im Digitized by tlie Internet Archive in 2015 littps://arcliive.org/details/liistoryofcanonlaOOdodd A HISTORY OF CANON LAW IN CONJUNCTION WITH OTHER BRANCHES OF JURISPRUDENCE. A HISTORY OF CANON LAW IN CONJUNCTION WITH OTHER BRANCHES OF JURISPRUDENCE: WITH CHAPTERS ON THE ROYAL SUPREMACY AND THE REPORT OF THE COMMISSIOJi ON ECCLESIASTICAL COURTS BY THE REV. J/DODD, M.A. FORMERLY RECTOR OF HAMPTON POYLE, OXON ; AUTHOR OF "sermons ON COMMON THINGS;" "THE VALUE OF HUMAN LIFE, OR THE HISTORY OF OUR HOSPITALS IN CONNECTION WITH THE CHURCH;" "CONSECRATION, OR A PLEA FOR THE DEAD," &C. parfter an& Co. OXFORD, AND 6 SOUTHAMPTON-STREET, STRAND, LONDON. 1884. "NoN, mehercules, jejuna esse et arida volo, quae de rebus tam magnis dicentur." — Scnec. Ep., 75, t. ii. p. 212. "SciANT Sacerdotes Scripturas sanctas, et canones, ut omne opus eorum in doctrina, et in pradicatione consistat, atque sedi- ficent cunctos tam fidei scientia, quam operum disciplina." — Synod. Toiet., Can. xxiii. t XLo the /nbemor^ of tbe IRlgbt 1Reveren5 BISHOPS RIDLEY, ANDREWES, AND STILLINGFLEET, MEN OF HIGH REPUTE, AND JUSTLY SO, FOR THEIR LEGAL-ECCLESIASTICAL LEARNING, WHO, WHILST OF DIFFERENT SCHOOLS OF THOUGHT IN THE CHURCH OF ENGLAND, DID THEIR BEST, EACH IN HIS OWN DAY, TO ENCOURAGE CHURCHMEN IN THE STUDY OF AN IMPORTANT BRANCH OF PROFESSIONAL KNOWLEDGE, ARE THE FOLLOWING PAGES DEDICATED, WITH DEEP RESPECT. PREFACE. TT will not be necessary to trouble the reader with any lengthened Preface. The book must be left to speak for itself, in the wide range of historical matter which it attempts to embrace. One thing I regret in connection with the same, is that, when asked by a deceased brother, some years ago, to work out the various topics of such an in- quiry, my answer should have been, that "it was enough for one member of a family to grapple with so complicated and hopeless a subject." It would have been wiser to have sought, there and then, his able co-operation, in order that a better and more useful Treatise might have been the result ; since, as affection constrains me to add, bought experience as well as study had given him a more intimate and practical insight into the whole question, as it affects both the Church and Clergy. I have received assistance from many Friends, amongst whom I ought to mention the Rev. C. N. Robarts, Rev. A. Mayhew, Rev. H. Deane, and my own son, J. Theodore Dodd, Esq., of Lincohi's Inn ; to all of whom I beg here to tender my best thanks. CONTENTS. CHAPTER I. INTRODUCTORY. PAGE Importance of Ecclesiastical Law . . . . i Lord Melbourne on the Profession of the Law . . 2 Lord Bacon on Law and the Royal Prerogative . . 3 The Law Divine ...... 4 Hooker on the Law Divine .... 5 Human Law derived from God .... 6 The Revelation of God ..... 8 Law of Nature and Conscience .... 9 The Church existing before " The Incarnation " . . 10 Universality of the Church . . . .12 Spiritual Powers of the Church . . . .13 The Creeds . . . . . .14 Teaching of the Creeds with respect to the Church . 16 The Church contains both Divine and Human Elements. 17 The Church persecuted . . . . .19 The Church loyal to Caesar, but obedient to Christ . ib. Christians settled their own disputes . . .20 The Council of Jerusalem . . . .21 Every Society must have Laws . . . .22 The Laws of the Church ..... 23 Internal and External authority . . . .24 A Judge should understand the i)articular species of Law which he administers ..... 26 General ignorance of Ecclesiastical Law . . .27 What is an Ecclesiastical Court? . . . .28 Persecutions for Heresy and Vestments contrasted . 29 Im[)risonment for Erclesiastiral Offences . . . 31 Secession from Church of England of Rev. S. A. Brooke 32 note X CONTENTS. CHAPTER II. GREEK LAW IN CONNECTION WITH CANON LAW. PAGE Advantages of Study of Ecclesiastical Law . . 35 St. Paul learned both in Hebrew and Roman Law . 36 The Sources of Law . . . . -37 The Common Law ..... 38 Roman Law ...... 39 Influence of Greek Law on Roman Law . . . ib. Law and the Arts flourish under the same conditions . 41 The Greek idea of Law is Distribution, Proportion, and Harmony ...... 42 Greek view that Law was Divine . . . .43 Laws affecting the Priesthood .... ib. Strict Laws affecting the Judges . . . .45 Military Law . . . . . .46 The Areopagites had jurisdiction over religious matters . 47 St. Paul before them . . . . . ib. Tendency of Athenian Law towards mercy . . 48 Sir T. Ridley on " Equity " in connection with the Canon Law ....... 50 Defects in Greek System . . . . .51 The Areopagus . . . . . .52 The World's debt to Greece .... ib. The Greek Language . . . . -53 The word Dogma a Greek legal term . . . ib. Fixity of Eaith of the Church . . . .54 Ecclesiastical Law, divine in its source . . -55 Canon Law defined ..... 56 CHAPTER III. JEWISH LAW IN CONNECTION WITH CANON LAW. Bishop of Gloucester and Bristol upon the importance of study of the Old Testament .... Benny on Importance of study of Jewish Law The Jewish Law is contained partly in the Scripture, partly in the Talmud ..... The Talmud ...... Influence of the Jews on the Christian Church 58 60 62 ib. 63 CONTENTS. xi PAGE The Amen ...... 66 Canon Law affected by Jewish Law . . . ib. Jewish idea of Law is " Instruction" . . .67 The term "Law" was often used to include the whole Old Testament, although at other times it has been applied pre-eminently to the Pentateuch . . 68 Later Jewish Law shewed no mercy to the ignorant . ib. Reforms under Hezekiah included instruction in Law . 69 The Rabbis on the Law ..... ib. Moses as a Lawgiver, and the effects of Mosaic Law beyond Palestine . .70 The Pentateuch . . . . .71 God's promises in connection with the Law . . 72 The Jews a Holy Nation ..... 73 The Priesthood under the Law . -75 The Sanhedrin, its History and Jurisdiction, Appellate and Legislative . . . . . -77 The President and Members of the Sanhedrin . . 79 Election of the Members of the Sanhedrin . . 80 Various kinds of Jewish Law, including Equity . . 81 Courts of First Instance or Appeal . . . ib. High Qualifications required even in a witness . . 83 Education general and legal .... ib. Jewish Commendations of the Study of the Law . . 84 The Wisdom of Solomon ..... 85 Hillel and other teachers . . . . . ib. Compulsory education in Israel . . . .86 Bible teaching in Israel ..... 87 Belief in God the mainspring of Jewish life . . 83 Tendency of Jewish Law towards "mercy" in criminal cases ....... 89 The Lex talionis explained by the leathers . . 91 Silence of the Talmud as to the Lex talionis . . 92 Cities of Refuge ...... ib. Fall of Jewish Nation caused by their perversion of Scripture ...... 93 Isolation of the Nation . . . -95 Injustice of Jews in suits between Jew and Gentile . 96 Examples of unfair treatment of Gentiles . .98 Laws affecting women ..... 99 Laws in War . . . . . .100 xii CONTENTS. PAGE Laws affecting Marriage and the Education of Children . loo Evidence of a hundred women in a Court of Justice only equivalent to that of one man .... loi Elevation of women by Christ .... 102 Sanctification of marriage . . . . .103 Women at the Crucifixion and Resurrection . .104 Dignity of women recognised in Pauline Epistles and by the early Church . . . . .105 The Church represented as a woman, viz. The Bride of Christ ....... 106 Causes of condemnation of Christ, notwithstanding the general justice of the Jews to their own nation . .107 Position of Pilate . . . . . .112 The claim of Christ to equality with the Father, the main cause of His condemnation by the Jews . . ib. Atheism of the present day . . . .114 Comparison of tenderness towards unbelief with unjust condemnation of Ritualists . . . .116 Note. — Modern views with regard to Atheism — opinions of Lords Shaftesbury and Redesdale, and of Bishops Van Mildert and Jackson . . . .117 Jewish language lacks terms to express phases of un- belief ...... 120 Bishop Van Mildert on Atheism . . .123 Legislation for the Church should be ministered by Christians, if not absolutely by Churchmen . . 128 CHAPTER IV. ROMAN LAW. Theology and Canon Law . , . .129 Views of the Canonist on the same question . . 131 The Twelve Tables . . . . .132 Roman Commission to inquire into the Laws of Greece . ib. Custom equivalent to Law . . . -133 The System of the Roman State Religion favourable to rise of Canon Law ..... 134 Distinction between 'Jus' and Lex . . . 135 Word ' Jus ' sometimes applied specially to Canon Law, and implies ' Equity ' ..... 137 Peace on Earth the Message of the Gospel , . 139 CONTENTS. xiii PAGE Modern plan of Arbitration is found in the Canon Law . 141 English Law Courts formerly jealous of Arbitration . 142 The word 'compromise' derived from Ecclesiastical Law 143 The Church will not compromise her Faith . . 146 Connection between Civil and Canon Law . .147 Spread of the Civil Law . . . . .149 CHAPTER V. THE CANON LAW. Canon Law may be divided like the Civil Law . .150 Primitive Law of the Church . . . .151 St. Paul's Canons . . . . . .152 Formulation of Canon Law in the Second Century . 153 Gibbon's neglect of the Early History of the Church . 154 Gibbon on the presence of the Laity . . .156 Ecclesiastical Assemblies called Ccetus and Concilia . ib. Democratic Element in the Church due to Greek Influence 157 Universal Brotherhood of Christians a cause of General Assemblies . . . . . .158 The Canon Law resulting from a combination of Roman, Greek, and Hebrew influences . . . .160 Note L Explanation of what the Canon Law comprises . 16 1 Blackstone's Account .... ib. English National Canon Law . . .163 Note H. Mode of Citation of the Canon Law . . 165 CHAPTER VI. CANONS AND COUNCILS OF THE CHURCH. Different kinds of Canons .... 168 The main principles of the Church unalterable . .169 Scripture the Foundation of the Canon Law . .170 The Primitive Canon Law . . . .171 The " Apostolic " Constitutions and Canons . . ib. The Ante-Nicene Councils . . . .172 Epistles of St. Cyprian . . . . -173 Synod of Elvira . . . . . .175 The Council of Aries . . . . .176 British Bishops present . . . . .177 xiv CONTENTS. PAGE Comparison with Council of Constance . 177 The Canons of the Councils of Aries 178 The dispute about keeping Easter ib. Canon as to " Translation " . . . . 179 Church property in primitive times 180 The Decrees of Constantine as to Church projjerty 181 The Offerings of Christians .... 182 The Parish and the Benefice Pluralities forbidden ..... 184 Note. — Athanasian Creed .... 185 CHAPTER VII. JURISDICTION OF BISHOPS AND PRESBYTERS. Episcopacy in Primitive times .... 19s The Rural Bishops ..... 198 The Presbytery ...... 200 The Presbyters as Councillors and Assessors of the Bishop 201 Gregory Nazianzen's " Dream " . 202 The Constitution of Councils .... ib. The practical benefits of Councils 205 CHAPTER VIII. CHURCH AND STATE. Administration of Law by the Councils compared with the present state of the Church of England 207 The Presbyters in Diocesan Synod 208 The authority of the Bishop subject to the Law . ib. Mixed Synods ...... 209 The Roman Emperors respected the right of the Church to manage its own affairs .... ib. So in England the rights of the Church were respected . 21 r The changes of the Reformation .... 212 Royal Commission of 1832 .... ib. The Statutes of Henry VIIL .... 214 The Royal Prerogative ..... 217 The Prerogative of the Christian Emperors ib. CONTENTS. XV CHAPTER IX. THE ROYAL SUPREMACY. PAGE All Jurisdiction is 7iot derived from the Crown . . 220 Opinion of Bishop Harvey Goodwin . . .221 Old Local Courts did not derive jurisdiction from the Crown . . . . . .222 Lord Justice James shows that Ecclesiastical Courts do not derive jurisdiction from the Crown . . .223 Distinction between ' Criminal ' and 'Civil ' jurisdiction of the Church Courts . . . .224 Nature and origin of the Civil jurisdiction of the Church Courts ....... ih. Meaning of expression, " Over all persons and in all causes supreme " ..... 226 The Power of the Keys . . . . ib. Catechism of Edward VI. . . . . .227 " Reformatio Legum " ..... 228 Declaration of Queen Elizabeth .... Declaration of Denman, L. C. J., that the Crown has not the " power of the keys " .... 229 The Established Church of Scotland on Church authority Court of High Commission and Lord Coke's explanations 230 The Appellate powers of the Court of Delegates . .232 What may be admitted with respect to the Royal Su- premacy ...... 233 Note on Local Courts ..... 234 CHAPTER X. THE REPORT OF THE ROYAL COMMISSION ON THE ECCLESIASTICAL COURTS. Newman's argument that the Church of England has lost its spiritual powers by Disuser .... 236 Newman on the Gorham Case . . . .237 Some of the Statements with respect to the Church of England, made by Dr. Newman, are partially refuted by the Report ...... 238 Modification of Detail not a destruction of Principle . 239 Principle that the Church is a Divine Institution not sufficiently recognised in the Report . . . 240 xvi COxMTENTS. PAGE Difficulties to be surmounted before legislation on the basis of the Report can take place . . . 241 The Spiritual objects of the Church insufficiently dwelt upon in the Report ..... 244 Recommendations of the Commission . . . 245 Want of " notice " to accused clergyman, (note) . . ib. Cases of Misconduct, &c. .... 246 Appeal to the Crown in cases of Misconduct, &c. . ib. Cases of Heresy and Ritual .... 247 Reservation of Sir R. Phillimore .... 248 Reservations of Lord Devon and others . . . 249 Reservation of Mr. Freeman .... ib. Separate Report of Lord Penzance . . . 250 Objections to the proposed Court of Appeal . .251 Defect in learning . . . . . ib. Defect in personal qualification .... ib. Laity overriding Bishops . . . . .252 No Spiritual jurisdiction . . , . . ib. Law to be administered will not be Scripture or Church Law ....... 253 Examples ib. Note on p. 29 . . . . . . 257 APPENDIX A. (Page 128.) Parliamentary Legislation upon the subject of Church- Building " Acts " ..... 261 APPENDIX B. (Note, p. 242.) Subject of "strong drink" in connection with Eccle- siastical and Parliamentary Legislation . . 266 CHAPTER I. INTRODUCTORY. "He that giveth his mind to the law of the Most High, and is occupied in the meditation thereof, will seek out the wisdom of all the ancient," Scc—Ecclesiasticus xxxix. i. THIS work is an attempt to handle a difficult and complicated subject, in the present condition of our Importance Ecclesiastical Law. But, happily, the smallest of Ecclesiasti- contribution in this department of profes- sional knowledge (the term "Ecclesiastical" is used in its widest sense as affecting both Clergy and Laity) may be of service, if only it should induce others, with more learning and a long life before them, to accom- plish the object in view. There are, however, on the other hand, many considerations to deter an inquirer from making such an attempt. It may be said, that the in- vestigation comes too late, the fault being with preceding generations, when, three centuries ago, with so many things settled, so many crying abuses eradicated, and so many improvements recalled into existence which had been suffered to remain dormant, the one exception was the legacy of an unsatisfactory state of our Ecclesiastical Law. Or again, it may be alleged, we have so long gone on in an easy hap-hazard kind of manner, thinking that the Chtirch of God, in the midst of her difficulties, will be sure, in the long run, to right herself — that her condition now is not so very different from what it has often been, sometimes with days of sunshine, but sometimes with warnings of an opposite kind, from within and from with- out*. And so it has happened, human confidence, in • The following was the language used so lately as the year 1853, when the prospects of the Church seemed to some not very reassuring: "There was in all this enough to appal the stoutest hearts ; and those who can recall the feelings of those days will at once remember the deep depression into B 2 A History of the Canon Law. a measure, has remained the same, that, after all, there is, at the helm of the good ship, One, ever watchful, who has given, even in the days of old, an inviolable promise, that "no weapon formed against thee shall prosper;" which promise comes out still more distinctly in the New Eco- nomy, given expressly by our Lord Himself, "That the gates of hell shall not prevail against it." But there are difficulties inherent in the subject itself For if when speaking of Law in general, difficulties appear such as in ordinary times would deter many from attempting to grapple with them, those said difficulties become still greater which touch upon our Laws Ecclesiastical. A statesman of great authority in his own day'' has laid Lord Mel- down an important dictum as always applic- bourne on the ^ble under all conditions of Law, and there- profession of the Law in fore applicable to the Ecclesiastical class, to general. which no doubt he would have referred, if such had been deemed important enough to help the pur- port of his argument. In a speech in the House of Lords, on the Canada Government Declaratory Bill, Lord Mel- bourne is reported to have said : " My opinion is, let a man's understanding be as bright as it may, let a man's genius be what it may, that profession (i.e. the profession of the Law) does little else tJian cramp the understanding, and fetter the mental facilities, and that almost iiniversally" In common justice, however, it is right to add, that an orator, in the heat of debate, will sometimes give utter- ance to sentiments, which, when subjected to re-consider- ation, he will be the first to repudiate. But if not so, it is easy enough to find an opinion the very reverse of the fore- going, be it the estimate of Law in the abstract, or be it some particular branches of Law which affect our relation- which the Church had fallen, and the gloomy forebodings which were uni- versally prevalent. But in these hours of darkness there were hearts, many hearts, burning with shame and grief for the general apostasy around them — hearts which were yet beating high at the thought, that, amidst the universal shipwreck and treason, there was One whose protection might be relied on," &c. — Narrative of events connected luith the publication of the Tracts for the Times,'' by Rev. W. Palmer, Worcester College, Oxford. In the second year of Queen Victoria's reign. Introductory. 3 ship to each other, should one trace the same back- ward to first principles, exhibiting them through the various stages they may have undergone, as one nation after another borrowed the germ in its earliest results, and developed it, — so building up their respective sys- tems, as experience, or national civilization, enlightened them. In speaking of communities, however, growing up from the individuals which first gave them birth, we do not un- frequently borrow an illustration from the Human Body, as though, in some sense, each one of us carried, in ourselves, a representation of what we personally form a part. And that however true is the individuality, yet the members of each body are distinct and many, but all working toge- ther towards the same common end, and to the benefit of the whole ! Now this very same idea, a great statesman and philo- Lord Bacon sopher of our own (for Lord Bacon combined the Royll Pre^- himself both these qualifications) borrows rogative. and applies to the existence and practical de- velopment of Law, which, undoubtedly, forms one great instrument for keeping these communities together. " Nei- ther can be suffered to stagnate with impunity," says Lord Bacon, " whether it be the natural body, or the body politic' of which we are speaking. As a proof of the influence of Law inter viagnalia rcgni, he goes on to say, " The Law is the highest inheritance that the king hath ; for by the Law both the king and all his subjects are ruled and directed." And still more forcibly, to borrow the expres- sive quaintness of the day, " The Law is the great organ by which the sovereign power doth move, and may be truly compared to the sinews in the natural body, as the ' Lord Bacon very sagaciously remarks : "It is a defect even in the best writers of History, that they do not often enough summarily set down the most remarkable laws that passed in the times whereof they write, being indeed the principal acts of peace. For though they may be had in the original books of laws themselves, yet that informeth not the judgment of King's Counsellors and persons of estate so well as to see them described, and entered in the title and portrait of the times." — Life of Hen. VII., p. 46. B 2 4 A History of the Canon Law. sovereignty may be compared to the spirits'*, for if the sinews be without the spirits, they are dead and without motion. If the spirits move in weak sinews, it causeth trembling, so the Laws without the king's power are dead ; and the king's power, unless the Law be corroborated, will never move constantly, but be full of staggering and trepi- dation V But then "the Law towards the king himself hath a double office or operation." The first is, to intitle or design him, i.e. as Bracton hath well said f, " The Law maketh that the king himself exists as a king." Whence flows the axiom, " Non regna propter reges, sed reges propter regna." But the existence and influence do not end here. For The Law as far as we have proceeded in our inquiry, Divine. j^. jg Qniy of Jiuniau law we have spoken, and that in such a way as a mere heathen might speak. In- deed, the latter could carry our thoughts still higher, as we shall see in the course of our investigation, and that independently of all the aids that revelation has im- parted to us. And no one would acknowledge this fact sooner than the Philosopher whom I have quoted, who was always ready to express his faith, counting even the wisdom such as he possessed as nothing when compared with what God Himself hath made known to us?. "Thus ^ We must go a long way back for the origin of the idea. The ancient Medical School of Alexandria considerably departed from the teaching of the great Hippocrates, though it inculcated his theories of the "humours." Again, afterwards, the learned and ingenious Galen adopted the current theories as to humours and the four elements, and believed in the three kinds of spirits — the vital, the animal, and the natural — all flowing from the one great Cause, Nature. Nevertheless, Galen was a vigorous opponent of Epicureanism and " Chance." — See more in Dr. J. W. Ogle's Harveian Oration, pp. 12, 13, &c., delivered June 25, 1880. A valuable Treatise, and the perusal of which will amply repay the trouble, from its interesting information. " Lord Bacon's Works, vol. vii. p. 646, Spedding's Edit. ' Bracton, fol. 5, 1. iii. p. 107. "Lex fecit quod ipse sit rex." We may quote also the following from a thirteenth-century poet : — " Dicitur vulgariter ut rex vult, lex vadit, Veritas vult aliter ; nam lex stat, rex cadit." Quoted by Creasy on The Constitution, p. 182. t "Jam vero (Rex optime) ciim carina parva, qualis nostra esse potuit, Introductory. 5 far," says he in a letter to his king, " have I steered my bark around all science which belongs whether to the old, or the new, world ! What remains for me to traverse but the depths of Sacred and Inspired Theology ? Neverthe- less, if we are still to extend our voyage of discovery, I must be content, for a while, to quit my little vessel of Human Reason, and embark in the sJiip of the Chtirch,^fi\\ich. alone is able, through a divme instrumentality, to direct my course aright." No wonder then, upon such a topic, if we Hooker on ^^^^ Ecclesiastic, with high intellectual the Law Di- endowments, employing the sublimest lan- guage, because it is consistent with truth. " Law," says Hooker, " pervades everything, whether in heaven or on earth ; so that what we call ' Nature' is but Law universally felt, and ever at work." " Touching Angels," says the same learned author, " which are spirits immortal and intellectual, as in numbers they are huge, mighty, and royal, exist in perfect obedience unto that Law which the Highest, whom they adore, love, and imi- tate, hath ijHposed upon them." Once more, " Only the works and operations of God have Him for their worker and for the Law whereby they are wrought." Yes ; " The Being of God Himself is a kind of Law to His working ; for that perfection which God is, giveth perfection to that He doeth." Of course in no sense can we say that human power is greater than the Divine. But we can say, that the Divine will is the measure and law of His own Omni- potence. And the world itself has visibly received from Jesus a manifest token of the fact. For in the narrative universum ambitura tam veteris quam novi orbis, scientianim circumnavi- gaverit, (quam secundis ventis et cursu, posterorum sit judicium), Quid super- est, nisi ut vota, tandem perfuncti, persolvamus? At restat adhuc Theologia Sacra, sive Inspirata. Veruntamen si earn tractare pergamus, exeundum no- bis foret e naviculS, rationis humanae, et transeundum in Ecclesias navem, quae sola acu nautica divina pollet ad cursum recte dirigendum." — Ad regcm siium. Lord Bacon's Works, vol. i. p. 829 (Ed. Spedding and Ellis). With respect to the use of the term scientia, we may quote St. Augustine's distinction : — " Sapientia est rerum divinarum cognitio, Scientia, rerum humanarum." 6 A History of the Canon Law. of Christ's miraculous power, whilst St. Mark mentions, " He could there do no mighty work," St. Matthew, in allusion to the same details, as categorically declares, " He did not many mighty works there because of their unbelief'.'' But, perhaps, the definition of what Law is, is made HumanLaw none the easier if we limit the same to our derived from world*. For, Undoubtedly, where God Himself is immediately concerned, there is the same system of Law throughout. It matters not whether we speak of things great or small, each thing in- dividually is what it is, and will so continue to be, in the same place and order, to which it has been assigned. So likewise, as all is administered under the government of the same Omnipotent, Watchful, and Superintending power, the law of the action of that power is the same unerring will which formed each thing at first, giving the existence adapted to each, and which it will continue to the end ! And although, no doubt, the difference of the two ideas is great — it does not signify how minute the matter may be — there is, and always will be the fact, however forget- ful human legislators may be, that all Law, in the abstract, emanates from, and is based upon, the originating Will of God. "By Me Kings reign," saith Wisdom'', "and Princes decree justice." And St. Paul too puts forward the prin- ciple very prominently to the law-giving people to whom he addressed his epistle, " There is no power but of God." " The powers that be," i.e. whether of legislation or admi- nistration, "are ordained of God." — "Ordained," i.e. not only in the source and beginning, but for the constitution and settled existence of the power. The law in its enactment may be derived from a mere human source, and as ex- ^ Cf. St. MaU. xiii. 58, and St. Mark vi. 5. ' A Greek poet (Pindar) speaks in this same direction : — QvaTuv re koX aBavaTuv." Fra^m. IiuerL, I Ed. Bliss, vol. i. p. 58. ^ Prov. viii. 15. Introductory. 7 acting' obedience may partake of the imperfections to which aught human must of necessity be hable. Still, every law which claims obedience, whether with reason, or without reason, grounds, or at least tries to ground, its claims upon the first and real foundation of all authority"". St. Paul, no doubt, in the Epistle before quoted, and which has often been appealed to, not only when the Law was good, but when, through human perversions, the Law was the contrar}', is throughout, in laying down his principles, addressing himself to Christians, as though, with the exist- ence of perfect laws, he pictured to himself the prospect of an universal obedience ! At all events, whatever be the full interpretation of the Scripture, it may be called an advance towards the realization of one side of the question, when we remember the times under men like Diocletian, Domitian, and Nero, who are often put before the world as among the worst specimens of human tyranny. And St. Paul himself was not without experience of what a tyrant can do. Notwithstanding, the principle laid down is one, not of resistance, but obedience, the conviction being, that the duty, if not due to a man, is a debt which every Christian owes to God ° ! Certainly, St. Augustine enunciates the same kind of teaching which he had re- ceived from the Inspired Teacher before him, as also in looking from man unto God. " He who has given his gifts to Marius°,'' says the great Christian Father, "gave ' It matters not whether we speak of the Law, or of the administration of the Law: "Est enim magistratus lex qucedam viva et sancta ; sicut e con- verso lex est magistratus quidam silens et mutus." — Corn, a Lap. in loc. Ep. Rom., Rom. xiii. I. ° Summa Ratio est qux pro Religione facit (Co. Litt. 341, a; Dig. 11. 7. 43). It is even said that a custom or statute directly contrary to Divine Law would be void. See Broom's Maxims, 4th Edit., 20, and authorities there cited. So in the Year-Book it is said : "Scripture est common ley, sur quel touts raanieres de leis sont fondes." — Y.-B., 34 Hen. VI., 40. " "Obedientia respicit in pr^ecepto quod ser\'at, debitum observandi. Hoc autem debitum causatur ex ordine prxlationis, quce virtutem coactivam habet, non tantiim temporaliter, sed etiam spiritualiter, propter Conscientiam, ut Apostolus dicit." — St. Thorn. Aqitin., torn. x. Distinct. 44, Art. ii. p. 647. " " . . . Qui dedit Mario, ipse et Cwsari : qui Augusto, ipse et Neroni ; quiVespasiano vel patri vel fiiio, suavissimis Imperatoribus, ipse et Domitiano 8 A History of the Canon Law. also to Nero," — "he who gave to Vespasian and Titus, father and son, the best of Emperors " (people will accept the statement at its comparative value), "gave also to Domitian, the most cruel ; and, that we may not say more about individuals, he who gave to Constantine, the Chris- tian, gave also to Julian, the Apostate !" The thought, then, that we have now arrived at is, the The Reve- amazing distance that exists between the lationofGod. Creator and His creatures, the Angels them- selves testifying to the fact that in the highest they are, "all, but God's Ministers, and when standing in the Divine presence, they veil their faces with adorable humility!" The question follows, In what way has the Almighty adopted means for drawing us nearer to Himself, and therefore, in a measure, if I may so speak, to bridge over the chasm that intervenes ? It was a problem which engaged the curiosity even of the heathen, when they thought how remarkable, and how different was the formation of themselves, as men, from every other order of the lower creatures — that unquestionably man's aspirations must mount upwards, since every one carries the very assurance of it in the formation of his own body. A conclusion which they pushed still further, when they reflected upon that which was within us as well as that which was witJiont us. And if we allude to Revelation, it is only because we cannot otherwise attempt to grasp God's gracious dealings towards us. Revelation opens out a much wider field of inquiry, inasmuch as God has furnished to us thereby a mirror (to use the ordinary illus- tration) through which we may look, and see ourselves clearly reflected. "Know thyself," is an aphorism which human wisdom has given us for a Canon of universal pru- dence, and which in every way concerns us individually. And for the attainment of this, there is a double mirror, that which is Divine, and that which is human. It is no other than a knowledge of what we are in ourselves, and crudelissimo ; et ne per singulos ire necesse sit, qui Constantino Christiano, ipse Apostatse Juliano." — De Civil. Dei, 1. 5, 21. Introductory. 9 what we are in our relationship to one another, in the study of men and things, in the times in which we Hve. The two elements occasionally cross each other, the human and Divine. The human is illustrated and explained more fully by the Divine. And the Divine was anticipated by the human as a preparation, i.e. before the Revelation itself had been fully made known to the world. Clearly St. Paul himself argues on this principle, when setting forth the responsibilities that belong Law of Na- , , , , . , ture and Con- to the mere heathen, that without any re- science. vealed Law there is a " Law of Nature " in- dependently of any such revelation p, the first being the antecedent of the latter, so that they, i.e. the heathen, " are without excuse." Nay, that men, independently of revela- tion, may in some small measure be guided aright, we are told that this self-same " Law of Nature," and which con- firms what heathens themselves have affirmed, consists of two kinds, viz., that which is derived from reason, induc- tion, and the inward sense, and that which, like a spark, has been infused into the soul, often weakened, and often well-nigh extinguished, following our loss at "the Fall," and yet which, in spite of habitual ignorance and depra- vity, still exists, in some form or other, as the Law of Con- science. It would be difficult to picture Humanity in a more degraded condition than what St. Paul finds it to be, and of which, nevertheless, he gives his inspired judgment, " That when the Gentiles, which have not the Law, do by nature the things contained in the Law, these, having not the Law, are a Law unto themselves." Which means no- thing more, as Hooker has sagaciously remarked, than that " by force of the light of reason, wherewith God illuminated every one which cometh into the world, men being enabled to know truth from falsehood, and good from evil, do hereby learn in many things what the Will of God is; which Will Himself not revealing by any ex- traordinary means unto them, but they, by natural dis- course, attaining the knowledge thereof, seem the makers P " Ou 70/) Ti vvv T6 Kax^es, aA\' cte't xore toEto, KouSeis olSei' e'^ (Stow '(p&vji." lO A History of the Canon Law. of those laws which indeed are His, and they but the finders of them out." So that the Divine Mirror, of which we have spoken, not only accounts for many things, ad- mitting the knowledge and the consequent responsibilities of the heathen, but moreover elevates that knowledge, and adds to the still greater enlightenment of the Human Conscience. And if true of individuals, how is it less true of communities t For what is the history of the whole range of Legislation but a test of Civilization itself.' At least, it is the history of a People, without the horrors of its wars and bloodshed. We have spoken of Scripture as the " Divine Mirror," in which we may contemplate ourselves in our moral and political relationship to each other. But, moreover, Scrip- ture is an embodiment of Law, the expression being bor- rowed from that harmonious system of order which dis- tinguishes the highest works of the Creator, and touches even the existence of God Himself Of course it is only by a kind of assimilation that we can apply the term to aught which is human, and because that which is permitted through His Will is said to be the Law of His Will. So likewise, it is only in the graciousness of His Will that He has revealed that Law to us, giving us, moreover, be- sides the knowledge, a means whereby that Revelation has been deposited as a trust, to be handed on for suc- ceeding generations till the end. A priori, therefore, we have a proof of the existence of The Church a Church, since that which is once revealed, ^"^Ihe^huar^ia- Without a Cluirch for a witness and for guar- dianship, would be revealed in vain. And the term, as we are apt to think, is not confined to the Economy of the Gospel, where it is so prominently brought in view by our Lord Himself, and His Apostles subse- quently. But if we go backwards to the history of the Old Dispensation, the term is applicable, I do not say equally applicable, because under the Gospel, the Church received an enlargement of privileges, and poiver also. Nevertheless, not only was the Sacerdotal element a very prominent principle under the Jewish Economy (as we Introductory. II shall see) to anticipate and perform all that was entrusted to its keeping, but the very term " Church" was used as well. At least, St. Stephen, in his defence before his ene- mies, wished to prove, that He Whom he was preaching, and for Whom he was ready to die, was no other than He Who had been spoken of beforehand in one of the utterances of their great law-giver Moses. "A prophet shall the Lord your God raise up unto you of your bre- thren, like unto me ; Him shall ye hear. This is He, that was ill the Church in the wilderness with the Angel which spake to Him in the Mount Sina, and with our fathers : who received the lively oracles to give unto us." Moreover, those same' oracles were deposited in the Ark of the Covenant, which carried the " Divine Presence " amongst them, as ever speaking through the word of His Law. And as if the people could not move without that " Divine Presence," we read, " The Ark of the Covenant went before them." And it came to pass, when the Ark set forward, that Moses said, " Rise up, Lord, and let Thine enemies be scattered, and let them that hate Thee flee before Thee." And when it rested, he said, " Return, O Lord, unto the many thousands of Israel." Although, however, on referring backward, this is the first intimation of the term in Sacred Scripture, the fact long preceded the Mosaic times. All along throughout the patriarchal period, the same enunciation of the truth — the same calling oiif^ (if I may so speak) and distinctiveness of God's people, can be seen, till it subsides into a family, and even the individual, like Abel S who is spoken of as the first martyr, on behalf of God's Truth. But when we speak of the Church, is it needful to stop there St. Paul, when declaring his own belief in Christ, and all the blessings that were to be the outcome of His manifestation, makes no mention of the limit of time in the ■! Cf. Article XX. amongst the Articles of our Church ; cf. also Rom. iii. 2. ' 'H 'EKK\iiaj7j/ Telegraph, Oct. i8, 1880. Introductory. 1 5 but which in turn began to be doubted, or openly as- sailed. But yet granting again, that after all that can be said in their favour, the Creeds are only human compo- sitions, and therefore the mere organs of human opinion — and though going back to a very early period of Church history, the objection lies, they do not reach the first start- ing-point of Christianity itself. And yet are we sure that the value of the Creeds is not far higher than we are putting them at We should remember that, if not exactly co-eval with Apostolic times, they may be, and indeed probably are, the statements gathered up into form, of what the Apostles had declared in their public teaching, Scripture itself hav- ing suggested the nature and form of a Creed, which would particularize the several points more distinctly. When the Eunuch came to Philip to be baptized, the former saw but little difficulty, after he had been once assured of the necessity of the Ordinance. "See, here is water," says he ; " what doth hinder me to be baptized ?" As if, with a willingness of mind, the external element were the only other needful appliance. But there was to be one step more, and that of the first importance. Philip said, "7/" If Sir John had been as famihar with ecclesiastical subjects as he unques- tionably was with matters of his own profession, he would have remembered that ' dogma ' per se (so far as the action of the Church is concerned) was never used for a weapon of offence, but in self-defence against some definite error that was thrown up, in the wildness of ignorance and human invention. The reply is, If the Creeds have effected so little (conceding all that Sir John states) as the guardians of definite tnith, where would our Christianity have been without them? Paley was neither a great divine nor a great philosopher. But we can scarcely deny he was possessed of as much shrewdness, or common sense, as most men. And he states in his "Christian Evidences " that no heresy has ever existed in the world, which did not attempt to base its authority upon its own interpretation of Scripture, in addition to its know- ledge afforded " I)y the economy of nature." To prevent heresies, the old Christians not only adopted Creeds as safeguards, but introduced fresh prayers into their Liturgies as safeguards also. ^ " Multa alia credenda sunt, ut quis digne suscipiat baptismum, ut mys- terium S. Trinitatis, Ecclesia Catholica, remissio peccatorum, &c. Quare dubium non est ea evangelizasse Philippum et credita esse ab Eunucho. PriEcipuum ergo Articulum de Christi divinitate dumtaxat hie nominal Lucas, et sub eo CKteros intelligit : quia is unus toti Orbi erat novus et pcene incre- dibilis, ac recenter peractus : Eum ergo ubique pr£e cteteris prsdicabant et inculcabant Apostoli." — Com. a Lap. Comment, in Act. Apost. viii. 37. i6 A History of the Canon Law. thou helievest with all thine heart, thou mayest. And he answered and said, I believe that Jesus Christ is the Son of God " And straightway he baptized him But, perhaps, the force of the argument will not be Teaching of lessened, if, upon this question, we look at wkh respect to ^he declarations of the Creeds themselves, the Church. Two of the three Creeds specifically men- tion the Church : one, with the characteristics that the same is "holy and catholic ;" the other"that it is "catholic and apostolic" — terms not so very different in meaning from each other. So in both cases there is an acknow- ledgment of the human element, in that the boundary of its influence will only, so far as this world is concerned, be circumscribed by the earth itself. Whilst the other term, in both cases, as an essential characteristic, savours of that which is Divine — "holy" in itself, i.e., in its original forma- tion as being called the 'very body of Christ,' and "holy" in its effects, " for the temple of God is holy, which temple ye are." Moreover, the Article under consideration is clearly connected with the preceding proposition, which is no other than an expression of belief in the Holy Ghost Himself, as though by this truth it were declared, that what human life is to the human body, such is the Holy Spirit to the Church of God — the animating principle of its being. So that when we say individually, " I believe in the Holy Ghost there follows immediately, " I be- lieve in the Holy Catholic Church." But then again, if we express the two ideas in identical terms, as St. Anselm^ ' Acts viii. 36, 37. *' We are aware that this confession of the Eunuch is not to be found in some MSS., but, in any case, its presence affords evidence of the practice and belief of the Primitive Church. ' "Scriptura et Paulus dicunt aliquando nos 'credere in Deum,' ali- quando nos 'credere Deo.' St. Augustin. in Psalm 77, ha:c duo distinguit. 'Plus,' ait, 'est credere in Deum quam credere Deo : nam et homini cuilibet plerumque credendum est, quamvis in eum non sit credendum. Hoc juxta communem Latinorum phrasim varum est : veriim juxta phrasim Hebra^orum, Pauli et Scripturae h^c duo idem sunt.' "—Canones Verb, in Epist. S. Paul. Corn, a Lap., p. 19. ' " Anselmus dicit, quod potest dici, 'In unam,' in quantum in isto effectu Introductory. 17 would suggest, then we in effect say, " I believe in the Holy Ghost, who is the one animating principle of the Holy Catholic Church of Christ." But truly as a part of the Creed, this enunciation of the Church is concerned with every other part, forming a connecting link, as it were, in the chain of Christian doctrine from the beginning — from the Divine Being Him- self—to the accomplishment of all things, which is "Life everlasting." Nay more, it may be called an indivisible link, implied in the very term by which we describe such a proposition in the Creed And so when descending to the present state of things, St. Paul rises in his thoughts, and breaks forth into words of inspired eloquence, in the contrast he would draw between the present and the preceding Di- vine dispensations. And yet the declaration reaches only to one single point of what might be alleged, " Ye are come," says he, not simply will come, but ye are already "come unto Mount Zion, and unto the city of the living God, the heavenly Jerusalem, and to an innumerable com- pany of angels, to the general assembly and Church of the first-born, which are written in heaven, and to God, the Judge of all, and to the spirits of just men made per- fect, and to Jesus, the Mediator of the New Covenant." Such is the picture which St. Paul gives of the Church The Church of Christ ! And such is the authority which contains both Church exerciscs in guiding the early Divine and . . , . , , • 1 Human ele- pnnciples of her teachmg ! ments. p^^^ y^j. j^gg^j ^.^g Creeds for a confirmation of the statement, that there is a human as well as a Divine element in the Church of Christ, the danger at the present day being rather, lest, in looking intelligitur Veritas increata, scilicet ut sit scnsus, In unani Sanctam, i.e. in Spiritum Sanctum unientem Ecclesiam."— 6V. Thorn. Aqtdn., tom.xi. Distinct. 25, p. 406. e " Articuhis nomcn Gr.xcum est, et importat indivisionem, unde membra, quK non dividuntur in alia membra, dicuntur Articuli. . . . Et ideo in dcfi- nitione pnxdicta Ricardus (de S.Victor) secutus est et proprietalem nominis, dicens, quod est indivisibilis unitas, et etymologiam, secundum quod sonat in lingua latina dicens, quod arctat nos ad credendum." — lOid., 402, 3. C 1 8 A History of tlie Canon Law. only at the human characteristics, our belief should be- come weakened on that side which ought to constitute its strength in the world. St. Paul himself, who discourses so beautifully about the Divine privileges of the Church, is not slow in acknowledging the existence of the other fact, whether looking at the Church herself, or those who were concerned in the promulgation of her doctrine. This Apostle is rightly looked upon as one of her greatest champions ; nor can mankind deny him anything, whe- ther of energy, or self-denial, or intellectual vigour with earnestness of purpose, to make known what he signifi- cantly calls " the unsearchable riches of Christ." Yet the great Apostle thus speaks of himself and the difficulties which beset him in the mission to which he had been called, "We preach not ourselves but Christ Jesus, the Lord, and ourselves your servants for Jesus' sake." . . . " But we have this treasure in earthen vessels, that the excellency of the power may be of God, and not of us." His work he describes as a difficulty of no ordinary kind, comparing it, in the language of a soldier, to nothing else than the attacking some almost impregnable fortress, the " casting down imaginations and every high look that ex- alteth itself against the knowledge of God, and bringing into captivity every thought to the obedience of Christ." " We are troubled on every side," says he, " yet not dis- tressed : we are perplexed, but not in despair : persecuted, but not forsaken : cast down, but not destroyed" — till, at last, amid the feelings of all this, the mind falls back upon the assured existence of the Divine element, " Who shall separate us from the love of Christ t Shall tribulation, or distress, or persecution, or famine, or nakedness, or peril, or sword . . . Nay, in all these things we are more than conquerors through Him that loved us." The work, therefore, becomes a struggle between the principles of good and evil, and of which the world itself is the battle-field. And it does not follow that the fact is less true, because through indifference we see not, or care not to see, the course that the conflict is taking, it may be to the risk of doing damage to the Church, or Introductory. 19 it may be with a trust, that the passing clouds arc but the harbingers of a brighter and more enduring sunshine ! And it is evident that the first Christians were prepared The Church for all this. At least, they had heard and re- persecuted, ceived the teaching of our Lord Himself, who said, "If they have persecuted Me, they will also per- secute you ;" and " If they have kept My saying, they will keep yours also :" the converse of the proposition being equally true, "The disciple is not above his Master, neither the servant above his Lord." Nevertheless, with all this acknowledgment on the one side, the other thought was never absent, that though the Gospel was intended for the world as the scene of its work and labour, to raise mankind to a higher life with brighter expectations, it was not of the world, but, originating in the Divine mind, was intended for the accomplishment of the Divine pur- poses for mankind. It was true, that our Lord was in many things con- formed to the world. How marvellously, we may say, when He took our human flesh upon Himself, born of a woman, going through the various gradations of earthly life, sharing its weaknesses, its cares and sorrows, yea, in that He became obedient unto man and subject to his laws, performed the duties of a loyal citizenship, and was content to be brought before a human tribunal with re- sults, in His innocency, that strike us with amazement and awe ! Still the declaration He made tlien was ap- parent throughout His ministry: "My kingdom," said He, " is not of this world." As before, He had comprehended His disciples together with Himself, "Ye are not of this world, I am not of this world." Accordingly, the fact is equally apparent in His first The Church disciplcs. All that He had predicted of them sar'but* 0^)6- literally came to pass, in that they also were dient to Christ, persecuted for the Truth's sake. They were driven from place to place. They were brought before rulers and arraigned on different accusations. They were imprisoned for the Faith. All this, and more, was their undeviating experience. But, like their Divine C 2 20 A History of tJic Canon Law. Master, they too recognised to the full the Divine prin- ciples which they had received. It is written, that not one only, but all the disciples said, " We ought to obey God rather than men." In like manner, St. Paul protested, whilst accepting the duty of human obedience, " Neither against the law of the Jews, neither against the Temple, nor yet against CiEsar, have I offended in anything at all" — having al- ready declared for that which dictated still greater bold- ness, " I am ready not to be bound only, but also to die at Jerusalem for the name of the Lord Jesus." Accordingly, the assertion of the principle soon took in action the higher range. When the disciples believed that human judgment, or that a human tribunal, was exceeding its own peculiar province to interfere with what the disciples held to be- long exclusively unto God, they protested. Only, the inter- ference by the State is what has happened, and must continually happen, when the principle of a Church, in its Divine mission, is not recognised. We see the in- dependent jurisdiction of the Church established by the Church herself at the beginning, both in her individual members and in her collective capacity. I say nothing about those whom St. Paul takes upon himself to con- demn by virtue of the authority which he claims, cutting the offender off, like a diseased branch, from the parent- tree ; using, moreover, the strongest language for the con- demnation, as though assured, in every way, that the sentence was just and right ! But we can trace the same, consistently, when the ap- Chiistians P^^^ made from himself to others, who, by settled their profession as Christians, share the respon- own ibputcs. 5i|-,jjj(-y . " Pqj. -^vhat have I to do," says the Apostle, "to judge them also that are without ^.^ Do ye not judge them that are within . . . Therefore put away In like manner, " St. Paul in speaking about the incestuous person goeth not to any temporal power, although there were sundry laws then, both in Greek and Latin, written of such matters, but doeth it by the spiritual sword alone."— i^zV Thomas Ridley, D.C.L., p. 214. "View of Law Civil and Ecclesiastical." With regard to Dr. Ridley himself, see p. 50, note. Iiiiroducioiy. 21 from among yourselves that wicked person " — those that are ' without' comprehending all that are Pagans, and there- by beyond a Christian jurisdiction. From which, further, it is evident that there was in St. Paul's mind a clear dis- tinction between a secular and a spiritual tribunal, when, from the foregoing, he developes, in another degree, his ideas, to discuss the matter as to what Christians ought to do when questions, not specially their own, become matters of dispute. Even then, he would have them to recognise (it may be) a Christian duty. " If the world," says the Apostle, "shall be judged by you, are ye un- worthy to judge the smallest matters ' V But as a still greater argument upon the point, the first The Coun- Christian assemblage at Jerusalem must not cil of Jerusa- be Omitted. Above all other such Councils, this carries with it an importance which is its own, not merely because it was the first, and therefore the foundation of all that followed, but because of the peculiar circumstances which were the cause of its being convoked, and the authority with which it was regarded then, and ever after. The seal of that authority was, " It seemed good to the Holy Ghost and to us." The fruits were visi- ble in what followed. " So when they were dismissed . . . and when they had gathered the multitude together, they delivered the Epistle" — the result of their deliberations being, "which when they had read, they rejoiced for the consolation." The objection, however, may be made, this is only to look at one side of the question, when we appeal to Scrip- ture for the authority of the Church. Just as when we go to the Creeds, what are they but the exponents of the Church's teaching So that the deductions which are drawn therefrom will necessarily lean more to the one side than the other. But it has been conceded that, both in the Creeds and in the Scriptures, the human element is easily detected, and moreover, the fact is implied in the ' " Si per vos Christianos et Sanctos judicabitiir tolus mundus, qiuinto magis per vos, quasi arbitros, minimcc vestra; liles componi dcbcnt." — Corn, a Lap. Comment, in I Cor. vi. 2. 22 A History of the Cajion Law. inquiry, that the secular aspect must be kept in view. Still further, St. Paul remarks, in the very chapter from which I have drawn some part of my argument, that the Church was beset with difficulties of controversy, as well as other matters, from which there could be no escape, since the Church could not go out of the world. On the contrary, as has been already remarked, the world was to be the scene of her labours, the which must be patiently endured, in order that the world might be made better, through the advancement of Christ's kingdom ! Suppose, then, we adopt another line of argument for Every So establishing the authority of the Church. It ciety must shall be drawn this time from plain practical have Laws. jjj-^^ therefore from a lower level, if we consider the Church, simply, as one of those organized Institutions or Societies'^, which, from time to time, are con- tinually appearing before the world. I do not say whether they must be religious, or political, Societies. For my pur- pose, it will be enough to remark, that they are bodies of individuals who have combined for a purpose, whatever the nature of that purpose may be ; — and still further, that, like the Church herself, they not only combine, but en- deavour, in the best way they can, to add to their numbers and importance. So far I have been speaking of bare organization, without drawing any comparison as to ob- jects or results. Only, so far as we have gone, the Church presents some of the very features which many of these Associations exhibit. '' In this matter we need not appeal to modern experience at all. The light given us by antiquity would have sufficed. There were clubs or societies (ipavoi) established for charitable, or convivial purposes, or for both together. They were very common in Athens. Plato (Lcgg-, p. 915) disapproved of law-suits in matters connected with the above, and would not allow them in his RepubHc. The fact is, they sdtL-d all their disputings amongst thcmsckes. I need hardly remark that in speaking of those institutions together as though placed in tlie same category, it is only done for the sake of argument. To point out the differences I prefer using Hooker's words to my own : — " Tlic Church," he says, "as a supernatural society doth differ from natural societies in this, tliat tlie persons with whom we associate ourselves, in the one case, arc men simply considered as men, but they to whom we are joined in tlie other arc God, angels, and holy men." — Lib. i. 15. 2. Introductory. 23 Without taking, then, more than one step in advance, it is evident, where, and whenever, this kind of Association exists, there must be not only a motive for so combining, but a principle of union of some sort, by which, after formation, these Societies are kept together. And what is the bond but the organism of Law, or conditions through which their proceedings are to be regulated ? That each man should become a Law to himself, i.e. should be able, under the circumstances he has placed himself, to follow his own bent or will, and so hold himself superior to any law which the Society has enacted, or agreed to enact, would tend to bring such an Association to an end. The principle is clear, whether appealed to on a larger, or a smaller, scale, that where there is no Law, anarchy, confusion, and destruction must ensue — clear, it may be added, whether referring to a political, or a religious or- ganization. It follows, each individual, who claims for himself an interest and responsibility of membership, will first recognise the duty of allegiance to all that has been laid down as necessary for union. The Church, therefore, in her work, being the largest. The Laws of the most important, and comprehensive of all the Church. these Societies, if she could, would, in one way, bring all of them within her embrace, not necessarily to interfere or undo them, but to elevate their princiiDles to a higher platform than they may have yet attained, think- ing it no wrong, if she also has her rules and regula- tions, that these same rules should be loyally observed by her members. And once more, if any of those rules are designated by the name of " Creeds V' in defence of Jicr ' The following will shew that the Church cannot afford to weaken, or do away with, any of her defences. " The extent to which the thing has gcme on in Germany is, to use a phrase of the late Lord Russell, 'horrible and heart-rending.' There, even 'the devout female sex ' . . . casts off occasionally its faith." Mr. Baring-Gould, in an article of painful interest which he has contributed to the "Literary Churchman," quotes the remarlc which an accomplished German lady, married to an Englishman, made to him the other day : — "When I was a child " (she said) " I believed in Christ born at Bethlehem, 24 A History of the Canon Law. principles, it is because the Law of her guidance is that self-same law which has been entrusted to her keeping, as a sacred deposit, by the Word of Inspiration. But then, if disputings arise amongst any of these Societies ; for it seldom happens, if ever, under the most stringent precau- tions, that Societies, such as we have been considering, can be kept together without difficulties of some kind arising ; they may assume the best of names that human language can devise of " fraternities" or "brotherhoods," where one would think, a priori, the very title would be a reminder of the duty of oneness of mind. Nevertheless, experience tells us that it is not so. But here again, their very laws, as being interpreted by themselves, or else interpreted on principles deduced from those laws, may be the point in dispute, which may need inquiry and settlement. Be it so. There probably need be no difficulty here. They who first framed the regulations received by the Society, have the power, either through themselves, or by an authority delegated to others, to interpret, modify, or alter. These are not laws like those of the Medes and Persians, which can never be altered. The source of the first enabling power can re-impart itself to meet the fresh difficulty that may have arisen. This, again, is a condition of things adverted to by St. Internal and P^"^' ^^^^ ^^"^^^ enough acquainted with External au- human nature to know, that the point de- thouiy. bated upon, and which threatened a spirit of division in the infant Church, would not be confined to that place, or age, but would re-appear in some analogous form. And therefore, when he gives his judgment, he intended that its effects should reach forward to all time in the history of the Church. The only additional point he urged was, that so little were Christians authorized to shrink from settling their oivn affairs, that rather, if and in the rising from the grave at Easter, and in 'Cinderella,' and 'Little Snowflake. ' But when I became a girl of fifteen, I had put those things behind me as chiklisli things ; and now I come among English Church-folk, into a world where all, or some of, these old stories are believed by grown men and women — and it puzzles me." Introductory. 25 called upon, they were to adjust the disputes of the hea- then also But then comes another difficulty in the doings of these Societies. An extreme case it may be ; notwithstanding, it may arise, for it has arisen over and over again, i.e. in the event of the dispute being of such a kind, that it can- not be settled by members of the body, but has to be trans- ferred for adjudication to another, and a higher. Court. But then, in this case, the transfer is to a tribunal, where more learning, skill, and technical knowledge are brought to bear upon the subject, or where perhaps the judgment will depend upon the principles of Equity rather than the strict interpretation of the written Law, and where, surely, both skill and technical knowledge are especially required. But in either case, there remains the advantage of a secular subject being handled by a purely secular Court. The same steps the Church has had to follow. But in the comparison of the two examples there may exist this important difference, that the topic of controversy in the Church may not be of a purely secular kind. Of course, when the circumstances are secular, it may be said, and fairly enough, that the Church is placed in precisely the same conditions as when a secular Society has to appeal to a secular Court. But then, as we have just now said, the points in dispute may not be secular at all. On the contrary, they may be those in connection with the highest range of Christian doctrine. And reason as well as history tells us, that the Church has her own technical phraseology to express her thoughts and intentions, her own precedents to appeal to, her own doctrines embodied in her Creeds and Formularies. In short, the Church ° has a law of her own, as distinctly marked in its character as any other Society must have, if continuance is an object which each This is very apparent, e.g., in the history of Constantine. And as to the first point, we have the historical record, " Ecclesiasticis sanctionibus vetitum clcricis vel antiquitvts fuit ad Laicorum triljunal consistere, ordinemque suum contemptui aliorum exponi." — Sck'ai^i^., vol. ii. p. 12, lib. iii. tit. 2. " I quote the following striking remark of St. Augustine about the Church, if only to mention her power and responsibility : — " Non crederem Evangclio, nisi me auctoritas Ecclesire commovcret." 26 A History of the Canon Law. has in view. Nay, her law is more distinctive, because all secular Societies must have much in common with aught else that is secular and temporal. But, to borrow an illus- tration (and as we have been attempting to prove), the Church is a building which stands upon another founda- tion in its origin, in its aims, in its organization, affecting, more or less, not only the individual members, but tlie whole condition of a People, in a Christian country, and touching both worlds, the present and the future ! Now when, with this distinctiveness of Law, it is as- A judge serted, there must be a distinctive knowledge, should under- yvhich knowledge can only be gained by an stand the par- . ^ ^ ticular species educational trauimg, one is assuming no more ife ^""rdminS ^han what has been contended for, only a few ters. years ago, in the development of Secular Law. And the reasonableness of this plea, if conceded, will do much towards helping us in defending the claims of pure Ecclesiastical Law. Lord Brougham laid down this principle — this " practi- cal °" principle it is called — " which was in accordance with the opinions of the most eminent men of his time, viz., that different kinds of jurisdiction, relating to different sub- jects and different classes of eases, should be assigned to the bodies of judicature most familiar with them, and therefore more expert in the treatment of them." This opinion, it may be answered, is but the opinion of one man only, however distinguished in dignity. But then, and here is the value of the opinion, a com- plaint is made where the range of objection is not wider apart than (if we may use the illustration) when we are speaking of two branches of the same tree. They are both matters of purely secular Law. And the most eminent authorities to whom Lord Brougham refers are no other than Lord Chancellor Eldon and Sir Samuel Romilly — men of vast legal experience, and therefore not likely to advance extravagant, or ill-considered, opinions. "The former did not hesitate to tell the Common-Law Judges, » See " Our New Judicial System," by Finlason, p. 105. Introductory. 27 that they did tiot understand real-property law as well as the Chancery- Judges, who had generally been Convey- ancers." "And the latter was most indignant" {sic) "when a man like Erskine or Plummer, who did not understand 'Equity,' was made a Chancery-Judge." Of course, for obvious reasons, there is no need to offer an opinion upon the point in question. But if there is a shadow of truth in the allegation, I would borrow the same, and apply it in a case where the Law is of a com- pletely distinctive cJiaracter. Suppose after an interval of a few years, subsequent to the above declaration, touching two branches of our Eng- lish State Law, some Churchman should visit one of our ordinary Courts of Justice. Or again, which would be more to the point I am con- tending for, suppose it should be a Court which is legally capable of dealing with Ecclesiastical subjects. For we must accept it as such by the present Law, howsoever much it should, in the eyes of some, fall short of any pre- conceived notions which might be held as to what a com- petent Court ought to be p. The question may be fairly asked. Would not such an inquirer be astonished to hear that a learned Counsel had to be informed by his eminent Chief as to what a "stole" is, viz., "an attenuated scarf;" although such "stole" or "attenuated scarf" formed one of the grounds for the action } Perhaps, the question was put more in a kind of as- General ig- sumed simplicity than ignorance. But if the SrUcS^'" latter, one can only fall back for the explana- Law. tion lately given by a learned and sagacious P At present Ecclesiastical cases come before the Judicial Committee of the Privy Council by way of Appeal. This tribunal claims to exercise Ecclesiastical jurisdiction. These cases, also, come before the ordinary Law Courts on applications for prohihiliou and other distinctly secular pro- cesses. They do not claim to be Ecclesiastical Courts, or to exercise Eccle- siastical jurisdiction, yet they give decisions in Ecclesiastical matters. Un- fortunately, the Judicial Committee has not distinguished itself in Eccle- siastical decisions any more than the avowedly secular Courts. We ought to have Courts with true Ecclesiastical jurisdiction, presided over by judges skilled in Ecclesiastical law, such as .Sir Robert rhillimore. 28 A History of the Canon Law. lawyer as to "the origin of the evil i." He says, "Our Ecclesiastical Lawyers have never been placed in a posi- tion to make Ecclesiastical Law their chief study : they have devoted themselves to Testamentary Law, &c. A know- ledge of the laws of the Church, properly so called, has been rather picked up than studied ; and it could hardly have been otherwise, because the practice of this branch of the profession has never been profitable And so because the study of the Law will not pay, the Church and Churchmen are doomed to be the sufferers ! Suppose, however, we let our inquiring Churchman make What is an ^"other visit, on a like occasion, to a Court Ecclesiastical discussing Ecclesiastical matters. It is with no supposition, but with a strange reality, that he hears the question, gravely put before a general audience, WJiat is it that constitutes an Ecclesiastical Court? ^ I Correspondence between His Grace the Archbishop of Armagh and A. J. Stephens, Esq., Barrister-at-Law, p. 42. ■■ It is all the more gratifying to be able, notwithstanding these dis- advantages, to quote the following from the same learned and candid author. After saying that "the Ecclesiastical Courts in England have produced but few writers practically acquainted with Ecclesiastical Law as distinguished from Civil and Testamentary Law," &c., he very honestly adds, "For any knowledge yet remaining among us of those original sources, we are indebted chiefly to Divines— {ox example, to Wilkins, Bing- ham, Beveridge, and Stillingfleet." The following is also added, as shewing the natural sequence of the before-mentioned, " Hence the administration of that law broke down from the oblivion of its sources, in those to whom its administration was committed." — Correspondence on Church Discipline and Registry Act, 1855, p. 42. By Archibald J. Stephens, Esq., Barrister-at-Law. " This enquiry was made in the Court of Appeal as follows : — In Dale and Enraght's case (Law Reports, 6 Q. B. D., 439) Lord Justice Brett asked Messrs. Willes, Q.C., and Jeune, what w as their definition of an Ecclesiastical Court ? The reply was, "A Court having general cognizance of Ecclesiastical cases." Brett, L.J. — "Suppose a new Court instituted to try a certain class of causes of an Ecclesiastical nature, is that an Eccle- siastical Court?" The answer was, "Probably so, but it is not necessary to decide that." A similar question w-as asked of Mr. Charles, Q.C., the counsel on the other side. He replied, "To give a satisfactory definition is difficult, but the mere fact of taking cognizance of Ecclesiastical causes docs not make a Courl an l•;cclL■^iaslical one." (Ul). sup., p. 446.) We m.iy add that the definition of a true Ecclesiastical Court is a Court deriving juris- diction fruni the Ecclcsia or Cliurcli. This does not militate against the Royal Supremacy. The Ecclesiastical Courts did not derive their juris- Iiitt'oductory. 29 This time the question was only put ; it was not answered either by Judge or Counsel. How could it be ? The whole surroundings of the Court under discussion Judge and Counsel, mode of procedure, plaintifif, indeed all but the hapless Defendant, proved, to a certainty, that tliere was very little of the 'Ecclesiastical ' about the matter ! It is needless to follow out the results of one of the Persecutions group of cases just referred to. The issue is VesSentr"'' ^^^11 known, and to go into the details would contrasted. be travelling out of our way. It will be better, in our imagination, to turn back some centuries, for an inquiry into a portion of our Ecclesias- tical History. And better still, if we revert to an early period of events, when the Christian mind was so fully alive to tJie importance of some great doctrine, or article of faith, entrusted to the keeping of the Church. For so one must describe the doctrine, when speaking of the Two- fold nature of onr Blessed Lord. At first, as every one knows who is at all conversant with the details of the Church's earlier history, the dif- ficulty, with some, was on the question of the reality of Christ's human nature. Doubtless, for years after His Resurrection and Ascen- sion, the memory of His marvellous works and wisdom had not died out. The recollection had become tradi- tional, the question then being. How could such a mani- fest token of the Deity by any possibility be conjoined with our mere humanity } It is said that the recollection became traditional, because the distance could easily be bridged over between St. John and his disciple St. Poly- carp, and then between the pupil and St. Irenaeus. Hence diction from the State. This fact is clearly pointed out by Lord Justice James in Nihoyct v. Nihoyet (Law Reports, 4 P. D. 5) ; and it is illustrated by the language of the Act creating the Probate and Divorce Court : we shall refer to this again. Sometimes, no doubt, we read of power being given by the Crown to Ecclesiastical persons or bodies to hold Courts, but these are Courts for secular purposes. ' Lord Penzance's Court. There is a striking contrast even between the room in which this Court is held and that of the old Court of Arches as described by Oughton in his Introduction, cap. ii. s. 22. 30 A History of the Canon Law. the sight of Irena;us became, as it were, the reflection of the Apostle Himself, who with his own eyes had both " seen," and "touched," and "handled," of the Word of Life! But afterwards, and not so very long after, a change came over the minds of some, who could not see as those before them had already seen. There was to be a reverse side of the picture ! And now the perplexity was, not the humanity, but the Divinity of fesiis — that, verily, His was a nature pure and holy — in both transcending the highest of Angelic Beings — but still falling short of the Deity Himself. And in some measure, to explain these two points, the two together, "the perfect Deity" and "the perfect Humanity," it was, that the third Creed was de- vised, and eventually received, by the Church. But once more, suppose that even this were not enough for a safeguard, and a disciple accepted the one proposi- tion, but decried, or frittered away, the other, what further protection could be appealed to ? And were the accusa- tion clearly made out, the answer would be, Had the Church no power of her own on which to rely .'' Did she alone, of all other Societies in the world, stand isolated in her helplessness ? Had she no power to protect herself, or rather, for that is the point, to safeguard"^ the precious treasure committed to her keeping, from preceding genera- tions .'' — from the day when the Cross was first lifted up by those who had witnessed all, in the perfection of Him from Whom we hope for our eternal deliverance — in the one nature as knowing His unspeakable sympathy, in the other, the Omnipotence of His power ! Would this be a time, then, for the Church to submit and remain silent, whilst she, in her members, had re- ceived the Law, that they, in turn, might quit themselves "like men" and "be strong." Or was her authority clean " " Canones requ6 in antiquis, ac in recentioribus Conciliis adversus hre- reticos constituti, anathemate clauduntur in eos inflicto qui doctrine in iis contentse sese opposuerint. Et sane, uti loquitur St. Jerome in Epist. Galat. c. 4. c. 8. . . . Arius in Alexandria una scintilla fuit ; sed quia non statim oppressa est, totum orbem ejus flamma populata est." — Selvagg., lib. iii. tit. xvi. c. vi. Introdticiory. 31 gone ? — and gone it would be, as we arc assured the " Can- dlestick" will be, if fear, or doubt, or cold and calculating indifference, should stand in the way, and stifle every higher and holier feeling ! Now the answer is given not for the purpose of defend- ing or advocating the punishment ; only that the fact may be recorded. It is said, that the adoption of the system first took its rise in Spain. And would that, commencing there, it had never gone beyond the peninsula ! Such unbelievers, however, would be deemed by the Imprison- Church to be heretical offenders, and as such, deskstkal^*^" would be punished by imprisonmentT . Offences. How cruel, we are ready to exclaim, and with reason, to have inflicted such a sentence, as alike un- worthy of the great principles of the Church, and inade- quate for effecting the end proposed ! Since Truth never is, and never has been, aided by the weapons of Per- secution ! But what if, in modern days, we can discover something like its counterpart ; nay, it is exactly the selfsame pnn- islimejif^ \m\\\c\\ has been the issue of a vestment-case, in an English Court of Justice ! » In connection with the above we read elsewhere : — " Hseretici, qui suum errorem detestantur, at abjurant, turn Ecclesire re- conciliantur ... at plerumque perpetuo carceris squalori mancipantur." — Sehagg., lib. iii. tit. xvi. c. xi. " Hxresis a Greece verbo alpiai, quod primaria sua notione denotat 'eligo.' Unde hteresis idem est ac electio ; et speciatim electio dogmatis, atque ipsum dogma. . . . Christianis hseresis est dogma adversans principiis reli- gionis Christiana;. Nam horum tantummod6 habitus efficit Christianum : ac conclusionum habitus non air\ws (simpliciter) Christianum, sed Theologum, elhcit." — Ibid., lib. iii. tit. xvi. c. I. y It is right to add the following remark to shew that imprisonment at the time referred to must have been a very exceptional occurrence: — " Quum verd quibusdam facinorosis custodiendis Clericis monasterium locus satis tutus non videretur ; hinc ibidem Innocentius III. (1198) prrelatis permisit, ut hujusmodi Clericos, postquam fuerint de crimine canonice con- demnati, sub arcta custodia detineant. Atque hinc paullatim poena carceris in curiis ecclesiasticis recepta est." — Selvagg., lib. iii. tit. xvii. c. 5. "In usu etiam antiquitAs videtur fuisse poena exilii, sive recessfls a propria politia," &c. — Ibid., c. 6. ^ It is refreshing to go from the laws of Spain to the early laws of England. "The laws of Ethelred speak of pecuniary penalties for spiritual offences to 32 A History of the Canon Law. But then the former was on a point of Conscience. Be it so. And is there no Conscience as the groundwork of the latter } Or are we driven to the conclusion, that con- science is only of importance, when this, and not that, dif- ficulty, is the cause of the perplexity 1 At all events, in olden time, Ecclesiastical Law inflicted it for doing despite to a doctrine which the mass of Chris- tians hold, and ever have held, most sacred and dear ! But imprisonment for heresy, happily, has long ceased to exist. And upon this topic, one need go no further back than the days of Hoadley % towards the beginning of the last be applied according to tlie direction of the bishops. So the laws of Edward the Confessor, collected by the Conqueror, speak of enforcement of episcopal sentences in case of ecclesiastical offences. The laws of the Conqueror de- clared that the bishop should administer Ecclesiastical Law. " — Reroes, Introd., p. 60, note. As far as the individual clergyman is concerned, when offending, matters have receded, when, for a mere trivial offence, not one at least of doctrine, under a Lay-tribunal, not only is imprisonment possible, but "the spoiling of goods" is its adjunct ! ' It would be difficult to forbear from referring to a somewhat analogous „ . , case, entitled "Secession from the Church of England," Secession from , ^, , , , •, , Church of ^"'^ connected with Bedford Chapel, Bloomsbury, London. England of This chapel, by the way, had been duly licensed according Rev. S. A. to Church Law, and the services were conducted in con- Brooke, foi mity with the rites of the Established Church. The chapel is proprietary : the Incumbent (S. A. Brooke) at the time of its closing inti- mated that it was his intention to secede from the Church of England, and conduct the service in future upon the principles of Unitarianism. Now he does not say whether, or no, or how long, he had been already conducting them on those principles. He gave the congregation to under- stand that two changes would be made, one was to free it from doctrinal forms to which he could no longer assent. The text for the sermon was not inappropriate for the occasion : " Salt is good, but if the salt have lost his saltness, wherewith will ye season it?" He went on to say : " He had seceded from the Church of England, not so much because he disagreed with its doctrines as because he disapproved of the very nature of it as an ecclesiastical body, in reference to its connection with the State. He did not wish to say anything against Churchmen, nor, indeed, against the noble work of the Establishment itself." Then there follows this extraordinary statement: "It (the Church) had forced the whole body of Dissenters from it to suffer under a religious and social stigma, which had kept down large masses of men whose spiritual hfe was as deep as its own." Boor Church of England ! How large is the weight of transgression, which thou, unwittingly, hast to bear ! The State is never mentioned, even, as Introductory. 33 century, whose history is so well known to us, when the Arian controversy broke out again. So far from any pun- ishment like this being inflicted, it has been complained of, with respect to the Church of England, that if she had possessed, or, possessing, had put forth, any kind of au- thority, the scandal of those proceedings, with regard to Bp. Hoadley, would have been avoided ! But in more modern days the Civil Law inflicts the punishment ; or, at least, and to speak more correctly, iviprisonment is the issue of the judgment to the accused, together with the spoiling of his goods, and this not be- cause of Him whom so many honour as their all-gracious Redeemer, nor yet the garments which covered His sacred Body (for these at the time were torn and divided amongst the infuriated multitude), but for vestments of human make, which are to represent, merely, an idea, in the cele- bration of His "hallowed worship 1" There is no need of the inquiry, which Court is the more merciful of the two — the ancient or the modern ? But one a sharer of the evil — the Church is alone. But a statement remains still more extraordinary, after the declaration that " he had taken the step not so much because he disagreed with the doctrines of the Church," when he pro- claims his disbelief of Miracles, for example, that of the "Incarnation" — feeling "that upon this one question he could not remain in the Establish- ment."— Z»a//y Telegraph, Oct. i8, 1880. Now after all this, and more, the suggestion naturally arises, Could such a state of mind have been reached except progressively, especially when coupled \*Hlh the fact, that when the complainant first undertook ministerial responsibilities, all must have appeared clear enough then? At all events, with promises and vows of the most sacred kind, the belief of the candidate for Holy Orders could not have been anything like this? And if so, the question comes, what must have been the character of the preaching for many a month, perhaps for years, to the members of this same congregation who pass over with him ! Meanwhile, has all ecclesiastical authority been silent ? Moreover, how unimportant and worthless does a vestment-case appear, when compared with an exhibition like this ! ' We shall have to refer again, more fully, to the history of Bp. Hoadley. In connection with our remarks on the want of technical learning of the present so-called Ecclesiastical Courts we may mention, that Lord Bramwell, in the debate on the Deceased Wife's Sister's Bill, June 11, 1883. said, he "knew no more of Theology than erf Astrology." Yet the noble and learned Lord has sat, as Judge, in an Ecclesiastical Case, on the Judicial Committee of the Privy Council ! D 34 A History of the Canon Law. may with some justice ask, which Law is the more right- eous of the two ? At all events, the Christian will, without hesitation, an- swer, that the motive of the wearer of the vestments, even supposing his course of action an error, was truth and loyalty to the faith of his own convictions, and above all, towards Him, who, without counting the cost, redeemed mankind with His blood ! CHAPTER II. GREEK LAW IN CONNECTION WITH CANON LAW. " I am debtor both to the Greeks," &.c. —Rom. i. 14. THE question has often been put, and perhaps more frequently put than answered, What benefit can ac- crue from the study of Ecclesiastical Law ? of sludy ^of For whatever little influence it may possess Ecclesiastical jn the present day, the matter is rather a sub- ject of the past — ^one, perhaps, suitable enough to engage the attention of the antiquarian, whose employ- ment is to read the mind of former generations. Hence, when a conclusion has been drawn too hastily, it has been alleged that so far as any practical good is concerned in affecting the times in which we live, the labour is but little else than fruitless. So, at least, have some individuals argued, when look- ing at this particular portion of our Church history, and thus have more or less been deterred from prosecuting the study in its details. It is true this may be an ex- treme view of the case, and, as such, is to be deprecated. But happily there are considerations which appear more encouraging. Now, to take an extreme view on the other side of the question, a bold statement has been made, and which one cannot refer to without some misgivings, viz., that it is impossible for a student to become a good theologian" " without being at the same time a good Canonist," i.e. " " Atque ex hisce omnibus ex Deque per decern priora Ecclesia; SiT^cula jus canonicum coalescebat. Nullum enim tunc temporis Theologos inter et Canonistas erat discrimen. At soc'culo xii. canonum facultas in duas abiit disciplinas, quarum altera theologiie, altera juris canonici, nomen sortita est. Illi fidei, morumque tractatio, ceu proprium peculium datum ; isti disciplinas judiciorumque ecclcsiasticorum materia reservata est." — Sehagg., vol. i. 1. i. tit. 2. 8. And yet more strongly, "Hinc neutiquam dubitandum, theologiam tanta cum jure canonico adfiuitate connecti, ut nisi utraque conjungantur, mutuoque D 2 36 A History of the Canon Lmv. an expert in Ecclesiastical Law. It would be away from our purpose to attempt to argue the point on either side. Sufficient it will be to quote the proposition, if only as a reminder ; because some inquirers, however uncon- sciously, have, in act, in a small degree, as good as ac- cepted the statement. For instance, few people, in reading the Epistles of St. Paul, have failed to detect some of that author's pecu- liarities. It will not be needful to touch upon the subject- matter of his writings, which every Christian knows more or less ; although it may not be easy for another to say with St. Augustine that the perusal of a single passage in one of St. Paul's Epistles was, under God, the instru- ment of his conversion to Christianity. The Apostle, then, writes in Greek, and therefore, as we might expect, his writings are not devoid learned bothin of the idiomatic peculiarities of that language. i'omairLaw'^ But St. Paul, by birth, was a Hebrew. "A Hebrew of the Hebrews" he calls himself; so therefore in his ideas, and through his educational train- ing, he was a Jew, sitting at the feet of Gamaliel, the sibi lumen pra;stent, haud magnDe fieri possint in alterutra facultate progres- siones. "—//'/,/. infr., p. 89. We may remark that the term "Theologus," as applied by the Christian Fathers to St. John, was distinctively because of his faith and writings con- cerning 'the ever- Blessed Trinity' and the 'Incarnate Word,' i.e. 'the Word of Life,' or 'the Living Word,' not simply the Word which was the Divinity, but the 'Word of Life, the Humanity.' We may add to the above upon this topic, that of all the works of St. Thomas Aquinas, who combined in himself the great stores of Theological and Philosophical knowledge drawn from preceding generations, one of the best and most finished of his Treatises is his " Commentaiy upon the Epistle of St. Paul to the Romans." "Aperuis«e mox librum, ac, Deo regente, oculos subitd conjecisse ad illud Pauli, Rom. xiii. 13, 'Not in rioting and drunkenness, not in cham- bering and wantonness, not in strife and envying. But put ye on the Lord Jesus Christ.' Quji sententia, quasi fulmine, ictus S. Augustinus litem dire- mit, et ab hxresi ad fidem . . . se transtulit, eamque illibatam constanter in omnem omnino vitam conservavit." — Corn, a Lap. Proixm. dc Praro^ativ. S. Paul, p. 6, c. 5. Gamaliel was said to have been master (magister) of SS. Barnabas and Stephen, as well as of St. Paul. Note resemblance between Epist. Heb. and Epist. Barn. Greek Law in connection with Canon Lazv. 37 latter a Legalist amongst his own countrymen. Hence, whilst most of the phraseology of the writings is Greek in the language and idiom, it is Hebraistic in its charac- ter, whilst the author's mind seems to have been im- pressed, even more than his contemporaries, with the close reasoning and logical precision of the jurist. This last peculiarity is more especially evident when, after a sojourn at Rome, — the seat at that time, and subse- quently, of legal learning, — the Apostle thought fit to address an Epistle to the Christians dwelling there, or otherwise connected with that city. As a simple con- firmation of the position laid down, we have only to ad- mit, that the commentators of the present day, or such as have immediately preceded them, make it more their study, as compared with some preceding generations, to trace those various peculiarities of the inspired writer, whether of law or language, that they may understand the better the logical tendencies of his mind. But again, although none of the above reasons may The Sources sufRce to influence some students in ecclesias- ofLaw. j^^^r^ there remains yet another. And this shall be addressed to the bare historical inquirer, who either loves the past for its own sake, or that he may impress upon others how much the present imitates the past''. Indeed, this is said to be one of the main ad- vantages of studying history itself, that nations, like in- dividuals, have the opportunities of learning from former experience what they should adopt, or what they should avoid. And has not Ecclesiastical Law a history of its own So we may assert further, as each nation has its own laws, so, in the investigation of history, we find that '' Cicero speaks strongly on this point : — • " Historia testis temporum, lux veritatis, vita memorix, magistra vita;, nuntia vetustatis." — Dc Orator. At the same time, what is more important than the Christian side of the fact? .Sir Ed w. Coke reminds us: " Nusquam res humane prospere succe- dunt, ubi uivinK negliguntur. " " History has been said to be ' Philosophy teaching by example ;' and to no subject is the remark more applicable than to Law, which is emphatically the ' Science of human experience.' " — Story's Jurisprud., vol. i. p. 46. 38 A History of the Canon Law. they may sometimes be traced, in one way or other, to a commofi origin, however modified, changed, or added to, as generation succeeded generation. And if each nation has its own distinctive laws, nevertheless, as in the case of the waters that issue from a fountain, the source is often one, whose supply forces its way, in divers chan- nels, to swell the stream below. It may be, in the cur- rent, the waters at times linger, or else touch, and inter- sect each other — giving here and borrowing there, — yet, in the long run, though arising from one common origin, the separate channels can still be detected. But, narrowing the general observation to ourselves. The Com- the fact seems very apparent in matters af- mon Law. fecting OUT own Judicature. For what is our Common Law 1 Perhaps we can safely reply. It is a law which, from its prevalence, may be said to be superior to all other kinds of law, except what we know by the name of Statute Law, which, again, is only the issue of prin- ciples that govern our Common Law. But whence comes this latter '> It has been called the Law of ' Precedents,' as consisting of a collection of 'customs' and 'maxims,' which derive the force of law from long and immemorial usage ; it may be sometimes coupled with the express sanction, or the tacit consent, of the Legislature. The decisions, therefore, acquiring force and authority from these precedents, — acted upon, and re-acting, — have been admitted as conclusions, arrived at by ' the common-sense of mankind.' Plowden calls it ' tried reason.' Coke speaks of it as ' the perfection of reason.' But one of the most remarkable designations of it is 'Lex non scripta' — 'the unwritten law,' as Lord Chancellor Ellesmere says, 'which is grounded upon the law of God, and extends itself to the original law of nature ' or the ' universal law of na- tions,' and therefore primarily, as has been said, becomes ' lex non scripta.' And it is one of the peculiarities of English jurisprudence, that the Common Law is held in such high and peculiar veneration. And this has pro- bably not been without its effect in giving greater sta- bility to our institutions than is found in most European Greek Law in connection with Canon Laxv. 39 nations. It must be confessed, however, that there is a strong probability that our Judges in shaping the Com- mon Law borrowed largely from the Civil Law, though without acknowledgment By the Civil Law we understand the Civil and Munici- pal Law of the Roman Empire, which " Ibid. ' An ^Egyptian Priest, having a conference with Solon, once said, "You Gr:Ecians are ever children, you have no knowledge of antiquity, nor antiquity of knowledge." — Lord Bacon's IVorks, vol. vii. p. 157. 42 A History of the Canon Law. If we should attempt to define what Law is, drawing , our conclusions from Graecian thought and The Greek ^ . , . , . . , , , ° idea of Law Grc-ECian legislation, it would be as their own tion ^Proptr- ^^nguagc cxprcsscd it (I'o/^o? or vkfiw) in its ge- tion.and Mar- neral distribution, through the various condi- tions of society amongst them, and after them. Now, in connection with this subject, we have before spoken of the body natural and the body politic \ as if the one, in some small degree, bore a partial resemblance to the other, and each individual person carried along with himself a share of that resemblance. We may re- mark, further, that if it has been said, and rightly too, " that the Greeks idealized the form and status of the human body," it is a truth equally apparent, when we speak of them in their efforts to understand, and build up, what also they "distributed" in their legal system through the various elements, or members, of society. It may be, that the harmonious system of the one did some- thing towards forming the national mind for dealing with the various problems of national law. At all events, in the very threshold of the inquiry, we may detect in some of the details of their legal system a beauty of arrangement which was not lost, when trans- ferred to their Western disciples. And touching their moral bearing, there are some points which may raise feelings of astonishment even among Christians of the present day ; and eventually, if they did nothing else for us, they gave us, through their expressive language, the Scriptures of revelation ! This idea of distribution they carried out also in the principles on which their law was based, those principles being' threefold, viz. 'to Blkuiov' See previous chapter, p. 3. ^ O'i v6fiOL Th SiKaioi^ Kai Th kclKov koI rh avjxtp^pou $ov\oyrat Kol tovto ^riTovtrt .... Tras 4€\f7s ko! S\6K\ripot. — See Telfy, 'p.gS^yiis Pub!. And as such in office and character together, a mark of public respect was accorded to them. Oi' Upus f'l ovirep wmd>dT](!av, aKii/v/xoi tc eiVi ko! ovKeri 6i>Ofi.aaro\, ws &v Uptivufxot i)Sij 7e7ci/))fteVoi. — (Li/i uiii. Lc.xiphiin. , lo.) Tdjys jus Puhl. de Sacris, p. 96. " Sacerdotes, a quo tempore consecrati sunt, anonymi sunto ncc jam suo nomine nominabiles, ut qui sacro jam nomine gaudeant." — Tcljy, p. 96. Greek Laiv in connection with Canon Latv. 45 periodical literature of the day, so alive has the public become, all at once, to the " importance of the ques- tion." We may add, it concerns the very oath which every Christian has taken as a Christian soldier; (the Greeks also had a military oath to take). But, when fresh enrolled into the service of Christ, he will do battle with, and conquer every temptation to excess, which leads unto sin. Now the Greeks had a very peculiar way of grappling Strict Laws '^^^^ ^his social difficulty. They boldly began nffecting the with the upper, not the lower, stratum of so- Jut'efis. ciety. Their legislators were to be men of more than ordinary attainments. To use their national phraseology, they were 'men of mind men of wisdom. Nevertheless, in their jealousy concerning them, or to the avoidance of any public scandal, the people removed the very temptations from their legislators. If, perchance, any one of them found his way into a tavern^, on that very day the offender was denied the power of entering the Court of Justice, and taking part in the deliberations ! And this enactment was the more remarkable, in that it referred to their highest Court of Judicature, the Areo- pagus s. The same was in a locality near the famous city, and is familiar enough to most Christians as being the spot where St. Paul preached his well-known Sermon, pro- bably to a very intelligent audience, the people's business being, we are told, to do nothing else than inquire about some new ' thing,' (rt vkov ;) — a popular habit, which, per- haps, enabled the Apostle to gain a hearing for himself the more easily. 1 They are called by Demosthenes tppovi/ioi, from ty was " Court of Conscience," a phrase which, at an earlier period, was applied to the Ecclesiastical Court (Johns, ii. 371). This is noteworthy. ' Trusts were recognised and enforced by the Spiritual Courts long before the Court of Equity enforced them. They probably exercised the power on the ground that it was a sin for a man to take for his own use property that was given him on trust for another. See below. " " Servi enim (qui Grrecis ideo (tw/uoto, et Latinis Juris-consultis corpora dicuntur) sunt dominis, quod animce est corpus." — Arist. Pol., 1. i. c. 3. ihv See Table of Canons in Corp. Jur. ; Canons said to be extracted from Scripture (including Apocrypha), and quoted by Bowyer, p. 155. The number of texts cited in the Canon Law from the Old Testament are about 788, and from the Apocrypha, 33. Of these texts, 280 are from the Books of Moses and the Book of Joshua. This affords a rough example the enormous influence of the Jewish Law on the Canon Law. It would, however, be a mistake to say, that the Canon Law was derived from the Old Testament. Its aims are not precisely similar. It is not intended to be the law of a nation apart from others, but rather of a ' holy nation ' living among other nations. It is intended for the law of the kingdom of God in the Jewish Latv in connection with Canon Law. 59 what was promised in the grace and mercy revealed in the "New," and reaching onward towards the end! And yet both " Old " and " New," in the several parts thereof, what are they all but links of the self-same chain, bringing the two ends together : the first, in the promise given ; the second, in what St. John so beautifully, and so fervently, prays, "Even so come, Lord Jesus." But it will be better to quote the precise words of the Bishop, as they were reported at the time : — " Our young men instead of giving themselves to the quiet and serious study of God's Holy Word, instead of studying Hebrew, instead of seeking accurately to understand their Greek Testament, are wasting their fresh morning of life in idle and miserable controversies. Instead of striving to be- come meek Christian scholars, their ambition, if they read at all, is to be liturgiologists : liturgiologists, however, who could not write down from memory, in properly-accented Greek, that blessed prayer which is the model of all liturgical access to Almighty God. If I had to urge any remedy at the present time on our younger men, I would first say, in the name of Almighty God, a little more Hebrew Quoting once more from the same source, and that the cognate languages may not be forgotten, — " And what could be a better work for a young man than to give himself to the study of the venerable Version, portions of which may have been in the hands of St. John, the Apostle ? I refer to the Syriac Version." Again, — " Has anything been done in regard to the illustration of the early and valuable Memphitic version ? ... If only the hours wasted in writing acrimonious letters on the Privy Council judg- ments had been devoted by some of our younger Clergy to such world, until the world itself becomes the kingdom of Christ in God. To the aljovc numbers may be added I, no from the New Testament — of these St. Matthew gives most, viz. 237. ' For some generations, perhaps, no single individual has done more for the study of Hebrew, &c., than Dr. Pusey, the late Hebrew Professor in the University of Oxford, who never spared himself, in any way, to promote so good an object. 6o A History of the Canon Law. a work as this, the Church and the world would have been the better for it, and they themselves wiser and more charitable." It will not be necessary to analyze this statement in Benny on detail bcyond a reply, that had it been ad- 37of 'jei vanced some half - century ago, the accusa- ish Law. tion, in the main, could have been made with greater effect as an acknowledged fact. Still, touching the point referred to, the inference may be drawn, that a much greater attention to the Hebrew language, and its kindred dialects, will be of service to the Church. But suppose, as a still further help to our argument, the opinion of a Layma7i is quoted, which reaches every section of Churchmen, young and old, in its various professional grades, as well as others. An interesting book has lately appeared on "the Criminal Code of the Jews''." The author complains of a general indifference upon the sub- ject, which he handles, of Hebrew knowledge, saying, that whilst we can find time "to study tlie Laws of the Brah- mins, the Parsees, Greeks, and Romans, the study of the ancient Jewish ^ people has been systematically neglected, and even whilst the Chinese and Mussulmen have found zealous exponents of their sacred and political Institu- tions." However, it must be admitted, that the writer in ^ By P. B. Benny. (London : Messrs. Smith, Elder and Co.) ^ On a matter analogous to our main subject, and which we must not forget, the study of Hebrew will be found of essential service. Few men of later years have impressed their own individual ideas upon Christian doc- trine more than Spinoza — directly, in the philosophy which he formed, bor- rowing some of his notions from Descartes, and our countryman, Hobbes ; and indirectly, as influencing others, who, though rejecting many important particulars of his systc-m, nevertheless adhere to his rationalistic mode of ar- guing upon some of the highest mysteries, specified in our Christian Creeds. Spinoza was a m.an of undoubted ability, and by birth and training 'Mas a Jiio, well versed in the Holy Scriptures, and early initiated into the study of the Talmud ; so that even before he had left school he was conversant with the writings of the former Jewish scholars and writers, who lived in France, Spain, North Africa, &c., during the Middle Ages. To be able, therefore, to understand many of his opinions, and, when necessary, to refute them, one need not add, that the first requisite is a knowledge of the very sources which were not French or English merely, but Jiwish, from which Spinoza borrowed some of his philosophical reason- ings, the same being traceable in some of the pantheism of the present day. JcivisJi Laiv in connection zviiJi Canon Laiv. 6i making his charge does it in a very quiet manner, com- prehending the entire Clerical Body, and yet without any impassioned Appeal to the Highest and Holiest of Names ^ .' But the charge is not the less serious, and is intended to be so. And yet, if to strengthen the force of his strictures, he also had made allusion to the various judgments of the Privy Council, who could have complained ? At the same time, why should not every section of the Clergy, high and low, dignified or otherwise, concern themselves with these judgments ? The subject-matter in everyway concerns them. The issue has sometimes very deeply con- cerned them, when the Judgment has come from an Ec- clesiastical Court to a clergyman^ in the earliest stages of the dispute, who was unprepared, and who, without notices found himself "a Defendant" in an Ecclesiastical cause ! But to proceed with Mr. Benny's uncomplimentary, I do not say incorrect, observations, he makes no mention of Hebrew with points, or without points. All that he wants is a sufficient knowledge of the Hebrew language, that men may be able to study, effectively, the laws of the Jews. " The most profound ignorance" he continues to say, ^'prevails regarding the practical mode of adminis- tering Law and Justice, as it obtained among the Hebrews during the prophetic period, and at the time of the destruc- tion of the second Temple at Jerusalem." Of course, one answer to this is very easily made, viz., that every Christian, i.e., every Christian reader of the Old Testament, must have a certain amount of knowledge which the Pentateuch and other portions of the Old Testament contain. And this is admitted ; but he dignifies the knowledge by no better name'' than "popular conceptions," — and adding to the admission with force, " As to perfect knowledge, we ' Every Hebrew scholar knows that the Jews always abstained, through a deep sense of reverence and awe, from using the name of God, the term, " the Name," being deemed sufficient. See note on Lord's Prayer below, p. 65. 8 Contrast with this the precept given by St. Paul to Timothy, " Receive not an accusation against a Presbyter," &c., and see AppemUx A. ^ "The popular conceptions upon tliem arc gathered from the injunctions and ordinances of the Mosaic Pentateuch." — Benny, p. 5. 62 A History of the Canon Law. might just as well say, that by the perusal of our Statute- Book, Acts of Parliament, or written Law, we have mas- tered the whole of otir legal system without the aid of Com- mon Law, which is the Law of Custom or precedent." Nevertheless, the great fact remains, touching these Old The Jewish Testament Scriptures, that much is given us Law is con- there, even to the minutiae of details, and re- in"ili ScrJ- corded by those too, who, we believe, have ture, partly in been directly inspired by the Holy Ghost. At the Talmud. ^, /. \. ^ . ,, • -n. the same time, the question really is, Does that extraordinary and interesting people teach us in no other way than through their recognised and inspired Scriptures Have they no records over and above all these } And is their history a blank except when, and where, the sacred records refer to them Most of us know, that the reality of the case is widely different from this, since, as might be expected, what God revealed, and Moses and others declared to them, formed only the foun- dation of a vast superstructure, that in course of genera- tions was built upon, although not inspired, and not pre- tended to be so. The "Talmud'" itself is a varied collection of Jewish „ learning, law, legend, and philosophy, con- The Talmud. . . . ^ , f , taming sentiments and sayings, some valu- able, scattered, unmethodically, through the ponderous volumes, with a mass of matter which, probably, would interest the general reader but little. But the complaint is, that professional men, so far from mastering the whole, do not even attempt a part, where alone, it has been re- marked, that, after Holy Scripture, we can obtain a know- ledge of the habits, customs, and practices of this mar- vellous nation. And, possibly, the study might help us a little towards gaining a more perfect insight into the ' The Talmud (from ^l3b, 'to learn,') has been called "a treasury, in chaotic arrangement, of Jewish lore, scientific, legal, and legendary — a great storehouse of extra-biblical, yet biblically referable, Jewish speculation, fancy, and faith. There are two Talmuds, the Jerasalem, or more correctly, the Palestinian, and the Babli or Babylonian ; the former being that of the ' West, ' the other, which is by far the more popular and extensive, being that of the ' East. ' Jewish Law in connection with Canon Law. 63 development of Ecclesiastical Law, as it in time affected the Church of Christ, in succeeding generations. Indeed, we may widen the proposition by saying, that the Jews have affected, very generally, both the"jewT^on Christian thought and Christian practice. g^^^Christian We have already alluded to the first Chris- tian inspired writers, how, in their conversion to the faith and obedience of Christ, they still retained much of what belonged to them as Jews ; and that however transformed they became, in character and ideas, they re- tained something of what they had in themselves through education, i.e., through their intercourse with their fellow- countrymen, or again, which they had inherited from their parents and teachers. The Jewish mark is visible, to this day, in many ways. Neither was it intended that all national distinctions should die out. Otherwise, the great Apostle, in speaking of his countrymen, would never, for their sakes specially, have wished himself even to be ac- cursed. And it was only when the Jews rejected the " new Belief," that the sentence was uttered, " Lo ! we turn to the Gentiles." The truth of the matter being, that far more than what the generality of people imagine, has the Jewish j influence reached us in the present day. Our J "The whole body of Divine Service amongst the Jews did consist of several prescript and set forms. At their temple, though a great part of their service was ceremonial and typical, consisting of divers kinds of sacrifices and offerings, which in the fulness of time were to be done away ; yet this was attended with moral and spiritual services, consisting of praises and prayers, which were to continue for ever. For the Levites, whose office it was to stand every morning to thank and praise the Lord, and likewise at the evening, were wont to perform their parts, as with a world of solemnity, so also with hymns and songs, that were composed and set to their hands." — Pflling's Good Old Way, on Set Forms, p. 50, a.d. 1679. " Hence it is, too, that we find some Psalms framed on purpose to be used on some special occasion ; as particularly the 92nd Ps.ilm, ' entituled, A Song for the Sabbath-day ;' which was intended, questionless, to be sung solemnly on the Sabbath, in memory of God's rest upon that day, and to give Him thanks for His wonderful works of Creation and Providence. And hence it is, that the fifteen Psalms immediately following the 119th, are called 'Psalms of Degrees,' or steps; because the Levites were wont to sing them upon the fifteen stairs (upon each stair, one) which were between the women's and the men's court." — Ibid. The above book is also entitled "A Discourse offered to the Consideration of all true-hearted Protestants." 64 A History of the Canon Lmv. worship, our public and daily worship, the structure of our own Prayer-book, our Liturgy, of which it may be said, that, perhaps, of all the Liturgies of the world, it alone contains the Jewish Decalogue as a part of its holy Communion Service, the Priesthood (and why should we be afraid of the word ?), the expression of praise, the chaunting, the blessing, the reading of the Scriptures'', the consecration of places, and things, and persons, the remem- bering of God at meal-times as the Great Giver of all things: — nay, the day of worship, and the highest and holiest ordinance of Christian worship, are traceable, in some measure, to the same Jewish source, together with the elements' which our Blessed Lord sanctified for the ^ "The reading of the Law and the Prophets was not arbitrarj', left to the reader's pleasure what parts of Scripture to make choice of ; but certain lessons were appointed for the day, and the Law was divided into fifty-four sections, and the Prophets into as many portions, for every week a portion ; so that the office was prescribed for the whole year. . . . The Ruler of the Synagogue dismissed the assembly with the usual and solemn benediction."— md., p. 53. ' "Even their more private devotions were prescript and formal also; for instance, in the solemnity of the Passover, which was kept in their private houses, they had set forms of words, whereby they declared the meaning of the Mystery, and of the institution of the Lamb, the bitter herbs, and the unleavened bread ; and this declaration was called ' a shewing forth ' of the Passover ; to which the Apostle alludeth, when he saith of the Lord's Supper, that it is 'a shewing forth of the Lord's death.' I Cor. xi. 26. They had set forms of words for the consecration of the Bread and the Wine : over the liread they said. Blessed he Thou, O Lord our God, the Kiug of the world, 'u'hkh bi-higest forth bread out of the earth ; and over the Cup they said like- wise, Blessed he Thou, O Lord our God, the A'iuo of the world, luhich createst the fruit of the Vine. Lastly, the whole action was concluded with singing of Psalms, beginning at the 113th, and so on to the end of the 118th, which six Psalms were called by them the great Hallelujahs. And, perhaps, as our Saviour used the usual or like form, when He blessed the bread and wine, so also they used that great Hallelujah, when the Evangelist tells us, that He and His disciples sang an hymn, and went out into the Mount of Olives." St. Matt. xxvi. 30. — Lbid., p. 53. The idea comes out very clearly in llie Lord's Prayer. Without going very minutely into the particulars, it will be sufficient to make the following remarks. It could be illustrated largely from the Rabbinical writings, which, in some measure, rest ultimately upon the Old Testament itself. For the first expression, "Our Father," cf. Deut. xxxii. 6, and Isa. Ixiii. 12 and 16. Both expressions, '13''3S alone, and C^Cti^^ty 13"'3S ("our Father," and JeivisJi Law in comicciion zvitk Canon Lazv. 65 occasion, when He said (whatever may be the exact mean- ing which wc give to the terms of the proposition) " This is My Body."—" This is My Blood." Again, the very prayer which Christians utter so often, both privately and publicly, and are taught.to lisp from very childhood, which was given by our Lord Himself, is trace- able also, in many of its provisions, to the same source — to Him who sanctified what He had received, bequeathing the same as a model for all jDrayer, and as a legacy both old and new. " New," indeed, when the Saviour said, with "our Father, which art in Heaven'"), arc both used formally in the Jewish Prayer-Books. "Hallowed be Thy Name." As already remarked, the Name of God, signifying the Being of God, is an especial Hebraic expression, and is used amongst other reasons to avoid express mention of God Himself. "Any benediction," says Berachoth, "which, without mention of the Ha-Shem (i.e. Jehovah), is no benediction at all." "Thy kingdom come;" for the sanctifying of the Name, combined with the coming of the kingdom, see Zech. xiv. 9. Again, any benediction without Malkuth (kingdom) is no benediction at all. Cf. Berachoth, 40 b. "Thy will be done." See Ps. cxxxv. 6. " May it be Thy will, O Lord our God, to make peace in the family above, and in the family below." — Berachoth, 16 b — 17 a. "Give us this day," &c. See Exod. xvi. 4, "Behold, I will rain bread from heaven for you, and the people shall go out and gather a certain rate every day," "IHVD "131, iris rinipas fis iiiiipai/. .See also 2 Kings xxv. 30. In the Peschito the expression is rendered liQwA, i.e. bread which is continuous. So St. Matt. vi. II (Cure- Ionian Gospels). "Forgive us our trespasses," &c. See Obadiah 15. The principle is con- spicuous in the Rabbinical writings, "As thou hast done, it shall be done unto thee." See also Ecclcsiasticus xxviii. I, 2 : "He that revengeth shall find vengeance from the Lord, and he will surely keep his sins (in remem- brance)." "Forgive thy neighbour the hurt that he hath done unto thee, so shall thy sins also be forgiven when thou prayest," &c. " Lead us not into temptation." This last word is used in the New Testa- ment to denote outward and physical, as well as inward and spiritual, trials. Also the Jews' Morning Prayer (Berachoth, 60 b) has the very petition, 1TD2 ''lib • • • • 13S"'2n bST "But deliver us from evil." It is a question whether 'the evil ' here is i irofTipis (l St. John V. 18), or -rh vov-qpov (2 Thess. iii. 3). But the am- biguity of the Greek is no more than a reflection of the same ambiguity in Hebrew, the word JJI in the Old Testament being applicable alike to things and to persons. For the above, and more, upon this interesting topic, see Excursus V. of Taylor's Sayings of the Jezvish Fathers, pp. 1 38, &.C. F 66 A History of the Canon Law. the utterance of a prophecy over the Jewish Temple, that, ere long, of that magnificence there shall not be left one stone upon another, that shall not be thrown down. Not- withstanding, is it not written, " My house sJiall be called of all nations "Ca.^ House of Prayer?" (St. Matth. xxi. 13.) And last, not least, in the catalogue of peculiarities, there is the expressive and comprehensive word which ends every prayer, and every Creed, to which the Christian gives utterance. Indeed, so wide is the meaning, and so uni- form the written expression, that it is said to find a place, throughout the world, in the vast majority of, if not all, the languages in which Christianity is confessed — but varying in the meaning, according as it is used in Prayer or Creed. Only in its fulness the word is just as we have received it, in its primary and original signification, the foundation whereof being " Truth ™ " Therefore, one need not add, nor need we scarcely wonder, that St. John so applies the term as a name to the Saviour Himself — that „ . as He is a and w, the beginning and the end- The Amen. . . t t ^ . , • ing, so is He Amen, comprehendmg these, and all else besides, in His Majesty and Glory, and as the ' rock ' of infallible Truth ! Of course, the inference is obvious, that if in so many Canon Law ^^Y^ borrow from the people of " the old affected by Covenant," — who influence us, in our daily Jewish Law. conversation, often, it would seem, almost unconsciously to ourselves, — the probability is, that Christian Law, i.e. Ecclesiastical and Canon Law, has, in some measure, been affected from its contact with Jewish Law. At all events, it will not be out of place to examine into this fresh field of inquiry. And at the outset we shall find, that the attempt need not be fruitless, if we apply the like test to the fewish Law that we did to that of the Greeks. With the latter, we learnt what the national mind was, by the term which they used in describing law. With them the leading thought was its " ])13S "Vox vulgo nota, Hebrjeis, Chaldaeis, Syris, aliisque plurimis Un- guis usitata. Hebraice reperitur ut substantivum. " — Veritas, Fides, e.g. cf. Isa. Ixv. 16. Jewish Laiu iti connection with Canon Laiv. 67 'distribution"^,' an idea which we find to be correct, even as reaching to ourselves. And of this we shall have fresh proofs, when we come to examine into the nature and characteristics of the Roman Law, in which so much was borrowed, by that people, from their more Eastern neighbours. Now the Israelite, or Jew, says nothing about ' distri- Jewish idea '^'^^ion,' when he speaks of his Law. Was it of Law is likely, d priori, that he should As a people, Instiuction. ^j^gy ^ygj-e placed apart from all other nations of the earth. God said they should be. And the very position which they occupied in their small and peculiar country, seemed alike to point towards this fact. In a corner of the great continent were they situated, with the 'great' sea on one side ('great' because they were comparatively ignorant of every other), with desert on another side, and hemmed in by mountain ranges on an- other, what ' distribution ' could there be, since inter- course was difficult, if not almost physically impossible > Their idea, then, of Law was expressed by a word more congenial to the national mind. And how important the term, when we are told that their Law was given, and received, solely for the purpose of ^ instruction°', which idea at once explains how it is that the inspired writers, and, amongst others, he especially who bears the title of being the " wisest of men," connect knowledge intimately %vith their laivs. In short, that the Law in his thoughts was deemed the beginning and the ending as well as the aim of all knowledge. " That the soul be without know- ledge," says Solomon, " it is not good." " To know wis- dom and instruction," says he, " to perceive the words of understanding, to receive the instruction of wisdom, jus- tice, and judgment, and equity," — the latter being words ■ It may be stated that Curtius in his Greek Etymology (1875), section 431, derives viSmos, 'law ordinance,' from vinw, 'to portion out, to allot, to distribute,' suum cuique tribuere. " niinn i.e. Lex, vel Mosis tantilm, vel totum Verbum Dei, m^, i.e. Jecit, aut jaculatus est. Hiphil, Hlin "docuit," "instituit." Apud Talmud.: '^'^■mS, docendo docemus. F 2 68 A History of tlic Canon Law. of legal thought. Once more, " My son," says he, " hear the instruction of thy father, and the law of thy mother." And as if the precepts of knowledge would encircle the soul, as ornaments beautify and adorn the body: "They shall be as an ornament of grace unto thy head, and chains about thy neck." " My son," says he again, " keep thy father's commandment and forsake not the law of thy mother." "Bind them continually upon thine heart." "When thou goest out, it" (the knowledge) "shall lead thee, when thou sleepest, it shall keep thee, and when thou awakest, it shall talk with thee." " For the com- mandment is a Lamp, and the Law is light, and reproofs of instruction are the way of life." In short, so engrained was the idea, if I may so The term Speak, in the public conscience, that the word oft^n\sed" 1*0 ^^'^''ich, in its primary sense, is rather applied include the to the laws and regulations and ordinances Testaiiient ' which Moses, their great legislator, gave them, although at came to include the whole range of the in- other tunes it . , , .... ... has been ap- spircd volume, their history and national po- wlv/^'^^o'the i^plyi"? their public and domestic du- Pentateuch. ties. All were comprised under the category of Laiv, because instruction and knowledge were to be the outcome of all the experience which, as a people, in the course of years, they had acquired, and should acquire, for themselves. And equally so did this feeling exist amongst them Later Tew- "pon the subject of knowledge even when, ish Law shew- because of their transgressions against God, ed no mercy .... to the igno- they had ceased to be a people in their own land. " Knowledge is of great price," says an old Rabbi, "for it is placed between two divine names p, as it is written, ' A God of Knowledge is the Lord.' " And therefore, mercy was to be denied to him that had no knowledge ; for it is written, " It is a people of no under- standing ; therefore He that made them will not have P Hershon's Talmiidic Miscellany, Berachoth, fol. 33, c. i. p. 17. Published by Messrs. Triibner. iSSo. Jeioisli Laiu in cojincctioji zoiih Canon Lazu. 69 mercy upon thcmi." A prohibition, therefore, against Reforms un- shewing mcrcy to the ignorant, together with (icr iiczekiah the tlircatcnings directed against those who stniction in neglected the study of the Law [sic), was that Lsw. which worked such a wonderful revolution, in the time of Hezekiah. For it is recorded, that when they searched from Dan to Beersheba, i.e. in the length and breadth of the land, from the extreme south to the furthermost north, " there could not be found an ignorant man''." Or, to give the force of their own expressive language, there could not be found a single ' man of the earth ^ ' from one end of the country to the other. An expression, in fact, which, on higher grounds, the Apostle himself makes use of when describing, with his national feelings, the antagonism that subsists between those " whose conversation is in heaven " and those whose thoughts " mind earthly things." It may be remarked, however, we have to ascend still The Rabbis higher, in order to gain the complete idea on tlie Law. which grew upon the Jewish people in their estimate of the Law; and St. Paul in his pleadings with the Christian converts has only been quoted, that we may attain to the height which, even beyond Moses, con- nects us with its full existence. " Seven things," says the Jewish Rabbi, "were formed before the Creation of the 1 Bcrachoth, fol. 33. I. Sanhedrin, fol. 94, col. 2. ' "Woe is unto me because I have given my miml to an ignorant one," i.e. one of the people of the earth C^ISn W)- — The same idea is expressed elsewhere. Cf. Ilershon, p. 91, note. The Rabbis teach, " Let a man sell all that he has and marry the daughter of a learned man" (CSH Tobn). "But let him not marry the daughter of an QV, i-e- an illiterate man ; for the unlearned are an abomination, as also their wives and their daughters." — P^sachim, fol. 49, col. 2. "Again, no boor can be pious, nor ignorant man a saint." — Aroth., c. 2, Mish. 6 : cf. Ha-shoit-s 7\,ln,„d,.- J//,ivv//., p. 92. This is only (|uotcil In slicw the importance which they attached to learn- ing. Strong language ! but the condemnation may be found in a sentiment of equal vigour aniung^t the philosophers of (b cece. j\ri>tiitle, wlien asked, "In what did the educated differ from the unckKaled ? " replied, "As much as the 'living from the dead.'" — Vuu^han's LiJ\- oj Tlioinas 0/ /lijiiiii., vol. ii. p. 06S. 70 A History of the Canon Law. world " — and of these seven, to the Law was assigned the credit of occupying the first place. There is only one thing which strikes another Rabbi, that may possibly be superior to it. And the same is worthy of being men- tioned because of the development' of the good implied, " Showers of rain are greater than the giving of the Law ; for the giving of the Law was a gladsome event to Israel only, but rain is a cause of joy to the whole world, including cattle, beasts, and fowls" But to descend to the plain facts of history, Moses Moses as a ^po^i Mount Sinai stands out, pre-eminently, Lawgiver and as the grand Lawgiver of the Israelites. His the effects of ^ , r i , i • Mosaic Law lame, moreover, was not confined to his own tine°"^ people any more than the effects of the events, ushered in with the giving of the Law, were circumscribed by the wilderness, or the land towards which the Israelites were journeying. The Heathen were pro- bably well acquainted with his name. Longinus speaks of him as "one of the most glorious Legislators"." In like terms of commendation for his wisdom, does Philo- Judseus speak, and states that the fame of the laws of Moses had gone throughout the world. Nor is the truthfulness of the tradition beyond possibility which Justin Martyr got hold of, in connection with another heathen country, that the great Philosopher " Plato had well-nigh got himself into trouble" with the High- Court at Athens, for making mention of the name of Moses ! Hence we arrive at the next stage of our enquiry, which is, not only that the accompaniments of the Law, but that the Law itself, in its effects, and some of its details, in the things which were seen, and heard, and felt, could not be limited to the people whom they more immediately ' Cf. Hershon, p. 314, quoting from the Midrash Shochar Tov, 146. " Til' 'louSoiajv yojUofleVjjs eiSo^rfToTos, ' the most glorious lawgiver of the Jews.' Philo-Judaeus calls Moses 'a most wise lawgiver.' Again, Philo-Judceus, lib. I, de vitd Mos. : " Inclyta fama legum, quas Moses reliquit posteris, totum Orbem pervagata, extremes ejus tenninos attigit. " Quoted by Zepper, (zV £/. Mosaic, p. 131. Jewisli Laiv in connection ivitli Canon Law. yi concerned ^ Indeed, we know how, in after days, St. Paul makes use of the facts in the course of his argument — only he mentions them just in such a way as, if it had been necessary, he might have mentioned any other facts which the Israelites had experienced, and handed on in the national records. The Apostle repeats over again some of the striking details which occurred, before the Lawgiver could gain access towards the Divine Presence, in " the blackness," and "darkness," and "tempest," "the sound of a trumpet," " the voice of words," and the " mount that burned with fire" — incidents which could not but live in the Jewish mind, as also with succeeding generations amongst their neighbours, if rumour did not, still further, make the scene almost universally remembered ! At all events, it is clear, from whatever cause the idea originated, that the legislators of other nations traced their respective laws, backward, to a Divine source \ The feel- ing was universally acted upon, and if it did not take its first rise from the scene described, whence did it come } For if their acquaintance with the Laws of Moses is cer- tain, there is no reason why the other fact should be thought improbable What concerns us more, however, is the Law itself as it The Penta- appears in the Pentateuch, all proceeding from teuch. ^i^g mouth of God as delivered to Moses, and some parts (if it may be so spoken) bearing the impress of the very finger of God ! Certainly what has been said of the whole range of the Sacred Scriptures, that they were given for " instruction " — this being the natural idea conveyed in the description of them — can with not less truth be predicated of the Pentateuch and its accompani- ments. And yet further, that the "instruction" must be of such a nature that it not only concerned the Israelite ' "Ilhid tamen magis etiam mireris, non soliim Judoeos, sed et aliarum gentium penfe omnes homines, prresertim virtutis rationem habentium, im- butos esse harum legum veneratione." — Ibid., p. 131, lib. 2, de Mosis vil6. Again . . . " omne suum decus et auctoritatem a lege Mosaica mutuari, non secus atque Luna et stellse splendorem suum a Sole." — Ibid., p. 121. ' See before, p. 7, &c. 72 A History of the Canon Lazv. of the past, but affects the Christian also, the Jurist as well as the Theologian, of the present day. And the Book of Joshua should be added to the Pentateuch, be- cause the Jews have long been accustomed to consider that Book as a part of the Law, on the ground, that the former was thought more closely connected with the latter than the other portions of Scripture, and that not simply because Joshua himself has been held to be the author of the latter verses of the Book of Deuteronomy, but be- cause they maintained, that if the one portion in the Law^ contemplated the division of the promised Land amongst the several Tribes, the Book of Joshua recited its accom- plishment. Now there are two ways in which the Law more espe- God's pro- cially affected the Israelites viz., as indivi- mises in con- 111 1 r nection with duals, and as members of a great community ; the Law. and SO in the manifold relationship which, as individuals, they held towards each other. At the same time, we may add, both considerations had the like ten- dency to separate the Israelites from all other nations on the face of the earth. Which, again, comprehended the past as well as the future. The former, in that there was to be an exact fulfilment of the promise that was made y The following is quoted from the Talmud : — " If Israel had not sinned, they would have had no other Scriptures than mm ''a;mn rwan the five-fifths of the law (the Pentateuch) and the Book of Joshua, which last is indispensable, because therein is recorded how the land was distributed among the sons of Israel, but the reminder was added, ' Because in much wisdom is much grief.' " (Eccles. i. 18.) — Ncdarim, fol. 22 ; Hershon's Talmudic Miscellany, p. 86. ' ' The last eight verses of the Law (rmn) were writen by Joshua." — Bava Bathra, fol. 14, c. I. There is a touching story in this very same tract, fol. 15, c. 1. . . . to the effect, that Moses himself wrote the verses which record his owTi death at the dictation of the Almighty. The account literally rendered is, "The Holy One, blessed be He," (the guarded and holy mode of expres- sion in the use of the great Name!) "spake, and Moses wrote in tears," ymn -DTO ntcaY— /i^.7-j-//f«, p. 122. ' We may add to all that has preceded, that "the very literature of the Jews was thenceforth (after Malachi) visibly coloured by the spirit of the Law. Even Ezekiel, living in the earlier period of the Babylonian exile, described the ideal priesthood of the future, on the whole, in harmony with the precepts of the Pentateuch." (Ezek. xliv. 15 — 31.) — Katisch, p. 653. jfeiuish Laiv in connection U'iih Canon La%i\ 73 in God's first covenant with Abraham, and with his seed after him. "As for Me," says the Almighty unto Abraham, " Behold, My covenant is witJi thee, and thou shalt be a father of many Nations." " Neither shall thy name any more be called Abram, but thy name shall be called Abraham, and a father of many nations have I made thee. . . . And I will establish My covenant between Me and thee and thy seed after thee, in their generations for an everlasting covenant, to be a God unto thee, and thy seed after thee." The same promise was renewed as antici- pating the giving of the Law, when God said unto Moses, " Draw not nigh hither ; put off thy shoes from off thy feet ; for the place whereon thou standest is holy ground." Moreover, He said, " I am the God of Abraham, the God of Isaac, and the God of Jacob. And Moses hid his face ; for he was afraid to look upon God." Again, touching the promise, when troubles arose after the giving of the Law, Moses pleaded with the Lord, that He, the Lord, might remember whose they were, and for whom, as a people, they had been begotten, even Abra- ham, Isaac, and Jacob, and to Whom said Moses, " Thou swearest by Thine own Self, and saidst unto them, I will multiply your seed as the stars of heaven, and all the land I have spoken of will I give unto your seed ; and they shall inherit it for ever." Now this distinctiveness as a people was invested with The Jews a a peculiar character in that not only should Holy Nation, they have a separate body of men conse- crated for the Sacerdotal office, but that they themselves, as a people, should for ever be invested with a sacerdotal ■ "The Hebrews stood, under the guidance of Jehovah, the Holy One, not merely in the manner of the other nations ; for they had, by His mercy and power, been released from ^Egyptian thraldom ; He was, therefore, t/uir God, in a peculiar and special sense. He had made them a nation and pre- served them amidst dangers, that 'He might be their God;' and lie had 'borne them on eagles' wings,' and brought them to Himself. (Exod. xix. 4.) Thus, there was a close, almost a personal, relation between God and Israel. (2 Sam. vii.23.) It originated by an election through God's grace, and was ratified by a mutual covL'iiant. ' Vc sliall be luily, for I am holy,' this is the pith and kernel of the inlelieclual labour of many centuries, it is the ripened fruit of a long spiritual education." — A'aiisch, p. loS. 74 A History of the Canon Law. title, and all because, when God by His many deliverances and mercies had made the Israelites peculiarly His own, they had also become His people in a strict and special sense : " Now, therefore," says God, " if ye will obey My voice indeed, and keep My covenant, then shall ye be a peculiar treasure unto Me, above all people ; for all the earth is Mine." " And ye shall be unto Me a kingdom of priests and a holy nation. These are the words which thou shalt speak unto the children of Israel." But observe, this enlargement of the idea did not inter- fere with, or invalidate, the peculiar office of those to whom, in a still more direct sense, the duties of the Priest- hood were assigned. And yet, if I may so speak in mo- dern language, the term is applied to the Lay as well as the Clerical element, amongst the people. Nevertheless, why should we speak of the expression as modern ? Since, as a modern expression, we are simply giving back to the past what is really its own. The division of the Land of Canaan, the distinctiveness of the Priestly office, the distribution of the Levites, the duties and privileges belonging to them, may be called so many reminders to a body of men. Their lot, if I may so speak, " had been cast with the Lord or, in other words, that the Lord Himself, for His own glory, and the good of others, was the " lot of their inheritance." It is Chris- tianity that has borrowed the idea. And St. Peter applies it in the comprehensiveness of its meaning, when he ad- dresses his own converts, who had probably been drawn from the Jewish race: "Ye are a chosen generation, a royal priesthood, an holy nation, a peculiar people — Clergy as distinct from the laity, from "K\f)pos quia de sorte Domini erant, vel quia Dominus est sors eorum, as Papias hath it." — Ridley. Or again, the Christian ministry, the clergy, were called K\ripos, lit. a lot, a portion, because the clerical office was first assigned by lot ; cp. Acts i. 26. See Tyightfoot, Philippians, p. 245. ' Nevertheless, with the Jews, the Priests formed a kind of aristocratic caste. And the word ]n3 assumed, in the kindred dialects, the meaning of prince or noble. St. John, in the Apocalypse, combines the two ideas, "And hath made us kings and priests unto God and His Father," &c. {c. i. 6.) JcivisJi Law in connection with Canon Laiv 75 (some of which are very closely allied to the words ad- dressed to the Israelites in the wilderness) — "that ye should shew forth the praises of Him who hath called you out of darkness into His marvellous light." And again, whilst almost in more striking language, does the Apostle speak, reverting to the people of Israel, " Ye also as lively stones," i.e., stones of life, " are built up a spiritual house, an Holy Priesthood, to offer up spiritual sacrifices, acceptable to God by Christ Jesus." Wherefore, also, it is contained in Scrip- ture, " Behold, I lay in Sion a chief corner-stone, elect, precious, and he that believeth on Him shall not be confounded." But yet, in a third sense, is the expression applied The Priest- ~~ restricted, no doubt, because used apart hood under from the great body of the people ; but al- though so used of a portion of the Lay-ele- ment, there is no encroachment upon the real sacerdotal order. In other words, it serves the part of the links of a chain to connect the two extremes together, whilst it impresses the holders of the highest ofifices of the State with a sense of their responsibilities — being none the less because thus stamped with the impress of a Divine cha- racter. This readily explains the apparent difficulty in the Book of Psalms, where the writer, in classifying the three Old Testament worthies, viz., Moses, Aaron, and Samuel, puts the two first together as '"Priests" and " Samuel amongst them who call upon the Name of the Lord." The history tells us, that Moses made over to Aaron and his family all the privileges and responsibili- ties of the Priesthood, whilst reserving for himself only the offices of a Ruler and a Legislator. And elsewhere the historian enters even into particulars, when condign pun- ishment was inflicted upon Korah and his company, the stern reproach of Moses to the transgressors being, "And seek ye the priesthood also .-"" There is the fact, however, not only that all who were appointed to a public office were anointed in a similar way, the oil being the seal of the election, 76 A History of tJie Canon Law. a custom we retain, in Coronations, even to the pre- sent day. And we must take into account besides, that the word translated ' Priest ' which creates the difficulty (inb), in its primary sense, is applied to those who mi- nister to a King 'I And who was virtually the King of Israel ? It will be enough to add, what Moses himself, as God's representative, was delegated to tell the con- gregation, " Ye shall be unto Me a kingdom of Priests, and an holy nation," (Exod. xix. 6). To shew, then, the close connection between the political and ecclesiastical element, it has been a favourite argument, that, under the Old Economy, two brothers " were selected to super- intend the two departments, at the rise of the Jewish State. It declared the natural connection between the two. And further, it was intended as a living principle for all generations to come, that the one should mutually have help of the other. In other words, that it ought to be as difficult to say, a Brother is not a Brother, as to affirm that the State and the religion of a people have no sympathy in common ! Cf. 2 Sam. viii. l8, where David's sons are spoken of as 'chief rulers.' The Hebrew word being identical with the one commonly rendered ' priest.' However, the Cambridge Arabic professor (Rev. \V. R. Smith) says the Hebrew word means ' priests,' and can mean nothing else. Old Tcstammt in Jt-wish Church, p. 265. The words in the original are '^X^ C2n3 "^"1 ^33, from a root mean- ing ' to stand, to stand upright,' (in order to minister) ; with this cf. I Chron. xviii. 17, . . . " primi ad manum Regis." Cp. the significant ex- pression ecTTTjKW), Heb. x. II. Hence uncertainty whether Poti-pherah and Jethro, the former the father-in-law of Joseph, the latter, of Moses, were ecclesiastical persons, or not, which our translators have expressed by calling them ' Priests ' in the text, and ' Princes ' in the margin. ' " Deus enim, quando Mosen reipublic^, et Aaronem Sacrorum in populo suo Antistites, fratres germanos esse voluit, documento testatum fecit, ordinem politicum et ecclesiasticum in regni sui administratione, conjunc- tissimum, et instar fratrum, animis, voluntate, et studiis unitissimis utrosque esse, mutuosque sibi, pro vocationis ciijusque ratione, operas tradere debere." —ZcpM; Pre/., p. II. St. Paul uses a stronger argument when pleading that there should be no schism in tlie body. In the preceding remarks the union is based upon the natural connuclinn of tw,i l)o^lic^. liiit the Apostle takes for his illustration the still eI^)^er union of the v.u ious limbs in one natural body. See Kalisch, ComiJU-uL ill Lcmlu iis, p. 653. jfcivish Law in connection ivith Canon Lazv. 77 But this will become more apparent when we view the The Sanhe- P''^ctical details of the two principles as they drin, its His- affected the community. In the Sanhedrim, rrsdi'ctfon! Ap- rather, to be more correct, in the Sanhe- pellate and drin which we may call the great Council of Legislative. ^, ^- ^i the nation, there was, m some respects, an union of the two. It will not be necessary to enter into the controversial part of the question as to the time when this Institution was, virtually, established. Some confidently assert it is traceable to the time of Moses — that when he, under the direction of God, appointed seventy Elders from among the Congregation for the purpose of assisting him in the administration of public affairs, this was neither more nor less than the very Institution which appeared in their subsequent history — being, as it were, the natural out- ' Sanhedrim, or rather Sanhedrin, was the chief tribunal of the Jews. There was the greater Sanhedrin, and the lesser. That there were legal courts in the early times of their history is plain from Scripture ; but that these were identical with the Sanhedrin of the New Testament is merely a Jewish conjecture. The Mishna (Sanhedr. i. i6) connects the institution of it with Numb. xi. 16. There may be a reference to this last-named court in Deut. xvii. 8. But the term is not Hebrew, it is a corruption of the Greek irvveSpiov, a council, a local court. The word does not appear in the Hebrew Old Tes- tament at all, though in the LXX. we meet with it. In the Targum, as might be expected, the word often occurs. In the New Testament, and especially in St. John's Gospel, the members of the Sanhedrin are called 'lovSaiot, and occasionally •; Syncdiiis et Paiiis, speaks frequently of rT^an, the old Rabbinical term, but does he ever use the Gra.-cized form? When speaking of the qualifications of the members of the court, he uses his own phraseology Cf. Jackson's Works, vol. iii. cap. xii. p. 457 ; also Milman's Hist. Jew., vol. ii. p. 107. 78 A History of the Canon Law. growth of the very tree that was planted in the wilder- ness. Of course, the Jews themselves maintain the opi- nion, in their eagerness to give the weight of antiquity to that important body, and to connect it with the direct inspiration of the Almighty. On the other hand, it is held by some, and not without grounds for the statement, that the real history of the Sanhedrin did not commence till after the return of the people from the Babylonish Captivity. Those who hold this view, point out that the term 'Sanhedrin' is not of Hebrew, but Greek origin. And this, therefore, would seem to coincide with a still later date, viz., in connection with the Greek rule through the Macedonian monarchy. Still, when we recollect the number of members of which the Court was composed, the number in both cases being very nearly the same — whether we put the date early, or later as is supposed more probable, — it is evident, that the framers of the institution bore in mind what had taken place in the wilderness, and that, as far as they could, effected some resemblance between the two. Moses speaks simply of the selection of Elders for the office, which term may designate the age of the members, and not the professional condition. Whilst afterwards, in history, it is clear, that both clerical and lay elements were present as component parts. The Ecclesiastical was re- presented by the priesthood, the Secular by the Scribes, who, coming after the prophets and succeeding them in position, were clearly the Lawyers, or Law -expounders of the day. The Sanhedrin, as has been remarked, was the Supreme Court of the nation ; and its sittings were held in Jerusa- lem — either for the hearing of its own special cases, or those which were brought before it on Appeal. The same has been called the " Parliament of the Nation ;" and dis- regard of its authority was, in point of fact, a political crime, amounting to high treason. Moreover, in the case of one being convicted of such an offence, the execution of the sentence could only take place at Jerusalem, and that only at the celebration of one of the three great Fes- Jewish Law in connection with Canon Laiv. 79 tivals, notwithstanding that the ofifence itself might have been committed elsewhere. This was done, partly, to give importance to the act, and partly, because at that time were assembled all the males from every part of Juda;a. This was in strict accordance with the letter which had been laid down amongst the ordinances of Moses. " The man that will do presumptuously, and will not hearken unto the Priest, even that man shall die ; and thou shalt put away the evil from Israel." " And all the people shall hear, and fear, and do no more presumptuously. " The Head, or President of the Court, was styled a Prince The Presi- CP?), and the Vice-President, "the Father of EibTrs of the House of Judgment." Now, the rest of the theSanhedrin. members composing the Court have created a little difficulty as to the precise number, the doubt being, whether they were 70, 71, or 72. If either of the latter, probably the first number would be employed to designate the same. When in Session, they sat in a semi-circle with the Prince or President in the centre in order that he might have a complete view of the individual members. And should any difference of opinion arise, the votes were taken by two assessors, and the judgment was settled by the majority. Probably, the unwieldiness of the number might suggest itself as a difficulty to some minds. But then, we must remember, that, although acting as Judges, they were simply a Jury, with the additional advantage, that each man was possessed of a knowledge of the Law, each man being educated, as we shall see, for the pur- pose, so much so, that, without this knowledge no man, B Compare the account given by Sclvagg. of the primitive synod, "The Bishop sat with the presbyters as a magistrate with his assessors." This will be alluded to elsewhere in our remarks upon the early Christian Church. ^ " Again, with respect to the illiterate man, he was marked in many ways. ' No testimony is to be borne to them, none is to be accepted from them, no secret is to be disclosed to them ; they are not to be appointed guardians over orphans, nor keepers of the charity-box ; and there was to be no fellowship with them when on a journey.' To describe such, they would, as already remarked, use the expression ^ISH 'people of the land, i.e. heathen' — the term, there is reason to believe, being originally applied to the primitive inhabitants of Canaan, traces of whom mav still be found among the fellahin of 8o A History of the Canon Laiv. whether Lay or Cleric, could be admitted to sit in judg- ment in the Assembly. Only the requirement was made still more stringent in the case of a Priest. Ignorance here was attended with punishment in the shape of a fine. Moreover, in the preceding instance, when we speak of Law, it is to be understood to include both branches of " Civil " and " Ecclesiastical." And an inquirer, like Mr. Benny, would add political also. But though the modern term ' Parliament ' has been borrowed to describe this highest Court of the Jews, it is rather of its judicial character that we are speaking, and therefore would borrow the technical expression of their own language as a 'House of Judgment.' For, in this parti- cular, it superseded every other authority, the king' him- self (when the country came under royal rule) having but limited power to settle matters, as between man and man, of a judicial character — a mode of dispensing jus- tice which was peculiar to this people. In its last days, the judgments given were always acquiesced in, be- cause they were supposed to be given with the greatest care, and under the influence of the highest knowledge, coupled with a sense of the strictest impartiality and justice. Moreover, that august bodyj partook of a representa- Election of tive character, in consequence of the mode by o^hf SaSie- ^^^''i'^^^ 'ts members were elected. Besides the J ish life. thought too early — viz., the existence of Al- mighty God. This was the foundation upon which every other doctrine, i.e. every other part of the superstructure initst rest, if of the Jew, shall we not say d fortiori with the Christian But if the beginning, the same also was considered the end of all moral as well as religious teaching. With the Jew it was a topic, indeed, whereupon, in after life, and every year of life, the most profound philosophic medita- tion (to borrow the language of Maimonides) could exer- cise itself. In such a study, the Jews used an extraor- dinary, but very beautiful, expression. " There were five things," they affirmed, "wherein their institutions were technically said to be in the garden, or (oTisn) Paradise," viz., 1. " To know that there is a God." 2. " To ignore any other besides God." 3. " To feel God's unity." 4. " To love God's person." 5. " To stand in awe of God's Ma- jesty." We have spoken of every year of life. The idea may Jewish Lazi) in connection with Canon Law. 8y be brought still closer to ourselves, and we may affirm that the topic embraced the daily intercourse of life ; for every day the Jew, individually, had to recite his " Shem- oneh Esreh," or eighteen blessings ^ It is not needful for a Christian to commend the prac- tice unduly. Still, in past generations, under the older economy, the custom might have acted upon many minds as a reminder, that their duty was not to do evil, but to do good, to each other, and all around. And which, to say the least, however formal we may deem the habit, is better than wishing no blessings at all. It is, certainly, better than to imagine that the pivot around which the world turns is self, and only self, and can fairly challenge comparison with what a great poetical genius of modern times could suggest to " men of thought," through one of his characters, that, as a duty in the daily routine they were to hear " a little song," "read a good poem," "study a fine picture," and, though last, not least, " they were to speak, if possible, a few sensible words." Moreover, it may be remarked, that the tendency of Tendency of Jewish legislation, however much it may have Jewish law to- degenerated in after times, leaned most fre- cy" in crimi- quently to the side of mercy, if we compare nal cases. ^ heavy criminal case with an ordinary civil one. The latter could be settled by three Judges. But the other, when it was a question of life or death, had to be argued before twenty-three Judges. Besides, during the trial, the requirements of proofs were so many, that every difficulty was interposed to prevent a hasty, or ■•■ The eighteen were the usual blessings. Elsewhere we are told that a man is bound to repeat every day one hundred blessings. Menachoth, fol. 43, col. 2. // This duty, as Rashi tells us, is based upon Deut. x. 12, altering the word nn (what) into riM^ (a hundred). And from the Talmud we learn the curious fact, that the text counts one hundred letters. Note, p. 218, Hershon. ^ Goiithc makes Serlo, in his Mcistci-, lay down a rule, which should be observed daily : "One," he says, "ought every day lo read a good poem," "see a fine picture," and, if possible, "speak a few sensible words." The author of the note n>ks for our opinion as to which gives the better advice, the ancient Talmud, or the modern poet? Most Christian people would have no ditficulty in judging which is the best ! Hershon, p. 218, note. 90 A History of tlie Canon Law. unjust, judgment, when a human life was concerned. There was a cycle of seven questions always put. And he that could question most, was commended most, as carrying out, not only in the spirit, but in the letter, what had been declared: "Thou shalt inquire, and make search, and ask diligently, and behold, if it be truth, and the thing certain, that such abomination is wrought among you," (Deut. xiii. 14), then, and then only, shall the judg- ment be pronounced. On the other hand, very severe was the punishment upon the false swearers, and more especially in a criminal case : " He who swears falsely in this world is never ac- cepted as a witness again ^" But if he has perjured him- self in a civil case only, his evidence may be relied upon where life and death are concerned. And further, by way of terrifying a delinquent, it was ruled, "that the same punishment may be inflicted tipoji the false swearer which would have been inflicted if the testimony had been true." But suppose that the result is, that the accused is found guilty of a capital offence, and that such an one must forfeit his life, the matter did not rest here. To gain delay, fresh issues might be raised upon the whole ques- tion, till, at last, all is fruitless. But even then ^, the Judge, who had pronounced the sentence, was required by Law to make, for himself, the day of execution into a day of sorrow and mourning. And the reason assigned is worthy of remark. It is not, simply, that an Israelite had been removed from among the congregation in suf- fering the penalty of the Law, but because a human body, so condemned to die, had once borne, like all others, the image and likeness of his Maker — a feeling which did not " Compare the "Canon" Law. ' " It is evident that the primary object of the Hebrew Judicial system was, to render the conviction of an innocent person impossible. And the Jewish LegaHsts used their greatest ingenuity to gain this end. A person could speak in his own defence. " Hearsay and presumptive evidence was rejected as of small value, circum- stantial evidence was inadmissable. The Jewish lawyers held fast by the Mosaic injunction, that two credible witnesses, or more, were required in every case." — Benny, p. 64. Jewish Law in connection with Canon Law. 91 end there. For, that no desecration should be offered to the corpse, it was further enacted, that, on the self-same day, before night-fall, that body should find its place of interment, to rest there. There is but one point more we need to allude to, in The lex ta- Connection with Jewish Law, and it is referred ed'bylhe Fa" *° because the subject will again meet thers. us when we have to consider the provisions of Roman Law. Our Blessed Lord, in the " Sermon on the Mount," shews how different His own Law of the Gospel would be, in the largeness of comprehensive charity, as com- pared with the Mosaic Code, which says "eye for eye," " tooth for tooth," " hand for hand," " foot for foot." Which words, in part, the Saviour quotes, without mentioning where, or by whom, it hath been said. The meaning of the passage, according to Tertullian, being, that the li- berty of retaliation will act as a deterrent to the evil com- plained of. " Licentia retributionis prohibitio esset pro- vocationis." Or, as the same writer says again, " That nothing better could happen to an individual offender than the probability of his suffering himself the very evil he would inflict upon another." St. Augustine interprets much in the same way, " that the law would not act as an incentive to revenge and passionate excitement, but a limitation to them which is just and rights." But which interpretation, in the perversion of human ideas, might easily be transformed, and probably was so transformed in the days of our Lord, into considering that retaliation is always just and right. Again, it may be remarked of this passage, that the Saviour simply says, " Ye have heard that it hath been said," not even, as before, "Ye have heard that it hath been said by them of old time," — still less does He say, It hath been said by Moses. Only, He quotes the prin- ciple which hath been of old, giving to the word a mean- ing of His own — a retaliation, no doubt, but not the K " Vindictae et furoris non fomes, sed limes, est juslus." — Lib. xii. c. 25, contr. Faust : quoted in Corn, a Lap. in loc, Exod. xxi. 25. 92 A History of the Canon Laiu. rendering evil for evil, but contrariwise, one of good for evil ! But then comes another question, without the Saviour's mentioning definitely the name of Moses, whether the principle, in its original shape, did really belong to the Mosaic Code at all, or whether it is merely a transfer of what had been the antecedent precept of other nations. It is true, that this principle itself is to be found amongst the laws and ordinances which the great Lawgiver did promulgate to his people. But then, in addition to the silence of the name of Silence of Moses in the Scripture considered above, |'„"'j'[e^/^^^a- ^hat adds weight to the argument on the lionis. other side is, that in no part of the Talmud, which enters so minutely into all the duties of public and private Jewish life, is the 'lex talionis' to be found, and which, d priori, might be thought would have been the case, if the ordinary interpretation of the passage is the correct one. Nevertheless, granting that the Pentateuch fully recog- nised the right of private vengeance, and that the family of the deceased could slay the culprit, it was no more than what all the ancient legal systems recognised — a change developing with some, that in the event of such a misad- venture, a money-payment might be made the substitute. But again, as an alleviation of both these acts, shall I say on the side of mercy.' Moses provided an adjunct to the lex talionis. Subsequently, certain "cities of refuge" were appointed, Cities of whither the accused could flee, and then be Refuge. gQ fjjj. safe, that if he could reach one of them without interruption, he should at least be safe from the stroke of stiddcn vengeance ^. ^ To go to Christian times, we may quote the following of St. Augxistine, when in e.irly life, in his C<)nfL'-.sions, he thus sjieaks of his own experience : — " Doceliani in illis annis arltm rlietoricam, et victoriosam loquacitatem, victus cujiiditate, vendebam. Rlalebam tamen, Domine, Tu scis, bonos habere