to give entertainment to their brethren, travelling

pon necessary oe- the designation of them to the ministerial office; it will be proper, in the next place, to speak of the respect and honour that was generally paid them upon the account of their office. Under which head I shall comprise whatever relates to the privileges, exemptions, immunities, and revenues of the ancient clergy. Some particular marks of honour, as they were peculiar to this or that order, have already been mentioned in speaking of those orders: but now I shall treat of those which were more universal, and common to all orders. And here it will not be amiss, in the first place, to say something of that courteous treatment and friendship, wherewith the clergy of the ancient church were obliged to receive and embrace one another. Two or three instances of which it will be sufficient to observe at present. First, That wherever they travelled upon necessary occasions, they were to be entertained by their brethren of the clergy in all places, out of the public revenues of the church: and it was a sort of crime for a bishop or other clerk to refuse the hospitality of the church, and take it from any other. The historians, Socrates and Sozomen,' tacitly reflect upon Epiphanius for an action of this nature, that when he came to Constantinople, where Chrysostom showed him all imaginable respect and honour, sending his clergy out to meet him, and inviting him to an apartment, according to custom, in his house, he refused the civility, and took up his habitation in a separate mansion. This was interpreted the same thing as breaking catholic communion with him; as it proved in effect; for he came on purpose, by the instigations of Theophilus, bishop of Alexandria, to form an accusation against him. On the

'Socrat. lib. 6. c. 12. Sozom. lib. 8. c. 14.

2 Firmil. Ep. 75. ap. Cypr. p. 228. Ut venientibus non solum pax et communio, sed et tectum et hospitium negaretur.

other hand, to deny any of the clergy the hospitality of the church upon such occasions was a more unpardonable crime, and looked upon as the rudest way of denying communion. Therefore Firmilian' smartly reproves the behaviour of Pope Stephen, both as insolent and unchristian, towards the African bishops, who were sent as legates from their churches to him, that he neither admitted them to audience himself, nor suffered any of the brethren to receive them to his house; so not only denying them the peace and communion of the church, but the civility of Christian entertainment also. Which was so much the greater despite and affront to them, because every private Christian travelling with letters of credence from his own church, might have challenged that privilege upon the contesseration of hospitality, as Tertullian' words it; and much more the bishops and clergy from one another. By the laws of the African church, every bishop that went as legate of a provincial synod to that which they called a general or plenary synod, was to be provided of all things necessary in his travels from this liberality of the church: as appears from a canon in the third council of Carthage, which orders, that no province should send above two or three legates; that so they might appear with less pomp and envy, and be less charge to their entertainers. This implies that every church was obliged, by custom at least, to give them entertainment in their passage.

Sect. 2.
And to give them

the honorary privi lege of consecrating

the eucharist in the church.

Another instance of customary respect, which the clergy were obliged to show to one another, was, that when any bishop or presbyter came to a foreign church, they were to be complimented with the honorary privilege of performing Divine offices, and consecrating the eucharist in the church. This was a very ancient custom, as appears from

Tertul. de Præscript. c. 20.

4 Conc. Carth. 3. c. 2. Ut et minus invidiosi, minusque hospitibus sumptuosi existant.

what Irenæus says of Anicetus, bishop of Rome, that when Polycarp came to settle the paschal controversy with him, παρεχώρησεν τὴν εὐχαριστίαν τῷ Пoλvráр, which does not barely signify, he gave him the eucharist, as the first translators of Eusebius render it; but, he gave place to him, or liberty to consecrate the eucharist in his church. The council of Arles, which turned this custom into a law, uses the very same expression about it, that in every church they should give place to the bishop that was a stranger, to offer the oblation or sacrifice. And the fourth council of Carthage more plainly, that a bishop or presbyter❜ visiting another church, shall be received each in their own degree, and be invited to preach, and consecrate the oblation. So they were to be admitted to all the honours which the church could show them; the bishop was to seat his fellow bishop in the same throne with himself, and the presbyters to do the same by their fellow presbyter. For that the canon means by receiving them in their own degree. Which custom is referred to by the catholic bishops in the collation of Carthage, where they promise the Donatist bishops, that if they would return to the church, they should be treated by them as fellow bishops, and sit upon the same thrones with them, as strangers were used to do. The author of the Constitutions joins all these things together, saying, Let the bishop that is a stranger sit with the bishop, and be invited to preach; let him also be permitted to offer the eucharist; or if in modesty he refuses it, let him at least be constrained to give the blessing to the people.

Sect. 3.

The use of the litera formata, or commendatory letters in this respect.

But then it is to be observed, that these honours were not to be showed to strangers, as mere strangers, but as they could someways give proof of their orthodoxy and catholicism to the church to which they came. And in this respect the litera systaticæ, or commendatory letters, as they called them, were of great use and service in the church. For no strange clergyman was to be admitted so much as to communicate, much less to officiate, without these letters of his bishop, in any church where he was a perfect stranger, for fear of surreptitious or passive communion, as the canons call it. And bishops were under the same obligations to take the letters of their metropolitan, if they had occasion to travel into a foreign country, where Iren. Ep. ad Victor. ap. Euseb. lib. 5. c. 24. Conc. Arelat. 1. c. 20. Ut peregrino episcopo locus sacrificandi detur.

Conc. Carth. 4. c. 33. Ut episcopi vel presbyteri, si causa visendæ ecclesiæ alterius episcopi, ad ecclesiam venerint, et in gradu suo suscipiantur, et tam ad verbum faciendum, quam ad oblationem consecrandam invitentur.

Collat. Carthag. Die 1. c. 16. Sicut peregrino episcopo juxta considente collega.

Conc. Carthag. 1. c. 7. Clericus vel laicus non com

they could not otherwise be known. The third council of Carthage has a canon" to this purpose, that no bishop should go beyond sea without consulting the primate of his province, that he might have his formatæ, or letters of commendation. And that the same discipline was observed in all churches, seems clear from one of those canons of the Greek church, among those which go by the name of Apostolical, which says, no strange bishops," presbyters, or deacons shall be received ávev ovoraTIKOV, unless they bring commendatory letters with them: but without them they shall only be provided of necessaries, and not be admitted to communicate, because many things are surreptitiously obtained. The translation of Dionysius Exiguus indeed denies them necessaries also: but that is a manifest corruption of the Greek text, which allows them to communicate in outward good things, but not in the communion of the church. And this is what some think the ancients meant by communio peregrina, the communion of strangers, when such as travelled without letters of credence, were hospitably entertained, and provided of sustenance, but not admitted to participate of the eucharist, because they had no testimonials of their life and conversation. But others give a different account of this, which I shall more nicely examine, when I come to speak of the discipline of the church, under which head the communio peregrina will come to be considered, as a species of ecclesiastical censure.

Sect. 4. The clergy obliged to end all their own controversies among themselves.

A third instance of respect which the clergy showed to one another, was, that if any controversies happened among themselves, they freely consented to have them determined by their bishops and councils, without having recourse to the secular magistrate for justice. Bishops, as I have had occasion to show before," were anciently authorized by the imperial laws to hear and determine secular pecuniary causes even among laymen, when both the litigants would agree upon compromise to take them for arbitrators: but among the clergy there needed no such particular compromise, but by the rules and canons of the church they were brought under a general obligation not to molest one another before a secular magistrate, but to end all their controversies under the cognizance of an ecclesiastical tribunal. The case was somewhat different when a layman and a clergyman had occa

municet in aliena plebe sine literis episcopi sui. Nisi hoc observatum fuerit, communio fiet passiva. Vid. Conc. Laodicen. c. 41. Conc. Antioch. c. 7. Agathens. c. 38. Chalcedon. c. 11.

10 Conc. Carth. 3. c. 28. Ut episcopi trans mare non proficiscantur, nisi consulto prima sedis episcopo, ut ab episcopo præcipuè (leg. præcipuo) possint sumere forma. tam vel commendationem.

11 Canon. Apost. c. 11. 12 Book II. chap. 7.

sion to go to law together: for then the layman was at liberty to choose his court, and was not obliged to refer his cause to any ecclesiastical judge, unless by compromise he brought himself under such an obligation. For so the imperial laws" in this case had provided. Though in France in the time of the Gothic kings it was otherwise: for laymen there were not to sue a clerk in a secular court without the bishop's permission; as appears from a canon of the council "of Agde, made under Alaric, anno 506, which equally forbids a clergyman to sue a layman in a secular court, or to answer to any action brought against him there, without the bishop's permission. But whatever difference there was betwixt the Roman and Gothic laws in this particular, it is evident, that as to any controversies arising among the clergy themselves, they were to be determined before ecclesiastical judges; as appears from a canon of the council of Chalcedon, which is in these words: If any clergyman hath a controversy with another, he shall not leave his own bishop, and betake himself" to any secular court, but first have a hearing before his own bishop, or such arbitrators as both parties should choose with the bishop's approbation. Otherwise he should be liable to canonical censure. Which censure in the African church was the loss of his place, whether he were bishop, presbyter, or deacon, or any other inferior clerk, that declined the sentence of an ecclesiastical court, either in a civil or criminal cause, and betook himself to a secular court for justice: though he carried his cause, and sentence were given on his side, in a criminal action, yet he was to be deposed; or if it was a civil cause, he must lose whatever advantage he gained by the action, as the third council of Carthage " in this case determined, because he despised the whole church, in that he could not confide in any ecclesiastical persons to be his judges. Many other councils determined the same thing, as that of Vannes," Chalons,1s and Mascon." And the council of Milevis 20 decreed, that no one should petition the emperor to assign him secular judges, but only ecclesiastical," under pain of deprivation. So great confidence did the clergy generally place in one another, and pay such

16

a deference to the wisdom, integrity, and judgment of their brethren, that it was then thought they had no need to have recourse to secular courts for justice, but they were willing to determine all controversies of their own among themselves: and as the imperial laws did not hinder this, but encourage it; so we seldom find any ecclesiastics inclined to oppose it, but either some factious and turbulent men, or such whose crimes had made them so obnoxious, that they had reason to dread an ecclesiastical censure.

22

What care was

accusations against

I shall but observe one thing more Sect. 5. upon this head, which is, the great taken in receiving care the clergy had of the reputation the bishops and cler and character of one another; which gy of the church. being a sacred and necessary thing in persons of their function, they did not think fit to let it be exposed to the malicious calumnies and slanders of every base and false accuser. But first, in all accusations, especially against bishops, the testimony of two or three witnesses was required, according to the rule of the apostle. Therefore when the synod of Antioch proceeded to condemn Eustathius, bishop of Antioch, upon a single testimony, the historian censures it as an arbitrary proceeding in them against that apostolical canon, "Receive not an accusation against an elder, but before two or three witnesses." Secondly, The character of the witnesses was to be examined, before their testimony was to be allowed of. A heretic was not to give evidence against a bishop, as may be collected from those canons which bear the name of the Apostles', one of which joins these two things together: Receive not a heretic to testify against a bishop; nor a single witness, though he be one of the faithful for the law saith, "In the mouth of two or three witnesses shall every word be established." Athanasius pleaded the privilege of this law, when he was accused for suffering Macarius his presbyter to break the communion cup; he urged," that his accusers were Meletians, who ought not to be credited, being schismatics, and enemies of the church. By the second council of Carthage, not only heretics, but any others that were known to be guilty of scandalous crimes, were to be rejected from giving tes

si derelicto ecclesiastico judicio publicis judiciis purgari voluerit, etiamsi pro ipso prolata fuerit sententia, locum suum amittat, et hoc in criminali actione. In civili vero perdat quod evicerit, si locum suum obtinere maluerit, &c. 17 Conc. Venetic. c. 9. 18 Conc. Cabillon. c. 11. 20 Conc. Milev. c. 19.

19 Conc. Matiscon. c. 8.

21 Conc. Milev. c. 19. Quicunque ab imperatore cognitionem judiciorum publicorum petierit, honore proprio privetur: si autem episcopale judicium ab imperatore postulaverit, nihil ei obsit.

22 Theod. Hist. lib. 1. c. 20. 23 Canon. Apost. c. 75. 24 Athan. Apol. ad Constant. t. 1. p. 731.

25 Conc. Carth. 2. c. 6. Qui aliquibus sceleribus irretitus est, vocem adversus majores natu non habeat accusandi. Vid. Cod. Can. Afric. c. 8.

timony against any elder of the church. The first general council of Constantinople distinguishes the causes, upon which an accusation might be brought against a bishop: for a man might have a private cause of complaint against him, as that he was defrauded in his property, or in any the like case injured by him; in which case his accusation was to be heard, without considering at all the quality of the person or his religion. For a bishop was to keep a good conscience, and any man that complained of being injured by him, was to have justice done him, whatever religion he was of. But if the crime was purely ecclesiastical that was alleged against him, then the personal qualities of the accusers were to be examined; so that no heretics should be allowed to accuse' 28 orthodox bishops in causes ecclesiastical; nor any excommunicate persons, before they had first made satisfaction for their own crimes; nor any who were impeached of crimes, of which they had not proved themselves innocent. The council of Chalcedon" adds, that no clergyman or layman should be admitted to impeach a bishop or a clerk, till his own reputation and character were first inquired into and fully examined. So careful were they in this matter not to expose the credit of the clergy to the malicious designs or wicked conspiracies of any profligate wretches, whom malice or bribery might induce to accuse them. Thirdly, In case of false accusation, whether public or private, the penalty against the offender was very severe. If any clergyman, says one of the Apostolical Canons, unjustly reproach a bishop, he shall be deposed: for it is written, "Thou shalt not speak evil of the ruler of thy people." And by a canon 29 of the council of Eliberis, for any man to charge a bishop, presbyter, or deacon with a false crime, which he could not make good against them, was excommunication, without hopes of reconciliation at the hour of death. Which was the usual penalty that was inflicted by that council upon very great and notorious offenders; for which some have censured the Spanish church as guilty of Novatianism, but without reason, as I shall show when I come to discourse of the discipline of the church. Here it may be sufficient to observe, that they thought this crime one of the first magnitude, since they refused to give the external peace of the church to such offenders, even at their last hour. Many other instances of the like respect might here be added, but by these few the reader will be able to

28

26 Conc. Constant. Gen. 1. c. 6. 27 Conc. Chalced. c. 21. 28 Canon. Apost. c. 47. 29 Conc. Eliber. c. 75. Si quis episcopum, presbyterum, vel diaconum falsis criminibus appetierit, et probare non potuerit, nec in fine dandam ei communionem.

Justin. Novel. 123. c. 7. Nulli judicum licebit Deo amabiles episcopos cogere ad judicium venire pro exhibendo testimonio; sed judex mittat ad eos quosdam ex personis ministrantium sibi, &c.

| judge, with what candour and civility the clergy of the primitive church were obliged to receive and treat one another. And it would have been happy for all ages, had they walked in the same steps, and copied after so good an example.

CHAPTER II.

INSTANCES OF RESPECT SHOWED TO THE CLERGY BY THE CIVIL GOVERNMENT. WHERE PARTICULARLY OF THEIR EXEMPTION FROM THE COGNIZANCE OF THE SECULAR COURTS IN ECCLESIASTICAL CAUSES.

Sect. 1. called into any

Bishops not to be secular court to give

their testimony.

NEXT to the respect which the clergy showed to one another, it will be proper to speak of the honours which were done them by the civil magistrates, which were more or less, according as either the inclination and piety of the emperors led them, or as the state of the times required. These honours chiefly consisted in exempting them from some sort of obligations to which others were liable, and in granting them certain privileges and immunities which others did not enjoy. Of this kind was that instance of respect, which by the laws of Justinian was granted to all bishops, that no secular judge should compel' them to appear in a public court to give their testimony before him, but he should send one of his officers to take it from their mouth in private. This law is also repeated in the Justinian Code, and there said to be enacted first by Theodosius the Great, a law of whose is still extant in the same words in the Theodosian Code. But Gothofred will have it, that this law, as first enacted by Theodosius, meant no more than to exempt the clergy from being bound to give an account to the civil magistrates, of what judgments or sentences they passed upon any secular causes that were referred to their arbitration. And indeed it is evident, that the law terms, ad testimonium devocari, and sig μaprvpíav kπikadeiodai, are taken in this sense by the African fathers in the fifth council of Carthage, where it was agreed to petition the emperors to make a decree, that if any persons referred a civil cause to the arbitration of the church, and one of the parties chanced to be displeased with the de2 Cod. Just. lib. 1. Tit. 3. de Episc. Leg. 7. Imperator Theodosius dixit, Nec honore nec legibus episcopus ad testimonium dicendum flagitetur.

Cod. Th. lib. 11. Tit. 39. de Fide Testium, Leg. 8.

4 Conc. Carth. 5. c. 1. It. Cod. Can. Afr. c. 59. Et Conc. vulgo dict. Africanum. c. 26. Petendum ut statuere dignentur, ut si qui forte in ecclesia quamlibet causam, jure apostolico ecclesiis imposito, agere voluerint, et fortasse decisio clericorum uni parti displicuerit; non liceat cleri

cision or sentence that was given against him; it should not be lawful to draw the clergyman, who was judge in the cause, into any secular court, to make him give any testimony or account of his determination. This was not intended to exempt clergymen in general from being called to be witnesses in a secular court, but only to free them from the prosecutions of vexatious and troublesome men, who, when they had chosen them for their arbitrators, would not stand to their arbitration, but prosecuted them in the civil courts, as if they had given a partial sentence against them: and though it was contrary to the law to give them any such trouble; because, as I have showed in another place, all such determinations were to be absolutely decisive and final without appeal; yet it is probable some secular judges in Africa might give encouragement to such prosecutions: which made the African fathers complain of the grievance, and desire to have it redressed, in the forementioned canon, to which Gothofred thinks the law of Theodosius refers. But whether the law of Theodosius be thus to be limited, is a matter that may admit of further inquiry. Gothofred himself confesses that Justinian took it in a larger sense; and that is enough for me to found this privilege of bishops upon, that they were not to be called into a secular court, to give their testimony there in any case whatsoever.

Sect. 2. Nor obliged to give their testimony upon oath, by the laws of Justinian.

Another privilege of this kind, which also argued great respect paid

to bishops, was, that when their testi

mony was taken in private, they were not obliged to give it upon oath, as other witnesses were, but only upon their word, as became the priests of God, laying the holy Gospels before them. For the same law of Justinian" which grants them the former privilege, enacted this in their favour and behalf also. And in pursuance of that law probably the council of Tribur some ages after' decreed, that no presbyter should be questioned upon oath, but instead of that only be interrogated upon his consecration; because it did not become a priest to swear upon a light cause. But it does not appear, that this indulgence was granted to bishops before the time of Justinian. For the council of Chalcedon exacted an oath in a certain case of

cam in judicium ad testimonium devocari eum, qui cognitor vel præsens (forsan præses) fuerit. Et nulla ad testimonium dicendum ecclesiastici cujuslibet persona pulsetur. Book II. chap. 7. sect. 3 and 4.

* Justin. Novel. 123. c. 7. Propositis SS. evangeliis, secundum quod decet sacerdotes, dicant quod noverint, non tamen jurent.

Conc. Tribur. c. 21. Presbyter vice juramenti per sanctam consecrationem interrogetur; quia sacerdotes ex levi causa jurare non debent, &c.

• Conc. Chalced. Act. 4. t. 4. P.

518.

Conc. Tyr. in Act. 9. Concil. Chalced. p. 629.

1 Baron. an. 324. n. 118.

Sect. 3. Whether the single evidence of

one bishop was good

in law against the

testimony of many

others.

the Egyptian bishops; and the council of Tyre" required the same of Ibas, bishop of Edessa. And there are many other instances of the like nature. Constantine the Great granted many privileges to the clergy; but there are some that go under his name, which were certainly never granted by him as his famed donation to the bishops of Rome, which Baronius 10 himself gives up for a forgery, and De Marca" and Pagi" prove it to be a spurious fiction of the ninth century, invented most probably by the same Isidore Mercator, who forged the decretal epistles of the ancient bishops of Rome. There are other privileges fathered upon Constantine, which though not such manifest forgeries as the former, are yet by learned men reputed of a doubtful nature; such as that which is comprised in a law under the name of Constantine 12 at the end of the Theodosian Code, where all judges are commanded to take the single evidence of one bishop as good in law, against all others whatsoGothofred is of opinion, that this whole title in the Theodosian Code is spurious; and for this law in particular, there are two arguments that seem to prove it not genuine. First, Because Constantine himself in another law says," the testimony of a single witness shall not be heard in any case, no, not though the witness be a senator. Secondly, Because the ecclesiastical laws, as well as the civil, require two witnesses, as has been noted in the last chapter. Which, I think, are sufficient arguments to prove, that no such extravagant privilege could be granted to bishops by Constantine: but I leave the reader to judge for himself, if he can find better arguments to the contrary.

ever.

11 Marca, de Concord. lib. 6. c. 6. n. 6. 12 Pagi, Critic. in Baron. an. 324. n. 13.

13 Cod. Th. lib. 16. Tit. 12. de Episc. Audient. Leg. 1. Testimonium etiam ab uno licet episcopo perhibitum, omnes judices indubitanter accipiant, nec alius audiatur, cum testimonium episcopi a qualibet parte fuerit repromissum. 14 Cod. Th. lib. 11. Tit. 39. de Fide Testium, Leg. 3. Sancimus, ut unius omnino testis responsio non audiatur, etiamsi præclara curiæ honore præfulgeat.

15 Vid. Cod. Justin. lib. 9. Tit. 41. de Quæstionibus. It. Cod. Theod. lib. 13. Tit. 9. de Naufragiis, Leg. 2.

16 Aug. Serm. 49. de Divers. t. 10. p. 520.

17 Synes. Ep. 58.