Ecclesiastical court

“ Every Christian man who has attained his majority is bound to attend the ecclesiastical court in the bishopric in which he lives three times a year. Three classes of people are exempt from this: The Schoeffenbar free shall attend the court of the bishop; the Pfleghaften shall attend the court of the præpositus of the cathedral, and the Landsassen shall attend the court of the archpriests.
They shall also all attend the civil courts. The Schoeffenbar free shall attend the burggrave’s court [also called the advocate’s court] every eighteen weeks. In it judgment is given under the king’s ban. ”

“ 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. ”

“ 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 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. ”

“ We are indeed surprised to find a lawyer of great professional reputation attributing to the established clergy of the Church of Scotland a desire to arrogate to themselves the functions of the Church of Rome, whilst, in the same breath, he asks the legislature to constitute itself into an ecclesiastical court, and to enact new preliminaries, without the observance of which there shall henceforward be no marriage at all. ”

“ 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. ”

“ 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. ”

“ The canonists affirm that a suit may be brought in the ecclesiastical court for every matter which is not cognisable in the courts of secular law, and for a great many matters which are so cognisable. There is surely an ample claim. ”

“ Every bishop has his consistory court held before his chancellor or commissary, in his cathedral church, or other convenient place of his diocese, for ecclesiastical causes. In the Church of England, before the Norman Conquest, the ecclesiastical jurisdiction was not separated from the civil ”

“ 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. ”

“ For an ecclesiastical offence, on the other hand, he will be tried in the court Christian. The king reserves to his court the right to decide what offences are temporal, what ecclesiastical; also he asserts the right to send delegates to supervise the proceedings of the spiritual tribunals. ... Let us attempt a rival commentary. The author of this clause is not thinking of two different classes of offences. The purely ecclesiastical offences are not in debate. No one doubts that for these a man will be tried in and punished by the spiritual court. ”

“ But I think it right to point out to you that in the event of a jury finding an adverse verdict, the bishop might be placed in great difficulty unless he were fortified with the opinion of a commission formed from your fellow clerical labourers in the diocese. Should such adverse verdict unfortunately be given, the bishop would hardly be justified in allowing a clergyman placed as you then would be placed, to return to his cure after the expiration of such punishment as the judge might award, without a further decision from an ecclesiastical court. ”

“ 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. ”

“ In the case of an independent congregation we have pointed out how this identity, or succession, is to be ascertained, but in cases of this character we are bound to look at the fact that the local congregation is itself but a member of a much larger and more important religious organization, and is under its government and control, and is bound by its orders and judgments. There are in the Presbyterian system of ecclesiastical government, in regular succession, the presbytery over the session or local church, the synod over the presbytery, and the General Assembly over all. ”

“ 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. ”

“ No chancellor, commissary, archdeacon, official, or any other person using ecclesiastical jurisdiction, shall substitute in their absence any to keep court for them, unless he be either a grave minister and a graduate, or a licensed public preacher, and a beneficed man near the place where the courts are kept, or a bachelor of law, or a master of arts at least, who hath some skill in the civil and ecclesiastical law, and is a favourer of true religion, and a man of modest and honest conversation ”

“ It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.' 13 Wall., at 728-729. ”

“ 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. ”

“ They could in all cases command the doing, as well as the giving [181] of a thing—powers far more extensive than those possessed by any court of equity of today. Lastly, it was their custom to require that a return be made in court, or in other words, a certification, that their commands had been duly performed—thus stamping them as true administrative bodies. It was inevitable from the nature of their jurisdiction and procedure that abuses should be committed both by ecclesiastical judges and by their officers, such as registrars, proctors and apparitors. ”

“ 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. ”

“ It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. ”

“ That in the use of the property for all religious services or ecclesiastical purposes, the trustees were under the control of the church session. 3. That by the constitution of all Presbyterian churches, the session, which is the governing body in each, is composed of the ruling elders and pastor, and in all business of the session the majority of its members govern, the number of elders for each congregation being variable.
The trustees obviously hold possession for the use of the persons who by the constitution, usages, and laws of the Presbyterian body, are entitled to that use. ”

“ Laud indeed intended to establish for ever the unassailable authority of the ecclesiastical jurisdiction, just as he had emancipated afresh the ecclesiastical courts from the influence of the temporal: but without doubt he undermined it; for no one has ever insulted natural human feelings with impunity. His idea was conformity at any price, subordination of the people to the clergy, subordination of these latter to their own chiefs, and of all to the King. ”

“ Cases of doctrine, and cases of discipline, unsatisfactorily litigated in the lower courts, came up before this tribunal of delegates for final review and decision. The constitution of the court was remarkable. Although exercising a supreme ecclesiastical jurisdiction, the lay element preponderated. Of the fifty-one Commissions between 1660 and 1688, two were composed of Bishops and Civilians; eighteen included Bishops, Judges, and Civilians; one contained Peers, Bishops, Judges, and Civilians; eleven of the Commissions were directed to Civilians only, and nineteen to Judges and Civilians. ”

“ 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) . ”

“ The intention of the present Government, announced by the Solicitor-General on the 6th of April last, to introduce a measure for the reform of the Ecclesiastical Courts, induces me to address you upon a subject of deep interest to the Church of England and scarcely less important to the nation at large.
There are few who do not acknowledge the necessity of some reform, even while they would preserve the existing tribunals ”

“ 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 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) . ”

“ But if dissatisfied parties neither take an appeal to the high council nor comply with the bishop's decision, then they stand in danger of losing their fellowship in the church, for if men will not respect the decisions of the ecclesiastical courts, then the officers thereof must vindicate their decrees and make the courts respected by punishing those who would treat them with contempt. ”