History of the Decline and Fall of the Roman Empire — Volume 2

videtur dudum sanctio repulsisse. Cod. Theod. l. xvi. tit. ii. leg. 15. Had the synod of Rimini carried this point, such practical merit might have atoned for some speculative heresies.]

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, 110 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. 111

1. Under a despotic government, the bishops alone enjoyed and asserted the inestimable privilege of being tried only 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 favorable, or even partial, to the sacerdotal order: but Constantine was satisfied, 112 that secret impunity would be less pernicious than public scandal: and the Nicene council was edited 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of the bishops was at once a privilege and a restraint of the ecclesiastical order, whose civil causes were decently withdrawn from the cognizance of a secular judge.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 parents 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 honorable 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 interrupted by the invidious labor 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. 113 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.

110 (return) [ From Eusebius (in Vit. Constant. l. iv. c. 27) and Sozomen (l. 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, l. xxix. c. 16) without intimating any suspicion.]