Ecclesiastical Judge
Encyclopedia
An Ecclesiastical Judge is an ecclesiastical person who possesses ecclesiastical jurisdiction
either in general or in the strict sense.
Connected with the courts are advocates, procurators, syndics, defenders, promoters, conservators, apparitor
s, messengers
etc. The procurators and advocates conduct the case as the representatives or defenders of the parties to the suit; the syndic
is the counsel of a juridical person, a collegiate body or a chapter. The chief duty of the conservators is to represent the rights of the , i.e. members of orders, the poor, widows, orphans. The fiscal promoter () is appointed by the ecclesiastical authorities to watch over ecclesiastical discipline, consequently in penal cases he appears as public prosecutor. A , or defender of the matrimonial tie
, assists in suits concerning the invalidity of a marriage.
In addition to his jurisdiction, which can be ordinary, quasi-ordinary or delegated, the ecclesiastical judge must also have certain physical and moral qualities First, he must be an ecclesiastic, so women and laymen are excluded from the office. Yet the pope could confer the office upon a layman. It is further necessary to have full use of his senses and understanding, and suitable legal knowledge; the person appointed must also be twenty years old; but eighteen years will suffice for a judge appointed by the pope or if the parties agree to it. The judge must also have a good reputation, must not be excommunicated, suspended from office, or under an interdict
Above all he must be impartial; a suspicion of partiality attaches to the judge who is personally interested in a case, or is related by blood within the fourth degree to one of the parties, or connected with one by marriage, or who lives in the same house, or dines at a common table, or is otherwise friendly, or on the other hand inimical, towards one of the parties, and he may be rejected () by the accused or by both parties as prejudiced () If objection be raised against a judge on the ground of prejudice, which must be done in writing and if possible before the beginning of the action, arbitrators are to pass on the objection; if, however, objection be raised against the delegate of the bishop, the decision rests with the bishop. If the objection be declared well-founded, the judge transfers the case, with the concurrence of the party who brought the accusation, to another or to a higher judge. If the judge lacks the necessary qualifications, and this be known to the parties in the suit, the decision is invalid; if, however, his unfitness be unknown to the parties, and he follow statute canon law, the Church supplements the deficiency, even if the judge have acted in bad faith.
Ecclesiastical jurisdiction is exercised over all baptized persons; yet in order that an ecclesiastical judge may be permitted to exercise his judicial power he must also be competent, i.e. must be authorized to pass judgment on a given person in a given case Proceedings held before a judge without competence are null and void .Those subject to the jurisdiction of a certain judge are said to be within the competence () of his court, or have their in him. The forum is either the free, voluntary choice of the parties , or it is defined by law (), but in criminal and matrimonial cases there is no . Ecclesiastics can choose another judge only with the permission of the bishop, and in this case he must be an ecclesiastic The legal forum () is either ordinary, if the proper course of the regular courts is followed, or extraordinary, if for legal reasons a regular court is passed over. Moreover, the is either general (), corresponding to the universally valid law, or special or privileged (), resting on privilege, as in the case of ecclesiastics on account of the which they cannot renounce.
As the jurisdiction of a judge is generally limited to a defined locality, the is fixed by the or of the accused. The axiom holds: , the plaintiff goes to the court of the accused. Domicile
is that place where one actually resides with the intention of always remaining there Quasi-domicile is determined by actual residence at the place and the intention to remain there at least the greater part of the year; there is also a domicile by operation of law, legal or fictitious domicile ()—thus a wife may be subject to the jurisdiction of the domicile of the husband, children to that of the parents, religious to that of the place where the monastery is situated, persons having no fixed abode
to that of the present place of residence A process can be instituted at Rome
against an ecclesiastic who is only accidentally there. Besides the—usual—, there is also that of the object (, where the thing is situated), i.e. complaint can be brought before the judge in whose district the controverted object is; the forum where the contract is made (), i.e. the parties can bring action before the judge in whose district the disputed contract has been made ; that of the offence (), within the jurisdiction where the offence was committed. There is also a forum arising from the connection of matters (), if the matters in dispute are so interrelated that one cannot be decided without the other; also the forum of a counterplea (), i.e. in a criminal suit the defendant can, on his side, accuse the plaintiff in the court of the judge before whom he himself is to be tried. If the judge himself wishes to bring an accusation, the superior appoints the judge who is to hear it. The decision of an incompetent judge is valid if by common error () he is held to be competent In civil disputes the parties can entrust the decision to any desired arbiter.
If the judge render a defective decision, appeal can be taken to the next higher judge; this relation of the courts to one another and the successive course of appeals (), called succession of instances, follows the order of superiority. From the beginning the bishop
, or his representative, the archdeacon
, or the "official" (), or the vicar-general, was the judge in first instance for all suits, contentious or criminal, which arose in the diocese or in the corresponding administrative district, so far as such suits were not withdrawn from his jurisdiction by the common law. The court of second instance was originally the provincial synod, later the metropolitan
. The court of the third instance was that of the pope
. The court of the first instance for bishops was the provincial synod, the metropolitan, the exarch
or the patriarch
; the court of second instance was that of the pope; only the pope could be the judge of first instance for exarchs and patriarchs. Since the Middle Ages
the pope is the judge of first instance in all more important episcopal causes (), the number and extent of which are in no way exactly definable, but to which above all belong the —more serious criminal charges against bishops Conformably to this the diocesan bishop or his representative (the vicar-general, or , or some other diocesan authority) became the judge of the court of first instance, so far as common law has not withdrawn from him this jurisdiction. If the see is vacant the vicar-capitular is judge of the court of first instance. The judge of the second instance is the metropolitan. For archdioceses, as a rule, the judge of second instance is a neighbouring archbishop or bishop appointed by the Holy See
. The same ordinance also applies to exempt bishoprics. The court of the third instance is the Apostolic See, but in the it is the court of first instance As, however, the pope is the , the ordinary ecclesiastical judge of all, ecclesiastical suits without exception can be brought or summoned before the as the court of first instance.
In the Middle Ages the lower courts were often evaded, or the popes summoned the suits at one before their forum; this custom had some advantages on account of the better legal education and greater impartiality of the members of the papal court, but the administration of justice was delayed and, above all, made more costly by the rule enforced in the papal courts that the parties must appear in person. What made the matter still worse was that such summonses to Rome, as to the court of first instance, diminish unduly the authority of the lower courts. To put an end, therefore, to constant complaint on this point, the Decretals ordained that in future, before the rendering of the sentence, no one could appeal to a higher court without giving a sufficient reason to the judge (from whom the appeal was made), and that the appeal could only be accepted by the judge (to whom appeal lies) after he had satisfied himself of the validity of the appeal Lawsuits, therefore, pending before the Apostolic See were to be tried by a judge belonging to the place whence the appeal came, and especially appointed by the pope. In the late Middle Ages rulers of countries were frequently granted for their domains the papal (exemption from summons); in some cases, they forbade the appeal to a foreign court.
Following the precedents of the Synod of Constance and Synod of Basle, the Council of Trent
decreed: The court of the bishop is the court of first instance Each suit must be brought to a close within at least two years. During this period no appeal is permitted, neither can the higher judge summon the case before his forum; an appeal before the lapse of two years is permissible only if a final sentence has been pronounced.
In case of appeal to the Apostolic See, or if the latter, for good reasons, summons a suit from the beginning before its forum, the suit is to be decided either at Rome or by delegated judges on the spot (). As on account of the remoteness of the place where the dispute arose and the consequent lack of knowledge of local persons, unsuitable judges have been at times appointed at the place where the dispute arose, the bishops are each to select, on occasion of the provincial—or diocesan synod, at least four men () having the qualities designated by Boniface VIII, and present their names to the Apostolic See, which in its selection of judges is to be so limited to the persons thus named that the delegation of any other person is invalid; as provincial and diocesan synods are no longer regularly held, bishops are permitted to make this selection with the advice of the diocesan chapter; consequently, judges so appointed are called . At present, this also is no longer customary: on the contrary, the Apostolic See appoints its representatives entirely independently, but it is so arranged that the delegation is bestowed on neighbor bishops and archbishops for a definite term of years. Such delegation is all the more necessary in case a State does not permit ecclesiastical suits to be tried outside of its boundaries, or will only permit the judgement of such a court to be executed within its territories by the secular power.
Ecclesiastical jurisdiction
Ecclesiastical jurisdiction in its primary sense does not signify jurisdiction over ecclesiastics , but jurisdiction exercised by church leaders over other leaders and over the laity....
either in general or in the strict sense.
Catholic canon law
The official body appointed by the qualified ecclesiastical authority for the administration of justice is called a court () Every such court consists at the least of two sworn officials: the judge who gives the decision, and the clerk of the court (), whose duty is to keep a record of the proceedings and the decision. As a rule, however, an ecclesiastical court forms a collegiate tribunal, the members of which either join with the presiding officer in giving the decision as judges () or merely advise with him as councillors () (cc. xvi, xxi, xxii, xxiii, X, De off. et pot. jud. deleg., I, xxix).Connected with the courts are advocates, procurators, syndics, defenders, promoters, conservators, apparitor
Apparitor
In ancient Rome, an apparitor was a civil servant whose salary was paid from the public treasury. The apparitores assisted the magistrates. There were four occupational grades among them...
s, messengers
Courier
A courier is a person or a company who delivers messages, packages, and mail. Couriers are distinguished from ordinary mail services by features such as speed, security, tracking, signature, specialization and individualization of express services, and swift delivery times, which are optional for...
etc. The procurators and advocates conduct the case as the representatives or defenders of the parties to the suit; the syndic
Syndic
Syndic , a term applied in certain countries to an officer of government with varying powers, and secondly to a representative or delegate of a university, institution or other corporation, entrusted with special functions or powers.The meaning which underlies both applications is that of...
is the counsel of a juridical person, a collegiate body or a chapter. The chief duty of the conservators is to represent the rights of the , i.e. members of orders, the poor, widows, orphans. The fiscal promoter () is appointed by the ecclesiastical authorities to watch over ecclesiastical discipline, consequently in penal cases he appears as public prosecutor. A , or defender of the matrimonial tie
Defender of the Matrimonial Tie
The Defender of the Bond, or Defensor Matrimonii in Latin, is a Catholic church official whose duty is to defend the marriage-bond in the procedure prescribed for the hearing of matrimonial causes which involve the validity or nullity of a marriage already contracted.Benedict XIV, by his Bull "Dei...
, assists in suits concerning the invalidity of a marriage.
In addition to his jurisdiction, which can be ordinary, quasi-ordinary or delegated, the ecclesiastical judge must also have certain physical and moral qualities First, he must be an ecclesiastic, so women and laymen are excluded from the office. Yet the pope could confer the office upon a layman. It is further necessary to have full use of his senses and understanding, and suitable legal knowledge; the person appointed must also be twenty years old; but eighteen years will suffice for a judge appointed by the pope or if the parties agree to it. The judge must also have a good reputation, must not be excommunicated, suspended from office, or under an interdict
Interdict (Roman Catholic Church)
In Roman Catholic canon law, an interdict is an ecclesiastical censure that excludes from certain rites of the Church individuals or groups, who nonetheless do not cease to be members of the Church.-Distinctions in canon law:...
Above all he must be impartial; a suspicion of partiality attaches to the judge who is personally interested in a case, or is related by blood within the fourth degree to one of the parties, or connected with one by marriage, or who lives in the same house, or dines at a common table, or is otherwise friendly, or on the other hand inimical, towards one of the parties, and he may be rejected () by the accused or by both parties as prejudiced () If objection be raised against a judge on the ground of prejudice, which must be done in writing and if possible before the beginning of the action, arbitrators are to pass on the objection; if, however, objection be raised against the delegate of the bishop, the decision rests with the bishop. If the objection be declared well-founded, the judge transfers the case, with the concurrence of the party who brought the accusation, to another or to a higher judge. If the judge lacks the necessary qualifications, and this be known to the parties in the suit, the decision is invalid; if, however, his unfitness be unknown to the parties, and he follow statute canon law, the Church supplements the deficiency, even if the judge have acted in bad faith.
Ecclesiastical jurisdiction is exercised over all baptized persons; yet in order that an ecclesiastical judge may be permitted to exercise his judicial power he must also be competent, i.e. must be authorized to pass judgment on a given person in a given case Proceedings held before a judge without competence are null and void .Those subject to the jurisdiction of a certain judge are said to be within the competence () of his court, or have their in him. The forum is either the free, voluntary choice of the parties , or it is defined by law (), but in criminal and matrimonial cases there is no . Ecclesiastics can choose another judge only with the permission of the bishop, and in this case he must be an ecclesiastic The legal forum () is either ordinary, if the proper course of the regular courts is followed, or extraordinary, if for legal reasons a regular court is passed over. Moreover, the is either general (), corresponding to the universally valid law, or special or privileged (), resting on privilege, as in the case of ecclesiastics on account of the which they cannot renounce.
As the jurisdiction of a judge is generally limited to a defined locality, the is fixed by the or of the accused. The axiom holds: , the plaintiff goes to the court of the accused. Domicile
Domicile
*In architecture, a general term for a place of residence or "permanent residence" in legal terms*Domicile , the zodiac sign over which a planet has rulership...
is that place where one actually resides with the intention of always remaining there Quasi-domicile is determined by actual residence at the place and the intention to remain there at least the greater part of the year; there is also a domicile by operation of law, legal or fictitious domicile ()—thus a wife may be subject to the jurisdiction of the domicile of the husband, children to that of the parents, religious to that of the place where the monastery is situated, persons having no fixed abode
No fixed abode
No fixed abode or without fixed abode is a legal term generally applied to those who do not have a fixed geographical location as their residence...
to that of the present place of residence A process can be instituted at Rome
Rome
Rome is the capital of Italy and the country's largest and most populated city and comune, with over 2.7 million residents in . The city is located in the central-western portion of the Italian Peninsula, on the Tiber River within the Lazio region of Italy.Rome's history spans two and a half...
against an ecclesiastic who is only accidentally there. Besides the—usual—, there is also that of the object (, where the thing is situated), i.e. complaint can be brought before the judge in whose district the controverted object is; the forum where the contract is made (), i.e. the parties can bring action before the judge in whose district the disputed contract has been made ; that of the offence (), within the jurisdiction where the offence was committed. There is also a forum arising from the connection of matters (), if the matters in dispute are so interrelated that one cannot be decided without the other; also the forum of a counterplea (), i.e. in a criminal suit the defendant can, on his side, accuse the plaintiff in the court of the judge before whom he himself is to be tried. If the judge himself wishes to bring an accusation, the superior appoints the judge who is to hear it. The decision of an incompetent judge is valid if by common error () he is held to be competent In civil disputes the parties can entrust the decision to any desired arbiter.
If the judge render a defective decision, appeal can be taken to the next higher judge; this relation of the courts to one another and the successive course of appeals (), called succession of instances, follows the order of superiority. From the beginning the bishop
Bishop
A bishop is an ordained or consecrated member of the Christian clergy who is generally entrusted with a position of authority and oversight. Within the Catholic Church, Eastern Orthodox, Oriental Orthodox Churches, in the Assyrian Church of the East, in the Independent Catholic Churches, and in the...
, or his representative, the archdeacon
Archdeacon
An archdeacon is a senior clergy position in Anglicanism, Syrian Malabar Nasrani, Chaldean Catholic, and some other Christian denominations, above that of most clergy and below a bishop. In the High Middle Ages it was the most senior diocesan position below a bishop in the Roman Catholic Church...
, or the "official" (), or the vicar-general, was the judge in first instance for all suits, contentious or criminal, which arose in the diocese or in the corresponding administrative district, so far as such suits were not withdrawn from his jurisdiction by the common law. The court of second instance was originally the provincial synod, later the metropolitan
Metropolitan bishop
In Christian churches with episcopal polity, the rank of metropolitan bishop, or simply metropolitan, pertains to the diocesan bishop or archbishop of a metropolis; that is, the chief city of a historical Roman province, ecclesiastical province, or regional capital.Before the establishment of...
. The court of the third instance was that of the pope
Pope
The Pope is the Bishop of Rome, a position that makes him the leader of the worldwide Catholic Church . In the Catholic Church, the Pope is regarded as the successor of Saint Peter, the Apostle...
. The court of the first instance for bishops was the provincial synod, the metropolitan, the exarch
Exarch
In the Byzantine Empire, an exarch was governor with extended authority of a province at some remove from the capital Constantinople. The prevailing situation frequently involved him in military operations....
or the patriarch
Patriarch
Originally a patriarch was a man who exercised autocratic authority as a pater familias over an extended family. The system of such rule of families by senior males is called patriarchy. This is a Greek word, a compound of πατριά , "lineage, descent", esp...
; the court of second instance was that of the pope; only the pope could be the judge of first instance for exarchs and patriarchs. Since the Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
the pope is the judge of first instance in all more important episcopal causes (), the number and extent of which are in no way exactly definable, but to which above all belong the —more serious criminal charges against bishops Conformably to this the diocesan bishop or his representative (the vicar-general, or , or some other diocesan authority) became the judge of the court of first instance, so far as common law has not withdrawn from him this jurisdiction. If the see is vacant the vicar-capitular is judge of the court of first instance. The judge of the second instance is the metropolitan. For archdioceses, as a rule, the judge of second instance is a neighbouring archbishop or bishop appointed by the Holy See
Holy See
The Holy See is the episcopal jurisdiction of the Catholic Church in Rome, in which its Bishop is commonly known as the Pope. It is the preeminent episcopal see of the Catholic Church, forming the central government of the Church. As such, diplomatically, and in other spheres the Holy See acts and...
. The same ordinance also applies to exempt bishoprics. The court of the third instance is the Apostolic See, but in the it is the court of first instance As, however, the pope is the , the ordinary ecclesiastical judge of all, ecclesiastical suits without exception can be brought or summoned before the as the court of first instance.
In the Middle Ages the lower courts were often evaded, or the popes summoned the suits at one before their forum; this custom had some advantages on account of the better legal education and greater impartiality of the members of the papal court, but the administration of justice was delayed and, above all, made more costly by the rule enforced in the papal courts that the parties must appear in person. What made the matter still worse was that such summonses to Rome, as to the court of first instance, diminish unduly the authority of the lower courts. To put an end, therefore, to constant complaint on this point, the Decretals ordained that in future, before the rendering of the sentence, no one could appeal to a higher court without giving a sufficient reason to the judge (from whom the appeal was made), and that the appeal could only be accepted by the judge (to whom appeal lies) after he had satisfied himself of the validity of the appeal Lawsuits, therefore, pending before the Apostolic See were to be tried by a judge belonging to the place whence the appeal came, and especially appointed by the pope. In the late Middle Ages rulers of countries were frequently granted for their domains the papal (exemption from summons); in some cases, they forbade the appeal to a foreign court.
Following the precedents of the Synod of Constance and Synod of Basle, the Council of Trent
Council of Trent
The Council of Trent was the 16th-century Ecumenical Council of the Roman Catholic Church. It is considered to be one of the Church's most important councils. It convened in Trent between December 13, 1545, and December 4, 1563 in twenty-five sessions for three periods...
decreed: The court of the bishop is the court of first instance Each suit must be brought to a close within at least two years. During this period no appeal is permitted, neither can the higher judge summon the case before his forum; an appeal before the lapse of two years is permissible only if a final sentence has been pronounced.
In case of appeal to the Apostolic See, or if the latter, for good reasons, summons a suit from the beginning before its forum, the suit is to be decided either at Rome or by delegated judges on the spot (). As on account of the remoteness of the place where the dispute arose and the consequent lack of knowledge of local persons, unsuitable judges have been at times appointed at the place where the dispute arose, the bishops are each to select, on occasion of the provincial—or diocesan synod, at least four men () having the qualities designated by Boniface VIII, and present their names to the Apostolic See, which in its selection of judges is to be so limited to the persons thus named that the delegation of any other person is invalid; as provincial and diocesan synods are no longer regularly held, bishops are permitted to make this selection with the advice of the diocesan chapter; consequently, judges so appointed are called . At present, this also is no longer customary: on the contrary, the Apostolic See appoints its representatives entirely independently, but it is so arranged that the delegation is bestowed on neighbor bishops and archbishops for a definite term of years. Such delegation is all the more necessary in case a State does not permit ecclesiastical suits to be tried outside of its boundaries, or will only permit the judgement of such a court to be executed within its territories by the secular power.