developed earlier than the corresponding institution at Rome, may be traced to the fact that bishops from all parts were constantly in Constantinople. The bishop of Constantinople, even before he became properly “patriarch,” would often assemble a synod from these visiting bishops, which acquired the technical name of σύνοδος ἐνδημοῦσα, the synod of sojourners. This synod frequently decided questions belonging to other patriarchates.
The criminal jurisdiction thus exercised was generally speaking unlimited. It must be remembered that the forum externum of the ecclesiastical jurisdiction, in the sense in which we now use the phrase, of a judge deciding causes, was not then clearly marked off from the forum internum, or what afterwards came to be called the “tribunal of penance” (see Van Espen, Jus ecc. univ. pars iii. tit. iv. c. 1). Ecclesiastical proceedings by way of prosecution are called “criminal,” but they are primarily pro salute animae; whereas temporal criminal proceedings are primarily for the protection of the state and its citizens. Hence a Christian might be first punished in the civil courts and then put to public penance by the ecclesiastical jurisdiction, or vice versa: an apparently double system of punishment which the medieval Church, when the forum externum had become quite separated from the forum internum, sometimes repudiated (see Maitland, English Canon Law, 138, 139, 144).
Theodosius began the system of giving secular authority to Church tribunals. Thus, in 376, L. 23 Cod. Theodos. de. Episcopis, &c., subjected clerics for small offences pertaining to the observances of religion to bishops and synods. In 399, L. 1 Cod. de Religione provides that, when it is a matter of religion, it beseems the bishop to judge. A rescript of Constantius, in 355, inserted in Cod. Theod. lxii. de Epis. Ecc. et Cler., excluded bishops from accusations before secular judges and commanded such accusations to be speedily brought before the tribunal of other bishops. This law was probably only intended to be of a temporary character. Then comes the law of Gratian already noticed. Then, in 399, a law of Honorius (Cod. Theod. L. 1 de Religione): “As often as it concerns religion, it is meet that the bishops should judge, but other causes which belong to ordinary jurisdiction or to public law are to be heard in the ordinary courts (legibus oportet audiri).” L. 3 de Epis. Jud., at the end of the Theodosian Code, seems spurious (see the comment of Gothofredus in loco). But a constitution of Honorius in 412 (Cod. Theod. L. xli. de Epis. Ecc. et Cler.) provides that clerks are not to be accused except before the bishop. Bishops, priests, deacons, and every other “minister of the Christian law” of inferior degree, are taken from secular jurisdiction in criminal cases. The words are quite general; but it has been contended that they apply only to crimes of an ecclesiastical character (see Gothofredus in loc.; Van Espen, pars iii. tit. iii. c. 1, 10). In 425 a constitution of Theodosius II. provides that a recent decree of the usurper John should be disregarded and that clerks whom he had brought before secular judges should be reserved for the episcopal jurisdictions, “since it is not lawful to subject the ministers of the divine office to the arbitrament of temporal powers.” Justinian has a clearer perception of the demarcation between the spheres of spiritual and temporal law. The 83rd Novell provides that if the offence be ecclesiastical, needing ecclesiastical correction, the bishop shall take cognizance of it. The 123rd Novell (c. 21) provides that if a clerk be accused of a secular crime he shall be accused before his bishop, who may depose him from his office and order, and then the competent judge may take him and deal with him according to the laws. If the prosecutor have first brought him before the civil judge, the evidence is to be sent to the bishop, and the latter, if he thinks the crime has been committed, may deprive him of his office and order, and the judge shall apply to him the proper legal punishment. But if the bishop think the evidence insufficient, the affair shall be referred to the emperor, by way of appeal both from bishop and judge. If the cause be ecclesiastical, the civil judges are to take no part in the inquiry. The law includes with clerics, monks, deaconesses, nuns, ascetics; and the word “clerics” covered persons in minor orders, down to doorkeepers. It will be noticed that Justinian supposes that the prosecutor may begin the proceedings before the civil judge. A constitution of Alexius Comnenus I. seems to send him to the special forum of the accused.
Certain enactments of later Saxon times in England have been sometimes spoken of as though they united together the temporal and spiritual jurisdictions into one mixed tribunal deriving its authority from the State. In the latter part of the 10th century, laws of Edgar provided that Anglo-Saxon courts.the bishop should be at the county court and also the alderman, and that there each of them should put in use both God’s laws and the world’s law (Johnson’s English Canons, i. 411). This probably was, as Johnson suggests, that the bishop might enforce secular laws by ecclesiastical censure and the alderman ecclesiastical laws with secular punishment. But the two jurisdictions were kept separate; for by another law of Edgar (Leges Edg. c. v.) it was provided that “in the most august assembly the bishop and alderman should be present, and the one should interpret to the people the law of God, the other the laws of men.” Edgar, in a speech to St Dunstan and the bishops in synod (in 969), said, “I hold in my hands the sword of Constantine, you that of Peter. Let us join right hands and unite sword to sword” (Hardouin, Conc. tom. vi. p. 1, col. 675). The juxtaposition of the judicatures may, however, have led to some confusion between them.
As to appeals the mixed council of Cliff at Hoo (747) said they should go to the synod of the province. The only appeal to Rome in Saxon times was that of St Wilfrid, bishop of York, who appealed from the division of his see and his deposition for refusing to consent to it, and was heard in a Roman synod under the presidency of Pope Agatho. The synod found him unlawfully deposed and ordered his restoration. Upon his return to England, the Roman judgment was refused recognition and he was for a time imprisoned. Ten years later he was recalled to York, but refusing to consent to the division of his see was again deposed and again appealed to Rome. The appeal was heard at great length, in a synod of 703 under John VI., deputies from the archbishop of Canterbury being present. St Wilfrid was justified and was sent back to his see, with papal letters to the kings of Northumbria and Mercia. The Roman decree was again disregarded. At the council of “Nid” he was reconciled to the other bishops of the province, but not restored. In the end he was brought back to York, but not to the undivided see. The details of the case will be found in Wilkins, Concilia, in Mansi, Concilia, under the various councils named, and in Haddan & Stubbs, Councils and Eccl. Documents, vol. iii.
The penalties which the spiritual court could inflict, in the period between the edict of Milan and c. 854, were properly excommunication whether generally or as exclusion from the sacraments for a term of months or years or till the day of death and (in the case of clerics) suspension Penalties inflicted by ecclesiastical courts.or deposition. Gradually, however, doubtless by way of commutation of excommunication and of penance, temporal penalties were added, as scourging, banishment, seclusion in a monastery, fines. It is difficult to say how far some of these temporal penalties were penitential only or how far they could be inflicted in invitos. But the secular arm, from the time of Nicaea I., was in the habit of aiding spiritual decrees, as by banishing deposed bishops, and gradually by other ways, even with laymen. Scourging (although it had been a well-known punishment of the synagogue) was at first forbidden. Can. 28 (26) of the Apostolic Canons imposes deposition on any bishop, priest or deacon striking the delinquent faithful. In Africa, however, a contrary practice early sprang up (see St Augustine, Epist. clix. ad Marcellum al. cxxxiii.). The small council of Vannes in Brittany in 465 made it an alternative punishment for clerks convicted of drunkenness (Can. 13). Canon 13 of the first council of Orleans, which has been cited in this matter, seems to have no application. St Gregory the Great seems to assume that scourging and seclusion in a monastery are in the discretion of episcopal tribunals (see Epistles, lib. ii. ep. 11, 40, 42, 44, 45; lib. vii. ep. 11, 67; lib. xii. ep. 31, c. 4). The 16th council of Toledo
