COURTS
COURTS
it was customary, in case a controversy arose, to
appear Fxjfore the bishop and accept liis decision.
This was in accordance with the grave admonition
of St. Paul (I Cor., vi, 1), who urged the faitliful not
to appear as Utigants before the civil courts. Though
in such cases the bishops often assumed the role
of friendly arbiters rather than strict judges, we
should not infer that thej' never conducted a
strict trial. TertuUian (Apol., xxxix) furni.shes us
with information on this point in these words ad-
dressed to the pagans: "Ibidem [in ecclesia] etiam
exhortationes castigationes et censura divina: nam
et judicatur magno cum pondere, ut apud certos de
Dei conspectu", i. e. the Church is wont to warn
and punish, is a Divinely appointed censor, whose
weighty decisions are accepted as rendered in the
presence of God. Many similar utterances from
the Fathers and the councils could easily be cited.
It was, of course, impossible for the ecclesiastical
magistrates (the bishops) to make use at that time
of the legal solemnities introduced at a later period.
Though rather sununarj^ the judicial proceedings
of the primitive episcopal tribunals were trials in
the strict sense of the word. In the work of Bishop
Fessler concerning the early history of canonical
procedure (Der kanonische Process ... in der
vorjustinianisclien Periode, Vienna, 1S60) may be
found details of interest concerning the ecclesiastical
trials of Montanus, Origen, Fortunatus, Paul of
Samosata, Athanasius, and others.
When the Christians obtained control of the civil power of Rome, the reasons that moved St. Paul to persuade or command the faithful to avoid the civil tribunals were, of course, no longer pertinent. Gradually the Church allowed the faithful to submit their differences either to ecclesiastical or to civil tribunals. From the beginning of the new era the bishops shared with the secular magistrates the power of settling the disputes of the faithful. Con- stantine the Great published two constitutions (321, 3.31) wherein he not only permits laymen to have their cases tried before their bishops, but also decrees that all cases which until then were wont to be tried by the praetorian, i. e. by the civil, law should, when once settled before the episcopal courts, be considered as finally adjudicated. It was rightly established, however, that not all eases could be submitted to the civil courts, nor could all persons liave recourse to them. To decide a controversy the judge must first have jurisdiction over the matters in cjuestion and the parties engaged in the controversy. A private individual, for instance, could not hand down a decision, nor could he compel otliers to abide by it. In the case of a secular judge, his jurisdiction comes from the civil authority. In purely spiritual matters the latter is powerless, since God has committed them exclusively to the Churcli. In this domain the civil power has neither legislative nor judicial authority. Whatever, therefore, concerns the Faith, Divine wor- ship, the sacraments, or ecclesiastical discipline is foreign to the civil order. With regard to such matters the Church has ever asserted her exclusive judicial authority [c. 1, dist. 96; c. 8, de arbitriis, X. (I, 43); c. 2, de judiciis, X. (II, 1)]. This solemn contention of the ecclesiastical power was recognized and confirmed by the Roman emperors in their civil constitutions [Cod. Theod.. de religione (XVI, 2), an. 399; VII, De episcop. audientia, C. (I, 4)]. Like- wise, not all persons are to be judged by secular courts. The Church could not permit lier clergy to be judged by laymen; it would be utterly unbecoming for persons of superior dignity to submit tliemselves to their inferiors for judgment. The clergy, there- fore, were exempt from civil jurisdiction, and this ancient rule was sanctioned by custom and confirmed by written laws. On this point the Cliurch h.as always taken a firm stand; concessions have been
wrung from her only where greater evils were to be
avoided. Thus, in Christian antiquity, a Council of
Aquileia condemned the bishop, Palladius, for de-
manding a civil trial, and a Council of Mileve decreed
that clerics who strive to bring their lawsuits or
disputes before secular judges should be deprived of
their clerical dignity and removed from their offices.
Innocent III reprehended the Archbishop of Pisa
[c. 12, De foro competenti, X. (II, 2)] for maintaining
that at least in temporal matters a cleric could
renounce his right of exemption and appear before
a secuhir court. Such action, said Innocent, was
unlawful even when the conflicting parties agreed to
submit the matter to civil magistrates. The eccle-
siastical exemption was not a personal privilege; it
belonged to the entire ecclesiastical body and could
not be renounced by individuals.
Matters purely spiritual, as explained above, fall within the exclusive jurisdiction of ecclesiastical law. In addition to these there were in the past, and are still, cases in which the natural and spiritual elements are so conjoined, as Lega remarks in his excellent work " De judiciis ecclesiasticis ". that they take on juridically another nature and give rise to different rights. To make this clearer, the author, in addition to the example drawn from certain effects of matri- mony, borrows from the ancient canonists the illus- tration of a contract entered into by lay persons and confimied by oath. Here, to the obligation of justice is added that of religion, and we easily recognize a twofold juridical element, bringing the matter in question, at least as far as the value or execution of the contract is concerned, mtliiii the ecclesiastical as well as the civil domain. Were it a quest ion only of the value of the oath, the matter would, of course, be a purely spiritual one. There is another order of cases in which the issues are purely temporal. Over these the Church never claimed an essential right to the exclusion of civil power. Even in the Middle Ages she recognized the principle that ecclesiastical judges are incompetent in such cases unless urgent necessity or custom should require otherwise. If, in medieval times, the Church exercised jurisdiction in regard to the temporal concerns of orphans, widows, or other persons of unfortunate condition, no equitable mind will see tlierein a usurpation of civil jurisdiction on the part of the ecclesiastical authorities. The true and adequate explanation lies in the peculiar neces- sities of the age, the deficient administration of justice, and the undue power exercised by the rich and mighty. Rather does it redound to the honour of the Cliurch that she tlien assumed the defence of the poor against the wealthy and powerful, and came to the aid of those who were deprived of all human help. It must also be mentioned that in medieval and later times ecclesiastical magistrates were often vested wdth ci\"il power legitimately acquired, and exercised it, not as ecclesiastics, but as civil magis- trates.
III. The Subject op Judici.\1i Power in the Church. — Since the judicial power flows from the legislative, it is clear that the former resides primarily and chiefly in tho.se who possess the latter. The common welfare, evidently, does not require that every person endowed with legislative power in a social organization should therefore enjoy the fullness of such power; so also it is obvious that not every one possessed of judicial power in a society h;us at once the right to exercise it upon all membci-s of that society. It was this exigency of the common welfare that made it necessan.' to fix the limits of the jurisdiction of magistrates even in civil societies. We know, for instance, that in primitive Roman society there was in every district one magistrate who was supreme, and who had undivided jurisdiction in the pro\'ince allotted to him, but none beyond its limits [Bks. 1 and 9,Deoff.proc.,D. (1,10)]. "This first limitation of the
