Penal Methods of the Middle Ages: Criminals, Witches, LunaticsIves, George Burnham
History
Penal Methods of the Middle Ages: Criminals, Witches, Lunatics
Ives, George Burnham
Punishment
Although the nations and the laws of Europe ceased to be pagan, and
became Christianised, the Church, with its haughty claims and
well-learned rulers, sought for autonomy. Had not the Apostle Paul said
that they should judge angels,[294] and that the saints some day should
judge, the world?[295] After such a text it was easy to claim that the
Emperor Constantine had declared at the great Council of Nicaea[296] (in
A.D. 325) that priests could be judged by God, but not by men. The
clergy wanted to be tried by their peers, and looked askance at the
other Courts; the times were given over to violence, the punishments
were always sanguinary, and the lay lords and judges were exceedingly
rapacious.[297] If there were no more open pagans in high places, there
came along various heretics certain to be abhorred at least equally.
So the Church started on a long contention, in which there were many
struggles, with local victories and defeats in different countries. In
the earlier period the State was the stronger; a law of Gratian[298]
(fourth century) reserved to the Secular Court all but the slight
offences of the clergy. It was laid down at the Council of Agde in
506,[299] and again at the Council of Epaone in 517,[300] that while the
clergy should not appeal to the civil power as plaintiffs,[301] they
were to attend if summoned to the Secular Courts. At a Council of Macon
in 581[302] it is implied that criminal cases were to be conceded to
them. At the same time the clergy were forbidden to accuse one another
before civil magistrates.[303]
The fear and jealousy of the Secular Courts persisted; by a Canon of the
Third Council of Orleans (A.D. 538),[304] the bishop’s permission was to
be given before a cleric could attend as plaintiff or defendant. By the
fourth Canon of the Fifth Council of Paris (A.D. 615),[305] no judge was
to try any ecclesiastic without first giving notice to his ordinary;
this order is repeated in a Capitulary of Charlemagne of A.D. 769. Pope
Gregory the Great (540–604)[306] had contended for the principle that a
clerical defendant was entitled to be tried by his own Court, and this
was established by Welsh Canons of the seventh century.[307]
A Capitulary of Charlemagne gave the bishops criminal jurisdiction over
the clergy,[308] though the emperor reserved to himself the right of
final decision in all cases.[309] By the year 853 his grandson, the
superstitious Charles the Bald, was appealing to the bishops at Soissons
against the person of a humble clerk who was accused of forging the
royal signature.[310] In A.D. 866[311] Pope Nicholas I., in his advice
to the Bulgarians, declared that laymen had no right to scrutinise or
condemn any priests, who were to be left to the control of their
prelates. The Council of Ravenna in 877[312] ordered that none who were
under the bishops’ guardianship should be seized by the seculars.
Public-domain text, read in full here on John Shaqi.
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