The civil and ecclesiastical jurisdictions were, it is well known, not separated in England until after the Conquest. William the Norman was the first to establish that most questionable division, the consequences of which were often so bitterly felt by his successors. Previous to his reign the bishop had been the assessor of the ealdorman in the scírgemót or county-court, and ecclesiastical causes, except such as were reserved for the decision of the episcopal synods, were subjected, like those of the laity, to the judgment of the scírþegnas or shire-thanes: thus even probate of wills was given in the county-court. This participation of bishops in the administration of justice, useful and necessary in the early ages of Christianity, was very probably derived from the functions of their heathen predecessors, the priests of the ancient gods. The old Germanic placita were held, as is well known, under the presidency of the priests, and these were courts of law as well as courts of parliament. In fact there is no reason whatever to doubt that, long before the introduction of Christianity, the public pleadings were opened with religious ceremonies, and that the course of procedure was regulated by religious ideas[[877]]. The gods were present,—to secure the peaceful administration of justice, to sanction the finding of the freemen, to give a holy character to the act of doing right between man and man,—to terrify the perjurer and the criminal,—perhaps to justify the extreme penalty of the law in extreme cases; for it is probable that to the gods alone could the life of a great wrongdoer be offered, as an atonement to the Law, of which God is the root and guardian. The institution of the ordeal by which it was superstitiously supposed that the Almighty would reveal the hidden truth or falsehood of men, further tended to connect, first the pagan and afterwards the Christian priesthood with the administration of justice. In that most solemn appeal to the omniscience and justice of God, the clergy necessarily took the prominent part; and although we cannot believe that they always resisted the temptation offered by that most strange juggle, it may charitably be asserted that their intervention not rarely saved the innocent from the penal consequences of an uncertain and painful test.
I have remarked in an earlier chapter[[878]] upon the union of the sacerdotal with the judicial power: at a very early stage of human society, the functions of the priest and the judge seem in general to have been inseparable; nor were they separated in fact upon the introduction of Christianity. In the very commencement of our æra, when the church really did exist as a brotherhood under the guidance of the first disciples, it was most natural that all contentions between members of the body should be settled by the arbitration of the whole church, or such as represented it. Litigation before the ordinary tribunals of the state, even could such have been resorted to by Christians, was little consonant with the doctrine of charity which was to prevail among the members of one mystical body, founded on almighty Love. Accordingly St. Paul himself[[879]] expressly forbids the disciples to carry their contentions before the secular authorities, implying that it is their duty to bring them to the consideration of their fellow-believers, that they may be amicably settled, in the spirit of forbearance and Christian moderation. And as persecution gradually threatened the terrified community, this course became unavoidable: it was impossible for the Christian to submit to the pagan forms of the tribunals, yet to refuse these was to proclaim the adoption of a proscribed and illegal association. The establishment of a hierarchy among the Christians themselves supplied some remedy for this difficulty, and it was soon decided that the disputes of the brotherhood were to be brought before the presbyter or bishop as a judge,—a course which in itself was natural in countries where the Romans had permitted the existence of some authority in the national tribunals, and had not insisted upon dragging every cause before their own officers. The peculiar situation of the Christians themselves as citizens of a new state—viz. the religious state—tended to consolidate this system. Christianity took cognizance of motives, of acts entirely beyond the reach of mere human law, and the community claimed a right to judge of the internal as well as the external state of its members. Immorality, not cognizable by any positive law, was a proper subject for the animadversion of a body whose duty it was to exclude from communion all who pertinaciously refused to perform the duties of their profession. It was thus that a twofold jurisdiction became lodged in the church,—and in the bishop or presbyter, as its representative in each particular locality,—long before the reception of Christianity among the religiones licitae transformed the customs of an obscure sect into recognised laws of the empire. But no sooner had the terms of the great alliance been arranged, than the state hastened to give the imperial sanction to what had hitherto been merely the bye-laws of a sodality: and the decisions of a council, if confirmed by the assent of the emperor, were at once raised to the rank of imperial laws. Thus the council of Carthage in 397 had threatened with excommunication any clergyman who should pursue another before the secular tribunals; and this decree, repeated in 451 by the fourth general Council—that of Chalcedon—had received the sanction of Marcianus, and become part of the law of the Roman empire. The jurisdiction of the bishops in the affairs of the clergy was thus rendered legal; but it was at a later period extended so as to include a much wider sphere. Justinian not only commanded all causes in which monks were concerned to be referred to the bishop of the diocese, but made him the only legal channel of proceedings even in cases where laymen had claims against the clergy[[880]].
Arbitration by the bishop had thus grown up into a custom, at first absolutely necessary, and afterwards always desirable, in a society like the Christian. Accordingly Constantine permitted all contentions to be so settled. But it was a rule of Roman law that there could lie no appeal whatever from a voluntary arbitration; and in pursuance of this rule, in the year 408, Arcadius and Honorius decreed that the sentences of bishops should be without appeal[[881]]. In this manner was the ecclesiastical jurisdiction founded in the Greek and Roman empires.
Happily for ourselves, this could not be admitted without modification in the Germanic states. Had it indeed been so, every trace of independence would long since have perished, and the whole civilized world have found itself subject to the principles and regulations of an effete scheme of jurisprudence. The antagonism of the Germanic customary right it was that saved us from the consequences which must have followed the universal prevalence of maxims elaborated by another race, and sprung out of a different social condition. It was the conflict of the Roman and Ecclesiastical laws with those of the Teutonic victors that produced that modified system of relations, under which, by the blessing of Providence, civilization has been maintained, the general well-being of mankind advanced, and human society firmly established throughout Europe, on a basis susceptible of progressive, perhaps illimitable improvement. Useful as a counter-check to the somewhat disruptive system of the Germans, the Roman and Ecclesiastical laws have yet never been able to destroy the nationality, or abridge the freedom, of our races; while they have tended to give consistency and method to our own customs, and to reduce into form and harmony what, but for them, might have been liable to fall asunder from its own internal vigour. Like the centripetal and centrifugal forces, they have balanced one another, and held our social state together as one majestic and consistent whole.
The method of doing justice between man and man, which was the very foundation-stone of the Teutonic polity, was in direct opposition to the doctrines of Roman jurists and the practice of the church. Justice went out from among the people themselves, not from the king or the bishop. The people spoke both as to fact and law, the ancient customary law; nor did they at any time allow their relations as Christians to abrogate the older rights they had possessed as citizens, where the exercise of these was clearly compatible with the recognition of the former. In respect to their religion, they duly submitted to the ecclesiastical authority, made confession, performed penance, and hearkened to advice tendered by qualified functionaries; but they nevertheless still met in their folk- and shire-moots to hold plea, declare folk-right, and superintend its execution by their national officers. Not even to the clergy themselves did they accord an immunity from the universal duties of freemen: and although they may have been disposed to acquiesce in the claim to be quit of personal military service, they never excused suit and service to the popular courts. Only when the relation of a cleric to his superior was that of an unfree man to his lord, did the state release him from this duty, or rather did the state hold him unworthy of this privilege.
The existence of such a body as the English clergy could not possibly be ignored. As organized agents of a system which professed to exercise a right of rule over the most secret desires and motives of men,—as students distinguished by their knowledge, or remarkable for their piety,—as landlords, in the enjoyment of great wealth, and chiefs of numerous dependents,—lastly as advisers and ministers of the ruling class, or intermediaries in the intercourse with foreign states,—they formed a power whose claims to attention could not be neglected. But their social position itself was that which brought them continually in relation with the other aggregates of freemen, and they were therefore called upon to take their place with other landowners, lords, or ministerials in the popular councils.
With all their attachment to the customary law and the national franchises, the Anglosaxons never lost sight of the fact that Christianity had introduced new social relations: they were ready to admit that there was now a godcund or divine as well as woroldcund or secular right; and in the exposition of the former they were willing to follow the guidance of those who professed to make it their especial study. Moreover the system of Anglosaxon jurisprudence depended very much upon the trustworthy character of witnesses, and the ordination of the clergy was justly taken to have imposed upon them the obligation of a peculiar truthfulness. The testimony of members of their class became therefore a very important thing in the sight of the moot-thanes who might have disputed points to settle, or who, in mixed causes, might shrink from doing wrong to the venerable body by too strict an application of the principles by which themselves were bound. Lastly, as there was a merciful tendency among the people to have disputes settled by arbitration and on equitable grounds, rather than by the strict rules of law, the clergy, whose jurisdiction extended to the motives of Christians rather than the mere acts of citizens, were valuable intermediaries between contending parties. The dignity of the class—the honor clericalis—was cheerfully recognised, the wisdom and goodness of the body acknowledged, and the propriety of being to a great degree guided by the experience and enlightenment of their leaders, readily conceded. Accordingly the bishop became an inseparable assessor of the Frankish count and of the Anglosaxon ealdorman in their respective courts[[882]].
The duties of a bishop as the officer of a state, and contradistinguished from his merely ecclesiastical functions, were to assist in the administration of justice between man and man, to guard against perjury, and to superintend the administration of the ordeals; further to take care that no fraud was committed by means of unjust measures, to which end he was made the guardian of the standards, and the judge of what work might be demanded from the serf; above all, to watch over the maintenance of the peace, and the upholding of divine as well as secular law[[883]]. The canons of the church did indeed prohibit the presence of bishops on trials which might involve the penalties of death or mutilation; and even the Constitutions of Clarendon, the object of which was to place the clergy on their proper and ancient footing towards the other members of the church and state, recognised this exemption[[884]]: but there is little reason to suppose that it was regarded by the Anglosaxons; indeed the popular courts had no power to pass sentences of so deep a dye, until long after the custom of the bishop’s presence therein had been established too firmly to be questioned. It was otherwise among the Franks, and we may perhaps attribute this to the strong nationality of the Frankish clergy, which indisposed them to claim their canonical immunity.
Another exemption which the bishops properly possessed, seems also to have been often neglected in this country,—that namely of personal service in the field. No doubt, all over Europe, as soon as the bishops became possessed of lands liable to the hereban, or military muster, they, like other lords, were compelled to place their armed tenants on foot, for the public service, when duly required: but their levies were mostly commanded by officers specially designated for that purpose and known under the names of advocati, vicedomini, or vidames; being in general nobles of power and dignity who assumed or accepted the exercise of the bishop’s royalties, the management of his estates, the administration and execution of his justice, and a remunerative share of his revenues and patronage. In Saxon England, however, we do not meet with these officers; and though it is probable that the bishop’s geréfa was bound to lead his contingent under the command of the ealdorman, yet we have ample evidence that the prelates themselves did not hold their station to excuse them from taking part in the just and lawful defence of their country and religion against strange and pagan invaders[[885]]. Too many fell in conflict to allow of our attributing their presence on the field merely to their anxiety lest the belligerents should be without the due consolations of religion; and in other cases, upon the alarm of hostile incursions, we find the levies stated to have been led against the enemy by the duke and bishop of the district.
Attention has been called in another chapter to the fact that the bishops did not universally (or indeed usually), make their residences in the principal cities[[886]]. A remarkable distinction thus arose between themselves and the prelates of Gaul and Germany. The latter, strong in the support of the burgesses, and identified with the urban interests, found means to consolidate a power which they used without scruple against the king when it suited their convenience, or which enabled them to extort from him the grant of offices that virtually rendered them independent of his authority. This was generally effected through the bishop’s obtaining the county, that is becoming the count, and thus exercising the palatine power in his city, as well as that which he might already possess iure episcopii, and as defensor urbis or patron of the municipality. This, rare indeed under Charlemagne, but not uncommon in the times which preceded and followed him, can at least not be proved to have taken place in England before the Conquest[[887]]. There is indeed one instance which might seem at first sight to contradict this assertion, but which upon closer investigation rather confirms it. We learn that certain thieves, having attempted a sacrilegious entry into the church of St. Eádmund, and being miraculously delivered into the hands of the authorities, were put to death by the orders of Ðeódred, then bishop of London and of Eastanglia[[888]]. This event took place after the conquest of the last-named province by Æðelstán, who about 930 drove the Danes from it or reduced them under his own power. At that time it appears uncertain whether the conquered kingdom had been duly arranged and settled, or whether any ealdorman had been appointed to govern it. If not, we must imagine that Ðeódred, the only constituted authority on the spot, acted at his own discretion in a case of urgency, without absolutely possessing the legal power to do so; that the act was in short one of those examples of what in modern times we understand by the term Lynch-law, that law which men are obliged to administer for themselves in the absence of the regular machinery of government. But it is further observable that, according to the terms of the legend itself, these thieves were taken in the manner, and consequently liable to capital punishment without any trial at all[[889]]; this justice we may suppose Ðeódred to have executed, and to its summary character we may attribute the regrets he expressed on the subject at a later time. It is also possible to account for the act by supposing that even at this early period the bishop possessed his sacu and sócn in the demesne of St. Eádmund, and that he proceeded to execute his thieves by his right as lord of the sócn: but there is no clear proof that the immunity did exist before the time of Cnut, and I therefore incline to the second explanation as the most probable. But if Ðeódred did not act in pursuance of possessing the comitial power, we may safely say that there is no evidence whatever of any Saxon bishop having exercised it[[890]]. As assessor to the ealdorman, the bishop was especially charged to attend to the due levy of tithe and other church imposts; but this was clearly because he had a direct interest in the law that decreed their punctual payment, and was certain not to connive at any neglect in its execution, which the ealdorman out of favour or carelessness might possibly have been disposed to do.