Friday, 30 August 2013

Ecclesiastical Courts

In Anglo-Saxon times justice had been administered by many small and local church courts. Afteur the Conquest William had not only conquered England but had conquered its Church as well replacing nearly all the Anglo-Saxon bishop with Norman ones. Justice in church courts now shifted to smaller number of bishops' courts administered by their archdeacons.


Church Courts  were formally established in England and made distinct from the king's courts by a royal ordinance issued by king William the Conqueror, in 1072 [Link]. He insisted that bishops should conduct ecclesiastical business in their own Courts Spiritual, and not in the Hundred courts. Prior to this ordinance bishops assisted in the hundred courts.

William I also insisted that the Church should presume no further rights in England than they enjoyed in Normandy.

Church courts tried cases based on Canon Law, which was itself based on the theory and theological concept of sin. Ecclesiatical Courts were a tribunal to administer ecclesiastical law, law based on canon law and church law, the Christian faith.

Church courts generally supervised all cases involving matrimonial law, testaments and wills, and they claimed jurisdiction over all cases involving the breaking of oaths or breach of promise. They handled the validity of contracts, and wills and burials. They also dealt with heresy, sacrilege, sorcery, usury, defamation, blasphemy, fornication, homosexuality, adultery and malicious damage to religious places. Because of the type of cases handled by these courts they were sometimes later referred to as the bawdy courts by the general populace.

The church also claimed the right of exclusive jurisdiction over all the clerics in the kingdom, and this could include almost anyone who worked for the church in almost any capacity. The jurisdiction extended to all crimes committed by clerics , including rape or theft and even murder. Clerics thus had full immunity from trial in and punishment by the king's courts. Exemption from civil jurisdiction  created problems of particular significance at that time, when matters like compensation for victims and their families had to be considered. The test used to prove that a person worked for the church was generally if they could show that could read and write.

The church also claimed the right of jurisdiction over all land held in Frankalmoign or Free-Alms.

In a church court it was the bishop or archdeacon who decided the sentence. Punishments arising from the church courts were generally far more lenient than those which arose from the king's courts. They could neither shed blood, nor generally sentence anyone to death involving the shedding of blood. Church courts could consign the guilty [sinner] to life imprisonment, and who could also be fed a diet which could mean a slow starvation to death. Otherwise most punishments involved the imposition of some kind of religious penance. As a last resort the bishop could also excommunicate. Clerics could be degraded [defrocked] and thereby lose their clerical immunity afterwards. However, it should be noted, no one could be tried for the same crime twice.

At the time of Henry II, in a given ecclesiastical diocese, there were generally two kinds of church court: the bishop's own court [later called the consistory court] and one or more archdeacons' courts, subordinate to it. The latter were presided over by archdeacons or rural deans.

Appeals generally went from lower to higher courts. Thus most appeals from the archdeacon’s court proceeded to the bishop's consistory court. And those arising  from cases in the consistory courts went to one of the ecclesiastical provincial courts, depending on whether the initiating courts were situated in the province of Canterbury or that of York. It was not necessary for a case to complete in a lower court before an appeal could be made to a higher authority.

Appeals from the two ecclesiastical provincial courts before went to the papal curia in Rome. Many popes of the time complained bitterly that they were being inundated with appeals from all over western Christendom, and were finding it difficult to perform their more important duty of  giving spiritual leadership.

It was this latter process of appeal to Rome that Henry wanted to stop by clause 8 of the Constitutions of Clarendon.

Ecclesiastical courts survived the Reformation in England.

But also note Lateran 2 1139 stated in Canon 20

Canon 20: Kings and princes were ordered to dispense justice in consultation with the bishops.

References

R. H. Helmholz; John Hamilton Baker (2003). The Oxford History of the Laws of England: The Canon law and Ecclesiastical jurisdiction from 597 to the 1640s. Oxford University Press. ISBN 978-0-19-825897-1.

William Stubbs. The Constitutional History of England, in Its Origin and Development. Cambridge University Press. pp. 283–. ISBN 978-1-108-03629-0.

Judiciary.gov.uk. Judges, Tribunals and Magistrates | Introduction to the justice system | History of the judiciary.

Theodore Frank Thomas Plucknett (2001). A Concise History of the Common Law. The Lawbook Exchange, Ltd. ISBN 978-1-58477-137-1.

Sir William Blackstone; St. George Tucker; Edward Christian (1803). Blackstone's Commentaries:   Volume  3 William Young Birch, and Abraham Small, no. 17, South Second-street, Robert Carr, printer. pp. 63–.

Archive.org. Frank M. Stenton: William the Conqueror and the Rule of the Normans. pp. 393-4



Frederick Pollock; Frederic William Maitland (1 October 2013). The History of English Law Before the Time of Edward I. The Lawbook Exchange, Ltd. pp. 75–. ISBN 978-1-58477-718-2.

Ojetti, B. (1908). Ecclesiastical Courts. In The Catholic Encyclopedia. New York: Robert Appleton Company.

Delany, J. (1908). Calumny. In The Catholic Encyclopedia. New York: Robert Appleton Company.

James A. Brundage (October 2010). The Medieval Origins of the Legal Profession. ReadHowYouWant.com. ISBN 978-1-4596-0580-0.

The Oxford History of the Laws of England Volume I
The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s
R. H. Helmholz
The Oxford History of the Laws of England

R. H. Helmholz; John Hamilton Baker (2003). The Oxford History of the Laws of England: The Canon law and Ecclesiastical jurisdiction from 597 to the 1640s. Oxford University Press. pp. 106–111. ISBN 978-0-19-825897-1.


The constitutional history and constitution of the Church of England
by Makower, Felix,
Cases handled by and under the Jurisdiction of the Ecclesiastical Courts


John Hamilton Baker (2012). The Oxford History of the Laws of England Volume II: 871-1216. Part III Angevin England: OUP Oxford. pp. 495–. ISBN 978-0-19-826030-1.



The Two Laws in England: The Later Middle Ages
W. R. Jones
Journal of Church and State
Vol. 11, No. 1 (Winter 1969), pp. 111-131
Published by: Oxford University Press


Richards, R. J. (2014). A Primer on the Origins and Implications of The Thomas Becket Affair. Lincoln Memorial University Law Review1(2), 2






James J. Spigelman (2004). Becket & Henry: The Becket Lectures. James Spigelman. pp. 108–10. ISBN 978-0-646-43477-3.

William I and the Church Courts
Colin Morris
The English Historical Review
Vol. 82, No. 324 (Jul., 1967), pp. 449-463

Legislation of the Medieval English Church
C. R. Cheney
The English Historical Review
Vol. 50, No. 198 (Apr., 1935), pp. 193-224
http://www.jstor.org/stable/552980


James C. Robertson (1859). Becket, archbishop of Cantebrury: A. Biography. John Murray. pp. 330–.

Oswald Joseph Reichel (1870). The See of Rome in the Middle Ages. See Footnote 1: Longmans, Green. pp. 369–.
 
Richards, R. J. (2014). A Primer on the Origins and Implications of The Thomas Becket Affair. Lincoln Memorial University Law Review, 1(2), 2.[PDF] from lmunet.edulmunet.edu [PDF]

The Two Laws in England: The Later Middle Ages
W. R. Jones
Journal of Church and State
Vol. 11, No. 1 (Winter 1969), pp. 111-131
Published by: Oxford University Press

Sir Simon Degge; Charles D. Ellis (1820). The Parson's Counsellor: With the Law of Tythes Or Tything ... C. Hunter. pp. 444–.

Robert SOUTHEY (1826). Letters to Charles Butler,Esq. comprising essays on the Romish religion and vindicating The Book of the Church. Letter VIII Thomas a Becket: John Murray. pp. 345–.


J. Collier (1708). An Ecclesiastical History of Great Britain, Chiefly of England: From the First Planting of Christianity, to the End of the Reign of King Charles the Second ... Charta Regis Wilhelmi Primi quae secernit Placita Ecclesiastica a Causis Civilibus : S. Keble. pp. 711–.

R. B. Outhwaite (2006). The Rise and Fall of the English Ecclesiastical Courts, 1500-1860. Cambridge University Press. ISBN 978-0-521-86938-6.

The History of Courts and Procedure in Medieval Canon Law
Wilfried Hartmann
Kenneth Pennington
Series: History of Medieval Canon Law
Copyright Date: 2016
Published by: Catholic University of America Press
Stable URL: http://www.jstor.org/stable/j.ctt1j0pt7h

Wilfried Hartmann; Kenneth Pennington (9 September 2016). The History of Courts and Procedure in Medieval Canon Law. CUA Press. ISBN 978-0-8132-2904-1.

Papal Exactions

The following are critical of the Church or Papal Courts describing the corruption and rackets that they eventually brought with them, and the Pope's "circus troupe" of officials that surrounded them.





Chaucer 

Chaucer, in particular, despised the following two evil characters in the entourage of papal officials that surrounded ecclesiastical courts in his Canterbury Tales.

The Summoner
The Summoner, the ecclesiastical official responsible for summoning sinners to attend the ecclesiastical courts. These officials would act like Gestapo agents or witchhunters, or inquisitors seeking out and hunting down those who had 'sinned" in a community they had come to, interviewing everyone and everybody till they had sought out enough persons. Of course, they would be bribable.

The Pardoner
The Pardoner sold papal indulgences and relics, kind of high-pressure salesman  or ecclesiastical quack who claimed that these "indulgences" pardoned the sins [both present and future] that one had committed in one’s life or was about to commit, promising a place for one's soul in Purgatory instead of Hell. 


The Canterbury Tales: ANALYSIS OF MAIN CHARACTERS. (n.d.). Retrieved from http://thebestnotes.com/booknotes/Canterbury_Tales/Canterbury_Tales39.html

Usury

From at least the twelfth century, prosecution of living usurers in England belonged to the church. Glanvill, author of the earliest systematic treatise on English law, denied any jurisdiction to the royal courts except at the usurer's death, when the king would be entitled to the usurer's chattels and the feudal lord would be entitled to his lands.4 The twelfth-century Dialogue of the Exchequer gave a similar account of English practice.5 The church was entitled to hear all pleas concerning usury during the lifetime of offenders, and to determine them freely according to the canon law.

The canon law to which the English common lawyers conceded jurisdiction was strict in definition. It defined usury as "whatsoever is taken for a loan beyond the principal."8 Any gain stemming from a loan, no matter how small, was considered usurious and unlawful

Decretum Gratiani, ed. A. Friedberg (Leipzig, 1879), dictum post C. 14, q.3, c.4: "Ecce evidenter ostenditur, quod quicquid ultra sortem exigitur usura est."

John Hamilton Baker (2012). The Oxford History of the Laws of England Volume II: 871-1216. 2. Usury: OUP Oxford. pp. 694–. ISBN 978-0-19-826030-1.


Synod of Winchester 1076

Louis Bail (1701) SUMMA CONCILIORUM OMNIUM TOMUS SECUNDUS. Synodus Wintoniensis 1076: Apud Joannem Manfre. pp. 703–.

Laici vero si de crimine suo accusati fuerint, et episcopo suo obedire noluerint, vocentur semel et ? et tertio. Si post tertiam vocationem emendari noluerint, excommunicentur
Any lay person accused of a [spiritual] crime and refuses to obey his bishop he may be summonsed [to appear before his bishop] once, again, and a third time; if after the third summons, he is unwilling to attend he may excommunicated.

Edward Augustus Freeman (1876). The reign of William the Conquereror. 1871. Synod of Winchester 1076: Clarendon Press. pp. 425–.

Monday, 26 August 2013

Gelasian Theory or the Theory of the Two Swords

Gelasius I on Spiritual and Temporal Power, AD 494

The Gelasian tradition is about the autonomy that each of the great powers, the Temporal and Spiritual powers, has within its own sphere.

Letter of Pope Gelasius to Emperor Anastasius on the superiority of the spiritual over temporal power:

There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power. Of these that of the priests is the more weighty, since they have to render an account for even the kings of men in the divine judgment. You are also aware, dear son, that while you are permitted honorably to rule over human kind, yet in things divine you bow your head humbly before the leaders of the clergy and await from their hands the means of your salvation. In the reception and proper disposition of the heavenly mysteries you recognize that you should be subordinate rather than superior to the religious order, and that in these matters you depend on their judgment rather than wish to force them to follow your will.

If the ministers of religion, recognizing the supremacy granted you from heaven in matters affecting the public order, obey your laws, lest otherwise they might obstruct the course of secular affairs by irrelevant considerations, with what readiness should you not yield them obedience to whom is assigned the dispensing of the sacred mysteries of religion. Accordingly, just as there is no slight danger in the case of the priests if they refrain from speaking when the service of the divinity requires, so there is no little risk for those who disdain - which God forbid -when they should obey. And if it is fitting that the hearts of the faithful should submit to all priests in general who properly administer divine affairs, how much the more is obedience due to the bishop of that see which the Most High ordained to be above all others, and which is consequently dutifully honored by the devotion of the whole Church.

Extracted from
James Harvey Robinson (1904). Readings in European History. Wildside Press LLC. pp. 72–. ISBN 978-1-4344-7084-3.


Later theological development

Unam Sanctam

The papal Bull on papal supremacy AD 1302

In this bull, pope Boniface teaches that there is only one Kingdom, the Church, and that the Church controls the spiritual sword, while the temporal sword is controlled by the State. The temporal sword is hierarchically lower than the spiritual sword. The superiority of the spritual sword allows the Church to influence politics and society at large.

Among other things the Bull lays down the dogmatic proposition of the unity of the Church, and of the necessity of belonging to it for eternal salvation.

The pope is supreme head of the Church, and a duty of submission to the pope by catholics necessarily arises, if they are to belong to the Church and if salvation is to be attained.

Kirsch, J.P. (1912). Unam Sanctam. In The Catholic Encyclopedia. New York: Robert Appleton Company
http://www.newadvent.org/cathen/15126a.htm

Church and State in Christian History
David Knowles
Journal of Contemporary History
Vol. 2, No. 4, Church and Politics (Oct., 1967), pp. 3-15
Published by: Sage Publications, Ltd.
 

Sunday, 18 August 2013

On the origins of the Doctrine of Papal Supremacy

The reforms within the Roman Catholic religion, concurrent with the matters under discussion in this blog, which led to the adoption of an extreme belief in the Doctrine of Papal Supremacy began around 1054, the year of the Great Schism between the Latin and Eastern orthodox churches, under pope Leo IX. Prior to this time popes like Gregory the Great thought it was entirely arrogant, indeed blasphemous and quite uncatholic for the pope to claim any kind of supremacy over and above his fellow bishops, and anyone calling himself the universal priest augured the coming of the Antichrist. Prior the bishop of Rome had the great distinction,of being "primus inter pares" ("first among equals"), without necessarily having effective power over other churches. Under Gregory VII the thinking was that the Pope and the Church should take the lead. Pope Cregory VII [Hildebrand] wanted to establish  a papal theocracy.


Prior to this programme of reform church thinking was Gelasian: the Two Swords theory of Church-State relations, where the church and secular wings in a given territory were to share responsibility, one the spiritual, and the other temporal, but that the temporal authority should allow those in charge of the spiritual to govern spritual affairs.

Pope Leo IX's programme included sweeping away corruption, including the condemnation of simony and enforcing the formal election of bishops according to canonical law. Later the Doctrine of Papal Supremacy culminated and became formally defined under pope Gregory VII, in the Dictatus Papae of around 1075, a list of 27 statements of the religious powers presumed by the pope, principles by which the church and its relations with secular states were to be governed.

That the Roman church was founded by God alone.
That the Roman pontiff alone can with right be called universal.
That he alone can depose or reinstate bishops.
That, in a council his legate, even if a lower grade, is above all bishops, and can pass sentence of deposition against them.
That the pope may depose the absent.
That, among other things, we ought not to remain in the same house with those excommunicated by him.
That for him alone is it lawful, according to the needs of the time, to make new laws, to assemble together new congregations, to make an abbey of a canonry; and, on the other hand, to divide a rich bishopric and unite the poor ones.
That he alone may use the imperial insignia.
That of the pope alone all princes shall kiss the feet.
That his name alone shall be spoken in the churches.
That this title [Pope] is unique in the world.
That it may be permitted to him to depose emperors.
That he may be permitted to transfer bishops if need be.
That he has power to ordain a clerk of any church he may wish.
That he who is ordained by him may preside over another church, but may not hold a subordinate position; and that such a one may not receive a higher grade from any bishop.
That no synod shall be called a general one without his order.
That no chapter and no book shall be considered canonical without his authority.
That a sentence passed by him may be retracted by no one; and that he himself, alone of all, may retract it.
That he himself may be judged by no one.
That no one shall dare to condemn one who appeals to the apostolic chair.
That to the latter should be referred the more important cases of every church.
That the Roman church has never erred; nor will it err to all eternity, the Scripture bearing witness.
That the Roman pontiff, if he have been canonically ordained, is undoubtedly made a saint by the merits of St. Peter; St. Ennodius, bishop of Pavia, bearing witness, and many holy fathers agreeing with him. As is contained in the decrees of St. Symmachus the pope.
That, by his command and consent, it may be lawful for subordinates to bring accusations.
That he may depose and reinstate bishops without assembling a synod.
That he who is not at peace with the Roman church shall not be considered catholic.
That he may absolve subjects from their fealty to wicked men.

It is of little wonder that the secular rulers largely refused to be subject to this programme of reform, and that this subsequently led to the many struggles in the 11th and 12th centuries and beyond between Church and State (Sacerdotium and Imperium), of which the Becket trouble was but one example. For in northern Europe, including England, the kings and emperors of those lands took for granted they they were the rulers of those lands and that it was their right to nominate and appoint bishops, and to oversee the church in their territories.

Although the Dictatus Papae were not widely circulated outside the papal curia, they permeated the thinking of the clerics of the times. And in order to enforce this doctrine the scholars of the Roman Catholic Church set about researching for full documentary evidence in support of this programme. They found it in the Donation of Constantine and amongst the False Decretals [Canon Law] of Pesudo Isidore, both essentially forgeries. And it was these documents were copied and widely circulated, and taught.

The reformed papacy needed a new systematic code of canon law. The purpose of the False Decretals was to bring about a situation where the pope in Rome, could wield complete universal (catholic) authority over the whole of the church and more. They argue that popes had always had this supreme authority since the beginning.   As was clear from the Dictatus Papae pope Gregory VII presumed without question the superiority of church over state as a fact which admitted of no discussion and of which he never doubted. Ecclesiastical government was to be centralized in Rome.

Anselm was the advocate for Papal Supremacy in England, and as a consequence ran into trouble with both the kings of his time, William Rufus and Henry 1st.





http://avalon.law.yale.edu/medieval/inv11.asp

The Papacy: Its History, Dogmas, Genius, and Prospects 
by the Rev. J. A. Wylie, LL.D. (1852, London)

Constitutions of Clarendon: Papal Supremacy.

Ian Stuart Robinson (1990). The Papacy, 1073-1198: Continuity and Innovation. Cambridge University Press. pp. 1–. ISBN 978-0-521-31922-5.

Ian Robinson (2004). The Papal Reform of the Eleventh Century: Lives of Pope Leo IX and Pope Gregory VII. Manchester University Press. pp. 1–. ISBN 978-0-7190-3875-4.


www.cristoraul.com
Inventing the Individual The Origins of Western Liberalism
LARRY SIEDENTOP
Publication Date: October 2014, Pages: 416
Published by: Harvard University Press
eISBN: 978-0-674-73624-5
Stable URL: http://www.jstor.org/stable/j.ctt9qdt2p

Papal selection before 1059 - Wikipedia
 
History of the papacy (1048–1257) - Wikipedia

Pope Leo IX - Wikipedia

Catholic Encyclopedia (1913) Pope St. Leo IX - Wikisource

Caesaropapism - Wikipedia

J. T. Gilchrist (1962). Canon Law Aspects of the Eleventh Century Gregorian Reform Programme. The Journal of Ecclesiastical History, 13, pp 21-38.
http://doi.org/10.1017/S0022046900065647

THE THEORY OF PAPAL MONARCHY IN THE THIRTEENTH CENTURY: The Contribution of the Canonists
J. A. WATT
Traditio
Vol. 20 (1964), pp. 179-317
Published by: Cambridge University Press
 


Church and State in Christian History
David Knowles
Journal of Contemporary History
Vol. 2, No. 4, Church and Politics (Oct., 1967), pp. 3-15
Published by: Sage Publications, Ltd.
Stable URL: http://www.jstor.org/stable/259819

Libertas Ecclesia and Papal Supremacy

Images and ideas in the Middle Ages: selected studies in history and art (Reform and Tradition in Mediaeval Christendom ed.). Ed. di Storia e Letteratura. 1983. pp. 533–

Jeffrey Burton Russell (2005). Dissent and Order in the Middle Ages: The Search for Legitimate Authority. Christianitas and Papal Supremacy: Wipf and Stock Publishers. pp. 3–. ISBN 978-1-59752-102-4.

Extract from
The Bull "Laudabiliter": A Problem in Medieval Diplomatique and History
Author(s): Maurice P. Sheehy
Source: Journal of the Galway Archaeological and Historical Society, Vol. 29, No. 3/4 (1961), pp.
45-70
Published by: Galway Archaeological & Historical Society

...
This can be understood only in the context of the all-embracing Christianitas  which formed medieval society. That God created man to undergo the trials of this life before taking him unto Himself and that He founded His Church for the purpose of leading man to this supernatural end was the most basic, and fundamentally unquestioned, reality in the human polity of the Middle Ages. The Church therefore was the most important society to which man belonged and its visible head, the Pope Vicarius Christi was the human being with the highest authority of all. The structure of this society was formed as a result of the apparent triumph of the Augustinian idea of the City of God, whereby the dualism that is ever-present in man, the age-old contest of nature and spirit, is harmonised by a reliance on an unearthly providence to guide and give purpose to the earthly motions of man as he struggles towards an unearthly object. St. Augustine's City of God is not identical with the hierarchical Church, which is the visible custodian of Christian truth. It is rather a transcendental reality co-extensive with eternity, and therefore timeless, which gives meaning to the unassimilated events of human life.
...
The orderly running of temporal affairs was a necessary corollary to man's final destiny. This task was entrusted to Caesar. But since all power was divine in origin, the authority of the temporal ruler must also have come from God. Within the medieval polity, therefore, there existed two societies, one with a higher and spiritual end, the other with a temporal and lesser aim. Both existed side by side and functioned as two aspects of the one Christianitas, which was above them both and encompassed the whole of humanity. As this Christian society developed the Pope began to receive and assume, both in theory and in practice, a unique position of pre-eminence. Was he not the visible head of that higher society, the Church, which was the custodian of the truth? Had he not been appointed Vicarius Christi? Was he not therefore the real head of the Christian world? The success and vigour of the Cluniac and Gregorian revival aided substantially in this development. The papacy, and subsequently the episcopal office, from a position of subservience to temporal rulers and worldly endeavour, arose to assume a moral leadership which found ample justification in the common Christian philosophy and religion. In the affairs of men the voice of God through His Church took on an ever more important role. The Pope and to a lesser degree the bishops became the protectors of the religious and the monks, they condemned and censured the unjust and compelled practical recognition of the divine law, both natural and positive. In the medieval world, therefore, the leaders of the Church were deeply involved in the political issues of the day. The tenth and eleventh-century spiritual renovation was much more a reform of the medieval Christianitas than just an ecclesiastical re -organisation within the Ecclesia.
...

St. Augustine of Hippo


Saint Augustine (Bishop of Hippo); trans Marcus Dods (1871). The City of God, Volume 1. T. & T. Clark.

Saint Augustine (Bishop of Hippo); trans Marcus Dods (1871). The City of God, Volume 2. T. & T. Clark.

St Anselm of Lucca

Advocate that Church should be purged of lay influence.





Islamic Ideas

Abdallah Laroui; Maxime Rodinson (1967). Abdallah Laroui. L'Idéologie arabe contemporaine: essai critique. Préfáce de Maxime Rodinson. F. Maspero.
Jean Jacques Waardenburg (2002). Islam: Historical, Social, and Political Perspectives. Abdallah Laroui: Walter de Gruyter. pp. 145–. ISBN 978-3-11-017178-5.

Images and ideas in the Middle Ages: selected studies in history and art. Ed. di Storia e Letteratura. 1983. pp. 533–.