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$Title{History Of Europe During The Middle Ages
Part VIII}
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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 VIII

     In all the earlier stages of papal dominion the supreme head of the
church had been her guardian and protector; and this beneficent character
appeared to receive its consummation in the result of that arduous struggle
which restored the ancient practice of free election to ecclesiastical
dignities.  Not long, however, after this triumph had been obtained, the popes
began by little and little to interfere with the regular constitution.  Their
first step was conformable indeed to the prevailing system of spiritual
independency.  By the concordat of Calixtus it appears that the decision of
contested elections was reserved to the emperor, assisted by the metropolitan
and suffragans.  In a few cases during the twelfth century this imperial
prerogative was exercised, though not altogether undisputed. ^z But it was
consonant to the prejudices of that age to deem the supreme pontiff a more
natural judge, as in other cases of appeal.  The point was early settled in
England, where a doubtful election to the archbishopric of York, under
Stephen, was referred to Rome, and there kept five years in litigation. ^a
Otho IV. surrendered this among other rights of the empire to Innocent III. by
his capitulation; ^b and from that pontificate the papal jurisdiction over
such controversies became thoroughly recognized.  But the real aim of
Innocent, and perhaps of some of his predecessors, was to dispose of
bishoprics, under pretext of determining contests, as a matter of patronage.
So many rules were established, so many formalities required by their
constitutions, incorporated afterwards into the canon law, that the court of
Rome might easily find means of annulling what had been done by the chapter,
and bestowing the see on a favorite candidate. ^c The popes soon assumed not
only a right of decision, but of devolution; that is, of supplying the want of
election, or the unfitness of the elected, by a nomination of their own. ^d
Thus Archbishop Langton, if not absolutely nominated, was at least chosen in
an invalid and compulsory manner by the order of Innocent III., as we may read
in our English historians.  And several succeeding archbishops of Canterbury
equally owed their promotion to the papal prerogative.  Some instances of the
same kind occurred in Germany, and it became the constant practice in Naples.
^e

[Footnote z: Schmidt, t. iii. p. 299; t. iv. p. 149.  According to the
concordat, elections ought to be made in the presence of the emperor or his
officers; but the chapters contrived to exclude them by degrees, though not
perhaps till the thirteenth century.  Compare Schmidt, t. iii. p. 296; t. iv.
p. 146.]

[Footnote a: Henry's Hist. of England, vol. v. p. 324.  Lyttelton's Henry II.,
vol. i. p. 356.]

[Footnote b: Schmidt, t. iv. p. 149.  One of these was the spolium, or movable
estate of a bishop, which the emperor was used to seize upon his decease. p.
154.  It was certainly a very leonine prerogative; but the popes did not fail,
at a subsequent time, to claim it for themselves. Fleury, Institutions au
Droit, t. i. p. 425.  Lenfant, Concile de Constance, t. ii. p. 130.]

[Footnote c: F. Paul, c. 30.  Schmidt, t. iv. p. 177, 247.]

[Footnote d: Thus we find it expressed, as captiously as words could be
devised, in the decretals, l. i. tit. 6, c. 22.  Electus a majori et saniori
parte capituli, si est, et erat idoneus tempore electionis, confirmabitur; si
autem erit indignus in ordinibus scientia vel aetate, et fuit scienter
electus, electus a minori parte, si est dignus, confirmabitur.

     A person canonically disqualified when presented to the pope for
confirmation was said to be postulatus, not electus.]

[Footnote e: Giannone, l. xiv. c. 6; l. xix. c. 5.]

     While the popes were thus artfully depriving the chapters of their right
of election to bishoprics, they interfered in a more arbitrary manner with the
collation of inferior benefices.  This began, though in so insensible a manner
as to deserve no notice but for its consequences, with Adrian IV., who
requested some bishops to confer the next benefice that should become vacant
on a particular clerk. ^f Alexander III. used to solicit similar favors. ^g
These recommendatory letters were called mandats.  But though such requests
grew more frequent than was acceptable to patrons, they were preferred in
moderate language, and could not decently be refused to the apostolic chair.
Even Innocent III. seems in general to be aware that he is not asserting a
right; though in one instance I have observed his violent temper break out
against the chapter of Poitiers, who had made some demur to the appointment of
his clerk, and whom he threatens with excommunication and interdict. ^h But,
as we find in the history of all usurping governments, time changes anomaly
into system, and injury into right; examples beget custom, and custom ripens
into law; and the doubtful precedent of one generation becomes the fundamental
maxim of another.  Honorius III. requested that two prebends in every church
might be preserved for the Holy See; but neither the bishops of France nor
England, to whom he preferred this petition, were induced to comply with it.
^i Gregory IX. pretended to act generously in limiting himself to a single
expectative, or letter directing a particular clerk to be provided with a
benefice in every church. ^j But his practice went much further.  No country
was so intolerably treated by this pope and his successors as England
throughout the ignominious reign of Henry III. Her church seemed to have been
so richly endowed only as the free pasture of Italian priests, who were
placed, by the mandatory letters of Gregory IX. and Innocent IV., in all the
best benefices.  If we may trust a solemn remonstrance in the name of the
whole nation, they drew from England, in the middle of the thirteenth century,
sixty or seventy thousand marks every year; a sum far exceeding the royal
revenue. ^k This was asserted by the English envoys at the council of Lyons.
But the remedy was not to be sought in remonstrances to the court of Rome,
which exulted in the success of its encroachments.  There was no defect of
spirit in the nation to oppose a more adequate resistance; but the weak-minded
individual upon the throne sacrificed the public interest sometimes through
habitual timidity, sometimes through silly ambition.  If England, however,
suffered more remarkably, yet other countries were far from being untouched.
A German writer about the beginning of the fourteenth century mentions a
cathedral where, out of about thirty-five vacancies of prebends that had
occurred within twenty years, the regular patron had filled only two. ^l The
case was not very different in France, where the continual usurpations of the
popes produced the celebrated Pragmatic Sanction of St. Louis.  This edict,
the authority of which, though probably without cause, has been sometimes
disputed, contains three important provisions; namely, that all prelates and
other patrons shall enjoy their full rights as to the collation of benefices,
according to the canons; that churches shall possess freely their rights of
election; and that no tax or pecuniary exaction shall be levied by the pope,
without consent of the king and of the national church. ^m We do not find,
however, that the French government acted up to the spirit of this ordinance;
and the Holy See continued to invade the rights of collation with less
ceremony than they had hitherto used.  Clement IV. published a bull in 1266,
which, after asserting an absolute prerogative of the supreme pontiff to
dispose of all preferments, whether vacant or in reversion, confines itself in
the enacting words to the reservation of such benefices as belong to persons
dying at Rome (vacantes in curia). ^n These had for some time been reckoned as
a part of the pope's special patronage; and their number, when all causes of
importance were drawn to his tribunal, when metropolitans were compelled to
seek their pallium in person, and even by a recent constitution exempt abbots
were to repair to Rome for confirmation, ^o not to mention the multitude who
flocked thither as mere courtiers and hunters after promotion, must have been
very considerable. Boniface VIII. repeated this law of Clement IV. in a still
more positive tone; ^p and Clement V. laid down as a maxim, that the pope
might freely bestow, as universal patron, all ecclesiastical benefices. ^q In
order to render these tenable by their Italian courtiers, the canons against
pluralities and non-residence were dispensed with; so that individuals were
said to have accumulated fifty or sixty preferments. ^r It was a consequence
from this extravagant principle, that the pope might prevent the ordinary
collator upon a vacancy; and as this could seldom be done with sufficient
expedition in places remote from his court, that he might make reversionary
grants during the life of an incumbent, or reserve certain benefices
specifically for his own nomination.

[Footnote f: St. Marc, t. v. p. 41.  Art de verifier les Dates, t. i. p. 288.
Encyclopedie, art. Mandats.]

[Footnote g: Schmidt, t. iv. p. 239.]

[Footnote h: Innocent III. Opera, p. 502.]

[Footnote i: Matt. Paris, p. 267.  De Marca, l. iv. c. 9.]

[Footnote j: F. Paul on Benefices, c. 30.]

[Footnote k: M. Paris, pp. 579, 740.]

[Footnote l: Schmidt, t. vi. p. 104.]

[Footnote m: Ordonnances des Rois de France, t. i. p. 97.  Objections have
been made to the authenticity of this edict, and in particular that we do not
find the king to have had any previous differences with the see of Rome; on
the contrary, he was just indebted to Clement IV. for bestowing the crown of
Naples on his brother, the Count of Provence.  Velly has defended it, Hist. de
France, t. vi. p. 57; and in the opinion of the learned Benedictine editors of
L'Art de verifier les Dates, t. i. p. 585, cleared up all difficulties as to
its genuineness.  In fact, however, the Pragmatic Sanction of St. Louis stands
by itself, and can only be considered as a protestation against abuses which
it was still impossible to suppress.

     Of this law, which was published in 1268, Sismondi says, En lisant la
pragmatique sanction, on se demande avee etonnement ce qui a pu causer sa
prodigieuse celebrite.  Elle n'introduit aucun droit nouveau; elle ne change
rien a l'organisation ecclesiastique; elle declare seulement que tous les
droits existans seront conserves, que toute la legislation canonique soit
executee.  A l'exception de l'article v, sur la levees d'argent de la cour de
Rome, elle ne contient rien que cette cour n'eut pu publier elle-meme; et
quant a cet article, qui paroit seul dirige contre la chambre apostolique, il
n'est pas plus precis que ceux que bien d'autres rois de France, d'Angleterre,
et d'Allemagne, avaient deja promulgues a plusieurs reprises, et toujours sans
effet.  Hist. des Franc. v. 106.  But Sismondi overlooks the fourth article,
which enacts that all collations of benefices shall be made according to the
maxims of councils and fathers of the church.  This was designed to repress
the dispensations of the pope; and if the French lawyers had been powerful
enough, it would have been successful in that object.  He goes on, indeed,
himself to say, - Ce qui changea la pragmatique sanction en une barriere
puissante contre les usurpations de la cour de Rome, c'est que les legistes
s'en emparerent; ils prirent soin de l'expliquer, de la commenter; plus elle
etait vague, et plus, entre leurs mains habiles, elle pouvoit recevoir
d'extension.  Elle suffisait seule pour garantir toutes les libertes du
royaume; une fois que les parlemens etoient resolus de ne jamais permettre
qu'elle fut violee, tout empietement de la cour de Rome ou des tribunaux
ecclesiastiques toute levee de deniers ordonnee par elle, toute election
irreguliere, toute excommunication, tout interdit, qui touchoient l'autorite
royale ou les droits du sujet, furent denonces par les droits du sujet, furent
denonces par les legistes en parlement, comme contraires aux franchises des
eglises de France, et a la pragmatique sanction.  Ainsi s'introduisait l'appel
comme d'abus qui reussit seul a contenir la jurisdiction ecclesiastique dans
de justes bornes.]

[Footnote n: Sext. Decretal. l. iii. t. iv. c. 2.  F. Paul on Benefices, c.
35.  This writer thinks the privilege of nominating benefices vacant in curia
to have been among the first claimed by the popes, even before the usage of
mandats. c. 30.]

[Footnote o: Matt. Paris, p. 817.]

[Footnote p: Sext. Decret. l. iii. t. iv. c. 3.  He extended the vacancy in
curia to all places within two days' journey of the papal court.]

[Footnote q: F. Paul, c. 35.]

[Footnote r: Id. c. 33, 34, 35.  Schmidt, t. iv. p. 104.]

     The persons as well as estates of ecclesiastics were secure from
arbitrary taxation in all the kingdoms founded upon the ruins of the empire,
both by the common liberties of freemen, and more particularly by their own
immunities and the horror of sacrilege. ^s Such at least was their legal
security, whatever violence might occasionally be practised by tyrannical
princes.  But this exemption was compensated by annual donatives, probably to
a large amount, which the bishops and monasteries were accustomed, and as it
were compelled, to make to their sovereigns. ^t They were subject also,
generally speaking, to the feudal services and prestations.  Henry I. is said
to have extorted a sum of money from the English church. ^u But the first
eminent instance of a general tax required from the clergy was the famous
Saladine tithe; a tenth of all movable estate, imposed by the kings of France
and England upon all their subjects, with the consent of their great councils
of prelates and barons, to defray the expense of their intended crusade.  Yet
even this contribution, though called for by the imminent peril of the Holy
Land after the capture of Jerusalem, was not paid without reluctance; the
clergy doubtless anticipating the future extension of such a precedent. ^v
Many years had not elapsed when a new demand was made upon them, but from a
different quarter.  Innocent III. (the name continually recurs when we trace
the commencement of a usurpation) imposed in 1199 upon the whole church a
tribute of one-fortieth of movable estate, to be paid to his own collectors;
but strictly pledging himself that the money should only be applied to the
purposes of a crusade. ^w This crusade ended, as is well known, in the capture
of Constantinople.  But the word had lost much of its original meaning; or
rather that meaning had been extended by ambition and bigotry.  Gregory IX.
preached a crusade against the Emperor Frederic, in a quarrel which only
concerned his temporal principality; and the church of England was taxed by
his authority to carry on this holy war. ^x After some opposition the bishops
submitted; and from that time no bounds were set to the rapacity of papal
exactions.  The usurers of Cahors and Lombardy, residing in London, took up
the trade of agency for the pope; and in a few years, he is said, partly by
levies of money, partly by the revenues of benefices, to have plundered the
kingdom of 950,000 marks; a sum equivalent, perhaps, to not less than fifteen
millions sterling at present.  Innocent IV., during whose pontificate the
tyranny of Rome, if we consider her temporal and spiritual usurpations
together, seems to have reached its zenith, hit upon the device of ordering
the English prelates to furnish a certain number of men-at-arms to defend the
church at their expense.  This would soon have been commuted into a standing
escuage instead of military service. ^y But the demand was perhaps not
complied with, and we do not find it repeated.  Henry III.'s pusillanimity
would not permit any effectual measures to be adopted; and indeed he sometimes
shared in the booty, and was indulged with the produce of taxes imposed upon
his own clergy to defray the cost of his projected war against Sicily. ^z A
nobler example was set by the kingdom of Scotland: Clement IV. having, in 1267
granted the tithes of its ecclesiastical revenues for one of his mock
crusades, King Alexander III., with the concurrence of the church, stood up
against this encroachment, and refused the legate permission to enter his
dominions. ^a Taxation of the clergy was not so outrageous in other countries;
but the popes granted a tithe of benefices to St. Louis for each of his own
crusades, and also for the expedition of Charles of Anjou against Manfred. ^b
In the council of Lyons, held by Gregory X. in 1274, a general tax in the same
proportion was imposed on all the Latin church, for the pretended purpose of
carrying on a holy war. ^c

[Footnote s: Muratori, Dissert. 70; Schmidt, t. iii. p. 211.]

[Footnote t: Ibid., t. iii. p. 211.  Du Cange, v. Dona.]

[Footnote u: Eadmer, p. 83.]

[Footnote v: Schmidt, t. iv. p. 212.  Lyttelton's Henry II., vol. iii. p. 472.
Velly, t. iii. p. 316.]

[Footnote w: Innocent, Opera, p. 266.]

[Footnote x: M. Paris, p. 470.  It was hardly possible for the clergy to make
any effective resistance to the pope, without unravelling a tissue which they
had been assiduously weaving.  One English prelate distinguished himself in
this reign by his strenuous protestation against all abuses of the church.
This was Robert Grosstete, Bishop of Lincoln, who died in 1253, the most
learned Englishman of his time, and the first who had any tincture of Greek
literature.  Matthew Paris gives him a high character, which he deserved for
his learning and integrity; one of his commendations is for keeping a good
table.  But Grosstete appears to have been imbued in a great degree with the
spirit of his age as to ecclesiastical power, though unwilling to yield it up
to the pope: and it is a strange thing to reckon him among the precursors of
the Reformation. M. Paris, p. 754.  Berington's Literary History of the Middle
Ages, p. 378.]

[Footnote y: M. Paris, p. 613.  It would be endless to multiply proofs from
Matthew Paris, which indeed occur in almost every page.  His laudable zeal
against papal tyranny, on which some Protestant writers have been so pleased
to dwell, was a little stimulated by personal feelings for the Abbey of St.
Alban's; and the same remark is probably applicable to his love of civil
liberty.]

[Footnote z: Rymer, t. i. p. 599, &c.  The substance of English ecclesiastical
history during the reign of Henry III. may be collected from Henry, and still
better from Collier.]

[Footnote a: Dalrymple's Annals of Scotland, vol. i. p. 179.]

[Footnote b: Velly, t. iv. p. 343; t. v. p. 343; t. vi. p. 47.]

[Footnote c: Idem, t. vi. p. 308.  St. Marc, t. vi. p. 347.]

     These gross invasions of ecclesiastical property, however submissively
endured, produced a very general disaffection towards the court of Rome.  The
reproach of venality and avarice was not indeed cast for the first time upon
the sovereign pontiffs; but it had been confined, in earlier ages, to
particular instances, not affecting the bulk of the Catholic church.  But,
pillaged upon every slight pretence, without law and without redress, the
clergy came to regard their once paternal monarch as an arbitrary oppressor.
All writers of the thirteenth and following centuries complain in terms of
unmeasured indignation, and seem almost ready to reform the general abuses of
the church.  They distinguished however clearly enough between the abuses
which oppressed them and those which it was their interest to preserve, nor
had the least intention of waiving their own immunities and authority.  But
the laity came to more universal conclusions.  A spirit of inveterate hatred
grew up among them, not only towards the papal tyranny, but the whole system
of ecclesiastical independence.  The rich envied and longed to plunder the
estates of the superior clergy; the poor learned from the Waldenses and other
sectaries to deem such opulence incompatible with the character of evangelical
ministers.  The itinerant minstrels invented tales to satirize vicious
priests, which a predisposed multitude eagerly swallowed.  If the thirteenth
century was an age of more extravagant ecclesiastical pretensions than any
which had preceded, it was certainly one in which the disposition to resist
them acquired greater consistence.

     To resist had indeed become strictly necessary, if the temporal
governments of Christendom would occupy any better station than that of
officers to the hierarchy.  I have traced already the first stage of that
ecclesiastical jurisdiction, which, through the partial indulgence of
sovereigns, especially Justinian and Charlemagne, had become nearly
independent of the civil magistrate.  Several ages of confusion and anarchy
ensued, during which the supreme regal authority was literally suspended in
France, and not much respected in some other countries.  It is natural to
suppose that ecclesiastical jurisdiction, so far as even that was regarded in
such barbarous times, would be esteemed the only substitute for coercive law,
and the best security against wrong.  But I am not aware that it extended
itself beyond its former limits till about the beginning of the twelfth
century.  From that time it rapidly encroached upon the secular tribunals, and
seemed to threaten the usurpation of an exclusive supremacy over all persons
and causes.  The bishops gave the tonsure indiscriminately, in order to swell
the list of their subjects.  This sign of a clerical state, though below the
lowest of their seven degrees of ordination, implying no spiritual office,
conferred the privileges and immunities of the profession on all who wore an
ecclesiastical habit and had only once been married. ^d Orphans and widows,
the stranger and the poor, the pilgrim and the leper, under the appellation of
persons in distress (miserabiles personae), came within the peculiar
cognizance and protection of the church; nor could they be sued before any lay
tribunal.  And the whole body of crusaders, or such as merely took the vow of
engaging in a crusade, enjoyed the same clerical privileges.

[Footnote d: Clerici qui cum unicis et virginibus contraxerunt, si tonsuram et
vestes deferant clericales, privilegium retineant - praesenti declaramus
edicto, hujusmodi clericos conjugatos pro commissis ab iis excessibus vel
delictis, trahi non posse criminaliter aut civiliter ad judicium saeculare.
Bonifacius Octavus, in Sext. Decretal. l. iii. tit. ii. c. i.

     Philip the Bold, however, had subjected these married clerks to taxes,
and later ordinances of the French kings rendered them amenable to temporal
jurisdiction; from which, in Naples, by various provisions of the Angevin
line, they always continued free.  Giannone, l. xix. c. 5.]

     But where the character of the litigant parties could not, even with this
large construction, be brought within their pale, the bishops found a pretext
for their jurisdiction in the nature of the dispute.  Spiritual causes alone,
it was agreed, could appertain to the spiritual tribunal. But the word was
indefinite; and according to the interpreters of the twelfth century, the
church was always bound to prevent and chastise the commission of sin.  By
this sweeping maxim, which we have seen Innocent III. apply to vindicate his
control over national quarrels, the common differences of individuals, which
generally involve some charge of wilful injury, fell into the hands of a
religious judge.  One is almost surprised to find that it did not extend more
universally, and might praise the moderation of the church.  Real actions, or
suits relating to the property of land, were always the exclusive province of
the lay court, even where a clerk was the defendant. ^e But the ecclesiastical
tribunals took cognizance of breaches of contract, at least where an oath had
been pledged, and of personal trusts. ^f They had not only an exclusive
jurisdiction over questions immediately matrimonial, but a concurrent one with
the civil magistrate in France, though never in England, over matters incident
to the nuptial contract, as claims of marriage portion and of dower. ^g They
took the execution of testaments into their hands, on account of the legacies
to pious uses which testators were advised to bequeath. ^h In process of time,
and under favorable circumstances, they made still greater strides.  They
pretended a right to supply the defects, the doubts, or the negligence of
temporal judges; and invented a class of mixed causes, whereof the lay or
ecclesiastical jurisdiction took possession according to priority.  Besides
this extensive authority in civil disputes, they judged of some offences which
naturally belong to the criminal law, as well as of some others which
participate of a civil and criminal nature.  Such were perjury, sacrilege,
usury, incest, and adultery; ^i from the punishment of all which the secular
magistrate refrained, at least in England, after they had become the province
of a separate jurisdiction.  Excommunication still continued the only
chastisement which the church could directly inflict.  But the bishops
acquired a right of having their own prisons for lay offenders, ^j and the
monasteries were the appropriate prisons of clerks.  Their sentences of
excommunication were enforced by the temporal magistrate by imprisonment or
sequestration of effects; in some cases by confiscation or death. ^k

[Footnote e: Decretal, l. ii. t. ii.  Ordonnances des Rois, t. i. p. 40 (A. D.
1189).  In the council of Lambeth in 1261 the bishops claim a right to judge
inter clericos suos, vel inter laicos conquerentes et clericos defendentes, in
personalibus actionibus super contractibus, aut delictis aut quasi, i.e.,
quasi dilictis.  Wilkins, Concilia, t. i. p. 747.]

[Footnote f: Ordonnances des Rois, p. 319 (A.D. 1290).]

[Footnote g: Id., pp. 40, 121, 220, 319.]

[Footnote h: Id., p. 319.  Glanvil, l. vii. c. 7.  Sancho IV. gave the same
jurisdiction to the clergy of Castile, Teoria de las Cortes, t. iii. p. 20;
and in other respects followed the example of his father, Alfonso X., in
favoring their encroachments.  The church of Scotland seems to have had nearly
the same jurisdiction as that of England.  Pinkerton's History of Scotland,
vol. i. p. 173.]

[Footnote i: It was a maxim of the canon, as well as the common law, that no
person should be punished twice for the same offence; therefore, if a clerk
had been degraded, or a penance imposed on a layman, it was supposed unjust to
proceed against him in a temporal court.]

[Footnote j: Charlemagne is said by Giannone to have permitted the bishops to
have prisons of their own.  l. vi. c. 7.]

[Footnote k: Giannone, l. xix. c. 5, t. iii.  Schmidt, t. iv. p. 195; t. vi.
p. 125.  Fleury, 7me Discours, Mem. de l'Acad. des Inscript. t. xxxix. p. 603.
Ecclesiastical jurisdiction not having been uniform in different ages and
countries, it is difficult without much attention to distinguish its general
and permanent attributes from those less completely established.  Its
description, as given in the Decretals, lib. ii. tit. ii., De foro competenti,
does not support the pretensions made by the canonists, nor come up to the
sweeping definition of ecclesiastical jurisdiction by Boniface VIII. in the
Sext. l. iii. tit. xxiii. c. 40, sive ambae partes hoc voluerint, sive una
super causis ecclesiasticis, sive quae ad forum ecclesiasticum ratione
personarum, negotiorum, vel rerum de jure vel de antiqua consuetudine
pertinere noscuntur.]

     The clergy did not forget to secure along with this jurisdiction their
own absolute exemption from the criminal justice of the state. This, as I have
above mentioned, had been conceded to them by Charlemagne; and this privilege
was not enjoyed by clerks in England before the conquest; nor do we find it
proved by any records long afterwards; though it seems, by what we read about
the constitutions of Clarendon, to have grown into use before the reign of
Henry II.  As to France and Germany, I cannot pretend to say that the law of
Charlemagne granting an exemption from ordinary criminal process was ever
abrogated.  The False Decretals contain some passages in favor of
ecclesiastical immunity, which Gratian repeats in his collection. ^l About the
middle of the twelfth century the principle obtained general reception, and
Innocent III. decided it to be an inalienable right of the clergy, whereof
they could not be divested even by their own consent. ^m Much less were any
constitutions of princes, or national usages, deemed of force to abrogate such
an important privilege. ^n These, by the canon law, were invalid when they
affected the rights and liberties of holy church. ^o But the spiritual courts
were charged with scandalously neglecting to visit the most atrocious offences
of clerks with such punishment as they could inflict.  The church could always
absolve from her own censures; and confinement in a monastery, the usual
sentence upon criminals, was frequently slight and temporary. Several
instances are mentioned of heinous outrages that remained nearly unpunished
through the shield of ecclesiastical privilege. ^p And as the temporal courts
refused their assistance to a rival jurisdiction, the clergy had no redress
for their own injuries, and even the murder of a priest at one time, as we are
told, was only punishable by excommunication. ^q

[Footnote l: Fleury, 7me Discours.]

[Footnote m: Id.  Institutions au Droit Eccles., t. ii. p. 8.]

[Footnote n: In criminalibus causis in nullo casu possunt clerici ab aliquo
quam ab ecclesiastico judice condemnari, etiamsi consuetudo regia habeat ut
fures a judicibus saecularibus judicentur.  Decretal. l. i. tit. i. c. 8.]

[Footnote o: Decret. distinct. 96.]

[Footnote p: Collier, vol. i. p. 351.  It is laid down in the canon laws that
a layman cannot be a witness in a criminal case against a clerk. Decretal. l.
ii. tit. xx. c. 14.]

[Footnote q: Lyttelton's Henry II., vol. iii. p. 332.  This must be restricted
to that period of open hostility between the church and state.]

     Such an incoherent medley of laws and magistrates, upon the symmetrical
arrangement of which all social economy mainly depends, could not fail to
produce a violent collision.  Every sovereign was interested in vindicating
the authority of the constitutions which had been formed by his ancestors, or
by the people whom he governed.  But the first who undertook this arduous
work, the first who appeared openly against ecclesiastical tyranny, was our
Henry II.  The Anglo-Saxon church, not so much connected as some others with
Rome, and enjoying a sort of barbarian immunity from the thraldom of canonical
discipline, though rich and highly respected by a devout nation, had never,
perhaps, desired the thorough independence upon secular jurisdiction at which
the continental hierarchy aimed.  William the Conqueror first separated the
ecclesiastical from the civil tribunal, and forbade the bishops to judge of
spiritual causes in the hundred court. ^r His language is, however, too
indefinite to warrant any decisive proposition as to the nature of such
causes; probably they had not yet been carried much beyond their legitimate
extent.  Of clerical exemption from the secular arm we find no earlier notice
than in the coronation oath of Stephen; which, though vaguely expressed, may
be construed to include it. ^s But I am not certain that the law of England
had unequivocally recognized that claim at the time of the constitutions of
Clarendon.  It was at least an innovation, which the legislature might without
scruple or transgression of justice abolish.  Henry II., in that famous
statute, attempted in three respects to limit the jurisdiction assumed by the
church; asserting for his own judges the cognizance of contracts, however
confirmed by oath, and of rights of advowson, and also that of offences
committed by clerks, whom, as it is gently expressed, after conviction or
confession the church ought not to protect.  These constitutions were the
leading subject of difference between the king and Thomas a Becket. ^t Most of
them were annulled by the pope, as derogatory to ecclesiastical liberty.  It
is not improbable, however, that, if Louis VII. had played a more dignified
part, the see of Rome, which an existing schism rendered dependent upon the
favor of those two monarchs, might have receded in some measure from her
pretensions.  But France implicitly giving way to the encroachments of
ecclesiastical power, it became impossible for Henry completely to withstand
them.

[Footnote r: Ut nullus episcopus vel archidiaconus de legibus episcopalibus
amplius in Hundret placita teneant, nec causam quae ad regimen animarum
pertinet, ad judicium saecularium hominum adducant. Wilkins, Leges
Anglo-Saxon, 230.

     Before the conquest the bishop and earl sat together in the court of the
county or hundred, and, as we may infer from the tenor of this character,
ecclesiastical matters were decided loosely, and rather by the common law than
according to the canons.  This practice had already been forbidden by some
canons enacted under Edgar, id. p. 83, but apparently with little effect.  The
separation of the civil and ecclesiastical tribunals was not made in Denmark
until the reign of Nicholas, who ascended the throne in 1105.  Langebak,
Script. Rer. Danic. t. iv. p. 380 Others refer to St. Canut, about 1080. t.
ii. p. 209.]

[Footnote s: Ecclesiasticarum personarum et omnium clericorum, et rerum eorum
justitiam et potestatem et distributionem honorm ecclesiasticorum, in amnu
episcoporum esse perhibeo, et confirmo.  Wilkins, Leges Anglo-Saxon, p. 310.]

[Footnote t: Wilkins, Leges Anglo-Saxon. p. 323; Lyttelton's Henry II.;
Collier, &c.]