such, for instance, as marriage, in regard to which ecclesiastical influences had recently produced a change in the old folkright. 7 In proceedings before the folk-moot there was no sharp distinction between civil and penal suits. But in cases in which a breach of the public peace was in question, particularly then in more serious offences and where there was non-fulfilment of public duties (e.g. if church dues were not paid), apart from compensation to the injured person, a public penalty was assigned. This was, as a rule, a money-fine, which usually fell to the king; but if the interests of the church were also involved, the church received a share which. varied according to circumstances. This again served to secure the

According to the text of the passages cited in note 3 the ealdorman too is to expound God's law. Similarly it is said in leg. Hen. Ic 8 § 1 (printed § 60, note 13) of the secular aldermannus hundredi: Dei leges et hominum jura studeant promovere.-Only in the limited sense given in the text shall we be able to interpret the ordinance of William I § 2 (fully printed in append. I), in which the state of affairs until then prevailing is touched on with the words: ut nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundret placita teneant nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant.

The following passages, whose scope, however, is doubtful, also apparently relate to the part played by the bishop in the folk-moot: Knut II c 56: Gif open mord weorde, paet man sŷ âmyrdred, agife man magum þone banan, and gif hit tihtle sŷ and aet lade mistide dême se bisce op. ("If there be open morth' so that a man be murdered, let the slayer be delivered up to the kinsmen; and if there be a prosecution and he fail at the 'lad,' let the bishop doom.") So the law-book leg. Hen. I c 71 § 1. Similarly in the case of adultery, Knut II c 53.-Do these regulations perhaps refer to some special competence of the bishop in cases of mere imputation without proof by witnesses? This meaning is favoured by Institutes of Polity (a discourse on the various civil and ecclesiastical powers and classes) printed in Thorpe (Record Commission), Monumenta Ecclesiastica c 7: ... He (the bishop) sceall georne saca sehtan and frio wyrcan, mid þam world-deman þe riht lufian. He sceall aet tihtlan ladunge gedihtan, þaet aenig man oðrum aenig woh beodan ne maege, aðor odde on athe odde on ordale. ("He shall zealously appease strifes and effect peace with those temporal judges who love right. He shall in accusations direct the 'lad,' so that no man may wrong another, either in oath or in ordeal ")-Perhaps dême se bisceop is in these cases only another phrase for 'let ordeal take place.' Cf. Dialogus Egberti (universally regarded as genuine; between 732 and 766; printed in Haddan and Stubbs, Counc. III, 403) c 3.

Cf. further Edward and Guthrum c 10: "If a limb-maimed man who has been condemned be forsaken, and he after that live three days; after that, any one who is willing to take care of sore and soul may help him, with the bishop's leave." Cf. also the mention (above, note 3) in Knut's charter of the bishop as deciding on the mercy to be shown.-In Edward and Guthrum c 4 Be siblegerum (of incestuous persons) the words swa bisceop taece (as the bishop may teach) do not seem to refer to any judgment by the bishop.-On the cooperation of the bishop in executing the judgment of a secular court whereby the killing of a person for robbery was afterwards, on complaint of the relatives of the person killed, declared unjustifiable see the law-book leg. Ed. Conf. c 36 (cf. Aethelred III c 7).

Instituta Cnuti (Schmid, append. XX; a law-book, probably written shortly after 1110) III c 53: Antiqua consuetudo fuit, ut omnis ecclesiastica et secularis emendatio communis erat regi et episcopo. The contention thus unqualified seems from the substance of the laws to be erroneous. Cf., however, Edward

co-operation of the ecclesiastical authorities in the business of the temporal courts.

Moreover the method of proof in vogue before the folk-moot implied the participation of the clergy. Ordeal was always conducted by a spiritual person."

2. ECCLESIASTICAL COURTS.

Purely ecclesiastical courts to determine disputed questions existed even in the Anglo-Saxon period.10 Probably synodal assemblies often acted in this capacity;" but often too the bishop

and Guthrum, Introduct. § 2

woruld-bôte hig gesetton gemdene Criste and cynge (above, note 5), also Aethelstan VIII c 38: And þâ man getwaemde paet der waes gemaene Criste and cynincge on woroldlicre steôra ("And there they divided what before was common to Christ and the king in worldly Steuer [steôra, Steuer-government or punishment] . . .") See also leg. Hen. I c 11 § 14.-Liebermann in Transactions of the Royal Historical Society, New Series, VII, 98 calls attention to the fact that, in the above passage of the Instituta Cnuti, ecclesiastica et secularis emendatio must perhaps be taken as conveying one idea, the meaning being 'punishment for offences at once against ecclesiastical and civil laws.'

9 Aethelstan II c 23. Dôm be hâtan îsene and waetre. Exorcismus (Schmid, append. XVI and XVII). Cf. also Instit. of Polity c 7 (above, note 7).—In reference to co-operation at oath-taking see Penitentiale Bedae (probably genuine; if so, 735; in Haddan and Stubbs, Counc. III, 326) c 5 § 2: Qui sciens virtutem juramenti vel perjurii perjurat in manu Episcopi vel presbyteri vel in altari vel in cruce consecrata, III annos poeniteat; also Poenitent. Egberti (almost certainly genuine; if so, between 732 and 766; in Haddan and Stubbs, Counc. III, 413) c 6 § 1: Qui juramentum fecerit in aecclesia aut in evangelio sive in reliquas sanctorum, VII vel XI annos judicant. § 2: Si vero in manu Episcopi aut presbyteri aut diaconi, sive in cruce consecrata, unum annum peniteat, alii III vel VII judicant; et in cruce non consecrata, unum annum vel VII menses ut alii. § 7: Si quis in manu laici juraverit, apud Grecos nihil est.

10 Norohymbra preôsta lagu (Schmid, append. II; about 10th cent.) c 5: Gif preôst dôm tô ldewedum sceôte, be he to gehâdedum scolde, gilde XX or. (“Ïf a priest refers a judgment to laymen which he should [refer] to consecrated [persons], let him pay twenty pieces.") Cf. also Ine (laws between 688 and 694) c 13 pr.: Gif hwa beforan biscepe his gewitnesse and his wed âleôge, gebête mid CXX scill. ("If anyone before the bishop gives false witness or breaks his bargain, let him pay for it with 120 shillings.")

baet

" Cf. the legal formula (Schmid, append. XI; date uncertain): man cwydde oððon crafode hine on hundraede, oððon âhwâr on gemôte, on ceapstowe odde on cyric-ware that they addressed him

or summoned him before the hundred or anywhere before a court, before a market-place or before a church-gathering "); Council of Celchyth, 816 (Haddan and Stubbs, Counc. III, 579) c 6: Ut non frangatur [frangantur] judicium [judicia] Episcoporum, quae a nobis nostrisque praedecessoribus synodale [synodali] decreta [decreto] constituta sunt, sed firma et inrefragabilis [irrefragabilia] ita permaneant; Et iterum, si quis

accusatoribus suis invitatur ad synodum, et ei obvianti non tardaverit, semel, secundo, tertia vice paratus rationem ponere, et acusator renuit, et suam causam movere differat; postea judicabimus nihil ab eo plus exigatur, sed suo proprio sit contentus.

Cf. further the report of the councils of Pincahala and Celchyth, 787 (below, note 15). Stubbs, Const. Hist. I, 252 c 8 § 87, considers it probable that synods under certain circumstances acted as friendly arbitrators in civil cases. From the early Norman time cf. the following examples :—

in person or his chief officer seems to have been judge. At all events, there was no division between the judicial and the administrative authorities, nor can a sharp line be drawn between the two forms of activity as exercised by one and the same authority.

a. Competence in respect of persons.

Spiritual superiors exercised independently disciplinary powers over the clergy subordinate to them,12 just as the king could, independently of the folk-moot, inflict disciplinary punishments on his officers. Apart from this, the church further required that in all disputes of clergymen with one another, recourse should be had not to the secular court, but to the higher ecclesiastical authorities.13

The assembly of the bishops officiated under Lanfranc as an ecclesiastical court. Epist. Lanfranci (ed. Giles) p. 51 (printed in § 60, note 83) and p. 76: in adulteros sententiam diximus, et juste eos esse excommunicatos communi consensu decrevimus.

Document touching a discussion before a diocesan synod in 1092 on a suit between two clerks in Bigelow, Placita Anglo-Normannica, 64. Judgment of a diocesan synod of Llandaff between 1149 and 1156 in Hist. Monast. Gloucestriae (Rer. Brit. Scr. No. 33) II, 52 ff. (cf. here Bigelow, l.c. 184).

Documents from the time shortly after 1145 upon the judgment of a synod of the archdeacon of Buckingham in Historia Monast. Gloucestriae (Rer. Brit. Ser. No. 33) II, 166 f. (cf. here Bigelow, l.c. 150 ff.).

12 To this seem to be referable the following provisions in the laws:1. Alfred c 21: Gif preost óðerne man ofslea, hine biscep onhâdige, bonne hine mon of pâm mynstre âgife, buton se hlâford bone wer fore pingian wille. ("If a priest kill another man, let the bishop secularize him; then let him be given up from the minster [apparently to the kinsmen that he may be brought before the secular court?], unless the lord will compound for his 'wer'"); cf. in case of man-slaying or other grave offence Aethelred VIII c 26; Knut II c 41, where the words þolige ge hâdes ge eardes or êðeles ("let him lose class and fatherland ") perhaps likewise signify the double condemnation.-Ecclesiastical penance has then also to take place, as usual.

2. Edward and Guthrum c 4 § 2: If a priest commits a crime worthy of death, he shall be seized and kept until the bishop's judgment. Similarly Knut II c 43. Apparently here nothing more is meant than the preliminary decision of the bishop on the clerk's deprivation of spiritual rank.

3. Wihträd c 6: "If a priest allow of illicit intercourse; or neglect the baptism of a sick person, or be drunk to that degree that he cannot do it; let him abstain from his ministry until the doom of the bishop."

13 can. sub Edgaro (Wilkins, Concilia I, 225 assigns it to the year 960) c 7: And we laerap, þaet nan sacu de betweox preostan sy ne beo gescoten to worldmannas dome, ac seman and sibbian heora agenne geferan, obbe sceotan to dam biscope gif man daet nyde scule. ("And we enjoin, that no dispute that be between priests be referred to the adjustment of secular men; but let them adjust among and appease their own companions; or refer to the bishop, if that be needful.")-Institutes of Polity (in Thorpe [Record Commission], Ancient Laws etc.) c 10: Bisceopum gebyrað, gyf aenig oðrum abelge, paet man gebyldige oð geferena some, butan heom sylfe geweordan maege, and na sceotan na to laewedum mannum, ne ne sciendan na hy sylfe. Bisceopum gebyrað, gyf hwylcum hwaet eglige swyde, be he ne betan ne maege, cybe hit his geferum and beon sysðan ealle georne ymbe pa bote, and na ne geswican aer hi hit gebetan. (“It is incumbent on bishops, if any one offend another, that he be patient until the arbitration of their associates, unless they can settle between themselves; and let them not refer to laymen nor disgrace themselves. It is incumbent on bishops, if aught greatly afflict any one, for

Probably even in the Anglo-Saxon period the further claim was raised that the clergy should be wholly freed from secular jurisdiction. How far the claim was in practice made good, is no longer with certainty to be ascertained.14

b. Competence in respect of causes.

In the older times an attempt was made to adjudicate in the diocesan synods upon purely temporal causes; to check it, prohibitions were issued by the higher authorities of the church.15 ́Never

which he cannot obtain 'bōt,' that he make it known to his associates, and that they be then all diligent about the 'bōt' and cease not before they have obtained it.")-See also Dialogus Egberti c 10 in cases of civil claims.-On similar and still greater pretensions of the church in the Roman empire and the empire of the Franks see Richter, Kirchenrecht § 206.

14 The view that clergymen were not subject to the secular court is supported by the passages cited in note 16, 1 and 2, according to which it seems that they could only be condemned by such a court after their expulsion from the priestly class. If we do not assume that even in the Anglo-Saxon period there were the beginnings of an exemption for clergymen from temporal jurisdiction, it is hard to say from when that exemption is to be dated. The ordinance of William I only provides an exclusive competence of ecclesiastical courts in respect of causes. The personal exemption of the clergy from temporal jurisdiction is confirmed in Stephen's charter of 1136 as something already existent. -The view that they were subject to the secular court is defended, on the other hand, by numerous provisions in the laws which relate to proceedings against clerks and which from their purport can hardly be referred to process before any other court than the folk-moot, e.g.: Wihträd cc 16 19 Edward and Guthrum c 3; Aethelred VIII, 19-24, 27; Knut I c 5, II, c 41 § 1.-Similarly Dialogus Egberti (universally regarded as genuine and referred to archbishop Egbert of York, between 732 and 766; in Haddan and Stubbs, Counc. III, 403) cc 1 and 3.

From earlier times cf. especially Dialogus Egberti e 8: Interrogatio: Si quis monachorum sacrilega se contagione miscuerint, vindicta, quidem sceleris si pertinet ad laicos, qui sunt eorum propinqui, nunc persequamini ? Responsio (the answers, both in reference to the person and to the case, go beyond the question): De his qui intra aecclesiam in gravibus vel in levibus commissis delinquunt, nichil vindictae pertinet ad eos qui foris sunt; maxime cum apostolus dicat, omnes causas aecclesiae debere apud sacerdotes dijudicari. Si qui vero aecclesiastici crimen aliquod inter laicos (in antithesis to intra aecclesiam to be understood of place) perpetraverint, homicidium, vel fornicationem, vel furtum agentes, hos placuit a secularibus in quos peccaverunt omnimodo occupari; nisi animo fuerit aecclesiae pro talibus satisfacere. Laici vero qui sacrilega se contagione miscuerint velatis, non eodem modo quo lex publica fornicarios puniri percensuit, sed duplicato XXX siclorum pecunia, hoc est, LX argenteos volumus dare ecclesiae adulterantes, quia graves causae graviores et acriores querunt curas. 15 Report of the legates on the resolutions of the councils at Pincahala and Celchyth, 787, c 10: Vidimus etiam ibi Episcopos in conciliis suis secularia judicare, prohibuimusque eos voce Apostolica: Nemo militans Deo implicet se negotiis secularibus, ut Ei militet Cui se probavit (Haddan

and Stubbs III, 452).—Cf. herewith the competence ascribed to the bishop in the penitential of Theodore (probably end of 7th cent.; printed in Haddan and Stubbs, Counc. III, 173) :—

Book I c 4 § 5: Si quis occiderit monachum vel clericum, arma relinquat et Deo serviat vel VII annos peniteat. In judicio Episcopi est. Qui autem Episcopum vel presbiterum occiderit regis judicium est de eo.

Book II c 2 § 4: Episcopus dispensat causas pauperum usque ad L solidos, rex vero si plus est.

theless, even after that, the bishop and his officers are sometimes. mentioned as judges in property suits. In some instances they seem to have been acting as arbitrators, in others we see the exercise of special judicial powers within church domains. But that any particular kinds of civil actions were in general brought within the cognizance of the ecclesiastical court is not apparent.

On the other hand, the church exercised a sort of punitive power, in that the ecclesiastical authorities, in a strictly circumscribed sphere of competence, imposed various forms of penance upon both clerks and laymen. In principle, indeed, the imposition of penance and the judicial power are two different things. The former, in so far as it is a condition of absolution, is an emanation of the potestas ordinis, whilst the latter is a manifestation of the potestas jurisdictionis. Thus priests as well as bishops had the power to impose penance,17 whereas the judicial power proper could only be exercised through the bishop, or his officers, or through synods. But in spite of this fundamental difference between the two things, in AngloSaxon times they frequently overlapped each other, and to outward observation the imposition of penance appeared to imply a punitive power resident in the church and supplementing the punitive power of the state.

The

For the most part penance was imposed informally and privately as the consequence of statements made in confession; 18 more rarely, for instance at visitations, there was something resembling judicial proceedings to bring home disputed guilt to the offender. imposition was alike independent of the penalty threatened by the state and the sentence pronounced by it. Ecclesiastical penances were assigned for all more serious offences punishable also by the secular arm. The church assisted in securing the payment of the wergild, in that it reduced the penance when the payment was made.19

Furthermore, ecclesiastical penances were also threatened in cases (e.g. of sexual extravagance) for which the law of the land contained no penal provisions. This suggests that even in those early days there was the same exclusive competence in ecclesiastical courts as in later times. But the idea is a mistaken one. At a

16 Cf., however, Richter, Kirchenrecht § 257, note 9. 17 Penitential of Theodore (Haddan and Stubbs III, 173), Book II c 2 § 15: Non licet diacono laico penitentiam dare, sed Episcopus aut presbiter dare debent. Book II c 6 § 16: Nec non libertas monasterii est penitentiam secularibus judicandam, quia proprie clericorum est. From later times compare one of the two collections of capitula ascribed to the council of Winchester, 1076 (Wilkins, Conc. I, 365) c 11: Quod de criminibus soli episcopi poenitentiam tribuant.

18 Penitential of Theodore (Haddan and Stubbs, Counc. III, 173) Book 1 c 14 § 4: Reconciliatio ideo in hac provincia puplice statuta non est, quia et puplice penitentia non est.

19 Penitential of Theodore (Haddan and Stubbs III, 173), Book I c 3 § 3; c 4 § 1. Canons ascribed to Theodore (Haddan and Stubbs III, 209) c 7. Penitential of Beda (Haddan and Stubbs III, 326) c 4 § 11; c 8 § 4; c 10 § 6 (anno VI). Dialogus Egberti (Haddan and Stubbs III, 403) c 12.