Ecclesiastical tribunal

“ 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. ”

“ 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. ”

“ Since the separation of the bishops from the secular courts by the Conqueror, a gross system of abuse had arisen under which all persons who could read and write could claim exemption from the jurisdiction of the ordinary secular courts, and insist on being tried only before their own ecclesiastical tribunal. ”

“ 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. ”

“ With the growth of the papal power there grew up also a desire among the clergy to liberate the administration of ecclesiastical law from the control of secular courts, and the spirit of Innocent may be discerned in Grosseteste’s argument, that it was sinful for secular judges to determine whether cases belonged to an ecclesiastical or a secular tribunal. The study of the civil and canon laws was eagerly pursued; it was stimulated by the influence of the large number of foreign ecclesiastics, and even common lawyers found in it a scientific basis for their own law. ”

“ Little remains to be said as to the activity of the tribunal in its appropriate sphere, although its contributions from time to time to the Suprema show that it occasionally obtained some wealthy penitent to strip, among the inconspicuous mass of blasphemers, bigamists and sorceresses. Its energies became more and more devoted, during the remainder of the century, to internal dissensions and quarrels with the secular and ecclesiastical authorities, leaving small leisure for its proper functions. ”

“ Even the right to try all criminal cases was claimed on the ground that all crime is sin, and hence can properly be dealt with only by the Church. Persons convicted by the ecclesiastical tribunals were subjected to penance, imprisoned in the monasteries, or handed over to the civil authorities for punishment. ”

“ Before the end of December, the fines imposed upon the archbishop reached twenty-one thousand thalers. In January, 1874, he was cited before a delegate judge of the Royal Court for Ecclesiastical Affairs, but refused to appear, since he could not, in conscience, recognize the competency of a civil tribunal to pass sentence on the manner in which he had exercised his pastoral functions. He moreover averred that, in case the threat to drag him into court should be carried out, it was his firm resolve to say nothing. ”

“ During the early portion of the Anglo-Saxon period, the power of the clergy over the dead was kept in check by uniting the lay with the clerical order in the ecclesiastical tribunals; but their jurisdictions were separated soon after the Norman conquest, and the effect upon the dead is plainly discernible. The exclusive power of the ecclesiastics, denominated in legal phrase "ecclesiastical cognizance," became not only executive, but judicial. It was executive, in taking the body into their actual, corporeal possession, and practically guarding its repose in their consecrated grounds ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ For “misdemeanours,” as yet unimportant, he had no exemption from secular jurisdiction (Pollock and Maitland, op. cit. ch. iv.) . At some indeterminate later period, the “clerk” was tried for felony by a jury in the king’s court and then “pleaded his clergy,” after conviction there, and was remitted to the ordinary for ecclesiastical punishment. “Clerks” for the purpose of “benefit of clergy” included not only persons in minor orders, but all “religious” persons, i.e. monks, friars, nuns, &c. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ I sickened at the idea of a Church Tribunal, where none has any authority to judge, and yet to my extreme embarrassment I saw that no Church can safely dispense with judicial forms and other worldly apparatus for defending the reputation of individuals. ”

“ The canon provides that any clerk having a complaint against another clerk must not pass by his own bishop and turn to secular tribunals, but first lay bare his cause before him, so that by the sentence of the bishop himself the dispute may be settled by arbitrators acceptable to both parties. Any one acting against these provisions shall be subject to canonical penalties. If any clerk have a complaint against his own bishop, he shall have his cause adjudicated upon by the synod of the province. ”

“ 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. ”