A review of a history of church law and civil law from Constantine’s time to Becket’s.
Continuing Becket’s Murder,
our selection from History of England, From the First Invasion by the Romans to the Accession of Henry VIII by John Lingard published in 1819. The selection is presented in ten easy 5 minute installments.
Previously in our series Becket’s Murder.
Place: Canterbury Cathedral
Constantine and his successors appointed the bishops the general arbitrators within their respective dioceses; and the officers of justice were compelled to execute their decisions without either delay or appeal. At first, to authorize the interference of the spiritual judge, the previous consent of both the plaintiff and defendant was requisite; but Theodosius left it to the option of the parties, either of whom was indulged with the liberty of carrying the cause in the first instance into the bishop’s court, or even of removing it thither in any stage of the pleadings before the civil magistrate. Charlemagne inserted this constitution of Theodosius in his code, and ordered it to be invariably observed among all the nations which acknowledged his authority. If by the imperial law the laity were permitted, by the canon law the clergy were compelled, to accept of the bishop as the judge of civil controversies. It did not become them to quit the spiritual duties of their profession, and entangle themselves in the intricacies of law proceedings. The principle was fully admitted by the emperor Justinian, who decided that in cases in which only one of the parties was a clergyman, the cause must be submitted to the decision of the bishop. This valuable privilege, to which the teachers of the northern nations had been accustomed under their own princes, they naturally established among their converts; and it was soon confirmed to the clergy by the civil power in every Christian country.
Constantine had thought that the irregularities of an order of men devoted to the offices of religion should be veiled from the scrutinizing eye of the people. With this view he granted to each bishop, if he were accused of violating the law, the liberty of being tried by his colleagues, and moreover invested him with a criminal jurisdiction over his own clergy. Whether his authority was confined to lesser offences, or extended to capital crimes, is a subject of controversy. There are many edicts which without any limitation reserve the correction of the clergy to the discretion of the bishop; but in the novels of Justinian a distinction is drawn between ecclesiastical and civil transgressions. With the former the Emperor acknowledges that the civil power has no concern: the latter are cognisable by the civil judge. Yet before his sentence can be executed, the convict must be degraded by his ecclesiastical superior; or, if the superior refuse, the whole affair must be referred to the consideration of the sovereign. That this regulation prevailed among the western nations, after their separation from the Empire, is proved by the canons of several councils; but the distinction laid down by Justinian was insensibly abolished, and, whatever might be the nature of the offence with which a clergyman was charged, he was, in the first instance at least, amenable to none but an ecclesiastical tribunal.
It was thus that on the Continent the spiritual courts were first established, and their authority was afterward enlarged; but among the Anglo-Saxons the limits of the two judicatures were intermixed and undefined. When the Imperial government ceased in other countries, the natives preserved many of its institutions, which the conquerors incorporated with their own laws; but our barbarian ancestors eradicated every prior establishment, and transplanted the manners of the wilds of Germany into the new solitude which they had made. After their conversion, they associated the heads of the clergy with their nobles, and both equally exercised the functions of civil magistrates.
It is plain that the bishop was the sole judge of the clergy in criminal cases: that he alone decided their differences, and that to him appertained the cognizance of certain offences against the rights of the Church and the sanctions of religion; but as it was his duty to sit with the sheriff in the court of the county, his ecclesiastical became blended with his secular jurisdiction, and many causes, which in other countries had been reserved to the spiritual judge, were decided in England before a mixed tribunal. This disposition continued in force till the Norman Conquest; when, as the reader must have formerly noticed, the two judicatures were completely separated by the new sovereign; and in every diocese “Courts Christian,” that is, of the bishop and his archdeacons, were established after the model and with the authority of similar courts in all other parts of the Western Church.
The tribunals, created by this arrangement, were bound in the terms of the original charter to be guided in their proceedings by the “episcopal laws,” a system of ecclesiastical jurisprudence, composed of the canons of councils, the decrees of popes, and the maxims of the more ancient fathers. This, like all other codes of law, had in the course of centuries received numerous additions. New cases perpetually occurred; new decisions were given; and new compilations were made and published. The two, which at the time of the Conquest prevailed in the spiritual courts of France, and which were sanctioned by the charter of William in England, were the collection under the name of Isidore, and that of Burchard, Bishop of Worms.
About the end of the century appeared a new code from the pen of Ivo, Bishop of Chartres, whose acquaintance with the civil law of Rome enabled him to give to his work a superiority over the compilations of his predecessors. Yet the knowledge of Ivo must have been confined to the Theodosian code, the institutes and mutilated extracts from the pandects of Justinian. But when Amalphi was taken by the Pisans in 1137, an entire copy of the last work was discovered; and its publication immediately attracted, and almost monopolized, the attention of the learned. Among the students and admirers of the pandects was Gratian, a monk of Bologna, who conceived the idea of compiling a digest of the canon law on the model of that favorite work; and soon afterwards, having incorporated with his own labors the collections of former writers, he gave his “decretum” to the public in 1151. From that moment the two codes, the civil and canon laws, were deemed the principal repositories of legal knowledge; and the study of each was supposed necessary to throw light on the other. Roger, the bachelor, a monk of Bec, had already read lectures on the sister sciences in England, but he was advanced to the government of his abbey; and the English scholars, immediately after the publication of the decretum, crowded to the more renowned professors in the city of Bologna. After their return they practised in the episcopal courts; their respective merits were easily appreciated, and the proficiency of the more eminent was rewarded with an ample harvest of wealth and preferment.
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