XX.

d

CHAP. the public impositions of the state. The clergy of Rome, Alexandria, Thessalonica, &c. might solicit and obtain some partial exemptions; but the premature attempt of the great council of Rimini, which aspired to universal freedom, was successfully resisted by the son of Constantine.

IV. Civil jurisdiction.

IV. The Latin clergy, who erected their tribunal on the ruins of the civil and common law, have modestly accepted, as the gift of Constantine,' the independent jurisdiction, which was the fruit of time, of accident, and of their own industry. But the liberality of the Christian emperors had actually endowed them with some legal prerogatives, which secured and dignified the sacerdotal character. 1. Under a despotic government, the bishops alone enjoyed and asserted the inestimable privilege of being tried only

d Ambrose, the most strenuous asserter of ecclesiastical privileges, submits without a murmur to the payment of the land-tax. "Si tributum petit Imperator, non negamus; agri ecclesiæ solvunt tributum ; solvimus quæ sunt Cæsaris Cæsari, et quæ sunt Dei Deo: tributum Cæsaris est; non negatur." Baronius labours to interpret this tribute as an act of charity rather than of duty (Annal. Eccles. A.D. 387); but the words, if not the intentions, of Ambrose are more candidly explained by Thomassin, Discipline de l'Eglise, tom. iii. 1. i. c. 34. p. 268.

e In Ariminense synodo super ecclesiarum et clericorum privilegiis tractatu habito, usque eo dispositio progressa est, ut juga quæ viderentur ad ecclesiam pertinere, a publicâ functione cessarent inquietudine desistente; quod nostra videtur dudum sanctio repulsisse. Cod. Theod. 1. xvi. tit. ii. leg. 15. Had the synod of Rimini carried this point, such practical merit might have atoned for some speculative heresies.

f From Eusebius (in Vit. Constant. 1. iv. c. 27) and Sozomen (1. i. c. 9) we are assured that the episcopal jurisdiction was extended and confirmed by Constantine; but the forgery of a famous edict, which was never fairly inserted in the Theodosian Code (see at the end, tom. vi. p. 303), is demonstrated by Godefroy in the most satisfactory manner. It is strange that M. de Montesquieu, who was a lawyer as well as a philosopher, should allege this edict of Constantine (Esprit des Loix, 1. xxix. c. 16) without intimating any suspicion.

The subject of ecclesiastical jurisdiction has been involved in a mist of passion, of prejudice, and of interest. Two of the fairest books which have fallen into my hands are the Institutes of Canon Law, by the Abbé de Fleury, and the Civil History of Naples, by Giannone. Their moderation was the effect of situation as well as of temper. Fleury was a French ecclesiastic, who respected the authority of the parliaments; Giannone was an Italian lawyer, who dreaded the power of the church. And here let me observe, that as the general propositions which I advance are the result of many particular and imperfect facts, I must either refer the reader to those modern authors who have expressly treated the subject, or swell these notes to a disagreeable and disproportioned size.

by their peers; and even in a capital accusation, a synod of their brethren were the sole judges of their guilt or innocence. Such a tribunal, unless it was inflamed by personal resentment or religious discord, might be favourable, or even partial, to the sacerdotal order but Constantine was satisfied, that secret impunity would be less pernicious than public scandal and the Nicene council was edified by his public declaration, that if he surprised a bishop in the act of adultery, he should cast his imperial mantle over the episcopal sinner. 2. The domestic jurisdiction of the bishops was at once a privilege and a restraint of the ecclesiastical order, whose civil causes were decently withdrawn from the cognizance of a secular judge. Their venial offences were not exposed to the shame of a public trial or punishment; and the gentle correction, which the tenderness of youth may endure from its parent or instructors, was inflicted by the temperate severity of the bishops. But if the clergy were guilty of any crime which could not be sufficiently expiated by their degradation from an honourable and beneficial profession, the Roman magistrate drew the sword of justice, without any regard to ecclesiastical immunities. 3. The arbitration of the bishops was ratified by a positive law; and the judges were instructed to execute, without appeal or delay, the episcopal decrees, whose validity had hitherto depended on the consent of the parties. The conversion of the magistrates themselves, and of the whole empire, might gradually remove the fears and scruples of the Christians. But they still resorted to the tribunal of the bishops, whose abilities and integrity they esteemed; and the venerable Austin enjoyed the satisfaction of complaining that his spiritual functions were perpetually

h Tillemont has collected from Rufinus, Theodoret, &c. the sentiments and language of Constantine. Mem. Eccles. tom. iii. p. 749, 750.

VOL. II.

I I

CHAP.

XX.

XX.

CHAP. interrupted by the invidious labour of deciding the claim or the possession of silver and gold, of lands and cattle. 4. The ancient privilege of sanctuary was transferred to the Christian temples, and extended, by the liberal piety of the younger Theodosius, to the precincts of consecrated ground. The fugitive, and even guilty, suppliants were permitted to implore either the justice, or the mercy, of the Deity and his ministers. The rash violence of despotism was suspended by the mild interposition of the church; and the lives or fortunes of the most eminent subjects might be protected by the mediation of the bishop.

V. Spiritual

censures.

V. The bishop was the perpetual censor of the morals of his people. The discipline of penance was digested into a system of canonical jurisprudence,1 which accurately defined the duty of private or public confession, the rules of evidence, the degrees of guilt, and the measure of punishment. It was impossible to execute this spiritual censure, if the Christian pontiff, who punished the obscure sins of the multitude, respected the conspicuous vices and destructive crimes of the magistrate: but it was impossible to arraign the conduct of the magistrate, without controlling the administration of civil government. Some considerations of religion, or loyalty, or fear, protected the sacred persons of the emperors from the zeal or resentment of the bishops; but they

i See Cod. Theod. 1. ix. tit. xlv. leg. 4. In the works of Fra-Paolo (tom. iv. p. 192, &c.) there is an excellent discourse on the origin, claims, abuses, and limits of sanctuaries. He justly observes, that ancient Greece might perhaps contain fifteen or twenty azyla or sanctuaries; a number which at present may be found in Italy within the walls of a single city.

¿ The penitential jurisprudence was continually improved by the canons of the councils. But as many cases were still left to the discretion of the bishops, they occasionally published, after the example of the Roman Prætor, the rules of discipline which they proposed to observe. Among the canonical epistles of the fourth century, those of Basil the Great were the most celebrated. They are inserted in the Pandects of Beveridge (tom. ii. p. 47-151), and are translated by Chardon. Hist. des Sacremens, tom. iv. p. 219 277.

XX.

boldly censured and excommunicated the subordinate CHAP. tyrants, who were not invested with the majesty of the purple. St. Athanasius excommunicated one of the ministers of Egypt; and the interdict which he pronounced, of fire and water, was solemnly transmitted to the churches of Cappadocia.* Under the reign of the younger Theodosius, the polite and eloquent Synesius, one of the descendants of Hercules,1 filled the episcopal seat of Ptolemais, near the ruins of ancient Cyrene," and the philosophic bishop supported with dignity the character which he had assumed with reluctance." He vanquished the monster of Libya, the president Andronicus, who abused the authority of a venal office, invented new modes of rapine and torture, and aggravated the guilt of oppression by that of sacrilege. After a fruitless at

k Basil Epistol. xlvii. in Baronius (Annal. Eccles. A. D. 370. N° 91), who declares that he purposely relates it, to convince governors that they were not exempt from a sentence of excommunication. In his opinion, even a royal head is not safe from the thunders of the Vatican; and the cardinal shows himself much more consistent than the lawyers and theologians of the Gallican church.

1 The long series of his ancestors, as high as Eurysthenes, the first Doric king of Sparta, and the fifth in lineal descent from Hercules, was inscribed in the public registers of Cyrene, a Lacedæmonian colony. (Synes. Epist. lvii. p. 197. edit. Petav.) Such a pure and illustrious pedigree of seventeen hundred years, without adding the royal ancestors of Hercules, cannot be equalled in the history of mankind.

m

Synesius (de Regno, p. 2) pathetically deplores the fallen and ruined state of Cyrene, πολις Ελληνις, παλαιον ονομα και σεμνον, και εν ωδη μυρια των παλαι TOWY Y N xai xaτnons, xai peya giov. Ptolemais, a new city, 82 miles to the westward of Cyrene, assumed the metropolitan honours of the Pentapolis, or Upper Libya, which were afterwards transferred to Sozusa. See Wesseling Itinerar. p. 67, 68.732. Cellarius Geograph. tom. ii. part ii. p. 72. 74. Carolus a Sto Paulo Geograph. Sacra, p. 273. D'Anville Geographie Ancienne, tom. iii. p. 43, 44. Memoires de l'Acad. des Inscriptions, tom. xxxvii. p. 363-391, Synesius had previously represented his own disqualifications (Epist. c. v. p. 246-250). He loved profane studies and profane sports; he was incapable of supporting a life of celibacy; he disbelieved the resurrection; and he refused to preach fables to the people, unless he might be permitted to philosophize at home. Theophilus, primate of Egypt, who knew his merit, accepted this extraordinary compromise. See the life of Synesius in Tillemont Mem. Eccles tom. xii. p. 449-594.

n

• See the invective of Synesius, Epist. lvii. p. 191–201. The promotion of Andronicus was illegal; since he was a native of Berenice, in the same province. The instruments of torture are curiously specified, the Tong or press, the δακτυλήθρα, the ποδοστραβη, the ρινολαβις, the ωταγρα, and the χειλοστρόφιον, that

XX.

CHAP. tempt to reclaim the haughty magistrate by mild and religious admonition, Synesius proceeds to inflict the last sentence of ecclesiastical justice, which devotes Andronicus, with his associates and their families, to the abhorrence of earth and heaven. The impenitent sinners, more cruel than Phalaris or Sennacherib, more destructive than war, pestilence, or a cloud of locusts, are deprived of the name and privileges of Christians, of the participation of the sacraments, and of the hope of Paradise. The bishop exhorts the clergy, the magistrates, and the people, to renounce all society with the enemies of Christ; to exclude them from their houses and tables; and to refuse them the common offices of life, and the decent rites of burial. The church of Ptolemais, obscure and contemptible as she may appear, addresses this declaration to all her sister churches of the world; and the profane who reject her decrees will be involved in the guilt and punishment of Andronicus and his impious followers. These spiritual terrors were enforced by a dexterous application to the Byzantine court; the trembling president implored the mercy of the church; and the descendant of Hercules enjoyed the satisfaction of raising a prostrate tyrant from the ground. Such principles and such examples insensibly prepared the triumph of the Roman pontiffs, who have trampled on the necks of kings.

VI. Freedom of public preaching.

VI. Every popular government has experienced the effects of rude or artificial eloquence. The coldest nature is animated, the firmest reason is moved, by the rapid communication of the prevailing impulse;

variously pressed or distended the fingers, the feet, the nose, the ears, and the lips of the victims.

e. (Synesius,

P The sentence of excommunication is expressed in a rhetorical Epist. lviii. p. 201-203). The method of involving whole families, though somewhat unjust, was improved into national interdicts.

4 See Synesius, Epist. xlvii. p. 186, 187. Epist. lxxii. p. 218, 219. Epist. lxxxix. p. 230-231.