$Unique_ID{how02062} $Pretitle{} $Title{History Of Europe During The Middle Ages Part I} $Subtitle{} $Author{Hallam, Henry} $Affiliation{} $Subject{footnote church upon tithes ecclesiastical ii clergy jurisdiction century charlemagne} $Date{} $Log{} 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.]