1911 Encyclopædia Britannica/Ecclesiastical Jurisdiction
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ECCLESIASTICAL JURISDICTION. This phrase in its primary sense imports not jurisdiction over ecclesiastics, but jurisdiction exercised by ecclesiastics over other ecclesiastics and over the laity. “Jurisdiction” is a word borrowed from the jurists which has acquired a wide extension in theology, wherein, for example, it is frequently used in contradistinction to “order,” to express the right to administer sacraments as something superadded to the power to celebrate them. So it is used to express the territorial or other limits of ecclesiastical, executive or legislative authority. Here it is used, in the limited sense defined by an American Court, as “the authority by which judicial officers take cognizance of and decide causes.”
Such authority in the minds of lay Roman lawyers who first used this word “jurisdiction” was essentially temporal in its origin and in its sphere. The Christian Church transferred the notion to the spiritual domain as part of Origin of ecclesiastical jurisdiction. the general idea of a Kingdom of God correlative, on the spiritual side of man upon earth, to the powers, also ordained of God, who had dominion over his temporal estate (see Canon Law). As the Church in the earliest ages had executive and legislative power in its own spiritual sphere, so also it had “judicial officers,” “taking cognizance of and deciding causes.” Only before its union with the State, its power in this direction, as in others, was merely over the spirits of men. Coercive temporal authority over their bodies or estates could only be given by concession from the temporal prince. Moreover, even spiritual authority over members of the Church, i.e. baptized persons, could not be exclusively claimed as of right by the Church tribunals, if the subject matter of the cause were purely temporal. On the other hand, it is clear that all the faithful were subject to these courts (when acting within their own sphere), and that, in the earliest times, no distinction was made in this respect between clergy and laity.
The fundamental principle of ecclesiastical jurisdiction with its “sanction” of excommunication will be found in Christ’s words in Matt. xviii. 15-18. A very early example of criminal spiritual jurisdiction exercised by St Paul is found in the case of the incestuous Corinthian (1 Cor. v.). We find later the same apostle exercising like jurisdiction in the cause of Hymenaeus and Alexander (1 Tim. i. 20). After the time of the Apostles, we find this criminal jurisdiction exercised by the bishops individually over their respective “subjects”—doubtless with the advice of their presbyters according to the precept of St Ignatius (c. 110). As neighbouring dioceses coalesced into “provinces” and provinces into larger districts (corresponding to the civil “dioceses” of the later Roman Empire), the provincial synods of bishops and the synods of the larger districts acquired a criminal jurisdiction, still purely spiritual, of their own. At first this was “original” and mainly (although not exclusively) over bishops (of the province or larger district). The beginnings of an appellate jurisdiction in the cases of clerics and laymen may be traced before the conversion of the Empire. The bishop over whom the synod of neighbouring bishops had exercised jurisdiction had no formal right of appeal; but sometimes bishops in other parts of the Church would refuse to acknowledge the local synodical sentence and would communicate with a bishop whom they deemed unjustly deposed. The theory, as expressed in legal phrase by St Cyprian in the 3rd century, was that the apostolic power of delegated sovereignty from the Lord, alike legislative and judicial, was held in joint-tenancy by the whole body of Catholic bishops. In both capacities, however, a certain undefined pre-eminence was conceded to the occupants of “Apostolic” sees, i.e. sees traditionally founded by Apostles, or of sees with a special secular position.
Even before the edict of Milan, at least as early as the latter half of the 3rd century, the spiritual sentences of deposition from office had sometimes indirect temporal consequences recognized by the secular courts. The classical example is the case of Paul of Samosata, bishop of Antioch. It would seem that, in the intervals of persecution, some rights of property were recognized in the Christian Church and its officers; although the Church was an illegal society. After some previous abortive trials, Paul of Samosata was deposed and excommunicated, in 269, by a great synod of the Antiochene district. Paul, notwithstanding his deposition, kept possession of the episcopal residence. The local church sought recovery of it before the tribunals of the Empire. The judicial authorities requested a rescript from the emperor Aurelian for the decision of the cause. Aurelian referred the matter to the bishop of Rome and the bishops of Italy, who gave their award in favour of the Antiochene Church.
Side by side with this which we may call criminal jurisdiction—none the less real or coercive because its sanctions were purely spiritual—there grew up a quasi-jurisdiction in causes entirely temporal, based upon the free consent of the Temporal Jurisdiction of the Church. parties to accept the arbitration of the bishop. This system had also its roots in the New Testament (see Matt, xviii. 15-17 and 1 Cor. vi. 1-8). In the matter of criminal jurisdiction we paused for a moment at the edict of Milan; but we may at once trace this second or civil branch of episcopal judicature or quasi-judicature down as far as the reign of Charlemagne, when it underwent a fundamental change, and became, if either litigant once chose, no longer a matter of consent but of right.
Constantine decreed that judgment in causes might be passed by bishops when litigants preferred their adjudication to that of the secular courts (see his epistle to the Numidian bishops and Cod. Theodos. Tit. de Episcopis). The episcopal judgment was to be equivalent to that of the emperor and irreversible, and the civil authorities were to see to its execution. Saints Ambrose and Augustine both spent days in deciding temporal causes. Honorius, in the West, at the end of the 4th century, made a constitution providing that if any desired to litigate before the bishops they should not be forbidden, but that in civil matters the prelates should render judgment in the manner of arbitrators by consent (Cod. 1, Tit. iv.). Where the faithful had had recourse to the bishop, no appeal was to be allowed, and the judges were to command execution of the episcopal decree. A quarter of a century later, however, Valentinian III. in the West expressly provided that bishops were not to be permitted to be judges (that is, of course, in temporal causes), save by the consent of the parties. This legislation was, substantially, adopted by Justinian.
On the revival of the Western Empire, however, Charlemagne, in the beginning of the 9th century, under the mistaken belief that he was following the authority of Constantine I. and Theodosius I., took a great step forward, by which the bishop ceased to be a mere legally indicated arbitrator by consent in secular causes, and became a real judge. By a capitulary he provided that either litigant, without the consent of the other party, and not only at the beginning of a suit but at any time during its continuance, might take the cause from lay cognizance and transfer it to the bishop’s tribunal. He re-enacted the prohibition of appeal.
It should be remembered that, from the latter part of the 3rd century, the leading bishops had generally been trained in secular learning. St Cyprian, St Ambrose and St Augustine, St Paulinus of Nola and St John Chrysostom had practised law as teachers or advocates. St Ambrose and St Paulinus had even held high administrative and judicial offices.
To return to the evolution of ecclesiastical jurisdiction from the time of Constantine. With the “Nicene period” came a great development on the criminal side. A system begins to be formed, and the secular arm supports Roman empire from Constantine. the decrees of the Church. The first trace of system is in the limited right of appeal given by the first oecumenical council of Nicaea and its provision that episcopal sentences or those of provincial synods on appeal were to be recognized throughout the world. The fifth canon provides that those, whether clerics or laymen, who are cut off from communion in any particular province are not to be admitted thereto elsewhere. Still examination must be had whether persons have been expelled from the congregation by any episcopal small-mindedness (μικροψυχία), or contentious spirit, or such-like harshness (ἀηδία). That this may be conveniently inquired into, synods are to be held, three in every year, in each province, and questions of this kind examined. There is to be no “stay of execution”; the episcopal sentence is to prevail until the provincial synod otherwise decide. It will be noticed that as yet no provision is made for appeals by bishops from provincial synods sitting in first instance.
The edicts of Milan had only admitted the Christian Church among the number of lawful religions; but the tendency (except in the time of Julian) was towards making it the only lawful religion. Hence the practice, immediately after Nicaea I., of superadding banishment by the emperor to synodical condemnation. The dogmatic decrees of Nicaea I. were at once enforced in this temporal manner. On the other hand, the Arian reaction at court worked its objects (see Pusey, Councils of the Church) by using the criminal spiritual jurisdiction of synods against the Catholics—often packing the synods for the purpose. The acts of councils of this age are full of the trials of bishops not only for heresy but for immorality and common law crimes. The accusations are frequently unfounded; but the trials are already conducted in a certain regular forensic form. The secular authorities follow the precedent of Nicaea I. and intervene to supplement the spiritual sentence by administrative penalties. Sometimes an imperial officer of high rank (as, e.g. a “count”) is present at the synod, as an assessor to maintain order and advise upon points of procedure. Leading examples may be found in the various prosecutions of St Athanasius, in whose case also there is the germ of an appeal, tanquam ab abusu. It has been contended that, according to later and more formulated jurisprudence, such an appeal would have lain, since the trial at Tyre was not concerned with purely spiritual matters (see the case in Hefele, Councils, in loc.).
The trial of St Athanasius led to extensions of the right of appeal. This was favoured by the development of the greater sees into positions of great administrative dignity, shortly to be called “patriarchal.” A synod was held at Rome, attended by bishops from various regions, which reversed the original judgment of the synod of Tyre which had condemned Athanasius. A much larger synod at Antioch, gathered only from the East, on the other hand, confirmed that judgment. This last synod did something to systematize the criminal procedure of the Church, and its legislation has been always received.
This legislation marks another step forward. Deposition of a bishop by a synod, or of a priest or deacon by his bishop, is to take effect even pending an appeal, and a cleric continuing his functions after sentence in first instance is to lose all right of appeal. The appeal given by Nicaea I. to clerics and laymen from episcopal excommunications is extended. The synod may restore them if convinced of the justice of their cause (and not merely in cases of ἀηδία). A bishop may appeal to a great assembly of bishops. Any bishop, priest or deacon “importuning” the emperor, instead of exerting his right of appeal to synods, is to lose all right of appeal and never to be restored or pardoned. If a provincial synod be divided as to the guilt of a bishop, the metropolitan is to convene bishops from the neighbouring provinces to decide the cause jointly with the bishops of the original province.
A few years later, in 347, the council of Sardica, a council of practically the whole West save Africa, reversed Tyre and acquitted St Athanasius after a full judicial inquiry. This council endeavoured to set up a system of appeals in the case of bishops, in which the see of Rome was made to play a great part. “Out of honour to the memory of St Peter,” a condemned bishop may ask the intervention of Rome. If this be done, the synod of first instance is to send letters to Julius, bishop of Rome. If that prelate think the cause should be heard again, he is to appoint judges; if otherwise, the original judgment is to be confirmed. Pending appeal, the appellant’s see is not to be filled up. The judges appointed by the bishop of Rome to hear the appeal are to be from the neighbouring provinces. The appellant may, however, request that bishop to send priests from his side to sit with the synod of appeal. If such priests are sent, they are to preside in the court of appeal. These canons were always repudiated in the East, and when, sixty years afterwards, they were, for the first time, heard of in Africa, they were repudiated there also.
A rescript of Gratian in 378 empowered the bishop of Rome to judge bishops with the assistance of six or seven other bishops or, in the case of a metropolitan, of fifteen comprovincial bishops. A bishop refusing to come to Rome was to be brought there by the civil power. The rescript, however, was not incorporated in the Codes and perhaps was only a temporary measure.
The tendency to give pre-eminence to Rome appears again in an imperial letter to St Flavian, who, in the judgment of the East, was bishop of Antioch, but who was rejected by the West and Egypt, summoning him to Rome to be there judged by the bishops of the imperial city—a summons which St Flavian did not obey (Tillemont, Mém. Ecc.). In Africa in the beginning of the 5th century Apiarius, a priest who had been deposed by the bishop of Sicca for immorality, and whose deposition had been affirmed by the “provincial synod,” instead of further appealing to a general synod of Africa, carried his appeal to Pope Zosimus. The pope received the appeal, absolved him and restored him to the rank of priest, and sent a bishop and two priests as legates to Africa with instructions to them to hear the cause of Apiarius anew and for execution of their sentence to crave the prefect’s aid; moreover, they were to summon the bishop of Sicca to Rome and to excommunicate him, unless he should amend those things which the legates deemed wrong. The upshot of a long conflict was that the papal claim to entertain appeals from Africa by priests and deacons was rejected by the African bishops, who in their final synodical epistle also repudiate in terms any right of appeal by African bishops to “parts beyond the seas” (see Hefele, Councils, bk. viii.).
The story of the administrative development of the Church in the 5th century is mainly the story of the final emergence and constitution of the great “patriarchates,” as authorities superior to metropolitans and provincial synods. In consequence of the occupants of the thrones of Constantinople and Alexandria falling successively into opposite heresies, the question arose how “patriarchs” were to be judged. In both cases, as it seems, an attempt was made by the bishop of Rome to depose the erring patriarch by his authority as primate of Christendom, acting in concert with a Western synod. In both cases, apparently, an oecumenical synod ignored the Roman deposition and judged the alleged offences of the respective patriarchs in first and last instance. The third and fourth oecumenical synods (Ephesus, 431; Chalcedon, 451) were primarily tribunals for the trials of Nestorius and Dioscorus; it was secondarily that they became organs of the universal episcopate for the definition of the faith, or legislative assemblies for the enactment of canons. Nothing is more remarkable than their minute care as to observance of rules of procedure. In both cases, imperial assessors were appointed. At Ephesus the Count Candidian was commissioned to maintain order, but took little part in the proceedings. At Chalcedon, on the other hand, the imperial commissioners decided points of order, kept the synod to the question, took the votes and adjourned the court. But the synod alone judged and pronounced sentence. No oecumenical synod has tried a patriarch of Old Rome while yet in the flesh. The fifth oecumenical council came nearest to so doing, in the case of Vigilius. That pope, although in Constantinople, refused to attend the sittings of the council. He was cited three times, in the canonical manner, and upon not appearing was threatened in the third session with anathema (Hefele, Councils, sect. 268 ad fin.). He was not, however, charged with direct heresy, as were Nestorius and Dioscorus, and the synod seems to have hesitated to deal stringently with the primate of Christendom. In the seventh session it accepted the suggestion of Justinian, merely to order the name of Vigilius to be removed from the liturgical prayers, at the same time expressing its desire to maintain unity with the see of Old Rome (Hefele, sect. 273). After the council, Justinian banished the pope to Egypt, and afterwards to an island, until he accepted the council, which he ultimately did (ib. 276). The sixth oecumenical synod decreed that the dead pope Honorius should be “cast out from the holy Catholic Church of God” and anathematized, a sentence approved by the reigning pope Leo II. and affirmed by the seventh oecumenical synod in 787.
The constitution of the patriarchal system resulted in the recognition of a certain right of appeal to Rome from the larger part of the West. Britain remained outside that jurisdiction, the Celtic churches of the British islands, after those islands were abandoned by the Empire, pursuing a course of their own. In the East, Constantinople, from its principality, acquired special administrative pre-eminence, naturally followed, as in the case of “old Rome,” by judicial pre-eminence. An example of this is found in the ninth canon of Chalcedon, which also illustrates the enforcement upon a clerical plaintiff in dispute with a brother cleric of that recourse to the arbitration of their ecclesiastical superior already mentioned. The canon provides that any clerk having a complaint against another clerk must not pass by his own bishop and turn to secular tribunals, but first lay bare his cause before him, so that by the sentence of the bishop himself the dispute may be settled by arbitrators acceptable to both parties. Any one acting against these provisions shall be subject to canonical penalties. If any clerk have a complaint against his own bishop, he shall have his cause adjudicated upon by the synod of the province. But if a bishop or clerk have a difference with the metropolitan of his province let him bring it before the exarch of the “diocese” (i.e. the larger district answering to the civil “diocese”), or before the royal see of Constantinople, who shall do justice upon it. An “exarch” means properly a superior metropolitan having several provinces under him. In the next century Justinian (Nov. 123, c. 22) put the other patriarchates on the same footing as Constantinople. In c. 21 he gives either plaintiff or defendant an appeal within ten days to the secular judge of the locality from the bishop’s judgment. If there be no appeal, that judge is to give execution to the episcopal award. The growth of a special “original” jurisdiction at Constantinople, which perhaps developed earlier than the corresponding institution at Rome, may be traced to the fact that bishops from all parts were constantly in Constantinople. The bishop of Constantinople, even before he became properly “patriarch,” would often assemble a synod from these visiting bishops, which acquired the technical name of σύνοδος ἐνδημοῦσα, the synod of sojourners. This synod frequently decided questions belonging to other patriarchates.
The criminal jurisdiction thus exercised was generally speaking unlimited. It must be remembered that the forum externum of the ecclesiastical jurisdiction, in the sense in which we now use the phrase, of a judge deciding causes, was not then clearly marked off from the forum internum, or what afterwards came to be called the “tribunal of penance” (see Van Espen, Jus ecc. univ. pars iii. tit. iv. c. 1). Ecclesiastical proceedings by way of prosecution are called “criminal,” but they are primarily pro salute animae; whereas temporal criminal proceedings are primarily for the protection of the state and its citizens. Hence a Christian might be first punished in the civil courts and then put to public penance by the ecclesiastical jurisdiction, or vice versa: an apparently double system of punishment which the medieval Church, when the forum externum had become quite separated from the forum internum, sometimes repudiated (see Maitland, English Canon Law, 138, 139, 144).
Theodosius began the system of giving secular authority to Church tribunals. Thus, in 376, L. 23 Cod. Theodos. de. Episcopis, &c., subjected clerics for small offences pertaining to the observances of religion to bishops and synods. In 399, L. 1 Cod. de Religione provides that, when it is a matter of religion, it beseems the bishop to judge. A rescript of Constantius, in 355, inserted in Cod. Theod. lxii. de Epis. Ecc. et Cler., excluded bishops from accusations before secular judges and commanded such accusations to be speedily brought before the tribunal of other bishops. This law was probably only intended to be of a temporary character. Then comes the law of Gratian already noticed. Then, in 399, a law of Honorius (Cod. Theod. L. 1 de Religione): “As often as it concerns religion, it is meet that the bishops should judge, but other causes which belong to ordinary jurisdiction or to public law are to be heard in the ordinary courts (legibus oportet audiri).” L. 3 de Epis. Jud., at the end of the Theodosian Code, seems spurious (see the comment of Gothofredus in loco). But a constitution of Honorius in 412 (Cod. Theod. L. xli. de Epis. Ecc. et Cler.) provides that clerks are not to be accused except before the bishop. Bishops, priests, deacons, and every other “minister of the Christian law” of inferior degree, are taken from secular jurisdiction in criminal cases. The words are quite general; but it has been contended that they apply only to crimes of an ecclesiastical character (see Gothofredus in loc.; Van Espen, pars iii. tit. iii. c. 1, 10). In 425 a constitution of Theodosius II. provides that a recent decree of the usurper John should be disregarded and that clerks whom he had brought before secular judges should be reserved for the episcopal jurisdictions, “since it is not lawful to subject the ministers of the divine office to the arbitrament of temporal powers.” Justinian has a clearer perception of the demarcation between the spheres of spiritual and temporal law. The 83rd Novell provides that if the offence be ecclesiastical, needing ecclesiastical correction, the bishop shall take cognizance of it. The 123rd Novell (c. 21) provides that if a clerk be accused of a secular crime he shall be accused before his bishop, who may depose him from his office and order, and then the competent judge may take him and deal with him according to the laws. If the prosecutor have first brought him before the civil judge, the evidence is to be sent to the bishop, and the latter, if he thinks the crime has been committed, may deprive him of his office and order, and the judge shall apply to him the proper legal punishment. But if the bishop think the evidence insufficient, the affair shall be referred to the emperor, by way of appeal both from bishop and judge. If the cause be ecclesiastical, the civil judges are to take no part in the inquiry. The law includes with clerics, monks, deaconesses, nuns, ascetics; and the word “clerics” covered persons in minor orders, down to doorkeepers. It will be noticed that Justinian supposes that the prosecutor may begin the proceedings before the civil judge. A constitution of Alexius Comnenus I. seems to send him to the special forum of the accused.
Certain enactments of later Saxon times in England have been sometimes spoken of as though they united together the temporal and spiritual jurisdictions into one mixed tribunal deriving its authority from the State. In the latter Anglo-Saxon courts. part of the 10th century, laws of Edgar provided that the bishop should be at the county court and also the alderman, and that there each of them should put in use both God’s laws and the world’s law (Johnson’s English Canons, i. 411). This probably was, as Johnson suggests, that the bishop might enforce secular laws by ecclesiastical censure and the alderman ecclesiastical laws with secular punishment. But the two jurisdictions were kept separate; for by another law of Edgar (Leges Edg. c. v.) it was provided that “in the most august assembly the bishop and alderman should be present, and the one should interpret to the people the law of God, the other the laws of men.” Edgar, in a speech to St Dunstan and the bishops in synod (in 969), said, “I hold in my hands the sword of Constantine, you that of Peter. Let us join right hands and unite sword to sword” (Hardouin, Conc. tom. vi. p. 1, col. 675). The juxtaposition of the judicatures may, however, have led to some confusion between them.
As to appeals the mixed council of Cliff at Hoo (747) said they should go to the synod of the province. The only appeal to Rome in Saxon times was that of St Wilfrid, bishop of York, who appealed from the division of his see and his deposition for refusing to consent to it, and was heard in a Roman synod under the presidency of Pope Agatho. The synod found him unlawfully deposed and ordered his restoration. Upon his return to England, the Roman judgment was refused recognition and he was for a time imprisoned. Ten years later he was recalled to York, but refusing to consent to the division of his see was again deposed and again appealed to Rome. The appeal was heard at great length, in a synod of 703 under John VI., deputies from the archbishop of Canterbury being present. St Wilfrid was justified and was sent back to his see, with papal letters to the kings of Northumbria and Mercia. The Roman decree was again disregarded. At the council of “Nid” he was reconciled to the other bishops of the province, but not restored. In the end he was brought back to York, but not to the undivided see. The details of the case will be found in Wilkins, Concilia, in Mansi, Concilia, under the various councils named, and in Haddan & Stubbs, Councils and Eccl. Documents, vol. iii.
The penalties which the spiritual court could inflict, in the period between the edict of Milan and c. 854, were properly excommunication whether generally or as exclusion from the sacraments for a term of months or years or Penalties inflicted by ecclesiastical courts. till the day of death and (in the case of clerics) suspension or deposition. Gradually, however, doubtless by way of commutation of excommunication and of penance, temporal penalties were added, as scourging, banishment, seclusion in a monastery, fines. It is difficult to say how far some of these temporal penalties were penitential only or how far they could be inflicted in invitos. But the secular arm, from the time of Nicaea I., was in the habit of aiding spiritual decrees, as by banishing deposed bishops, and gradually by other ways, even with laymen. Scourging (although it had been a well-known punishment of the synagogue) was at first forbidden. Can. 28 (26) of the Apostolic Canons imposes deposition on any bishop, priest or deacon striking the delinquent faithful. In Africa, however, a contrary practice early sprang up (see St Augustine, Epist. clix. ad Marcellum al. cxxxiii.). The small council of Vannes in Brittany in 465 made it an alternative punishment for clerks convicted of drunkenness (Can. 13). Canon 13 of the first council of Orleans, which has been cited in this matter, seems to have no application. St Gregory the Great seems to assume that scourging and seclusion in a monastery are in the discretion of episcopal tribunals (see Epistles, lib. ii. ep. 11, 40, 42, 44, 45; lib. vii. ep. 11, 67; lib. xii. ep. 31, c. 4). The 16th council of Toledo (in 693) has been cited as if it visited certain very great sinners with scourging as an ecclesiastical punishment. In fact, it only approves the punishment as ordered by the Visigothic laws. An alleged decree of a council of Autun in 670 is part of a code of discipline for monasteries (see authorities cited by Hefele, Councils, sect. 290, towards the end). Banishment does not seem to have been inflicted by the spiritual court in invitum. Seclusion in a monastery seems first to have been used by the civil power in aid of the spiritual. The fifth canon of the council of Macon, in 584, forbids clergy to dress like laymen and imposes a penalty of thirty days’ imprisonment on bread and water; but this may be merely penitential. There is little evidence of the imposition of fines as ecclesiastical penalties; but there are references to the practice in the epistles of St Gregory the Great, notably in his instructions to St Augustine. Gregory III. copies from St Gregory I. Probably these also were by way of penance. Isolated examples in the early middle ages of metropolitans dealing with their suffragan bishops by imprisonment in chains were extra-canonical abuses, connected with the perversion of Church law which treated the metropolitan (who originally was merely convener of the provincial synod and its representative during the intervals of sessions) as the feudal “lord” of his comprovincials.
With the later 9th century we enter upon a new epoch, and by the time of Gregory VII., in the 11th century, the tribunals have fallen into the hands of a regular class of canonists who are in fact professional church-lawyers in orders. The changes due to the adoption of the False Decretals by Nicholas I. and the application of their principles by Hildebrand (afterwards Gregory VII.) are discussed in the article Canon Law. The later medieval system, thus inaugurated, may be considered (1) in its hierarchy, (2) in the subject matter of its jurisdiction, (3) in its penalties.
1. (a) It is a system of courts. Much that had been done by bishops, sine strepitu forensi et figura judicii, is now done in the course of regular judicial procedure. Again, the court takes the place of the synod. The diocesan synod Later medieval system. ceases to have judicial work. The court of the metropolitan takes the place of the provincial synod, except possibly for the trial of bishops, and even this becomes doubtful.
(b) At first the bishop was the only judge in the diocesan court and he always remains a judge. But just as the king appoints judges to hear placita coram rege ipso, and the feudal lord appoints his seneschal or steward, so the bishop appoints his official.
(c) The archdeacon acquires a concurrent ordinary jurisdiction with the bishop (see Archdeacon). For some time it was considered that he was a mere office-holder dependent on the will of the bishop with a jurisdiction merely “vicarial”; but by the 13th century it was settled that he held a “benefice” and that his jurisdiction over causes was ordinary and independent of the bishop (Van Espen, pars i. tit. xii. c. 1; Fournier, Les Officialités au moyen âge, p. 134). It was partly in order to counterpoise the power of archdeacons that bishops created officials (Fournier, p. 8). Archdeacons in course of time created officials who presided in court in their stead. The extent of jurisdiction of archdeacons depended much upon local customs. In England the custom was generally in their favour. Ordinarily, the appeal from an archdeacon or his official lay to the court of the bishop; but by custom the appeal might be to the court of the metropolitan: The Constitutions of Clarendon, in 1164, made the appeal from the court of the archdeacon lie to the court of the bishop.
(d) The official of the bishop might be his official principal, who was his alter ego, or a special officer for a particular locality (officialis foraneus). The latter was treated as a mere delegate, from whom an appeal could be made to the bishop. The former had one consistory with the bishop, so that appeals from him had to be made to the court of the metropolitan. How far the official principal had jurisdiction in criminal matters by virtue of his office, how far it was usual to add this jurisdiction by special commission, and what were the respective limits of his office and that of the vicar-general, are questions of some nicety. The emphasis in Italy was on the vicar-general (Sext. de officio Vicarii). In the Low Countries, France and England the jurisdiction of the official principal was wider (Van Espen, pars i. tit. xii. cc. 4, 5; Fournier, p. 21). But he could not try criminal matters unless specially committed to him (Lyndwood, Provinciale, lib. ii. tit. 1). Later in England it became usual to appoint one man to the two offices and to call him chancellor, a word perhaps borrowed from cathedral chapters, and not in use for a diocesan officer till the time of Henry VIII. or later (see Chancellor). In Ireland the title, till the church was disestablished, was vicar-general.
The importance of distinguishing the normal functions of an official principal and a vicar-general lies in this: that it was gradually established that as a king should not hear causes but commit them to his judges, so a bishop should not hear causes but appoint an official to hear them (see Ridley, View of the Civil and Eccl. Law; Ayliffe, Parergon juris ecclesiastici, p. 161; Godolphin, Abridgement of the Laws Ecclesiastical, p. 8). The “parlements” of France were constantly insisting on the independence and irremovability of the official (Fournier, p. 219). But jurisdiction which was not necessarily incident to the office of the official principal, that is to say voluntary jurisdiction, such as the granting of licences and institution to benefices, and criminal jurisdiction over clerks (and probably over laymen), the bishop could reserve to himself. Reservations of this nature are made in many English patents of chancellors and were held good in R. v. Tristram, 1902, 1 K.B. 816.
(e) The ecclesiastical and temporal courts are kept distinct. The charter of William the Conqueror abrogated the laws of Edgar. No bishop or archdeacon “shall any longer hold pleas in the Hundred concerning episcopal law nor draw a cause which concerns the rule of such to the judgment of men of the world” (Stubbs, Select Charters, part iii.). In France, where the bishop was a temporal baron, his feudal and his spiritual courts were kept by distinct officers (Fournier, p. 2).
(f) From the bishop, or his official, appeal lay to the metropolitan, who again could hear causes by his official. The Constitutions of Clarendon recognize this appeal (c. viii.).
(g) An appeal lay from the court of the metropolitan to that of the primate. There were many disputes as to the existence of these primates (see Maitland, Canon Law in the Church of England, p. 121). In England the dispute between Canterbury and York was settled by making them both primates, giving Canterbury the further honour of being primate of all England. In France the primatial sees and the course of appeals to them were well established (Fournier, p. 219).
(h) Several attempts were made by metropolitans and their officials to take causes arising in the dioceses of their comprovincials in the first instance and not by way of appeal. The officials of primates in their turn made similar attempts. After long struggles this was hindered, in France by the bull Romana (Fournier, p. 218), in England by the Bill of Citations, 23 Henry VIII. c. 9, and Canon 94 of the Canons of 1603. The preamble of the “Bill of Citations” is eloquent as to the mischief which it is framed to prevent. There are, however, a few cases in which the metropolitan is still allowed to cite in the first instance. One of them was in cases of “perplexity.” “Perplexity” arose where the suffragans “could not owing to the geographical limitations of their competence do full justice” (Maitland, pp. 118-119). Such was the case of probate where notable goods of the deceased lay in more than one diocese. Hence the origin of the “prerogative court” of Canterbury (cf. Van Espen, pars i. tit. xix.; and for Spain, Covarruvias, Pract. Quaest. c. 9).
(i) Gradually there grew up a mass of peculiar and exempt jurisdictions (Ayliffe, pp. 417, 418; Phillimore, Eccl. Law, pp. 214, 927; de Maillane, Dict. du droit canonique, s.v. “Exemptions”). Exempt jurisdictions began with the monasteries and were matter of vehement discussion in the later middle ages. There were no true exemptions before the 11th century (Van Espen, pars iii. tit. xii.). Peculiar or special jurisdiction, equal to that of the bishop, was given to deans and chapters over the cathedral precincts and in places where they had corporate property (see Parham v. Templer, 3 Phil. Ecc. R. 22). Sometimes it was given to deans alone or to prebendaries in the parishes whence they derived their prebends. Where the archdeacon had a jurisdiction co-ordinate with the bishop, it was called a peculiar. The metropolitans had peculiars within the dioceses of their comprovincials wherever they had residences or manors, and some whose origin is uncertain, e.g. that of the fifteen parishes in the deanery of the Arches. The official administering justice for the metropolitan was usually called a dean. From a peculiar jurisdiction ranking as episcopal the appeal lay to the court of the metropolitan. As to metropolitan peculiars, the metropolitan might give an appeal from the dean to his regular official principal. Thus, in Canterbury there was an appeal from the dean of Arches to the official principal of the Arches court. When peculiars were abolished (vide infra) the dean of Arches disappeared, and his title, in the 19th century, was erroneously given to the official principal. On peculiars in Spain cf. Covarruvias, Works, tit. i. p. 410. The French parlements, after the middle ages, discouraged them. In exempt convents the head of the monastery or priory exercised jurisdiction subject to an appeal to the pope.
(j) It is said that originally a metropolitan had only one official principal, who, like the metropolitan himself, acted both for the diocese and province. Fournier (p. 219) says that in France it was not till the 17th century that there grew up a custom of having different officials for the metropolitan, one for him as bishop, a second as metropolitan, and even a third as primate, with an appeal from one to the other, and that it was an abuse due to the parlements which strove to make the official independent of the bishop. In England there has been, for a long time, a separate diocesan court of Canterbury held before the “commissary.” The word is significant as showing that there was something special and restricted about the position. In York there are two courts, one called the consistory for the diocese, the other called the chancery for the province. But the same person was often official of both courts.
(k) In England the Constitutions of Clarendon added a provision for appeal to the king, “and if the archbishop shall have failed in doing justice recourse is to be had in the last resort (postremo) to our lord the king, that by his writ the controversy may be ended in the court of the archbishop; because there must be no further process without the assent of our lord the king.” The last words were an attempt to limit further appeal to Rome. It will be observed that the king does not hear the cause or adjudicate upon it. He merely corrects slackness or lack of doing justice (Si archiepiscopus defecerit in justitia exhibenda) and by his writ (precepto) directs the controversy to be determined in the metropolitan’s court. As bishop Stubbs says (Report of Eccl. Comm. vol. i. Hist. App. i.): “The appeal to the king is merely a provision for a rehearing before the archbishop, such failure to do justice being not so much applicable to an unfair decision as to the delays or refusal to proceed common at that time” (cf. Joyce, The Sword and the Keys, 2nd ed. pp. 19-20). The recursus ad principem, in some form or other of appeal or application to the sovereign or his lay judges, was at the end of the middle ages well known over western Europe. This recourse in England sometimes took the form of the appeal to the king given by the Constitutions of Clarendon, just mentioned, and later by the acts of Henry VIII.; sometimes that of suing for writs of prohibition or mandamus, which were granted by the king’s judges, either to restrain excess of jurisdiction, or to compel the spiritual judge to exercise jurisdiction in cases where it seemed to the temporal court that he was failing in his duty. The appellatio tanquam ab abusu (appel comme d’abus) in France was an application of a like nature. Such an appeal lay even in cases where there was a refusal to exercise voluntary jurisdiction (de Maillane, Dictionnaire du droit canonique, tit. “Abus,” cf. tit. “Appel”). This writer traces their origin to the 14th century; but the procedure does not seem to have become regularized or common till the reigns of Louis XII. or Francis I. (cf. Dict. eccl., Paris, 1765, titt. “Abus” and “Appel comme d’abus”). On the recursus ad principem and the practice of “cassation” in Belgium, Germany and Spain, cf. Van Espen’s treatise under this title (Works, vol. iv.) and Jus eccles. univ. pars iii. tit. x. c. 4. Louis XIV. forbad the parlements to give judgment themselves in causes upon an appel comme d’abus. They had to declare the proceedings null and abusive and command the court Christian to render right judgment (Edict of 1695, arts. 34, 36, cited in Gaudry, Traité de la législation des cultes, Paris, 1854, tom. i. pp. 368, 369).
In Catalonia “Pragmatics,” letters from the prince, issued to restrain jurisdiction assumed by ecclesiastical judges contrary to the customs of the principality. Thus in 1368 Peter III. evoked to the royal court a prosecution for abduction pending before the archbishop of Tarragona, declaring that the archbishop and the official were incompetent to judge noblemen. See this and other instances collected in Usages y demas derechos de Cataluña, by Vives y Cebriá (Barcelona, 1835), tom. iv. p. 137 et seq.
(l) Lastly there was the appeal to the patriarchs, i.e. in the West to Rome. The distinguishing feature of this appeal was that the rule of the other appeals did not apply to it. In the regular course of those appeals an appellant could not leap the intermediate stages; but he could at any stage go to this final appeal, omisso medio, as it was technically called (see de appell. c. Dilect. iii. for general rule, and c. 3 de appell. in 6 for different rule in case of the pope, and authorities cited in Van Espen, pars iii, tit. x. c. 2, 5). Van Espen says: “The whole right of appeal to the Roman pontiff omisso medio had undoubtedly its origin in this principle, that the Roman pontiff is ordinary of ordinaries, or, in other words, has immediate episcopal authority in all particular churches, and this principle had its own beginning from the False Decretals.”
Appeals to Rome lay from interlocutory as well as final judgments. Causes could even be evoked to Rome before any judgment and there heard in first instance (Van Espen, pars iii. tit. x. c. 1, 8).
There was an alleged original jurisdiction of the pope, which he exercised sometimes by permanent legates, whom Gregory VII. and his successors established in the chief countries of Europe, and to whom were committed the legislative executive and judicial powers of the spiritual “prince” in the districts assigned to them. These Clement IV. likened to “pro-consuls” and declared to have “ordinary” jurisdiction; because they had jurisdiction over every kind of cause, without any special delegation, in a certain defined area or province (c. ii. de Officio Legati in 6). They were expressed to have not merely appellate but original jurisdiction over causes (iii. c. i. de Officio Legati). The occupants of certain sees by a kind of prescription became legates without special appointment, legati nati, as in the case of Canterbury. In the 13th century Archbishop Peckham, says Maitland (p. 117), as archbishop “asserted for himself and his official (1) a general right to entertain in the first instance complaints made against his suffragans’ subjects, and (2) a general right to hear appeals omisso medio.” It was, for the time, determined that the archbishop might himself, in virtue of his legatine authority, entertain complaints from other dioceses in first instance, but that this legatine jurisdiction was not included in the ordinary jurisdiction of his official principal, even if the archbishop had so willed it in his commission. In fact, however, the official did before the end of the later medieval period get the same power as the archbishop (Maitland, pp. 118-120; cf. Lyndwood, lib. v. tit. 1), till it was taken from him by the Bill of Citations.
After legates came special delegates appointed by the pope to hear a particular cause. It was the general practice to appoint two or three to sit together (Van Espen, pars iii. tit. v. c. 2, 37). These might sub-delegate the whole cause or any part of it as they pleased, ibid. 9-18. Dr Maitland (essay on “The Universal Ordinary”) thinks, but without very much foundation, that great numbers especially of the more important causes were tried before these delegates; although the records have largely perished, since they were the records of courts which were dissolved as soon as their single cause had been decided. These courts were convenient, since it was the custom to appoint delegates resident in the neighbourhood, and the power of sub-delegation, general or limited, simplified questions of distance. In Belgium causes appealed to Rome had to be committed to local delegates (Van Espen, pars iii. tit. v. c. 3, tit. x. c. 2).
There could be an appeal from these delegates to the pope and from the pope himself to the pope “better informed” (Van Espen, pars iii. tit. x. c. 2, 12, 13). So personal had the system of jurisdiction become that even the trials of bishops ceased to be necessarily conciliar. Generally they were reserved to the pope (Van Espen, pars iii. tit. iii. c. 5, 17-19); but in England the archbishop, either in synod, or with some of his comprovincial bishops concurring, tried and deposed bishops (see case of Bishop Peacock and the other cases cited in Read v. Bishop of Lincoln, 14 P.D. 148, and Phillimore, Eccl. Law, pp. 66 et seq.).
(m) The jurisdiction of a bishop sede vacante passed, by general law, to the dean and chapter; but in England the metropolitans became “guardians” of the spiritualities and exercised original jurisdiction through the vacant diocese (Phillimore, pp. 62-63), except in the case of Durham, and with a peculiar arrangement as to Lincoln.
If the metropolitan see were vacant the jurisdiction was exercised by the dean and chapter through an official (Rothery, Return of Cases before Delegates, Nos. 4, 5). As to France see Fournier, p. 294.
(n) Officials, even of bishops and metropolitans, need not be in holy orders, though Bishop Stubbs in his paper in the Report of the Commission on Ecclesiastical Courts seems to say so. They had to be clerics, that is, to have received the tonsure. Even papal delegates might be simple clerks (Van Espen, pars iii. tit. v. c. 2, 20).
It came, however, to be the practice to impose some restrictions, as on clerks twice married. Thus Archbishop Chichele provided that no clerk married or bigamous (that is, having had two wives in succession) should exercise spiritual jurisdiction (see Lyndwood, lib. iii. tit. 3). Abroad unsuccessful attempts were made by local councils to enact that officials and vicars-general should be in holy orders (Hefele on Councils of Tortosa in 1429 and Sixth of Milan in 1582). These councils, as will be seen, are late.
(o) With or without the concurrence and goodwill of the national Church, restrictions were imposed by the State on the papal jurisdiction, whether original or appellate. In England the Constitutions of Clarendon (by chap. viii.) prohibited appeals to the pope; but after the murder of St Thomas of Canterbury Henry II. had to promise not to enforce them. The statutes 38 Edw. III. st. 2, 13 Rich. II. st. 2, c. 2, and 16 Rich. II. c. 5 forbid such appeals; but it is suggested that notwithstanding the generality of their language they refer only to cases of temporal cognizance. Cases upon the execution of these statutes are collected in Stillingfleet, On Ecclesiastical Jurisdiction, p. 189; Gibson, Codex, 83. Obstacles were placed in the way of appeals to the pope omisso medio. Thus when a writ of significavit issued on the mandate of a bishop, an appeal to Rome availed not to stay execution; but if there were an appeal to the archbishop it was otherwise. It therefore became the custom to lodge a double appeal: one to the archbishop “for defence,” and the other to the pope as the real appeal (“Hostiensis,” Super Decret. ii. fol. 169; cf. Owen, Institutes of Canon Law, 1884, pt. i. c. 19, 5).
There seems to have been no machinery for assisting the original or appellate jurisdiction of the pope by secular process,—by significavit or otherwise.
The matrimonial cause between Henry VIII. and Catharine of Aragon was the most famous English cause tried by delegates under the “original” jurisdiction of the pope, and was ultimately “evoked” to Rome. The foreseen adverse termination of this long-drawn cause led to Henry’s legislation.
When the temporal courts interfered to prevent excess of jurisdiction, they did so by prohibiting the ecclesiastical court from trying and the suitor from suing in that court. The pope could not be effectively prohibited, and no instance is recorded of a prohibition to papal delegates. But suitors have been prohibited from appealing to the pope (see per Willes, J., in Mayor of London v. Cox, L.R. 2 H.L. 280). Whatever may have been the law, it is certain that, notwithstanding the statutes of Edw. III. and Rich. II., appeals to Rome and original trials by papal delegates did go on, perhaps with the king’s licence; for the statute 24 Hen. VIII. c. 12 recites that the hearing of appeals was an usurpation by the pope and a grievous abuse, and proceeds to take away the appeal in matrimonial, testamentary and tithe causes, and to hinder by forbidding citation and process from Rome, all original hearings also. The statute 25 Hen. VIII. c. 19 follows this up by taking away appeals in all other subjects of ecclesiastical jurisdiction.
In 1438 the council of Basel took away all papal original jurisdiction (save in certain reserved cases—of which infra), evocation of causes to Rome, appeals to Rome omisso medio, and appeals to Rome altogether in many causes. Such appeals when permissible, except the “greater,” were to be tried by delegates on the spot (31st Session; Mansi, Concilia, in loco). These proceedings at Basel were regarded at Rome as of no effect. Nevertheless this decree and others were adopted by a French national council at Bourges and promulgated by the king as a “Pragmatic Sanction” (Migne, Dict. du droit canonique, “Pragmatique Sanction”). The parlements registered the Sanction and the effect was permanent in France. Louis XI. and Charles VIII. sought to revoke it; but both parlements and states-general refused to recognize the revoking decrees. In 1499 Louis XII. ordered the Pragmatic to be inviolably observed. The parlements thereupon condemned several private persons for obtaining bulls from Rome. In 1516 a Concordat between Leo X. and Francis I. settled all these questions in the sense of the Pragmatic, substantially according to the Basel canon. All causes, except the “greater,” were to be terminated in the country where the proper cognizance would lie (Migne, op. cit. “Concordat”). By this Concordat, by an ordinance of Francis I. in 1539, by two or three other royal edicts, and (above all) by the practice of the parlements, explanatory of this legislation, and their arrêts, the conflict of secular and ecclesiastical jurisdictions was settled until the Revolution (Migne, ubi sup.). “Greater causes” came in France to be restricted to criminal prosecutions of bishops. Even in these the original jurisdiction of the pope was taken away. In first instance they were tried by the provincial synod. Thence there was appeal to the pope (de Maillane, op. cit. s.v. “Causes majeures”; Dict. eccl., Paris, 1765, s.v. “Cause”). The only original jurisdiction left to the pope was in the case of the matrimonial causes of princes. But they could only be heard on the spot by judges delegate. Examples are the causes of Louis XII. and Jeanne of France in 1498, and of Henry IV. and Marguerite of Valois in 1599 (Migne, op. cit. s.v. “Causes”). The prohibition of papal interference was enforced if necessary by the appel comme d’abus (vide supra). Out of respect for the pope this appeal was not brought against his decrees but against their execution (Dict. eccl., Paris, 1765, s.v. “Abus”).
Spain appears to have permitted and recognized appeals to the pope. A royal writ of the 16th century cited by Covarruvias (c. xxxv.) prohibits execution of the sentence of a Spanish court Christian pending an appeal to the pope.
2. The subject matter over which the ecclesiastical courts had jurisdiction was no longer purely “criminal” with a civil quasi-jurisdiction by way of arbitration. In the later middle ages these courts had jurisdiction over most questions, Civil jurisdiction. except indeed the then most important ones, those relating to real property. This civil jurisdiction was sometimes concurrent with that of the secular courts, sometimes exclusive. For England it may be thus classified:—
(a) Matrimonial.—This arose naturally from the sacred character of Christian marriage. This jurisdiction was exclusive. From it followed the right of the courts Christian to pronounce upon questions of legitimacy. Upon this right an inroad was early made, in consequence of the question of legitimation by subsequent marriage. In the 12th century the Church’s rule, that subsequent marriage did legitimize previous issue, was settled (c. 6, x. 4, 17). The king’s judges then began to ask the ordinary the specific question whether A. B. was born before or after his parents’ marriage. After the inconclusive proceedings at the realm-council of Merton (1236), when spiritual and temporal lords took opposite views, the king’s judges went a step further and thenceforward submitted this particular question to a jury. All other questions of legitimacy arising in the king’s courts were still sent for trial to the bishop and concluded by his certificate (see Pollock and Maitland, Hist. Eng. Law before Edward I. vol. i. 105-106; Maitland, ubi supra, pp. 53-56).
(b) Testamentary and in regard to succession from intestates.—Real property was not the subject of will or testament in the medieval period. But as to personal property, the jurisdiction of the courts Christian became exclusive in England. The Church, East and West, had long asserted a right to supervise those legacies which were devoted to pious uses, a right recognized by Justinian (Cod. i. 3. 46). The bishop or, failing him, the metropolitan, was to see such legacies properly paid and applied and might appoint persons to administer the funds (Pollock and Maitland, op. cit. ii. 330). This right and duty became a jurisdiction in all testamentary causes. Intestacy was regarded with the greatest horror, because of the danger to the intestate’s soul from a death without a fitting part given to pious uses (Maine, Ancient Law, ed. 1906, note by Pollock, p. 230; cf. Pollock and Maitland, op. cit. ii. 354). Hence came the jurisdiction of the ordinary in intestacy, for the peace of the soul of the departed. This head of ecclesiastical jurisdiction was in England not transferred to the secular court till 1857.
(c) Church Lands.—If undoubtedly held in frankalmoign or “free alms,” by a “spiritual” tenure only, the claim of jurisdiction for the ecclesiastical forum seems to have been at first conceded. But the Constitutions of Clarendon (c. 9) reserved the preliminary question, of “frankalmoign” or not, for a jury in the king’s court. Then, if the tenure were found free alms, the plea was to be heard in the court Christian. From the 13th century, however, inclusive, the king’s courts insisted on their exclusive jurisdiction in regard to all realty, temporal or “spiritual” (Pollock and Maitland, op. cit. i. 106).
(d) Title to present to and possession of benefices.—As to the title to present to benefices, the courts Christian at one time had concurrent jurisdiction with the temporal courts. “Advowsons” were, however, looked upon as a species of “real” property in England, and therefore the king’s court early claimed exclusive jurisdiction in disputes where the title to present was involved. The Constitutions of Clarendon provided that these causes should be heard only in the king’s court (c. 1). This rule was applied even where both litigants were “spiritual.” In the 13th century abbots sue each other in the royal court for advowsons (Selden Soc. Select Civil Pleas, i. pl. 245). In 1231, in such a suit, the bishop of London accepts wager of battle (Pollock and Maitland, op. cit. i. 105). In cases, however, where the title to present was not in question, but the fitness of the clerk presented, or, in cases of election to benefices, the validity of the election, there was jurisdiction in the courts Christian.
(e) The recovery of tithes and church dues, including in England church rates levied to repair or improve churches and churchyards.
(f) Questions concerning fabrics, ornaments, ritual and ceremonial of churches.
(g) Administration of pious gifts and revenues given to prelates or convents.—Their right application could be effectively enforced only in the courts Christian; until the rise in England of the equitable jurisdiction of the court of chancery and the development of the doctrine of “uses” at the end of the middle ages.
(h) Enforcement of contractual promises made by oath or pledge of faith.—The breaking of such a promissory oath was called “perjury” (as in classical Latin and in Shakespeare), contrary to modern usage which confines the word to false evidence before a court of justice. In regard to the execution of these promises, the jurisdiction of the ecclesiastical courts was possibly traversed by c. 15 of the Constitutions of Clarendon; but allowed by the statute 13 Edw. I. st. 4. As just intimated, besides the enforcement of the promise, the “perjury” was treated as an ecclesiastical crime.
The criminal jurisdiction of courts Christian over laymen included, besides these “perjuries,” (a) all sexual offences not punishable on indictment; (b) Defamation of character (the king’s courts came in time to limit this to such defamation as could not be made the subject of a temporal action); (c) Offences by laymen against clerks (i.e. against all “tonsured” persons, supra); (d) Offences in regard to holy places—“brawling” and such like; (e) Heresy, schism, apostasy, witchcraft.
In regard to “clerks,” there was (1) all the criminal jurisdiction which existed over laymen, and (2) criminal jurisdiction in regard to professional misconduct. Concerning “felonious” clerks the great questions discussed were whether the courts Christian had exclusive jurisdiction or the king’s court, or whether there was a concurrent jurisdiction. The subject was dealt with in the Constitutions of Clarendon, formally revoked after the murder of St Thomas of Canterbury. In the 13th century it was recognized that a “clerk” for felony was subject only to ecclesiastical trial and punishment; punishment which might involve lifelong imprisonment. For “misdemeanours,” as yet unimportant, he had no exemption from secular jurisdiction (Pollock and Maitland, op. cit. ch. iv.). At some indeterminate later period, the “clerk” was tried for felony by a jury in the king’s court and then “pleaded his clergy,” after conviction there, and was remitted to the ordinary for ecclesiastical punishment. “Clerks” for the purpose of “benefit of clergy” included not only persons in minor orders, but all “religious” persons, i.e. monks, friars, nuns, &c. Later the custom arose of taking “clerk” to include any “literate,” even if not in orders or “religious” (cf. Stephen, Hist. Crim. Law, i. 461). The statute 4 Hen. VII. c. 13 took away benefit of clergy, if claimed a second time, from persons not “within orders,” in certain bad cases. 4 Hen. VIII. c. 2 (a temporary act) took away “clergy,” in certain heinous crimes, from all persons not in “holy” orders. This statute was partly renewed by 22 Hen. VIII. c. 13. Other changes were introduced by 23 Hen. VIII. c. 1 and later acts. In time, “benefit of clergy” became entirely diverted from its original objects.
In France, till 1329, there seems to have been no clear line of demarcation between secular and ecclesiastical jurisdictions. Beaumanoir (Coutume de Baulvoisis, ch. xi., cited Gaudry, op. cit. i. 22) had laid down the principle that spiritual justice should meddle only with spiritual things. In the year named the secular courts complained to the king, Philip of Valois, of the encroachments of the courts Christian. The “cause” was solemnly argued before that monarch, who decided to leave things as they were (Migne, Dict. du droit canon., s.v. “Officialités”). In 1371 Charles V. forbade spiritual courts to take cognizance of “real” and “possessory” actions even in regard to clerks (Migne, loc. cit.; cf. Gaudry, ubi sup.). From this period the parlements began the procedure which, after the Pragmatic Sanction of Charles VII., in 1438 took regular shape as the appel comme d’ abus (supra; Migne, loc. cit.). Testamentary causes at first were subject to the concurrent jurisdiction of the spiritual and secular courts. After the 14th century, the latter had exclusive jurisdiction (Van Espen, op. cit. lib. iii. tit. ii. cc. 2, 15, 16). In regard to marriage the secular jurists distinguished between the civil contract and the sacrament, for purposes of separating the jurisdiction (Dict. eccl., Paris, 1765, s.v. “Mariage”). The voluntary jurisdiction as regards dispensations was kept for the Church. The contentious jurisdiction of the courts Christian was confined to promises of marriage, nullity of marriage caused by “diriment” impediments only, validity or invalidity of the sacrament, divorce a thoro (ibid.). Questions in regard to the property in a benefice were for the courts Christian; in regard to its possession, for the king’s courts. But if a “possessory” action had been brought in the latter, a subsequent suit in the courts spiritual for the property was deemed “abusive” and restrained (ib., s.v. “Pétitoire”) Breach of faith or of promise confirmed by oath was matter for the court Christian (Fournier, pp. 95, 99, 109, 125). This branch of jurisdiction was larger and more freely used than in England (cf. Pollock and Maitland, op. cit., as to Normandy). The only other remaining civil jurisdiction of the ecclesiastical courts was in personal actions where clerks were defendants (Migne, op. cit., s.v. “Officialités,” Fournier, pp. 65-125); or, after the 14th century, where both parties were clerks. In regard to crimes delicts (délits) were divided into classes for purposes of jurisdiction. Clerks were punishable only in the court Christian, except in cases of grave crimes such as murder, mutilation (Fournier, p. 72), and cases called “royal cases” (vide infra). Laymen were punishable in the court Christian for the délits following: injury to sacred or religious places, sacrilege, heresy (except where it was a “royal case”), sorcery, magic, blasphemy (also punishable in the secular court), adultery, simony, usury and infractions of the truce of God (Fournier, pp. 90-93). What were called “privileged delicts” were judged in the case of the clergy conjointly by the spiritual judge and the king’s judge. Bishops had no exemption (Dict. ecc., s.v. “Délits,” “Cas privilégié,” “Causes majeures”). “Royal cases” included such crimes as touched the prince, as all forms of treason; or the dignity of his officers; or the public safety. In this class were also included such heresies as troubled the state, as by forbidden assemblies, or by teaching prohibited doctrine. Among these heresies were reckoned idolatry, atheism, Protestantism, relapse (ib. et “Cas royaux,” “Hérésie”). These were of exclusive royal jurisdiction as against both spiritual courts and the courts of feudal lords. A similar claim was made by Pombal for Portugal (vide infra).
The parlements, in order to have a ready means of enforcing all these restrictions by appel comme d’abus, compelled the bishops to appoint officials, Frenchmen, graduates, and (as it seems) “seculars” (Dict. eccl., Paris, 1765, s.v. “Official”). This last qualification was disputed (see Fevret, Traité de l’abus).
3. Punishments.—Ecclesiastical sanctions were divided into punishments (poenae), either purely temporal in character or else of a mixed spiritual and temporal character, and censures (censurae), purely spiritual and remedial (see Van Espen, pars iii. tit. xl. cc. 1, 3; Phillimore, Ecclesiastical Law, p. 1064). In the book last cited censurae and poenae are classed together as “censures” (which is the modern use).
Poenae.—(a) Fines sprang from the older custom of directing alms by way of penance in the internal forum (Van Espen, ubi sup. c. 1, 5-10). They were to be applied to pious uses. (b) Reclusion in a monastery continued from former period, and might be either temporary or perpetual (loc. cit. 17-19). (c) Imprisonment, in the bishop’s prison, might be in chains, or on bread and water, and temporary or perpetual. In its severer forms it was only inflicted for more atrocious crimes which the secular law would have punished with death (loc. cit. 21-27). The act 23 Henry VIII. c. 11 made special provision for convicted clerks who broke out of the prisons of the ordinary. (d) Fustigation, as in former period, was hardly an ecclesiastical punishment. If given, it was to be of a paternal character (loc. cit. 39-45). Punishments of a mixed nature were: (e) Suspension either from office alone or from office and benefice; (f) Deprivation of benefice; (g) Deposition or Degradation (a more solemn and ceremonial form) from the ministry; (h) Irregularity—not always a punishment—a state of incapacity to be ordained, or, being ordained, to execute the ministry; this might result from some defect of mind and body, but was also incurred by some grave offences.
Censures were as follows: (i) Suspension from attending divine offices or ab ingressu ecclesiae, more appropriate for a layman. A clerk in like case might be suspended from office. (j) Interdict was another form of partial or total suspension from the benefit of the rites and sacraments of the Church. An interdict might be personal or local (see Interdict). (k) Excommunication was either greater or less. The greater separated entirely from the Church. It might be pronounced under anathema. The less deprived of participation in the sacraments, and made a clerk incapable of taking a benefice.
On the European continent the courts Christian often carried out their decrees by their own apparitors who could levy pecuniary penalties on a defendant’s goods (Van Espen, pars iii. tit. ix. c. 4). They could arrest and imprison. In England, except in the peculiar case of imprisonment pending trial for heresy, or in the case of a clerk convicted of crime, these things could not be. The sentence of the court Christian had in all other cases to be enforced by the secular arm. Early in Henry II.’s time it had become the custom of England for the court Christian to “signify” its sentence of excommunication to the king and to demand from him a writ of significavit to the sheriff, to imprison the person excommunicated. The writ apparently issued for no court inferior to the bishop’s, unless upon the bishop’s request. In some sense the king’s writ of significavit was discretionary; but its issue could be enforced by excommunication or interdict.
In the cases of heresy, apostasy and sorcery, the spiritual courts sought the aid of the secular jurisdiction to superadd the punishment of death. Incorrigible offenders on these matters were “left” to the secular power, to be corrected with due “animadversion.” This provision of the fourth Lateran Council in 1215 was always interpreted to mean death (see Van Espen, Observ. in Conc. Lat. IV. Canones, and the decree in the Sext. ut inquisitionis negotium; and, as to English law and practice, Maitland, op. cit., Essay vi., and pp. 161, 176; 2 Hen. IV. c. 15; Fitzherbert, Natura brevium, 269; 2 Hen. V. st. 1, c. 7). The “capital” punishment was generally (always in England) by burning. Burning was an English punishment for some secular offences.
The Concordat with Francis I. by which the pope gave up the right of hearing appeals from France was not many years before the legislation of Henry VIII. in England. Both monarchs proceeded on the same lines; but Francis I. got the pope’s consent: Henry VIII. acted in invitum, and in time went rather further.
The Statute of Appeals (24 Hen. VIII. c. 12) takes away appeals to Rome in causes testamentary and matrimonial and in regard to right of tithes, oblations and obventions. A final appeal is given to the archbishop of the particular Ecclesiastical jurisdiction in England. province; but in causes touching the king a final appeal is given to the Upper House of Convocation of the province. The statute is aimed at appeals; but the words used in it concerning “citations and all other processes” are wide enough to take away also the “original” jurisdiction of the pope. No appeal was yet given to the crown. Canterbury, York, Armagh, Dublin, Cashel and Tuam are put in the place of Rome. The English and Irish provinces are treated as self-contained. All ends there.
The “Act of Submission of the Clergy” (25 Hen. VIII. c. 19) took away all appeals to Rome and gave a further appeal, “for lack of justice,” from the several courts of the archbishops to the king in chancery. Thence a commission was to issue to persons named therein to determine the appeal definitely. This was copied from the then existent practice in admiralty appeals and was the origin of the so-called court of delegates. It is a moot question whether this statute took away the appeal to the Upper Houses of the various convocations in causes wherein the king was concerned (see Gorham v. Bishop of Exeter, 15 Q.B. 52; Ex parte Bishop of Exeter, 10 C.B. 102; Re Gorham v. Bishop of Exeter, 5 Exch. 630). 37 Hen. VIII. c. 17 provided that married laymen might be judges of the courts Christian if they were doctors of civil law, created in any university. This qualification even was considered unnecessary in Charles I.’s time (Cro. Car. 258). Canon 127 of 1603 provided that the judges must be learned in the civil and ecclesiastical laws and at least masters of arts or bachelors of laws. Canon Law as a study had been practically prohibited at the universities since 1536 (Merriman, Thomas Cromwell, i. 142-143; Cal. State Papers, vol. ix. p. xxix. 117; Owen, Institutes of Canon Law, viii.). The substitution of “civilians,” rather than common lawyers, for canonists (civilians, hitherto, not an important body in England) had important consequences (see Maitland, op. cit. 92 et seq.).
Henry VIII. had exercised his jurisdiction as Supreme Head through a vicar-general. Edward VI. exercised original jurisdiction in spiritual causes by delegated commissions (see Archdeacon Hale, Precedents in Criminal Cases, p. xlviii.). Unless the king was to be regarded as an ecclesiastical person, they were not properly ecclesiastical courts; although spiritual persons might sit in them, for they sat only as royal commissioners. The same point has been taken by large bodies of clergy and laity in regard to the court of final appeal created by 25 Hen. VIII. c. 19 and its present successor the judicial committee of Privy Council (infra: Rep. Com. Ecc. Discipline, pp. 9, 94 et seq.). At any rate the “original” jurisdiction claimed for the monarch personally and his delegates, under Henry VIII. and Edward VI., has not permanently remained. In theory, Hooker’s contentions have been conceded that “kings cannot in their own proper persons decide questions about matters of faith and Christian religion” and that “they have not ordinary spiritual power” (Ecc. Pol. vii. 8, 1, 6; cf. XXXIX. Articles, Art. 37).
Under Henry VIII. a system began of making certain crimes, which previously had been only of spiritual cognizance, felonies (25 Hen. VIII. c. 6), excluding thereby spiritual jurisdiction (Stephen, Hist. Crim. Law, ii. 429). Bigamy (in its modern sense) was thus made felony (1 Jac. I. c. 11). In this reign and the next, temporal courts were sometimes given jurisdiction over purely spiritual offences. A trace of this remains in 1 Edw. VI. c. 1 (still on the statute book; Stephen, Hist. Crim. Law, ii. 439). Other traces occur in the Acts of Uniformity, which make offences of depraving the Book of Common Prayer triable at Assizes (between 23 Eliz. c. 1 and 7 & 8 Vict. c. 102—also at Sessions) as well as in the courts Christian.
During Edward VI.’s time the courts Christian seem practically to have ceased to exercise criminal jurisdiction (Hale, Precedents in Criminal Cases, p. xlix.). But they sat again for this purpose under Mary and Elizabeth and (save between 1640 and 1661) continued regular criminal sessions till towards the end of the 17th century as continuously and constantly as the king’s courts (op. cit.).
The “ordinary” ecclesiastical tribunals of the later middle ages still subsist in England, at least as regards the laity. This is hardly the case elsewhere in the Western Church, though some exceptions are noted below. Nevertheless, their exercise of criminal jurisdiction over the laity is now in practice suspended; although in law it subsists (see Stephen, Hist. Crim. Law; Ray v. Sherwood, 1 Curt. R. 193; 1 Moore P.C.R. 363; the observations of Kelly, C.B., in Mordaunt v. Moncrieffe, L.R. 2 Sc. & Div. 381, and of Lord Coleridge in Martin v. Mackonochie, L.R. 4 Q.B.D. 770, and, on the other hand, of Lord Penzance in Phillimore v. Machon, L.R. 1 P.D. 480). Theoretically still, in cases of sexual immorality, penance may be imposed. Monitions to amend may be decreed and be enforced by significavit and writ de contumace capiendo, or by excommunication with imprisonment not to exceed six months (53 Geo. III. c. 127). The tribunals thus subsisting are the courts of the bishop and archbishop, the latter sometimes called the court of appeal of the province. Peculiar jurisdictions have been gradually taken away under the operation of the acts establishing the ecclesiastical commissioners. The appeal given to delegates appointed by the crown has been transferred, first by 2 & 3 Will. IV. c. 92 to the privy council, and then by 3 & 4 Will. IV. c. 41 to the judicial committee of the privy council. Bishops may now be summoned as assessors by 39 & 40 Vict. c. 59.
There was in the time of Elizabeth, James I. and Charles I. a “Court of High Commission” with jurisdiction over laity and clergy, based on 1 Eliz. c. i. s. 15, which was reckoned as an ecclesiastical judicature (5 R. 1, Cawdrey’s case) concurrent with the ordinary court Christian. It was created by virtue of the royal supremacy, and was taken away by 16 Car. I. c. 11. As to its history see Stephen, Hist. Crim. Law, ii. 414-428.
In regard to clerical offences, 3 & 4 Vict. c. 86 (the “Church Discipline Act”) creates new tribunals; and first a commission of inquiry appointed by the bishop of five persons, of whom the vicar-general, or an archdeacon, or a rural dean of the diocese must be one. If they report a prima facie case, the bishop may (with the consent of parties) proceed to sentence. In the absence of such consent, the bishop may hear the cause with three assessors, of whom one shall be a barrister of seven years’ standing and another the dean of the cathedral, or one of the archdeacons, or the chancellor. This court is called the “consistory” court, but is not the old consistory. Both these tribunals are new. But the bishop may instead send the cause, in first instance, to the old provincial court, to which appeal lies, if it be not so sent.
The Public Worship Regulation Act (37 & 38 Vict. c. 85) gave criminal jurisdiction over beneficed clerks (concurrent with that of the tribunal under 3 & 4 Vict. c. 86) to the judge under the act in matters of the fabric, ornaments, furniture and decorations of churches, and the conduct of divine service, rites and ceremonies. The “judge” under the act is to be a barrister of ten years’ standing, or an ex-judge of a superior secular court, appointed by the archbishops of Canterbury and York, with the approval of the crown, or, if they fail to appoint, by the crown. Proceedings under this act are to be deemed to be taken in the appropriate ancient ecclesiastical courts (Green v. Lord Penzance, 6 A. C. 657). The judge under this act became (upon vacancies occurring) ex officio official principal of the arches court of Canterbury and of the chancery court of York. This provision caused grave doubts to be entertained as to the canonical position of this statutory official principal.
Finally, the Clergy Discipline Act 1892 (55 & 56 Vict. c. 32) creates yet a new court of first instance for the trial of clerical offences against morality in the shape of a consistory court, which is not the old court of that name, but is to comprehend the chancellor and five assessors (three clergymen and two laymen chosen from a prescribed list), with equal power with the chancellor on questions of fact. In many instances the conviction of a temporal court is made conclusive on the bishop without further trial. In regard to moral offences, jurisdiction under this act is exclusive. But it only applies to clerks holding preferment. Under all these three acts there is a final appeal to the judicial committee of the privy council.
None of these acts applies to the trial of bishops, who are left to the old jurisdictions, or whatever may be held to be the old jurisdictions (with that of the Roman See eliminated). As to suffragan bishops in the province of Canterbury, see Read v. Bishop of Lincoln, 13 P.D. 221, 14 P.D. 88. (On general questions see Phillimore, Ecc. Law, 65, 73.) Despite the bishop of Lincoln’s case, the law is in some uncertainty.
Dilapidations are now not made matters of suit before the court, but of administrative action by the bishop.
The subject matter of ecclesiastical jurisdiction has been gradually reduced in England, &c., by various causes. (1) The taking away of all matrimonial, testamentary and ab intestate jurisdiction by 20 & 21 Vict. c. 77 (testamentary, &c., England), c. 79 (testamentary, &c., Ireland), c. 85 (matrimonial, England); 33 & 34 Vict. c. 110 (matrimonial, Ireland). Matrimonial jurisdiction was taken from the bishop of Sodor and Man in 1884. (2) Since 6 & 7 Will. IV. c. 71, tithe has become, except in a few rare cases, tithe rent charge, and its recovery has been entirely an operation of secular law. Most kinds of offerings are now recoverable in secular courts. (3) Administration of pious gifts has passed to the court of chancery. (4) The enforcement of contractual promises has long been abandoned by the courts Christian themselves. (5) Church rates can no longer be enforced by suit (31 & 32 Vict. c. 109). (6) Defamation was taken away in England by 18 & 19 Vict. c. 41, and in Ireland by 23 & 24 Vict. c. 32. (7) Laymen can no longer be tried in the spiritual courts for offences against clerks. (8) The jurisdiction for “brawling” in church, &c., is taken away by 23 & 24 Vict. c. 32 in the case of the laity. In the case of persons in holy orders there is a concurrent jurisdiction of the two tribunals (Valancy v. Fletcher, 1897, 1 Q.B. 265). This was an offence very frequently prosecuted in the courts Christian (see A. J. Stephens, Ecclesiastical Statutes, i. 336).
The existing ecclesiastical jurisdiction in England is therefore now confined to the following points. (1) Discipline of the clergy. (2) Discipline of the laity in respect of sexual offences as already stated. (3) Control of lay office-bearers, church-wardens, sidesmen, organists, parish clerks, sextons. (4) Protection of the fabrics of churches, of churchyards, ornaments, fittings, &c., sanctioning by licence or faculty any additions or alterations, and preventing or punishing unauthorized dealings by proceedings on the criminal side of the courts. (5) Claims by individuals to particular seats in church or special places of sepulture. (6) Rare cases of personal or special tithes, offerings or pensions claimed by incumbents of benefices. In the Isle of Man and the Channel Islands courts Christian have now jurisdiction substantially as in England. In Jersey and in Guernsey there are courts of first instance with appeal to the bishop of Winchester. Ecclesiastical jurisdiction in Ireland was as in England till the Irish Church was disestablished in 1869 by 32 & 33 Vict. c. 42.
The position of a disestablished or an unestablished Church is comparatively modern, and has given rise to new jural conceptions. These Churches are collegia licita and come within the liberty of association so freely conceded in Ecclesiastical jurisdiction in non-established churches. modern times. The relations of their bishops, priests or other ministers and lay office-bearers inter se and to their lay folk depend upon contract; and these contracts will be enforced by the ordinary courts of law. A consensual ecclesiastical jurisdiction is thus created, which has to this extent temporal sanction. In foro conscientiae spiritual censures canonically imposed are as binding and ecclesiastical jurisdiction is as powerful as ever.
Into the British-settled colonies no bishops were sent till 1787; and consequently there were no regular courts Christian. The bishop of London was treated as the diocesan bishop of the colonists in North America; and in order to provide for testamentary and matrimonial jurisdiction it was usual in the letters patent appointing the governor of a colony to name him ordinary. In New York state there is still a court called the surrogates court, surrogate being the regular name for a deputy ecclesiastical judge. In Lower Canada, by treaty, the Roman Catholic Church remained established.
Throughout the United States, whatever may have been the position in some of them before their independence, the Church has now no position recognized by the State, but is just a body of believers whose relations are governed by contract and with whom ecclesiastical jurisdiction is consensual.
The position is the same now through all the British colonies (except, as already mentioned, Lower Canada or Quebec). From 1787 onwards, colonial bishops and metropolitans were appointed by letters patent which purported to give them jurisdiction for disciplinary purposes. But a series of cases, of which the most remarkable was that Re the Bishop of Natal (3 Moore P.C. N.S. A.D. 1864), decided that in colonies possessing self-governing legislatures such letters patent were of no value; and soon after the crown ceased to issue them, even for crown colonies.
In India the metropolitan of Calcutta and the bishops of Madras and Bombay have some very limited jurisdiction which is conferred by letters patent under the authority of the statutes 53 Geo. III. c. 155 and 3 & 4 Will. IV. c. 85. But the other Indian bishops have no position recognized by the State and no jurisdiction, except consensual.
The Church had the same jurisdiction in Scotland, and exercised it through similar courts to those which she had in England and France, till about 1570. As late as 1566 Archbishop Hamilton of Glasgow, upon his appointment, Ecclesiastical jurisdiction in Scotland. had restitution of his jurisdiction in the probate of testaments and other matters (Keith, History of the Scottish Bishops, Edinburgh, 1824, p. 38). There was an interval of uncertainty, with at any rate titular bishops, till 1592. Then parliament enacted a new system of Church courts which, though to some extent in its turn superseded by the revival of episcopacy under James VI., was revived or ratified by the act of 1690, c. 7, and stands to this day. It is a Presbyterian system, and the Scottish Episcopal Church is a disestablished and voluntary body since 1690.
The Presbyterian courts thus created are arranged in ascending order:—
(a) Kirk Session consists of the minister of the parish and the “ruling elders” (who are elected by the session). It has cognizance of scandalous offences by laymen and punishes them by deprivation of religious privileges. It does not judge ministers (Brodie-Innes, Comparative Principles of the Laws of England and Scotland, 1903, p. 144).
(b) The Presbytery has jurisdiction, partly appellate and partly original, over a number of parishes. There are now eighty-four presbyteries. These courts consist of every parochial minister or professor of divinity of any university within the limits, and of an elder commissioned from every kirk session. A minister is elected to preside as moderator. These courts judge ministers in first instance for scandalous conduct. As civil courts they judge in first instance all questions connected with glebes and the erection and repair of churches and manses. They regulate matters concerning public worship and ordinances, and have appellate jurisdiction from the kirk session.
(c) The Provincial Synod consists of a union of three or more presbyteries with the same members. There are now sixteen. They meet twice a year to hear appeals from presbyteries. No appeal can go direct to the General Assembly, omisso medio, unless the presbytery have so expressly directed, or unless there be no meeting of synod after the decision of the presbytery before the meeting of General Assembly.
(d) The General Assembly is the supreme ecclesiastical court of this system. It meets annually. The king’s “lord high commissioner” attends the sittings; but does not intervene or take part in the court’s decisions. The court consists of ministers and elders, elected from the presbyteries in specified proportions, and of commissioners from the four universities, the city of Edinburgh and the royal burghs. The Presbyterian Church in India sends one minister and one elder. The whole Assembly consists of 371 ministers and 333 elders. The jurisdiction is entirely appellate. The Assembly appoints a commission to exercise some of its functions during the intervals of its session. To this commission may be referred the cognizance of particular matters.
Questions of patronage now (by 37 & 38 Vict. c. 82) belong to the Church courts; but not questions of lapse or stipend. Seats, seat rents, pews, the union and disjunction of parishes and formation of district parishes are of secular jurisdiction. Questions of tithes (or “teinds”) and ministers’ stipends were referred to commissioners by acts of the Scots parliaments beginning in 1607. The commissioners of teinds became a species of ecclesiastical court. By Scots act of 1707, c. 9, their powers were transferred to the judges of the court of session, who now constitute a “teind court” (Brodie-Innes, op. cit. pp. 138, 139). Matrimonial matters and those relating to wills and succession (called in Scotland “consistorial” causes) were in 1563 taken from the old bishops’ courts and given to “commissaries” appointed by the crown with an appeal to the court of session, which by act 1609, c. 6, was declared the king’s great consistory. They have remained matters of secular jurisdiction.
The Scots ecclesiastical courts are entitled to the assistance of the secular courts to carry out their jurisdiction by “due assistance.” Within the limits of their jurisdiction they are supreme. But if a court go outside its jurisdiction, or refuse to exercise powers conferred on it by law, the civil court may “reduce” (i.e. set aside) the sentence and award damages to the party aggrieved.
With the Reformation in the 16th century, Church courts properly speaking disappeared from the non-episcopal religious communities which were established in Protestant continental European states. Holland, in the Protestant states of Switzerland and of Germany, and in the then non-episcopal countries of Denmark and Norway.
Discipline over ministers and other office-bearers was exercised by administrative methods in the form of trials before consistories or synods. To this extent ecclesiastical jurisdiction is still exercised in these countries. Consistories and synods have exercised discipline of a penitential kind over their lay members; but in later times their censures have generally ceased to carry temporal consequences. Ecclesiastical jurisdiction on the civil side for the trial of causes soon disappeared. Heresy has been treated as a crime to be tried in and punished by the ordinary courts of the country, as in the cases of Servetus (q.v.) and Grotius (q.v.).
For the episcopal churches of Sweden and Finland the first constitution or “Church order” was formed in 1571. It provided for the visitation of the clergy by the bishop, and for the power of the clergy to exclude their lay folk from the Holy Communion, subject to appeal to the bishop. Both minor and major excommunication had been in use, and for a long time public penance was required. The procedure underwent great modification in 1686; but public penance was not taken away till 1855, and then confession to and absolution by the priest in the presence of witnesses was still required. Civil jurisdiction in causes appears to have been given up early (Cornelius, Svenska Kirkaus Historia, Upsala, 1875, pp. 146, 186, 189, 285).
Over the rest of western continental Europe and in the colonies of Spain, Portugal and France, ecclesiastical jurisdiction remained generally in the state which we have already described till near the end of the 18th century. The council of Roman Catholic countries. Trent took away the jurisdiction of archdeacons in marriage questions. The testamentary jurisdiction disappeared (as already stated) in France. Disputed cases of contract were more often tried in the secular courts. Recourse to the secular prince by way of appel comme d’abus, or otherwise, became more frequent and met with greater encouragement. Kings began to insist upon trying ecclesiastics for treason or other political crimes in secular courts. So under the advice of his minister (the marquis of Pombal), King Joseph of Portugal in 1759-1760 claimed that the pope should give him permission to try in all cases clerics accused of treason, and was not content with the limited permission given to try and execute, if guilty, the Jesuits then accused of conspiring his death (Life of Pombal, by Count da Carnota, 1871, pp. 128, 141). But there was no sudden change in the position of the courts Christian till the French Revolution.
In France a law of the Revolution (September 1790) purported to suppress all ecclesiastical jurisdictions. On the re-establishing of the Catholic religion on the basis of the new Concordat, promulgated 18 Germinal, year X. (April 8, 1802), no express provision was made for ecclesiastical jurisdictions; but several bishops did create new ecclesiastical tribunals, “officialities” (Migne, Dict. de droit canon., s.v.). The government in some cases recognized these tribunals as capable of judging ecclesiastical causes (Migne, ubi sup.). In 1810 the diocesan official of Paris entertained the cause between Napoleon and Josephine, and pronounced a decree of nullity (Migne, ubi sup. s.v. “Causes”). Such litigation as still continued before the spiritual forum was, however, confined (save in the case of the matrimonial questions of princes) to the professional conduct of the clergy.
Such neighbouring countries as were conquered by France or revolutionized after her pattern took the same course of suppressing their ecclesiastical jurisdictions. After 1814, some of these jurisdictions were revived. But the matter is now determined for all countries which have adopted codes, whether after the pattern of the Code Napoléon or otherwise. These countries have created a hierarchy of temporal courts competent to deal with every matter of which law takes cognizance, and a penal code which embraces and deals with all crimes or delicts which the state recognizes as offences. Hence, even in countries where the Roman Church is established, such as Belgium, Italy, the Catholic states of Germany and cantons of Switzerland, most of the Latin republics of America, and the province of Quebec, and a fortiori where this Church is not established, there is now no discipline over the laity, except penitential, and no jurisdiction exercised in civil suits, except possibly the matrimonial questions of princes (of which there was an example in the case of the reigning prince of Monaco). In Spain causes of nullity and divorce a thoro, in Portugal causes of nullity between Catholics, are still for the court Christian. In Peru, the old ecclesiastical matrimonial jurisdiction substantially remains (Lehr, Le Mariage dans les principaux pays, 1899, arts. 362, 797, 772, 781). Otherwise these three countries are Code countries. In Austria, the ancient ecclesiastical jurisdiction was taken away by various acts of legislation from 1781 to 1856; even voluntary jurisdiction as to dispensations. The Concordat of 1856 and consequent legislation restored matrimonial jurisdiction to the courts Christian over marriages between Roman Catholics. In 1868 this was taken away. The Austrian bishops, however, maintain their tribunals for spiritual purposes, and insist that such things as divorce a vinculo must be granted by their authority (Aichner, Compendium juris ecclesiastici, pp. 551-553).
By consent and submission of her members, the Roman Church decides in foro conscientiae questions of marriage, betrothal and legitimacy everywhere; but no temporal consequences follow except in Spain, Portugal and Peru.
The position in France was the same as that in Belgium, Italy, &c., till 1906, when the Church ceased to be established. The only Latin countries in which conflict has not arisen appear to be the principality of Andorra and the republic of San Marino (Giron y Areas, Situación jurídica de la Iglesia Católica, Madrid, 1905, p. 173 et seq.).
Even as to the discipline of the Roman clergy it is only in certain limited cases that one can speak of ecclesiastical jurisdiction. Bishops and beneficed incumbents (curés) must be regularly tried; and where the Church is established the canonical courts are recognized. But the majority of parishes are served by mere desservants or vicaires, who have no rights and can be recalled and dismissed by mere administrative order without trial (Migne, ubi sup. s.v. “Inamovibilité,” “Desservants”).
The Napoleonic legislation re-established the appel comme d’abus (“Articles organiques,” art. 6). The recourse was now to the council of state (see Migne, ubi supra, “Officialité”). But the revocation of a desservant, and the forbidding him the execution of his ministry in the diocese, was not a case in which the council of state would interfere (Migne, ubi sup. “Appel comme d’abus,” “Conseil d’état”).
In those provinces of the Anglican communion where the Church is not established by the state, the tendency is Jurisdiction in Anglican communion. not to attempt any external discipline over the laity; but on the other hand to exercise consensual jurisdiction over the clergy and office-bearers through courts nearly modelled on the old canonical patterns.
In the Roman communion, on the other hand, both where the Church is established and where it is not, the tendency is to reduce the status of curé to that of desservant, and to deal with all members of the priestly or lower orders Modern jurisdiction of Church of Rome. by administrative methods. This practice obtains in all missionary countries, e.g. Ireland and also in Belgium (S. B. Smith, Elements of Ecclesiastical Law, New York, i. 197 et seq.; p. 403 et seq.; Tauber, Manuale juris canonici, Sabariae, 1904, p. 277). In the United States, the 3rd plenary council of Baltimore in 1884 provided that one rector out of ten should be irremovable (Smith, op. cit. i. 197, 419). In England there are few Roman “benefices” (E. Taunton, Law of the Church, London, 1906, s.v. “Benefice”). A desservant has an informal appeal, by way of recourse, to the metropolitan and ultimately to the pope (Smith, op. cit. p. 201). The bishop’s “official” is now universally called his vicar-general (except in France, where sometimes an official is appointed eo nomine), and generally exercises both voluntary and contentious jurisdiction (op. cit. i. 377). As of old, he must be at least tonsured and without a wife living. At the Vatican Council, a desire was expressed that he should be a priest (ib.). He should be a doctor in theology or a licentiate in canon law (ib. p. 378). Whether a bishop is bound to appoint a vicar-general is still disputed (ib. p. 380; cf. supra; contra, Bouix, Inst. Juris Canon. De Judic. i. 405). In 1831 the pope enacted that in all the dioceses of the then Pontifical States, the court of first instance for the criminal causes of ecclesiastics should consist of the ordinary and four other judges. In the diocese of Rome, the court of the cardinal vicar-general consists of such vicar-general and four other prelates (Smith, ubi supra). In the Roman communion in England and the United States, there are commissions of investigation appointed to hear in first instance the criminal causes of clerks. They consist of five, or at least three, priests nominated by the bishop in and with the advice of the diocesan synod. In the United States, since 1884, the bishop presides on these commissions. They report their opinions to the bishop, who passes final sentence (ib. ii. 129-131).
“Exemptions” now include all the regular religious orders, i.e. those orders which have solemn vows. Over the members of these orders their superiors have jurisdiction and not the bishop. Otherwise if they live out of their monastery, or even within that enclosure so notoriously offend as to cause scandal. In the first case, they may be punished by the ordinary of the place, acting as delegate of the pope without special appointment (Conc. Trid. Sess. vi. c. 3). In the second case, the bishop may require the superior to punish within a certain time and to certify the punishment to him; in default he himself may punish (Conc. Trid. Sess. xxv. c. 14, cf. Smith, op. cit. i. 204-206). So, regulars having cure of souls are subject to the jurisdiction of the bishop in matters pertaining thereto (ib. p. 206). The exemption of regular religious orders may be extended to religious societies without solemn vows by special concession of the pope, as in the case of the Passionists and Redemptorists (ib. p. 205; Sanguineti, Juris ecc. inst., Rome, 1800, pp. 393, 394).
Appeal lies, in nearly all cases, to the metropolitan (Smith, op. cit. pp. 219-223). Metropolitans usually now have a metropolitan tribunal distinct from their diocesan court (ib. ii. 141), but constructed on the same lines, with the metropolitan as judge and his vicar-general as vice-judge. In some “missionary” dioceses, the metropolitan, qua metropolitan, has a separate commission of investigation, to try the criminal causes of clerks, sentence being passed by himself or his vicar-general (ib. p. 142).
The next step in the hierarchy, that of “primates” (supra), has “in the present state of the Church” ceased to exist for our purpose (Sanguineti, op. cit. p. 334), as a result of Tridentine legislation. The only appellate jurisdiction from the metropolitans is the Roman See. To it also lies a direct appeal from the court of first instance, omisso medio (Smith, op. cit. i. 224). The pope’s immediate and original jurisdiction in every diocese is now expressly affirmed by the Vatican Council (ib. p. 239). That original jurisdiction he reserves exclusively to himself in causis majoribus (ib. pp. 249-250). These are (1) causes relating to elections, translations and deprivations of, and criminal prosecutions against, bishops, and (2) the matrimonial cases of princes (Taunton, op. cit. s.v. “Cause”).
In the Eastern Church, the early system of ecclesiastical judicature long continued. But a sacred character was ascribed to the emperors. They are “anointed lords like the bishops” (Balsamon, in Conc. Ancyr. Can. xii., representing Eastern Church. the view of the 12th and 13th centuries). Bishops were often deposed by administrative order of the emperor; synods being expected afterwards to confirm, or rather accept, such order. The germ of this dealing with a major causa may be found in the practice of the Arian emperors in the 4th century. The cause of Ignatius and Photius was dealt with in the 9th century by various synods; those in the East agreeing with the emperor’s view for the time being, while those in the West acted with the pope. (The details are in Mansi, Conc. in locis, and in Hefele, Conc. in locis, more briefly. They are summarized in Landon, Manual of Councils, s.v. “Constantinople,” “Rome,” and in E. S. Foulkes, Manual of Ecclesiastical History, s.v. “Century IX.”) Since these transactions patriarchs have been deposed by the Byzantine emperors; and the Turkish sultans since the 15th century have assumed to exercise the same prerogative.
The spiritual courts in the East have permanently acquired jurisdiction in the matrimonial causes of baptized persons; the Mahommedan governments allowing to Christians a personal law of their own. The patriarch of Constantinople is enabled to exercise an extensive criminal jurisdiction over Christians (Neale, Hist. of the Eastern Church, i. 30, 31).
The empire of Russia has in the matter of ecclesiastical jurisdiction partly developed into other forms, partly systematized 4th century and later Byzantine rules. The provincial system does not exist; or it may be said that all Russia is one province. An exception should be made in the case of Georgia, which is governed by an “exarch,” with three suffragans under him. In the remainder of the empire the titles of metropolitan, save in the case of the metropolitan of all Russia, and of archbishop, were and are purely honorary, and their holders have merely a diocesan jurisdiction (see Mouravieff, History of the Russian Church, translated Blackmore, 1842, translator’s notes at pp. 370, 390, 416 et seq.). So in Egypt the bishop or “pope” (afterwards patriarch) of Alexandria was the only true metropolitan (Neale, History of the Eastern Church, Gen. Introd. vol. i. p. 111). The metropolitan of Russia from the time of the conversion (A.D. 988) settled at Kiev, and his province was part of the patriarchate of Constantinople, and appeals lay to Constantinople. Many such appeals were taken, notably in the case of Leon, bishop of Rostov (Mouravieff, op. cit. p. 38). The metropolitical see was for a short time transferred to Vladimir and then finally to Moscow (Mouravieff, chs. iv., v.). After the taking of Constantinople in 1452, the Russian metropolitans were always chosen and consecrated in Russia, appeals ceased, and Moscow became de facto autocephalous (Joyce, ubi sup. p. 379; Mouravieff, op. cit. p. 126). The tsar Theodore in 1587 exercised the power of the Byzantine emperors by deposing the metropolitan, Dionysius Grammaticus (Mouravieff, p. 125). In 1587 the see of Moscow was raised to patriarchal rank with the consent of Constantinople, and the subsequent concurrence of Alexandria, Antioch and Jerusalem (ib. c. vi.). Moscow became the final court, in theory, as it had long been in practice. Certain religious houses, however, had their own final tribunals and were “peculiars,” exempt from any diocesan or patriarchal jurisdiction for at least all causes relating to Church property (ib. p. 131).
The subject matter of ecclesiastical jurisdiction in Russia during the whole patriarchal period included matrimonial and testamentary causes, inheritance and sacrilege, and many questions concerning the Church domains and Church property, as well as spiritual offences of clergy and laity (ib.). The bishops had consistorial courts; the patriarchs, chanceries and consistories (ib.). Bishops were judged in synod (see, e.g. the case of the archbishop of Polotsk in 1622, ib. p. 179) and only lawfully judged in synod (ib. p. 215).
Clerks and the dependants of the metropolitan (afterwards the patriarch) appear to have been immune from secular jurisdiction, except in the case of crimes against life, from the time of Ivan the Terrible (ib. pp. 180-181). The tsar Michael, in the earlier 17th century, confirmed these immunities in the case of the clergy of the patriarch’s own diocese, but provided that in country places belonging to his diocese, monasteries, churches and lands should be judged in secular matters by the Court of the Great Palace, theoretically held before the tsar himself (ib. p. 181). This tsar limited the “peculiar” monasteries to three, and gave the patriarch jurisdiction over them (ib.). The next tsar, Alexis, however, by his code instituted a “Monastery Court,” which was a secular tribunal composed of laymen, to judge in civil suits against spiritual persons, and in matters arising out of their manors and properties (ib. p. 193). This court was not in operation during the time when the patriarch Nikon was also in effect first minister; but upon his decline exercised its full jurisdiction (ib. p. 216). Nikon was himself tried for abdicating his see, causing disorder in the realm, oppression and violence, first before a synod of Moscow composed of his suffragans and some Greek bishops, and afterwards before another synod in which sat the patriarchs of Alexandria and Antioch, the metropolitans of Servia and Georgia, the archbishops of Sinai and Wallachia, and the metropolitans of Nice, Amasis, Iconium, Trebizond, Varna and Scio, besides the Russian bishops. This synod in 1667 deposed Nikon, degraded him from holy orders, and sentenced him to perpetual penance in a monastery (ib. pp. 220-232). The next tsar, Theodore, suppressed the secular “monastery court,” and directed that all suits against spiritual persons should proceed only in the patriarchal “court of requests” (ib. p. 264). There was, however, a species of appel comme d’abus. Causes could be evoked to the tsar himself, “when any partiality of the judges in any affair in which they themselves were interested was discovered” (ib.).
The old system was swept away by Peter the Great, who settled ecclesiastical jurisdiction substantially on its present basis. The patriarchate was abolished and its jurisdiction transferred by a council at St Petersburg in 1721 to a Holy Governing Synod. The change was approved by the four patriarchs of the East in 1723 (ib. chs. xv.-xvii.). Peter permanently transferred to the secular forum the testamentary jurisdiction and that concerning inheritance, as also questions of “sacrilege” (ib. p. 264). As the result of a long series of legislation, beginning with him and ending with Catherine II., all church property of every kind was transferred to secular administration, allowances, according to fixed scales, being made for ministers, monks and fabrics (op. cit. translator’s appendix i. p. 413 et seq.). There remain to the spiritual courts in Russia the purely ecclesiastical discipline of clerks and laity and matrimonial causes.
The court of first instance is the “consistorial court” of the bishop. This consists of a small body of ecclesiastics. Its decisions must be confirmed by the bishop (op. cit. translator’s appendix ii. pp. 422-423). In the more important causes, as divorce (i.e. a vinculo), it only gives a provisional decision, which is reported by the bishop, with his own opinion, for final judgment, to the Most Holy Governing Synod.
The governing synod is the final court of appeal. It consists of a small number of bishops and priests nominated by the tsar, and is assisted by a “procurator,” who is a layman, who explains to it the limits of its jurisdiction and serves as the medium of communication between it and the autocrat and secular authorities. It deals with the secular crimes of spiritual persons, if of importance and if not capital (these last being reserved for the secular forum), and with heresy and schism. It is the only court which can try bishops or decree divorce. The tsar formally confirms its judgments; but sometimes reduces penalties in the exercise of the prerogative of mercy (see Mouravieff, op. cit. ch. xvii. translator’s app. ii.).
The governing synod now sits at St Petersburg, but appoints delegated commissions, with a portion of its jurisdiction, in Moscow and Georgia. The latter commission is presided over by the “exarch” (supra).
Since the War of Independence, the kingdom of Greece has been ecclesiastically organized after the model of Russia, as one autocephalous “province,” separated from its old patriarchate of Constantinople, with an honorary metropolitan and honorary archbishops (Neale, op. cit. Gen. Introd. vol. i.). The Holy Synod possesses the metropolitical jurisdiction. It sits at Athens. The metropolitan of Athens is president, and there are four other members appointed by the government in annual rotation from the senior bishops. There is attached to it a government commissioner, with no vote, but affixing his signature to the synodical judgments (Joyce, op. cit. p. 35).
The subject matter of the jurisdiction of Hellenic courts Christian seems to be confined to strictly spiritual discipline, mainly in regard to the professional misconduct of the clergy. Imprisonment may be inflicted in these last cases (ib.). All matrimonial causes are heard by the secular tribunals (Lehr, op. cit. sec. 587).
The bishop’s consistorial court, consisting of himself and four priests, has a limited jurisdiction in first instance. Such a court can only suspend for seven days unless with the sanction of the Holy Synod (Joyce, op. cit.).
The Holy Synod can only inflict temporary suspension, or imprisonment for fifteen days, unless with the sanction of the King’s ministry. Deprivation, or imprisonment for more than two months, requires the approval of the king (ib.). The king or the ministry do not, however, rehear the cause by way of appeal, but merely restrain severity of sentence (ib.).
The Church of Cyprus has been autocephalous since at any rate the oecumenical synod of Ephesus in 431. The episcopate now consists of an archbishop and three suffragans (Hackett, Orthodox Church in Cyprus, 1901, ch. v. et passim). The final court is the island synod, which consists of the archbishop, his suffragans and four dignified priests. It has original and exclusive cognizance of causes of deposition of bishops (op. cit. pp. 260, 262).
Each bishop is assisted by at least two officers with judicial or quasi-judicial powers, the “archimandrite” who adjudicates upon causes of revenue and the archdeacon who adjudicates on questions between deacons (op. cit. pp. 272-273). The “exarch” of the archbishop, who is a dignitary but not a bishop, has a seat in the provincial synod.
In the Balkan States, the system—inherited from Byzantine and Turkish times—of ecclesiastical jurisdictions prevails, except that they are now autocephalous, and independent of the patriarch of Constantinople. Matrimonial causes in Servia are of ecclesiastical cognizance (Lehr, op. cit. sect. 901).
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