Christianity is a parcel of the laws
Sir Matthew Hale (1609-1676), Lord
Chief Justice of England (1671-1676)
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.
|Tartarassa ni voutor
No sent tan leu carn puden
Quom clerc e prezicador
Senton ont es lo manen.
Mantenen son sei privat,
E quant malautia-l bat,
Fan li far donassio
Tel que-l paren no-i an pro.
smell out stinking flesh
As fast as clerics and preachers
smell out the rich.
They circle around him, at once, like friends,
and as soon as sickness strikes him down
They get him to make a little donation,
and his own family gets nothing.
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
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.
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
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
Savonarolas 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
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
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
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
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
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.