Ecclesiastical Jurisdiction

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Theright to guide and rule theChurch of God. The subject is here treated under the following heads:

I. General Concept and Classification of Jurisdiction;
II. Development of Jurisdiction in its strict sense;
III. Present Scope of Jurisdiction in its strict sense.

General concept and classification of jurisdiction

TheChurch founded by Christ for thesalvation of men needs, like everysociety, a regulating power (the authority of theChurch). This power Christ has bestowed upon it. Directly before HisAscension He gave to the Apostles collectively the commission, and with it the authority, to proclaim hisdoctrine to all nations, tobaptize them, and to teach them to observe all things that He had commanded (Matthew 28:18 sqq.). It may be noted here that theDecree "Lamentabili sane", of 3 July, 1907, rejects (n. 52 sqq.) thedoctrine that Christ did not desire to found a permanent, unchangeable Church endowed with authority. It is customary to speak of a threefold office of theChurch: theoffice of teaching (prophetic office), thepriestly office, and the pastoral office (governing office), also, therefore, of the threefold authority of theChurch, that is, theteaching authority,ministerial authority, andruling authority. Since, however, the teaching of theChurch is authoritative, the teaching authority is traditionally included in the ruling authority; regularly, therefore, only the ministerial authority and the ruling authority are distinguished. By ministerial authority, which is conferred by an act ofconsecration, is meant the inward, and, because of its indelible character, permanent capacity to perform acts by whichDivine grace is transmitted. By ruling authority, which is conferred by theChurch (missio canonica, canonical mission), is understood the authority to guide and rule theChurch of God. Jurisdiction, in so far as it covers the relations of man toGod, is calledjurisdiction of the internal forum or jurisdiction of the forum ofHeaven (jurisdictio poli). (SeeE F.) This again is eithersacramental orpenitential, so far as it is used in theSacrament of Penance, or extra-sacramental, e.g. in grantingdispensations from privatevows. Jurisdiction, in so far as it regulates externalecclesiastical relations, is called jurisdiction of the external forum, or brieflyjurisdictio fori. This jurisdiction, the actual power of ruling islegislative, judicial, orcoactive. 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 theparishpriest. Jurisdiction can be further sub-divided into:ordinary, quasi-ordinary, anddelegated jurisdiction. Ordinary jurisdiction is that which is permanently bound, by Divine or human law, with a permanentecclesiastical office. Its possessor is called an ordinary judge. ByDivine law thepope has such ordinary jurisdiction for the entire Church and abishop for hisdiocese. By human law this jurisdiction is possessed by thecardinals, officials of theCuria and the congregations ofcardinals, thepatriarchs,primates,metropolitans,archbishops, thepraelati nullius, andprelates with quasi-epsicopal jurisdiction, the chapters of orders, or, respectively, the heads of orders,cathedral chapters in reference to their own affairs, the archdiaconate in theMiddle Ages, andparishpriests in the internal forum. If, however, jurisdiction is permanently connected with an office, but the office itself is said to be quasi-ordinary, orjurisdictio vicaria. This form of jurisdiction is possessed, for example, by avicar-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 calleddelegated orextraordinary, and concerning it canon law, following theRoman law, has developed exhaustive provisions. This development began when thepopes, especially sinceAlexander III (1159-81), found themselvesobliged, 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.

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, theCouncil of Trent transferred a number ofpapalrights to thebishops "tanquam Apostolicae Sedis delegati", i.e. also as delegates of theApostolic See (Sess. VI, De ref., c. ii, iii, etc.), and "etiam tanquam Apostolicae Sedis delegati", i.e. also as delegates of theApostolic See (Sess. VI, De ref., c. iv, etc.). In the first class of casesbishops do not possess ordinary 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 isspecial delegation. If, however, it applies to an entire class of subjects, it is thengeneral delegation or delegation for the universality of causes. Delegated jurisdiction for the total of a number of matters is known asdelegatio mandata. Only those can be appointed delegates who are competent to execute the delegation. For an act ofconsecration the delegate must have himself thenecessarysacred orders. For acts of jurisdiction he must be an ecclesiastic, though thepope could also delegate alayman. Papal delegation is usually conferred only on ecclesiastical dignitaries or canons (c. xi, in VI°, Derescript., I, iii; Council of Trent, Sess. XXV, De ref., c. x). The delegate must be twenty years old, but eighteen years suffices for one appointed by thepope (c. xli, X, De off. jud. deleg., I, xxix). He must also be free fromexcommunication (c. xxiv, X, De sent. et re jud., II, xxvii). Those placed under the jurisdiction of the delegator must submit to the delegation (c. xxviii, X, De off. jud. deleg., I, xxix). Delegation for one matter can also be conferred upon several. The distinction here 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 (c. xvi, xxi, X, De off. jud. deleg., I, xxix; c. viii, in VI°, h. t. I, xiv). The delegate is to follow exactly his instructions. He is, however, empowered to do all that isnecessary to execute them (c. i, c, cii, ciii, xi, xxi, xxvi, xxviii, X, Xe off. jud. deleg., I, xxix). If he exceeds his power, his act is null (c. xxxvii, X, Xe off. jud. deleg., I, xxix). Whennecessary the delegate can himself delegate, i.e. subdelegate, a qualifiedperson; he can do this especially if he is apapal delegate (c. iii, xxviii, X, De off. jud. deleg., I, xxix), or if he has received permission, or if he has been delegated for a number of cases (Gloss to "Delegatus", c. lxii, X, De appell., II, xxviii). 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 (c. xxvii, X, De off. jud. deleg., I, xxix). 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 (evenre 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 (c. xiv, xix, iv, xxxviii, X, De off. jud. deleg., I, xxix).

Development of jurisdiction in its strict sense

The Church has the right, as a perfect and independentsociety provided with all the means for attaining its end, to decide according to itslaws disputes arising concerning its internal affairs, epecially as to theecclesiasticalrights of its members, also to carry out its decision, ifnecessary, by suitable means of compulsion,contentious orcivil jurisdiction. It has, therefore, theright to admonish or warn its members,ecclesiastical or lay, who have not conformed to itslaws and also, if needful to punish them by physical means, that is,coercive jurisdiction. The church has, first, the power to judgesin. This it does in the internal forum. But asin can be at the same time externally a misdemeanour or a crime (delictum, crimen), when threatened with externalecclesiastical or civil punishment. TheChurch also judgesecclesiastical 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 penancevoluntarily assumed. Finally, another distinction is to be drawn betweennecessary jurisdiction andvoluntary jurisdiction; the latter contemplatesvoluntary subjection on the part of those who seek in legal matters the co-operation ofecclesiastical agencies, e.g. notarially executed instruments, testaments, etc. The judicial power described above, jurisdiction strictly so called, was given byChrist to HisChurch, was exercised by theApostles, 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 theChristian religion theecclesiastical judge, i.e. thebishop, decided matters of dispute that were purely religious in character (causae mere ecclesiasticae). This jurisdiction of theChurch was recognized by the civil (imperial) power when it becameChristian. But long before this the earlyChristians, following the exhortation ofSaint Paul (1 Corinthians 6:14), were wont to submit to ecclesiastical jurisdiction matters which by their nature belonged to the civil courts. As long asChristianity was not recognized by the State it was left to theconscience of the individual whether he would conform to the decision of thebishop or not. When, however,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 thebishop even when it was already pending before a civil judge, and the latter wasobliged to put into effect the decision of thebishop. A further constitution of 331 provided that in any stage of the suit any one of the parties could appeal to thebishop even against the will of the others (Hanel, "De constitutionibus, quas F. Sirmondus, Paris, an. 1631 edidit," 1840). But Arcadius, in 398, and Honorius, in 408, limited the judicial competence of thebishop to those cases in which both parties applied to him (lex VII, Cod. Just., De audientia episc., I, iv). This arbitral jurisdiction of thebishop was not recognized in the new Teutonic kingdoms. In theFrankish kingdoms purelyecclesiastical matters of dispute belonged to the jurisdiction of thebishop, but mixed cases, in which civil interests appeared, e.g. marriage questions, law suits concerningChurch property, etc., belonged to the civil courts.

In the course of theMiddle Ages theChurch succeeded in extending its jurisdiction over all matters that offered anecclesiastical interest (causae spiritualibus annexae), all litigation concerning marriages (c. vii, X, Qui filii sint legit., IV, xvii; c. vii, X, De donat., IV, xx); matters concerning burial (X, De sepult., III, xxviii); testaments (X, De testam., III, xxvi); compacts ratified with anoath (c. iii, in VI°, De foro compet., II, ii); matters pertaining tobenefices (c. ii, X, De suppl. neglig. praelat., I, x); questions of patronage (X, De jur. patron., III, xxxviii); litigation concerningchurch property andtithes (X, De decim., III, xxx). In addition all civil litigation in which the element ofsin was in question (ratio peccati) could be summonded before anecclesiastical court (c. xiii, X, De judic., II, i).

Also, theecclesiastical court had jurisdiction over the affairs ofecclesiastics,monks, andnuns, thepoor,widows, andorphans (personae miserabiles), also of thosepersons to whom the civil judge refused legal redress (c. xi, X, De foro compet., II, ii). Owing to the unsatisfactory administration ofjustice in themedieval world this far-reachingcivil jurisdiction of theChurch was beneficial. However, it eventually overlapped the natural boundaries ofChurch and State. The result was that the ecclesiastic became too much involved in secular litigation and grew estranged from his proper calling. For these reasons, but further also for selfish ones, a reaction against this condition of affairs arose inEngland as early as the twelfth century. The reaction spread toFrance andGermany and gained in influence and justification the more the administration ofjustice by the State improved. At the end of the long vicissitudinous struggle theChurch lost its jurisdiction inres spiritualibus annexal, notwithstanding the claims of theCouncil of Trent (Sess. XXIII, De ref., c. vi; sess. XXIV, De sacr. matr., can. xii; sess. XXV, De ref., c. xx), also the privilege of theclergy, and finally jurisdiction in matrimonial causes as far as their civil character was concerned.

In regard to ecclesiastical jurisdiction in criminal matters theChurch exercised jurisdiction at first only in purelyecclesiastical offences, and inflicted onlyecclesiastical punishments, e.g.excommunication, and in the case ofclerics deposition. The observance of these penalties had to be left to theconscience of the individual. But with the formal recognition of theChurch by the State and the increase ofecclesiastical penalties proportioned to the increase of ecclesiastical offences, came an appeal from theChurch to the secular arm for aid in enforcing the said penalties, which aid was always willingly granted. Some offence, indeed, especially deviations from theCatholicFaith, were by the State made punishable incivil law and secular penalties were attached to them, also to certain disciplinary misdemeanours ofecclesiastics (Cod. Just., lib. I, tit. v, De haeret. et manich.; tit. vii, De Apost.; tit. ix, De jud. et coelic.). Conversely, theChurch in theMiddle 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 theprivilegium fori it withdrew the so-called "criminous clerks" from the jurisdiction of the civil courts. Then it obtained for the court held by thebishop during hisdiocesan visitation (thesend) not only the punishment of those civil misdemeanours which involved the element ofsin and consequently affected bothChurch and State, but it also punished, and as such, purely civil offences. The penal jurisdiction of themedieval Church included, therefore, first the merelyecclesiastical offences, e.g.heresy,schism, apostasy, etc.; then the merely civil offences; finally the mixed offences, e.g.sins of the flesh, sacrilege,blasphemy, magic,perjury,usury, etc. In punishing offences of a purelyecclesiastical character theChurch disposed unreservedly of the aid of the State for the execution of the penalty. When in the aforesaidsend, or court held by thebishop during his visitation, it inflicted punishment on the civil offences of thelaity, the penalty, as a rule, was enforced by the count (graf) who accompanied thebishop and represented thecivil power. The principle prevailed later that an offence already punished by a secular judge was no longer punishable by theecclesiastical judge (c. ii, in VI°, De except., II, xii). When thesend began to disappear, bothecclesiastical 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 (c. viii, X, De foro compet., II, ii). If the matter were brought before theecclesiastical judge he inflicted at the same time the civil penalty, not, however, corporal punishment or death. If the accusation was brought before the secular judge, the civil penalty was inflicted by him and the action of theChurch was limited to the imposition of a penance. TheChurch, however, eventually lost by far the greater part of its criminal jurisdiction for the same reasons which, since the end of theMiddle Ages, led to the loss of most of its contentious jurisdiction, and in the same manner. Moreover, from the fifteenth century on, therecursus ab abusu which first arose in France (appel comme d'abus), that is the appeal from an abuse of power by anecclesiastical authority, did much to weaken and discredit ecclesiastical jurisdiction.

Present scope of jurisdiction in a strict sense

Today the only objects of contentious ecclesiastical jurisdiction (in which jurisdiction, however, the State often takes part or interferes) are: questions offaith, the administration of thesacraments, particularly the contracting and maintenance of marriage, the holding of church services, the creation and modification ofbenefices, the appointment to and the vacation ofecclesiastical offices, therights ofbeneficedecclesiastics as such, theecclesiasticalrights andduties of patrons, theecclesiasticalrights andduties of religious, the administration ofchurch property. As to the criminal jurisdiction of theChurch it now inflicts on thelaity onlyecclesiastical penalties, and solely forecclesiastical offences. If ever civil consequences ensue, only thecivil authority can take cognizance of them. As regardsecclesiastics, the power of theChurch to punish their disciplinary offences and maladministration of their offices, is everywhere acknowledged by the State. WhereChurch and State are not separated, the State aids in investigating these offences, as well as in executing the canonically rendered decisions of theChurch. As to the civil offences ofecclesiastics, ecclesiastical jurisdiction carries with it no secular consequences, though theChurch is free to punish such offences byecclesiastical penalties. According to theBull"Apostolicae Sedis moderationi" (12 October, 1869), thosepersons fall under theexcommunication reserved to thepopespeciali 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 fromecclesiastical tocivil jurisdiction; finally every legislator orperson in authority who directly or indirectly compels a judge to citeecclesiastical persons before a civil tribunal (I, vi, vii, viii). It may be added that in variousconcordats with thecivil power theChurch has more or less abandoned theprivilegium fori ofecclesiastics: Concordat withBavaria, 1817, art. XII, lit. c. (concerning civil litigation); with Costa Rica, 1853, art XIV, XV; withGuatemala, 1853, art. XV, XVI; withAustria, 1855, art XIII, XIV; with Wurtemburg and Baden, 1857 and 1859, art. V.

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