Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/269

 8. STUBBS: THE CANON LAW 255 procedure as a part of church administration ; where, as in England, only faint scintillae of the civil law were to be found, the Church courts must have proceeded on much the same rules as the popular courts. And this is a matter to be seri- ously noted as we reach the critical point of the Norman Conquest. It is true we know very little about ecclesiastical procedure before this date, and what we do know is not very clear; we may however affirm pretty confidently that there was, over and above the strictly private discipline of the Confessional, a system of church judicature with properly designated judges, and a recognised though not well-defined area of subject-matter in persons and things. To put it very briefly, sacred persons and sacred things, men in orders, monks and nuns, sacred places, churches and churchyards, sacred property, lands, books and the furniture of churches, were under the special protection, and, as protection implied jurisdiction, under the jurisdiction of the bishops, who like- wise had authority in matrimonial and like causes. There, , was a territorial episcopate, and the bishops exercised their ""^ "judicial powers with the help of archdeacons and deans. But, it would appear, these judicial matters were transacted in the ordinary gemots of the hundred and the shire. Just as the court baroh, court leet, and court customary of a manor are held together, so the court spiritual and the hundred or county court were held together ; and the pro- ceedings were probably in strict analogy. Just as surety- ship was the rule in the hundred court, it was in the bishop's court; so also compurgation and ordeal, the law of witness, and the claim of the mundborh over the person of the liti- gant. I am not prepared to say that through intercourse with the French Church some portions of the Roman pro- cedure may not already have crept in, but, so far as I can see, I am inclined to the belief that, whilst there was a cus- tomary canonical law and a substantially canonical judi- cature, the character of the procedure was customary and primitive, and differed in nothing materially from the lay procedure. The bishop declared the ecclesiastical law as the , ealdorman did the secular, the assessors determined the point on which evidence or oaths were to be taken, and the suitors