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CHAPTER XIII: Of Ecclesiastical Courts. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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Of Ecclesiastical Courts.
While the nobles were gradually extending their power, and reducing that of the sovereign, the ecclesiastical order was advancing, with hasty strides, to the establishment of an authority independent of either. The barbarism and superstition that succeeded the downfal of the Roman empire, and the system of ecclesiastical government erected in the western part of Europe, had a uniform tendency, as has been already observed, to increase the wealth and influence of the church. Were we to consider merely the progress of superstition, we should expect that the usurpations of the clergy would be most rapid in those European countries, which were at the greatest distance from the incitements to cultivation, and in which the ignorance and simplicity of the inhabitants disposed them to follow more implicitly the direction of their spiritual guides. But the fact was other-<344>wise. The kingdoms in the neighbourhood of the pope’s residence, and of his temporal dominions, were nearer the center of that artful policy, which by taking advantage of conjunctures, exalted no less the power and privileges of the church than the dignity and authority of her leader. Thus the right of levying the tythes, that enormous imposition for the support of the clergy, and which marks the prodigious extent of ecclesiastical influence, was introduced in France, and over a great part of Italy, as early at least as the time of Charlemagne; which corresponds to that of Egbert among the Anglo-Saxons; and the same tax was afterwards extended, by degrees, to the other countries of Europe. It appears to have been finally established in England, during the reigns of Alfred and of Athelstan; patriotic princes, who, doubtless, found themselves under the necessity of giving way to the current of the times, by submitting to such an oppressive exaction.
The increasing opulence of the clergy, as it was an effect of the blind zeal, and the general debasement of the people, so it was accompanied by a corresponding perversion of<345> religious opinions, and by an increase of superstitious observances. The real virtues of society, whose intrinsic value recommends them to our observance, and which frequently appear to cost us nothing, came to be little esteemed, in comparison of penances and mortifications; from which nature is disposed to shrink; and which are submitted to, for no other purpose, but that of appeasing the wrath of an offended deity. These last were accounted highly meritorious in persons of every description; but were thought more especially suitable to the profession and character of churchmen; upon whom it was incumbent to set an example to others. The monks, in particular, who, by their original institution, had no other means of distinction, were incited to procure admiration by the austerity of their lives, and by the severe and painful discipline which they underwent. As they advanced in reputation and popularity, they acquired more numerous and wealthy establishments; their influence in religious matters became proportionably extensive; and they not only rose to great consideration in the government of the church, but frequently, too,<346> interfered in that of the state. From the continent of Europe, the same practices, and ways of thinking, were communicated to Britain; where, about the middle of the tenth century, we find St. Dunstan,1 at the head of the regular clergy, possessed of such power and credit, as enabled him to controul the administration of government, and even to dispose of the crown.
Among the several branches of mortification imposed by the monastic rules, that of celibacy, or a total abstinence from the intercourse of the sexes, was deemed the most important; whether on account of the difficulties which must be surmounted in counteracting the most violent propensities of nature; or on account of that variation of temperature in the human frame, which, however irresistible those propensities may be at certain seasons, yet, on other occasions, renders the indulgence, or even the expression of them, an object of aversion and disgust. This, therefore, became now the usual topic of declamation to the English monks; who, finding the secular clergy to be their great rivals in the public esteem, and being impatient of that superior authority which they possessed, in-<347>veighed against their married life, as inconsistent with the purity of a christian pastor; representing their wives in the light of concubines or prostitutes, and their children as bastards. Though the doctrine inculcated by these fanatical zealots was not carried into execution until a subsequent period, it appears, even at this time, to have been approved and supported by the general voice of the people.
From the situation of the Christian clergy, and from the influence and authority which they enjoyed, they were led early to assume the cognizance of judicial business, and to form a number of tribunals for the exercise of their jurisdiction. Even before the time of Constantine, when they received no protection or countenance from the civil government,2 they were accustomed to enquire into the faith and manners of christians, and, after repeated admonitions, to excommunicate those individuals who persisted in opinions, or practices, which the church had condemned. This jurisdiction was at first exercised by the clergyman, together with the most respectable among the laity, of each particular church; but when the zeal of the latter, from the greater exten-<348>sion of the gospel, had begun to slacken, they became weary of interfering in such matters; and as they gradually lost their privilege by disuse, the business remained entirely in the hands of the former. When a number of churches were afterwards united in one diocese, the clergy of that latter district, under the authority of the bishop, exercised a jurisdiction of a like nature over the whole of the inhabitants. In the meetings that were called, however, for this purpose, after the introduction of wealth had produced very different degrees of rank among churchmen, the parochial, or inferior clergy, were by degrees overlooked, or endeavoured to excuse themselves from attendance; and the care of maintaining ecclesiastical discipline, throughout the diocese, was appropriated to the bishop and clergy of his cathedral church. This diocesan court, which, from a perfect uniformity of circumstances, was formed upon the same plan in every diocese of the kingdom, was every where liable to the review of a similar court, in a still more extensive district, convened by the archbishop; and from the decrees of this last, at a period when the papal authority had<349> arrived at its height, there lay an appeal to the Roman pontiff.
Together with this judicial authority, which was properly of a spiritual nature, the christian clergy came also to be invested with a temporal jurisdiction.3 After the christian religion was taken under the protection of the Roman government, and after the fashion of making donations to the church, for pious uses, had become prevalent, the dignified clergy, both secular and regular, as has been formerly mentioned, were enabled to acquire great landed estates. These, upon the settlement of the Gothic nations in the western part of Europe, were gradually reduced under the same feudal policy that obtained in the landed property of the lay-barons; and a great proportion of the lands of every bishop, or abbot, was commonly distributed among his villeins or vassals; over whom he exercised the jurisdiction and authority of a temporal lord and superior. The estate, or benefice, which from the piety of well-disposed persons, or from whatever cause, had been mortified to the church, and had come into the hands of some particular church-<350>man, was afterwards, in like manner as happened to the other fiefs of the kingdom, increased by the voluntary submission of neighbouring small proprietors; who, in order to purchase his protection, resigned their allodial property, and became his vassals. As the dignified ecclesiastics were not only possessed of a degree of influence corresponding to the extent of their benefices, but were supported by the spiritual arm of the church, they were often better qualified than many of the nobles, to secure their dependants from oppression; and of consequence the opportunities of augmenting their wealth, by an artful interposition in behalf of the inferior people, were proportionably more frequent.
In those circumstances, a bishop came to be invested with a civil as well as an ecclesiastical jurisdiction; the one extending to the people who lived upon his own estate; the other to all the inhabitants of his diocese. By virtue of the former, he punished the crimes, and determined the pecuniary differences of his tenants and vassals. In consequence of the latter, he enquired into the opinions and be-<351>haviour of such as were under his direction in religious matters; and censured them, either for heresy or immorality.
It required no great penetration to discover, that this temporal jurisdiction of the bishop might be extended, under cover of the spiritual jurisdiction. Every crime; every transgression of a rule of justice, whether of a public or private nature, may be considered as a sin, or as an offence in the sight of God; and in that view it might, consistently with the system of churchdiscipline, become an object of ecclesiastical censure. Whatever, therefore, could be the ground of an action before the civil magistrate, might be brought, at the same time, under the cognizance of the spiritual judge. The professed purpose of the former was, indeed, very different from that of the latter, who pretended to act merely with the view of promoting the good of the party in a future world. But when the church had acquired great authority over the people, it was not difficult for the ecclesiastical judge to frame his sentences in such a manner as to affect also the interest of men in the present life. In making atonement for a sin, the<352> offender might be ordained to indemnify the injured person, or even to submit to a public punishment.
This extension of ecclesiastical jurisdiction was made with greater or less rapidity, in different parts of Christendom, and with regard to persons or causes of different descriptions. It began with regard to the clergy themselves.
To maintain the dignity and credit of the church, it was necessary that she should pay the utmost attention to the behaviour of her own members, and be careful to avoid scandal, by censuring their offences with impartiality and rigour. She found, at the same time, the least difficulty in compelling churchmen to obey her decrees; for, as soon as the Christian Church had come to be established by law, the excommunication of a clergyman must have inferred a forfeiture of his benefice; since a person, who had been cast out of the society of christians, could not consistently be permitted to hold any ecclesiastical dignity or employment. From the severe discipline, which the church exercised over her own members, it became customary to exhibit com-<353>plaints against them before the ecclesiastical, rather than before the civil judge, and to prosecute them in the church court, either for private debts, or for public offences.
After this practice had become general, it was regarded by churchmen as a matter of privilege. The peculiar functions and character of a clergyman required a peculiar delicacy, it was pretended, in judging of his conduct, which could not with propriety fall under the cognizance of the civil magistrate, and of which the clergy themselves were the only competent judges. In the progress of church power, this exemption from the jurisdiction of temporal courts was gradually established through the greater part of Christendom. It was introduced in the diocese of Rome by a law of Alaric,4 which provided that the clergy of that district should only be prosecuted, in the first instance, before their own bishop; but from his decision an appeal was admitted to the civil magistrate. In the Eastern empire, the inferior clergy obtained a similar privilege, in civil actions, by a law of the emperor Justinian; though, in criminal causes, not properly ecclesiastical,<354> they might still be prosecuted either in the spiritual or temporal court. The higher orders of churchmen, however, together with nuns, were, by the regulation of this emperor, permitted, in all cases, to decline the jurisdiction of laic judges.*
When the exemption of the clergy from the jurisdiction of the civil magistrate, which, with the exception of a few causes, became universal in the Western part of Europe, had been completely established, the church was, in reality, independent of the state; since, whatever regulations were enacted by the legislature of any country, they might, with safety, be disregarded by churchmen, who could not be punished for the violation of any law, unless they thought proper to enforce it by their own courts.†
The power of the church, in the administration of justice to her own members, was followed by a similar jurisdiction over the laity, in those law-suits by which her own<355> interest might, in any degree, be affected, or which appeared, however indirectly, to have an influence upon any ecclesiastical matter. But, in England, this encroachment upon the province of the civil magistrate was posterior to the Norman conquest: and therefore does not fall under our present consideration. During the government of the Anglo-Saxon princes, the clergy did not claim a separate cognizance in the temporal causes of the laity; but they laid the foundation of such a claim, in a future period, by assuming a privilege of assisting the ordinary magistrates in the determination of such causes. The extent of a diocese being the same with that of a shire, the bishop sat along with the earl or sheriff, as a judge, in the county courts; and the rural dean, whose ecclesiastical district coincided with the hundred, appears, in like manner, to have been associated with the centenarius, in the determination of such differences as arose among the people of that division. It is not improbable that the union of the civil and ecclesiastical powers was carried still lower, and that the parson of a parish was accustomed to judge along with the tythingman, in the<356> court of the decennary: this is what might be expected from the correspondence between the limits of a parish and a tything, and from the analogous practice in the superior courts; though the accounts transmitted by early historians are too vague and general to afford any positive evidence of the fact.
This arrangement of the Saxon tribunals was a natural consequence of the influence possessed by the spiritual and the temporal governors, in the territories over which they presided. It seems, at the same time, to have been esteemed a wise regulation; in as much as by uniting the opinion of those two officers, in the distribution of justice, it was likely that the decisions would be tempered in such a manner, as might correspond to the interest, and the views, of every set of men in the community. The experience and foresight of that age was too limited to discover the inconveniency of confounding the plain and accurate rules of justice, with the intricate subtleties of casuistry, which naturally introduce themselves into the judgments of a spiritual director: not to mention the danger of committing a share of the judicial power, in those<357> times of ignorance, to a set of men, who, by their superior education, were likely to be an over-match for the civil magistrate, and who, by their situation, having acquired a separate interest, were led to seek their own aggrandizement at the expence of the great body of the people.<358>
[1. ]St. Dunstan (ca. 909–88): counselor to Edmund, Eadred, and Edgar the Peaceable, who appointed him archbishop of Canterbury (959–88).
[2. ]Emperor Constantine’s Edict of Milan (313) gave civil rights and toleration to Christians throughout the empire.
[3. ]The clergy, and especially the bishops, acquired civil and political powers, in addition to their spiritual authority.
[4. ]Alaric II: Christian king of the Visigoths (r. 484–507), who issued in 506 a code of laws known as the Breviarum Alaricanum.
[* ]V. Nov. 83.—123.—79. Also Gianone, Hist. of Naples.
[† ]There were certain great crimes, such as high treason, and sacrilege, to which this exemption did not extend.