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“Command and Coercion”: Clerical Immunity, Scandal, and the Sex Abuse Crisis in the Roman Catholic Church

Published online by Cambridge University Press:  24 April 2015

Extract

On December 29, 1170, in the late afternoon (and thus after the main meal of the day but shortly before vespers), four knights entered Canterbury Cathedral. Impelled, as far as history knows, by the angry words of King Henry II, “will no one rid me of this turbulent priest,” they had come to confront Archbishop Thomas Becket and win King Henry's favor by forcing the long-simmering dispute between Becket and his king to some final resolution. When the Archbishop refused their conflicting demands and reacted with scorn to their insults, the knights withdrew, only to arm themselves and follow Becket into the cathedral. As the traditional account has it:

[t]he bell for vespers began to sound, and the archbishop, with his cross borne in front of him, made his way in as usual into the cathedral. Hardly had he reached the ascent to the choir than the noise of armed men and the shout of the knights announced that the pursuers were at hand. “Where is the archbishop, where is the traitor?” resounded through the hollow aisles, mingling strangely with the recitation of the psalms in the choir. Becket, hearing this, turned back a few steps, and calmly awaited their approach in the corner of the northern transept before the little altar of S[t .] Benedict. “Here,” he cried, “is the archbishop—no traitor, but a priest of God.” Awed by his demeanor, and perhaps by the sanctity of the place, no one dared strike. A parley began. They sought to lash their failing courage into action by words. A hasty and insulting epithet gave Fitz Urse the opportunity he wanted. A blow aimed at the archbishop's head only knocked his skull-cap to the ground, but it was enough to loose the bandogs of hell. A stroke from Tracy cut off the tonsured back of [Becket's] skull, another from Brito brought him to his knees.

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Copyright © Center for the Study of Law and Religion at Emory University 2012

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References

1. Bartlett, Robert, England Under the Norman and Angevin Kings 636 (New Oxford Hist. Eng. 2000)Google Scholar; Warren, W.L., Henry II 509–11 (1973)Google Scholar. The knights have been identified as Urse, Reginald Fitz, de Tracy, William, de Morville, Hugh and le Breton, Richard. Poole, A.L, From the Domesday Book to Magna Carta, 1087-1216, at 214 (2d ed., Oxford Hist. Eng. 1955)Google Scholar; see also Schaff, Philip, The Middle Ages: 1049-1294, in 5 Hist. Christian Church 140 (1907) (reprinted 1996)Google Scholar.

2. Warren, supra note 1, at 510 & n.1 (citing Grim, Edward, Vita S. Thomae, Canturariensis Archepiscopi et Martyris, in II Materials for the Life of Thomas Becket 430 (Robertson, J.C. ed., 1876))Google Scholar. While the words attributed to Henry strongly suggest that the knights' intention was from the start to murder Becket, in fact they made a series of conflicting demands on him, rather than immediately setting upon him. According to W.L. Warren's synthesis of the contemporary accounts, the knights accused Becket of breaking the peace, of treason, in that he intended to deny Henry's designated heir to the throne, and “insisting one moment that the archbishop should return with them to answer the king, the next that he should depart forthwith into exile,” from which he had only returned a scant 28 days earlier. Id. at 509 & n.4. An excerpt from Grim's manuscript describing the murder, translated by Dawn Marie Hayes, is available at http://www.fordham.edu/halsall/source/grim-becket.html (last visited Nov. 11, 2010), in Internet Medieval Sourcebook (Halsall, Paul ed.) (last modified 11 4, 2011), available at http://www.fordham.edu/halsall/sbook.asp [hereinafter Internet Medieval Sourcebook]Google Scholar.

3. Wakeman, Henry Offley, An Introduction to the History of the Church in England 115–16 (7th ed. 1904)Google Scholar. A “bandog” is a “dog tied or chained up, either to guard a house or on account of its ferocity; hence generally] a mastiff [or] bloodhound.” SirMurray, James, et al., Oxford English Dictionary 649 (Compact, ed. 1971)Google Scholar. Wakeman's final touch, a fine piece of melodrama, is unsourced. See also Schaff, supra note 1, at 140-45. According to Schaff, the “hasty and insulting epithet” referred to by Wakeman was “pander,” directed at Fitz-Urse by the Archbishop. Id. at 143.

4. Warren, supra note 1, at 510.

5. Warren, supra note 1, at 518.

6. Bartlett, supra note 1, at 456; Warren, supra note 1, at 135. The King's reaction to the murder of his erstwhile friend was to “burst into loud lamentations and exchange[] his royal robes for sackcloth and ashes, behaving more like the friend than the sovereign of the dead man.” Supra Warren at 520.

7. On the early years of cultus of St. Thomas, see Poole, supra note 1, at 215. Modern invocations of St. Thomas include Eliot, T.S., Murder in the Cathedral (1935)Google Scholar; Anouilh, Jean, Becket; or, The Honor of God (1959)Google Scholar; Becket, Paramount (Hal Wallis dir., 1964) (based on Anouilh's play).

8. Bartlett, supra note 1, at 403. See also Wakeman, supra note 3, at 110-12.

9. As Christopher Hill puts it, “Becket was in this issue [the treatment of criminous clergy] more successful in death than he had been in life.” Hill, Christopher P., Gilbert Foliot and the Two Swords: Law and Political Theory in Twelfth-Century England (2008) (PhD. Dissertation, University of Texas, Austin), available at http://www.lib.utexas.edu/etd/cl/2008/hillc21629/hillc21629.pdf (last visited 12 18, 2010)Google Scholar.

10. Matt 22:21 (All Biblical citations are taken from the New Revised Standard Version unless otherwise noted.); Jn. 18:36 (Authorized Version (“AV”) (1611, revised1881)).

11. See, e.g., Crossan, John Dominic, The Birth of Christianity: Discovering What Happened in the Years Immediately After the Execution of Jesus 318 (Harper 1998)Google Scholar; Johnson, Paul, A History of Christianity 3376 (Atheneum 1976)Google Scholar; Gaddis, Michael, There is No crime for Those who have Christ: Religious Violence in the Christian Roman Empire 2325 & ch. 1 (Univ. Cal. Press 2005)Google Scholar [hereinafter Gaddis, There is No Crime] (describing persecutions through to accession of Constantine); see generally Eusebius, , The History of the Church (Williamson, G.A. trans., 1965)Google Scholar; Chadwick, Henry, The Early Church (Penguin 1967)Google Scholar.

12. Matt 22:22 (1989); see also Luke 20:20-26. Matthew's Gospel depicts Jesus and Peter paying the temple tax, “so that we do not give offense to others.” Id. at 18:24-27. Paul, , in Romans 13:17Google Scholar similarly enjoins obedience to secular authorities, including, but not limited to, payment of taxes. See also 1 Cor 7:17-24; Eph 6:5; 1 Tim 6:1-3. See generally Kern, Fritz, Kingship and Law in the Middle Ages 27, 109, 102 (Chrimes, S.B. trans., 1939)Google Scholar; see generally id. at 103-17; Schaff, Philip, 2 Hist, of the Christian Church 343–47 (5th ed. 1889)Google Scholar.

13. Jn. 18:36 (Authorized Version) (1611, revised 1881). The NRSV renders this passage in a slightly different way, as “My kingdom is not from this world.” That the meanings are substantially the same is borne out by the following lines: “If my kingdom were from this world, my followers would be fighting to keep me from being handed over [for execution]. But as it is, my kingdom is not from this world.”

14. See Kern, supra note 12, at 27, 109.

15. Paolucci, Henry, Introduction, in St. Augustine, The Political Writings xvii (Paolucci, H. ed., 1962)Google Scholar (citing Ambrose of Milan, Oratio de obitu Theodosii (Sr.Mannix, M.D. ed. & trans., 1925)) [hereinafter The Political Writings]Google Scholar. As Sister Mannix's translation is not readily available, see McCauley, Leo P., et al., The Fathers of the Church: St. Gregory Nazianzen & St. Ambrose, Funeral Orations 307, et seq. (1953) (reprinted 2004)Google Scholar.

16. Augustine, St., The City of God 4 (Healy, John trans., Bussell, F.N. ed., 1903) (reprinted 1931)Google Scholar. In the Healey translation quoted, known as the “Temple Classics Edition,” and originally published in three volumes, certain sections of the work considered to be interpolations, are omitted. The result is to vary the book and chapter numbers for certain passages of the work from the standard editions. However, for ease of reference, where these citations vary from the traditional, the traditional reference in Arabic numerals is in brackets following the citation of the Temple Classics Edition in Roman numerals. The passages cited here can be found in any complete edition of The City of God, and many may also be found by Book and Chapter as reprinted in Augustine, , Political Writings (Tkacz, M.W. & Kries, D. ed. & trans., 1994)Google Scholar.

17. 1 City of God, Bk. I, ch. 1 at 4. See also 2 City of God, Bk, XII [14], ch. xvi [28], which distinguishes the loves, glory and wisdom of the two cities, with the earthly firmly centered on self, the heavenly firmly centered on God.

18. 3 City of God, Bk. XV [19], ch. xvii, at 152-53.

19. Id. at 153.

20. 3 City of God, Bk. XV [19], ch. xvii, at 153.

21. Id. at 153-54. See also The Political Writings, supra note 15, at 294-96, 316-17.

22. Kern, supra note 12, at 97-99. For more current historians' treatment in greater depth, see, e.g., Bryan, Christopher, Render to Caesar: Jesus, the Early Church and the Roman Superpower (Oxford Univ. Press 2005)CrossRefGoogle Scholar. Bryan's conclusions are acutely critiqued and qualified by Lloyd K. Pietersen, who points out that Bryan assumes a greater amount of homogeneity among early Christians than is supported by the texts, arguing that, for example, “the rhetoric of Revelation does suggest resistance to Roman rule, and that the option of non-violent rejection of Roman rule was a live one amongst the early Christians.” Pietersen, Lloyd K., Review, J. Theol. Studies, No. 2, 638, 640 (2006)Google Scholar; see generally, Crossan, The Birth of Christianity, supra note 11.

Augustine's broad consistency with this view is demonstrated by his own gloss on the scriptural passages. Augustine, supra nn. 14 and 15: “For thus hath God ordained His Church, that every power ordained in the world may have honour, and sometimes from those who are better than those in power… How much do the rich owe to Christ, who orders their house for them!” The Political Writings, supra note 15, at 307-08 (excerpting Expositions on the Book of Psalms, CXXIV (Lat.) 78Google Scholar); see generally, id. at 292-305; 305-17.

23. The Political Writings, supra note 15, at 189, 185-90 (excerpting Letters, XLIV, at 1-2, 7-11).

24. Id. at 195 (excerpting Letters XCIII, at 510Google Scholar); see generally id. at 190-240 (letters and treatise to the same effect).

25. For a history of persecution by Christians during the time of the Roman Empire (and thus through Augustine's day), see Gaddis, There is No Crime, supra note 11, at ch. 2. For an accessible history of one facet of religious persecution by Christians, against Jews, see Carroll, James, Constantine's Sword: The Church and the Jews (Houghton Mifflin 2001)Google Scholar. An in-depth study of the 13th-century persecution of the Cathars is Weis, René, The Yellow Cross: The History of the Last Cathars (Knopf 2001)Google Scholar. The Inquisition has occasioned enormous scholarship, myth and controversy. The classic statement of the traditional view is Lea, H.C., A History of the Inquisition of the Middle Ages (1887)Google Scholar. A less harsh, but not fully apologetic, account is Kamen, Henry, The Spanish Inquisition: A Revision (revised ed. 1998)Google Scholar. Although beyond the scope of this Article, it should be noted that persecution of fellow Christians was hardly confined to Roman Catholics. As the history of the Reformation and of the witch hunts in Massachusetts exemplify, the persecutorial instinct seems to arise whenever secular power and religious authority are combined—a fact that should blunt the desire of religious institutions for such power, but all too often does not. See, e.g., Daniel-Rops, H., The Protestant Reformation (Butler, Audrey trans., 1961, 1958)Google Scholar; Starkey, Marion L., The Devil in Massachusetts (Anchor Books-Doubleday 1949)Google Scholar.

26. The Political Writings, supra note 15, at 241-52 (Paolucci ed.) (excerpting Letters C, CXXXIII, and CXXXIX). One should note that this differentiates Augustine from many. St. Thomas Aquinas, for example, states that heretics “deserve not only to be separated from the Church by excommunication, but severed from the world by death.” 2 Thomas Aquinas, Summa Theologica Pt. 11-11, Q. 11 Art. 1226 (1265-74) (Fathers of the English Dominican Province trans., 1947) [hereinafter Aquinas, Summa Theologica]; id. at 1226-27.

27. Kern, supra note 12, at 102; see generally id. at 103-17.

28. Lecler, Joseph S.J., The Two Sovereignties: The Relationship Between Church and State 1920 (Montgomery, Hugh trans., 1946)Google Scholar (1952) (quoting De Anathemis Vinculo, 4 Migne Patrol Lat. LIX, 108–09Google Scholar) (emphasis by Lecler). In his notes to Gratian's The Treatise on Laws, Thompson notes variations between this text and the similar letter attributed to Pope Nicholas I by Gratian. Gratian, , The Treatise on Laws: Decretum Dd. 1-20 with the Ordinary Gloss 9495Google Scholar; nn. 131-33 (Augustine Thompson & James Gordley trans., Catholic Univ. Am. Press 1993).

29. Gelasius, I, Letter to Emperor Anastasius, in J.H. Robinson, Readings in European History 7273 (1905)Google Scholar; see Internet Medieval Sourcebook, supra note 2, available at http://www.fordham.edu/halsall/source/gelasiusl.html.

30. The tug-of-war between historians who assert that the “two powers” referred to by Gelasius were understood in the centuries after Gelasius to be co-equal within their own spheres as On the Penalty of Anathema suggests, and those who ground thoroughgoing papal supremacy within Gelasius' writings, is ably summarized in Hill, Gilbert Foliot and the Two Swords, supra note 9, at 28-37.

31. Hill notes that Pullen taught both John of Salisbury and Foliot. Hill, Gilbert Foliot and the Two Swords, supra note 9, at 37, 44. A description of the fluctuating reception of the clericalist view on the continent may be found in Kern, supra note 12, at 103-23. Ecclesial thought of the Middle Ages and into the Reformation is traced in Tonkin, John, The Church and the Secular Order 536 (1971)Google Scholar.

32. Courtney, Francis S.J., Cardinal Robert Pullen: An English Theologian of the Twelfth Century 259–60 (LXIV Analecta Gregoriana) (1954)Google Scholar; Hill, Gilbert Foliot and the Two Swords, supra note 9, at 130-31; see id. at 29-30, 37-39. For further discussion of the “two swords” metaphor in and after the time of John of Salisbury, see Lecler, The Two Sovereignties, supra note 28, at 58-60, 111-13.

33. Id. at 260.

34. Id. at 261 (characterizing Pullen's view); Hill, Gilbert Foliot and the Two Swords, supra note 9, at 37-39, 83-85, 99-101, 101-08 (comparing those of Foliot and John of Salisbury). Interestingly, Hill equates Foliot's “Whiggish” view of medieval monarchy and its limits with those of Fritz Kern, cited. Id. at 99-100. Another view of Foliot as both lawyer and theologian, also describing Foliot as pragmatic, pious and characterized by moderation, can be found in Taliodoros, Jason, Law and Theology in Gilbert of Foliot's (c. 1105/10-1187/88) Correspondence, 16 Haskins Soc. J. 7794 (2006)Google Scholar.

35. Warren, supra note 1, at 258; see also Adams, George Burton & Schuyler, Robert L., Adams' Constitutional History of England 9293 (rev. ed. 1934)Google Scholar. A somewhat more nuanced view of Stephen's reign is taken by Biancalana, Joseph, For Want of Justice: Legal Reforms of Henry II, 84 Colum L. Rev. 433, 434 (1988)Google Scholar [hereinafter For Want of Justice], who credits Stephen's predecessor Henry I with “first pursufing] the new style of administrative kingship,” while “Stephen's more traditional and passive style of kingship resulted in a loss of central, royal power.”

36. Warren, supra note 1, at 259; see id. at 262-300.

37. Id. at 461, 460-61; Wakeman, supra note 3, at 110.

38. Warren, supra note 1, at 460.

39. Id. at 110-11; Hill, Gilbert Foliot and the Two Swords, supra note 9, at 186. See also Poole, supra note 1, at 224-26; Warren, supra note 1, at 460-61; Bartlett, supra note 1, at 377-78.

40. 1 The Correspondence of Thomas Becket, Archbishop of Canterbury 1162-1170 Letter 41, at 167 (Duggan, Anne J. ed. & trans., 2000) [hereinafter, The Correspondence of Thomas Becket]Google Scholar. Notably, the emissary, Prior Nicholas of Mont-Rouen, acknowledged the justice of this point, further stating that: “Such a one does not fear to lose his church, because he is assigned no church. He does not fear penalty, because the Church will protect him. He does not fear the bishop's prison, for the bishop prefers to let him live unpunished than take on himself the trouble of feeding and guarding him.” Id.

41. Bartlett, supra note 1, at 384-86. Both Bartlett and Warren quote the memorable summary of Gerald of Wales of the situation: “the houses and huts of our parish priests are lorded over by their mistresses, and full of creaking cradles, new-born babies and squalling children.” Id. Bartlett, supra note 1, at 385 (quoting Gerald, Spec Eccl. 4.22 at 313); Warren, supra note 1, at 460.

42. Warren, supra note 1, at 460; see also Hill, Gilbert Foliot and the Two Swords, supra note 9, at 186.

43. Warren, supra note 1, at 464-65; citing William of Newburgh, Historia Rerum Anglicarum, in Chronicles and Memorials of the Reigns of Stephen, Henry II, and Richard I, Vol. I, 140 (Howletted, R.., 1887)Google Scholar.

44. Id. at 465; Poole, supra note 1, at 202. For more details of the individual cases, see Hill, Gilbert Foliot and the Two Swords, supra note 9, at 185-87.

45. Warren, supra note 1, at 464; see also Bartlett, supra note 1, at 408. R.H. Helmholz points out that the picture is in fact a little more complicated. As he writes, compurgation “was never the only way of proceeding legitimately in criminal matters, but it was the most commonly employed in the English ecclesiastical courts.” Helmholz, R.H., The Canon Law and Ecclesiastical Jurisdiction from 597 Through the 1640S, at 604 (2004) (1 Oxford Hist. Laws of Eng.) [hereinafter The Canon Law]Google Scholar. Helmholz points out three other means of prosecuting criminal cases before the ecclesiastical courts, each of which posed its own hazards: the accusiatio, the denuciatio, and the inquisitio. The accusatio, an early form of the private prosecution, put the accuser at the risk of whatever penalty he (women could only bring such cases for injuries to themselves or to near relatives) sought against the defendant in the event the prosecution failed. Id. at 605-06. The denunciato, a brotherly admonition prior to initiating formal charges followed by a formal denunciation in the event that the admonition did not lead to reformation on the part of the offender, was generally resolved through compurgation. Id. at 606. The inquisitio, which was later formalized into the Inquisition, seized upon those widely depicted as heretics per se, and involved judicial questioning, commonly under torture, by judges “who were instructed that it was among their functions to ‘strike terror’ into the hearts of criminals in the interest of the public suppression of crime.” Id. at 607. The Inquisition, with its “deservedly bad reputation in modern times,” did not arrive in England, and thus did not play a role in the English ecclesiastical court system. Id. at 607-08. In England, the inquisitio denoted judicial interrogation which led to resolution through, unsurprisingly, compurgation. Id.

46. Helmholz, supra note 45, at 608-17; see also Outhwaite, R.B., The Rise and Fall of the English Ecclesiastical Courts, 1500-1860, at 910 (2006)Google Scholar. For a general overview of the functioning of the medieval ecclesiastical courts, see Jason, Peter D., The Courts Christian in Medieval England, 37 Cath L. Rev. 339 (1997)Google Scholar; Outhwaite, supra at 1-14. Helmholz's more detailed examination of the reception of canon law in England and of the jurisdiction and procedure of ecclesiastical courts is especially illuminating and accessible. See also Adams, Norma & Donahue, Charles, Introduction, to Select Cases from the Ecclesiastical Courts of the Province of Canterbury C. 1200-1300, at 1103 (1981)Google Scholar. On compurgation or wager of law in English law generally, see Blackstone, William, Commentaries on the Law of England Bk. 3, at **341–48 (Cooley, Thomas M. & Andrews, James DeWitt eds., 1899)Google Scholar.

47. Helmholz, supra note 45, at 616 (citing, inter alia, Houlbrooke, Ralph, Church Courts and the People During the English Reformation, 1520-1570, at 45 (1979)Google Scholar).

48. Id. at 616. Ius commune, literally, “common law,” here denotes the synthesis of Roman law with uniquely ecclesiastical principles, which created a common body of canon law applied trans-nationally. Id. at 86-88.

49. Id. at 617. Helmholz suggests that compurgation was effectively limited to those believed to be innocent, and “was meant to be an ostensio innocentiae [show or display of innocence] more than it was a means of ascertaining facts” and thus not the pantomime some historians have depicted it as. Id. at 616.

50. Id. at 604; see also Bartlett, supra note 1, at 408; 180-84; Warren, supra note 1, at 464.

In view of the crudity of fact finding and procedure generally in the system of justice at the time of Henry II's accession, the profoundly reformative nature of his reign should be noted. Thus, Henry II's assizes introduced new procedures of mort d'ancestor and novel disseisin, which began the “routine judicial employment” of juries to determine the facts of a case, and the evolution away from the theocratic folk-methods of determining facts through ordeal or battle. Bartlett, supra note 1, at 192; id. at 190-93; Warren, supra note 1, at 320-61. Henry's civil legal reforms are comprehensively examined in Biancalana, For Want of Justice, supra note 35; see also Brand, Paul, Henry II and the Common Law, in Henry II: New Interpretations 215–40 (Harper-Bill, Christopher & Vincent, Nicholas eds., Boydell Press 2007)Google Scholar.

In criminal law, reform was considerably slower, but at the same time Henry's conflict with Becket was brewing, Henry also began to wrestle with the difficulties of proof; as Warren recounts, “In the late 1160s, Henry standardized it [the machinery for making public accusations of crime] and required those who were to be accused of more serious crimes to be brought before the royal justices itinerant. Juries “of presentment” were to be elected … who were put under oath to declare what crimes had been committed in their localities.” Warren, supra note 1, at 354; see Poole supra note 1, at 397-401. According to Glanvill, the royal justices did not merely order ordeal lightly; rather,

The truth of the matter shall be investigated by many and varied inquests and interrogations, and by considering the probable facts and possible conjectures, both for and against the accused, who must as a result in consequence be either absolved entirely or made to purge himself by the ordeal.

The Treatise on the Laws and customs of the Realm of England Commonly Called Glanvill XIV, ch. 1, at 171 (Hall, G.D.G. ed. & trans., 1964)Google Scholar. [hereinafter Treatise Commonly Called Glanvill]. The attribution of the TREATISE to Henry II's Chief Justiciar Ranulph de Glanvill (or Glanville) is traditional, and very open to question. G.D.G. Hall finds the traditional attribution to Glanvill to be “an obvious but unlikely choice, “and, canvassing other possibilities, concludes that “the field of choice is wide.” Id. at xxxi, xxxiii. Hall agrees that the work was almost certainly written during with the reign of Henry II. Id. at xxx-xxxi. See also O'Brien, Bruce, The Becket Conflict and the Myth of Lex Non Scripta, in Learning the Law: Teaching and Transmission of Law in England, 1150-1900, at 12 (Bush, Jonathan A. & Wijffels, Alain A. eds., 1997)Google Scholar.

51. Bartlett, supra note 1, at 408, quoting Earliest Linconshire Assize Rolls (1206) at 104.

52. Warren, supra note 1, at 425, 461-62. On the Osbert case, see also Fraher, Richard M., The Becket Dispute and Two Decretist Traditions: The Bolognese Masters Revisited and Some New Anglo-Norman Texts, 4 J. Medieval Hist. 347, 357–58 (1978) [hereinafter The Becket Dispute]Google Scholar; see also Duggan, Anne J., Henry, II, The English Church and the Papacy 1154-76, in Henry II: New Interpretations 154, 161–62 (Harper-Bill, Christopher & Vincent, Nicholas eds., 2007)Google Scholar; Bartlett, supra note 1, at 461-62.

53. Warren, supra note 1, at 464. According to William of Newburgh (who believed in his innocence), Osbert, although stripped of his archdeaconry, “remained a wealthy Yorkshire landowner, a lay lord retaining the style archdeacon,” and was still alive in 1184, and “probably survived into the 1190s.” Gillingham, John, Two Medieval Historians Compared, Roger of Howden and William of Newburgh, 12 Haskins Soc'y J. 15, 33 (2003)Google Scholar; see id. at 27-34. A similar example is provided by Hill, in which Foliot, then an Abbot, intervened with a bishop who charged one of Foliot's own clerks who had taken a man's wife into custody as a surety for a debt, and then continued to hold her after the debtor's death, allegedly “taking payment in the form of illicit relations with the woman.” Hill, supra note 9, at 102. Foliot protested that the requirement that the clerk clear himself by compurgation supported by seven witnesses was excessive, and that, in any event, the bishop, who had initiated the charges, was thereby disqualified from hearing the case.

The use of appeals to Rome to prevent judgment being rendered at all bedeviled Archbishop Theobald, who found it vexing because it both removed even the initial decision as to a matter from local authorities and could be timed to take place at the end of the presentation of the evidence by a defendant who saw that the case was going against him, and who could thus essentially restart the process from the very beginning before a fresh tribunal. Id. at 135-38.

54. Bartlett, supra note 1, at 184-87. See also Poole, supra note 1, at 403-05. Poole notes that the punishment was generally intended “to fit the crime; the aim was a just retribution for the wrong done. So hanging was the natural penalty for homicide, burning for arson, castration for rape, and the cutting out of the tongue for uttering slander or false accusation.” Id. at 403-04. In addition to these punishments, “crimes that were viewed as especially heinous might have special punishments. The mad cleric who killed the infant son of earl David of Huntingdon (later David I of Scotland) was tied to the tails of four horses and pulled apart.” Bartlett, supra note 1, at 184.

55. Helmholz, supra note 45, at 617-24 (listing as the sanctions available to the ecclesiastical courts restitution, excommunication, suspension and interdict, and, finally, public penance); id. at 513 (“That remedy [degradation from holy orders] was available to the bishops; under the law of the church, the blood sanctions of the common law were not); id. at 618 (noting that whipping and other corporal punishments were of dubious validity, as potentially transgressing canon law forbidding the “issuance of sentences of blood,” which was strongly reinforced by the Fourth Lateran Council in 1215, but which was not “read a la lettre by the canonists or the English church”); see also Bartlett, supra note 1, at 408; Warren, supra note 1, at 467 (citing Herbert of Bosham as stating the king's argument turned on the fact that “secular authority alone had the authority to impose condign punishments, the ecclesiastical authority being confined to anathema, suspension from office, and banishment from the altar”). See also Poole, supra note 1, at 201, noting that while the ecclesiastical courts “could not pronounce a sentence of blood; they could imprison, but seldom did so due to the expense of maintaining prisons; more commonly they inflicted a sentence of penance or at most degradation” from clerical status; Hill, supra note 9, at 33, 83-85.

For Becket's efforts to impose more severe punishments, and their resultant difficulties, see Warren, supra note 1, at 465 (“Becket overreached himself in having [a clerical murderer] banished and the clerk who stole the chalice branded, for not only were these sentences unknown to canon law, they were a flagrant usurpation of the authority committed only to the royal justices”) (citing sources); Hill, supra note 9, at 186-87; see also Bartlett, supra note 1, at 408.

56. Wakeman, supra note 3, at 111; see also Hill, supra note 9, at 187.

57. Poole, supra note 1, at 206-07.

58. Warren, supra note 1, at 463; see generally id. at 461-64 (detailing varying levels of clerical misconduct).

59. Id. at 263; 262-63; 96; Hill, supra note 9, at 187; see also Ant, Emilie, The Accession of Henry II in England: Royal Government Restored 1149-1159, at 113–49 (1993)Google Scholar.

60. Adams & Schuyler, supra note 35, at 92-94. It is, however, less than pellucid which side had the better of the argument as to either custom or canon law. As described by Poole and Warren, Henry could argue from specific cases that custom supported his position. However, King Stephen's fluctuating practice and Henry's own concession that the ecclesiastical courts could try Archdeacon Osbert were in tension with these precedents, and render the argument from custom less than decisive. Fraher, supra note 52, at 357-58. Moreover, in some cases the practice of having the accused cleric tried in the first instance before the ecclesiastical court, degraded to the lay state, and then punished by the secular court was resorted to, consistent with the mid-point of the Bolognese canonists' writings. Id. at 358-59. Leona C. Gabel noted that Henry's practice “obtained on the Continent during the entire Frankish period, and was still contending there for its accustomed place against the growing claims of the Church.” Gabel, Leona C., Benefit of Clergy in England in the Later Middle Ages (XIV Smith C. Stud. Hist. Nos. 1-4, at 20 (19281929) (reprinted 1969))Google Scholar.

However, Bruce O'Brien argues that legal treatises from the days of the reign of Henry I are in fact more supportive of Becket's claims to clerical immunity, and suggest that Henry was diverging from the customs of that time. O'Brien, Bruce, The Becket Conflict and the Myth of Lex Non Scripta, in Learning the Law: Teaching and Transmission of Law in England, 1150-1900, at 116 (Bush, Jonathan A. & Wijffels, Alain A. eds., 1997)Google Scholar. See also Duggan, supra note 52, at 154, 161-74. See also Hill, supra note 9, at 88-91 (canvassing sources).

Astute legal historians have disagreed as to canon law's content on this issue, from F.W. Maitland to Charles Duggan on opposite extremes. Fraher, supra note 52, at 348 (paraphrasing Maitland; quoting Duggan); see Maitland, F.W., Henry II and the Criminous Clerks, in Roman Canon Law in the Church of England: Six Essays (1898)Google Scholar; Dugan, Charles, The Becket Dispute and the Criminous Clerks, 35 Bull. of the Inst. of Hist. Research 1 (1962)CrossRefGoogle Scholar.

61. Warren, supra note 1, at 319; see also Poole, supra note 1, at 386-414 for an overview of Henry II's legal reforms.

62. Biancalana, supra note 35, at 434.

63. Id. at 436-38; see also Brand, Paul, Henry II and the Creation of the Common Law, in Henry II: New Interpretations 221-24, 235–37 (Harper-Bill, Christopher & Vincent, Nicholas eds., 2007)Google Scholar; Bartlett, supra note 1, at 192-93. A rather cynical additional motive is ascribed to Henry for his reforms by Anne Duggan, who notes that “with the expansion of royal jurisdiction came the expansion of multiple sources of income,” such as fees, fines and other transactional costs, and concludes (in both English and Latin) that “[j]ustice is a great little earner!” Duggan, supra note 52, at 181.

64. Biancalana, supra note 35, at 460-62.

65. Gabel, Benefit of Clergy, supra note 60, at 9-13; see also Holdsworth, W.S., 2 A History of English Law 149–50 (3d ed., 1923)Google Scholar; Helmholz, supra note 45, at 108-10.

66. Helmholz, supra note 45, at 110.

67. Gabel, Benefit of Clergy, supra note 60, at 13 (emphasis in original); see also Helmholz, supra note 45, at 110.

68. Adams & Schuyler, supra note 35, at 93-94; see also Bartlett, supra note 1, at 41012; Helmholz, supra note 45, at 88, 90-91; Gabel, Benefit of Clergy, supra note 60, at 2223.

69. Adams & Schuyler, supra note 35, at 94; see Warren, supra note 1, at 404-21.

70. Id. at 94; Holdsworth, supra note 65 at 177; Helmholz, supra note 45, at 112-13. On the allegiance of bishops as vassals to the king, and involvement of ecclesiastics in secular justice and government, see also Bartlett, supra note 1, at 407-09; Duggan, supra note 52, at 180-81. As to elections, see Bartlett, supra note 1, at 406-07. Bartlett agrees to the form of independent elections of bishops but contends that the king's veto was more effective than suggested by Adams, and was exercised through the reign of Henry II's son John. Poole, similarly, contends that Henry and John both could be overbearing in such elections; he quotes a memorandum from Henry (mischievously sent to the Pope by his son Henry the Young King) in which Henry writes baldly to the monks of Winchester about to select their abbot: “Henry, king of the English &c. to his faithful monks of the church of Westminster, greeting. I order you to hold a free election, but, nevertheless, I forbid you to elect anyone except Richard my clerk, the archdeacon of Poitiers.” Poole, supra note 1, at 220; see id. at 219-22.

While Bartlett and Poole suggest that the elections by the local clergy were essentially forms, Adams and Warren paint a more complex portrait, acknowledging the imperfection and ad hoc nature of papal and royal control over the church. While Warren notes the royal ability to interfere with elections through the reign of Henry II (a fact which itself brought about the election of Thomas Becket at Henry's own instance), he also notes that the increasingly active role of the pope describes a trajectory toward papal control and away from royal control. Warren, supra note 1, at 404-20. Bartlett, it is fair to say, concurs with this overall trajectory. Bartlett, supra note 1, at 411-12.

Ironically, Henry expected to achieve his own goal of mutual accommodation within the customs of his grandfather's times by obtaining Becket's appointment as Archbishop. Warren, supra note 1, at 449-53.

71. Adams & Schuyler, supra note 35, at 95; see also Bartlett, supra note 1, at 411-12.

72. Adams & Schuyler, supra note 35, at 95.

73. Warren, supra note 1, at 453, 456-57; 458-59; Hill, supra note 9, at 183-84. Becket also demanded homage from Roger of Clare for his Honor (property holding) of Tonbridge, which he sought to compel in his ecclesiastical character, even though it was owed to him in his role as baron. Id. at 457. Becket further refused to comply with his predecessor Theobald's custom of consulting with the King before excommunicating the King's vassals, a controversy which arose because Becket, rather than resolve a dispute with one of Henry's vassals through either the secular or ecclesiastical courts, unilaterally excommunicated him. Id. at 457-58; Hill, supra note 9, at 181-83.

Because in part of the popularity of Anouilh's play and its film adaptation, the misconception that Becket was, as Warren puts it, “the mastermind and impresario of the achievements of Henry II's early years” persists, originating in some of Becket's medieval biographers, especially William FitzStephen. See Warren, supra note 1, at 79. Warren places this exaggerated estimate of the Chancellor in perspective, noting that indeed Becket was entrusted with duties beyond those normally entrusted to a chancellor, but also that Henry's own career subsequent to the breach with Becket demonstrated greater diplomatic and legal subtlety, and greater results. Id. at 80, 399-402. While not explicitly adverted to by Warren in this regard, Henry's own success at winning the throne in his campaign against Stephen argues a fair degree of competence entirely unattributable to Becket. See Poole, supra note 1, at 163-68; see also id. at 318-25 (estimate of Henry's character and success as a diplomat).

74. Warren, supra note 1, at 466, citing and quoting Thomae, Vita Sancti, Archiepiscopi, et Martyris, , auctore de Boseham, Herberto, Robertson, , Craigie, James & Sheppard, J. Brigstock eds., 3 Materials for the Life of Thomas Becket (“Herbert, Vita”)Google Scholar. See also Fraher, supra note 52, at 349.

75. Warren, supra note 1, at 466. The Constitutions of Clarendon represented Henry's effort to codify the customs of the realm with respect to the dealings between the Church and the state prior to Stephen's reign. After the failure of the royal council at Westminster, the King called a meeting of the great council of the realm (consisting of the ecclesiastical dignitaries and the barons) at Clarendon. At this meeting in January 1164, Henry presented the written Constitutions of Clarendon to them for formal ratification, to end all disputes over the customs. Warren, supra note 1, at 473-74; Poole, supra note 1, at 205-06; Wakeman, supra note 3, at 111-12. After resisting for 3 days, Becket himself gave way, and his bishops followed his lead, as evidenced by a letter from Bishop Gilbert Foliot to Becket. Warren, supra note 1, at 474-75; Poole, supra note 1, at 206-07. Subsequently, as Becket left the Great Council, he repented his oath, did penance for his sin in agreeing to them. Poole, supra note 1, at 207. This led Henry to use Becket's failure to appear in a judicial proceeding to, in turn, arraign Becket before the royal council in Northampton for contempt and sentence him to forfeiture of all his goods and movables, in October 1164. Warren, supra note 1, at 484-85. Henry subsequently charged Becket with embezzlement of funds during his chancellorship, leading Becket to, rather impressively, denounce the barons for daring to sit in judgment upon him, and, cowing them with his spiritual authority, sweep magnificently out of the chamber. Id. at 486-88; Poole, supra note 1, at 207-08 (noting that Foliot, unimpressed, commented, that Becket “was always a fool, and always will be”). Becket, understandably, fled to Rome, where he denounced the Constitutions and resigned his archbishopric to the Pope, who restored it on the spot. Warren, supra note 1, at 490-91.

An English translation of the Constitutions is also available. Internet Medieval Sourcebook, supra note 2, available at http://www.fordham.edu/halsall/source/cclarendon.html (last visited 12 4, 2010). A similar text, reprinted from Henderson, Ernest F., Select Documents from the Middle Ages (1896), available at Yale University's “Avalon Project,” http://avalon.law.yale.edu/medieval/constcla.asp (last visited Dec. 4, 2010)Google Scholar.

76. Fraher, supra note 52, at 349. As famously summarized by F.W. Maitland, Henry's position as expressed in the Constitutions of Clarendon (1164) provided for “accusation and plea in the temporal court; trial, conviction, degradation in the ecclesiastical court; sentence in the temporal court to the layman's punishment.” Maitland, F.W., Henry II and the Criminous Clerks, in Roman Canon Law in the Church of England: Six Essays 135 (1898)Google Scholar. However, the phrasing of the relevant clause of the Constitutions states only that upon a priest's conviction in the ecclesiastical court “the church will degrade him, and thenceforth the church must no longer protect him.” Id. As Maitland acknowledges, the sentencing in the temporal court is “probably without any further trial,” but complete clarity does not exist on this point. Id.

77. Fraher, supra note 52, at 349-50; Warren, supra note 1, at 467 (citing St. Jerome's commentary on the prophet Nahum as Becket's authority). Poole states that it “was against this ‘double punishment’ that Becket so violently protested.” Poole, supra note 1, at 206.

78. Warren, supra note 1, at 467, quoting Herbert, Vita at 266-67.

79. Id. at 513-14 (quoting V Materials (Epistolae) at 281; 274-75). A complete text and translation of these letters appear in The Correspondence of Thomas Becket, supra note 40 as Letter 74 at 292-99, and Letter 82 at 328-43. (Duggan's translation does not differ materially from Warren's as to the passages quoted.).

80. Poole, supra note 1, at 211-12. Thus, in a letter to Gilbert Foliot dated in early July 1166, Becket compares priests to “Gods,” and declares that Henry should follow the example of the Emperor Constantine, who, refusing to process indictments or bishops, “burned the documents in their presence, saying to them, ‘You are gods, appointed by the true God. Go, and decide your cases among yourselves, because it is not fitting that we men should judge gods.’” The Correspondence of Thomas Becket, Letter 96, supra note 40, at 439, 441. Becket's rhetoric is consistent with (and indeed, almost reasonable in contrast with) that of Pope Gregory VII. In a situation not dissimilar to that of Henry and Becket, Emperor Henry IV sought to reestablish the rights of the monarchy lost during his minority, including the right to invest, that is, consecrate, bishops, Gregory claimed supremacy, both spiritual and political, and forced the Emperor to submit to him at Canossa. Johnson, Paul, A History of Christianity 194 (Antheneum 1976)Google Scholar; Helmholz, supra note 45, at 89-90; see generally Kern, supra note 12, at 92-97, 107-23. As Kern aptly summarizes, “[f]or him, there were no intermediate grades between laity and clergy; the monarch, like every layman, was below the priest and was subject to priestly authority, and in the Church of God no layman might rule.” Id. at 54.

Gregory's claims are recorded in a document called the Dictatus Papae, and include rather striking claims to authority, including that “of the pope alone all princes shall kiss the feet”; “[t]hat his name alone shall be spoken in the churches” and “[t]hat this is the only name in the world”; that it may be permitted to him to depose emperors”; “[t]hat he himself may be judged by no one; and “[t]hat he may absolve subjects from their fealty to wicked men [rulers].” Internet Medieval Sourcebook, supra note 2, available at http://www.fordham.edu/halsall/source/g7-dictpap.html. See also McGiffert, Arthur Cushman, 2 A History of Christian Thought 339 (1933)Google Scholar.

In 1080, in the midst of his largely successful efforts to end lay investiture of bishops, Gregory VII demanded that William the Conqueror offer him fealty, a demand which William first ignored, and then, when repeated, bluntly refused. Douglas, David C., William the Conqueror 340 (1964)Google Scholar; Bartlett, supra note 1, at 410. Douglas paints a remarkably sympathetic portrait of both William and Gregory. Douglas, supra at 317-45. Douglas points out that William was sufficiently skilled at mediating conflict between himself and Gregory that the

papal decree against lay-investiture which was published in Rome in 1074 did not enter England before the end of the eleventh century, despite the fact that every bishop appointed in Normandy and England between 1070 and 1087, except only [two], received his pastoral staff from the king. There was never an “investitures contest” in the Anglo-Norman kingdom during the reign of William the Conqueror.

Id. at 342. Henry I did not fare so well, as Archbishop Anselm of Canterbury had “a fixed resolve to enforce the Gregorian programme, and especially in the matter of investiture.” Poole, supra note 1, at 177. Henry I yielded on this point to Anselm in a formal concordat. Id. at 177-80. By contrast, during her brief period of triumph in the civil war with Stephen, Henry's daughter, the Empress Matilda, whom he had designated her heir, “in total disregard of her father's concordat with Anselm, agreed to bestow the ring and staff upon [] a candidate for the bishopric of Durham.” Id. at 191.

81. Fraher, supra note 52, at 362. See generally Duggan, supra note 52, at 154-83; Poole, supra note 1, at 206.

82. Fraher, supra note 52, at 362.

83. Helmholz, supra note 45, at 508. Helmholz generously describes Leona Gabel's work as remaining “the basic study.” Id. Gabel herself wrote that, in view of the privilege's subsequent history in the secular courts of expansion well beyond the clergy and the lesser punishment meted out to successful claimants who were not clergy properly defined, an appropriate distinction could be drawn between the “much more inclusive” canon law concept of privilegium clericale and the term “‘benefit of clergy’ as used to describe the practice” before the secular courts by which immunity was claimed. Gabel, supra note 60, at 7 n.2.

84. Fraher, supra note 52, at 355; see Warren, supra note 1, at 541-42; see also Robinson, I.S., The Institutions of the Church, 1073-1216, in 4 The New Cambridge Medieval History, Pt. 1, 437-41 (Luscombe, David Edward, Simon, Jonathan & Riley-Smith, Christopher eds., 2004)Google Scholar. However, Fraher's assumption, quite commonly shared by historians, that the “Magister Ronaldus” whose interpretation of clerical privilege was the basis for Henry's position has been heavily undermined by more recent scholarship stemming from the analyses of J.T. Noonan and Rudolf Weigand. See generally, Weigand, Rudolf, The Development of the Glossa Ordinaria to Gratian's Decretum, in The History of Medieval Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX, 7071 (Hartmann, Wilfried & Pennington, Kenneth eds., 2008) (summarizing research with Noonan and subsequent scholarship)Google Scholar; see also Pennington, Kenneth & Müller, Wolfgang P., The Decretists: The Italian School, in The History of Medieval Canon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of Pope Gregory IX, at 131–33 (Hartmann, Wilfried & Pennington, Kenneth eds., Catholic Univ. Am. Press 2008)Google Scholar.

85. Poole, supra note 1, at 203. Helmholz notes that as applied, “benefit of clergy” as practiced within England fairly swiftly diverted from the requirements of canon law, and the secular courts were able to exercise initial jurisdiction to ascertain clerical status by the 14th century. Id. at 511. From there, the privilege was whittled away until, in the 19th century, it was finally abolished. See Dalzell, George, Benefit of Clergy in America and Related Matters (1955)Google Scholar; Sawyer, Jeffrey K., “Benefit of Clergy” in Maryland and Virginia, 22 J. Am. Leg. Hist. 49et seq. (1990)CrossRefGoogle Scholar. Helmholz further allows that “[b]enefit of clergy has never enjoyed a good press among English historians,” a consensus he does not try to rebut. Id. at 511 (citing Maitland, F.W., I Pollock & Maitland, The History of English Law Before the Time of Edward I, at 443 (2d ed. 1898)Google Scholar (describing the trial of clerics before ecclesiastical courts as “little better than a farce”); Gabel, supra note 60, at 115 (concluding that the ordinary ecclesiastical trial of a cleric accused of a crime was “a mockery of justice”)). Helmholz questions these verdicts, while acknowledging they are permissible if harsh readings of the evidence. Id. at 513. He softens the picture slightly, however, pointing out that the ecclesiastical trials did allow the bishop considerable discretion to impose punishments, including imprisonment, as to which the Church was a “pioneer,” which were far from negligible, and that such discretion was in fact so exercised. Id. at 512-13. Helmholz also suggests that the English system's application of benefit of clergy “amounted to a public recognition of the freedom of the church,” concluding that “if fidelity to the spirit of canon law is a virtue, the officers of the English church could perhaps have laid claim to that.” Id. at 514.

86. Warren, supra note 1, at 491; see id. at 453-56.

87. Poole, supra note 1, at 198. Poole argues that Becket was “a great actor superbly living the parts he was called upon to play.” Id. That judgment of Becket has been delivered as well by Brooke, Z.N., The English Church and the Papacy 193 (Cambridge Univ. Press 1931)Google Scholar; see Hill, supra note 9, at 20-21 (describing Becket as seen by Brooke as “a consummate natural actor who could visualize a role to play and then become the role itself”).

88. Warren, supra note 1, at 513.

89. See, e.g., Poole, supra note 1, at 211-12, describing the breakdown of mediation between Becket and Henry, where Becket was “prepared to agree to any and every proposal, but with the exasperating evasive qualification, salvo honore Dei [saving the honor of God] and salvo ordine suo [saving his order].” See also Warren, supra note 1, at 469 (the same formulae advanced at the Council of Westminster). Notably, in an effort to accommodate Becket, the Constitutions of Clarendon allow for a prelate to qualify his fealty to the king by the phrase “saving his order.” Constitutions of Clarendon, supra note 76, at cl. 12; see Warren, supra note 1, at 477.

90. Anselm of Canterbury, Cur Deus Homo [Why God Became Man], in Why God Became Man and the Virgin Conception and Original Sin (Colleran, Joseph M. trans., 1969)Google Scholar. An English translation is also available at Internet Medieval Sourcebook, supra note 2, available at http://www.fordham.edu/halsall/basis/anselm-curdeus.html.

91. Id. at Bk. I, ch. 12, p. 85.

92. Id. at Bk. I, ch. 11, pp. 84-85.

93. Id. at Bk. I, chs. 20-25, pp. 106-18.

94. Biancalana, supra note 35, at 439.

95. Id. at 522-24. See also Gillinghatn, John, Doing Homage to the King of France, in Henry II: New Interpretations, supra note 52, at 6384Google Scholar.

96. Bartlett, supra note 1, at 162,219-22.

97. Biancalana, supra note 35, at 497-98.

98. Bartlett, supra note 1, at 121-30, 163-64 (status of the king as king and lord); 202-18 (hierarchical structure and status of the aristocracy) 316-25 (role and status of peasants). A more holistic view of the cosmology underpinning this view is given in Tillyard, E.M.W., The Elizabethan World Picture (Chatto & Windus 1943)Google Scholar, which relates the social order to the cosmic order in medieval literature, theology and law. The same approach is taken by Lewis, C.S., The Discarded Image (Cambridge Univ. Press 1964)Google Scholar. Henry II was himself both a king and, as Duke of Normandy, Anjou, and Aquitane, vassal to the king of France. Bartlett, supra note l,at 17-25.

99. Post, Gaines, Studies in Medieval Legal Thought: Public Law and The State 1100-1322, at 382 (Princeton Univ. Press 1964)CrossRefGoogle Scholar (noting that “status, honor and dignitas” were often used as described in the text).

100. Post, supra note 99, at 370-71 (quoting Shakespeare, Richard II, Act IV, sc. I); see generally id. at 368-414.

101. See Bartlett, supra note 1, at 232, 235-51. A specific instance of this aspect of medieval life may be seen in one of the charges in the 1327 Articles of Deposition of Edward II, accusing the king of being given “to unseemly works and occupations,” by which was meant his “preference for the company of humble craftsmen, his patronage of ‘theatricals,’ his passion for music, his love of such hobbies as woodwork and metal work, his skill at thatching, hedging and ditching” which “disgusted contemporary and monkish critics.” Hutchison, Harold F., Edward II, at 148–49 (1971)Google Scholar.

102. Notably, even during his friendship with the King, Becket's personal piety was notable and not questioned. Warren, supra note 1, at 449.

103. Gratian, supra note 28. The more correct formal title of the entire work would be cited in English as The Harmony of Discordant Canons. The text of the first part, The Treatise of Laws is divided into main sections called Distinctions, divided into parts and subdivided into chapters (each called a “capitula”), and further divided into sections. The text was heavily annotated by scholars in the medieval period, and those notes—commentaries, supplemental sources, clarifications, or even criticism—are collectively known as the Gloss, with each individual comment referred to as a “gloss,” and the authors referred to as “glossators.” In the edition cited, the traditional glosses are printed in the margin of the text (as they were originally written by hand) and are designated by chapter citation, as well as being separated by superscript letters, or denoted as a case citation (prefaced by Case). Thus, a citation to the text of Distinction 10, chapter 1, section 3 would be rendered Treatise of Laws, D. 10 c. 1 § 3. A citation to the gloss of that section would add “gloss e.”

The Decretum as a whole has not been translated into English; the translation cited is only of the first part, with the Gloss. The entire Decretum is composed of three very different parts. The first, known as the Treatise of Laws, presents a synthetic account of what constitutes a law, what bodies may enact and enforce laws relating to the Catholic Church, and what sources of law take precedence. The second part, the Causae, consists of a series of “Active legal cases (causae), each causa to illustrate a theme. After describing the legal case, Gratian posed a series of questions that the case raised. He then provided the relevant texts after each question. In his dicta, Gratian resolved the contradictions in the sources and provided an answer to each question.” Landau, Peter, Gratian and the Decretum Gratiani, in The History of Medieval Canon Law in the Classical Period, 1140-1234, at 35 (Hartmann, Wilfred & Pennington, Kenneth eds., 2008)Google Scholar. The 3d section, entitled De consecratione, consists of another set of Distinctions, “primarily dedicated to the sacraments and sacramental matters.” Id. at 37. Additional background on Gratian and the Decretum may be found in Helmholz, supra note 45, at 74-79.

Prior to the enactment of the 1917 Code of Canon Law Gratian's work was considered to be a part of the Corpus Iuris Canonici, and was, unless contradicted by subsequent papal or conciliar edict, applied in the Roman Catholic Church. Katherine Christensen, Introduction, in Gratian, supra note 28, at ix, n.2, xvi-xvii. As the preface to the Latin Edition of the 1983 Code of Canon Law explains, “[b]esides the Decree of Gratian, in which the earlier norms were contained, the Corpus [Iuris Canonici] consists of the Liber Extra of Gregory XI, the Liber Sextus of Boniface VIII, the Clemintinae, i.e., the collection of Clement V promulgated by John XXII, to which are added the Extravagantes of this pope and the Extravagantes communes, decretals of various Roman pontiffs never gathered in an authentic collection.” Preface to the Latin Edition, Code of Canon Law: Latin-English Edition vvii (Canon Law Society of America trans., 1983) [hereinafter 1983 Code]Google Scholar. The “ecclesiastical law which this corpus embraces constitutes the classical law of the Catholic Church and is commonly called by this name.” Id. However, as pointed out by Pietro Cardinal Gasparri, the primary author of the 1917 Code, Gratian's treatise, while amended and published by the Holy See, was never explicitly declared to be officially binding. See Gasparri, , Preface to the 1917 Code, in The 1917 or Pio-Benedictine Code of Canon Law in English Translation with Extensive Scholarly Apparatus at 3 (Curator, Edward N. Peters & trans., 2001)Google Scholar; id. at 1-10 (summarizing sources of canon law). Dr. Peters' edition [hereinafter The 1917 Code] is the first translation into English of the 1917 Code of Canon Law.

104. Gratian, supra note 28 D. 10 Pt. 1, at 32.

105. Id. D. 10 Pt. 1 C. 1 §§ 1-2, at 33.

106. Id. at § 3.

107. Id. § 2, gloss b, at 33. A similar gloss decries a case in which the “emperor wanted to control ecclesiastical affairs. He refused to obey the prelates of the Church. What is more, he wanted to dominate them and to impose laws on them.” Gratian, Treatise of Laws, D. 10 Pt. 1 C. 3, gloss Case, at 34.

108. Id. D. 10 Pt. 1 C. 4, gloss g, at 34.

109. Id. Pt. 2 C. 8, at 34-35.

110. Id. gloss j, at 35-36.

111. Id. C. 11, at 36. The gloss to this chapter, gloss f, at 36-37, distinguishes between disobeying an ordinance and holding it in contempt, arguing that only the latter is a sin.

112. Id. at D. 10 Pt. 2 C. 12 & id, gloss CASE, at 37.

113. Helmholz, supra note 45, at 508, 514. More detail on Gratian's view is provided by Chodorow, Stanley, Christian Political Theory and Church Politics in the Mid-Twelfth Century 219–23 (1972)Google Scholar. Chodorow's discussion of Causa 11, q. 1, diet, post c 31, 47 of the Decretum, part of the second part of the Gratian's work, known as the Causae, and which falls outside of the Treatise of Laws translated into English by Thompson, is consistent with other discussions of the causa. See generally, Winroth, Anders, The Making of Gratian's Decretum 77 (2000)CrossRefGoogle Scholar; id. at 77-120 (discussing Causa 11 in general).

114. As noted by Rev. Ferrer M. Smith, at “the Council of Trent, the Summa of St. Thomas shared a place of honor with the Holy Bible as one of the two books on whose authority the decisions of the Council could be based.” F.M. Smith, The Position of the Summa in the Hierarchy of Theology and Catholic Authority, in Thomas Aquinas, 3 Summa Theologica 3072, supra note 26, at 3083; see Encyclical Letter of Pope Leo XIII on the Restoration of Christian Philosophy According to the Mind of St. Thomas Aquinas, The Angelic Doctor (1879)Google Scholar, in Aquinas, 1 Summa Theologica, supra note 26, at vii-xvi. Father Smith's essay helpfully enumerates various papal pronouncements and other citations attesting to the authoritative nature of Aquinas' work in, at any rate, the pre-Vatican II Roman Catholic Church. See also McCool, , The Evolution of Catholic Social Thought in the Last Two Centuries, in A Moral Enterprise: 96-97, 104 (2003)Google Scholar (noting continuity of linkage between Thomistic thought and Catholic social teaching, but also that John Paul II “no longer desires to give St. Thomas the almost exclusive role in structuring Catholic theology that Leo XIII had given him.”). According to Canon 1366 of the 1917 Code of Canon Law, the “study of philosophy and theology and the teaching of these sciences must be accurately carried out by Professors (in seminaries, etc.) according to the arguments, doctrines, and principles of S. Thomas which they are inviolately to hold.” Id. at § 2 (reprinted at 1 Summa Theologica at xvi); see also The 1917 Code, supra note 103, at 460. Similarly, Canon 589 requires members of religious orders to “devote themselves for at least two years to philosophy and for four years to theology, following the teaching of S. Thomas (cf. Canon 1366, § 2).” Id. (reprinted at 1 Summa Theologica at xvi); see also The 1917 Code, supra note 103, at 227.

115. Aquinas, 2 Summa Theologica, II-II, Q. 147, Art. 3, supra note 26, at 1787. See also Aquinas, , Commentary on the Sentences II, dist. 44, in St. Thomas Aquinas, St. Thomas Aquinas on Law, Morality, and Politics 259–60 (Baumgarth, William P. & Regan, Richard J. S.J., eds. 1988)Google Scholar.

116. See, e.g., Aquinas, 1 Summa Theologica, I-II, Q. 90, Arts. 2, 3, supra note 26, at 994, 995. On the Church's like status, see, e.g., II-II Q. 147, Art. 4, 2 Summa Theologica at 1788; Suppl., Q. 40, art. 6, 3 Summa Theologica, supra note 26, at 2705. For the influence of this term, taken by Aquinas from Aristotle's POLITICS i. 1, on Catholic doctrine relating to the relationship of church and state, see generally Lecler, supra note 28.

117. Aquinas, 1 Summa Theologica I-II Q. 96, Art. 5, supra note 26, at 1020.

118. See Aquinas, 2 Summa Theologica II-II Q. 67, Art. 1, supra note 26, at 1483 (equating a judge's sentence to “ a particular law regarding some particular fact,” and noting that, as in the case of a general law, “it is evident that no man can judge others than his subjects and this in virtue of delegated or ordinary authority”).

119. Aquinas, 1 Summa Theologica, I-II Q. 96, Art. 4, supra note 26, at 1020. Aquinas elsewhere reaffirms that Man is obliged to obey secular princes in so far as this is required by the order of justice. Wherefore if the prince's authority is not just but usurped, or commands what is unjust, his subjects are not bound to obey him, except perhaps accidentally, in order to avoid scandal or danger.

3 Summa Theologica, II-II Q. 104, Art. 6, supra note 26, at 1646.

120. Aquinas, 1 Summa Theologica, I-II Q. 96, Art. 4, supra note 26, at 1020.

121. Aquinas, 2 Summa Theologica, II-II, Q. 60, Art. 6, Obj. 3, supra note 26, at 1450.

122. Aquinas, 2 Summa Theologica, II-II, Q. 60, Art 6, Rep. Obj. 3, supra note 26, at 1451.

123. Aquinas, Commentaries on the Sentences II, supra note 115, at 260.

124. Aquinas, 2 Summa Theologica, II-II, Q. 10, Art. 10, supra note 26, at 1221.

125. Id.

126. Aquinas, 2 Summa Theologica, II-II, Q. 12, Art. 2, supra note 26, at 1229.

127. As the histories of Louis the Pious, Henry IV, and King John, among others, make clear, this was no idle threat. See Kern, supra note 12, at 105-10 (Louis & Henry); Poole, supra note 1, at 443-58 (John).

128. Aquinas, 2 Summa Theologica, II-II, Q. 99, art. 1, at 1620.

129. Id. art. 3, at 1621.

130. Id.

131. Id.

132. Aquinas, 2 Summa Theologica, II-II, O. 99, Art. 3, supra note 26, at 1621. Aquinas addresses the varying levels of holiness of varying ranks of priests and religious, as well as the unity of the Church, in Supplement, QQ. 33-40, 3 Summa Theologica, supra note 26, at 2679-2707. See, e.g., Suppl., Q. 40, art. 4 & art. 6, 3 Summa Theologica at 2703-04; 2705.

133. See Lecler, supra note 28, at 80, 64-84 (canvassing Church authorities from the 13th century through the 1930s). Lecler contends that the Church's action “is juridic in character for it does not consist solely in giving enlightenment and advice; indeed, when necessary, the Church commands or forbids under the sanction of canonical censures. Yet her action remains spiritual, she only employs spiritual weapons … only spiritual verdicts are pronounced,” which Lecler asserts do not directly impact the civil community, although he admits that there is “no doubt” that indirect effects will take place. Id. at 80. Lecler also reserves to the Church the authority to “condemn as null and void, so far as the moral law is concerned, certain decrees and treaties drawn up by governments; [to] excommunicate those public authorities who violate the rights of God and the Church.” Id.

134. Id.; see also Koterski, Joseph S.J., Defending Authority in a Cynical Age, in A Moral Enterprise: Politics, Reason, and the Human Good: Essays in Honor of Francis Canavan 107–25 (ISI Books 2002)Google Scholar, in which the very idea of authority is defended at some length.

135. A helpful account of the Tractarian movement (also known as the Oxford Movement, or even the First Oxford Movement, to distinguish it from the more liberal Catholic revival within Anglicanism led by Charles Gore and his co-authors of LUX MUNDI (1889)) and its genesis in resistance to church reforms pioneered by the Liberal government of the 1830s may be found in Clark, C.P.S., Genesis of the Oxford Movement, 1833-1845, in Northern Catholicism: Centenary Studies in the Oxford and Parallel Movements 135 (Soc'y Promoting Christian Knowledge 1933)Google Scholar.

136. Williams, N.P., The Theology of the Catholic Revival, in Northern Catholicism: Centenary Studies in The Oxford and Parallel Movements 134–35 (Soc'y Promoting Christian Knowledge 1933)Google Scholar.

137. Williams, supra note 136, at 135. Catholic scholar Robert Rodes, Jr., in his magisterial study of the Church of England, points out that this embrace of the Apostolic Succession was, while sincerely held, also a means to “counter the loss or feared loss of temporal advantage,” and upon which to re-establish independence from Government interference. Rodes, Robert, Law and Modernization in the Church of England: Charles II to the Welfare State, in 3 This House I Have Built: A Study of the Legal History of Establishment in England 246–47 (Univ. Notre Dame Press 1991)Google Scholar.

138. Williams, supra note 136, at 135.

139. Newman's lectures on this subject and various essays and tracts concerning the topic are collected in Newman, J.H., The Via Media of the Anglican Church 18371840 (“Via Media”) (revised ed. 1877) (reprinted 1911)Google Scholar. The revised edition, which contains a lengthy preface and notes on the 1837 text written well after Newman's conversion to Roman Catholicism, does not amend the original text, but includes his later thinking on the subjects addressed.

140. The government set out to find and eliminate ecclesiastical abuses and unjustifiable privileges, leading to priests appointed to multiple parishes, some of whom did not perform their duties in either, as well as gross disparity between parishes and dioceses as to funds, and thus ability to obtain incumbents. See SirWoodward, Llewellyn, The Age of Reform 1815-1870 at 508–12 (2d ed. 1962)Google Scholar; C.P.S. Clarke, supra note 135. While agreeing that the Tractarians and other high church leaders saw the government as infringing ecclesiastical control over matters both spiritual and temporal, Robert E. Rodes, Jr. points out in addition that the spread of the franchise to dissenters, Roman Catholics and the poor (who were more likely to identify with the evangelical school of churchmanship) undermined the traditional assumption that the civil government constituted the voice of the Anglican laity. Rodes, supra note 137, at 244-46. The Tractarians were firmly opposed to this spread of democratic ideals, and evinced a strong nostalgia for “the Feudal court, the Patriarchal sway/of Kings … every social band/That taught to rule with sweetness, and obey/With dignity.…” Froude, R.H., Farewell to Feudalism, Poem CLVII, in Lyra Apostolica 170 (Beeching, H.C. ed., 1901)Google Scholar; see generally, Anglo-Catholicism versus Democracy, in Baker, Joseph Ellis, The Novel and the Oxford Movement 3344 (Russell & Russell 1932)Google Scholar.

141. Newman, , Apologia Pro Vita Sua 5051 (new ed. 1892)Google Scholar.

142. Id. at 51.

143. Indeed, Newman writes that when he wrote to announce his conversion, he “could find nothing better to say … than that I would obey the Pope as I had obeyed my own Bishop in the Anglican Church.” Apologia Pro Vita Sua, supra note 141, at 51; see generally id. at 246-69.

144. Id. at 257.

145. Id.

146. Id. at 258-59.

147. Id. at 246. So strong is Newman's theological belief in the importance of obedience that he reaffirms a prior controversial statement that “[t]he Catholic Church holds it better for the sun and moon to drop from heaven, for the earth to fail, and for all the many millions on it to die of starvation in extremest agony, as far as temporal affliction goes, than that one soul, I will not say be lost, but should commit one venial sin. …” Id. at 247.

148. Newman, J.H., Preface to the Third Edition, in The Via Media of the Anglican Church 1837-1840, at xxxix–xl (revised ed. 1877) (reprinted 1911)Google Scholar.

149. Id. at xl-xli. Again, in the Apologia, Newman states that “the initial error of what afterwards became heresy was the urging forward some truth against the prohibition of authority at an unseasonable time.” Newman, supra note 141, at 259.

150. Newman, Preface to the Third Edition, The Via Media, supra note 148, at li-lii.

151. Id. at lxxx-lxxxi.

152. Id. at lxxxi.

153. Id. at lxxxii.

154. Id. at lxxxii-lxxxiii (emphasis added). Pope Liberius (352-66 AD) has been accused of having signed, after years of exile and harassment, a document which was insufficiently explicit in condemning the Arian heresy (which taught that God the Father pre-existed and created the Son as the first act of creation, but that the Son is not God in the same sense as God the Father), thus purchasing peace with the Roman Emperor. Schaff, Philip, 3 History of the Christian Church, § 121, at 636 & n. 2 (3d ed., revised 1889) (reprinted 1996)Google Scholar; see also Radecki, Fr. Francisco & Radeckj, Fr. Dominic, Tumultuous Times: Twenty General Councils of the Catholic Church & Vatican II and its Aftermath 2324 (2004)Google Scholar; for a more careful and nuanced definition of Arius's thinking, see Williams, Rowan, Arius: Heresy and Tradition 97105 (2d ed., 2001)Google Scholar. Honorius I (625-38) issued two letters in support of the monothletic heresy (teaching that Christ had only one will, a divine will, and not a human will), a view that was rejected by the Church as heretical, as denying his complete humanity. Schaff, Philip, 4 History of the Christian Church: Medieval Christianity § 113, 500–07 (2d revised ed. 1885) (reprinted 1996)Google Scholar. The failings of both popes were used as arguments against papal infallibility at the First Vatican Council. Id. at 501.

155. Preface to the Latin Edition, 1983 Code, supra note 103, at xviii; see also Gasparri, Preface to the 1917 Code, in The 1917 Code, supra note 103, at 1-10.

156. Daniel-Rops, H., A Fight For God (1964) 5859 (John Warrington trans., 1966)Google Scholar.

157. Preface to the Latin Edition, 1983 Code, supra note 103, at xviii. Cardinal Gasparri's own account of the factors leading up to the enactment of the Pio-Benedictine Code are given in his preface to the 1917 Code in The 1917 Code, supra note 103, at 10-13.

158. Preface to the Latin Edition, 1983 Code, supra note 103, at xviii; see also Daniel-Rops, H., A Fight for God 5859 (1966)Google Scholar (describing Pius X's involvement in the drafting of the Pio-Benedictine Code). As the tension between this rendering of the language of canon 6 and the overly simple, though generally accurate, characterization of its import suggests, the Pio-Benedictine Code did make changes to the substance of canon law-eliminating contradictions, modernizing provisions, etc. See also Canon 6, The 1917 Code, supra note 103, at 31. All quotations from the 1917 Code, unless otherwise attributed, are taken from Dr. Peters's edition, which is, to date, the only full translation in English. As Peters explains, during the 1917 Code's effective period, translations were forbidden. Edward N. Peters, Curator's Introduction, in The 1917 Code, supra note 103, at xxiv. For a more detailed and nuanced analysis of the relationship between the Pio-Benedictine Code and the Corpus, see Rev.Woywod, Stanislaus, 1 A Practical Commentary on the Code of Canon Law 1925, at 35 (revised ed., Rev.Smith, Callistus ed., 1943) [Practical Commentary]Google Scholar. Dr. Peters commends Fr. Woywod's work as “considerably more scholarly than its ‘hand-bookish’ title would indicate.” Peters, Researching the 1917 Code in English, in The 1917 Code, supra note 103, at xxxiii. Specific variations between the Corpus and the Pio-Benedictine Code are only noted in, among other places, Appendix III of the Practical Commentary by Fr. Woywod. See 2 Practical Commentary at 565-71.

159. Woywod, 1 Practical Commentary, supra note 158, at 2. See also Lecler, supra note 28, at 72-82; 113-15. Woywod contends that a concession of authority within the Church's legitimate jurisdiction may be tactical in nature, while Lecler asserts that such a concession in method of exercising its legitimate jurisdiction constitutes a recognition of the different times and circumstances within which the Church operates. See, e.g., id. at 82-83.

160. Canon 120, § 1, The 1917 Code, supra note 103, at 64; see Woywod, 1 Practical Commentary, supra note 158, at 52 (summarizing Canon 120 § 1 as providing that “[a]11 lawsuits against clerics, both civil and criminal, must be brought into the ecclesiastical court, unless other provisions have legitimately been made for some countries.”). As to the origin of this privilege, Fr. Woywod explicitly states that:

The rights and privileges of the clergy enumerated here by the Code are but a restatement of the ancient law of the Church. The origin of these laws may be traced to the early centuries when the Church christianized the nations of Europe. The demand of the Church on the Christian nations to respect the rights and privileges of the clergy, is certainly reasonable and proper. The civil power of the State and the Church stand side by side, both having been instituted by the will of God; one power has charge over the temporal, and the other over the spiritual affairs of men, and each is independent of the other in its own sphere.... However, there are few, if any, Christian states today which recognize that the Church has her power and constitution by the will of God; and that in a comparison between the two powers, the Church is the superior, inasmuch as the purpose for which God instituted her is far superior to the purpose for which He instituted the civil power. Owing to this unbelief and disregard of sound principles, the Church and her clergy have to suffer indignities at the hands of the State in many countries.

Woywod, 1 Practical Commentary, supra note 158, at 53.

The privilege extends to all “Religious, even laity and novices,” that is, to members of religious orders, such as monks and nuns. Canon 614 in The 1917 Code, supra note 103, at 235; Woywod, 1 Practical Commentary, supra note 158, at 264.

161. Woywod, 1 Practical Commentary, supra note 15 8, at 3.

162. Id. at 3 (citing Coronata, , Jus Publicum Ecclesiasticum (1924)Google Scholar). A chronological list of nations having entered into concordats with the Vatican, with translations of many of them, available at http://www.concordatwatch.eu/. However, Concordat Watch, while thorough and informative, is also strongly influenced by its strong belief that concordats are inherently a threat to secular law, and is at points inflammatory in its commentary. A more nuanced scholarly appraisal of concordats in the post-Vatican II era is Petkoff, Peter, Legal Perspectives and Religious Perspectives of Religious Rights Under International Law in the Vatican Concordats (1963-2004), 158 Law & Just-Christ L. Rev. 30 (2007)Google Scholar.

163. Under canon 1552 of the 1917 Code, the Church has the “inherent and exclusive right to judge …. all civil and criminal cases of persons who enjoy the privilege of the ecclesiastical forum” as defined in canons 120 and the related canons. Woywod, 2 Practical Commentary, supra note 1583, at 198; The 1917 Code, supra note 103, at 519.

164. Rev. Michael Hastings, True Justice in Courts of Law According to St. Thomas and Approved Moral Teaching of the Church, in 3 Aquinas, Summa Theologica, supra note 26, at 3346; see id. at 3345-56.

165. Canon 2334 The 1917 Code, supra note 103, at 740. See also Woywod, 2 Practical Commentary, supra note 158, at 483. For any cleric of the rank of bishop (or the equivalent) the penalty is “automatic excommunication reserved to the Apostolic See.” Id. The consequences of the penalty of excommunication—including forbidding the excommunicated party to receive the sacraments, indulgences, public prayers, or exercise any authority within the Church—are detailed at Canons 2257 through 2267. The 1917 Code, supra note 103, at 718-21; 2 Woywod, 2 Practical Commentary, supra note 158, at 439-43. Excommunication is often described as “reserved” to a forum, meaning that absolution, and a return to good standing in the Church, can only be granted to the entity to whom jurisdiction over the crime (or “delict”) is reserved. Woywod, 1 Practical Commentary, supra note 158, at 437-39. Either a case, or remission of a penalty, may be reserved to a forum. The concept of reservation in this sense is set forth in Canon 893 The 1917 Code, supra note 103, at 315-16.

166. Woywod, 2 Practical Commentary, supra note 158, at 483. Additionally, if the party who seeks civil intervention is a cleric, there are additional penalties including “suspension from or even deprivation of any benefice, office, dignity, pension, or position which they may hold in the Church.” Id. at 486; Canon 2236 § 1 The 1917 Code, supra note 103, at 740-41.

167. Canon 2341, The 1917 Code, supra note 103, at 742 (emphasis in original; editing marks omitted); Woywod, 2 Practical Commentary, supra note 158, at 491-93. Leaving aside the technical distinctions between the kinds of excommunication, Fr. Woywod notes that the severity of the punishment (here predicated on how high in the ecclesiastical hierarchy the offender must go to seek absolution, as well as whether any process is required prior to its taking effect) varies based upon the rank of the cleric whose privilege is violated and the state of the offender- whether clerical or lay. Woywod further explains that “[t]hough the Code punishes with censures those only who sue clerics before laical judges without the permission of the authorities of the Church, it is nevertheless sinful to force them to appear as witnesses without obtaining the permission of the Church in view of the exemption which the Church bestows upon clerics in this matter.” Id. at 492.

168. Canon 120 § 2, The 1917 Code, supra note 103, at 64. Pursuant to this section, in the cases of “Cardinal Fathers, Legates of the Apostolic See, Bishops, even titular ones, Abbots or Prelates of no one, Superiors of religious institutes of pontifical right, and major Officials of the Roman Curia,” such permission must be obtained from the Apostolic See (that is, the Vatican) itself. Id. (emphasis in original; editing marks omitted). In the cases of other clerics, such permission must be obtained from the “Ordinary [that is, the bishop] of the place where the matter will be tried.” Id.

169. Woywod, 1 Practical Commentary, supra note 158, at 52 (summarizing Canon 120 § 2). Dr. Peters translates this section of the Code as providing that the “Ordinary, however, will not deny this permission except for just and grave causes, all the more so when he was unable to bring about a resolution of the controversy between the parties.” Canon 120 § 2 The 1917 Code, supra note 103, at 64.

It should be noted that Fr. Woywod points out again that “[i]n the United States the government has never recognized the exemption of clerics from being sued in its courts” and cites the decree of the Third Council of Baltimore (1884), which “says that, in order to uphold ecclesiastical immunity as much as possible among us, the priests are strictly forbidden to sue another priest or cleric, even in temporal affairs, in the secular courts without previous written permission of the bishop.” 2 Practical Commentary, supra note 158, at 492-93. Fr. Woywod relies upon Henry Amans Ayrinhac's construction of this explicit statement of the Council, combined with the lack of a similar proscription toward lay persons, and suggests that “lay persons are implicitly granted permission to sue clerics in the secular courts.” Id. Fr. Ayrinhac suggests that the 1917 Code does not repeal what he characterizes as the implicit permission granted by the Third Plenary Council of Baltimore, and that the privilege must exist (that is, be recognized) in a nation for the Code to apply it, and that therefore “laymen may be considered as having the Ordinary's necessary permission by custom and implicit general concession.” Ayrinhac, H.A., V Penal Legislation in the New Code of Canon Law 262–63, n.279 (1920)Google Scholar. This argument from implication by two well-respected canonists is worth consideration. It establishes (1) the Church's desire to preserve the immunity to the maximum degree within the United States; (2) the possible tactical concession that such a goal is best served by granting permission (at least by implication) as to suits by laypersons, who are thus acting within the ambit of the Church's permission; and (3) that such permission could be withdrawn at the Church's decision. While this argument may be correct, whether the Code was in fact so applied within the United States with respect to suits against clergy by the laity is unclear. Both Woywod and Ayrinhac argue from the Council's statements without providing any instances in which the possible implication was so understood and applied. However, the question as to whether suits in secular courts in ordinary civil or criminal cases were treated by the Church as having been authorized is beyond the scope of this Article, as it is clear that such was not the practice with respect to sexual abuse claims, as seen infra at IV(B).

170. Canon 904, The 1917 Code, supra note 103, at 318. See also Woywod, 1 Practical Commentary, supra note 158, at 449. As Father Woywod writes, and the text of the Canon itself states, the obligation to denounce a priest embodies prior law on the subject at least as far back as the constitution Sacramentum Poenitentiae issued by Pope Benedict XIV in 1741. Id. Pursuant to Canon 2368 § 2, “the faithful who knowingly fail to denounce him by whom they were solicited within one month … incur automatic excommunication … and shall not be absolved until after satisfying the obligation or seriously promising to satisfy it.” Id., The 1917 Code, supra note 103, at 751; see also Woywod, 2 Practical Commentary, supra note 158, at 509 (discussing sources).

171. Canon 894 The 1917 Code, supra note 103, at 316.

172. Canon 2363 The 1917 Code, supra note 103, at 750. In the 1983 Code, this provision has been retained, albeit divided into different canons. 1983 Code, Canon 982, supra note 103; Canon 1390 §1.

173. Woywod, 2 Practical Commentary, supra note 158, at 509 (summarizing Canon 2368 § 1); see also Canon 2368 The 1917 Code, supra note 103, at 751.

174. Woywod, 2 Practical Commentary, supra note 158, at 503 (summarizing Canon 2359 § 1); see also Canon 2359 § 1 The 1917 Code, supra note 103, at 748-49.

175. The original Latin text is archived in pdf form. Instructio (Typic Polyglottis Vaticanis 1922) (Latin), available at http://www.bishop-accountability.org/archives/Wall/1922_06_09_Solicitation_Instruction_Latin.pdfGoogle Scholar. The website bishopaccountability.org still has the two versions of the Instructio, that in Latin and that in English; they do not always load directly, but can be accessed as the first two links from: http://www.bishop-accountability.org/AtAGlance/church_docs.htm. An English translation, quoted here, is also available. Instruction (Typic Polyglottis Vaticanis 1922), available at http://www.bishop-accountability.org/archives/Wall/1922_06_09_Solicitation_Instruction_English.htmGoogle Scholar. [hereinafter Instruction]. The existence and authenticity of the Instructio is vouched for in Rev. O.P.Doyle, Thomas P., Sipe, A.W., & Wall, Patrick J., Sex, Priests & Sacred Codes: The Catholic Church's 2,000-Year Paper Trail of Sexual Abuse 247–48, 98, 329 n.160 (2006)Google Scholar (citing Juan Ortego-Uhink, De Delicto Sollicitationis: Evolutio Histórica, Documenta, Commentarius (1954) (Ph.D. dissertation, Catholic University of America) (Latin)); id. at 328, n.158 (describing bishop-accountability.org as “a competent and reliable source of facts and data about the sexual abuse crisis” posting “the most complete library of documentation so far assembled”). Comparison between the Latin version and the English translation reveals two errors in the translation, referring to earlier Church decrees which are dated in the original to the 18th and 19th centuries, but which are erroneously rendered as dating from the 20th century-1941 for 1741 Instruction, supra, at tit. 1 ¶ 16, citing Constitution of Benedict XIV Sacramentum Poenitentiae) and 1967 for 1867 (Id., ¶ 19, citing Instruction of the Holy Office). Because these errors could be assumed to reflect emendations to the document or even the possibility that the document is inauthentic, reference to the original is important.

176. Instructio, supra note 175.

177. Id. at ¶ 1 (editing marks omitted).

178. Id. at ¶¶ 2-3.

179. Id. at ¶ 4.

180. Id. at ¶ 7, 5-7, citing Canon 1589, in The 1917 Code, supra note 103, at 531; see also Canon 1573 § 2, 4, id. at 525 (“oficialis” and their assistants (“vice-officialis”) entrusted with the “ordinary power of judging” “must be priests, of intact reputation, doctors or otherwise experts in canon law, and not be less than thirty years of age”).

181. Id. at ¶¶ 11, 13 (brackets and bracketed material in original). However, paragraph 23 of the Instructio states that upon signing the sworn denunciation, the accuser is “is to be administered the oath to maintain confidentiality, if necessary under pain of excommunication.”

182. Id. at tit. 2, ch. 1, ¶ 33. This procedure, while the equivalent of a grand jury determination of probable cause in its effect—that is, it allows the case to move on from investigation to adjudication—is reminiscent of the earliest form of jury determinations, in which the jurors were selected for their familiarity with the individuals and transaction, and were to use their own knowledge in determining the result. See Treatise Commonly Called Glanvill, Bk. II ch. 10-18, at 3135 (Hall, ed., 1965)Google Scholar; A Translation of Glanville at 5866 (Beames, John ed.)Google Scholar. For a short, accessible account of the evolution of the jury from this voice of the community's knowledge to its current role as an impartial finder of facts based solely on the evidence, see Levy, Leonard W., Palladium of Justice: Origins of Trial by Jury (Dee, Ivan R. 1999)Google Scholar.

183. Id. at tit. 3, ch. 3 ¶ 52.

184. Id. at tit. 3, ¶ 62 (editing marks and bracketed material in original).

185. Id. at tit. 3 ¶ 63.

186. Id. at tit. 3 ¶ 64 (a) (d).

187. Id. at tit. 4, ¶ 67 (editing marks and bracketed material in original). Similarly, “[i]f any priest suspended in a case of solicitation from hearing sacramental confessions but not from sacred preaching happens to go to another territory to preach, the Ordinary of this territory should be reminded by the prelate of the accused, whether secular or religious, that he cannot be utilized for hearing sacramental confessions.” Id. at ¶ 69.

188. Id at tit. 4, ¶¶ 68-69.

189. Id. at tit. 4, ¶ 70 (editing marks and bracketed material in original).

190. Id. at tit. 5 ¶ 171.

191. Id. at tit. 5 ¶ 172.

192. Id. at tit. 5, ¶ 72.

193. Id. at tit. 5, ¶ 73. Regarding the appropriate penalties, see Canon 2359 § 2 The 1917 Code, supra note 103, at 749, applicable both by its own express terms and incorporated by reference by Instruction, supra note 175, at tit. 5, ¶ 72.

194. The Vatican has made available its own, available at http://www.vatican.va/resources/resources_crimen-sollicitationis-1962_en.html (last visited Mar. 5, 2011). Extracts from the document are attached as Exhibit B to Robertson, Geoffery, The Case of the Pope: Vatican Accountability for Human Rights Abuse 189–97 (Penguin 2010)Google Scholar [hereinafter The Case of the Pope]. Robertson's work is well researched, and his factual premises are reliable as far as they go; however, the breadth of his argument and the scope of the ground he covers is such that he paints with a broad brush and occasionally falls into a polemical tone which is unhelpful, if understandable.

195. Robertson, The Case of the Pope, supra note 194, at 48 ¶ 65. However, as noted by Fr. John J. Coughlin, the Instructio and Crimen were referenced in a footnote in the 2002 revised procedures for such cases issued by the Congregation for the Doctrine of the Faith. Rev.Coughlin, John J., OFM, Canon Law and the Clergy Sex Abuse Crisis: The Failure of the Rule of Law [hereinafter The Failure of the Rule of Law], Notre Dame Law School Legal Studies Research Paper, No. 09-21, available at http://ssrn.com/abstract=1397584 at 14Google Scholar.

196. Murphy, Yvonne, et al., Commission of Investigation's Report into the Catholic Archdiocese of Dublin ¶¶ 4.20, 4.18-4.20 (07 2009), available at http://www.justice.ie/en/JELR/Pages/PB09000504 (last visited Mar. 5, 2011) [hereinafter Dublin Report]Google Scholar. What few differences may be discerned by a comparison between the two documents as cited here are extremely minor and may plausibly be attributed to different translators working with the respective documents. According to the Dublin Report, “[t]he main difference between the 1922 and the 1962 documents is that the latter extended the instructions contained in the 1922 document to members of religious orders.” Id. at ¶ 4.20. As quoted above, however, Instructio may reasonably be read as applying to religious—a discrepancy which may result from the fact that the Murphy Commission had yet a different set of translations. Id. at ¶ 4.19.

197. Coughlin, supra note 195, at 15. Fr. Coughlin also argues that both were limited by their language to solicitation in a confessional setting and sexual abuse of prepubescent boys. Id.

198. Id. at 16 (emphasis added). This summary is in tension with the text of Instructio and Crimen; the duty to report is, from the text of the Instructio, not applicable to the “worst crime” of same-sex solicitation unless “perhaps” it occurs in the context of confession. Instruction, supra note 175, at tit. 5 ¶ 72.

199. Robertson, supra note 194, at 52-53; Hamilton, Marci A., The Waterloo for the So-Called Church Autonomy Theory: Widespread Clergy Abuse and Institutional Cover-Up, 29 Card. L. Rev. 225, 227 (2007) [hereinafter Clergy Abuse and Institutional Cover-Up]Google Scholar.

200. Robertson, supra note 194, at 52 (quoting Crimen at ¶ 23, reproduced at id., at 190-91). However, the text of Crimen reproduced in Robertson's appendix states that the oath is to be administered ‘if necessary under pain of excommunication,” (id. at 192; emphasis added); Robertson's text reads “of necessity” an apparent error in Robertson's quotation in the main text which somewhat weakens his point. The text quoted in the Appendix is consistent with the Instructio and Crimen. That said, it should be noted that the case of Cardinal Sean Brady of Ireland, as reported in the press, provides a specific instance supporting the contention that complainants “were required to sign affidavits swearing that they would not talk to anybody except priests given special permission by the tribunal hearings, known in church parlance as ‘ecclesiastical proceedings.’” McCarthy, Justine, Cardinal Sean Brady in “Sex Abuse Cover-up,”The Times (London), 03 14, 2010, available at http://www.timesonline.co.uk/tol/news/world/ireland/article7061133.ece (last visited Apr. 23, 2011)Google Scholar. Cardinal Brady's spokesman confirmed that, in 1975, acting in his capacity as secretary to the diocese of Kilmore, “he attended a secret canonical tribunal, or internal church hearing,” at which the complainants signed undertakings on oath to respect the confidentiality of the information-gathering process.” Id. Similar requirements of confidentiality can be seen in the United States, see, e.g., Affidavit of Maurice J. Dingman, Chancellor of the Diocese of Davenport, In re Rev. James Janssen, sworn to 10 3, 1958, available at http://www.bishop-accountability.org/ia-davenport/archives/jnw-ex-19-J-57.pdfGoogle Scholar.

201. Hamilton, , Clergy Abuse and Institutional Cover-Up, supra note 199, at 227Google Scholar. For further grand jury reports and other accounts supporting this point, see infra note 207. Father Coughlin reasonably points out that these practices do not prove the intent underlying the directives, which were not promulgated, but kept secret, as evidenced by the Dublin Report. Coughlin, supra note 195, at 14; Dublin Report, supra note 196, at ¶ 4.88, at 78.

202. See Doyle, , et al., Sex, Priests and Secret Codes, supra note 175, at 230–49Google Scholar.

203. The phrase “cruel trilemma” originated in the Supreme Court's opinion in Murphy v. Waterfront Commn., of N.Y. Harbor, 378 U.S. 52, 55 (1964), “where it was used to explain the importance of a suspect's Fifth Amendment right to remain silent when subpoenaed to testify in an official inquiry. Without that right, the opinion said, he would be exposed ‘to the cruel trilemma of self-accusation, perjury or contempt.’” Brogan v. U.S., 522 U.S. 398, 404 (1998) (summarizing and quoting Murphy).

204. Notably, the 1983 Code retains several canons barring interference with ecclesiastical jurisdiction. See Canon 1370 through 1375, supra note 45; THE 1983 Code, supra note 103, at 495-97; compare The 1917 Code, supra note 103, at 739-40.

205. For example, Fr. Gerald McCool has praised John Paul II's contribution to Vatican II's teaching on the nature of the relation to the modern world as “richer, deeper, and more complex” than the 18th-century view which it superseded. Fr. McCool credits this depth to the “recovery of the older notion of Church and state as two distinct societies, each autonomous in its own order, yet both in the order of grace and nature subject in their own way to the authority of Christ.” McCool, supra note 114, at 103. Likewise, the current Pope, Benedict XVI (at the time Cardinal Josef Ratzinger) stated in 1999 on receiving a honorary degree in jurisprudence that “Christian faith respects the nature of the State itself, especially of the State of a pluralist society, but it also feels its co-responsibility, in order that the fundamentals of law continue to remain visible and the State is not deprived of direction and simply at the mercy of changing currents. Since, in this sense, even with all the distinctions between reason and faith, between statutory law—necessarily drawn up with the help of reason—, and the vital structure of the Church, nevertheless, the ordering between them is in a reciprocal relation and they have a responsibility one for the other.” Ratzinger, Cardinal Josef, The Contemporary Crisis of Law, 11 10, 1999, available at http://www.ufppc.org/us-a-world-news-mainmenu-35/2637-news-a-background-cardinal-ratzinger-is-pope-benedict-xvi.htmlGoogle Scholar.

206. Dublin Report, supra note 196, at ¶¶ 4.82-4.85 (emphasis in original); see also id. at ¶ 4.1 (“The fact is that Catholic Church authorities, in dealing with complaints against its clerics, gave primacy to its own laws”); 4.6; 4.13; 4.16 (“[w]hen the new system came into being in 1983, it was not clear by any means, even to canonists, what its effect was on older decrees or sources of law. These included the procedural rules on dealing with child sexual abuse issued in 1922 and 1962”).

207. In addition to the Dublin Report, similar conclusions were reached by the Attorney General of Massachusetts. See Reilly, Thomas F., et al., The Sexual Abuse of Children in the Roman Catholic Archdiocese of Boston: A Report by the Attorney General 53, 3054 (2003), available at http://www.bishop-accountability.org/downloads/archdiocese.pdf (last visited Mar. 5, 2011)Google Scholar; see also Abraham, Lynne, et al., Report of the Grand Jury, First Judicial District of Pennsylvania, NO. 03-00-239, at 3845, available at http://www.bishop-accountability.org/pa_philadelphia/Philly_GJ_report.htm) (2005) (last visited Mar. 5, 2011)Google Scholar; Williams, R. Seth, et al., In re County Investigating Grand Jury XXIII: Report of the Grand Jury, First Judicial District of Pennsylvania, No. 0009901-2008, available at http://www.bishop-accountability.org/reports/2011_01_21_Philadelphia_Grand_Jury_Final_Report_Clergy_Abuse_2.pdf (last visited Mar. 7, 2011)Google Scholar (describing circumstances since prior report, concluding “[t]he rapist priests we accuse were well known to the Secretary of Clergy, but he cloaked their conduct and put them in place to do it again. The procedures implemented by the Archdiocese to help victims are in fact designed to help the abusers, and the Archdiocese itself). These reports are consistent with earlier cases in which similar insistence on confidentiality combined with an unwillingness to report such crimes to secular authorities. See, e.g., Berry, Jason, Lead Us Not Into Temptation: Catholic Priests and the Sexual Abuse of Children 5147 (1992)Google Scholar; Investigative Staff of the Boston Globe, Betrayal: the Crisis in the Catholic Church 34–53, 98139 (2002) (Boston Geoghan case)Google Scholar (summarizing cases nation-wide) [hereinafter Betrayal]. Similarly, the Vatican, as recently as May 2011, has promulgated non-enforceable guidelines that “note that the sexual abuse of minors by clerics is not only an offense punishable under church law, but also ‘a crime prosecuted by civil law.’” Donadio, Rachel, Vatican Tells Bishops to Set Clear Strategy Against Abuse, N.Y. Times, 05 17, 2011, at A 4, col. 1Google Scholar. Despite this, the guidelines do not require that even credible allegations of abuse be reported to civil authorities. As the Times states, citing Vatican spokesman, Rev. Frederico Lombardi, “the Vatican could not issue universal requirements for mandatory reporting to civil authorities because it also operated in countries with repressive governments. Each reality is different, culturally and from the point of each countries' laws,’ he said.” Id.

208. Hon.Murphy, Yvonne, et al., Commission of Investigation: Report into the Catholic Diocese of Cloyne, December 2010, § 4.11 at 48 (12 2010), available at http://www.justice.ie/en/JELR/Cloyne_Rpt.pdf/Files/Cloyne_Rpt.pdf (last visited Sept. 17, 2011) [hereinafter Cloyne Report]Google Scholar.

209. Id, § 4.17, at 50.

210. Id, § 4.21, at 51.

211. Id., § 4.21 51-52 (quoting Vatican Nuncio's letter). In its response to the Cloyne Report, the Holy See acknowledges that the referenced section “quotes in full Archbishop Storero's letter to the Irish Bishops.” Response of the Holy See to the Government of Ireland Regarding the Report of the Commission of Investigation into the Catholic Diocese of Cloyne 4 (09 3, 2011), available at http://www.irishtimes.com/indepth/cloynevatican/index.pdf (last visited Oct. 23, 2011) [hereinafter Response]Google Scholar. The Response claims that the Commission's finding that the letter “gave comfort” to those who opposed the policies set forth in the framework is not supported by evidence, and that, in any event, the Cloyne Report “never claims that such was the Holy See's intention.” Response, supra at 4-5. It is difficult to see how the text of the Papal Nuncio's letter, as quoted in the body can be seen as anything but undermining the framework.

212. Response, supra note 211, at 12.

213. Id. The Response then argues at length—and not unconvincingly—that under Irish law throughout the relevant time period, the Church was not under a mandate to report instances of child abuse. Id. at 12-14. As to potential new statutes that might mandate reporting, the Response states that “[w]ith regard to the question of reporting to the secular authorities, the Holy See's position, while not new, is stated in the [] Circular Letter of 3 May 2011, namely ‘Specifically, without prejudice to the internal sacramental forum, the prescriptions of civil law regarding the reporting of such crimes to the designated authority should always be followed.’” Id. at 14.

214. Allen, John L., Vatican Disses One of its Own on Sex Abuse, Nat'l Cath. Rep. (04 15, 2010), available at http://ncronline.org/news/accountability/vatican-disses-one-its-own-sex-abuse (last visited Nov. 27, 2011)Google Scholar.

215. Robertson, , The Case of the Pope, supra note 194, at 42Google Scholar; Allen, supra note 214. Robertson points out that the confession did not arise in the context of sacramental confession, which would have been a protected disclosure under French law. Id. Robertson also refers to other instances of such statements as that “[w]henever the subject of a bishop reporting a priest to police is broached in the Vatican, it is analogized to the anguish of a father betraying a child—‘it is so hard,’ said a CDF official, ‘for a father to betray his son.’” Id. at 59.

216. Robertson, , The Case of the Pope, supra note 194, at 57Google Scholar.

217. Id. at 57-58. However, this is, somewhat in tension with the statement in the Response that under the Circular Letter of 3 May 2011, “the prescriptions of civil law regarding the reporting of such crimes to the designated authority should always be followed.” Id. at 14. As Robertson quite accurately points out, this change would have been, in any event, only a half step, since in nations without a specific reporting requirement, no duty would adhere; the website addressed only compliance with the minimum requirements of civil law. Id. As reported by the Catholic News Service, Father Lombardi's explanation of the state of the earlier advice was rather opaque. Lombardi

“said that while the Vatican norms do not directly address the reporting of sex abuse to civil authorities, it remains the Vatican's policy to encourage bishops to report such crimes wherever required by civil law. These norms are part of canon law; that is, they exclusively concern the church. For this reason they do not deal with the subject of reporting offenders to the civil authorities. It should be noted, however, that compliance with civil law is contained in the instructions issued by the Congregation for the Doctrine of the Faith as part of the preliminary procedures to be followed in abuse cases.

Thavis, John, Vatican Says New Norms Will Strengthen Efforts Against Abusive Priests, Cath. News Service, 07 19, 2010, available at http://www.catholicnews.com/data/stories/cns/1002901.htm (last visited May 28, 2011)Google Scholar.

218. Donadio, Rachel, Vatican Tells Bishops to Set Clear Strategy Against Abuse, N.Y. Times, 05 17, 2011, at A4, col. 1Google Scholar.

219. See O'Bryan v. Holy See, 471 F. Supp. 2d 784, 786, 794 (W.D. Ky. 2007), aff'd, 556 F.3d 361 (6th Cir. 2009), cert, den.,__U.S.__, 120 S.Ct. 361, 175 L.Ed.2d 27 (2009) (rejecting First Amendment defense on grounds that “[f]oreign sovereigns do not enjoy rights derived from the United States Constitution …. Defendant Holy See cannot simultaneously seek the protection of the F[oreign] S[overign] [I]mmunity Act”); Doe v. Holy See, 557 F.3d 1066, 1096-97 (9th Cir. 2009), cert, den.,__U.S.__, 130 S.Ct. 3497, 177 L.Ed.2d 1089 (2010) (Berzon, J., concurring in part and dissenting in part) (same).

220. However, it should be noted that in the Response to the Cloyne Report, the Holy See did back away from asserting clerical immunity for the abusive priest himself, although not explicitly waiving it. The RESPONSE states that “all citizens, including members of the Church, are subject and accountable to these [secular] laws.” Response, supra note 211, at 18. While encouraging, this broad brush statement could have been made by any of the glossators to the Decretum, and does not clearly waive the objection to the exercise of secular jurisdiction where, traditionally, it has not been “competent”—that is, over clergy.

221. See Krystal G. v. Roman Catholic Diocese of Brooklyn, 34 Misc.3d 531, 543, 933 N.Y.S.2d 515 (Sup. Ct. Kings Co. 2011) (Rothenberg, J.) (denying motion to preclude discovery against Congregation of the Mission of St. Vincent DePaul; finding that “plaintiffs' claims involve sexual abuse and battery and negligent supervision of a subordinate's physical contact with a child. Hence, the First Amendment's [free exercise and] establishment clause protection does not bar plaintiffs'” cause of action, and thus their discovery).

222. See, e.g., Chopko, Mark E. & Moses, Michael F., Freedom to Be A Church: Confronting Challenges to the Right of Church Autonomy, 3 Geo. J. Law & Pol'y 387 (2005) [hereinafter Freedom to Be a Church]Google Scholar. Michael Moses was, as of the time of the publication, Associate General Counsel to the U.S. Conference of Catholic Bishops. See also Chopko, Mark E., Constitutional Protection for Church Autonomy: A Practitioner's View, in Church Autonomy: A Comparative Survey 96, et seq. (Robbers, Gerhard ed., 2002)Google Scholar.

Chopko's and Moses's 2005 article is particularly noteworthy in two ways. First, although the article contains the disclaimer that the “views expressed here are not necessarily those of the Conference or any of its member Bishops,” the authors' acknowledged positions at the time of publication as counsel for the USCCB affords their work heightened importance, as the views expressed clearly help shape the litigation strategy of the Roman Catholic Church. (Indeed, the copyright of the article is in the name, not of the authors, but of the USCCB itself). Second, the article addresses the sex abuse crisis far more explicitly than do many other defenses of church autonomy. Whatever one may think of the authors' conclusions, they do not lack the courage of their convictions.

A more nuanced approach to church autonomy is taken by Horwitz, Paul in Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 Harv. Civ. R-Civ. Lib. L. Rev. 79 (2009)Google Scholar, which seeks to ground the concept in what is called First Amendment institutionalism—a view taken in recent years of the Free Speech and Press clauses of the First Amendment that urges courts to “be more willing to openly acknowledge that particular speech institutions—universities, the press, religious associations, libraries, and perhaps others—play a fundamental role in our system of free speech.” They would understand that some speech institutions are key contributors to our system of public discourse and that “the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of,” these institutions.” Id. at 87. The principal problem with this approach is that it is completely divorced from the text, history and judicial reasoning that makes up the core of First Amendment jurisprudence, which has been built on and defined by cases involving not these specially honorable institutions, but rather the speech of marginal participants in the civic dialogue. From Jehovah's Witnesses to socialists, and even including bigots whose toxic speech has been subjected to censorship in the name of protecting against offense and promoting civil institutions, freedom has been defined not by those we honor, but those whom our society struggles to tolerate. See generally, Wlrenius, John F., First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d ed., Holmes & Meier 2004) [hereinafter First Amendment, First Principles]Google Scholar; Bollinger, Lee C., The Tolerant Society (Oxford Univ. Press 1987)Google Scholar; de Grazia, Edward, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius (Random House 1992)Google Scholar. First Amendment institutionalism in general, let alone as applied to the sphere of creating preferential treatment vis á vis neutral law, imperils the very values it purports to promote by further strengthening voices within the social mainstream and affording preferential treatment to the marginal speakers who have in historical fact created the broad contours of freedom of speech in American jurisprudence.

223. Id. at 427-35.

224. Id. at 435-41.

225. Id. at 441-45.

226. Chopko and Moses repeatedly state that “we are not arguing for absolute immunity.” But from their line of argumentation, it is fairly clear that as to clergy performing clerical functions (as opposed to secular counseling) in the context of a hierarchical church, they effectively are. They do acknowledge that employees who perform purely secular functions—janitors, for example, or those in other non—ministerial (clergy or lay) roles—fall outside the ambit of protection for which they argue.

227. See Freedom To Be A Church, supra note 222, at 390, 394-99 (Establishment Clause); 399-04 (Free Exercise Clause). Chopko and Moses contend, in particular, that the Free Exercise Clause rulings prior to the Supreme Court's decision in Employment Div. v. Smith, 494 U.S. 872, 882-89 (1990), applied at least in name the “compelling state interest” test to determine if a facially neutral, non-discriminatory law that incidentally burdens religion can be constitutionally valid in that context. Freedom To Be A Church, supra note 222, at 403-04, n.106. Thus, in their telling, the Supreme Court in Smith impermissibly weakened church autonomy by disregarding nearly a half-century worth of precedent.

This claim is made to seem plausible by their decision to begin the analysis in 1940, when, in their reading, the Supreme Court in Cantwell v. Conn., 310 U.S. 296 (1940) “prefigured” the applicability of the compelling state interest test, which became “settled” in Sherbert v. Venner, 374 U.S. 398 (1963). Freedom to Be a Church, supra note 222, at 400-01. Cantwell simply does not fit this characterization, and cannot fairly be read to support it. See, e.g., Cantwell, 310 U.S., at 304-05, 306-07. Rather, the Supreme Court had before it religious speech and analyzed the conviction for “breach of the peace” under the classic First Amendment speech “clear and present danger” rubric. 310 U.S. at 309-11. Indeed, to the extent Cantwell has had precedential vitality, it is primarily known as a progenitor of the “low value” speech categorical approach which has allowed for regulation of certain classes of speech on a mere rational basis showing. See, e.g., Wirenius, , First Amendment First Principles, supra note 222, at 292–93Google Scholar.

Chopko and Moses make a fair point regarding Sherbert and its progeny, but, as Marci Hamilton equally fairly points out, the Court's pre-1963 opinions, dating all the way back to Reynolds v. U.S., 98 U.S. 145 (1879), are consistent with the view taken in Smith, which she calls the “dominant doctrine,” as is the practice in the generation immediately after the enactment of the Constitution. See Hamilton, Marci, God vs. the Gavel: Religion and the Rule of Law 207–37, 254–72 (2005)CrossRefGoogle Scholar. Moreover, in Gonzales v. O Centro Espirita Beneficent Uniao Do Vegetal, 546 U.S. 418, 439 (2006), the Court, in applying the Religious Freedom Restoration Act of 1993 (which requires that federal statutes that substantially burden a person's exercise of religion serve a compelling governmental interest and be the least restrictive means of furthering that interest), nodded to the continuing validity of Smith.

228. See Wirenius, , First Amendment, First Principles, supra note 222, at 148–50Google Scholar.

229. 196 F.3d 409 (2d Cir. 1999), discussed in Chopko & Moses, Freedom To Be A Church, supra note 222, at 432-33.

230. Chopko, & Moses, , Freedom to Be a Church, supra note 222, at 433Google Scholar.

231. Chopko, & Moses, , Freedom to Be a Church, supra note 222, at 433 (source notes omitted)Google Scholar.

232. This recurring pattern is depicted in excruciating detail in, e.g., Berry, supra note 207; Betrayal, supra note 207, and is discussed in capsule form in Robertson, , The Case of The Pope, supra note 194, at 1624Google Scholar.

233. See Coleman, Jules, Doing Away With Tort Law, 41 Loy. L.A. L. Rev. 1149, 1157 (2008)Google Scholar (defining as the “three building blocks” of tort law “wrongs, responsibility and repair”).

234. Packer, Herbert, The Limit of the Criminal Sanction 3758 (Stanford Univ. Press 1968)Google Scholar; Wharton, Francis, 1 A Treatise on Criminal Law 116 (Kerr, James ed., 11th ed. 1912)Google Scholar.

235. See Hamilton, Marci A., “The Rule Against Scandal,” Paper Prepared for Constitutional Law Schmooze, 02 27-28, 2009, at 58, available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1105&context=schmooze_papers (last visited May 7, 2011)Google Scholar.

236. John Paul II, Letter of His Holiness John Paul II to the Bishops of the United States of America (quoting Mt. 18:7), available at http://www.vatican.va/holy_father/john_paul_ii/letters/1993/documents/hf_jp-ii_let_19930611_vescovi-usa_en.html (last visited Apr. 23, 2011).

237. See Kulish, Nicholas & Beinhold, Katrin, Memo to Pope Described Transfer of Pedophile Priest, N.Y. Times, 03 25, 2010, available at http://www.nytimes.com/2010/03/26/world/europe/26church.html?pagewanted=1&_r=1 (last visited Apr. 23, 2011)Google Scholar. Similarly, sexual abuse complaints about Fr. Marcial Maciel Degollado dated back to the 1970s. See Wakin, Daniel J. & McKinley, James C. Jr., Abuse Case Offers a View of the Vatican's Politics, N.Y. Times, 05 2, 2010, available at http://www.nytimes.com/2010/05/03/world/europe/03maciel.html?src=me (last visited Apr. 23, 2011)Google Scholar. John Paul II's own knowledge and inaction with regard to Maciel is summarized in brief form in Jason Berry, The Shame of John Paul II: How the Sex Abuse Scandal Stained His Papacy, The Nation May 16, 2011 (posted Apr. 27, 2011), available at http://www.thenation.com/article/160242/shame-john-paul-ii-how-sex-abuse-scandal-stained-his-papacy?page=0,1 (last visited Apr. 30, 2011).

238. On Palm Sunday, 2010, Pope Benedict, celebrating the 25th World Youth Day, pointedly stated in his address that Jesus leads Christians to “life in accordance with the truth; to courage that does not let itself be intimidated by the gossip of prevalent opinions; to patience that bears with and sustains the other.” Homily of His Holiness, Pope Benedict XVI, available at http://www.vatican.va/holyfather/benedictxvi/homilies/2010/documents/hf_ben-xvi_hom_20100328_palm-sunday_en.html (last visited Apr. 30, 2011). Rightly or wrongly, this statement was widely perceived as a jab at the then-mounting media pressure on the Pope to address concerns regarding his own handling of abuse allegations “both when he was archbishop of Munich and when he headed the Vatican's doctrinal office.” Tran, Mark, Pope Benedict Condemns ‘Petty Gossip’ Over Child Sexual Abuse Scandals, The Guardian, 03 28, 2010, available at http://www.guardian.co.uk/world/2010/mar/28/pope-condemns-critics-catholic-sexual-abuse (last visited Apr. 30, 2011)Google Scholar; see also Robertson, , The Case of the Pope, supra note 194, at 40Google Scholar.

Regardless of the Pope's intention in the Palm Sunday homily, the Vatican and the hierarchy have been quick to blame the media for covering these stories. On Good Friday, 2010, Father Raneiro Cantalamessa, preacher of the papal household, stated in his homily before the Pope that Jews, who “know from experience what it means to be victims of collective violence, and also because of this they are quick to recognize the recurring symptoms,” could understand the climate in which the Church found itself as a result of the scandal. He quoted a letter from an unnamed Jewish friend, stating that the author was “following the violent and concentric attacks against the church, the pope and all the faithful by the whole world, … The use of stereotypes, the passing from personal responsibility and guilt to a collective guilt, remind me of the more shameful aspects of anti-Semitism.’” Wakin, Daniel J. & Donadio, Rachel, Vatican Priest Likens Criticism Over Abuse to Anti-Semitism, N.Y. Times, 04 2, 2010, available at http://www.nytimes.com/2010/04/03/world/europe/03church.html (last visited Apr. 30, 2011)Google Scholar. The same article quotes Vatican officials as having described criticisms of Pope Benedict's handling of abuse allegations in Munich and as prefect of the CDF as “‘deceitful,’ an effort to undermine the church and a ‘defamatory campaign.’” Id. Also in 2010, the Dean of the College of Cardinals, Cardinal Angelo Sodano, “praised the Pope to his face for standing up to chiacciericco (‘petty gossip’).” Robertson, The Case of the Pope, supra note 194, at 40. Likewise, on Palm Sunday 2010, Archbishop of New York Timothy Dolan described the reportage in similar terms, stating that the press seemed “frenzied to implicate the man who, perhaps more than anyone else has been the leader in purification, reform, and renewal that the Church so needs,” and as marred by “inaccuracy, bias and hyperbole,” none of which he specified. Abp. Dolan described the Pope as “our earthly shepherd now suffering some of the same unjust accusations, shouts of the mob, and scourging at the pillar, as did Jesus.” Abp. Timothy Dolan, Remarks at Palm Sunday Mass, available at http://www.archny.org/news-events/news-press-releases/index.cfm?i=15982 (last visited May 1, 2011). Finally, in April 2010, Cardinal William Levada appearing on PBS's Newshour, blamed the scope of the scandal on unfair reportage “from the New York Times, fed with information by plaintiffs' attorneys.” Robertson, The Case of the Pope, supra note 194, at 24.

239. Benedict XVI, Letter of His Holiness Pope Benedict XVI to Cardinal Kurt Koch, President of the Pontifical Council for Promoting Christian Unity On the Occasion of the 12th Inter-Christian Symposium Held in Thessalonica, (Aug. 6, 2011), available at http://www.vatican.va/holy_father/benedict_xvi/letters/2011/documents/hf_ben-xvi_let_20110806_card-koch_en.html (last visited Sept. 24, 2011); see also Benedict, XVI, Ubicumque et Semper (2010)Google Scholar.

240. Id.

241. Response, supra note 211, at 18.

242. Benedict, XVI, Encyclical Letter of the Supreme Pontiff, Deus Caritas est35 (2005), available at http://www.vatican.va/holy_father/benedict_xvi/encyclicals/documents/hf_ben-xvi_enc_20051225_deus-caritas-est_en.html (last visited Sept. 24, 2011)Google Scholar. While used in the context of describing Christians providing charity, Benedict, who refers to his predecessors by the title as the “Servant of God,” and who writes with genuine passion regarding the importance of servant ministry, clearly does not assert clerical supremacy as a result of rank.

243. Id.

243. Id.

244. Pannenberg, Wolfhart, 3 Systematic Theology 373, 374–75 (Vanderhoeck & Ruprecht 1993) (Bromiley, G.W. trans., Eerdmans Pub. Co. 1998)Google Scholar.

245. Id. at 374, n.829 (citing, inter alia, Joseph Ratzinger and Cardinal Avery Dulles). The same point was made by Kung, Hans in The Church 465–95 (on the Priesthood of all believers)Google Scholar; 495-610 (holding out a service oriented definition of ecclesiastical office) (Sheed & Ward 1967). In view of Kung's later fraught relationship with the Roman Catholic Church, it should be noted that Kung's book gratefully acknowledges the “valuable help” he received from then-Professor Ratzinger. Id. at 18.

246. William of Newburgh, The History of English Affairs, Bk. II, ch. XVI, in 4 The Church Historians, Pt. II 466 (Stevenson, Joseph trans., 1861), available at (Halsall, ed.), supra note 2, available at http://www.fordham.edu/halsall/basis/williamofhewburgh-two.html#16 (last visited June 7, 2011)Google Scholar.