Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
In this civilized age, it seems strange that the Church would so dominate
the State, since the State must have consented to such a power, or it
could not have existed; but the Church, in this superstitious period
of mankind, held the terror of excommunication over the heads of the
temporal authorities and the State was thus coerced into the gradual
consent to the domination of the spiritual authorities. The Church always
claimed exclusive jurisdiction over all spiritual offenses, and as it
held the unfettered power of excommunication, even though its degrees
were opposed to secular laws, those around whom the Church threw its
protecting arms were really held to be above and beyond the power of the
secular courts.
The power of the Church was based upon a theory of Divine Right and it
was claimed to be far nobler than that of the State, because, whereas,
the power of the Pope extended to the soul, itself, the power of Princes
was limited to the body alone. The power of the Church, being thus _jure
divino_, ought to have been limited, at all times, to matters spiritual,
but by a gradual encroachment and by compact with the powers of the
State, the Church also assumed to exercise authority over bodies by the
aid of the State. But notwithstanding the firmness with which the clergy
claimed the exemption from all secular interference for the persons of
clerks, and the general indulgence that the laity gave to this claim,
confirmed, as it was by solemn declarations and acts of Parliament, the
privilege was always viewed with more or less jealousy and considered
as a usurpation that was generously tolerated rather than as a part and
parcel of the established common law of England.[6]
Under the terms of the canonical decree, “No power was given to laymen
to judge God’s anointed,”[7] because laymen, instead of possessing
power to command, were under the Divine injunction to obey the Church
and Churchmen. The clergy was not without a notable precedent for this
position, for it was recorded that king Alfred had a judge hanged who had
executed a clerk, because as a secular judge, he must have known that he
had no power over clerks.[8]
Churchmen also found many Bible references as authority for the
privilege. In King David’s psalm of praise, he cautioned his subjects:
“Be ye mindful always of his covenant, and the word which he
commanded to a thousand generations;
Even of the covenant which he made with Abraham and of his oath
unto Isaac;
And hath confirmed the same to Jacob for a law, and to Israel
for an everlasting covenant:
He suffered no man to do them wrong; yea, he reproved kings for
their sakes,
Saying, _Touch not mine anointed, and do my prophets no
harm_.”[9]
Public-domain text, read in full here on John Shaqi.
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