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L- O. 6s 3 A STUDY CP THE PO^BR SUPPLIED BY THE CHURCH IN COMMON ERROR ACCORDING TO CANON 209. Prcacntcd to the Faculty of Canon Law of St. Patrick’s College, Maynooth, as a theais for the degree of / f doctor. *2? REV. LAURENCE CARR, S.M.A. , L.C.L. / oOo----- MAYNOOTH LIBRARY 00129484 00129484 TABLE OP CONTENTS. Page Introduction ...................................... iii SECTION I. THE DOCTRINE OP COMMON ERROR IN ROMAN LAW CHAPTER I : Justinian Law ...................... 1. CHAPTER II : Glossators on Roman Law ... 15. SECTION II. THE DOCTRINE OP COMMON ERROR IN CANON LAV PROM THE TIME OF GRATIAN TO THE 17th CENTURY. CHAPTER I : Introduction of the Doctrine to Canon Law ... ... 22+. Art. I : The Influence of Gratian ............. 22+. Art. II : The Glossators on the CorpuB juriB Canonlcl................................. 28. Art. Ill: Early Decretalists .. ... ... ... ... 35. Art. IV : Civil Jurists of the 12+th Century....... 50 CHAPTER II : Teaching of 15th A 16th Century Canonists............................ 61. SECTION III. THE DOCTRINE OP COMMON ERROR PROM THE BEGINNING OP THE 17th CENTURY TO THE PROMULGATION OF THE CODEX JURIS CANONICI. CHAPTER I : Various Questions arising in connection with the Doctrine ....... 82. Art. I : Necessity of a Title .................. 82. Art. II : Licit Use of Common Error .............. 90. Art. Ill: Common Error and Delegated Jurisdiction.. 98. Art. IV : Common Error as the Source of Canons 207 § 2 and 2+30 3 2 ... ... ... 100. Art. V : Common Error and Probable Jurisdiction... 107. -ii- Page CHAPTER II : Common Error and Non-Juriadictional Act.................................... 115 Art. I : Common Error and Aaslstance at Marriage..................... 115 Art. II : Common Error and the Acta of a Notary ... 121 Art. Ill : Common Error and Dominative Power ........ 121* CHAPTER III : The Notion of Common E r r o r ........... 133 SECTION IV. THE DOCTRINE OP COMMON ERROR IN POST-CODE JURISPRUDENCE. CHAPTER I. : The Notion of Common Error............. 151+ Art. I : Various Notions of Common Error ....... 151+ Art. II : Criticism of the Common Error de Jure Interpretation............................ 169 Art. Ill : The True Notion of Common Error ....... 181 CHAPTER II : Application of the Principles of Common Error ....................... 201 T Art. I : Common Error and Delegated Jurisdiction... 202 Art. II s Common Error and Assistance at Marriage... 208 Art. Ill : Common Error and Dominative power ....... 218 Art. IV : Common Error and the Conferring of Confirmation by the Pastor ............ 230 APPENDIX I. : The Licit Use of Common Error ........ 233 APPENDIX II. : Penalty Attached to the Illicit Use of Common E r r o r ...................... 235 APPENDIX III : Common Error and Absolution from Reserved Sins ... 237 WORKS CONSULTED ..................................... 239. 0O 0 INTRODUCTION Canon 209 of the Codex Jurl3 Canonicl states that in common error and in positive and probable doubt, the Church supplies Jurisdiction. It reads - "In errore communi aut in dubio positive et probabili sive Juris sive facti, Jurisdiction- em supplet Ecclesia pro foro turn externo turn interno." In the present study we treat only of Jurisdiction supplied by reason of common error, because this is the point which pre­ sents most difficulty in practice. As a rule, commentators on the Code treat the question of common error very briefly and very summarily: indeed, we might even say that the point is generally unsatisfactorily dealt with - especially in view of the relatively important place it holds in ecclesiastical discipline, exercising, as it does, a fairly wide influence in the practical sphere of the valid performance of official functions. Due to the fact that most commentators confine themselves to a textual inter­ pretation of canon 209, there is at present much controversy as to the true notion of common error. Actually the doctrine that the Church supplies Jurisdiction in common error - as codified in canon 209 ~ is very old. To arrive at the true notion of common error, therefore, it is necessary to examine the doctrine in its origin development and application down through the centuries. Thus a comprehensive examination of the historical background is demanded, and consequently the greater part of this essay is historical. The conclusions finally arrived at, make an interpretation of the present- Code discipline on common error a relatively easy task, and hence we devote to it only the two final chapters. SECTION I. THE DOCTRINE OF COMMON ERROR IN ROMAN LAW. -1- ghapter I . JUSTINIAN LAW. It has been said of ancient Rome that her mission was war and her vocation law. That she fulfilled her mission is clear from a glance at the history of Roman military conquests. The fulfilment of her vodation is evidenced by the wftll-defined and highly-developed state of the legal system existing in the Roman state, long before the beginning of the Christian era - and by the influence this system has exercised on modern legal codes. Most European systems of the present day are based largely on that of ancient Rome. The Church too has, in no small measure, drawn from this same source: many canonical institutions owe their origin to Roman legal endeavour. Per instance, much of the terminology and many of the juridical notions contained in Book IV of the Codex Juris Canonici - treating of judicial processes - come di rectly from Roman law. But instances of this are not exclusively confined to Book IV of the Code: others might be mentioned. It is interesting to note that the first and most typical case mentioned by Charles Boucaud when treating of this very question, in a paper read at the International Juridical Congress at Rome in 1934 - is that of Canon 209 (1). Canon 209 - or at least that part of it which decrees that jurisdiction is supplied in common error - is undoubtedly a classical example of the influence of Roman law on Canon. Commentators on canon 209 unanimously agree in attributing its origin to Roman law. And it is most significant that pre-Code authors, in their treatment of the principles of common error, invariably appealed to Roman law in order to place the doctrine on a solid juridical basis. It Is obvious, therefore, that in order to have a proper understanding of the principles of canon 209 a brief study of their origin and original application will be essential. (1) "Relatiorjg inter Jus Romanum et Codicem Renedir.tl XV”, Acta Congressus Juridici Intemationnlis IV , p.48. While there are many laws in the collections of Justinian which helped, to give rise to the doctrine under consideration, the outstanding case is that known as the Lex Barbarius(2) - the case to which canonical writers most frequently refer. By reason of its greater importance we shall first consider the Lex Barbarius: afterwards we shall examine the other minor, yet nonetheless important, cases which are, as it were, supplementary to the Lex Barbarius and help us to arrive at a more complete knowledge of the notion of the doctrine and its application, as obtaining in the Justinian legi slation. Following is the text of the Lex Barbarius - Digest I, 14, 3. Ulpianua libro trlgeslmo octavo ad Sabinum. Barbarius Phl£ippus, cum servus fugitivus esset, Romae praeturam petiit, et praetor designatus est. Sed nihil ei servitutem obstetisse ait pomponius, quasi praetor non fueritj atquin verum est, praetura eum functum. Et tamen videamus: si servus, quamdiu latult dignitati praetoria functus sit, quid dicemus, quae edixit, quae decrevit, nullius fore momenti? an fore propter utilitatem eorum qui apud eum egerunt, vel lege, vel quo alio jure? Et verum puto, nihil eorum reprobari: hoc enim humanius estj cum etiam potuit populus Romanus servo dicernere hanc pofcestatem: sed et si scisset servura esse, liberum efficisset. Quod jus multo magis in Imperatore observandum e s t . " ^ In order to understand properly the full import of this law, and to demonstrate its relation too the subject matter under con si deration, it will be necessary to make a brief analysis of the text of the law itself, and to take a cursory glance at the historiaal background from which it emerges. (2) D. I, 14, 3. (3) This reading is taken from the critical edition of the Corpus Juris Civilis - Editio Stereotypa Quinta Decima, Berolini 1928-29, from which we also take other extracts from Justinian laws. -3- The chief judicial officer in the Roman state was the praetor. His duty was the administration of justice between the citizens. In the beginning there was but one praetor: however, with the expansion of the Snpire and the recognition of aliens by the law, it was found imperative to have extra praetors appointed - to cater for the administration of justice, firstly among aliens in the City, and secondly in the provinces. By the year 200 B.C., there were as many as six praetors. Appointed annually, following elections by the comitia centuriata - which embraced the whole body of the citizens, plebeian as well as patrician - the praetor ranked next to the Consul, At first the praetorship was confined to members of the Patrician group but under the Licinian laws in 337 B.C. it was opened to plebeians.^ This office however could never be held by a slave. In the Roman economy slayes had no rights of any kind. As Moyle^5) puts it, ”In respect of capacity of right, slavery is a condition of absolute rightlessness. A slave could have no rights against either his master or anyone else .... a slave was not a •person1 at all; he had no caput (Inst.l, 16, 4). The Roman lawyers looked upon him as a 'res1, and applied to him, as an object of property, the same rules which they laid down as to domestic animals.” This being the Roman attitude towards slaves it was only to be expected that they should be excluded from holding public offices.
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