Ecclesiastical judge

“ No churchwardens, questmen, or sidemen, shall be called or cited, but only at the said time or times before limited, to appear before any ecclesiastical judge whatsoever, for refusing at other times to present any faults committed in their parishes, and punishable by ecclesiastical laws. ”

“ The Right of Entertaining Appeals in All Ecclesiastical Causes The Council goes on to affirm that the pope is the supreme judge of the faithful, and that to him appeal may be made in all ecclesiastical causes. The right of appeal follows as a necessary corollary from the doctrine of the primacy. If the pope really possesses a supreme jurisdiction over the Church, every other authority, whether episcopal or synodal, being subject to him, there must of necessity be an appeal to him from all inferior tribunals. ”

“ In 399, L. 1 Cod. de Religione provides that, when it is a matter of religion, it beseems the bishop to judge. A rescript of Constantius, in 355, inserted in Cod. Theod. lxii. de Epis. Ecc. et Cler., excluded bishops from accusations before secular judges and commanded such accusations to be speedily brought before the tribunal of other bishops. ”

“ 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. ”

“ The supreme judge in the matter is the pope himself. The postulator, who is the mandatory of a diocese or ecclesiastical commonalty, is the solicitor. He must furnish the proofs, which are collected according to very stringent rules. ”

“ 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. ”

“ We and our subjects have for a long time been annoyed and troubled beyond measure by the ecclesiastical judges who hear cases which do not belong under their jurisdiction. For although they are only ecclesiastical judges, they hear ecclesiastical and secular cases. ”

“ A bishop or cleric who has a criminal suit brought against him, if he leaves the Church and betakes himself to secular judges even if he had been unjustly used, shall lose his rank. And if he was successful in his political affairs, if he follows this, he shall lose his own grade. No appeal can be taken from the ecclesiastical judges, except they be proved to have given their decision beforehand moved thereto by a bribe or by hatred. No appeal can be taken from the decision of judges chosen by each side. ”

“ In the projected reconstruction the ultimate end, the restoration of facts, would always include these cardinal points. Every man and every woman in Christendom, and, by a due extension of "the kingdom of God," every man and every woman living, must be bound by law to appear, at the least annually, in the internal tribunal of the Church, the confessional. In order to this, every civil magistrate must be set in obvious and in practical subordination to the ecclesiastical magistrate or bishop, by the subjection of the civil court to the external tribunal of the Church, the ecclesiastical court. ”

“ To settle difficulties, then, which may arise between members on the one hand, and to enforce church discipline on the other, there exists in the church an ecclesiastical judiciary system, that is most admirably adapted to answer the purposes for which it exists. ”

“ 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. ”

“ He may grant and protect the public exercise of that power within his dominions; but designation of particular persons to the office and power, is from the Church; the donation of the office and power only from Christ himself. So that magistracy doth not formally nor virtually comprehend in it ecclesiastical power for church government; for a magistrate, as a magistrate, hath no inward ecclesiastical power at all belonging to him. ”

“ They are, indeed, judges empowered to decide whether a doctrine is in conformity with generally received dogma, but as individuals they cannot make a dogma or law of Faith. They wield the executive, not the legislative power. In short, although the Bishops are pre-eminently witnesses and doctors and, within certain limits, also judges of the Faith, yet their Head, the Pope, has the distinctive attributes of supreme promulgator of doctrine, universal judge in matters of Faith, arbiter in controversies of Faith, and “Father and Teacher of all Christians” (Council of Florence) . ”

“ Pope Gelasius [2] a most brave assailer of heretics, says: "I ask for the tribunal to which they lay claim. Where can they carry their cases? Before those who are enemies and at the same time witnesses and judges? But to such a tribunal no human business should be committed. And if to a tribunal, where enemies are the judges, no human business should be carried, how much less ought cases of divine import, that is, ecclesiastical cases be carried! He that is wise, let him understand. ”

“ But if any magistrate, invested with judicial functions, has either decided unjustly, or has imposed a wrongful sentence upon any one, then the bishop in whose diocese this has been done, shall summon the judge who is alleged to have acted unjustly, and shall render a just decision, sitting along with him, in the presence of ecclesiastics, or other persons of respectability. ”

“ It is true we know very little about ecclesiastical procedure before this date, and what we do know is not very clear; we may however affirm pretty confidently that there was, over and above the strictly private discipline of the Confessional, a system of church judicature with properly designated judges, and a recognised though not well-defined area of subject-matter in persons and things. ”

“ 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. ”

“ 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. ”

“ Suits to determine the right of presentation to a living even between two clerks must be tried in the king's court, as also suits to determine whether a given fee was held in free alms or as a lay fee. None of the higher clergy were to go out of the kingdom without the king's permission, nor without his consent were appeals to be taken from ecclesiastical courts to the pope, his barons to be excommunicated or their lands placed under an interdict. ”

“ 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. ”

“ In matters ecclesiastical we believe, first, that civil magistrates have no power to make or constitute laws about church affairs, which the Lord Jesus hath not ordained in his word for the well-ordering of the church; for the apostle solemnly chargeth Timothy, and in him all governors of the church, before God and the Lord Jesus Christ, who is the only Potentate, the King of kings and Lord of lords, that the commandment given by him for the ordering of the church be kept without spot, unrebukeable, to the appearing of the Lord Jesus Christ, 1 Tim. ”

“ 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 ”

“ 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 appeals under the Clergy Discipline Acts three bishops sit as assessors. In colonial Admiralty appeals two nautical assessors attend. These assessors are merely technical advisers, and have no part in any decision. Appeals also lie from consular courts and prize courts. The decisions of ecclesiastical courts are subject to review by the committee, the sovereign being the “supreme governor” of the Church, but no appeal is competent where the case is one for the exercise of the bishop’s discretion. ”

“ 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. ”

“ As access to the church courts is the Concillar Courts.right of all, and involves but slight expense, the liberty of even the humblest member of the Church is safeguarded, and local oppression or injustice is rendered difficult.
The weak point in the system is that episcopal superintendence being exercised in every case by a plurality of individuals there is no one, moderator or senior member, whose special duty it is to take initial action when the unpleasant work of judicial investigation or ecclesiastical discipline becomes necessary. ”

“ And here we may observe, that while this church and nation contended for the obtaining of a legal establishment of the ecclesiastical polity, they were no less concerned to have that other distinct ordinance of GOD, civil magistracy, unalterably settled, in agreeableness to the rule of GOD'S word. ”

“ Besides these, there are the exceptional tribunals, which are very numerous. Among them the chief is the ecclesiastical jurisdiction, so extensive, that it is sufficient that some very trifling interest of a priest, or of some charity fund, or even of a Jew or a recent convert, is concerned, to transfer the cause to the bar of the privileged tribunal. The jurisdiction of the exceptional tribunal is exercised in the provinces by the vicar-general of the bishop; and in Rome the suits are laid before the private auditors of the cardinal-vicar, and of the bishop in partibus, his assistant. ”

“ And so, when courts are called upon to adjudicate disputes which, though generated by conflicts of faith, may fairly be isolated as controversies over property and therefore within judicial competence, the authority of courts is in strict subordination to the ecclesiastical law of a particular church prior to a schism. ”

“ It is necessary that a minister of the gospel ‘be blameless’––no drunkard, no swindler, no thief, no grossly obscene person; nor can any supposed flaw in the constitution of an ecclesiastical court disannul the necessity. A man may sit in that court in a judicial capacity whose competency to take his seat there may not have been determined by some civil court that challenges for itself an equivocal and disputed right to decide in the matter. ”

“ 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. ”