Constitutional Foundations of the Canon Law System

The harmonizing, or structural, elements of the canon law, which helped to make it an independent, integrated, developing system, were derived in part from the constitution of the church, as that constitution was understood in the late eleventh and the twelfth centuries.

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The nearest the canonists of that time came to creating a subsystem of constitutional law within the body of canon law was their development of a law of corporations and their application of corporation law to the ecclesiastical polity. Nevertheless, certain fundamental constitutional principles were generally recognized, and these underlay the new system of canon law as a whole.

Building on the Gregorian Reform, and especially on Gregory Dictates of 1075, the canonists of the late twelfth and the thirteenth centuries attributed supreme governance (imperium) in the church to the pope. The pope was head of the church; all other Christians were its limbs, its members. He had full authority (plenitudo auctoritatis) and full power (plenitudo potestatis). ¹⁹ Although in practice his powers were limited -- they increased only gradually, especially in the thirteenth and fourteenth centuries -- nevertheless, in law, from the time of Gregory VII, the pope was the supreme legislator, the supreme administrator, the supreme judge. He could make laws, impose taxes, punish crimes.

These powers did not attach to the pope because he was the Bishop of Rome, but they attached to the Bishop of Rome because he was pope; that is, they attached to him not by virtue of his ordination (potestate ordinis) but by virtue of his jurisdiction (potestate jurisdictionis). Indeed, the Archdeacon Hildebrand was elected Pope Gregory VII even though he had not yet been ordained a priest, let alone a bishop. Once he was pope, his opinions in matters that came before him as pope were to be preferred, in Gratian's phrase, to those of such revered theologians as St. Augustine and St. Jerome. But, Gratian added, in matters concerning the interpretation of Scripture, the opinions of St. Augustine or St. Jerome were to be preferred to those of the pope. After all, said Gratian, the pope might be a heretic. 20 His power to decide doctrinal disputes derived not from superior spiritual qualities but solely from his jurisdiction as supreme officer of the church.

The sharp distinction between ordination and jurisdiction, made for the first time in the late eleventh and the twelfth centuries, was one of the fundamental constitutional principles of the Church of Rome. Ordination was a sacrament, that is, a sacred symbol of divine grace. By ordination every priest received from God the authority to say mass, to celebrate the eucharist, to hear confessions and administer penance, and to perform other sacramental and priestly rites; a bishop, by virtue of ordination, could also ordain priests and consecrate other bishops. Jurisdiction, on the contrary, was a power conferred by the church as a corporate legal entity. It was the power to govern by law -- to "speak law" (jus dicere) within the limits established by law. By virtue of jurisdiction every bishop held supreme legislative, administrative, and judicial authority within his diocese, subject to the pope, just as the pope, by virtue of jurisdiction, held supreme legislative, administrative, and judicial authority within the church as a whole. Such authority, derived from jurisdiction, could be exercised by anyone to whom it had been lawfully delegated. The pope could appoint a deacon, for example, to sit as a judge in a dispute between two bishops. This power had not existed before the Papal Revolution.

Thus the imperium and the auctoritas or potestas of the pope, though supreme and full, were identified also as his jurisdictio, which meant that they were legal in nature. But that, in turn, meant that there were legal limits to their exercise.

Those legal limits were implicit in the mode of selection of the pope as well as of the subordinate bishops, abbots, and other ecclesiastical officers. Before the Papal Revolution the appointment of popes, bishops, and abbots had been substantially controlled by emperors, kings, princes, or feudal lords. One of the first events leading to the Papal Revolution was the decree of a church council at Rome, called by Pope Nicolas II in 1059, conferring on the cardinals of Rome -- bishops and priests of neighboring dioceses, who also performed some liturgical and other functions in the great basilicas in Rome -- the principal role in selecting a pope.

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Sometimes there were rival popes. In fact, in all but 82 of the 278 years from 1100 to 1378, legitimate popes were forced to live outside the city of Rome *23

The cardinals were, to be sure, appointed by the pope; nevertheless, in the course of time they acquired some independence. They governed the church during an interregnum in the papacy. Great offices in the church were reserved to them. It became a matter of customary law for the pope to obtain their consent, as a body, to the creation of new bishoprics, the transfer of a bishop from one see to another, and the appointment of abbots, as well as various other important matters. At times, tension became acute as the College of Cardinals sought to extend its powers and popes resisted such attempts. ²⁴

As the pope was elected by the cardinals, so a bishop was elected by the chapter of the cathedral, that is, by the canons and other clergy who lived and worked in the capital of the diocese; and an abbot was elected by the monks of the monastery. That the pope could hear appeals in behalf of losing candidates in disputed elections of bishops and abbots is an indication of papal control. Yet in theory, at least, only if the electors had been negligent or if there had been a divided election or if for some other reason the proper procedure had been violated, could the pope take action.

Not only the electoral principle and the necessity to accommodate the cardinals, bishops, and clergy generally but also the very complexity of the ecclesiastical system of government served as a substantial limitation upon papal absolutism. Although legislation was their sole prerogative, popes in the twelfth and thirteenth centuries nevertheless felt the need to summon general councils periodically to assist them in the lawmaking process. These were Europe's first legislatures. Similarly with respect to administration, the papacy developed a highly efficient bureaucracy of specialists in various fields (see figure 1). The papal chancery was in charge of drafting and issuing documents, including writs initiating judicial cases, and of keeping records of decrees, regulations, and decisions of the papal government; the chancellor was the keeper of the papal seal. The papal exchequer, called the Apostolic Chamber, operated both as a treasury for papal revenues and as a ministry of finance; in addition, the chamber had its own court for civil and criminal cases connected with taxation and other financial affairs.

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The papal court of general jurisdiction, both original and appellate, was called, in the twelfth century, the consistory; the pope himself presided over it. As papal jurisdiction expanded, the popes began to appoint judicial auditors (cardinals, bishops, or simple chaplains), whose decisions were binding, subject to papal ratification. In the thirteenth century the auditors became a permanent court, called the Audience of the Holy Palace, which deliberated as a body (often divided into sections), and at the end of that century a separate court of appeals was established for civil and criminal cases.

The papal government also operated, at the regional and local level, through papal legates as well as through other appointees and subordinates. From early times popes had occasionally appointed delegates to act in their behalf, but it was only after the Papal Revolution that such delegates became a regular instrument of papal government. ²⁵ There were three kinds: the proctorial legate, who was sent out to a locality or region with "full right" to act in place of the pope, under either a general or a special mandate; the judge-delegate, who exercised the judicial power of the papacy in particular cases; and the nuncio, who until the sixteenth century had only a limited capacity to represent the pope, for example, to transmit messages, gather information, or negotiate and conclude agreements on particular matters. Of these, the proctorial legate was the most powerful; he was sometimes authorized to preside over bishops in council and to bring sentences of deposition against them. However, decisions of all these types of papal legates were subject to appeal to the pope himself.

Popes also exercised authority through other officers, especially papal collectors (of revenues) and papal bankers (who raised loans).

Moreover, archbishops and bishops, as well as heads of the major religious orders and of those individual monasteries that came directly under papal authority, were also in one sense the pope's officers. From the end of the eleventh century on, they were required at installation to swear an oath of loyalty to the pope. His approval was necessary for their appointment, and all their decisions were subject to his review.

Yet bishops were more than the pope's officers, both in theory and in practice. Each was also supreme on his own level of authority. Even after the Papal Revolution, every bishop remained the supreme judge, legislator, and administrator in his own diocese -- unless the pope intervened. Therefore, it is only half the truth to say that the pope ruled the whole church through a corps of bishops; the other half of the truth is

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Figure 1. Structure of the Western church state, 1100-1500. Levels of authority and religious - life are marked by a horizontal line, with the institution named above and the head named below.

Note: Institutions of representation or consent are shown at the left of the head of the authority level. Institutions of administration are shown at the right of the head of the level. The membership of an institution is generally given beneath the name of the institution. that the bishops ruled their respective dioceses subject to the pope. They too had imperium, auctoritas, and potestas jurisdictionis - though not of the same plenitude. The pope had to reckon with them; he could not merely order them about.

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At the same time, the bishop was surrounded in his diocese by various functionaries, who in practice wielded considerable countervailing power. The canons of the cathedral chapter elected the bishop just as the cardinals elected the pope. The canons also elected a provost or dean, who presided over the assemblies of the clergy of the cathedral. The chapter had power to try its own members, before its own courts, for disciplinary infractions. The chapter's consent was required for various acts by the bishop -­for example, for the alienation of church property. Privileges of cathedral chapters varied from diocese to diocese; in many places, tensions between the chapter and the bishop led to appeals to Rome by one side or the other.

Officers of the bishop's household began to multiply at the end of the eleventh century, just as officers of the papal curia multiplied. The archdeacon assumed more power as chief executive officer; generally selected by the bishop, he ran the day-to-day affairs of the diocese. The chancellor emerged as the keeper of the episcopal seal and the officer in charge of correspondence and of the external affairs of the diocese. The "official"(officialis), trained in law, sat as judge in place of the bishop. Judicial seal­bearers, notaries, clerks of court, advocates, procurators, agents for executing court orders, assessors, and other types of judicial or quasi-judicial officers emerged in the bishop's court, just as archpriests, coadjutors, and other types of clergy emerged to assist the bishop in his liturgical functions.

As the pope had intermediate agents for ruling the dioceses, so the bishops had intermediate agents for ruling the parishes. For the larger parishes, the bishop (together with the archdeacon) would select deacons, each with his own small chancery, his clerk, and his judicial officer, to supervise the property, keep the books, provide support for priests in need, and report serious offenses of the clergy. Also,

assemblies of priests of the diocese -- local synods -- were called from time to time, and the bishop was supposed to make an official visitation to each parish once a year. As the bishops swore an oath of fidelity to the pope at their ordination, so the priests were required to swear an oath of fidelity to the bishop. The bishops could also send nuncios to check up on the parishes and to transmit orders.

At the parish level, too, there existed a division of functions and a system of checks upon arbitrary exercise of power. The parish priest had responsibility both for the spiritual government of the parish and for the administration of its property. To his superiors -- his bishop and the pope -- he owed the duty to pay ecclesiastical taxes.

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He was also required by canon law to maintain continuous residence in his parish. At the same time, especially in the larger parishes, the priest was surrounded by assistants, clerical and lay, whose needs and wishes he could not safely ignore. Suffragan priests helped him, especially in the conduct of the liturgy.

Chaplains, who might be clergy or just simple parishioners, supervised charitable works in the parish and were often charged with the instruction of children. "Confraternities" of faithful Christians in the parish were dedicated to devotion, charity, and penitence; Le Bras calls them "cells of devout Christians... little parishes within the larger parish." 26 They generally held annual assemblies. There also originated in the twelfth century the practice of forming "workshops" (frabricae) of laymen to help administer the property of the parish; these were often resented by both the parish priest and the bishop. 27 _

Thus, although all governmental powers within the church were gathered ultimately into the hands of the papacy, papal autocracy was limited by the division of functions within the bureaucracy at the top level as well as by the hierarchical, or pyramidal, character of ecclesiastical government as a whole. These limitations certainly fell short of the modern concepts of separation of powers and of federalism; ²⁸ yet they constituted important checks on absolutism and at the very least fostered habits and traditions of government that popes were, for the most part, reluctant to abuse. A formal, legal, bureaucratic structure was created which was a complete innovation in Germanic Europe. Government was separated from personal loyalty of man to lord. Complex interorganizational relationships developed which were in striking contrast not only to tribal but also to feudal institutions, and even to the earlier imperial institutions, whether Byzantine or Frankish. The very complexity and specificity of the structure was a source of constitutional principles. "With a government as delicate and over­extended as that of the medieval Church, consensus was absolutely critical." ²⁹

Constitutionalism in ecclesiastical government was facilitated above all by the limitation upon the scope of ecclesiastical authority itself. These limitations were imposed in part by the theory of the dualism of ecclesiastical and secular authorities and in part by the practice of resistance by the secular authority to ecclesiastical abuses and excesses. It is true that some popes and some canon lawyers, especially in the thirteenth and early fourteenth centuries, made extravagant claims of unlimited ecclesiastical competence to legislate not only in matters of faith, doctrine, cult, sacraments, church offices, and clerical discipline but also in matters of contract, property, and crimes of all kinds, and even in matters of secular politics. Yet on the whole the church, after the Concordat of Worms of 1122, came to accept in theory as well as in practice substantial limitations upon the scope of its authority. The very separation of ecclesiastical and secular authority was a constitutional

principle of the first magnitude, which permeated the entire system of canon law.

In addition, within the church itself, viewed as a polity separate from secular polities, there were theoretical as well as practical limitations upon arbitrariness, whether of the papacy or of the episcopal princes. In the first place, it was accepted that the church as a visible institution had been founded by Christ himself, and that he and the apostles, and later the church fathers and the ecumenical councils of the first seven centuries, had endowed it with definite, unchangeable norms of belief and of conduct. Even at the height of papal power a standard canonist gloss stated that "it would be dangerous to commit our faith to the will of a single man." ³⁰ It was understood that neither a pope nor a general council could change the dogma of the church or introduce a new dogma at will. "New teachings were to be tested against existing dogma, but beyond that, only such doctrines were to be declared which were already implicit in the existing treasury of teachings of the Church and which presented themselves as an organic development of the existing foundation of beliefs." ³¹

More concretely, popes and general councils as well as bishops and local councils were specifically limited in the scope of their authority by both divine law and natural law. It is true that no one was authorized to reverse or overrule a papal decree that violated divine law or natural law. The only recourse was to political action, or else to civil disobedience. Nevertheless, the canon lawyers laid a legal foundation for such resistance. Gratian wrote that "a pope can be judged by no one, unless he is caught deviating from the faith." ³² This left the way open, as Brian Tierney has said, for a theory of deposition of a pope on grounds of heresy. ³³ Later canonists added other grounds, including dissipation of church property, and at the end of the twelfth century the theory was developed by Huguccio that a pope could be tried and deposed for any notorious fornication, robbery, sacrilege, or other notorious crime that gave scandal to the church. ³⁴

Further, it was said by canonists of the twelfth and thirteenth centuries that the pope might not act contrary to the "state" (status) of the whole church, and that he might not enact a law to the prejudice of its "general state" (generalis status ecclesiae), that is, its character, its general welfare or public order, or, as it would be called in later centuries, its constitution. ³⁵ Even Pope Innocent IV ( 1243-1254), one of the most authoritarian of papal monarchs, admitted the possibility of disobeying a pope if he should command an unjust thing by which the status ecclesiae could be disturbed, as for example, if his command should contain heresy. ³⁶

Theories of constitutional limitations upon papal absolutism were weakened by the lack of an available tribunal to challenge the papacy.

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No trial or deposition of a pope took place until the early fifteenth century, when the Council of Constance deposed two rival popes and recognized the resignation of a third. Nevertheless, even at the height of papal power, such theories of limitation had a firm basis in social, economic, and political conditions, which were strongly conducive to local autonomy. To quote Tierney: "In spite of the persistent tendency towards papal centralization, the whole Church, no less than the secular states, remained in a sense a federation of semi_autonomous units, a union of innumerable greater or lesser corporate bodies." Tierney mentions bishoprics, abbeys, colleges, chantries, guilds, religious orders, congregations, and confraternities, all of which "exercised substantial rights of self_government." 37,

Thus the canonists' identification of imperium with jurisdictio corresponded to the living constitution of the ecclesiastical polity. The church was a Rechtsstaat, a state based on law. At the same time, the limitations placed on ecclesiastical authority, especially by the secular polities, as well as the limitations placed upon papal authority within the church, especially by the very structures of ecclesiastical government, fostered something more than legality in the Rechtsstaat sense, something more akin to what the English later called "the rule of law."