Ecclesiastical law

“ 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. ”

“ Although many things are introduced here in the topic of Ecclesiastical Power, with greater bitterness than is just, yet it must be declared that to most reverend bishops and priests, and to the entire clergy, all ecclesiastical power is freely conceded that belongs to them by law or custom. ”

“ From the time of the Reformation no change has been made in the law of the Church which has not been made by the king and parliament, sometimes indirectly, as by confirming the resolutions of convocation, but for the most part by statute. The list of statutes cited in Sir R. Phillimore’s Ecclesiastical Law fills eleven pages. It is only by a kind of legal fiction akin to the “collegial” theory mentioned above, that the Church can be said to have deemed it expedient to adopt these laws. ”

“ 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 first principle of the ecclesiastical law in England is the assertion of the supremacy of the crown, which in the present state of the constitution means the same thing as the supremacy of parliament. This principle has been maintained ever since the Reformation. Before the Reformation the ecclesiastical supremacy of the pope was recognized, with certain limitations, in England, and the Church itself had some pretensions to ecclesiastical freedom. The freedom of the Church is, in fact, one of the standing provisions of those charters on which the English constitution was based. ”

“ It presents the sources of the law, the Church’s organization and administration, the ordination and ranking of the clergy, the election and consecration of bishops, the authority of legates and primates. The second part treats of the procedure of ecclesiastical courts, also the law regulating the property of the Church, the law of monks and the contract of marriage. The third part is devoted to the Sacraments and the Liturgy.
Gratian’s usual method is as follows: He will open with an authoritative proposition. If he finds it universally accepted, it stands as valid. ”

“ 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. ”

“ 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 theologians or divines divided with the canonico-civilians the authority of the ecclesiastical jurisdiction: the character of a bishop in itself was that of a divine, not of a lawyer, and we might almost say that whilst questions of application of law and procedure belonged to the lawyer, the interpretation was claimed for the divine. In cases of heresy, for instance, the theologians formulated the definition, whilst the canonists and civilians examined the teaching of the accused and determined how far he had contravened the definition. ”

“ 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. ”

“ Such alterations or modifications as have, practically, been made and accepted by the Church and Realm, have been effected by enactments external to the Prayer-book. Injunctions, canons, statutes, judicial decisions, have from time to time been allowed, nemine contradicente, to interpret or even contravene particular provisions of the Book. And, not least of all, custom itself has, in not a few particulars, acquired the force of law, and though not as yet engrossed in any legal document, has long been, in practice, part and parcel of our ecclesiastical polity. ”

“ Council of Nicæa.
An ecumenical council was a new experiment. Local councils had long since grown to be a recognised organ of the Church both for legislation and for judicial proceedings. But no precedent as yet prescribed, no ecclesiastical law or theological principle had as yet enthroned, the ‘General Council’ as the supreme expression of the Church’s mind. ”

“ 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 Catholic is not only a believer in certain dogmas, but a subject of a great ecclesiastical hierarchy. He is governed throughout the whole sphere of conduct by an elaborate code of law, the administration of which is confided by the Church to the confessor. The confessor must have some definite rule to estimate the importance of sins and to know the conditions of pardon. ”

“ It may be supposed, that, as a matter of conscience and subjection to ecclesiastical superiors, a Catholic population would in general conform to the usages of the Church. But such conformity would be no evidence of the change of the law by the civil power. ”

“ By ministering in temporal things we mean attending to the tithing, caring for the poor, and when the law of consecration shall be observed by the church, the bishops will receive the consecrations, settle people on their possessions, divide their inheritances unto them, [47] keep the Lord's store-house, etc. [See note 3, end of section] .
II. The bishops are also to be judges among the people, to sit in judgment on trangressors, to hear testimony and give decisions according to the laws of the kingdom which are given by the prophets of God. ”

“ Reflections.—Such is the law of consecration and stewardship given to the church as early as the first and second year of its existence in this last dispensation; under which law, and under no other, the Saints are to build up the Zion of God, the New Jerusalem upon this continent. [78] The law is designated to humble the rich and the proud and raise the poor and the lowly, [79] that men might be equal in temporal possessions according to their families, their circumstances, their wants and their needs. ”

“ 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 command, among other things, the use of all the ecclesiastical laws and canons which were in use in Henry VIII.'s time, not being directly contrary to the laws of the realm; the disuse by the bishop of the phrase 'regia auctoritate fulcitus,' and of the oath of supremacy; the deprivation or divorce of all married clergy; and rigid care on the part of the bishops for the exclusion of all Sacramentaries and other heretics from holy orders. ”

“ 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. ”

“ 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. ”

“ But we, and almost all Bishops of the Catholic world, teach another doctrine. We teach that the ecclesiastical power is indeed higher than the civil, but that each is independent of the other, and that while sovereigns are subject to the spiritual penalties of the Church, she has no power to depose them or absolve their subjects from their oaths of allegiance. And this is the ancient doctrine, taught by all the Fathers and by the Popes before Gregory vii. ”

“ Have the laity no rights in the liturgy which the clergy are bound to respect? When and where did the Protestant Episcopal Church confer on its ministers a general dispensing power over the ordinances of worship which it withheld from the body of the faithful?
Heretofore it has been held that when a layman went to church he had a right to expect certain things guaranteed him by the Church's law. If all this has been changed, then formal notice ought to be served upon us by the General Convention that such is the fact. ”

“ As the real founder of the ecclesiastical state, he must be held mainly responsible for the evils which resulted from the policy of the church in exalting the ecclesiastical over the secular authority. ”

“ If we regard the Constitutions as a production of the third century, (containing remnants of earlier compositions,) the work possesses a certain kind of value. It contributes to give us an insight into the state of Christian faith, the condition of the clergy and inferior ecclesiastical officers, the worship and discipline of the Church, and other particulars, at the period to which the composition is referred. The growth of episcopal power and influence, and the derivation of the episcopal authority from the apostles, is here clearly shown. ”

“ 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 ”

“ Whereupon oftentimes the worldly princes do grant the bare use of the church, and oftentimes use power to exercise justice, which the clergy cannot; exercise by any ecclesiastical minister, or any other person of the clergy. ”

“ God hath commanded, that unto the civil power every soul, or all members of the commonwealth, of what condition and estate soever, be subject; for what have we to do with the Papists, who will have them whom they call the clergy or ecclesiastical persons, to be free from the yoke of the civil magistrate? The ecclesiastical power extends itself to none other subjects than unto those which are called brethren, or members of the church. ”

“ And the Church, on her part, the above principle having been adopted by the State, acknowledged in the head of that State, the King, her temporal head; investing him with that general supremacy in ecclesiastical affairs, which he already possessed in civil. But we are not thence to infer that she gave, or that she could give, to an earthly monarch, or to his temporal legislature, the right to interfere with things spiritual, with her Doctrines, with her Liturgy, with the ministration of her Sacraments, or with the positions, relative to each other, of her Bishops, Priests, and Deacons. ”

“ While it is evident that the spiritual jurisdiction of the bishops was in no degree diminished, and, indeed, that it must have gained by the exercise of judicial functions by archdeacons, the clergy, besides being under the bishop’s law, were subject to the general police arrangements of the kingdom, and were equally with laymen bound to provide sureties for their orderly behaviour. In every respect the Church had a national character ”

“ 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. ”

“ If they will pay money they will surrender power: a form of three articles is sent to Convocation in 153a by which the clergy are to renounce their right of spiritual legislation without royal licence, and consent to a reform of the canon law under the king's authority. ”

“ And so this author is correct in saying that the church with Catholics comes first, and not the Bible; for the church embraces the Bible, which is only the written document of the laws and ordinances of God to man, the letter of the law resting in the hands of the government which has charge of it, but that government itself subject to the law. ”