Ecclesiastical jurisdiction
Encyclopedia
Ecclesiastical jurisdiction in its primary sense does not signify jurisdiction
over ecclesiastics ("church leadership"), but jurisdiction exercised by church leaders over other leaders and over the laity
.
Jurisdiction
is a word borrowed from the legal system which has acquired a wide extension in theology
, wherein, for example, it is frequently used in contradistinction to order, to express the right to administer sacraments as something added on to the power to celebrate them. So it is used to express the territorial or other limits of ecclesiastical, executive or legislative authority. Here it is used as the authority by which judicial officers investigate and decide cases under Canon law
.
Such authority in the minds of lay Roman law
yers who first used this word jurisdiction was essentially temporal in its origin and in its sphere. The Christian Church
transferred the notion to the spiritual domain as part of the general idea of a Kingdom of God
focusing on the spiritual side of man upon earth.
It was viewed as also ordained of God, who had dominion over his temporal estate. As the Church in the earliest ages had executive and legislative power in its own spiritual sphere, so also it had judicial officers, investigating and deciding cases. Before its union with the State, its power in this direction, as in others, was merely over the spirits of men. Coercive temporal authority over their bodies or estates could only be given by concession from the temporal ruler. Moreover, even spiritual authority over members of the Church, i.e. baptized persons, could not be exclusively claimed as a right by the Church tribunals, if the subject matter of the cause were purely temporal. On the other hand, it is clear that all the faithful were subject to these courts (when acting within their own sphere), and that, in the earliest times, no distinction was made in this respect between clergy and laity.
It is customary to speak of a threefold office of the Church: the office of teaching (prophetic office), the priestly office and the pastoral office (governing office), and therefore of the threefold authority of the Church: the teaching authority, ministerial authority and ruling authority. Since the teaching of the Church is authoritative, the teaching authority is traditionally included in the ruling authority; then only the ministerial authority and the ruling authority are distinguished.
By ministerial authority, which is conferred by an act of consecration
, is meant the inward, and because of its indelible character permanent, capacity to perform acts by which Divine grace is transmitted. By ruling authority, which is conferred by the Church (missio canonica, canonical mission), is understood the authority to guide and rule the Church of God. Jurisdiction, insofar as it covers the relations of man to God, is called jurisdiction of the internal forum or jurisdiction of the forum of Heaven (jurisdictio poli). (See Ecclesiastical Forum); this again is either sacramental or penitential, so far as it is used in the Sacrament of Penance, or extra-sacramental, e.g. in granting dispensation
s from private vows. Jurisdiction, insofar as it regulates external ecclesiastical relations, is called jurisdiction of the external forum, or briefly jurisdictio fori. This jurisdiction, the actual power of ruling is legislative, judicial or coactive. Jurisdiction can be possessed in varying degrees. It can also be held either for both fora, or for the internal forum only, e.g. by the parish priest.
Jurisdiction can be further sub-divided into ordinary, quasi-ordinary and delegated jurisdiction. Ordinary jurisdiction is that which is permanently bound, by Divine law
or human law, with a permanent ecclesiastical office. Its possessor is called an ordinary judge. By Divine law the pope
has such ordinary jurisdiction for the entire Church and a bishop
for his diocese. By human law this jurisdiction is possessed by the cardinal
s, officials of the Roman Curia
and the congregations of cardinals, the patriarch
s, primate
s, metropolitan
s, archbishops, the praelati nullius and prelate
s with quasi-epsicopal jurisdiction, the chapters of orders or the superior general
s of orders, cathedral chapter
s in reference to their own affairs, the archdiaconate in the Middle Ages, and parish priests in the internal forum.
If however jurisdiction is permanently connected with an office, but the office itself is said to be quasi-ordinary, or jurisdictio vicaria. This form of jurisdiction is possessed, for example, by a vicar-general. Temporary exercise of ordinary and quasi-ordinary jurisdiction can be granted, in varying degrees, to another as representative, without conferring on him an office properly so called. In this transient form jurisdiction is called delegated or extraordinary, and concerning it canon law, following the Roman law, has developed exhaustive provisions. This development began when the popes, especially since Alexander III
(1159–81), found themselves obliged, by the enormous mass of legal business which came to them from all sides as the "judices ordinarii omnium" to hand over, with proper instruction, a large number of cases to third parties for decision, especially in matters of contentious jurisdiction.
transferred a number of papal rights to the bishops "tanquam Apostolicae Sedis delegati", i.e. also as delegates of the Apostolic See, and "etiam tanquam Apostolicae Sedis delegati", i.e. also as delegates of the Apostolic See . In the first class of cases, bishops do not possess oridary jurisdiction. The meaning of the second expression is disputed, but it is generally taken as purely cumulative. If the delegation applies to one or several designated cases only, it is special delegation; if it applies to an entire class of subjects, it is then general delegation or delegation for the universality of causes. Delegated jurisdiction for the total of a number of matters is known as delegatio mandata. Only those can be appointed delegates who are competent to execute the delegation. For an act of consecration the delegate must have himself the necessary sacred orders. For acts of jurisdiction he must be an ecclesiastic, though the pope could also delegate a layman. Papal delegation is usually conferred only on ecclesiastical dignitaries or canons. The delegate must be twenty years old, but eighteen years suffices for one appointed by the pope. He must also be free from excommunication. Those placed under the jurisdiction of the delegator must submit to the delegation . Delegation for one matter can also be conferred upon several. The distinction to be made is whether they have to act jointly and severally (collegiately), jointly but individually (solidarily), or solidarily at least in some given case. The delegate is to follow exactly his instructions, but is empowered to do all that is necessary to execute them. If he exceed his power, his act is null.
When necessary the delegate can himself delegate, i.e. subdelegate, a qualified person; he can do this especially if he is a papal delegate, or if he has received permission, or if he has been delegated for a number of cases. Since delegation constitutes a new court, appeal can be taken from the delegate to the delegator, and in the case of subdelegation to the original delegator. Delegated jurisdiction expires on the death of the delegate, in case the commission were not issued in view of the permanence of his office, on the loss of office or the death of the delegator, in case the delegate has not acted (re adhuc integra, the matter being still intact), on recall of his authority by the delegator (even re adhuc nondum integra, the matter being no longer intact), on expiration of the allotted time, on settlement of the matter, on declaration of the delegate that he has no power.
The church has the power to judge sin
, in the internal forum, but a sin can be at the same time externally a misdemeanour or a crime (delictum, crimen), when threatened with external ecclesiastical or civil punishment. The Church also judges ecclesiastical crimes in the external forum by infliction of penalties, except when the wrong doing has remained secret. In this case it contents itself, as a rule, with penance voluntarily assumed.
A last distinction is to be drawn between necessary jurisdiction and voluntary jurisdiction; the latter contemplates voluntary subjection on the part of those who seek in legal matters the co-operation of ecclesiastical agencies, e.g. notarially executed instruments, testaments, etc. The judicial power described above, jurisdiction strictly so called, was given by Christ to His Church, was exercised by the Apostles, and transmitted to their successors (Matthew 18:15 sqq.; 1 Corinthians 4:21; 5:1 sqq.; 2 Corinthians 13:10; 1 Timothy 1:20; 5:19 sq.).
From the beginning of the Christian religion the ecclesiastical judge, i.e. the bishop, decided matters of dispute that were purely religious in character (causae mere ecclesiasticae). This jurisdiction of the Church was recognized by the civil (imperial) power when it became Christian. But long before this the early Christians, following the exhortation of Saint Paul
(1 Corinthians 6:14), were wont to submit to ecclesiastical jurisdiction matters which by their nature belonged to the civil courts. As long as Christianity was not recognized by the State, it was left to the conscience of the individual whether he would conform to the decision of the bishop or not. Once Christianity had received civil recognition, Constantine the Great raised the former private usage to a public law. According to an imperial constitution of the year 321, the parties in dispute could, by mutual agreement, bring the matter before the bishop even when it was already pending before a civil judge, and the latter was obliged to put into effect the decision of the bishop. A further constitution of 331 provided that in any stage of the suit any one of the parties could appeal to the bishop even against the will of the others But Arcadius
in 398, and Honorius
in 408, limited the judicial competence of the bishop to those cases in which both parties applied to him . This arbitral jurisdiction of the bishop was not recognized in the new Teutonic kingdoms. In the Frankish kingdoms, purely ecclesiastical matters of dispute belonged to the jurisdiction of the bishop, but mixed cases, in which civil interests appeared, e.g. marriage questions, law suits concerning Church property etc., belonged to the civil courts.
In the Middle Ages the Church succeeded in extending its jurisdiction over all matters that offered an ecclesiastical interest (causae spiritualibus annexae), all litigation concerning marriages ; matters concerning burial; testaments; compacts ratified with an oath
; matters pertaining to benefice
s; questions of patronage
; litigation concerning church property and tithes. In addition, all civil litigation in which the element of sin was in question (ratio peccati) could be summonded before an ecclesiastical court.
Also the ecclesiastical court had jurisdiction over the affairs of ecclesiastics, monks and nuns, the poor, widows and orphans (personae miserabiles, the needy) and those persons to whom the civil judge refused legal redress. This far-reaching civil jurisdiction of the Church eventually overlapped the natural boundaries of Church and State. A reaction against this condition of affairs arose in England as early as the twelfth century, spread to France and Germany and gained in influence and justification the more the administration of justice by the State improved. At the end of the long vicissitudinous struggle, the Church lost its jurisdiction in res spiritualibus annexal, notwithstanding the claims of the Council of Trent, also the privilege of the clergy, and finally jurisdiction in matrimonial causes as far as their civil character was concerned.
In regard to ecclesiastical jurisdiction in criminal matters, the Church exercised jurisdiction at first only in purely ecclesiastical offences, and inflicted only ecclesiastical punishments, e.g. excommunication
, and in the case of clerics deposition. The observance of these penalties had to be left to the conscience of the individual, but with the formal recognition of the Church by the State and the increase of ecclesiastical penalties proportioned to the increase of ecclesiastical offences, came an appeal from the Church to the secular arm for aid in enforcing the said penalties, which aid was always willingly granted. Some offence, especially deviations from the Catholic Faith, were by the State made punishable in civil law and secular penalties were attached to them, also to certain disciplinary misdemeanours of ecclesiastics . Conversely, the Church in the Middle Ages increased its penal jurisdiction in the civil domain by infliction of varied penalties, some of them purely secular in character.
Above all, by means of the privilegium fori
it withdrew the so-called "criminous clerks" from the jurisdiction of the civil courts. Then it obtained for the court held by the bishop during his diocesan visitation (the send) not only the punishment of those civil misdemeanours which involved the element of sin and consequently affected both Church and State, but it also punished, and as such, purely civil offences. The penal jurisdiction of the medieval Church included, therefore, first the merely ecclesiastical offences, e.g. heresy
, schism
, apostasy
etc.; then the merely civil offences; finally the mixed offences, e.g. sins of the flesh, sacrilege
, blasphemy
, (diabolical 'black') magic
, perjury
, usury
etc.
In punishing offences of a purely ecclesiastical character the Church disposed unreservedly of the aid of the State for the execution of the penalty. When in the aforesaid send court held by the bishop during his visitation, it inflicted punishment on the civil offences of the laity, the penalty, as a rule, was enforced by the imperial count (Graf) who accompanied the bishop and represented the civil power. The principle prevailed later that an offence already punished by a secular judge was no longer punishable by the ecclesiastical judge.
When the send began to disappear, both ecclesiastical and secular judges were in general held equally competent for mixed offences. Prevention (previous adjudication of the case by one judge or the other) was decisive. If the matter were brought before the ecclesiastical judge he inflicted at the same time the civil penalty, not, however, corporal punishment
s such as the death penalty. If the accusation was brought before the secular judge, the civil penalty was inflicted by him and the action of the Church was limited to the imposition of a penance. The Church eventually lost by far the greater part of its criminal jurisdiction for the same reasons which, since the end of the Middle Ages, led to the loss of most of its contentious jurisdiction, and in the same manner. Moreover, from the fifteenth century on, the recursus ab abusu which first arose in France (appel comme d'abus), that is the appeal from an abuse of power by an ecclesiastical authority, did much to weaken and discredit ecclesiastical jurisdiction.
As to the criminal jurisdiction of the Church it now inflicts on the laity only ecclesiastical penalties, and solely for ecclesiastical offences. If ever civil consequences ensue, only the civil authority can take congnizance of them. As regards ecclesiastics, the power of the Church to punish their disciplinary offences and maladministration of their offices, is widely acknowledged by the State. Where Church and State are not separated, the State aids in investigating these offences, as well as in executing the canonically rendered decisions of the Church.
As to the civil offences of ecclesiastics, ecclesiastical jurisdiction carries with it no secular consequences, though the Church is free to punish such offences by ecclesiastical penalties. According to the Papal Bull
"Apostolicae Sedis moderationi" (12 October 1869), those persons fall under the excommunication reserved to the pope speciali modo, who directly or indirectly hinder the exercise of ecclesiastical jurisdiction in the external forum or in the internal forum, as well as those who appeal from ecclesiastical to civil jurisdiction; finally every legislator or person in authority who directly or indirectly compels a judge to cite ecclesiastical persons before a civil tribunal. In various concordat
s with the civil power, the Church has more or less abandoned the privilegium fori of ecclesiastics.
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
over ecclesiastics ("church leadership"), but jurisdiction exercised by church leaders over other leaders and over the laity
Laity
In religious organizations, the laity comprises all people who are not in the clergy. A person who is a member of a religious order who is not ordained legitimate clergy is considered as a member of the laity, even though they are members of a religious order .In the past in Christian cultures, the...
.
Jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
is a word borrowed from the legal system which has acquired a wide extension in theology
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...
, wherein, for example, it is frequently used in contradistinction to order, to express the right to administer sacraments as something added on to the power to celebrate them. So it is used to express the territorial or other limits of ecclesiastical, executive or legislative authority. Here it is used as the authority by which judicial officers investigate and decide cases under Canon law
Canon law (Catholic Church)
The canon law of the Catholic Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. It lacks the necessary binding force present in most modern day legal systems. The academic...
.
Such authority in the minds of lay Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
yers who first used this word jurisdiction was essentially temporal in its origin and in its sphere. The Christian Church
Christian Church
The Christian Church is the assembly or association of followers of Jesus Christ. The Greek term ἐκκλησία that in its appearances in the New Testament is usually translated as "church" basically means "assembly"...
transferred the notion to the spiritual domain as part of the general idea of a Kingdom of God
Kingdom of God
The Kingdom of God or Kingdom of Heaven is a foundational concept in the Abrahamic religions: Judaism, Christianity and Islam.The term "Kingdom of God" is found in all four canonical gospels and in the Pauline epistles...
focusing on the spiritual side of man upon earth.
It was viewed as also ordained of God, who had dominion over his temporal estate. As the Church in the earliest ages had executive and legislative power in its own spiritual sphere, so also it had judicial officers, investigating and deciding cases. Before its union with the State, its power in this direction, as in others, was merely over the spirits of men. Coercive temporal authority over their bodies or estates could only be given by concession from the temporal ruler. Moreover, even spiritual authority over members of the Church, i.e. baptized persons, could not be exclusively claimed as a right by the Church tribunals, if the subject matter of the cause were purely temporal. On the other hand, it is clear that all the faithful were subject to these courts (when acting within their own sphere), and that, in the earliest times, no distinction was made in this respect between clergy and laity.
General concept and classification
The Church founded by Christ for the salvation of men needs, like every society, a regulating power (the authority of the Church). The Decree "Lamentabili sane", of 3 July 1907, rejects the doctrine that Christ did not desire to found a permanent, unchangeable Church endowed with authorityIt is customary to speak of a threefold office of the Church: the office of teaching (prophetic office), the priestly office and the pastoral office (governing office), and therefore of the threefold authority of the Church: the teaching authority, ministerial authority and ruling authority. Since the teaching of the Church is authoritative, the teaching authority is traditionally included in the ruling authority; then only the ministerial authority and the ruling authority are distinguished.
By ministerial authority, which is conferred by an act of consecration
Consecration
Consecration is the solemn dedication to a special purpose or service, usually religious. The word "consecration" literally means "to associate with the sacred". Persons, places, or things can be consecrated, and the term is used in various ways by different groups...
, is meant the inward, and because of its indelible character permanent, capacity to perform acts by which Divine grace is transmitted. By ruling authority, which is conferred by the Church (missio canonica, canonical mission), is understood the authority to guide and rule the Church of God. Jurisdiction, insofar as it covers the relations of man to God, is called jurisdiction of the internal forum or jurisdiction of the forum of Heaven (jurisdictio poli). (See Ecclesiastical Forum); this again is either sacramental or penitential, so far as it is used in the Sacrament of Penance, or extra-sacramental, e.g. in granting dispensation
Dispensation (Catholic Church)
In the canon law of the Roman Catholic Church, a dispensation is the suspension by competent authority of general rules of law in particular cases...
s from private vows. Jurisdiction, insofar as it regulates external ecclesiastical relations, is called jurisdiction of the external forum, or briefly jurisdictio fori. This jurisdiction, the actual power of ruling is legislative, judicial or coactive. Jurisdiction can be possessed in varying degrees. It can also be held either for both fora, or for the internal forum only, e.g. by the parish priest.
Jurisdiction can be further sub-divided into ordinary, quasi-ordinary and delegated jurisdiction. Ordinary jurisdiction is that which is permanently bound, by Divine law
Divine law
Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...
or human law, with a permanent ecclesiastical office. Its possessor is called an ordinary judge. By Divine law 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...
has such ordinary jurisdiction for the entire Church and a 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...
for his diocese. By human law this jurisdiction is possessed by the cardinal
Cardinal (Catholicism)
A cardinal is a senior ecclesiastical official, usually an ordained bishop, and ecclesiastical prince of the Catholic Church. They are collectively known as the College of Cardinals, which as a body elects a new pope. The duties of the cardinals include attending the meetings of the College and...
s, officials of the Roman Curia
Roman Curia
The Roman Curia is the administrative apparatus of the Holy See and the central governing body of the entire Catholic Church, together with the Pope...
and the congregations of cardinals, 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...
s, primate
Primate (religion)
Primate is a title or rank bestowed on some bishops in certain Christian churches. Depending on the particular tradition, it can denote either jurisdictional authority or ceremonial precedence ....
s, 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...
s, archbishops, the praelati nullius and prelate
Prelate
A prelate is a high-ranking member of the clergy who is an ordinary or who ranks in precedence with ordinaries. The word derives from the Latin prælatus, the past participle of præferre, which means "carry before", "be set above or over" or "prefer"; hence, a prelate is one set over others.-Related...
s with quasi-epsicopal jurisdiction, the chapters of orders or the superior general
Superior general
A Superior General, or General Superior, is the Superior at the head of a whole religious order or congregation.The term is mainly used as a generic term, while many orders and congregations use other specific titles, notably:* Abbot general...
s of orders, cathedral chapter
Cathedral chapter
In accordance with canon law, a cathedral chapter is a college of clerics formed to advise a bishop and, in the case of a vacancy of the episcopal see in some countries, to govern the diocese in his stead. These councils are made up of canons and dignitaries; in the Roman Catholic church their...
s in reference to their own affairs, the archdiaconate in the Middle Ages, and parish priests in the internal forum.
If however jurisdiction is permanently connected with an office, but the office itself is said to be quasi-ordinary, or jurisdictio vicaria. This form of jurisdiction is possessed, for example, by a vicar-general. Temporary exercise of ordinary and quasi-ordinary jurisdiction can be granted, in varying degrees, to another as representative, without conferring on him an office properly so called. In this transient form jurisdiction is called delegated or extraordinary, and concerning it canon law, following the Roman law, has developed exhaustive provisions. This development began when the popes, especially since Alexander III
Pope Alexander III
Pope Alexander III , born Rolando of Siena, was Pope from 1159 to 1181. He is noted in history for laying the foundation stone for the Notre Dame de Paris.-Church career:...
(1159–81), found themselves obliged, by the enormous mass of legal business which came to them from all sides as the "judices ordinarii omnium" to hand over, with proper instruction, a large number of cases to third parties for decision, especially in matters of contentious jurisdiction.
Delegation
Delegated jurisdiction rests either on a special authorization of the holders of ordinary jurisdiction (delegatio ab homine), or on a general law (delegatio a lege, a jure, a canone). Thus, the Council of TrentCouncil 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...
transferred a number of papal rights to the bishops "tanquam Apostolicae Sedis delegati", i.e. also as delegates of the Apostolic See, and "etiam tanquam Apostolicae Sedis delegati", i.e. also as delegates of the Apostolic See . In the first class of cases, bishops do not possess oridary jurisdiction. The meaning of the second expression is disputed, but it is generally taken as purely cumulative. If the delegation applies to one or several designated cases only, it is special delegation; if it applies to an entire class of subjects, it is then general delegation or delegation for the universality of causes. Delegated jurisdiction for the total of a number of matters is known as delegatio mandata. Only those can be appointed delegates who are competent to execute the delegation. For an act of consecration the delegate must have himself the necessary sacred orders. For acts of jurisdiction he must be an ecclesiastic, though the pope could also delegate a layman. Papal delegation is usually conferred only on ecclesiastical dignitaries or canons. The delegate must be twenty years old, but eighteen years suffices for one appointed by the pope. He must also be free from excommunication. Those placed under the jurisdiction of the delegator must submit to the delegation . Delegation for one matter can also be conferred upon several. The distinction to be made is whether they have to act jointly and severally (collegiately), jointly but individually (solidarily), or solidarily at least in some given case. The delegate is to follow exactly his instructions, but is empowered to do all that is necessary to execute them. If he exceed his power, his act is null.
When necessary the delegate can himself delegate, i.e. subdelegate, a qualified person; he can do this especially if he is a papal delegate, or if he has received permission, or if he has been delegated for a number of cases. Since delegation constitutes a new court, appeal can be taken from the delegate to the delegator, and in the case of subdelegation to the original delegator. Delegated jurisdiction expires on the death of the delegate, in case the commission were not issued in view of the permanence of his office, on the loss of office or the death of the delegator, in case the delegate has not acted (re adhuc integra, the matter being still intact), on recall of his authority by the delegator (even re adhuc nondum integra, the matter being no longer intact), on expiration of the allotted time, on settlement of the matter, on declaration of the delegate that he has no power.
Development of jurisdiction in the strict sense
The Catholic Church considers to have has the right, as a perfect and independent society provided with all the means for attaining its end, to decide according to its laws disputes arising concerning its internal affairs, especially as to the ecclesiastical rights of its members, also to carry out its decision, if necessary, by suitable means of compulsion, contentious or civil jurisdiction. This implies the right to admonish or warn its members, ecclesiastical or lay, who have not conformed to its laws, and if needful to punish them by physical means, that is, coercive jurisdiction.The church has the power to judge sin
Sin
In religion, sin is the violation or deviation of an eternal divine law or standard. The term sin may also refer to the state of having committed such a violation. Christians believe the moral code of conduct is decreed by God In religion, sin (also called peccancy) is the violation or deviation...
, in the internal forum, but a sin can be at the same time externally a misdemeanour or a crime (delictum, crimen), when threatened with external ecclesiastical or civil punishment. The Church also judges ecclesiastical crimes in the external forum by infliction of penalties, except when the wrong doing has remained secret. In this case it contents itself, as a rule, with penance voluntarily assumed.
A last distinction is to be drawn between necessary jurisdiction and voluntary jurisdiction; the latter contemplates voluntary subjection on the part of those who seek in legal matters the co-operation of ecclesiastical agencies, e.g. notarially executed instruments, testaments, etc. The judicial power described above, jurisdiction strictly so called, was given by Christ to His Church, was exercised by the Apostles, and transmitted to their successors (Matthew 18:15 sqq.; 1 Corinthians 4:21; 5:1 sqq.; 2 Corinthians 13:10; 1 Timothy 1:20; 5:19 sq.).
From the beginning of the Christian religion the ecclesiastical judge, i.e. the bishop, decided matters of dispute that were purely religious in character (causae mere ecclesiasticae). This jurisdiction of the Church was recognized by the civil (imperial) power when it became Christian. But long before this the early Christians, following the exhortation of Saint Paul
Paul of Tarsus
Paul the Apostle , also known as Saul of Tarsus, is described in the Christian New Testament as one of the most influential early Christian missionaries, with the writings ascribed to him by the church forming a considerable portion of the New Testament...
(1 Corinthians 6:14), were wont to submit to ecclesiastical jurisdiction matters which by their nature belonged to the civil courts. As long as Christianity was not recognized by the State, it was left to the conscience of the individual whether he would conform to the decision of the bishop or not. Once Christianity had received civil recognition, Constantine the Great raised the former private usage to a public law. According to an imperial constitution of the year 321, the parties in dispute could, by mutual agreement, bring the matter before the bishop even when it was already pending before a civil judge, and the latter was obliged to put into effect the decision of the bishop. A further constitution of 331 provided that in any stage of the suit any one of the parties could appeal to the bishop even against the will of the others But Arcadius
Arcadius
Arcadius was the Byzantine Emperor from 395 to his death. He was the eldest son of Theodosius I and his first wife Aelia Flaccilla, and brother of the Western Emperor Honorius...
in 398, and Honorius
Honorius (emperor)
Honorius , was Western Roman Emperor from 395 to 423. He was the younger son of emperor Theodosius I and his first wife Aelia Flaccilla, and brother of the eastern emperor Arcadius....
in 408, limited the judicial competence of the bishop to those cases in which both parties applied to him . This arbitral jurisdiction of the bishop was not recognized in the new Teutonic kingdoms. In the Frankish kingdoms, purely ecclesiastical matters of dispute belonged to the jurisdiction of the bishop, but mixed cases, in which civil interests appeared, e.g. marriage questions, law suits concerning Church property etc., belonged to the civil courts.
In the Middle Ages the Church succeeded in extending its jurisdiction over all matters that offered an ecclesiastical interest (causae spiritualibus annexae), all litigation concerning marriages ; matters concerning burial; testaments; compacts ratified with an oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
; matters pertaining to benefice
Benefice
A benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...
s; questions of patronage
Patronage
Patronage is the support, encouragement, privilege, or financial aid that an organization or individual bestows to another. In the history of art, arts patronage refers to the support that kings or popes have provided to musicians, painters, and sculptors...
; litigation concerning church property and tithes. In addition, all civil litigation in which the element of sin was in question (ratio peccati) could be summonded before an ecclesiastical court.
Also the ecclesiastical court had jurisdiction over the affairs of ecclesiastics, monks and nuns, the poor, widows and orphans (personae miserabiles, the needy) and those persons to whom the civil judge refused legal redress. This far-reaching civil jurisdiction of the Church eventually overlapped the natural boundaries of Church and State. A reaction against this condition of affairs arose in England as early as the twelfth century, spread to France and Germany and gained in influence and justification the more the administration of justice by the State improved. At the end of the long vicissitudinous struggle, the Church lost its jurisdiction in res spiritualibus annexal, notwithstanding the claims of the Council of Trent, also the privilege of the clergy, and finally jurisdiction in matrimonial causes as far as their civil character was concerned.
In regard to ecclesiastical jurisdiction in criminal matters, the Church exercised jurisdiction at first only in purely ecclesiastical offences, and inflicted only ecclesiastical punishments, e.g. excommunication
Excommunication
Excommunication is a religious censure used to deprive, suspend or limit membership in a religious community. The word means putting [someone] out of communion. In some religions, excommunication includes spiritual condemnation of the member or group...
, and in the case of clerics deposition. The observance of these penalties had to be left to the conscience of the individual, but with the formal recognition of the Church by the State and the increase of ecclesiastical penalties proportioned to the increase of ecclesiastical offences, came an appeal from the Church to the secular arm for aid in enforcing the said penalties, which aid was always willingly granted. Some offence, especially deviations from the Catholic Faith, were by the State made punishable in civil law and secular penalties were attached to them, also to certain disciplinary misdemeanours of ecclesiastics . Conversely, the Church in the Middle Ages increased its penal jurisdiction in the civil domain by infliction of varied penalties, some of them purely secular in character.
Above all, by means of the privilegium fori
Privilegium fori
The privilegium fori, Latin for "Privilege of the forum", is a generic term for legal privileges to be tried in a particular court or type of court of law....
it withdrew the so-called "criminous clerks" from the jurisdiction of the civil courts. Then it obtained for the court held by the bishop during his diocesan visitation (the send) not only the punishment of those civil misdemeanours which involved the element of sin and consequently affected both Church and State, but it also punished, and as such, purely civil offences. The penal jurisdiction of the medieval Church included, therefore, first the merely ecclesiastical offences, e.g. heresy
Heresy
Heresy is a controversial or novel change to a system of beliefs, especially a religion, that conflicts with established dogma. It is distinct from apostasy, which is the formal denunciation of one's religion, principles or cause, and blasphemy, which is irreverence toward religion...
, schism
Schism (religion)
A schism , from Greek σχίσμα, skhísma , is a division between people, usually belonging to an organization or movement religious denomination. The word is most frequently applied to a break of communion between two sections of Christianity that were previously a single body, or to a division within...
, apostasy
Apostasy
Apostasy , 'a defection or revolt', from ἀπό, apo, 'away, apart', στάσις, stasis, 'stand, 'standing') is the formal disaffiliation from or abandonment or renunciation of a religion by a person. One who commits apostasy is known as an apostate. These terms have a pejorative implication in everyday...
etc.; then the merely civil offences; finally the mixed offences, e.g. sins of the flesh, sacrilege
Sacrilege
Sacrilege is the violation or injurious treatment of a sacred object. In a less proper sense, any transgression against the virtue of religion would be a sacrilege. It can come in the form of irreverence to sacred persons, places, and things...
, blasphemy
Blasphemy
Blasphemy is irreverence towards religious or holy persons or things. Some countries have laws to punish blasphemy, while others have laws to give recourse to those who are offended by blasphemy...
, (diabolical 'black') magic
Magic (paranormal)
Magic is the claimed art of manipulating aspects of reality either by supernatural means or through knowledge of occult laws unknown to science. It is in contrast to science, in that science does not accept anything not subject to either direct or indirect observation, and subject to logical...
, perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
, usury
Usury
Usury Originally, when the charging of interest was still banned by Christian churches, usury simply meant the charging of interest at any rate . In countries where the charging of interest became acceptable, the term came to be used for interest above the rate allowed by law...
etc.
In punishing offences of a purely ecclesiastical character the Church disposed unreservedly of the aid of the State for the execution of the penalty. When in the aforesaid send court held by the bishop during his visitation, it inflicted punishment on the civil offences of the laity, the penalty, as a rule, was enforced by the imperial count (Graf) who accompanied the bishop and represented the civil power. The principle prevailed later that an offence already punished by a secular judge was no longer punishable by the ecclesiastical judge.
When the send began to disappear, both ecclesiastical and secular judges were in general held equally competent for mixed offences. Prevention (previous adjudication of the case by one judge or the other) was decisive. If the matter were brought before the ecclesiastical judge he inflicted at the same time the civil penalty, not, however, corporal punishment
Corporal punishment
Corporal punishment is a form of physical punishment that involves the deliberate infliction of pain as retribution for an offence, or for the purpose of disciplining or reforming a wrongdoer, or to deter attitudes or behaviour deemed unacceptable...
s such as the death penalty. If the accusation was brought before the secular judge, the civil penalty was inflicted by him and the action of the Church was limited to the imposition of a penance. The Church eventually lost by far the greater part of its criminal jurisdiction for the same reasons which, since the end of the Middle Ages, led to the loss of most of its contentious jurisdiction, and in the same manner. Moreover, from the fifteenth century on, the recursus ab abusu which first arose in France (appel comme d'abus), that is the appeal from an abuse of power by an ecclesiastical authority, did much to weaken and discredit ecclesiastical jurisdiction.
Scope of jurisdiction in a strict sense
Today the only objects of contentious ecclesiastical jurisdiction (in which, however, the State often takes part or interferes) are: questions of faith, the administration of the sacraments, particularly the contracting and maintenance of marriage, the holding of church services, the creation and modification of benefices, the appointment to and the vacation of ecclesiastical offices, the rights of beneficed ecclesiastics as such, the ecclesiastical rights and duties of patrons, the ecclesiastical rights and duties of religious, the administration of church property.As to the criminal jurisdiction of the Church it now inflicts on the laity only ecclesiastical penalties, and solely for ecclesiastical offences. If ever civil consequences ensue, only the civil authority can take congnizance of them. As regards ecclesiastics, the power of the Church to punish their disciplinary offences and maladministration of their offices, is widely acknowledged by the State. Where Church and State are not separated, the State aids in investigating these offences, as well as in executing the canonically rendered decisions of the Church.
As to the civil offences of ecclesiastics, ecclesiastical jurisdiction carries with it no secular consequences, though the Church is free to punish such offences by ecclesiastical penalties. According to the Papal Bull
Papal bull
A Papal bull is a particular type of letters patent or charter issued by a Pope of the Catholic Church. It is named after the bulla that was appended to the end in order to authenticate it....
"Apostolicae Sedis moderationi" (12 October 1869), those persons fall under the excommunication reserved to the pope speciali modo, who directly or indirectly hinder the exercise of ecclesiastical jurisdiction in the external forum or in the internal forum, as well as those who appeal from ecclesiastical to civil jurisdiction; finally every legislator or person in authority who directly or indirectly compels a judge to cite ecclesiastical persons before a civil tribunal. In various concordat
Concordat
A concordat is an agreement between the Holy See of the Catholic Church and a sovereign state on religious matters. Legally, they are international treaties. They often includes both recognition and privileges for the Catholic Church in a particular country...
s with the civil power, the Church has more or less abandoned the privilegium fori of ecclesiastics.
See also
- Congregationalist church governance
- ConnectionalismConnectionalismThe term Connexionalism is today most commonly used to describe the theological understanding and foundation of Methodist polity, as practised in the British Methodist Church and the American United Methodist Church...
- EcclesiologyEcclesiologyToday, ecclesiology usually refers to the theological study of the Christian church. However when the word was coined in the late 1830s, it was defined as the science of the building and decoration of churches and it is still, though rarely, used in this sense.In its theological sense, ecclesiology...
- Episcopalian church governance
- Presbyterian church governance