28.41. 41. Flux and Reflux of the ecclesiastic and temporal Jurisdiction.
The civil power being in the hands of an infinite number of lords, it
was an easy matter for the ecclesiastic jurisdiction to gain daily a
greater extent. But as the ecclesiastic courts weakened those of the
lords, and contributed thereby to give strength to the royal
jurisdiction, the latter gradually checked the jurisdiction of the
clergy. The parliament, which in its form of proceedings had adopted
whatever was good and useful in the spiritual courts, soon perceived
nothing else but the abuses which had crept into those tribunals; and as
the royal jurisdiction gained ground every day, it grew every day more
capable of correcting those abuses. And, indeed, they were intolerable;
without enumerating them I shall refer the reader to Beaumanoir, to
Boutillier and to the ordinances of our kings.
[295]
I shall mention only
two in which the public interest was more directly concerned. These
abuses we know by the decrees that reformed them; they had been
introduced in the times of the darkest ignorance, and upon the breaking
out of the first gleam of light, they vanished. From the silence of the
clergy it may be presumed that they forwarded this reformation: which,
considering the nature of the human mind, deserves commendation. Every
man that died without bequeathing a part of his estate to the church,
which was called dying without confession, was deprived of the
sacrament and of Christian burial. If he died intestate, his relatives
were obliged to prevail upon the bishop that he would, jointly with
them, name proper arbiters to determine what sum the deceased ought to
have given, in case he had made a will. People could not lie together
the first night of their nuptials, or even the two following nights,
without having previously purchased leave; these, indeed, were the best
three nights to choose; for as to the others, they were not worth much.
All this was redressed by the parliament: we find in the glossary of the
French law,
[296]
by Ragau, the decree which it published against the
Bishop of Amiens.
[297]
I return to the beginning of my chapter. Whenever we observe in any
age or government the different bodies of the state endeavouring to
increase their authority, and to take particular advantages of each
other, we should be often mistaken were we to consider their
encroachments as an evident mark of their corruption. Through a fatality
inseparable from human nature, moderation in great men is very rare: and
as it is always much easier to push on force in the direction in which
it moves than to stop its movement, so in the superior class of the
people, it is less difficult, perhaps, to find men extremely virtuous,
than extremely prudent.
The human mind feels such an exquisite pleasure in the exercise of
power; even those who are lovers of virtue are so excessively fond of
themselves that there is no man so happy as not still to have reason to
mistrust his honest intentions; and, indeed, our actions depend on so
many things that it is infinitely easier to do good, than to do it well.
Footnotes
[295]
See Boutillier, "Somme Rurale," tit. 9, what persons are
incapable of suing in a temporal court; and Beaumanoir, 11, p. 56, and
the regulations of Philip Augustus upon this subject; as also the
regulation between Philip Augustus, the clergy, and the barons.
[296]
In the word "testamentary Executors."
