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The Church And The Empire by D. J. Medley


[Sidenote: The work of the Church reformers.]

The great movement in favour of Church reform, which had emanated from Cluny, had worked itself out along certain definite lines. It is important to ask how far it had succeeded in achieving its objects. We have seen that it was a movement of essentially monastic conception aimed at the purification of the secular clergy. And we have seen that the evil to be remedied had arisen from the imminent danger that the Church would be laicised and feudalised. From the highest to the lowest all ecclesiastical posts were at the disposition of laymen who treated them as a species of feudal fief, so that the holders, even if they were in Holy Orders (which was not always the case), regarded their temporal rights and obligations as the first consideration and, like all feudal tenants, tried to establish the right of hereditary succession in their holdings. Thus the work of the reformers had been of a double nature; it was not enough that they should aim at exorcising the feudal spirit from the Church, at banishing the feudal ideal from the minds of ecclesiastics: it was necessary to effect what was indeed a revolution, and to shake the whole organisation of the Church free from the trammels which close contact with the State had laid upon it. It began as a reformation of morals; it developed into a constitutional revolution. There was involved in the movement both an interference with what might be distinguished as private rights and also a readjustment of public relations. The reformers headed by the Pope ultimately decided to concentrate their efforts on the latter. Hence we may begin by enquiring how far they had succeeded in freeing episcopal elections from lay control.

[Sidenote: Episcopal appointments.]

There were three several acts of the lay authority in connection with the appointment of bishops to which the Church reformers took exception. The King or, by usurpation from him, the great feudal lord had acquired the right of nominating directly to the vacant see, to the detriment, and even the exclusion, of the old electoral rights of clergy and people; and while in some cases nobles nominated themselves without any thought of taking Holy Orders, frequently they treated the bishoprics under their control as appanages or endowments for the younger members of their family. Then, before the consecration, the bishop-nominate obtained investiture from the lay authority by the symbolic gifts of a ring and a pastoral staff or cross, not only of the lands and temporal possessions of the see, but also of the jurisdiction which emanated from the episcopal office. Finally, the prospective bishop took an oath to his lay lord, whether King or other, which was not only an oath of fealty such as any subject might be called upon to take, but was also an act of homage, and made him an actual feudal vassal and his church a kind of fief.

[Sidenote: Right of election.]

The result of the long struggle was that in the matter of episcopal appointments, speaking generally, the right of election was not restored to clergy and people, in whom by primitive custom it had been vested, but that the laity, with the possible exception of the feudatories of the see, were banished altogether, the rural clergy ceased to appear, and, after the analogy of the papal election by the College of Cardinals, the canonical election of the bishop in every diocese tends to be concentrated in the hands of the clergy of the cathedral. It was a long time, however, before the rights of the cathedral chapters were universally recognised. Henry I of England in his Concordat with Anselm (1107) and the Emperor Henry V in the Concordat of Worms (122) both promised freedom of election. Philip I and Louis VI of France seem to have conceded the same right without any formal agreement. But many of the great French feudal lords clung to their power over the local bishoprics, and in Normandy, in Anjou, and in some parts of the south nearly a century elapsed before the duke or count surrendered his custom of nominating bishops directly. But the freedom of election by the Canons of the cathedral, even when it was conceded, was little more than nominal. In England, France, and the Christian kingdoms of Spain no cathedral body could exercise its right without the King's leave to elect, nor was any election complete without the royal confirmation. By the Concordat of Worms elections were to take place in the presence of the King or his commissioners. By the Constitutions of Clarendon (1164) English bishops must be elected in the royal chapel. King John tried to bribe the Church over to his side in the quarrel with the barons which preceded Magna Carta, by conceding that elections should be free -- that is, should take place in the chapter-house of the cathedral; but even he reserved the royal permission for the election to be held, and the conge d'elire in England and elsewhere was accompanied by the name of the individual on whom the choice of the electoral body should fall. It was not the rights of the electors but the all-pervading authority of the Pope which was to prove the chief rival of royal influence in the local Church.

[Sidenote: Investiture.]

The quarrel between Church and State had centred round the ceremony of investiture, because in the eyes of the reformers the most scandalous result of the feudalisation of the Church was the acceptance at the hands of a layman of the spiritual symbols of ring and crozier. But as Hugh of Fleury had acknowledged in his tract on |Royal Power and Priestly Office,| investiture there must be so long as ecclesiastics held great temporal possessions. Here again some of the French nobles clung to the old anomalous form of investiture, but otherwise the example of the imperial lands, of the royal domain of France and of England was generally followed, the gifts of ring and staff were conceded to the Metropolitan, and where no special form of investiture by the sceptre was retained it was confused with the ceremony of homage. But in Germany and England investiture with the lands of the see preceded consecration, so that while on the one hand it was not a bishop who was being invested by a layman, on the other hand the refusal of investiture would practically prevent the consecration of any one obnoxious to the Crown.

[Sidenote: Homage and fealty.]

With regard to the feudal ceremony of homage a distinction came to be drawn by writers on the Canon Law between homage and fealty, and ecclesiastics were supposed to limit themselves to the obligations of the latter, which were those of every subject. The ceremony was not precisely the same as in the case of a lay noble being invested with a fief; but in France, at any rate, the Crown never really abandoned its claim to a feudal homage, and in any case ecclesiastics were expected to fulfil their feudal obligations. Even Innocent III acknowledged this in a decree (S43) of the Fourth Lateran Council (1215), and in interceding with Philip II of France on behalf of two bishops who had been deprived of their temporal possessions for some neglect of military duty, he argues that they were |ready to submit to the judgment of your Court, as is customary in such matters.|

[Sidenote: Regale.]

Arising out of these feudal relations certain rights over the possessions of ecclesiastics and ecclesiastical bodies were claimed by the Crown, which were the cause of serious oppression. According to the Canon Law, the bishop was only the usufructuary of the lands and revenues belonging to his see. The lands and revenues belonged to the Church. But inasmuch as these had been originally in most cases the gift of the Crown, the King claimed to deal with them in the method applied to feudal holdings. By the right of regale, on the vacancy of a see through death, resignation, or deprivation of the bishop, the royal officers took possession of the temporalities, that is, the land and revenues, and administered them for the profit of the Crown so long as the see was vacant. The Crown did not hesitate to use the episcopal patronage and to fill up vacant canonries and benefices with its own followers, and it often took the opportunity to levy upon the inhabitants of the diocese a special tax -- tallagium, tallage, or taille -- which a landlord had a right of exacting from his unfree tenants. It was to the interest of the Crown to prolong a vacancy, and attempts to limit the exercise of the right were of little practical effect.

[Sidenote: Right of spoils.]

An even more extraordinary claim was to the right of spoils (jus spolii or exuviarium). The canonical law forbidding the bishop to deal by will with the property attached to his see, was interpreted as applying to everything which he had not inherited. Thus the furniture of his house and the money in his chest were claimed as of right by the canons of his cathedral, but were often plundered by the crowd of the city or by the local nobles. These lawless proceedings provoked the interference of the royal officers, who succeeded in most cases in establishing the right of the Crown to all movables that the bishop left. The earliest notice of this royal claim in Germany is found in the reign of Henry V. It was in full use under Frederick I. William II is probably responsible for introducing both the regale and the jus spolii from Normandy into England. In France these were claimed by the feudal nobles as well as by the King. Bitter were the complaints made by the Church against the exercise of both rights. Kings and nobles clung to the regale as long as they could, for it meant local influence as well as revenue. In most cases, however, the right of spoils had been surrendered before the thirteenth century. It is to be remembered that ecclesiastics themselves exercised this right, bishops, for example, claiming the possessions of the canons and the parish priests in their dioceses. The Popes in relaxation of the Canon Law gave to certain bishops the right of leaving their personal property by will, and the canons also are found encouraging their bishop to make a will.

[Sidenote: Claims of the Clergy.]

As a set-off against these claims of the Crown upon the Church, the clergy also advanced certain claims. These touched the two important matters of taxation and jurisdiction. The Church claimed for her members that they should not be liable to pay the taxes raised by the secular authorities, nor should they have causes to which any ecclesiastic was a party tried in the secular courts.

[Sidenote: Immunity from lay taxation.]

In seeking freedom from lay taxation the Church did not ask that her members should escape their feudal obligations, nor even that they should contribute nothing to the exigencies of the State. The desire was merely that the clergy should be free from oppression and that the Church should be so far as possible self-governing. Thus Alexander III decreed in the third Lateran Council (1179), that for relieving the needs of the community, everything contributed by the Church to supplement the contributions of the laity should be given without compulsion on the recognition of its necessity or utility by the bishop and the clergy. Innocent III, in the fourth Lateran Council (1215), provided a further safeguard against lay impositions in demanding the permission of the Pope for any such levy. This does not mean that the clergy escaped taxation at the hands of the State; it merely means that while the Popes themselves heavily taxed them for purposes which it was often difficult to describe as religious, the price paid by the Crown for leave to tax the clergy was that a large portion of the money should find its way to Rome.

[Sidenote: Tithes from the laity.]

The clergy were not content with this merely negative position. Besides the right of self-taxation, they claimed that the laity should contribute to the needs of the Church. The chief permanent source of such contribution was the tithe, both the lesser tithes on smaller animals, fruits, and vegetables, and the greater tithes on corn, wine, and the larger animals. The Church also claimed tithes of revenues of every kind, even from such divers classes as traders, soldiers, beggars, and abandoned women. Much of the regular tithe had fallen into the hands of laymen by gift from Kings to feudal tenants, or from bishops to nobles and others, in return for military protection. These alienated tithes Gregory VII tried to recover; but his need for the help of the nobles against the Emperor forced him to stay his hand. The third Lateran Council (1179) forbade, on pain of peril to the soul, the transfer of tithes from one layman to another, and deprived of Christian burial any one who, apparently having received such a transfer, should not have made it over to the Church. This was a definite claim for tithes as a right of which the Church had only been deprived by some wrongful act. But in the very next year (1180) Frederick I, at the Diet of Gelnhausen, declared that the alienation of tithes as feudal fiefs to defenders of the Church was perfectly legitimate. Religious scruples, however, seem to have caused the surrender of tithes by many lay impropriators, especially to monasteries.

[Sidenote: Bequests.]

There were many other sources of wealth to the Church. An enormous quantity of property was bequeathed to pious uses by testators. The attendance of the clergy at the death-bed gave them an opportunity of which they were not slow to make use. The bodies of those who died intestate, as of those unconfessed, were denied burial in consecrated ground; all questions concerning wills were heard in the ecclesiastical courts. The civil power attempted to check the freedom of death-bed bequest, especially in Germany, where it was held that a valid will could only be made by one who was still well enough to walk unsupported. Another common source of revenue came from purchases or mortgages or other arrangements made with crusaders, in which advantage was taken of the haste of the lay men to raise funds for their expedition.

[Sidenote: Wealth of the Church.]

From these and other sources the wealth which poured in upon the Church was enormous. Individual gifts in money or in kind as thank-offerings on all sorts of occasions reached no small of the total; while no religious ceremony, from baptism to extreme unction and burial, could be carried out apart from the payment of an appropriate fee. The clergy constantly complained of spoliation, and no doubt individuals suffered much. The very laymen who, with the title of advocates, undertook to defend a cathedral or a monastery were often its worst robbers. But the endowments and revenues of the Church were so extensive as to raise in the minds of many reformers the question whether they were not largely responsible for her corruptions.

[Sidenote: Immunity from lay jurisdiction.]

The clergy also sought freedom from the jurisdiction of the secular courts; in other words, the Church claimed exclusive cognisance in her own tribunals of all matters concerning those in Holy Orders. The Decretiun of Gratian -- the text-book of Canon Law -- laid it down that in civil matters the clergy were to be brought before a civil judge, but that a criminal charge against a clerk must be heard before the bishop. Urban II, however, declares that all clergy should be subject to the bishop alone, and the Synod of Nimes (1096), at which he presided, stigmatises it as sacrilege to hale clerks or monks before a secular court. Alexander III (1179) threatens to excommunicate any layman guilty of this offence; while Innocent III points out that a clerk is not even at liberty to waive the right of trial in an ecclesiastical court in a matter between him and a layman, because the spiritual jurisdiction is not a matter personal to himself, but belongs to the whole clerical body. Finally Frederick II, on his coronation at Rome in 1220, forbade any one to dare to indict an ecclesiastic on either a civil or a criminal charge before a secular tribunal. But meanwhile the frequent perpetration of violent crimes by those who wore the tonsure made it imperative in the interests of social order that the Church should not be allowed to defend these criminals in order to save her own interests.

The fiercest struggle took place in England. Henry II did not deny the right of the Church to jurisdiction over her members; but he demanded that clerks found guilty of grave crime should be unfrocked by the ecclesiastical court, and that then, being no longer clerks, they should be handed over to the royal officers, by whom they should be punished according to their deserts. Archbishop Thomas Becket answered that it was contrary to justice and the Canon Law that a man should be punished twice for the same offence; that the punishment by the Church involved the offender's damnation and was therefore quite adequate; and that finally he himself was officially bound to defend the liberties of the Church even to the death. Henry II attempted to solve the difficulty by issuing the Constitutions of Clarendon (1164), the third clause of which decreed that the royal officer should determine whether any matter in which a clerk was concerned should be tried in the secular or the ecclesiastical court, and that even if it went to the latter, the King's officer should be present at the hearing. As the price, however, of his reconciliation with the Papacy after Becket's death, Henry was obliged to withdraw the Constitutions.

The position of the Church on this question was clearly stated by Pope Celestine III in 1192. If a clerk had been lawfully convicted of theft, homicide, perjury, or any capital crime, he should be degraded by the ecclesiastical judge; for the next offence he should be punished by excommunication, and for the next by anathema; then, since the Church could do no more, for any subsequent offence he might be handed over to the secular power to be punished by exile or in any other lawful manner. This, of course, was a direct licence to the ill-disposed clergy to commit more crimes than were allowable for a layman; but the laity had to proceed cautiously in opposing it. In 1219 Philip II of France demanded that a clerk who had been degraded should not be protected by the Church from seizure outside ecclesiastical precincts by the royal officers with a view to his trial in a secular court. But here again, both at his coronation as Emperor in 1220 and again in the code of laws drawn up for his kingdom of Sicily in 1231, Frederick II confirmed the privileges of the Church in the matter of jurisdiction. On the latter occasion, however, he did reserve cases of high treason for the royal court. Almost the only immediate effect of these protests on the part of the State was that Popes and Councils enjoined on the ecclesiastical courts greater severity of treatment of offenders, even to the extent of perpetual imprisonment in the case of those whom the lay tribunals would have condemned to death.

[Sidenote: Increase of ecclesiastical jurisdiction.]

But this exclusive jurisdiction in all matters that concerned her own members was only a part of the authority claimed and exercised by the Church in the sphere of justice. Synods of the clergy did not hesitate to take part in the enforcement of civil law and order, and threatened with severe ecclesiastical penalties all who did not observe the Truce of God, or who were guilty of piracy, incendiarism, or false coining. At one time they attempted thus to suppress usury and trial by ordeal, which at other times they allowed. They even legislated against tournaments and against the use of certain deadly weapons in battle by one Christian nation against another. But apart from the special circumstances which called out and so justified the legislation, the Church claimed at all times jurisdiction over certain classes of lay persons and in certain categories of cases. Thus all persons needing protection, such as widows, minors, and orphans, came under the cognisance of the ecclesiastical courts, and to these the Popes added Crusaders. Furthermore, all cases which could be regarded as in any way involving a possible breach of faith were also claimed as belonging to the jurisdiction of the Church, and these included everything concerning oaths, marriages, and wills. Naturally the Church had cognisance of all cases of sacrilege and heresy. These excuses for interference in the transactions of daily life were susceptible of almost indefinite extension, especially since the Church asserted a right to hear cases of all sorts in her courts on appeal on a plea that civil justice had failed. Even so stout a champion of the Church as St. Bernard complains bitterly that all this participation in worldly matters tends to stand between the clergy and their proper duties. The secular powers constantly protested. Even when Alfonso X in his legal code allowed that all suits arising from sins should go to ecclesiastical courts, the Cortes of Castile constantly protested. The chief attempts to check the growth of ecclesiastical jurisdiction were made in France. Even under Louis IX the barons combined to resist the encroachments of the Church, and resolved that |no clerk or layman should in future indict any one before an ecclesiastical judge except for heresy, marriage, or usury, on pain of loss of possessions and mutilation of a limb, in order that,| they add with a justifiable touch of malice, |our jurisdiction may be revived, and they [the clergy] who have hitherto been enriched by our pauperisation may be reduced to the condition of the primitive Church, and living the contemplative life they may, as is seemly, show to us who spend an active life miracles which for a long time have disappeared from the world.|

[Sidenote: Simony.]

The result, then, of the efforts of the Church reformers to free the Church from the State had been an enormous increase in the power of the Church. But these efforts were in the beginning only a means to an end, and that end was the purification of the Church itself. We have, therefore, to ask how far the attempts to get rid of simony and to enforce the celibacy of the clergy had met with permanent success. Before the movement in favour of reform the traffic in churches and Church property was indulged in by laity and clergy alike. Not only Kings and nobles but bishops and abbots received payments from those who accepted ecclesiastical preferment at their hands, and were by no means always careful that ecclesiastical offices were acquired by those in Holy Orders. Church property, in fact, was treated by those who represented the original donors as if it were the private property of the patron. The reform movement of the eleventh century, at any rate, succeeded in making a distinction between the right of ownership and the right of presentation, and in limiting the power of the patron to the latter. Beyond this nothing much was permanently effected in checking the traffic in things ecclesiastical. Preferment continued to be used as patronage: offices and dignities in the Church were given to children, and preferments were accumulated upon individuals until pluralities became a standing grievance. Councils and Popes still thundered against simony, but with the extending authority of Rome the staff of the papal curia was increased, and the traffic in things ecclesiastical at Rome was notorious.

[Sidenote: Clerical marriage.]

The efforts of the reformers in checking clerical marriage had not been much more successful. The law now stood as follows: the first two Lateran Councils (1123, 1139) prohibited matrimony to priests, deacons, and sub-deacons; but to those only in one of the three minor orders of the Church it was still allowed, although Alexander III ultimately decreed that marriage should cause them to forfeit their benefice. It was some time, however, before these decrees could be enforced, and even the Popes found themselves compelled to deal leniently with offending clergy. Thus Pascal II allowed to Archbishop Anselm that a married priest not only might, but must, if applied to, minister to a dying person. Attempts were made to forbid ordination to the sons of priests, at least as secular clergy, but such regulations were constantly relaxed or ignored. Pascal II actually allowed that in Spain, where clerical marriage had been lawful, the children should be eligible for all secular and ecclesiastical preferment. In the remoter countries of Europe -- the Scandinavian lands, Bohemia, Hungary, Poland -- the decrees against clerical marriage were not accepted until far into the thirteenth century. Even in part of Germany, notably the diocese of Liege, the clergy continued openly to marry until the same century. But even in countries where the principle was nominally accepted it triumphed at the expense of morality. For example, in England the decree was published in Council after Council throughout the twelfth century and was undoubtedly accepted as the law. But in 1129, after the death of Anselm, who had opposed the expedient, Henry I imprisoned the |house-keepers| of the clergy in London in order to obtain a sum of money by their release. Furthermore, both in England and elsewhere, bishops finding it impossible to enforce the decree, frankly licensed the breach of it by individual clergy in return for an annual payment. It is interesting to note that several important writers of the age speak with studied moderation on this question. The great lawyer Gratian admits that in the earlier period of the Church marriage was allowed to the clergy. The Parisian theologian, Peter Comestor, publicly taught that the enforcement of the vow of celibacy on the clergy was a deliberate snare of the devil. The English historians, Henry of Huntingdon, Matthew Paris, and Thomas of Walsingham, speak with disapproval of the attempts to enforce it, and even St. Thomas Aquinas holds that the celibacy of the secular clergy was a matter of merely human regulation. Thus the protest of the reformers of the eleventh century in favour of purity of life among the clergy had met with the smallest possible success, but like all such protests, it helped to keep alive the idea of a higher standard of personal and official life until such time as secular circumstances were more favourable.

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