LETTER CV.

IT is a grateful task, on all occasions, to rescue real worth from the obloquy of unmerited opprobrium. The clergy, as I have often been happy to express, had an undoubted and a superior credit in the most difficult moments of the modern history of Europe. When they had established their influence in the western parts, for instance, they had the singular merit of endeavouring every where to repress the disorder and injustice arising from the anarchy of the feudal times. The weak and defenceless, who met with insult and oppression, from every other quarter, found protection from the church; and widows and orphans, and all persons in distress, persona miserabiles, who had been banished from the barbarous tribunal of the lay judges, found a welcome reception in the spiritual courts, where their causes were commonly examine with candour, and determined with impartiality.

Military

Military barons, invested with civil jurisdiction, paid little attention to the claims of any person, from whose future services they could derive no benefit, or from whose resentment they had nothing to fear. To the honour of the clergy, then, it must be remembered, that they were the friends of order and regular government; that if they laboured to rear a system of ecclesiastical despotism, their authority was generally employed in maintaining the rules of justice; and that they discovered an uniform inclination to protect the weak and defenceless against that violence and oppression, which was too much. countenanced by such of the laity as were possessed of opulence and power. From this circumstance, accordingly, the extension of the ecclesiastical jursidiction was highly acceptable to the people, and notwithstanding the pernicious consequences, which they ultimately tended to produce, were, in the mean time, of great. advantage to the lower orders of men, if not of general benefit to the community.*

The church is, by some, condemned on account of the canon law. And if we consider it. politically, and view it either as a system framed on purpose to assist the clergy in usurping

Professor Millar.

power

power and jurisdiction, no less repugnant to the nature of their functions, than inconsistent with the order of government; or as the chief instrument in establishing the dominion of the Pope, which shook the thrones, and endangered the liberties of every kingdom in Europe; we must pronounce it one of the most formidable engines ever formed against the happiness of civil society. But if we contemplate it as a code of laws, respecting the rights and privileges of individuals, and attend only to the civil effects of its decisions concerning these, it will appear in a different, and much more favourable light.*

In ages of ignorance and credulity, the ministers of religion every where are objects of su-perstitious veneration. Nor is it in such times difficult for a body, so formed, to plead and ob tain an almost total exemption from the authority of civil judges, and to establish courts, in which every question, relating to their own character, or their function, shall ultimately be tried. This privilege, the Christian ministry extended so much, that the greater part of those affairs, which gave rise to contest and litigation, was drawn under the cognizance of the spiritual courts. Nor is it strange, that this

• Robertson.

this was the case. That scanty portion of science which served to guide men in the ages of darkness, was wholly engrossed by the clergy. They, alone, were accustomed to read, to enquire, and to reason. The barons terminated their difference by the sword But by the canon law, every matter was subjected to the decision of the laws. By the one, chance and force were left to be arbiters of right and wrong, of truth and falsehood. The other passed judgment by the maxims of equity, and the testimony of witnesses.

In the earliest ages of the church I do not find that the clergy pretended to claim exemption from the civil jurisdiction. On the contrary, even in the ninth and tenth centuries, causes, of the greatest importance relative to ecclesiastics, were still determined by civil judges.* This privilege then, like their other usurpations, was gained slowly. Those doctrines in the code of the canon law, which are most favourable to the power of the clergy, were founded in superstition, and supported by imposture. They began to be compiled, about the beginning of the ninth century; and it was above two centuries after this, before any collections were made of those

Antiq. Ital, vol. v. dissert. 70.

customs

customs, which were the rule of judgments, in the courts of the barons.* And yet, the whole spirit of ecclesiastical jurisprudence was adverse to those sanguinary customs, which were destructive of justice, I mean, the trial by combat.

So entirely, indeed, was this felt, that it was deemed an high privilege to be subject to eccle-siastical jurisdiction. Among the many immunities by which men were allured to engage in the dangerous experiments, for the recovery of the holy land, one of the most considerable was, declaring such as took the cross, to be subject only to the spiritual courts. The copy of Justinian's Pandects was not discovered at Amalphi in Italy, till the middle of the twelfth century; and before the close of it the feudal law was enlarged and methodized. In no country of Europe, however, was there at that time any collection of customs; nor had any attempt been made to render law fixed. The first undertaking of the kind was by Glanville, Lord Chief Justice of England, composed about the year 1181. The clergy, therefore, we see, anticipated one of the noblest monuments of the wisdom of the Romans, their system of jurisprudence.

They

• Mem. de l'Acad. des Inscrip." ↑ Robertson.