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History of the Christian Church, Volume III: Nicene and Post-Nicene Christianity. A.D. 311-600.
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§ 16. Episcopal Jurisdiction and Intercession.


4. We proceed to the legal validity, of the episcopal jurisdiction, which likewise dates from the time of Constantine.

After the manner of the Jewish synagogues, and according to the exhortation of St. Paul,157157   1 Cor. vi. 1-6. the Christians were accustomed from the beginning to settle their controversies before the church, rather than carry them before heathen tribunals; but down to the time of Constantine the validity, of the bishop’s decision depended on the voluntary, submission of both parties. Now this decision was invested with the force of law, and in spiritual matters no appeal could be taken from it to the civil court. Constantine himself, so early as 314, rejected such an appeal in the Donatist controversy with the significant declaration: “The judgment of the priests must be regarded as the judgment of Christ himself.”158158   “Sacerdotum judicium ita debet haberi, ut si ipse Dominus residens judicet. Optatus Milev.: De schism. Donat. f. 184. Even a sentence of excommunication was final; and Justinian allowed appeal only to the metropolitan, not to the civil tribunal. Several councils, that of Chalcedon, for example, in 451, went so far as to threaten clergy, who should avoid the episcopal tribunal or appeal from it to the civil, with deposition. Sometimes the bishops called in the help of the state, where the offender contemned the censure of the church. Justinian I. extended the episcopal jurisdiction also to the monasteries. Heraclius subsequently (628) referred even criminal causes among the clergy to the bishops, thus dismissing the clergy thenceforth entirely from the secular courts; though of course holding them liable for the physical penalty, when convicted of capital crime,159159   Even Constantine, however, before the council of Nice, had declared, that should he himself detect a bishop in the act of adultery, he would rather throw over him his imperial mantle than bring scandal on the church by punishing a clergyman. as the ecclesiastical jurisdiction ended with deposition and excommunication. Another privilege, granted by Theodosius to the clergy, was, that they should not be compelled by torture to bear testimony before the civil tribunal.

This elevation of the power and influence of the bishops was a salutary check upon the jurisdiction of the state, and on the whole conduced to the interests of justice and humanity; though it also nourished hierarchical arrogance and entangled the bishops, to the prejudice of their higher functions, in all manner of secular suits, in which they were frequently called into consultation. Chrysostom complains that “the arbitrator undergoes incalculable vexations, much labor, and more difficulties than the public judge. It is hard to discover the right, but harder not to violate it when discovered. Not labor and difficulty alone are connected with office, but also no little danger.”160160   De sacerd. l. iii. c. 18, at the beginning. Augustine, too, who could make better use of his time, felt this part of his official duty a burden, which nevertheless he bore for love to the church.161161   In Psalm. xxv. (vol. iv. 115) and Epist. 213, where he complains that before and after noon he was beset and distracted by the members of his church with temporal concerns, though they had promised to leave him undisturbed five days in the week, to finish some theological labors. Comp. Neander, iii. 291 sq. (ed. Torrey, ii. 139 sq.). Others handed over these matters to a subordinate ecclesiastic, or even, like Silvanus, bishop of Troas, to a layman.162162   Socrat. l. vii. c. 37.

5. Another advantage resulting from the alliance of the church with the empire was the episcopal right of intercession.

The privilege of interceding with the secular power for criminals, prisoners, and unfortunates of every kind had belonged to the heathen priests, and especially to the vestals, and now passed to the Christian ministry, above all to the bishops, and thenceforth became an essential function of their office. A church in Gaul about the year 460 opposed the ordination of a monk to the bishopric, because, being unaccustomed to intercourse with secular magistrates, though he might intercede with the Heavenly Judge for their souls, he could not with the earthly for their bodies. The bishops were regarded particularly as the guardians of widows and orphans, and the control of their property was intrusted to them. Justinian in 529 assigned to them also a supervision of the prisons, which they were to visit on Wednesdays and Fridays, the days of Christ’s passion.

The exercise of this right of intercession, one may well suppose, often obstructed the course of justice; but it also, in innumerable cases, especially in times of cruel, arbitrary despotism, protected the interests of innocence, humanity, and mercy. Sometimes, by the powerful pleadings of bishops with governors and emperors, whole provinces were rescued from oppressive taxation and from the revenge of conquerors. Thus Flavian of Antioch in 387 averted the wrath of Theodosius on occasion of a rebellion, journeying under the double burden of age and sickness even to Constantinople to the emperor himself, and with complete success, as an ambassador of their common Lord, reminding him of the words: “If ye forgive men their trespasses, your heavenly Father will also forgive you.”163163   Matt. vi. 14.

6. With the right of intercession was closely connected the right of asylum in churches.

In former times many of the heathen temples and altars, with some exceptions, were held inviolable as places of refuge; and the Christian churches now inherited also this prerogative. The usage, with some precautions against abuse, was made law by Theodosius II. in 431, and the ill treatment of an unarmed fugitive in any part of the church edifice, or even upon the consecrated ground, was threatened with the penalty of death.164164   Cod. Theodos. ix. 45, 1-4. Comp. Socrat. vii. 33.

Thus slaves found sure refuge from the rage of their masters, debtors from the persecution of inexorable creditors, women and virgins from the approaches of profligates, the conquered from the sword of their enemies, in the holy places, until the bishop by his powerful mediation could procure justice or mercy. The beneficence of this law, which had its root not in superstition alone, but in the nobler sympathies of the people, comes most impressively to view amidst the ragings of the great migration and of the frequent intestine wars.165165   “The rash violence of despotism,” says even Gibbon, “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.”



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