Ecclesiastical jurisdiction

“ 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 ”

“ It is a power to execute ecclesiastical jurisdiction or duty through the whole earth, yet may be confined to dioceses, or parishes. No human authority can hinder those who are possessed of it from executing it ”

“ 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. ”

“ 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) . ”

“ 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. ”

“ 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. ”

“ Canon 116. “No churchwardens, questmen, or sidemen of any parish shall be enforced to exhibit their presentments to any having ecclesiastical jurisdiction above once in every year where it hath been no oftener used, nor above twice in every diocese whatsoever, except it be at the bishop’s visitation: provided always, that, as good occasion shall require, it shall be 798lawful for every minister, churchwardens, and sidemen, to present offenders as oft as they shall think meet: and for these voluntary presentments no fee shall be taken.” ”

“ As no ecclesiastical offence was too small for the Commissioners to deal with, and as their jurisdiction was not limited (like that of the ordinaries) to a district or a diocese, courts of High Commission may be called universal ordinaries. [170] Finally, if a person stood excommunicate over forty days, an ecclesiastical judge, on application to the diocesan, might procure against him out of Chancery the writ De excommunicato capiendo. ”

“ 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. ”

“ This denomination did not differ in point of doctrine from the church of England, or from the other puritans; but they apprehended that, according to scripture, every church ought to be confined within the limits of a single congregation, and have the complete power of jurisdiction over its members, to be exercised by the elders within itself, without being subject to the authority of bishops, synods, presbyteries, or any ecclesiastical assembly, composed of the deputies from different churches. ”

“ Besides the Probate Courts, the Mormons have instituted, as will presently appear, Ecclesiastical High Council under the Church authorities and the President, provided with ample powers of civil and criminal jurisdiction, and fully capable of judging between Saint and Saint. ”

“ As a term of ecclesiastical law “peculiar” is applied to those ecclesiastical districts, parishes, chapels or churches, once numerous in England, which were outside the jurisdiction of the bishop of the diocese in which they were situated, and were subject to a jurisdiction “peculiar” to themselves. ”

“ 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. ”

“ 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. ”

“ It cannot in any respect cease to be absolute. In Roman Catholic countries the state never possessed supreme authority in spiritual matters; therefore, in such countries, a supreme ecclesiastical tribunal may exist, co-ordinate with the civil authority. Independent spiritual is there compatible with independent civil jurisdiction. But, in Protestant countries, the Reformation placed spiritual jurisdiction in the hands of the nation, i.e., state; and, therefore, it has been impossible for the state, since that time, to part with spiritual jurisdiction. ”

“ The true prelacy is composed of the persons who constitute the ecclesiastical hierarchy; jurisdiction is inherent in their office and gives pre-eminence, as with patriarchs, archbishops and bishops. A good example of the dependence of prelacy on jurisdiction is found in those religious orders, such as the Dominicans, where authority is strictly elective and temporary. Thus a Dominican prior ranks ipso facto as a prelate during his three years of office, but, if not re-elected, loses this dignity with his jurisdiction. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The Holy See having supreme jurisdiction over all institutions within the Church, may appoint administrators for any ecclesiastical institution, according to its own judgment, without recourse or appeal against its action. ”

“ Ecclesiastical privileges were not so exclusively priestly privileges as we sometimes fancy. They sheltered not only ordained ministers, but all ecclesiastical officers of every kind; the Church Courts also claimed jurisdiction in the causes of widows and orphans. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Churches, on the other hand, whatever the varying principle on which the system is based, or the difference in its practical application, the essential conditions are that the ecclesiastical law is also the law of the land, the decisions of the church courts being enforced by the civil power. ”

“ 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. ”

“ 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. ”

“ There is no absolute necessity for such deputies in the Courts held before the Bishops and Archdeacons. Originally each Bishop seems to have been the supreme ecclesiastical judge in his diocese, and I see no reason why, when questions of civil rights are removed from the Church tribunals, the Bishops and Archdeacons should not resume their functions of presiding in person over causes ecclesiastical. ”

“ All these powers, however, do not belong to each Congregation. (See Roman Congregations.) Again, their decrees are particular or universal, according as they are directed to individuals or to the whole Church. Particular decrees, containing simply an authentic interpretation of a universal law, are called equivalently universal. Finally, most decrees are disciplinary, dealing with positive ecclesiastical laws, which they explain, or enforce, or dispense from; but some are doctrinal, e.g., those which declare a doctrine to be untenable, or an act unlawful because contrary to a divine law. ”

“ The “presbyteri plebei” or parish priests had the administration of all the sacraments and rites, except those reserved to the bishop,—such for instance as confirmation, ordination, the consecration of churches, the chrism, and the like: these were denied them, but they could baptize, marry, bury, and administer the communion. And gradually, as matter of convenience, they were invested with the internal jurisdiction, as it was called,—the “iurisdictio fori interni,”—that is to say confession, penance and absolution, but solely as representatives and vicars of the bishop [922] . ”

“ 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. ”