Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/293

Rh EFFECTS OF THE CONVERSION.] ENGLAND 270 ddition vhe der le- slation. enjoined ; but the spirit of the law, the nature of the penalties, the manner of their execution, remains the same. The various ranks of the clergy have their value, in Teutonic fashion, along with the various ranks of the laity. Churches arose, and the fabrics, with their ministers and their property, were placed under the protection of the law. Provisions against idulatrous practices are found ; but the old faith passed away so easily that but little legislation of this kind was needed. The land received a new geo graphical division in the form of ecclesiastical provinces and dioceses ; but these commonly followed the existing civil geography. The extent of the bishop s diocese coin cided with that of some kingdom or principality, and, as the ecclesiastical divisions underwent, till quite late times, much less change than the civil ones, the boundaries of the dioceses are our best guides to the boundaries of the old kingdoms and ealdonnanships. Nowhere was the Church more thoroughly national than in England. The old assembly of the shire received the bishop as a new chief, along with the ancient ealdorman, and the two sat together jointly to hear matters which the more minute jurisprudence of a later time divided into causes eccle siastical and causes temporal. Bishops, abbots, and other churchmen, became prominent in the counsels of kings and in the assemblies of the nation. A century or two later, we even find them leading the national armies to battle. Through the whole native history of England, we find no traces of any of the controversies between Church and State which show themselves in later times. In truth, Church and State did not exist as two distinct bodies; they hardly existed as two distinct ideas. As the army was the nation in its military aspect, so the Church, was the nation in its religioiis aspect. The leaders of the body might be different according to the matter in hand ; but the body itself was one. This strongly national character of the ancient English Church naturally followed on the time and manner of the conversion of the English nation. The English were not like the Teutonic conquerors on the continent, in whose eyes the Church was a Roman institution, alongside of other Roman institutions. In Gaul and Spain, for some generations after the Teutonic conquest, ecclesiastical power and office remained ia the hands of the conquered. In some later conversions the Church was a foreign insti tution through an opposite cause. It was an institution forced on the people by their conquerors. In England neither of these causes of separation had any being. The English of their own free will accepted the creed of foreign teachers ; but the Church was not to them a foreign insti tution. The first two or three bishops of each see were necessarily strangers ; but as soon as Englishmen were found fitted for such offices, they held them to the exclusion of strangers. It is hard to find a foreign prelate in England between Theodore of Tarsus and Robert of Jumieges. Again, when England was converted, the privileges of the clergy as an order, the powers of the bishop of Rome as their head, were things which were still in their infancy. The claims made by the clergy and the popes in the eleventh, twelfth, and thirteenth centuries would have been unintelligible either to yEthelberht or to Augustine. There was nothing in England to part off the clergy, as a body having feelings and interests distinct from the rest of the nation. There was nothing to tempt the Roman bishops, subjects as they still were of the Roman emperors, to put forth the claims of an Hildebraud or an Innocent. There was nothing to make them claim from the newly founded English Church anything beyond the reverence due to a parent from a child who has already reached full age. In short, if we look through our early law, and seek for changes in the law itself as distinguished from legisla tion on new subjects which can be said to be directly owing to the change of religion, we shall find few indeed. It is indeed very likely that the power of bequeathing property by will was introduced by the Roman clergy. There is a remarkable reference to the practice which implies as much ; l and we know that the wills of dead men were a matter which the clergy took largely into their own hands, and which became in the end a subject for the specially ecclesiastical jurisdiction. Yet the power of willing may have grown up in England, just as it did at Rome. In the beginning a will is an exceptional act. Tlis testator prays the community to allow his goods to be disposed of in a particular way. The confirmation gradually becomes matter of form ; at last it is altogether dispensed with, and the power of bequest, once a privilege granted in a particular case, becomes the common right of every man. Still there is a strong likelihood the other way, and it may well be that the power of bequest has really been transferred from the Roman law to that of England. Only, if so it be, it must be remembered that it is no heritage from the inhabitants of the Roman province of Britain. It is something which was brought in afresh, as part of the ecclesiastical system of Gregory and Augustine. Another novelty in our law, which wr,s directly owing to the conversion, was the institution of ecclesiastical property. This is plain on the face of it. Nothing could be given for the support of the new religion till the new religion had been accepted. But the institution of ecclesi astical property involved something more than this. If it did not from the beginning imply the legal doctrine of corporate property, it at least soon grew into it. This doctrine is something wholly distinct from the primitive communal property. It presupposes the intermediate stage of private ownership. The land is first cut off from the common possession to form the particular possession of ihit or that person. Then, by a legal fiction, several persons are clothed with the attributes of a single person, and the artificial being called a corporation appears. Such corpora tions were quite familiar to Roman law ; but it is incon ceivable that any such subtlety should have been thought of in primitive Teutonic times. The king or ealdorman, who gave lands to this or that church, commonly under the formula of giving to God, or to such and such a saint, if he did not at once create, at least paved the way for, all the fictions and subtleties of law with regard to corporations of all kinds, lay and spiritual, aggregate and sole. It was also doubtless owing to direct Christian influence that the early jurisprudence of England came to differ in one singular point from -that of other Teutonic nations. The wager of battle, an original Teutonic institution, one which was brought again into England in later times, seems to have been altogether disused between the conversion and the Norman conquest. It has an English name, the or?z&amp;lt;?^, but it is quite unknown to English law or English usage. Its place is taken by the direct appeal to the judg ment of God in the form of the ordeal. The divine power, it was held, would directly interfere to save the innocent and to punish the guilty. &quot;We need not suppose that the ordeal itself was an invention of Christian teachers. The same idea may be found in many customs in other parts of the world. But it must be owing to direct Christian teaching that the judgment by hot iron or hot water altogether drove out the more warlike appeal to the judg 1 The Norman writer William of Poitiers (p. 128 Giles) makes Harold thus answer William s claim by Eadward s bequest : Ab eo tempore quo beatus Augustinus in hanc venit regionem, communeiu gentis hujus fuisse consnetudinem donationem, quam in ultimo fine suo quis fecerit, earn ratam habere. &quot; It is an odd quarter to go to for a statement of English law, tut its soundness can hardly be doubted. Power of bequest Corporate property. Ordeal and wager of battle.