The first canon law collections in the Latin West

In the 3rd and 4th centuries first attempts were made to create a legal framework for the rapidly developing Christian communities, a system which would distinguish between grades of clerics, regulate clerical discipline and liturgical practice. The earliest collections of material were compiled in the eastern half of the Empire and most of that material was still in Greek when it arrived in the West. Evidence of its origin is the prevalence even now of the expression canon over the Latin equivalent regula.

The first collections were relatively brief and were attributed to the Apostles. These pseudo-apostolic collections often circulated together as compendia. One of the most common of the compendia contained the collections called the Didache, the Didascalie, the Traditio Apostolica and the Canones Apostolorum. A Latin version of this compendium, known as the Constitutiones Apostolorum, would circulate in the West by the mid 5th century.

The Canones Apostolorum became more widely known than any of the other pseudo-apostolic collections largely due to the fact that Dionysius Exiguus, although he doubted the authenticity of the collection, began his own influential chronologically arranged collection with a block of 50 of its canons. Otherwise Dionysius and the compilers of the major systematically arranged collections who used the Dionysiana would cite only conciliar canons and papal decretals.

The compendium Constitutiones Apostolorum was used in Provence in the last years of the reign of the Visigothic king Euric (476–485) as the basis for a collection called the Statuta ecclesiae antiqua. The compiler of the Statuta added to the texts of the compendium canons from Gallo-Roman councils and excerpts from the monograph De ecclesiasticis dogmatibus of Gennadius of Marseilles. Charles Munier, who reconstructed the Statuta in 1960, attributes the collection to Gennadius himself. Canons from the Statuta were cited in collections compiled in Italy, Gaul and Spain. Users in Italy recognized the importance of the eastern elements and called it the Statuta antiqua Orientis. The Gallic and Hispanic transmissions associate the Statuta with Carthage. The most important transmitter of the canons would be the chronologically arranged Collectio Hispana and it was [24] by way of the Hispana that the texts of the Statuta entered the 9th century pseudoisidorian forgery. There are numerous canons in the database attributed explicitly to the Canones Apostolorum and to the Statuta ecclesiae antiqua, but since neither of the collections has survived separately, neither is registered separately in the database.

The first major chronological collections in the West were translations of the oriental councils. When Dionysius Exiguus arrived in Rome in the last decade of the 5th century at least two such translations were available and brief collections of papal letters were circulating in Italy and Gaul. One of the translations of the oriental councils was that which Dionysius called the inept prisca translation. Justel (1580–1649), who reconstructed the collection, named it accordingly the Prisca. The other translation is that which is now called the Corpus canonum Africano-Romanum.

The Corpus canonum Africano-Romanum has not survived in its original form, but it constitutes the major part of two other chronologically arranged collections, the late 5th Collectio Frisingensis I and the 6th/7th century Collectio Wirceburgensis. The Frisingensis I survives in two manuscripts, both copied near Lake Constance: the Mss Munich, StB Clm 6243, fol. 11r–189v (late 8th century) and Clm 29550/4 (9th century, olim Clm 5508). The Wirceburgensis survives only in the Ms Würzburg, UB M.p.th.f. 146. It is generally agreed that the Corpus canonum Africano-Romanum was compiled as part of a dispute between the bishop of Rome and the church of northern Africa. The dispute broke out when an African priest named Apiarius, who had been excommunicated by his bishop, appealed in 417/418 to Zosimus, the bishop of Rome. Cuthbert Hamilton Turner assumed that the collection was Rome’s answer to Carthage’s refusal to allow appeal to courts outside northern Africa. The collection contains the canons of the council of Sardica allowing a bishop convicted in Africa to appeal to Rome. Eduard Schwartz, at first in agreement with Turner, called the collection the Corpus canonum Romanum. Schwartz was later to reverse his position and argue that the collection was compiled at Carthage. In 1992 Hubert Mordek re-examined the arguments and concluded that the original form of the collection was compiled at Carthage but that, prior to its being used for the Collectiones Frisingensis prima and Wirceburgensis, alterations and additions were made at Rome. He renamed it accordingly Corpus canonum Africano-Romanum. [25]

The transmission of this collection in the Frisingensis prima and Wirceburgensis represents the earliest known translation of all of the canons of the major oriental councils. This translation would be used in the early 6th century by Fulgentius Ferrandus, deacon of Carthage, for his Breviatio canonum and centuries later for the Collectio Hispana, which in turn would be used for the pseudosidorian forgery. Because the translation was used indirectly for that forgery it is now called the Versio Isidori antiqua, although it has nothing to do with Isidore of Seville. The form of the Corpus canonum in the Ms Munich StB Clm 6243 contains texts and canons of the councils of Nicaea (325), Ancyra (314), Neocaesarea (314/325), Gangra (341/342), Antioch (341/325), Laodicea (343/380), Constantinople (381) and Sardica (342/343). The councils are separated by inscriptions which refer to the canons as regulae. The canons do not have rubrics. The canons of the Greek councils from Nicaea through Laodicea are numbered from 1–160 without interruption. A list of the names and provinces of the oriental bishops attending the council of Nicaea follow the canons of that council. The names of the occidental bishops are not included quia nulla aput eos suspicio fuit. Added below the line, between eos and suspicio, is de hereticis (fol. 19rb in Clm 6243). Rome’s claim to be the source of orthodoxy is an important element of this collection. The names and provinces of the bishops attending the councils from Ancyra to Laodicaea are not listed. It is said that these names are contained in greco (fol. 33a rb), in the specific case of Ancyra in greco sermone (fol. 19rb) and in the case of Gangra they are said to be iam superius in greco codice (fol. 23va). The canons of Constantinople are numbered separately as are the canons of Sardica. The names of the bishops attending these councils are not listed. Eduard Schwartz and Hubert Mordek assume that the collection originally had two parts, both containing the same texts, once in Greek and once in Latin.

The canons of Sardica are preceded by a lengthy text which states that there are canons of uncertain origin circulating in Africa which, if reasonable and not in conflict with the Roman church, should be recognized. An inscription admits that the canons of Sardica are not found in the Greek original: in Graeco non habentur sed in Latino inveniuntur (fol. 34va of the Ms Clm 6243 and fol. 52v of the Wirceburgensis). These canons, the authenticity of which was questioned by Dionysius Exiguus, are followed by the exchange between the bishops of the council of Carthage in 419 and the bishop of Rome. To the original version of the Corpus canonum Africano-Romanum (as witnessed [26] by the Wirceburgensis) are added in the Ms Clm 6243 papal decretals from Damasus (366–384) through Gelasius I (492–496), the most recent dated 495. The compiler of the Frisingensis took the letters from a small Italian collection, the so-called Epistolae decretales.

The Frisingensis prima is closely related to the late 6th century Collectio Weingartensis, which was compiled in Rome and which survives only in the 8th century Ms Stuttgart, Württembergische LB, HB VI 113 (copied in Rhaetia, perhaps at Chur). In 1993 Hubert Mordek identified a fragment in the Ms Munich, StB Clm 29550/1 (late 8th century, Benedictine monastery Tuberis). He realized that it was closely related to the Weingartensis and, on the basis of indications in the fragment and in the Weingartensis, was able to trace the route taken by this early material from Rome to Rhaetia as the „seit alters gern benutzte Route … von Trient das Etschtal aufwärts über den Vintschgau und das Engadin nach Chur.“

There is no analysis of the canons of the Corpus canonum in the database, which is restricted to those collections which have survived separately.

Literature

For a detailed description of the canon law collections of the first millenium see Hubert Mordek, Kirchenrecht und Reform. On the most recent description of the relationship between the earliest collections in the Greek East and those in the Latin West see Peter Landau, Il ruolo della critica del testo nel primo millennio di storia del diritto canonico, in: La cultura giuridico-canonica medioevale. Premesse per un dialogo ecumenico, ed. Enrique De León and Nicolá Álvarez de las Asturias, Milan 2003, pp. 23–43. Also Brian Edwin Ferme, Introduzione alla Storia del Diritto Canonico. I. Il Diritto Antico fino ad Decretum di Graziano (Quaderni di Apollinaris 1, Mursia 1998). Note carefully, however, the reservations of Jörg Müller in AKKR 169 (2000), pp. 287–290. For the Canones Apostolorum see Peter Landau, Die Canones apostolorum im abendländischen Kirchenrecht, insbesondere bei Gratian, in: Communio in Ecclesiae Mysterio, Festschrift für Winfried Aymans zum 65. Geburtstag, ed. by Karl-Theodor Geringer (Folia Canonica 3, St. Ottilien 2001), pp. 269–283.

The Statuta Ecclesiae Antiqua were edited by Charles Munier, Les Statuta Ecclesiae Antiqua (Bibliothèque de l’Institut de droit canonique de l’Université de Strasbourg 5, Paris 1960), pp. 77–100; repeated in his edition: Concilia Galliae A. 314 – A. 506 (CCL 148, Turnhout 1968), pp. 164–188. See also Peter Landau, Vorgratianische Kanonessammlungen bei den Dekretisten und in frühen Dekretalensammlung, Proceedings of the 8th ICMCL, pp. 93–116. – Kéry, Collections p. 7. [27]

The texts of the conciliar canons in the Corpus canonum Africano-Romanum, taken from the transmission in the Collectiones Frisingensis prima and Wirceburgensis, are edited by Cuthbert Hamilton Turner, Ecclesiae occidentalis monumenta iuris antiquissima, canonum et conciliorum Graecorum interpretationes Latinae, 2 voll. e opus postumum, ed. Eduard Schwartz, Oxford 1899–1939. The readings in the Frisingensis are in the column entitled Versio Isidori antiqua. See also Eduard Schwartz, Die Kanonessammlungen der alten Reichskirche, ZRG Kan. 25 (1936), pp. 1–114; repeated in his: Gesammelte Schriften 4 (Berlin 1960), pp. 159–275. For the controversy regarding the place of origin of the Corpus canonum see Hubert Mordek, Karthago oder Rom? Zu den Anfängen der kirchlichen Rechtsquellen im Abendland, in: Studia in honorem eminentissimi cardinalis Alphonsi M. Stickler, ed. by Rosalio Iosepho Card. Castillo Lara (Studia et textus historiae iuris canonici 7, Rome 1992), pp. 359–374. – For the route taken by the material in the Corpus canonum Africano-Romanum see Hubert Mordek, Spätantikes Kirchenrecht in Rätien. Zur Verwandtschaft von Tuberiensis und Weingartensis als Tradenten des ältesten lateinischen Corpus canonum, ZRG Kan. 79 (1993), pp. 16–33. – For the Frisingensis prima see Anton Scharnagl, Die kanonistische Sammlung der Handschrift von Freising, in: Wissenschaftliche Festgabe zum zwölfhundertjährigen Jubiläum des Heiligen Korbinian, ed. Joseph Schlecht, Munich 1924, pp. 126–146. For a description of the Ms Munich StB Clm 6243 see Mordek, Bibliotheca capitularium, pp. 321–324. See also Maassen, Geschichte der Quellen, pp. 476–486. For the fragment Munich, StB Clm 2950/4, see Mordek, Bibliotheca Capitularium, pp. 367–368. – For the distribution in the early 6th century of papal decretals see Wurm, Studien und Texte, pp. 116–120 and Jasper, Beginning of the Decretal Tradition, pp. 20–26. The 42 papal letters in the Frisingensis prima are identified by Scharnagl, Die kanonistische Sammlung, pp. 137–141. – Kéry, Collections p. 1–3.