the city we are without
adequate historical evidence. Within this long period of a thousand
yearsthe customs of a small city-community were transformed into an
elaborate system of justice and extended by conquest to the ancient
world. During the epoch from the establishment of the Republic until
the subjugation of central and southern Italy, the composite of fas, ius,
and boni mores which characterised the ancient custom of the regal
period became the ius civile, the ius proprium civium Romanorum, and
was codified in the Lex XII Tabularum (B. C. 451). The latter half of
the Republican age was marked by the growth of the ius gentium and
the ius honorarium. Various influences affected both the form and the
substance of the law; and among them were provincial conquests, the
growth of commerce and the influx of foreigners, the institution of the
peregrin praetorship, the simplification of procedure, and the introduction
of new remedies under the Aebutian law. The spread of literature and
philosophy, as well as the decline of religion and morals, also influenced
the law. The growth of the law—which in this period was composed of ius
civile, ius gentium, and ius honorarium---owed little to legislation; but the
law's debt to custom, to the edicts of magistrates, and to professional juris-
prudence, was very great. The centuries of the Empire before the time
of Diocletian were the age of the ius naturale and the maturity of Roman
jurisprudence; while the age of codification stretched from Diocletian to
Justinian-an age when the Emperors were supreme as the sole legislators
and when Christianity, as the religion of the State, exerted a powerful
influence on legal growth. Within these chief periods of Roman legal
history, so briefly sketched, the law was not only altered in its form and
substance, but it was gradually diffused throughout all the provinces of
the Empire. The inner growth of the law as a system of justice and its
world-wide extension went hand in hand as aspects of one and the same
historical process. Certain features of this process demand our attention.
Both Roman policy and Roman Law recognised the personality of
1 Details will be found in the two volumes of Karlowa’s Römische Rechtsgeschichte.
A shorter account of Roman legal history is given by Puchta in the first volume of
his Institutionen.
CH. XXI.


## p. 700 (#746) ############################################

700
Ius civile and Ius gentium
1
law as a fundamental principle! By conquest Rome brought within her
dominion many non-Roman peoples in all parts of the ancient world,
peoples who at the time they became subject to Rome were already living
under their own national customs and laws. On the principle of the person-
ality of law the Roman ius civile applied only to Roman citizens; while
the peregrini, even under Roman rule, continued to live according to
their native systems of law. Thus, there existed under Roman political
sway many diverse legal systems, of which the Roman ius civile was only
one; and the Roman Law did not, therefore, dominate the entire territory
of the Roman State from the beginning. Indeed, it was only gradually,
by a long process of development, that the Roman system displaced native
legal institutions in the provinces ; and even in the end it did not every-
where supersede them. In many parts of the Empire native systems
persisted and survived Roman rule; they contributed their share to the
development of law in the Middle Ages.
The existence within the Roman domain of many diverse bodies of
law, the ius civile of the Romans and the laws of the peregrini-raised
the problem as to which of these several national laws should be applied
to the relations of Romans with peregrins and of peregrins of one nation-
ality with those of another. The Romans solved this problem, not by
the development of a system similar to modern international private law,
or the conflict of laws, but by the evolution of a third body of law
different from either one of the national laws of the two parties. This
third body of law was known as the ius gentium. Gaius states that the
ius gentium was the law common to all peoples; and the words of Gaius
find their place in due time in the Digest. But this theory of the nature
of the ius gentium does not correspond with the facts, for in truth the
ius gentium was a branch or part of the Roman Law itself: it was that
part of the Roman system which had been evolved, both by the edicts of
the Roman magistrates possessing jurisdiction over peregrins and by the
work of the Roman jurists, to regulate the inter-relations of persons of
different nationality. The principles of the ius gentium were drawn in
part from the Roman ius civile; in part they were new principles, distinct
from Roman ius civile, derived in large measure from the national laws
of the peregrins, but shaped, both in form and spirit, in accordance with
Roman ideas of justice. The ius gentium embodied the newer legal ideas,
and at many points it was in conflict with the principles of the ancient
ius civile. Applied in the first instance to the cases where there was a
collision of two national laws, the ius gentium was later invoked in cases
involving two members of the same nation and thus in cases between two
Roman citizens; and in fact the ius gentium was used extensively in the
settlement of disputes between Roman citizens. The evolution of the ius
gentium as a new and integral part of the Roman system was thus a
1 See Kipp, Geschichte der Quellen des römischen Rechts, 3rd edn, $$ 2, 3.
2 Gai. 1, 1 = D. 1, 1, 9.


## p. 701 (#747) ############################################

Spread of Roman Law in ancient times
701
powerful factor in the spread of Roman Law and in the process of the
unification of law throughout the Roman dominion.
Another factor of no less importance was the gradual extension of
Roman citizenship to the peregrini; for each extension of citizenship
meant the extension of the application of the Roman ius civile. This
development reached its climax in the beginning of the third century,
when Caracalla, in his famous Edict (212), abolished the distinction be-
tween citizens and peregrini by granting full citizenship (civitas) to all
in the Roman world'. In theory at least, the main result of the Edict
was that all (omnes, Trávtes) in the Empire were now amenable both to
the ius civile and the ius gentium. In fact, however, the general appli-
cation of the ius civile throughout the Empire was never fully carried out
in practice. Even after the Edict the distinction between citizens and
peregrini was not completely obliterated; for there still continued to be
inhabitants of the Empire who were not citizens? There is evidence,
furthermore, that in various parts of the Empire the old national laws
of the peregrins survived not only Caracalla's Edict but also the
Justinianean legislation. For the persistence of those laws in certain of
the eastern provinces of the Empire the Syrian-Roman Law Books is
ample authority.
The history of the evolution and spread of Roman Law in the ancient
world is in divers ways enlightening to the student of the medieval history
of that system. Not only does it give him clear ideas as to the nature of
the system, its component parts, its rules and principles, its sources and
its juristic literature; but it also shews him that, extensive as was the
spread of the Roman Law, it never completely obliterated all the other
legal systems of antiquity. Although an account of the concrete rules
and principles of Roman Law, as they are to be found in Roman legal
sources, more particularly in the Theodosian Code and in Justinian's law-
books, does not fall within the compass of our present survey", we must
nevertheless take pains to observe two main results of the evolution and
1 D. 1, 5, 17: Ulpianus libro vicensimo secundo ad edictum. In orbe Romano qui
sunt ex constitutione imperatoris Antonini cives Romani effecti sunt. Scholars are
in general agreement that Ulpian's statement of the effect of Caracalla's Edict (the
text of which has not been preserved) is too wide. Kipp, op. cit. $3, remarks: Es
ist unzweifelhaft, dass damit zuviel gesagt ist. On the effect of the Edict, see Girard,
Manuel élémentaire de Droit Romain, 3rd edn, p. 114; Buckland, Roman Law from
Augustus to Justinian, 1921, pp. 99-101, where references to the ancient and modern
literature of the subject will be found. For a fuller discussion of the subject, see
Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiser-
reichs, Chap. vi.
2 Buckland, op. cit. p. 99: “[lt] is clear that even under Justinian, barbarian
inhabitants of the confines of the empire, some originating there, some immigrant,
and some settled by compulsion, were not treated as cives. ”
3 For a brief account of this remarkable law-book and of recent researches con-
cerning it, see Kipp, op. cit. 23.
4 See supra, Vol. 11, Chapter 111.
CH. XXI.


## p. 702 (#748) ############################################

702
Survival of non-Roman laws
spread of the Roman system during the periods of ancient history, for
these results materially affect the medieval development.
Let it be noted, in the first place, that the world-wide diffusion of the
Roman Law in antiquity partly prepared the way for its further extension
in the Middle Age. The Roman Law penetrated far and wide, in the East
and in the West, and gave the ancient world a legal unity such as it had
never before enjoyed; and yet this legal unity was of the kind which left
in force, even though altered, many local laws and customs of non-Roman
origin. Medieval times began, therefore, with the Roman Law in posses-
sion of only parts, though extensive parts, of the world-wide legal field.
In the East the Greek Law had never been wholly absorbed or obliterated
by Roman Law in ancient times; it lived on in many regions under
Roman rule? In the period of the Byzantine Empire it continued to
come into contact with the Roman Law, more particularly the Justinianean
law, and it helped to fashion the Graeco-Roman Law of the East. Like-
wise in the West the Middle Ages began with Roman Law in only partial
occupation of the field. The Western provinces of the ancient Empire
had been Romanised in varying degrees of intensity; the Romanisation
of Italy differed widely from that of Britain. The differences between the
legal histories of Western regions in medieval and modern times are due
in no small measure to the differences in the extent of Romanisation in
antiquity. The historian of European Law must constantly take account
of the fact that the planting of Roman culture, including culture in law,
had been intensive in some regions, partial or slight in others. In no
extensive region of the West was Roman Law the sole law at the
beginning of the Middle Age. Throughout vast areas Germanic racial
customs held dominance. Nor were Germanic customs the only rivals
of the Roman Law as the world passed into the medieval epoch. In
various regions Celtic customs had survived the changes effected by the
spread of Roman power and, later, by the migrations of the Germanic
tribes. Indigenous customs other than Celtic also lived on during the
periods of Roman and Germanic movement and pressure. Here and there
Greek Law, planted in southern Europe during the days of Hellenic coloni-
sation, still persisted.
The second main result of the ancient development of Roman Law,
in so far as that development affects medieval law, was the accumulation
of a mass of legal sources. The history of Roman Law in the Middle Age
is, to a large extent, the history of the world-wide diffusion of the manu-
scripts of these legal texts and their employment by legislators, judges,
practitioners, and jurists in the work of adapting Roman Law to medieval
social conditions. The facts of this vast process are so complex, so inti-
mately interwoven in the network of medieval events, movements, and
tendencies, so bound up with diverse social, political, and economic
conditions in the many parts of the world, that they are bewildering even
1 The establishment of this fact is one of the valuable results of Mitteis' researches.


## p. 703 (#749) ############################################

Legal characteristics of the Middle Ages
703
to one who is trained to single out the main and determining lines
of historical development. In truth, to write the medieval history of
Roman Law in all its fulness would mean the writing of the history of
medieval civilisation—the life of Europe ever moving, ever changing, in the
course of the centuries. Not forgetting this wider aspect of Roman legal
history in the Middle Age, let us observe that, so far as the diffusion of the
texts of the Roman Law is concerned, there are two features of the complex
historical process which illumine our path and guide us to understanding.
The first point which we have to note and remember is that the medieval
world is not one vast community under a single system of law and govern-
ment; it is a world made up of many communities, differing one from
another in race, in language, in social and legal institutions. Within the
Byzantine Empire there is an appreciable degree of political and legal
unity; and, at times, there is also political and legal unity of a sort in the
West. But the dominant note in the political and legal history of the
Middle Age is particularism, diversity, disunion. The system of the
personality of law in the early Middle Age means particularism and
diversity; and, with the growth of feudalism and the idea that law is
territorial, as distinct from personal, regional diversities take the place of
racial diversities in law. As a result, there is at first no tendency to uni-
formity in respect of Roman Law throughout medieval Europe as a whole.
A limited legal uniformity is at length introduced by the Frankish
Capitularies; but, on the whole, uniformity in law is more marked in
modern than in medieval times, and even in modern times it is but a partial
uniformity based in large measure on common origins. Since the time of
the ancient Roman Empire, Europe has never been one State with one law.
Even in the period of the medieval Empire and the medieval Church it
was composed of many States, each with its own separate legal system'.
There is, secondly, the point to be remembered that during the
Middle Ages each political unit adopts and adapts in ways of its own the
texts of the Roman Law that come to its hands. There is no power
from above which imposes certain texts over the whole of Europe? .
Some of the texts which are adopted and adapted by the separate units
are pre-Justinianean, while some of them are parts of Justinian's codifica-
tion itself. In the early Middle Age in the West the pre-Justinianean texts
have at first a preference: it is only gradually that the Justinianean materials
acquire a dominanceover the earlier ones.
Nor is it surprising to find that of
all the texts of the Roman Law the institutional treatises and systematic
1 The legal map of medieval Europe is not unlike the legal map of the United
States of America to-day; for the States of the Federal Union--nearly fifty in number
-all possess their own separate legal systems. Save in Louisiana, where the Civil
Law prevails, uniformity in law throughout the Union is based in large measure on
the reception of the Common Law of England by the separate States.
2 The effect of the Frankish Capitularies should, however, be noted. See pp.
727-8, infra.
CH, XXI.


## p. 704 (#750) ############################################

704
Diffusion of Roman legal texts
1
1
codifications have the greatest influence upon the spread of Roman legal
rules and ideas in the Middle Age; for these materials are easier to grasp
and to embody in legislation and the practice of courts than are the texts
of a morelimited and special character. Furthermore, they are more compre-
hensive and they thus meet more completely the social needs of the time.
Of the pre-Justinianean texts there were three which exerted a far-
reaching influence in spreading Roman Law: the two private compilations
or codes, known as the Codex Gregorianus (about A. D. 300) and the
Codex Hermogenianus (probably before A. D. 323), and, notably, the great
Code of the Emperor, the Codex Theodosianus (A. D. 438). Although the
Gregorian and Hermogenian Codes were private works, they were never-
theless regarded as authoritative down to the time of Justinian, and they
were not superseded by the far more important Code of Theodosius; for
while the Codex Theodosianus did not embody materials before Constantine,
the Gregorian Code reached back to the time of Hadrian'. In the East
the Codex Theodosianus was superseded by the codification of Justinian;
but in the West it long influenced legal growth in the Germanic kingdoms,
large parts of it being embodied in Alaric's Breviary and other legal
sources. In the East, Justinian's codification-gradually moulded, especi-
ally in the Basilics, to meet Eastern needs-was of paramount importance
from Justinian's time down to the fall of the Byzantine Empire and even
later. In the West, the pre-Justinianean sources, particularly the Theodo-
sian Code, long continued to play a greater rôle than the texts of Justi-
nian. With the progress of time, however, the Institutes, Digest, Code,
and Novels of Justinian spread everywhere throughout the regions of the
West. The revival of juristic studies in Italy was by far the most im-
portant of all the factors making for this far-reaching influence of the
Justinianean law. Not only were the law-books of Justinian the subject of
study and instruction in the law schools; they were incorporated in the
law itself by the practice of the courts and by the acts of the legislators.
Ultimately they became the very essence of the medieval Roman Law of
Western countries—the Corpus iuris civilis.
Other aspects of the medieval history of Roman Law will be considered
in later parts of this chapter. For the moment let us turn our attention
to the second preliminary subject of our study—the history of the origins
of Canon Law in antiquity and of its general development and sources in
the periods of the Middle Age.
III.
While the Canon Law is the law of the Christian Church, a law
created and enforced by organs of the Church, it embodies nevertheless
rules derived from the Old Testament and thus from times long before
the birth of Christ? ; and, in general, the Canon Law no less than the Civil
1 Buckland, op. cit. pp. 38-40.
2 Canones et Decreta sacrosancti oecumenici Concilii Tridentini (Sessio Quarta :


## p. 705 (#751) ############################################

Differences between Civil and Canon Law
705
Law is a bequest from antiquity. Not only do the earlier stages in the
growth of the Canon Law fall within the period from the birth of Christ
to the end of the age of antiquity, but the Canon Law itself is in large
measure an off-shoot from the main stem of Roman legal growth, deriving
from the older system many of its rules and principles. In its origins and
in much of its later development the Canon Law is as much the product
of Roman civilisation as the Civil Law itself.
From the point of view of medieval history there are, however, many
points of difference between the Civil Law and the Canon Law. Not only
is the Civil Law primarily the secular law of the State, while the Canon
Law is primarily the law of the Christian Church; the difference between
the stages of growth reached by the two laws at the close of ancient times
also affects materially their medieval courses of evolution. As we have
seen, the Middle Age adopts and adapts a system of Civil Law which
antiquity had perfected, while it takes over and slowly brings to perfec-
tion a system of Canon Law which antiquity had only begun to develop:
the Canon Law is the younger system. This difference leaves its mark on
the history of the sources of the two systems during the medieval epoch.
It accounts for the fact that the historian of Canon Law, as distinct from
the historian of Civil Law, must spend much of his time in tracing the
evolution of a growing and expanding system and in describing and
explaining the successive additions to the sources of that system before,
during, and after the formation of the Corpus iuris canonici.
The fortunes of the Church followed the fortunes of the Empire,
within the frontiers of which it had its origin and earlier growth. The
division of the Empire into its western and eastern halves resulted in a
corresponding division of the Church. This process of ecclesiastical
division was practically complete by the end of the sixth century; but
only in 1054 was the schism of Eastern and Western Churches finally
consummated'. The eastern and the western halves of the Church
thus went their separate ways as the Greek Catholic Church and
the Roman Catholic Church; and this splitting of the one Catholic
Church into two necessarily resulted in the division of the Canon Law
into two bodies of rules and principles, the Eastern or Greek Canon Law
and the Western or Latin Canon Law. These two bodies of Canon Law
possess common elements; they are closely related to each other in
various ways; but yet they are distinct one from the other in many other
ways and their histories must be separately traced. The early Greek
Canon Law consists only of Eastern conciliar canons; it admits no purely
Latin elements; and it cannot, therefore, lay claim to universality.
decretum de canonicis scripturis): . . . omnes libros tam veteris quam novi testamenti,
cum utriusque unus Deus sit auctor . . . pari pietatis affectu ac reverentia suscipit et
veneratur. According to Gratian only the moral rules of the Old Testament form
ius divinum. See Decretum, prima pars, distinctio VI, c. II; Friedberg, Kirchenrecht,
4th edn, $ 31. Compare Galante, Elementi di Diritto Ecclesiastico, pp. 15–17.
1 See supra, Vol. iv, Chapter 1x.
C. MED, H. VOL. V. CH. XXI.
45


## p. 706 (#752) ############################################

706
Eastern and Western Canon Law
Early Latin Canon Law is itself composed largely of Greek materials;
but to this Greek nucleus Latin elements, chiefly the canons of local and
ecumenical Councils and the papal decretals, are continually added'. The
medieval history of both of these canonical systems falls within the
compass of our study; but it is the Western Law which must chiefly
engage our attention.
In respect of the history of Western Law let us note three main
points. In the first place, the history of the Canon Law passes through
the same stages of development as does the Church itself. Two of the
principal stages we may designate the conciliar and the papal. Corre-
sponding to the constitutional history of the Church the canons of the
earlier centuries are chiefly the work of the Councils, whereas in the later
centuries the canons are for the most part the product of the legislative
power gradually acquired by the Popes and they are embodied in the
decretals. In the second place, the term Canon Law has a wider and
a narrower meaning; and it acquires its narrower significance only after
the law itself has developed into a system and been made the object of
study. Whereas in its broader signification Canon Law is the sum or
aggregate of the rules which have been recognised or evolved by the
organs of the Church for the governance of the ecclesiastical body, in its
narrower meaning it is the law contained in a definite and closed group
of law-books known as the Corpus iuris canonici? . Thirdly, let us note
that jurists sometimes use the term ius ecclesiasticum as equivalent in
meaning to ius canonicum. This usage leads at times to confusion; for the
term ecclesiastical law is also employed to designate a branch of the law
of the State as distinct from the law enforced by the Church itself. The
kavóves, regulae, were very early distinguished from the secular laws, the
vóuoi, leges; and hence the Canon Law is sometimes referred to as the
canones, sacri canones.
Turning to the history of the sources of Canon Law, more especially
the sources of the law enforced by the Roman Church, let us observe, in
the first place, that they consist of three main kinds: the Holy
Scripture, traditions and customs, and the legislation of Councils and
Popes. In dealing with these sources, modern canonists draw a chrono-
logical and theoretical line of distinction between the ancient and
the new law. The ius antiquum is the law developed and enforced
prior to the time of Gratian; while the ius novum is the law em-
bodied in Gratian's Decretum and the other parts of the Corpus iuris
canonici. To distinguish it from the ius antiquum and the ius novum,
the law established by the Council of Trent and subsequent papal consti-
See supra, Vol. 1, pp. 181–2.
? Hinschius, Geschichte und Quellen des kanonischen Rechts (in Holtzendorff,
Encyklopädie der Rechtswissenschaft, 5th edn. 1890, pp. 187-8).
3 This distinction is drawn by Boudinhon. Tardif, Histoire des Sources du Droit
Canonique, p. 5, says, however, that “le droit ancien est le droit antérieur au concile
de Trent; le droit nouveau dérive de ce concile. ”


## p. 707 (#753) ############################################

Ius antiquum and ius novum
707
tutions is known to canonists as the recent law, the ius novissimum.
Canonists also draw a distinction between the ius scriptum, the written
laws which emanate from Councils and Popes and which are embodied in
the collections of sources, and the ius non scriptum, or unwritten law, a
body of traditional and customary rules based in large measure on natural
equity. A further distinction should also be remembered. The common
law, the ius commune, is the general law intended to regulate the whole
ecclesiastical body; while special or local law is the law which, by deroga-
tion from or addition to the common law, is concerned with certain
categories of persons or certain regions. The function of legislating for
the whole Church belongs only to the episcopate, assembled in general or
ecumenical Council, and to the Pope as its chief: local councils or in-
dividual bishops or prelates have authority to make only special or local
laws. Most of the canons which constitute the ius antiquum, including
such of those canons as are embodied in Gratian's Decretum, emanate
nevertheless from local councils or individual bishops, not from the
supreme authorities of the Church. These canons have gradually come
to form parts of the ius commune by reason of the fact that canonical collec-
tions which include these local canons as their principal element have been
adopted generally in all parts of Christendom as of binding authority.
Both the ius antiquum and the ius novum fall within the compass of
our present survey, and of each one of these divisions of the law a few
words must needs be said. Let us glance therefore, first of all, at the
history of the sources of the ius antiquum, the law before the time of
Gratian and the formation of the Corpus iuris canonici.
In the first centuries of the Christian era, before the close of the
period of persecutions, the life of the Christian communities was governed
by the Scriptures and by ecclesiastical tradition, the unwritten kavov or
regula. The various Churches early came to have their own traditions
and usages, and these they obeyed as their unwritten customary law;
apart from the Scriptures the early Church law was not embodied in any
written code. Not until the time of Constantine and the other early
Christian Emperors was it possible for the ecclesiastical legislative power
to act freely and to create a body of written law. The new position of
the Church in its relation to the State formed the constitutional basis of
a new movement which led to the establishment of a written law of the
Church somewhat after the pattern of the Roman Civil Law. The organs
which expressed the mind of the federated Christian communities in the
matter of law, no less than in that of creed, were the early ecclesiastical
Councils of the fourth century; and the codes formed during the decade
305-315 by the Councils of Elvira, Ancyra, Neocaesarea, and Arles are
the earliest of the conciliar materials preserved in the later body of the
Canon Law. These codes possessed, however, no binding authority out-
side the localities in which they were issued. The opportunity to issue a
code for the whole Christian Church finally presented itself at the
CH. XXI.
45_2


## p. 708 (#754) ############################################

708
Eastern collections of canons
Ecumenical Council of Nicaea (325): and the issue of such a code of law
was a part of Constantine's policy of bringing about the unity of the
Church and its close alliance with the Empire. The Nicene canons, in
which were incorporated some of the canons of the Eastern Council of
Ancyra and of the Western Council of Arles, constitute the earliest code
of Canon Law for the whole Church. In the course of time many
other
codes possessing no connexion with the Nicene Council were placed by
collectors of canons in the Nicene code and were thus given its authority.
Particularly in the West the Nicene code acquired a position of high
authority in the realm of discipline. Innocent of Rome in the cause of
St Chrysostom writes that “other canon than the Nicene canons the
Roman Church receives not. ”ı
The compilation of collections of canons began in the East. The
elaboration of these collections, with certain additions drawn from the
West, such as canons in the Latin collection of Dionysius Exiguus, resulted
ultimately in the formation of the official collection of the Greek Church
as it was recognised and sanctioned by the Council in Trullo (692). As
defined by the Council, the Greek collection consists of several classes of
documents: firstly, the eighty-five Apostolic Canons ; secondly, the
canons of the Councils of Nicaea, Ancyra, Neocaesarea, Gangra, Antioch,
Laodicea, Constantinople (381), Ephesus, Chalcedon, Sardica, Constan-
tinople (394), Carthage (the one of 419, according to Dionysius); thirdly,
the canonical letters of several great bishops, such as Dionysius of Alex-
andria, Peter of Alexandria (the Martyr), Athanasius, Basil, Gregory of
Nyssa, Amphilochus of Iconium, and Gennadius of Constantinople. To
this official collection were added at a later time the twenty-two canons
of the Second Council of Nicaea (787). As thus completed, the official
canonical collection of the Greek Church had several medieval commen-
tators, such as Photius (883), Zonaras (1120), and Balsamon (1170); but
it has remained unchanged down to the present day. As pointed out by
Boudinhon, the later growth of the Eastern Canon Law—that is, after
the Council of Nicaea (787)—was due to the work of the Byzantine
Emperors before the fall of the Empire in 1453.
In its fifth-century state the Greek collection was translated and
introduced into the West. The one hundred and two canons elaborated
by the Council in Trullo (692) did not become part of Western Law
until a much later time, and then upon the initiative of Pope John VIII
(872-881). Meanwhile local collections of canons were made in the West
from the fifth century onwards. Within the sphere of the see of
Constantinople a tendency towards the unification of ecclesiastical law
manifested itself as early as the fifth century; but in the West collections
were purely local until in the eighth and ninth centuries, as the result of
passing on the several collections from one region to another, there were
the beginnings of a process of unification.
1 See further, supra, Vol. 1, pp. 13, 176-182.


## p. 709 (#755) ############################################

Western collections of canons
709
The most ancient, and in some respects the most homogeneous and
noteworthy, of all these Western local collections is that of the Church
of Africa. By the time of the Vandal invasion the African collection had
already acquired special importance as an official code; but our knowledge
of it is now derived chiefly from incomplete and confused accounts in
the collection of Dionysius Exiguus and the Spanish collection known as
the Hispana. About the middle of the ninth century Fulgentius Fenandus,
a Carthaginian deacon, made a methodical arrangement of the African
collection in the order of subjects; and this is now known as the
Breviatio canonum.
The Roman Church in its early history governed itself largely by its
own traditions and customs and by papal letters called decretals. Of non-
Roman sources of canonical law it officially recognised, before the sixth
century, only the canons of Nicaea and Sardica. At the beginning of the
sixth century, however, the Roman Church adopted the double collection
-composed of Latin translations of Greek canons and thirty-nine
decretals of the Popes from Siricius (384-398) to Anastasius II (496-498)
--made by the Scythian monk Dionysius Exiguus; and this collection,
its second part receiving successive additions as further decretals appeared,
remained the only official body of Canon Law for the Roman Church until
the reforms of the eleventh century. Pope Hadrian I in 774 gave this
double collection of Dionysius to the future Emperor Charlemagne as the
canonical book of the Roman Church; and hence it is known as the
Dionysio-Hadriana. This collection, officially received by the Frankish
Church at the Council of Aix-la-Chapelle in 802, and thereafter recognised
and quoted as the liber canonum, became the code of Canon Law of almost
the whole of the Western Church. In the hands of Pope Hadrian I, and
of Charlemagne and the Franks, the work of Dionysius was thus a
powerful factor in the growth of a unified Western Canon Law.
Gaul was exceptional in not possessing a code of local Canon Law. The
Church had not been centralised, as in many other regions of Europe,
round some principal see; and the political territorial divisions had not
been stable. In the fifth and sixth centuries only the Church of Arles
constituted a canonical centre of any real influence over its surrounding
region. The main collection of canonical sources—known from its seven-
teenth-century editor as the “Quesnel Collection "--contained valuable
materials, chiefly Eastern and African canons and papal letters, but no
canons of the local Gallic councils. When it was introduced into Gaul,
the Dionysio-Hadriana did not, therefore, displace any local and
generally-accepted collection. Unifying tendencies in the development of
Canon Law thus came from without and not within the Gallic Church. In
this process the alliance between the Carolingian power and the Papacy,
and the acceptance of the Dionysio-Hadriana, or liber canonum, marked
an important stage.
The Spanish Church differed fundamentally from the Gallic; for it
CH. XXI.


## p. 710 (#756) ############################################

710
The False Decretals
$
had been effectively centralised round the see of Toledo. As a result the
Spanish Church possessed an important collection of Spanish Canon Law,
the Hispana', dating from the early part of the eighth century, which,
although not strictly speaking an official collection, was everywhere re-
ceived. The Hispana includes in its first part the canons of Greek,
African, Gallic, and Spanish Councils, the canons of Spanish Councils
forming the local section of the collection ; while the decretals of the
Popes are in the second part, as in the case of the collection of Dionysius.
The Hispana emerged into a position of great importance in the period
beginning in the middle of the ninth century, for it then served as the
basis of the False Decretals.
Although the Churches of the British Isles remained longer than most
other Churches outside the centralising movement and the tendency to a
unification of Western Canon Law, they contributed nevertheless to the
growth of the law as finally embodied in the Corpus iuris canonici. This
contribution consists fundamentally of two things: firstly, the collections
of penitentials, including those of Theodore of Canterbury (ob. 690),
the Venerable Bede (ob. 735), and Egbert of York (732–767); and,
secondly, the Irish collection, dating apparently from the eighth century,
which introduced the practice among canonists of quoting passages from
the Scriptures and the writings of the Fathers. Apart from these two
groups of materials, the sources of British local Canon Law were not
known to Gratian's predecessors nor to Gratian himself; and they did
not, therefore, influence the form and content of the Decretum.
About the middle of the ninth century there appeared the famous
collection known as the “False Decretals. " Round this collection there
has arisen a vast controversial literature which it is impossible, within
the limits of the present chapter, to summarise or appraise? . Certain it
is that the collection is based on the genuine Spanish collection known
as the Hispana or Isidoriana. The author, whether he was the mysterious
Benedictus Levita, to whom the False Capitularies, a collection closely
akin to the False Decretals, have been attributed, or whether he was
some other person, assumed the name of Isidore, Bishop of Seville,
who had been credited with the greater part of the Hispana or Isidoriana
collection: and hence the False Decretals are sometimes known as the
Pseudo-Isidore. Whoever the author may have been, it is now agreed on
all sides that the collection had its origin within the Frankish Empire.
1 The collection is also known as the Isidoriana, because it has been attributed
(but without reason) to Isidore of Seville.
? But see the works cited by Hinschius in his Geschichte und Quellen des kano-
nischen Rechts (Holtzendorff's Encyklopädie der Rechtswissenschaft, 5th edn. 1890,
p. 193). A list of older works will be found in Phillips and Crouzet, Du Droit
Ecclésiastique dans ses Sources, Paris, 1852, pp. 42, 43.
3 It was at first thought that the False Decretals originated in the province of
Mayence. It is now held by Brissaud and other scholars that the False Decretals
must have been written in France, probably at Rheims. See Continental Legal History
Series (ed. by J. H. Wigmore and others), Vol. 1, (1912), p. 710. Several recent
1


## p. 711 (#757) ############################################

The False Decretals
711
The collection contains as many canons of councils as papal decretals;
and the decretals in it are not all forgeries. It is best described as an
amplification of the genuine Hispana by the interpolation of spurious
decretals. Of the three parts of the collection, the first is completely
spurious. It contains, after introductory matter, seventy spurious letters
attributed to Popes before the Council of Nicaea (325), all of these letters
being the forgery of the false Isidore except two spurious letters of
Clement which were already in circulation. The second part of the
collection contains the canons of Councils. Most of these are genuine, the
few forgeries, including the famous Donation of Constantine, being
already known. The third part is a continuation of the series of
decretals—which in the first part of the collection had ended with the
date of the Nicene Council-down to St Gregory the Great (ob. 604);
but it contains also one letter of Gregory II (715-731). The authentic
decretals of the Popes begin only with Siricius (385), and these the
Pseudo-Isidore includes in his collection; but he adds also spurious
decretals both for the time before and the time after 385. Most of the
forged decretals are not composed entirely of freshly fabricated material.
The author draws upon the Liber Pontificalis and ecclesiastical writings
for some of his matter. Thus, the genuine Councils and decretals, and
even this genuine matter falsely put into the mouths of the Popes, served
to cloak the skilfully fabricated stuff of the forger and to give it credence.
Blended thus of genuine and spurious matter, the collection rapidly
circulated throughout the West and long passed as a valuable source of
Canon Law. All the later collections drew materials, genuine and false
indiscriminately, from the Pseudo-Isidore? Not until the fifteenth
century were suspicions aroused as to the true character of the collection :
Cardinal Nicholas of Cusa (ob. 1464) and Juan Torquemada (ob. 1468)
expressed in no uncertain terms their doubts as to its authenticity. In
the sixteenth century Erasmus, as well as Dumoulin (ob. 1568) and
Le Conte (ob. 1577), the two editors of Gratian's Decretum, decisively re-
fused to accept the Pseudo-Isidore.