But in these early days all matters concerning marriage, divorce, guardianship of children, ownership of property after death, belonged to church law.  It is hard to see why, except that the mediaeval church arrogated to itself anything that concerned sin in any way—­anything that concerned the relation of the sexes, that concerned the Holy Sacraments, and marriage is a sacrament.  Consequently the mediaeval church claimed that it had jurisdiction over all marriage, and over all divorce; and also took jurisdiction over a man’s children at his death, and over his property, now exercised by our courts of probate.  This they got out of the notion that when a man was dead, there was something, in a sense, that went beyond this life in looking after his property and children.  And down until twenty or thirty years ago all jurisdiction in England in matters which concerned a man’s property, after death, belonged to the church courts and their successors.  The church law was based on the Roman law, but was called canon law, the technical word, because it is the “canons” of the church.  It is a convenient term to distinguish it from the ordinary civil law of the Continent.  So that the Constitutions of Clarendon began what was completed only under Henry VIII; they very clearly asserted the claim of the king to be supreme over the Church of England.  The Bishop of Rome, as Henry VIII called the pope, had no more power than any other foreign bishop.[2] There still remained the institution known as benefit of clergy, by which any priest, or later any clerk or cleric (which word came to mean any one who could read and write) could get off of any criminal accusation, at first even murder, by simply pleading his clergy; in which case the worst that could happen to him was that he was branded in the right hand.  But the Constitutions of Clarendon were a great step toward civil liberty.  Taken by us in 1164, it was followed in so neighboring a country as France only so late as a few years ago.  The priests, however, still managed to retain their jurisdiction over offences among themselves, as well as over marriage, the relation between the sexes, slander, usury, and wills—­of matters relating to the sacraments, and of sins.

[Footnote 1:  Stubbs, p. 136.]

[Footnote 2:  Yet “Peter’s Pence” were initiated by Ini, King of the West Saxons, about 690!]

Now this is a very interesting matter, and were it borne in mind by our modern legislators they would escape a good deal of unintelligent legislation; that is, the distinction between a sin and a crime.  A sin is against the church, or against one’s conscience; matter, therefore, for the priest, or one’s spiritual adviser.  A crime is an offence against other men; that is, against the state, in which all are concerned.  Under the intelligent legislation of the twelfth century all matters which were sins, which concerned the conscience, were left to the church to prevent or punish.  For the same reason usury