The time came when the State accepted Christianity, and when that religion influenced the laws.[[278]] Under Constantine the civil officers were obliged to carry out the decrees of the Christian bishops, who exercised a wide jurisdiction. In 376 their Courts were given the same status as belonged to those of the imperial magistrates.[[279]] From the beginning, and under the Theodosian and Justinian Codes, the bishops possessed great disciplinary powers; and after the death of Charlemagne, in the midst of a period of violence and disruption, the Ecclesiastical Courts were firmly established and gained in power as the centuries went by.[[280]] They had their own rules and codes to determine cases,[[281]] and came to adjudicate upon many things which do not concern us, such as tithes, breaches of covenant, births, marriages, and wills.[[282]]
It used to be a custom in ancient times for the bishop to go journeying through his diocese. As he entered each parish he would be met by the inhabitants, from amongst whom he would select seven men of mature age and strait character,[[287]] who were then sworn on holy relics to relate all they knew, or possibly imagined, about their neighbours and their shortcomings. The bishop or his archdeacon[[288]] would then investigate and summon suspected persons before them for examination and sentence.[[289]]
It would appear that these inquisitions with the Testes Synodales could be extremely punitive when undertaken by a vigilant and censorious Christian moralist. We find that an energetic Bishop of Lincoln so harried his diocese,[[290]] and with amazing and minutely personal examinations[[291]] unearthed so many scandals among all ranks of the people,[[292]] that he was checked by Henry III.[[293]]
Although the nations and the laws of Europe ceased to be pagan, and became Christianised, the Church, with its haughty claims and well-learned rulers, sought for autonomy. Had not the Apostle Paul said that they should judge angels,[[294]] and that the saints some day should judge, the world?[[295]] After such a text it was easy to claim that the Emperor Constantine had declared at the great Council of Nicaea[[296]] (in A.D. 325) that priests could be judged by God, but not by men. The clergy wanted to be tried by their peers, and looked askance at the other Courts; the times were given over to violence, the punishments were always sanguinary, and the lay lords and judges were exceedingly rapacious.[[297]] If there were no more open pagans in high places, there came along various heretics certain to be abhorred at least equally.
So the Church started on a long contention, in which there were many struggles, with local victories and defeats in different countries. In the earlier period the State was the stronger; a law of Gratian[[298]] (fourth century) reserved to the Secular Court all but the slight offences of the clergy. It was laid down at the Council of Agde in 506,[[299]] and again at the Council of Epaone in 517,[[300]] that while the clergy should not appeal to the civil power as plaintiffs,[[301]] they were to attend if summoned to the Secular Courts. At a Council of Macon in 581[[302]] it is implied that criminal cases were to be conceded to them. At the same time the clergy were forbidden to accuse one another before civil magistrates.[[303]]
The fear and jealousy of the Secular Courts persisted; by a Canon of the Third Council of Orleans (A.D. 538),[[304]] the bishop’s permission was to be given before a cleric could attend as plaintiff or defendant. By the fourth Canon of the Fifth Council of Paris (A.D. 615),[[305]] no judge was to try any ecclesiastic without first giving notice to his ordinary; this order is repeated in a Capitulary of Charlemagne of A.D. 769. Pope Gregory the Great (540–604)[[306]] had contended for the principle that a clerical defendant was entitled to be tried by his own Court, and this was established by Welsh Canons of the seventh century.[[307]]
A Capitulary of Charlemagne gave the bishops criminal jurisdiction over the clergy,[[308]] though the emperor reserved to himself the right of final decision in all cases.[[309]] By the year 853 his grandson, the superstitious Charles the Bald, was appealing to the bishops at Soissons against the person of a humble clerk who was accused of forging the royal signature.[[310]] In A.D. 866[[311]] Pope Nicholas I., in his advice to the Bulgarians, declared that laymen had no right to scrutinise or condemn any priests, who were to be left to the control of their prelates. The Council of Ravenna in 877[[312]] ordered that none who were under the bishops’ guardianship should be seized by the seculars.
The two systems drifted farther and farther apart;[[313]] clerks were forbidden under pains and penalties to attend secular summonses. The Emperor Frederic II.[[314]] decreed in 1220 that no one might drag a clerk before a secular tribunal; any lay judge who convicted one was to forfeit his place, besides incurring spiritual penalties.[[315]] The Emperor Charles IV. made similar laws in 1359 (Constit. Caroli IV. 5), and punished the imprisonment of a clerk with outlawry and loss of possessions.[[316]] This was confirmed by Pope Martin V. in 1418. The right to clerical immunity[[317]] was reasserted at the twenty-fifth session (20) of the General Council of Trent in 1563.[[318]]
The Church, as we have already seen, had been allowed and appointed to regulate the faith and morals of all men. It also claimed, and, in the long-run, secured, the right to demand all clerics accused of crimes,[[319]] except in cases of high treason, highway marauding,[[320]] and deliberate house burning,[[321]] offences against the laws of the forest (that is hunting the king’s deer, etc.),[[322]] and misdemeanours (i.e. slight offences).[[323]] In time all clerks claimed privilege of clergy, and these consisted not only of those in priests’ orders[[324]] (of minor orders there were four degrees below subdeacons[[325]]), but of all those who were tonsured and had their hair cut in the clerical fashion.[[326]]
All anywise connected with Church work, such as the readers, acolytes, and door-keepers, could claim clergy.[[327]] So that the state of clerkship was frequently claimed,[[328]] both justly and fraudulently, by extremely humble people, and the existence of the tonsure, and also its genuineness, were very important in criminal cases, for it was sometimes assumed as a claim to immunity,[[329]] and occasionally the accused would have their heads shaved by the prosecutors in order to obliterate it.[[330]]