(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 hearplacita 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 (seeArchdeacon). 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 hisalter 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 (seeChancellor). 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 inR.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 bullRomana(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 (seeParhamv.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 archdeaconhad 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). Therecursus 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 ofprohibitionormandamus, 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. Theappellatio 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 therecursus ad principemand the practice of “cassation” in Belgium, Germany and Spain, cf. Van Espen’s treatise under this title (Works, vol. iv.) andJus eccles. univ.pars iii. tit. x. c. 4. Louis XIV. forbad the parlements to give judgment themselves in causes upon anappel 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 inUsages 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 (seede appell. c. Dilect.iii. for general rule, and c. 3de 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 pontiffomisso mediohad 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 Legatiin 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 appealsomisso 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 causesappealed 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 inReadv.Bishop of Lincoln, 14 P.D. 148, and Phillimore,Eccl. Law, pp. 66 et seq.).
(m) The jurisdiction of a bishopsede vacantepassed, 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 theReport of the Commission on Ecclesiastical Courtsseems 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 popeomisso medio. Thus when a writ ofsignificavitissued 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,—bysignificavitor 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., inMayor of Londonv.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 whichinfra), evocation of causes to Rome, appeals to Romeomisso 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 theirarrêts, 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 theappel 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 beforeor 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 infrankalmoignor “free alms,” by a “spiritual” tenure only, the claim of jurisdiction for the ecclesiasticalforumseems 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 concerningfabrics, ornaments, ritual and ceremonialof 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.
Thecriminal jurisdiction of courts Christian over laymenincluded, besides these “perjuries,” (a) allsexual offencesnot 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.
InFrance, 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 theappel 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 tomarriagethe 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, divorcea thoro(ibid.). Questions in regard to theproperty in a beneficewere for the courts Christian; in regard to itspossession, 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 oathwas matter for the court Christian (Fournier, pp. 95, 99, 109, 125). Thisbranch 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 inpersonal 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 thedélitsfollowing: 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 byappel 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 intopunishments(poenae), either purely temporal in character or else of a mixed spiritual and temporal character, andcensures(censurae), purely spiritual and remedial (see Van Espen, pars iii. tit. xl. cc. 1, 3; Phillimore,Ecclesiastical Law, p. 1064). In the book last citedcensuraeandpoenaeare 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 monasterycontinued 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)Suspensioneither from office alone or from office and benefice; (f)Deprivationof benefice; (g)DepositionorDegradation(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.
Censureswere as follows: (i)Suspensionfrom attending divine offices orab ingressu ecclesiae, more appropriate for a layman. A clerk in like case might be suspended from office. (j)Interdictwas 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 (seeInterdict). (k)Excommunicationwas 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 ofsignificavitto 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 ofsignificavitwas 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 theSext. 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. actedin 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 particularEcclesiastical 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 awayallappeals 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 (seeGorhamv.Bishop of Exeter, 15 Q.B. 52;Ex parte Bishop of Exeter, 10 C.B. 102;Re Gorhamv.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 originaljurisdiction 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;Rayv.Sherwood, 1 Curt. R. 193; 1 Moore P.C.R. 363; the observations of Kelly, C.B., inMordauntv.Moncrieffe, L.R. 2 Sc. & Div. 381, and of Lord Coleridge inMartinv.Mackonochie, L.R. 4 Q.B.D. 770, and, on the other hand, of Lord Penzance inPhillimorev.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 bysignificavitand writde 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 aprima faciecase, 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 (Greenv.Lord Penzance, 6 A. C. 657). The judge under this act became (upon vacancies occurring)ex officioofficial 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, seeReadv.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 andab intestatejurisdiction 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)Defamationwas 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 (Valancyv.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 offencesas 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 arecollegia licitaand come within the liberty of association so freely conceded inEcclesiastical jurisdiction in non-established churches.modern times. The relations of their bishops, priests or other ministers and lay office-bearersinter seand 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 conscientiaespiritual 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 thatRe 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 Sessionconsists 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) ThePresbyteryhas 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) TheProvincial Synodconsists 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) TheGeneral Assemblyis 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 ofpatronagenow (by 37 & 38 Vict. c. 82) belong to the Church courts; but not questions oflapseorstipend. 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 inProtestant 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 haveexercised 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 ofRoman 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 ofappel 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, anda fortioriwhere 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 divorcea 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 divorcea vinculomust be granted by their authority (Aichner,Compendium juris ecclesiastici, pp. 551-553).
By consent and submission of her members, the Roman Church decidesin foro conscientiaequestions 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 meredesservantsorvicaires, 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 theappel 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 adesservant, 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 isJurisdiction 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 ofcuréto that ofdesservant, and to deal with all members of the priestly or lower ordersModern 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”). Adesservanthas 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 anofficialis appointedeo 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 withoutspecialappointment (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,quametropolitan, 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 incausis 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, inConc. Ancyr. Can.xii., representingEastern 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 amajor causamay 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 becamede factoautocephalous (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).