•.*■■■ 'V 
 
 
 
 K|.; 
 
 
 ^^^^v .';,-, >,■■';' 
 
 '"'■' . .*■.• ■ ' 
 
 
 
 •■I-.. I ;, '. ^-.- ;• 
 
 I',. ■'.., ! " ' 
 
 [l\ ■y,\-- 
 
 S) 'f: ' fit* " VK I 
 
 ;?^;sa 
 
 :v 
 
 ,;■^. 
 
 
Cfornell ItttoetHttg ffitbtarg 
 
 Jtlfara. ^tas f orb 
 
 FROM THE 
 
 BENNO LOEWY LIBRARY 
 
 COLLECTED BY 
 
 BENNO LOEWY 
 
 1854-1919 
 BEQUEATHED TO CORNELL UNIVERSITY 
 
The date shows when this volume was taken. 
 
 To renew this book copy the call No. and give to 
 the librarian. 
 
 HOME USE RULES 
 
 £f ft rrr^.'7.. 197^ .n.P ^" **°°*^^ subject to recall 
 
 All borrowers must regis- 
 Mn the library to borrow 
 books for home use. 
 
 All books must be re- 
 ^ turned at end of college 
 l^^ar for inspection and 
 repairs. 
 
 Limited books must be 
 
 returned within the four 
 
 week limit and not renewed. 
 
 Students must return all 
 
 books before leaving town. 
 
 Officers should arrange for 
 
 _ the return of books wanted 
 
 during their absence from 
 , town. 
 
 Volum'fes of periodicals 
 
 and of pamphlets are held 
 
 in the library as much as 
 possible. For special pur- 
 poses they are given out for 
 a limited time. 
 
 Borrgwers should not use 
 
 their library privileges for 
 
 the benefit of other persons. 
 
 Books of special value 
 and gift books, when the 
 
 giver wishes it, are not 
 
 allowed to circulate. 
 
 Readers are asked to re- 
 port all cases of books 
 marked or mutilated. 
 
 Do not deface book^ by marks and writing, ' 
 

 CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
Cornell University Library 
 BX1935 .R34 1890 
 
 Elements of canon law,, /,M, Oswald J. Rei 
 
 olin 
 
 3 1924 029 395 179 
 
 THE ELEMENTS OF CANON LAW. 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924029395179 
 
THE 
 
 ELEMENTS 
 
 OF 
 
 CANON LAW. 
 
 BY 
 
 OSWALD J. REICHEL, B.C.L., M.A., 
 
 Sometime Vice-Principal of Oiiddesden College, Oxford. 
 
 LONDOIST : 
 
 THOMAS BAKER, S(q>HO SQUARE. 
 
 1890. 
 
irx. 
 
 A ^7 Co/ 
 
 Ehbatum.— Page 134, paragraph 1, line 5, for invalid read vaUd. 
 
PREFACE. 
 
 We all do err at times, and by God's grace may be 
 raised up again and restored to newness of life. Yet is 
 the Body of Cbrist Holy, and the aim of aU its insti- 
 tutions is that its members may be sanctified through 
 the truth. 
 
 Thus even that machinery, which at first sight seems to 
 have least to do with personal holiness, is found to be 
 really most designed to promote that holiness. For as it 
 is ever difficult in this world to fathom the heart and to 
 guage the moral guilt of sin in each particular case, so 
 to do this generally (so far as that is possible) from a 
 public or Church point of view is the hardest task of all. 
 And this is the business of Canon Law, which not only 
 seeks to regulate the organisation and the several duties 
 of office within the Church, but also aims at controlling 
 the administration thereof by distinguishing what is due 
 to the individual and what is due to the Body as a 
 whole. For as " we being many members are one Body 
 and everyone members one of another," so " if one member 
 sufl'er, aU the members suffer together," and if one member 
 
■n PEEFACE. 
 
 ■wilfuUy indulge in sin the type of holiness is lowered 
 for all. 
 
 Moreover, sin is sometimes the outcome of general 
 weakness in face of strong temptation, and requires the 
 kindly help of others to be successfully overcome; whilst 
 in other eases sin is wilful, and to tolerate it is to do 
 harm to all the rest. Canon Law, which is the code of 
 rules elaborated by the collective wisdom of the past under 
 the guidance of the Holy Ghost, endeavours to show 
 within the range of cases which come under its cogni- 
 sance, how truth may be elicited from the observed facts, 
 and how justice may be combined with mercy, so that 
 what is right and equal may be done between each indi- 
 vidual member and the whole Body of the Church. 
 
TABLE OF CONTENTS. 
 
 CiiAPTiR Page 
 
 I. — The Kelatiok of Canon Liw to other Branches of Law. 
 
 1. Divine Law .. .. .. .. . ., 1 
 
 2. Human Law . . . . . . . . . , . . 2 
 
 8. Canon Law .. .. .. .. .. .. 5 
 
 II. — Division or the Subject. 
 
 1. Fonrfold, Division of the Subject . . . . . . . . 4 
 
 2. Canons Generally and Canon Law.. .. ,. .. 4 
 
 3. General Government of the Ohurcli .. .. 4 
 
 4. Essentials of the Church's Maintenance and Holiness . . 4 
 
 5. Mediaeval and Modern Extensions of Church Organization . . 5 
 
 Part I. — Of Canons and Canon Law. 
 
 Division I. — Of Canons Ggenerallt, their Meaning, 
 Sources, and Authority. 
 
 III. — Of Canons Generally. 
 
 1. The Term Canon defined .. 
 
 2. New Testament Use of the term . . . . . . . . 7 
 
 8. Modem Use of the term ,, .. .. .. ., 7 
 
 IV.— The Church. ^ 
 
 1. Definition of the Church .. .. .. .. ,. 9 
 
 2. Objects of the Church ., .. .. .. .. g 
 
 3. The Church an outward Society . . . . . . . . 10 
 
 Y. — Constitution of the Church. 
 
 1. Unity .. .. .. ., . ..12 
 
 2. Holiness .. .. .. .. .. ,.13 
 
 8. Catholicity .. ,. .. .. ..13 
 
 4. Apostolicity . . . . . . . . . , . . 14 
 
 YL — The Church's Power of Making Canons. 
 
 1. The Church's Power of making Canons limited .. .16 
 
 2. By Legislative Authority .. .. .. .. ..16 
 
 3. Power of Repealing Canons . , . . . . 17 
 
 YII. — The Sanction attaching to Canons. 
 
 1. Sanction of Conscience .. .. .. .. ,. 18 
 
 2. Sanction of Spiritual Censure .. .. ig 
 
 3. Civil Sanction . . „ , , , . . . . . 19 
 

 PAGE 
 
 The 
 
 
 
 21 
 
 
 21 
 
 Via CONTENTS- 
 
 CHAP. 
 
 VIII. — The Legislatite Atjthoritt in the Chukch. 
 Collective Episcopate. 
 
 1. Share of the Clergy and Laity 
 
 2. The Initiative rests with the Episcopate . . 
 S. Rests with it collectively . . .. .. .. -.22 
 
 4. Is properly exercised in a General Council . . . • ^^ 
 
 IX. — Ecclesiastical Jurisdiction. The Diocesan Episcopate, 
 
 1. All Jurisdiction is derivative , , . . . . . . 24 
 
 2. And subject to revision by the Co-episcopate . . . . 25 
 8. Through Episcopal Intermediaries . . . . . . 26 
 
 X. — Authoritative SouECES op Canons. 
 
 1. Canons of Councils . . . . . . . . . S8 
 
 2. Papal Decretals .. .. .. .. .. ..29 
 
 XI. — SUBSIDUBY SOUECES OE CaNONS. 
 
 1. Customs .. .. .. .. .. .. ..31 
 
 2. Rules of Interpretation . . . . . . . ... 32 
 
 Division II, — Op Canon Law as a whole. 
 
 XII. — The Canon Law of the Chubch a Steeam. 
 
 1. Church Legislation followed the Accidents of the World . . 35 
 
 2. Eolation on the breaking up of the Roman Empire the 
 
 cause of Provincial Canons . . . . . . . . 35 
 
 8. Canon Law the Outcome of Intercommunication .. .. 36 
 
 4. Canon Law a stream .. .. ,. .. 36 
 
 XIII. — Collections of Canons. 
 
 1 . The Codes of the African Church . . . . , , . , 37 
 
 2. The Codes of the Roman Church ., .. .. ..38 
 
 3. The Codes of the Spanish £harch . . 
 
 4. The Codes of the Cisalpine Church 
 
 5. Minor Collections 
 
 XIV.— Codipication op Canons. 
 
 1. Collections of Capitularies and Fenitentials .. ..41 
 
 2. Methodical Collections .. .. .. ,. ..42 
 
 3. Gratian's System ., .. ,. . .. ., 42 
 
 XV. — The Gobpus Jubis Canonici. 
 
 1. Definition of Corpus Juris Canonici ., ,. . . 44 
 
 2. Parts of the Corpus .. .. .. ., .. 44 
 
 3. Mediaeval Canonists .. .. .. ,. ..45 
 
 4. Modem Canonists . . . . . . , . . . 45 
 
 XVI. — The Decbetum Gbatiani. 
 
 1. Compilation of the Decretum about 1144 . . . , . . 46 
 
 2. Division of . . . . . . . . . . 46 
 
 3. Value of ,. .. .. ., . 47 
 
CONTENTS. IX 
 
 CHAP, PAGE 
 
 XVII. — The Decretals op Gkegort IX. 
 
 1. Supplementary Collections after Gratian's time .. .. 49 
 
 2. Reduced to order by Gregory's Chaplain . . . . , . 60 
 
 3. Contents of his Work .. .. .. .. ..50 
 
 XYIII. — The Sext of Boniface YIII. 
 
 1. Compilation of the Sext .. .. .. .. ..51 
 
 2, Subsidiary Collection . . . . . . . . . . 51 
 
 XIX. — The Clementines .. ,. .. .. .. ..52 
 
 XX. — The Extravagahtes .. .. .. ., ..35 
 
 XXI. — Authority op the Corpus Juris Canonici. 
 
 1. Legal Authority ., .. .. .. .. ..54 
 
 2. Ecclesiastical Authority .. .. .. .. ..54 
 
 XXII. — Legal or Civil Authority op Canon Law. 
 
 1. Given by Statute or Custom . . . . . . . . 65 
 
 2. HowBuforced .. .. ., .. .. .. 55 
 
 XXIII. — Legal Value op Corpus Juris Canonici. 
 
 1. To what extent received . . . . . . . . . . 57 
 
 2. Modifications of Civil Authority . . . . . . .57 
 
 XXIY. — Legal Authority op the Canon Law in Enoland. 
 
 1. Theoretically accepted .. . .. .. ..60 
 
 2. Supplemented by Legatine Constitutions and Canons 
 
 Provincial . . . . . . . . , , . . 61 
 
 3. Curtailed by Statute .. .. .. .. ,.62 
 
 XXV. — Authority op Canon Law as appected by Acts op 
 Supremacy and Submission. 
 
 1. Act of Supremacy.. .. .. .. .. ..64 
 
 2. Act of Submission .. .. .. .. ..64 
 
 3. Present position of Canon Law .. .. .. ..65 
 
 XXYI. — Eoclesustical Authority op Canon Law. 
 
 1. Canons expressing«a Divine Law absolutely binding .. 67 
 
 2- Canons disciplinary binding whilst in force . . . . 67 
 
 3. Obligation internal as well as external . . . . . . 67 
 
 4. Even Overriding Statute Law .. .. .. ..68 
 
 XXYII.— Canon Law as a Whole. 
 
 1. Canon Law variable .. .. .. .. ..69 
 
 2. Canon Law the Case Law of the Church.. ., .. 69 
 
 3. Canon Law revocable .. .. .. .. ..69 
 
 4 Canon Law tending to Uniformity .. .. ..70 
 
X contents- 
 
 Part II. — Of the General Government of the Church. 
 
 CHAr. PAGE 
 
 XXVIII. — Of Church Authority. 
 
 1. The Church a Divinely Appointed Society .. .. 71 
 
 2, Its aim to promote Holiness ,. .. .. ..71 
 
 8. Certain Essentials thereto . . . . . . . , 7^ 
 
 Division I. — The Nature of Jurisdiction. 
 
 XXIX. — The Apostles and the Episcopate. 
 
 1. Christ's Charge to His Apostles .. . . .. .73 
 
 2. A continuing charge to the Collective Episcopate .. .. 74 
 8. To the Episcopate only . . . . . . . . . . 74 
 
 XXX. — Order and Jurisdiction. 
 
 1. Difference between Order and Jurisdiction. ,. . . 75 
 
 2. Order .. .. .. .. .. .. ..75 
 
 8. Jurisdiction . . . . . . ... . . . , 76 
 
 4. Belation of Order to Jurisdiction . . .. .. ..76 
 
 XXXI. — Varieties of Jurisdiction. 
 
 1. Jurisdiction extends to different classes of Subjects .. 78 
 
 2. Jurisdiction exercised in several different ways ,. ,. 79 
 
 3. Public and Private .- .. .. .. ..79 
 
 4. Contentious and Voluntary .. „ .. 79 
 
 6. Ordinary and Delegated .. ,. .. .. ..79 
 
 6. Direct and Intermediate . . . . . . . . 81 
 
 XXXII. — Acquisition of Jurisdiction, — Titles. 
 
 l.Areal Title .. .. .. .. .. 82 
 
 2. How acquired . . . . . . . . . . .82 
 
 8. Conditions precedent .. .. .. ,. ..83 
 
 4. Institution .. .. .. .. .. ..83 
 
 Division II. — Officers of Jurisdiction. — The Hierarchy. 
 
 XXXIII. — The Exercise of Jurisdiction by Episcopal Inter- 
 mediaries. 
 
 1, The Collective Episcopate alone has Universal Jurisdiction 85 
 
 2, Intermediaries in Jurisdiction . . . . , . gg 
 8. Sum total of the Intermediaries form the Hierarchy . . 86 
 4. No Member of the Hierarchy absolute .. , . _ 86 
 
 XXXIV.— The Great Patriarchs. 
 
 « 
 
 1. The Three greitest . . . . , . _ gg 
 
 2. Relation to their Subordinates varying . . . . qs 
 8. Inequalities between the Three .. .. , qq 
 
CONTENTS. 
 
 XI 
 
 CHAP, 
 
 XXXV.— The Pope. 
 
 1. Owes his position to Christ's Command 
 
 2. Canons of Conncils 
 8. His Primacy of Honour 
 
 4. Primacy of Jurisdiction 
 
 XXXVI.— The Eoman Chkia. 
 
 1. The Roman Curia 
 
 2. Cardinals .. 
 
 5. Congregations 
 4. Roman Tribunals 
 
 6. Ministers not of the Curia 
 
 XXXVII. — Lessee Patkiaechs ok Gkeatek Peelates. 
 
 1. Patriarchs 
 
 2. Primates 
 
 3. Duties of a Patriarch 
 
 XXXVIII. — Aechbibhops and Meibopolitans. 
 
 1. Distinction of the two 
 
 2. A Metropolitan's Jurisdiction not autocratic 
 8. A Metropolitan's Interference limited to three 
 
 4. Visitati on 
 
 5. Devolution 
 
 6. Appeal 
 
 XXXIX. — The Ofi'icials of Metkopolitans. 
 
 1. Courts and Officials of a Metropolitan .. 
 
 2. The Archbishop's Commissary's Court 
 8. The Metropolitan's Court . . 
 
 4. The Primate's and Legatine Courts 
 
 XL. — Diocesan Bishops. 
 
 1. Diocesan Bishop's position and appointment 
 
 2. Concurrence of the Laity.' — Patronage 
 8. Share of the Clergy.— Election 
 
 4. Appointment by the Co-episcopate. — Confirmation 
 
 5. Investiture 
 
 XLI. — Election of Bishops. 
 
 1. Concurrence bf Laity and Clergy 
 
 2. Action of the Laity 
 
 3. Formal Election by Clergy 
 
 4. Formal Election.. 
 
 5. Irregular Mode of Appointment 
 
 6. Rules of Election . . 
 
 90 
 91 
 91 
 91 
 
 93 
 
 94 
 95 
 
 96 
 97 
 
 100 
 100 
 100 
 
 102 
 102 
 102 
 104 
 
 105 
 106 
 108 
 106 
 106 
 
 107 
 108 
 108 
 108 
 109 
 109 
 
 XLII.— Confirmation, Teanslation, and Eestgnation op Bishops. 
 
 1. The Metropolitan's Confirmation confers Jurisdiction 111 
 
 " 2. Translation usually forbidden 
 3. Renunciation 
 
 112 
 113 
 
XU CONTENTS. 
 
 CHAP. >■*»= 
 
 Division III. — The Unit of JnaiSDioTiou. — The Diocese. 
 
 XLIII. — DiooBSAN Jurisdiction. 
 
 1. The Diocese, the Unit of Church Governmenf . . . . 114 
 
 2. A Bishop's Jurisdiction limited . . . . • . US 
 8. The Bishop and Chapter together are the Boverning Body . . 115 
 4. Creations of New Sees .. .. .. ■■ •• US 
 
 XLIV.— The Chapteb. 
 
 1. The Members of the Chapter .. .. .. .117 
 
 2. The Jurisdiction of the Chapter .. .. . ..117 
 
 3. Its Concurrence necessary to bind the Church . . 118 
 
 XLV. — Episcopal Officers. 
 
 1. Coadjutor or Suffragan Bishops .. .. .. .. 119 
 
 2. The Vicar-General and Official Principal . . . . ■ . . 119 
 8. Bural Deans .. .. .. .. •■ •• 122 
 
 4. Officials of the Outplaces . . . . . . . . . . 122 
 
 XLVI. — Diocesan Officees. 
 
 1. Diocesan Officers are Officers of the Cburch .. .. 123 
 
 2. The Archpriest or Dean .. .. .. .. .128 
 
 8. The Archdeacon .. .. .. .. .. .. 124 
 
 4. A Vicar-General confirmed by the Chapter . . . . . 125 
 
 XLVII. — Pabochiaii Clbbgy. 
 
 1. Are Officers of the Laity .. .. .. .. ..123 
 
 2. Ministering as the Bishop's irrcmoveable Curates . . . . 126 
 
 Pakt in. — Of Cektain Essentials fob the Holiness and Main- 
 tenance OF THE CnnECH UPON Eaeth. 
 
 XL VIII. — Of.Gbaces, Gifts, and Censxjbes. 
 
 1. The Church's Mission in the World .. .. ., 128 
 
 2. The Means of Grace . . • • . . . . . . 129 
 
 3. Spiritual Gifts . . . . . . . . . . . . 129 
 
 4. Discipline and Censures .. .. .. .. .. 129 
 
 Division I. — The Means of Gbace. 
 
 XLIX. — Saceamehts, Saoeamental Acts, and Public Woeship. 
 
 1. Sacraments .. .. .. .. .. .. 130 
 
 2. Sacramental Acts . . ,. .. .. .. ..131 
 
 8. Public Worship .. .. .. .. .. ., 131 
 
 L. — The Sacbaments. 
 
 1. Holy Baptism .. .. .. .. ., .. 132 
 
 2 Holy Eucharist .. .. .. .. .. .. 132 
 
 5. Validity of Sacraments .. ., .. .. .. 132 
 
CONTENTS. Sill 
 
 CHAP. PAGB 
 
 LI. — Baptism. 
 
 1. Essentials of Baptism 
 
 2. Mode of Baptizing 
 8. Minister of Baptism 
 
 4. Qualification of Candidates 
 
 5. Time for Baptism 
 
 6. Places for Baptism.. 
 
 LII. — The Holy Eucharist. 
 
 1. Material Forms of the Eucharist 
 
 2. Seasons for Communicating 
 
 3. Ministers of the Eucharist 
 
 4. Rules to be observed 
 6. Beservation 
 
 LIII, — Sacramental Acts. 
 
 1. Two Sacramental Acts 
 
 2. Subsidiary Sacramental Acts 
 
 LIV. — CONFIRMATIOK. 
 
 1. Ceremonial Acts following Baptism 
 
 2. Confirmation and the Completion of Baptism 
 
 3. Minister of Confirmation .. 
 
 4. Time for Ministration of Confirmation 
 
 LY. — Unction and Extreme Unction. 
 
 1. The Anointing of the Sick.. 
 
 2. Extreme Unction .. 
 
 3. A Branch of Penance 
 
 Division II. — Op Spiritual Gifts. 
 
 LVI. — Holt States of Life. 
 
 1. The bestowal of Spiritual Gifts a Sacramental Act . . , . Ii4 
 
 2. The two cases of Orders and Matrimony . . . . . , 144 
 
 LYII. — Orders Generally. 
 
 1. Orders defined .. .. .. .. .. ..145 
 
 2. Orders founded by Christ .. .. .. ,. .. 145 
 
 3. Holy and Minor Orders . .. .. .. ,. 145 
 
 4. Canoqical Rxiles as to Orders . . . . . . . . 146 
 
 
 . 134 
 
 
 . 134 
 
 
 . 186 
 
 
 . 185 
 
 
 . 1£6 
 
 
 . 136 
 
 .. i8r 
 
 
 . 137 
 
 
 . 138 
 
 
 . 133 
 
 ■• 
 
 . 138 
 
 .. 140 
 
 .140 
 
 .141 
 
 . . 141 
 
 .142 
 
 .. 142 
 
 .. 143 
 
 .. 143 
 
 
 . 143 
 
 LVIII. — Holy Oedeks. 
 
 1., Holy Orders defined 
 
 2. Ordination 
 
 3. Two Holy Orders .. 
 
 4. Ordination not to be repeated 
 
 5. Disabilities and Privileges of Orders 
 
 147 
 147 
 148 
 148 
 149 
 
XIV 
 
 CONTENTS. 
 
 CHAP, 
 
 . LIX. — The Pkiesthood. 
 
 1. Nature of the Priesthood .. 
 
 2. Exercise of the Priesthood . . 
 S. Two degrees in the Priesthood 
 
 4, Ordination and Consecration 
 
 5. By whom conferred 
 
 LX. — Qualifications fob the Peiesthood. 
 
 1. Disqualification for Orders .. ., 
 
 2. Rules to be observed by the Clergy . . 
 
 3. Clerical Continence 
 
 4. Marriage forbidden for the Higher Orders . . 
 
 LXI. — Or Clerical Ibeegulaeitt. 
 
 1 Definition of Irregularity . . 
 
 2. Irregularities of two kinds arising from Defects or Crimes . 
 
 3. Two special causes of Irregularity Ill-repute and Lenity 
 
 4. Irregularities determined in one of four ways 
 
 LXU. — Bishops. 
 
 1. A Bishop is one who has the Flentitude of the Priesthood 
 
 2. He is appointed to- a See vacant i. 
 
 3. He has Jurisdiction within his Diocese 
 
 4. And he alone can ordain within it . . 
 
 5. He is also a member of the Apostolic College 
 
 LXIII. — QUALIPIOATIONS FOB A BiSHOP. 
 
 1. Personal Qualifications 
 
 2. Episcopal Consecration 
 
 LXIV. — A Bishop's Duties. 
 
 1. Towards the Church at large 
 
 2. Towards his Diocese 
 
 3. Preaching 
 
 4. Ordination .. .. ^ 
 
 5. General Administration in Yisitation 
 
 6. Assistance of Presbyters 
 
 LXV. — The Diaoonate. 
 
 1. The Dlaconate a Holy Order 
 
 2. Duties of the Dlaconate 
 8. Importance of the DiaconatQ 
 4, The Subdiaconate 
 
 LXVI. — MiNOB Oedees. 
 
 1. Minor Orders defined 
 
 2. Readers in the Eastern Church 
 
 3. Acolytes, or Attendants 
 
 4. Exorcists 
 
 5. Readers .. ,, ., 
 
 6. Doorkeepers 
 
 7. Psalmists, Sacristans and Custodians 
 
 150 
 160 
 161 
 161 
 152 
 
 153 
 155 
 155 
 166 
 
 168 
 158 
 159 
 159 
 
 161 
 161 
 151 
 162 
 
 162 
 
 163 
 164 
 
 166 
 166 
 166 
 16T 
 167 
 168 
 
 169 
 170 
 170 
 
 172 
 172 
 172 
 172 
 172 
 173 
 173 
 
CONTENTS. XV 
 
 CHAP, PAGB 
 
 LXVII.— Matrimony. 
 
 1. Matrimony a Sacramental Act, consisting of two parts . 174 
 
 2. The Betrothal .. .. .. .. .. ..174 
 
 8. ThQ Espousal also consisting of two parts .. .. .. 175 
 
 4. The Spiritual Gift in Matrimony .. ,, .. ..176 
 
 5. Consequences of the Christian -view of Marriage .. . . 176 
 
 Division III. — Discipline and Oenstjebs. 
 
 LXVIII. — Judicial Powee of the Chtjeoh. 
 
 1. The Churcli's power to define Doctrine, and make Disciplinary 
 
 Rules .. .. .. .. .. .. 178 
 
 2. Church Discipline exercised by those holding Jurisdiction . . 178 
 
 3. Certain points to which it specially applies.. .. ., 179 
 
 LXIX. — Subject-matter op the Chuech's Judicial Power. 
 
 1. Private Censures, or Penance . .. . .. 180 
 
 2. Public Censures, or Discipline .. .. .. .. 180 
 
 3. Procedure .. .. . .. .. .. .. 181 
 
 LXX. — Ecclesiastical Offences. — Sins Venial and Moetal. 
 
 1. Distinction between Venial and Mortal Sius .. .. 182 
 
 2. Anciently all Discipline public, and limited to Idolatry, 
 
 Murder, and Adultery . . . . . . . . . , 182 
 
 3. Public Discipline extends to the three corresponding classes 
 
 of sins, and also to Ecclesiastical Offences .. . . 183 
 
 LXXI. — Peivate Discipline. — Penance. 
 
 1. Penance is the private administration of Church Censures . . 185 
 
 2. At first it was always public . . . . . . . . 185 
 
 8. Then administered by a Penitentiary Presbyter ,. .. 185 
 
 4. Rise of Indulgences in Mediaeval times . , . . . . 186 
 
 5. Confession not of Christ's appointment . . . . . . 187 
 
 6. Universally ordered by the 4th Lateran Council . . . , 187 
 
 LXXII. — Public Discipline. 
 
 1. Ancient disputes as to the Lapsed, and the Traditores . . 188 
 
 2. The Church's rules a Compromise . . . . . . . . 188 
 
 3. Strict rules against Sham Conversion .. ,. .. 188 
 
 4. Different treatment of Clergy and Laity . . , . . . 189 
 
 LXXIII.— Discipline of the Cleegt. 
 
 1. Clerical Discipline vindictive . . . . . . . 190 
 
 2. Administered by the Clergy anciently . . . . . . 190 
 
 3. Persons disqualified to bring Charges .. .. .. 190 
 
 4. Provisions in case of differences of Opinion . . . . 191 
 
 5. Trial, and previous Monition necessary . . , - . . 191 
 
 LXXIV. — Censuees on the Cleegy. 
 
 1. Suspension ,. .. .. .. .. ..192 
 
 2. Deprivation . . . . . . . . . . . . 192 
 
 S. Degradation .. .. .. .. .. .. 193 
 
XVI CONTENTS. 
 
 CHAP. 
 
 LXXV. — Oensuees on the Laitt. 
 
 1. Confined to Public Ofi"ence8 
 
 2. Excommunication of two degrees 
 
 3. The greatest Excommunication 
 
 4. The Interdict 
 
 5. Sentences valid everywhere 
 
 194 
 194 
 194 
 195 
 
 195 
 
 Past IV, — Op certain extensions of Church Organisation in 
 
 MEDLffiVAIi AND MODEKN TllIES. 
 
 LXXVI. — Change in the Church's position in the 12th Centuet, 
 
 1. Natuxe of the change . . . , . . . . . . 197 
 
 2. Points affected by the change . . . . . . . . 197 
 
 Division I. — Modification of the Diocesan Ststem — Sue-usits of 
 Jurisdiction. 
 
 LXXVII.— The Endowment of the Church. 
 
 1. Acquisition of Property by other bodies than the Piocesan Unit 199 
 
 2. Modification of the Diocesan System in consequence .. 200 
 
 LXXVIII. — Church Property. 
 
 1. The Church as an Owner of Property ., .. ., 201 
 
 2. Corporations disqualified by Law .. ,, .. .. 201 
 
 3. English Law does not allow the Church Corporation to possess 
 
 property . . . . . . , . . . . . . . 201 
 
 4. It does recognise Bishops, Archdeacons, Parsons, and Colleges 203 
 
 LXXIX. — ^Pbopeett of the Church-Unit, the Diocese. 
 
 1. Bishop and Chapter a Corporation together. . . . . . 204 
 
 2. Division of their property . . . ,. . . . . . 204 
 
 3. The Common Law does not recognise'the trusts imposed by 
 
 the Canon Law . . . . . . . . . . , . 205 
 
 LXXX. — ^Effects op Church Property. 
 
 1. Worldly position of the Clergy enhanced . . . . .. 207 
 
 2. Clergy brought under Control of the CivU Power . . . , 207 
 
 3. Subordination of Church to State . . . . . . . . 208 
 
 L XX XT. -The Parish. 
 
 1. Threefold aspect of the Parish , . . . . . . , 209 
 
 2. The Parson, its legal Head . . . . . . . . . . 209 
 
 3. Parish Priest, its spiritual Head . . . . , . . . 210 
 
 4. The Benefice his endowment .. .. ., ,. 211 
 
 LXXXII. — The Parochial Corporation. — The Parson. 
 
 1. Parochial endowment not Church Property . , . . 213 
 
 2. Appropriation . . . . . . . . . . _ _ 3^5 
 
 3. Impropriation . . . . . . . , . . _ , 215 
 
 4. The Vicar, as well as the Parson, a Corporation .. .. 215 
 
CONTENTS. XVll 
 
 CHAP. 
 
 LXXXIII. — Parochial Benefices. 
 
 1. A Benefice a Freehold Estate 
 
 2. Two kinds of Benefioes 
 
 8. Effect of a Parochial Benefice 
 
 4. Institution and Induction 
 
 5. Exchange .. ., .. 
 
 6. Residence . . 
 
 7. Patron's Interest in a Benefice 
 
 216 
 216 
 217 
 217 
 218 
 218 
 219 
 
 LXXXIV. — The Spikitual Charge of Parishes. 
 
 1. Position and Duties of a Parish Priest . . . . . . 22o 
 
 2. SubdiTisions of a Parish .. .. .. .. .. 223 
 
 3. Assistant Curates . . . . . . . . 221 
 
 4. Episcopal and Chapter Patronage .. .. .. .. 221 
 
 5. Outsiders .. .. .. .. .. ., .. 222 
 
 LXXXV. — Besignation. 
 
 1. Defiuition oi Resignation .. 
 
 2. Made by one holding a spiritual Charge 
 
 3. Essentials for Regularity . . 
 
 4. Causes allowed as justifying Resignation . . , . 224 
 
 5. Superior's acceptance necessary . , .. . . . 224 
 
 6. Personal appearance required before the Superior or a Notary 225 
 
 IjXXXYI.— Foundations. 
 
 1. Rise oi Foundations .. ,. .. ., .. 226 
 
 3; Varieties of Foundations . . . . . . . , . , 226 
 
 IjXXXVII. — Colleges AND Societies. 
 
 1. Nature of a Society . . . . . . . , . 238 
 
 2. Nature of a College . . . . . . . . . . 228 
 
 S. I>i£ferent kinds of Colleges and Societies . . . . . . 229 
 
 LXXXVIII. — Beligioub and Monastic Orders. 
 
 1. Religions Orders . , . . . . . . . . . 222 
 
 2. A Society the Unit of an Order . . . . ' . . . . 230 
 
 3. Approval of the Collective Episcopate necessary . . , . 230 
 
 4. Orders best known . , . . . . . . . . 2b0 
 
 Division II. — Modification of the Eucharistic Worship; 
 
 LXXXIX. — Substitutions of Public Worship for the Eucharistic 
 Service. 
 
 1. The Eucharistic Service . . . . . . . . . . 233 
 
 2. Si2e of Dioceses a hindrance to Attendance at .. .. 234 
 
 3. Other Services .. .. ,, .. .. .,234 
 
 XC. — Public Worship and the Parochial System. 
 
 1. Ministrations away from the Cathedral . . . . 235 
 
 2. Rul(;s for such Ministrations .. .. .. .. 235 
 
xvm 
 
 CONTENTS. 
 
 CHAP. 
 
 XCI. — The Dftine Office. 
 
 1. The Liturgy or Missal 
 
 2. Antiquity of this Service . . 
 
 3. Diocesan Varieties 
 
 4. The several Parts of 
 6. Best known uses 
 
 XCn. — The Hour Sebvices. 
 
 1 Date from 5th century 
 
 2. Introduced by S. Benedict 
 
 3. Adopted by Capitular Clergy 
 
 4. The Breviary 
 
 XCIII.— Holt Places. 
 
 1. Churches 
 
 2. The Cathedral 
 8. Parts of .. 
 
 4. Apsidal Chancels . . 
 
 5. Division of Choir .. 
 
 XCIV. — The Benediction and Conseceation of Chueches. 
 1. The Bishop's licave 
 
 235 
 287 
 237 
 288 
 
 289 
 
 24» 
 240 
 
 241 
 241 
 241 
 242 
 242 
 
 243 
 243 
 
 243 
 247 
 
 2. Benediction 
 
 3. Consecration 
 
 4. Privileges of Consecrated Places 
 
 XCV. — Holy Times. — Feasts and Fasts. 
 
 1. Observance of Days 
 
 2. Days and Seasons of ancient Observance 
 
 3. Subsequent Additions 
 
 XCVI. — Obseevance of Holy Times. 
 
 1. Daily Eucharist in Apostolic Times 
 
 2. Services in lesser Churches 
 
 3. Mode of Observance 
 
 4. General Rule as to greater Festivals 
 
 5. Special Festivals . . 
 
 Division III. — Mbdisital and Modeen AoMiNiSTRiTioN of Chuech 
 Discipline. 
 
 XCVn. — Extension of the CHnRCH's Judicial Functions. 
 
 1. Extension of the Church's Judicial Functions 
 
 2, Crimes and Civil Cases .. .. .. 
 
 8. Spiritual, Mixed, and Temporal Cases 
 4. Requisites for Procedure .. 
 
 XCVIII. — CouBTS Cheistian. 
 
 1. Did not exist in earliest times . . . . . . . , 255 
 
 2. Rise of Spiiitual Courts .. .. .. .. ..255 
 
 8. Proceedings in . , . . . . . . 25g 
 
 4. Summary and Ordinary Procednre .. .. .. 256 
 
 5. Canonical Penalties .. .. .. .. .. 256. 
 
 246 
 
 246 
 247 
 
 259 
 250 
 251 
 251 
 252 
 
 253 
 253 
 253 
 254 
 
CONTENTS. XIS 
 
 CHAP. 
 
 XCIX. — Judges op Competent Jurisdiction. 
 
 1. Various kinds of Judges 
 
 2. Competence of a Judge 
 
 S. Competent jurisdiction of a Court 
 
 4, Objections to a Judge 
 
 5. Eequisites in a Judge 
 
 257 
 257 
 258 
 
 C. — Plaintiffs and Defendants. — Proctors and Advocates, 
 
 1. Disqualified Plaintiffs . . . . . . . . . . 260 
 
 2. Free action of . . , . . . . . . . . . 260 
 
 3. Proctors .. .. .. .. .. .. ..260 
 
 4. Advocates . . . . . . . . 261 
 
 CI. — Complainants in a Civil Case. 
 
 1. Distinctions between Criminal and Civil Cases .. .. 263 
 
 2. Two conditions must be fulfilled by a Complainant in a Civil 
 
 Case .. .. .. .. .. .. ..263 
 
 3. Complaint introduced by a Libel . . . . . . . . 263 
 
 4. Effect of a Libel . . . . . . . . . . . . 264 
 
 5. The Oath of Calumny . . . . . . . . . . 264 
 
 CII. — Criminal Procedure. — Accusation. 
 
 1. Three modes of Criminal Procedure 
 
 2. Essential features of an Accusation . . . . . . 266 
 
 3. Accusation discouraged since Hth century 
 
 4. Accusation introduced by Articles 
 
 5. Effect of an Accusation 
 
 267 
 
 cm, — Criminal Procedure. — Denunciation. 
 
 1, Denunciation is giving private Information . . . 269 
 
 2. Two kinds of Denunciation .. 269 
 
 3. Obligation to denounce , . . , ... . . . 270 
 
 4, Action of a Superior on receiving a Denunciation . . . . 270 
 
 CIV. — Criminal Procedure. — Inquisition. 
 
 1. Inquisition is Procedure by Inquiry 271 
 
 2. It should not be undertaken without grounds . . . . 271 
 
 3. And should be conducted with regard to the Rule of Charity 271 
 
 4. Oath of Purgation . . . . . . . . . . 272 
 
 CV. — Amenability of the Accused. 
 
 1. A Defendant may be out of the Jurisdiction . . . . 273 
 
 2. Or have no one to accuse him . . .. , . . . 273 
 
 CVI. — Criminal Procedure. — Promoting the Judge's Office. 
 
 1. The Judge's office promoted by a Libel and a Citation . . 274 
 
 2. A Libel defined . . . . . . . . . . . . 274 
 
 3. The Judge's Discretion .. .. ,. .. ..276 
 
 4. A Citation and its Effects . . . . . . . . . . 276 
 
 5. Exceptions and Objections .. .. .. 277 
 
XX 
 
 CONTENTS. 
 
 CHAP. 
 
 CVII.- 
 
 -Criminal Pboceduee. — Tbial. 
 
 1. Joining Isf^ae defined 
 
 2. Proof by Evidence. . 
 
 3. The Defence 
 
 CVIII. — Criminal Prooeduee. — Judgment . 
 
 1. Sentence 
 
 2. Execution of the Sentence . . 
 
 3. Appeal 
 
 278 
 281 
 231 
 
 233 
 284 
 284 
 
 CIX. — Statutory Limitations of Courts Christian in England. 
 
 1. Withdrawal of Cases from the Cognisance of Courts Christian 286 
 
 2. Royal Supremacy . . . . . - . . . . . - 287 
 
 3. The Court of Delegates . . . . . . . . . . 237 
 
 4. The Judicial Committee of the Privy Council . . . . 237 
 
 ex. — Statutory Eegulationb of Ecclesiastical Procedure 
 IN England. 
 
 1. Procedure modified by Statute and Decisions . . . . 289 
 
 2. A Commission of Inquiry precedes a Criminal Suit . . 291 
 
 3. A Citation commences the Suit .. .. ,. .. 291 
 
 4. The Libel, Articles, or Allegation ,. .. .. .. 291 
 
 5. Joining Issue . . . . . . . . . . . . 292 
 
 6. Admission of the Pleas . . . . . . . . . . 292 
 
 7. Evidence . . . . . . . . . . . . . . 292 
 
 8. Appeal and Prohibition . . . . . . , , . . 29i 
 
 CXI. — General Eeview of the Subject. 
 
 1. Extreme Justice and Charity of Canon Law, . , , . . 294 
 
 2. Nature allowed for as being the Divine Natural Law . . 294 
 
 3. Religion not confounded with Morality , . . . . . 294 
 
 4. Dignity of the Society under its Sway . . . . . . 295 
 
THE ELEMENTS OE CANON LAW. 
 
 CHAPTER I. 
 
 THE RELATION OF CANON LAW TO OTHER BRANCHES OF LAW. 
 
 All laws are either of God's making or of man's 
 making (^). Hence Law may be exhaustively divided into 
 two kinds : (1) Divine Law ; and (2) Human Law f). 
 
 1. Divine Law is God's Law, whether as Creator or as 
 
 (}) The following Schedule will illustrate this chapter :- 
 / (1) As revealed to 
 
 ( A. Divine Law 
 = Pas, Bind- 
 ing on the 
 conscience. 
 
 All Law may 
 be divided 
 into 
 
 all men — Natural 
 Law, or inborn 
 instincts. 
 
 (2) As revealed 
 to the Jews — the 
 Law of Moses. 
 
 (3) As revealed 
 to Christians — the 
 
 L Law of the Gospel. 
 
 B. Human Law 
 = Jus, En- ■ 
 forced by 
 sanctions 
 
 (1) Statute or 
 Civil Law — the 
 Law of the State. 
 
 (2) Ecclesiasti- 
 cal Law — the Law 
 of the Church. f 
 
 (3) Law, impro- 
 perly so called, 
 > such as 
 
 (a) Morality, i.e. 
 Secular Morality, 
 Codes of Honour. 
 
 (6) Customs and 
 Social Bules. 
 
 (c) International 
 Law. 
 
 P) Gratian I. Dist. i. o. 1. 
 
a The Elements of Canon Law. 
 
 Moral Governour of the world. In the one case it is termed 
 Natural Law, in the other. Moral Law. 
 
 Natural Law Q) is what God the Creator has implanted 
 in us by nature, such as the instinct of self-preservation, of 
 self-defence, of propagation, and the like — in short, aU 
 those natural instincts common to aU men which spring 
 from their physical condition. 
 
 Divine Moral Law is what God has revealed of His wUl 
 touching human conduct either in Old Testament times 
 or in the Gospels f). 
 
 2. Human Law is Law of man's making. When written 
 it is more properly called Law, and when unwritten is 
 called Custom. Human Law is applied to two dififerent 
 sides of life : (1) the State, and (2) the Chm-ch. In the 
 former case it is called Civil or Statute or Common Law ; 
 in the latter. Ecclesiastical Law. 
 
 Civil Law (') is the Law of a Civil Community or Body 
 PoHtic (*). According to modern ideas it should aim at 
 securing the weU-beiag of the greatest number in and 
 
 (1) Isidorus, c. 4. ap. Gratian I. Dist. i. «. 7 : Jus naturale est 
 commrme omnium nationum, eo quod nbique instinetu natuTEe non 
 constitutione aliqua habetur, ut viri et feminae conjunctio, liberorum 
 suceessio et educatio, communis omnium possessio et omnium una 
 libertas. Augustinus ap. Gratian I. Dist. viii. c. 1 : Jure divine omnia 
 sunt communia omnibus : jure vero constitutionis hoc meum, illud 
 alteilus est. 
 
 (2) Joannes Chrysostomus mentions many things allowed in the Old 
 Testament which are forbidden by the Gospel. See Gratian Cans, xxiii. 
 Qu. viii. c. 14. 
 
 (S) Isidorus, c. 5, ap. Gratian I. Dist. i. o. 8 : Jus civile, quod quisque 
 populus vel quaeque civitas sibi proprium divina humanaque causa 
 constituit. 
 
 (*) It ought not, says Augustine, ap. Gratian I. Dist. ix. c. 1, to run 
 counter to natural law. 
 
The Relation of Canon Law to other Branches of Law. 3 
 
 through the State. Ecclesiastical (') Law is the Law of 
 a Spiritual Society, the Body of Chxist. Its aim is to 
 promote the advancement in holiness of all the laembers of 
 that Body with a view to their final salvation in the world 
 to come. 
 
 3. Canon Law is of a composite kind, and consists partly 
 of Divine and partly of Human Law. It includes : — 
 
 (1) What God has revealed of His will touching human 
 
 conduct in the Holy Scriptures (^) ; i.e. the Divine 
 Moral Law, and 
 
 (2) The Laws which the governours of the Spiritual 
 
 Society, the Church, have from time to time laid 
 down (*), viz., the Canons of Councils and the 
 approved Customs of the Church. 
 
 f ) Jus Ecolesiasticum is a terra of wider extension than Jus Ca- 
 nonicum. See Von Schulte, Geschichte der Quellen des Ganonischen 
 Bechts, c. 30. 
 
 (2) See Gratian I. Dist. ix. 
 
 (8) Whicli have less weight than Holy Scripture, according to 
 Augustine, ap. Gratian I. Dist. ix. c. 10. 
 
 B 2 
 
The Elements of Canon Law. 
 
 CHAPTER II. 
 
 DIVISION OP THE SUBJECT. 
 
 1. The subject-matter of Canon Law naturally falls into 
 the following three divisions : (1) the first dealing with 
 Canons generally and C^non Law ; (2) the second dealing 
 with the general Government of the Church and Jurisdiction ; 
 (3) the third treating of certain Essentials for the Church's 
 holiness and maintenance upon earth ; to which may be 
 added (4J a fourth, treating of certain extensions of Church 
 organisation in mediaeval and modern times. 
 
 2. In dealing with Canons generally and Canon Law, (1) 
 first the meaning of the term, the source and authority 
 of Canons have to be ascertained ; and then (2) the 
 various steps to be traced, by means of which a species of 
 Canonical Jurisprudence has grown up in the Church on 
 the basis of isolated Canons. 
 
 3. In treating of the General Government of the Church, 
 it will be necessary to consider, (1) the nature of Juris- 
 diction ; (2) the Officers through whom Jurisdiction is 
 administered, viz., the Ecclesiastical Hierarchy ; (3) the 
 Unit of Jurisdiction — the Diocese. 
 
 4. The Essentials necessary for the Church's holiness 
 and maintenance upon earth fall under the three classes of 
 Graces, Gifts, and Censures, and suggest as separate heads 
 for treatment : (1) The Sacraments and all other means 
 
Division of the Subject. 5 
 
 of Grace ; (2) Spiritual Gifts, whether of Orders or 
 MatrimoHy ; (3) Ecclesiastical Censures, both private and 
 public. 
 
 5. The extension of Church Organisation in Mediaeval 
 and Modern Times has principally affected three things : 
 (1) the Diocesan System, by creating Sub-units of Juris- 
 diction within the diocese ; (2) the System of Public 
 Worship, by substituting Public Worship for the Eucharist ; 
 and (3) the Administration of Discipline. 
 
The Elements of Canon Law. 
 
 PART I. 
 
 OF CANONS AND CANON LAW. 
 
 Befoke treating of Canon Law as a branch of Jurispru- 
 dence, it is well to consider the materials out of which 
 it is constructed. Hence a twofold division of the subject 
 suggests itself; the first treating of Canons generally, 
 the meaning of the term, their sources and their 
 authority ; the second treating of Canon Law as a scientific 
 whole. 
 
 DIVISION I. 
 
 OF CANONS GENEEALLT THEIE MEANING, SOTJECES, AND 
 
 AUTHOBITY. 
 
 CHAPTEK in. 
 
 OF CANONS GENERALLY. 
 
 1. The term Canon, from the Greek word Kavmv, 
 a carpenter's rule C) is ordinarily used to express a rule 
 of conduct sanctioned by the Church at large, whether by 
 
 f ) See Sohultei GescTiichte der Quellen des Canonischen Rechts, 
 Vol. I., p. 29. 
 
Of Canons Generally. 7 
 
 enactment or by custom ('). The Church of Christ being 
 a corporate unity — the Body of Christ consisting of many 
 members (^), Canons of the Church is the name applied to 
 the disciplinary rules regulating the outward conduct of 
 those members whilst upon earth ('). 
 
 2. In the New Testament a rule of doctrine or article 
 of faith is also called a Canon (*), and in this sense the 
 term is used by the Tridentine Council, and in more recent 
 times by the Council of the Vatican. It may therefore be 
 employed indiscriminately to express a rule of faith equally 
 with a rule of life. 
 
 3. Used in the latter, which is the more ordinary, sense, 
 it may be defined as a disciplinary rule regulating the 
 position and conduct of members, and the outward arrange- 
 ments of the Church upon earth. Such rules when made 
 by proper authority are styled Canons, and the whole of 
 them Canon Law by analogy to their civU counterparts (') 
 
 C) Gratian I. Dist. iii. writes : Eoelesiastioa oonstitutio canonis nomine 
 censetur. As to customs, Hieronymus ad Luoinium, Epist. xxviii., ap. 
 Gratian I. Dist. xii. c. 3 and 4, writes : traditiones eeelesiasticas . . . 
 ita observandas ut a majoribus tradita sunt. Justinian Institutes 
 Lib. i. tit. 2 ; Ibid. 0. 6 ; Diutumi mores consensu utentlum ap- 
 probati, legem imitantur. Ibid. c. 8 ; Gregorius universis episcopis 
 Numidise. 
 
 (2) Bom. xii. 5: oStws ol iroWoi %v trwfiii ifTfiev 4u XpiffT'T, d Se KaSeis 
 i.W'l\\uv iiiX'n' ITim. iii. 15; •liris iarXv eKKXiiaia 6tov ^avTOi. 
 
 (8) The definition given by the Eoman Canonist Caisson in his 
 Manuale (Pictavii, 1880), Vol. I., p. 3, is, Leges a quocumciue potestatem 
 legislativam possidente in bonum fidelium firmatje. 
 
 (^) Thus Philip iii. 16 ; irK^v its % 4(fi6daafi.ev, Tiy auT^ (rroixf7i' Kav6vi-, 
 and in Gal. vi. 16 ; <cal 'iaot t$ Kav6vi ToiiT<f ffrotx'lliy'ovffi , where Canon 
 appears used to express the creed or rule of faith. 
 
 (5) See Austin's Jurisprudence as to the accurate and inaccurate use 
 of the term Law. 
 
8 The Elements of Canon Law. 
 
 which bear the name of Civil Law, or in England Common 
 and Statute Law. But whereas Civil Law consists of the 
 rules which govern the conduct of individuals in their 
 relations to the Civil Community — the State, Canon Law 
 consists of those which are binding on the several members 
 of the Ecclesiastical Community — the Church. 
 
( 9 ) 
 
 CHAPTER IV. 
 
 THE CHURCH. 
 
 1. The Church (') is a divinely instituted, voluntary 
 Society of persons gathered out of the world (^) and placed 
 in the way of salvation (') by being admitted within its 
 fold. It not only is called, but is the Body of Christ in 
 such wise that all the persons composing it are branches in 
 a Vine of which Christ is the stock (^) and members of a 
 Body of which Christ is the Head (^). 
 
 2. The objects for which this Society has been called into 
 existence are : (1) that its members may by means of 
 Christ's holiness be themselves made holy (^) whUst upon 
 
 (') See Lehrhuch des Kirchenrechtes aller ChristUcher Confessionen. 
 Von Ferdinand Walter, Bonn 1871. 
 
 (2) Eom. viii. 28 ; oi kotA irpcfeeiny kXtjtoI- Eom. i. 6, 7 ; 1 Cor. i. 2, 
 24. K\i)Tol are the summoned ones, colleotively called ii iKK\riirta, or the 
 formally summoned assembly, ineluding both those who obey the call and 
 those who are disobedient. 
 
 (3) Termed o-tSfeo-flai, Eph. ii. 5 ; x'^P"^ ^""''^ irea-wirp,emi, Luke xiii. 
 23 ; ei oXlyoi ot (Ttii(6iJ.evoi, Acts ii. 47 ; irpoffiTlBei. tovs (rafo/ieVous . . . t;7 
 
 (*} John XV. 5 ; iyi> elfii 7j &fjiTre\oSt vfieis r^ K\-fifj.aTa. 
 
 (^) Eph. i. 22 ; Kal airhv eSaiKe K€(j)a\iiv virep TrdvTaTrj iKK\ri<ria. Eph. 
 iv. 15 ; "Os IcTTiv Ti KecjiaKii, 6 Xpurrhs, i^ oS irSy -rh aajxa (Tvvapfiohoyoi- 
 jxfiVov, K. T. A. Col. i. 18 ; koL ai^rSs iiTTLV ij Ke(^a\^ tov crdfiaros, rrjs 
 
 («) Thus Eom. i. 7 ; 1 Cor. i. 2 ; K\tito\ ayiot, called to be holy, and 
 2 Tim. i. 9 ; KAijiris 0710" Also 1 Cor. vi. 1 , 2 ; iKK\ricrlai rav kyiwv, and 
 Eph. ii. 19'; crviaoXlTai tuv ayiuv, 2 Thess. i. 10 ; irav iKBri eySolacr 
 Brfvai iv rots ayiois avrov' 
 
10 The Elements of Canon Law. 
 
 earth, and so fitted for final salvation hereafter, and (2) 
 that hy incorporating others into the same Society they may 
 maintain its continuity to the end of time ('), so that all 
 mankind may he partakers of a simUar benefit. Its note is 
 therefore holiness. 
 
 3. The Church is moreover an outward and visible 
 Society C), having an historical existence in time ('), 
 having Christ for its Founder from Whom it traces unbroken 
 descent, and being One and the Same throughout all ages. 
 Although it were possible to imagine a corporate society 
 founded by Christ, keeping up a continuous existence with- 
 out apostolic intervention ; yet, as a matter of fact and 
 history, the Society founded by Christ was established 
 
 (!) Matt, xxviii. 20 ; eytii ^e9^ vfiuv el/xi tratras ras Tifj.4pas ecos rrjs 
 ffvvT€\eias Tov alSivos' Matt. xvi. 18 ; IttI ravrri ry Trerpc^ oiKodofi-fifru fjLov 
 T-i]v 4KK\7j(rtaVj Kal triKai aSov ov KaTttrx^iTovffit' avTris' 
 
 P) The term iKK\ri(rla, a duly summoned meeting, conld hardly be 
 applied to an invisible society, neither conld the command to hear the 
 Church (Matt, xviii. 17). The various expressions in the New Testa- 
 ment — Acts V. 11, Great fear came upon all the Church ; viii. 1, A great 
 persecution against the Church ; xi. 26, Assembling themselves with the 
 Church ; xiv. 23, Ordaining elders in every Church ; xviii. 22, Saluting 
 the Church; 1 Cor, xiv. 4, Edifying the Church — all imply a visible 
 society, and not merely an indeterminate body of men thinking 
 alike. 
 
 (') The whole question as to the possibility of the existence of Canon 
 Law as a distinct branch of Law turns upon the view taken of the nature 
 of the Church. For if the Church be not a visible society, but only 
 what philosophers would call a subjective association, or the sum total 
 of those who think alike on certain religious matters, (who can, therefore, 
 never be known in this world), there can be no such thing as Canon 
 Iiaw, and what is so called is only «■ subordinate branch of Civil Law, 
 and derives all its force from the civil authority. The same result 
 follows if the Church be considered as necessarily conterminous with the 
 nation, after the analogy of the Jewish nation of old. For a long time 
 it appears that one or other of these views largely prevailed in England. 
 Hence, in a great measure, the neglect of Canon Law. 
 
The Church. 11 
 
 through the agency and intervention of the Apostles Q). 
 Hence, no other but the society so founded and continuously 
 maintained to this day constitutes the Church of Christ. 
 And this Society is called the One, Holy, Catholic and 
 Apostolic Church. 
 
 (1) Matt, xxviii. 19 : tropevdevres odv fiaBt^Te^ffwre irdyra to e6v7}t 
 /SairrffovTes ouToiij . . . SiSdcTKoyres auTobs K- t, \. (Mark xvi. 15, Luke 
 xiiv. 47.) 
 
12 The Elements of Canon Law. 
 
 CHAPTEE V. 
 
 THE CONSTITUTION OF THE CHTJKCH. 
 
 The Society so founded derives from Christ Himself its 
 Constitution Q-). This it cannot alter without being faith- 
 less to its trust or apostate ; nor can any portion of the 
 Church alter it without cutting itself off from the rest. 
 According to that Constitution it is One, Holy, Catholic, 
 and ApostoHc. 
 
 1. The Church is One, seeing that there is " One Lord, 
 One faith. One baptism" Q), and that Christ prayed that 
 His disciples aU might be One ('). Hence expressions 
 like the Eastern Church, the Western Church, the Church 
 of Jerusalem, or Antioch, are inaccurate and misleading so 
 far as they seem to imply a plurality of Churches. For no 
 such plurality can exist, the Body of Christ being One (*), 
 of which they all are parts. Those who cause rents or 
 divisions (") in the Unity of that Body are called Schis- 
 
 (1) The divine framework of the Church, established by the Church's 
 Founder, — its Constitution, must be distinguished from its disciplinary 
 laws, albeit the latter are given by divine guidance. The former is 
 immutable; the latter may be changed by the same authority that 
 made them. 
 
 (2) Eph. iv. 5 : fls nipios, ida ulaTis, %v PdirTur/ia- 
 
 (') John xvii. 21 : tya irdvTfS ev &<rr Ka9iis trii, irdrep, iy ipAi, Kay^ iv 
 <rol, Tva Kol avrhi iv i^fiiv %v Suriv 
 
 {*) See authorities, ap. Gratian Cans. xxiv. Qu. i. c. 18-34. 
 
 (5) 1 Cor. i. 10 : /i)) ^ ev i/uv (Tx^it/ioto- 1 Cor. xii. 25 ; iva /ijj y 
 ffx^<^f^tt Iv T^ trdtfULTi, aWh rh ahrh uTrep aAA^Aoiv fieptfiywfft ra ft-^^if 
 
The Constitution of the Church. 13 
 
 matics. To establish and uphold this corporate Unity, 
 Christ Himself ordained the Sacraments (^). 
 
 2. The Church is Holy, because it is the Body of Christ. 
 The holiness of the Head (^ sanctifies the members ("), and 
 their sanctification is the object of its existence upon 
 earth (*). 
 
 3. The Church is Catholic, v.'hich means (1) that it 
 embraces men of all nations, herein differing from the older 
 society of the Jewish covenant which was limited to one 
 nation only, that of the Jews (^) ; and (2) that it consists of 
 the main body of the Christian society, steadfastly cleaving to 
 the Apostles' doctrine and fellowship ("), in contradistinc- 
 tion to the factions (') which elect to strike out new lines of 
 
 (') Augustine, Traotat. xiii. ad c. 3 loannis ap. Gratiau Caus. i. 
 Qu. i. 0. 56. 
 
 (2) Mark i. 24 ; Luke iv. 34 ; John vi. 69 ; d ayios rov 9eov- Conf. 
 Acts. iii. 14 ; iv. 27 and 30. John x. 36 ; iv i iraTiip riyiaa-ev 1 Pet, i. 
 15 and 16 ; /caTo; rhv KaX^aavra vfias ayioy, Kol avrol aytoi ey irdirri 
 at/affTpofprj yevlidTfTe, St6ri yeypairrai *6ri ayioL yeyea'Qe, Srt ky& aytos' 1 Cor. 
 iii. 17 ; 6 yap yah? rod deov dyi6s iffriy, o'lrtves etrre v/xels' 
 
 (') Heb. X. 10 : 4y i^ 9€A<)/joti riyiaa-fiemi eafiey 1 Cor. i. 2 : 
 7iyiatTf^€vois 4v XpiffTcp 'Itjo-oS* Jude. i. ; ro7s ev 6e^ irarpl Tiyia(rfieyois Kal 
 
 'iTJfTOV "KptffT^ T€T7}pT}fJl,eyotS KKrjToTs' 
 
 (*) John svii. 19 : Kal uirsp aurwy iy&i ayLd^oi efiavThy, %va KaX avrhi Sxriy 
 nyta(Ty.4voL iy aXijOeic^' 
 
 (^ See the argument in the Epistle to the Romans, showing that the 
 old Covenant was confined to Abraham and his seed, whereas the new 
 Covenant is for all (iii. 22) ; eis Trdyras teal IttI Travras Toiis irtfTTevovTas' 
 ov ydp iffTi Siao'ToK'fj' {v. 18) ; eis trdyras ayQpdiirovs els StKaica(Tty ^wt}S' 
 The word Catholic does not, however, appear in the New Testament. 
 
 (6) Acts ii. 42 ; ijcrav Se TrpoffKaprspovyres ry SiSax^ ray aTro(TT6Xwv 
 KoX Ty KOiytavla KaX tt? KXdffei rov &prov Kal rats irpotreuxaTs" 
 
 O Such as existed in the Corinthian Church, one calling himself of 
 Paul, another of ApoUos, a third of Cephas, 1 Cor. i. 12. These factions 
 are referred to as heresies in 1 Cor. xi. 19 ; SeT yttp Kal alpiffeis iy i/uy 
 (tniipxe^y' See Peter ii. 1 ; iy i/uy taoyrai i//eu5o5i5a(rKaA.oi, o'Itlv^s 
 irapeLcrd^ovffty alp^treis aTrwAefas. 
 
14 The Elements of Canon Law. 
 
 teaching for themselves, and are hence called Heretics (^). 
 Catholic doctrine is the name applied to what in the New 
 Testament is called the Faith (57 Tr/o-rt?) f), and is that 
 which hath heen ever and everywhere taught in the 
 Church f), which is set forth more explicitly in the Creeds, 
 and which has been defined more closely from time to time 
 as heresies required it 0. 
 
 4. The Church is Apostolic. For it was by its divine 
 Founder committed to the care and guidance of the 
 Apostles f). Through them it has received its form of 
 
 (^) Titus iii. 10 ; AlperLKhv IkvBpaynov fierSi. fiiay KaX S^vrepav vovdetrtdv 
 TTOfMUTov. SeeHierouymus in Agg£eumc. 2, in Amosc. 5. Concil. Laodi- 
 cense Can. 32 ; Concil. Martini Can. 70 ; Leo Epist. xlviii. c, 2, and 
 Ixxiil. Cyprianus contra Haeretioos. Gregorii iii. Lib. Diet. c. 30. 
 Innocentii Epist. Iviii c. 3 : all ap. Gratian, Cans. i. Qu. i. c. 60, 61, 
 66, 67, 68, 69, 70, 72, 73, also Cans. xxiv. Qu. iii. c. 27 to 33. A list of 
 heretics is given by Gratian in Cans. xxiv. Qu. ui. c. 39. 
 
 (^ Acta iii. 16 ; 9) irlans tj Stk 'lri<rov Xpurrov' Acts. xiv. 22 ; i/i/ieyeiy 
 Ty TT^ffTet, xvi. 5 ; icmpeovvTO rp Trlarei Bom. iv. 19, 20 ; 1 Cor. xvi. 
 13 ; ffriiKerf iv rp Trlanr Tlom. xi. 20 ; 2 Cor. i. 24, xiii. 5 : etvai iv 
 TT^ -niiTTei' 2 Tim. iv. 7 ; rijpetv r^v iriffTiv Col. ii. 7 : ^e^aioitrBat iv ttj 
 iritnei' 1 Tim. iv. 1 : aTrotxr-fiffovTai rtves riis irlffTeus' Jude 3 : iiraywvi- 
 ^effSat TT? ctTTal irapadodeitrri rois aytois Tritrrei' 
 
 P) Vincentius Lerinensis Augustin. ap. Gratian Diet. ix. c. 8. 
 
 (*) On the difEerence between Heresy and Schism, see Gratian 
 Caus. xxiv. Qu. iii. c. 26. 
 
 (5) The charge given by Christ to hia Apostles, Matt, xxviii. 19, waa : 
 '5(1077 /*"* iraffa i^ovaia iv oupav^ Kal iirl yrjs' iropeuffevTes oiv 
 /AO07jT6i5(raTe troivTa t4 ^6vri, $airri^ovres avrovs. . . . SiSdiTKovres 
 aiiTovs . . • These worda imply (1) that the plenitude of power 
 resides in Christ ; (2) that in the exerciae of that power, the charge 
 was given to the Apostles (a) of gathering a Church together out of the 
 world by the rite of baptism, and (6) of teaching the membera of that 
 Church to observe Christ's commands. That cLarge atUl rests with the 
 successora of the Apostles, i.e. the Collective Episcopate for iSoi iyii fieS' 
 v^av elfii Trdffas rhs i^fiepas eats ttjs (TvvreKeias tov aiuvos' Hieronymus 
 ad Titum, i. c. 9, ap. Gratian I. Dist. xcv. c. 5. See Chap. xxix. 
 
The Constitution of the Church. 15 
 
 government, which they who decline are called Sectarians. 
 It is seen in the New Testament that the Church was 
 administered by the Apostles themselves through priests 
 (called elders or bishops) and deacons 0, and that over 
 these others, such as Timothy, were appointed as over- 
 lookers, or bishops in the modern sense. 
 
 Thus Corporate Unity, and Holiness, Catholic Doctrine, 
 and Apostolic Order are the true notes of Christ's Church 
 upon earth. 
 
 f ) The term irpicrBirepoi, elders, is used to designale the irpoecrTSiTes 
 (1 Tim. V. 17) who were appointed [KaBio-Tiivai, Tit. i. 5), or chosen 
 (xiiporovi7v. Acts xiv. 23), from Church to Church (kbt' ^/c/cA^ iriaj'. Acts, 
 xiv. 23) ; and from city to city («aTciTr(i\ii/, Tit. i. 5). In the first notice 
 we have of them (Acts xi. 30) they appear as discharging functions similar 
 to those for which the deacons (Acts vi.) were appointed. On leaving 
 Miletus S. Paul entrusted to them their work (Acts xx. 17), the nature 
 of which may be gathered from Acts xx. 28 seq. ; 1 Tim. v. 17 ; James v. 
 14 ; 1 Pet. T. 1 ; and they are indiscriminately called there TrpstrPiTspai 
 and iTrla-Koiroi In Phil. i. 1, the InricrKoTroi are mentioned side by side 
 with the SiiKopoi, showing that they are the same who elsewhere are 
 called Trpea^irepoL So also in 1 Tim. iii. 2, compared with v. 8 ; and 
 Tit. i. 7, compared with v. 5 ; Clem. Eom. i. Bp. ad Cor. 42, writes : 
 Karci x^P^"^ °^^ ^^ TTtJAeiS oX cLTrSffToKot KripinrffovTis KaOiaTavoy tcls 
 airapx^s avrwv . . . eis iirLfrKSirovs Koi 5taK6i'ous r&y fieWSvTwu 7ri(rTei56iy 
 
 P) See 1 Tim. iii. 15 ; 'lua elS^s ttHs Sei Iv oIki^ Oeov avaa-rpecpiirdar 
 Tit. i. 5 ; Toiirou x^P**' Kar^KitrSv tre ^v Kp^r-p, 'tva ri X^iirovra iiriStopdtiKrr] 
 Kol KaT aar-fia-ris Kara •n6Kiv •jrpsa'^uTepovs, iis i'y(i (fot diera^dfiTiy 
 
16 The Elements of Canon Law. 
 
 CHAPTER VI. 
 
 THE. CHURCH S POWEE OF MAKING CANONS. 
 
 1. The Church has as well the ordinary right inherent in 
 every Society, as also a special divine right of making rules 
 and regulations C) for its own government. This right, 
 however, exists, and may only he exercised subject to 
 certain limitations ("). 
 
 The Church may not order anything contrary to its 
 divine constitution or the divine laws established by Christ. 
 Were it so to do, it would forfeit its character as the 
 Church of Christ and become apostate, a fate from which 
 Christ has promised it shall be preserved. But it has full 
 power to change from time to time its disciplinary rules, not 
 excepting such as were established by the Apostles them- 
 selves. For it is the function of the Church to educate its 
 members in the way of eternal life, and of the best means 
 thereto it is the judge. 
 
 2. To be of force, all rules and regulations must be made 
 by the proper legislative authority within the Church (*) ; 
 
 P) Gratian I. Dist. iv. c. 1. FaotaB aunt autem leges ut eaium metu 
 humana ooerceatur audacia. Dist. xv. o. 1. 
 
 (8) Gratian I. Dist. iv. u. 2. Brit autem lex honesta, justa, possibilis, 
 secundum naturam secundum patriae oonsuetudinem, loco temporique 
 conveniens, neoessaria, utilis manifesta quoque ne aliquid per obscuri- 
 tatem in oaptionem contineat. 
 
 {») .John X. 1 : 5 ujj iicrepxifi'evos Si4 Trjs Bvpas tij riiv aiiKiiv rav 
 irpoPdroiv, a\A.a ayafiaivasv aWax^Ssv, e/ccivos KKeirrris ecttI koI Xptrr^r. See 
 Gratian I. Dist. x. c. 5. 
 
The Church's Power of Making Canons. 17 
 
 or else have by long custom and acquiescence obtained the 
 force of such rules (') . 
 
 Such rules must not be capricious, but must have for 
 their end the furtherance of the object for which the Church 
 has been placed upon earth, viz., the salvation of mankind 
 by means of Christ's holiness f). 
 
 3. The . power that can make can also unmake. The 
 Church has, therefore, the power of abrogating generally or 
 of relaxing in. particular instances f) all rules of its own 
 making. Such particular relaxations are called dispensa- 
 tions, but no dispensations can alter the divine constitution 
 of the Church,' nor the divinely-given laws by which it is 
 governed 0. 
 
 P) Gratian I. Dist. xl. c. 5 and 7. Dist. xii. u. 3 to 9. 
 
 P) The old definition quoted by Caisson in his Manuale, vol I. p. 146 : 
 Potestatem jnrisdiotionis ecclesiasticffi esse potestatem regendi et guber- 
 nandi subditos in ordine ad vitam seternam. Gratian, Dist. x. c. 4 : 
 Constitutiones contra . . . bonos mores nullius sunt momenti. 
 
 (3) Authorities ap. Gratian, Caus. i. Qu, vii. u. 11 to 15, and 23. 
 
 (*) Gratian I. Dist. xiii. and Dist. xiv. o. 2. 
 
18 The Elements of Canon Law. 
 
 CHAPTER VII. 
 
 THE SANCTION ATTACHING TO CANONS. 
 
 All rules bem^ admittedly inoperative unless there be 
 some sanction attaching tliereto, there must needs be some 
 sanction attaching to the Church's rules. This sanction 
 is of two kinds ; (1) the inward sanction of Conscience, (2) 
 the outward sanction of Spiritual Censure. 
 
 1. As to the first : — The pursuit of holiness (which is 
 the end, of the Church's existence upon earth) being to the 
 individual a matter of conscieace, no one can be conscious to 
 himself of sincerely pursuing this end who wilfully neglects 
 the means which the collective wisdom of the Church has 
 prescribed for that purpose (^). Hence a duly published 
 Canon is said to be bindiiig on the conscience. 
 
 2. Spiritual Censure is brought into exercise (*) by 
 means of ecclesiastical jurisdiction, when offence or scandal 
 arises in the Church, and may be either in the form of 
 penance, or in the form of excommunication. 
 
 (') See the language used by S. Gregory of the 4 General Councils in 
 Gratian I. Dist. xv., c. 2. Sicut sancti eyangelii qnatuor libros, sic 
 quatuor eouoilia guscipere et yenerari me fateor .... Cunctaa yero quaa 
 prsefata veneranda concilia peraonas respnunt, respuo ; quas venerantur, 
 amplector ; quia dum uuiversali sunt consensu constituta, f e et non ilia 
 destrait, quisquis prsesumit aut solvere quos religant, aut ligare quos 
 solvunt. 
 
 (^ See' Augustin. d& verbis Dom. Serm. xi., ap. Gratian CauB. i. 
 Qa. i. a. 81. 
 
The Sanction Attaching to Canons. 19 
 
 Penance, or partial exclusion from the Christian Society, 
 is said to he exercised for the soul's health, when the aim of 
 the Church is to reform an offender. 
 
 When Excommunication or total exclusion is applied, the 
 aim is to remove from the rest a source of contamination 
 to the Church's purity. 
 
 3. In the Middle Ages the Church also obtained Civil 
 or Secular sanction for its Canons and administration C), 
 out of which grew (1) the establishment of National 
 Churches, (2) Concordats, (3) the Confusion of Church 
 aud State. 
 
 When the members of the Church living within the 
 limits of particular localities or nations formed themselves 
 into groups apart from other branches of the Churchy such' 
 groups were called National Churches. 
 
 Concordats is the name applied to' agreements entered 
 into between National Governments and branches of the 
 Church locally situate within' the territory of those 
 Governments, whereby such National Churches surrendered 
 in a great measure their freedom' of administrfition in return 
 for secular advantages being assured to them (?). 
 
 The confusion and intermixture' of Church and State, 
 which followed in consequence,, was ■ such that to some the 
 invisible Church appeared merged in the world (") and to 
 
 (1) This happened as early as the 4th century, and was the rule 
 throughout the Middle Ages. -. 
 
 ^2) See Part iv. 
 
 (3) In the time of Gregory VII., Innocent III. and Boneface "VIIT., the 
 Pope and the Emperor, were spoken of as the Sun and Moon of one World- 
 Empire. See Eoichel's See o}' Rome pp. 282 seq. LabbS xii. p. 476 and 
 Decret. Greg. IX. Lib. i. Tit. xxxiii. u. 6. 
 
 C 2 
 
20 The Elements of Canon Law. 
 
 have lost the note of holiness. Hence a reaction set in, 
 one of the results of which was a falling back on unity 
 of sentiment in place of unity of communion, and the 
 setting up of an invisible Church of persons thinking 
 alike in place of the corporate society actually founded, 
 by Christ. 
 
( 21 ) 
 
 CHAPTER VIII. 
 
 THE LEGISLATIVE ADTHOEITY IN THE CHURCH. — THE- 
 COLLECTIVE EPISCOPATE. 
 
 The making of rules and regulations can only be exercised 
 in the Church by the Legislative power to which it belongs 
 of right, and they to whom it belongs of right are those to 
 whom it has been entrusted by Christ, i.e. the Apostles, 
 and those commissioned by them. At the Council of 
 Jerusalem " it seemed good to the Apostles and^ Elders 
 together with the whole Church " (^) to make the decrees, 
 whence it appears that the Clergy generally and the Laity 
 have a certain share in the making of Canons as well 
 as the Bishops of the Church. 
 
 1. The share of the Clergy generally and the Laity in the 
 making of Canons does not go beyond assenting to them 
 (^) and such assent is necessary before Canons can be con- 
 sidered in force. At different times this assent may and 
 has been expressed in different ways. Usually it is not 
 more than receiving them submissively when made known, 
 as becomes sons in the faith, and is given at the time of the 
 Publication of a Canon. Hence the importance of Publica- 
 tion in Canon Law. 
 
 2. The initiative in ecclesiastical legislation, however, 
 
 I}) Acts. XT. 22 ; €5o|e tois diroiTTiJAois xal to7s irpnT^iirepois criv 8X17 
 (s) Gratian I. Dist. Ixii. c. 2. 
 
22 The Elements of Canon Law. 
 
 rests with the Bishops as inheritors of the Apostle's com- 
 mission ; for Christ's commission (S. Matt, xxviii. 19, 20) 
 was specially given to them, and they were chosen from 
 among the other disciples {S. Mark iii. 13) to be Shepherds 
 to feed the flock (Heh. \. 2), 
 
 3. It rests, moreover, not with the Bishops individually, 
 but with the collective Episcopate Q) ; for Christ's com- 
 mission was given to the Apostles, not individually, but as 
 a body.(S. Matt xxviii. 19, 20 ; and xviii. 18). 
 
 lu s© far as the P(^e was at any time the representative 
 or proctor jefihe collective Episcopate, he may be considered 
 to have rightly exercised the initiative in ecclesiastical 
 Legislation. Hence the authority claimed for certain 
 Decretals -and Constitutions f ). 
 
 4. In aa Ecumenical ®r General Council of the Bishops 
 of the whole Church tthe voice of the collective Episcopate 
 properly speaks. The decrees or canons of such a Council, 
 therefore, when asseeted to by the Clergy and Laity are of 
 full obligation for all Christian peofle f). 
 
 A derivative Legislative power rests with the Bishops 
 assembled in Provincial or National Council, such councils 
 being deemed to represent the collective Episcopate, so far 
 as the making of rules or Canons is concerned for the special 
 
 (1) Hence the great importance attaching to gatherings of the 
 Episcopate which were ordered to be held twice a yeai. See Leo I.'s 
 letters in Gratian I. Dist. xviii. c. 2 ; and the various authorities there 
 quoted, for compelling the attendance of bishops at these synods, and 
 the consent of comprovincials necessary. Gratian I. Dist. Ixv. 
 
 (') Gratian I. Dist. xix. and xx. Cans. xxv. Qa. i. c. 6-9. 
 
 P) Bishops were required to communicate to their Churches the 
 decisions of General Councils. Gratian I. Dist. xviii. c. 17. Gelasius 
 ap. Gratian, Caus. xxv. Qu. i. c. 1. 
 
Tlie Legislatke Authority in the Church, 23 
 
 needs of the Provinces or Nations which thfiy represent. 
 Rules made by a Provincial Council are of force therefore 
 in the district for which they were made. Elsewhere 
 they carry weight by analogy only, as being utterances of 
 the Episcopate, and believed to represent the Collective 
 Episcopate until such time as it shall have expressed itself 
 otherwise. 
 
 Eules made by a single Bishop are not Canons. Though 
 made in a diocesan Synod, they are no more than Statutes 
 of the diocese, and have force only within the area of the 
 individual Bishop's jurisdiction, and in it on those only who 
 are the subjects of that jurisdiction (^). 
 
 (') Gratian I. Dist. xviii; Episcoporum igitur concilia aunt in valida 
 ad defiuiendum et constituendum, non autcm ad corrigendum. 
 
24 The Elements' of Canon Law. 
 
 CHAPTEE IX. 
 
 ECCLESIASTICAL JURISDICTION — THE DIOCESAN EPISCOPATE. 
 
 As it belongs to the Bishops collectively to initiate 
 legislation for the Church, so the care of enforcing the 
 observance of Canons when made rests with the Bishops 
 individually within the districts or dioceses severally entrust- 
 ed to their charge. This delegation of local administraA 
 tion is called Jurisdiction. 
 
 1. All jurisdiction is, therefore, derivative and not 
 inherent, i.e., it is derived from the Church as a whole, and 
 is granted by the Collective Episcopate to Individual 
 Bishops in the exercise of its care for the whole Church f ). 
 By virtue of his consecration every Bishop becomes 
 a member of the Collective Episcopate, a joint-partaker and 
 fellow-sharer in one undivided office, viz., the oversight of 
 
 (1) Gratian I. Dist. Ixi. o., 11. Dist. Ixii, c. 1.; Dist. Ixiii, c. 35.; 
 Dist. Ixiv., 0. 4. Hence there may be Bishops who have no local jurisdic- 
 tions, and there may be episcopal jurisdiction exercised by those not of 
 the Episcopal Order. An instance of the former appear to have been the 
 XapeiriffKoxoi or village-bishops, referred to in Canon VIII. of the 
 Nicene Council, and Canon II. of the Council of Chaloedon ap. Gratian 
 Ixviii. c. 4. See also Canon x. of the Council of Antioch : li qui sunt in 
 vicis vel pagis, qui diountur Chorepiscopi, eiiamsi Episcopi ordinationem 
 manuumve impositionem acceperunt, visum est ut suum modum sciant 
 et sibi subjectas Bcclesias administrent nee presbyterum nee diaconum 
 ordinare audeant absque Urbis episcopo, cui subjectus ipse et regio. An 
 instance of the latter is the exercise of episcopal functions by a Chapter 
 through a Vicar during the vacancy of a see. Chorepiscopi might be 
 consecrated by one bishop. Gratian I. Dist. Ixvii. 1. 
 
Ecclesiastical Jurisdiction — The Diocesan Episcopate. 25 
 
 the whole Church (') . The tli vision of this office for adminis- 
 trative purposes and the entrusting of the exclusive oversight 
 of the Church in any particular district to a single head is a 
 matter of ecclesiastical order f). 
 
 Such a distribution of one undivided office had obtained 
 previously to the Council' of Nicsea, and was expressly 
 approved by that Council f ) ; and such division has obtained 
 ever since. Nevertheless, the jurisdiction of individual 
 Bishops is always subject to revision by theii- fellow-bishops 
 in case of need. 
 
 2. The supervision and revision by the Coepiscopate is 
 exercised both by the necessity of their concurring in the 
 appointment of a new Bishop, and also by the power of 
 appeal, which is never dormant (*) ; in the first instance from 
 a single Bishop to his fellow-bishops next adjacent through 
 the Metropolitan ; in the next place from the Bishops next 
 adjacent to those of a wider circle through the Primate or 
 the Patriarch ; and ultimately to the collective Episcopate in 
 General Council assembled. Thus no Bishop stands alone, 
 although exercising direct jurisdiction over his own diocese ; 
 
 (1) Cyprian ap. Gratian, Caus. vii. Qii. i. c. 6. Caisson Mannale I. 
 p. 171. 
 
 (2) Cvprian Epis. 55, ad. Corn. Pap. ap. Gratian I. Dist. Ixv. and 
 livi. and Ixxxi. Singulis Pastoribus portio gregis adscripta est, qnam 
 regat unusquisque atque gubernet. See also Augustiu. Epist. ad. Euse- 
 bium 34, and Canon ii. of 1 Council of Constantinople ; Kara Tois 
 Kav6vas^ rhv fi^y 'AA.e|aj/Sp6ias eTrlcTKOTrov to. ei/ AIyutttol) ix6uov olKovoiXitv* 
 Tovs Se rrjs avaTo\7Js ^Tn(Tn6irous T7]V avaroX^v fj.6i^7}v SioiKetU' . - . Koi Tohs 
 rrjs 'A(riai/j)s SioiK^atws ^niaKd-jrous Tot Kara r-^v 'Aciai/^v ^6tfov olkovo/xgiv 
 
 If. T. A. 
 
 (8) Concil. Nieffin. Can. 4 and tj, ap. Gratian I. Dist. Ixy. c. 6. 
 (*) Gratian I. Dist. Ixv. c. 1. Concil. Nicasan. Canon vi. Gratian 
 I. Dist. Ixiv. c. 5 and 6., also Ixv. c. 4, 8 and 9. 
 
26 Tlie Elements of Canon Law. 
 
 but in every case other Bishops are associated with him, 
 exercising, when required, a joint Episcopal control C) that 
 so the rule of the collective Episcopate may be everywhere felt, 
 and that no portion of the Ohurch may suffer through the 
 delegation of jurisdiction to individuals. 
 
 3. A local district entrusted to the charge of a single 
 Bishop is called a diocese. When several dioceses are 
 combined, the whole is called a Province, and the presiding 
 Bishop a Metropolitan ('). When several Provinces 
 within the limits of one nation are united, the whole is 
 called a National Church, and the presiding Bishop a 
 Primal e. And when a larger group of Provinces are 
 brought together under the presidency of one, the whole is 
 called a Patriarchate, and the presiding Archbishop a 
 Patriarch f). These divisions and the graduated Hierarchy 
 of Jurisdiction which they imply are purely matters of 
 Church Order, and may at any time be altered as circum- 
 stances require. Thus five Patriarchates only were known 
 to the Council of Constantinople ; to wit, Rome, Constanti- 
 nople, Alexandria, Antioch, and Jerusalem. In later times 
 other centres were added. In the mapping out of local 
 jurisdictions the early Church usually followed the civil 
 arrangements of the Empire. It, therefore, committed to a 
 single Bishop a town (*) together vrith the adjacent 
 villages, to a Metropolitan a more important city together 
 
 (1) Gratian I. Dist. Ixvi. e. 1. ; Ixxx. e. 6 ; xcii. c. 8. ; I. Dist. xc. c. 11. 
 
 (2) Concil. Chalcedon. Can. 12, a.d. 451. 
 (') Gratian I. Dist. xeix. 
 
 (*) Christianity appears to have been originally planted in tbe 
 mother cities mHropoles, whence it slowly spread to the pagi, or villages, 
 the latter continuing heathen, and henotf called pagani long after it was 
 
Ecclesiastical Jurisdiction — Tlie Diocesan Episcopate. 27 
 
 with the presidency of the adjoining Bishops, to a Patriarch 
 or Primate (') a Capital City together with the place of 
 honour among the Metropolitans. And amongst Patriarchs 
 stood pre-eminent the Bishop of the Capital City Rome 
 0, Patriarch of Italy and the West, and successor of S. 
 Peter. 
 
 universal in the cities. It ie highly probable that the nomenclature of 
 the Church was taken from that of the synagogue as Owen, Canon Law 
 p. 29, suggests. 
 
 (^) Gratian I. Dist. xcix. c. and oi. 
 
 C) Gratian I. Dist. Ixxix. and xcix. c. 4., and xcvii. 
 
28 The Elements of Canon Law. 
 
 CHAPTER X. 
 
 AUTHORITATIVE SOURCES OP CANONS. 
 
 Ecclesiastical laws being only valid, when they are 
 authorised by Legislative authority in the Church, it is well 
 to inquire how this authorisation may be given. This may be 
 done in one of two ways, (1) either directly and by 
 enactment, in which case they may be said to be regularly 
 made, or (2) indirectly and by suiferance, in which case 
 they may be called irregular. To the former class belong 
 (1) Canons of Councils, and (2) certain Papal Decrees and 
 Constitutions ; to the latter, (1) Local Customs, and (2) 
 Eules of Law. 
 
 1. Canons of Councils, are either Canons of General or 
 Canons of Provincial Councils. Canons of General 
 Councils are of all the most authoritative. In them the 
 Collective Episcopate legislates for the whole Church, and 
 they therefore are of obligation for all Christians. 
 
 Of lesser authority are the Canons of Provincial Councils, 
 or assemblies of Bishops of one or more Provinces. 
 Within the Province or Provinces of the Bishops composing 
 them, they are of obligation when published. Outside these 
 Provinces they have no force necessarily, save as indicating 
 the mind of the Episcopate, so far as the matters to which 
 they apply have been brought under its notice. Under 
 similar circumstances, and in default of other Canons, they 
 
A uthoritative Sources of Canons. 29 
 
 may be applied elsewhere, and thus they may in time 
 acquire elsewhere the force of accepted customs. 
 
 2. Not less authority was allowed in the Middle Ages to 
 the decisions of the Roman Bishops ('), on the ground that 
 they were not only the rulings of a great Metropolitan, but 
 also of the Patriarch of the "Western Church, to whom 
 belonged a further undefined precedence as successor of 
 S. Peter. These decisions are of two kinds, (1) 
 Sentences or Decrees, and (2) Constitutions. 
 
 Sentences are the rulings mostly of the earlier Bishops 
 of Eome, before the institution (^) of the College of 
 Cardinals ('). They are called Decrees when they are 
 decisions of a general character, made proprio motu, 
 whether before a Congregation of Cardinals or not ; 
 Decretals when they are sentences on particular cases given 
 by request or after consultation with others; Rescripts 
 when they are written replies to inquiries on doubtful 
 points (*). 
 
 Constitutions are the Conciliar utterances of the Pope 
 and Cardinals in Council assembled. According to the 
 degi'ee of formality with which they are issued, they are 
 called either Bulls, when issued by the Chancellor of the 
 Roman Church and sealed with a leaden seal. Briefs 
 when less formally written and impressed with the seal of the 
 
 {>) Gratian I. Dist. xix. 
 
 C) Caisson Manuale, vol. I. p. 32. 
 
 (8) The College of Cardinals was instituted by Nicolas II. a.d. 1059. 
 See the Deoretum in Labb6 xii. 50 quoted in Beichel's See of Mcme, p. 
 192, note. 
 
 (4) In case of Besoripts being at variance, see Decret. Gregory IX. 
 Lib. i. Tit. iii. 
 
30 The Elements of Canon Law. 
 
 Fisherman {}), or Encyclicals when addressed as circular 
 letters to the Bishops and Clergy. 
 
 Papal Decrees which have been accepted and acted 
 upon, must be allowed to have at least the force of Customs, 
 and Papal Constitutions to have not less authority than the 
 Canons of Provincial councils ; and during the long time 
 from the breaking up of the Roman Empire until the dawn 
 of the Reformation, when the Popes were the de facto 
 representatives and spokesmen of the whole Episcopal Body, 
 they may justly claim a much higher degree of authority. 
 
 (1) Caisson Manuale, vol. I. p. 33. 
 
( 31 ) 
 
 CHAPTER XL 
 
 SUBSIDIARY SOURCES OF CANONS, 
 
 Besides Canons made by regular authority there are 
 other rules derived from subsidiary sources, having in them- 
 selves no direct authority in the Christian Church, but 
 having by sufferance and long acquiescence acquired a kind 
 of indirect authority, so that they are of the nature of 
 Canons, and in practice are not distinguishable therefrom. 
 They are of two kinds ; (1) Customs, (2) Rules of Inter- 
 pretation. 
 
 1. Customs or Customary rules (') are such observances 
 as have grown up and been generally acted on and received 
 without any known initial authorisation. They are allowed 
 either to serve as an authoritative commentary on Canons 
 properly so-called, by way of extension or interpretation ; or, 
 in certain cases, they may even act as general dispensations, 
 when they run counter to them. 
 
 Customs are said to be Extensions of Canons when they 
 go beyond them, and have been used in cases to which no 
 
 (1) The following conditions of a valid custom are laid down by 
 Caisson Manuale, p. 59 ; (1) They must have taken root in the com- 
 munity, or (2) at least the major part thereof ; (3) they raust be well- 
 known ; (4) have been publicly acted on ; (5) freely ; aiui (6) with- 
 out interruption. There are many cases in which no prescription by 
 custom is allowed. See Decret. Greg. IX. Lib. i. Tit. iv. 
 
32 The Elements of Canon Laiv, 
 
 Canons apply, but to which they apply by analogy following 
 in the same Hnes. 
 
 They are Interpretations of Canons when they agree with 
 them, and therefore only explain them so far as they are 
 doubtful or obscure. 
 
 They act as general Dispensations when they are opposed 
 to Canons. Before being allowed to have this effect they 
 must, however, be shown (1) to be reasonable, which 
 means useful to the people without giving license to sic, and 
 (2) to have sufficient Prescription (■). 
 
 In allowing, an indirect authority to Customs the 
 Church appears to have kept in view the great aim 
 of all its legislation, which is the advancement of holi- 
 ness in the world ; considering it wiser to acquiesce in 
 Customs shown to contribute to holiness rather than 
 to insist on uniform rules which might locally fail of 
 promoting it (^). 
 
 2. Where Customs do not interpret existing Canons, 
 there Rules of Interpretation may be applied. These, as 
 being the work of Judges and Lawyers, have likewise 
 no direct authority, but only such indirect authority as 
 arises from being generally received and acted upon. 
 
 Rules of Interpretation are manifold. • Eleven are cited 
 
 (') A prescription of at least ten years is required when they are 
 extensions of law ; and certainly a prescription of forty years is enongh 
 when they are against law. See Gratian, Cans. xvi. Qu. iv. In some 
 cases a prescription of thirty years suffices as when one Church presorihes 
 against another. See Gratian, Caus. xvi. Qu. i.i. Decret. Greg. IX. 
 Lib. ii. Tit. xxvi. 
 
 ^^) A onstom may he determined (1) by a distinct Canon to that 
 effect, or (2) by the growth of a contrary Custom. See CaisBon 
 Mannale, p. 68. 
 
Subsidiary Sources of Canons. 33 
 
 authoritatively in the Decretals of Gregory IX. (^) and 
 eighty-eight in the Se\t of Boniface VIII. Very frequent 
 appeal is made to the following four : 
 
 (1) The mind rather than the bare words of the Legisla- 
 tive authorities ought to be followed. 
 _ (2) The aim and object of the Canon is to be considered. 
 
 (3) In cases of doubt as to the meaning, words are to be 
 taken in their usual and natural sense. 
 
 (4) A restricted meaning is to be given to Canons creating 
 disabilities, and an extended meaning to Canons conferring 
 privileges. Thus the Canon enacting that a layman strik- 
 ing a Clerk shall be excommunicated, being a Canon 
 creating a disability for laymen, is construed strictly to mean 
 striking only, to the exclusion of threats or violence ; but 
 the same, being a Canon conferring privileges on the Clergy, 
 is extended to all of the Clergy, including novices of a 
 religious Order. 
 
 Canons spurious in their origin may in time come to be 
 accepted as authoritative, as being Customs expressing the 
 
 (1} The rules of Gregory IX. are the following : — Deoret. Greg. IX. 
 Lib. V. Tit. xli. 
 
 1. Omnis res, per quascnmgue oausas nasoitur per easuBui uioo^^xvioar. 
 
 2. Dubia in meliorem partem interpretari debent. 
 
 3. Propter scandalum Titandum Veritas non est omittenda. 
 
 4. Propter necessitatem, illioitmn efficitur licitum. 
 
 5. Illicite factum, obligationem non iuduoit. 
 
 6. Tormenta, indioiis non prsecedentibus, inferenda non sunt. 
 
 7. Sacrilegus est oftendens rem vel personam eoolesiasticam. 
 
 8. Qui facit aliter quam debet, faoere non dieitiir. 
 
 9. Committens unum peccatum, reus est omnium, quoad vitam 
 seternam. 
 
 10. Ignorantia non excusat Praelatum in peccatis subditorum. 
 
 11. Pro spiritualibus liomagium non prsestatur. 
 
 As to the meaning of words, see Decret. Greg. IX. Lib. v. Tit. xl. 
 
 D 
 
34 The Elements of Canon Law. 
 
 mind of the Legislative authority, and as such acquiesced 
 in by that body and the Church generally. For it is 
 immaterial what may be the source from whence the stream 
 issues, so that the water of the stream be pore, and that all 
 things be ordered for promoting holiness. 
 
( 35 ) 
 
 DIVISION II. 
 
 OF CANON LAW AS A WHOLE. 
 
 CHAPTER XII. 
 
 THE CANON LAW OF THE CHUECH A STREAM. 
 
 With progress of time there is also progress in ecclesi- 
 astical legislation. Xew laws are being continually wanted 
 to meet fresh needs, and new customs are ever growing up^ 
 
 1. The progress of legislation within the Church has in 
 a great measure followed the accidents of the Church's 
 surroundings in the world. It has, therefore, shown two 
 rival tendencies and been in two opposite directions, one 
 towards separation, the other towards centralisation. On 
 the one hand, the more independent of one another and 
 national localities become, the more do the ecclesiastical 
 rules framed for the special needs of those localities become 
 divergent and provincial. On the other hand, the more the 
 several branches of the Church are brought into connection 
 with one another, the greater is the tendency towards 
 uniformity of rule. 
 
 2. On the breaking up of the Roman Empire, a great 
 
 isolation ensued between districts which had formerly been 
 
 under the same government. Out of this isolation grew up 
 
 the varieties of the nationalities included in the Western 
 
 Patriarchate. Differences of race, and custom, and cHmate 
 
 D 2 
 
36 The Elements of Canon Law. 
 
 gave rise to special ecclesiastical laws. Ecumenical Councils 
 for the time being fell into abeyance, and there was a large 
 growth of distinctly Provincial Canons. 
 
 3. Unity, however, being a note of the Church, there 
 arose with the re- establishment of intercourse between the 
 different branches of it a desire to assimilate differences in 
 a general uniformity of rule to which aU might be subject. 
 Out of this desire came the pursuit of Canon Law as 
 a science. And thus Canon Law may be defined to be the 
 amalgamation of all the Canons at any time in force in 
 the Church, in so far as this has been done by competent 
 authority, 
 
 4. Canon Law may therefore be compared to a stream 
 contiauaUy increasing in volume and gathering into itself 
 tributaries in its onward course, and also from time to time 
 dividing and flowing in several parallel streamlets. The 
 history of Canon Law shows it imder both these aspects. 
 It involves, therefore : (1) the collection of materials, and 
 (^2) the assimilation of the materials when collected. 
 
 On the one- hand Canon Law is a gathering up from 
 various sources in chronological order of the Canons in 
 force in various parts of the Church. Such were the Col- 
 lections and the Summaries or Abridgements of Collections 
 made in different parts of the Western Church up to the 
 11th century. 
 
 On the other hand Canon Law is a fusing of materials 
 into one, and a reducing them to order and system — in 
 short, a Codification of all the Canons in force, or, in 
 the words of Gratian, a Concordantia discordantium 
 Canonum. 
 
( 37 ) 
 
 CHAPTEE XIII. 
 
 COLLECTIONS OF CANONS. 
 
 Apart from and in addition to the Collection known as 
 the Apostolic Canons, accepted by the Western Church 
 as to 50, and as to 84 by the Eastern Church (the 
 ecclesiastical law of which it represents in the third 
 century), the stream of Canon Law flowing in the Western 
 Church had, up to the time of Codification, received the 
 following tributaries : (1) The Code of the African Church ; 
 (2) The Collections of Dionysius ; (3) The Spanish Col- 
 lections ; (4) The so-called False Decretals ; and (5) 
 Sundry Minor Collections. A few words as to each of 
 these. 
 
 1. The Code of the African Church consisted of the 
 Nicene Canons, supplemented by those of native Councils. 
 It was published by Fulgentius Ferrandus (^) in a.d. 547, 
 under the name of Breviatio Canonum (^j, and contained 
 African decisions up to a.d. 427. Subsequently Cresconius, 
 
 (') Fulgentius Ferrandus was tbe friend and pupil of Fulgentius of 
 Kuspe, and went with him to exile in Sardinia. On his return to 
 Carthage he became a Deacon, a.d. 523, and died a.d. 551. See Sohulte's 
 Geschichte der Quellen, p. 44. 
 
 (2) The Breviatio Canonum contained 2.32 Canons of the Councils of 
 Anoyra, Laodicea, Nicsea, Antioch, Gangra, Sardioa. It is published in 
 Migue's Patrulog, 1848, vol. Ixvii. p. i(49. 
 
38 The Elements of Canon Law. 
 
 an African Bishop, issued a fresh treatise ('), about a.d. 
 690, called Concordia Canonum, representing the law of 
 the African Church. 
 
 2. About A.D. 610 a Collection (") was made by Dionysius 
 Exiguus ('), a Scythian monk, living at Eome, based on 
 the Code of the African Church, and including, (1) 50 
 Apostolic Canons ; (2) the Canons of the four General 
 Councils, viz. those of Nicsea, a.d. 325, Constantinople, 
 A.D. 381, Ephesus, a.d. 431, and Chalcedon, a.d. 451 ; 
 (3) 138 African Canons and the Canons of Sardica ; 
 and (4) Papal Decretals from Pope Siricius, a.d. 386, to 
 Pope Anastasius II. a.d. 496. As revised and enlarged, 
 and presented to the Emperor Charles by Pope Hadrian I. 
 in A.D. 774, this Collection is known as the Adriano- 
 Dionysian Codex (*), and represents the law of the 
 Roman Church at the time. 
 
 3. Of the Spanish Collections ('), the first contained 
 the Canons of Nicsea, and those of Ancyra of Neocsesarea 
 and Gangra only {^). A subsequent edition, towards the 
 end of the fifth century, contained also those of Antioch, 
 
 Q) Bibl. Jur. Can. I. App. cf. 33. See Schulte, p. 44. 
 
 (^) This collection was made at the request of Stephen, Bishop of 
 Salone. 
 
 (') Dionysius first published the Canons of Sardica, and by some 
 authorities is stated to have composed tbem. He also first introduced 
 the Cyclus Paschalis, in which the birth of Christ is taken as the starting 
 point of chronology. He died about 350 a.d. 
 
 (*) Published in Bibliotheca Jur. Can. I. 101, and Migne's Patrolog. 
 Lat. 1848, vol. Ixvii. See Schulte's Oeschichte der Qiiellen, I. p. 41. 
 
 C) See Sobulte, GescMchte der Quellen, p. 41. 
 
 (') Its date is uncertain. The translation of the Nicene Canons was 
 known in Gaul in 439 (Concil. Regense, Can. 3), and that of the Anoyraa 
 Canons was quoted in 517 a.d. (Concil. Epaonens). 
 
Collections of Canons. 89 
 
 Constantinople, and Chalcedon C). A new Collection 
 appeared in the seventh century, containing not only Canons 
 of Greek, African, Spanish, and Fi-ench Councils, but also 
 Papal Decretals from Pope Damasus to Gregory I. It bore 
 the name of Isidore, of Seville ('), who, however, does not 
 appear to have been in any way connected with it. It 
 represents the law of the Spanish Church. 
 
 4. All that was contained in the Spanish Collection, 
 wrongly called after Isidore, and in addition the Canons of 
 several other Councils, were included in a Collection (") 
 which appeared at Mainz about 843 a.d., with a preface at 
 its head by one Isidorus Mercator, called by some Peccator, 
 on the strength of which it was attributed to Isidore of 
 Seville. This Collection is best known for containing the 
 Decretals of the Popes from Sylvester to Gregory II. 
 (died A.D. 731), among which are included 35 that are 
 spurious, and 59 spurious letters of Popes from Clement to 
 Melchiades. In consequence of these spurious additions it 
 usually goes by the name of the False Decretals, or the 
 Pseudo-Isidorian Collection (*). 
 
 (') Published from an Oxt ird MS. under the title of "Codex Eoolesise 
 Komanffi." {Ed. PascLas QaeBnell in 0pp. Leonis, par. 1675, Tom. II.) 
 
 (^) Isidorus Hispaliensia (of Seyille), born at Cartbagena about 560 a.d., 
 a friend of Gregory the Great, presided over the Councils of Seville, 619, 
 and Toledo, 6i3, died at Seville 4th April, 636, one of the moBt able, 
 learned, and energetic bishops of the Middle Ages. 
 
 (3) See Eeichel's See of Rome, p. 89, seq.— " No doubt appears to 
 have been felt as to their genuineness before the time of Nicholas of 
 Cusa. The Magdeburg Centuriators thoroughly exposed the spurious 
 additions." 
 
 (^) More than 50 MSS. of this Collection are extant. The Codex 
 Vatioanus, No. 630, of the 12th century, observes the following order : — 
 After the Preface comes a letter of Aurelius to Damasus, and the answer 
 
40 The Elements of Canon Law, 
 
 TLe object aimed at in tliis Collefition appears to have 
 been to put an end to the confusion and servitude of the 
 Church and the uncertainty of the law, by introducing a 
 uniform code of ecclesiastical discipline, clothed with the 
 prestige of antiquity, and to protect local Bishops from 
 the encroachments of the civil power by substituting for the 
 jurisdiction of Metropolitans who were under that power the 
 jurisdiction of the Roman Bishops who were independent 
 of it ('). The articles, therefore, which tell in favour 
 of the Roman Supremacy are not so much usurpations of 
 the Popes as spontaneous acts of submission on the pnrt of 
 the Cisalpine Church, and derive authority, notwithstanding 
 the fiction as to their origin, from having been generally 
 accepted and acquiesced in. This Collection represents the 
 received Canon Luw of the Cisalpine Church. 
 
 5. Among minor Collections which were subsequently 
 made, perhaps the best known are (1) the Canonum Col- 
 lectio, in 381 titles, which was drawn up France at the 
 end of the eighth century; (2) the Collectio Ancheriana, 
 made in the ninth century ; (3) the Penitentialis of Bishop 
 Halitgar, of Cambray, dating from about 925 a.d. ; and (4) 
 the Collectio A nselmo dedicata, made between 883 and 897 
 A.D., and of Italian oi-igin. 
 
 of the letter (both spurious) ; then the Ordo de Celebrando Gonciho, 
 borrowed from the 4th CouBoil of Toledo ; a list of Councils, and a 
 spurious correspondence between Damasus and Jerome. There are two 
 editions of the False Decretals, one in the Collection of Councils, by 
 Merlin (Tom. I. Paris, 1523), the other in Migne's Patrolog. Lat. 
 Tom. cxxx. See Schulte's Geschichte der Quellen, I. p. 43. 
 (1) That is the view of Mohler, "Walter, and Hefele. 
 
( 41 ) 
 
 CHAPTER XIV. 
 
 CODIFICATION OF CANONS. 
 
 By Codifioatiou we understand not so much a mere 
 Collection of Canons arranged in chronological order, as a 
 grouping of them under heads according to their subjects, 
 so that the law on any subject can be ascertained at a glance. 
 Codification was not a work completed at once, but one 
 which advanced by successive stages, (1) through the 
 collections called Capitularies and Penitentials, ( 2) to fuller 
 collections adopting more or less of methodical arrangement, 
 (3) until Gratian's systematic method was reached. 
 
 1. Capitularies was a name commonly given to short 
 summaries of law, whether of Canon Law which the Bishops 
 reduced into articles for the benefit of their Clergy, or of 
 Civil Law whicli the temporal lords drew up for the rule 
 of the Laity. These, when ratified or confirmed by the 
 sovereign, became laws of the realm. 
 
 Capitularies was also a name given to selections from the 
 canons made without such sanction by individual Bishops 
 for the regulation of their dioceses. In this sense capitula- 
 ries had neither the force of statute law, nor any ecclesiasti- 
 cal validity outside the particular diocese for which they 
 were framed. 
 
 Penitentials were instructions issued by Bishops to their 
 clergy, giving lists of canonical olfences, and the penances 
 
42 The Elements of Canon Law. 
 
 to be imposed for the several violations of them. Among 
 such collections known in England are (') : (1) that of 
 Gildas, drawn up about 570, a.d. ; (2) that of Archbishop 
 Theodore, between 668 and 690, a.d. ; (3) that of Beda, about 
 733, A.D. ; (4) that of Egbert, between 766 and 791. 
 
 2. More definite progress towards Codification was made 
 in the tenth and eleventh centuries by works (^) such 
 as : — (1) The two books of Kegino, abbot of Priim, 
 compiled about 906, a.d., entitled De causls Sijnodallbus 
 et discipUna eccles'ue. (2) The Code of Canons in force 
 in the Frankish Church drawn up by Burchard ('), Bishop 
 of Worms, between 1012 and 1023, a.d., and called Liber 
 decretorum collectarium , in twenty books. (3) The 
 Decretam and Panormia of Bishop Ivo of Chartres (died 
 A.D. 1117) {') containing the Canon Law of the French 
 Church at that period. The Decretum which is in seven- 
 teen books is a collection of materials out of which the 
 Panormia is contracted, itself consisting of eight books. 
 (4) The collection made by Auselm of Lucca (diel 1036, 
 A.D.) in thirteen books ; also the Collectlo duodec'un part'min 
 (after 1023) and two collections of Cardinal Deusdedit, 
 each in four books (1086-87) for whica the archives of the 
 Lateran were employed. 
 
 3. A Code of Canons available for the whole Western 
 
 P) These are printed in Haddan and Stubb's Councils and Ecclesi- 
 astical Documents, that of Gildas Vol. I., p. 113, that of Theodore Vol. 
 III., p. 173, and that of Beda Vol. III., p. 826, that of Egbert Vol. III. 
 p. 418. 
 
 (2) These are given in Migne's Patrolog. Latin. Vol. clxi. 
 
 (8) See Schulte's Geschichte der Qudleii, I. p. 44. 
 
 (*) See Schulte, p. 44. 
 
Codification of Canons. 43 
 
 Church being still a desideratum, and the need more 
 pressingly felt owing to the revived enthusiasm for the study 
 of Civil Law, Gratian, a monk of Bologna, produced about 
 1144 A.D. a work entitled Concordantia discordantium 
 Canonum, better known in after times as the Decretum 
 Gratiani. In this work old and new Canons are brought 
 together, their discrepancies are pointed out, and their 
 reconciliation is attempted. The Decretum was a great 
 stride towards a science of Canon Law, and constitutes the 
 first part of the Corpus juris Canonici. 
 
44 The Elements of Canon Laiv. 
 
 CHAPTER XV. 
 
 THE CORPUS JURIS CA\ONICI. 
 
 1. Corpus Juris Canonici, or Code of Canon Law (^), is 
 a name applied to the compilation begun by the monk 
 Gratian in the middle of the twelfth century, and continued 
 during the next two centuries by others, approved by 
 successive Popes, and generally received as authoritative 
 throughout the Western Church until the period of the 
 Reformation. 
 
 •2. The Corpus Juris Canonici consists of four chief, and of 
 two subsidiary parts, the same degree of authority not being 
 universally accorded to the latter as to the former. 
 
 The four chief parts usually accepted as Canon Law, are 
 the following : — 
 
 (1) The Decretum of Gratian. 
 
 (2) The Decretals of Pope Gregory JX. 
 
 (3) The Sext of Boniface Vlli. 
 
 (4) The Clementines of Clement V. 
 
 The two subsidiary parts, the authority of which is not 
 so generally admitted, are called Exlravaijantes, and con- 
 sist of — 
 
 (1) The E.ctravagantes of Pope John XXII. 
 
 (2) The Extravagantes Communes. 
 
 (1) The best modem Edition of the Corpus Juris Canonici is that 
 published at Leipsic in 1839, by Boehmer and Eiohter. 
 
The Corpus Juris Canonici. 45 
 
 3. The principal Mediaeval Canonists who have vs^ritten 
 treatises on the Corpus Juris Canonici, are — • 
 
 (1) William Durandus, Bishop of Mende, called Specu- 
 
 lator from the title of his book Speculum Juris. 
 He died in 1287. 
 
 (2) Francis Zabarella, Cardinal Archbishop of Florence 
 
 and often called the Cardinal of Florence. He died 
 in 1417. 
 
 (3) Nicolas Tudeschi commonly called Panormitan, 
 because he vyas Archbishop of Palermo, sometimes 
 Lucerna Juris because of his learning. He died 
 1445. 
 
 (4) The Jesuit, John Cardinal Turrecremata, who died 
 
 1468. 
 
 4. In modern times perhaps the best known names of 
 those who have dealt with the same subject, are — 
 
 (1) Petrus de Marca, Archbishop of Paris, who died 
 A.D. 1662, the author of a Treatise, De Concordia 
 Sacerdotii et Imperii, 
 
 (2) Louis Thomassin, of the French Oratory, who wrote 
 
 L'Ancienne et Nouvelle Discipline de I'Eglise, and 
 
 died A.D. 1695. 
 (8) Anaclet Reiffenstuel, who died 1720. 
 (4) Zeger Bernard Van Espen, who became a Jansen- 
 
 ist, and was concerned in setting up the schismati- 
 
 cal church at Utrecht, and died 1728. 
 
46 The Elements of Canon Law. 
 
 CHAPTEK XVI. 
 
 THE DECEETUM GEATIANI. 
 
 1. The Decretum Gratiani constitutes the first part of 
 the Corpus Juris Canonici. It was the work of an Italian 
 Benedictine Monk, sometime the inmate of the Monastery 
 of Classe near Eavenna, and subsequently of S. Felix at 
 Bologna, where he compiled this work about 1144 a. D. 
 (^). He is said to have afterwards become Bishop of 
 Chiusi C). 
 
 Making special use of the compilations of Burchard of 
 Worms and Anselm of Lucca, Gratian aimed at grouping 
 the existing Canons systematically according to subjects, 
 making short comments on them, and reconciling them 
 when opposed to one another. He himself called the work 
 Concordaniia discordantium Canonum. Pope Alexander 
 called it Decreta ; subsequent writers and Popes Decretum, 
 which is the name it now generally bears. 
 
 2. The Decretum consists of three parts, called in 
 Gratian's time respectively De Ministeriis, De Negotiis, 
 De Sacramentis. They were afterwards called, and are 
 now usually known as, Distinctiones, Causce, and De 
 Consecratione. 
 
 The first part was subdivided by Paucapalea, Gratian's 
 
 Q) Between 1139 and 1151. See Sehnlte, p. 48. It was probably 
 wriiten between 1139 and 1142, and was known in Home in 1114. 
 (') See Sehnlte's Geschuhte der Quellev, I. p. 46. 
 
The Decretum Gratianu 47 
 
 pupil, into 101 Distinctiones. Of these the first 20 treat 
 of the subject of law generally, of the various kinds of law, 
 and of ecclesiastical law and custom in particular, and were 
 often called the Tractatus Decretalium ; the remaining 81 
 contain the rules regulating the appointment, ordination, 
 qualifications, and duties of the clergy, and were called the 
 Tractatus Ordinandorum {'). 
 
 The second part consists of 36 Causa or Cases, each of 
 which suggests a number of questions (Quastiones), the 
 answers to which are given from Canons of Councils or 
 Decretals. This part illustrates the practical application 
 of the law, and is the distinguishing feature of the book. 
 Some of the cases bear special names. Thus the first is 
 often quoted as Causa Simoniacorum, the twenty- seventh 
 as Causa Conjugii. The thirty-third contains the long 
 Tractatus de Poenitentia, itself divided into questions, 
 and the third question subdivided into eleven Distmc- 
 tiones. 
 
 The third part treats of the Sacraments of the Church and 
 their due administration. It was subdivided by Paucapalea 
 {*) into five Distinctiones, each of them comprising a number 
 of chapters. 
 
 3. The Decretum of Gratian soon superseded all other 
 collections, and not without reason ; for in it Gratian shows 
 himself the real founder of Canon Law as a science. It 
 passed through many editions, none of them being very 
 critical, and all of them made without any attempt at 
 
 p) See Schulte's Geschichte der Quellen, vol. I. p. 50. 
 
 I*) Paucapalea and other of Gratian's pupils added other Canons, 
 taken from the Collections of Burohard, Ivo, and Anselm. These 
 additions were not considered of force in the Schools. 
 
48 The Elements of Canon Law. 
 
 verifying or correcting the quotations from older authorities. 
 Anxious to have a more accurate edition, Pius IV. insti- 
 tuted for that purpose the Correctores Romani, who 
 executed the task assigned to them by publishing a revised 
 text in 158"^, which has served as the basis of all subse- 
 quent editions. 
 
49 ) 
 
 CHAPTER XVII. 
 
 THE DECEETALS OF GREGOEY IX. 
 
 1. After the publication of Gratian's Decretum, Papal 
 Decretals on points of discipline became so numerous that 
 it soon ceased to be pomplete and new collections became 
 necessary. Several such were made, the best known being 
 the following : — 
 
 o 
 
 (1) That of Bernardus, who died a.d. 1213 as Bishop 
 
 of Pavia, caHei the Breviarium Extravagantium. 
 It obtained the name of Extravagantes, because 
 the Decretals subsequent to Gratian's collection 
 were called Tituli extra decretum vagantes. The 
 new material was grouped under five heads, 
 treating respectively of jurisdiction, civil pro- 
 cedure, clerical offices and duties, marriage, and 
 crimes ; and this being the first collection of ex- 
 travagantes was called Volumen primum or Com- 
 pilatio Prima. 
 
 (2) A fresh compilation was made by Petrus CoUivicinus 
 
 by order of Innocent III. containing his Decretals 
 from 1198 to 1210 a.d. It was approved by the 
 Canonists of Bologna, and is known as the Com- 
 pilatio Tertia. 
 
 (3) The Compilatio Seciinda consists of the Decre- 
 
 tals of the Popes from Alexander III. (a.d. 1181) 
 
 to Celestin III. (a.d. 1198.) It was at first edited 
 
 E 
 
50 The Elements of Canon Law. 
 
 by Gilbert and Alan, two Englishmen, biit their 
 edition was not received at Bologna until it had 
 been revised by Johannes Gallensis. 
 (4) After the fourth Lateran Council (a.d. 1215) the 
 Gompilatio Quarta was made, containing the 
 Decretals from 1210 to 1215, a.d. 
 2. In 1230 A.D. Gregory IX. directed his Chaplain, 
 Eaymond of Pennaforte (^J, to make a new collection of Decre- 
 tals arranged systematically. The result was the Decreta- 
 lium Gregorii IX. compilatlo, which in 1234 a.d. was 
 submitted to the University of Bologna and by it approved. 
 The Bull Volentes igitur which accompanied it directed 
 tha,t it should supersede the older compilations. 
 
 Gregory's Decretals are in five books. The first treats 
 of the authority of Canons, the election, translation, and 
 resignation of Bishops, of the Archdeacon's of&ce and of 
 delegated judicial offices, spiritual judges, proctors and arbi- 
 trators. The second of civil procedure, tribunals, witnesses, 
 presumptions, prescriptions, and appeals. The third of clerical 
 duties, of prebends, institution, chapters, parishes, tithes 
 and vows, monks, patronage, and celebration of sacraments. 
 The fourth of espousals and marriage. The fifth of crimi- 
 nal procedure, accusations, inquisitions, simony, heretics, 
 homicide, excommunication, sentences, and rules of law. 
 
 (1) These four eompilations are given by Labbe, Antiquce Collectiones 
 Decretalium, Paris 1309-21. 
 
 P) He was the third General Master of the Dominican Order. He is 
 stated to have once crossed from Majorca to Barcelona in 6 hours, using 
 his Friar's cloak as a boat. He died in 1275, being nearly 100 years old!. 
 
( 51 ) 
 
 CHAPTEK XVIII. 
 
 THE SEXT OP BONIFACE VIII. 
 
 Aftee the supersession of tlie earlier collections by the 
 Decretals of Gregory IX. in 1234, a. d. appendices and 
 supplements were again added, first by Innocent IV. in 
 1245 A.D., and subsequently by Alexander IV., Urban IV., 
 Clement IV. and Gregory X. 
 
 1. In 1298 A.D. a new collection was published by Boniface 
 VIII. including all the post-Gregorian Decretals. It was 
 called Liber Sextiis or the Sext, because it was a comple- 
 ment to the five books of Gregory IX. It travels over the 
 same ground with those five books, and is itself subdivided 
 into five books to correspond with them. 
 
 2. After the publication of the Liber Sextus, a series of 
 Decretals was issued by Boniface VIII. (among them being 
 the celebrated Bull Unam, sanctain directed against Philip 
 of France, in 1302 a.d.) and by his successor Benedict XI. 
 These are not included in the Sext They were united and 
 published with comments by Cardinal J ohannes Monachus, 
 under the style of Constitutiones Extravagantes Lihri 
 Sexti and are found among the Extravagantes Communes 
 in the Corpus Juris Canonici. 
 
 E 2 
 
52 The Elements of Canon Law. 
 
 CHAPTER XIX. 
 
 THE CLEMENTINES. 
 
 In 1313 A.D., Pope Clement V., pubKshed a Liber 
 Septimus, including the Constitutions of the General Synod 
 of Vienne a.d. 1311, and his own Decretals. This book 
 he submitted to the University of Orleans, then suspended 
 its circulation and commenced a new one. The new 
 collection was completed by his successor, John XXII., and 
 sent to the Universities of Paris and Bologna. Accepted 
 by them, it was received as authoritative in the Chm-ch, and 
 is known by the name Constitutiones Clementince, or the 
 Clementines. 
 
 Like the Sext, the Liber Septimus, or the Clementines 
 is divided into live books, which correspond in subject- 
 matter with the five books of the Gregorian collection. 
 
( 53 ) 
 
 CHAPTER XX. 
 
 THE EXTKAVAGANTES. 
 
 The subsequent additions to Canon Law, commonly 
 called Extravagantes rest on a somewhat different footing 
 from the previous ones. Since the time of Pope John XXII. 
 the papal power was not sufficient to secure for their 
 decisions the force of statute law, neither can they have 
 been said since then to have been universally received in 
 the Western Patriarchate. In the absence of such recep- 
 tion, whatever may be their authority within the metro- 
 politan jurisdiction of Rome, it is doubtful whether they 
 can be considered as canonically binding elsewhere, albeit 
 peculiar respect may be due to them, as being the utterances 
 of the first Bishop of Christendom. 
 
 The Extravagantes are usually divided into two parts; 
 (1) the Extravagantes Johannis P- xxii., containing twenty 
 Decretals of that Pope under fourteen titles, and (2) the 
 Extravagantes Communes embracing seventy-four Decretals 
 of Popes from Urban IV. (a.d. 1261 to 1264) to Sixtus IV. 
 (a.d. 1471 to 1484). 
 
 A subsequent effort was made by Gregory XIII. (a.d. 
 1572 to 1585) to codify later Decretals, which was brought 
 to a successful issue by Clement VIII. in 1598 a.d. It con- 
 tained the dogmatic decisions of the Councils of Florence 
 and Trent, but it was soon withdrawn. 
 
54 The Elements of Canon Law. 
 
 CHAPTER XXI. 
 
 AUTHOEITY OF THE CORPUS JURIS CAXONICI. 
 
 The authority of the Corpus Juris Canonici C) may 
 be considered under two aspects : (1) Legal or Civil ; 
 (2) Ecclesiastical. 
 
 1. Legal or Ciyil authority can only be said to belong to 
 Canons and Canon Law in so far as it is expressly given 
 by the Law or the Custom of the Realm. Where it is so 
 given, Canons are invested with a civil sanction either directly 
 or indirectly. 
 
 2. Ecclesiastical authority belongs to Canons and Canon 
 Law in all cases where they have been properly made, duly 
 published, and continue to be enforced by local ecclesiastical 
 authority, so that they cannot be taken to have fallen into 
 disuse, or to have been superseded. 
 
 (1) The best Editions of tlie Corpus Juris Canonici, are those of 
 Lancelottus, published at Cologne, 1783, 2 Vols. 4to, and of Boehmer 
 and Richter, published at Leipsic, 1839, 2 Vols. 4to. 
 
( 55 ) 
 
 CHAPTER XXII. 
 
 LEGAL OR CIYIL AUTHOPJTY OF CANON LAW. 
 
 1. No Canon Laws as such possess legal or civil authority. 
 When legal authority is given to them Canon Laws become 
 laws of the realm and can be enforced by state authority. 
 This is advantageous in that it helps to enforce the disci- 
 pline of the Church C), but disadvantageous in that it brings 
 the Church's discipline under the control of the State f). 
 
 Canon Laws may be enforced by the State in two ways, 
 either directly or indirectly ; directly by action before its 
 own tribunal like other laws of the realm, indirectly by 
 attaching civil penalties to the sentences of ecclesiastical 
 tribunals. The latter is the more usual method ('). 
 
 2. The sanction whereby the State enforces Canons 
 is generally by imposing certain temporal disabilities 
 or by depriving of certain temporal advantages and civil 
 rights those who violate them. These penalties it has 
 
 Cj See Augustinus ap. Gratian I. Dist. x. o. 7. 
 
 (2) Concil. Carthagin V., Can: 9, a.d. 401, and many other authorities 
 quoted by Gratian, Cans, xxiii. Quest, iii. c. 10, permit the Church 
 to appeal to the civil power to protect its rights. Augustinus ap. Gratian, 
 Cans, xxiii. Quest, iv. c. 41, and Quest, t. e. 4. See also Gratian, 
 Cans, xxiii. Quest, v. u. 18-24, 32-35. 89, 40, 43-45. 
 
 (8) In ancient times the Clergy were not allowed to appear before a 
 secular court without the Bishop's leave. See the authorities ap. Gratian, 
 CauF. XV. Quest. 1., and particularly Concil. Agathense, Can. 32, a.d. 
 506, Ibid. V. 17. The aid of the civil power was invoked to enforce 
 ecclesiastical censures, by Concil. CartLag. iii.. Can. 38, a.d. 897, and by 
 Gregory. See Gratian, Caus. xi. Quest. 1. c. 19 and 20. 
 
56 The Elements of Canon Lair. 
 
 carried so far as to include forfeiture of life and civil protec- 
 tion. So long as the Churcli possessed few or no temporal 
 advantages, sucli penalties would hardly have touched its 
 members, nor was legal authority wanted for its Canons, even 
 if that could have been obtained. It was otherwise when the 
 Church acquired extensive temporal advantages, such as the 
 possession of property and the immunities of the Clergy. 
 It then became of importance that the Church's rules 
 should carry legal authority, or they would not have affected 
 its temporalities. Hence the possession of temporalities 
 has to a great extent brought the Church under the control 
 of the supreme governing power in the State, and this must 
 be the case as long as the Church possesses any worldly 
 estate. 
 
( 57 ) 
 
 CHAPTER XXIII. 
 
 LEGAL VALUE OF THE CORPUS JUEIS CANONICI. 
 
 The Corpus Juris Canonici when completed formed the 
 prescribed standard of Ecclesiastical Law for the Church in 
 the Western Patriarchate, and as such it was accepted by 
 the Church. 
 
 1. By the Civil power it was not so received, except with 
 , certain restrictions and modifications varying from time to 
 
 time and from place to place, and it was only invested with 
 legal authority subject to these modifications. 
 
 These modifications were sometimes stjled Concordats 
 when they were put in force by special agreement with the 
 Pope. More often they were called Liberties, when they 
 upheld the cause of Nationalism in a local Church against 
 foreign influences. 
 
 2. Such modifications existed in Germany, in France, in 
 other European States, and in England ; and in each case 
 the Corpus Juris Canonici had legal force only subject to 
 these Concordats or Liberties. 
 
 In Germany the form they assumed varied from time to 
 time. Thus : — 
 
 (1) In A.D. 1122 the struggle respecting Investitures 
 was terminated by a Concordat concluded at 
 Worms between Pope Calixtus II. and the 
 Emperor Henry V. 
 
58 The Elements of Canon Law. 
 
 (2) Three hundred years later, in a.d. 1418, a Con- 
 
 cordat was concluded at Constance between Pope 
 Martin V. and the Heads of the German nation. 
 
 (3) Again in a.d. 1447 and 1448, two Concordats were 
 
 concluded called the Concordats of the German 
 
 nation, the one by Pope Eugenius IV. ratified by 
 
 Nicolas v. conceding the German demands and 
 
 called the Frankfort Concordat or Concordat of 
 
 Princes ; the other concluded by the Papal Legate 
 
 with the Emperor Frederic III. and known as 
 
 the Concordat of Aschaffenburg or Vienna. 
 
 In France it was held that the Decretals in the Corpus 
 
 Juris Ganonici were not of the same authority as the text, 
 
 but only served as a written explanation of the law, and 
 
 that no Canon Laws were of force which were contrary to 
 
 the usages and Liberties of the Galilean Church. Under 
 
 cover of this form of expression, French Courts refused to 
 
 give coercive effect to Canons of the Church whenever they 
 
 ran counter to French interests, customs, or wishes. 
 
 Nevertheless : 
 
 (1) A Concordat was concluded at Constance in a.d. 
 
 1418 between Pope Martin V. and the repre- 
 sentatives of the French nation, which received 
 the royal assent in 1424. 
 
 (2) But in A.D. 1438, the King having by the Prag- 
 
 matic Sanction of Bourges adopted the reforma- 
 tory decrees of the Council of Basle as the law of 
 the land, the Pope refused to acknowledge the 
 law. 
 
 (3) On the other hand Pope Leo X. concluded a 
 
Legal Value of the Corpus Juris Canonici. 59 
 
 Concordat with Francis I. in a.d. 1516, which 
 was protested against both by the French 
 Parliament and the University of Paris. 
 Among Concordats concluded with other States may be 
 mentioned : 
 
 (1) That concluded with Savoy, in 1451 a.d. 
 
 (2) That concluded between Pope Innocent YIII. and 
 
 King John II. of Portugal in 1486, which did not 
 however, receive the approval of the Cortes. 
 
 (3) That concluded by Pope A.drian II. in 1523 a.d., 
 
 with the King of Spain. 
 
60 The Elements of Canon Law. 
 
 CHAPTER XXIV. 
 
 LEGAL AUTHORITY Q¥ THE CANON LAW IN ENGLAND. 
 
 As in other countries, so in England the Canon Law was 
 received as legally binding with limitations varying from 
 time to time (^). 
 
 1. Up to the early part of the 14th century it was 
 acknowledged, at least theoretically, as binding, even in cases 
 where the power of the stronger toned down its distasteful 
 provisions : for : — 
 
 (1) England was a part of the Western Patriarchate, 
 and owed its Christianity to the Eoman Church, 
 ever since Augustine's mission in a.d. 596 (^) ; 
 
 (') In Martin y. . Mackonochie 2 L. E., Adm. and Eccl., p. 116, the 
 Dean of Arches observed : The peculiar character of the English people 
 and the English Church is also strongly shown in their determination 
 not to admit the general body of the Canon Law into these realms, but 
 only such portions of it as were consistent with the constitution, the 
 common law, and the peculiar usages of the Anglican Church. Neverthe- 
 less, in 1848, in Burder v. Mavor 6. N. and G. 1, the perpetual curacy of 
 Forest Hill was declared vacant by Mr. Mavor's acceptance of another 
 benefice by the authority of the twenty-ninth Canon of the fourth Lateran 
 Council, A.D. 1215. 
 
 (^ ) The various documents proving the early existence of Christianity 
 in Britain, are collected by Haddan and Stubbs in Councils and 
 Ecclesiastical Documents, Vol. I. The attendance of three British 
 Bishops at the Council of Aries in a.d. 314 shows that at that early date 
 the British Church was not independent of the Continental Church nor 
 pretended to be of the Pope, since the Acts of that Council were submitted 
 to the Popel for his approval. The inroads of the Saxons, however, in 
 A.D. 449 drove the Britons, whether heathen or Christian, to the Western 
 parts of the island, leaving the Southern and Eastern parts in undisputed 
 
Legal Authority of the Canon Laiv in England. 61 
 
 and the mission of Birinus, in 632 a.d. ; nay 
 more, the reigning Norman dynasty had acquired 
 its throne with the Pope's sanction (^). 
 (2) In acknowledgment of this debt King John had, 
 A.D. 1213, sm-rendered his Kingdom to the 
 Pope, to be held by him of the King in fee, 
 subject to an annual payment of 1000 marks (^). 
 (8) More than any other country, England had 
 suifered from the abuses resulting from the 
 practise of dilatory appeals to Eome. This 
 gave rise to the rebellion against the Koman 
 Curia, beginning with the Statutes of Provisors 
 (') and the Wycliffite (*) movement, and 
 culminating in the Reformation. 
 2. The Corpus Juris Canonici was however supplemented 
 
 possession of the heathen invaders. & ngustine on his arrival in Kent 
 in 596, and Birinus on coming to Mercia and Wessex in 632, found 
 nothing but heathens to deal with ; and the overtures of the former to 
 the Christians surviving in Wales were far from sjuccessful. Whatever 
 claim may therefore be advanced by the Welsh, the Cornish, and the 
 Stratholyde Churches to derive their Christianity from an earlier source, 
 it is clear that Saxon England owes its first knowledge of Christianity to 
 the missions of Augustine and Birinus. See Pearson's Early and 
 Middle Ages of England, Chap. v. ; Eeichel's See of Borne in the Middle 
 Ages, Chap. ii. ; Owen's Institutes of Canon Law, Chap. xvii. 
 
 (1) Alexander II. sent a consecrated banner to Duke William before 
 he attempted the conquest of England. See Lingard's History of 
 England, Vol. 1, Chap, vi., p. 186. 
 
 (") See Kymer I., iii. 115; Lingard's HzsiorT/ of England, Vol.11., 
 Chap. v. p. 165 ; Eeichel's See of Borne, p. 251. 
 
 (^) Passed in 1350 and 1353. See the Statutes quoted in Eeichel's 
 See of Borne, p. 632, and in Phillimore's Ecclesiastical Law, p. 1434, 
 who quotes 27 Ed. III. St. 1. o. 1. 
 
 (*) See Eeichel's See of Rome, p. 588, for one view of Wycliffe. 
 
62 The Elements of Canon Law. 
 
 in England by two special tributary sources : (1) by 
 Legatine Constitutions and (2) by Canons Provincial. 
 
 Legatine Constitutions were (1) those of Otho, the legate 
 of Pope Gregory IX., made about a.b. 1237, and (2) those 
 of Othobon, legate of Clement IV., made about 1268 a.d. in 
 Henry III. 's reign. These Constitutions were annotated by 
 John of Athon or Acton, Chancellor of Lincoln in the time 
 of Edward I. 
 
 Canons Provincial were the decrees of Provincial Synods, 
 held in the Province of Canterbury, under the 1-1 
 Archbishops, beginning with Stephen Langton, a.d. 1207, in 
 Henry III.'s reign, ending with Henry Chichele, a.d. 1414, 
 in Henry V.'s reign. These Canons were collected and 
 arranged with extreme care by William Lyndwood, 
 Archbishop Chichele's Chancellor, afterwards Bishop of 
 St. David's, and were published about 1420 a.d. Q), and in 
 1462 A.D. they were accepted by the Province of York as 
 authoritative for that Province also. 
 
 3. The Canon Law thas accepted in England has been 
 from time to time curtailed by the action of the Civil power. 
 
 (1) By the Statute of Provisors (^) passed in 1350, 
 
 which enacted, that the election to dignities 
 should be free that patrons should enjoy their 
 rights, and that, in case of the Pope's 
 transgressing the Statute, the king should have 
 the right of presentation. 
 
 (2) By the Statute 16, Eich. II., c. 5 ; commonly 
 
 (1) Lyndwood's Provinciale was republished in 1664, with a selection 
 of Jiis notes, and the complete work in 1679. 
 {») See note 3 on page 61. 
 
Lec;al Authority of the Canon Law in England. 63 
 
 known as the Statute of Praemunire, which 
 forbad the introduction of any Bull or Instni- 
 ment from the Roman Court touching the King, 
 his crown, and his realm, under pain of loss of 
 the King's protection and forfeiture of lands 
 and chattels. 
 
 (3) And again in 1418, by the Concordat concluded 
 
 at Constance, between Pope Martin V. and the 
 representatives of the English nation, which in 
 several important matters restricted the power 
 of the Pope. 
 
 (4) The most important restrictions were, however, 
 
 made in the time of Henry VIII. and by many 
 Statutes since then, so that the legal authority 
 of the Canon Law is now confined -nithin the 
 narrowest limits. 
 
64 The Elements of Canon Law. 
 
 CHAPTER XXV. 
 
 AUTHORITY OF CANON LAW IN ENGLAND AS AFFECTED BT 
 THE ACTS OF SUBMISSION AND SUPEEMACY. 
 
 1. Under pressure from Henry VIII. and fearing the 
 penalties of a PrEsmunire, the Bishops and Clergy in Convoca- 
 tion assembled made submission to the King on the 11th 
 February, 1532, acknowledging the King instead of the 
 Pope as Supreme Head over the Church of England, so 
 far as the law of Christ would allow Q). This submission 
 was made into law by the Act of Supremacy , 26 Henry VIII. 
 c. 1, passed in 1534, in which the limitation-clause was 
 dishonestly suppressed, and was still more trenchantly en- 
 forced by the Act 26 Henry VIII. c. 13, which made 
 it high treason to deprive the King of the dignity, title, or 
 name of his royal estates. 
 
 2. By a Form of Submission made 15th May, 1532, the 
 clergy promised in verba sacerdotii never in future to enact, 
 put in use, promulge, or execute any new canons or constitu- 
 tions, provincial or synodal, unless a license from the crown 
 had been first given to assemble their Convocation and 
 to make, promulge and execute such constitutions and 
 ordinances as should be made in the same Q). This Form 
 
 C) The qualification Quantum per Christi leges licet is said to be 
 due to Cardinal Fisher. See Dixon's Hist. Ch. Eng. Vol. I, p. 63. 
 
 P) " We the Clergy do offer and promise in verbo sacerdotii here 
 unto your Highness, submitting ourselves most hujnbly to the same, 
 
Authority of Canon Law in England. 65 
 
 was embodied in' the Act 25 Henry VIII. c. 19, commonly 
 known as the Act of Sahnission, and passed at the end of 
 the year 1533 {'). 
 
 3. It was farther enacted by the same statute, that a 
 review should be had of the Canon Law ; and till such 
 review should be made, all canons, institutions, ordinances, 
 and synodals provincial, being then already made and not 
 repugnant to the law of the land and the king's prerogative, 
 should still be used and executed. A Reformatio legum eccle- 
 siasticarum was actually executed by a commission appointed 
 by Edward VI. in 1551, but this review never having received 
 any confirmation from higher authority, the legal position 
 of the Canon Law in England would at present seem to be 
 this C) ■■— 
 
 (1) No ecclesiastical laws have legal authority which 
 
 that we will never from henceforth enact, put in ure, promulge, or execute 
 any new canons or constitutions provincial, or any new ordinances provin- 
 cial or synodal, in our Convocation or synod in time'coming [which Con- 
 vocation is always, hath been, and must be assembled only by your high 
 commandment or writ ] , unless your Koyfl Highness by your Eoyal Assent 
 shall license us to assemble our Convocation and to make, promulge, and 
 execute such constitutions and ordinances as shall be made in the same, 
 and thereto give your Eoyal Assent and authority." 
 
 (1) After quoted this form the Statute runs as follows : — 
 Be it therefore now enacted, by authority of this present Parliament, 
 according to the said submission and petition of the said clergy, that they, 
 nor any of them, from henceforth, shall presume to attempt, allege, claim, 
 or put in ure any constitutions or ordinances, provincial or synodal, or 
 any other canons, nor shall enact, promulge, or execute any such canons^ 
 constitutions, or ordinances provincial by whatsoever name or names they 
 may be called in their Convocations in time coming. 
 
 («) The principal English writers on Church Law contented themselves 
 with treating the subject from a legal, rather than a canonical point of 
 view. Such are the writers of the following important and valuable works : 
 
 (1) Godolphin's Repertorium Juris, or Abridgement of the Ecclesiastical 
 
 I' 
 
66 The Elements of Canon Law. 
 
 run counter to the law of this land or the royal 
 prerogative, or have been superseded by Statute 
 Law. 
 
 (2) The royal License is statutably necessary for 
 
 " attempting, alleging, claiming, or putting in ure," 
 as also for " enacting, promulging, or executing" 
 any Canons whatsoever ; but subject to this proviso, 
 aU canons, constitutions, ordinances and synodals 
 provincial anterior to the statute 25 Henry VIII. 
 c. 19, have legal authority, except such as have 
 been subsequently superseded by Statute Law. 
 
 (3) No new canons have any legal authority, unless 
 
 made after the Eoyal License has been first had 
 and obtained. 
 
 Laws, 1687 ; (2) Bishop Gibson's Codex Juris Ecclesiae Anglicanm (1713) ; 
 (3) Ayliffe's Parergon Juris Canonici (1726 and 1734). (4) Oughton's 
 Ordo Judiciorum, (London 1728). In modem times Sir E. Phillimore's 
 Treatise on Ecclesiastical Law, besides many legal hand-books, by Cripps, 
 Dale, Stephens, Hodgson, Blunt, and others. Bobert Owen's Institutes 
 of Canon Law, 1884, proceeds, however, on strictly canonical lines. 
 
( 67 ) 
 
 CHAPTER XXVI. 
 
 ECCLESIASTICAL AUTHORITY OF CANON LAW. 
 
 Op greater importance is the ecclesiastical and spiritual 
 authority attaching to Canon Law. The ecclesiastical 
 authority of Canons is twofold. 
 
 1. Such as embody a divine law are absolutely binding 
 (') for all time and all men, whether they agree or not 
 with statute law. They are unchangeable and cannot be 
 dispensed with. 
 
 2. Such as establish rules of human devising for the 
 disciplinary government of the Church upon earth stand on 
 a different footing. . They are binding whilst in force (^) ; if 
 made by the whole Church on the whole Church (') ; if 
 made by a local branch on that local branch ; but not till 
 they have been published by due authority ; and they may 
 be changed {*). 
 
 3. In both cases the obligation is as well in foro ecclesi- 
 astico, or the Outer Tribunal (') as in foro conscientice, or 
 
 Q) Augustin. ap. Gratian I. Dist. xi. c. 9, and Dist. xt. 
 
 P) See Leo Epist. li. ap. Gratian, Caus. xxv. Qa. i. o. 3 and 16 
 Hilarius in Synodo Eomana Can. i. Ibid. o. 4.; Gregorius Lib. ii. 
 Epist. 7. Ibid. u. 13, and Deoret. Greg. IX. Lib. i. Tit. ii. 
 
 (') Gelasius ap. Gratian, Caus. xx;7. Qu. i. c. 1. 
 
 (*) Gratian I. Dist. xiv. c. 2. 
 
 (^) Concil. Chalcedon. Can. i. ; rohs iraph rSiv ayiccv iraTepuv Ka6^ 
 eKatTTTiv txiyodov &XP^ "^ov vvv iKTeQeuTas Kaydvas Kpanlv idtKaidjcTafj-^y 
 
 F 2 
 
68 The Elements of Canon Law. 
 
 the Inner Tribunal, but with this difference, that divine laws 
 are always binding both in the Outer and Inner Tribunal 
 without publication, whereas discipUnary laws although 
 binding in the Outer Tribunal are not binding on the 
 Inner Tribunal until by publication they have been brought 
 under the notice of the individual. 
 
 4. Disciplinary laws duly made in the Church and 
 having reference to matters rightfully of spiritual cognisance 
 have ecclesiastical authority, although no civil sanction may 
 attach to them, nay even although statute law should be 
 repugnant to them (^). 
 
 (') Decret. Greg. IX. Lib. i. Tit. ii. e. 7 and 10. 
 
( 69 ) 
 
 CHAPTEE XXVII. 
 
 CANON LAW AS A WHOLE. 
 
 1. So far as Canon Law does not directly express divine 
 law, but Gbtablishes disciplinary rules for the government of 
 the Church upon earth, it is not at all times one and the 
 same, neither is it in all places one and the same. 
 
 2. Moreover, neither the Corpus Juris CanoTOci received by 
 the Western Church, nor any subsequent collection, is so much 
 a general code covering every case and decisive for all time, 
 as a Collection of decisions which have been given from time 
 to time as need has arisen. Canon Law is therefore the Case 
 Law of the Church, i.e. a collection of judgments given by 
 the Episcopate for the time being in the exercise of its power 
 of determining what is most conducive to holiness, each judg- 
 ment forming a precedent not lightly or without good reason 
 to be departed from. Yet like all case Jaw each decision 
 stands on the merits of the authority from which it 
 emanates. 
 
 3. There may also be included in the received collection 
 of cases decisions which subsequent criticism has shown 
 not to belong to those whose names they bear ; likewise 
 decisions which contradict one another. For all that the 
 mind and intention of the Church is to be found in its 
 Canon Law. Where that mind varies, so have the circum- 
 stances and needs of the Church under which it was 
 
70 ' The Elements of Canon Law. 
 
 expressed varied, so that the same diyine guidance which at 
 one time and in one nation has seen fit to prescribe one rule, 
 has at another time and in another nation prescribed another 
 rule as most conducive to holiness. 
 
 4. So long as the Church is in the world it will ever be 
 so. Nevertheless as tribes give place to nations, and 
 nations are brought more into contact with each other, and 
 become more assimilated to one another in temporal matters, 
 so do local and national differences in the Church tend to 
 disappear. And when Catholicism which is perfect has 
 come, then that which is partial and national shall be done 
 away. 
 
71 ) 
 
 PART 11. 
 
 OF THE GENERAL GOVEENMENT OF THE OHQECH. 
 
 CHAPTER XXVIII. 
 
 OF CHUECH ADTHOEITY. 
 
 1. The Chui-ch being a divinely instituted Society has 
 from its Founder, Christ, (1) a divinely-appointed Constitution 
 by virtue of which it is One, Holy, Catholic, and Apostolic ; 
 and (2) a divinely given law including both natural law, and 
 also the revealed moral law. 
 
 Besides these it has also certain rules and enactments of 
 its own appointment. These go to make up what is known 
 as Canon Law. They deal (1) with the general Government 
 of the Church, and (2) with certain Essentials for its 
 maintenance upon earth. 
 
 2. The Church's aim being ever to promote the salvation 
 of mankind, and the holiness necessary thereto among its 
 members, the first business of its positive rules is to 
 prescribe the order which from time to time is found to be 
 most conducive thereto. This involves determining princi- 
 pally three points : — 
 
 (1) The Nature of Jurisdiction. 
 
72 The Elements of Canon Law. 
 
 (2) The Officers of Jurisdiction — the Hierarchy. 
 
 (3) The Unit of Jurisdiction — the Diocese. 
 
 3. The Church has further to legislate as to the adminis- 
 tration of certain things essential to its existence upon earth. 
 Hence its rules deal secondly with : — 
 
 (1) Sacramental Graces. 
 
 (2) The Spiritual Gifts of Orders and Matrimony. 
 
 (3) The Exercise of Discipline or Censures. 
 
( 73 ) 
 
 DIVISIOx^ I. 
 
 OF JURISDICTION. 
 
 CHAPTER XXIX. 
 
 THE APOSTLES AND THE EPISCOPATE. 
 
 1. The Head of the Chnrcli, Jesus Christ, gave His 
 commission to His Apostles in the following terms : " All 
 power is given unto Me in Heaven, and in earth. Go ye, 
 therefore, and teach all nations, baptizing them in the name 
 of the Father, and of the Son, and of the Holy Ghost, teach- 
 ing them to observe all things whatsoever I have commanded 
 you : and lo, I am with you always, even unto the end of the 
 world 0)." 
 
 These words imply : — 
 
 (1) That the plenitude of power resided in Christ. 
 
 (2) That in the exercise of that power the charge was 
 
 given to the Apostles (a) of gathei'ing together 
 a Church out of the world by administering 
 the rite of baptism, and (b) of teaching the 
 members of that Church to observe Christ's 
 commands. 
 
 (1) Matt, xxviii. 19. 
 
74 The Elements of Canon Law. 
 
 (3) That that charge still rests in the Church with 
 those to whom it has been entrusted by the 
 Apostles, and will so rest until the end of the 
 world. 
 
 2. As Christ entrusted the charge of His Church to the 
 Apostles as a College or Body and not to them individually, 
 so the Apostles committed the same charge to the whole 
 Body of the Bishops, and not to them severally. The 
 whole Church, therefore, and each part of the Church is under 
 the charge of the Collective Episcopate throughout the 
 world (^). 
 
 3. Those only are deemed Bishops of the Church and 
 members of the Co-episcopate, on whom the plenitude (') of 
 the priesthood has been specially conferred (*) after the 
 Apostles' order ('). 
 
 (2) See Concil. Nicsen. Can. 5. 
 
 (3) See Caisson Manuale Jnris Canonici § 855. 
 
 (*) Not therefore the wpurffurepoi who in Acts xv. are called iiriffKovoi 
 before ecclesiastical terminology had been accurately defined, nor the 
 X'jip^Trliricowoi of Nicene times who appear to have been identical with them. 
 
 (5) And this statement is equally true whether the plenitude of the 
 priesthood is a distinct Order, or whether it is only a gift of jurisdiction- 
 
( 75 ) 
 
 CHAPTEE XXX. 
 
 ORDER AND JURISDICTION. 
 
 The charge given by Christ to His Apostles was at once 
 a conferring of Orders and a giving of Jurisdiction. The 
 setting them apart as a special class of men to baptize 
 and to teach, and the bestowal of a special gift for that 
 purpose, was a giving of Orders. The sending them into 
 all nations was a conferring of Jurisdiction over, the whole 
 world. 
 
 1. Between Orders and Jurisdiction there is this dif- 
 ference, that Orders are spiritual gifts bestowed on classes 
 of men solemnly set apart to perform certain functions in 
 the Church, whereas Jurisdiction is the reception of au- 
 thority by individuals for exercising those functions. Orders 
 may exist where there is no Jurisdiction for exercising 
 them, as in the case of a Bishop who has resigned his see. 
 And Jurisdiction may be held by one who has not yet 
 received the Order to exercise it, as in the case of a Bishop 
 elect and confirmed but not consecrated. 
 
 2. The spiritual gift conferred in Orders is given once 
 and for all; and once given, it cannot be taken away 
 although the exercise of it may be forbidden. But the 
 authority to exercise it may be given or taken away, or 
 superseded (as it is on appeal), or renounced (as by resig- 
 
76 The Elements of Canon Law. 
 
 nation), or changed fas by translation), by the power from 
 which it is derived {}). 
 
 3. From the earliest time the exercise of all spiritual 
 functions has been limited in divers ways in the Church by 
 those having jurisdiction, so that even Bishops, who as 
 members of the Co-episcopate are charged with the care of 
 the whole Church, are as individuals restricted in the 
 exercise of that care. This restriction includes : 
 
 (1) A limitation within local districts, which are called 
 
 Dioceses. 
 
 (2) A limitation of power tvithin the Diocese, imposed 
 
 both by the necessity of consulting the Chapter 
 in ordinary cases, and the Metropolitan in extra- 
 ordinary ones. 
 
 (3) A hmitation in respect of persons, some persons 
 
 and corporations within the Diocese being ex- 
 empted from episcopal jurisdiction. 
 
 4. As to the relation of Jurisdiction to Orders, three 
 principal views are held by those who accept Orders as of 
 divine appointment : 
 
 (1) The view that all jurisdiction necessary for the 
 exercise of Orders comes from the temporal 
 Prince. This view is called lirastianism. It 
 
 (^) The difference between Orders and Jurisdiction is usually made 
 clearer by remembering that Order is (1) a Spiritual gift imparted at 
 Ordination ; (2) equal in aU of like Order ; (3) perpetually inherent 
 in those to whom it has been given ; and (4) incapable of delegation ; 
 whereas Jurisdiction is (1) not necessarily conferred by Ordination; 
 (2) very unequal amongst those of like Order ; (3) is not perpetual, and 
 can be curtailed in various ways ; and (4) can properly be delegated. See 
 Caisson § 256. 
 
 See Hieronymus, ap. Gratian, Cans. ii. Qa. yii. c. 35. Ambrosias, 
 Ibid. c. 3t. 
 
Order and Jurisdiction. 77 
 
 makes of the Church a religious department of 
 the state f ). 
 
 (2) The view that all jurisdiction comes exclusively 
 
 from the Pope, to whom it has heen committed 
 hy Christ.. This is called Ultramontanism. It 
 reduces all Bishops to the position of mere 
 Curates and agents of the Pope, and makes i of 
 him a spiritual autocrat. 
 
 (3) The view that all jurisdiction was committed hy 
 
 Christ to the Apostles as a College and to their 
 successsors, the collective Episcopal Body, from 
 which it is derived to individuals through officers of 
 its appointment. This is Catholicism, and 
 considers all Bishops joint- Assessors with the Pope 
 as their President in the one government of the 
 Church. 
 
 P) See the authorities showing the limits -within which the civil 
 power may meddle with the aflairs of the Church in Gratian I. Dist. xcvi. 
 
78 The Elements of Canon Law, 
 
 CHAPTER XXXI. 
 
 VARIETIES OP JURISDICTION. 
 
 1. Jurisdiction may be defined as the possession of 
 authority to exercise spiritual functions for the good of the 
 Church. All such authority comes from the Collective 
 Episcopate as inheritors of Christ's commission to His 
 Apostles. Its'object is so to rule men in this Hfe, that they 
 may obtain life everlasting. 
 
 Jurisdiction extends to various classes of subjects, and 
 includes : — 
 
 (1) The right to make laws for the Church. This 
 belongs to the Collective Episcopate in Council 
 assembled. 
 
 (2) The right to teach. This is specially the duty of 
 the Diocesan Bishop and his deputies within his 
 Diocese. 
 
 (3) The right to administer the sacraments, which is 
 
 committed to the Bishops in common with aU 
 of the Priesthood. 
 
 (4) The right of spiritual censure, which is etercised 
 
 under the Bishop by the spiritual Officer appointed 
 for that purpose. 
 
 2. Jurisdiction may be exercised in several difi'erent ways, 
 and according to the way in which it is exercised, it bears 
 several different names. Thus it may be exercised : 
 
Varieties of Jurisdiction. 79 
 
 (1) Either publicly or privately ; publicly as when a 
 
 sentence of excommunication is pronounced, 
 privately as when a penance is imposed on a 
 penitent. 
 
 (2) Either informally or formally, more usually called 
 
 voluntarily or contentiously. 
 
 (3) Either by a Principal of ordinary Church appoint- 
 
 ment, hence called an Ordinary, or by a Deputy. 
 
 (4) Either directly or intermediately. 
 
 3. Where Jurisdiction is exercised publicly, as in the out- 
 ward enforcement of discipline in the visible Church, it is 
 termed Jurisdiction of the Outer Tribunal. Where it is 
 exercised privately and in secret, and is binding only on 
 the conscience it is called Jurisdiction of the Inner 
 Tribunal. 
 
 4. Where jurisdiction is exercised formally with the 
 observance of judicial forms, it is called Contentious or 
 Judicial jurisdiction. Where it is exercised informally at 
 the sole will of the superior and without judicial forms 
 it is called Voluntary or Extrajudicial jurisdiction C). 
 Such Voluntary jurisdiction is exercised at ordination, in 
 collating to a benefice, in granting or withdrawing a license 
 to preach. And there is this distinction between Voluntary 
 and Contentious Jurisdiction, that Voluntary Jurisdiction 
 may be exercised by a superior anywhere, whereas Conten- 
 tious Jurisdiction can only be exercised within the territorial 
 limits of the superior's jurisdiction. 
 
 5. When a well-ascertained and definite authority is 
 attached by the Church to the holding of a public office, such 
 
 (1) See Phillimore's Ecclesiastical Law, p. 1210. 
 
80 The Elements of Canon Lmv. 
 
 authority is called Ordinary Jurisdiction C) or the Juris- 
 diction of one who ordinarily acts as a Principal. Such is 
 that of a Bishop in his own Diocese, of a Metropolitan among 
 his Comprovincials. When authority is delegated to a 
 deputy (^) and is held by him subject to restrictions, it is 
 called Delegated Jurisdiction, or the Jurisdiction of a deputy, 
 and it is held subject to whatever restrictions the Principal 
 may have imposed ('}. 
 
 There are three points in which Ordinary and Delegated 
 Jurisdictions differ : 
 
 (1) A Principal or Ordinary may delegate his jurisdic- 
 
 tion, but a deputy may not. 
 
 (2) An Ordinary's ofiB.ce continues after the death of 
 
 the granter, whilst the deputy's absolutely ceases ; 
 for an Ordinary or Principal is a functionary of 
 the Church, whilst the deputy is the delegate of 
 an individual. 
 
 (3) A delegate for a single case ceases to have 
 jurisdiction when that case has been settled. 
 
 There are nevertheless certain Ordinary Jurisdictions 
 which cease with the grantor's death. Such is the jurisdic- 
 tion of a Vicar-General and OfiB.cial of the Bishop (') the 
 reason being that these Officers are considered identical 
 
 (1) On Ordinary Jurisdiction, see Decret. Greg. IX. Lib. i. Tit. xxxi. 
 
 (") On Delegated Jurisdiction, see Decret. Greg. 15. Lib. i, Tit. 
 xxix. 
 
 (') See Phillimore's EccZesiasSJcaZ Law , p. 1211. Ayliffe's Parer(;on, 
 161, 163. In case one deputy is superseded by another, see Decret. 
 Greg. IX. Lib. i. Tit. iii. c. 24. 
 
 (*) Where these two offices are combined in one and the same 
 person, he is called a Chancellor. Ayliffe's Farergon, 163. Phillimore's 
 Eccleticatical Law, p. 1211. 
 
Varieties of Jurisdiction. 81 
 
 with the Bishop and to make up but one person with him. 
 So long therefore as these Officers hold office, their jurisdic- 
 tion is an ordinary one and as such capable of being 
 delegated. But inasmuch as they are Officers of the 
 Bishop and not of the Church, and can be superseded by 
 him at wiU, their office depends on the Bishop's will and 
 terminates with his life. When however these appointments 
 are confirmed by the Chapter, they become Church appoint- 
 ments, and as such are ordinary jurisdictions tenable for 
 Hfe C). 
 
 6. When authority is exercised directly and without a go- 
 between, as by a Bishop over an individual in his own 
 Diocese, or by a Metropolitan over his Sufiragan, it is called 
 Direct or Immediate. But the jurisdiction which is 
 exercised through an intermediacy, as that of a Metropolitan 
 over an individual in the Diocese of a Suffragan, is called 
 Indirect or Mediate. 
 
 (') See Phillimore's Ecclesiastical iaw, p. 1197 and 1207, and below 
 Chapters xlv. and xlvi. 
 
 G 
 
82 The Elements of Canon Law. 
 
 CHAPTER XXXII. 
 
 ACQUISITION OF JURISDICTION.— TITLES. 
 
 1. Befoee anyone can be allowed to exercise Jurisdiction 
 in the Cliurcli he must first have acquired what is called a 
 Title thereto. Should, however. Jurisdiction have been 
 exercised by one having no real title, the defect may in some 
 cases be subsequently supplied by the Church. In order 
 that this may be possible, it is necessary : — 
 
 (1) That the defect in title be one which is capable of 
 
 being subsequently set right. 
 
 (2) That it is also one where there is a colourable 
 
 claim of title. 
 
 (3) And that the colourable claim has been commonly 
 
 admitted. 
 
 2. A title to Ordinary Jurisdiction is obtained by being 
 advanced to some office to which it usually attaches, and 
 possession of office is obtained by formal admission granted 
 to a fit person, duly appointed, in the proper manner. A 
 title to exercise Delegated Jurisdiction is conferred by the 
 simple act of appointment by anyone having Ordinary 
 Jurisdiction. 
 
 The establishment of public offices in the Church to 
 which ordinary jmisdiction is attached is a matter of 
 ecclesiastical order and of arrangements made by the 
 Collective Episcopate. Without its active and passive con- 
 
Acquisition of Jurisdiction. — Titles. 83 
 
 currence no such new office can therefore be established, 
 nor an old one abrogated. Hence it must concur in found- 
 ing a new see or in dividing an old one. 
 
 3. Before anyone can be admitted to an office conferring 
 jurisdiction it must be established to the satisfaction of the 
 superior Q):— 
 
 (1) That the appointment has been actually made by 
 
 the person, entitled to make it, whether by 
 election or postulation as in the case of 
 a see, or by collation or presentation as in 
 the case of a benefice. 
 
 (2) That it has been duly made ; an election, for 
 
 instance, must have been free and regular, a 
 presentation or collation without simony or 
 corrupt motive. 
 
 (3) That the person appointed is a Jit person, fitness 
 
 having reference to both mind and body, age 
 and morals ; without fitness the appointment is 
 canonical! y a nullity. 
 
 4. These conditions being complied with, actual possession 
 of the office is given by Canonical Institution or Mission, 
 which may be defined as the formal assignment to a 
 particular person of a particular office by one having 
 jurisdiction for that purpose. 
 
 When Ordinary Jurisdiction has once been rightfully 
 
 (1) Thus in England before a Bishop is confirmed by the irchbishop 
 these points have to be established in his Court, or in the court of his 
 Vicar for this purpose, commonly called his Yicar-General. The Vicar- 
 General, as the Archbishop's deputy in spirituals, usually acts for 
 him, and confirms the election. See Phillimore's Ecclesiastical Imw 
 
 p. 47. 
 
 G 2 
 
84 The Elements of Canon Law. 
 
 acquired, it resides in its possessor until it be lost either 
 by resignation, translation, or deprivation, or in certain 
 contingencies ipso facto, or by death. 
 
 No holder of any office to which Jurisdiction is attached 
 is permitted to overstep the limits of his authority Q). 
 
 Deoret. Greg. IX. Lib. v. Tit. xxxi. and xxxiii. 
 
85 ) 
 
 DIVISION II. 
 
 Officers of Jueisdiction — The Hieeaechy. 
 
 CHAPTER XXXIII. 
 
 THE EXEECISB OF JURISDICTION BY EPISCOPAL 
 INTEEMEDIASIBS. 
 
 1. As the Collective Episcopate has received from Christ 
 the care and charge of the whole Church, it alone can he 
 said to have Universal jurisdiction ; and its jurisdiction can 
 only be exercised in a general Council. From the earliest 
 times, therefore, the ordinary administration of the Church 
 has been exercised by individual Bishops, assisted by advising 
 Clergy, to whom has been assigned a limited jurisdiction 
 within certain territorial boundaries. Jurisdictions thus 
 limited locally are called Dioceses, and those exercising 
 rule over them. Diocesan Bishops and Chapters. 
 
 2. In respect of jurisdiction a Diocesan Bishop is called 
 a Prelate or Superior (^), because he has been singled out 
 to exercise ordinary rule over others. In the place where 
 he exercises that rule he is called the Ordinary. 
 
 For the maintenance of the unity of the faith certain 
 
 (') See Decret. Greg. IX. Lib. i. Tit. xxxiii. de Majoritate et 
 Obedientia. 
 
86 The Elements of Canon Law. 
 
 Diocesan Bishops have been charged with a supervision of 
 their brethren as intermediaries between them and the 
 Collective Episcopate C). Such intermediaries are termed 
 Higher Prelates, and they exercise ordinary jurisdiction over 
 others of the same order. 
 
 For the better government of Dioceses, the Church has 
 also sanctioned a subdivision of the Bishop's jurisdiction by 
 the creation of ofiBcers exercising it in part or in whole, but 
 not of the episcopal Order, Such officers are called Lesser 
 Prelates. 
 
 3. The whole body of these Higher Prelates, Diocesan 
 Prelates, and Lesser Prelates constitute together what is 
 called the Hierarchy, which is, therefore, the sum total of 
 all officers exercising ordinary jurisdiction in the Church 
 arranged one under the other in graduated ranks f)- -^t 
 the head of the Hierarchy stands the Collective Episcopate, 
 from which all jurisdiction Hows. The lowest rank in the 
 Episcopal Hierarchy is that held by a Diocesan Bishop, 
 who has no other jurisdiction save that over one Diocese. 
 Between the Collective and the Diocesan Episcopate come 
 the several grades of Patriarchs, Primates, and Metro- 
 politans, each of them exercising a jurisdiction of oversight 
 over the group of Bishops severally belonging to his 
 Patriarchate, or Nation, or Province, and each subordinate 
 one to the other. 
 
 4. No member of the Hierarchy possesses any absolute 
 jurisdiction over those whose superior he is ; but the 
 whole body under him have a joint jurisdiction with him. 
 
 C) Isidores ap. Gratian I. Dist. xxi. o. 1. Nicholas, Ibzd. c. 6. 
 (*) Leo Epist. Ixxxii. a.d. 446, ap. Gratian, Caus. ii. Qu. yi. c. 14. 
 
Exercise of Jurisdiction hy Episcopal Intermediaries. 87 
 
 He is their president, and, therefore, the acts run in 
 his name. Nevertheless, his associated bishops give their 
 votes and suffrages jointly with him, and their votes 
 count equally with his. They are therefore called his 
 suffragans 0- 
 
 (!) See Deoret. Greg. IX. Lib. v. Tit. xxxi. and xxxiii. on Excesses 
 of Jurisdiction. In the Province of Canterbury the Bishop of London is 
 Dean ; Winchester, Chancellor ; Lincoln, Vioe-Chanoellor ; Salisbury, 
 Precentor ; Worcester, Chaplain ; and Eochester, Crossbearer. 
 
88 The Elements of Canon Law. 
 
 CHAPTEE XXXIV. 
 
 THE GKEAT PATEIARCHS. 
 
 1. The highest place in the Episcopal Hierarchy is 
 occupied by the Great Patriarchs. Of these there were 
 originally three, those of Kome, Alexandria, and An- 
 tioch ('). Subsequently two more were added by the 
 Council of Constantinople, those of Constantinople f ) and 
 Jerusalem f). 
 
 2. The relation of the great Patriarchs to those under 
 them was not everywhere the same, neither did they all stand 
 co-ordinately as equals on the same footing, or even bear the 
 same title. The bishops of Rome and Alexandria were 
 properly called Popes, he of Antioch Patriarch, those of 
 Constantinople and Jerusalem Archbishops (*). 
 
 3. Among the original three the Pope of Rome ever held a 
 higher position than the others, and the Pope of Alexandria 
 had ampler powers than the Patriarch of Antioch. The 
 prerogatives of the latter were shared by certain Eastern 
 
 (') Gratian I. Dist. xxii., a. 1. 
 
 (=) Gratian I. Dist, xxii., o. 3 and 6. 
 
 (S) In viii, Synodo habita sub Hadriano II. Can. 21 ap. Gratian I. 
 Dist. xxii. c. 7. 
 
 (*) See Owen's Institutes of Canon Law, p. 30. 
 
The Great Patriarchs. 89 
 
 Metropolitans. The Council of Constantinople {^) assigned 
 to the bishop of Constantinople a rank next after that of the 
 bishop of Eome on the ground that his city was a new 
 Eome. 
 
 (^) Can. 3 : rhj/ fiey rot KatPffTayrivovTriK^tos eirlffKOTrov ^X^^^ "^^ 
 'Vd/XTjy. 
 
90 The Elements of Canon Law. 
 
 CHAPTEE XXXV. 
 
 THE POPE. 
 
 The greatest Patriarch of all is the Pope, who is also 
 Primate of the whole Episcopal Order. This position he 
 derives from two sources: (1) from the Lord's command 
 ('), (2) from Canons of Comicils. 
 
 1. As Christ's commission, which is called the power of the 
 keys, was given to all the Apostles in the words : " Receive 
 ye the Holy Ghost. Whosoever sins ye remit, they are 
 remitted to them," and was confirmed to them by the 
 sending of the Holy Ghost on the day of Pentecost, so it 
 was thrice solemnly given to S. Peter f), as their chief 
 and leader, and is now in the possession of the whole 
 Episcopal Body, of which the Pope is the head or pre- 
 sident. 
 
 In the earliest times the Council of Aries a.d. 314, at 
 which three British Bishops are believed to have been 
 present, is found submitting its decrees for the Pope's 
 approval. The Nicene Council a,d 325 recognises the 
 Roman Bishop's authority over the Bishops of Italy, as a 
 precedent to be followed elsewhere. That of Sardica bestows 
 the right of entertaining certain appeals on the Roman 
 
 C) Gelasius ap. Gratian I. Dist. xxi. o. 3. 
 
 (2) Augustinus ap. Gratian, Cans. xxiv. Qu. i. c. 6. 
 
The Pope. 91 
 
 Pontiff — a right recognised by the Emperor Gratian in 
 378 A.D. and admitted by the Greeks. 
 
 2. The Pope is, therefore, not only the Bishop of Rome, 
 Metropolitan over the six adjoining Saffragans and Patriarch 
 of the suburbicarian provinces, which in time included the 
 whole of the West (^), but he is also the Primate of the 
 Collective Episcopate throughout the world, in relation to 
 which he is admitted to hold a superior pre-eminence (^). The 
 extent of the privileges attaching to this Primacy and Pre- 
 eminence have been matter of much dispute. It seems that 
 they have varied at different times in the Church's history. 
 They, however, distinctly include (1) a primacy of honour, 
 and (2) a primacy of jurisdiction Q. 
 
 3. The Pope has undoubtedly the primacy of honour, and, 
 therefore, should rightfully act as the President and spokes- 
 man of the whole Episcopate in Council assembled (^). 
 
 4. He has also the primacy of jurisdiction ('), so that 
 with him, as superior Metropolitan of the Church, it rests 
 to preside over the court of final appeal over aU Bishops f ) . 
 
 (1) Anacletus and Zacharias, a.d. 743, require all Bishops, qui ordina- 
 tionibus apostolicis subjacent, to visit Home once a year. Gratian I. 
 Dist. xciii. c. 4. 
 
 (») Iran. Contra Haer. iii., c. 3 : Ad banc enim ecclesiam propter 
 potiorem principalitatem necesse est omnem convenire ecclesiam. 
 
 (S) Authorities ap. Gratian Gaus. ix. Qu. iii c. 10-21. 
 
 (4) Labbg Tom. II. fol. 1287. Tom iv. p. 838. 
 
 (5) Gregorius Lib. v. Epist. 26 ap. Gratian I. Dist. xciii. c. 2. 
 Cyprianus, Ibid. c. 3 ; Qui oathedram Petri, super quam fundata est 
 ecclesia, deserit in eoclesia se esse non confidat. This was at one time 
 shown by conferring the pallium. See on this point the authorities in 
 Gratian I. Dist. u. 
 
 (6) In matters of faith, the Church of Eome anciently claimed to be 
 the bulwark against heresy. See authorities ap. Gratian, Caus. xxiv. 
 Qu. i. c. 10-17. 
 
92 The Elements of Canon Law. 
 
 As such president, his ex officio utterances may be called 
 infallible in the same sense that the sentences of the 
 highest civil tribunals are infallible, because upon earth 
 there is no higher court by which they can be reviewed on 
 appeal. 
 
 The election of the Pope, which was originally made by 
 the Clergy and People of Piome, and subsequently was made 
 subject to the approval of the Holy Roman Emperor ('), is 
 now made by the College of Cardinals f). 
 
 (') See on this point the authorities in Gratian I. Dist. Ixiii. e. 
 21, 22, 23, 28, 30, 31, 32, 33 : and the views disapproving of imperial inter- 
 ference, Gratian I. Dist. xcvii. 
 
 {') Kules for the election of a Pope of Nicolaus 11. a.d. ]059, of 
 Stephen HI. a.d. 769, of Boniface and others in Gratian I. Dist. Ixxix. 
 
( 93 ) 
 
 CHAPTEE XXXVI. 
 
 THE EOMAN CUEIA. 
 
 To assist the Pope in so vast a charge the Curia Eomana 
 or Roman Court has heen associated with him. It consists 
 of three bodies : — 
 
 (1) The College of Cardinals. 
 
 (2) The Congregations of Cardinals. 
 
 (3) The Roman Tribunals. 
 
 2. The Cardinals are at least nominally the chief clergy of 
 the city and province of Rome. Of these there are seventy 
 according to the Constitution of Sixtus V. viz. six Cardinal 
 bishops, fifty Cardinal priests, and fourteen Cardinal 
 deacons. Their meetings for business purposes are called 
 Consistories. The most important of their functions is the 
 election of a Pope (^). 
 
 3. Congregations are Committees of Cardinals appointed 
 for various purposes, the principal ones being : — 
 
 (1) The Congregation of the Consistory, which 
 
 arranges the business to be transacted in 
 Consistories. 
 
 (2) The Congregation of the Inquisition or Holy 
 
 Office, ■which is charged with the trial of 
 heresy. 
 
 (1) Decretmn Nieolai de electione summi Pontifices, ap. Gratian 
 I. Dist. xxiii. c. 1. 
 
94 The Elements of Canon Law. 
 
 (3) The Congregation of the Index, which examines 
 
 books suspected of heresy and condemns 
 them. 
 
 (4) The Congregation of the Council of Trent charged 
 
 with the execution of the decrees of that 
 Council. 
 
 (5) The Congregation of Bishops and Regulars which 
 
 determines disputes between these bodies. 
 
 (6) The Congregation of Rites which besides 
 
 determining the ritual appoints festivals and 
 investigates claims to canonization. 
 
 (7) The Congregation of Indulgences and Immunities, 
 
 which inquires into matters of jurisdiction. 
 
 (8) The Congregation for the Propagation of the 
 
 Faith. 
 
 All these are considered to make one person with the 
 Pope, so that there is no appeal from their decisions to 
 hira. 
 
 4. It is otherwise with Roman Tribunals, as certain 
 Institutions are called, which carry through ecclesiastical 
 business of a contentious or non-contentious character, and 
 exercise an Ordinary Jurisdiction. Such are : — 
 
 (1) The Chancery which keeps a record of all that is ' 
 
 done in Consistory touching the making 
 provision for vacant sees. 
 
 (2) The Datary which records all that is not done in 
 
 Consistory. 
 
 (3) The Penitentiary which takes cognisance of all 
 
 cases touching the sacrament of Penance. 
 
 (4) The Rota which judges all cases concerning 
 
 benefices. 
 
The Roman Curia. 95 
 
 5. The Pope is also assisted by other ministers not of the 
 Curia, such being : — 
 
 (1) Legates (^) who are delegates sent to princes 
 
 with full powers for certain purposes. 
 
 (2) Nuncios, who are accredited delegates with 
 
 limited powers. 
 
 (3) Apostolic Commissaries, who are dispatched to 
 
 judge on any business. 
 
 (4) Yicars-Apostolic sent to preside over the Church 
 
 in places where no diocesan hierarchy exists, 
 and are usually Bishops. 
 
 (5) Apostolic-Prefects who are priests sent to assist 
 
 Bishops in colonies. 
 
 O See Decret. Greg. IX. Lib. I. Tit. xxx. 
 
96 The Elements of Canon Law. 
 
 CHAPTER XXXVII. 
 
 LESSEE PATfilAECHS OR GREATER PRELATES. 
 
 1. Among lesser Patriarchs subordinate to the five great 
 Patriarchates there existed several in former days. Others 
 still exist now. 
 
 In the Western Church were those of Aquileia and Grado 
 or Venice, to which Milan and Eavenna occupied at one 
 time a position hardly inferior. In later times a similar 
 rank was accorded to the Primates of Lisbon, of the Indies, 
 of Pisa, Bourges, and Canterbury, 
 
 In the Eastern Church the chief Metropolitans of the 
 sees corresponding with the capitals of civil government 
 were at one time called Patriarchs. Subsequently these were 
 styled Protothrones. Such were Caesarea in Cappadocia, 
 Heraclea in Thrace, Thessalonica, and Corinth. 
 
 The Archbishops of Bulgaria, Cyprus, and Iberia Q) 
 were independent of Patriarchal control, and were, there- 
 fore, themselves quasi-Patriarchs. 
 
 2. Below the Patriarchs stand the Piimates, or superior 
 Metropolitans of National Churches ; under the Primates, 
 the ordinary Metropolitans of a Province ; and under these 
 the Diocesan Bishops, in this relation called Suffragans 
 
 P) The Bishops of Cyprus ohtained from the General Council of 
 Ephesus (a.d. 431) the confirmation of their independence of the See 
 of Antioch, the Council being at that moment in conflict with John of 
 Antioch. See Bouth's Opuscula on 8th Canon of Ephesus. 
 
Lesser Patriarchs or Greater Prelates. 97 
 
 because they give their voices in Synod with their Metro- 
 politan, and when not present themselves in and through 
 him ('). 
 
 3. The chief duty of a Patriarch is to see that the Canons 
 of General Councils are observed, and to hear appeals from 
 Metropolitans where the custom prevails. The tendency, 
 however, has been to curtail intermediate jurisdictions, and 
 to carry appeals direct to the Pope Q. Foreign jurisdiction 
 is, however, disallowed (^). 
 
 P) See the authorities from Pseudo-Isidore on this point, ap. Gratian I. 
 Dist. xcix. 
 
 (*) This Nioolaus did, soundly, rating Hincmar of Bheims. See 
 Gratian Cans. ii. Qu. vi. u. 13, and Caus. iii. Qu. vi. c. 10 ; Pseudo- 
 Isidore, ap. Gratian Caus. iii. Qu. vi. c. 5, 7, 9 ; Leo, Epist. Ixxxii ; 
 IHd. a. 8. It was one of the principal results of the False Decretals. 
 
 (°) By Pseudo-Isidore, ap. Gratian, Caus. iii. Qu. vi. c. 12 and 14. 
 
 H 
 
98 The Elements of Canon Law. 
 
 CHAPTER XXXVin. 
 
 AECHBISHOPS AND METEOPOLITANS. 
 
 1. There appears to be this distinction between Arch- 
 bishops and Metropolitans, that Archbishops have a. 
 precedence of rank (') only, whereas Metropolitans have 
 authority or jurisdiction to supervise the work of their fellow- 
 bishops in a Hmited and canonical manner. Hence there 
 may be and are Archbishops without suffragans, but never 
 Metropolitans without suffragans. When an Archbishop 
 does exercise control over Bishops, it is as Metropolitan, 
 when over Metropolitans, it is as Primate or Patriarch 
 
 0- 
 
 Metropolitans existed before the Nicene Council, and are 
 expressly recognised by it f). The Council of Antioch 
 (0 gives as the reason why jurisdiction is . assigned to 
 them, " because those who have business come from 
 every quarter to the metropolis ;" and it is ordered that their 
 privileges be respected. 
 
 2. The Jurisdiction of a Metropolitan is not autocratic. 
 He acts for and on behalf of the whole Episcopal Body of 
 
 (1) Archbishops alone use the paUium. Decret. Greg. IX. Lib. i. 
 Tit. Yiii. 
 
 (S!) See Owen's Institutes of Canon Law, p. 38. 
 (8) Canons 4 and 6. 
 {*) A.D. 341, Can. 9. 
 
Archbishops and Metropolitans. 99 
 
 the Chureli (^), so that he acts (1) only conjointly with 
 his suffragans or comprovincials, and (2) only in cases 
 requiring such intervention for the good of the Church. 
 
 He acts always conjointly with his suffragans (^) since 
 appeals are made to him in Synod ("), though for con- 
 venience they may be heard in Courts, which are then not 
 so much his courts as Courts of the Province. Every 
 Bishop of the province is therefore bound to attend the 
 Provincial Synod [*), there to judge and give a voice 
 with the Metropolitan ; and the sentence of the majority 
 of the Suffragans prevails against his, and without their 
 consent he cannot dissolve a Synod i^). 
 
 3. As no Bishop may intermeddle with the See of 
 another (^), so a Metropolitan's interference in the Dioceses 
 
 (') Hence a Metropolitan is required not to consecrate a Bishop 
 without the Primate's consent. Leo ap. Gratian I. Dist. Ixv. u. 4. 
 ConcU. Carthag. ii. Can. 12, a.d. 390, Ibid. c. 5, and difficult matters go 
 from the Metropolitan to the Primate. Bonitaee ap. Gratian, Caus. vi. 
 Qu. iv. a. 3. 
 
 P) Martinus exConcil. Antiooh. Can. 9, ap Gratian, Caus. ix. Qa. iii. 
 u. 1 ; Per singulas provincias oportet episcopos cognosoere metro- 
 politanum Buum, et ipsum primatus curam suscipere, nihil autem agere 
 reliquoB episcopos praeter eum . . . Propter quod metropolitanus 
 episcopus nihil praesumtive assumat ahsque ooncilio ceterorum. 
 
 (s) Pseudo-Isidorus, ap. Gratian, Caus. ix. Qu. iii. c. 4. Concil. 
 Carthag. iv. Can. 66, ap. Gratian, Caus. xi. Qu. iii. o. 30 ; Clericus qui 
 episoopi circa se districtionem injustam putat, recurrat ad synodum. 
 Decret. Greg. IX. Lib. v. Tit. i. c. 25. 
 
 (*) So all bishops subject! ordinationibus apostoliois were required to 
 appear at Eome every year by Zaoharias in 743. See Grat. I. Dist. 
 xeiii. c. 4. 
 
 p) Hence Comprovinoials are Judges in the case of a Metropolitan. 
 See authorities ap. (jratian, Caus. ii. Qu. vii. o. 44 and 45. 
 
 (8) Nioolaus et Gregorius, ap. Gratian, Caus. xvi. Qu. v. c. 1 
 and 3. 
 
 H 2 
 
100 The Elements of Canon Law. 
 
 of his ComproTincials is limited to the three cases, (1) of 
 visitation, (2) of negligence, and (3) of appeal. 
 
 4. A metropolitan may freely visit his province although 
 his suffragans are not negligent ('). In visitation the 
 Ordinary Jurisdiction of the Bishop is superseded hy that 
 of the Metropolitan, virho acts as the representative or deputy 
 of the Co-episcopate for the time being. Hence no visitations 
 may be held without the bishop of the diocese being first 
 consulted, and the Metropolitan's decision must be taken in 
 his presence (*). 
 
 5. In case of a Bishop neglecting (') to do that 
 which by law or custom pertains to his office, the Metro- 
 politan, having first monished him, may himself supply the 
 negUgence {*), as by ordaining and instituting clerks, 
 excommunicating, absolving or condemning offenders. He 
 is then said to act by devolution. But he may not hear or 
 judge a case in the first instance in a diocese other than his 
 own ("). 
 
 6. A Metropolitan may, however, decide a case when it is 
 lawfully brought before him and his suffiragans on appeal 
 (*), after it has been first heard and decided upon by the 
 bishop to whose diocese it appertains. 
 
 A Metropolitan is appointed like any other Bishop vrith 
 
 (') Sext Decret. iii. Tit. xx. 
 
 (2) Nicolaus ap. Gratian, Cans, ix., Qa. iii. c. 4 to 5. 
 
 (') Leo ap. Gratian, Cans. xxv. Qu. i. c. 2. 
 
 (*) Decret. Greg. IK. Lib. i. Tit. X. 
 
 (5) Eomana Synodns, a.d. 331, ap. Gratian, Cans. iii. Qn. vi. c. 16. 
 
 («) The Council of Sardica, Can. 17, a.d. 347, ap. Gratian, Cans. xi. 
 Qu. iii. 0. 4, sanctions appeals Also the Concil. Carthag. ii.. Can. 8. 
 A.D., 897, TMd. c. 5. Also Concil. Milev. Can. 22, ap. Gratian, Cans. xi. 
 Qn. iii. c. 34, permits appeals to episcopi vicini. 
 
Archbishops and Metropolitans. 101 
 
 the concurrence of the Clergy and Laity (^) and consecrated 
 by all his Suffragans (^). Later regulations require a 
 Metropolitan to be approved by the Prelate above him, and 
 invested with the pallium (") by the Pope. 
 
 (') ' Leo ap. Gratian I. Dist. Ixiii. c. 19. 
 
 {") Pseudo-Isidore ap. Gratian I. Dist. Ixvi. e. 1. Decret. Greg. IX. 
 Lib. i. Tit. xi. c. 6. 
 
 P) Leo and Gregorius, ap. Gratian, Oaua. xxv. Qu. ii. c. 1 to 8, 11^ 
 12. 
 
102 The Elements of Canon Law. 
 
 CHAPTEE XXXIX. 
 
 THE OFFICIALS OF METROPOLITANS. 
 
 1. A Metropolitan is assisted in the administration of his 
 Province by divers Courts and Officials separate and distinct 
 from those who assist in the administration of his Diocese. 
 
 In the Metropolitan Province of Canterbury the Arch- 
 bishop anciently combined in his person three distract 
 offices. He was (1) Archbishop of the See of Canterbury, 
 (2) Metropolitan of the Province of Canterbury, and (3) 
 Primate of all England, and born Legate of the Pope. 
 
 2. As Archbishop of the See of Canter bm-y he has a 
 Court corresponding with the Diocesan or Consistorial Court 
 of any Bishop, presided over by a Spiritual Judge correspond- 
 ing with the Official- Principal or Chancellor of any other 
 Bishop. This Judge is called the Commissary of the 
 Archbishop, and discharges the duties of an Official 
 Principal and Vicar General so far as his own diocese is con- 
 cerned, and this Court is called the Court of the Commissary 
 of the Archbishop. 
 
 3. As Metropolitan of the Province of Canterbury the 
 Archbishop has the assistance of three different Courts for 
 administering, the affairs of the province : — 
 
 (1) The Court of Audience, or the Archbishop's 
 Personal Court, in which at first were dis- 
 patched all such matters whether of voluntary 
 or contentious jurisdictions as the Archbishop 
 
The Officials of Metropolitans. 103 
 
 thought fit to reserve for his ovm hearing Q). 
 Those who prepared evidence to bring before this 
 court were called auditors. In the Archbishop's 
 absence this Court was presided over by an 
 officer called the Master Official of the Audience. 
 This Court is now almost obsolete and is only 
 used on the rare occurrence of the trial of a 
 Bishop (^), when it appears to be the same as 
 a Synodical Council presided over by the Arch- 
 bishop and acting according to set forms of law (')• 
 (2) The Court of the Official Principal {% of 
 Judicial Representative of the Archbishop. 
 This is the Coui-t of appeal in all contentious 
 matters from the Consistorial or Diocesan Courts 
 of the Province, and from the Court of the 
 Archbishop's Commissary. It is held usually 
 in Bow Church, commonly called S. Mary of 
 Arches, one of the thirteen London parishes 
 exempt from the jurisdiction of the Bishop of 
 London, and hence called peculiars. It is 
 therefore commonly called the Arches Court ('), 
 and is the most ancient Court and Consistory 
 of the Archbishop of Canterbury f ). 
 
 (^) See Johnson 254. Phillimore's Ecclesiastical Law, p. 1204. 
 
 (2) As in the case of the Bishop of S. David's, deprived by the 
 Archbishop of Canterbury in 1695. 14 State trials, 447. Phillimore's 
 Ecclesiastical Law, p. 84 and 1201. 
 
 (3) See Chap. Ixiv. 
 
 (^) Gibs. 1004. Phillimore's Ecclesiastical Law, p. 1205. 
 
 (5) Phillimore, p. 257, 1201, 1203, 1205. 
 
 (6) The rules at present regulating procedure in the Court of Arches 
 ■were made 1 Jan. 1867. 
 
104 The Elements of Canon Law. 
 
 (3) The Court of the Vicar General, or Spiritual 
 Representative of the Archbishop. The chief 
 function of this Court is to inquire into the 
 regularity of spiritual acts done in the Province. 
 Hence it takes cognisance of the Confirmation 
 of Bishops Q). 
 4. As Primate of all England, and bom Legate of the 
 Pope O, the Archbishop has also other two courts : — 
 
 (1) The Court of Peculiars, which was the Court to 
 
 which all exempt jurisdictions or peculiars in 
 England were amenable. The Judge of this 
 Court being constantly employed by the Official 
 Principal as his deputy whenever he was absent 
 on foreign embassies came to be considered 
 as that Official's standing substitute or Dean, 
 and was hence called Dean of the Arches Court, 
 sometimes Dean of the Peculiars, His functions 
 are now usually discharged by the Official 
 Principal of the Archbishop's Court. 
 
 (2) The Court of Faculties, which has to do with the 
 
 issuing of Faculties and Dispensations and the 
 admissions of Notaries, the judge of which is 
 called the Master of the Faculties ('). 
 
 (1) PhiUimore, p. 1201. 
 
 C) See Owen's Institutes of Canon Law, p. 40. 
 
 (») It is called a Court in Inst. Part 4 p. 337. By tlie Statute 28, 
 Hen. VIII. e. 21, s. 2, it has all the powers of granting dispensations 
 formerly exercised by the Pope. It would seem from s. 11 that an appeal 
 lies from this Court to the Lord Chancellor, but this is by Statute not by 
 Canon Law. See Phillimore's Ecclesiastical Law, p. 1234. 
 
( 105 ) 
 
 CHAPTER XL. 
 
 DIOCESAN BISHOPS. 
 
 1. A Diocesan Bishop is one who has been appointed to 
 preside over the Clergy and Body of Christians dwelling 
 within certain territorial limits, to rule and teach them as 
 the Ordinary (') Eepresentative of the Apostolic College, and 
 to exercise among them the plenitude of the Priesthood. 
 
 The appointment of a Bishop is made by the Co-episco- 
 pate acting through the Bishops (^) of the province, and from 
 it he derives both Jurisdiction f ) and Orders ; but it is only 
 made after the Clergy and Laity of the Diocese over which he 
 is called to preside (*) have concurred in nomiaating a fit 
 person ('). 
 
 (') A man must be in Holy Orders at the time of his appointment. 
 See Urban 11. ap. Gratian I. Dist. Ix. c. 4. Gregorii Lib. vii. Keg. 
 Epist. 113, ap. Gratian I. Diat. Ixi. c. 1. Hormisdas, Ibid. o. 2 and 3. 
 Innocentius Epist. xii. a.d. 416. Ibid. o. 4. Leo, Epist. Ixxxv. 
 (al. xxxvii. c. 1.) Ibid. o. 5. Martinus, Ibid. I. Dist. Ixiii. c. 8. 
 
 (») Leo, Epist. xc. (al. xcii. c. 1) ap. Gratian I. Dist Ixii. o. 1. 
 Calixtns, Ibid. a. 3. Capitula Caroli ap. Gratian I. Dist. Ixiii. o. 34. 
 
 P) On the share of the Emperor in the appointment of Bishops and 
 of the Pope, see the authorities in Gratian I. Dist. Ixiii. c. 9, 15, 16, 17, 
 18, 22, 23 : Concil. Toletanum xii. Can. 6, Ibid. a. 25, also 28. 
 
 (^) Conoil. Niosen. Can. 4, ap. Gratian I. Dist Ixiv. c. 1. Conoil. 
 Antioch. Can. 16, a.d. 332, ap. Gratian I. Dist. xcii. c. 8 : Si quis 
 episcopus vaeans in eoelesiam non habentem episcopum, surripiens 
 populos, sine conoilio integri ordinis irruerit, etiamsi populus quern 
 seduxit, desideret iUum, alienum eum ab eoelesia esse oportet. Integrum 
 autem et perf ectum conoUium dicimus illud, cui metropolitanus episcopus 
 interfuit. 
 
 (6) There cannot, therefore, be more than one Bishop in any Church. 
 Hieronymus ap. Gratian, Cans. viii. Qu. i. c. 41. 
 
106 The Elements of Canon Law. 
 
 2. The concurrence of the Laity is generally expressed 
 through the Patron Q), and is given either before or after elec- 
 tion, either by recommending a particular person for election, 
 or by selecting one of several candidates proposed by the 
 Clergy. In England the sovereign usually acts as the 
 Patron through the Prime Minister, but formerly the Earls 
 of Derby were the Patrons of the see of Sodor and Man, 
 and the Archbishops of Canterbury the Patrons of the 
 bishopric of Eochester. In other countries the Patronage 
 is sometimes shared between the Pope and the Sovereign ; 
 sometimes it is exercised by individuals. 
 
 3. The concurrence of the Clergy is given by the formal 
 election of the Chapter. 
 
 4. The appointment by the Co-episcopate is made by the 
 act of confirmation, whereby actual jurisdiction or a right 
 over the spiritualities is conferred. Confirmation is made 
 by the higher Metropolitan as the representative of the 
 Episcopal Body. 
 
 5. Investiture or Installation is the putting in possession 
 of the lay fiefs or property belonging to the see. It confers 
 only a right to the temporalities, and was at one time a 
 matter of serious dispute between the ecclesiastical and 
 civil authorities. 
 
 C) Concil. Carthag. iv. Can. 27 ap. Gratian, Cans. viii. Qu. i. e. 37. 
 
( 107 ) 
 
 CHAPTER XLI. 
 
 ELECTION OP BISHOPS. 
 
 1. Before a Bishop can be appointed to a Diocese it is 
 necessary that the concurrence of the Clergy and Laity of 
 that Diocese shall first have been given to his appointment (^). 
 In ancient times he was said to be elected by the Clergy 
 and Laity. What the actual share of the Laity was in the 
 election is not clear, nor whether it was more than simply 
 assenting to what the Clergy had done C). Their inter- 
 ference appears to have given rise to occasional irregularities 
 f). Subsequently when sees became endowed, the share 
 of Clergy and Laity was a matter of frequent dispute, 
 as in the struggle about Investitures. On the whole the 
 Laity obtained a preponderating influence by the right of 
 Patronage (*), and in return the Clergy excluded them 
 from the formal election in Chapter C^). 
 
 (') Gregoriug Lib. ii. Epist 19. ap. Gratian I. Dist. Ixi. c. 11. 
 Episcopus dum fuerit postulatus, cum solemnitate deoreti subscriptionibus 
 omnium roborati et dileetionis tuffi testimonio literarum ad nos sacrandus 
 ooeurrat. See Leo ap. Gratian I. Dist. Ixii. c. 2. But an election by 
 non-Catholics is void. See Gregorius Lib. viii. Epist. 65, ap. Gratian 
 Caus. ix. Qu. i. c. 6. 
 
 ('} Coelestini Epist. iii. c. 3, a.d. 429, ap. Gratian I. Dist. Ixii. c. 2. 
 Hadrianus in viii. Synodo Constantinopoli, a.d. 870, ap. Gratian I. 
 Dist. Ixiii. c. 1. 
 
 (") See Decret. Greg. IX. Lib. i. Tit vi. c. 2. 
 
 {*) In England by Statute, 2-5 Henry VIII. e. 20. 
 
 p) See Lateran Council of 1139, Can. 28, and Decret. Greg. IX. 
 Lib. i Tit. vi. e. 56. 
 
108 The Elements of Canon Law. 
 
 2. The share of the Laity in the appointment of a Bishop 
 is more usually exercised before the formM election by the 
 Clergy by nominating an individual for election ; sometimes 
 by selecting one out of several candidates elected by the 
 Chapter. A predominating influence is secured to the Laity 
 in the appointment, by the temporalities being subject 
 to the regulations of the Civil Government, and so 
 requiring the elect of the Clergy to have the approval of 
 the Laity. 
 
 3. With the Clergy alone, however, now rests the formal 
 election f ), and it has to be held subject to particular 
 customs vyhich prevail and the agreement come to with the 
 representatives of the Laity. It is moreover now confined 
 to those Clergy who are regularly attached to the Diocese, i.e. 
 the Chapter, no voice being allowed to the Clergy who 
 are only attached to i'arishes (^). 
 
 4. A regular election by the Clergy may take place in 
 one of three ways f). It may be : — 
 
 (1) By scrutiny (*), or voting by ballot, in which case 
 
 (') The formal election by the Clergy, may be regarded as the act of 
 a Court called on to inquire and decide whether the proposed Candidate 
 fulfils the Church's requirements, such as that he is not guilty 
 of any crime punishable by Canon Law. See Gratian I. Dist. Ixii. c. 18. 
 
 {' ) But used not so to be. See Innocentius ap. Gratian I. Dist. Ixiii. 
 c. 35, and Decret. Greg. IX. Lib. i. Tit. vi. c. 56. 
 
 (S) Decret. Greg. IX. Lib. i. Tit. vi. o. 12. 
 
 (<) In Acts i. 26, the earliest case on record, it appears to have been 
 by Totes given secretly ; koX fSwKav xKfipovs airrav, i.e. They (the electors) 
 gave their votes {xK^lipovs or ballot votes as opposed to public voting). 
 If the rendering is ainols, the reading would be : they (the electors) voted 
 upon them (the two candidates). It is far more probable that the 
 Church in the 4th century foUowed the precedent set in the appoint- 
 ment of S. Matthias to the Apostolate, than that the Apostles should 
 
Election of Bishops. 109 
 
 the greater and wiser part of the electors must 
 agree (0. 
 
 (2) By Compromise. 
 
 (3) By Inspiration, when the electors simultaneously 
 
 nominate one and the same person. 
 
 5. There are also two irregular modes of appointment : — 
 
 (1) By Postulation, when the electors demand one who 
 
 is disqualified by the Canons of the Church or 
 the Law of the Land. In this case the removal 
 of the disqualification, which is done by a dispen- 
 sation, constitutes the appointment (^). 
 
 (2) By Nomination, as when two or more fit persons 
 
 are presented to a third person, who finally makes 
 choice between them. 
 
 6. The rules applying to an ordinary Election are the 
 following (') : — 
 
 (1) Every one who has a right must be summoned (*). 
 
 have followed some Jewish or heathen practice in use more than 1000 
 years previously. Hence the onus proband! is on those who make 
 K\-fipovs eSaicay a different mode of election from that which the 
 conservatism of the Church has ever since followed. 
 
 (1) See Leo ap. Gratian I. Dist. Ixiii. c. 36, by a great majority, 
 Concil. Nie. Can. 6 ap. Gratian I. Dist. Ixv. c. 1. Gregorius Lib. viii. 
 Bpist. 40 ap. Gratian, Caus. viii. Qu. i. c. 17, and Deoret. Greg. IX. 
 Lib. i. Tit. vi. c. 22, and 35, 36, 55, 57. 
 
 ( ^) Disqualifloatious for a Bishop are all the things which disqualify 
 for the Priesthood, besides which there are others, such as being advocates 
 in a court of law, or holding a military command. Concil. Sardic. Can. 13. 
 Having been a schismatic, Decret. Greg. IX. Lib. i. Tit. vi. c. 5. Certain 
 disqualifications are not removable according to Decret. Greg. IX. Lib. i. 
 Tit. V. 0. 1, 2, 3, 4. 
 
 (8) See Vlaillimore'B Ecclesiastical Law, p. 198. 
 
 (*) Decret. Greg. IX. Lib. i. Tit vi. c. 35. 
 
110 The Elements of Canon Law. 
 
 The presence of non-electors does not vitiate an 
 election ('), but the protest of any omitted qualified 
 elector vitiates the proceedings. 
 
 (2) Only those in Holy Orders can vote, and no votes 
 
 may be received from unqualified persons. 
 
 (3) The election must be free from force or violence (^). 
 
 (4) Votes must be given absolutely. 
 
 (5) There must be no simony ('). 
 
 (6) Electors cannot change after the result is made 
 
 known and the elected has assented thereto (*). 
 
 (1) An election is not yitiated by the presence of non-electors. 
 Decret Greg. IK. Lib. ITit. vi. c. 18. 
 
 («) Gratian I. Dist. M. c. 13. Decret. Greg. IX. Lib. i. Tit. vi. c. 14. 
 
 (') Gregorins Lib. viii. Epist. 40 ap. Gratian, Cans. i. Qn. vi. c. 3. 
 Gregorius ap. Gratian, Caus. viii. Qu. ii., Decret. Greg. IX. Lib. i. 
 Tit. vi. c. 59. 
 
 (*) Decret. Greg. IX. Lib. i. Tit. vi. c. 21 and 58. 
 
( 111 ) 
 
 CHAPTEE XLII. 
 
 THE CONFIEMATION, TEANSLATION, AND RESIGNATION 
 OP BISHOPS. 
 
 1. When the Clergy and Laity have concurred in the 
 choice of a Bishop (^), the actual appointment is made by 
 the Metropolitan acting for the Co-episcopate generally Q). 
 This appointment is called Confirmation ("), and is not 
 permitted to be made by a layman {*). Before making it 
 the confirming Prelate is bound to inquire into the fitness 
 of the nominee (*), and not to confirm an unsuitable 
 appointment on pain of being deprived of the power of con- 
 firming future elections (^). Once made, a Confirmation 
 holds good. 
 
 By Confirmation Jurisdiction over the Diocese is com- 
 mitted to the Bishop Elect, even though the Episcopal 
 Order be as yet wanting ('), since the administration of a 
 
 (1) Hieronymus ad Tittun c. 1. ap. Gratian, Caus. viii. Qu. i. v. 20. 
 
 C) Conoil. Antioch. Can. 16, a.d. 332, ap. Gratian I. Dist. xcii. o. 8 : 
 Integrum autem et perfeotum concilium [integri ordinis] dicimus illud, 
 cui metropolitanus episeopua interfuit. Conoil. Carthag. iv. Can. 27, ap. 
 Gratian, Caus. vii. Qu. i. o. 37. 
 
 {») Greg. III. ap. beoret. Greg. IX. Lib. i. Tit. vi. c. 3. Decret. Greg. 
 rX. Lib. ii. Tit. xxx. 
 
 {*) Gregorius VII. ap. Gratian, Caus. xvi. Qu. vii. c. 12 and 13. 
 Canones Apostolorum 31. Ibid. p. 14-20. 
 
 (5) See Decret. Greg. IX. Lib. i. Tit. xii. and Tit. xiv. 
 
 (6) Decret. Greg. IX. Lib. i. Tit. vi. c. 44. ; Tit. vii. c. 1. 
 
 (7) Decret. Greg. IX. Lib. i. Tit. vi. o. 15. 
 
112 The Elements of Canon Law. 
 
 Diocese is a matter of Jurisdiction rather than of Order, 
 and acts requiriiig Order may be done by a delegate who is 
 in Episcopal Orders ('). 
 
 2. When a Bishop is removed from one see to another, 
 it is called a Translation. Translations were strictly 
 forbidden by the Council of Nicsea (^), and still more 
 strictly by that of Antioch ('). Nevertheless, custom 
 appear to have allowed them very generally (*), when they 
 seemed to be advantageous for the whole Church, of which 
 the Episcopal Body or their representative (°) must be the 
 judge. 
 
 3. Eenunciation or simple Resignation of a see is 
 forbidden to a Bishop, except for one of the following 
 reasons (°) : — 
 
 (1) When he has a sin on his conscience which hinders 
 
 the execution of his ofBce ('). 
 
 (2) On account of sickness or old age (^), or 
 
 (') Decret. Greg. IX. Lib. i. Tit. xxxiii. c. 10. 
 
 {') Can. 15 ap. Gratian, Caus. vii. Qu. i. c. 19. 
 
 (') Concil. Antiooli, Can. 21 ap. Gratian, Caus. vii. Qu. i. c. 25 ; also 
 by Evaristus ap. Gratian, Caus. -vii. Qu. i. v. 11 ; by Concil. Cartbag. v. 
 Can. 5, A.D. 401, Ibid. e. 21 ; by Hilarius, a.d. 465, Ibid. c. 30 ; by Leo, 
 Ibid. c. 31. 
 
 (*) Psendo-Isidorus ap. Gratian, Caus. vii. Qu. i. u. 34 and 35, and 
 Concil. Cartbag. iv. Can. 27, Ibid. c. 37, Gregorius, Ibid. c. 44. 
 
 (6) Deoret. Greg. IX. Lib. i. Tit. vii. and Lib. iii. Tit. iv. c. 1. 
 
 (6) Commemorated in the following lines, ap. Decret. Greg. IX. Lib. i. 
 Tit. ix. c. 10 :— 
 
 Debilis, Ignanis, Male Consoius, Irregularis 
 Quem mala plebs odit, dans scandala cedere possit. 
 
 C) Decret. Greg. IX. Lib. i. Tit. ix. c. 11. 
 
 (8) Decret. Greg. IX. Lib. i. Tit. ix. c. 9 (and not always allowed 
 then) ; Decret. Greg. IX. Lib. i. Tit. ix. c. 1. 
 
Confirmation, Translation, and Resignation of Bishops. 113 
 
 (3) For lack of knowledge of spiritual things, or of 
 
 skill to deal with the temporalities. 
 
 (4) When the people are incorrigibly disobedient. 
 
 (5) To avoid grievous scandal which cannot be other- 
 
 wise prevented. 
 
 (6) On account of personal irregularity, such as having 
 
 been twice married. 
 Instead of Renunciation, the Canon Law prefers the ap- 
 pointment of a Coadjutor or a Suffragan. 
 
114 The Elements of Canon Law. 
 
 DIVISION III. 
 
 The Unit of Jurisdiction — The Diocese. 
 
 CHAPTER XLin. 
 
 DIOCESAN JURISDICTION, 
 
 1. The Diocese is the unit of Churcli GorernmeiiL 
 It is the district committed to the spiritual oversight of 
 one Bishop, together with his Clergy the Chapter, and 
 administered hy his and their officers O. 
 
 The rule of a Bishop over a single Diocese (^ is a most 
 ancient institution of the Church, and existed hefore the 
 estahlishment of Provinces and Patriarchates and a gra- 
 duated Hierarchy. 
 
 Within the Diocese the Bishop, as representative of the 
 Apostolic College, is the superior Ordinary, and exercises a 
 
 (1) Anciently called irapoUta or Pariah. 
 
 (2) A Bishop is strictly foibidden from invading the Diocese of 
 another Conoil. Antioch, Can. 22 ; Concil. Constantinopol. i. Can. 2, 
 A.D. 391, ap. Gratian, Caus. ix. Qu. ii. e. 7, 8, 9, 10 ; nor may the Clergy 
 forsake their Diocese and go over to another, according to Concil. Niosen. 
 Can. 16, A.D. 325 ; Concil. Antioch, Can. 3, ap. Gratian, CauB. viii. Qu. i. 
 V. 23 and 24 ; and Damasus, Ihid. o. 43. 
 
 (8) Clergy without cure of souls are not bound to take the oath of 
 obedience. See Decret. Greg. IX. Lib. i. Tit. xxxiii. c. 3, yet all within 
 the Diocese are under the Bishop, Ibid. c. 4. 
 
Diocesan Jurisdiction. 115 
 
 ^well-defined jurisdiction allowed by the Churcli C)- Hence 
 a Bishop's first duty is to visit his Diocese (^), in order 
 that he may know it. Yet this he may do by deputy if 
 imable to do it in person f). 
 
 2. A Bishop's Jurisdiction is, nevertheless, not an abso- 
 lute one. It is limited (1) by the Hierarchy from above, 
 and (2) by the Chapter co-ordinately. 
 
 By the Hierarchy it is limited indirectly only, inasmuch 
 as no Bishop is permitted to interfere in the Diocese of 
 another save to supervise occasionally, as in visitations ; to 
 «et right what is complained of as a miscarriage of justice, 
 as in appeals ; and to supplement what is neglected, as in 
 cases of devolution. 
 
 By the Chapter it is limited directly, seeing that the 
 ■charge of the Diocese is not entrusted to the Bishop alone, 
 tut to him jointly with the Chapter, of which he is the 
 •ordinary superior. 
 
 3. When a Bishop acts with his Chapter, their acts are 
 acts of the Church and bind his successors. When he acts 
 by himself, those acts are his own and not the acts of the 
 Church, and are of force only during his lifetime. The 
 ■Chapter cannot act without him in the Diocese, unless he 
 
 (1) Synodus Begiaticina, a.d. 850, ap. Gratian I. Bist. xciii. c. 8 : 
 Nulla ratione olerici aut sacerdotes habendi sunt qui sub nuUius episcopi 
 disoiplina ac providentia gubernantur. Tales enim acephalos id est sine 
 capite prisoa eoclesise oonsuetudo nominavit. See also letters of 
 Clement and Auaeletus, Ibid. c. 9 and 10. See Calixtus, ap, Gratian, 
 Cans. xvi. Qu. Tii. o. 11. 
 
 P) Concil. Toletan. iv. and Concil. Tarraeonense, Can. 8, a.d. 516, ap. 
 Gratian, Caas. x. Qu. i. c. 9 and 10. ; Concil. Bracarense ii. Can. 1, 
 Ibid. c. 12. 
 
 (*) Concil. Toletan. iv. Can. 35, a.d. 633, ap. Gratian, Caus. i. Qu. i. 
 
 c. 11 : Decret. Greg. IX. Lib. i. Tit. xxx. c. 15. 
 
 12 
 
116 The Elements of Canon Law. 
 
 be dead or incapacitated, in which case it administers the 
 Diocese through a Vicar-Capitular, 
 
 A Bishop's jurisdiction is to a great extent not exercised 
 directly, but through intermediaries, some of whom have 
 an ordinary jurisdiction under him. These are of three 
 kinds : (1) Episcopal Officers, such as his Vicar-General 
 and Official Principal ; (2) Diocesan Officers, such as the 
 Archpriest and Archdeacon ; (3) Officers of the laity in 
 Holy Orders, such as the Parochial Clergy, 
 
 4. The creation of new Sees as well as the subdivision or 
 the union of old ones cannot be made without the assent of 
 the Co-episcopate and of all the Bishops affected by the 
 change C). 
 
 (^) Gratian, Caus. xyi. Qu. i. c. 48-54. 
 
( 117 ) 
 
 CHAPTER XLIV. 
 
 THE CHAPTER. 
 
 The Chapter is the name given to the whole body of the 
 Clergy regularly attached to a Diocese (^). The Parochial 
 Clergy not being regularly attached to the Diocese but 
 only attached to their Parishes do not form part of it. 
 
 1. The number of members belonging to a Chapter is 
 indefinite (^). It depends partly on the needs and extent 
 of the Diocese, partly on the revenues aTailable to make new 
 Chapter- titles f^. Since the extensive growth of the Paro- 
 chial System in the Western Church, Chapters have ceased 
 to expand, and have rather contracted, although the increase 
 of their revenues would have permitted of a large extension. 
 
 , Without the help of the Parochial Clergy most Chapters 
 would be wholly insufficient for the needs of the Diocese (*). 
 
 2. The Chapter {') has a jurisdiction ia the Diocese 
 jointly with the Bishop ('). The Bishop is by Canon 
 
 C) They cannot be condemned without a Synodieal hearing. See 
 Concil. Hispalens. Can. 6, a.d. 619, ap. Gratian, Caus. xv. Qu. vii. c. 7. 
 
 (2) A Chapter may not diminish its places without reason, though it 
 may inoreaBe their number. See Decret. Greg. IX. Lib. i. Tit. ii. c. 12 
 and 9. 
 
 (3) Decret. Greg. IX. Lib. iii. Tit. vii. c. 1. 
 (i) Decret. Greg. IX. Lib. iii. Tit. v. 
 
 (5) In ordinary cases the majority bind the rest. Decret. Greg. IX. 
 Lib. iii. Tit. xi. 
 
 (6) Decret. Greg. IX. Lib. iii. Tit. x. The recently published work 
 as to the Cathedral Church of Wells, from the Commiesion on Historical 
 MSS. illustrates this. 
 
118 The Elements of Camon Law. 
 
 Law bound to consult it in all administrative work C). 
 But siace this rule cannot be enforced in the Civil Courts it 
 has been much neglected by Bishops. The Chapter, how- 
 ever, cannot exercise jurisdiction iu the Diocese (^) except 
 through the person of the Bishop, its head, neither can it 
 when its Head is dead or incapacitated exercise juris- 
 diction except through some other person acting for it as a 
 Vicar-Capitular. A Vicar-Capitular (*) is not, therefore, 
 simply the Proctor of the Chapter (*), but a person having 
 a recognised ordinary jurisdiction ia the Church. 
 
 3. The Chapter together with the Bishop is charged with 
 the general administration pf the Diocese (°). With and 
 under him it provides for the services of the Church. 
 Statutes cannot be made without its consent C), nor any 
 alteration in the mode of celebrating divine service. All 
 officers appointed by the Bishop without its concurrence are 
 -only officers of the Bishop holding office for his lifetime 
 and good pleasure, and not officers of the Diocese or 
 the Church. 
 
 {') Fanormitan, T. vii. p. 76. 
 
 (2) Lib. V. Capitularium, Can. 115, ap. Gratian HI. Dist. v.-c. 34 ; 
 not even so far as the making o{ Statutes goes, Decret. Greg. IX. Lib. i. 
 Tit. iv. c. 9 ; but the Dean is required to preach in diSerent Churches of 
 the Diocese by Can. 43. See PhOHmore's Ecclesiastical Law, p.l60. 
 
 (') Decret. Greg. IX. Lib. i. Tit. xxxiii. «. 14 ; See ConcU Derdens, 
 Can. 16 ap. Gratian, Caus. xii. Qn. ii. c. 38 as to its duties where the 
 Bishop is in extremis. In England the Archbishop has this privilege by 
 prescription or composition. The case of the See of Canterbury is an 
 exception. See Phillimore's Ecclesiastical Law, p. 77. 
 
 (*) In England he is usually called Guardian of the Spiritualities. 
 
 (=) Decret. Greg. IX. Lib. i. Tit. iii. c. 7. 
 
 (*) Gregorius, ap. Gratian, Caus. xvi. Qu. i. c. 7. Ecclesia habet 
 senatum coetum presbyterorum, sine quorum concilio Tiihil monachis 
 agere licet. 
 
 P) As to how this is given, see Decret. Greg. IX. Lib. iii. Tit. xL 
 
( 119 ) 
 
 CHAPTEE XLY. 
 
 EPISCOPAL OFFICERS, 
 
 The Episcopal Officers appointed to assist in diocesan 
 administration are of three kinds : (1) Coadjutor or Suffra- 
 gan Bishops, who are consecrated to perform episcopal acts, 
 as the Diocesan's deputies; (2) the Bishop's Vicar- General, 
 Officia' Principal, and Chancellor, who exercise the Bishop's 
 Ordinary jurisdiction as and for him as principals and not 
 as deputies ; (3) those who hold a special Commission 
 limited by the terms of that Commission, such as Eural 
 Deans. 
 
 1. A Coadjutor or Suffragan Bishop is one who is 
 appointed to assist another Bishop in case of iUness, age, 
 or mental incapacity, by doing episcopal acts on his behalf 
 C). "When he is appointed to preside over the same see 
 during the Bishop's hfetime, with right of succession, he is 
 called I Coadjutor Bishop (^). When he is appointed to 
 preside over a part of a diocese and to act during the 
 
 (1) Beth Gregory and Nioolaua fortid a Bishop's being deprived 
 because jf age (ap. Gratian, Caus. vii. Qu. i. c. 1 and 3) ; but another 
 may be appointed to assist him, Ibid. u. 13, and Conoil. Toletan. xi. 
 Can. li A.D. 675, Ibid. e. 15 ; also Zaoharias, a.d. 734, Ibid. c. 17, and 
 Pelagiuf, c. 18 ; Pseudo-Isidorus, ap. Gratian, Caus. viii. Qu. i. c. 1. 
 Innocert III. in Decret. Greg. IX. Lib. iii. Tit. vi. o. 5. The Act 32 and 
 33 Vict c. Ill sees. 3 and 4, sanctions the appointment of a Coadjutor 
 Bishop in case of the incapacity of the Diocesan. 
 
 (2) A bishop, however, cannot appoint his successor. See Gratian, 
 Caus. mi. Qu. i. c. 3 to 7. 
 
120 The Elements of Canon Law. 
 
 Diocesan's pleasure, he is improperly called a Suffragan 
 Bishop ('). 
 
 2. By Vicar-General (') is meant one who is appoiated 
 by the Bishop with general powers to represent him. His 
 proper work is the exercise and administration of jurisdiction 
 purely spiritual by the authority and under the direction of 
 the Bishop, such as visitation, correction of manners, gmntiag 
 institutions 0, and the Uke, with a general inspecaon of 
 men and things, to the preserving of discipline and good 
 government ia the Church (*). As the Bishop's repre- 
 sentative he can take cognisance of aU cases belongihg to 
 his jurisdiction which still rest in him, notwithstandiig the 
 appointment of an Official. His tribunal is identical with 
 the Bishop's, with whom he is considered to. ma^e but 
 one person, so that there is no appeal from him to the 
 Bishop (^). He is the Bishop's chief spiritual officer, 
 haidng charge of all his voluntary jurisdiction f). 
 
 (1) Suffragan Bishopa in this sense are a creation of statute % Henry 
 VIII. c. 14. See Phillimore's EccUsiattical Law, p. 96. In tie nsnal 
 sense aU the Diocesan Bishops of a Province are called SufEragans. 
 
 (*) Anciently called Vioedominus, or Oeconomus. Conoil. Chalcedon, 
 Can. 26, a.d. 451 : eSc|e iracrav iKK\T](riav ^iriffKoirov exovixav Koi dK6vo/JU}jf 
 exeiv cK Tov iSiov KK-fipov, olKoyofiovvra ri ^KKKrifficurTtKa Kara yvvfiTtv rov 
 ISiov imcrK6Trov See Gregorins, Lib. ix. Ep. 66, and Lib. i. Ep| 11, ap. 
 Gratian I. Dist. Ixxxix. c. 2 and 3, and Caus. xii. Qu. ii. c. 45 ; jratian, 
 Cans. xvi. Qu .vii. c. 21. Synodus vii. Can. ii. ap. Gratian, Cand ix. Qu. 
 iii. e. 3, authorises a Metropolitan to appoint an Oeconomus for i Bishop 
 who neglects so to do. Ayl. Par. 161. 
 
 (') In Smith v. Lovegrove (2. Lee's Bep. 169), it was ruled that by 14 
 Car. ii. o. 4, Chancellors or Vicars- General were debarred from esrcising 
 the power of a Vicar-General by licensing a lecturer. 
 
 (*) Gibs. Introd. 22 ; Gibson's Tracts, 108 ; PhiUimore's Ecclesiastical 
 Law, p. 1208. 
 
 (') 1. StiUingfleet, 330. Phillimore's Ecclesiastical Law, p. 1239. 
 
 («) Conoil. Hispalens. U. Can. ix. a.d. 619, ap. Gratian, Caus. -in. Qu. 
 vii. c. 22, forbids the appointment of a layman. Gonf. Ibid. c. 23to 25. 
 
Episcopal Officers. 121 
 
 The chief temporal officer of a Bishop is his Official 
 Principal Q), who is charged with the care of all contentious 
 matters of temporal cognisance, such as wills, marriages, and 
 the like. As the Vicar-General is the Bishop's spiritual 
 representative, so the Official Principal is his judicial 
 representative. Except in the case of the see of Can- 
 terbury, the offices of Vicar-General and Official Principal 
 are usually but not necessarily united in all English 
 dioceses in one and the same person, who is called the 
 Chancellor {^). 
 
 (}) By a constitution of Archbishop Chichele, ap. Lind. 128, it is 
 enjoined: " To remove the scandals brought upon the authority of the 
 Church, we, following the footsteps of the holy canons, do decree that no 
 clerk married, nor bigamus, nor layman, shall upon any pretence, in his 
 own name or in the name of any other, exercise any spiritual jurisdic- 
 tion ; nor in cases of correction where the proceedings are for the health 
 of the soul, or where the judge proceedeth ex officio, shall in any wise be 
 a scribe, or register, or keeper of the registry of such corrections : And if 
 any ordinary inferior to the Bishop or other person having ecclesiastical 
 jurisdiction shall admit or suffer any such person to exercise any such 
 office a« aforesaid, he shall be ipso facto suspended from the exercise of 
 his office and jurisdiction and from the entrance of the Church ; and all 
 citations, processes, sentences, acts, and other proceedings had or made 
 by such clerks married, bigami, or laymen, shall ipso facto incur the 
 sentence of the greater excommunication." This Canonical enactment 
 appears never to have been repealed, notwithstanding that the Statute 
 37 Henry VIII. c. 17, permits otherwise, enacting : " That all and 
 singular persons, as well lay as married, being Doctors of the Civil Law, 
 lawfully create and made in any university who shall be appointed to the 
 office of Chancellor, Yicar-General, Commissary, Official, Scribe, or 
 Begiater, may lawfully execute and exercise all manner of Jurisdiction, 
 commonly called Ecclesiastical Jurisdiction, and all censures and co- 
 ercions appertaining or in any wise belonging to the same, albeit such 
 person or persons be lay, married or unmarried, so that they be Doctors 
 of the Civil Law as is aforesaid ; any law, constitution, or ordinance to 
 the contrary notwithstanding." 
 
 (2) See Gibson's Tracts, 110. 
 
122 The Elements of Canon Law. 
 
 3. A Eural Dean (^ is one who is appointed to supervise 
 a group of the Parochial Clergy {') as the Bishop's officer, 
 and generally to keep the Bishop informed of all that 
 transpires in his Raral Deanery. His duties are, therefore, 
 the same as one branch of the Archdeacon's duties ('), but 
 within a more limited district, and accordiagly of ancient 
 right the Archdeacon had a share in his appoiutment jointly 
 with the Bishop (*). His present position is that of being 
 the Bishop's Commissary for certain purposes, the precise 
 nature of which depends on the terms of his commission. 
 He has, therefore, no ordinary jurisdictfon, and is not a 
 prelate f). 
 
 4. There are, however, certain Commissaries of the 
 Bishop, or rather of his Official Principal, who do exercise 
 an ordinary jurisdiction. Such are the Commissaries who 
 used to be appointed to act for the Chancellor in places of 
 the diocese far distant from the chief city. These were 
 termed Officials of the Outplaces f ) in contradistinction to 
 the Official Priucipal. 
 
 (1) Aiieiently called Arohipresbyter Ruialis. See Decret. Greg. IX. 
 Lib. i. Tit. xxiv. c. 4. 
 
 C) See below chapters on the Parochial Clergy and Benefices. 
 
 (8) The Archdeacon supervises the Parochial Clergy because of their 
 holding temporalities. 
 
 (*) In ancient times, however, the Rural Dean was an Officer o{ the 
 Church and not of the Bishop only, and was appointed by the Archdeacon 
 jointly with the Bishop. See Decret. Greg. IX. Lib. i. Tit. xxiii. 1, 7, 8, 
 and Tit. xxiv. c. 4 ; and Gibs. 971. This ancient office appears in England 
 to have been superseded by the Archdeacon's on the one hand, or to 
 have survived in that of Deans of Peculiars on the other. At the time 
 of the Reformation its jurisdiction appears to have declined to nothing. 
 
 (5) Modern Rural Deans are only the Bishop's Commissaries. See 
 PhiUimore'a Ecclesiastical Law, p, 257. 
 
 (^) Offieiales foranei. See Phillimore's Ecclesiastical Law, p. 1215. 
 
( 123 ) 
 
 CHAPTER XL VI. 
 
 DIOCESAN OFFIOEES. 
 
 Those who hold a recognised office in the Church or 
 Diocese, and do not simply act under the Bishop, are 
 termed Diocesan officers f). 
 
 1. There are two such officers in every Diocese, the 
 Archpriest or Dean, and the Archdeacon f). As to the 
 relative rank of the two, there appears to have heen 
 some diversity of practice ; in some places the Arch- 
 deacon taking precedence of the Archpriest ('). As officers 
 of the Church, these two have a well defined Ordinary 
 Jurisdiction {*). 
 
 2. The Archpriest, or as he is more commonly called, the 
 Dean, is the Head of all the Priests regularly attached to 
 
 P) They were anciently elected by the clergy and people. See Isidorus 
 ap. Gratian I. Dist. Ixiii., c. 20. 
 
 (") See the regulations of Urban II. a.d. 1095,' of Calixtus II. at the 
 Ist Lateran Council A.». 1123, of Innocent II. at the 2nd Lateran 
 Council A.D. 1139, as to the persons qualified for the several dignities of 
 Archdeacon, Archpriest, or Dean and Provost, ap. Gratian I. Dist. Ix. 
 e. 1, 2, and 3. 
 
 p) But he appears to have been under the Archdeacon. See the 
 Coneil. Toletan. ap. Deoret. Greg. IX. Lib. i. Tit xxiv. c. 1. Innocent III. 
 ap. Greg. IX. Decret. Lib. i. Tit. xxiii. o. 7 : Arohipresbyteri autem, qui 
 a pluribus decani nuncupantur archidiaconi jurisdiotioni se noverint 
 subjacere. 
 
 (*) Kecognised in England by books on Common law. See PhiUi- 
 more's Ecclesiastical Law, p. 239, and Gibs. 970. 
 
124 The Elements of Canon Law. 
 
 the Diocese. His Jurisdiction, therefore, is over them (') 
 i.e., over the Chapter which they compose ; and inasmuch 
 as the members of the Chapter are the only spiritual 
 assessors of the Bishop recognised by the Church, and the 
 Dean is the Head of the Chapter, he is styled the 
 Bishop's Vicar born in spirituals. After the Bishop he 
 has the greatest place in the Church, and is responsible 
 for all the ministrations in the Cathedral Church of the 
 Diocese f). 
 
 3. The other Diocesan OfiBcer is the Archdeacon (°), 
 one or more, the eye of the Bishop (*) to whom is com- 
 mitted the charge of all the temporalities of his Arch- 
 deaconry f). He is, therefore, said to be the Bishop's Vicar 
 born in temporals. As such he appears to have Jurisdic- 
 tion over the Parochial Clergy in respect of their temporali- 
 ties ('), the Parochial Clergy being not so much officers • 
 
 P) Lindwood says that the canons are tmder the Dean as to 
 the cure of souls, and make their confessions to him. Ood. 55, Lind. 
 327. 
 
 {') He is therefore required to reside. Can. 42 of 1603, requires a 
 Dean to reside 90 days. The Act 13 and 14 Vict. e. 98, s. 3 requires every 
 Dean to reside 8 months at the least. 
 
 (') On the duties of an archdeacon, see Decret. Greg. IX. Lib. i. 
 Tit. xxiii. Isidorua Hispalensis ap. Gratian I. Diet. xxv. c. 1 : Solicitude 
 quoque parochiarum et ordinatio et jurgia ad ejus pertinent curam. Pro 
 reparandis Diocesanis basilicis ipse suggerit sacerdoti. Ipse inquirit 
 parochias cum jussione episoopi et omamenta vel res basilioarum parochi- 
 arum et Mbertatum episcopo idem refert. 
 
 (*) So called by Innocsnt III. in Decret. Greg. IX. Lib. i. Tit. xiiii. 
 C.7. 
 
 (6) Concil. Carthag. iv. Can. 17, ap. Gratian I. Dist. Ixxxviii., c. 7 : 
 Bpisoopus gubernationem viduarum et pupillorum ac peregrinorum non 
 per Be ipsum sed per archipresbyterum aut archidiaconum agat ; but not 
 of the Cathedral. Decret. Greg. IX. Lib. i. Tit. xxxiii. c. 16. 
 
 (6) Concil. Cabilonense, Can. 15, a.d. 813. ap. Gratian 1. Dist. xciv. 
 
Diocesan Officers. 125 
 
 of the Churcli as of the Laity, and occupying the position 
 they do by -virtue of possessing benefices, but he has not 
 Jurisdiction over the Chapter Q). 
 
 4. A Vicar-General, or other Official of the Bishop, 
 exercising an ordinary Jurisdiction, becomes a Diocesan, 
 and no longer simply an Episcopal officer, if his appointment 
 is confirmed by the Dean and Chapter. 
 
 c. 3, forbids Archdeacons to exercise lordship over priests: for dictum 
 est, quod in plerisque loois archidiaconi super presbyteros paroohianos 
 quandam exercent dominationem, et ab eis oensum exigant, quod magis 
 ad tyrannidem quam ad rectitudinis pertiuet ordinem. 
 
 (1) Deoret. Greg. IX. Lib. i. Tit. xxiiii. 16, quoted by Gibs. 171. 
 
126 The Elements of Canon Law, 
 
 CHAPTEE XLVn. 
 
 PAEOCHIAL CLERGY. 
 
 1. The Parochial Clergy are not Of&cers of the Church of 
 the Diocese, seeing they are not regularly attached to it like 
 the Members of the Chapter. They have therefore no^ 
 ordinary jurisdiction of their own, but in respect of jurisdic- 
 tion are simply Vicars of the Bishop. Neither are they 
 altogether officers of the Bishop although they are his 
 Vicars, seeing that theii- ministrations are not for the whole 
 Diocese but only for particular districts thereof called 
 Parishes. But they are rather officers of the Laity by 
 whom they are appointed to the places, O within which 
 they are deputed by the Bishop to exercise certain spiritual 
 functions. 
 
 They have, therefore, a double character. They are (1) 
 Officers of the Laity in respect of the places they hold and 
 to which they have been appointed by them, and (2) they 
 are Curates of the Bishop ia respect to their spiritual 
 ministrations. 
 
 2. Of ancient right they have no recognised ecclesiastical 
 position in the Diocese like the Chapter Clergy. Neverthe- 
 less the possession of benefices has conferred on them a 
 legal position, which by custom has come to be canonicaUy 
 acknowledged, so that they do not hold place like ordinary 
 
 (1) Deeret. Greg. IX. Lib. iii. Tit. v. o. 34. 
 
Parochial Clergy. 127 
 
 Curates during the Bishop's life, or good pleasure, but, like 
 others having an ordinary jurisdiction, continue to hold the 
 office to which they are appointed until they are canonically 
 removed from their. benefices. 
 
 On the other hand their ministrations are confined strictly 
 to the duties for which they are appointed, so that without 
 the Bishop's license they have no authority to exercise 
 others C). 
 
 P) TJiJess, therefore, they have the Bishop's License, or at least his 
 cognisance, they have no authority to administer Penance. 
 
128 The Elements of Canon Law. 
 
 PART III. 
 
 OF CERTAIN ESSENTIALS FOB THE HOLINESS AND 
 MAINTENANCE OF THE CHURCH UPON EAETH. 
 
 CHAPTER XLVin. 
 
 OF GKACES, GIFTS, AND CENSTJEES. 
 
 1. The Church having been planted in the world for the 
 purpose of securing the holiness of its members by means 
 of Christ's holiness, and its own continuous existence upon 
 earth being necessary for aU mankind to be partakers of so 
 great a benefit, the means whereby these objects may be 
 secured are of primary importance, and the rules for their 
 administration occupy a large place in its laws. 
 
 These may be divided into three groups : — 
 
 (1) All those outward means provided in the Church 
 
 whereby grace is conveyed to the souls of its 
 members, including not only the Sacraments, but 
 also Sacramental Acts. 
 
 (2) Certain states of life to which spiiitual gifts are 
 
 attached in the Church, whereby the means of 
 grace are dispensed for the good of others, in- 
 cluding not only Holy Orders, but also the 
 Holy Estate of Matrimony. 
 
OJ Graces, Gifts, and Censures. 129 
 
 (3) The powers of Discipline and Censure, both public 
 and private, whereby the exercise of both graces 
 and gifts is safe-guarded for the good of all. 
 
 2. The means of grace which Christ has committed to 
 His Church are the two Sacraments of the Gospel, viz., 
 Baptism and the Holy Eucharist ; the first whereby new 
 members are incorporated into the Body of Christ, the 
 other whereby such as are already members of that Body 
 are advanced in the way 'of holiness. Confirmation and 
 Unction are also subsidiary means of grace. So also are 
 Preaching and all the public Offices of the Church. 
 
 3. For the purpose of dispensing these graces Christ has 
 established in His Church certain Spiritual Gifts called 
 Holy Orders, inherent in certain classes of men. Of these 
 there are likewise two, the Orders of Priests and Deacons ; 
 for Bishops and Priests are held to belong to one Order, 
 although Bishops have a higher degree in the same Q). A 
 certain spiritual gift is likewise attached to those in another 
 condition of life called Matrimony, when it is rightly con- 
 tracted in the Church. 
 
 4. The dispensing of these graces and gifts is not left to 
 the arbitrary will of individuals, but rests in the disposition 
 of the Church, which alone has ths power of determining 
 not only how and by whom they shall be enjoyed, but also 
 in what cases, and for what reasons they shall be withheld 
 by way of censure. This is termed the power of Church 
 Discipline. 
 
 (I) Concil. Benevent, a.d. 1091, ap. Gratian I. Dist. Ix. u. 4 ; Ordines 
 qui auctoritate Christi et Apostoloram sacri fuerunt et sunt, qui sunt 
 Diaoonatus et Sacerdotium. See Owen's Institutes of Canon Law 
 
130 The Elements of Canon Laic, 
 
 DIVISION I. 
 
 THE MEANS OF GRACE. 
 
 CHAPTER XLIX. 
 
 SACRAMENTS, SACRAMENTAL ACTS, AND PUBLIC WORSHIP, 
 
 The Sacraments are the chief means of grace which 
 Christ has committed to His Church for the maintenance of 
 the Church's existence upon earth, and the edification of the 
 faithful. 
 
 1. The essence of every true Sacrament consists in the 
 use of an outward and visible sign as the, agency for 
 conveying to man an inward and spu'itual grace. That 
 outward signs should be capable of conveying inward graces 
 to the souls of men is a result of their being of divine 
 appointment f). Hence every true Sacrament must have 
 a divine origin ; and so Baptism and the Lord's Supper are 
 
 (') Augustin Lib. ii. de Doctrina Christiana c. 1. ap. Gratian III. 
 Dist. iii. c. 33. Lanfranc ap. Gratian III. Dist. iii. c. 48. August. 
 Tract. Ixxx ad. e. 15, Joannis ap. Gratian, Caus. i. Qn. i. u. 54 ; Setrahe 
 Terbum et quid est nisi aqua. Accedit yerbum ad elementum et fit 
 sacramentum. 
 
 p) Gregorius et Eusebius Emissenus ap. Gratian III. Dist. iii. c. 34, 
 35, and 36, Ambrosius, Ibid. c. 69. 
 
Sacraments, Sacramental Acts, and Public Worship. 131 
 
 the two great Sacraments of the Gospel because they were 
 undoubtedly instituted by Christ Himself ('). 
 
 2. Although in every true Sacrament the outward sign 
 conveys the inward grace necessarily by virtue of Christ's 
 appointment fj, there are, nevertheless, certain outward 
 signs which ordinarily convey grace to the soul, and which 
 are of the Church's appointment. These are caUed 
 Sacramental Acts. Such are Confirmation and Unction. 
 
 3. Grace is received also by yet other means, as by 
 hearing Sermons, or in the Public Worship of the Church. 
 
 (1) Baptism in Matt, xxviii., 19., the Eucharist Matt, xxvi., 26. 
 
 (2) AugustinuB in Psalm x. and Gregorius ap. Gratian, Caus. i. Qu. i. 
 «. 88, 89, and 96, 97. 
 
 K3 
 
132 The Elements of Canon Law. 
 
 CHAPTEE L. 
 
 THE SACEAMENTS. 
 
 Theee are two Sacraments of the Gospel ordained by 
 Christ Himself, viz., Baptism and the Supper of the 
 Lord. 
 
 1. Holy Baptism is the Sacrament of admission to the 
 Christian life. By it the baptized person is gi-afted into, 
 and made a member of the Body of Christ ('), Trbich is His 
 Church, and is thus made partaker of Christ's holiness (^). 
 He is thereby bom again into a new life, and saved in and 
 through Christ unless he forfeit his membership, and lose 
 his union with the Head. 
 
 2. The Holy Eucharist is the Sacrament of continuance 
 in the Christian life. By it the union of the individual with 
 Christ the Head, and with the body of Christ the Church is 
 maintained, and fresh grace is given to the Communicant 
 to reproduce Christ's holiness in his own life. As the 
 Church exists upon earth to promote the hoHness of its. 
 members, so it excludes from its communion any member 
 who either determinedly refuses to pursue this holiness or 
 who, by carelessly neglecting to do so, hinders the holiness 
 of others. 
 
 3. The VaJidity of Sacraments is not affected by the 
 
 (1) Eom. vi. 3. 
 
 (2) Gal. iii. 37 ; Sffoi els XpicThv i^airTltr6T)Tc, Xpiar'br J«Su(ro<r0f 
 
The Sacraments. 133 
 
 worthiness of the Minister Q). They are forbidden to he 
 administered to those out of the jurisdiction f), and in no 
 case may fees be demanded for their Ministration f). 
 
 (1) Auguatinus contra Hroretioos Traotat. v. ap. Gratian, Caus. i. Qu. i. 
 c. 30 to 38. August, de corpora Domini ap. Gratian, Caus. i. Qu. i. o. 
 77. Augustin. contra Petil. Lib. ii. o. 8 ap. Gratian, Caus. i. Qu. i. c. 
 87 and 98. Nioolaus ap. Gratian, Caus. xv. Qu. -yiii. c. 6. 
 
 P) Concil. Nannetense, Can. 1 and 2 ap. Gratian, Caus. ix, Qu. ii. c. 
 4,5. 
 
 P) Gelasins, a.d. 494, Epist, i. c. 7 ap. Gratian, Caus. i. Qu. i. c. 99. 
 Baptizandis consiguandisque fidelibus saoerdotes pretia nulla praefigant. 
 Sexta Synod. Can. 23. a.d. 692, Ibid. 100 ; nullus episcopus aut presbyter 
 aut diaoonus, qui sacram dispensat communionem, a percipiente gratiam 
 communionis aliquod pretium exigat. Concil. Toletan. xi. Can. 8, a.p. 
 675, Ibid. c. 101 : Concil. Bracarens. ii. Can. 4 and 7, a.d. 572, Ibid. 102 
 and 103. Concil. Eliberitan. Can. 48, a.d. 310, Ibid. 104. Concil. 
 Tribur. a.d. 895, Ibid. 105. Concil. Cabilonens. Can. 16, a.d. 313, 
 Ibid. 106. 
 
134 The Elements of Canon Law. 
 
 CHAPTER LI. 
 
 BAPTISM. 
 
 Baptism is the Sacrament which cleanses from sin (') 
 by grafting the Baptized Person into the Church which is 
 the Body of Christ f). 
 
 1. The essentials of Baptism are the use of water in its 
 natural state, and the use of words stating the purpose for 
 which it is employed, yiz., to haptize. It should be ad- 
 ministered in the name of the Father, the Son, and the 
 Holy Ghost, but it is not invalid if administered in the 
 name of Christ only ("). 
 
 2, The proper mode of baptizing is by immersion. 
 Single immersion sufBces (') but to immerse thrice is pre- 
 ferable f ) because it signifies belief in the Trinity and the 
 
 (1) S. Augustin, and S. John Chrysostom, ap. Gratian III. Dist. iv. 
 c. 3 and 4 ; S. Boniface, JMd. c. 136 to 137 ; See Decret. Greg. IX. 
 Lib. iii. Tit. xlii ; Clnment, Lib. iii. Tit. xv. 
 
 In tbe New Testament, Acts ii. 38 ; PaTrntrS^Ta exatTTOs ifnap . . fls 
 Hfpifftv afiapTLuv Acts xxii. 16 ; jSairrfiroi koI aTrSKovcrai tols afiaprlas aou 
 1 Pet. iii. 21 ; t (so. vdb>p) koX vfias avTirwov vvv c^C^i fiairTt(r/j.a* 
 
 P) S. AmbTose, Lib. i. de Sacramentis, c. 4 et 5, ap. Gratian III. 
 Dist. iv. 0. 9 ; S. Boniface, ap. Gratian III. Dist. iv. c. 131, and c. 
 183 ; Augustin, Ibid. c. 143 ; Bom. vi. B : ifiaiTlaeinJifv tis XpurTiv 
 'iTjffovv. 1 Cor. xii. 13 : els €V cufia e/SairT^ffflij/iev 
 
 (S) Pelagius, Ibid. c. 30. 
 
 (*) Fourth Council of Toledo in Gratian III. Dist. iv. e. 85. 
 
 (5) S. Augustin, ap. Gratian III. Dist. iv. c. 78; Zaoharias, Ibid. 
 0. SB ; Apostolic Canons, Ibid. c. 79 ; S. Gregory, Ibid. 80 ; Decret. Greg. 
 IS. Lib. iii. Tit. xlii. S. Jerome ap. Gratian III. Dist. iv. e. 81 ; See 
 also Zaeharias as to mistakes in words, Ibid. c. 86. 
 
Baptism. 135 
 
 three days burial of Christ. The custom of the country 
 determines the practice. It seems likely that S. Peter 
 baptized by sprinkling or aspersion, when five thousand 
 were converted in one day. Hence baptism by aspersion is 
 also allowed. 
 
 3. The proper minister to baptize is a Bishop or a Priest 
 0) who thereby becomes the spiritual father of the baptized ; 
 but a Deacon may baptize when no Priest can be had, and 
 in cases of necessity a layman (^) but usually not a 
 woman Q). 
 
 4. All men may receive baptism (*) because it is 
 necessary for allC), but in case of the baptism of children, f ) 
 the Church requires god-parents, one or more, who must be 
 Christians ('), and themselves confirmed' to insure the 
 proper education of their god-children afterwards. 
 
 5. Anciently the Church baptized only on Easter Eve, 
 and Whitsun Eve (') except in the case of sickness (') 
 
 (1) Isidorus ap. Gratian III. Dist. iv. o. 19. 
 
 (=) Augustinus, Ibid. e. 21 and 36; Edmund, Lind. 63. 
 
 P) Forbidden by Fourth Council of Carthage, ap. Gratian III. Dist. 
 iv. 0. 20. 
 
 (*) Martinus, Ibid. a. 22. 
 
 (5) Augustin. Ibid. u. 37. 
 
 (5) Isidorus liW. c. 74; Augustin c. 76 and 142; Deoret. Greg. IX. Lib. 
 iii. Tit. xlii. e. 3. 
 
 C) Augustinus, Ibid. e. 77 and 105. In ancient times one was enough. 
 See Leo ap. Gratian, Ibid. v. 101 ; God-parentage establishes a re- 
 lationship closer than blood, so carrying with it all the duties and 
 marriage-disqualifications of blood relationship. See the authorities, ap. 
 Gratian, Cans. xxx. Qu. i. 
 
 (8) Sirioius ap. Gratian III. Dist. iv. c. 11. Leo Epist. iv. o. 5, Ibid. 
 c. 12 and 13 and 14 ; Cone. Gerundense, Ibid. o. 15 ; Gelasius, Ibid. c. 17 
 and 18. 
 
 (») Third Council of Carthage, Ibid. c. 75. 
 
136 The Elements of Canon Law. 
 
 or some other necessity when it was allowed at any time ('). 
 Such haptism was called Clinical Baptism and carried with 
 it several disabilities f). 
 
 6. The Place where Baptism is administered is only in 
 Churches possessed of fonts (') hence called baptismal 
 Churches (*) and these are only principal Churches. 
 Baptism elsewhere is permitted in the case of princes, or 
 where access cannot be had to a baptismal Church without 
 peril, not otherwise. 
 
 Baptism once administered is in no case allowed to be 
 repeated (') and is good by whomsoever administered (°). 
 
 (1) Leo Epist. iv. c. 6 ap. Grat. III. Dist. iv. c. 16; Si qui necessitat 
 mortis, segritudujls, obsidionis persecutionis et naufragii urgentur, omni 
 tempore debent baptizari. 
 
 (^) It disqualifies for Orders. See Coneil NeoeseBarense, Can. 12, a.d. 
 314, ap. Gratian I. Dist. Ivii. 
 
 (') A stone font ordered in every Church by Edmund Lind, 241. 
 
 (*) Eoclesise baptismales. See Gratian, Caua xvi. Qu. i.e. 45 ; not 
 in monasteries, Gratian, Cans, xyiii. Qu. ii. c. 7. 
 
 (6) Not even when administered by a pagan, Isidorus ap. Gratian, IMd. 
 c. 23 ; Nicolaus, Ibid. 24 ; Augustin, Ibid. 28, 81, 32, 33. Leo, Ibid. 38 ; 
 Beda, Ibid. c. 51 ; third Council of Carthage, Can. 88, Ibid. c. 87. 
 
 (») S. Augustin, Ibid. a. 25, 26, 39, 40 ; Gregory, Ibid. c. 44 ; Isidorag 
 ap. Gratian, Cans. i. Qu. i. u. 59 ; Augustin Tract, v. in Joan. ap. Gratian, 
 Caus. i. Qu. i. c. 46, Leo, Ibid. c. 57. 
 
( 137 ) 
 
 CHAPTER LII. 
 
 THE HOLY EUCHARIST. 
 
 The other Sacrament of the Gospel is the Holy Eucharist, 
 called also the Holy Communion or the Sacrament of the 
 Body and Blood of Christ, wherehy such as are already 
 members of Christ's Body are helped forward by grace in 
 the way of holiness C), by partaking of Christ's true Body 
 and Blood f). 
 
 1. The material forms of the Eucharist are Bread and 
 Wine mixed with water (") ; bread made of pure wheaten 
 flour leavened or preferably unleavened (*), and wine the pure 
 juice of the grape. Neither water (') nor ale is allowed 
 as a substitute. By the action of the Holy Spirit they 
 become Christ's Body and Blood f ) to the receiver. 
 
 2. Three times a year every Christian is bound to com- 
 
 (1) Prosper ap. Gratian III. Dist ii. c. 37. Leo, Ibid. v. 38. 
 
 C) Leo ap. Gratian III. Dist. ii. c. 38. Ambrosius, Ibid. a. 39, 40, 55, 
 56, and 91 ; Augustinns, Ibid. u. 41, 45, 46, 57, 58, and 92. Berengar, 
 Ibid. c. 42. Hieronymus, Ibid. o. 49, 87, and 88. 
 
 (3) Cyprian, Lib. ii. Bpist. 2. ap. Gratian III. Dist. i. c. 2. Concil. 
 Martini Braearensis, Can. 55, Ibid. e. 4 ; Concil. Carthagen. iii. Can. 24, 
 Ibid. c. 5. Ambrosius, Ibid. i;. 83. Deoret. Greg. IX. Lib. iii. Tit. xli. 
 c. 13. 
 
 (*) Authorities in Maakell's Ancient Liturgy, p. 48. 
 
 (6) In early days those who used water were called Hydroparastatse, 
 and were condemned as heretics. 
 
 (6) Augustinns, Lib. iii. de Trin. c. 4, ap. Gratian III. Dist. i. v. 60, 
 61, and 72. Ambrosius, Ibid. e. 74, 84, and 86. Hilarius, Ibid. c. 79. 
 
138 The Elements of Canon Law. 
 
 municate, at Easter, at Pentecost, and at Christmas ('), 
 the Easter Commanion being absolute. Monks were 
 required to communicate monthly, whence has probably 
 •arisen the practice of monthly communions (^. 
 
 3. The power of consecrating and offering the Eucharist, 
 is given to every Priest at his Ordination (') . In early 
 days the Bishop was the chief celebrant, the presbyters 
 surrounding him and consecrating with him, as is now done 
 at ordinations in the Eoman Church. 
 
 4. A priest should not celebrate more than once a day, 
 except in case of necessity or at Christmas (*). He should 
 always communicate himself, and should not celebrate alone. 
 Both the receiver and the altar should be fasting (^). 
 Various rales are laid down as to the altar- vessels (*), the 
 vestments ('), the proper hour to celebrate ('), the necessary 
 preparation before f), the ceremonies at O, and the number 
 of celebrations allowed ("). 
 
 5. By ancient rule the Eucharist was reserved O, so 
 
 (I) Fabian ap. Gratian III. Dist. ii. c. 16, Conoil. Agathense, Ibid. 
 c. 19. See Chapter Ixxxix. 
 
 («) Clement. Lib. iii, Tit. x. c. 1. 
 
 (8) AugustinuB ap. Gratian III. Dist. ii. c. 26. 
 (*) Decret. Greg. IX. Lib. iii. Tit. xli. o. 3. 
 
 p) August, ap. Gratian III. Dist. ii. c. 54. Concil. Atricanum, Can. 8 
 ap. Gratian III. Dist. i. o. 49. 
 
 («) Which were not allowed to be of wood. See Gratian III. Dist. i. 
 c. 41 and 45. 
 
 (7) Ibid. c. 40 and 46. 
 
 (B) Ibid. u. 48. 
 
 (9) Gratian HI. Dist. i. c. 49 ; Dist. ii. c. 21. 
 
 (10) Ibid. c. 57 and 58. 
 
 (II) Gratian IH. Dist. ii. t. 53. 
 
 ('^) Ambrosius ap. Gratian III. Dist. ii. c. 43. See Justin Martyr's 
 Apology i. c. 66 and 67. 
 
The Holy Eucharist. 139 
 
 that the communion might be ministered to the sick ('). 
 In the Western Church the practice grew of communicating 
 in one kind only, for fear the Chalice might be spilt ('), 
 or other excesses committed. 
 
 (') Conoil. Wormaciense ap. Gratian III. Diet. ii. c. 93. 
 P) Pius et Beda ap. Gratian III. Dist. ii. c. 27 and 28. 
 
140 The Elements of Canon Law. 
 
 CHAPTEE LIII. 
 
 SACEAMENTAL ACTS. 
 
 A Sacramental Act is the employment of an outward 
 symbol or means, whereby ordinarily grace is conveyed to 
 the soul. It differs from a Sacrament in not being of 
 Christ's appointment. 
 
 1. The best known Sacramental Acts of the Church are 
 two ; Confirmation and Unction, or, as it is now more 
 commonly used, extreme Unction. 
 
 2. The Churching of women 0, the use of Holy Water, 
 Public Prayers and the Hearing of Sermons may also be 
 considered Sacramental Acts in so far as they are outward 
 means whereby grace is often conveyed to the soul. 
 
 (') Deoret. Greg. IX. Lib. iii. Tit. xlyii. 
 
( 141 ) 
 
 CHAPTEK LIV. 
 
 CONFIRMATION. 
 
 1. The Administration of Baptism in ancient times was 
 followed by certain ceremonial rites C) . Chief among these 
 was the anointing or chrism (^), and the laying on of the 
 Bishop's hands ('). When baptism was administered 
 away from the Bishop's Church these acts could not be 
 administered by the Bishop at the time (*). When they 
 were subsequently administered by him and treated as a 
 separate act, they received the name of Confirmation (^). 
 
 2. Confirmation is, therefore, a rite subsidiary to 
 Baptism C) • -^s being the completion of Baptismit is not a 
 separate Sacrament but only a Sacramental Act, whereby 
 the baptized person is strengthened or confirmed (') in his 
 Christian membership, and voluntarily takes upon himself 
 
 (1) Suoli as wearing a white garment. As to its meaning see Eabanus 
 Tb'id. V. 91. S. Ambrose, Ibid. c. 92. 
 
 (2) S. Ambrose on the symbolism thereof ap. Gratian III. Diat. iv. 
 c. 87, 89, 90. Eabanus, Ibid. o. 88. 
 
 (3) Acts yiii., 16, 17 ; oijiro) yh.p iiv iir^ohZevX ain&p €Trnre'7rT(tiKhs 
 [ITi'eiJjLia " Ay iov']f fJ.6vov 5e jSejSmrTttr/xej/Oi VTzrjp-)(^ov ets rh ovofxi tov 
 Kvpiov 'I'qffov. Ttfre ^TreriBovv Tas x^'pas ^V ahrovs, koX khafi^avoy Uvsv^a 
 "Ayiov. 
 
 (*) Pseudo-Isidorus, Ibid. u. 4. 
 
 (6) Leo Epist. Ixxxvii ap. Gratian Caus. i. Qu. i. c. 51, orders those 
 baptized by heretics to be confirmed. 
 
 (6) Pseudo-Isidorus ap. Gratian III. Dist. v. c. 3. 
 (') Babanus ap. Gratian III. Dist. v. 5. 
 
142 The Elements of Canon Law. 
 
 the obligations which his godparents previously undertook 
 for him. 
 
 3. The proper minister of Confirmation is the Bishop Q. 
 Nevertheless the Church permits Confirmation by a Priest 
 •W|ith chrism consecrated by a Bishop ('), and this is the 
 rule in the Eastern Church. 
 
 4. Adults should be confirmed as soon as possible after 
 Baptism, and confirmed fasting C). The old EngHsh rule 
 enjoined Confirmation within three years. 
 
 P) Innocent ap. Gratian III. Diat. iv. c. 119. Gregorins, Ihid. c. 
 120. 
 
 (2) Council of Valentia ap. Gratian III. Diet. iv. c. 123. Gregorius 
 Lib. iri. Epist. 26 ap. Gratian I. Dist. xcv. u. 1. 
 
 (*) Concil. Aurelianense ap. Gratian III. Dist. y. c. 6. Concil. 
 Carthag. iv. Can. 86, Ibid. c. 12. 
 
( 143 ) 
 
 CHAPTEK LV. 
 
 UNCTION AND EXTREME UNCTION. 
 
 1. The Anointing of the Sick by the Presbyters of the 
 Church was long regarded as an ordinance whereby, in 
 answer to to the prayer of faith, sins were remitted and 
 consequently bodily health was restored 0). 
 
 2. Unction was accordingly resorted to to fortify the 
 receiver against any special attack of the ghostly foe. As 
 such it was specially employed on the approach of death. 
 When exclusively so used, as was the case after the 9th 
 century, it was called Extreme Unction. 
 
 3. As a means for giving strength against the last assault 
 of the ghostly foe, Extreme Unction may be considered a 
 Sacramental Act, and a branch of Penance which is exercised 
 upon them that lie in danger of death f). 
 
 P) May be used by a Bishop. See Innocentius Epist. i. ap. Gratian I. 
 Dist. XCT. c. 3. The Chrism must every year be fetched from the Bishop 
 of the Diocese, according to Concil. Carthag. iv. c. 36. Ibid. u. 4. See 
 Concil. Tieinens, Can. 8. 
 
 (') Thorndike's Works, Vol. v. p. 562, quoted by Owen's Inatitutet 
 of Canon Law, p. 131. 
 
144 The Elements of Canon Law. 
 
 DIVISION II. 
 
 OF SPIBITUAIi GIFTS. 
 
 CHAPTEE LVI. 
 
 HOLY STATES OF LIFE. 
 
 When a spiritual gift or grace is permanently attached to a 
 state of life, not so much for the good of him who exercises 
 it as for the good of others, this is called either an Order or 
 a Holy State of Life. 
 
 1. In so far as this, result is hrought about by means of 
 outward and -visible signs, the bestowal of such a spiritual 
 gift may be considered to partake of the nature of a 
 Sacrament. Hence the bestowal of a spiritual gift is usually 
 treated as a Sacramental Act. 
 
 2. Spiritual gifts are attached to states of life in two 
 distinct cases. There is (1) the case of the several Orders 
 of the Ministry, and (2) the case of the Holy State of 
 Matrimony. There is however this difference between the 
 two that the several Orders of the Ministry have been 
 endowed each with its spiritual gift for the well-being and 
 continuation of the existence of the Church, whereas the 
 State of Matrimony has been so endowed for the welfare and 
 perpetuation of the famUy. 
 
( 145 ) 
 
 CHAPTEE LVn. 
 
 ORDEES GENERALLY. 
 
 1. Oedees are, properly speaking, classes of men set apart 
 by the Church, and endowed with spiritual gifts for the good 
 of others C). They who are admitted to the privileges of 
 these classes are said to be ordained, and the spiritual gifts 
 which are severally bestowed on them are also called Orders. 
 
 2. Jesus Christ himself bestowed on His apostles certain 
 spiritual gifts, and likewise gave to them the power to 
 confer these spiritual gifts on those committed to their 
 pastoral charge and to set them apart to be teachers of His 
 truth. Hence Orders, like Jurisdiction, come from the 
 Apostolic College through their successors in office. This 
 is termed Apostolic Succession. 
 
 3. There are two kinds of Orders ; (1) those which come 
 from Christ through the Apostles, and have ever been in the 
 Church, and which are called Holy Orders because they 
 have to do with Holy things — the Altar and the vessels of 
 the Altar; such are the Orders of Priests and Deacons ; 
 and (2) those which are not of Apostolic origin, and to which 
 the meddling with holy things (^) is forbidden ; these are 
 
 C) Ambrosius and Grregorius ap. Gratian, Caus. i. Qu. i. c. 83 and 84. 
 
 (^) This is forbidden to Sub-deacons by the Council of Laodicea, Can. 
 21 ap. Gratian I. Dist. xxiii. c. 26, and to Eeaders by Concil. Bracarense ; 
 Can 10, Ibid. c. 31 ; and to all the lower Orders by Concil. Agathense 
 Can. 66, Ibid. c. 30. 
 
 L 
 
146 The Elements of Canon Law. 
 
 usually called Minor Orders. In the Western Church there 
 are four Minor Orders, those of Acolytes, Exorcists, 
 Readers, and Doorkeepers. In former times Singers were 
 also included among Minor Orders (*). In the Eastern 
 Church there is only one, that of Eeaders ("). 
 
 4. All the Orders of the Clergy are forhidden to wear their 
 hair long ('), or to meddle with secular business (*). 
 They are, therefore, said to have the tonsure ; and 
 throughout aU the Orders respect is due from the lower 
 to the higher ones f). Admission to the higher Orders 
 is now only given after probation in the lower ones (^). 
 Orders must not be given improperly, and Q) must be given 
 without any money payment f ). Monks conducting them- 
 selves well in a monastery may be admitted to Holy 
 Orders f). 
 
 C) Cone. Garth. Can. 10 ap. Gratian I. Diat. xxiii. c. 20. 
 
 P) The duties of the several orders of the Clergy from the Bishop 
 down to the Singing-man are fuUy given by Isidore in a letter to Lndifred 
 ap. Gratian I. Dist. xxv. c. 1. 
 
 P) Concil. Agatheuse, Can. 20, and Gregorius II. ap. Gratian I. Dist. 
 xxiii. 0. 22 and 23., Martinus, Ibid. c. 32: Deoret. Greg. IX. Lib. iii. 
 Tit. i. c. 7. 
 
 (*) Sext. Deeret. Lib. iii. Tit. xxiv. 
 
 P) Eomana Synodus, Can. 7. ap. Gratian I. Dist. xciii. c. 5., as it is 
 from all inferiors to superiors, Gratian, Caus. xvii. Qu. iv. u. 37, 38. 
 
 (*) See Zosimus, Epist. i. ap. Gratian I. Dist lix. c. 1 and 2, and 
 Dist. Ixxvii. e. 2 ; Gregorius, Lib. vii. Eeg. Epist. 110, Ibid. c. 3.; Coeles- 
 tinus, Efpist. ii. e. 3., Ibid e. 4. 
 
 ^') Leo, Epist. xe. ap. Gratian, Caus. i. Qa. i. c. 40. Leo, Epist. Ixxxv., 
 Jbid. i>. 43. 
 
 (8) Gregorius ap. Gratian, Caus. i. Qa. i. c. 117. See also Ibid. Qu. i. 
 1 to 29 and 107 to 116., also Gratian, Caus. i. Qu. ii. c. 4, Qu. vii. 1 to 6. 
 
 (^) See the authorities ap. Gratian, Caus. xvi., Caus. i. c. 26, 27-35., 
 
( 147 ) 
 
 CHAPTEK LVIII. 
 
 HOLY OEDEES. 
 
 1. The classes of men who are set apart for the service 
 of the Altar C) and that which pertains thereto, are termed 
 Holy Orders (^), and all the members of these classes are 
 said to be in Holy Orders. 
 
 2. The bestowal of this rank (') in the Church, is eifected 
 by means of a Sacramental Act called Ordination. Thereby a 
 spiritual gift is conferred for the service of a spiritual office 
 for the good of others (*). It is ordered that Bishops are 
 
 Clemens ap. Gratian III. Dist. ii. o. 23. Pseudo-Isidorus ap. 
 Gratian III. Dist. i. u. 41 and 42. 
 
 (") Urbanus II. ap. Gratian I. Dist. Ix. c. 4 ; Saeros autem ordines 
 dicimus diaconatum et presbyteratum. Hos siquidem solos primitiva 
 legitur habuisse ecolesia ; snbdiaconos vero, quia et ipsi altaribus minis- 
 trant, opportunitate exigente conoedimus, si tamen spectatse sint religioms 
 et soientiae. 
 
 (s) Symmaobus, a.d. 500,' ap. Gratian, Caus. i. Qu. i. o. 45 : 
 Vilissimus computandus est, nisi prseeellat scientia et sanetitate, qui 
 est honore prffistautior. Women and unbaptized people are absolutely 
 incapable of receiving Orders. Otho Atbon, 16, states: Seeing it is 
 dangerous to ordain persons unwortby, void of understanding, illegimate, 
 irregular, and illiterate, we do decree that before the conferring of orders, 
 by the Bishop, strict search and inquiry be made of all these things. 
 Lind. 33 : No simoniao, homicide, person excommunicate, usurer, sacri- 
 ligious person, incendiary, or falsifier, nor any other having canomical 
 impediment, shall be admitted into Holy Orders. 
 
 (*) Innocentius Epist. xviii. c. 3, ap. Gratian, Caus. i. Qu. i. c. 17 : 
 Qui perfectionem Spiritus quam acceperant perdiderunt, non ejus dare 
 plenitudinem possunt, quae maxime operatur in ordinationibus. 
 
 L 2 
 
148 The Elements of Canon Law. 
 
 not to lay (') hands suddenly on any f ), and only to 
 Ordain at the regular seasons ('), and after a suitable pro- 
 bation. 
 
 3. There are usually said to be two Holy Orders in the 
 Christian Church, and no more; those of Priests and 
 Deacons. Bishops together with Priests form but one Order 
 (*), although they have a higher degree in the Priesthood. 
 Subdeacons together with Deacons form only one Order, 
 although they have a lower degree in the Diaconate. 
 
 4. Holy Orders once given ought not to be reconferred ('). 
 Questions, however, may arise as to whether they have 
 been validly given f), or whether they can be exercised by 
 heretics or schismatics 0, or those ordained by them f ), 
 as to which divers regulations have been made in the 
 Church. 
 
 5. The recipients of Holy Orders are subject to certain 
 disabilities, and are allowed certain immunities (') and 
 
 (^) Two orders may not be conferred on the same day. Deoret. 
 Greg. IX. Lib. i. Tit. xi. c. 13, 15. 
 
 (2) ConcU. Nioaen. Can. 2. 
 
 (*) Dccret. Greg. IX. Lib. i. Tit. xi. c. 1, 2, 3, 8. Sext. Decret. Lib. i. 
 Tit. ix. 
 
 (*) Gratian I. Decret. Dist. xov. See Euseb. Hwt. Eccl. i. c. 12. 
 
 (6) Decret. Greg. IX. Lib. i. Tit. xvi. 
 
 («) Gratian, Cans. i. Qn. i. e. 108, 109, 113, 
 
 (') Augustin. Lib. ii., contra Parmenian. c. 13, ap. Gratian, Cans. i. 
 Qu. i. c. 97. Leo, Ibid. c. 112. The Eeordination of Novatians. 
 was reqnired by Coneil. Nicaen. Can. 8, ap. Gratian, Cans. i. Qu. vii. 
 c. 8. Leo, Tbid. c. 19 and 21. See authorities ap. Gratian, Caus. ix. 
 Qu. i., implying that ordinations by excommnnicate persons are tolerated, 
 unless they are excommunicated by name. 
 
 (8) Synodns vii. ap. Gratian, Caus. i. Qu. vii. c. 2 and 8. 
 
 (») See Gratian, Caus. xvii. Qu. iv. c. 23, 30. 
 
Holy Orders. 149 
 
 priYileges ('). They are not required to surrender their 
 patrimony at ordination (^), hut they may not make a profit 
 out of their ecclesiastical rank ('). In dress (*), conduct ('), 
 and hehaviour (^), they are required to act as becomes their 
 order ('), not to bear arms (^), nor to take part in trials 
 involving bloodshed f ), nor without episcopal leave to 
 appeal to secular tribunals 0°). 
 
 A Bishop who has resigned may confer Orders on behalf 
 of a Diocesan Prelate ("). 
 
 (') Gratian, Cans. xvi. Qu. i. c. 66, 67. 
 
 (2) See Gratian, Cans. xii. Qu. v. 
 
 (') See authorities ap. Gratian, Caus, xii. Qu. iii. and iv. 
 
 (^) See authorities ap. Gratian Caus. xxi. Qu. iT. Deoret. Greg. IX. 
 Lib. V. Tit. xxxix. o. 45, and xxxiii. c. 27. 
 
 (5) See Gratian, Caus. xxi, Qu. iii. Decret. Greg. IX. Lib. iii. 
 Tit. i. e. 15. 
 
 (8) Not harbouring women except relations. Conoil. Nicsn. Can. 3, 
 Decret. Greg. IX. Lib. iii. Tit. ii. c. 1 and 2. 
 
 C) Decret. Greg. IX. Lib. iii. Tit. i. Sext. Decret. Lib. iii. Tit. i. 
 Clement, Lib. iii. Tit. i. Extrav. Com. Lib. i. Tit. viii. and Lib. iii. Tit. i. 
 
 (8) Gratian, Caus. xxiii. Qu. viii. 
 
 (9) Concil. Toletan xi. Cam. 6, a.d. 675, ap. Gratian, Caus. xxiii. 
 Qu. viii. c. 30. 
 
 (1") See Gratian, Caus. xxi. Qu. v. Bishops are forbidden to 
 appeal to the Emperor except by the advice of their oomprovincials and 
 the Metropolitan, by Concil. Antioch, Can. 11, a.d. 332, ap. Gratian, 
 Caus. xxiii. Qu. viii. c. 27, also Decret. Greg. IX. Lib. i. Tit. xxxvii. 
 
 C') Decret. Greg. IX. Life. i. Tit. xiii. c. 1. As to marriage, see 
 e cret. Greg. IX. Lib. iv, .Tit. vi. 
 
150 The Elements of Canon Law. 
 
 CHAPTEE LIX. 
 
 THE PRIESTHOOD. 
 
 1. The Priesthood is a spiritual gift once bestowed on, 
 and ever afterwards inherent in, a class of men hence called 
 Priests. The spiritual gift is defined to be a partaking or 
 a sharing in the Priesthood of Christ, given to certain 
 ministers of His Body, the Church, by the rite of Ordination^ 
 whereby they are set apart to offer His Sacrifice ('), to 
 administer His Sacraments, and to teach and guide His flock 
 in the way everlasting. 
 
 2. Every Priest upon his ordination is set apart for these 
 duties; yet hath he not the actual exercise of them unless 
 he be commissioned thereto by some one having the necessary 
 jurisdiction. It has therefore been the rule of the Church 
 f ) not to set apart anyone for performing ecclesiastical 
 duties unless there be some vacant office requiring the 
 performance of those duties, or as it is usually expressed, 
 not to confer Orders except to fill an office requiring Orders. 
 Such an office is called a title ('). 
 
 (') Angustin. ap. Gratian III. Dist. iii. c. 51 and 52., Ambros. Ibid. 
 c. 53. 
 
 C) Concil. Chalcedon. Can. 6, a.d. 451 ap. Gratian L Dist. Ixx. c. 
 1 : firiSeya aTo\e\vfi€t/as x^^P*^^^^'^^^^^ M^t^ irpetr^&repov^ fvfiT€ SidKoyoy, 
 wfiTe 3a«s Tiyct ray Ic Ty iKK^TjffioffTiK^ rdyfiaTi' Decret. Greg. IX. Lib. i. 
 Tit. xiv. c. 13., Lib. iii. Tit. v. c. 2. A Bishop who ordains withont a 
 title is bound to maintain his clerk. See Concil. Lateran iii.. Ibid. c. 4. 
 
 (') Decret. Greg. IX. Lib. iii. Tit. v. c. 2-4, 16. Can. 33 of 1603 
 
The Priesthood. 151 
 
 3. In the Priesthood there are two degrees ('). There 
 are (1) ordinary priests, or preshyters, called also iwia-KOTroi 
 in the New Testament, who then, and in after times, appear as 
 a College or Body, all of whom jointly and severally possess 
 the Priesthood in any Church C). And (2) there are 
 certain Priests chosen to preside over such bodies, and alone 
 possessing the power of bestowing the Priesthood on others 
 {'). These are called Bishops in the ecclesiastical sense 
 of the term (*). 
 
 4, Admission to the Order of Priesthood is conferred by a 
 rite called Ordination ('), which is a Sacramental Act, and 
 
 after mentioning seven varieties of titles continues : If any Bishop shall 
 admit any person into the ministry, that hath none of these titles as 
 aforesaid, then he shall keep and maintain him with all things necessary 
 till he do prefer him to some ecclesiastical living. See Chap, xxxii. 
 
 (') Hieronymus ad Cap. i, Epist. ad Titum ap. Gratian I. Dist. xov. 
 c. 5 ; Olim idem erat presbyter, qui est episcopus. Postquam vero 
 unusquisque eos quos baptizaverat, suos putabat esse non Christi, in toto 
 orbe decretum est, ut unus de presbyteris electus superponeretur caeteris, 
 ad quern omnis ecelesisB cura pertineret. ConoU. Carthag. iv. Can. 34, 
 Ibid. c. 9 ; Episcopus in quolibet loco sedens stare presbyterum non 
 patiatur. 
 
 (^) See ConcU. Laodicens. Can. 56, a.d. 363 ap. Gratian I. Dist. xcv. 
 c. 8. ; Conoil. Neocffisarens. Can. 13, a.d. 314, Ibid. o. 12. See Chap. v. 
 
 (8) But an abbot in priests' Orders can bestow orders, Decret. Greg. 
 IX. Lib. i. Tit. xiv. c. 11. 
 
 {*) Concil. Hispalen. ii., Can. 6, a.d. 619, ap. Gratian I. Dist. Ixviii. 
 u. 4 ; Quamvis ehorepiscopis et presbyteris plujima cum episcopis 
 communis sit dispensatio, qusedam tamen .... sibi prohibita noverint, 
 sicut est presbyterorum et diaconorum aut virgindm consecratio, &o. 
 
 p) Concil. Carthag. Can. 3 ap. Gratian I. Dist. xxiii. u. 8; 
 Presbyter cum ordinatur, episcopo eum benedicente et manum super 
 caput ejus tenente, etiam omnes presbyteri, qui pisesentes sunt, manus 
 suas juxta manum episcopi super caput illius ten^ant. The rite is not to 
 be repeated, except in case of doubt as to its validity. See Gratian I. 
 Dist. Ixviii. 
 
152 The Elements of Canon Law. 
 
 shoidd not be conferred on an unwilling subject C), nor at 
 improper times (^). Advancement from a lower degree of the 
 Priesthood to the Episcopate is called Consecration, because 
 it is not a change of Order, but promotion in a Holy Office. 
 5. Ordination as being admission within the ranks of the 
 Priesthood of a particular Church f ) can cmly be given by 
 the Head or President of each unit of the Church (*), i.e., 
 by the Bishop (^), and should only be given with the advice 
 and consent of his presbyters (^). Consecration being 
 admission to the Co-episcopate of the whole Church, 
 requires ordinarily the act of more than one member of the 
 Episcopal Body, and is not considered to be regularly 
 conferred unless at least three Bishops take part in it ('). 
 Strangers are forbidden to be admitted to Holy Orders 
 unless provided with a testimonial signed by five Bishops (*). 
 
 (') Gratian I. Dist. Ixxiv. 
 
 (2) Gratian I. Dist. Ixxv and Ixxvi. c. 12. 
 
 (s) Strange clergy should not be received without full testimonials, 
 Decret. Greg. IX. Lib. i. Tit. xxii. 
 
 (*) Therefore not by a stranger. See Concil. Sardicense, Can. 18 and 
 19, A.D. 344, ap. Gratian I. Dist. Ixxi. c. 1.; Con. Nic. Can. 16, a.d. 
 325 : el 5e KaX ToXfx-iiffeUv ns v^apTr6ATat rhv t^ srepcfi diaipepovTa^ Kal 
 X^ipoTovrjcai iy rp auTov iKK\T}(rii^^ fi}] (rvyKaraTLSefievov rov ISiov eiriffrKovov 
 Ov aveX'^pTJo'ev d iv t^ Kav6vi i^^raC^fievos^ &Kvpos eCTW tj x^'-P^^^^^°- 
 Concil. Chalced., Can. 20, a.d. 451. Concil. Carthag. i. Can. 5, a.d. 348. 
 See other authorities ap. Gratian I., Dist. Ixxii. 
 
 If) Concil. Hispalense ii. Can. 6, a.d. 619 ap. Gratian I. Dist. Irvii. 
 c. 2 ; Episcopns sacerdotibns ac ministris solos honorem dare potest, 
 solas anferre non potest. 
 
 if) Concil. Carthag. iv. Can. 22 ap. Gratian I. Dist. xxiv. e. 6, 
 Episcopus sine concUio clericorum suorum clericos non ordinet. Urbauus 
 ap. Gratian, Cans. xii. Qu. ii. u. 87. 
 
 (7) See Chap. xxix. Decret. Greg. IX. Lib. i. Tit. xi. t. 6. See Chap. 
 Ixiii. 2. 
 
 \f) Authorities ap. Gratian I. Dist. xcviii. 
 
( 153 ) 
 
 CHAPTER LX. 
 
 QUALIFICATIONS FOE THE PEIESTHOOD. 
 
 1. The high dignity of the Sacerdotal rank, as composed 
 of men called to share in the Priesthood of Christ, has from 
 the first hedged that Order about with special care and 
 watchfulness ('). Hence it has been universally held that 
 none should be admitted to that Order who laboured under 
 any of the following defects, all of which are canonical dis- 
 qualifications for the Priesthood : — 
 
 (1) Defects of mind, such as madness, epilepsy 0> or 
 
 want of sufficient knowledge f). 
 
 (2) Defects of body {^), such as being a dwarf, or 
 
 blind, or leprous ; defects of birth, such as being 
 born out of wedlock, or the son of a priest {"), 
 or the son of a slave 0, 
 
 (') See the authorities Symmachus, HieronymuB, Gregorius, 
 Joannes Chrysostomus, Bonifacius, Augustinus, Ambrosius, ap. Gratian. 
 I. Dist. xl. Gratian, Cans. Tiii. Qu. ; o. 11-19. 
 
 (^) Pius ap. Gratian I. Dist. xxxiii. o. 3 ; Nicolaus, Ibid. c. 4 ; 
 Gelasius, Ibid. c. 5. 
 
 (3) Zosimus, A.D. 418, ap. Gratian I. Dist. xxxvi. C; 2 ; also the 
 authorities in Dist. xxxvii., xxxviii. and Iv. c. 3. 
 
 (<) Martinus Bracarensis ap. Gratian I. Dist. Iv. c. 9 ; Gelasius, Ibid. 
 c. 13 ; Decret. Greg. IX. Lib. i. Tit. xx. 
 
 (*) See the authorities for and against, ap. Gratian I. Dist. Ivi. ; also 
 Ooncil. Toletan. ix. Can. 10, a.d. 655, ap. Gratian, Caus. xv. Qu. viii. 
 c. 3 ; Deoret. Greg. IX. Lib. i. Tit. xvii. A son is strictly forbidden to suc- 
 ceed a father in any office in the Church. See authorities. Ibid. Tit. xvii. 
 
 (6) Leo, Epist. i. ap. Gratian I. Dist. liv. c. 1 ; ConcU. Tribur, a.d. 895, 
 
154 The Elements of Canon Law. 
 
 (3) Defects of age, such as not being full 24 for a 
 
 priest Oj or fuU 30 for a bishop. 
 
 (4) Defects of moral character, such as being of ill 
 
 repute ; defects of moral position, such as being 
 a penitent 0, the husband of a second wife 
 f ), or of a widow (*), or of a divorced woman 
 Q; defects of bloodguiltiness (=), such as having 
 
 Ibid. c. 2 ; Gelasins, IMd. e. 12. As to slaves when ordained, see 
 Concil. Toletan. iii. Can. 6 ap. Gratian, Cans. xii. Qu. ii. o. 63 ; Concil. 
 Toletan iv. Ibid. c. 65 ; Decret. Greg. IX. Lib. i. Tit. xvui. 
 
 (') ConcU. Carthag. iii. Can. 4, a.d, 397, ap. Gratian I. Dist. Ixxvii. 
 c. 5 : Placuit, nt ante viginti quinque annos aetatis neo diaooni ordi- 
 nentnr nee yirgines consecreniur ; Concil. Agathense, Can. 16, a.d. 506 ; 
 Concil. Toletan iv. Can. 20, a.d. 633, Ibid. i. Dist. Ixxvii. c. 6 and 7 ; 
 also fix 25 as the age for a deacon, and 30 for a priest. The same in 
 Bonifacius and Concil. Neocssarense, Can. 11, a.d. 314 ; Ibid. Dist. 
 Ixxviii ; but Zaoharias (Epist. 6, a.d. 751) permits, in case of necessity, a 
 priest to be 25 ; See Gratian I. Dist. Ixxviii. c. 5. Sext. Decret. Lib. i. 
 Tit. X. Clement. Lib. i. Tit. vi. c. 8. The English Canon 34 of 1603 
 fixes the age for a deacon at 23 years old, and for a priest at 24 years old 
 complete. This is also Statute Law by 44 Geo. III. c. 43, sec. 1. 
 
 P) Gregorius, Epist. Lib. ii. 25 ap. Gratian I. Dist. xxxiv. c. 10; 
 Concil. Carthag. iv. Can. 68 and 69 ap. Gratian I. Dist. 1. c. 55 ; Inno- 
 centius, Ibid. c. 60 ; Hilarius ap. Gratian I. Dist. Iv. u. 3. 
 
 (*) Hieronymns ap. Gratian I. Dist. xxvi. c. 1 ; Angustin. Ibid. c. 2 ; 
 InnocentiuB, Ibid. c. 3 ; Gregorius ap. Gratian I. Dist. xxxii. o. 2 ; 
 Concil. Gerundense, Can. 8 ap. Gratian I. Dist. xxxiv. c. 8 ; Ambrosius, 
 Epist. Ixxxii. Ibid. c. 14 ; Siricius, Epist. i. c. 15 ap. Gratian I. Dist. 1. 
 c. 56 ; Gelasius, Ibid. c. 59 ; Decret. Greg. IX. Lib. i. Tit. xxi. 
 
 (*) Hilarius ap. Gratian I. Dist. xxxiv. c. 9 ; Innocentius, Epist. ii. 
 c. 5, Ibid. c. 13 ; Martinus, Ibid. c. 18 ; Siricius, Epist. i. c. 11 ap. 
 Gratian I. Dist. 1 xxxiv. c. 5. 
 
 (6) Concil. Neocaesarense, Can. 8 ap. Gratian I. Dist. xxxiv. c. 11 ; 
 Martinus, Ibid. c. 12. 
 
 (6) Joannes VIII. ap. Gratian I. Dist. 1. c. 4 ; Nicolaus, Ibid. c. 5 and 6 ; 
 Martinus Bracarens. Ibid. a. 8 ; Concil. Ilerdense, Can. 1, a.d. 546, ap. 
 Gratian I. Dist. 1. o. 36 ; Urbanus II. Ibid. c. 37 ; Nicolaus, Ibid. c. 39 ; 
 Concil. Ancyranum, Can. 22, a.d. 314, Ibid. c. 42 ; Concil. Eliberi- 
 tanum, Can. 4, a.d. 310, Ibid. c. 43. 
 
Qualifications for the Priesthood. 155 
 
 slain another even in battle C), or having 
 mutilated himself f). 
 
 2. For the same reason the clergy are required to be 
 sober ('), and hospitable f), and quiet f). They are 
 forbidden to busy themselves with secular matters 0, or 
 to frequent taverns, markets, or fairs, f), to act as ex. 
 ecutors f), or to hunt f), although they are permitted 
 to practice a handicraft and to farm a moderate quantity of 
 land f°) in order to provide themselves with a liveli- 
 hood ("). 
 
 3. As to the Celibacy or Continence of the Priests, the 
 mind of the Church is clearly this : that as S. Paul re- 
 quires the use of wedlock to be forborne for extraordinary 
 devotions C^), so they whose ordinary devotions ought' to be 
 
 (') Innocentius, Epist. xxiv. o. 2 ap. Gratian I. Dist. li. c. 1. 
 
 (^) Cauones Apostolorum, Can. 22 and 23 ap. Gratian I. Dist. Iv. c. 4 ; 
 Concil. Axelatense, Ibid. c. 7; Innocentius, Ibid. o. 8; Conoil. Nic. 
 Can. X- 
 
 (') See the authorities in Gratian I. Dist. xxxv and Diet, xli and xliv. 
 
 (*) See authorities ap. Gratian I. Dist. xlii, 
 
 p) Non litigiosus. See authorities ap. Gratian I. Dist. xc. 
 
 p) Many authorities ap. Gratian I. Dist. Ixxxviii. and Cans. xxi. 
 Qu. iii. See Deoret. Greg. IX. Lib. i. Tit. xix. 
 
 {') Concil. Laodicense, Can. 24 ap. Gratian I. Dist. xliv. c. 2; vi. 
 Synod. Can. 9, a.d. 692, Ibid. c. 3 ; Concil. Carthag. iii. Can. 27, a.d. 
 397, Ibid. c. 4. 
 
 (8) Concil. Carthag. iv. Can. 18 ap. Gratian I. Dist. Ixxxviii. c. 5 ; 
 Cyprianus, Lib. i. Ep. 9 ap. Gratian I. Dist. Ixxxviii. c. 14. 
 
 (s) See the very numerous authorities in notes to Chap. Ixx. 
 
 C") The English Statute Law, 1 and 2 Vic. o. 106, fixes the limit at 
 80 acres, and forbids trading. 
 
 (11) Isidorus ap. Gratian I. Dist. xxiii. c. 8 ; Concil. Carthag. iv. Can. 
 52 and 49 ap. Gratian I. Dist. xci. e. 3 and 4. 
 
 {'^) Concil. Bliberitanum, ap. Gratian III. Dist. iii. c. 21 ; Concil. 
 
156 The Elements of Canon Law. 
 
 extraordinary in comparison with the people, should forbear 
 it always ('). Nor is this mind impaired by the fact that 
 individual branches of the Church considering the disad- 
 vantages of a celibate life to outweigh the advantages, have 
 relaxed the rule of celibacy f), seeing that contiaence 
 is not in secular clerks essential to Order nor of divine right • 
 
 4. The Western and the Eastern Church aUke agree in 
 forbidding the Marriage of the Clergy after Ordination, at 
 first, however, without requiriug their CeUbacy Q. And 
 in so doing they carried out the Canon of the CouncU of 
 Neocaesarea (a.d. 314), and the views expressed at the 
 Nicene Council f). 
 
 Since the time of Pope Sirieius, however, (a.d. 385) 
 
 Carthag. ii. Can. 2 ap. Gratiail I. Dist. xxxi. c. 2 ; also Ibid, xxxii. c. 13. 
 See I. Cor. vii. 
 
 (1) Deoret. Greg. IX. Lib. iii. Tit. iii. 
 
 (*) Perhaps this relaxation may be supported by the authorities for the 
 role attributed to Gregory: Pro diversitate rerum temperantiir regulje 
 BMictorum, ap. Gratian I. Dist. xxix. c. 2. See the decree of the Council 
 of Winchester, a.d. 1076, on this point, ap. Labbseus et Cossart xii. 
 p. 593 : Decretum est ut nullus canonicus uxorem habeat : sacerdotum 
 vero in castellis vel in vicis commorantium placet, ut episcopi, 
 presbyteri, et diaconl, vel qui sacramenta contrectant, pudioitise 
 custodes etiam ab uxoribus abstineant. Concil. Carthag. v. Can. 3 
 A.D. 401 ; IHd. c. 4. The 32nd Article, which permits Bishops 
 Priests, and Deacons, like other Christian men, to marry at their own 
 discretion, would hardly seem to dispense from the rules as to forbidden 
 persons any more than it dispenses from the rules a,s to forbidden 
 degrees. 
 
 (') Deoret. Greg. IX. Lib. iii. Tit. i. c. 3, and Tit. iii. c. 6. 
 
 ( «) Concil. Toletan. i. Can. 7, a.d. 400, ap. Gratian, Cans, xxxiii. Qu. 
 ii. c. 10, provides for the case of the wives of the clergy falling into 
 grave sins. 
 
 (5) ConoU. Nic. Can. 3 ap. Gratian I. Dist. xxxii. c. 12, and Socrates, 
 Bccles. History, i. 11. 
 
 f ) Sirieius, Epist. i. c. 12, ap. GratiMi I. Dist. Ixxx. c. 31 : Feminas 
 
Qualifications for the Priesthood. 157 
 
 a stricter rule has been unswervingly upheld (') in the 
 West, forbidding not only the Marriage of the Clergy, but 
 imposing continence on such as are abeady married f). 
 This view appears to have had the sympathy of the Eastern 
 Church, inasmuch as for all the higher ecclesiastical offices 
 only the regular or unmarried clergy are eligible. 
 
 non alias patimur in domibiis olerioorum, nisi eas tantum quas propter 
 solas necessitudinum causas habitare cum iisdem synodus Nicsena per- 
 mittit. Ibid. ap. Gratian I. Dist. Ixxxii. v. 3. 
 
 (') See the various authorities in Gratian I. Dist. xxviii, xxxi, and 
 xxxii ; Decret. Greg. IX. Lib. iii. c. 13. 
 
 (^) CaUxtus II. in Concil. Eemens, a.d. 1119, Can. 5 et 1 Lateran, 
 A.D. 1123, ap. Gratian I. Dist. xxvii. c. 8 : Presbyteris, diaconis, sub- 
 diaconis et monaohis eoncubinas habere seu matrimonia contrahere 
 penitus interdicimus ; contracta quoque matrimonia ab hujusmodi per- 
 sonis disjungi et personas ad pffinitentiam redigi debere, juxta sacrorum 
 canonum definitiones judicamus. Concil. Carthag. v. Can. 3 ap. 
 Gratian I. Dist. xxxii. e. 13; Concil. Carthag. ii. Can. 2, a.d. 390, ap. 
 Gratian I. Dist. Ixxxiv. o. 3 : Omnibus in vicis habitantium, babentes 
 uxores non cogantur ut dimittant ; non habentes interdicentur ut habeant. 
 Et deinoeps caveant episcopi ut sacerdotes vel diaconos non prsesumant 
 Ordinare, nisi prius profiteantur ut uxores non habeant. 
 
158 The Elements of Canon Law. 
 
 CHAPTEE LXI. 
 
 OF. CLERICAL lEREGTJLAEITT. 
 
 Certain persons are disqualified from being admitted to 
 Holy Orders, or if already in Holy Orders are disqualified 
 from exercising their office on the ground that the exercise 
 of the ministry by them would tend to cause scandaL Such 
 persons are said to be Irregular, and the disqualifying 
 circumstance, which may not be a sin at all, is called an 
 Irregularity. 
 
 1. An Irregularity may, therefore, be defined to be a 
 canonical disability which either (1) prevents the reception 
 of Orders, or (2) prevents the exercise of an Order already 
 obtained, or (3) excludes from a Benefice or Ecclesiastical 
 Office. The dignity of the sacred ministry forbids one who 
 has been ordained against the rules of the Church, or who 
 has transgressed the rule of life of Christians in general or 
 of the clerical state in particular, from exercising his office 
 until he has put himself right with the Church. 
 
 2. An irregularity may arise from causes of two kinds ; 
 either (1) those which are not of the individual's own 
 making, in which case the irregularity is called a defect; or 
 (2) those in which it is a result of his previous conduct, in 
 which case it is called a crime. To constitute an irregularity, 
 however, and to be a cause of scandal, a crime must (1) be 
 a very grave one, (2) be publicly known and not secret, and 
 
Of Clerical Irregularity. 159 
 
 (3 ) be a sin of actual commission and not of intention only. 
 
 3. All the canonical disqualifications for the reception of 
 Holy Orders are disqualifications for their exercise also ('), 
 and in addition there are two other principal causes of 
 irregularity, (1) ill-repute arising from public exposure in 
 certain cases ('),'and (2) the having been concerned in a 
 case of blood (=) . 
 
 Hl-repute is considered to attach (1) to public exposure in 
 the case of one who has judicially confessed or been 
 judicially convicted of murder, perjury, heresy, sodomy, 
 adultery, robbery, or rape (*) ; and (2) to all who have 
 exercised certain ca^Uings considered degrading in public 
 estimation, notably those of actors', butchers, and publicans. 
 
 The having been concerned in a case of blood, or as it is 
 called Lenity, includes not only the having actually kUled 
 another, but the having been concerned in any way directly 
 in taking life, either as a judge or legislator, as an accuser 
 or a clerk in court C^). 
 
 4. Irregularities may cease in one of four ways ; (1) by 
 Baptism which takes away all previous faults and ofiences 
 whatever ; (2) by the lapse of time or study, or absence, as 
 
 Q) See Chapter Ix. 
 
 (2) Gratian. Caus. vi. Qn. i. c. 17 ; Deoret. Greg IX. Lib. v. Tit. xxxiv. 
 
 (s) See Chap. Iviii. 5. 
 
 (4) It does not appear that irregularity is incurred by the confession 
 of any offence less than the above, for instance, not of inoontinency. For 
 the causes of irregularity cannot be merely local customs, but must be 
 defined by some general law of the Church. " Nevertheless, as every man 
 should be severe in his own case though leniant in the case of others, 
 even lesser offences may be admitted as reasons for requiring a dispen- 
 sation. See Decret. Greg. IX. Lib. v. Tit. xii. xvi. xvii. xxvi. xxxi. c. 4. 
 
 (5) Decret. Greg. IX. Lib. v. Tit. xii. c. 11 and 18 ; Tit. x v. o. 2. 
 Tit. xxxi. u. 10. 
 
160 The Elements of Canon Law. 
 
 in tbe case of one too young or too tinleamed for Orders 
 or who has owned to a lesser offence; (3) by entering a 
 EeKgious Order ; or (4) by Dispensation. Such a Dis- 
 pensation cannot, however, be ordinarily granted by a 
 Diocesan Bishop except in a few eases ('), or when the 
 cause of the irregularity is not publicly known. In other 
 cases it must come from the representative of the Collective 
 Episcopate (^). 
 
 1^) A Bishop in the case of his own gubjeots can dispense those 
 irregularities which come from defects of birth or reputation, unless they 
 have been exposed before a court of justice, and also those which spring 
 from secret crimes. He may also dispense with a clerk guilty of forni- 
 cation, although notorious, provided the clerk intermeddle not with 
 divine service. See Bohie. sup. Decret. f. 46, and Decret. Greg. IX. 
 Lib. V. Tit. xxvii. u. 10. Lib. i. Tit. xxi. u. 6. 
 
 (2) In England this would be the Archbishop of Canterbury, through 
 the Court presided over by the Master of the Faculties. See Chap, xxxix. 
 
( 161 ) 
 
 CHAPTER LXII. 
 
 BISHOPS. 
 
 1. A Bishop is not only a Priest, or Participator in the 
 Priesthood of Christ, but he is also one who has been 
 advanced in the Priesthood to a share in its Plenitude. 
 The Plenitude of the Priesthood consists in the power of 
 transmitting the Priesthood to others. This power is 
 latent in the Priesthood itself, but is developed into actuality 
 by the rite of Consecration. 
 
 2. Without some lawful sphere requiring the exercise Of 
 this power, the plenitude of the priesthood would not only 
 be useless but dangerous for the unity of the Church ('). 
 Hence no one can be advanced to the Episcopate unless 
 there be some diocese vacant giving him a title thereto {^). 
 Episcopal consecration is not therefore usually conferred 
 unless on one who has acquired episcopal jurisdiction. 
 
 3. In respect of jurisdiction a Bishop is one who has 
 been elected by his fellow priests to be their Head or 
 
 (') This was felt by the Council of Antiooh, which by Can. 18, a.d. 
 332, ap. Gratian I. Dist. xcii. c. 5, provided : Si quis episcopus ordiuatus 
 ad parochiam eujug est electus minime aocesserit, non suo vitio, sed quod 
 eum aut populus vetet, aut propter aliam causam, nou tameu ejus vitio 
 perpetratam, hie et honoris sit et miuisterii particeps, dummodo rebus 
 eoelesise ubi ministrare cognosoitur, in nuUo molestus existat. See also 
 Coneil. Anoyran. Can. 28, a.d. 314. 
 
 (') See Chap, xxxii. 
 
 M 
 
162 The Elements of Canon Law. 
 
 President ('), to preside over the unit of tie Church to which 
 they belong, to teach and to govern it as the representative 
 of the Apostolical College upon earth, to perpetuate its 
 existence by ordaining fresh clergy, and to be the ordinary 
 means of its intercommunion with all the other Church 
 units, which together make up Christ's One Holy Catholic 
 Church upon earth. 
 
 4. A Bishop is, therefore, the Head Priest of some 
 recognised Church-unit or Diocese, within which he alone 
 has the plenitude of the Priesthood or power of conferring 
 orders, subject nevertheless in this as in aU other matters 
 to the advice of his presbyters C), for and on whose behalf 
 he exercises the gift which they have latent within them. 
 
 5. As the Head or Representative of a Chm"ch-unit a 
 Bishop is also a member of the Apostolic CoUege, the 
 Coepiscopate, the governing body of the whole Church ('), 
 from which he derives his Diocesan Jurisdiction, with which 
 he acts in legislating for the whole Church, and in and through 
 which he rules and adcninisters every part of the Church. 
 
 Within the part over which he presides, he has a direct 
 jurisdiction : his authority over every other part is only 
 mediate through the Collective Episcopate. 
 
 (1) Hieronymus ap. Gratian. I. Dist. xcv. e. 5. 
 
 (") See Chap, xliii. 
 
 P) Urbanus ii. from Augustin, ad Psal. 44 in fine ap. Gratian I. 
 Dist. Ixviii. c. 6. Qaorum vices in ecolesia habeant episcopi. . . Augastinns 
 ostendit inquiens : Pro patribua tuis nati sunt tibi filii Quid est? 
 Patres missi sunt apostoli ; pro apostolis filii nati sunt tibi, constituti 
 sunt episcopi. 
 
( 163 ) 
 
 CHAPTER LXIII. 
 
 QUALIFICATIONS FOE A BISHOP. 
 
 Apart from jurisdiction, two things are required from 
 those seeking to be advanced to the higher order of the 
 Priesthood : (1) certain personal qualifications ; (2) episcopal 
 consecration. 
 
 1. The qualifications for a Bishop, are thus laid down by 
 the 4th Coanoil of Carthage, possibly in S. Augustine's 
 words : If he be by nature prudent, docile, chaste, sober, 
 careful of his affairs (^), humble, gentle (^), meek ('), 
 learned (*), skilled in the law of the Lord C^), cautious about 
 the sense of Scripture, versed in the dogmas of the Church 
 {'), above all asserting in simple words the documents of 
 the faith. If he satisfies these tests, let him be ordained 
 with consent of the clergy and laity by the Synod of the 
 provincial bishops and chiefly with the authority or presence 
 of the Metropolitan C). 
 
 A Bishop was required to be given to hospitality Q, to be 
 
 (1). See Gratian I, Dist. Ixxxix. 
 P) Non litigiosum. See Gratian I. Dist. xlvi. 
 (3) Non percusaorem. See authorities ap. Gratian I. Dist. xlv. 
 (*) Hieronymus ap. Gratian I. Dist. xlix. c. 2. 
 p) Gregorius, Lib. ix. Epist. 48 ap. Gratian 1. Dist. Ixxxvi. u. 5. 
 (^) Not therefore a neophyte. See Gratian I. Dist. xlviii. 
 (') Conoil. Carthag. iv. Can. 1 ap. Gratian I. Dist. xxiii. i;. 2. 
 (8) Gregorius, Lib. xii. Epist. 6 ap. Gratian I. Dist. Ixxxt. t. 1. Ibid. 
 
 M 2 
 
164 The Elements of Canon Law. 
 
 so far conversant with secular business that the Church 
 under his control should not suffer 0, but not to be 
 avaricious or a usurer 0, to be in other respects worthy ('), 
 and to reside at his cathedral (*). 
 
 He was required to be free from such bodily defects as 
 would hinder the execution of his office. Hence the 
 disquahfications for the Priesthood were a fortiori dis- 
 qualifications for the Episcopal office, whether of mind or 
 body, of age f) or morals Q. 
 
 2. The Consecration of a Bishop is f) a Sacramental 
 Act, wherein, by the imposition of hands, power is given to 
 exercise a gift already bestowed in the Priesthood and 
 hitherto latently possessed. 
 
 Ixxxvi. c. 6. AmbrosiuB, Ibid. o. 14 seq. Bishops shall have honest 
 eleemosynaries, shall keep hospitality and hear the causes of the poor. 
 Langton Lind. 67. 
 
 (1) Gregorius, Epist. a.d. 600, ap. Gratian I. Dist. xxxix. v. i. 
 
 (') See authorities in Gratian I. Dist. xlvii. 
 
 (3) See Gratian, Caus. ii. Qu. vii. c. 28, 29, 32, 34. 
 
 (*) Langton Lind. 130, Bishops shall be at their cathedrals on some of 
 the greater Feasts, and at least in some part of Lent, as they shall find 
 expedient for their souls' health. 
 
 (5) The English Church, (confirmed by 3 and 4 Ed. VI. e. 10 ; 5 and 
 6 Ed. VI. c. 1 ; 8 Eiiz. c. 1 ; 14 Car. II. o. 4.) requires every man which 
 is to be consecrated Bishop, to be full 30 years of age. 
 
 («) See Chap. xli. 5 and xlii. 3 and the qualifications required by 
 Oonoil. Nicaen. a.d. 325. Can. 4 and 5, and Augustinus ap. Gratian I. 
 Dist. Ixxxi. 0. 4, 5 and 7 ; Decret. Greg. IX. Lib. i. Tit. xiii, u. 4, and the 
 disqualifications for the Priesthood, Chap. Ix. 1, and Ixii. 3. 
 
 Cj Coucil. Carthag. iv. Can. 2 ap. Gratian I. Dist. xxiii. o. 7 ; 
 Episcopus cnm ordinatur, Deo episcopi ponant et teneant evangeliorum 
 codicem super caput et cervicem ejus, et uno super eum fundendo 
 benediotionem reliqui omnes episcopi qui adsuut, manibus suis caput 
 Euum tangaut. 
 
Qualifications for a Bishop. 165 
 
 Episcopal consecration may be, and has been, validly 
 given by one Bishop : for the Chorepiscopi were consecrated 
 by one Bishop Q, and S. Athanasius is recorded to have 
 alone consecrated several. Perhaps, however, as jurisdiction 
 is involved, it is necessary in all such cases that the act 
 should be subsequently ratified by the Coepiscopate. At 
 any rate, such consecrations are irregular, the early rule 
 holding good that a Bishop should be consecrated by not less 
 than three Bishops (^) or by the Metropolitan and two 
 neighbouring Bishops f ) . 
 
 (1) See Chap. ix. note. 
 
 (») So Gregory writing to Augustin of Canterbury, a.d. 601, Ep. 64. 1. 
 11. ap. Gratian I. Dist. Ixxx. 6. See Chap. xxix. and lix. 5. 
 
 (3) Innocentius, Epist. ii. a. 1, a.d. 404, ap. Gratian I. Dist Ixiv. o. 5. 
 Concil. Nicaen. Can. 4, Ibid. c. 8. GelasiuB, Ibid. a. 6 ; Martinus, Ibid. 
 Dist. Ixv. 2. Conoil. Autiooh. Can. 19, a.d. 332, ap. Gratian I. Dist. Ixv. 
 c. 3. 
 
166 The Elements of Canon Law. 
 
 CHAPTEE LXIV. 
 
 A BISHOP S DUTIES. 
 
 The special duties of a Bishop are twofold ; (1) towards 
 the Chiarch at large, and (2) towards the particular part 
 thereof entrusted to his care. 
 
 1. Towards the Church at large his duties are to attend 
 all Councils and Synods Q that so he may take part in 
 legislating for the whole Church, and, together with his 
 comproyincials f), assist in the regulation of the several 
 parts thereof. 
 
 2. Towards the Diocese over which he is set to pre- 
 side his duties are : (1) that of preaching ; (2) that of 
 ordaining ; (3) that of presiding over the whole adminis- 
 tration by visitation. 
 
 3. Preaching is specially regarded as the Bishop's 
 function f) because he is, or should be, the guardian of 
 apostolic tradition, and from his relations with other Bishops 
 the upholder of Catholic Orthodoxy. The right of preach- 
 ing was gradually extended to Doctors, and subsequently in 
 529 A.D to all of the Priesthood (*). The Bishop is, how- 
 
 (1) For not attending a Synod he might be excommunicated. Concil. 
 Triburiense ap. Gratian, Cans. xi. Qu. iii. c. 43. 
 
 (2) This he may do by deputy. See Anacletus, a.d. 826, ap. Gritian 
 Caus. V. Qu. ui. u. 3 ; Pseudo-Isidorus, Ibid. u. 1. 
 
 (3) See the authorities on preaching, ap. Gratian I. Diet, xliii. 
 (*) Clement. lib. v. Tit. i. 
 
Bishop's Duties. 167 
 
 ever, expected to abide at his Cathedral C), and to preach 
 on Sundays and Festivals so as to suit the capacity of the 
 people. 
 
 4. It is exclusively his business to ordain Priests and 
 Deacons for his own Church ; but before so doing ho must 
 ascertain that a title or ofBce with maintenance attached is 
 provided for them; otherwise he himself is bound- to 
 maintain those whom he ordains, lest the clerical order 
 should fuU into the disgrace of mendicancy (^). 
 
 5. As president of the whole administration and visible 
 centre of unity of a Diocese it is specially his province to 
 visit his Diocese at fit seasons ('), to admit outsiders and to 
 reconcile penitents to the Church. Thus Baptism, or at 
 least the completion thereof. Confirmation, is reserved to 
 him, as also is the restoration of the lapsed, and the appoint- 
 ment of Church penances, in respect of which he is the sole 
 Ordinary (*). He is, moreover, charged with the care of 
 the poor (") and the sick, widows, and orphans 0. 
 
 (') Otho Athon. 55 : Bishops shall abide at their Cathedral Churches 
 and officiate on the chief festivals, and on the Lord's Day, and in Lent, 
 and in Advent. See also Othobon Athon. 118. 
 
 {') Decret. Greg. IX. Lib. iii. Tit. v. t. 2, 4, 16 ; Couoil. Chalcedon. 
 Can. 6. 
 
 (3) Otho Athon. 56 : Bishops shall visit their dioceses at fit seasons, 
 correcting and reforming the Churches, and consecrating and sowing the 
 word of life in the Lord's soil. 
 
 {*) A bishop is specially ordered by Gregory VII., a.d. 1078, to punish 
 the incontinency of the clergy ; and on no account to wink at sin. See 
 authorities ap. Gratian I. DJst. Ixxxiii. 
 
 (5) Langton Lind. 67. 
 
 («} Concil. Carthag. iv. Can. 103 ap. Gratian I. Dist. Ixxxi. c. 34. 
 Gregorius, Lib. xi. Epist. 29 ap. Gratian I. Dist. Ixxxiv. 1, and the 
 authorities ap. Gratian I. Dist. Ixxxvii. 
 
168 The Elements of Canon Law, 
 
 6. In all his duties he is assisted by his presbyters, 
 sharers with himself in the one Priesthood of Christ. For 
 the gOYernment of the Church is not a despotism. And as 
 without the Bishop Priests should do nothing (^), so 
 without the advice of his Clergy the Bishop's sentence 
 is invalid f). 
 
 P) Ignatius Ep. ad Eph. e. 3, 4, 5. 
 
 {') Concil. Carthag. iv. Can. 23 ap. Gratian, Cans. iv. Qu. vii. c. 6 ; 
 Episoopus nuUius eausam audiat absque presentia snorum clericorum ; 
 alioquin irrita erit sententia episoopi, nisi clericorum sententia confir- 
 metnr. Canones Apoetolorum, Can. 33. 
 
( 169 ) 
 
 CHAPTER LXV, 
 
 THE DIACONATE. 
 
 1. The Diaconate is a Holy Order below that of the 
 Priesthood. It is considered to have a share in the spiritual 
 gift conferred by ordination, but what the extent of that 
 share is, is not agreed upon by all. From the account 
 given in the Acts of the Apostles it appears to have been an 
 office carved out of the apostolate, and to have arisen from 
 the desire of the Apostles to provide for the care of the 
 temporalities of the Church in order that they might give 
 all their energies to the ministration of the word and 
 sacraments. A deacon is, therefore, one who has been set 
 apart for the service of the Church, but who has not been 
 ordained to the Priesthood. 
 
 2. The duties of a Deacon are the care of the secular 
 concerns of the Church C) and the charge and provision for 
 the sick. In the absence of a Priest he may baptize, but 
 he may not preach except with the Bishop's special license, 
 and never offer the oblation f), — a duty which pertains to 
 the Priesthood only. A Deacon is ordained by the im- 
 
 C) Hieronymua[ap. Gratian I. Dist. xciii. o. 23. 
 
 {') GonoU. Laodicense, Can. 23, a.d. 363, ap. Gratian I. Dist. xciii. 
 0.16. 
 
170 The Elements of Canon Law. 
 
 position of the hands of the Bishop only who blesses 
 him C). 
 
 3. Brought in early times into close connection with the 
 Bishop from the nature of their duties ^^^ limited to the 
 mystical number of .seven (') whilst the number of the 
 other Clergy increased indefinitely, Deacons obtained great 
 ppwer in large cities, and their pretensions had to be re- 
 strained by several canons C). At their head was the Arch- 
 deacon, who, as being the chief of those concerned with the 
 temporal affairs of the Diocese, acquired a position much 
 above that of his superiors in Order. 
 
 4. Their secular duties gradually gave way to spiritual 
 ones, in which they appeared as ceremonial assistants of 
 the Priest. The restriction as to numbers was evaded first 
 by the institution of Deacons of a lower rank called Sub- 
 deacons (^), differing from them in little except in being 
 
 (1) Concil. Carthag. Can. 4 ap. Gratian I. Dist. xxiii. o. 11 : Dia- 
 conus cum ordinatur, solus episcopus, qui eum benedicit, manum super 
 caput illius ponat, quia uon ad sacerdotium sed ad ministerinm 
 oonsecratur. 
 
 {') Clemens, Ep. i. ap. Gratian I. Dist. xciii. c. 6: Diaooni eo- 
 clesiae tanquam oculi sint episoopi, oberrantes at ciroum luatrantes cum 
 verecundia actus totius ecclesisB, et perscrutantes diligentiuB, si quern vi- 
 deant vicinum prsecipitis et proximum esse peccato, ut referant hsec ad 
 episcopnm. 
 
 (3) Concil. Neocffisareuse, Can. 11, a.d. 314, ap. Gratian I. Dist. xciii. 
 c. 12 : Diaconi septem esse debent secundum regulam quamyis magna 
 Bit civitas. 
 
 (*) Concil. Nic. Can. 11, a.d. 325 ; Concil. Laodicense, Can. 20, a.d. 
 363, and Gelasius Epist. ap. Gratian I. Dist. xciii. c. 14, 15, 18 ; Concil. 
 Toletan. iv. Can. 39, a.d. 633, Ibid. c. 20. Hieronymus,' Epist. Ixxxv. 
 Jhid. a. 24. Cyprianus, Lib. iii. Epist. 9, Ibid. c. 25 ; Quinisexta Synodus, 
 a.d. 692, Ibid. u. 26. 
 
 (») Concil. Carthag. iv. Can. 5, ap. Gratian I. Dist. xxiii. c. 15 : Sub- 
 
The Diaconate. 171 
 
 ceremonially their inferiors, and then, was gradually relaxed 
 and given up altogether. 
 
 There is at present no rule limiting their number ; and 
 their position is simply that of Probationers for the Priest- 
 hood. 
 
 diaoonus cum ordinatur, quia manus impositionem non acoipit, patenam 
 de manu episoopi aeoipiat vaeuam et calicem vacuum ; de manu vero 
 arohidiaconi accipiat urceolum cum aqua, manile et mauutergium. A 
 Bubdeacon may act as the Pope's deputy. See Gregorius. Lib. i. Epist. i. 
 ap. Gratian I. Dist. xoiv. c. 1. 
 
( 172 ) 
 
 CHAPTEK LXVI. 
 
 MINOR OEDEES. 
 
 MiNOE Orders are classes of men set apart for some 
 service or office in the Church, but not permitted to meddle 
 ■with Holy things such as the Altar (^) and what pertains 
 thereto. They are, therefore, not called Holy Orders. 
 Minor Orders may be conferred at other than the Ember 
 Seasons f) 
 
 The Eastern Church knows only of one Minor Order, 
 that of Eeaders. In the Western Church there are usually 
 considered to be four; (1) Acolytes or Attendants, (2) 
 Exorcists, (3) Headers, (4) Doorkeepers. 
 
 The order of Acolytes (") or Attendants still survives in the 
 Parish Clerks of Parochial Churches, whose business it is to 
 attend on the Priest in public worship and assist him by 
 their suffrages ia celebrating the Divine OflBce. 
 
 The Exorcist's (*) office was to drive out evil spirits from 
 
 (1) Concil. Remense, Can. 2 ap. Gratian III. Dist ii. c. 29. 
 
 (») Decret. Greg. IX. Lib. i. Tit. xi. o. 3. 
 
 (') Cone. Garth, iv. Can. 6 ap. Gratian I. Dist. xxiii. c. 16 : Aoolythns 
 cum ordinatur, ab episoopo quidem doceatur qnaliter in officio suo agere 
 debeat : sed ab archidiacono accipiat ceroferarium cum cereo, nt sciat Be 
 ad accendenda ecclesiie luminaria mancipari ; accipiat et nrceolum vacuum 
 ad suggerendum vinum in eueharistiam sanguinis Christi. 
 
 (*) Concil. Cartb. iv. Can. 7 ap. Gratian I. Dist. xxiii. c. 17 
 Exorcista cum ordinatur, accipiat de manu episcopi libellum, in quo 
 scripti sunt exorcismi, dicente sibi episoopo : Accipe et commenda 
 memoriffi, et habeto potestatem imponendi manus super energumenum 
 sive baptizatum, sive cateohumenum. 
 
Minor Orders. 173 
 
 those possessed with them. The office has disappeared, 
 although the need for it appears not to have altogether 
 vanished. 
 
 The Eeader's C) duty was to read the prophets in the 
 public meetings of the Church. That duty is now under- 
 taken by devout laymen. 
 
 The Doorkeeper's (^) functions are now usually performed 
 by the Churchwardens, or those deputed by them as Beadles 
 in the larger Churches. Below these come the Singing-men, 
 anciently called Psalmists. These are not now considered 
 to belong to the Minor Orders f) because they do not require 
 to be appointed by a Bishop C). 
 
 Other officials besides the above are the Sacristan and 
 the Custodian f). To those in Minor Orders marriage is 
 permitted (^). 
 
 (') Conoil. Carth. iv. Can. 8, ap. Gratian, Ibid : Lector cum ordinatur, 
 faciat de illo episcopus verbum ad plebem, indicans ejus fidem ae vitam 
 atque ingenium ; post hteo spectante plebe tradat ei eodicem de quo 
 leoturus est, dioens ad eum : Accipe at esto relator verbi Dei, babiturus, 
 si fideliter et utiliter impleveris officium, partem eum eis qui verbum Dei 
 ministraverint. 
 
 (2) Conoil. Cartb. iv. Can. 9, Ibid : Ostiarius cum ordinatur, pestquam 
 ab archidiacono instructus fuerit, qualitur in domo Dei debeat conversari, 
 ad Buggestionem arobidiaooni tradat ei episcopus claves eeolesise de altario ^ 
 dicens : Sic age, quasi redditiirus Deo rationem pro his rebus quae his 
 clavibus recluduntur. 
 
 (3) Concil. Carth, iv. 10, ap. Gratian I. Dist. xxiii. c. 20; Psalmista, 
 id est cantor, potest absque licentia episcopi sola jussione presbyteri 
 officium Busoipere cantandi, dicente sibi presbytero : Vide ut quod ore 
 cantas, corde credas, et quod corde credas, operibus comprobes. Gregorius 
 Lib. iv. Epist. 44, ap. Gratian I. Dist. xcii. c. 2, forbids deacons from 
 usurping their functions. 
 
 (*) Concil. Martini ap. Gratian I. Dist. xcii. c. 3. 
 
 (?) Deoret. Greg. IX. Lib. i. Tit. xxvi. xxvii. Extrav. Com. Lib. i. Tit. v 
 
 (6) Decret. Greg. IX. Lib. iii. Tit. iii. 
 
( 174 ) 
 
 CHAPTEE LXVII. 
 
 MATRIMONY. 
 
 Thebe is a distinct condition of life other than that of 
 Holy Orders, to which a spiritual grace is attached in the 
 Church. That is the Holy Estate of Matrimony Q) . 
 
 1. Matrimony is not merely a civU contract, hut is the 
 foundation of a new family for the perpetuation of the 
 human race. Hence when contracted between Christians it 
 becomes invested with a sacramental importance. The 
 bride and bridegroom are the ministers of a Sacramental 
 Act. Their outward union is the visible sign whereby an 
 inward and spiritual union between them is cemented such 
 as is the union betwixt Christ and His Church. 
 
 Eegular Matrimony is usually considered to be entered 
 upon by two separate acts ; (1) the Betrothal, and (2) the 
 Espousal. 
 
 2. The Betrothal 0, or promise of marriage, is a civU 
 contract entered into between two persons capable ci 
 contracting. It is merely an engagement to proceed to 
 Marriage, and may be made in a formal or informal manner. 
 Its chief importance is that it removes civil impediments to 
 
 (i) See Decret. Greg. IX. Lib. iy. Tit. i. 
 
 (*) A vow of chastity is the opposite of a betrothal and is a valid bar to 
 matrimony. See Gratian, Cans, xxvii. Qu. i. u. 1-3, Concil. Toletan. iv. 
 Can. 8, Ibid. c. 7, Concil. AnreUan. Can. 3, Ibid. o. 16, Angustinns, Ibid.. 
 Qu. ii. c. 35, Decret. Greg. IX. Lib.iv. Tit. ii. iii. and y. 
 
Matrimony. 175 
 
 a Yalid marriage by securing those consents without which 
 by civil law such a contract cannot be made C). 
 
 3. The Espousal, however, constitutes the real 
 Sacramental Act. The essentials of an Espousal, which 
 are also the outward signs of the Sacramental Act, are two ; 
 (1) Mutual Consent 0, and (2) SexualUnion ('). When 
 two persons mutually consent to live together after God's 
 ordinance, whether this be done regularly before the Church 
 or irregularly before God only. Marriage is said to be 
 initiated. When that mutual consent is followed by sexual 
 union, it is said to be consummated (''), and until sexual 
 union it is no indissoluble marriage. The religious 
 ceremony is not an essential C) ; and even concubinage f), 
 
 (') See Gratian, Cans, xxvii. Qu. ii. c. 35-46. This is most important 
 in countries like France and Italy, in -wliicb no marriage is allowed by 
 the law of the land without the consent of the parent or the family. 
 
 (^) Isidorus ap. Gratian, Cans, xxvii. Qu. ii: Consensus facit matrimo- 
 inm. Ambrosius, Ibid. o. 5 : Non enim defloratio virginitatis facit conjug- 
 ium Bed pactio oonjugalis. Consent cannot be given until seven years of 
 age ; Nieolaus ap. Gratian, Caus. xxx. Qu. ii. c. 1 ; and must be given 
 freely. See Gratian, Caus. xxxi. Qu. ii. u. 1 and 2 ; Decret. Greg. IX. Lib. iv. 
 Tit. i. c. 25. 
 
 (a) Augustinus ap. Gratian, Caus. xxvii. Qu. ii. c. 16 : Non est dubium 
 illam mulierem non pertinere ad matrimonium cum qua commixtio 
 sexas non docetur fuisse. Leo, Ibid. c. 17. See Decret. Greg, IX. Lib. iv. 
 Tit. XV. 
 
 (*) Hieronymus ap. Gratian, Caus. xxvii. Qa. ii. c. 37: quae sponsali 
 conventione iuitiantur, et commixtione oorporumperficiuntur. 
 
 (5) Conoil. Carth. iv. Can. 13, ap. Gratian I. List, xxiii. c. 33, and 
 Gratian, Caus. xxx. Qu. v. o. "5 : Sponsus et sponsa cum benedicendi 
 sunt a sacerdote,-a parentibus suis vel aparanymphis offerautur, qui cum 
 benediotionem acceperint, eadem nocte pro reverentia ipsius benediotionis 
 in virginitate permaneant. 
 
 (^) The Chm-ch allows marriage with a slave, and other unequal 
 matches. See Gratian, Caus. xxix. Qu. ii. 
 
176 The Elements of Canon Law. 
 
 so that it be sole and perpetual, is allowed by the Church 
 as valid though irregular C)> as being Matrimony according 
 to the law of nature <^). 
 
 4. The- spiritual gift is the inward and spiritual union 
 between man and wife, whereby each is enabled to surrender 
 his or her will to the other (*) . This inward and spiritual 
 union involves (*) : (1) that man and wife are no longer 
 two but one person in the eyes of the Church, and as such 
 claim no private property one against the other ; (2) that 
 they live together for the mutual help and comfort of one 
 another ; and (3) that their children are lawful, and no 
 longer proof of lust on the one side and weakness on 
 the other f ). 
 
 5. Hence polygamy (^ is not permitted in the Church, nor 
 the rupture of the marriage tie (') of those truly married (*) 
 
 (1) See Gratian, Caus. xxx. Qu. v. A divorced -woman may not marry 
 the co-respondent, Gratian, Cans. xzxi. Qu. i. 
 
 (=) Concil. Toletan. i. Can. 17, ap. Gratian I. Dist. xxxiv. c. 4 ; Isidoms 
 Ibid. c. 5. Conf. Augustinns ap. Gratian, Caus. xxvii. c. 51. Augustinus 
 ap. Gratian, Caus. xxxii. Qu. ii. a. 6 ; but a man -who has kept a mistress is 
 exhorted to put her away and marry a wife by Leo ap. Gratian, Caus. 
 xxxii. Qu. ii. u. 11. 
 
 (^) Urbanus ap. Gratian Caus. xxxi. Qu. ii. c. 4 : Quorum enim unum 
 corpus est, unus debet esse et animus. 
 
 i^) Proles, fides, saoramentum. See Augustinus ap. Gratian, Caus. 
 xxvii. Qu. ii. c. 10. 
 
 {') Augustinus ap. Gratian, Caus. xxxii. Qu. i. c. 11 : Alia sunt adnuptias 
 proprie pertinentia, quibus ab adulteriis nuptiae discernuntur, sicuti est 
 tori conjugalis fides, et cura ordinate Alios proereandi, et (quae maxima 
 est differentia) bonus usus mali, hoc est bonus usus concupiscentise 
 camis, quo bono male utuntur adulteri. 
 
 (6) Concil. Meldens. Can 1, ap. Gratian, Cans, xxviii. Qu. ii. and Qu. iii. 
 
 (') Authorities ap. Gratian, Caus. xxxii. Qu. vii. c. 3-10, Gregorius, Ibid. 
 Qu. vii. 0. 22. 
 
 (8) The marriage tie is not indissoluble unless there has been true 
 marriage. See Gratian, Caus. xxxiii. Qu. i. and Qu. vii. 2. 
 
Matrimony. 177 
 
 either by Divorce (') or by lengtb of absence f). in case 
 of adultery f) the innocent person (^) is allowed, and even 
 required to put away the other until the expiration of the 
 time of penance. So difficult a law as that whereby a man 
 is tied to one woman for life could hardly have been 
 guarded so jealously by the Church were it not of Christ's 
 appointment. And as divorce is forbidden to Christians 
 in cases where it is allowed by the law of Moses. 
 so the Church's prohibition of marriage within certain 
 degrees of relationship (^) has other reasons to support it 
 besides the ceremonial law of the Jews ("). 
 
 To avoid fornication second marriages are allowed (') but 
 discouraged by the Church, and involve certain canonical 
 disabilities. Vows of continence are not allowed except 
 •with, the willing consent of both parties . 
 
 {'■) Gregorius ap. Gratian, Cans, xxvii. Qu. ii. c. 19, also Ibid. o. 20-26, 
 Cans, xxxii. Qa. vii. c. 1, 2, and 25, 27. 
 
 (*) See Gratian, Cans, xxxiv. Qn. i. 
 
 (?) A man is required to put away an adulterous wife, and to receive 
 her back after penance at the end of three years ; see Gratian, Caus. 
 xxxii. Qu. i., and Caus. xxxiii. Qu. ii. c. 2, 11-13, 16, but only after proof 
 of her adultery, Gratian, Caus. xxxv. Qu. Yi. c. 10. 
 
 (*) Augustinus ap. Gratian, Caus. xxxii. Qu. vi. o. 1. 
 
 (5) Marriage between god-parents and god-children is strictly forbidden. 
 See authorities ap. Gratian, Caus. xxx. Qu. iii. As to the counting of 
 degrees of relationship see Gratian, Caus. xxxv. Qu. v., and as to those 
 marrying within them iguorantly, Gratian, Caus. xxxv. Qa. viii. 
 
 (8) See Augustin ap. Gratian, Caus. xxxv. Qu. i. c. 1, and Qu. ii. and iii 
 The general law of the Church forbade marriage up to the 7th degree of 
 relationship ; in England the prohibition extended to the 4th and 5th 
 only. See Gregorius ap. Gratian, Caus. xxxv. Qu. ii. and iii. c. 20. 
 
 C) See authorities ap. Gratian xxxi. Qu. i. e. 9 seq. 
 
 ("] See authorities ap. Gratian, CauB. xxxiii. Qu. v. 
 
178 The Elements of Canon Law. 
 
 DIVISION III. 
 
 DISCIPLINE AND CENSTJEES. 
 
 CHAPTER LXVin. 
 
 JUDICIAL POWER OF THE CHUBCH. 
 
 1. The Christian Church, having the power of defining 
 the doctrines of the faith and the power of making rules for 
 advancing the holiness of its members, has also the power 
 of judging all alleged offences against faith or morals 
 committed by any of its members, and of punishing offenders 
 by partially or whoUy excluding them from its communion. 
 This power has been committed to it by Christ (Matt, xviii. 
 15-18) for the purpose of keeping His Body in the unity of 
 the faith, pure and spotless ('). 
 
 2. The use of this power is termed Church Discipline, 
 and its administration rests with those to whom the govern- 
 ment of the Church has been committed by Christ. It 
 is, therefore, exercised exclusively by authority of those 
 possessing jurisdiction therein. The general rules of 
 Church discipline emanate from the collective Episcopate, 
 
 (') Augustinus ap. Gratian, Caus. xxiii. Qn. vi. o. 1. 
 
J'udicial Power of the Church. 179 
 
 but their application in each diocese is under the charge of 
 the Diocesan Prelate, or his special officers appointed for 
 that purpose. 
 
 3. The Clergy are forbidden to bring suits against 
 brother clergy before secular tribunals C). The crime of 
 conspiracy amongst them is specially reprobated (''). In 
 all cases obedience to the Bishop is enjoined ('), save 
 when he invades a right (*) and respect for ecclesiastical 
 censures (^) even when unjust. 
 
 (•I) See the authorities ap. Gratian, Caus. xi. Qu. i. 
 
 (^) Conoil. Chalcedon, Can. 18, a.d. 451 : rf np^s toIwv ^ KKripixbi ^ 
 fxovtk^ovres evpeB^tev, ^ ffwo^vin^voi ^ <l}paTpiti^oyTes, ^ KaraffKivhs Tvps^oyres 
 ^iritTKinois ^ ffuyKKTipiKOts ^KTrnrTfTua'av irdvTij tov oiKeiov fiddfiov. Also 
 Conoil. Toletan. and Conoil. Auxelian. iii. ap. Gratian, Caus. xi. Qu. i. 
 c. 24: and 25. 
 
 (s) See authorities ap. Gratian Caus. xi. Qu. iii. c. 11, 13, 14. Crbanus 
 Ibid. 0. 27. 
 
 (*) Deoret. Greg. IX. Lib. i. Tit. xxxiii. c. 8, and Lib. v. Tit xxxi. c. 5. 
 
 (S) Joannes Chrysostom. HomU. iy. ad. ii. Epist ad Heb. ap. Gratian, 
 Caus. xi. Qu. iii. c. 30 and 31. 
 
 N 2 
 
180 The Elements of Canon Law, 
 
 CHAPTER LXIS. 
 
 SUBJECT-MATTER OP THE CHUBCH S JUDICIAL POWER. 
 
 The Church has power over all matters which 
 affect its members, and since these are either public or 
 private matters, Church discipline is partly of a public, 
 partly of a private nature. 
 
 1. A Christian's duty towards God in the Church and in 
 the world is a private matter, and so the discipline con- 
 cerning it is privately administered by a director or Licensed 
 Confessor with the Bishop's sanction. He imposes censures 
 privately, and privately reconciles. Private reconciliation 
 is, however, allowed even in cases of public sins if the 
 penitent be at the point of death (^). 
 
 Private discipline may be administered by a Priest with 
 the Bishop's cognisance (^. 
 
 2. When offences are of such a nature as to cause public 
 scandal, the case is one for the exercise of the public 
 discipline of the Church ('). The offence being public, the 
 
 (I) Coneil. Carthag. ii. Oau. 4, ap. Gratian, Cans. xxvi. Qa. vi. c. 5. 
 Martinus, Ibid. c. 6. Conoil. Kicaeu. Can. 13, a.d. 325 ; b Tr6Xaios koI 
 Kavovixbi vd/ios </>u\ax9^(reTat, Scrre (Itis i^oSeiot, rod reXevraiov Kal 
 o^o7Kall)TaTou e(poSiov jii); OTroff-Tepeicrflai. See also authorities ap. Gratian, 
 Caus. xxvi. Qu. vi. c. 10-14. 
 
 (*) See Gratian, Cans. ixvi. Qu. vi. c. 4 and 14. 
 
 (1) But not without strict proof. See Evaristus ap. Gratian, Cans. xxx. 
 Qn. y. c. 10. ; nullum ante yeram jnstamque probationem judioare aut 
 
Subject-Matter of the Church's Judicial Power. 181 
 
 censure is public also and likewise the restoration after 
 censure. 
 
 Public Discipline cannot be administered by a Priest C) 
 but only by the Bishop or Spiritual Judge. 
 
 3. The rule of charity requiring that Christians should 
 be slow to believe the report of other men's sins, the public 
 administration of discipline is hedged about by a strict 
 code of rules f) called rules of Procedure. 
 
 Hence the judicial power of the Church and its adminis- 
 tration is seen to involve three points. — 
 
 (1) The private administration of censures — called 
 Penance. 
 
 (2) The public administration of censures — called 
 Church Discipline. 
 
 (3) The method of publicly administering Discipline 
 
 — called Procedure. 
 
 damnare debemus, teste Apostolo qui dicit: Tu qfuis es qui judicas 
 alienum servum ? Domino suo stat aut oadit. Mala itaque audita nullum 
 moveant, neo passim dicta absque certa probatione quisquam unquam 
 credat ; sed ante audita diligenter inquirat, ne pracipitando quiequam 
 aliquis agat. 
 
 (1) Coucil. Carthag. ii. Can. 3, a.d. 390, ap. Gratian, Caus. xxvi. Qu. ¥i. 
 c. 1 : Eecouoiliare quenquam in publioa missa presbytero non lioere . 
 Concil. Agathens. Can. 43 and ii, a.d. 506, Ibid. o. 3.. 
 
 {^] No one can be condemned unless after conviction, or on his own 
 confession. See authorities for this, ap. Gratian, Caus. ii. Qu. i. o. 1 to 
 5, 11. 
 
182 The Elements of Canon Law. 
 
 CHAPTEE LXX. 
 
 ECCLESIASTICAL OFFENCES. SINS VENIAL AND MORTAL. 
 
 1. Evert fault whether of omission or commission is a sin 
 against God ; but it is not every fault that can or ought to 
 be publicly noticed by the Church. A broad distinction is 
 drawn between Venial and Mortal sins. 
 
 Venial sins (^) are such as are light in themselves and 
 spring from natural inadvertence or passing weakness 0, 
 to which the wiU does not consent, and which are forgiven 
 in the daily prayer of Christians. These are at most only 
 noticeable in private Penance. Mortal sins are such as 
 sever the soul from communion with God, and are hence 
 called deadly. 
 
 2. In the early days of Christianity all discipline was 
 exercised publicly, and its exercise was limited to the cases of 
 the three deadly sins, viz.. Idolatry, Murder, and Adultery. 
 The sins of which these three are representative con- 
 stitute the ecclesiastical offences of which the Church now 
 takes cognisance. When committed privately, however, 
 the Church deals with them privately in the administration of 
 Penance, the rules for which are so varied that a special 
 branch of Canon Law called Casuistry or Moral Theology is 
 devoted to them. 
 
 {<■) See Gregor. Dial. Lib. iv. c. 39, on Venial Sins ap. Gratian I. 
 Dist. XXV. c. 4. 
 
 >{2) Immoderate license of the married is venial according to Angustin. 
 ap. Gratian, Cans, xxxii. Qu. ii. c. 3. 
 
Ecclesiastical Offences — Sins Venial and Mortal. 183 
 
 3. The subject-matter of the Public Discipline of the 
 Church consists, therefore, of the following classes of sins, 
 when publicly committed : — 
 
 (1) Sins which are offences against God and true 
 
 religion, of which Idolatry is the type — such as 
 Apostacy and Heresy (^), Simony C), and Per- 
 jury C). 
 
 (2) Sins which are offences against fellowmen and 
 natural justice, of which Murder is a type — such 
 as Homicide (*), Stealing (^), False- witness ("). 
 
 {'■) Gratian, Cans. xxiv. Qu. i. and. ii. under which soothsaying is 
 included, Gratian, Cans. xxvi. Qu. i. iii. and iv. and v., and Concil. Aureli- 
 auense i. Can. 32, Ibid. e. 9, and incantations and charms, Gratian, 
 Cans. xxvi. Qu. vii. c. 13-18. 
 
 (') See the various authorities on simony, ap. Gratian, Cans. i. 
 Qu. i. c. 1 to 29, 107 to 116, and 118 to 130, and Qu. ii. Qu. iii. iv. v. vi. 
 Decret. Greg. IX. Lib. v. Tit. iii. 
 
 (') See Gratian, Cans. xxii. Qu. iandii. particularly as to when false- 
 speaking is allowed, and Qu. iv. as to when rash vows should not be 
 kept, and Qu. v. 
 
 (*) Gregorius. ap. Gratian, Cans, xxiii. Qu. v. u. 7, and August. 
 Qu. viii. c. 33, including suicide, August, ap. Gratian, Caus. xxiii. Qu. v. 
 c. 10 and 12, and procuring abortion after quickening, Augustinus, ap. 
 Gratian, Caus. xxxii. Qu. ii. c. 8, and killing an adulterous wife, Pius ap. 
 Gratian, Cans, xxxiii. Qu. ii. c. 7, aiding and abetting in so doing, see 
 Gratian, Caus. xxxiii. Qu. iii. c. 23-28. Nevertheless military service is 
 permitted to laymen, Gratian, Caus. xxiii. Qu. i., and Augustinus, Ibid. 
 Oa. V. 0. 9, and Ambrosius, Ibid o. 25 : Ibid. Caus. xxiii. Qu. viii. c. 9. 
 Decret. Greg. IX. Lib. v. Tit. xii. and xxv. So too is capital punishment 
 when administered by an official; — See Innocentius and Gregorius ap. 
 Gratian, Caus. xxiii. Qu. iv. c. 45-47, Qu. v. also Hieronymus ap. Gratian, 
 Caus. xxiii. Qu. v. c. .^1 ; Augustinus, Ibid. c. 41 ; or when directed 
 against heretics, Urban, ap. Gratian, Caus. xxiii. Qu. iii. u. 47. 
 
 p) See authorities ap. Gratian, Caus. xiv. Qu. v. c. 14 and 15 : Qu. vi. 
 V. 3 and 4 Decret. Greg. IX. Lib. v. Tit. 18. On stealing Church 
 property, see Gratian, Caus. xvii. Qu. iv. 
 
 (^J Concil. Agathens. Can. 37, a.d. 506, ap. Gratian, Caus. xxiv. Qu. ii. 
 c. 20, Decret. Greg. IX. Lib v. Tit. xx. 
 
184 The Elements of Canon Law. 
 
 (3) Sins whicli are offences against the Body of Christ, 
 
 such as Adultery 0, Eape 0, and other acts of 
 hodily impurity in a Christian ('). 
 To these must be added — 
 
 (4) Offences purely Ecclesiastical, i.e. things innocent 
 
 in themselves but forbidden to ecclesiastics 
 because of their holy calling, such as Clerical 
 Marriage C), Hunting ('), and Trading ("). 
 
 (') Augustinus ap. Gratiau, Caus. xxxii. Qu. iv. «. 11 : Nomine 
 moechise omnis illicitus cououbitus atque illorum membronim non 
 legitimus usus proMbitus debet intelligi. Hieronymus, IHd. c. 14. See 
 authorities ap. Gratian, Caus. xxxii. Qu. v. c. 13-23, and Qii. vii. c. 15. 
 Decret. Greg. IX. Lib. v. Tit. xvi. 
 
 (') Gratian, Caus. xxxyi. Qu. i. and ii. 
 
 (*) Ambrosius ap. Gratian, Caus. xxxii. Qu. vii. c. 12 : Minus est 
 secundum naturam coire quam adversus naturam delinquere. Violence 
 done to the body to which the mind does not consent cannot be considered 
 immodesty. See authorities ap. Gratian, Caus. xxxii. Qu. v. 
 
 [*) On Clerical Continence, see Chapter Ix. and the rules as to 
 not having women under the same roof with the Clergy laid down by 
 various authorities ap. Gratian I. Dist. Ixxxi. c. 15-33. 
 
 p) Concil. Aurelianense iv. ap. Gratian I. Dist. xxxiv. c. 2. See the 
 quotations from Augustinus, Hieronymus, and Ambrosius, ap. Gratiau 1. 
 Dist. Ixxxvi. u. 8 to 13. Decret. Greg. IX. Lib. v. Tit. xxiv. 
 
 (^) Concil. Chalcedon, Can. 3, a.d. 451, Sipunv toIvw t] a-yla koX 
 fj-eydhTj tritvoSos, fj-fiSeya rov Koittov, fi^ hriffKoiroy, fi^ KKripiKhv, /a^ fLovd^ovTa, 
 ^ fjLurdavfTdat KT^fiara, ^ irpayfiaTa, ^ eireta'ayeiy kaxrrhv KoiTfjiiKats 5ioitt^(ro(rt. 
 Gregorius. Lib. vii. ludic. ii. Bpist. i. ap. Gratian I. Dist. Ixxxvi. c. 24. 
 Can. Apostolorum 7, ap. Gratiau I. Dist. Ixxxviii. c. 3 : Episcopus aut 
 presbyter aut diaconus nequaquam saeculares curas assumat : sin aliter, 
 dejiciatur. Gregorius. Lib. viii. Ep. 11, Ihid. a. 4. This included any 
 form of usury. See Gratian, Caus. xiv. Qu. iii. and Qu. iv. and v., and 
 even taking money for defending a case. See Gratian, Cans. xv. Qu. ii., 
 Decret. Greg. IX. Lib. iii. Tit. 1. 
 
( 185 ) 
 
 CHAPTEK LXXI. 
 
 PRIVATE DISCIPLINE. — PENANCE. 
 
 1. Penance is the name applied to the private administra- 
 tion of Chm-ch Discipline by a Licensed Confessor dealing 
 with a Penitent, acting for and on behalf of the Bishop. 
 Strictly speaking a penance is a canonical punishment or 
 period of abstention from the Eucharist coupled with 
 prayer and fasting imposed on one who should fall into 
 sin after the washing of regeneration. 
 
 2. The discipline of Penance has been administered in 
 more ways than one in different ages of the Church. In 
 the earliest times it was always public. Such as had been 
 guilty of Idolatry, Murder, Adultery, or any crime to which 
 the civil law attached the punishment of death, were a 
 known class. As penitents, they were put to open shame 
 and had to go through years of Penance (^), before they 
 Were re-admitted to the communion of the Church. 
 
 3. When persecutions ceased whilst open Penance was 
 still reserved for open sinners, it was found better for the 
 avoiding of scandals that those guilty of secret sins should 
 confess them privately to a Priest, who prescribed the time 
 
 (1) See Concil. Niosen. Can. 11 and 12, a.d. 325, also Leo ap. Gratian, 
 Cans. xxvi. Qu. Tii. c. 2. As to the time, see Gratian, Cans, xxxiii. 
 Qu. iii. Dist. vii. During penance conjugal abstinence was required, 
 Gratian, Caus. xxxiii. Qu. iv. 
 
186 The Elements of Canon Law. 
 
 of abstention from Communion C)j and at its close restored 
 them by absolution. Owing to tbe difficulties of the subject 
 a special officer was appointed by the Bishop for this pur- 
 pose, called a Penitentiary Presbyter (^), whose duties with 
 certain reservations were in after times entrusted to all 
 licensed Confessors. 
 
 4. In Mediaeval times Penance (') became the Ministry 
 of Consolation rather than of judgment. Hence commuta- 
 tions of Penance (*) were admitted, and instead of being 
 for years excluded from Communion, an offender was 
 restored after a short period provided he substituted in their 
 place certain charitable works ('), such as almsgiving. 
 
 These Commutations of penance were called Indulgences? 
 and in them the prescribed works of charity f ) were con- 
 sidered substitutes for the old canonical penances ('). 
 
 (1) Nieolaus ap. Gratian, Cans. xxvi. Qu. vii. u. 3, Commimion is not to 
 be denied to those -who suffer the extreme penalty of the law. See Concil. 
 Aurelian. ap. Gratian, Cans. xiii. Qu. ii. c. 32. 
 
 P) Evaristus ap. Gratian, Cans. xxvi. Qu vi. c. 4 : Presbyteri de oceultis 
 peocatis jussione episcopi pcenitentes reconcilient et infirmantes absol- 
 vant et communieent. Conoil. Carthag, iii. Can. 31, a.d. 397, ap. Gratian, 
 Caus. xxvi. Qu. vii. c 5 Poenitentibua secundum differentiam peocatorum 
 episcopi arbitrio poenitentiae tempora decemantur. 
 
 (s) There can, however, be no Penance -without restitution. See 
 Augustinus and Gregorius ap. Gratian, Caus. xiv. Qu. vi. c. 1 and 2. On 
 degrees and kinds of Penance, see Gratian, Caus. xxvi. Qu. vii. t. 7-10 ; 
 and Gratian, Caus. xxxiii. Dist. Hi. 
 
 (*) Concil. Eliberitan, Can. 72, ap. Gratian, Caus. xxxi. Qu. i. c. 8 : 
 Tempus poenitentise oonstitutum est, sed conversatio et fides eorum 
 tempus abreviat. Decret. Greg. IX. Lib. v. Tit. xxxviii. 
 
 (5) See, Ambrosius, Augustinus, and others ap. Gratian, Caus. xxxiii. 
 Qu. iu. c. 76-85, also Ibid. Caus. xxxiii. Qu. iii. Dist. ii. 
 
 (6) Gratian, Caus. xxxiii. Qu. iii. Dist. ii. 
 
 C) According to Augustifie ap. Gratian, Caus. xxxiii. Qu. iii. u. 84, the 
 
Private Discipline. — Penance. 187 
 
 The rules of Penance, the circumstances under which 
 commutations are allowed, and the nature of the Indulgences 
 permitted belong to a special department of Canon Law 
 called Casuistry (^). 
 
 5. As there is no clear authority that Christ appointed 
 confession to be made to a Priest (^), so the discipline of 
 Penance is not more than a Sacramental Act. The Canoni- 
 cal view of Private Confession is that it is obedience to a 
 precept and as sach a test of penitence ('), rather than a 
 necessity for salvation or a means of pardon. It is con- 
 ducive to humility, when it is resorted to for venial 
 sins. In the case of mortal sins it is a substitute for and 
 stands on the same footing as public Discipline. 
 
 6. The fourth Lateran Council C) made it obligatory on 
 all Christians once a year, lest any unwittingly should be 
 
 abouring under mortal sin. 
 
 measure of grief rather than of time must be considered in apportioning 
 penances. 
 
 (1) See the long Traetatus de Pcenitentia ap. Gratiau, Cans, xxxiii. 
 Qu. iii. 
 
 (2) See Gratian, Cans, xxxiii. Qu. iii. c. 89, 90, and Qu. iii. Dist. vi. 
 (=) Ser authorities ap. Gratian, Caus. xxxiii. Qu. iii. c. 38 to 75, 89, 
 
 also Caus. xxxiii. Dist. iv. also Dist. i. c. 37 
 (4) A.D. 1215, Can. 21. 
 
188 The Elements of Canon Law. 
 
 CHAPTER LXXII. 
 
 PUBLIC DISCIPLINE. 
 
 1. The Church now takes formal public notice only of 
 offences which cause public scandal. This is called the 
 judgment of the Outer tribunal. In the early days of 
 Christianity there was no other, and for some time it was 
 hotly debated whether the Lapsed — i.e., such as after 
 baptism had fallen into mortal sin — could be re-admitted to 
 its Communion. This debate gave rise to the Novatian 
 Schism. 
 
 A somewhat similar dissension arose in the fourth century 
 respecting the treatment of the Traditores, i.e., such as under 
 stress of persecution had delivered up the sacred books. 
 When Christianity became the recognised religion of state, 
 other like points had to be settled. 
 
 2. The rules of discipline adopted by the Church were 
 really a compromise between two opposing currents of 
 thought, both of which, however, aimed at the same end — 
 the holiness of the Church ; the one seeking to secure this 
 end by cutting off great sinners as a source of con- 
 tamination to the rest ; the other seeking to win back a 
 sinner from the error of his ways. The former tendency 
 gives rise to what is called Vindictive, the latter to 
 Eemedial discipline. Until offences have been actually 
 
Public Discipline. 189 
 
 brought home to offenders, they should be charitably borne 
 with C). 
 
 3. The received rules of Discipline in early days allowed 
 only of one reconciliation to the Church after a lapse (^). 
 From the length' of time which had to pass before 
 reconciliation could be permitted, and the severity of the 
 mortification to be gone through in the meanwhile, it is 
 seen how strictly the Church guarded its purity against 
 sham Conversions ('). 
 
 4, A distinction was also made between the case of the 
 Clergy and the Laity. Clergy were simply removed from 
 the ministry vsdthout public penance (*), whereas the Laity 
 did penance openly, and at its close were openly recon- 
 ciled by the Bishop with the imposition of hands before the 
 sanctuary. 
 
 (') See authorities ap. Gratian, Caus. xxiii. Qu. iv. c. 1-15, 18, 19, 22. 
 
 (") See Gratian, Caus. xxxiii. Dist. iii. o. 34. 
 
 (a) Liber de vera et falsa poenitentia ap. Gratian I. Disi xxv. o. 5, also 
 Caus. xxxiii. Dist. v. 
 
 (*) Gregorius, Lib. iv. Epist. 17 ap. Grat. I. Dist. 1. c. 1, and Lib. vii. 
 Epist. 25, Ibid. c. 3, and Lib. iii. Epist. 26, Ibid. o. 9, Martiuus i. Ibid. 
 a. 2 and 12, Coneil. Agathense, Can. 50, a,d. 506, Ibid. u. 7. See also 
 Gratian I. Dist. Ixxxi. c. 5 to 12. 
 
 That the Clergy may Ire restored after Penance, is maintained by 
 Calixtas I. Epist. ii. ap, Gratian I. Dist. 1. c. 14, by Hieronymua, cap. 3 
 Malachije, Ibid, c. 15, 19, and 20. also by Gregorius, Lib vii. Epist. 53, 
 Ibid. a. 16. and Conoil. Agathense, Can. 2, Ibid. c. 21. As to who may and 
 who may not be restored, see Isidorus ap. Gratian I. Dist. 1. c. 28, 
 Hormisdas, Ibid. c. 29, Nicolaus, Ibid. 38, Eabanus, Ibid. c. 34, Coneil. 
 Ilerdense. Can. 5, A. c. 546, ap. Gratian I. Dist. 1. c. 52. 
 
 Clergy were restored without imposition of hands, see Coneil. Carthag. 
 V. Can. 11, A.D. 401, ap. Gratian I. Dist. 1. c. 65, Leo. Epist. xc. c. 2, 
 Ibid. 0. 67. 
 
190 The Elements of Canon Law. 
 
 CHAPTEK LXXIII. 
 
 DISCIPLINE OF THE CLEEGY. 
 
 1. The discipline of the Clergy is necessarily vindictive, 
 i.e. it is inflicted on unwilling subjects primarily for the 
 maintenance of the purity of the Church and only second- 
 arily for the soul's health of the ofl'ender Q). 
 
 2. In case of a charge being preferred against a Bishop 
 or Priest, it should according to ancient rule be investigated 
 by a provincial Synod (^) . Ordinarily the presence of twelve 
 Bishops (') besides the Metropolitan was required for the 
 trial of a Bishop (*) ; six for that of a Priest or Arch- 
 deacon ; three for that of a Deacon (^) . 
 
 3. No heretic, separatist, or criminous person, was per- 
 
 (1) Sometimes only the latter. See CoDoil. Ilerdense, Can. 5, a.d. 546, 
 ap. Gratian, Cans. xv. Qu. viii. o. 2. 
 
 (») Concil. Carthag. It. Can 29, ap. Gratian, Cans. vi. Qu. ii. c. 1 ; 
 Episoopus si olerico vel laico crimen impegerit deduoatur ad probationem 
 in Synodum. See authorities ap. Gratian, Caus. xv. Qu. vii. 
 
 (^) Pseudo-Isidore ap. Gratian, Caus. v. Qu. iv. Concil. Carthag. ii. 
 Can. 10, A.D. 390, ap. Gratian, Caus. iii. Qu. viii. c. 2. Si quia episcopus 
 in reatum aliquem incurrerit et nimia necessitas ei fuerit non posse plu- 
 rimos congregare, ne in crimine remaneat, a duodeoim audiatur 
 epiecopis. 
 
 (*) Gratian, Caus. vi. Qu. iv. c. 5. 
 
 (5) Concil. Carthag. i. Can. 11, a.d. 348, ap. Gratian, Caus. xv. Qu. 
 vii. 0. 8 : A tribus vioinis episoopis, si diaconus e^t qui arguitur si 
 presbyter a sex ; si episcopus a duodecim consacerdotibus audiatur. 
 Concil. Carthag. iii. Can. 8, a.d. 397, Ibid. c. 5. 
 
Discipline of the Clergy. 191 
 
 mitted to give evidence against a Bishop on an ecclesiastical 
 charge (0, but he might on another charge, provided he first 
 stated in writing his willingness to bear the penalty should 
 he fail to substantiate it. 
 
 4. Should the judging Bishops be divided in opinion, a 
 neighbouring Metropolitan and some neighbouring Bishops 
 were summoned to assist ("). To depose a Bishop the 
 presence of all the Comprovincials was required as well as 
 of the accused himself. 
 
 5. In the case of a Priest, punishment could only be en- 
 forced after a careful investigation by the Bishop (') and 
 suitable monition {^). Mere ill repute without evidence was 
 not allowed to condemn a clerk, but in some cases it was 
 enough to call on him to clear himself by compurgation (°). 
 Should a Priest be deprived by the captiousness or party 
 spirit of his Bishop (^, an appeal lay to a Synod of neigh- 
 bouring Bishops, the majority of whom would cancel or 
 confirm the sentence. 
 
 (1) Concil. Const. Can. 6. 
 
 {') Conoil. Antioch, Can. 14, a.d. 332, ap. Gratian, Caus. vi. Qu. iv. 
 c. 1. 
 
 (3) Gregorius ap. Gratian, Caus. xv. Qu. vii. c. 2. Conoil. Hispalens. 
 ii. Can. 6, a.d. 619, ap. Gratian, Caus. xv. Qu. vii. o. 7 : Nisi in Synodo 
 canonica vocata sacerdotes damnari non possunt. 
 
 (*) Deoret. Greg. IX. Lib. iii. Tit. i. o. 16, and Tit. ii. o. 4 and 6. 
 
 (5) Decret. Greg. IX. Lib. v. Tit. xxxiv. and xxxv. 
 
 (6) Conoil. Nic. Cam. 5. a.d. 325. 
 
192 The Elements of Canon Law. 
 
 CHAPTER LXXIV. 
 
 CENSTJKES ON THE CLERGY. 
 
 The Censures (') by wliicli the Discipline of the Clergy 
 is enforced are of three kinds : (1) Suspension (2), Depri- 
 vation, and (3) Degradation. 
 
 1. Suspension is a temporary withdrawal of the authority 
 to exercise clerical duties (^). As such it is called sus- 
 pension ah officio. When to this is added a withdrawal of 
 the right to receive clerical maintenance, it is called 
 suspension a benejicio. Suspension ought not to be given 
 without a previous admonition (*), and may be pronounced 
 by a spiritual Judge C). 
 
 2. Deprivation is a permanent removal from the clerical 
 ofiBce C), and may only be pronounced by the Bishop (*). 
 
 (1) Decret. Greg. IX. Lib. v. Tit. xxxvii. 
 
 P) Temporary suspension is not allowed by Concil. Cartbag. iii. Can. 
 7, A.D. 391, tmless the accused fails to appear. See Gratian, Cans. iv. 
 Qu. V. c. 1. See Sext. Decret. Lib. v. Tit. xi. c. 1. Const. Clem. Lib. v. 
 Tit. X. Extrav. Lib. i. Tit. xiii. 
 
 (») Gibs. 1047, PhUlimore's Ecclesiastical Law, p. 1376. See Sext. 
 Decret. Lib. v. Tit. xi. c. 13. 
 
 (*) PhUlimore'a Ecclesiastical Law, p. 1375. 
 
 C) No Deacon or Priest may be deprived of the clerical office without 
 first having a hearing. Gratian, Cans. Qu. vii. c. 1. 
 
 {') Vhiiliniore's Ecclesiastical Law, ■p, 1375. Tet maybe pronounced 
 by the Judge of the Court of Arches without the presence of the Bishop 
 or Archbishop. See legal authorities in PhiUimore's Ecclesiastical Law, 
 p. 1399. 
 
Censures of the Clergy. 193 
 
 It may be either ab officio, or a heneficio, the former 
 ordinarily involving the latter. But a case is conceivable 
 of one deprived of his spiritual of&ce v?hom the law does 
 not allow to be deprived of his benefice. Deprivation 
 follows eanonically ijpso facto on the commission of certain 
 crimes such as simony, heresy, sacrilege, homicide, self- 
 mutilation, falsification of ecclesiastical documents, intru- 
 sion into another's benefice, sodomy, and spiritual incest. 
 Nevertheless in all these cases a declaratory sentence must 
 be given in the Spiritual Court, before an office can be con- 
 sidered vacant C) . 
 
 3. Degradation or total removal from the exercise of 
 Orders can only follow on the commission of some very 
 enormous crime (^). Formerly it was enforced after a 
 conviction for heresy. 
 
 (1) Neither a Deacon nor a Priest may be deprived except he either 
 pleads guilty or is proved guilty. See Nicolaus ap. Gratian, Cans. xv. 
 Qu. V. c. 2. So it has been decided, too, in the Court of Arches. See the 
 authorities in Phillimore's Ecclesiastical Law, p. 1401. 
 
 (2) See Sext. Lib. v. Tit. ix. c. 2. 
 
( 194 ) 
 
 CHAPTER LXXV. 
 
 CENSUBES ON THE LAITY. 
 
 1. The Discipline of the Laity has for its first object the 
 amendment of the sinner. Hence censures are properly 
 inflicted on the contumacious only, except in cases of 
 grave public scandal. The public censures reserved for the 
 laity are of two kinds, either (1) Excommunication or (2) 
 the Interdict. 
 
 2. Excommunication C), which is often called the Bishop's 
 sword, is of one of two degrees ("), either the lesser Excom- 
 munication or the greater Excommunication. The lesser 
 Excommunication is the suspension of a Christian from 
 communion and Divine worship for a limited period. 
 Being remedial and apphed for the good of his soul, it must 
 be preceded by suitable admonition. 
 
 3. The gi-eater Excommunication (') involves not only 
 exclusion from Communion, but separation from the fellow- 
 ship and conversation of the faithful, its object being not so 
 
 (1) One who is himself excommunicate cannot excommnnicate another, 
 Gratian, Cans. xxiv. Qu. i. c. 4, 36-42. Excommunications can only be 
 pronounced on the living, Gratian, Caus. xxiv. Qu. ii. Decret. Greg. IX. 
 Lib. V. Tit; xxxix. 
 
 C^) Hieronymns in Lib. Jud. Hom. ii ap Gratian, Caus. xi. Qu. iii. c. 
 21. 
 
 («) As to the treatment of the excommunicate, see authorities ap. 
 
Censures on the Laity. 195 
 
 much to reform a backslider as to prevent the contamina- 
 tion of others by a member corrupt past remedy. It is, 
 therefore vindictive. To inspire awe the sentence used to 
 be pronounced (') by the Bishop surrounded by twelve 
 Clergy with lighted candles, who on its promulgation dashed 
 them to the ground and trod upon them. Similar cere- 
 monies attended the removal of the sentence (^). The 
 name of a person so censured was not allowed to be 
 mentioned (') in the public prayers of the Church, nor 
 might he receive any Sacrament. One who is included 
 in this censure, but not denounced (*) by name, is called 
 a tolerated person and several exceptions are made in his 
 favour. 
 
 4. The Interdict or, as it is often called, the Anathema is 
 a still severer form of punishment. It appKes both to 
 persons and places, and those to whom it applies are cut off 
 from all the offices of the Church (^). 
 
 5. In all cases a sentence pronounced by one Bishop 
 must be observed by others, until it is remedied on 
 
 Gratian, Caus. xi. Qu. iii. c. 16, 17, 18, 22-24, 26-29, 102-105, 110. 
 Concil. Carthag. iv. Can. 73, Ibid. o. 19 : Qui eommunieaverit vel 
 oraverit cum excommunicato, si laious est excommunioetur, si elericus 
 deponatur. 
 
 (») See Gratian, Caus. xi. Qu. iii. c. 106. 
 
 (2) See Gratian, Caus. xi. Qu. iii. c. 108. 
 
 P) See Honorius, ap. Gratian, Caus. xi. Qu. iii. c. 20. 
 
 (*) Urhanus a.d. 1095 mentions those excommunicated but not nomi- 
 natim. Gratian, Caus. ix. Qu. i. c. 5. 
 
 (») Pseudo Isidore ap. Gratian, Caus. iii. Qu. iv. c. 12. See Concil. 
 Eliberitan. Can. 52, ap. Gratian, Caus. v. Qu. i.e. 3, also Decret. Greg. IX. 
 Lib. V. Tit. xxxiii. c. 25. 
 
 2 
 
196 The Elements of Canon Law. 
 
 appeal ('). Yet a Bishop should not pass sentence in a 
 case which concerns himself f), nor except for grave 
 reason (') and according to law (*). 
 
 (i) Concil. Niesen. Can. 5. Concil. Antioch. Can. 6, a.d. 332, ap. 
 Gratian, Cans. xi. Qu. iii. o. 2 and 3, 7-10. 
 
 (J') Ambrosius ap. Gratian, Caus. zxiii. Qu. iv. c. 27. 
 
 (8) Not for captiousness or party spirit. Concil. Niesen. Can. 5. 
 
 (*) See Gratian, Caus. xxiv Qu. ii. c. 6-13, 16, 18, 19, 20-25, 37. 
 
( 197 ) 
 
 PART IV. 
 
 OF CERTAIN EXTENSIONS OP CHURCH ORGANISATION IN 
 MEDIiETAL AND MODERN TIMES. 
 
 CHAPTEE LXXVI. 
 
 CHANGE IN THE CHURCH'S POSITION IN THE 12tH CENTURY. 
 
 1. A GREAT change came over the relations of the Church 
 to the world in the West during the 12th century. Pre- 
 viously to the time of the first Lateran Council, a.d. 1123, 
 the Church had held in Cis- Alpine Europe, the position 
 of a Missionary Institution. After the fourth Lateran 
 Council, A.D. 1215, it appeared as a powerful and united 
 Spiritual Empire, the equal and the superior of the revived 
 Koman Empire. It had everywhere obtained considerable 
 property, and its hierarchial government was thoroughly 
 well organized. On the other hand it included among its 
 members many who had been hastily converted and who 
 had forgotten or ignored its note cif holiness ; and thus too 
 often the end was sacrificed to perfect the means. 
 
 2. The change in its position afi'ected principally three 
 points : — 
 
 (1) The Diocesan system, which was curtailed and 
 modified by the creation of a number of Sub-units of 
 Jurisdiction such as Parishes, Colleges, Orders. 
 
198 The Elements of Canon Law. 
 
 (2) Eucharistic Worship, since, as a sequel to the rise 
 
 of the Parochial system, a Divine Office, Holy 
 Places and Holy Times were set apart for regular 
 observance away from the Cathedral Church and 
 Episcopal superintendance. 
 
 (3) The administration of discipline, which was in 
 many points remodelled to suit the altered state 
 of things. 
 
( 199 ) 
 
 DIVISION I. 
 
 MODIFICATION OF THE DIOCESAN SYSTEM— SUB-UNITS OF 
 JURISDICTION. 
 
 CHAPTER LXXVII. 
 
 THE ENDOWMENT OP THE CHUECH. 
 
 1. Although the Diocese, as beingthe district presided over 
 by one Bishop, is the lowest unit of Church Administration, 
 yet the acquisition of property by several bodies within the 
 Church other than the Diocesan unit obscured in time the 
 knowledge of that fact. This it did in more ways than 
 one : (1) It prevented the natural increase in the number 
 of Dioceses by subdivision as populations increased ; for the 
 means necessary for the maintenance of new Bishops and 
 Chapters had been in other ways already disposed of : and (2) 
 it raised up within the Diocese a number of Sub-units, such 
 as Parishes ^.nd religious Foundations, some subsidiary 
 
 (1) Kennet's Parochial Antiquities gives the following account of the 
 origin of the Parochial System : For the first six or seven centuries, the 
 Faroehia was the Diocese cr Episcopal District, wherein the Bishop and 
 his Clergy lived together at the Cathedral Church ; and whatever were the 
 tithes and obligations of the faithful, they were all brought into a common 
 fund, from whence a continual supply was had for support of the Bishop 
 and his College of Presbyters and Deacons, for the repair and ornaments 
 of the Church, and for other suitable works of piety and charity. . . . 
 
 While the Bishops thus lived amongst their Clergy. . . the stated 
 
200 The Elements of Canon Law. 
 
 to, others more or less exempt from the Bishop s 
 Jurisdiction, but all overshadowing the ancient rule 
 according to which the Bishop of the Diocese, acting with 
 the advice of his regularly attached clergy the Chapter, is 
 the source and centre of Church Administration. 
 
 2. The several steps by which the Diocesan system was 
 modified were, (1) the acquisition of property by certain 
 bodies within the Church, other than the Diocesan Church 
 unit, (2) the creation of Parishes as Sob-units within the 
 Diocese in consequence thereof, and (3) as a further 
 consequence, the foundation of Colleges and Eeligious 
 Houses, claiming in all cases to be extra-parochial and in 
 many to be extra-diocesan. 
 
 services or public offices of religion were performecT only in those single 
 Choirs, to which the people of each whole Diocese resorted, especially at 
 the more solemn times and seasons of devotion. But to supply the 
 inconveniences of distant and difficult access, the Bishop sent out some 
 Presbyters into the remoter parts to be itinerant preachers, or occasional 
 dispensers of the word and Sacrament. Most of these Missionaries 
 returned from this holy circuit to the centre of unity, the Episcopal 
 College, and had there only their fixed abode. 
 
 Yet some few. . - wben they saw a place more populous and a people 
 zealous, built there a plain and humble conveniency for divine worship. 
 And while the necessities of the country were thus upon occasion supplied 
 it did not alter the state of the ecclesiastical patrimony. 
 
 Sometimes the itinerant preachers found encouragement to settle 
 amongst a liberal people, and by their assistance to raise up a Church 
 and a little adjoining manse. . . . But the more ordinary and standing 
 method of augmenting the number of Churches depended on the piety of 
 the thanes or greater lords ; who having large fees and territories in the 
 country, founded Churches for the service of their families and tenants 
 within their dominion. It was this gave a primary title to the patronage 
 of laymen. It was this made the bounds of a Parish commensurate to 
 the extent of a Manor. . . . and it was this distinct property of lords 
 and tenants that by degrees allotted new Parish bounds by the adding of 
 new auxiliary Churches. 
 
( 201 ) 
 
 CHAPTEE LXXVIII. 
 
 CHURCH PEOPEETT. 
 
 1. The Church of Christ is a great Corporation. As 
 such it would appear capable of possessing land and property 
 like any other Corporotion which the Civil Law allows. 
 The Church, however, cannot assume the rights of owner- 
 ship without incurring the duties of citizenship and so 
 bringing itself under the grasp of the Law of the land ; and 
 inasmuch as it belongs to no nation or state in particular 
 but to all, it is difficult to see how it can own land and pro- 
 perty anywhere without detriment to its Catholic character, 
 except where it is itself supreme temporal Governour. 
 
 2. On the other hand as Civil Governours can pronounce 
 certain individuals disqualified from holding property under 
 their protection f), so they can, and usually do declare all 
 Corporations disqualified to act as Persons unless they have 
 previously obtained their approval. In England a Corpora- 
 tion must have been treated as such time out of mind, or it 
 must have obtained a Charter of Incorporation, and even 
 then its power of possessing landed property is strictly 
 limited. 
 
 3. The Law of England has never recognised the Church 
 
 (') Owing to the vague use of the term Church, many of the questions 
 arose as to changes of ownership which are answered by Gratian, Caus. 
 xxiii. Qu. vii. 
 
202 The Elements of Canon Law. 
 
 of Christ as a legal Corporation capable of holding property 
 within this realm, partly perhaps because it conceived that 
 although its members might as individuals own property in 
 the world, yet the Church as a whole, being Christ's 
 Kingdom not of this world, ought not so to do ; partly also 
 because the Church as being independent of any particular 
 nationality was regarded as an alien body and the majority 
 of its members as aliens. Neither has it allowed corporate 
 rights until quite recent times 0, and then only in a limited 
 way and under its own management even to the Branch 
 of Christ's Church or National Church within the kingdom 
 which is the aggregate of all the Church units or Dioceses 
 therein. 
 
 (2) There are two Corporations known to English Law which in a 
 certain way represent the Church of England. These are (1) Queen 
 Anne's Bounty, (2) and the Ecclesiastical Commissioners. The former 
 represents the Pope's interest in the English Church, viz : the right to 
 first-fruits and tenths, which by 26 Hen. VIII. c. 3, were taken from him 
 and annexed to the crown of England. These first-fruits and 
 tenths continued to form part of the revenues of the crown 
 until the time of Queen Anne, when she resolved to apply them for the 
 augmentation of the livings of the poorer Clergy. Accordingly an Act 
 was passed 2 and 3 Queen Ann, o. 20, authorising the Queen to establish 
 a Corporation for that purpose. This Corporation according to its 
 Charter consists of the Archbishops, Bishops, Deans, the Speaker, 
 Master of the EoUa, Privy-Councillors, Lieutenants, and Custodes 
 Eotulorum of the Counties, Judges, Serjeants of Law, Attorney and 
 Solicitor General, Advocate General, Chancellors and Vioe-ChanceUorg 
 of the two Universities, Mayor and Aldermen of the City, and Mayors of 
 other cities, to which certain others have been subsequently added, and 
 its object is to augment the maintenance of the poor Clergy. The 
 Ecclesiastical Commissioners are a Corporation established by 6 and 7, 
 WiU. IV. e. 77, and 3 and 4 Vict. e. 1 13, and subsequent amending 
 Statutes with power to take the Estates of the then greater Church 
 Corporations, and out of them after assigning Salaries to the present 
 holders to make better provision for the cure of souls in parishes where 
 ench assistance is most needed. 
 
Church Property. 203 
 
 4. There are, howeYer, certain ecclesiastical Units and 
 Sub-units which it allows to hold property, not, however, 
 treating those units themselves as corporations, but those 
 who represent them. Such are, the Church of the Diocese 
 as represented by the Bishop and Chapter ; the part of that 
 Church within a County as represented by the Archdeacon ; 
 a Parish as represented by a Parson or Vicar ; and a College 
 or Foundation. Bishops, Archdeacons, Parsons, and Vicars 
 are called Corporations Sole. So also is a Dean and each 
 member of a Chapter in right of his Prebend. Chapters 
 and Colleges are called Corporations Aggregate. 
 
204 llie Elements of Canon Law, 
 
 CHAPTEE LXXIX. 
 
 PROPERTY OF THE CHURCH-XINIT. THE DIOCESE, 
 
 The Bishop and the Chapter together appear originally 
 to have formed one Corporation, representing the Church 
 of- the Diocese. Gifts of land or money made to the 
 Church, were made to them 0, and they determined the 
 application thereof. 
 
 1. The old rule required the Division of all Church 
 revenues (") into four equal parts, one for the Bishop, one 
 for the Clergy of the Diocese i.e. the members of the 
 Chapter 0, one for the fabric of the Church (*), and one for 
 the poor (*) . 
 
 When extensive gifts of land or benefices were made to 
 the Church, and those lands were held subject to feudal 
 duties, it was found more convenient that they should be in 
 the hands of individuals capable of discharging those duties. 
 Hence a division was made of the Church Estates into two 
 
 (1) See Gratian, Caus. xvi., Qn. i. u. 55-57 ; Qu. ii. u. 3. 
 
 (') It required all revenues to go into a common fund ; see Gratian, 
 Caus. xvi. Qu. i. o. 55-58. 
 
 (3) Gregorius ap. Gratian, Caus. xvi. Qu. i. e. 63. 
 
 (^) As to the fabric, see Conoil. Toletan. xvi. Can. 5, a.d. 693, ap. 
 Gratian, Caus. x. Qu. iii. o. 3. 
 
 (^) Gelasius in Epist. ad Brulios c. 29, ap. Gratian, Caus. xii. Qu. ii. 
 u. 27. Simplioius, Ibid, c, 28. Gregorius, Ibid. c. 29, and 80. 
 
Property of the Church Unit. — The Diocese, 205 
 
 parts 0, one of which was held by the Bishop as a Corpor- 
 ation Sole for his own use and that of the poor 0, and the 
 other of which was held by the Chapter as a Corporation 
 Aggregate for their own use and that of the fabric. The 
 former were called Episcopal; the latter Chapter Estates, 
 and a trace of the original joint-ownership survives still in 
 the fact that neither Bishop (') nor Chapter (*) can alienate 
 without the consent of the other f) . 
 
 2. Although in the view of the Common Law, the 
 Bishop and the Chapter are regarded as Corporations 
 having the absolute ownership of their respective Estates, 
 yet in the eyes of the Canon Law they are deemed to hold 
 them for the use of the Church, and are considered bound to 
 administer them as stewards for the good of the Church f) 
 
 C) Conoil. Aurelianense i. Can. 16, a.d. 611, ap. Gratian, Cans. x. 
 Qu. i. c. 8 decrees, ut de his qns in altario oblatione fidelium confer- 
 untnr, medietatem sibi episcopus vendioet, et medietatem sibi dispen- 
 sandam secundum gradus olerus acoipiat. Phillimore's Ecclesiastical Law 
 p. 155 confirms the above. 
 
 (^) Conoil. Aurelianense i. Can. 18, a.d. 511 ap. Gratian I. Dist. Ixxxii, 
 c. 1 Episcopus pauperibus vel infirmis, qui debilitate faoiente non 
 possunt suis manibus laborare, victum et vestitum, in quantum sibi 
 possibile fuerit, largiatur. 
 
 (^) Authorities ap. Gratian, Caua. xii. Qu. ii. v. 18 to 20. 
 
 (^) Concil. Agathens. Can. 22, a.d. 506, ap. Gratian, Caus. xii. Qu. ii. 
 c. 32, 35, 41, and 42. 
 
 (5) Alienation is allowed for the purpose of redeeming captives by the 
 Universal Synod, Can. 15, a.d. 869, ap. Gratian, Caus. xii. Qa. ii. c. 13 ; 
 also Ibid. c. 14, and 15. Conoil. Carthagin. ap. Gratian, Caus. xii. 
 Qu. ii. c. 51, 70, 73. In oases of doubt, the primate must decide upon 
 the validity of the reason ; see Conoil. Carthagin. Can. 26, a.d. 409, ap. 
 Gratian, Caus. xvii. Qu. iv. c. 39. 
 
 (*) See the authorities ap. Gratian, Caus. x. Qu. ii. and Qu. iii. c. i. 
 to 3 ; also Gratian, Caus. xii. Qu. i. c. 13. Concil. Antioch. Can. 25- 
 Ibid. c. 23, 24, 26, and 27. Decret. Greg. IX. Lib. iii. Tit. v. c. 3. 
 
206 The Elements of Canon Law. 
 
 and not for themselves only Q. They are therefore 
 liable to give an account of their stewardship to a superior, 
 which is one of the duties of Visitation, but in England the 
 Visitor's legal power of controlling their administration 
 is hardly more than a shadow. 
 
 (1) Hence the gravity of the offence when Church property is given 
 to laymen, Gratian, Caus. xii. Qu ii. 
 
( 207 ) 
 
 CHAPTER LXXX. 
 
 EFFECTS OF CHURCH PROPERTY. 
 
 The acquisition of property by the several Church 
 Officers permitted to hold it as Corporations Sole or 
 Aggi-egate has had a twofold effect. It has (1) enhanced 
 the worldly position of those Officers, and (2) brought them 
 largely under the control of the Civil Power. 
 
 1. It has raised their worldly position by making them 
 DO longer almsmen living off the gifts of the faithful and 
 dependent on the good-will of the laity, but free and indepen- 
 dent land- owners, having fixity of tenure, invested with the 
 rights and duties of feudal holdings, and as such ranking 
 with laymen similarly placed ; and it has also to that extent 
 made them more independent of their hierarchial superiors. 
 
 2. On the other hand it has brought the holders of all 
 offices in the Church to which freeholds are attached 
 within the purview of the laws of the realm, so that not 
 only can appointments to them only be made in a way 
 which the Law of the land allows, but removal from them 
 can only be permitted upon proof of misconduct, such as 
 the Law of the land recognises as sufficient cause, and none 
 
 f}) Prescriptions are in England cognisable by tbe Secular Tribunals 
 This is not contrary to the reason for a thirty years' preFcription laid 
 down by Gelasius, ap. Gratian, Caus. xiii. Qu. ii. o. 1. 
 
208 The Elements oj Canon Laio. 
 
 of the implied trusts whicli the Canon Law lays down can be 
 enforced against the holders. 
 
 3. So long as any temporalities are attached to Chm-ch 
 offices, the State as supreme over all property must in cases 
 of dispute be the ultimate court of appeal for determiuing 
 whether its laws have been complied with or not whenever 
 a charge is brought against any one for a supposed derelic- 
 tion of duty Q). 
 
 (') By the ancient laws of the Church a Bishop should not litigate for 
 a temporal matter. See Gratian, Caus. xiv. Qu. i. c. 1. Other authori- 
 ties, however, permit an appeal to the Courts rather than to force. 
 Gratian, Caus. xyi. Qu. vi. c. 1. 
 
( 209 ) 
 
 CHAPTER LXXXI. 
 
 THE PAEISH. 
 
 One of the first results of the possession of landed 
 property by the Church in feudal times has been the creation 
 of Parishes . 
 
 1. A Parish may be defined in several ways. Ecclesiasti- 
 cally it is an arbitrary district or part of a Diocese belong- 
 ing to one or more land-owners who have combined to build 
 a Church and make an endowment. They who have done 
 this are called Patrons. He who has it is called the Parson, 
 and in respect of him it is called Preferment. Spiritually, 
 it is the Parish, i.e. the district committed to the exclusive 
 ministrations of one Priest called the Parish Priest, whose 
 ministrations are locally supplementary to those of the 
 Bishop and Chapter regularly attached to the Diocese. In 
 respect of Property it is a Benefice, i.e. a district which 
 supplies a maintenance for one Parish Priest who is thence 
 called a Beneficed Clerk. 
 
 2. Apart from its Ecclesiastical Head the Parish is lost 
 in the Diocese at large f) Through him it becomes a Sub- 
 
 (') See Keimet : For the first six or seven centuries the term Parish 
 meant the Diocese or Episcopal District, so that before the division of 
 England into Parishes (as the term is now used) all tithes, offerings, and 
 ecclesiastical profits did entirely belong to the Bishop and his Clergy for 
 pious uses. See Phillimore's Ecclesiastical Law, p. 263. 
 
 (2) Dr. Lushington in Braithwaite v. Hook, Dean of Chichester, pub. 
 by Elliott, Chichester, 1862, p. 8, S. C. 8 Jurist, n.s. 1186, observes : I 
 
 P 
 
210 The Elements of Canon Law. 
 
 unit of the Diocese, a centre for the exercise of a^evtain 
 limited jurisdiction, and its head as representing it is a 
 Corporation or Person in the eye of the law and therefore 
 commonly called the Parson. 
 
 In respect of his ministrations the Parish Priest is only 
 supplementary to the Bishop and Chapter 0- Their 
 jurisdiction and ministrations extend over the whole 
 Diocese ; his only to one part thereof. 
 
 3. The Parish Priest owes his present position f) 
 mainly to three causes : (1) the difficulty of subdividing 
 
 think that Cathedrals existed before the institution of civil parishes, and 
 Lord Coke, the highest of all legal authority, so declares. The course of 
 history seems to have been that originally the Bishop and the Priest 
 subordinate to him were resident in and about the Cathedral . . . that 
 thase subordinate Priests were from time to time sent into the country 
 to discharge ecclesiastical duties, and this by the orders and under the 
 control of the Bishop ; that for the more efficient discharge of those 
 duties the country was marked out by the ecclesiastical authority into 
 parishes, and thus gradually arose Beotories, Yicarages, and Perpetual 
 Curacies .... It is not doubted that the same ecclesiastical authority 
 which marked out the boundaries of parishes for spiritual purposes could 
 in those days alter them. But in course of time .... the civil courts 
 came to determine what were the boundaries of the parishes. But this 
 exercise of such civil jurisdiction over parishes does not, according to 
 Lord Coke, date earlier than 1189. 
 
 (') Concil. Ilerdense, Can. 3, a.d. 546, ap. Gratian, Caus. i.. Qu. i. c. 
 1 : Si ex laicis quispiam a se f actam basilicam consecrari desiderat, nequa- 
 uam ... a diocesaua lege audeat segregare. Concil, Toletan. iii. Can. 
 19, A.D. 589, Ibid. c. 2, Concil. Cabilonense ii. a.d. 813, Ibid. c. 3 ; 
 Decretum est ut omnes ecclesiae .... in episcopi potestate oonsistant, 
 atque ad ordinationem suam semper pertiueant, Concil. Toletan. iv. c. 32 
 A.B. 633 ; Concil. Antioch. Can. 24, a.d. 332 ; Concil. Aurelianense i. Can. 
 17, A.D. 511, Ibid. c. 6, 5 and 7. Concil. Aurelianense i. Can. 19 ap. 
 Gratian, Cans. xvi. Qu. vii. u. 10. 
 
 (2) Perhaps the origin of Parishes may be traced back to the ordinance 
 of Leo, Epist. Ixxxv. c. 2 ap. Gratian I. Dist. Ixxx. u. 4 -. Volumus 
 oanonum statuta servari, ut non in quibuslibet locis, neque quibuslibet 
 
The Parish. 211 
 
 Dioceses, when this inyolved questions of property and 
 therefore required the assent of the Civil Government, (2) 
 the insufficiency of the Capitular Clergy to do the vpork of 
 extensive Dioceses, both in respect of numbers and physical 
 capacity, (3) the preference of the Laity for endowing local 
 resident Clergy instead of contributing to the general funds 
 of the Diocese C). Thus instead of Dioceses being sub- 
 divided as populations increased, and the number of Chapter- 
 titles being enlarged (^) as Chapter-property augmented, 
 Sub-units of ecclesiastical administration were established 
 within the Diocese called Parishes (') . 
 
 4. In respect of property a Parish Priest has not, like the 
 clergy regularly attached to a Diocese, a fixed share or 
 dividend from the general revenues of the Church as his 
 maintenance, but a gift of land or landrights bestowed by 
 the Founder or Patron of a Parish called a benefice ; and 
 inasmuch as feudalism required benefices to be in the hands 
 of those able to discharge the duties with which they were 
 
 castellis et ubi ante non fuerunt, episcopi oonseorentur, cum ubi minores 
 Bunt plebes minoresque oonventus presbyterorum oura suffioiat ; but it 
 would appear that the presbyteri referred to correspond to our members 
 of Chapters from Concil. Laodicenae, Can. 57, Ibid. c. 5, a.d. 363 : Non 
 debere in viois et villis episcopos ordinari, sed visitatores, id est qui 
 cireumeant, oonslitui ; hos autem, qui antehoo, ordinati sunt, nihil agere 
 censemns sine oonsoientia episcopi ciTitatis. 
 
 (') This was permitted by the Bishop in return for certain services or 
 money payments secured to himself. See Chapter Ixxxii. and Gratian, 
 CauB. xviii. Qu. ii. o. 30 and 31. Kennet observes : The division of 
 a Diocese into rural Parishes, and the foundations of Churches adequate 
 to them, cannot be ascribed to any one act, nor indeed to any one single 
 
 (') Decret. Greg. IX. Lib. iii. Tit. v. c. 26. 
 
 (') Gelasius ap. Gratian, Caus. ivi. Qu. xii. c. 26 and 27. 
 
 P 2 
 
212 The Elements of Canon Law. 
 
 burdened, both Bishops and Chapters found it more 
 convenient to follow the example of lay-Patrons by endow- 
 ing Parish Priests with benefices in outlying districts, 
 instead of serving them themselves, by members of the 
 Chapter receiving dividends. Hence Chapters became 
 diminished in numbers and Parishes rapidly increased, and 
 they became nearly universal by the time of the third 
 Lateran Council, a.d. 1179. 
 
( 213 ) 
 
 CHAPTER 
 
 THE PABOCHIAL COBPOEATION. THE PABSON. 
 
 The Parisli is a Sub-unit of the Diocese, which supplies 
 one Priest with a maintenance, and is committed to his 
 spiritual charge. In its corporate capacity it is represented 
 by its spiritual officer, who is, therefore, called the Parson 0. 
 
 1. The endowments of a Parson are not Church property 
 in the ordinary sense of the term, but private property given 
 for the use of a local officer, the parochial minister or Parish 
 Priest. They are not, therefore, subject to the Church's 
 rule, requiring a fourfold division for four separate purposes, 
 neither are they liable to maintain the fabric of the Parish 
 Church, which is the duty of the Patron and hia vassals, but 
 they are a maintenance for a local Clergyman ("). 
 
 Inasmuch as the Endowment of Parishes withdrew 
 tithes and land from the Church of the diocese, it was 
 usual for the Bishop in consenting thereto, to reserve an 
 annual quitrent for himself. This was called a 
 Cathedraticum. It was ordered by several Councils that its 
 amount should not be oppressive f) . It was usually collected 
 
 (1) Lyndwood, p. 117, and Phillimore's Ecclesiastical Law, p. 262. 
 
 C) It is order that a Eeotor should have a sufficient maintenance, after 
 paying the Bishop's and Patron's dues. Decret. Greg. IX. Lib. iii. Tit. v. 
 c. 30. 
 
 (8) See Gratian, Cans. x. Qu. iii. c. 1, 6, 7, 8 ; Cans. xvi. Qu. i. c. 62 
 Decret. Greg. IX. Lib. Ui. Tit. ixxix. It is ordered by Concil- 
 
214 The Elements of Canon Law. 
 
 by the Bishop when he made his Visitation and is better 
 known in modern times by the name of Procurations ('). 
 
 2. "With the consent of the donor or patron, as well as of 
 the bishop, a Parson may contimie to hold these 
 endowments whilst otherwise employed than in his local 
 clerical work, provided he entrust the charge of the Parish 
 to the care of a competent deputy approved by the Bishop 
 and supply him with a proper maintenance f)- This he 
 may do either temporarily or permanently, and whether he 
 be an individual or a religious Corporation. The deputy so 
 appointed is called a Vicar (*). 
 
 3. When such an arrangement has been made as a 
 perpetuity, as in cases where a religious Corporation is 
 the Parson (*), it is called an Appropriation ; and the 
 Corporation which retains the Parson's rights— now, how 
 
 Bracarenae ii. Can. 2, ap. Gratian, Cans. x. Qu. iii. c. 1, that the amomit 
 should not exceed two shillings. See Conoil. Toletan. iii. c. 20. a.d. 589, 
 Conoil. CabUon. ii. Can. 14, a.d. 813. Concil. Toletan. vii. Can. 4, a.d. 
 646, ap. Gratian, Cans. x. Qu. iii. c. 6, 7. 8, also Leo. IV. ap. Gratian, 
 Caus. xyi. Qu. i. c. 62. 
 
 (') Sext. Deoret. Lib. iU. Tit. xx., Clement. Lib. iii. Tit. xiii. Extrav. 
 Com. Lib. iii. Tit. x. 
 
 C) A Vicar was supposed to have small tithes and other endowments 
 to the value of at least one third of the benefice. See PhUlimore's 
 Ecclesiastical Law, p. 272, and the Statutes, 15. £ic. U. c. 6 and 4. 
 Hen. IV. c. 12. 
 
 (3) On Vicarages. See Uecret. Greg. IX. Lib. i. Tit. xxviii ; Lib. iii- 
 Tit. V. c. 10. 
 
 {*) Gregorins, Lib. ii. Indict, ii. Epist. 17, ap. Gratian, Caus. xii. Qu. 
 ii. 0. 75, permits Church property to be given to a monastery. Gratian, 
 Caus. xii. Qu. v. e. 3. Hieronymua ap. Gratian, Caus. xvi. Qu. i. c. 68. 
 See Decret. Greg. IX. Lib. i. Tit. x. c. 2 ; Decret. Greg. IX. Lib. iii. Tit. 
 xiii. 
 
 («) SeeDecret, Greg. IX. Lib. v. Tit. xxxiii. c. 19. The Statute 15,Kic. 
 II. c. 6, provides : In every license to be made in the Chancery of the 
 Appropriation of any Parish Church, it shall be expressly contained, that 
 
The Parochial Corporation. — The Parson. 215 
 
 ever, limited by the appointment of a perpetual Vicar to 
 discharge his duties, (') — is called the Appropriate Eector. 
 
 When an Appropriate Eectory passes into the hands of a 
 layman 0, whereby its rights become stiU further shorn, it 
 is called an Impropriate Kectory, and such an arrangement is 
 called an Impropriation. 
 
 4. The Parson or Eector is a Corporation Sole, who 
 ordinarily represents the Parish. When, however, the 
 Eectory is appropriate, the perpetual Vicar, his deputy 
 becomes also as such a Corporation Sole, and capable of 
 possessing property f). 
 
 the Diocesan of the place upon the Appropriation of such Churches, 
 shall ordain according to the value of such Churches, a convenient sum of 
 money to be paid and distributed yearly of the fruits and profits of the 
 said Churches by those that will have the said Churches in proper use, 
 and by their successors, to the poor parishioners of the said Churches, ia 
 aid of their living and sustenance for ever ; and also that the Vioar be 
 well and sufficiently endowed. 
 
 (') 4 Hen. IV. o. 12, provides: Prom henceforth in every Church 
 Appropriated, there shall be a secular person ordained Vicar Perpetual, 
 canonically instituted and inducted, and convenably endowed by the 
 discretion of the Ordinary to do divine service and to inform the people 
 and to keep hospitality there, and no religious shall in any wise be made 
 vicar in any Church Appropriated. 
 
 (^) Such grants are forbidden as simony by Gregory VII. ap. Gratian, 
 Caus. i. Qu. iii. o. 13. See also Hieronymus, Calixtus, and Damasus, ap. 
 Gratian, Caus. i. Qu. i. u. 13 to 15. If this is dane by lay authority, it 
 deserves excommunication according to Nicolaus ap. Gratian, Caus. xii. 
 Qu. ii. u. 22. Gregorius VII. ap. Gratian, Caus. xvi. Qu. vii. u. 1, 3. 
 Appropriations to laymen, although legal, were strictly forbidden by the 
 Lateran Council of 1179, see Deeret. Greg. IX. Lib. iii. Tit. xxx. o. 19. 
 which was incorporated into English Law ; see Bishop of Winton's casoi 
 1. Salk. 136 ; nevertheless they have been legaUsed in England by 
 Statutes, 29 Hen. VIII. c. 28 and 31 Hen. VIII. c. 13, which granted 
 to the King and his grantees the same interest that the Eeligious Houses 
 had in them. 
 
 (8) See Clement. Lib. i. Tit. vii. and Phillimore's Ecclesiastical 
 Law, p. 279. 
 
216 The Elements of Canon Law. 
 
 CHAPTER LXXXni. 
 
 PABOCHIAIi BENEFICES. 
 
 1. A Benefice is an estate of land or other hereditaments 
 held for life. Such estates are often held by Bishops and 
 Chapters and go to make up the Episcopal or Capitular 
 Revenues whence these ecclesiastics derive their dividends. 
 
 2. There are two kinds of Benefices, (1) those which are 
 called ecclesiastical benefices or prebends, and (2) parochial 
 benefices 0- Cf these the former are much more ancient ; 
 the latter are a creation of Cis- Alpine Christianity and an 
 outgrowth of the feudal system. Parishes had become uni- 
 versal in England by the time of the third Lateran council, 
 A.D. 1179. 
 
 An ecclesiastical or Chapter Benefice is the perpetual 
 right to a fixed share or dividend of the whole ecclesiastical 
 revenues of the diocese available for this purpose, which share 
 is attached to the holding of some ecclesiastical of&ce 
 there 0- 
 
 A parochial Benefice is an estate of land or other here- 
 
 (') A canon should be supplied with a prebend as soon as may be. 
 Pecret. Greg. IX. Lib. iii. Tit. viii. c. 8. 
 
 (2) Such as Major pars Altaris, Tertia pars Altaris, in other cases by 
 composition, such as the Prebend of Pattero and the like. It is ordered 
 that every Canon shall have a Prebend assigned to him so soon as may 
 be after his election. See Decret. Greg IX. Lib iii. Tit v. c. 9 and 19. 
 
Parochial Benefices. 217 
 
 ditaments which has been given by a founder of a Parish or 
 Patron to the Priest nominated by himself and ordained and 
 admitted by the Bishop to minister in the parochial 
 church there. 
 
 3. The effect of the establishment of a Parochial Bene- 
 fice is threefold. Without taking the Parish out of the care 
 of the Bishop and Chapter it (1) gives to the Beneficed clerk 
 a life-holding subject to certain exceptions or canonical dis- 
 abilities which the law of the land allows as just cause of 
 forfeiture. This is called a Freehold. (2) It gives to him 
 exclusive possession of the Church as being his freehold, so 
 that without his consent neither the Chapter nor any one 
 else can use his Church for their otherwise regular minis- 
 trations. This is the right of exclusive ministration within 
 his own Church. (3) It confers a right on the giver or Pa- 
 tron of determining who the Priest shall be that enjoys it . 
 This is called the right of Presentation or Advowson f ) . 
 
 4. Possession of a Benefice is obtained by becoming the 
 holder of the office to which the Benefice is attached. 
 Nevertheless it requires a separate act to give possession 
 of the Benefice itself. Thus in the case of any office 
 involving cure of souls, as that of a parish priest, possession 
 of the office is given by the Bishop or other ordinary 
 
 (1) This right is secured by Conoil. Toletan. ix. Can. 2. ap. Gratian, 
 Caus. xvi. Qu. viii. c. 32. The Patron has no right of depriving. See 
 Leo ap. Gratian, Caus. xvi. Qu. vii. o. 29 and 37. Concil. Cabilonens. 
 ii. Can. 42, a.d. 813, Ibid. o. 38., but he ought to keep up the church 
 which he has founded. Conoil. Toletan. ix. Can. 1 ap. Gratian, Caus. xvi. 
 Qu. vii. c. 31. 
 
 (2) See Decret. Greg. IX. Lib iii. Tit. xxxviii. Sext. Decret. Lib. iii. 
 Tit. xix., Clement. Lib. iii. Tit. xii. 
 
218 The Elements of Canon Law. 
 
 exercising episcopal rights, that of the benefice is given by 
 the Archdeacon or other person having charge of the 
 temporalities. 
 
 The putting of a priest into possession of any of&ce is 
 called either Collation or Institution C)- Collation is a 
 free giving by one who has the right to give, as when a 
 Bishop prefers a clerk to a parish in his own gift. Insti- 
 tution is a giving by one who has the right to give but is not 
 free in the exercise of his right, as when a Bishop institutes 
 a clerk presented to him by a patron. 
 
 The giving an office-holder possession of the temporalities 
 of the benefice attached to his office is called Induction and 
 is done by a symbolical act characteristic of the feudal in- 
 cidents of a benefice. 
 
 5. There would seem to be no rule against exchanging 
 benefices within the same Church for any, even the slightest, 
 reason ; but the changing from one diocese to another is a 
 thing strongly reprobated by the canons 0. 
 
 6. Eesidence f) is absolutely necessary for continuing to 
 hold an office with a benefice attached, because it is necessai-y 
 in order to discharge the duties of the office ; and as no one 
 can reside simultaneously in two places, so it is absolutely 
 forbidden for anyone to hold an office in two Dioceses . 
 
 (1) Decret. Greg. IX. Lib. iu. Tit. vii. 
 
 (^ See authorities, ap. Gratian, Caus. xxi. Qu. ii. 
 
 p) Decret, Greg. IK. Lib. iii. Tit. iv. c. 6, 11, 17. 
 
 {*) Concil. Chalced. Can. 10. a.d. 451; /ijj i^etvai KhTtpiKhi/ iv Svo 
 irdXeai' KaTa\4-ye<r6ai iKK\r]<Tlats Kara, rb airh- Synodus vii Can. 15 ap. 
 Gratian, Cans. xxi. Qu. i. c. 1. Decret. Greg. IS. Lib. iii. Tit. iv. c. 3. 
 Tit. Y. c. 5, 7, 13, 14, 15. 
 
Parochial Benefices. 219 
 
 7. Ordinarily the Founder or Patron retains such an 
 interest in the Benefice attached to a parish or foundation, 
 that in case he himself should fall into poverty, it is bound 
 to supply him with a moderate maintenance C) . 
 
 C) Concil. Toletan. iv. Can. 37, a.d. 633, ap. Gratian, Caus. xvi. Qu. 
 vii. c. 32. 
 
2SJ0 The Elements of Canon Law. 
 
 CHAPTER LXXXrV. 
 
 THE SPIRITUAL CHAEGB OF PARISHES. 
 
 A Parish being tlie district committed to tlie charge of 
 one Priest, and his tenure of the Benefice being a freehold, 
 the Parish Priest holds office for life unless he be deposed 
 by canonical methods on grounds admitted by the civil 
 authority as well as by the ecclesiastical authority to be 
 valid. 
 
 1. Within the Parish he has a certain limited jurisdic- 
 tion under the Bishop as Ordinary, whose Vicar he is in 
 spirituals, as the Churchwardens are in temporals, and he 
 is therefore entitled to the chief seat in the choir and the 
 use of a stole in service time. 
 
 He is responsible (1) for the due performance of divine 
 service, (2) for teaching the faithful by means of preaching 
 and catechising, and (3) for reclaiming heretics or schis- 
 matics, heathens and infidels who may be resident within 
 his Parish. 
 
 2. Although there can be only one Parish priest in a 
 Parish 0, yet a Parish may contain several subdivisions or 
 Chapelries (% each of which may have a priest or Vicar of 
 
 C) Concil. Toletan. ap. Gratian, Caus. xvi. Qu. i. c. 54: Plurea 
 baptismales eoolesise in una terminatione esse non poasunt. 
 
 (2) A Chapel was not permitted to have bells. Deoret. Greg. IX. Lib. v. 
 Tit. zxxiii. c. 10. 
 
The Spiritual Charge of Parishes. 221 
 
 its own, who occupies in his subdivision the same position 
 that the Parish priest does over the whole f). There may 
 also be Chapels and Oratories each with its own separate 
 and irremoveable Clergy. All of these are called incum- 
 bents or perpetual Curates, and because they have some 
 definite maintenance or benefice assigned to them, they 
 cannot be removed without a trial or conviction. 
 
 3. Besides the irremoveable Clergy, there may be 
 assistant Curates to aid a Parish priest in his duties. 
 These are his deputies and entirely under his rule, and 
 are permitted to assist him by a license from the Bishop 
 which may be withdrawn by him at pleasure. 
 
 4. The rule that all clerks who faithfully serve the 
 Church, shall obtain from the Church stipends according 
 to their deserts f) has reference to the several Chapter- 
 places together with the share of revenues belonging to 
 each one, over which the Bishop and Chapter have the 
 control. It does not apply to Parochial Benefices not 
 in their patronage. Bishops and Chapters are further 
 charged to honour rank and learning in appointing to 
 their Benefices 0) ^'^^ to fill up vacancies within six 
 
 (') But ancient Churches may not be mulcted for the benefit of new 
 foundations. See Gratian, Caus. xvi. Qu. i. c. 43 to 45. 
 
 P) Conoil. Agathens. Can. 36, a.d. 506, ap. Gratian, Caus. i. Qu. ii. 
 c. 10 ; Clerioi omnes qui ecclesise fideliter vigilantercjue deserviunt, 
 Btipendia Sanctis laboribus debita secundum servitii sui meritum per 
 ordinationem canonum a saoerdotibus consequantur. Syuodus Eugenii. 
 A.D. 826, Can. 34 ap. Gratian I. Dist. xxxvii. c. 12. A Bishop is 
 required not to show favouritism by Conoil. Toletan. a. Can. 8, a.d. 
 656, and Pseudo-Isidore ap. Gratian I. Dist. Ixxxix. c. 6 and 7. 
 
 (8) 2nd Lateran Council, Can. 16, a.d. 1139. 
 
222 The Elements of Canon Law. 
 
 months. Otherwise the Superior will supply their" 
 negligence Q. This is called Presentation hy lapse. 
 
 5. Those Kving outside the bounds of a Parish have no 
 claims on the services of a Parish Priest, who on the contrary 
 is strictly forbidden to admit them to the Sacraments f) . 
 
 f") 3rd Lateran Council, Can. 8, a.d. 1179. 
 
 (2) See Deoret. Greg. IX. Lib. iU. Tit. xxix. o. 2. 
 
( 223 ) 
 
 CHAPTEK LXXXV. 
 
 THE EESIGNATION OF BENEFICES. 
 
 1. Eesignation is the voluntary surrendering or yielding 
 up of a spiritual charge and benefice into the hands of the 
 superior of whom it is held ('). It differs alike from 
 Deprivation, which is the compulsory forfeiting for good 
 cause, and from Spoliation which is the wrongful losing 
 for no cause of a like interest. Every resignation must 
 be made to the immediate superior f ) 
 
 2. Anyone holding a spiritual charge is competent to 
 resign that charge, provided it be done, (1) regularly ; (-2) 
 for good cause ; and (3) be allowed by the superior. The 
 Church, however, looks on resignation with disfavour Q). 
 
 3. To be regular a resignation must be made ; (1) pure 
 et sponte, i.e., without consideration and willingly (*) ; (2) 
 absolute et simpliciter, i.e., without reserve and uncondi- 
 tionally ; and (3) without fraud or force. Otherwise a 
 resignation is invalid ; and also one to which any reserva- 
 
 f) Deg. p. 1. c. 14. Wats. c. 4. Fairchild v. Gair. Dyer's Bep. 294 (a) 
 n. 6 Godolphin, Abr. 284. 
 
 (2) 1 BoU. Bep. 137. 2 Boll. Abr. 358. 
 
 (S) Gratian. Caus. vii. Qu. i. c. 19, 23, 24, 32, 43. Deoret. Greg. IX. 
 Lib. i. Tit ix. u. 10. 
 
 (*) So all the authorities. See Gayton's case, Owen 12, and and the 
 judgment in Fletcher v. Sondes. See Decret. Greg. IX. Lib. i. Tit. ix. e. 5. 
 and Tit. xl. c. 3 and 4 ; also Lib. ii. Tit. xiii. c. 2 and 3 ; and Lib. v. 
 Tit. iii. i;. 46. 
 
224 The Elements of Canon Law. 
 
 tion or condition is attached save one made for the purpose 
 of exchange C). 
 
 4. A resignation can only be made for good cause 0. 
 The causes allowed are : (1) consciousness of guilt ; (2) 
 bodily ill-health ; (3) deficiency of knowledge ; (4) ill-wiU of 
 the people ; (5) grave scandal, which could not otherwise be 
 avoided; (6) personal irregularity. Before accepting or 
 refusing a resignation, it is the duty of the superior to 
 satisfy himself as to its regularity and also as to the 
 sufficiency of the cause alleged. 
 
 5. The acceptance of aresignation is a quasi-judicial act f) , 
 and is essential to make it effective (*), and render it 
 complete. So long as it is incomplete, it is a mere proposal 
 
 (1) Decret. Greg. IX. Lib. iii. Tit. xix. e. 7 and 8. God. 277. Gibs. 821. 
 1 Still. 33. The Canon Law strictly forbids a Besignation-Bond entered 
 into to make a vacancy for another person. Nevertheless, the practice 
 in England had been otherwise before the decisions in The Bishop 
 of London v. Ffytche and Fletcher v. Sondes. AH undertaMngs to 
 resign being declared illegal by these decisions, the statute 9 Geo. IV. 
 c. 94 was passed legalising Undertakings to resign, which fulfilled the 
 three following conditions : (1) They must be made in favour of a par- 
 ticular person to be named in the undertaking ; (2) The undertaking 
 must itself be lodged in the Begistry within two months of its being 
 executed ; (3) The resignation following must refer to the undertaking ; 
 and unless the person named in the instrument is presented within six 
 months after notice thereof, the Statute declares the resignation null 
 and void. 
 
 (2) Phill. 519, Eeiffenstuel, Lib. i. Tit. ix. n. 34, and the cause must be 
 inquired into. See Decret. Greg. IX. lib. i. Tit. ix. c. 5 to 10, and above 
 Chap. xlii. 
 
 {') So it was decided to be according to English Law in Heiket v. Grey, 
 Ambler 268, yet not such a judicial act but that it can be performed in 
 camera according to the decision in Heyes v. Exeter Coll., 12 Ves. 336. 
 
 (*) Decret. Greg. IX. Lib. i. Tit. ix. c. 4: Rockingham v. Griffith, 
 i Bac. Abr. 472 ; Smith v. Foaves, Noy. 147, God. Abr. 261, Ore. Jac. 63. 
 
Resignation of Benefices. 225 
 
 or tender, and may at any time be withdrawn from the 
 superior's cognisance 0- 
 
 6. Inasmuch as resignation involves actual delivery of 
 possession and is not effected by a mere contract to resign, 
 it can only be made in person (^), and not by deed. Personal 
 attendance before the superior may, however, be dispensed 
 with, and personal attendance before a Notary Public 
 substituted, provided actual delivery of possession is made 
 in the Notary's presence ("), and a Proctor is appointed before 
 him to present such possession to the superior {'). The 
 Proctor so appointed must, however, be furnished with a 
 notarial attestation that an actual surrender has been made 
 before him embodied in a proper instrument called an instru- 
 ment of resignation. Should this be found satisfactory, 
 and that there is a good cause for resigning, the superior 
 may decree acceptance. Kesignation by deed only, unless 
 followed by some act of surrender, is canonically in" 
 operative. (*) 
 
 (1) Beiffenstuel. Lib. i. Tit. 19, n. 38-4Q Becret. Greg. IX. Lib. i. 
 Tit. ix. u. 5. Gone. Vien. in Const. Clem. Lib. i. Tit. iv. Conf. Decret. 
 Greg. IS. Lib. i. Tit. xxxviii. o. 3, i, 10, 13, and Tit. xl. o. 2-4, on Proctors 
 
 (2) Gibs. 822, Deg. p. 1. o. 14, Wats. c. 4. Otho. Athon, 32. 
 Othobon, Athon, 96, Phillimore's Eccles. Law, 510, 512. 
 
 (3) A witness, and much more so, a Notary, can only testify to wbat 
 has personally come before him. See Calixtus, Leo, and Pelagius, ap. 
 Gratian, Cans. iii. Qu. ix. c. 15, 16, 20. 
 
 (*) See Decret. Greg. IX. Lib. i. Tit. xxxviii. c. 1, 3, 4, and 13 
 Clement. Lib. i. Tit. iv., Phillimore p. 518. 
 
 (5) PetruB de Anoharano, sup. Sext. Decret. i. Tit. iii. c. 6, because 
 a deed is only a contract until acted upon, and no contract or agreement 
 to resign can be enforced. The only exception is that by statute 9 Geo. 
 lY. c. 94. 
 
 Q 
 
226 The Elements of Canon Law. 
 
 CHAPTEK LXXXVI. 
 
 FOUNDATIONS. 
 
 1. The possession of property by the Clergy in right of 
 their offices, besides giving to them fixity of tenure, and 
 bringing about the creation of parishes, has affected in yet 
 another way Diocesan Administration, in that it has rendered 
 possible the establishment of Foundations more or less 
 exempt from Diocesan rule and in which the Founders 
 retain a certain interest C). 
 
 2. These Foundations are of three different kinds. 
 They are either (I) simple houses serving as homes for 
 groups of men living together under a common rule without 
 necessarily having a common purse (°). In this case they 
 are called Societies or Congregations. Or, (2) they are Cor- 
 porate Foundations, whether recognised as Corporations 
 by the Law of the land or not, instituted for the advance- 
 ment of some religious or philanthropic work, but standing 
 as units by themselves. Those are called Colleges. Or, 
 (3) they are gi'oups of Foundations or Aggregates of 
 
 (1) Gratian, Cane. xvi. Qu. ii. v. 1 and 6, 7 ; Qu. i. c. 9., Cans, xviii. 
 Qu. ii. c. 1 to 4 ; and therefore may not be made without the Bishop's 
 consent, Gratian, Cans. xTi. Qu. vii. c. 39, Decret. Greg. ix. Lib. iii. Tit. 
 XXXV. Sext. Decret. Lib. t. Tit. vii. c. 4. 
 
 (2) Eomana Synodus, a.d. 826, ap. Gratian, Caus. xvi. Qu. vii. c. 33, 
 34. 
 
 (8) Gratian, CauB. xvi. Qu. vii. c. 40 and 41. 
 
Foundations. 227 
 
 affiliated Congregations combined under a common head 
 and a common rule, situated in many dioceses and even in 
 many lands, and ordered under a special hierarchy of their 
 own. Such are the Monastic and Religious Orders. 
 
 Such Foundations when once made cannot be re-called at 
 will, but they may be removed elsewhere with consent of the 
 Bishop and their members C) . 
 
 (') Deoret. Greg. ix. Lib. iii. Tit. xxxvi. 
 
 Q 2 
 
228 The Elements of Canon Law, 
 
 CHAPTER LXXXVII. 
 
 COLLEGES AND SOCIETIES. 
 
 1. When a body of Clergy live together (^) not bound by 
 TOWS of any kind, nor baving a common pm-se, but free to come 
 and go as tbey please, sucb a body is called a Society or 
 Congregation. The approbation of tbe bishop of the 
 Diocese is suf&cient for the establishment of a new society 
 (") . That approbation implies that the rule has the sanc- 
 tion of the Church, and that the superior has authority over 
 the others. The Society thereby becomes a sub-unit of the 
 Diocese and extra-parochial f). 
 
 2. When on the other hand a body of Clergy living 
 together have a common purse and form a Corporation, 
 such a body is called a College (*). Such bodies are 
 established within a Diocese for some religious work. 
 They are quite independent of Parishes although they often 
 
 P) Sext. Decret. Lib. iii. Tit xvii., Clement. Lib. iii. Tit. xi., Extrav. 
 Lib. i. Tit. vii., Extrav. Com. Lib. iii. Tit. ix. 
 
 {^) Without that approbation monks are irregular, See Conoil. 
 Chaloedon. Can. 23, and Pelagius ap. Gratian, Caus. xvi. Qu. i. c. 17 and 
 18 ; Concil. Agathens. Can 27 ap. Gratian, Caus. xviii. Qu. ii. c. 12, 13, 
 14. 
 
 (8) See Decret. Greg. IX. Lib. iii. Tit. xxxvi. 
 
 (*) Lindwood's definition given by Gibs., 172, is : A chapter is spoken 
 in respect of a Cathedral Church ; a Convent in respect of a Church of 
 Eegulars ; a College in respect of an inferior Church where there are 
 collected together persons living in common. See Decret. Greg. IX. 
 Lib. V. Tit. xxxi. u. 14. 
 
Colleges and Societies. 229 
 
 have the charge of them f). The hest known Corporation 
 of this kind is the Cathedral Chapter f). 
 
 3. Societies and Colleges are of different kinds and bear 
 different names accordingly. (1) "When they have been 
 established to assist the Bishop in the care of the whole 
 Diocese, they are galled Cathedral Chapters; when es- 
 tablished for the service of a Parish or some educational 
 work they are called Colleges, and their Parish a 
 Collegiate Church. The members of such societies are 
 called Canons or Canoniei from the rule which they are 
 supposed to observe, and Prebendaries from the prebends or 
 maintenance which they receive. (2) When the members 
 forming such a Society or College are bound by monastic 
 vows they are called Regulars f ) when they are under 
 no such vows, they are called Seculars. 
 
 All Cathedral Chapters are Corporations or Colleges, 
 but in some cases they are Foundations of Regular Clerks ("), 
 in others of Secular Clerks. 
 
 (J) Decret. Greg. IX. Lib. iii. Tit. zxxv. c. 5 and xxxvii. 
 
 (2) The rule of common life for the Clergy was ordered by Leo IV. 
 A.D. 826, See Gratiau, Caus. xii. Qu. i. o. 3, also Ibid. c. 1-12. 
 
 (') Monks were allowed to hold benefices by Innooentius, Gregorius, 
 and others, ap. Gratian, Caus. xvi. Qn. i. c. 22-25. 
 
 (^) On the obligations of vows, see authorities ap. Gratian, Caus. xvii. 
 Qu. i. and Caus. xx. Qu. iii. As to rash vows, Gratian, Caus. xxii. Qu. 
 iv., Decret. Greg. IX. Lib. iii. Tit. xxxiv. 
 
 (5) The earlier monks were as a rule laymen, so much so that 
 Gregory, Lib. iv.Epist. i. ap. Gratiau, Caus. xvi. Qu. i. c. 2, wrote : Nemo 
 potest et ecclesiastiois obsequlis deservire et in monachica regula ordinate 
 persistere. They are permitted to be clergy by Ambrosius, ap. Gratian, 
 Caus. xvi. Qu. i. c. 21, Decret. Greg. IX. Lib. iii. Tit. xxxi and xxxv. 
 
 (8) Decret. Greg. IX. Lib. iii. Tit. xxxi., Sext. Decret. Lib. iii. Tit. xvi. 
 Clement. Lib. iii. Tit. ix. Extrav. Com. Lib. iii. Tit. viii. 
 
280 The Elements of Canon Law. 
 
 CHAPTER LXXXVIII. 
 
 RELIGIOUS AND MONASTIC OEDEES. 
 
 1. Eeligious Orders are associated groups of faithful 
 men (whether clergy or laymen, whether men or women) 
 estahKshed with a -view to advance Christiaii perfection by a 
 common life according to a rule approved by the Church (^) . 
 
 2. A Society or Congregation is the unit of an Order, 
 the Order itself being an aggregate of affiliated Societies in 
 many Dioceses having a common ruleand a common purse, ad- 
 ministered byoneHead under a graduated hierarchy of its own. 
 
 3. Hence although the approbation of the Bishop of the 
 Diocese is sufficient for the establishment of a Society (^ 
 the approbation of a new Order must come from the collective 
 Episcopate or its representative, as the Pope was in the 
 Middle Ages ('). 
 
 4. The Eeligious Orders best known in the history of the 
 Church are of the four following kinds : 
 
 (^) A clergyman entering a monastery takes his property with him, 
 Gratian, Cans. xvi. Qu. vi. c. 5. Sundry rules on this point are to be 
 found in Gratian, Caus. xviri. Qa. ii. and Caus. six. Qu. ui. and Caus.xx. 
 Qn. i. Qu. ii. 
 
 (2) Concil Chalcedou, Can. 4, a.d. 451 ; toxis 5e /cafl' kniarriv Tr6\ty 
 fiovd^ovras, uiroreToxflai T^ iwiaKS-Trip- A Bishop is ordered not to deprive 
 a Monastery of its property because of the abbot's misbehaviour, but to 
 put him under another abbot, by Concil. Moguntiac, ap. Gratian, Caus. 
 xvi. Qu. vi. c. 7. 
 
 (3) Sext. Decret. Lib. iii. Tit. xvii. Clement. Lib. iii. Tit. x. 
 
Religious and Monastic Orders. 231 
 
 (1) Monastic Orders or Orders of Monks ('), i.e. 
 such as have withdrawn from the world to lead 
 a life of devotion and work within the Cloister- 
 walls f) . These orders consisted atfirst quite as 
 much of laymen as of clergy, and comprised 
 women as well as men. Their rule was to work 
 and to pray in seclusion from the world. They 
 were therefore called Cloistered Monks. Such was 
 the Order of the Benedictines founded by S. 
 Benedict of Nursia at Monte Cassino in 529, 
 which developed into the four great Orders known 
 as reformed Benedictines founded in 780 by 
 Benedict of Aniane, Cluniacs founded by Benno 
 of Clugny in 909, Cistercians founded by Robert 
 of Molesme in 1098, Carthusians founded by S. 
 Bruno, in 1086 f). 
 
 (2) Canonical and Military Orders, i.e. Orders of 
 Canons Eegular and Knights, the former charged 
 with the care of public worship, the latter with 
 the conquest of the Saracens. Such were the 
 Canons Eegular of S. Augustine founded in 1038 
 near Avignon, and the Knights Templars and 
 Hospitallers founded at Jerusalem in 1099. 
 
 (') See Deeret. Greg. IX. Lib. iii. Tit. xxxi. and xxxv. c. 6, 7, 8. Sext. 
 Decret. Lib. iii. Tit. xiv. and xvi. 
 
 {') Cloistered monks may not undertake ministrations outside, See 
 Alexander II. ap. Gratian, Cans. xvi. Qu. i. c. 11. 
 
 (s) Other reformations of the Benedictine rule -were made at Hirschau 
 in 1069, at Vallombrosa about the same time ; at Bursfield in 1425. 
 The English Benedictines were reformed by S. Dunstan c. 900, by 
 Lanfranc in 1072. 
 
232 The Elements of Canon Law. 
 
 (3) Mendicant Orders or Orders of Friars. The rule 
 
 of these Orders was poverty. They were not 
 cloistered. Their Mission was to wander about 
 preaching, and to supplement the shortcomings 
 of the Secular Clergy. Such were the Grey 
 Friars or Franciscans founded by S. Francis of 
 Assissi in 1210, the Black Friars or Dominicans 
 founded by S. Dominic (called Jacobins in France) 
 in 1215, the White Friars or Carmelites founded 
 on Mount Carmel ia 1156 by Berthold of 
 Limoges, and the Austin Friars founded in 1256 
 out of the union of eight minor monastic con- 
 gregations. 
 
 (4) Missionary Orders or Orders of Mission Priests. 
 Most of the post-reformation Orders have been 
 of this land. Amongst the most celebrated is 
 the Order of Jesuits founded by Ignatius Loyola 
 in 1540. 
 
 C) Extrav. Lib. i. Tit. xiv. c. 3. 
 
( 233 ) 
 
 DIVISION II. 
 
 MODIFICATION OP THE EUCHAEISTIC WOESHIP. 
 
 CHAPTEE LXXXIX. 
 
 SUBSTITUTION OF PUBLIC WOESHIP FOR THE EUCHAEISTIC 
 SEEVICB. 
 
 1. The Eucharistic Service or Divine Liturgy C) is the 
 oldest and most important public office of the Church, and 
 for many centuries it was the only one which the Church 
 possessed. Used daily in Apostolic times f), it was like- 
 wise in daily use in mediseval times, in the principal or 
 Cathedral Church of every See, and there celebrated every 
 Sunday or greater Festival, by the Bishop himself in person, 
 or in his absence by the Archpriest or Dean with the 
 Clergy and assembled faithful, in commemoration of the 
 death of Christ and the benefits thereby accruing to His 
 Church. Attendance at this service was of obligation for all 
 Christians ; those who were absent without reasonable 
 
 C) See Chap. lii. and Maskell's Ancient Liturgy of the Church of 
 England. 
 
 (2) Conoil. Agathense, Can. 47, ap. Gratian III. Diat. i. c. 64 ; Can. 
 Apostolorum, 10, Ibid. o. 62 ; Conoil. Aurelianense i. Can. 28, Ibid. c. 65. 
 
 p) Justin Martyr's Apology, i. a. 67. The account giTcn by Pliny, 
 Lib. X. 96, of the Christians' service is ; AfSrmabant hane fuisse sum- 
 mam yel culpae suae vel erroris, quod essent soliti, stato die ante lucem 
 convenire, carmenque Christo quasi Deo dicere sooum invecim, seque 
 
234 The Ekments of Canon Law. 
 
 cause a certain number of times, being considered self- 
 excommunicated. 
 
 2. The enormous extent of some of the early Cis- Alpine 
 dioceses rendered it impossible for those living at a distance 
 to attend the service at the Cathedral Church. Others who 
 had been hastily converted or imperfectly instructed 
 attended, but too ignorant to communicate fitly. Hence 
 arose the demand for some public form of religious service, 
 other than communicating attendance, and out of this gi'ew 
 the practice of being present at the Eucharistic Service 
 vrithout communicating, which was the great Mediaeval idea 
 of Public Worship. 
 
 3. There were, however, other acts of worship of a less 
 public nature, such as the administration of the Sacrament 
 of Baptism, the services of Confirmation, Matrimony, and 
 Burial. Above all there were the regular Hour Services 
 recited at fixed times by the regular or canonical Clergy. All 
 these gave to bystanders the idea of Worship without 
 active participation, and led to the substitution in the popular 
 mind of Public Worship for the Eucharistic Service of the 
 Church. 
 
 Sacramento non ad scelus aliquod obstringere Bed ne farta, ne latro- 
 oinia, ne adulteria committerent. . . quibus peractis morem sibi 
 discedendi fuisse, rnrsusque coeundi ad oapiendum cibum, promiscuum 
 tamen et inuuxium. 
 
( 235 ) 
 
 CHAPTER XC. 
 
 PUBLIC WORSHIP AND THE PAROCHIAL SYSTEM. 
 
 1. The permission granted to individual Priests not 
 regularly attached to a Diocese to administer the Cliurch's 
 Offices in outlying localities away from the Cathedral 
 Church and Episcopal supervision which the rise of the 
 Parochial system brought about, necessitated the regulation 
 of the circumstances under which, and the manner in 
 which that permission might be exercised C). 
 
 2. The rules made for this purpose apply to three points 
 more particularly : — 
 
 (1) The proper form or order of divine service accord- 
 
 ing to which the Eucharist should be administered 
 in Parochial Churches, and also the forms for 
 other permitted services ; these are called the 
 Divine Of&ce and the Hour services. 
 
 (2) The places in which the Eucharistic and other 
 
 services are allowed to be used ; these are called 
 Holy Places, and the rules for making such, are 
 those for the Benediction and Consecration of 
 Churches. 
 
 (1) See Chap, xlvii. 
 
236 The Elements of Canon Law. 
 
 (3) The days and times appointed for the use of the 
 different offices, so that those dependent on the 
 administrations of Parish Priests only might 
 know how and when to present themselves for 
 local worship. These go by the name of Holy 
 Times or Feasts and Fasts. 
 
( 237 ) 
 
 CHAPTEE XCL 
 
 THE DIVINE OFFICE. 
 
 1. The office or form of service prescribed by the Church 
 for the public administration of the Eucharist as well in 
 the principal Church of the Diocese as in subordinate or 
 Parochial Churches, is called the Divine Office or Liturgy. 
 It is set forth in the Missal, or Order for the administra- 
 tion of the Holy Communion which is in force in each 
 particular Diocese. 
 
 2. The outline of this Office comes down from the 
 earliest age of Christianity, but it has from time to time 
 been added to and increased as local circumstances required 
 ('), until it has assumed the form in which it is known to 
 us. 
 
 3. This Office is not therefore everywhere one and the 
 same, but it differs from Diocese to Diocese. Its form 
 is prescribed in every case by the Bishop with the consent 
 of the Chapter, following the use which has been received 
 in the Diocese. Neither the Bishop nor the Chapter may 
 
 Concil. Toletan. iv. Can. 12 ap. Gratian III. Dist. i. c. 54, orders 
 hymns. The Angelic Hymn or Gloria in Excelsia is mentioned by 
 Leo IX., and Nioolaus, Ibid. c. 55 and 56 ; standing during the reading 
 of the Gospel by Pseudo-Isidore, Ibid. a. 68 ; the Sursum Corda by 
 Cyprian, Ibid. a. 70; proper prefaces by Pseudo-Isidore, Ibid. a. 71. 
 Probably the Liturgy which bears the name of S. Clement is the oldest 
 form. It is given in Maskell's Ancient Liturgy of the Church of 
 England. 
 
238 The Elements of Canon Law. 
 
 make changes in it without the consent of the other ; but 
 it is laid down that in making changes every Diocese 
 should aim at uniformity by following the Metropolitan 
 Church C). 
 
 4. The Divine Office in the Western Church is divided 
 into two parts, which bear the names respectively of (1) the 
 Ordinary of the Mass, and (2) the Canon of the Mass f). 
 The former consists of all that is invariable in the Office 
 other than the Canon, and includes the variable part 
 called the Proper of Seasons, which differs from Sunday 
 to Sunday and from Feast to Feast, such as the Collect, 
 the Gospel, and the Epistle. The Canon which is always 
 constant consists of the commemoration of the living and 
 the dead and the words of consecration only. The Ordi- 
 nary of the Mass differs considerably in different Dioceses ; 
 the Canon of the Mass is nearly the same in all the 
 Western uses Q. 
 
 5. Among the best known of the uses prevailing in 
 England previous to the year 1547, are those of Sarum, 
 Bangor, Hereford, and York. That of Sarum, which is the 
 most renowned, was arranged in a.d. 1085 by S. Osmund, 
 Bishop of Sarum, who died A. D. J099. Out of England 
 that of S. Ambrose bears a great name next after the 
 Eoman, likewise those of Paris, Lyons and the Mozarabic. 
 
 ■ (1) Concil. Gerund. Can. 1 ap. Gratian III. Dist. iii. c. 31. 
 
 (2) Decret. Greg. IS. Lib. iii. Tit. xii. c. 6. 
 
 (') Yet even the Canon of the Mass grew gradually. Beda II. relates 
 that Gregory I. added to it three prayers : And dispose our days in Thy 
 peace, and preserve us from eternal damnation, and rank us in the 
 number of Thine elect, through Christ our Lord. 
 
( 239 ) 
 
 CHAPTER XCII. 
 
 THE HOUR SEEVICES. 
 
 1. As early as the fifth century certain services other 
 than the Eucharistic service appear to have been used by 
 some of the Clergy 0- Iii this use they appear to have 
 followed the reported practice of S. Basil of Csssarea. These 
 services consisted chiefly of the Psalms which were arranged 
 for recitation once in the week, certain canticles of the 
 Old and New Testament, followed by readings from 
 the Scriptures and Church writers and ending with a 
 coUect. 
 
 2. When in the sixth century S. Benedict of Nursia 
 founded the great Order which bears his name, and which 
 has been the parent of all subsequent Western Orders, one 
 part of his scheme was to have a perpetual service of praise 
 and prayer upon earth which should represent the continuous 
 worship of heaven. Hence services known as "the hours" 
 were drawn up and appointed to be used by the members of 
 his Society at the first, third, sixth, and ninth hours, as 
 
 P) Pelagius mentions "yigilias quotidianas " circa 555 a.d., ap. Gratian 
 I. Dist. xci. c. 1, and Hinomar of Eeims, Cap. 9, orders all the hour services 
 as of obligation on Clerks, IMd. c. 2. Matins and Vespers were enjoined on 
 the Clergy by Martin ex Concil. Tolet. i. a.d. 400, ap. Gratian I. Dist. xoii, 
 C.9. 
 
 (2) Concil. Agathense, Can. 30 ap. Gratian III. Dist. v. c. 13. 
 
240 The Elements of Canon Law. 
 
 well as at the hours of sunset and sleep, at midnight and 
 early davra f). 
 
 3. From S. Benedict the idea was borrowed by the 
 Bishops and Capitular Clergy, and was embodied ia a rule by 
 Chrodegang, bishop of Metz who died a.d. 7 66. The clergy 
 who lived under this rule were called Canons, and as it was 
 usually adopted by most Cathedral establishments, the 
 members of these were iu consequence called Canons also. 
 Other bodies of Secular clergy who likewise adopted this rule 
 were the Austin Canons. 
 
 4. The Hour Services constitute a book called the 
 Breviary, which is intended for the use of the Monastic 
 Orders and the Clergy. (*) Out of it the Morning and 
 Evening Prayer of the English Church have been compiled, 
 which like the original are ordered to be recited daUy by aU 
 persons consecrated to God ('). 
 
 (1) The seven Day Hours are commemorated in the Old English rhyme : 
 At Matins hound, at Prime reviled, condemned to death at Terce, 
 Nailed to the cross at Sext, at Nones His sacred side they pierce ; 
 They take Him down at Vespertide, in grave at Compline lay, 
 
 Who thenceforth bids His Church observe her sevenfold Hours alway. 
 
 Besides these Day Hours there was also the night hour service called 
 Lauds said at midnight. 
 
 (2) SeeDecret. Greg. IX. Lib. iii. Tit. xli. c. 1 and 9. 
 
 (') See Hieronymus on heart-service ap. Gratiau L Dist. xcii. 
 Decret. Greg. IX. Lib. iii. Tit. jdi. 
 
( 241 ) 
 
 CHAPTER XCIII. 
 
 HOLY PLACES. 
 
 1. For the proper performance of the Pablic Worship of 
 the Church (^) a suitable building is necessary. Such a 
 building is improperly called a Church (") because it is the 
 gathering place of the members of the Church. 
 
 2. Ever since Christianity ceased to be persecuted every 
 Diocese and every Bishop has had its Church, vrhioh as 
 being the place where the Bishop usually mioisters, and 
 where he has his seat or cathedra, is called his Cathedral 
 Church. All the other buildings in a Diocese in which 
 services are ministered are lesser or subsidiary Churches 
 and none may be used as such without the Bishop's leave 
 first had and obtained (s). 
 
 3. In the Cathedral Church (the arrangements of which 
 have been followed in Collegiate and Parochial Churches to 
 a great extent) a distinction is made between the part 
 reserved for the use of the Clergy (*) and the part open for 
 the use of the faithful generally. The former is called the 
 
 (1) Conoil. Attrelian. ap. Gratian III. Dist. i. u. 9, Concil Bracarensc, 
 Ibid. c. 10. 
 
 (2) Deoret. Greg. IX. Lib. iii. Tit. xlviil. xlix. 
 
 (s) Concil. Aurelian. Can. 3, a.d. 824, ap. Gratian III. Dist. i. c. 33 ; 
 vi. Synodus, Can. 31, a.d. 692, Ibid. c. 34. 
 
 («) Decret. Greg. IX. Lib. iii. Tit. i, e. 1. 
 
 B 
 
242 The Elements of Canon Law. 
 
 Choir in a Cathedral Church. In a Collegiate or Parish 
 Church it is commonly called the Chancel because divided 
 off from the rest by Cancelli. 
 
 4. In the earlier Cathedrals which followed the form of a 
 basilica and had an apsidal end, the Clergy sat round the 
 apse, the Bishop's seat being in the middle at the extreme 
 end (^) whilst the Altar stood in front of the apse between 
 the Clergy and the people. 
 
 5. In later times and in lesser Churches it was usual to 
 divide the Choir or Chancel into two parts, called respec- 
 tively the Choir and the Sanctuary, the Choir being the 
 part in which the Clergy had their fixed seats according to 
 their ecclesiastical rank, the Sanctuary being the place for 
 the Altar and those there ministering. Within the 
 Sanctuary the only rank allowed is that belonging to the 
 ofBciator's office. 
 
 (1) ■ Concil. Carthag. iv. Can. 35 ap. Gratian I. Dist. xcv. <;. 10. 
 Episcopus in eccleBia et in consensu presbyterorum snblimior sedeat. 
 
( 243 ) 
 
 CHAPTER XCIV. 
 
 THE BENEDICTION AND CONSECRATION OF CHURCHES. 
 
 1. Before a building can be used for the Eucharistic 
 Service in any Diocese, whether permanently as a Parish 
 Chiu-ch or Parochial Chapelry, or temporarily in an 
 emergency, it is necessary that the leave of the Bishop be 
 first asked and obtained ('). 
 
 In the case of a building which is only intended to be 
 used temporarily, it is sufficient that the Bishop's leave be 
 given by a simple License. 
 
 2. When such a building is intended to be used perma- 
 nently as a Church, this may be done by a ceremony called 
 Benediction, which is the dedication of the building to 
 holy purposes f). Benediction may be performed by a 
 Priest properly authorised to perform it. 
 
 3. Consecration which should follow, though it was 
 
 (') Gratian III. Dist. i. c. 33, 84, 35. No money payment may be 
 made for consecration. See Conoil. Cabilouense. Can. 16, a.d. 813. ap. 
 Gratian, Cans. i. Qu. i. e. 106. Concil. Bracarens. ii. Can. 5, a.d. 572,.ap 
 Gratian, Cans. i. Qu. ii. c. 1. Gregorius ap. Gratian, Cans. i. Qu. iv. u. 
 11 : Ecclesia quae paetione conseorata fuerit, potius execrata quara 
 conseorata dioi debet. Deoret. Greg. IX. Lib iii. Tit. xl. 
 
 {") Conoil. Triburiense ap. Gratian III. Dist. i. c. 12. Missarum 
 solennia non ubique sed in locis ab Episoopo consecratia yel ubi ipse 
 permiserit, celebranda esse ctnsemus. Ibid. a. 9, 11, 13, 14, 15, 25. 
 
 B 2 
 
244 The Elements of Canon Law. 
 
 often deferred for a long time Q), is a mucli more solemn 
 rite ('). It is exclusively an Episcopal Act, and consists 
 in anointing the building with Holy Oil, and it also 
 requires the keeping of a Vigil or Wake and the Celebra- 
 tion of the Eucharist Q), and is ordered not to take place 
 ■without relics (*). Twelve crosses are cut in the walls 
 to mark the Dedication. By Consecration the ground and 
 buildings are hallowed. And such is the effect of this 
 hallowing that so long as any part of the buildings remain 
 the place is still considered consecrated, nor is any new 
 
 (1) By a Constitution of Othobon ap. Athon 7. it is enacted: "The 
 dedication of Chnrches is known to have had its beginning under the 
 Old Testament etc. . . Now because we have seen and heard, that so 
 wholesome a mystery is contemned or least neglected by some ; having 
 found many Churches, and some of those Cathedrals which although 
 they have been buUt of old time, yet have not as yet been consecrated 
 with the oil of sanctification ; therefore, being desirons to remedy so danger- 
 ous a neglect we do decree, that all Cathedral, Conventual and Parochial 
 Churches which are now built, and the walls thereof perfected, be conse- 
 crated by the Diocesan Bishops or others authorised by them within 
 two years ; and let it be so done within the like time in all Churches 
 hereafter to be built." A constitution of Othobon ap. Athon 83 enacts : 
 " The Eector or Vicar of an unconsecrated Church shall apply to the 
 Bishop, if it can conveniently be done, otherwise to the Archdeacon that 
 he may apply to the Bishop within m year after the building of the 
 Church, for the consecration thereof ; upon pain that such Bector, Vicar, 
 or Archdeacon making default shall be suspended from his office till he 
 comply ; and the Bishop shall exact nothing therefor but the accustomed 
 Procuration." 
 
 (2) FeUx ap. Crratian III. Dist. i. c, 11. Concil. Meldense, Ibid. 
 c. 18. 
 
 (') Hyginus ap. Gratian III. Dist. i. c. 3. 
 
 (*) Gregorii Dialogus III. c. 30 ap. Gratian III. Dist. i. c. 22. Concil. 
 Africanum, Can. 50, Ibid. c. 26. When a Church ceased to be used as 
 such the relics were to be removed. See Gratian Cans. xvi. Qa. vii; c. 
 35 and 36. 
 
The Benediction and Consecration of Churches. 245 
 
 consecration permitted unless it be polluted by bloodshed 
 or other offence. (') 
 
 4. Certain privileges attach to consecrated places (^), 
 which are considered so sacred that the remains of things 
 consecrated to God, whether Church materials or vestments, 
 are not to be diverted to secular purposes (') but when 
 done with to be burnt. No fee may be demanded for con- 
 secrating a Church (*) 
 
 (1) ConcU. NicEen. ap. Gratian III. Dist. i. o. 20. Vigilius, Ibid. c. 
 24. Concil. Martini, Ibid. a. 29. Deeret. Greg. IX. Lib. iii. Tit. xl. 
 Sext. Deeret. Lib. iii. Tit. xxi. 
 
 (2) See authorities ap. Gratian, Cans. xvii. Qa. iv. c. 32-36. Extrav. 
 Com. Lib. iii. Tit. xiii. 
 
 P) Hyginus. ap. Gratian III. Dist. i. o. 38. 
 
 (*) Concil. Bracarens. ii. Can. 5 ap. Gratian Cans. i. Qu. ii. e. 1. 
 Cono. Cabil. c. 16, Ibid. Qu. i. c. 106. Deeret. Greg. IX. Lib. v. Tit. 
 iii. e. 9. 
 
246 The Elements of Canon Law. 
 
 CHAPTEE XCV. 
 
 HOLY TIMES. FEASTS AND FASTS. 
 
 1. The observance of certain days and seasons as Holy 
 times is a practice coeval with the existence of Chris- 
 tianity. The institution of some such times is of Apostolic 
 origin, that of others is of ecclesiastical ordering. Sunday, 
 Easter, Lent, and Pentecost have been kept from Apostolic 
 times. Christmas and the Festival of the Trinity, the Feasts 
 of Martyrs and Confessors, are of subsequent ecclesiastical 
 appointment. 
 
 2. Sunday was kept as a Holy day from the very first 
 in weekly remembrance of the resurrection of the Church's 
 Founder. It did not, however, at first supersede the Sabbath, 
 which was kept as a day of rest by such Christians as still 
 adhered to Jewish traditions. There was, however, this 
 difference between the two, that Sunday was kept as a day 
 of rejoicing or Feast day, whereas Saturday was kept as 
 the Sabbath, as a day of asceticism and rest from work. 
 Friday, too, was remembered as the weekly commemo- 
 ration of Christ's death. 
 
 Easter (') and Lent Q were greater seasons of ecclesi- 
 astical observance. So, too, was Pentecost or Whitsuntide, 
 
 (J) Concil. Lugdunens. ap. Gratian III. Dist. iii. c. 1. 
 
 (») S. Matt, xxviii. 1. 
 
 (8) Gratian III. Dist. iii. <;. 22 to 26. 
 
 (*) Authorities, ap. Gratian III. Dist. iii. o. 6, 7, 8, 9-17, and iii. Dist. 
 
Holy Times. — Feasts and Fasts. . 247 
 
 all of whicli date from Apostolic times. Easter, as being 
 the annual commemoration of the Christian's deliverance 
 from the wilderness of the world to a new life through 
 the resurrection of Christ, was kept as a time of rejoicing 
 and as the greatest Festival of the Church. It was con- 
 sidered the Christian equivalent of the Jewish Feast of the 
 Passover. Lent, heing regarded as a season of mortification 
 for sin and of preparation for the coming deliverance, was 
 treated as a Fast. Whitsuntide was the Festival of 
 CathoKcism commemorating the outpouring of the Spirit 
 on all flesh. 
 
 3. In addition to the above Feasts and Fasts Q), a 
 number of others were introduced into the use of the Church 
 in the fifth and succeeding centuries. Such were the Birth 
 Day of the Saviour or Christmas Day and the Epiphany, 
 introduced in the Western and Eastern Churches 
 respeciively in the 4th century, the Festival of the 
 Annunciation, of the Purification, the Assumption and other 
 Festivals of the Blessed Virgin Mary, the feast of S. Michael 
 and of the Tiinity, the last named not introduced until the 
 14th century, and the several Festivals of Apostles, Martyrs 
 and Confessors, all of which were established with the view of 
 commemorating for the glory of God the gre9,t Saints He 
 has caused to grow up in His Church. For this reason, 
 too, the images of the Saints and relics were held in 
 reverence (^). 
 
 V. K. 16-20, and i. Dist. iv, c. 4-6. In case of necessity, not otherwise, war- 
 fare was tolerated in Lent. See Gratian, Cans, xxiii. Qu. viii. c. 15. 
 
 C) On the observance of Fasts see Deoret. Greg. IX. Lib. ii. Tit. ix. 
 and Lib. iii. Tit. xlvi. 
 
 {') Gratian III. Dist. iii. c. 27-29. Sext. Decret. Lib. iii. Tit. xxii. 
 
248 The Elements of Canon Law. 
 
 On the other hand the Rogation Days ('), or days of 
 intercession for a blessing on the fruits of the earth, and the 
 Ember Days f), or Four Seasons of Intercession for a 
 
 Clement. Lib. iii. Tit. xvi. Extrav. Com.Lib. iii. Tit. xii. 
 
 {') Conoil. Aurelianense i. Can. 29. ap. Gratian III. Dist. iii. c. 3. 
 
 (2) Ember is usually supposed to be a corruption of Tempera. As to the 
 Seasons for ordaining see Decret. Greg. IX. Lib. i. Tit. xi. 
 According to the use of Sarum in the 15th century Feasts were divided 
 into: 
 
 1. Doubles which were of four kinds : 
 
 (1) Principal Doubles — Christmas day, the Epiphany, Easter Day, 
 Ascension Day, Whitsun Day, the Assumption, the Anniversary 
 of the Place, and the Dedication of the Church. 
 
 (2) Greater Doubles — Trinity Sunday, Corpus Christi, the 
 Purification, the Visitation of the Blessed Virgin Mary, the 
 Feast of Eelics, the Name of Jesus, the Nativity of our Lady, 
 and All Saints' Day. 
 
 (3) Lesser Doubles — The 3 days after Christmas, the Circumcision, 
 the 2 days after Easter and Whitsun Days, Low Sunday, Lady 
 Day, the Invention of the Holy Bood, the Nativity of S. John 
 Baptist, the Feas of SS. Peter and Paul, the transfiguration. 
 Holy Cross Day, and the Conception of our Lady. 
 
 (4) Inferior Doubles — The Feasts of SS. Andrew, Thomas, 
 Thomas of Canterbury, Matthias, Mark, Philip and James, James 
 the Great, Bartholomew, Matthew, Luke, Simon and Jude, 
 Gregory, Ambrose, George, Augustine Apostle of England, 
 Augustine Bishop of Hippo, Michaelmas Day, S- Jerome, the 
 translation of S. Edward, King Confessor, the Chair of S. Peter 
 at Antioch and All Souls' Day. 
 
 2. Simples which were either : 
 
 (1) Moveable i.e. all feasts of Nine Lessons and certain feasts of 
 three which occur in Eastertide, called three with Bulers, 
 Octave Days, and Days in an Octave with Rulers. 
 
 (2) Immoveable including all others. 
 
 3. Sundays which were again divided into : 
 
 (1) Principal Sundays— Advent Sunday, Passion Sunday, Palm 
 Sunday. 
 
 (2) Greater Sundays — The 2nd, 3rd, and 4th Sunday in Advent, 
 and all Sundays in Septuagesima and Lent to Passion Sunday. 
 
Holy Times. — Feasts and Fasts. 249 
 
 blessing on those about to be admitted to the Church's 
 Ministry, were ordered to be treated as days of Abstinence 
 or Fast Days. 
 
 (3) Lesser Sundays — Those when Histories begin, and the 5th 
 Sunday after Easter. 
 
 (4) Inferior Sundays — The Sundays after the Octave of the 
 Epiphany imtil Septuagesima, those from the Octave of Low 
 Sunday, to the 5th Sunday after Easter, and all the Sundays 
 after Trinity until Advent. 
 
250 The Elements of Canon Law. 
 
 CHAPTEK XCVI, 
 
 OBSERVANCE OF HOLY TIMES. 
 
 1. In the Apostolic age, it was the daily use of Chris- 
 tians to meet together to shew forth the Lord's death by 
 the breaking of bread and prayer (^) . . At the beginning of 
 the second century these regular meetings appear to have 
 been confined to Sundays and other occasional days 0- 
 After the cessation of persecution in the 4th century and 
 the establishment of Christianity as the state religion, the 
 aim of the Bishops and their Clergy was to re-establish 
 the Apostolic use, and this practice gradually obtained in 
 all Cathedral Churches in the West f), with perhaps 
 occasional interruptions caused by the unsettledness of the 
 times or the worldliness of the Clergy. 
 
 2. It was otherwise in lesser Churches subsidiary to the 
 Cathedral. In these the Eucharistic service was ministered 
 on Sundays and certain Festival days, so far as was 
 possible with the number of clergy available. When, 
 
 (^) Acts ii. 42 : ^(rav Se irpoffKaprepovvTis t^ 5i5o;tp t&v anoffrSXay 
 Kal Tp Koiva>vif^ KaX rp KXatrei tov &pTov Kai rats trpoffevxaist and ii. 46 : Kad, 
 Tjuepau T6 irpoffKapT^povvTGS diJA)6vfjui^hi' ev T^ ^ep^, KKvvris re kot' oIkov 
 ipToy 
 
 {") See Justin Martyr i Apol. c. 67, and Pliny's letter x. 96. 
 
 {'} In the Eastern Church <rvvd^eis appear not to have been held 
 daily but only on Saturdays and Sundays. See Soorates' Eccl. Hist. 
 Lib. vi. c. 8. 
 
Observance of Holy Times. 251 
 
 however, Parochial Churches were founded, and became 
 established sub-units of a Diocese with a limited ordinary 
 jurisdiction of their own under the Bishop, it was ordered 
 that their services should foUow those of the Cathedral 
 Church. In Collegiate and Parochial Churches where 
 there were many clergy, a daily Eucharistic service became 
 the practice. In those under the charge of a single Priest, 
 it sufficed that the Divine Office was used on Sundays and 
 the greater Festivals 0- 
 
 3. The particular Feasts and Fasts to be kept and the 
 manner of keeping tb em are matters within the adminis- 
 trative rule of each Diocesan Bishop with the advice of his 
 clergy. Every Diocese in addition to the greater Feasts 
 of general observance has its own Feasts of Diocesan 
 observance. A Bishop cannot make any change therein 
 without the advice of his Chapter ; but every year on the 
 first day of Lent a Pastoral should be issued by the 
 Bishop to all the faithful of his Diocese, giving instructions 
 as to the time and manner of keeping the appointed 
 Feasts and Fasts. 
 
 4. It is a general rule that on the greatest Festivals 
 all the faithful are required to attend the Eucharistic 
 service either in their Bishop's Cathedral or in their own 
 Parish Church, but not in a Parochial Chapelry f ) ; and 
 
 (1) Deoret. Greg. IX. Lib. iii. Tit. xxix. c. 3. 
 
 (2) Concil. Agathen. Can. 21, a.d. 506, ap. Gratian III. Dist. i. c. 
 135 : Si quia. . . . oratortam in agro habere voluerit, reliquis festivitati- 
 bus, nt ibi missas andiat propter fatigationem familise justa ordinatione 
 permittimus. Pasoha vero, Natali Domini, Epiphania Domini, Ascen- 
 sione Domini, Pentecgste et Natali S. Joannis Baptistse, et si qui maximi 
 dies in festivitatibus habentur, non nisi in civitatibus aut in paroehiis 
 andiant. Gratian Cans. vii. Qu. i. u. 29. 
 
252 The Elements of Canon Law. 
 
 whatever may be tolerated or excused in the case of the 
 Laity, that all of the clergy and monks shall communicate 
 at least once a month (^). Ecclesiastical Courts are 
 forbidden to hold their sittings on all the greater Feasts 
 and Fasts 0- 
 
 5. Besides the general Feasts prescribed in the Diocese, 
 two Festivals ought to be kept in evei-y place with the 
 highest solemnity. There are (1) the Dedication Feast of 
 the Parish Church f), and (2) the Feast of the Patron, 
 Saint or Title. 
 
 Q) Concil. Vien. ap. Clementin. III. Tit. x. c. i. 
 
 (') Gratian, Caua. xv. Qq. v. 
 
 (') Pseudo-Isidore ap. Gratian III. Dist. i. e. 16 and 17. See the 
 language of Gregory to Angastine in Beda I. c. 30, respecting the day of 
 the Dedication. 
 
( 253 ) 
 
 DIVISION III. 
 
 MEDIEVAL AND MODERN ADMINISTRATION OF CHURCH 
 DISCIPLINE. 
 
 CHAPTEK XCVII. 
 
 EXTENSION OF THE CHURCH S JUDICIAL FUNCTIONS. 
 
 1. With the acquisition of property and the growth of 
 temporal power a Tery considerable extension of the Church's 
 judicial powers came about in Mediaeval times, causing a 
 large number of cases to be brought before ecclesiastical 
 tribunals which had previously been elsewhere disposed of, 
 and necessitating strict rules of procedure. 
 
 Such cases were divided either into (1) criminal and (2) 
 civil cases ; or otherwise into (1) spiritual, (2) mixed, and (3) 
 temporal cases. 
 
 2. Any offence against faith or morals is called a crime. 
 Any dispute between Christians turning upon the rights and 
 duties of one person towards another is termed a civil case ; 
 such as a dispute between parent and child, between a bishop 
 and one of his clergy, between a parish priest and one of his 
 flock. 
 
 3. A spiritual case is one concerned solely with spiritual 
 matters, of which there are usually said to be seven : (1) 
 
254 The Elements of Canon Law. 
 
 cases concerning faith and morals ; (2) cases concerning 
 the granting or withholding of the sacraments ; (3) cases as 
 to the validity of Christian matrimony ; (4) cases relating 
 to public worship ; (5) cases concerning the duties of clergy 
 as clergy ; (^6) cases relating to regulars ; and (7) cases 
 relating to ecclesiastical censures. These as being spiritual 
 are exclusively reserved for the spiritual judge, 
 
 A mixed case is one concerning a spiritual office to 
 which temporal property is attached, such as the right to a 
 benefice or tithes. In these cases, unless the civil authority 
 recognises the action of the spiritual judge, many anomalies 
 may result, such as one holding the spii-itual charge of a 
 Parish while another holds the benefice attached thereto ('). 
 
 A temporal case is one concerning a temporal matter, 
 although spiritual accidents may be annexed thereto. Such 
 is the right of patronage. Albeit the spiritual judge claims 
 to have cognisance in such a case, yet his judgment is 
 usually disallowed by the temporal courts. 
 
 4. In all circumstances the procedure of the ecclesiastical 
 tribunal involves three things : — 
 
 (1) That the matter be properly brought before a 
 
 tribunal of competent jurisdiction. 
 
 (2) That it be duly heard and clearly established 
 
 there. 
 
 (3) That a canonical sentence be passed and not 
 
 appealed from. 
 
 (') In the 13th century the Church claimed the cognisance of mary 
 cases which are now disposed of in the temporal Courts. See Decret. 
 Greg. rs. Lib. ii. Tit. i. 
 
( 255 ) 
 
 CHAPTER XCVIII. 
 
 COURTS CHEISTIAN. 
 
 1. In. the first ages of the Church all judgments were 
 summary, i.e. given without judicial forms. The Bishop 
 was the judge, and his presbyters acted as accessors in 
 dealing with any subject of his Diocese. In dealing with a 
 Bishop the Metropolitan was the judge and his Compro- 
 vincials sat with him. 
 
 2. In later times the Bishop heard causes by his Vicar- 
 General or Official Principal, and the Clergy ceased to act 
 as his assistants. In- like manner the Metropolitan and his 
 Comprovincials appointed an Official to act for the Province 
 before whom all cases were brought on appeal. Following 
 their example Archdeacons appointed Officials to settle 
 disputes respecting the temporalities under their charge. 
 Hence there are Courts of the Province, Courts of the 
 Bishop, and Archdeacon's Courts, each of them being pre- 
 sided over by its proper Official acting foir and on behalf of 
 the Prelate by whom he is appointed. These several 
 Officials are called Spiritual Judges, and the Courts over 
 which they preside Courts Christian or Ecclesiastical Courts, 
 and they correspond in jurisdiction with the several ranks of 
 the Hierarchy ('). 
 
 (') Decret. Greg. IX. Lib. ii. Tit. i. Sext. Deciet. Lib. ii. Tit. i. 
 Clement. Lib. ii. Tit. i. 
 
256 The Elements of Canon Law. 
 
 3. In proceeding in any of these Courts there are three 
 principal persons Q) concerned : (1) the Judge who hears 
 the case, (2) the Complainant or promotor, (3) the 
 Defendant or the accused (*). Witnesses are only 
 accessories. To support proceedings in them, therefore, three 
 things are necessary : (1) the Court must be one of com- 
 petent jurisdiction, (2) 'the Complainant must have a loew 
 standi, (3) the Defendant must be amenable to the 
 Jurisdiction. 
 
 4. These requisites being fulfilled the Judge may decide 
 the case in one of two ways, either (1) by the Ordinary 
 procedure of the Court ('), or (2) Summarily. If he act 
 summarily he must take care to inform himself of both 
 sides of the question, so that his sentence may be a real 
 sentence and not merely an opinion (*) to be set aside on 
 appeal. 
 
 5. When the punishment is fixed by the Canon Law the 
 Judge has no option but to award it. In other cases it 
 requires prudence as well as charity to determine the 
 sentence ; for often the Chm-ch were better served by 
 admonition than by vengeance (') . 
 
 f ) In civil cases the accuser and accused may appear by deputy, but 
 not in criminal cases. See the authorities, ap. Gratian, Cans. v. Qu. iii., 
 
 {') It is not competent for one and same person to be both judge and 
 accuser. See the authorities, ap. Gratian, Cans. iv. Qu. iv. 
 
 (s) Decret. Greg. IS. Lib. ii. Tit. i. c. 9. 
 
 (*) On rash sentences see authorities, ap. Gratian, Cans. ii. Qn. i. 
 c. 20 ; Cans. xi. Qu. iii. e. 45 to 64, 66 to 72. 
 
 (6) Augustinus De Poenit, o. 12, ap. Gratian, Cans. ii. Qu. i. c. 18 ; 
 Multi corriguntur ut Petrus ; multi tolerantur ut Judas. Augustinus, ap. 
 Gratian, Caus. xxiii. Qu. iv. c. 24, Ambrosius, Ibid. c. 26. 
 
( 257 ) 
 
 CHAPTER XCIX, 
 
 JUDGES OP COMPETENT JUEISDICTION. 
 
 1. An Ecclesiastical Judge is one who has lawful 
 authority in the Church to hear and decide ecclesiastical 
 cases. There are many varieties of such officers. 
 
 (1) Some are judges by divine \righi — This is. the case 
 of the Collective Episcopate in General Council 
 assembled; others are oi ecelesiastical appointment 
 only, such as Diocesan Bishops. 
 
 (2) Some are Ordinaries, having authority to judge 
 attached to the office they hold. Such is the 
 Archbishop's Official Principal, and the Chancellor 
 of a Bishop ; others are Delegates acting for 
 Ordinaries, as the Commissioners appointed to 
 hold an inquiry under the Church Discipline Act. 
 
 (3) Some are Judges of competent jurisdiction, to 
 
 whom a cognisance of a matter belongs by virtue 
 of their office ; others are Arbitrators appointed by 
 the sole wiU of the parties to decide a particular 
 case. 
 
 (4) Some are Judges of first instance ; others are 
 Judges to whom a case is brought on appeal. 
 
 2. For an Ecclesiastical Judge to be in a position 
 lawfully to decide a case, two things are requisite : (1) He 
 must be a Judge of competent jurisdiction ; (2) There must 
 
258 The Elements of Canon Law. 
 
 be nothing to disqualify him from adjudicating on that case, 
 such as having been preyiously called in to advise , upon it, 
 halving had a similar case of his own, or having an interest 
 in the case C). 
 
 3. For a Court to be one of competent jurisdiction f), the 
 matter in dispute or cause of action must have arisen 
 within the local limits of the jurisdiction before which it is 
 brought ('). This it may do in one of several ways : 
 
 (1) The accused person's residence may be within the 
 
 limits of the jurisdiction before which he is 
 arraigned (*). 
 
 (2) The cause of action may have arisen within those 
 
 limits (°), as when a person not residing there 
 has committed an offence or (contracted an 
 obligation within them. 
 
 (3) The matter in dispute may be situated within 
 
 them. 
 Should a person be cited to appear before a Court 
 which cannot allege any one of these reasons, he may 
 either decline to obey the citation, or obey under protest. 
 
 (1) It has been decided in Ex parte Medevin and Hurst {1853) 1 El. 
 and Bla. 609, that the fact of the Chancellor being able to award a 
 Bishop his costs should the decision be given in his favour, does not 
 give the Bishop such an interest in the case as to disqualify his Chancellor 
 from hearing it at the suit of the Bishop. Gratian, Caufi. iii. Qu. v. c. 15. 
 
 (») Deoret. Greg. IX. Lib. ii. Tit. ii. 
 
 (') Pseudo-Isidorus ap Gratian, Caus. xi. Qu. L c. 48. Sext. Decret. 
 Lib. ii. Tit. ii. Clement. Lib. ii. Tit. ii. 
 
 (*) Gratian, Caus. iii. Qu. vi. u. 2, 4, 17 ; also Caus. vi. Qu. iii., also 
 Caus. ix. Qu. ii. Decret, Greg. IX. Lib. ii. Tit. ii. c. 1 and 13. 
 
 (*) Gratian, Caus. iii. Qu. vi. o. 1 and 18. Deoret. Greg. IX. Lib. ij. 
 Tit. ii. c. 3. 
 
On the Office of the Judge. 259 
 
 No complaint therefore should be lodged except with a 
 judge who has jurisdiction. If there are several such, the 
 complainant may invite the assistance of any one of them. 
 
 4. An accused person may also canonically refuse a 
 judge otherwise competent Q), on alleging a proper cause 
 in flrriting at the time of receiving the citation. The 
 principal cause for which such a refusal is allowed, is the 
 personal enmity of the judge for the accused f ). If a judge 
 is refused for a good cause, the Prelate must appoint a 
 special commissary to try the case. 
 
 5. The duties of an Ecclesiastical Judge are fourfold : 
 (1) To bring sufficient learning to bear on the hearing of a 
 case ; (2) To expedite it without delay, and without fear or 
 favour ; (3) To pass judgment according to law, and not 
 according to his view of what the l9,w should be ; (4) Only 
 to accept as facts what have been satisfactorily proved to be 
 such. 
 
 (1) Infames judioea esse non possunt. So Gratian, Cans. iii. Qu. vii. 
 c. 1. There are three disqualifications for acting as judges : (1) natural 
 disqualifications, such as blindness, deafness. Sea. ; (2) legal, such as 
 being exempt ; (3) moral, such as being women and slaves. 
 
 (') Gratian. CauB. iii. Qu. v. c. 15. 
 
 S S 
 
260 The Elements of Canon Law. 
 
 CHAPTEE C. 
 
 PLAINTIFFS AND DEFENDANTS. PKOCTOES AND ADVOCATES. 
 
 1. Not all persons are capable of taking part in a suit as 
 plaintiffs or defendants Q). Disqualified persons are the 
 following : — (1) Infants, madmen, and lunatics ; (2) young 
 people under fourteen, unless they appear by a Curator or 
 next friend, or their evidence is absolutely necessary to 
 prove a criminal charge ; (3) women, except by their own 
 wish in civil cases, or in criminal cases to obtain redress for 
 their own wrongs ; (4) persons excommunicate. 
 
 2. No one can be compelled to act as plaintiff against his 
 wiU, but every defendant can be compelled to appear, or in 
 default of appearance the case can go on and be adjudicated 
 upon in his absence. Personal appearance cannot, however, 
 be insisted upon, except when the Statute Law enforces it, 
 or in ciiminal cases {*). It is otherwise sufficient that an 
 appearance be entered by a proctor. 
 
 3. A Proctor f ) is one who stands in the place of his 
 principal, having been by him properly appointed to that 
 
 C) Called technically Actor and Bens. Decret. Greg. IX. Lib. ii. Tit. 
 xix., Gratian, Cans. U. Qu. i. c. 14 ; Cans. iii. Qu. v. u. 4; Cans.iv. Qu. i. 
 c. i. and Qu. ii. Sext. Decret. Lib. ii. Tit. i. 
 
 (2) Governed in England by Stat. 3 and 4 Viet. c. 86. 
 
 (s) See Decret. Greg. IX. Lib. i. Tit. xxxviii. 
 
Plaintiffs and Defendants.— Proctors and Advocates. 261 
 
 office ('). A Proctor differs from an Advocate because he 
 conducts a case, whereas an Advocate only advises upon it ; 
 he differs also from a Curator, or next friend, because the 
 Curator is appointed by the Court and a Proctor by a Suitor. 
 A Proctor may be appointed either generally to represent 
 his principal, or specially for some particular business ; and 
 either with ordinary powers or with extraordinary full 
 powers. Whilst his authority lasts f) he represents his 
 principal to all intents and purposes, and is said to be 
 Master of the Case or dominus litis (*). 
 
 4. An Advocate is one learned in the Canon and Civil 
 Law (*), who assists another with advice and counsel in any 
 
 (!) Decret. Greg. IX. Lib. ii. Tit. xxviii. o. 48. Sext. Decret. Lib. i. 
 Tit. xix. Clement. Lib. i. Tit. x. In tbe Eeport of the Ecclesiastical 
 Commissioners, 1832, it is said : " Proctors in the ecolesiastioal and ad- 
 miralty courts discharge duties similar to those of solicitors and attor- 
 nies in other courts." According to 2 Dom. 583, Proctors are officers 
 established to represent in judgment the parties who empower them 
 (by warrant under their hands called a proxy) to appear for them. A 
 Proxy is an instrument signed by the principal, • attested by two 
 witnesses, accredited by a Notary Public, and deposited in the registry of 
 the court. The proctor until such power be withdrawn is dominus litis. 
 
 (") A Proctor's powers may be withdrawn, see Decret. Greg. IX 
 Lib. i. Tit. xxxviii. c. 3, 4, and 13. 
 
 (8) Stat. 5 Geo. II. c. 18 s. 2 forbids a Proctor from being a Justice of 
 the Peace ; 33 and 34 Vict. c. 27 imposes a stamp duty of £25 on his 
 admission to office. 53 Geo. III. c. 127 forbids Proctors from allowing 
 their names to be used by unqualified persons. 10 Geo. IV. e. 7. s. 16 
 forbids Eoman Catholics from acting as Proctors. Canon 129 of 1603 
 imposes restrictions on the exercise of their office by Proctors. 33 and 
 34 Vict. c. 28, s. 20 enables attornies or solicitors " to perform all such acts 
 as appertain solely to the office of a Proctor in any ecclesiastical court 
 other than the Provincial Courts of the Archbishop of Canterbury and of 
 York and the Diocesan Court of the Bishop of London." 
 
 (6) According to the Eeport of the Ecclesiastical Commissioners, 1832 : 
 " No person can be admitted a member, or allowed to practise as an 
 
262 The Elements oj Canon Law. 
 
 judicial matter, and represents him in pleadings before a 
 Tribunal. He does not, however, represent him generally 
 as a Proctor does, nor elsewhere except before a Tribunal, 
 so that his acts do not bind a client as the acts of a Proctor 
 do. The duties of an Advocate are fourfold: (1) To 
 possess sufficient knowledge; (2) to decline to -undertake 
 an unjust cause ; (3) not to disclose his client's affairs to 
 his adversary ; and (4) not to take more than a fair return 
 for his assistance. 
 
 Advocate in the Courts at Boctors' Commons without having first taken 
 the degree of Doctor of Laws in one of the English Universities." In 
 former times the admission of Advocates was a papal prerogative. As 
 such it appears to have been exercised in England by the Archbishop of 
 Canterbury as the born legate of the Pope, and with him it now rests in 
 England. There is a stamp duty of £50 on admission. As a matter of 
 practice the functions of an Advocate are now often discharged by 
 barristers. The Stat. 3 and 4 Vict. u. 86, b. 7 requires that in criminal 
 proceedings instituted against a clergyman the Articles drawn up against 
 him must be signed by an Advocate practising in Doctors' Gommous. 
 
( 263 ) 
 
 CHAPTER CI. 
 
 COMPLAINANTS IN A CIVIL CASE. 
 
 1. There is this difference between a Civil and a Crimi- 
 nal case, that any person may be the Complainant in a 
 a CivU case, whereas only certain persons can act as 
 Complainants in a Criminal ease ('). 
 
 2. In a CivU case any person is competent to bring 
 a complaint against another in the Courts Christian, 
 provided he can fulfil two conditions. He must (1) be 
 able and willing to carry the case through to a decision ('), 
 and (2) he must be prepared to take the Oath of Calumny 
 ('), whereby he pledges himself that his action is not 
 malicious. 
 
 3. A Civil complaint is introduced by presenting to the 
 Judge a writing or Libel (*) containing a short account of 
 the matter complained of, and praying for a particular 
 sentence by way of remedy. Having once been handed 
 in the Libel may not be changed, but it may be amended 
 at least once during the proceedings. 
 
 (I) Deeret. Greg. IX. Lib. v. Tit. i. o. 1. Si legitimua non fuerit 
 accnsator, non fatigetnr accusatus. 
 
 (s) Pseudo-Isidore permits a man to withdraw from a suit, ap. 
 Gratian, Caus. ii. Qu. vi. c. 18. 
 
 (6) Deeret. Greg. IX. Lib. ii. Tit. vii. Canons of Otho, 1237. 2 Inst. 
 658 ; 12 Bep. 27. 
 
 (*) Deeret. Greg. IX. Lib. ii. Tit. iii. Must be in writing. Ibid. e. 1 
 
264 The Elements of Canon Law. 
 
 4. The eflFect of presenting a Libel is threefold : (1) It 
 bars a claim by prescription ; (2) It points out a remedy, 
 and so determines the sentence ; (3) It pledges the com- 
 plainant to carry his case through' to a decision. 
 
 o. Should the accused not plead guilty 0, the Court 
 must before hearing the case administer to both parties 
 the Oath of Calumny, whereby they pledge themselves that 
 both action and defence are bona fide, and not prompted by 
 malice f ). 
 
 {') It is the accuser's bnginess to prove the case, not the accused 
 person's to prove his innocence. See Gregorius ap. Gratian, Cans. vi. 
 Qu. V. 
 
 P) This oath may be required of a Bishop. Decret. Greg. K. Lib. ii. 
 Tit. vii. c. 7. Sext. Decret. Lib. ii. Tit. iv. 
 
( 265 ) 
 
 CHAPTER CII. 
 
 CRIMINAL PEOCEDURE. — ACCUSATION, 
 
 1. There are three modes of proceeding criminally in ec- 
 clesiastical cases : (1) by publicly bringing a charge, called 
 Accusation ; (2) by privately giving information of an 
 offence, called Denunciation ; (3) by setting on foot inquiry 
 where scandal exists, called Inquisition. AU these methods 
 come under the cognisance of the Outer Tribunal, and 
 belong to the Bishop's Contentious Jurisdiction C). 
 
 2. The essential features of the mode of proceeding by 
 Accusation are these : — (1) It is resorted to for the pur- 
 pose of public vengeance C)> ^^^ ^o^ the amendment of the 
 offender. Hence the accused must first have been warned ('). 
 
 (2) The accuser takes upon himself the onus of proof C). 
 
 (3) Although anyone, conspirators and those excommunicated 
 excepted f ), is competent to come forward as accuser, yet to 
 
 (' ) . See Chap. xxxi. 
 
 (») Decret. Greg. IX. Lib. v. Tit. i. u. 16. 
 
 (s) Decret. Greg. IX. Lib. v. Tit. i. u. 2 and 20. Concil. Lat. iii. in 
 Decret. Greg. IX. Lib. ii. Tit. xxviii. c. 26, and Lib. iii. Tit. ii. c. 4 
 and 6. 
 
 {^) The accuser may not be an enemy by Decret. Greg. IX. Lib. v. 
 .Tit. i. c. 7, 10, 13, 19, 20, Gratian, Cans. v. Qu. v. Dig. Lib. xlfii. ap. 
 Gratian, Caus. ii. Qu. i. c. 14. Prohibentur alii aocusare propter sexum 
 et ffitatem ut mulier et pupOlus ; alii propter sacramentum ut qm sti- 
 pendium merent. 
 
 P) Gratian, Caus. iii. Qu. iv. c. 5. 
 
266 The Elements of Canon Law. 
 
 guard against malicious prosecution an accuser is required 
 by the common law of the Church to bind himseK to sub- 
 mit to the same punishment which the offence charged would 
 have entailed on a guilty person, in case he should fail to 
 establish his charge 0, 
 
 3. Prior to the 11th century procedure by public Accu- 
 sation appears to have been the course usually adopted. It 
 was, however, then found to be attended by serious dis- 
 advantages, among which the following stand prominent : (1) 
 a public accusation often causes more scandal, and so does 
 more harm to the Church, than the offence itseK ; (2) it 
 often violates the rule of charity by aiming at Tindictive 
 punishment, when the amendment of the offender is both 
 possible and probable ; (3) it pubHcly damages an offender's 
 reputation for the future f) . Hence this mode of procedure 
 is not allowed except in grave cases of public notoriety 
 or when scandal exists (^). 
 
 4. An accusation is made by a written charge or Libel 
 split up into Articles (*). The Libel must be in due form, 
 giving the name of the Judge, the names of the accuser and 
 
 (ij Concil. Eliberitan. Can. 75, a.d. 310, ap. Gratian, Cans. ii. Qn. iv. 
 c. 4. ; Si qnis episcopum, ant presbytemm aut diaconum f alsis criminibns 
 appetierit et probare non potnerit, nee in fine dandam ei commnnionem 
 censemns. Pseudo-Isidore, Ibid. Qu. 2. e. 2. Calumniator si in accu- 
 satione defecerit, talionem recipiat. Ibid. Cans. ii. Qu. viii. e. 4. 
 Hadrianus, Epist. i. a.d. 361, Gregorius v. Epist. 30. ap. Gratian, Cans. 
 V. Qu. i. c. 1 and 2, also Gratian, Cans. v. Qu. vi. Decret. Greg. IX. Lib. 
 T. Tit. ii. and Tit. 1. c. 16. 
 
 (") S. liiguor. Lib. iy. n. 247: Delinquens jus habet ad servandnm 
 suam famam. 
 
 (^) See Caisson Manuale, vol. iv. p. 118, and 3 and 4 Vict. c. 86. Also 
 Decret. Greg. IX. Lib. v. Tit. i. o. 9. 
 
 (*) Gratian. Cans. ii. Qu. yiii.o. 1. 
 
Criminal Procedure. — Accusation. 267 
 
 the accused, and the nature of the offence with full par- 
 ticulars thereof. By common right there ought to be 
 appended thereto a bond by the accuser confessing judgment 
 for the penalty incurred should adequate proof not to be forth- 
 coming of the charge ; but in some countries this bond has 
 fallen into desuetude. Hence the received practice of the 
 tribunals must be followed. 
 
 5. The effect of a public accusation is to render the ac- 
 cused unqualified for promotion untU it has been disposed 
 of. By the common law of the Church there is no limit of 
 time to bar offences being made the subject of an accusation. 
 The Eoman Law, however, did not admit a charge being 
 lodged in respect of incontinence committed more than five 
 years, or of any other offence committed more than twenty 
 years previously 0- I'he English statute Law disallows 
 proceedings for the soul's health in respect of incontinence 
 committed more than eight months previously (^), or any 
 proceedings for public vengeance in respect of any offence of 
 older standing than two years ('), unless a conviction in a 
 
 C) See authorities in Caisson Manuale, vol. iv. p. 119. 
 
 («) By 27 Geo. III. c. 44 : No suit shall be brought in any ecclesiastical 
 court for fornication or incontinence after the expiration of eight calendar 
 months from the time when such offence shall have been committed ; 
 nor for fornication at any time after the parties shall have lawfully 
 intermarried. It was ruled by^ the House of Lords that this did not prevent 
 the ordinary from purging the Church of an incontinent clerk, and that it 
 only referred to proceedings for his soul's health. See Burgoyne v. Free. 
 Add. 405 ; 2 Hagg. 406. 
 
 (8) By 3 and 4 Vict. o. 86. s. 20 : Every suit or proceeding against 
 any such clerk in Holy Orders for any offence against the laws ecclesi- 
 astical shall be commenced within two years after the commission of the 
 offence in respect of which the suit or proceeding shall be instituted and 
 not afterwards. It has been ruled by the Privy Council that the ooia- 
 
268 The Elements of Canon Law. 
 
 Common Law Court has been subsequently obtained and 
 then only within six months of such conviction C). 
 
 mencement of the suit dates from the service of the citation upon the 
 accused clerk and not from the date of the issue of a preliminary com- 
 mission. Denison v. Ditcher, Deane and Swahey's Sep. 334 ; 11 Moor. 
 P. C. 324. 
 
 (1) 3 and 4 Vict. c. 86. s. 20 : Provided always that whenever any 
 such suit or proceeding shall be brought in respect of any offence for 
 which a conviction shall have been obtained in any court of common 
 law, such suit or proceeding may be brought against the person convicted 
 at any time within six calendar months after such conviction, although 
 more than two years shall have elapsed since the commission of the 
 offence in respect of which s^ch suit or proceding shall be so brought. 
 
( 269 ) 
 
 CHAPTEK cm. 
 
 CRIMINAL PEOCEDDEE. DENUNCIATION. 
 
 1. Denunciation consists in giving private information 
 of another's offence to his superior without undertaking 
 the onus of proof. If the information be given to obtain 
 redress for some private wrong, it is called a Complaint (^). 
 
 2. Denunciation is of two kinds : (1) Paternal, or that 
 ordered by the Gospel, and (2) Judicial. Paternal Denun- 
 ciation is the giving private intimation of an offence to a 
 superior as a Father, that he may give fatherly warning and 
 admonition to the offender to amend his ways for his soul's 
 health, according to the Gospel precept which requires 
 private warning to precede notice to the Church {"). Ju- 
 dicial Denunciation (') is giving information to a superior 
 as a Judge, so that he may be in a position to proceed 
 against the offender for pubHo vengeance. 
 
 (1) Querela. 
 
 (?) S. Matt, xviii. 15, 16, 17 : Moreover if thy brother shall trespass 
 against thee, go and tell him his fault between him and thee alone ; 
 if he shall hear thee, thou hast gained thy brother. But if he will not 
 hear thee, then take with thee one or two more, that in the mouth of 
 two or three witnesses every word may be established. And if he shall 
 neglect to hear them, teU it unto, the Church. See Deoret. Greg. IX. 
 Lib. ii. Tit. i. o. 13. 
 
 (3) Decret. Greg. IX. Lib. ii. Tit. i. c. 13. Decret. Greg. IX. Lib. v. 
 Tit. i. c. 3. A denunciatione repellitur qui non prsemonuit. 
 
270 ^ The Elements of Canon Law. 
 
 3. No one is hound to give information of another's 
 offence, unless : (1) it be a mortal sin ; (2) is certainly 
 known to an informer ; and (3) unless the giving of infor- 
 mation is likely to lead to some spiritual good. Yet every 
 one is bound to give such information, if the offence, besides 
 being a mortal sin and known to the informer, is also one 
 which does spiritual harm to third parties. Accomplices 
 are not, however, considered third parties Q). 
 
 4. When a superior receives a Judicial information, it is 
 his duty to act wisely according to the rule of charity 
 remembering that an offender has as much right to his 
 reputation as a complainant has to consideration. Hence 
 he should first warn the offender in private ('), then, if neces- 
 sary, admonish him before witnesses, and not proceed 
 publicly unless he be satisfied; either (1) that the 
 reform of the offender can no longer be hoped for ; or (2-) 
 that the offence is so injurious to others that warning is out of 
 place ; or (3) unless the offence be one of public notoriety (°). 
 Should he act otherwise, he .commits a grave breach of 
 charity, though not such a wrong for which there exists a 
 remedy. 
 
 P) See Caisson Manuale. Vol. iv. p. 125, neither is their evidence 
 receivable. Deoret. Greg. IX. Lib. ii. Tit. xx. c. 10. 
 
 P). See Concil. Agathens. ap. Deoret. Greg. IX. Lib. v. Tit. xxxiv. o. 2 ; 
 Si quis presbyter negligens vitss suas, pravis exemplis mala de se suspioari 
 permiserit, et populus et epiaoopo juramenti eeu banno ChriBtianitates 
 adstrictug, infamiam ejus patefeoerit oertique aocusatores criminis 
 defaerint, admoneatur primum soorsum de Episcopo, deinde sub duobua 
 vel tribus testibus, et si non emendavorit, in oonventu presbyterorum 
 episoopus cum inorepatione publioa admoneat. Si vero neo sio se, 
 correverit, ab officio suspendatur usque ad condignam satisfaotionem ne 
 populus fidelium in eo soandalum patiatur. 
 
 (M Deoret. Greg. IX. Lib. iii. Tit. ii. o. 4, 6 and 8, also Tit. xxviii. 
 c. 26. <;,., 
 
( 271 ) 
 
 CHAPTEE CIV. 
 
 CRIMINAL PEOCEDUEE. INQUISITOIN. 
 
 1. Inquisition is procedure by inquiry, and is under- 
 taken to ascertain whether a certain person is guilty of an 
 offence or not. It is usually confined to the case of Clergy 
 who are suspected to be guilty of any crime C). 
 
 2. Before inquiry is undertaken there should be either 
 (1) strong grounds for suspecting guilt ; or (2) information 
 should have been received from an informer, alleging an 
 offence ; or (3) there should be shewn to exist scandal. 
 
 3. When an inquiry is set on foot, it may be conducted 
 either privately or publicly. The rule of charity and 
 respect for another's reputation require that inquiry 
 should be conducted privately whenever that is practicable. 
 When that is not practicable it must be done publicly. In 
 such a matter, however, much depends on the discretion 
 of a superior. Public inquiry always causes scandal in the 
 Church, and because of the serious consequences which 
 may follow, affecting the accused's civil rights, it is in 
 England strictly regulated by Statute Law" ("). 
 
 C) See Decret. Greg. IX. Lib. ii. Tit. xiv. o. 8. 
 
 (^) By 3 and 4 Viot. o. 86, s. 3 : In every case of any Clerk in Holy 
 Orders of the United Churcli of England and Ireland, who may be 
 charged with any offence against the laws ecclesiastical, or concerning 
 whom there may exist scandal or evil report as having offended against 
 the said laws, it shall be lawful for the bishop of the diocese within 
 which the offence is alleged or reported to have been committed, on the 
 
272 The Elements of Canon Law. 
 
 4. When no adequate proof is forthcoming of a suspected 
 offence, it is competent for the Judge to administer the 
 Oath of Purgation Q), and thus free the person suspected 
 from the scandal caused by the public inquiry. 
 
 application of any party complaining thereof, or if lie shall think fit of his 
 own mere motion, to issue a commission under his hand and seal to five 
 persons, of whom one shall be his Vicar-General or an Archdeacon or 
 Eural Dean within the Diocese, for the purpose of making inquiry as to 
 he grounds of such charge or report. 
 
 (') Decret. Greg. Lib. v. Tit. xxxiv. Gregorius II. a.d. 726, ap. 
 Gratian, Caus. ii. Qu. v. o. 5 : Presbyter vel quilibet sacerdos si a 
 populo accusatus fuerit, et certi non fuerint testes. . jus-jurandum in 
 medio erit, et iUum testem proferat de innocentise susepuritate, cui nuda 
 et aperta sint omnia. Conoil. Agathense ap. Gratian, Caus. ii. Qu. v. c. 12. 
 Leo scribens ad Carolum Magnum, a.d. 803, Ibid. c. 19. Conoil. 
 Wormaeiense, Can. 10, Ihid. o. 26 : Si episcopo aut presbytero causa 
 eriminalis, hoc est homicidium, adulterium, furtum et maleficium impn- 
 tatum fuerit, pro singulis missam oelebrare debet et oommunicare et de 
 singulis sibi imputatis inuooentem se ostendere. Quod si non feoerit, 
 quinquennio a liminibus ecclesis extraneus habeatur. 
 
( 273 ) 
 
 CHAPTER CV. 
 
 AMENABILITY OF THE ACCUSED. 
 
 •1. A CASE may fall through, though properly introduced, 
 owing to the Defendant not being amenable to the Juris- 
 diction. As a Bishop could not be cited to appear in an 
 Archdeacon's Court, nor a Metropolitan in that of a Suffra- 
 gan, nor a Prelate in his own Court (^), so in England the 
 Sovereign would not seem to be amenable to any spiritual 
 court. 
 
 2. Without an accuser no one can be condemned, 
 however guilty he may be (^) ; nor can any accused person 
 be punished unless he either pleads guilty or is proved to 
 be guilty ('). A confession made before a secular judge 
 cannot be used against a Clerk before an Ecclesiastical 
 tribunal (*). A poor man does not deserve pity when he 
 is in a bad case because of his own misdoing Q) ; neither 
 is the Church to blame for using strict measures towards 
 such as are proved guilty of heresy (^). The onus of proof is 
 on the accuser, not of disproof on the accused ('). 
 
 (1) Gratian, Cans. vi. Qu. ii. 
 
 (») Ambrosius ap. Gratian, Caus. xxiii. Qu. iv. c. 31. 
 C) Nicolaus ap. Gratian, Caus. xv. Qu. v. c. 2. Caus. ii. Qu. i. 
 (*) Deoret. Greg. IX. Lib. ii. Til;, i. u. 4. Nor are vsrdiots of Courts of 
 Law admissable as evidence. 3 Hag. 260, 264, 292. But see Chap. cii. 5 
 (5) Augustinus ap. Gratian, Caus. xxiii. Qu. iv. o. 34. 
 (") Augustinu-i ap. Gratian. Caus. xxiii. Qu. iv. o. 38, 39-42, 
 C) Gratian, Caus. vi. Qu. v. 
 
274 The Elements of Canon Law, 
 
 CHAPTER CVI. 
 
 CRIMINAL PROCEDURE. PROMOTING THE JUDGE S OFFICE. 
 
 The procedure in a Criminal Case before an Ecclesi- 
 astical Judge follows in a great measure the procedure 
 usual according to the Civil Law. It may, therefore, be 
 divided into three parts, each of which must be considered 
 separately. These are : (1) The Introduction of the case, 
 commonly called Promoting the Office of the Judge ; (2) the 
 Hearing of a case, commonly called the Trial ; (3) the con- 
 clusion of a case, commonly called the Judgment ('). 
 
 1, To promote the Judge's Office two things are requisite ; 
 (1) There must be a Libel presented by a Complainant: 
 and (2) a Citation issued by the Judge. As it is not 
 compulsory for the Judge to allow his office to be promoted 
 in a criminal case, so a Libel may be handed in without a 
 Citation following. The Judge's Office is not, therefore, 
 promoted until a Citation has followed on a Libel. 
 
 2. A Libel is a written document giving a brief account 
 of the charge made and the person charged. It is the first 
 step in every criminal suit, whether made by way of accusa- 
 tion or by way of information, and is absolutely necessary 
 to commence proceedings. In a criminal suit it is usually 
 called Articles ; in a testamentary case, an Allegation. 
 
 (1) See note, page 275. 
 
Criminal Procedare. — Promoting the Judge's OJice. 275 
 
 To be in proper form a Libel must contain the following 
 particulars : (1) The Judge's name ; (2) the name of the 
 
 (1) The several parts of a complete Process are the following : — 
 
 f (a) The nature of a Libel. 
 (1) The Libel, ' 
 or Articles, or 
 Allegation 
 
 'A. Pbomoting 
 THE Judge's 
 Office 
 
 The suit 
 consists of 
 the follow- 
 ing parts. 
 
 (2) The Citation ■ 
 
 (3) Admission of 
 the Libel after 
 argument 
 
 B. The Trial 
 
 0. Judgment . 
 
 (6) Requisites in a Libel, 
 (c) Summary Information 
 to foUow if it does not 
 precede a Libel. 
 At this stage a suit may be settled out of 
 Court by a Composition. 
 
 {a) Nature of a Citation. 
 
 (b) Varieties of Citation. 
 
 (c) Service of Citation. 
 
 (d) Effect of a Citation. 
 
 (a) Exceptions taken to the 
 Libel. 
 
 (b) Objection taken to the 
 Judge. 
 
 ' (a) Nature of Joining Issue. 
 (b) Varieties of Issue joined. 
 At this stage a case may 
 be settled bv a Judicial Con- 
 fession in Court. 
 V (c) Effect of Joining issue. 
 At this stage it was usual to administer the 
 Oath of Calumny. 
 
 (a) Proof of two degrees. 
 (6) Challenge oiiheivitnesses. 
 . (c) Evidence of the accused. 
 
 (a) Publication of evidence 
 for the cross-examina- 
 tion of witnesses. 
 
 (6) Defensive plea and evi- 
 dence. 
 I (a) Presumptions. 
 
 (b) Sentences. 
 
 (c) Requisites in a Defini- 
 tion Sentence. 
 
 (1) Joining Issue 
 
 (2) The Evi- 
 dence 
 
 (3) The Defence 
 
 nijTheSentence 
 
 (2) Execution of 
 the Sentence 
 
 1(3) Appeal 
 
 T2 
 
276 The Elements of Canon Law. 
 
 Plaintiff ; (3) the name of the Defendant ; (4) the offence 
 charged ; (5) particulars of the circumstances under which 
 the offence was committed. 
 
 Unless inquiry has gone hefore, a Lihel must he followed 
 hy a Summary Information, i.e., an inquiry whether a 
 prima facie case has heen made out for trial ('). 
 
 3. On the receipt of a Libel, a Judge is in a position to 
 allow his office to be promoted. He may, however, decEae 
 to do this ; or at this stage of the proceedings the accused 
 may admit his guilt, and the Judge may impose teims ; 
 should he do so, it is called a Composition, and the case is 
 said to be settled out of court. 
 
 4. Should the Judge decide to allow his office to be pro- 
 moted, a Citation is now issued (^. A Citation is a notice 
 stating the nature of the charge and the time and place of 
 hearing f), and calling on the defendant to appear ; and it 
 may be either (1) simple, which, to be effective, must be 
 thrice repeated; or (2) peremptory, which, once given, 
 suffices. The Citation must be served at the instance of 
 the Judge by some one acting for him (*). Any defect in 
 the service of a Citation vitiates aU subsequent proceedings. 
 
 The effect of a Citation is twofold: (1) It obliges the 
 defendant to appear under pain of being pronounced contu- 
 
 (') According to the reqniiementa of Stat. 3 and 4 Vict. c. 86, Summary 
 Information is now obtained by a Commission of Inquiry, which pre- 
 cedes the institution of proceedings. 
 
 (*) Pseudo-Isidore ap. Gratian, Caus. v. Qu. ii. c. 1 and 2. 
 (8) Deoret. Greg. IX. Lib. v. Tit. i. c. 24. 
 (*) Decret. Greg. IX. Lib. ii. Tit. xiv. c. 9. 
 
Criminal Procedure. — Promoting the Judge's Office. Ill 
 
 macious ; (2) It actually commences proceedings. There is 
 now a suit pending f ). 
 
 5. The Citation having been issued, it is open to the ac- 
 cused to take exception (^) to the admission of the Libel, or 
 object to the Judge. 
 
 Such an exception is in the nature of a Demurrer and 
 may be either in whole or in part. An exception in whole 
 or peremptory (') as it is sometimes called, is one denying 
 altogether the plaintiif's right of action or shewing that the 
 facts stated, if true, would not warrant the demand made. A 
 partial exception consists in raising objections to parts of 
 .the Libel, to some of the facts as irrelevant or as incapable 
 of proof. 
 
 Objection may also be taken to the Judge (*), on the 
 ground of his being either the Defendant's enemy or the 
 Plaintift's friend (^), or having acted as Advocate or Proctor 
 in the same matter C^. 
 
 These objections are made and argued before the Judge, 
 and his decision is taken on them, which is open to appeal. 
 
 ('■) Lis dioitur mota cum fuerit contestata, Decret. Greg. IX. Lib. v. 
 Tit. xl. c. 30. 
 
 (2) Decret. Greg. IX. Lib. ii. Tit. xxv. Sext. Deoret. Lib. ii. Tit. xii. 
 
 (8) Sext. Decret. Lib. ii. Tit. iii. c. 2. 
 
 (*) Gratian, Caus. iii. Qu. v. c. 15. 
 
 (5) Decret. Greg. IX. Lib. ii. Tit. ii. c. 4. 
 
 (8) Decret. Greg. IX. Lib. ii. Tit. i. e. 18. 
 
278 The Elements of Canon Law. 
 
 CHAPTEE CVII. 
 
 CRIMINAL PEOCEDUKE. — TRIAL. 
 
 The Conduct of a case after a Judge has decreed the 
 admission of the Libel or Articles is called the Trial. It 
 consists in three things : (1) Joining issue, (2) Taking 
 the evidence, (3) the Defence. The accused must be 
 present (^) and the accuser in person C) in a criminal case, . 
 and if the accused do not plead guilty, the question of 
 proof must be gone into ('), and that upon oath (*). 
 
 1. The important thing in every Ecclesiastical suit is 
 what is called Joining issue (^), For this three things are 
 requisite : (1) There must be an allegation by a plaintiff, 
 and a reply by a defendant ; (2) the allegation and reply 
 must be made in open court ; (3) the reply must be made 
 with intent to bring the matter to a judicial decision. The 
 
 C) Peeudo-Isidore, ap. Gratian, Cans. iii. Qn. iv, c. 2, c. 4, 5 to 8; 
 also Qu. v. c. 6, 7. A man who has failed on one charge cannot be heard 
 on others ; Concil. Carthag. vii. a.d. 419, Can. 3, ap. Gratian, Cans. iii. 
 Qu. X. 0. 1. Nor can the accused turn on his accusers until he has 
 cleared himself. Pseudo-Isidorus ap. Gratian, Cans. iii. Qu. xi. c. 1. 
 
 (2) Gratian, Cans. xv. Qn. iv. Decret. Greg. IX. Lib. ii. Tit. ix. 
 
 (8) Because no one may be deprived unless he either plead guilty or 
 be proved to be guilty. See Nicolaus ap. Gratian, Cans. xv. Qu. v. c. 2. 
 
 {*) The taking of oaths is permitted but perjury is forbidden, Gratian, 
 Cans. xxii. Qu. i. Decret. Greg. IX. Lib. ii. Tit. xxiv. ; but not to those 
 under fourteen, by Concil. Eliberit. ap. Gratian, Cans. xxii. Qu. v. c. 15. 
 
 ('') Called Litis Contestatio, see Decret. Greg. IX. Lib. ii. Tit. v. and vi. 
 Sext. Lib. u. Tit. iii. 
 
Criminal Procedure. — Trial. 279 
 
 issue may be one of three kinds ; either (1) simple 
 affirmative which is the same thing as a Judicial Confession, 
 and ends the case ; or (2) simple negative ; or (3) quali- 
 fied affirmative or negative. 
 
 Several important eifects follow from joining issue. 
 (1) With it the trial commences ; (2) Time dates from it 
 in all cases of prescription ; (3) Demurrers and objections 
 are now considered out of court. 
 
 Joining issue is followed by the Oath of Calumny (') 
 administered to both plaintiff and defendant, whereby they 
 declare that their respective actions are not caused by malice. 
 It may be administered to a defendant in a criminal case, but 
 the Bishop's Officer in taking proceedings against a clergy- 
 man is excused from taking it. It has now faUen into disuse- 
 
 2. The second part of the trial (") consists in taking the 
 evidence of witnesses in order to furnish Proof (°). Proof is 
 of two degrees, complete or incomplete. For complete proof 
 the evidence of two witnesses {*) above all challenge is neces- 
 sary, and complete proof is imperative in criminal casesC). The 
 
 C) Juramentum Calumnies. On this, see Decret. Greg. IX. Lib. ii. 
 Tit. vii., Sext. Lib. ii. Tit. iv. 
 
 (2) This mode of procedure has for all practical purposes been entirely 
 altered in England since the passing of 18 and 19 Vict. c. 41 ; which 
 introduced viva voce evidence in place of written evidence taken before an 
 examiner. 
 
 (•) Prohatio, see Decret. Greg. IX. Lib. ii. Tit. xix. Sext. Lib. ii. Tit. x. 
 
 {*) Gratian, Caus. ii. Qu. iv. e. 1. S. John viii. 7. 
 
 (5) A judge cannot pass sentence because an offence is known to him- 
 self ; but must have proof. August. Serm. xvi. de verbis domini, ap. Gratian, 
 Caus. ii. Qu. i. c. 19 ; Decret. Greg. IX. Lib. ii. Tit. xix. Julianns Lib. 
 Constitutionum, ap. Gratian, Caus. ii. Qu. i. c. 11 ; Nemo episcopus, nemo 
 presbyter excommunicet aliquem, antequam causa probetur. Augustinua 
 Bp. cxxxvii. Ibid. e. 12 ; Nomen presbyteri propterea non ansus sum de 
 
' 280 . The Elements of Canon Law. 
 
 '■ evidence of one witness only makes incomplete proof which 
 , may suffice in civil cases. Should the witnesses disagree, 
 
 ■ or be equally balanced, the decision must be on the side of 
 charity (^). 
 
 In conducting a case (') only fit persons can be called as 
 witnesses ('). Unfit persons are excluded, such as slaves (*), 
 
 : infants under fourteen f), persons of iU-repute ('), and avowed 
 enemies (^), and in criminal cases women also (*') unless 
 
 I prosecuting for wrongs done to themselves. Two witnesses 
 
 nmnero coUeganim ejus supprimf re vel delere ne divinfe potestati, sub 
 cujus examine causa adhuc pendet, facere Tiderer injuriam, si illius judi- 
 cium meo vellem judicio praevenii'e. Augustin De Poenit, u. 3, ap. Gratian, 
 Cans. xi. Qu. iii. c. 75 ; Quamvis vera sint quaedam, non tamen judici 
 sunt credenda, nisi certis indiciis monstrentur. Gregorius, Ibid. c. 74 ; 
 ■Grave satis est et indecens, ut in re dubia certa detur senteutia. 
 
 ' (') See Eleutherius, ap. Gratian, Caus. xxx. Qu. v. c. 11. 
 
 ■ (2) Decret. Greg. IX. Lib. ii. Tit. x. 
 
 (') Decret. Greg. IX. Lib. ii. Tit. xx. Witnesses can only state what 
 they know of their own knowledge from having been personally present, 
 Tseudo-Isidore ap. Gratian, Caus. iii. Qu. ix. c. 15, 16 and 20. 
 
 (*) Pseudo-Isidore ap. Gratian, Caus. iii. Qu. v. c. 8. 
 
 p) Concil. Carthag. vii. a.d. 419, ap. Gratian, Caus. iv. Qu, ii. c. 1 
 •Ad testimonium autem infra annos quatuordecim setatis suae non admit- 
 tantur [testes]. 
 
 (8) Pseudo-Isidore ap. Gratian, Caus. i. Qu. vii. e. 23 ; Caus. iii. Qu. iv: 
 c. 1 and 9, 11, and Qu. v. c 9; Concil. Carthag. vii. a.d. 419, ap. Gratian, 
 Caus. iv. Qu. i. c. 1 ; Omnes etiam infamise maculis aspersi, id est 
 histriones et turpitudinibus subjectse personse, hsretici etiam sive pagani 
 .Bive Judaei, ab accusatione prohibentur ; Caus. yi. Qu. i. Decret. Greg. 
 IX. Lib. ii. Tit. x?v. c. 1. 
 
 C) Pseudo-Isidore, ap. Gratian, Caus. iii. Qu. v. c. 2, 4, 10, 11, 13, 
 ,15. 
 
 (8) The evidence of women was by the Civil Law only permitted when 
 they prosecuted for their own wrongs. See Gratian, Caus. xv. Qu. iii. c. 1, 
 2, 8. Decret. Greg. IX. Lib. ii. Tit. xx. c. 8, 4, 5, 6 and 9. 
 
Criminal Procedure. — Trial. 281 
 
 ■at the least are required ('). A witness may be compelled {") 
 by ecclesiastical censures to give evidence in a civil case. 
 Not so in a criminal case, where he can only be warned ('). 
 Hearings are forbidden to be held on solemn or fast days (*). 
 
 The accused may himself give evidence (") but is not 
 bound to answer unlawful interrogatories, i.e. questions 
 tending to criminate or degrade himself. Extrajudicial 
 confessions may be received as evidence of the guilt of the 
 person making them, if they are shown to have been made 
 seriously at the time (^), but they are not evidence against 
 an accomplice (') ; nor can proceedings in a secular court be 
 put in as evidence (*). 
 
 3. After taking the evidence the Defence is open to the 
 accused. This consists in two things : (1) discrediting the 
 plaintiff's evidence ; (2) Statement of defence with evidence 
 in support of it. 
 
 Should the evidence of the plaintiff's witnesses not have 
 been given in open court, the publication of it now becomes 
 
 (') Conoil. Bracarens. ii. Can. 8, a.d. 672, ap. Gratian, Caus. i. Qu. v. 
 e. 1 ; Si quis aliquem cleiicorum in accusatione foruicationis impetet . . 
 duo vel tria te&timonia requirantur ab illo. 
 
 («) Decret.Greg. IX. Lib. ii. Tit. xxi. 
 
 (3) Decret. Greg. IX. Lib. ii. Tit. xx. c. 45. 
 
 (*) Decret. Greg. IX. Lib. v. Tit. i. c. 15, and Lib. ii. Tit ix. 
 
 (5) Although this is contrary to the ordinary English rule in criminal 
 cases, yet it has been ruled by the present Judge of the Court of Arches 
 that the accused party is admissible to give evidence under 14 and 15 
 Vict. c. 99. See Phillimore's Ecclesiastical Law, p. 1326. 
 
 (6) Confessions may not be extorted by torture, Gratian, Caus. xv. Qu. 
 vi. 
 
 O Pseudo-Isidore, ap. Gratian, Caus. xv. Qu. ill. c. 5 ; Decret. Greg. 
 IX. Lib. ii. Tit. xviii. o. 1. 
 
 (S) Decret. Greg. IX. Lib. ii. Tit. i. o. 4. 3 Hag. 260, 264, 272. 
 
282 The Elements of Canon Law. 
 
 necessary in order that the defendant may he in a positioil 
 to traverse it by cross-examination [}). 
 
 The Defendant has then a right to make a counter- 
 allegation or his own statement of Defence f ) bringing 
 forward witnesses in support of it ('), which may also be 
 published if thought fit, but publication of this is not 
 necessary. 
 
 (') Called Articuli interogatorii, or Bepetitio et Confrontatio testium. 
 (•) Processus defensive. See Caisson Manuale, vol. iv. p. 163. 
 (s) Deoret. Greg. IX. Lib. ii. Tit. xx. c. 26 and 32. 
 
( 283 ) 
 
 CHAPTER CVIII. 
 
 CRIMINAL PROCEDURE. JUDGMENT. 
 
 The Trial being over, Judgment follows. This includes 
 not only (1) Passing sentence, but also (2) the Execution of 
 the Sentence, and (3) Appeal. 
 
 1. In passing Sentence the Judge is guided not only by 
 the evidence before him, but also by vehat are called Pre- 
 sumptions C). These Presumptions are of two kinds, 
 either personal or legal. Personal presumptions are 
 personal considerations which no prudent man could ignore. 
 Legal presumptions are general considerations which the 
 law presumes, such as that an evil deed is done with an 
 evil intent. Legal presumptions only (") are not sufficient 
 evidence of guilt. 
 
 (1) Decret. Greg. IX. Lib. ii. Tit. xxiii. The following are instancea 
 of legal presumptions. See Caisson Manuale, vol. iv. p. 98. (1) Im- 
 morality is presumed si testes deponant se vidisse aliquem solum cum 
 sola, nudum cum nuda in codem lecto jaoentem ; (2) one who kills 
 another is presumed to do so of malice aforethought ; (3) boundary 
 stones are presumed to be in place, unless it can be shown they have 
 been changed ; (4) the onus of proof lies on him who alleges in- 
 competence for an ordinary position ; not so for an extraordinary one : 
 (5) a charitable interpretation is to be put on doubtful facts : (6) every 
 one is presumed to be good, until he is shown to be bad. Decret. Greg. 
 IX. Lib. ii. Tit. xxiii. c. 3 and 6 and 9 ; youthful conduct is a presump- 
 tion as to conduct in old age, u. 4 ; he who seeks delay is guilty, c. 5 : 
 he who denies only one of two charges admits the other, e. 7 and 8. 
 What is known abroad is known at home, o. 10 ; stronger evidence is 
 necessary to establish an improbability. 
 
 (2) Decret. Greg. IX. Lib. ii. Tit. xxiii. o. 14, by c. 15 ; a presump- 
 
284 The Elements oj Ganon Law. 
 
 Sentences are of two kinds : (1) Interlocutory and (2) 
 Definitive. An interlocutory sentence is a decision given 
 on a point whicli tas been incidentally raised during the 
 hearing of a case. , A definitive sentence is a sentence on 
 the case itself Q). 
 
 To be canonically valid a Definitive sentence must fulfil 
 the following conditions : (1) It must be absolute not 
 conditional ; (2) it must be in writing (^) ; (3) it must be 
 according to Law (') ; (4) it must be pronounced in presence 
 of the parties or at least after they have been peremptorily 
 cited to be present. And (5) it must be according to the 
 Libel, and given after the strictest proof (*). 
 
 2. If no appeal is made (*), the Defendant in'a Civil case 
 has four months to obey the f) Sentence ; in a criminal case it 
 
 . takes efl'ect at once. A sentence duly passed by a judge can 
 be enforced anywhere, and it is the Ordinary's duty to 
 see to its prompt execution. Payment of costs can be 
 compelled by ecclesiastical censures. 
 
 3. An Appeal is a carrying the case to a higher Tribunal 
 
 tion of inoontinenoe in old age will not hold against one who has been 
 continent iB his youth. 
 
 (1) Clement. Lib. ii. Tit.xi. 
 
 (•) Gratian, Caus. ii. Qu. i. n. 8 and 9. 
 
 (^) On the invalidity of an unjust sentence see authorities ap. Gratian, 
 Caus. xi. Qu. iii. u. 86 to 89, 94, 95. Decret. Greg. IX. Lib. ii. Tit. xxvii. 
 c. 1. Sext. Decret, Lib. ii. Tit. xiv. 
 
 (*) Hence no action can be taken against a Bishop until his offences 
 ia proven. See Symmachus ap. Gratian, Caus. viii. Qu. iv. 
 
 (5) A number of Fseudo-Isidorian decretals on appeals ap. Gratian, 
 Caus. ii. Qu. vi. o. 1-9. 
 
 (6) A sentence stands good untU it is appealed against, although given 
 on faulty data, Gratian, Caus. xxxv. Qu. ix. 
 
Criminal Procedure. — Judgment. 285 
 
 (') for a rehearing in, order that a sentence may be 
 there altered or dissolved. Anyone who feels himself 
 aggrieved may appeal 0; either (1) judicially or (2) extra, 
 judicially ; judicially to set aside a definitive sentence ; extra- 
 judicially to correct an interlocutory decision, or to remedy an 
 injury caused by a mistake ('). 
 
 An appeal may be made either viva voce, when the 
 Judge is sitting in court, or, if made afterwards, by means of 
 a Libel. 
 
 The effect of an appeal is to suspend execution of the 
 sentence until the decision of the superior court is known (^). 
 
 The forms of appeal are local and variable. So is the 
 limit of time vrithin which an appeal may be prosecuted (^). 
 
 (i) Within a limited time, Gratian, Cans. ii. Qu. yi. c. 7 to 12, 22 and 
 28 to 31, 37 and 41, appeals shonld be prosecuted within a year. 
 See Concil. Carthagen. t. Can. 12, a.d. 401, and Gelasius ap. Gratian, 
 Gaus. xi. Qu. iii. o. 36 and 37. Pseudo-Isidore ap. Gratian, Caus. ii. 
 Qu. vi. c. 21. Sext. Decret. Lib. ii. Tit. xv. Clement Lib. ii. Tit. xii. 
 
 (*) Decret. Greg. IX. Lib. ii. Tit. xxvii. e. 9 and 22, and xxviii. 
 
 (s) Such as a sentence of excommunication given on a false certificate 
 of citation. 
 
 P) In England the Inhibition issued on appeal suspends proceedings 
 in the court below. 
 
 (5) By rule 23 of the Eules in force since 1 Jan. 1867, in the Arches 
 Court of Canterbury, notice of appeal must be giren within 15 days of 
 the date of the order or decree appealed from, and prosecuted within one 
 month. 
 
286 The Elements of Canon Law. 
 
 CHAPTER CIX. 
 
 STATUTORY LIMITATIONS OF COUBTS CHEISTIAN IN ENGLAND. 
 
 English Law has curtailed tlie jurisdiction of the 
 Ecclesiastical Courts principally in two ways : (1) by with- 
 drawing from them many things which once belonged to 
 their cognisance, and (2) by creating a new supreme Court 
 of Appeal. 
 
 1. The Act 53 Geo. III. c. 127 forbids Ecclesiastical 
 Courts from passing sentences of EKCommunication, save 
 when such sentences are pronounced as spiritual censures 
 for offences of ecclesiastical cognisance only, and in that 
 case forbids Excommunication from being followed by any 
 civil penalty or incapacity beyond a liability to imprisonment 
 for a term not exceeding six months, this imprisonment to 
 be enforced only through the Civil Authority by means of a 
 Writ called Significavit. The Statute 20 and 21 Vict. c. 
 85 passed in 1857, withdrew Divorce and Matrimonial causes 
 from the cognisance of the Spiritual Courts ; and the Statute 
 20 and 21 Vict. c. 77 amended by 21 and 22 Vict. c. 95, 
 abolished all the powers hitherto exercised by them in the 
 granting of Probates of Wills and Letters of Administration, 
 transfering these to a new Court called the Court of 
 Probate, which is now a branch of the High Court of 
 Justice. 
 
Statutory Limitations oj Courts Christian in England. 287 
 
 2. The Act of Supremacy 26 Hen. VIII. c. 1. in 
 substituting the Sovereign for the Pope as Supreme Head of 
 the Church, without supplying him with the necessary 
 ecclesiastical machinery, practically exempted the Bishops 
 of the two English Provinces from the supervision of the 
 Collective Episcopate, that supervision having heretofore in 
 the intervals between General Councils been exercised by 
 the Pope as the Representative of the whole Episcopal 
 Body, and as the President of a permanent Committee of 
 Revision of the whole Church. 
 
 3. In place of appeals to the Pope the Statute 25 Hen. 
 VIII. c. 19, permitted appeals from the Archbishop's Court 
 to the King in Chancery, the practice being for the Lord 
 Chancellor on petition to appoint certain Delegates to hear 
 the appeal, that body being called the Court of Delegates. 
 Should their decision not be satisfactory, a commission of 
 review might be granted under the great seal on petition to 
 the King in Council, " to revise, review, and rehear the 
 case." 
 
 4. The Act 2 and 3 Will. IV. c. 92 prohibited the 
 granting in future of Commissions of Review and the 
 Act 3 and 4 WUl. IV. c. 41 transferred the powers and 
 jurisdiction of the Court of Delegates to the Judicial 
 Committee of the Privy Council. An entirely new Court 
 was thus established as the supreme Court of Appeal in 
 matters Ecclesiastical. 
 
 Strange as these results may seem, it is hard to see 
 how any Civil Government could allow cases involving 
 the property and eivU rights of citizens within the realm 
 to be carried on appeal before a body of mostly alien 
 
288 The Elements of Canon Law. 
 
 ecclesiastics; nor even how it could permit appeals to 
 be settled by ecclesiastics at home, without affording 
 the opportunity for their decisions to be revised by 
 secular courts, should they be given contrary to the Liaws 
 of the realm. 
 
( 289 ) 
 
 CHAPTER ex. 
 
 STATUTORY EEGDIjATION OF ECCLESIASTICAL PEOCEDURB 
 IN ENGLAND. 
 
 T.. The manner of proceeding in the English Ecclesiastical 
 Courts is founded on the general method of ecclesiastical 
 procedure, modified partly by decisions of the supreme Court 
 of Appeal, partly by Statutes specially affecting it, the 
 principal ones in modern times being the Statutes 1 and 2 
 Vict. c. 106, amended by the Pluralities Amendment Act 
 48 and 49 Vict. c. 54, and 3 and 4 Vict. c. 86, the latter 
 being commonly known as the Church Discipline Act. 
 
 The Criminal suit is open to any one whom the Ordinary 
 allows to promote his ofBce, not excluding one excommuni- 
 cated by sentence ('). It is within the Ordinary's discre- 
 tion to allow, or to refuse to allow, his office to be promoted 
 
 ; but having once permitted action to be taken he canno^ 
 subsequently interpose to stay proceedings without the pro- 
 moter's consent C). Criminal proceedings are, however, 
 limited in case of procedure for the soul's health to offences 
 committed within the previous eight months (*) in case of pro- 
 
 C) Privy Council, Mastin v. Escott, 2 Curt. 692, 4 Moore P. C. 104, 
 
 1 Notes of Cases, 552, 3 Notes of Cases, 387. 
 
 m See Notes, Phillimore's Ecclesiastical Law, p. 1320 and 1299, so 
 that be may consider tlie fitness of the person to be made responsible for- 
 costs to the other party, Carr v. Marsh, 2 Phill. 204. 
 
 fal Beg. V. Archbishop of Canterbury, 6 El. and Bl. 546. 
 
 ii\ Bv 27 Geo. III. c. 44 ; No suit shall be brought in any ecclesiastical 
 
 ^' ^ V 
 
290 The Eleifyents of Ganon Law. 
 
 cedure for purging the Church, to offences committed within 
 two years (^) before the service of the citation C). A criminal 
 case may be adjudicated upon either by the Bishop with 
 Assessors, or sent by him by Letters of Bequest to the 
 Court of the Province to be there tried ('). 
 
 conrt for fornication or incontinence after the expiration of eight calendar 
 months from the time when snch oSence shall have been committed. 
 In Free y. Burgoyne, 9 D., and B. 14; 2 Bligh N.S. 65, where a clergy- 
 man was proceeded against for incontinence committed more than eight 
 months previously a prohibition was awarded as to proceedings for 
 Reformation of manners, bat a cousoltation granted for purging the 
 Chnrch of a criminons clerk. 
 
 (') By 3 and 4, Vict. c. 86, sect 20 ; Every suit or proceeding against 
 any snch clerk in Holy Orders for any offence against the laws ecclesiasti- 
 cal shaU be commenced within two years after the commission of the 
 ofEence in respect of which the act or proceeding shaU be instituted and 
 not afterwards. 
 
 (") Denibon v. Ditcher, Deane and Swabey's Rep. 334, 11 Moor, 
 P. C. 324. 
 
 (^) The Statute provides for the trial of an accused Clerk in the follow- 
 ing way : 
 
 1. By sec. 3. the Bishop may issue a Commission of Inquiry to 5 
 persons, of whom one shall be his Yicar-General or an Archdeacon 
 or Bnral Dean within the Diocese after 14 days previous notice of 
 his intention so to do. If the Commission report that there is prima 
 facie ground for proceeding, 
 
 2. The case may be adjudicated upon by the Bishop, either 
 
 (a) Under sec. 9, by the Bishop or his Commissary summarily, if 
 the defendant plead guilty, or 
 
 (h) Under sec. 11 after a hearing by the Bishop with 3 Assessors, one 
 of whom shall be an Advocate of 5 years standing or a Serjeant or a 
 Barrister of 7 years standing, and another the Dean or an Archdeacon 
 or the Bishop's Chancellor. 
 
 3. Or by sec. 13 the case may be sent by Letters of Bequest to the 
 Court of the Province, either 
 
 (a) In the first instance, or 
 
 (fc) After the Commission of Inquiry has reported and before Articles 
 
 are filed. 
 
Statutory Regulation of Ecclesiastical- Procedure. 291 
 
 The Civil suit is open to any one showing an interest (')i 
 
 2. In the case of the clergy a Criminal suit may h4 
 preceded by a commission of inquiry {') to ascertain if there 
 are any sufBcient grounds for bringing it. Such a commis^ 
 sion is however strictly limited in its inquiries to matters 
 arising within the local limits of the Bishop's authority whd 
 issues it ('). 
 
 3. The actual suit is commenced by a Citation, which is 
 issued by the Spiritual Court' on the motion of a Com^ 
 plainant. The Citation calls on the Defendant, whom it 
 cites by name, to appear on a certain day at a certain place 
 before a Judge whose name is also given to answer to a 
 charge, the nature of which is described. Such a Citation 
 when issued by the Court of Arches is called a Decree. 
 
 4. The original charge or first plea is called a Libel in a 
 Civil case, or Articles in a Criminal case. A Libel runs in 
 the Complainant's name who alleges and propounds what is 
 therein set forth ; Articles run in the Judge's name who 
 articles and objects. Every other kind of plea and every 
 subsequent plea whether responsive or by way of rejoinder 
 and by whatever party given in is called an Allegation. In 
 a Criminal case the Court cannot go beyond the particular 
 offence charged (*) nor can the Articles go beyond what is 
 contained in the Citation ("). The promoter of the Judge's 
 
 ^ (I) Turner v. Meyers, 1 Consist. 415 note. 
 
 (2) 3 and 4 Tiot. c. 86, sect. 3. 
 
 (8) Homer v. Jones, 9 Jur. 167. 
 
 (*) The general words of Articles only include eubordinate charges 
 ejusdem generis. See Bennett v. Bonaker, 3 Hagg. 25. 
 
 (5) Bieeks v. Woolfrey, 1 Curt. 880. 
 
 U 2 
 
292 The Elements of Canon Law. 
 
 office is, moreover, bound not only to give the substance but 
 also a true copy of the Articles to the defendant (^). 
 
 5. When the Defendant appears on the day and at the 
 place named and hands in his answer, he is said to join 
 issue, and the handing in of the answer is called joining 
 issue, or Litis Contestatio. Issue may be joined in 
 one of three ways ; (1) by simply affirming the Libel or 
 Articles, in which case the suit is at an end, or (2) by 
 simply denying them, or (3) by admitting or denying them 
 with qualification. 
 
 6. Before evidence can be tendered or a plea of any 
 kind be admitted to proof, the court must first settle 
 what pleas are admissible and what are not. It is open to 
 either party to object to the other's pleas in whole or in 
 part, and the arguments upon these objections have first to 
 be heard and decided. 
 
 7. When the pleadings have been thus settled the case is 
 ripe for evidence, if any of the facts alleged in the pleadings 
 are in dispute. In giving evidence the Act 18 and 19 
 Vict. c. 41 allows viva voce examination and cross-question- 
 ing in open court in place of written evidence taken before 
 an examiner out of court, as used to be the practice. In 
 Criminal cases the Defendant cannot be called upon for 
 answers ('). Nor is he in others bound to answer when his 
 answer would criminate himself, or even tend to degrade 
 him ('). The Defendant has nevertheless been allowed to 
 
 ( '■) Williams v. Bott,\ Consist. 1, and Thorpe v. Mansell. 
 {') See Stephen on Pleading, i). 25. 
 (S) Swift V. Swift, i Hagg. 139. 
 
Statutory Regulation of Ecclesiastical Procedure. 293 
 
 give evidence C) by virtue of the Act 14 and 15 Vict. c. 
 99, in cases which have been taken on appeal to the Privy 
 Council without any opinion having been there expressed as 
 to the admission of such evidence (^). 
 
 8. From a sentence when given an appeal lies first to 
 the Court of the Province and then to the Privy Council. 
 But besides these appeals the High Court of Justice also 
 interposes to set aside the sentences of Ecclesiastical 
 Tribunals by Writ of Prohibition (°) ; in any case where they 
 appear to have overstepped the limits of their Jurisdictioq 
 or where there has been an obvious denial of justice in the 
 conduct of a case. Prohibition, however, is not usuallj*' 
 allowed in cases in which justice could be obtained by 
 appeal. 
 
 (1) Bp. of Norwich v. Pearse, L. E. 2 Adm. and Eccl. 281. 
 
 (2) L. E. 3, P. C. 52. 
 
 (') Something of tie same kind is known to the Canon Law. See 
 Decret. Greg. IX. Lib. ii. Tit. xxvii. c. 24. 
 
394 . Tlve Eleriients of Canon Law. 
 
 CHAPTEE CXI. 
 
 GENERAL KEVIEW OF THE SUBJECT. 
 
 . The abiding impression left on the mind from a study of 
 Canon Law is that of respect for its scrupulous care to 
 guard against the smallest injustice and its extreme charity. 
 
 1. "Whilst it lays down strict rules for the government of 
 those enlightened by the knowledge of God in the face of 
 Jesus Christ, it never forgets that we have this treasure in 
 earthen vessels ; and that although the soul soars upwai'ds 
 to higher things, the body has not lost its human instincts. 
 
 2. Whilst it teaches that by the Incarnation the Church's 
 Founder has rescued humanity from its low estate and 
 sanctified it, and that the Christian's Body is a temple of 
 the Holy Ghost, it still makes allowances for the strength 
 of human passions surprising the unwary and carrying them 
 to excess at times, remembering that the simple gratification 
 of the primary instincts of human nature such as eating, 
 drinking, sexual intercourse, and the like, is not wrong per 
 se (') but only becomes so when indulged in excessively, 
 unlawfully, or ramatnraUy. 
 
 3. Far from confounding religion with morahty, it owns 
 that the Church itself exists through grace, and hence re- 
 joices in every triumph of grace over human weakness. 
 
 (1) Angostine. ap. Gratian, Cans, sxxii. Qn. i. c. 11. See Chap. i. 
 
General Review of the Subject. 295 
 
 Ever merciful, that where sin has abounded, gi-ace might 
 much more abound, it trusts to its supernatural power to 
 raise up them that fall, and finally to beat down the power of 
 evil, and has none of the world's timidity in the face of ac- 
 knowledged wrong-doing ; this it has anticipated, with this it 
 is prepared to deal. 
 
 4. And thus it confers a quiet dignity on the society 
 which is under its rule, such as no association possesses 
 which repudiates its sway. For it represents no sudden 
 thought nor spasmodic action, but the accumulated wisdom 
 of centuries, dealing under the guidance of the Holy Ghost 
 with human nature which is ever the same, which has still 
 the same instincts, the same temptations, the same aspi- 
 rations, hopes and fears, and the same complicated problems 
 to solve as it had in mediaeval or Apostolic times, or in the 
 yet remoter ages of waiting tiU the coming One should 
 come. 
 
 Of it may, therefore, be said in the words of Solomon : 
 Happy is the man that findeth wisdom and the man that 
 getteth understanding ; and in the words of One greater 
 than Solomon : Wisdom is justified of her children. 
 
INDEX. 
 
 Abridgements of Gollectione, 86. 
 
 Accusation, 265, 266. 
 
 Acolytes or Attendants, 146, 172. 
 
 Acton, John of, 62. 
 
 Adrian II., 59. 
 
 Adriano-DionysiaQ Collection, 38. 
 
 Advocate, 261 ; duties of, 262. 
 
 Advowson, 217. 
 
 Adultery, 182, 177, 184, 185; a cause of 
 Irregularity, 159. 
 
 African Church, 37, 3B, 89. 
 
 Alan, 50. 
 
 Alexander IIL, Pope, 46, 49; IV., Pope, 
 51. 
 
 Alexandria, Patriarch of, 26, 88. 
 
 Alienation requires consent of Bishop 
 and Chapter, 205. 
 
 Allegation, 274, 291. 
 
 Altar Fasting, 188 ; Service of, 145, 147. 
 
 Ambrosian Use, 238. 
 
 Anathema, 195. 
 
 Anastaslus II., Pope, S8. 
 
 Ancheriana Collection 40. 
 
 Ancyra, Council of, 38 
 
 Anselmo Collectio dedicata^ 40 ; of 
 Lucca's Collection, 42, 46. 
 
 Antioch, Church of, 12 ; Patriarch of, 26, 
 88 ; Council of, 38, 98; forbids trans- 
 lations, 112. 
 
 Anne, Queen, Bounty. 202. 
 
 Annunciation, Feast of, 247, 
 
 Apostasy, 183. 
 
 Apostles' Doctrine, 13 ; Commission, 73 ; 
 College, 74, 77. 
 
 Apostolic Canons, 37, 88; Church, 11, 
 12, 14 ; College, Bishop representa- 
 tive of, 114, 162; Commissaries, 95; 
 Prefects, 95 ; Succession, 145. 
 
 Appeal, 25, 283 ; to Metropolitan, 100 ; 
 Pope's final Court of Appeal, 91 ; Su- 
 preme Court of, in England, 236. 
 
 Appointment, Canonical, 83. 
 
 Appropriation, Origin of, 214» 
 
 Apse, 242. 
 
 Aq,uileia, 96i 
 
 Arbitrators, 257. 
 
 Archbishop, Description of, 98. 
 
 Arches Court, 108, 291. 
 
 Archdeacon, 116, 128, 124, 170; repre- 
 sents the Church of the county, 203 ; 
 Court, 255. 
 
 Arcbpriest, 116, 128. 
 
 Aries, Council of, 90. 
 
 Articles, 266, 274, 291. 
 
 Aschaffenburg, Concordat of, 58. 
 
 Assumption, 247. 
 
 Athanasius Consecrated vithoat othet 
 Bishops, 165. 
 
 Athon, John of, 62. 
 
 Audience, Court of, 102. 
 
 Augustin of Canterbury, 60. 
 
 Augustin of Hippo on Episcopal gualifi- 
 cations, 168. 
 
 Augustin, Canons Kegular of S., 231, 240 
 
 Austin Friars, 232. 
 
 Avignon, 231. 
 
 Bangor, Use of, 288. 
 
 Baptism, 129, 182; effect of, 134; essem 
 
 tials of, 184 by immersion, 184 
 
 minister of, 185 ; of children, 135 : 
 
 time for, 135 ; places for, 136 ; clini'' 
 
 cal, 136. 
 Basil of Cfesarea, 239. 
 Basle, Council of, 58. 
 Beda, Penitential of, 42. 
 Boniface VIII., The Sext of, 83, 44, 51. 
 Benedict XI., 51; of Nursia, 281, 289; 
 
 founder of Benedictines, 239 ; of 
 
 Aniane, 231. 
 Benedictine, Italian, 46, 231 ; reformed, 
 
 231. 
 Benediction of Churches, &c., 235, 243. 
 Benefices given to the Church, 204, 211 
 
 Ecclesiastical or Chapter, 216 ; Pa> 
 
 rochial, 216, 221 : effects of, 217. 
 Beneficed Clerk, 209. 
 Beneficio Suspension a, 192; Depriva- 
 
 tion a, 193. 
 
298 
 
 INDEX. 
 
 Bemardus of Pavia, 49. 
 
 Berthold of Limoges, 283. 
 
 Betrothal the first part of Matrimony, 174. 
 
 Bishops inheritors of the Apostles' com- 
 mission, 22, 161 ; partakers in. one 
 undivided office, 24. 25, 162 ^^ their 
 Jurisdiction derivative, 24, 161; one 
 Order with Priests, 129,148; have a 
 higher degree in the Priesthood, 129, 
 161 ; have the plenitude thereof, 74, 
 161,161; Diocesan, 24, 85, 105, 162; 
 Diocesan jurisdiction an ordinary 
 one, 80, 162 ; duties of, 166 ; appoint- 
 ment of, 105.;. qualifications for, 168; 
 consecrated by a Metropolitan, 163; 
 dispensing powers of, 160 ; Bishop 
 and Chapter bind the Church, 115 ; 
 not judges in their own case, 196; 
 their Court, 255. 
 
 Birinus, Mission of, 61. . 
 
 Bologna, Gratian of, 46; Canonists of, 
 49, 50 : University of, 52. 
 
 Bourges, Sanction of, 58; Patriarch of, 
 96. 
 
 Bow Church, 108. 
 
 Breviatio Canonum of Fulgentius Fer- 
 randus, 37. 
 
 Sr&viarium Extravagantivm, 49. 
 
 Breviary, 240. 
 
 Briefs, 29. 
 
 Bruno, S.,281. 
 
 Bulgaria, Archbishop of, 96. 
 
 Bulls, Papal, 29. 
 
 Burchard of Worms, 42, 46. 
 
 Cffisarea, Frotothrone of, 
 
 Basil of, 
 
 Calixtus 11., Pope, 67. 
 
 Calumny, oath of, 263, 279. 
 
 Cambray, Halitgar of, 40. 
 
 Canon an ''article of faith in the New 
 Testament, 7 ; of the Mass, 238. 
 
 Canons or Members of a Chapter, 117; 
 or Canonici, 229; regular, 231. 
 
 Canonical Jurisprudence, 4. 
 
 Canonists, MediEeval, 45. 
 
 Canons, authority of, 4, 65 ; sanction of, 
 17 ; of Councils, 28 ; share of Laity 
 In making, 21 ; publication of, 21 ; 
 creating disabilities, S3 ; conferring 
 privileges, 33 ; spurious, 83 ; Apos- 
 
 '■ tolic, 37 ; provincial, 62. 
 
 Canonum ColhcUo made in France in 
 8th century, 40. 
 
 Canterbury, See of, 102; Patriarch of, 96. 
 
 Cantor or Singer, 173. 
 
 Capitularies, 41. 
 
 Carthage, Council of, 163. 
 
 Carmelites, 282. 
 
 Cathedral the Bishop's residence, 167, 
 241. 
 
 Cathedratieum, a parochial quit-rent, 
 218. 
 
 Catholicism, 70, 77 ; Whitsuntide the 
 Feast of, 247. 
 
 Catholicity of the Church, 11, 12, 18. 
 
 Cardinals, Congregation of, 29, 93 j Col- 
 lege of, 92, 98. 
 
 Carthusians, 231. 
 
 Casuistry, 182, 187- 
 
 CaU8CB^ 46. 
 
 Causa Svmoniacorum, 47. 
 
 Causa Conjugii, 47. 
 
 Celibacy of the Clergy, 155. 
 
 Censures on the Clergy, 192. 
 
 Centralisation, tendency to, 35. 
 
 Censures Ecclesiastical, 5, 18, 72, 128, 129. 
 
 Chapter, The, 76, 107, 108, 114; cannot 
 act without Bishop, 115, 118 ; Juris- 
 diction of, 117; throughout the Dio- 
 cese, 209, 217; consists of regularly 
 attached Clergy, 117, 200; confirma- 
 tion of Bishop's Officials by, 81 ; 
 curtailment of by growth of parishes » 
 211, 212. 
 
 Chapter-titles, 117. 
 
 Chalcedon, Council of, 88, 42. 
 
 Chancery, Roman, 94. 
 
 Chancel, 242. 
 
 Chancellor of a Bishop, 119- 
 
 Chapelries within a parish, 220. 
 
 Chalice, 189.. 
 
 Charles, Emperor, presented with Col- 
 lection of Canons, 88. 
 
 Chartres, Ivo of, 42. 
 
 Chichele, Henry, 62, 
 
 Chiusi, Bishop of, 46. 
 
 Choir of a Cathedral, 242. 
 
 Chorepiscopi, 24 note, 165. 
 
 Chrism for Confirmation, 142. 
 
 Christmas, 188, 247. 
 
 Chrodegang of Metz, 240. 
 
 Church a Spiritual Society, 8, 9; gath* 
 ered ou* of the world, 78; outward 
 and visible, 10 ; the Body of Christ, 
 
INDEX. 
 
 299 
 
 8, 7, 9 ; object of its existence, Sj/unity 
 of, 11, 12, 36, 71 ; Holiness of, 11, 12, 
 18, 71 ; Catholic, 11, 12, 13, 71 ; Apos- 
 tolic, 11, 12, 14, 71; Constitution of, 
 12; Eastern, 12; Western, 12; pre- 
 Bervedfrom Apo8tacy,16; and State, 
 19 ; a great Corporation, 201 ; ge- 
 neral government of, 71; judicial 
 power of, 178; represented by Bishop 
 and Chapter, 115, 204 ; as a build- 
 ing, 241 ; property, 199, 201, 204 ; 
 fourfold division of, 204 ; effects of, 
 207 ; Discipline Act, 239- 
 
 Churching of Women, 140. 
 
 Churchwardens the Bishop's officers, 220. 
 
 Citation, 274, 276, 291. 
 
 Civil Oases, 263. 
 
 Cjivi] Law, 2, 8, 41, 42. 
 
 Cisalpine Church, submission of, 40 ; 
 a Missionary Institution up to 12th 
 century, 197 ; Christianity creates 
 parochial benefices, 216 ; Dioceses 
 of vast size, 234. 
 
 Cistercians, 231. 
 
 Glasse, Monastery of, 46. 
 
 Clement, Pope, 39; IV., 51; legate of, 62; 
 v., 44, 52; VIII., 53. 
 
 Clementines, 44, 52. 
 
 Clergy, Share of, in Episcop&l Appoint- 
 - ments, i07, 108. 
 
 6lugny, 231. 
 
 Cluniacs, 231. 
 
 Coadjutot Bishops, 113, 119. 
 
 Code of the African Church, 37, 88. 
 
 Code of Canon Law, 44. 
 
 Codification of Canons, 86, 87, 41, 42. 
 
 Coelestine III., 49. 
 
 Co-episcopate, 74,116, 1^2,162; concur in 
 Consecration', 152; and in (granting 
 Dispensations, 160. 
 
 Collation; 218. 
 
 Collectio Aacheriana, 40, 
 
 CoUectio Anselmo dedicata, 40 
 
 Collectio duodecim partium, 42, 
 
 Collections of Canons, 37. 
 
 Collective Episcopate, 74, 82, 85, 86. 
 
 Colleges, 197, 200, 226, 228. 
 
 Common Law, 2, 8. 
 
 Communion in Eucharist in one kind, 
 
 ■ 139. 
 
 Compilatio prima, 49 ; secunda, 49 ; tertian 
 • 49 ; guarta, 50. 
 
 Composition, 276; ' ' 
 
 Compromise, Election by, 109. ; 
 
 Commissaries of Bishops, 122. 
 
 Confession, Private, 187. 
 
 Confirmation a Sacramental Act, 129, 
 131, 140 ; supplementary to baptism 
 141 ; ministered by a Bishop, 142, 
 167. 
 
 Confirmation of Bishopa-j 106, 111; effect 
 of. 111. 
 
 Concordat of Worms, 57; of Constance. 
 58, 
 
 Concordats, 19, 57, 58< 59. 
 
 Gonaordantia dieeordantium, CanonvM^ 
 86, 48, 46. 
 
 Concordia Canonum of-Cresconius, 88, 
 
 Concubines, 173, 
 
 Consecration of Bishops, 152; a Sacra- 
 mental Act, 164; of Churches, 235, 
 243, 244. 
 
 Consent, Mutual, initiates marriage, 175. 
 
 Consistorial Courts, 103. 
 
 Consistories, 93./ 
 
 Conscience, 18, 68, 79, 
 
 Conspiracy, Clerical, 179. 
 
 Constance, 58. 
 
 Constantinople, 26 ; Patriarclj of, 88 ; 
 Council of, 38, 89, 89. 
 
 Constitutions Papal, 28, 29 ; Legatine, 62. 
 
 Constitution" 8 Extravagantee Libri Sexti, 
 51 ; Glementincp., 52. 
 
 Consummation of Marriage, 175. 
 
 Congregations, 93 ; of the Consistory, 93 ; 
 of the Inquisition, 93; of the Index, 
 94; Of the Council of Trent, 94; of 
 Bishops and Regulars, 94; of Rites, 
 94; of Indulgences, 94; of the Pro- 
 paganda, 94 ; religious, 226. 
 
 Continence, Clerical, 155 ; vows of, 177. 
 
 Contentious Jurisdiction, 79. 
 
 Conversion, 189. 
 
 Corinth, protothrone of, 96. 
 
 CoiTectores Romani, 48, 
 
 Corporations, 210; aggregate, 203, 205 
 207; sole, 203, 205, 207, 215. 
 
 Corpus Juris Canonici, 43, 44, 45, 61, 69 ; 
 authority of, 54, 57 ; Case Law of the 
 Church, 69. 
 
 Council, General, 22, 25, 28; authority 
 of, 85. 
 
 Courts Christian, 255, 263. 
 
 Creeds, 14. 
 
 Cresconius, an African Bishop, 37. 
 
 Criminal Cases, 263. 
 
300 
 
 INDEX. 
 
 Carates, 221. 
 Curia JBomana, 61, 93. 
 Custodian, 173. 
 Gnstoms, Local, 28, 31. 
 Cyprns, Archbishop of, 96. 
 
 Damasns, Pope, 39. 
 Datary, Roman, 94. 
 De Causia Synodalibus, 42. 
 De Concordia Sacerdotii et Imperii, 45. 
 De Consecrationet 46. 
 De MinisteriiSt 46. 
 De Ntgotiis^ 46 
 De SacramentiSf 46. 
 
 Dean or Archpriest of the Diocese, 123. 
 Dean, Baral, 119, 122. 
 Dean of the Arches Conrt, 104. 
 Deacons, 129, 148, 169; duties of 169; 
 importance of 170; two degrees of 
 148. 
 Decrees, Papal, 26, 29, 89. 
 Decretals, Papal. 29, 49 ; of Gregory IX, 
 33, 44, 50, 51 : of Innocent III. 49 ; 
 post Gregorian, 51 ; False, 37, 39. 
 Deoretnm of Ito, 42 ; of Gratian, 43 ; 
 described, 46 ; superseded other 
 collections, 47 ; publications of, 49. 
 Dedication Feast, 252. 
 Defence, 281. 
 Defendants, 260, 282. 
 Degradation, 192, 193. 
 Delegated Jurisdiction, 79, 80, 82. 
 Delegates, 257 ; Court of 287. 
 Denounced, A, person, 195. 
 Dennnciatittn, 265 ; of two kinds, 269. 
 Deprivation. 192, 193, 223. 
 Derivative Jurisdiction, 24. 
 Deusdedit, Cardinal, 42. 
 Diaconate, The, 169. 
 
 Diocese the unit of Jurisdiction, 4, 26, 
 
 76, 114, 199, 200 ; antiquity of 114, 
 
 199; subdivision of, prevented, 199. 
 
 BQb'Units of, 209. 
 
 Diocesan System, Sub-units of, 5 ; change 
 
 of in 12th century, 197. 
 Diocesan Bishops. 24, 85, 105, 162 ; 
 dispensing powers of, 160; adminis- 
 trators of Discipline, 179. 
 Diocesan Officers, 116, 123 ; Jurisdiction 
 
 80, 162. 
 DionysiuB Exiguus, 88 ; a Scythian 
 monk, 88; collections ofj 37. 
 
 Direct Jurisdiction, 79. 
 
 Discipline, Administration of, 5, 72, 129, 
 198 ; Church, 178 ; of the Clergy 
 190; Private, 180, 181; Public, 180, 
 181, 183.188; subject-matter of, 182 ; 
 Church Act, 289. 
 
 Disciplinary Laws, 68. 
 
 Dispensations, 17, 104 ; customs serve 
 as, 32 ; of an irregularity, 160 J 
 granted by the Co-episcopate, 160 ; 
 sometimes by the Diocesan, 160. 
 
 Distinctionea, 46. 
 
 Divine Law, 1, 69 ; office, 237. 
 
 Divorce not allowed, 177. 
 
 Dominic, S., 232 
 
 Dominicans, 232. 
 
 Dominus Litis^ 261. 
 
 Doorkeepers, one of the Minor Orders 
 146. 172. 
 
 Durandus, the Canonist, 45. 
 
 Easter Communion, 138. 
 
 Easter Eve, 135. 
 
 Easter Observance, 246. 
 
 Eastern Church, 12, 87 ; allows confirma. 
 
 tion by a Priest, 142. 
 Ecclesiastical Law, 2, 57 ; Commis- 
 sioners, 202 ; Conrts, 255. 
 Ecumenical Council, 22 ; abeyance of, 86* 
 Egbert, Penitential of, 42. 
 Election, Canonical rules of, 109. 
 Ember Days, 248. 
 Encyclicals, 30, 
 
 England, National Church in, 57 ; Canon 
 Law in, 60; in Western Patriarchate* 
 60. 
 Ephestis, Council of, 38. 
 Epiphany, 247. 
 
 Episcopate, Collective, 22, 23; see Co- 
 episcopate ; Title to, 161. 
 Episcopal Officers, 116. 
 Erastianism, 76. 
 Espousals, the second part of Matri- 
 
 mony, 175 ; essentials of, 175. 
 Essentials for the Church's mainten- 
 ance, 4, 71. 
 Eucharist, 5, 129, 182; material forms 
 of, 137; times of, 137, 138; reserva- 
 tion 138. 
 Eucharistic Worship, 198 ; Service, 233. 
 Eugenins IV., Pope, 58. 
 Exception, 277. 
 
INQ3X. 
 
 301 
 
 Exchanging, 218. 
 
 Excommunication, 19, 194 j the greater, 
 
 194 ; the lesser, 194. 
 Exorcists, 146, 172. 
 Extensions of Cinons, 31. 
 Extrajudicial Jurisdiction, 79. 
 Extravagantes, 53 ; of John XXII., 44, BS ; 
 
 Communes, 44, 51, 53; of Bornardus, 
 
 49. 
 
 Faculties, Master of the, 104 ; court of, 
 
 104, 
 Faith, The, 14. 
 False Docretals, 37, 39 j witness, 183. 
 
 Falsification of Ecclesiastical Docu- 
 ments, 193. 
 Fasting Communion, 138; Altar, 138. 
 
 Fasts, 236, 243. 
 
 Feasts, 236, 246. 
 
 Feudalism, influence of in Benefices, 
 204, 211. 
 
 Florence, Zabarella of, 45; Council of, 
 53. 
 
 Formal Jurisdiction, 79. 
 
 Forum Ecclesiasticum, 67. 
 
 Foritm ConscientuE, 67. 
 
 Foundations, Beligious, 199, 223 : varie- 
 ties of, 226. 
 
 France, National Church in, 57. 
 
 Francis I., 59. 
 
 Francis, S., of Assissi, 232. 
 
 Franciscans, 232. 
 
 Frankish Church, Canons, 43. 
 
 Frankfort Concordat, 68. 
 
 Frederick III., Emperor, 58. 
 
 Freehold tenure of Church Offices, 207, 
 217. 
 
 French Councils, 39 ; Church, 42 ; Par- 
 liament, 59. 
 
 Friars, 231; Black, 232; White, 232 ; 
 Grey, 232. 
 
 Friday, 246. 
 
 Fulgentius Ferrandns, 37. 
 
 Gallican Church, Liberties of, 58. 
 
 Gangra, Council of, 38. 
 
 General Councils, 22, 25, 28. 
 
 Germany, National Church in, 57. 
 
 Gifts, 5, 128, 129. 
 
 Gilbert, 50, 
 
 Gildas, Penitential of, 42. 
 
 God-parents, 135. 
 
 Government General of the Church, 4, 
 
 Graces, 5,128. 
 
 Orado, 96. 
 
 Gratlan, Emperor, 91. 
 
 Gratian'a work, 36 ; systematic, 41, 47 ; a 
 
 monk of Bologna, 43, 44. 
 Greek Councils, 39. 
 Gregory I., 89. 
 Gregory II., 39. 
 Gregory IX. , Decretals of, 33, 44, 50, 5 1 ; 
 
 legate of, 62. 
 Gregory X., 51. 
 Gregory XIII., 53. 
 Guardian of the Spiritualities, 118 ; see 
 
 Vicar-Capitular. 
 Hadrian I., Pope, 38. 
 Hilitgar'B Penitential'!^^ 40. 
 Head of the Church, 64. 
 Henry III. of England, 62, 
 Henry V., Einperor, 57. 
 Henry VIII., 63, 64. 
 Heraclea, Frotothrone of, 96. 
 Heretics, 14. 
 Heresy, 183, 193 ; a cause of irregularity, 
 
 159. 
 Hereford, Use of, 238. 
 Hierarchy, The, 5, 85, 255 ; composed of 
 
 Prelates, 86 ; limits a Bishop's 
 jurisdiction, 115. 
 Holiness of the Church, 11, 12, 13. 
 Holy Places, 241. 
 Holy Roman Emperor, 92. 
 Homicide, 383,193; Bee Murder. 
 Hospitallers, 231. 
 Hour services, 234, 235. 
 Hunting Clerical, 184. 
 
 Iberia, Archbishop of, Q&. 
 Idolatry, 182, 185. 
 Ignatius Loyola, 232. 
 lU-repute, 159. 
 Impropriation, 215. 
 Incarnation, 294. 
 Incest, Spiritual, 193. 
 Index, Congregation of, 94. 
 Indies, Patriarch of, 96. 
 Indulgences, Congregation of, 94 ; com- 
 mutations of Penance, 186, 187. 
 Indirect jurisdiction, 81. 
 InfalUbility of the Pope, 92. 
 Informal jurisdiction, 78, 79. 
 
302 
 
 IND^X, 
 
 InitifttJOH of marriage, 175. 
 
 Inner tribunal, 68, 79. 
 
 Innocent lU., 49 ; IV., 51 • VIJI., 59. 
 
 Inquisition 265, 271 ; Congregation of, 
 93.. 
 
 Inspiration, Action by, 109. 
 
 Installation of Bishops, 106. 
 
 Institution, 83, 218, 
 
 Interdict, 194, 195. 
 
 Intermediate jurisdiction, 79. 
 
 Interpretations of Canons, 32, 
 
 Intrusion into another's Benefice, 193. 
 
 Investitures, strugg le respecting, 57. 
 
 Investiture of Bishops, 106. 
 
 Irregular persona, 158; marriage, 175, 
 176. 
 
 Irregularity, Clerical, 158; defined, 158 
 caused by defects, 158; or crimes 
 158; or ill-repute, 159; or bloodshed, 
 159; terminated in one of four ways, 
 159 ; a ground for resignation, 113. 
 
 Isidore of Seville, 39. 
 
 Isidorus Mercatr , 39. 
 
 Issue, Joining, : 76, 292. 
 
 Ivo of Chartres' Decretum, 43. 
 
 Jacobins, 232. 
 
 Jansenist, Van Espen, p, 45. 
 
 Jerusalem, Church of, 12 ; Goaacil of, 
 21 ; Patriarch of, 26, 88. 
 
 Jesuits, 232. 
 
 Jews, exclusiveness of, 13. 
 
 Joannes Gallensis, 50; Monachas, 51. 
 
 John XXn., Extravagantes of , 44, 52; 
 king of Poitugal, 59; surrender to 
 the Pope, 61. 
 
 Judge, Office of, 257; duties of Eccle- 
 siastical, 259; promoting the office 
 of, 274. 
 
 Judicial or contentious jurisdiction, 79; 
 power of the Church. 178; extent of, 
 180 ; denonciatlon, 269 ; committee, 
 287. 
 
 Jurisdiction, 4, 75, 78 ; Episcopal, 24, 25; 
 nature of, 71 ; limited, 99, 115 ; 
 officers of, 72 ; competent 258 ; unit 
 of the Diocese, 5, 72; sub-units of 5; 
 varieties of, 78, 79; public or private, 
 
 78. 79 ; formal or informal, 79 ; 
 subjects of, 78; ordinary or dele- 
 gated, 79, 80; direct or intermediate, 
 
 79, 81 ; of Archpriests and Arch- 
 
 deacons, 123; contentious or judi- 
 cial, 79; voluntary or involuntary, 
 79; universal, 85. 
 Jurisprudence, Canonical, 4, 6. 
 
 Laity, share of in making Canons, 26'; 
 share of, in Episcopal appointments) 
 107, 108; Censures on, 194; reme- 
 dial, 194 ; vindictive, 195. 
 
 L'ancienn"- et nowoelle discipline de 
 I'Eglise, 45. 
 
 Lapse, Presentation by, 222. 
 
 Lapsed, the, 188. 
 
 Lateran Council, Ist, 197 ; 3rd, 212, 216 ; 
 4th orders Confessions, 50, 187, 197> 
 Archives, 42. 
 
 Law, Canon, 3 ; in England, 60 ; divine, 
 2; human, 2; natural, 2; moral, 2: 
 civil, 2, 8: common, 2, 8: statute, 
 2, 8 ; Ecclesiastical, 3. 
 
 Legates, Papal 95; bom Legate of the 
 Pope, 102, 
 
 Legislative Power in the Church, 21, 
 
 Lenity, 159. 
 
 Lent, 246. 
 
 Leo X., Pope, 58. 
 
 Libel, 263. 
 
 Liber Decretorum Collectarium, 42. 
 
 Liberties of the Church, 57, 58. 
 
 License, Royal in England, 66. 
 
 Lincoln, Chancellor of, 62. 
 
 Lisbon, 96. 
 
 Liturgy, Divine, 233, 237. 
 
 Lucca, Anselm of, 42, 46. 
 
 Lucerna JvHs, 45. 
 
 Lyndwood, William of, S. Davids, 62, 
 
 Lyons, Use of, 238. 
 
 Mainz, Locality of False Decretals, 39.. 
 
 Marca, Petrns de, Canonist, 45. 
 
 Marriage forbidden to the Clergy, 156, 
 157, 1^ See Matrimony, 
 
 Martin V., Pope, 58, 63. 
 
 Mary, S., of the Arches, 103. 
 
 Master, Official, of the Audience, 108. 
 
 Matrimonial Causes removed from Iha 
 Ecclesiastical Courts, 286. 
 
 Matrimony, 5, 72, 129, 144, 174; a Sacra- 
 mental act, 174, 175, consists of two 
 parts, 174; effects of, 176; the spirit- 
 ual gift in, 176 ; when indissolublei 
 175,176; irregular, 175, 
 
INDEX* 
 
 303 
 
 Medifflval exteusion of organisation, 5 ; 
 view ol Penance, 186 ; Canonists. 45 
 
 ' Mediate Jurisdiction, 81. 
 Melchlades, Pope, 89. 
 
 Mende, Bishop oi, 43. 
 
 Mendicants, 231. 
 
 Metropolitan, 25, 26, 27, 76, 86, 96, 97 ; 
 description of, 98; early existence 
 of. 98 ; limited jurisdiction of, 98," 99 ; 
 Courts of, 102 ; visitation of, 100 ; 
 subservient to Civil Power, 40; ap- 
 pointment of, 101: jurisdiction an 
 ordinary one, 80 ; consent of Bishops, 
 163, 165. 
 
 Metz, 240. 
 
 Michael, S., Feast of, 247. 
 
 Milan, 96. 
 
 Minor Orders, 145, 146, 172; only one in 
 Eastern Church, 17:^: four in West, 
 172. 
 
 Missal, 237. 
 
 Mission, Canonical, 83. 
 
 Missionary character of Cisalpine 
 Church, 197, 200. 
 
 Modern Organisation, 5. 
 
 Molesme, Robert of, 231, 
 
 Monks, admissable to Orders, 146. 
 
 Monte Casino, 231. 
 
 Moral Theology, 182 ; Law, 2. 
 
 Mortal Sins, 182. 
 
 Moses, Law of, permits Divorce, 177. 
 
 Mozarabic Use, 238. 
 
 Murder, 182, 185 ; a cause of irregularity, 
 159. 
 
 National Church, 19, 26, 202. 
 
 Nationalism, 57. 
 
 Natural Law, 
 
 Negligence in a Bishop, 100. 
 
 Neo-Ca9sarea, Council of, 38, 156. 
 
 NiCEBa, Council of, 25, 38, 9J, 93, 156 j 
 
 foibids translations, 112. 
 Niceue Canons, 37. 
 Nicolaus v., 58. 
 Nomination, Election by, 109. 
 Notaries, 104. 
 Norman Dynasty, 61. 
 Novatian Schism, 188. 
 Nuncio, Papal, 95. 
 
 Oath of Calumny, 263, 279 j of Purga- 
 tion, 272. 
 
 Obedience due from inferiors to supe- 
 riors in Order, 146 ; to Bishops, 168, 
 179. 
 Office, suspension from, 192; benefice 
 
 attached to, 217. 
 Official Principal of a Bishop, 80, 116 
 
 ' ll9, 125 ; Bishop's chief temporal 
 
 officer, 121. . 
 Officialia foraneua, 122. 
 
 Officials of the Outplaces, 122. 
 
 Officio, Suspension ab, 192 ; Deprivation 
 ab, 193. 
 
 Oratory, 45, 221. 
 
 ' Orders, Religious, 197, 227, 030; Mo- 
 nastic, 227, 230. 
 
 Orders, 5, 72, 75; of the ministry, 144, 
 145 ; come from the Apostolic Col. 
 lege, 145 ; Holy and Minor, 145 ; 
 Holy, 145 : deal with the Altar and 
 Holythings, 147; two Holy Orders, 
 129, 145, 148 ; Minor, 146, 172 ; dis- 
 abilities of, 143 ; privileges of, 149, 
 
 Ordination in Roman Church, 138. 
 
 Ordination, 147, 150 ; a Sacramental act, 
 147, 151 ; care about, 148 ; the 
 Bishop's duty, 166, 167 ; may not be 
 repeated, 148 ; at proper seasons, 
 152. 
 
 Ordinary, 257 ; Bishop a superior, 114 ; 
 sole Ordinary in respect of penances, 
 167; allows criminal proceedings, 
 289. 
 
 Ordinary Jurisdiction.' 79, 80, 82; how 
 acq[uired, 83 ; how lost, 84. 
 
 Ordinary of the Mass, 238. 
 
 Orleans, University of^ 52. 
 
 Orthodoxy, Catholic, upheld by Bishop, 
 166. 
 
 Osmund, S., 288. 
 
 Otho, Legate of Gregory IX., 62. 
 
 Othobon, Legate of Clement lY., 62. 
 
 Outer Tribunal, 67, 79 ; public discipline 
 belongs to, 183, 265. 
 
 Outplaces, Officials of the, 122. 
 
 Outsiders have no claim on a parish, 222. 
 
 Pallium, the, 101. 
 Pauormia, the, of Ivo, 42. 
 Panormitan, 45. 
 
 Paris, Archbishop of, 45 ; University of 
 52, 59 ; nae of, 238. 
 
304 
 
 INDEX. 
 
 Parish, 197, 200, 209; a snb-anit of the 
 Diocese, 209; Uaiversal in 12th cen- 
 tury, 212, 216 ; Ecclesiastical view of, 
 209, 213; Spiritual aide of, 209, 220; 
 a Benefice, 209, 216; Pariah Clerk, 
 172. 
 Parish Priest, 209 ; the Bishop's Ticar, 
 
 220. 
 Parliament, French, 59. 
 Parochial Clergy, 116, 117, 126 ; fixity of 
 tenure of, 126; Ghnrehea, 172, 251; 
 Chapehry, 251 ; System, 28S. 
 Parson of a Parish, 203, 209, 214, 215; 
 endowment of not Church property, 
 213. 
 Paternal Denunciation, 269, 
 Patriarch, 25. 27, 86, 96 ; the great, 88 ; 
 lesser, 98; duties of, 97; of the 
 West, 27, 29, 91. 
 Patriarchate, 26 ; posterior to Dioceses, 
 
 114; of the West, 38, 56, 60. 
 Patron, 209, '211 ; property, 213 ; entitled 
 
 to support from a Benefice, 219. 
 Patron-Saint, 252. 
 Piucapalea, Gratian's pupil, 46, 47* 
 Peculiars, Court of, 104. 
 Penance, 19, 181, 182 ; administered by 
 Bishops, 167 ; private administra- 
 tion of Discipline, 185 ' long 
 durations of, 185 ; medlEeval view of, 
 186. 
 Pcnitentials, 41 ; of Halitgar, 40. 
 Penitentiary, Roman, 94 ; Presbyter, 
 
 186. 
 Penuaforte, Baymond of, 50. 
 Pentecost, 188, 246, 
 Perjury, 183 ; a cause of irregularity, 
 
 159. 
 Petms Collivicinus, 49 ; de la Marca 
 Philip of France, 51. 
 Pisa a Patriarchate, 96. 
 Pius IV., 48 
 
 Plaintiff, 260 ; in a Civil case, 263. 
 Plenitude of the Priesthood resides in 
 
 Bishops, 74, 151, 161. 
 Polygamy, 176. 
 
 Pope the successor of S. Peter, 27, 90; 
 President of the Collective Epis- 
 copate, 77, 90 ; their Proctor, 22, 3) ; 
 his primacy of hononr and jnris- 
 dl(M;ion, 91 ; appeals to, 97 ; in what 
 sense infallible, 92. 
 Portugal, King of, 59. 
 Postulation, Election by, 109. 
 
 Praemunire, Statute of, 62. 
 Pragmatic Sanction of Bonrges, 58. 
 Preaching a means of Grace, 129 ; the 
 Bishop's duty, 166; allowed to 
 Doctors, 166. 
 Prebendaries, 229* 
 Preferment, 209. 
 Prelate defined, 85. 
 
 Prescription, 32 ; of 10 years extends a 
 Canon, 32 ; of 30 years good against 
 another Ghorch, 32; of 40 years, 
 repeals a Canon, 32; of 100 years, 
 runs against the Roman Church, 3^ 
 note. 
 Presentation, right of, 217. 
 Presumptions, 283. 
 
 Priesthood, the, 150; a spiritnal gift* 
 150; dignity of 153; qualifications 
 for, 153 ; disqualifications fur, 153 ; 
 mental, 153; bodily, 153; moral, 
 154: defects of ase, 154; of ill- 
 repute, 159 ; of bloodguiltiness, ISS, 
 159; two degrees in, 129, 151 ; pleni- 
 tude of, 74, 151, 161. 
 Priests, 129, 148. 
 Primate, 25, 26, 27, 86, 96; position uf 
 
 98. 
 Private Jurisdictions, 78, 79, 
 Procedure,141 ; ordinary, 256 ; summary, 
 
 256. 
 Proctor, 60. 
 
 Procurations, a parochial quit-rent, 214. 
 Prohibition, Writ of, 293. 
 Proof, 273, 279; of two degrees, 279! 
 
 onus of on accuser, 273. 
 Propaganda Congregation of, 94. 
 Proper of Seasons, 238. 
 Property, Acquisition of by the Chnrcji, 
 
 200, 201. 
 Protothrones, 96. 
 Province, 26 ; poste or to Dioceses, 114 
 
 Conris of, 93 
 Provincial Councils, 22, 23, 28, 36, 99. 
 Proviaors, Statutes of 61, 62. 
 Prum, Abbot of. 42. 
 Psalmists, an Order below the Minor 
 
 Orders, 173. 
 Psendo-Isidorian Decretals, 39. 
 Public Jurisdiction, 78, 79; Worship, 
 
 131, 140. 
 Publication of Canons, 21 ; of Evidence, 
 
 281. 
 Punishment, remedial, 19, 180 185, 195 ; 
 vindictive, 19, 181, 188, 190, 195. 
 
INDEX. 
 
 305 
 
 Purgation, Oath of, 273. 
 
 Qua^sHones, 47. 
 
 Eape, 184; a cause of irregularity, 159. 
 
 Ravenna, 46, 96. 
 
 Kaymond of Pennaforte, 50. 
 
 Readers, 146, 172, 173. 
 
 Rector. 215. See Parson. 
 
 Reformation, 20, 30, 44, 61. 
 
 Reformatio legum et^clesiasticarum, 65. 
 
 Regino, Abbot of Prum, 42. 
 
 Regulars, Congregation of, 94, 229. 
 
 Reiffenstuel, the Canonist, 45. 
 
 Religious Houses, 200. 
 
 Remedial Punishment, 19, 161, 185, 195. 
 
 Rescripts, Papal, 29. 
 
 Resignation of Bishops, 112 ; under 
 what circumstances allowed, 113; of 
 Benefices, 223; causes for, 224; 
 necessary conditions of, 223, 224. 
 
 Residence, 218. 
 
 Rites, Congregation of, 94. 
 
 Robbery, a cause of Irregularity, 159. 
 
 Robert of Molesme, 231. 
 
 Rogation Days, 248. 
 
 Rome, Patriarch of, 26, 27, 88; Metro- 
 politan jurisdiction of, 53. 
 
 Roman Empire, breaking up of, 35 ; 
 Church, Law of, 38, 60, 267; Supre- 
 macy, 40 ; Tribunals, 94. 
 
 Rota, Roman, 94. 
 
 Rules of Law, 28 ; of Interpretation 31. 
 
 Rural Deans, 119, 122. 
 
 Sabbath, 246. 
 
 Sacramental Acts. ISO, 131, 140, 144; 
 Graces, 72. 
 
 Sacraments of the Church, of Divine 
 origin, 130; chief means of grace, 
 130; validit^pof, 132; the adminis- 
 tration of, 47" 129, 132. 
 
 Sacrilege, 193. 
 
 Sacristan a Church ofBcer below the 
 Minor Orders, 173. 
 
 Sanctuary the place for the Altar, 342. 
 
 Sardica, Council of, 38, 90, 
 
 Sarum, Use of, 238. 
 
 Saturday, Observance of, 246. 
 
 Savoy, Concordat with, 59. 
 
 Schipmaiics, 12. 
 
 Scrutiny, 108. 
 
 Scythian, Monk, 38. 
 
 Seasons, Proper of, 238. 
 
 Sectarians, 15. 
 
 Seculars, Congregation of, 229. 
 
 Sentence, 283 ; execution of, 283 ; Inter- 
 locutory, 284 ; definitive, 284. 
 Separation. Tendency towards, 35. 
 Sermons, Hearing of, 140. 
 
 Seville, Isidore of, 39. 
 
 Sext, The, of Boniface VIII., 83, 44, 51. 
 
 Sexual Union the consummation of Mar- 
 riage, 175. 
 
 Significavit, Writ of, 286. 
 
 Simony. 183, 193. 
 
 Singers, Church officers below the Minor 
 Orders, 173. 
 
 Siricius, Pope, 88, 156. 
 
 Sixtus IV., Pope, 53; V., Constitution 
 of, 93. 
 
 Sodomy, 192; a cause of irregularity, 
 159. 
 
 Spain, King of, 59. 
 
 Spanish Collections of Canons, 37, 38, 
 39. 
 
 Spiritual Gifts, 72 ; incest, 193. 
 
 Speculator, 45. 
 
 Speculum Juris of Durandus, 45, 
 
 Spoliation of Benefices, 223. 
 
 Statute Law, 2, 8. 
 
 State Sanction given to Canons, 55 ; su- 
 preme over Church temporalities, 
 208. 
 
 St. David's, Lyndwood, Bishop of 62. 
 
 Stealing, 183. 
 
 Stephen Langton, 62. 
 
 Sub-units of Jurisdiction, 5, 197, 201, 203 , 
 the parish, 209, 213. 
 
 Subdeacons, 148, 170. 
 
 Submission, Act of, 64, 65. 
 
 Suburbicarian Provinces, 91. 
 
 Sufiragan Bishops, 81.96,97,98; impro- 
 perly so-called, 119. 
 
 Summary Information, 276. 
 
 Summaries of Collections, 36. 
 
 Sunday, 246, 250. 
 
 Superior, 85, 224. See Ordinary. 
 
 Supremacy, Act of, 64. 
 
 Suspension, 192. 
 
 Sylvester, Pope, 39. 
 
 Synod, Metropolitan, 99. 
 
 Templars, 231. 
 
306 
 
 INDEX. 
 
 Theodore, Archbishop's Penitential, 42. 
 
 Theology, Moral, 182. 
 
 ThesBalonica, protothTone of, 96. 
 
 Thomassio, Louis, 45k. 
 
 Timothy, 15. 
 
 Titles to jurisdiction, 82; faulty, 82; 
 necessary for episcopal consecra- 
 tion, 161 ; necessar; fur the Priest- 
 hood, 150. 
 
 Tituli extra d cretum vagantes, 49. 
 
 Tolerated, a person, 195. 
 
 Tonsure, The, 146. 
 
 Traetatus Decretalium, 47. 
 
 Tractatus Ordinandorum, 47. 
 
 Traetatus de P anitentia, 47. 
 
 Tradinff, Glei-ical, 184. 
 
 Traditores, 188- 
 
 Translations of Bishops, 112. 
 
 Trent, Council of, 53 ; Congregation of 
 94. 
 
 Tridentine Council, 7. 
 
 Trinity, Feast of, 246, 247. 
 
 Trial, 278. 
 
 Tribunal, Outer. 67, 79, 188 ; loner, 68, 
 79 ; Romau, 93. 
 
 Trusts attaching to Church Property, 
 205. 
 
 Tndeschi, the Canonist, 45. 
 
 Turrecremata, the Canonist, 45 
 
 Ultramontanism, 77. 
 
 Unam Sanctam, 51. 
 
 Unction, 129, lao, 140, 143; extreme, 134. 
 
 "Unity Corporate, 13 ; of the Church, 36. 
 
 Urban IV., 51, 53. 
 
 Uses Liturgical, 237. 
 
 Utrecht, Van Espen of, 45. 
 
 Van Espen, the Canonist, 46 
 
 Vatican Council, 7. 
 
 Venial Sins, 182. 
 
 Venice, 96, 
 
 Vicar Apostolic, 95. 
 
 Vicar Capitular, 24 note, 118 
 
 Vicar of a Parish, 203; rise of, 214 ; of 
 
 aChapelry, 221, 255. 
 Vicar Gsneral of a Bishop, 80, 83 note 
 116, 119; the Bishop's chief Spiritual 
 
 Officer, 120, 125 ; Court of, 104. 
 Vienna, Concordat of, 58. 
 Vienne, Council of, 52. 
 Vindictive Punishment, 19, 181, 183, 190, 
 
 195. 
 Visitaion, a Bishop's duty, 115, 166, 167. 
 Visitation by a Metropolitan, 100. 
 Visitor's Powers Limited, 206. 
 Vole Ues igituTy 50. 
 Voluwen. primum, 49. 
 Voluntary Jurisdiction, 79, 
 
 Water, Holy, 140. 
 
 Western Church, 12, 37, 44, 53 ; Patriar- 
 chate, 57, 60. 
 
 Whitsun Eve, 135 ; Tide, 247. 
 
 Witnesses, 256, 280. 
 
 Worms, Burchard of, 42, 46; Concordat 
 of, 57. 
 
 Worship, Public, 5, 234. 
 
 Wycliffite movement, 61 
 
 York, Use of, 238. 
 
 Zabarella, of Florence, 45. 
 
SWIFT AND CO. 
 2, XEWTON STREET, HIGH HOLBOEN 
 LONDON, W.O. 
 

 
 
 . \ '- . . • I'^ii 
 
 1 f lif,-.. ..»* 
 
 /;i,S 
 
 
 I - 
 
 J' < 
 
 w ■ 
 
 
 . :. J.' . ■, , . IV<)'0 
 
 -■'. * -^ -. .•■-^'Y (It 
 
 
 
 ■(',-. v..