Religion and the Middle Ages
In the later Middle Ages, the Church exerted a potent influence upon law. A very extensive jurisdiction was exercised by the ecclesiastical courts, which not only secured a more general exemption of the clergy from secular jurisdiction, but extended their own jurisdiction over laymen. Widows, orphans and helpless folk in general were protected by the Church, which also dealt with such a wide range of semi-secular offenses as falsification of measures, weights and coins; forgeries of documents; libel and scandal; perjury, including false witness and failure to perform an oath or vow; and usury, which then meant taking any interest for the use of money. In many of the above cases, the Church had a jurisdiction that was not exclusive, but exercised concurrently with that of the secular courts.
From the viewpoint of jurisdiction over sin, the Church naturally penalized a number of distinctly religious offenses: e.g., breaches of ecclesiastical regulations and discipline, and such major offenses as apostasy, heresy, schism, sorcery, witchcraft, sacrilege and sexual sins. In some of these cases, too, ecclesiastical jurisdiction was concurrent with that of the secular courts.
As was natural from the fact that marriage was considered a sacrament, the Church also exercised control over matrimonial cases and such related matters as the legitimacy of children, the recording of marriages and of baptisms, wills bequeathing personal property, and distribution of the property of intestates. For the exercise of its wide jurisdiction, the Church had developed courts superior to the secular courts in point of procedure, differentiation of penalties according to motives and other attendant circumstances, and use of the principles of jurisprudence. In some of these respects, the Church was transmitting much, which it had learned from the laws of the later Roman Empire; in others, Christian principles were humanizing the law.
Nor was ecclesiastical influence upon law confined to the Middle Ages, for a considerable part of the canon law, which developed then, continued to have vital effects upon public and private law long after the Protestant Revolt. In international relations, it was principally the Church, which kept alive the conception that all Christian peoples constitute a society of Christian nations, later broadened into the idea of a society of civilized nations; and there were valuable ecclesiastical contributions to the modern conviction that foreigners have legal rights, even in the absence of a treaty to that effect. Ecclesiastics taught that Christian principles should be followed in settling controversies between Christian princes and peoples; arbitration by the Pope was resorted to in a number of cases; and the Church made efforts to lessen the brutality of war. The chancellories and administrations of absolute monarchies of feudal states in Europe imitated the organization and procedure of the ecclesiastical hierarchy. In criminal law, the Church led in recognizing a class of healing penalties, imposed to reform the criminal, thus anticipating many recent reforms; and it spread the Christian conception that all should be equal before the law. In civil law, ecclesiastical influence is discernible in the institution of testamentary executors, and in the appointment of administrators of estates for which there were no wills; as well as in modifying certain details of civil procedure.
But many of the above-mentioned respects in which the Church influenced secular law in the later Middle Ages owed their foundations to periods earlier than the twelfth and the thirteenth centuries. In numerous instances, the origins go back to the early Middle Ages, that period which lies between the late fourth century and the end of the eleventh century; while some other precedents arose still earlier in the institutions of the Germanic and the Celtic peoples, or in the Greco-Roman civilization. Consequently, the relations of religion and law in the early Middle Ages deserve much more attention than they have received in popular accounts. In tracing these connections and their effects upon medieval civilization, we shall observe the part played by churchmen in making and writing down the secular laws, ecclesiastical influence upon the purposes of those laws, and ways in which the Church aided in reinforcing and in supplementing penal law.
Behind the writing down of the laws, there lay long centuries, in which there were very close connections between religion and law. For example, in those distant days, the office of king combined executive, judicial and religious functions, and pagan priests participated in the making of law and in its execution. The early assemblies and rudimentary courts of the barbarians met under the auspices of their pagan religions, which also provided some religious sanctions for the enforcement of law.
But although their pagan priests made some slight progress in devising means of writing, the customary laws of the Germanic and the Celtic peoples were not written down before the coming of Christianity; and, even then, considerable portions of the law remained unwritten for some time. In the formation of written codes of law among the barbarians, clerics played an important part, assisted in the beginning by lay experts in the Roman law, in Mediterranean countries where that law survived in its strongest form.
Legends ascribe to certain saints participation in the compiling of some codes of customary law, with revisions designed to eliminate pagan matter. One of the most interesting of these legends claims that the codes of the "Law of Nature" and of the Christian law were reconciled and further codified by a commission, in which St. Patrick exerted a powerful influence.1 According to Professor MacNeill, however, a more credible tradition places the first writing down of the early Irish laws in the seventh century. As compared with the peoples of England and of the Continent, the medieval Irish gave more power to trained lay jurists, called Brehons, in the making, interpretation and application of the laws. But even the Brehons received training in canon, as well as in secular law, in professional law schools, which anticipated by several centuries those of the medieval universities on the Continent.
In the revisions and additions to the early barbarian codes, also, the clergy exercised a potent influence. Prelates sat in the mixed assemblies, which made new laws; advised kings and emperors in drawing up their edicts, which, on the Continent and in England, were usually written by ecclesiastics; and, in some countries, had their representatives present in secular courts in the trial of certain cases. Spain under the Visigoths, from about A.D. 429 to the early eighth century, gave to prelates the most extensive legislative and judicial powers. For example, seventh-century Spanish synods went far beyond the field of Church legislation, covering many questions pertaining to the secular constitution; and, in the mixed council of Toledo of A.D. 653, ecclesiastical magnates far outnumbered the secular ones. In general, during the Visigothic monarchy, the form of the secular code became distinctly ecclesiastical, while the predominance of the hierarchy in Spain may be observed in numerous other respects.
Nor were the above the only instances of religious influence upon the beginnings of law among the barbarians, for they, like others in the early history of society, deemed law to be of divine origin and believed that the purposes of law were religious, as well as secular. This conception is expressed very well in one of the later Visigothic laws, known as the Forum Judicum or Fuero Juzgo, perhaps coming from as early as the year 932 but transmitted, in considerable part, to later Spanish codes. In this Visigothic code, "framed largely by the Spanish clergy in the councils of Toledo, law is defined as 'the emulator of divinity, the messenger of justice, the mistress of life.'"2
In contrast to our present practice, the secular laws of the Middle Ages constantly reiterated that crimes were sins, and that secular penal law had a religious, as well as a punitive purpose. In addition to being wrongs against individuals or the State, crimes were regarded as defiling the souls of the committor. This conception is best exemplified in the Irish laws, in which the Old Irish verb used for the commission of a crime also means "to defile," and it is definitely stated that "body and soul are defiled by committing crimes." Punishment was for the purpose of purging away this defilement. As further indication of the religious character of penal law in the early Middle Ages, many secular codes contain hosts of passages of a moralizing nature, sometimes with lengthy quotations from the Scriptures.3
In other respects, also, the contents of early medieval law repeatedly point to a union of religious and secular purposes. This characteristic becomes strongest in the more developed laws of the early Middle Ages, particularly in the monarchies of the Franks, the Visigoths, the Anglo-Saxons, the Welsh and the Irish. In the secular laws of the above peoples, a multitude of passages deal with ecclesiastical or semi-ecclesiastical matters. Thus they provide valuable supplements to other sets of purely ecclesiastical laws that were passed by Church councils and by the ecclesiastical and the mixed synods of national Churches.
Such a wide variety of ecclesiastical matters are dealt with in the secular laws of the early Middle Ages, as to preclude detailed treatment in this brief article. In general, however, important groups of such ecclesiastical provisions often dealt with such questions as the following: The protection of clerics and of Church property; penalties for injuries or wrongs to the same; the suppression of paganism, apostasy and heresy; provision for sanctuary and for the sanctity of ecclesiastical courts; the general enforcement of ecclesiastical discipline; the observance of holy days, etc.
Of special significance for the cooperation of Church and State in combating crime and paganism are the detailed passages in secular codes which enforced the performance of confession and of penance. Such requirements applied not only to criminals, but also to all Christians above the age of seven, a requirement coming from the canon law. In some of the secular codes, there are also many passages enforcing excommunication and putting excommunicated persons, particularly criminals, under a ban, which meant ostracism by all the faithful. Indeed, there is abundant evidence in the secular laws that the State gave material aid to a movement by which the Church was reviving the practice of penitential discipline from the sixth century forward, and was endeavoring to establish frequent confession and penance as a habit of the devout life.4
In many of the ecclesiastical provisions of the secular laws, one may also discern the influence of the developing science of moral theology, with its definitions of sins, distinctions between their degrees, prescriptions for their cure, etc.; while the related science of canon law is frequently revealed as influencing secular institutions. But in the actual administration of the sacrament of penance and other matters solely within ecclesiastical jurisdiction, it must be remembered that secular laws supplemented the canon law, and did not infringe upon powers invested in the clergy. This means, for example, that although the State backed the requirement of confession and penance, and enforced excommunication, the control of ecclesiastical discipline remained in the hands of the duly constituted clerics.
The Church, on its side, in various ways rendered valuable aid to the State in the endeavors of the latter to maintain law and order. That was an age when such assistance was sorely needed, for there were powerful obstacles to the suppression of crime and disorders, which long retarded the development of peaceful justice, particularly when the executive machinery was weak. Until the developing power of kings and of more effective executive machinery and law brought improvements, it was often difficult to make delinquents do justice; private vengeance was still allowed in a number of cases, at times developing into dangerous private wars or feuds; there was grave danger of perjury, because of defects in court procedure; and the secular laws sometimes left unpunished certain heinous offenses.
In such circumstances, the pressure exerted against malefactors by the secular government needed reinforcement and supplementing. This aid was rendered by the Church through religious sanctions and safeguards to strengthen legal procedure, other provisions which backed secular enforcement, and supplementary penalties for delinquents. Ecclesiastical discipline was the natural means used for this co-operation, and the usual instrument for such discipline was penance, sometimes backed, in cases of recalcitrance, by the ban of excommunication.
Penitential discipline had close connections with many more aspects of medieval life than has usually been represented by writers dealing with the history of penance.5 The influence of that sacrament had many ramifications, which penetrated deeply into numerous areas of medieval society — social, economic, political and cultural, as well as ecclesiastical. Social and economic life was profoundly affected by numerous penitential prescriptions, regulating such varied matters as food and drink, marriage, sexual relations, charity, the treatment of women and children, the emancipation of bondsmen, and the sacredness of oaths.
Such penitential prescriptions are present in various sources of the canon law of that time, but are especially prominent in the little manuals of penance, that were customarily used by priests in assigning penances for all sins, from about the beginning of the seventh century to the end of the eleventh.6 These manuals were called penitentials, to be marked off distinctly from other manuals of penance by their detailed tariffs, or schedules, of specific penances for long lists of sins. From this characteristic, the system of penitential discipline under the penitentials has been aptly called "tariffed penance."
Among various ways in which the enforcement of secular law was aided by the Church, great significance attaches to the many and potent religious sanctions, developed much farther than had been the case in pagan times. Oaths, ordeals, and other parts of legal procedure were taken under the protection of the Church and surrounded with solemn rituals, employed to overawe criminals and witnesses, prevent perjury, appeal to the judgment of God to aid the right, etc. Solemn oaths, sworn on holy objects or persons, were required as religious safeguards in a multitude of penal, political, social, business and religious affairs. Perjury committed in such oaths, regarded as a most enormous sin, was visited by extremely severe penances in addition to secular penalties. Additional and valuable aid to criminal law was rendered by penitential and other canons, which insisted upon restitution to wronged persons, penalized refusal to do justice, and sternly punished the pursuing of private vengeance and the blood feud.
Penitential discipline also penalized a considerable number of serious offenses, which the early Germanic and Celtic laws, either left unpunished, or penalized too lightly. These delinquencies included a number of sexual offenses, infanticide, brawling, infringement of the marital code of the Church, and the mistreatment of slaves and of serfs. In punishing such wrongs against fellow human beings, penance made valuable contributions toward a higher evaluation of life, honor and humanity. Through such endeavors, the Church carried on a long and difficult struggle against many a savage or sensual custom, which militated against the welfare of women, children and other dependents. In particular, the upward progress of humanity received potent aid in the long struggle for the Christian ideal of monogamy, assisted by the heavy penances upon concubinage and other forms of immorality; while the growth of freedom gained momentum through the encouragement given by the Church to the emancipation of slaves or of serfs as a good work.
In addition to the above instances, there were various other respects in which early medieval law was influenced by the Church. It was largely through the work of clerics that the field of criminal law was first extended to cover offenses primarily against individuals but tending to undermine the social order. A religious marriage replaced the pagan one of sale or of contract, and the Church repeatedly intervened to protect the wife. Ecclesiastical protection was extended to slaves manumitted in a church or by testament. Roman conceptions of and instruments for wills and deeds were spread throughout Western Europe by churchmen; and Roman conceptions of differentiating penalties according to motives or other circumstances were gradually introduced by churchmen into the secular laws, sometimes by way of the penitentials.
We have now observed the main outlines in the relations between medieval religion and law, especially in the early Middle Ages. In these relations, Church and State constantly co-operated in making notable contributions to the maintenance of law and order, and hence, to the advancement of civilization. With the further revival of Roman law and the more extended development of canon law in the late Middle Ages, these processes made additional gains. But behind the co-operation of secular and ecclesiastical discipline in combating sin, there lay the constant and more positive work of the Church in inculcating religious doctrines and high moral ideals through religious instruction. Without such instruction to serve as inspiration and guide to right conduct, many of the relations between religion and law, which we have observed, would have been inconceivable or ineffective.
Notes
1 See A. S. Green, History of the Irish State to 1014, 1925, p. 233; cf. Eoin MacNeill, Early Irish Laws and Institutions, chaps. iii-iv.
2 See M. F. X. Millar, S.J., "History . . . of Democratic Theory," in Ryan and Millar, The State and the Church, 1922, p. 102.
3 For further details, see an article "Mediaeval Penance and the Secular Law," by the present writer, and Its references in Speculum, Vol. III, pp. 516 and passim.
4 See the article, '"Mediaeval Penance and the Secular Law," already cited; and O. D. Watkins, History of Penance, 1920, passim.
5 See "Some Neglected Aspects in the History of Penance," by the present writer, in the Catholic Historical Review, October, 1938.
6 In the British Isles, penitentials were also used in the sixth century.
© 1939 Missionary Society of St. Paul the Apostle (The Paulist Fathers), New York.
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