Church court

“ I submit that the Ecclesiastical Courts so constituted would be fitting tribunals for deciding any questions which might arise between the Church of England laity or their Churchwardens and the Archdeacon, upon the repair of the fabric; matters of fact being referred to a jury of five persons at the option of the parties, as in the County Courts, and points of law decided by the Bishop, without appeal, excepting upon questions certified by him, and these latter to be heard, and finally determined in the Metropolitan Court of the province. ”

“ Clerks charged and accused of anything, being summoned by the Justice of the King, shall come into his court, about to respond there for what it seems to the King's Court that he should respond there; and in the ecclesiastical court for what it seems he should respond there; so that the Justice of the King shall send to the Court of the Holy Church to see in what manner the affair will there be carried on. And if the clerk shall be convicted, or shall confess, the Church ought not to protect him further. ”

“ Much discussion has arisen upon a fourth source of Church law, namely, the decisions of our ecclesiastical courts. It is important to draw a clear distinction between legislative and judicial functions. A court, whether ecclesiastical or civil, has nothing to do with enacting laws. ”

“ The church, like the court or the supreme executive, may make her own rules and orders—what are called the orders and rules of court, for the purpose of carrying out the intent of the law—but she no more makes the law than does the civil court make the law under which it is constituted, and which it administers. ”

“ That in so far as the law can regard them, the powers of the church judicatories are derived solely from the consent of the members of the church, as expressed in their fundamental law; that they are not 'courts' and have no 'jurisdiction' in the strict sense of the terms-these terms necessarily implying the existence of a power conferred by and vested in functionaries of the state. They are not 'courts' except of the parties' own choosing. ”

“ But 230when this petition was filed in the court below, and acted upon by that court without notice to anybody, and the names of trustees used without their consent, a large portion of the Church was uncharitable enough to suppose that advantage was sought and wrong intended. Besides, this court having large experience in the affairs of men will readily see that action by our courts in church cases gives great encouragement to discontented and litigious persons to annoy the Church with fruitless legal proceedings, and thus retard its progress in its great work of mercy and benevolence. ”

“ And according to the American rule, where the subject-matter of dispute, inquiry, or decision is strictly and purely ecclesiastical in its character, it is a matter over which the civil courts should not exercise any jurisdiction—a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them, the civil court has not and should not have any jurisdiction. ”

“ And though each particular church in respect of the government of Christ be independent and absolute within itself, yet where the commonweal consists of church members, it may be a point of Christian wisdom to consider and consult with the court also, so far as any thing may seem doubtful to them in the magistrate’s case, which may be further cleared by intelligence given from them; but otherwise we dare not leave it in the power of any church to forbear to proceed and agree upon that on earth, which they plainly see Christ hath resolved in his word, and will ratify in heaven. ”

“ The command—"Put away from among yourselves that wicked person," is addressed to the people, as well as to the ministry; and all Christ's disciples should feel that, in vindicating the honour of His name, they have a common interest, and share a common responsibility. Every one cannot be a member of a church court; but every one can aid in the preservation of church discipline. He may supply information, or give evidence, or encourage a healthy tone of public sentiment, or assist, by petition or remonstrance, in quickening the zeal of lukewarm judicatories. ”

“ Also, in States where a person who is interested in a matter is not a competent witness, in the absence of a different rule in the church, the same rule would apply in the church tribunal.371
208. Catholic Discipline.—A church member has no right to sue any one in holy orders in the civil court without leave. That is, a layman or priest should obtain leave of the bishop to sue a priest. In some countries it is ground for excommunication to violate the rule. ”

“ The Conqueror declared the union of civil and ecclesiastical jurisdiction to be mischievous, and provided that henceforth no bishop or archdeacon should sit in the hundred court; that all spiritual causes should be tried by the bishop in his own court and be determined according to the canons, and that if any one disobeyed the bishop’s summons and remained contumacious after excommunication, he should be brought to obedience by the king or the sheriff. ”

“ As to a purely ecclesiastical Court of Appeal, in the present state of the Church both in England and all over the world, it ought to console those who must be well aware that here at least it is hardly to be looked for, to reflect how such courts act, after all, where they have the power to act, and how far things would have gone in a better or happier fashion among us if, instead of the Privy Council, there had been a tribunal of divines to give final judgment. ”

“ Similarly, where the identity of the governing body or bodies that exercise general authority within a church is a matter of substantial controversy, civil courts are not to make the inquiry into religious law and usage that would be essential to the resolution of the controversy. ”

“ Every clergyman who refused to conform to the Prayer Book, or opposed the placing of the communion table at the east end of the church, or declined to bow at the name of Jesus, was, if obstinate, to be brought before the king's special Court of High Commission to be tried and if convicted to be deprived of his benefice. ”

“ When a civil right depends upon an ecclesiastical matter, it is the civil court and not the ecclesiastical which is to decide. But the civil tribunal tries the civil right, and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds them.' The principle is reaffirmed by the same court in the John's Island Church Case. ”

“ Besides the functions exercised in virtue of their order, bishops are also empowered by law to exercise a certain jurisdiction over all consecrated places and over all ordained persons. This jurisdiction they exercise for the most part through their consistorial courts, or through commissioners appointed under the Church Discipline Act of 1840. By the Clergy Discipline Act of 1892 it was decreed that the trial of clerks accused of unfitness to exercise the cure of souls should be before the consistory court with five assessors. ”

“ Many an immoral minister has maintained his position, and has thus continued to bring discredit on the gospel, simply because those who had witnessed his misconduct were induced to suppress their testimony; and many a church court has been prevented from enforcing discipline by the clamours or intimidation of an ignorant and excited congregation. ”

“ Creed, Factions, Property, Management.—The supreme court exercises no ecclesiastical jurisdiction, but accepts what the highest ecclesiastical authority in each church promulgates as the faith and practice of that church, and will not determine for itself what that faith or creed is in order to establish the rights of respective factions in the church to the church property. ”

“ But it would have been more satisfactory if, in reviving a long-disused power, the Archbishop had been able to go behind the Watson case, and to show more certainly that the jurisdiction which he claimed and proposed to exercise in conformity with that case had, like the jurisdiction of other great courts of the Church and realm, been clearly and customarily exercised long before that case.
The appearance of this great tribunal among us, a distinctly spiritual court of the highest dignity, cannot fail to be memorable. It is too early to forecast what its results may be. ”

“ How does it appear that inferior courts are subordinate to those that are superior; sessions to presbyteries, and presbyteries to synods?
Ans. The true light of nature (which is proved, chap, iii., to be one of those ways, whereby a thing is of divine right) teacheth us, that, if we be injured by an inferior court, we may appeal to a higher court for redress, if there be one. As in the Jewish church there was evidently a subordination of judicatories, so that those injured in the synagogue might appeal to the Sanhedrin, Deut. ”

“ In March of 1635-36 the Court "entreated them (the elders) together with the brethren of every church within the jurisdiction, to consult and advise of one uniforme order of discipline in the churches agreable to Scriptures, and then to consider how far the magistrates are bound to interpose for the preservation of that uniformity and peace of the churches." [31] The desire of the Court grew in part out of the influx of new colonists, who did not like the strict church discipline, and in part out of the tangle of Church and State during the Roger Williams controversy. ”

“ The royal placet or right of permitting or refusing, is required for all clerical enactments which are not purely inter-ecclesiastical but refer to mixed matters; the theological endowments are subject to state control and joint administration; boys’ seminaries are not allowed; clergymen appointed to office must submit to state examination; according to consuetudinary rights, about two-thirds of the benefices are filled by the king, one-third by the bishops on reporting to the civil court, which has the right of protest; clergy who break the law are removable by the civil court, etc. ”

“ Their talents may be different, their calling and gifts various, but no one member can say to another, 'I have no need of you.' To take the church as a whole, if it were proper to use the term 'tribunal,' we should have no objection to saying it was the highest tribunal on earth, that is, there is no earthly court that has a right to control its decisions, and there is no earthly court to which it can appeal. ”

“ The anomaly of such a court can hardly be denied, both as a matter of theory and—supposing it to matter at all what Church doctrine really is—as illustrated in some late results of its action. It is still more provoking to observe, as Mr. Joyce brings out in his historical sketch, that simple carelessness and blundering have conspired with the evident tendency of things to cripple and narrow the jurisdiction of the Church in what seems to be her proper sphere. The ecclesiastical appeals, before the Reformation, were to the ecclesiastical jurisdiction alone. ”

“ Again, secular and ecclesiastical judges had concurrent jurisdiction over church attendance, and—at any rate between 1572 and 1597 [3] —over the care of the parish poor. Finally, it must not be supposed that the men who actually sat as judges in the archdeacon's or the bishop's court were necessarily in orders. In point of fact a large proportion, perhaps a large majority of them, were laymen, since the act of Henry VIII in 1545 permitted married civilians to exercise ecclesiastical jurisdiction. ”

“ This case belongs to a class, happily rare in our courts, in which one of the parties to a controversy, essentially ecclesiastical, resorts to the judicial tribunals of the State for the maintenance of rights which the church has refused to acknowledge, or found itself unable to protect. Much as such dissensions among the members of a religious society should be regretted, a regret which is increased when passing from the control of the judicial and legislative bodies of the entire organization to which the society belongs, an appeal is made to the secular authority ”

“ Charities are left free for the exercise of the jurisdiction of the courts, according to the intention of the testator, disregarding defects of form or designation of a party to take, and a devise to the church is transferred to the parson where the church cannot take in mortmain. ”

“ That the testator had been for many years a member and ruling elder of the Irish Grove Presbyterian Church, one of the local congregations of the Presbyterian Church in the United States of America; that collections were annually taken up in that congregation for the various boards of that church, including its Boards of Foreign and Home Missions ”

“ Then again, the new certificate law did not relieve the dissenters who lived too far from their churches to ordinarily attend them from petty fines and from court wrangles as to the justice of them, for with the judges lay the determination of what the words "far" and "near" and "ordinarily do attend" in the laws meant. [b] The important question of how many absences from church would prevent a man from claiming that he was a regular attendant was thus left in the hands of judges, who were for the most part prejudiced or partial. ”

“ The case turned upon certain rights in the use of the church property claimed by the minister notwithstanding his expulsion from the synod as one of its members. 'He stands,' says the chancellor, 'convicted of the offences alleged against him, by the sentence of the spiritual body of which he was a voluntary member, and whose proceedings he had bound himself to abide. It belongs not to the civil power to enter into or review the proceedings of a spiritual court. ”