FALSE
776
FALSE
mands that provincial councils be held at regular in-
tervals. He asserts for the pope the right to authorize
the calling of all councils and to approve their de-
cisions. Laid down in this general and imperative
manner, these claims were something new. Nothing
like it had been of obligation for the holding of pro-
vincial councils; as for approving of the decrees of
councils, it was a common occurrence in antiquity.
A\'hen matters of serious importance were m question
the popes clauned the right of approval, but there
was no formal or general precept assertmg such right.
And in any case Isidore's legislation thereon never
became the practice.
Ecclesiastical Trials. — The procedure to be followed in the trial of ecclesiastics is of special interest to Isi- dore. According to him, the jutlging of clerics of all ranks up to and including the priesthood belongs as a last resource to the provuicial councils and the pri- mates. He says nothing about priests appealing to Rome, and in this he agrees with the fourteenth canon of the Council of Sardica. Apropos of the trials of bishops he shows some inconsistency in his legisla- tion. On the one hand, he upholds the law as it ex- isted prior to his time, and on the other hand, he lays down a new law. Hence we find two series of texts which it is not easy to reconcile. The first series agrees with the existing law. A provincial council is the ordinary judge of bishops. The pope interferes only on appeal made to him by one of the interested parties. However, in the case where the impartiality of the judge is seriously doubtful, the bLshop need not wait for the council to pass sentence, but may take his case straight to Rome. Stated in this general way, the latter provision is new. But as it is based on the idea of plain justice, it is not altogether foreign to the ancient ecclesiastical law. It was expressly men- tioned in Roman law, from which Isidore borrowed it. How may the pope set about hearing an appeal ? The ancient law did not exclude, but did not make pro- vision for, sentence being passed at Rome itself. It recognized the pope's right to appoint a court of ap- peal composed of bishops from the neighbourhood of the accused ; furthermore, he had tlie right to be repre- sented there by a legate, who would naturally have a preponderating role at the trial. Such were the rul- ings of the Council of Sardica. But as a matter of fact, from the fifth century we have cases where the pope summoned episcopal appeals to be heard in Rome itself. So it is not a great surprise that Isidore should leave the pope free to decide where the final trial should take place. But, as we pointed out, side by side with this first series of decisions along the lines of the ancient law, we find another series which lays down a new law. Therein it is said that in the trial of bishops, the function of the provincial council is lim- ited to hearing both sides of the case and referring it to the pope for judgment. Sentence can only be passed with his approbation. This is new legislation. But once more Isidore is not really inventing; he is merely giving clear and direct expression to the tendencies of his day. In face of the dangers created for the bishops by political disturbances, by the fear of being condemned for party feeling or through motives of revenge, the bishops themselves were eager that charges against them should not be decided without the approval of the pope.
One of the most characteristic peculiarities of the false decretals is the procedure laid down for the trial of bishops. Isidore (leclares over and over that it was the will of the Apostles that there be as few charges as possible made against bishops, and tliat, when there are any, their trial should be made as difficult as pos- sible. This is a point worth remembering. The ac- cusation of bishops will be a difficult thing, their de- fence an easy matter. Isidore's legislation on this head, when systematized, so efficaciously hindered any judicial action against a bishop that the reader is
almost inclined to treat it as a joke. However, we
must be just; it was not all an invention on Isidore's
part. His procedure in the main reproduces the
requirements of Roman law ; it draws on the decisions
of the Roman apocrypha of the time of Symmachus
(498-514), and it levies tribute from the laws of the
Barbarian kingdoms. In a case of this kind, any-
thing like a careful and thorough criticism requires that
great attention be paid to the question of the sources
employed. Isidore piles up obstacles against the
accusation of bishops, but the obstacles are not all of
Isidore's own devising. Any bishop dispossessed of
his see by violence, and who is summoned to the courts,
has a right to raise the plea of actio spolii, i. e. to fall
back on the fact of dispossession in order to avoid
trial, until he has been pro\-isionally restored to his
possessions and dignities. This appeal before trial is
one of the main points in the Isidorian procedure.
The only one who is competent to bring a charge
against a bisliop is the council of his province. For-
eign tribunals are excluded, and the provincial council
must have a full quorum. The charge must be made
in the presence of accused and accusers. If one of the
interested parties absconds, the whole judicial ma-
chine comes to a standstill.
The following are the rules governing accusations. A lajTnan can bring no charge against a bishop. This rule, which occurs also in the Roman apocrj-pha of the time of Symmachus, may be explained by the different judicial status of clerics and lajnnen at the time of Isi- dore. Clerics were judged according to Roman law, whereas many laymen were subject to Germanic law, and the procedure under these two laws was different and even hostile. Moreover, at times laymen would not recognize clerics as having the rights to accuse them in the courts; and thus the clerics might well declare laymen incompetent in their courts. Then, too, it must not be lost sight of that Isidore's principle was never observed in practice; a tnodus agendi was always found. Isidore's second principle was that a cleric could never bring a charge against his superior. It is evident that thus the number of possible accusers became very restricted. The accusation must be made not in writing, but by word of mouth. Only those might brmg charges who fulfilled exceptional con- ditions in respect to rank and standing. In this way it was easy to get rid of a troublesome accuser. The witnesses must be of equal merit with the accuser, and it took seventy-two witnesses to condemn a bishop. This again is not an invention of Isidore's. It was an old custom that a bishop might only be condemned by a council of seventy or seventy-two bishops. The numbers are an allusion either to the seventy elders of the Jewish people or to the Seventy-Two Disciples. But Isidore managed to complicate the situation by applying the number to the witnesses; though even if it were applied to the judges, the difficulty would not be lessened in practice. It was no easy matter to get together so numerous a tribunal. In the ninth century Photius declared that these two traditional ninnljcrs were not necessary; in any case Isidore's legislation was never enforced. The hearing of the charge follows Roman law, and minute regulations were drawn up to secure all the necessary scope and impartiality to the arguments for and against. Any admission of guilt had to be absolutely spontaneous, and no signature obtained by force was valid.
In his preface Isidore dec"lares the purpose of his work. His aim is to build up a collection of canons more complete than any other by uniting together all the canons dispersed am.ong the various existing col- lections. What mu.st we think of this declaration? There is some truth in it, but his collection takes on a character all its own by the fact that it includes a hun- dred documents forged in Isidore's workshop. He might easily have made that more complete collection, witliout having recourse to forging documents for it.
