OUTLINE — LECTURE 8

Main outlines of the development of canon law and church institutions:

Ivo of Chartres, c.1040–1115—three canonical collections are attributed to him: Tripartita, Panormia, and Decretum. The prologue to the Decretum is of fundamental importance.

c.1140—Probable date of the completion of Gratian’s Concordance of Discordant Canons, later known as the Decreta, still later as the Decretum, at Bologna

1159–1181—Pope Alexander III (controversy with Frederick I (Barbarosa) (emperor, 1152–1190; controversy with Henry II of England (1154–1189) leading to the martyrdom of Thomas Becket (archbishop of Canterbury, 1162–1170); Third Lateran Council (1179); development of the institution of papal judges delegate; large number of decretal letters)

1198–1216—Pope Innocent III (high point of temporal power of the papacy; England becomes a papal fief (1213); Fourth Lateran Council (1215); foundation of Franciscan and Dominican orders; decretal letters continue unabated)

1227–1241—Pope Gregory IX (relaxes pressure on Frederick II (emperor, 1211–1250); Decretals published (1234); further production of decretal letters declines)

c.1250—Establishment of organized ecclesiastical courts in virtually every Western diocese

1243–1254—Pope Innocent IV (deposes Frederick II at Council of Lyons (1245); with Frederick’s death in 1250 northern Italian Guelfs and Angevins (followers of Charles of Anjou, brother of Louis IX of France (1226–1270), and king of Naples and Sicily, 1268–1282) drive imperial power from Italy)

1294–1303—Pope Boniface VIII (struggle with Philip the Fair of France (1285–1314) ends with the pope’s death; the papacy now becomes subject to the power of France)

Canonists, General:

Kuttner, Stephan. Repertorium der Kanonistik (1140–1234): Prodromus Corporis Glossarum, Studi e Testi, 71 (Vatican City: Biblioteca Apostolica Vaticana, 1937) (fundamental)

Decretists:

a. Gratian (d. c. 1140)—the Concordance of Discordant Canons consists of three parts of which the first two are by far the longest and the greater part of which are indisputably by Gratian: 1st part: 101 Distinctiones (cited ‘D.1 c.1’); 2d part: 35 Causae (hypothetical cases), each subdivided into Quaestiones (cited ‘C.1 q.1 c.1’); 3d part: 5 Distinctiones, principally on liturgical law (cited ‘De cons. [for De consecratione] D.1 c.1’)

In E. Friedberg (ed), Corpus Juris Canonici vol. 1.

b. Paucapalea

Rolandus

Rufinus

Stephen of Tournai

Huguccio

Summae of all these except for the last were edited in 19th century editions of varying quality.

c. Ordinary gloss: Johannes Teutonicus (1215 X 1217); revised Bartholomeus Brixiensis (c. 1245)

Decretals and Decretalists:

a. Compilatio Prima (1 Comp.) — Bernardus Papiensis p. 1191

Compilatio Secunda (2 Comp.) — Johannes Galensis, covers 1187–1198, but was compiled after:

Compilatio Tertia (3 Comp.) — Petrus Beneventanus, covers 1198–1210, promulgated by Innocent III in 1210

Compilatio Quarta (4 Comp.) — ?Johannes Teutonicus, covers 1210–1216, including Lateran IV (1215)

Compilatio Quinta (5 Comp.) — ?Tancredus, covers 1216–1226, promulgated by Honorius III in 1226.

These are all analyzed by E. Friedberg in Quinque Compilationes Antiquae.

Liber Extra sive Decretales Gregorii Noni (X) — Raymond of Peñafort, promulgated by Gregory IX in 1234

Liber Sextus (VI) — promulgated by Boniface VIII in 1298

Clementinae (Clem.) — promulgated at Council of Vienne (1312)

Extravagantes Johannis Vicesimi Secundi (Extrav. Jo.)

Extravagantes Communes (Extrav. com.) — Jean Chappuis (c. 1500) gave this and the Extrav. Jo. their current form; the material in both is largely 14th century.

All of these are in E. Friedberg’s Corpus Juris Canonici vol 2.

b. Goffredus de Trano, Summa (1242 X 1243)

Sinibaldus Fliscus (Innocent IV), Commentaria (c. 1251)

Henricus de Segusio (Hostiensis), Summa aurea (1250 X 1253)

Bernardus Parmensis, Glossa ordinaria (c. 1263)

Henricus de Segusio, Commentaria (1268 X 1271)

Johannes Andreae, Commentaria novella (p. 1338)

Johannes Monachus (Cardinalis), Commentaria in Sextum (a. 1301)

Johannes Andreae, Glossa ordinaria in Sextum (p. 1303)

All of these are available in early printed editions, of which at least one has been reprinted, except for the ordinary gloss on the Liber extra.

Types of literature:

Are basically the same as the civilians with some variants in terminology.

Gratian, Causa 27, quaestio 2:

“A certain man who has taken the vow of chastity espoused [desponsavit] a wife; she, renouncing the previous match, betook herself to another and married him; he seeks after her to whom he was previously espoused.

The Wrst question is whether there can be marriage between those who have taken a vow of chastity?

Second, is it permitted for one who is espoused to leave the one to whom she is espoused and marry another?”

[quaestio 2] Part 1. Gratian: The second question follows in which we seek to discover whether a girl espoused to another man can renounce the previous match and transfer her vows to another. First, we shall see whether they are married, second whether they can depart from each other. That they are married is easily shown by the deWnition of marriage and by the authority of many. … Again John Chrysostom on Matthew [an anonymous author of a collection of homilies on Matthew, Homily 32]:

[Canon 1.] Coitus does not make a marriage, but will does. …

[Canon 2.] Again, Pope Nicholas [I, Response to the Bulgarians (866), c.3]:

According to the laws, consent alone between the parties suYces when the question is whether parties are married. If that alone is lacking, anything else, even if accompanied by coitus, is frustrated.

[Gratian’s answers to these texts, which seem to constitute a powerful objection to his thesis, does not come until the dictum post c. 45 (Mats., p. VIII–10). These seem to boil to two arguments: 1) in context these quotations do not support the view that marriages without intercourse are indissoluble, and (2) there’s a distinction between necessary and sufficient conditions. Rather, having gathered together 15 canons that do not seem to support his position, Gratian then offers two that to his mind do:]

Canon 16: [Attributed to Augustine]

There is no doubt that a woman who has not had intercourse is not a married woman.

Canon 17: Again Pope Leo [to Rusticus of Nabonne, Ep. 167, 458–9].

Since the partnership of nuptials was so instituted from the beginning that it does not have in itself the sacrament of the nuptials of Christ and the Church unless there has been a mingling of the sexes, there is no doubt that that woman does not pertain to marriage in whom it is learned that there was not nuptial mystery.

[The core, however, of Gratian’s argument does not rest on these questionable texts. It rests rather on what he deems to be church practice in six different specific areas, summarized below.]

Canons 18–28: A married man or woman may not espouse the religious life without the consent of his or her spouse, but that rule does not apply if the marriage has not been consummated.

Canons 29–34: These deal, somewhat confusedly with the following problems: (1) impotence, (2) the prohibition against a clergyman to marry a widow, (3) penalties for incest, and (4) raptus.

The problem of the marriage of the Blessed Virgin is scattered throughout the question. Gratian’s difficulty is that wants to maintain that Mary and Joseph were truly married, but they did not have intercourse.

At the end of question Gratian turns to authorities that seem to forbid an espoused person from marrying someone else.

Peter Lombard on the Formation of Marriage

Dealing with many of the same texts as Gratian, the Lombard came to a different conclusion: indissoluble marriages are formed by exchange of words of present consent. Sexual intercourse has nothing to do with it. Promises to marry, however, are dissoluble.

Alexander III on the Formation of Marriage

Present consent freely given between a man and a woman capable of marriage makes an indissoluble marriage, unless one of the parties choses the religious life.
Future consent freely given between a man and a woman capable of marriage makes an indissoluble marriage, if that consent is followed by intercourse.
With few exceptions any Christian man is capable of marrying any Christian woman, so long as they are of marriageable age, not in orders or solemn vows, and not too closely related to each other.

Why Did Alexander III Decide as He Did?

Christian marriages once fully formed were indissoluble.
Alexander was committed, as was the church of his time, to incorporating as many people as possible within the realm of orthodox Christianity.
Twelfth century thought, both religious and secular, puts a heavy emphasis on individual choice.
Within this context, a consensual system of marriage has obvious attractions.
As these principles emerge as the principles all else tends to fall by the wayside.

How Does Accursius React to Alexander’s Decisions? (Mats., pp. VIII–21 to VIII–22)

As a practical matter, marriage was not a topic that belonged to the civilians in the 13th century.
The civilians seem to have reinterpreted their texts to keep things in line with the canonists.
But they did not drop the parental consent requirement for children who are in the power of their fathers. Justinian had said that those in power “must have the consent of the parents in whose power they respectively are, the necessity of which, and even of its being given before the marriage takes place, is recognized no less by natural reason than by law.” Accursus glosses this passage (fn. 8) to say “otherwise, it [the marriage] is not valid.”
The only suggestion that he is aware of the problem does not come until later where he is glossing the passage that describes Justinian’s ruling that the child of father who is insane may marry if the child obtains the consent of the father’s curator (fn. 17): “But by the law of the canons the consent of those whose matrimony is at stake suffices; but this perhaps is understood for others, not for children in power, or I believe that this is corrected because it is also an honest thing like going into a monastery.” Here he seems to suggest that the canons are speaking only of the emancipated, though a mysterious note at the end suggests that he may countenance the proposition that the canons have “corrected” the civil law.
Having won the war, Accursius prepared to concede the battle (fn. 8). The father is deemed to consent unless he expressly forbids the marriage.

The Revival of Academic Law—The Canonists