The tendency to give pre-eminence to Rome appears again in an imperial letter to St Flavian, who, in the judgment of the East, was bishop of Antioch, but who was rejected by the West and Egypt, summoning him to Rome to be there judged by the bishops of the imperial city—a summons which St Flavian did not obey (Tillemont, Mém. Ecc.). In Africa in the beginning of the 5th century Apiarius, a priest who had been deposed by the bishop of Sicca for immorality, and whose deposition had been affirmed by the “provincial synod,” instead of further appealing to a general synod of Africa, carried his appeal to Pope Zosimus. The pope received the appeal, absolved him and restored him to the rank of priest, and sent a bishop and two priests as legates to Africa with instructions to them to hear the cause of Apiarius anew and for execution of their sentence to crave the prefect’s aid; moreover, they were to summon the bishop of Sicca to Rome and to excommunicate him, unless he should amend those things which the legates deemed wrong. The upshot of a long conflict was that the papal claim to entertain appeals from Africa by priests and deacons was rejected by the African bishops, who in their final synodical epistle also repudiate in terms any right of appeal by African bishops to “parts beyond the seas” (see Hefele, Councils, bk. viii.).
The story of the administrative development of the Church in the 5th century is mainly the story of the final emergence and constitution of the great “patriarchates,” as authorities superior to metropolitans and provincial synods. In consequence of the occupants of the thrones of Constantinople and Alexandria falling successively into opposite heresies, the question arose how “patriarchs” were to be judged. In both cases, as it seems, an attempt was made by the bishop of Rome to depose the erring patriarch by his authority as primate of Christendom, acting in concert with a Western synod. In both cases, apparently, an oecumenical synod ignored the Roman deposition and judged the alleged offences of the respective patriarchs in first and last instance. The third and fourth oecumenical synods (Ephesus, 431; Chalcedon, 451) were primarily tribunals for the trials of Nestorius and Dioscorus; it was secondarily that they became organs of the universal episcopate for the definition of the faith, or legislative assemblies for the enactment of canons. Nothing is more remarkable than their minute care as to observance of rules of procedure. In both cases, imperial assessors were appointed. At Ephesus the Count Candidian was commissioned to maintain order, but took little part in the proceedings. At Chalcedon, on the other hand, the imperial commissioners decided points of order, kept the synod to the question, took the votes and adjourned the court. But the synod alone judged and pronounced sentence. No oecumenical synod has tried a patriarch of Old Rome while yet in the flesh. The fifth oecumenical council came nearest to so doing, in the case of Vigilius. That pope, although in Constantinople, refused to attend the sittings of the council. He was cited three times, in the canonical manner, and upon not appearing was threatened in the third session with anathema (Hefele, Councils, sect. 268 ad fin.). He was not, however, charged with direct heresy, as were Nestorius and Dioscorus, and the synod seems to have hesitated to deal stringently with the primate of Christendom. In the seventh session it accepted the suggestion of Justinian, merely to order the name of Vigilius to be removed from the liturgical prayers, at the same time expressing its desire to maintain unity with the see of Old Rome (Hefele, sect. 273). After the council, Justinian banished the pope to Egypt, and afterwards to an island, until he accepted the council, which he ultimately did (ib. 276). The sixth oecumenical synod decreed that the dead pope Honorius should be “cast out from the holy Catholic Church of God” and anathematized, a sentence approved by the reigning pope Leo II. and affirmed by the seventh oecumenical synod in 787.
The constitution of the patriarchal system resulted in the recognition of a certain right of appeal to Rome from the larger part of the West. Britain remained outside that jurisdiction, the Celtic churches of the British islands, after those islands were abandoned by the Empire, pursuing a course of their own. In the East, Constantinople, from its principality, acquired special administrative pre-eminence, naturally followed, as in the case of “old Rome,” by judicial pre-eminence. An example of this is found in the ninth canon of Chalcedon, which also illustrates the enforcement upon a clerical plaintiff in dispute with a brother cleric of that recourse to the arbitration of their ecclesiastical superior already mentioned. The canon provides that any clerk having a complaint against another clerk must not pass by his own bishop and turn to secular tribunals, but first lay bare his cause before him, so that by the sentence of the bishop himself the dispute may be settled by arbitrators acceptable to both parties. Any one acting against these provisions shall be subject to canonical penalties. If any clerk have a complaint against his own bishop, he shall have his cause adjudicated upon by the synod of the province. But if a bishop or clerk have a difference with the metropolitan of his province let him bring it before the exarch of the “diocese” (i.e. the larger district answering to the civil “diocese”), or before the royal see of Constantinople, who shall do justice upon it. An “exarch” means properly a superior metropolitan having several provinces under him. In the next century Justinian (Nov. 123, c. 22) put the other patriarchates on the same footing as Constantinople. In c. 21 he gives either plaintiff or defendant an appeal within ten days to the secular judge of the locality from the bishop’s judgment. If there be no appeal, that judge is to give execution to the episcopal award. The growth of a special “original” jurisdiction at Constantinople, which perhaps developed earlier than the corresponding institution at Rome, may be traced to the fact that bishops from all parts were constantly in Constantinople. The bishop of Constantinople, even before he became properly “patriarch,” would often assemble a synod from these visiting bishops, which acquired the technical name of σύνοδος ἐνδημοῦσα, the synod of sojourners. This synod frequently decided questions belonging to other patriarchates.
The criminal jurisdiction thus exercised was generally speaking unlimited. It must be remembered that the forum externum of the ecclesiastical jurisdiction, in the sense in which we now use the phrase, of a judge deciding causes, was not then clearly marked off from the forum internum, or what afterwards came to be called the “tribunal of penance” (see Van Espen, Jus ecc. univ. pars iii. tit. iv. c. 1). Ecclesiastical proceedings by way of prosecution are called “criminal,” but they are primarily pro salute animae; whereas temporal criminal proceedings are primarily for the protection of the state and its citizens. Hence a Christian might be first punished in the civil courts and then put to public penance by the ecclesiastical jurisdiction, or vice versa: an apparently double system of punishment which the medieval Church, when the forum externum had become quite separated from the forum internum, sometimes repudiated (see Maitland, English Canon Law, 138, 139, 144).
Theodosius began the system of giving secular authority to Church tribunals. Thus, in 376, L. 23 Cod. Theodos. de. Episcopis, &c., subjected clerics for small offences pertaining to the observances of religion to bishops and synods. In 399, L. 1 Cod. de Religione provides that, when it is a matter of religion, it beseems the bishop to judge. A rescript of Constantius, in 355, inserted in Cod. Theod. lxii. de Epis. Ecc. et Cler., excluded bishops from accusations before secular judges and commanded such accusations to be speedily brought before the tribunal of other bishops. This law was probably only intended to be of a temporary character. Then comes the law of Gratian already noticed. Then, in 399, a law of Honorius (Cod. Theod. L. 1 de Religione): “As often as it concerns religion, it is meet that the bishops should judge, but other causes which belong to ordinary jurisdiction or to public law are to be heard in the ordinary courts (legibus oportet audiri).” L. 3 de Epis. Jud., at the end of the Theodosian Code, seems spurious (see the comment of Gothofredus in loco). But a constitution of Honorius in 412 (Cod. Theod. L. xli. de Epis. Ecc. et Cler.) provides that clerks are not to be accused except before the bishop. Bishops, priests, deacons, and every other “minister of the Christian law” of inferior degree, are taken from secular jurisdiction in criminal cases. The words are quite general; but it has been contended that they apply only to crimes of an ecclesiastical character (see Gothofredus in loc.; Van Espen, pars iii. tit. iii. c. 1, 10). In 425 a constitution of Theodosius II. provides that a recent decree of the usurper John should be disregarded and that clerks whom he had brought before secular judges should be reserved for the episcopal jurisdictions, “since it is not lawful to subject the ministers of the divine office to the arbitrament of temporal powers.” Justinian has a clearer perception of the demarcation between the spheres of spiritual and temporal law. The 83rd Novell provides that if the offence be ecclesiastical, needing ecclesiastical correction, the bishop shall take cognizance of it. The 123rd Novell (c. 21) provides that if a clerk be accused of a secular crime he shall be accused before his bishop, who may depose him from his office and order, and then the competent judge may take him and deal with him according to the laws. If the prosecutor have first brought him before the civil judge, the evidence is to be sent to the bishop, and the latter, if he thinks the crime has been committed, may deprive him of his office and order, and the judge shall apply to him the proper legal punishment. But if the bishop think the evidence insufficient, the affair shall be referred to the emperor, by way of appeal both from bishop and judge. If the cause be ecclesiastical, the civil judges are to take no part in the inquiry. The law includes with clerics, monks, deaconesses, nuns, ascetics; and the word “clerics” covered persons in minor orders, down to doorkeepers. It will be noticed that Justinian supposes that the prosecutor may begin the proceedings before the civil judge. A constitution of Alexius Comnenus I. seems to send him to the special forum of the accused.
Certain enactments of later Saxon times in England have been sometimes spoken of as though they united together the temporal and spiritual jurisdictions into one mixed tribunal deriving its authority from the State. In the latter Anglo-Saxon courts. part of the 10th century, laws of Edgar provided that the bishop should be at the county court and also the alderman, and that there each of them should put in use both God’s laws and the world’s law (Johnson’s English Canons, i. 411). This probably was, as Johnson suggests, that the bishop might enforce secular laws by ecclesiastical censure and the alderman ecclesiastical laws with secular punishment. But the two jurisdictions were kept separate; for by another law of Edgar (Leges Edg. c. v.) it was provided that “in the most august assembly the bishop and alderman should be present, and the one should interpret to the people the law of God, the other the laws of men.” Edgar, in a speech to St Dunstan and the bishops in synod (in 969), said, “I hold in my hands the sword of Constantine, you that of Peter. Let us join right hands and unite sword to sword” (Hardouin, Conc. tom. vi. p. 1, col. 675). The juxtaposition of the judicatures may, however, have led to some confusion between them.
As to appeals the mixed council of Cliff at Hoo (747) said they should go to the synod of the province. The only appeal to Rome in Saxon times was that of St Wilfrid, bishop of York, who appealed from the division of his see and his deposition for refusing to consent to it, and was heard in a Roman synod under the presidency of Pope Agatho. The synod found him unlawfully deposed and ordered his restoration. Upon his return to England, the Roman judgment was refused recognition and he was for a time imprisoned. Ten years later he was recalled to York, but refusing to consent to the division of his see was again deposed and again appealed to Rome. The appeal was heard at great length, in a synod of 703 under John VI., deputies from the archbishop of Canterbury being present. St Wilfrid was justified and was sent back to his see, with papal letters to the kings of Northumbria and Mercia. The Roman decree was again disregarded. At the council of “Nid” he was reconciled to the other bishops of the province, but not restored. In the end he was brought back to York, but not to the undivided see. The details of the case will be found in Wilkins, Concilia, in Mansi, Concilia, under the various councils named, and in Haddan & Stubbs, Councils and Eccl. Documents, vol. iii.
The penalties which the spiritual court could inflict, in the period between the edict of Milan and c. 854, were properly excommunication whether generally or as exclusion from the sacraments for a term of months or years or Penalties inflicted by ecclesiastical courts. till the day of death and (in the case of clerics) suspension or deposition. Gradually, however, doubtless by way of commutation of excommunication and of penance, temporal penalties were added, as scourging, banishment, seclusion in a monastery, fines. It is difficult to say how far some of these temporal penalties were penitential only or how far they could be inflicted in invitos. But the secular arm, from the time of Nicaea I., was in the habit of aiding spiritual decrees, as by banishing deposed bishops, and gradually by other ways, even with laymen. Scourging (although it had been a well-known punishment of the synagogue) was at first forbidden. Can. 28 (26) of the Apostolic Canons imposes deposition on any bishop, priest or deacon striking the delinquent faithful. In Africa, however, a contrary practice early sprang up (see St Augustine, Epist. clix. ad Marcellum al. cxxxiii.). The small council of Vannes in Brittany in 465 made it an alternative punishment for clerks convicted of drunkenness (Can. 13). Canon 13 of the first council of Orleans, which has been cited in this matter, seems to have no application. St Gregory the Great seems to assume that scourging and seclusion in a monastery are in the discretion of episcopal tribunals (see Epistles, lib. ii. ep. 11, 40, 42, 44, 45; lib. vii. ep. 11, 67; lib. xii. ep. 31, c. 4). The 16th council of Toledo (in 693) has been cited as if it visited certain very great sinners with scourging as an ecclesiastical punishment. In fact, it only approves the punishment as ordered by the Visigothic laws. An alleged decree of a council of Autun in 670 is part of a code of discipline for monasteries (see authorities cited by Hefele, Councils, sect. 290, towards the end). Banishment does not seem to have been inflicted by the spiritual court in invitum. Seclusion in a monastery seems first to have been used by the civil power in aid of the spiritual. The fifth canon of the council of Macon, in 584, forbids clergy to dress like laymen and imposes a penalty of thirty days’ imprisonment on bread and water; but this may be merely penitential. There is little evidence of the imposition of fines as ecclesiastical penalties; but there are references to the practice in the epistles of St Gregory the Great, notably in his instructions to St Augustine. Gregory III. copies from St Gregory I. Probably these also were by way of penance. Isolated examples in the early middle ages of metropolitans dealing with their suffragan bishops by imprisonment in chains were extra-canonical abuses, connected with the perversion of Church law which treated the metropolitan (who originally was merely convener of the provincial synod and its representative during the intervals of sessions) as the feudal “lord” of his comprovincials.
With the later 9th century we enter upon a new epoch, and by the time of Gregory VII., in the 11th century, the tribunals have fallen into the hands of a regular class of canonists who are in fact professional church-lawyers in orders. The changes due to the adoption of the False Decretals by Nicholas I. and the application of their principles by Hildebrand (afterwards Gregory VII.) are discussed in the article [Canon Law]. The later medieval system, thus inaugurated, may be considered (1) in its hierarchy, (2) in the subject matter of its jurisdiction, (3) in its penalties.
1. (a) It is a system of courts. Much that had been done by bishops, sine strepitu forensi et figura judicii, is now done in the course of regular judicial procedure. Again, the court takes the place of the synod. The diocesan synod Later medieval system. ceases to have judicial work. The court of the metropolitan takes the place of the provincial synod, except possibly for the trial of bishops, and even this becomes doubtful.