Walter George Frank Phillimore

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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 ”

“ 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) . ”

“ 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) . ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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.) . ”

“ 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. ”

“ 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. ”

“ 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. ”

“ A system begins to be formed, and the secular arm supports the decrees of the Church. The first trace of system Roman empire from Constantine.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. ”

“ 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) . ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 by administrative methods. This practice obtains in all missionary countries, e.g. Ireland and also in Belgium (S. B. Smith, Elements of Ecclesiastical Law, Modern jurisdiction
of Church of Rome.New York, i. 197 et seq.; p. 403 et seq.; Tauber, Manuale juris canonici, Sabariae, 1904, p. 277) . ”

“ 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) . ”

“ 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. ”