"Institutiones Lancelotti."
We can mention here only the chief editions of the _Corpus_. The council
of Trent, as we know, ordered that the official books of the Roman
Church--sacred books, liturgical books, &c.--should be issued in
official and more correct editions; the compilations of ecclesiastical
law were also revised. The commission of the _Correctores romani_,[32]
established about 1563 by Pius IV., ended its work under Gregory XIII
and the official edition, containing the text and the glosses, appeared
at Rome in 1582. Richter's edition (2 vols., Leipzig, 1839) remains
valuable, but has been greatly surpassed by that of E. Friedberg
(Leipzig, 1879-1881). Many editions contain also the _Institutiones_
composed at the command of Paul IV. (1555-1559) by Giovanni Paolo
Lancelotti, a professor of Bologna, on the model of the Institutes of
Justinian. The work has merits, but has never been officially approved.
Though the collections of canon law were to receive no more additions,
the source of the laws was not dried up; decisions of councils and popes
continued to appear; but there was no attempt made to collect them.
Canonists obtained the recent texts as they could. Moreover, it was an
epoch of trouble: the great Schism of the West, the profound divisions
which were its result, the abuses which were to issue in the
Reformation, were conditions little favourable for a reorganization of
the ecclesiastical laws. Thus we are brought to the third period.
3. _After the Council of Trent._--The numerous important decrees made by
the council of Trent, in the second part of its sessions, called _de
reformatione_, are the starting-point of the canon law in its latest
stage, _jus novissimum_; it is this which is still in force in the Roman
Church. It has in no way undermined the official status of the _Corpus
juris_; but it has completed the legislation of the latter in many
important respects, and in some cases reformed it.
Final state of the law.
The law during this period, as abstracted from the texts and
compilations, suggests the following remarks. The laws are formulated in
general terms, and the decisions in particular cases relegated to the
sphere of jurisprudence; and the canonists have definitely lost the
function which fell to them in the 12th and 13th centuries: they receive
the law on authority and no longer have to deduce it from the texts. The
legislative power is powerfully centralized in the hands of the pope:
since the reforming decrees of the council of Trent it is the pontifical
constitutions alone which have made the common law; the ecumenical
council, doubtless, has not lost its power, but none were held until
that of the Vatican (1870), and this latter was unable to occupy itself
with matters of discipline. Hence the separation, increasingly marked,
between the common law and the local laws, which cannot derogate from
the common law except by concession of the Holy See, or by right of a
lawfully authorized custom. This centralization, in its turn, has
greatly increased the tendency towards unity and uniformity, which have
reached in the present practice of the Roman Church a degree never known
before, and considered by some to be excessive.
Dispersion of the texts.
If we now consider the laws in themselves, we shall find that the
dispersed condition of the legislative documents has not been modified
since the closure of the _Corpus juris_; on the contrary the enormous
number of pontifical constitutions, and of decrees emanating from the
Roman Congregations, has greatly aggravated the situation; moreover, the
attempts which have been made to resume the interrupted process of
codification have entirely failed. As regards the texts, the canon law
of to-day is in a very similar position to that of English law, which
gave rise to J.S. Mill's saying: "All ages of English history have given
one another rendezvous in English law; their several products may be
seen all together, not interfused, but heaped one upon another, as many
different ages of the earth may be read in some perpendicular section of
its surface."[33] Nothing has been abrogated, except in so far as this
has been implicitly demanded by subsequent laws. From this result
insoluble controversies and serious uncertainties, both in the study and
practice of the law; and, finally, it has become impossible for most
people to have a first-hand knowledge of the actual laws.
Decrees of the Council of Trent.
Pontifical constitutions.
Decrees of the Curia.
For this third period, the most important and most considerable of the
canonical texts is the body of disciplinary decrees of the council of
Trent (1545-1563). In consequence of the prohibition issued by Pius IV.,
they have not been published separately from the dogmatic texts and
other acts, and have not been glossed;[34] but their official
interpretation has been reserved by the popes to the "Congregation of
the cardinal interpreters of the Council of Trent," whose decisions form
a vast collection of jurisprudence. Next in importance come the
pontifical constitutions, which are collected together in the
_Bullarium_; but this is a collection of private authority, if we except
the _Bullarium_ of Benedict XIV., officially published by him in 1747;
further, the _Bullarium_ is a compilation arranged in chronological
order, and its dimensions make it rather unwieldy. In the third place
come the decrees of the Roman Congregations, which have the force of
law. Several of these organs of the papal authority have published
official collections, in which more place is devoted to jurisprudence
than to laws; several others have only private compilations, or even
none at all, among others the most important, viz. the Holy Office (see
CURIA ROMANA). The resulting confusion and uncertainty may be imagined.
"Liber septimus" of P. Mathieu.
of Clement VIII.
These drawbacks were felt a long time back, and to this feeling we owe
two attempts at a supplementary codification which were made in the 16th
century, both of which are known under the name of _Liber Septimus_. The
first was of private origin, and had as its author Pierre Mathieu, the
Lyons jurist (1563-1621); it appeared in 1590 at Lyons. It is a
continuation of the _Extravagantes communes_, and includes a selection
of papal constitutions, from Sixtus IV. (1471-1484) to Sixtus V.
(1585-1590) inclusive, with the addition of a few earlier documents. It
follows the order of the decretals. This collection has been of some
service, and appears as an appendix in many editions of the _Corpus
juris_; the chief reason for its failure is that it has no official
sanction. The second attempt was official, but it came to nothing. It
was connected with the movement of reform and revision which followed
the council of Trent. Immediately after the publication of the official
edition of the _Corpus juris_, Gregory XIII. appointed a committee of
cardinals charged with the task of drawing up a _Liber septimus_. Sixtus
V. hurried on its execution, which was rapidly proceeded with, mainly
owing to Cardinal Pinelli, who submitted the draft of it to Clement
VIII. The pope had this Liber VII. printed as a basis for further
researches; but after long deliberations the volume was suppressed, and
the idea of a fresh codification was abandoned. The collection included
the decrees of the council of Trent, and a number of pontifical
constitutions, arranged in the order of the titles of the decretals.[35]
But even had it been promulgated, it is doubtful whether it would have
improved the situation. It would merely have added another collection to
the previous ones, which were already too voluminous, without resulting
in any useful abrogations.
Demand for codification.
Decision of Pius X.
Method.
4. _The Future Codification._--Neither Clement VIII. nor, at a later
date, Benedict XIV., could have dreamt of the radical reform at present
in course of execution. Instead of accumulating the texts of the laws in
successive collections, it is proposed entirely to recast the system of
editing them. This codification in a series of short articles was
suggested by the example of the French codes, the history of which
during the 19th century is well known. From all quarters the Catholic
episcopate had submitted to the Vatican council petitions in this sense.
"It is absolutely clear," said some French bishops, "and has for a long
time past been universally acknowledged and asserted, that a revision
and reform of the canon law is necessary and most urgent. As matters now
stand, in consequence of the many and grave changes in human affairs and
in society, many laws have become useless, others difficult or
impossible to obey. With regard to a great number of canons, it is a
matter of dispute whether they are still in force or are abrogated.
Finally, in the course of so many centuries, the number of
ecclesiastical laws has increased to such an extent, and these laws have
accumulated in such immense collections, that in a certain sense we can
well say: We are crushed beneath the laws, _obruimur legibus_. Hence
arise infinite and inextricable difficulties which obstruct the study of
canon law; an immense field for controversy and litigation; a thousand
perplexities of conscience; and finally contempt for the laws."[36] We
know how the Vatican council had to separate without approaching the
question of canonical reform; but this general desire for a recasting of
the ecclesiastical code was taken up again on the initiative of Rome. On
the 19th of March 1904, Pius X. published a _Motu proprio, "de ecclesiae
legibus in unum redigendis_." After briefly reviewing the present
condition of the canonical texts and collections, he pointed out its
inconvenience, referred to the many requests from the episcopate, and
decreed the preparation of a general code of canon law. This immense
undertaking involved the codification of the entire canon law, drawing
it up in a clear, short and precise form, and introducing any expedient
modifications and reforms. For this purpose the pope appointed a
commission of cardinals, of which he himself became president; also a
commission of "consultors" resident at Rome, which asked for a certain
amount of assistance from canonists at various universities and
seminaries. Further, the assembled bishops of each province were invited
to give their opinion as to the points in which they considered the
canon law might profitably be modified or abrogated. Two consultors had
the duty of separately drawing up a preliminary plan for each title,
these projects being twice submitted for the deliberation of the
commission (or sub-commission) of consultors, the version adopted by
them being next submitted to the commission of cardinals, and the whole
finally sent up for the papal sanction. These commissions started work
at the end of 1904.
Local law.
_Local Law._--The common law of the Roman Church cannot by itself
uniformly regulate all the churches of the different nations; each of
them has its own local law, which we must briefly mention here. In
theory, this law has as its author the local ecclesiastical authorities,
councils or bishops; but this is true only for laws and regulations
which are in harmony with the common law, merely completing or defining
it. But if it is a question of derogating from the common law, the
authority of the Holy See must intervene to legalize these derogations.
This intervention takes the form either of "indults," i.e. graceful
concessions granted at the request of the episcopate, or of special
approbation of conciliary resolutions. It would, however, be impossible
to mention any compilations containing only local law. Whether in the
case of national or provincial councils, or of diocesan synods, the
chief object of the decrees is to reinforce, define or apply the law;
the measures which constitute a derogation have only a small place in
them. It is, then, only in a limited sense that we can see a local canon
law in the councils of the various regional churches. Having made this
remark, we must distinguish between the countries which are still
subject to the system of concordats and other countries.
Countries subject to concordats.
In the case of the former, the local law is chiefly founded on the
concordat (q.v.), including the derogations and privileges resulting
from it. The chief thing to note is the existence, for these countries,
of a civil-ecclesiastical law, that is to say, a body of regulations
made by the civil authority, with the consent, more or less explicit, of
the Church, about ecclesiastical matters, other than spiritual; these
dispositions are chiefly concerned with the nomination or confirmation
by the state of ecclesiastics to the most important benefices, and with
the administration of the property of the Church; sometimes also with
questions of jurisdiction, both civil and criminal, concerning the
persons or property of the Church. It is plain that the agreements under
the concordats have a certain action upon a number of points in the
canonical laws; and all these points go to constitute the local
concordatory law. This is the case for Austria, Spain, Portugal,
Bavaria, the Prussian Rhine provinces, Alsace, Belgium, and, in America,
Peru. Up to 1905 it was also the case in France, where the ancient local
customs now continue, pending the reorganization of the Church without
the concordat.
We do not imply that in other countries the Church can always find
exemption from legislative measures imposed upon her by the civil
authorities, for example, in Italy, Prussia and Russia; but here it is a
situation _de facto_ rather than _de jure_, which the Church tolerates
for the sake of convenience; and these regulations only form part of the
local canon law in a very irregular sense.
Other Countries.
In other countries the episcopal assemblies lay down the local law.
England has its council of Westminster (1852), the United States their
plenary councils of Baltimore (1852, 1866, 1884), without mentioning the
diocesan synods; and the whole of Latin America is ruled by the special
law of its plenary council, held at Rome in 1899. The same is the case
with the Eastern Churches united to the Holy See; following the example
of the famous council of Lebanon for the Maronites, held in 1730, and
that of Zamosc for the Ruthenians, in 1720, these churches, at the
suggestion of Leo XIII., have drawn up in plenary assembly their own
local law: the Syrians at Sciarfa in 1888; the Ruthenians at Leopol in
1891; and a little later, the Copts. The framing of local law will
certainly be more clear and more easy when the general code of canon law
has been published.
BIBLIOGRAPHY.--For the texts and collections: the dissertations of Dom
Coustant, _De antiquis canonum collectionibus, deque variis
epistolarum Rom. Pont, editionibus_ (Paris, 1721); P. de Marca, _De
veteribus collectionibus canonum_ (Paris, 1681); the brothers Peter
and Jerome Ballerini, _De antiquis tum editis tum ineditis
collectionibus et collectoribus canonum ad Gratianum usque_ (Venice,
1757). This is the best of all these works; it is reproduced in Migne,
_P.L._, vol. 56; C. Seb. Berardi, _De variis sacrorum canonum
collectionibus ante Gratianum_ (Turin, 1752); P. Quesnel, _De codice
canonum Ecclesiae Romanae; de variis fidei libellis in antiquo Rom.
Eccl. codice contentis; de primo usu codicis canonum Dionysii Exigui
in Gallicanis regionibus_ (Paris, 1675; with the critical notes of the
brothers Ballerini, also in Migne, _loc. cit._); and finally, Florent,
_De methodo atque auctoritate collectionis Gratiani_ (Paris, 1679),
and Antonio Agustin, archbishop of Tarragona, _De emendatione
Gratiani_ (Tarragona, 1586); these have all been brought together in
Gallandi, _De vetustis canonum collectionibus dissertationum sylloge_
(Venice, 1778). The most complete work on the texts up to the 9th
century is F. Maassen, _Geschichte der Quellen und der Literatur des
canonischen Rechts im Abendlande_, vol. i. (all that has yet appeared,
Gratz, 1870). For the period between the False Decretals and Gratian,
there is no work of this sort, but the materials have been put
together and published in part by M.P. Fournier. After Gratian, the
classic work is Schulte, _Geschichte der Quellen und Literatur des
canonischen Rechts von Gratian bis auf die Gegenwart_ (3 vols.,
Stuttgart, 1875 et. seq.). Manuals for the study of the sources: Ph.
Schneider, _Die Lehre von den Kirchenrechtsquellen_ (Regensburg,
1892); F. Laurin, _Introductio in Corpus juris canonici_ (Freiburg,
1889); Tardif, _Histoire des sources du droit canonique_ (Paris,
1887). Most of the German manuals on canon law devote considerable
space to the history of the sources: see Phillips, vol. ii (3rd ed.,
1857; French translation by the abbe Crouzet); Vering, 3rd ed.
(Freiburg, 1893); Schulte, _Das katholische Kirchenrecht_, pt. i.
(Giessen, 1860), &c. For the Greek Church: Pitra, _Juris ecclesiae
graecorum historia et monumenta_ (Rome, 1864); the later history of
the Greek law: Zachariae, _Historiae juris graecorum delineatio_
(Heidelberg, 1839); Mortreuil, _Histoire du droit byzantin_ (Paris,
1843-1846); the recent texts in the _Conciliorum Collectio lacensis_,
vol. ii.; _Acta et decreta s. conciliorum, quae ab episcopis rituum
orientalium ab a. 1682 usque ad a. 1789 indeque ad a. 1869 sunt
celebrata_ (Freiburg, 1876). Short manual of Institutions: Jos.
Papp-Szilagyi, _Enchiridion juris eccl. orientalis catholicae_
(Magno-Varadini, 1862). For recent canonical texts: Richter's edition
of the council of Trent (Leipzig, 1863); the _Collectanea S.C. de
Propaganda Fide_ (Rome, 1893); the _Bullarium_, a collection of papal
acts and constitutions; the editions of Cocquelines (28 vols., Rome,
1733-1756), and of Cherubini (19 vols., Luxemburg, 1727-1758), which
are better than the enlarged reprint of Turin, which was unfinished
(it goes up to 1730). The official edition of the _Bullarium_ of
Benedict XIV. (4 vols., Rome, 1754-1758) has been reprinted several
times and is of great importance; the continuation of the _Bullarium_
since Benedict XIV. has been published by Barberi, _Bullarii romani
continuatio_, in 20 vols., going up to the fourth year of Gregory XVI.
Every year, since 1854, has been printed a collection of pontifical
acts, _Acta Pii IX., Acta Leonis XIII._, &c., which are the
equivalents of the _Bullarium_. Dictionaries: Durand de Maillane,
_Dictionnaire canonique_ (Paris, 1786), re-edited by Andre under the
title, _Cours alphabetique et methodique de droit canonique_, and by
Wagner (Paris, 1894), has Gallican tendencies; Ferraris, _Prompta
bibliotheca canonica_, &c., several new and enlarged editions; the
best is that of Migne (1866), completed by Father Bucceroni, _Ferraris
Supplementum_ (Rome, 1899). Articles on canon law in Wetzer und
Welte's _Kirchenlexicon_ (2nd ed., Freiburg, 1880 et seq.); Hauck,
_Realencyklopadie fur prot. Theologie und Kirche_ (2nd ed., Leipzig,
1877-1888); Vacant-Mangenot's _Dictionnaire de theologie catholique_,
in course of publication (Paris, 1899 et seq.). Periodicals: _Analecta
juris pontificii_, ed. by Mgr. Chaillot (1863-1889); _Analecta
ecclesiastica_ (since 1893); _Acta Sanctae sedis_ (since 1865);
_Archiv fur kathol. Kirchenrecht_ (since 1857); _Le Canoniste
contemporain_ (since 1878). (A. Bo.*)
_Canon Law in England and in the Anglican Communion_.--There were
matters in which the local English and Irish canon law, even before the
16th century, differed from that obtaining on the western part of the
European continent. Thus (1), it has been said that--whereas the
continental canon law recognized a quadripartite division of Church
revenue of common right between (a) the bishop, (b) the clergy, (c) the
poor, (d) the fabric--the English law maintained a tripartite
division--(a) clergy, (b) the poor, (c) the fabric. Lord Selborne
(_Ancient Facts and Fictions concerning Churches and Tithes_, 2nd ed.,
1892) denies that there was any division of tithe in England. (2) By the
general canon law the burden of repairing the nave, as well as the
chancel of the church, was upon the parson or rector who collected the
whole tithe. But the custom of England transferred this burden to the
parishioners, and some particular local customs (as in the city of
London) placed even the burden of repair of the chancel on them. To meet
this burden church rates were levied. (3) A church polluted by the
shedding of blood, as by suicide or murder, was reconsecrated on the
continent. In England the custom was (and is) simply to "reconcile." (4)
A much more important difference, if the decision of the Irish court of
exchequer chamber upheld in the House of Lords, where the peers were
equally divided, correctly stated the English Canon law (_Reg._ v.
_Millis_, 10 Cl. & Fin., 534) was in regard to the essentials of
marriage. By the general Western canon law before the council of Trent,
the parties themselves were said to be the "ministers of the Sacrament"
in the case of holy matrimony. The declared consent of the parties to
take each other there and then constituted at once (although
irregularly) holy matrimony. The presence of priest or witnesses was not
necessary. In _Reg._ v. _Millis_, however, it was held that in England
it was always otherwise and that here the presence of a priest was
necessary. High authorities, however, have doubted the historical
accuracy of this decision. (5) The addition of houses of priests to the
provincial synods seems peculiar to England and Ireland.
The historical position of the general canon law of the Catholic Church
in the English provinces has, since the separation from Rome, been the
subject of much consideration by English lawyers and ecclesiastics. The
view taken by the king's courts, and acquiesced in by the ecclesiastical
courts, since Henry VIII., is that the Church of England was always an
independent national church, subject indeed to the general principles of
the _jus commune ecclesiasticum_ (Whitlock J. in _Ever_ v. _Owen_,
Godbolt's Reports, 432), but unbound by any particular constitutions of
council or pope; unless those constitutions had been "received" here by
English councils, or so recognized by English courts (secular or
spiritual) as to become part of the ecclesiastical custom of the realm.
Foreign canon law never bound (so it has been taught) _proprio vigore_.
The sources of English ecclesiastical law (purely ecclesiastical) were
therefore (1) the principles of the _jus commune ecclesiasticum_; (2)
foreign particular constitutions received here, as just explained; (3)
the constitutions and canons of English synods (cf. _Phill. Ecc. Law_,
part i. ch. iv., and authorities there cited).
1. On the existence of this _jus commune ecclesiasticum_ and that the
Church of England, in whatever sense independent, takes it over until
she repeals it, see _Escott_ v. _Mastin_, 4 Moo. _P.C.C._ 119. Lord
Brougham, in delivering the judgment, speaks of the "common law
prevailing for 1400 years over Christian Europe," and (p. 137) says that
"nothing but express enactment can abrogate the common law of all
Christendom before the Reformation of the Anglican Church."
2. As to foreign particular constitutions in England, there are a great
number of them, of which it has been and is admitted, that they have
currency in England. However papal in their origin, post-Reformation
lawyers have regarded them as valid, unless they can be shown to be
contrary to the king's prerogative, or to the common or statute law of
the realm. To this doctrine express statutory authority (as the events
have happened) has been given by 25 Hen. VIII. c. 19, sect. 7. A
striking example of the doctrine is furnished by the decree of Innocent
III. in the Fourth Lateran Council against pluralities. This decree was
enforced in the court of Arches against a pluralist clerk in 1848
(_Burder_ v. _Mavor_, I Roberts, 614). The courts of common law from
Lord Coke's time downwards have recognized this "constitution of the
pope" (as the queen's bench called it in 1598). The exchequer chamber,
in 1837, declared it to have "become part of the common law of the land"
(_Alstan_ v. _Atlay, 7 A._ and _E._ 289).
3. The particular constitutions of English synods are numerous and cover
a large field. At least in legal theory, the only distinction between
pre-Reformation and post-Reformation constitutions is in favour of the
former--so long as they do not contravene the royal prerogative or the
law of the land (see 25 Hen. VIII. c. 19). The most important are
collected together and digested (so far as regards England) in
Lyndwood's _Provinciale_, a work which remains of great authority in
English courts. These constitutions are again divided into two classes:
(a) provincial constitutions promulgated by provincial synods, usually
in the name of the presiding archbishop or bishop; and (b) decrees of
papal legates, Otho in 1236 and Othobon (Ottobuono de' Fieschi,
afterwards Pope Adrian V.) in 1269. Canons passed since 25 Hen. VIII. c.
19 have not the parliamentary confirmation which that act has been held
to give to previous canons, and do not necessarily bind the laity,
although made under the king's licence and ratified by him. This
doctrine laid down by Lord Hardwicke in _Middleton_ v. _Croft_ (2
_Stra_. 1056) was approved in 1860 in _Marshall_ v. _Bp. of Exeter_
(L.R. 3 H.L. 17). Nevertheless, there are many provisions in these
post-Reformation canons which are declaratory of the ancient usage and
law of the Church, and the law which they thus record is binding on the
laity. The chief body of English post-Reformation canon law is to be
found in the canons of 1603, amended in 1865 and 1888. The canons of
1640 are apparently upon the same footing as those of 1603;
notwithstanding objections made at the time that they were void because
convocation continued to sit after the dissolution of parliament. The
opinion of all the judges taken at the time was in favour of the
legality of this procedure. 13 Car. ii. c. 12 simply provided that these
canons should not be given statutory force by the operation of that act.
In addition to the enactment of canons (strictly so-called) the English
provincial synods since the Henrician changes have legislated--in 1570
by the enactment of the Thirty-Nine Articles, in 1661 by approving the
present Book of Common Prayer, and in 1873 by approving shorter forms of
matins and evensong.
The distinction between pre-Henrician and post-Henrician procedure lies
in the requirement, since 25 Hen. VIII., of the royal licence and
confirmation. Apparently diocesan synods may still enact valid canons
without the king's authority; but these bodies are not now called.
The prevailing legal view of the position of the Church of England in
regard to canon law has been just stated, and that is the view taken by
judicial authority for the past three centuries. On the other hand, it
is suggested by, e.g., the late Professor Maitland, that it was not, in
fact, the view taken here in the later middle ages--that in those ages
there was no theory that "reception" here was necessary to validate
papal decrees. It is said by this school of legal historians that, from
the Conquest down to Henry VIII., the Church of England was regarded by
churchmen not as in any sense as separate entity, but as two provinces
of the extra-territorial, super-national Catholic Church, and that the
pope at this period was contemplated as the _princeps_ of this Catholic
Church, whose edicts bound everywhere, as those of Augustus had bound in
the Roman empire.
It is right that this view should be stated, but it is not that of the
writer of this article.
As to _Ireland_, in a national synod of the four Irish provinces held at
Dublin before the four archbishops, in 1634, a hundred canons were
promulgated with the royal licence, containing much matter not dealt
with by similar constitutions in England. In 1711, some further canons
were promulgated (with royal licence) by another national synod. Some
forms of special prayer were appended to these canons.
In 1869 the Irish Church Act (32 and 33 Vict. c. 42) "disestablished"
the Irish Church, sect. 19 repealed any act of parliament, law or custom
whereby the bishops, clergy or laity of the said church were prohibited
from holding synods or electing representatives thereto for the purpose
of making rules for the well-being and ordering of the said church, and
enacted that no such law, &c., should hinder the said bishops, clergy
and laity, by such representatives, lay and clerical, and so elected as
they shall appoint, from meeting in general synod or convention and in
such general synod or convention forming constitutions and providing for
future representation of the members of the church in diocesan synods,
general convention or otherwise. The Church of Ireland, so set free,
created for herself new legislative authorities, unknown to the old
canon law, viz. mixed synods of clergy and laity, and a system of
representation by election, unknown to primitive or medieval times.
Similar changes had, however, been introduced during the preceding
century in some parts of the Anglican communion outside the British
Isles (see _infra_). Sect. 20 of the same statute kept alive the old
ecclesiastical law of Ireland by way of assumed contract (cf.
ECCLESIASTICAL JURISDICTION).
Under the provisions of this statute, the "archbishops and bishops of
the ancient Apostolic and Catholic Church of Ireland" (so they describe
themselves), together with representatives of the clergy and laity,
assembled in 1870, in "General Convention," to "provide for the
regulation" of that church. This Convention declared that a General
Synod of the archbishops and bishops, with representatives of the clergy
and laity, should have chief legislative power in the Irish Church, with
such administrative power as might be necessary and consistent with the
church's episcopal constitution. This General Synod was to consist of
two Houses--the House of Bishops and the House of Lay and Clerical
Representatives. No question was to be carried unless there were in its
favour a majority of the clerical and lay representatives, voting either
conjointly or by orders, and also a majority of the bishops, should they
desire to vote. This General Synod was given full power to alter or
amend canons, or to repeal them, or to enact new ones. For any
alteration or amendment of "articles, doctrines, rites or rubrics," a
two-thirds majority of each order of the representative house was
required and a year's delay for consultation of the diocesan synods.
Provisions were made as to lay representation in the diocesan synods.
The Convention also enacted some canons and a statute in regard to
ecclesiastical tribunals (see ECCLESIASTICAL JURISDICTION). It expressly
provided that its own legislation might be repealed or amended by future
general synods.
In 1871 the General Synod attempted to codify its canon law in
forty-eight canons which, "and none other," were to have force and
effect as the canons of the Church of Ireland. Since 1871 the General
Synod has, from time to time, put forth other canons.
The post-Reformation history of canon law in the Anglican communion in
_Scotland_ has differed from the story of that law in the last four
centuries in Ireland. After the legislation under William and Mary
disestablishing episcopacy in Scotland and subjecting its professors to
civil penalties, little attention was given to canon law for many years.
Synods of bishops at Edinburgh in 1724 and 1731 dealt with some disputed
questions of ritual and ceremonial. In 1743 an assembly of five bishops
enacted sixteen canons. A "primus" was to be chosen indifferently from
the bishops, but to have no other powers than those of convoking and
presiding over synods. He was to hold office only during pleasure of the
other bishops. Bishops were to be elected by the presbyters of the
district. Such election was subject to the confirmation of the majority
of the bishops. In 1811, a "Code of Canons" was enacted by a "General
Ecclesiastical Synod," consisting of the bishops, the deans (viz.
presbyters appointed by the bishops in each diocese to defend the
interests of the presbyters and now for the first time given "decisive"
voice in synods) and certain clerical representatives from the
"districts" or dioceses. Future synods, called for the purpose of
altering the code, were to consist of two chambers. The first was to be
composed of the bishops; the second to consist of the "deans" and
clerical representatives. No law or canon was to be enacted or
abrogated, save by the consent of both chambers. These canons were
revised in 1828, 1829 and 1838. The code of this last year created
diocesan synods, to be held annually and to consist of the bishop, dean
and all instituted clergy of the diocese. It also provided for the
annual meeting of a purely episcopal synod, which was to receive appeals
from either clergy or laity. In 1862-1863, another General Synod further
revised and amended the Code of Canons. This revised code enabled the
bishop to appoint a learned and discreet layman to act as his
chancellor, to advise him in legal matters and be his assessor at
diocesan synods. Assistant curates and mission priests were, under
certain restrictions, given seats in diocesan synods. Male communicants
were also permitted to be present at such synods, with a deliberative
but not "decisive" voice; unless in special circumstances the bishop
excluded them. Canon 46 provides that "if any question shall arise as to
the interpretation of this Code of Canons or of any part thereof, the
general principles of canon law shall be alone deemed applicable
thereto." This provision was reenacted in Canon 47 of 1876. Canon 51 of
1890, however, weakens this provision. It enacts that: "The preceding
canons shall in all cases be construed in accordance with the principles
of the civil law of Scotland. Nevertheless, it shall be lawful, in cases
of dispute or difficulty concerning the interpretation of these canons,
to appeal to any generally recognized principles of canon law." The
canons of 1862-1863 also provided for a lay share in the election of
bishops. In 1890 the 32nd canon enacted that the "General Synod" should
thereafter be called the Provincial Synod.
The canon law in Scotland before the 16th century was generally that of
the continent of Europe. The usages of the church were similar to those
in France, and had not the insular character of those in England and
Ireland. The canon law regulating marriage, legitimacy and succession
was taken over by the Scottish secular courts (see ECCLESIASTICAL
JURISDICTION) and survived as part of the common law of the land almost
unimpaired. Thus, the courts recognize marriages by _verba de
praesenti_ or by _verba de futuro cum copula_--in this last matter
following a decree of Gregory IX.--and also legitimation _per subsequens
matrimonium_. But though one of the _fontes juris Scotiae_, canon law
never was of itself authoritative in Scotland. In the canons of her
national provincial councils (at whose yearly meetings representatives
attended on behalf of the king) that country possessed a canon law of
her own, which was recognized by the parliament and the popes, and
enforced in the courts of law. Much of it, no doubt, was borrowed from
the _Corpus juris canonici_ and the English provincial canons. But the
portions so adopted derived their authority from the Scottish Church.
The general canon law, unless where it has been acknowledged by act of
parliament, or a decision of the courts, or sanctioned by the canons of
a provincial council, is only received in Scotland according to equity
and expediency.
The "Protestant Episcopal Church _in the United States_" is the
organization of the Anglican Communion in the American colonies before
the separation. This communion was subject to "all the laws of the
Church of England applicable to its situation" (Murray Hoffman, _A
Treatise on the Law of the Protestant Episcopal Church_, New York, 1850,
p. 17). This body of law the Protestant Episcopal Church of the United
States took over (_op. cit._ p. 41 et seq.; F. Vinton, _A Manual
Commentary on the General Canon Law and the Constitution of the
Protestant Episcopal Church_, New York, 1870, p. 16 et seq.). Much,
however, of the English post-Reformation canonical legislation was not
applicable to the United States, because of different circumstances, as
e.g. a very large portion of the canons of 1603 (Vinton, p. 32). In
1789, a General Convention, consisting of clerical and lay deputies as
well as of bishops, assumed for itself and provided for its successors
supreme legislative power. The concurrence of both "orders," clerical
and lay, was required for the validity of any vote. Since 1853 a lay
deputy to the Convention has been required to be a communicant (_ib._ p.
102). Upon the American bishops numbering more than three, they became a
separate "House" from the "Convention." The House of Bishops was given a
right to propose measures to the "House of Deputies," and to negative
acts of the House of Deputies, provided they complied with certain
forms. Similar "constitutions" providing for representation of the laity
have been adopted by the different dioceses (Hoffman, _op. cit._ p. 184
et seq.). Deacons are also admitted to a deciding voice in every diocese
but New Jersey, where they may speak but not vote. A great body of
legislation has been put forth by these bodies during the past century.
Since 1870, at least, the "Church of the Province of _South Africa_" has
secured autonomy while yet remaining a part of the Anglican Communion.
By its constitution of that year the English Church in South Africa
adopts the laws and usages of the Church of England, as far as they are
applicable to an unestablished church, accepts the three creeds, the
Thirty-Nine Articles, the Book of Common Prayer, the decisions of the
undisputed general councils, the Authorized English Version of the
Scriptures, disclaims the right of altering any of these standards of
faith and doctrine, except in agreement with such alterations as may be
adopted by a general synod of the Anglican Communion. But in
interpreting these standards of faith and doctrine, the Church of the
Province of South Africa is not bound by decisions other than those of
its own Church courts, or such court as the Provincial Synod may
recognize as a tribunal of appeal. The Provincial Synod is the
legislative authority subject to a general synod of the Anglican
Communion, provided such latter synod include representatives from the
Church of South Africa. The Provincial Synod consists of (1) the House
of Bishops, (2) the House of the Clergy, (3) the House of the Laity. No
resolution can be passed which is not accepted by all three orders.
Bishops are elected by the clergy with the assent of lay
representatives, subject to the confirmation of the metropolitan and
comprovincial bishops. The metropolitan is to be consecrated in England
by the archbishop of Canterbury. He now bears the title of archbishop.
All bishops are to enter into a contract to obey and maintain the
constitution and canons of the province. Canon 18 of the Code of 1870
recognizes the offices of catechist, reader and sub-deacon (Wirgman,
_The English Church and People in South Africa_, p. 223 et seq.).
In the West Indies, Canada, Australia and New Zealand, provincial and
diocesan synods or conventions have been formed on one or other of the
types above mentioned and have enacted canons. (W. G. F. P.)