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$Title{History Of Europe During The Middle Ages
Part I}
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$Author{Hallam, Henry}
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$Subject{footnote
church
upon
tithes
ecclesiastical
ii
clergy
jurisdiction
century
charlemagne}
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Title:       History Of Europe During The Middle Ages
Book:        Book VII: History Of Ecclesiastical Power During The Middle Ages
Author:      Hallam, Henry

Part I

     Wealth of the Clergy - its Sources - Encroachments on Ecclesiastical
Property - their Jurisdiction - Arbitrative - coercive - their political Power
- Supremacy of the Crown - Charlemagne - Change after his Death, and
Encroachments of the Church in the ninth Century - Primacy of the See of Rome
- its early Stage - Gregory I. - Council of Frankfort - false Decretals -
Progress of Papal Authority - Effects of Excommunication - Lothaire - State of
the Church in the tenth Century - Marriage of Priest - Simony - Episcopal
Elections - Imperial Authority over the Popes - Dispute concerning
Investitures - Gregory VII. and Henry IV. - Concordat of Calixtus - Election
by Chapters - general System of Gregory VII. - Progress of Papal Usurpations
in the twelfth Century - Innocent III. his Character and Schemes.

     At the irruption of the northern invaders into the Roman empire they
found the clergy already endowed with extensive possessions.  Besides the
spontaneous oblations upon which the ministers of the Christian church had
originally subsisted, they had obtained, even under the pagan emperors, by
concealment or connivance - for the Roman law did not permit a tenure of lands
in mortmain - certain immovable estates, the revenues of which were applicable
to their own maintenance and that of the poor. ^a These indeed were precarious
and liable to confiscation in times of persecution.  But it was among the
first effects of the conversion of Constantine to give not only a security,
but a legal sanction, to the territorial acquisitions of the church.  The
edict of Milan, in 313, recognizes the actual estates of ecclesiastical
corporations. ^b Another, published in 321, grants to all the subjects of the
empire the power of bequeathing their property to the church. ^c His own
liberality and that of his successors set an example which did not want
imitators.  Passing rapidly from a condition of distress and persecution to
the summit of prosperity, the church degenerated as rapidly from her ancient
purity, and forfeited the respect of future ages in the same proportion as she
acquired the blind veneration of her own.  Covetousness, especially, became
almost a characteristic vice.  Valentinian I., in 370, prohibited the clergy
from receiving the bequests of women - a modification more discreditable than
any general law could have been.  And several of the fathers severely
reprobate the prevailing avidity of their contemporaries. ^d

[Footnote a: Giannone, Istoria di Napoli, l. ii. c. 8; Gibbon, c. 15 and c.
20; F. Paul's Treatise on Benefices, c. 4.  The last writer does not wholly
confirm this position; but a comparison of the three seems to justify my
text.]

[Footnote b: Giannone; Gibbon, ubi supra; F. Paul, c. 5.]

[Footnote c: Giannone.]

[Footnote d: Ibid., ubi supra; F. Paul, c. 6.]

     The devotion of the conquering nations, as it was still less enlightened
than that of the subjects of the empire, so was it still more munificent.
They left indeed the worship of Hesus and Taranis in their forests; but they
retained the elementary principles of that and of all barbarous idolatry, a
superstitious reverence for the priesthood, a credulity that seemed to invite
imposture, and a confidence in the efficacy of gifts to expatiate offences.
Of this temper it is undeniable that the ministers of religion, influenced
probably not so much by personal covetousness as by zeal for the interests of
their order, took advantage.  Many of the peculiar and prominent
characteristics in the faith and discipline of those ages appear to have been
either introduced or sedulously promoted for the purposes of sordid fraud.  To
those purposes conspired the veneration for relics, the worship of images, the
idolatry of saints and martyrs, the religious inviolability of sanctuaries,
the consecration of cemeteries, but, above all, the doctrine of purgatory and
masses for the relief of the dead.  A creed thus contrived, operating upon the
minds of barbarians, lavish though rapacious, and devout though dissolute,
naturally caused a torrent of opulence to pour in upon the church.  Donations
of land were continually made to the bishops, and, in still more ample
proportion, to the monastic foundations.  These had not been very numerous in
the West till the beginning of the sixth century, when Benedict established
his celebrated rule. ^e A more remarkable show of piety, a more absolute
seclusion from the world, forms more impressive and edifying, prayers and
masses more constantly repeated, gave to the professed in these institutions
an advantage, in public esteem, over the secular clergy.

[Footnote e: Giannone, l. iii. c. 6; l. iv. c. 12.  Treatise on Benefices, c.
8; Fleury, Huitieme Discours sur l'Hist. Ecclesiastique; Muratori, Dissert.
65.]

     The ecclesiastical hierarchy never received any territorial endowment by
law, either under the Roman empire or the kingdoms erected upon its ruins.
But the voluntary munificence of princes, as well as their subjects, amply
supplied the place of a more universal provision.  Large private estates, or,
as they were termed, patrimonies, not only within their own dioceses, but
sometimes in distant countries, sustained the dignity of the principal sees,
and especially that of Rome. ^f The French monarchs of the first dynasty, the
Carlovingian family and their great chief, the Saxon line of emperors, the
kings of England and Leon, set hardly any bounds to their liberality, as
numerous charters still extant in diplomatic collections attest.  Many
churches possessed seven or eight thousand mansi; one with but two thousand
passed for only indifferently rich. ^g But it must be remarked that many of
these donations are of lands uncultivated and unappropriated.  The monasteries
acquired legitimate riches by the culture of these deserted tracts and by the
prudent management of their revenues, which were less exposed to the ordinary
means of dissipation than those of the laity. ^h Their wealth, continually
accumulated, enabled them to become the regular purchasers of landed estate,
especially in the time of the crusades, when the fiefs of the nobility were
constantly in the market for sale or mortgage. ^i

[Footnote f: St. Marc, t. i. p. 281; Giannone, l. v. c. 12.]

[Footnote g: Schmidt, t. ii. p. 205.]

[Footnote h: Muratori, Dissert. 65; Du Cange, v. Eremus.]

[Footnote i: Heeren, Essai sur les Croisades, p. 166; Schmidt, t. iii. p.
293.]

     If the possessions of ecclesiastical communities had all been as fairly
earned, we could find nothing in them to reprehend.  But other sources of
wealth were less pure, and they derived their wealth from many sources.  Those
who entered into a monastery threw frequently their whole estates into the
common stock; and even the children of rich parents were expected to make a
donation of land on assuming the cowl.  Some gave their property to the church
before entering on military expeditions; gifts were made by some to take
effect after their lives, and bequests by many in the terrors of dissolution.
Even those legacies to charitable purposes, which the clergy could with more
decency and speciousness recommend, and of which the administration was
generally confined to them, were frequently applied to their own benefit. ^j
They failed not, above all, to inculcate upon the wealthy sinner that no
atonement could be so acceptable to Heaven as liberal presents to its earthly
delegates. ^k To die without allotting a portion of worldly wealth to pious
uses was accounted almost like suicide, or a refusal of the last sacraments;
and hence intestacy passed for a sort of fraud upon the church, which she
punished by taking the administration of the deceased's effects into her own
hands.  This, however, was peculiar to England, and seems to have been the
case there only from the reign of Henry III. to that of Edward III., when the
bishop took a portion of the intestate's personal estate for the advantage of
the church and poor, instead of distributing it among his next of kin. ^l The
canonical penances imposed upon repentant offenders, extravagantly severe in
themselves, were commuted for money or for immovable possessions - a fertile
though scandalous source of monastic wealth, which the popes afterwards
diverted into their own coffers by the usage of dispensations and indulgences.
^m The church lands enjoyed an immunity from taxes, though not in general from
military service, when of a feudal tenure. ^n But their tenure was frequently
in what was called frankalmoign, without any obligation of service.  Hence it
became a customary fraud of lay proprietors to grant estates to the church,
which they received again by way of fief or lease, exempted from public
burdens.  And, as if all these means of accumulating what they could not
legitimately enjoy were insufficient, the monks prostituted their knowledge of
writing to the purpose of forging charters in their own favor, which might
easily impose upon an ignorant age, since it has required a peculiar science
to detect them in modern times.  Such rapacity might seem incredible in men
cut off from the pursuits of life and the hope of posterity, if we did not
behold every day the unreasonableness of avarice and the fervor of
professional attachments. ^o

[Footnote j: Primo sacris pastoribus data est facultas, ut haereditatis portio
in pauperes et egenos dispergeretur; sed sensim ecclesiae quoque in pauperum
censum venerunt, atque intestatae gentis mens credita est proclivior in eas
futura fuisse: qua ex re pinguius illarum patrimonium evasit.  Immo episcopi
ipsi in rem suam ejusmodi consuetudinem interdum convertebant: ac tributum
evasit, quod antea pii moris fuit.  Muratori, Antiquitates Italiae, t. v.
Dissert. 67.]

[Footnote k: Muratori, Dissert.  67 (Antiquit. Italiae, t. v. p. 1055), has
preserved a curious charter of an Italian count, who declares that, struck
with reflections upon his sinful state, he had taken counsel with certain
religious how he could atone for his offences.  Accepto consilio ab iis,
excepto si renunciare saeculo possem, nullum esse melius inter eleemosinarum
virtutes, quam si de propriis meis substantiis in monasterium concederem.  Hic
consilium ab iis libenter, et ardentissimo animo ego accepi.]

[Footnote l: Selden, vol. iii. p. 1676; Prynne's Constitutions, vol. iii. p.
18; Blackstone, vol. ii. chap. 32.  In France the lord of the fief seems to
have taken the whole spoil.  Du Cange, v. Intestatus.]

[Footnote m: Muratori, Dissert. 68.]

[Footnote n: Palgrave has shown that the Anglo-Saxon clergy were not exempt,
originally at least, from the trinoda necessitas imposed on all allodial
proprietors.  They were better treated on the Continent; and Boniface exclaims
that in no part of the world was such servitude imposed on the church as among
the English.  English Commonwealth, i. 158.  But when we look at the charters
collected in Kemble's Codex Diplomaticus (most or nearly all of them in favor
of the church) we shall hardly think they were ill off, though they might be
forced sometimes to repair a bridge or send their tenants against the Danes.]

[Footnote o: Muratori's 65th, 67th, and 68th Dissertations on the Antiquities
of Italy have furnished the principal materials of my text, with Father Paul's
Treatise on Benefices, especially chaps. 19 and 29. Giannone, loc. cit. and l.
iv. c. 12; l. v. c. 6; l. x. c. 12.  Schmidt, Hist. des Allemands, t. i. p.
370; t. ii. pp. 203, 462; t. iv. p. 202. Fleury, III.  Discours sur l'Hist.
Eccles. Du Cange, voc.  Precaria.]

     As an additional source of revenue, and in imitation of the Jewish law,
the payment of tithes was recommended or enjoined.  These, however, were not
applicable at first to the maintenance of a resident clergy. Parochial
divisions, as they now exist, did not take place, at least in some countries,
till several centuries after the establishment of Christianity. ^p The rural
churches, erected successively as the necessities of a congregation required,
or the piety of a landlord suggested, were in fact a sort of chapels dependent
on the cathedral, and served by itinerant ministers at the bishop's
discretion. ^q The bishop himself received the tithes, and apportioned them as
he thought fit.  A capitulary of Charlemagne, however, regulates their
division into three parts; one for the bishop and his clergy, a second for the
poor, and a third for the support of the fabric of the church. ^r Some of the
rural churches obtained by episcopal concessions the privileges of baptism and
burial, which were accompanied with a fixed share of tithes, and seem to imply
the residence of a minister.  The same privileges were gradually extended to
the rest; and thus a complete parochial division was finally established.  But
this was hardly the case in England till near the time of the conquest. ^s

[Footnote p: Muratori, Dissert. 74, and Fleury, Institutions au Droit
ecclesiastique, t. i. p. 162, refer to the origin of parishes to the fourth
century; but this must be limited to the most populous part of the empire.]

[Footnote q: These were not always itinerant; commonly, perhaps, they were
dependants of the lord, appointed by the bishop on his nomination. -
Lehuerou, Institut.  Carolingiennes, p. 526, who quotes a capitulary of
the Emperor Lothaire in 825.  "De clericis vero laicorum, unde non nulli
eorum conqueri videantur, eo quod quidam episcopi ad eorum preces nolint
in ecclesiis suis eos, cum utiles sint, ordinare, visum nobis fuit, ut . .
. . et cum caritate et ratione utiles et idonei eligantur; et si laicus
idoneum utilemque clericum obtulerit nulla qualibet occasione ab episcopo sine
ratione certa repellatur; et si rejiciendus est, propter scandalum vitandum
evidenti ratione manifestetur." Another capitulary of Charles the Bald, in
864, forbids the establishment of priests in the churches of patrons, or their
ejection without the bishop's consent: - "De his qui sine consensu episcopi
presbyteros in ecclesiis suis constituunt, vel de ecclesiis dejiciunt." Thus
the churches are recognized as the property of the lord; and the parish may be
considered as an established division, at least very commonly, so early as the
Carlovingian empire.  I do not by any means deny that it was partially known
in France before that time.

     Guizot reckons the patronage of churches by the laity among the
circumstances which diminished or retarded ecclesiastical power.  (Lecon 13.)
It may have been so; but without this patronage there would have been very few
parish churches.  It separated in some degree the interests of the secular
clergy from those of the bishops and the regulars.]

[Footnote r: Schmidt, t. ii. p. 206.  This seems to have been founded on an
ancient canon, F. Paul, c. 7.]

[Footnote s: Collier's Ecclesiastical History, p. 229.]

     The slow and gradual manner in which parochial churches became
independent appears to be of itself a sufficient answer to those who ascribe a
great antiquity to the universal payment of tithes.  These are, however, more
direct proofs that this species of ecclesiastical property was acquired not
only by degrees but with considerable opposition.  We find the payment of
tithes first enjoined by the canons of a provincial council in France near the
end of the sixth century.  From the ninth to the end of the twelfth, or even
later, it is continually enforced by similar authority. ^t Father Paul remarks
that most of the sermons preached about the eighth century inculcate this as a
duty, and even seem to place the summit of Christian perfection in its
performance. ^u This reluctant submission of the people to a general and
permanent tribute is perfectly consistent with the eagerness displayed by them
in accumulating voluntary donations upon the church.  Charlemagne was the
first who gave the confirmation of a civil statute to these ecclesiastical
injunctions; no one at least has, so far as I know, adduced any earlier law
for the payment of tithes than one of his capitularies. ^v But it would be
precipitate to infer either that the practice had not already gained ground to
a considerable extent, through the influence of ecclesiastical authority, or,
on the other hand, that it became universal in consequence of the commands of
Charlemagne. ^w In the subsequent ages it was very common to appropriate
tithes, which had originally been payable to the bishop, either towards the
support of particular churches, or, according to the prevalent superstition,
to monastic foundations. ^x These arbitrary consecrations, though the subject
of complaint, lasted, by a sort of prescriptive right of the landholder, till
about the year 1200.  It was nearly at the same time that the obligation of
paying tithes, which had been originally confined to those called predial, or
the fruits of the earth, was extended, at least in theory, to every species of
profit, and to the wages of every kind of labor. ^y

[Footnote t: Selden's History of Tithes, vol. iii. p. 1108, edit. Wilkins.
Tithes are said by Giannone to have been enforced by some papal decrees in the
sixth century.  l. iii. c. 6.]

[Footnote u: Treatise on Benefices, c. 1.]

[Footnote v: Mably (Observations sur l'Hist. de France, t. i. pp. 238 et 438)
has, with remarkable rashness, attacked the current opinion that Charlemagne
established the legal obligation of tithes, and denied that any of his
capitularies bear such an interpretation.  Those which he quotes have indeed a
different meaning; but he has overlooked an express enactment in 789 (Baluzii
Capitularia, t. i. p. 253) which admits of no question; and I believe that
there are others in confirmation.]

[Footnote w: The grant of Ethelwolf in 855 has appeared to some antiquaries
the most probable origin of the general right to tithes in England [Note I.]
It is said by Marina that tithes were not legally established in Castile till
the reign of Alfonso X.  Ensayo sobre les Siete Partidas, c. 359.]

[Footnote x: Selden, p. 1114 et seq.; Coke, 2 Inst. p. 641.]

[Footnote y: Selden's History of Tithes; Treatise on Benefices, c. 28;
Giannone, l. x. c. 12.]

     Yet there were many hindrances that thwarted the clergy in their
acquisition of opulence, and a sort of reflux that set sometimes very strongly
against them.  In times of barbarous violence nothing can thoroughly
compensate for the inferiority of physical strength and prowess.  The
ecclesiastical history of the middle ages presents one long contention of
fraud against robbery; of acquisitions made by the church through such means
as I have described, and torn from her by lawless power.  Those very men who
in the hour of sickness and impending death showered the gifts of expiatory
devotion upon her altars, had passed the sunshine of their lives in
sacrilegious plunder.  Notwithstanding the frequent instances of extreme
reverence for religious institutions among the nobility, we should be deceived
in supposing this to be their general character.  Rapacity, not less
insatiable than that of the abbots, was commonly united with a daring
fierceness that the abbots could not resist. ^z In every country we find
continual lamentation over the plunder of ecclesiastical possessions.  Charles
Martel is reproached with having given the first notorious example of such
spoliation.  It was not, however, commonly practised by sovereigns.  But the
evil was not the less universally felt.  The parochial tithes especially, as
the hand of robbery falls heaviest upon the weak, were exposed to unlawful
seizure.  In the tenth and eleventh centuries nothing was more common than to
see the revenues of benefices in the hands of lay impropriators, who employed
curates at the cheapest rate; an abuse that has never ceased in the church. ^a
Several attempts were made to restore these tithes; but even Gregory VII. did
not venture to proceed in it; ^b and indeed it is highly probable that they
might be held in some instances by a lawful title. ^c Sometimes the property
of monasteries was dilapidated by corrupt abbots, whose acts, however
clandestine and unlawful, it was not easy to revoke. And both the bishops and
convents were obliged to invest powerful lay protectors, under the name of
advocates, with considerable fiefs, as the price of their assistance against
depredators.  But these advocates became too often themselves the spoilers,
and oppressed the helpless ecclesiastics for whose defence they had been
engaged. ^d

[Footnote z: The church was often compelled to grant leases of her lands,
under the name of precariae, to laymen, who probably rendered little or no
service in return, though a rent or census was expressed in the instrument.
These precariae seem to have been for life, but were frequently renewed.  They
are not to be confounded with terrae censuales, or lands let to a tenant at
rack-rent, which of course formed a considerable branch of revenue.  The grant
was called precaria from being obtained at the prayer of a grantee; and the
uncertainty of its renewal seems to have given rise to the adjective
precarious.

     In the ninth century, though the pretensions of the bishops were never
higher, the church itself was more pillaged under pretext of these precariae,
and in other ways, than at any former time. - See Du Cange for a long article
on Precariae.]

[Footnote a: Du Cange, voc. Abbas.]

[Footnote b: Schmidt, t. iv. p. 204.  At an assembly held at St. Denis in 997
the bishops proposed to restore the tithes to the secular clergy; but such a
tumult was excited by this attempt, that the meeting was broken up. Recueil
des Historiens, t. xi. praefat. p. 212.]

[Footnote c: Selden's Hist. of Tithes, p. 1136.  The third council of Lateran
restrains laymen from transferring their impropriated titles to other laymen.
Velly, Hist. de France, t. iii. p. 235.  This seems tacitly to admit that
their possession was lawful, at least by prescription.]

[Footnote d: For the injuries sustained by ecclesiastical proprietors, see
Muratori, Dissert. 72.  Du Cange, v. Advocatus.  Schmidt, t. ii. pp. 220, 470;
t. iii. p. 290; t. iv. pp. 188, 202.  Recueil des Historiens, t. xi. praefat.
p. 184.  Martenne, Thesaurus Anecdotorum, t. i. p. 595. Vaissette, Hist. de
Languedoc, t. ii. p. 109, and Appendix, passim.]

     If it had not been for these drawbacks, the clergy must, one would
imagine, have almost acquired the exclusive property of the soil.  They did
enjoy, according to some authorities, nearly one-half of England, and, I
believe, a greater proportion in some countries of Europe. ^e They had
reached, perhaps, their zenith in respect of territorial property about the
conclusion of the twelfth century. ^f After that time the disposition to
enrich the clergy by pious donations grew more languid, and was put under
certain legal restraints, to which I shall hereafter advert; but they became
rather more secure from forcible usurpations.

[Footnote e: Turner's Hist. of England, vol. ii. p. 413, from Avesbury.
According to a calculation founded on a passage in Knyghton, the revenue of
the English church in 1337 amounted to 730,000 marks per annum. Macpherson's
Annals of Commerce, vol. i. p. 519; Histoire du Droit public Eccles.
Francois, t. i. p. 214.  Anthony Harmer (Henry Wharton) says that the
monasteries did not possess one-fifth of the land; and I incline to think that
he is nearer the truth than Mr. Turner, who puts the wealth of the church at
above 28,000 knights' fees out of 53,215.  The bishops' lands could not by any
means account for the difference; so that Mr. Turner was probably deceived by
his authority.]

[Footnote f: The great age of monasteries in England was the reigns of Henry
I., Stephen, and Henry II.  Lyttelton's Henry II. vol. ii. p. 329. David I. of
Scotland, contemporary with Henry II., was also a noted founder of
monasteries.  Dalrymple's Annals.]

     The acquisitions of wealth by the church were hardly so remarkable, and
scarcely contributed so much to her greatness, as those innovations upon the
ordinary course of justice which fall under the head of ecclesiastical
jurisdiction and immunity.  It is hardly, perhaps, necessary to caution the
reader that rights of territorial justice, possessed by ecclesiastics in
virtue of their fiefs, are by no means included in this description.
Episcopal jurisdiction, properly so called, may be considered as depending
upon the choice of litigant parties, upon their condition, and upon the
subject-matter of their differences.

     1. The arbitrative authority of ecclesiastical pastors, if not coeval
with Christianity, grew up very early in the church, and was natural, or even
necessary, to an insulated and persecuted society. ^g Accustomed to feel a
strong aversion to the imperial tribunals, and even to consider a recurrence
to them as hardly consistent with their profession, the early Christians
retained somewhat of a similar prejudice even after the establishment of their
religion.  The arbitration of their bishops still seemed a less objectionable
mode of settling differences.  And this arbitrative jurisdiction was
powerfully supported by a law of Constantine, which directed the civil
magistrate to enforce the execution of episcopal awards.  Another edict,
ascribed to the same emperor, and annexed to the Theodosian code, extended the
jurisdiction of the bishops to all causes which either party chose to refer to
it, even where they had already commenced in a secular court, and declared the
bishop's sentence not subject to appeal.  This edict has clearly been proved
to be a forgery. It is evident, by a novel of Valentinian III., about 450,
that the church had still no jurisdiction in questions of a temporal nature,
except by means of the joint reference of contending parties.  Some
expressions, indeed, used by the emperor, seem intended to repress the spirit
of encroachment upon the civil magistrates, which had probably begun to
manifest itself.  Charlemagne, indeed, in one of his capitularies, is said by
some modern writers to have repeated all the absurd and enormous provisions of
the spurious constitution in the Theodosian code. ^h But this capitulary is
erroneously ascribed to Charlemagne.  It is only found in one of the three
books subjoined by Benedict Levita to the four books of capitularies collected
by Ansegisus; these latter relating only to Charlemagne and Louis, but the
others comprehending many of later emperors and kings.  And, what is of more
importance, it seems exceedingly doubtful whether this is any genuine
capitulary at all.  It is not referred to any prince by name, nor is it found
in any other collection.  Certain it is that we do not find the church, in her
most arrogant temper, asserting the full privileges contained in this
capitulary. ^i

[Footnote g: I. Corinth. v. 4. The passage at least tends to discourage suits
before a secular judge.]

[Footnote h: Baluzii Capitularia, t. i. p. 9018.]

[Footnote i: Gibbon, c. xx.  Giannone, l. ii. c. 8; l. iii. c. 6; l. vi. c. 7.
Schmidt, t. ii. p. 208.  Fleury, 7me Discours, and Institutions au Droit
Ecclesiastique, t. ii. p. I.  Memoires de l'Academie des Inscriptions, t.
xxxix. p. 566.]

     2. If it was considered almost as a general obligation upon the primitive
Christians to decide their civil disputes by internal arbitration, much more
would this be incumbent upon the clergy.  The canons of several councils, in
the fourth and fifth centuries, sentence a bishop or priest to deposition, who
should bring any suit, civil or even criminal, before a secular magistrate.
This must, it should appear, be confined to causes where the defendant was a
clerk; since the ecclesiastical court had hitherto no coercive jurisdiction
over the laity. It was not so easy to induce laymen, in their suits against
clerks, to prefer the episcopal tribunal.  The emperors were not at all
disposed to favor this species of encroachment till the reign of Justinian,
who ordered civil suits against ecclesiastics to be carried only before the
bishops.  Yet this was accompanied by a provision that a party dissatisfied
with the sentence might apply to the secular magistrate, not as an appellant,
but a co-ordinate jurisdiction; for if different judgments were given in the
two courts, the process was ultimately referred to the emperor. ^j But the
early Merovingian kings adopted the exclusive jurisdiction of the bishop over
causes wherein clerks were interested, without any of the checks which
Justinian had provided.  Many laws enacted during their reigns, and under
Charlemagne, strictly prohibit the temporal magistrates from entertaining
complaints against the children of the church.

[Footnote j: This was also established about the same time by Athalaric King
of the Ostrogoths, and of course affected the popes who were his subjects.
St. Marc, t. i. p. 60; Fleury, Hist. Eccles., t. vii. p. 292.]

     This jurisdiction over the civil causes of clerks was not immediately
attended with an equally exclusive cognizance of criminal offences imputed to
them, wherein the state is so deeply interested, and the church could inflict
so inadequate a punishment.  Justinian appears to have reserved such offences
for trial before the imperial magistrate, though with a material provision
that the sentence against a clerk should not be executed without the consent
of the bishop or the final decision of the emperor.  The bishop is not
expressly invested with this controlling power by the laws of the
Merovingians; but they enact that he must be present at the trial of one of
his clerks; which probably was intended to declare the necessity of his
concurrence in the judgment.  The episcopal order was indeed absolutely
exempted from secular jurisdiction by Justinian; a privilege which it had
vainly endeavored to establish under the earlier emperors.  France permitted
the same immunity; Chilperic, one of the most arbitrary of her kings, did not
venture to charge some of his bishops with treason, except before a council of
their brethren.  Finally, Charlemagne seems to have extended to the whole body
of the clergy an absolute exemption from the judicial authority of the
magistrate. ^k

[Footnote k: Memoires de l'Academie, ubi supra; Giannone, l. iii. c. 6;
Schmidt, t. ii. p. 236; Fleury, ubi supra.

     Some of these writers do not state the law of Charlemagne so strongly.
Nevertheless the words of a capitulary in 789.  Ut clerici ecclesiastici
ordinis si culpam incurrerint apud ecclesiasticos judicentur non apud
saeculares, are sufficiently general (Baluz, Capitul. t. i. p. 227); and the
same is expressed still more forcibly in the collection published by Ansegisus
under Louis the Debonair.  (Id. p. 904 and 1115.) See other proofs in Fleury,
Hist. Eccles., t. ix. p. 607.]

     3. The character of a cause, as well as of the parties engaged, might
bring it within the limits of ecclesiastical jurisdiction.  In all questions
simply religious the church had an original right of decision; in those of a
temporal nature the civil magistrate had, by the imperial constitution, as
exclusive an authority. ^l Later ages witnessed strange innovations in this
respect, when the spiritual courts usurped, under sophistical pretences,
almost the whole administration of justice.  But these encroachments were not,
I apprehend, very striking till the twelfth century; and as about the same
time measures, more or less vigorous and successful, began to be adopted in
order to restrain them, I shall defer this part of the subject for the
present.

[Footnote l: Quoties de religione agitur, episcopos oportet judicare; alteras
vero causas quae ad ordinarios cognitores vel ad usum publici juris pertinent,
legibus oporte, audiri.  Lex Arcadii et Honorii apud Mem. de l'Academie, t.
xxxix. p. 571.]