The bishops must always be considered in the double capacity of clerks and barons.  Their courts, therefore, had a double jurisdiction:  over the clergy and laity of their diocese for the cognizance of crimes against ecclesiastical law, and over the vassals of their barony as lords paramount.  But these two departments, so different in their nature, they frequently confounded, by making use of the spiritual weapon of excommunication to enforce the judgments of both; and this sentence, cutting off the party from the common society of mankind, lay equally heavy on all ranks:  for, as it deprived the lower sort of the fellowship of their equals and the protection of their lord, so it deprived the lord of the services of his vassals, whether he or they lay under the sentence.  This was one of the grievances which the king proposed to redress.

As some sanction of religion is mixed with almost every concern of civil life, and as the ecclesiastical court took cognizance of all religious matters, it drew to itself not only all questions relative to tithes and advowsons, but whatever related to marriages, wills, the estate of intestates, the breaches of oaths and contracts,—­in a word, everything which did not touch life or feudal property.

The ignorance of the bailiffs in lay courts, who were only possessed of some feudal maxims and the traditions of an uncertain custom, made this recourse to the spiritual courts the more necessary, where they could judge with a little more exactness by the lights of the canon and civil laws.

This jurisdiction extended itself by connivance, by necessity, by custom, by abuse, over lay persons and affairs.  But the immunity of the clergy from lay cognizances was claimed, not only as a privilege essential to the dignity of their order, supported by the canons, and countenanced by the Roman law, but as a right confirmed by all the ancient laws of England.

Christianity, coming into England out of the bosom of the Roman Empire, brought along with it all those ideas of immunity.  The first trace we can find of this exemption from lay jurisdiction in England is in the laws of Ethelred;[79] it is more fully established in those of Canute;[80] but in the code of Henry I. it is twice distinctly affirmed.[81] This immunity from the secular jurisdiction, whilst it seemed to encourage acts of violence in the clergy towards others, encouraged also the violence of others against them.  The murder of a clerk could not be punished at this time by death; it was against a spiritual person, an offence wholly spiritual, of which the secular courts took no sort of cognizance.  In the Saxon times two circumstances made such an exemption less a cause of jealousy:  the sheriff sat with the bishop, and the spiritual jurisdiction was, if not under the control, at least under the inspection of the lay officer; and then, as neither laity nor clergy were capitally punished for any offence, this privilege did not create so invidious and glaring a distinction between them.  Such was the power of the clergy, and such the immunities, which the king proposed to diminish.