ECCLESIASTICAL JURISDICTION. The jurisdiction exercised by ecclesiastics, in taking cognizance of and deciding causes, over other ecclesiastics and over the laity. Before its union with the State, the power of the Church in this direction, as in others, was only spiritual. Coercive authority over their bodies or estates could only be given by concession from the secular power.
The fundamental principle of ecclesiastical jurisdiction with its "sanction" of excommunication will be found in the words at tributed to Christ in Matt. xviii. I –18. These injunctions indicate the customs of the Christian Churches at an early stage in their history. After the time of the Apostles, we find this criminal juris diction exercised by bishops individually over their respective "subjects"—doubtless with the advice of their presbyters accord ing to the precept of St. Ignatius (c. no). As neighbouring dio ceses coalesced into "provinces" and provinces into larger districts (corresponding to the civil "dioceses" of the later Roman Em pire), the provincial synods of bishops and the synods of the larger districts acquired a criminal jurisdiction, still purely spir itual, of their own. The theory, as expressed in legal phrase by Cyprian in the 3rd century, was that the apostolic power of dele gated sovereignty from the Lord, alike legislative and judicial, was held in joint-tenancy by the whole body of Catholic bishops.
Even before the edict of Milan, at least as early as the latter half of the 3rd century, the spiritual sentences of deposition from office had sometimes indirect temporal consequences recognized by the secular courts. The classical example is the case of Paul of Samosata, bishop of Antioch. It would seem that, in the intervals of persecution, some rights of property were recognized in the Christian Church and its officers ; although the Church was an illegal society. After some previous abortive trials, Paul of Samosata was deposed and excommunicated, in 269, by a great synod of the Antiochene district. Paul, notwithstanding his depo sition, kept possession of the episcopal residence. The local church sought recovery of it before the tribunals of the Empire. The judicial authorities requested a rescript from the emperor Aurelian for the decision of the cause. Aurelian referred the matter to the bishop of Rome and the bishops of Italy, who gave their award in favour of the Antiochene Church.
The trial of Athanasius shows a further stage in the develop ment of ecclesiastical jurisdiction. Its significance is seen in the council of Sardica (347), a council of practically the whole West save Africa, which acquitted Athanasius after a full judicial in quiry. This council endeavoured to set up a system of appeals in the case of bishops, in which the see of Rome was made to play a great part. "Out of honour to the memory of St. Peter," a con demned bishop may ask the intervention of Rome. If the bishop of Rome thinks the cause should be heard again, he is to appoint judges; if otherwise, the original judgment is to be confirmed. Pending appeal, the appellant's see is not to be filled up.
The tendency to give pre-eminence to Rome appears again in an imperial letter to St. Flavian, who, in the judgment of the East, was bishop of Antioch, but who was rejected by the West and Egypt, summoning him to Rome to be there judged by the bishops of the imperial city—a summons which St. Flavian did not obey.
The story of the administrative development of the Church in the 5th century is mainly the story of the final emergence and constitution of the great "patriarchates," as authorities superior to metropolitans and provincial synods. In consequence of the occupants of the thrones of Constantinople and Alexandria fall ing successively into opposite heresies, the question arose how "patriarchs" were to be judged. In both cases, as it seems, an attempt was made by the bishop of Rome to depose the erring patriarch by his authority as primate of Christendom, acting in concert with a Western synod. In both cases, apparently, an oecumenical synod ignored the Roman deposition and judged the alleged offences of the respective patriarchs in first and last in stance. The third and fourth oecumenical synods (Ephesus, 431; Chalcedon, 451) were primarily tribunals for the trials of Nes torius and Dioscorus; it was secondarily that they became organs of the universal episcopate for the definition of the faith, or legislative assemblies for the enactment of canons. Nothing is more remarkable than their minute care as to observance of rules of procedure. In both cases, imperial assessors were appointed. At Chalcedon, on the other hand, the imperial commissioners decided points of order, kept the synod to the question, took the votes and adjourned the court. The fifth oecumenical council came near to sitting in judgment over the pope. Vigilius, although in Constantinople, refused to attend the sittings of the council. He was cited three times, in the canonical manner, and upon not appearing was threatened in the third session with anathema (Hefele, Councils §§ 268 ff.). After the council, Justinian banished the pope, until he accepted the council, which he ultimately did.
The constitution of the patriarchal system resulted in the recognition of a certain right of appeal to Rome from the larger part of the West. Britain remained outside that jurisdiction, the Celtic churches of the British islands, after those islands were abandoned by the Empire, pursuing a course of their own. In the East, Constantinople, from its principality, acquired special administrative pre-eminence, naturally followed, as in the case of Rome, by judicial pre-eminence. An example of this is found in the ninth canon of Chalcedon, which also illustrates the enforce ment upon a clerical plaintiff in dispute with a brother cleric of recourse to the arbitration of their ecclesiastical superior. 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. In the next century Jus tinian put the other patriarchates on the same footing as Con stantinople. But the growth of a special "original" jurisdiction at Constantinople, which perhaps developed earlier than the corre sponding institution at Rome, may be traced to the fact that bishops from all parts were constantly in Constantinople. The bishop of Constantinople, even before he became properly "patriarch," would of ten assemble a synod from these visiting bishops, which acquired the technical name of i n'o8os EP nitovaa, the synod of sojourners. This synod frequently decided questions belonging to other patriarchates.
Theodosius I. began the system of giving secular authority to Church tribunals. But it appears definitely in 425, when a con stitution 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." Jus tinian has a clearer perception of the demarcation between the spheres of spiritual and temporal law. His system is based on the principle that if the offence be ecclesiastical, needing ecclesias tical correction, the bishop shall take cognizance of it ; but if a cleric be accused of a secular crime he shall be first accused be fore his bishop, who may depose him from his office and order, and then the competent judge may take him and deal with him according to the laws.
Certain enactments of later Saxon times in England have been sometimes spoken of as though they united together the temporal and spiritual jurisdictions into one mixed tribunal deriving its authority from the State. In the latter part of the loth century, laws of Edgar provided that the bishop should be at the county court and also the alderman, and that there each of them should put in use both God's laws and the world's law (Johnson's Eng lish Canons, i. 411). This probably was, as Johnson suggests, that the bishop might enforce secular laws by ecclesiastical censure and the alderman ecclesiastical laws with secular punishment. But the two jurisdictions were kept separate; for by another law of Edgar it was provided that "in the most august assembly the bishop and alderman should be present, and the one should inter pret to the people the law of God, the other the laws of men." In the meantime, however, on the Continent, Charlemagne under the mistaken belief that he was following the authority of Con stantine I. and Theodosius I., had taken the serious step of em powering bishops to act as real judges; and causes could be taken from lay cognizance and transferred to the bishop's tribunal.
(I) It is a system of courts. Much that had been done by bishops is now done in the course of regular judicial procedure; the court takes the place of the synod, which ceases to have judicial work. The court of the metropolitan takes the place of the provincial synod, except possibly for the trial of bishops, and even this becomes doubtful.
At first the bishop was the only judge in the diocesan court and he always remains a judge. But just as the king appoints judges to hear placita coram rege ipso, and the feudal lord ap points his seneschal or steward, so the bishop appoints his official, the "vicar-general" or "chancellor" (see CHANCELLOR). It was gradually established that as a king should not hear causes but commit them to his judges, so a bishop should not hear causes but appoint an official to hear them. In France the "parlements" were constantly insisting on the independence and irremovability of the official.
The ecclesiastical and secular courts are kept distinct. The charter of William the Conqueror abrogated the laws of Edgar. No bishop or archdeacon "shall any longer hold pleas in the Hundred concerning episcopal law nor draw a cause which con cerns the rule of such to the judgment of men of the world" (Stubbs, Select Charters, part iii.). In France, where the bishop was a temporal baron, his feudal arid his spiritual courts were kept by distinct officers. From the bishop, or his official, appeal lay to the metropolitan, who again could hear causes by his official. The Constitutions of Clarendon recognize this appeal (c. viii.) . An appeal lay from the court of the metropolitan to that of the primate. There were many disputes as to the existence of these primates (see Maitland, Canon Law in the Church of England, p. 121). In England the dispute between Canterbury and York was settled by making them both primates, giving Canterbury the further honour of being primate of all England. In France the primatial sees and the course of appeals to them were well established.
In England the Constitutions of Clarendon added a provision for appeal to the king, "and if the archbishop shall have failed in doing justice recourse is to be had in the last resort (postremo) to our lord the king, that by his writ the controversy may be ended in the court of the archbishop; because there must be no further process without the assent of our lord the king." The last words were an attempt to limit further appeal to Rome. It will be observed that the king does not hear the cause or adjudi cate upon it. He merely corrects slackness or lack of doing justice (Si archiepiscopus de f ecerit in justitia exhibenda) and by his writ (precepto) directs the controversy to be determined in the metro politan's court. As Bishop Stubbs says (Report of Eccl. Comm. vol. i. Hist. App. i.) : "The appeal to the king is merely a provision for a rehearing before the archbishop, such failure to do justice being not so much applicable to an unfair decision as to the delays or refusal to proceed common at that time" (cf. Joyce, The Sword and the Keys, 2nd ed., pp. 19-20). The recursus ad principem, in some form or other of appeal or application to the sovereign or his lay judges, was at the end of the middle ages well known over western Europe. This recourse in England sometimes took the form of the appeal to the king given by the Constitutions of Ciarendon, just mentioned, and later by the acts of Henry VIII.; sometimes that of suing for writs of prohibition or mandamus, which were granted by the king's judges, either to restrain excess of jurisdiction, or to compel the spiritual judge to exercise juris diction in cases where it seemed to the temporal court that he was failing in his duty. The appellatio tanquam ab abusu (appel comme d'abus) in France was an application of a like nature.
Lastly there was the appeal to the patriarchs, i.e. in the West to Rome. The distinguishing feature of this appeal was that the rule of the other appeals did not apply to it. In the regular course of those appeals an appellant could not leap the intermediate stages; but he could at any stage go to this final appeal, omisso medio, as it was technically called. Van Espen says : "The whole right of appeal to the Roman pontiff omisso medio had undoubtedly its origin in this principle, that the Roman pontiff is ordinary of ordinaries, or, in other words, has immediate episcopal authority in all particular churches, and this principle had its own beginning from the False Decretals." There was an alleged original jurisdiction of the pope, which he exercised some times by permanent legates, whom Gregory VII. and his succes sors established in the chief countries of Europs, and to whom were committed the legislative, executive and judicial powers of the spiritual "prince" in the districts assigned to them. After legates came special delegates appointed by the pope to hear a particular cause. It was the general practice to appoint two or three to sit together (Van Espen, pars iii. tit. v. c. 2, 37). These might sub-delegate the whole cause or any part of it as they pleased (ibid. 9-18). These courts were convenient, since it was the custom to appoint delegates resident in the neighbourhood, and the power of sub-delegation, general or limited, simplified ques tions of distance. In Belgium causes appealed to Rome had to be committed to local delegates (Van Espen, pars iii tit. v. c. 3, tit. x. c. 2).
There could be an appeal from these delegates to the pope and from the pope himself to the pope "better informed" (Van Espen, pars in tit. x. c. 2, 13) . So personal had the system of jurisdiction become that even the trials of bishops ceased to be necessarily conciliar. Generally they were reserved to the pope (Van Espen, pars iii. tit. iii. c. 5, 17-19) ; but in England the archbishop, either in synod, or with some of his comprovincial bishops concurring, tried and deposed bishops (see case of Bishop Peacock and the other cases cited in Read v. Bishop of Lincoln, 14 P.D. 148, and Phillimore, Eccl. Law, pp. 66 et seq.) . The matrimonial cause between Henry VIII. and Catharine of Aragon was the most famous English cause tried by delegates under the "original" jurisdiction of the pope, and was ultimately "evoked" to Rome. The foreseen adverse termination of this long-drawn cause led to Henry's legislation.
When the temporal courts interfered to prevent excess of juris diction, they did so by prohibiting the ecclesiastical court from trying and the suitor from suing in that court. The pope could not be effectively prohibited, and no instance is recorded of a prohibition to papal delegates. But suitors have been prohibited from appealing to the pope (see per Willes, J., in Mayor of London v. Cox, L.R. 2 H.L. 28o). Whatever may have been the law, it is certain that, notwithstanding the statutes of Edw. III. and Rich. II., appeals to Rome and original trials by papal delegates did go on, perhaps with the king's licence; for the statute 24 Hen. VIII. c. 12 recites that the hearing of appeals was an usurpation by the pope and a grievous abuse, and proceeds to take away the appeal in matrimonial, testamentary and tithe causes, and to hinder, by forbidding citation and process from Rome, all original hearings also. The statute 25 Hen. VIII. c. 19 follows this up by taking away appeals in all other subjects of ecclesiastical jurisdiction.
In 1438 the council of Basel took away all papal original jurisdiction (save in certain reserved cases), evocation of causes to Rome, appeals to Rome onusso snedio, and appeals to Rome altogether in many causes. Such appeals when permissible, except the "greater," were to be tried by delegates on the spot (31st Session; Mansi, Concilia, in loco) . These proceedings at Basel were regarded at Rome as of no effect. Nevertheless this decree and others were adopted by a French national council at Bourges and promulgated by the king as a "Pragmatic Sanction" (q.v.). The parlements registered the Sanction and the effect was per manent in France. Louis XI. and Charles VIII. sought to revoke it ; but both parlements and states-general refused to recognize the revoking decrees. In 1499 Louis XII. ordered the Pragmatic to be inviolably observed. The parlements thereupon condemned several private persons for obtaining bulls from Rome. In 1516 a Concordat between Leo X. and Francis I. settled all these questions in the sense of the Pragmatic, substantially according to the Basel canon. By this Concordat, by an ordinance of Francis I. in 1539, by two or three other royal edicts, and (above all) by the practice of the parlements, explanatory of this legisla tion, and their arrets, the conflict of secular and ecclesiastical jurisdictions was settled until the Revolution.
(2.) The subject matter over which the ecclesiastical courts had jurisdiction was no longer purely "criminal" with a civil quasi jurisdiction by way of arbitration. In the later middle ages these courts had jurisdiction over most questions, except indeed the then most important ones, those relating to real property. This civil jurisdiction was sometimes concurrent with that of the secular courts, sometimes exclusive. In England, for example, in reference to marriage, it included the right to decide in questions of the legitimacy of offspring; in reference to inheritance, the right to examine the administration of bequests of personal property and to intervene in cases of intestacy; the right of in tervention to enforce contractual promises made by oath or pledge of faith; as well as in many questions where the church as an organization was directly concerned, as in the tenure of church lands, and questions of fitness or unfitness in the case of presen tation to a benefice. The actual working of these wide extensions of ecclesiastical jurisdiction, and their reaction on the social and political life of the country, may be studied in F. W. Maitland's Canon Law in the Church of England (1898), in F. Pollock and F. W. Maitland's History of English Law Before Edward I. (1898), and J. F. Stephen's History of the Criminal Law of England (1883) .
In regard to "clerks," the great question at issue in England was whether the ecclesiastical courts had exclusive jurisdiction in the case of criminous clerks, or the king's court, or whether there was a concurrent jurisdiction. The Constitutions of Claren don, in which the general aim of Henry II. was to restore the rights of the crown over the clergy, ordered that in all civil matters, and in cases of dispute with laymen, the clergy shall be amenable to the royal courts (for text, see Mansi, Concilia, vol. xxi. pp. 1187 sqq.; E. H. Landon, Manual of Councils, pp. 132 sqq.) . The sympathies of the English church and nation were divided, for Becket was both violent and inconsistent in his conduct of the case of the church against the Constitutions. But the king's ungovernable temper broke out in a cry of rage that inspired four of his knights to steal away from his court and murder his enemy in Canterbury Cathedral ; and the wave of reaction caused by this appalling deed deprived the State of many important rights only recovered at the Reformation. One of the worst evils of the later middle ages was the "Benefit of Clergy." "Not only monks and parish priests, but professional men, and an enormous crowd of menials and minor officers of clerical establishments, and in later times anyone who could make some show of being able to read, were safe from the dread of any serious penalty for such crimes as burglary, rape, and homicide, at any rate for the first offence. It was only too easy to obtain minor orders, and the attraction to baser spirits of such privileges and protection was great" (G. M. Trevelyan, History of England, bk. ii. ch. ii.) .
The history of ecclesiastical jurisdiction on the continent of Europe during the middle ages is inseparable from the history of the Roman Catholic Church, of which indeed it is an essential part. The larger questions at issue are indicated in the articles dealing with that subject: and the details may be studied in P. Fournier, Les oficialites au moyen age (188o), M. Gaudry, Traite de la legislation des cultes (1856), J. P. Migne, Diction naire de droit canonique (1844), and Tillemont, Memoires pour servir a l'histoire ecclesiastique (1701-12).
(3.) The penalties inflicted by ecclesiastical courts were tech nically divided into punishments (poenae) and censures (cen surae), purely spiritual and remedial (see Van Espen, pars iii., tit. xl. c. I, 3; Phillimore, Ecclesiastical Law, p. 1064). The poenae were of various kinds. Apart from the case of heresy and kindred offences, the most extreme punishments were imprison ment for life, in the bishop's prison, or, on the other hand, deposition or degradation from the ministry. In the cases of heresy, apostasy and sorcery, the ecclesiastical courts sought the aid of the secular jurisdiction to superadd the punishment of death. Incorrigible offenders on these matters were "left" to the secular power. This provision of the fourth Lateran Council in 1215 was always interpreted to mean death (see Van Espen, Observationes in concilium Lateranense IV.; and, as to Eng lish law and practice, Maitland, op. cit., Essay vi., and pp. 161, 176). The "capital" punishment was generally (always in England) by burning. Burning was an English punishment for some secular offences.
The Concordat with Francis I. by which the pope gave up the right of hearing appeals from France was not many years before the legislation of Henry VIII. in England. Both monarchs pro ceeded on the same lines; but Francis I. got the pope's consent: Henry VIII. acted in invitum, and in time went further.
The legal position of the clergy of the Church of England has been affected by a series of enactments of which the most important are the following: the "Church Discipline Act" (3 and 4 Vict. c. 86) creating the "consistory court"; the "Public Wor ship Regulation Act" (3 7 and 38 Vict. c. 85) ; and the "Clergy Discipline Act" (S 5 and 56 Vict. c. 32). The last remains of the old powers of ecclesiastical jurisdiction in reference to secular causes, have been removed during the I 9th century. (I) All matrimonial, testamentary and ab intestate jurisdiction has been taken away by 20 & 21 Vict. C. 77 (testamentary, etc., England), c. i9 (testamentary, etc., Ireland), c. 85 (matrimonial, England); 33 & 34 Vict. c. IIO (matrimonial, Ireland). Matrimonial juris diction was taken from the bishop of Sodor and Man in 1884. (2) Since 6 & 7 Will. IV. c. 71, tithe has become, except in a few rare cases, tithe rent charge, and its recovery has been entirely an operation of secular law. Most kinds of offerings are now recoverable in secular courts. (3) Administration of pious gifts has passed to the court of chancery. (4) The enforcement of contractual promises has long been abandoned by the courts Christian themselves. (5) Church rates can no longer be enforced by suit (31 & 32 Vict. c. I o9) . (6) Defamation was taken away in England by 18 & 19 Vict. c. 41, and in Ireland by 23 & 24 Vict. c. 32. (7) Laymen can no longer be tried in the spiritual courts for offences against clerks. (8) The jurisdiction for "brawl ing" in church, etc., is taken away by 23 & 24 Vict. c. 32 in the case of the laity (see A. J. Stephens, Ecclesiastical Statutes, i. 336). On the other hand the "Church of England Assembly (Powers) Act, 1919," defined the powers of the Church in refer ence to internal affairs and facilitated Parliamentary sanction where this is required (see ENGLAND, CHURCH OF).
The position of a disestablished or an unestablished Church is comparatively modern, and has given rise to new jural con ceptions. These Churches are collegia licita and come within the liberty of association so freely conceded in modern times. The relations of their bishops, priests or other ministers and lay office bearers inter se and to their lay folk depend upon contract; and these contracts will be enforced by the ordinary courts of law. A consensual ecclesiastical jurisdiction is thus created, which has to this extent temporal sanction. (See ECCLESIASTICAL LAW.) The case of Scotland presents special features. The Church had the same jurisdiction in Scotland and exercised it through similar courts to those which she had in England and France, till about 157o. As late as 1566 Archbishop Hamilton of Glasgow, upon his appointment, had restitution of his jurisdiction in the probate of testaments and other matters (Keith, History of the Scottish Bishops, Edinburgh, 1824, p. 38). There was an interval of un certainty, with at any rate titular bishops, till 1592. Then parlia ment enacted a new system of Church courts which, though to some extent in its turn superseded by the revival of episcopacy under James VI., was revived or ratified by the act of 169o, c. 7, and stands to this day. It is a Presbyterian system, and the Scottish Episcopal Church is a disestablished and voluntary body since 1690 (see PRESBYTERIANISM; SCOTLAND, CHURCH OF; SCOTTISH EPISCOPAL CHURCH).
Discipline over ministers and other office-bearers was exercised by administrative methods in the form of trials before consistories or synods. To this extent ecclesiastical jurisdiction is still exer cised in these countries. Consistories and synods have exercised discipline of a penitential kind over their lay members; but in later times their censures have generally ceased to carry temporal consequences. Ecclesiastical jurisdiction on the civil side for the trial of causes soon disappeared.
The matter is now determined for all countries which have adopted codes, whether after the pattern of the Code Napoleon or otherwise. These countries have created a hierarchy of temporal courts competent to deal with every matter of which law takes cognizance, and a penal code which embraces and deals with all crimes or delicts which the state recognizes as offences. Hence, even in countries where the Roman Church is established, such as Belgium and Italy, the most of the Latin republics of America, and the province of Quebec, and a fortiori where this Church is not established, there is now no discipline over the laity, except penitential, and no jurisdiction exercised in civil suits, except possibly the matrimonial questions of princes (of which there was an example in the case of the late prince of Monaco). In Spain causes of nullity and divorce a thoro, in Portugal causes of nullity between Catholics are still for the court Christian (non-secular).
BIBLIOGRAPHY.—The subject of ecclesiastical jurisdiction in modern Bibliography.—The subject of ecclesiastical jurisdiction in modern times inevitably links itself onto the ecclesiastical and civil history of the countries concerned. On the general subject, see ECCLESIASTICAL LAW; and, for further references, articles "Law, Christian" in Hastings' Encyclopaedia of Religion and Ethics, vol. vii.: "Roman Catholic" and "Eastern" by Adrian Fortescue, and "Anglican" by A. J. Maclean. For the history of the principal codes see CANON LAW. On the develop ment of ecclesiastical jurisdiction in the Church of Rome see ROMAN CATHOLIC CHURCH, and (from other points of view) TRENT, COUNCIL OF ; VATICAN COUNCIL ; and ULTRAMONTANISM. With reference to the Eastern church, see ORTHODOX EASTERN CHURCH ; also Landon, Man ual of Councils (1893) , s.v. "Constantinople" and "Rome" ; Moura vieff, History of the Russian Church, Eng. tr. 1842 ; Hackett, Orthodox Church in Cyprus (1901) ; Milasch, Das Kirchenrecht der morgen landischen Kirche (19os). With reference to the Anglican Church, see Blunt, Phillimore and Jones, Book of Church Law, 1899; W. E. Collins, Nature and Force of the Canon Law (Church Historical Society, no. xxxiv., 1898) ; and the classical statement of Hooker, Ecclesiastical Polity, bk. viii. With reference to the middle ages, see the relative parts of the Cambridge Mediaeval History and the classical works of van Espen (Louvain, 172o) : Jus ecclesiasticum universum; Observationes in Concilium Lateranense iv.; De recursu ad Principem. See also other works mentioned in the course of the foregoing article.
(X.)