Church Law and the Administration of Justice

As we have seen, when Christianity gained influence in the Roman Empire, clerics started sitting as judges. The Church developed its own law, canon law, concentrating on those areas that proved most financially rewarding. One of many scandals in the early Church was that of clerics drawing up wills for people, and then assigning everything to themselves, an abuse that was stopped by the non-Christian Emperor Julian. But Julian was exceptional. Under later Christian emperors the abuse started again, and grew worse. Time and time again clergymen were criticised for frequenting the houses of rich widows and other women, for fawning over them and attempting to have themselves or their Church named as a beneficiary under their wills. In July 370, the Emperor Valentinian was obliged to tell the Bishop of Rome that he should stop male clerics and ascetics hanging around women's houses and worming their way into their affections. The abuse continued, families continued to see their inheritances disappear into the hands of the Church, and the next emperor withdrew Valentinian's ruling. The abuse of writing and executing wills grew even greater in the Middle Ages. Below is the first verse of a work by Peire Cardenal called Tartarassa ni voutor, with an English translation from the original Occitan.

In the centuries after Christianity was brought to the Anglo-Saxon occupants of the British Isles, native laws were amended and extended. New offences were created. Penalties were introduced, and became increasingly severe, for the crimes of fornication, adultery, eating meat during Christian fasts, and worshipping non-Christian gods. Servants who worked on a Sunday were liable to huge fines, and when they could not pay they were flogged with a three-thonged whip. Crimes committed on Sundays or on other Christian holy days attracted penalties that were twice the ordinary rate. By the laws of the Christian King Alfred, a man who stole property from a church was to have a hand chopped off in addition to the ordinary penalties — generally a fine equal to 12 times the value of the goods stolen. Payments by miscreants found their way into bishops" coffers. On the other hand bishops and other clergymen were granted legal immunities. A bishop's word, even unsupported by an oath, was incontrovertible.

Up until 1215 the Church supported trials by ordeal. The ordeal, which is found in many primitive systems of law, is an appeal to a deity for miraculous intervention in the administration of human justice. The two forms of ordeal consecrated by the early Christian Church were those of hot iron, and of water. In the former, a piece of hot iron was placed in the hand of the accused for a short length of time. The hand was then sealed, and inspected after a few days; if there was no blister, God had found him or her innocent. The ordeal of water, much used in England immediately after the introduction of Christianity, involved trussing the accused and lowering him into a pond; if he sank, the water "received him" and so he was innocent.

The Ordeal by Fire by Dierec Bouts the Elder (detail) Musées Royaux des Beaux-Arts, Brussels A Countess proves her husband's innocence to Emperor Otto III by holding red hot iron.

These ordeals were carried out under the direction of a priest, and were accompanied with much religious ritual, but there is little evidence that God was inclined to co-operate in these or any of the other techniques that the Church employed. Some priests seem to have arranged the ordeal so as to produce the result they wanted.

After 1215 the Church favoured trial by oath, another system that seems to have been worse than useless. It relied on the premise that God would not permit perjury from the lips of those who had sworn by his name to tell the truth. Unfortunately the premise was flawed, for perjury occurred with great frequency. Indeed, judging by contemporary reports we may imagine that God encouraged it. He certainly seems to have been remarkably tolerant of criminal clerics. As Charles Mackay put it, writing about popular delusions:

But of all the ordeals, that which the clergy reserved for themselves was the one least likely to cause any member of their corps to be declared guilty. The most culpable monster in existence came off clear when tried by this method. It was called cornsed, and was thus performed. A piece of barley bread and a piece of cheese were laid upon the altar, and the accused priest, in his full canonicals, and surrounded by all the pompous adjuncts of Roman ceremony, pronounced certain conjurations, and prayed with great fervency for several minutes. The burden of prayer was, that if he were guilty of the crime laid to his charge, God would send his angel Gabriel to stop his throat, that he might not be able to swallow the bread and cheese. There is no instance upon record of a priest having been choked in this manner.

It was because of the power of the Church and its reliance on its own methods that perjury was not regarded as a civil offence until modern times. Lying under oath supposedly incurred its own penalty from on high, so there was no need for the civil authorities to interfere. As a consequence perjury flourished for many centuries and people perjured themselves extensively. God's supposed willingness to deliver justice also resulted in judicial techniques such as trial by battle. The theory was that God would not permit a guilty party to win. So it was that guilty men who were good fighters could get away with any number of crimes against their fellows. Numerous attempts were made to abolish the right to trial by combat in England, but all failed until the exercise of this right led to a spectacular miscarriage of justice in the early nineteenth century. Trial by battle was abolished in the year 1819. Opportunities for the Church to pervert or deny justice were manifold. Criminals could escape trial and punishment, for example by claiming sanctuary. Merely by reaching certain holy places before being captured, criminals could gain respite and a free passage out of the country.

More often the balance was tipped the other way and the Church authorities decided against defendants even before their trial. Savonarola denounced clerical corruption, despotic rule and the exploitation of the poor. In 1498 he was accused of heresy in Florence — his real crime was to have declined a cardinal's hat in exchange for his silence. Because he was a priest Pope Alexander VI insisted on an ecclesiastical trial. He confessed to heresy after several sessions with the strappado. Papal commissioners were sent with their instructions. One later confided that they “arrived in Florence with the verdict in their bosoms”. Savaronola was tortured again and condemned, this time to be hanged in chains and then burned

Savonarola’s execution at the Piazza della Signoria, 1498 Savonarola was executed along with others (in white) accompanied by executioners (in black). They were roasted above the flames - a favourite Inquisition method

The Church enjoyed exclusive criminal jurisdiction over all clerics and those who offended against the Church. It was thus able to frame laws against those whom it saw as enemies — from atheist philosophers and Jewish money-lenders to poor wise-women. Any un-Christian beliefs and practices were quite simply treason against God — crimen læsae majestatis divinæ. The Church also enjoyed jurisdiction over civil matters that were held to have a spiritual aspect: matrimony, bastardy, probate, inheritance , defamation and every aspect of private morality. For centuries, until the Glorious Revolution of 1688, Church courts in Britain policed not only people's beliefs but also their mores.

One of the greatest scandals resulted from the Church's denial of the principle of equality before the law. It insisted on different courts and different punishments for its own officials. As early as the sixth century Pope Felix IV had acquired the right to try civil and criminal cases brought against his clergy. In future centuries this privilege was to be extended throughout the Western Church, largely by citing fictitious or fraudulent precedents. The privilege extended to almost anyone associated with the Church — anyone who had received the tonsure, even if they were not in Holy Orders. Monks for example were thus entitled to it. There were suspicions that friends and servants of churchmen were sometimes given the tonsure after their arrest. When Gervaise of Dene, a servant of the Archdeacon of Bedford, had been arrested for poaching in 1255, various churchmen turned up at his prison ready to excommunicate his gaolers. The prisoner was released when it was discovered that he had been tonsured — earlier the same day as his gaolers thought.

In England the privilege of benefit of clergy was the cause of the celebrated dispute between Henry II and his Archbishop of Canterbury, Thomas Becket. Henry had been irritated by cases of blatant clerical under-punishment. Around one in six men in Holy Orders were breaching the law with impunity. Even when the Church took an interest (for example, because its own interests were involved) punishment was likely to be minimal. Archdeacon Osbert of York was eventually defrocked for poisoning his own archbishop during Henry's reign, but that was the extent of his punishment. When Henry arrived back in England in 1163 he found that the number of murders committed by clerks in the previous six years was into three figures. Becket had made little attempt to punish clerical criminals, and where he had done so the punishments were wholly inadequate. For example, Becket had merely branded a cleric from Worcester who had seduced a girl and then murdered her father.

Henry's policy was to make the law equal for all. At the Council of Westminster in 1163 Henry demanded that guilty clerics (“criminous clerks”) be handed over to the ordinary courts to be given the same punishment as any layman. Becket opposed the King on the grounds that laymen must not judge clerics. Henry cited the ancient custom of the realm, and in the constitutions of Clarendon in 1164 he imposed a compromise system that the Church continued to oppose. Using the so-called benefit of clergy the Church continued to evade justice for centuries. Benefit of clergy was the privilege of being tried by ecclesiastical courts instead of the civil courts for any offence, however heinous. The mechanics changed over the centuries but in England the system operated broadly as follows. The cleric, who might be, say, a murderer, a rapist, a thief, or a child molester, would be brought before the civil court. There he would make his claim that he was entitled to benefit of clergy. His bishop, if he chose, could allow civil justice to be done — but he rarely if ever did. The clerk would then be handed over to the bishop's official to be tried by the ecclesiastical court. By modern standards the proceedings of the ecclesiastical courts were little better than farcical. The accused would undergo canonical compurgation, by which he declared his innocence before God, and sometimes produced friends to say that they believed him. His acquittal was generally automatic. A legal authority describes the practice as invidious and mischievous, and observes that after Becket: " ... for centuries yet to come the benefit of clergy will breed crime and impede the course of reasonable and impartial justice".

By the fifteenth century lay criminals were claiming benefit of clergy. All they needed to do was learn the so-called "neck verse" from the Bible, a display of literacy that was sufficient to establish the claimant as a clergyman, since only the clergy could read. Various abuses forced the legislature to interfere from time to time, and finally, in 1827, benefit of clergy was abolished. We can never know how many crimes went unpunished, how many times justice was denied, or how many victims died through the Church's denial of elementary natural justice, which enabled criminals to repeat their crimes. The Roman Church enjoyed privileges comparable to "benefit of clergy" throughout Europe, and protected these privileges jealously. Early in the seventeenth century Pope Paul V excommunicated the entire Venetian senate and placed the city under an interdict for daring to try clerics in the civil courts.

Church courts seem to have lacked any concept of natural justice, and even failed to take account of the absence of guilty intention. Thus for example, ecclesiastical courts conducted trials of wild animals. Acting in accordance with divinely inspired justice, bishops would excommunicate, execute or exile animals. We have already seen (page 367 ) that animals were hanged or burned alive for various crimes. On occasion Church courts would order reparation to be made for damage done to crops. Rats, mice, caterpillars and other creatures were tried in this way, the last case apparently taking place in 1733.

Comparing the civil courts of a country like England with the Church Courts up until the eighteenth century is revealing. Under the common law the accused was innocent until proved guilty. He was entitled to know the charges against him. He could not be tortured to elicit a confession. He was entitled to be judged by his peers. He had a right to challenge jurors without giving a reason. He could produce witnesses to support his case. He was generally allowed legal counsel, and was entitled to a public trial. The principle became accepted that it was better for a guilty person to go free than for an innocent one to be punished. None of these elementary safeguards featured in ecclesiastical courts in Europe. The accused was guilty as soon as charged, was often not told the details of the charge, was subject to torture, and was not permitted to examine witnesses or even see them. He was judged by professional clerical judges, was not permitted to call defence witnesses, had no right to legal council, and could expect to be tried in secret. Inquisitors like Conrad of Marburg held openly that "we would gladly burn a hundred if just one of them were guilty"

The English legal year still starts with a Christian service in a Cathedral

In summary, the Church has a spectacularly poor record in its use of the law. Its trials by ordeal, once authorised by God, are now recognised as absurd perversions of justice. The Church condemned people to death for crimes that no longer carry a gaol sentence (like heresy) or no longer even exist (like witchcraft). Priests went unpunished for the most heinous crimes, while animals were tried and executed. Corruption and inequity flourished in every area where the Church controlled and administered the law: illegitimate children were stigmatised, wills were forged, and marriages were validated or dissolved according to the most venal considerations.

The development of modern concepts of justice corresponded with the decline in influence of the Christian Church. Change was achieved slowly by stages, each stage being championed by freethinkers and opposed by the Churches, the usual pattern for most areas of reform. Yet the mainstream Churches seem to be not at all embarrassed by their record in the field of jurisprudence. St Thomas Becket is venerated as a saint. Both Roman Catholics and Anglicans make pilgrimages to his shrine at Walsingham, yet Becket's only significant act was to support the Church's teaching that the principle of equality under the law was contrary to God's will.

§ J. H. Baker, An Introduction to English Legal History, pp 10-11.

§ Mackay, Extraordinary Popular Delusions and the Madness of Crowds, p 675.

§ The Medicis, p 229.

§ Joseph and Frances Gies, Life in a Medieval Castle, Harper & Rowe (New York, 1979), p 143.

§ Henry did not claim the right to try 'criminous clerks' in the first instance in the King's courts. He wanted any cleric found guilty in an ecclesiastical court to be unfrocked and retried by a lay court. If found guilty, they would be given the same punishment as any layman.

§ Pollock and Maitland, History of English Law, vol. 1, p 445.

§ Pollock and Maitland, History of English Law, vol. 1, p 443.

§ Pollock and Maitland, History of English Law, vol. 1, p 447.

§ There seem to have been at least two separate verses referred to as the neck-verse. One is Psalm 51:1. Another is Psalm 16:5 "The Lord is the portion of mine inheritance and of my cup; thou maintainest my lot". This, the clerk would have recited with the bishop who was shearing him when he received the clerical tonsure — a practice that seems to have been a Roman adoption ceremony.

§ 7 & 8 George IV, chap 28.