I

ORIGIN OF THE CANON LAW

THE greatest legacy of the Roman Empire to the modern world is the Civil Law. As triumphant legions carried the frontiers of that Empire to the ends of the world, the legal establishments of more ancient peoples found their place in the administration of the vast fabric and were wrought by jurists and emperors into the imperishable Roman Law.

After thirteen centuries of development that law was assembled and digested by eminent jurists and teachers under authority of the Emperor Justinian in the sixth century and wrought into the compilation now so widely known as the Corpus Juris Civilis—Body of the Civil Law. No other volume except the Bible has so deeply affected modern Europe and the New World.

As Teutonic invaders but slightly advanced in civilization poured out of the forests of northern Europe and wrecked the Roman Empire, they occupied its ruins and laid the foundations of modern European states. Their harsh and primitive legal systems were no match for that of the fallen Empire, embellished and perfected by so many jurists and statesmen and softened and refined by Greek culture and philosophy and by the Christian religion.

The Justinian and other compilations found their way into the medieval courts and universities and were carried throughout the continent. Establishment in the tenth century of the Holy Roman Empire, with a line of German princes at its head, facilitated the reception of the civil law of Rome in Germany beyond the borders of the ancient Empire. So does that law prevail in continental Europe and in those parts of the New World settled by French, Spanish and Portuguese.

But crude methods of international communication in past centuries left the British Isles far enough outside the pale of continental development that the civil law never prevailed fully there. Instead there grew up in England the distinct, juridical system known as, the Common Law, which has been transplanted into the United States, except Louisiana, to which the French brought the civil law. Enough Spanish footsteps have remained in some of our states in the Southwest also to impart there a coloring of the Roman system.

Growing dominance of the world by Europe and America has brought nine-tenths of the civilized portions of the earth under the civil law and the common law in about equal portions. Modern legislation and judicial construction have adapted both systems to the needs of a diversified and marvelous civilization and rounded them out to a high degree of perfection.

But when Constantine adopted Christianity as the religion of the Roman Empire legislative sanction began to be extended to canons and constitutions of the hierarchy already grown to considerable measure of organization and usurped ecclesiastical power. The early general councils of the Church assembled in the East at the call of the emperors reigning in Constantinople, who presided over their deliberations and enforced their canons and decrees by imperial authority.

Meantime growing development of the hierarchy into a vast imperial establishment resulted in a struggle among the bishops of Rome, Constantinople, Antioch, Alexandria and Jerusalem for universal supremacy. Each of those ambitious prelates assumed the title of patriarch. But the spread of Mohammedanism through the East swept away the sees in Antioch, Alexandria and Jerusalem, leaving the patriarchs of Rome and Constantinople to compete for dominion of the world.

The overthrow of the emperors in Rome left the bishop of that great capital the most commanding figure in the West, while their continued sway at Constantinople eclipsed and subordinated the patriarch of that city. Genius for organization in the West and the traditional glory of the old capital gave to the western prelate additional advantages in the struggle which proved decisive. Following the example of the empire, the Church divided in the eleventh century, leaving the Roman bishop supreme in the West.

The fallen empire afforded a model on which the western Church grew into a marvel of imperial coherency and power. At its head was the bishop of Rome, standing in the shoes of the departed emperors. The title of Pope, formerly applied to all eastern prelates, was now reserved exclusively to him. Lesser ecclesiastical dignitaries in all the cities of the West succeeded to positions and prerogatives analogous to those of the prefects and vicars who in past centuries had ruled under the emperors.

Thus indeed did a new Rome rise from the ashes of the old. In the figure of the Apostle Paul, the Emperor whose presence had previously restrained papal ambitions was at last "taken out of the way." From and after the beginning of the twelfth century the great Church councils assembled in the West and were dominated by popes instead of emperors. Their canons and decrees together with the bulls, letters, encyclicals, allocutions and decretals of the popes were added to relevant portions of like documents in earlier centuries as the immense volume of legislation known as the Canon Law.

Early in the twelfth century a great law school arose in connection with the University of Bologna in northern Italy. Thousands of students gathered there from all western Europe to study the civil law. But the canon law, produced by a hierarchy and clergy imbued with the spirit of the Roman Empire, was so nearly related to the civil law that both soon came to be offered side by side in the university.

To facilitate his work in the law school, Gratian, a Bolognese monk, gathered the scattered and somewhat discordant materials of the canon law into his famous compilation popularly known as the Decretum. Its arrangement was modeled upon that of the Justinian compilation of the civil law. A century later Pope Gregory IX added to the Decretum a supplement known as Liber Extra and gave the whole work the sanction of pontifical authority. When still further amplified by later additions, the compilation took the name of Corpus Juris Canonici—Body of the Canon Law.

From Bologna many thousands of students returned to the various countries and cities of the continent. The ablest of the civilians became advisers of emperors, kings and civil magistrates. The canonists entered the service of popes and prelates of Rome. In the subsequent strife between civil and ecclesiastical potentates for supremacy, the respective groups of trained lawyers played a most important part.

While authority of civil governments was admittedly confined within their respective territorial boundaries, the Pope claimed universal dominion and suzerainty over all civil powers. Under that claim his tribunals covered alike the continent and the British Isles. They constituted the most extended judicial establishment that ever existed with supreme original and appellate jurisdiction in the Sovereign Pontiff at Rome.

Though the civil and the common law mutually exclude each other from territory which either has occupied, the canon law, by the very nature of the papal claim of universal jurisdiction, enters alike lands subject to the civil law and those subject to the common law. So is every country which the Roman hierarchy inhabits embarrassed with two separate and conflicting systems of law administered on its soil and enforced upon its citizens or subjects.

Under that ruinous arrangement, conflict between the two is virtually universal. In consequence, the hierarchy and clergy of Rome everywhere engender strife by enforcement of their alien canon law and denounce as intolerant those who oppose their interference in basic civil and religious rights.