1. The Early and Roman Catholic Churches.
    1. Penal and Disciplinary Jurisdiction.
      1. The First Three Centuries (§ 1).
        The Christian Roman Empire (§ 2).
        The Merovingian Period (§ 3).
        The Carolingian and Later Periods (§ 4).
        Deposition, Degradation, and Suspension (§ 5).
        Matters Calling for Penalty (§ 6).
        The Organ of Ecclesiastical Jurisdiction (§ 7).
        Competence of Ecclesiastical Jurisdiction (§ 8).
        Secular Jurisdiction over the Clergy (§ 9).
        Method of Procedure (§ 10).
    2. Administrative and Civil Jurisdiction.
  2. The Protestant Churches.
    1. Modern Trend (§ 1).
      Fundamental Law in the United States (§ 2).
      Elementary Principles (§ 3).
      Limits of Ecclesiastical Jurisdiction (§ 4.)
      Legal Aspects of Discipline (§ 5).
      Relations of Churches and Officers (§ 6.)

I. The Early and Roman Catholic Churches.
1. Penal and Disciplinary Jurisdiction:
1. The First Three Centuries.

In the apostolic period, the Church exercised such disciplinary jurisdiction as any organization naturally has over its members, expressed in the case of grave faults by exclusion from the Church, with a possibility of restoration to membership on proof of repentance and amendment (I Cor. v. 11; II Cor. ii. 5 sqq.). In the sub-apostolic era this exclusion is not only from the local community but from the whole Church; and the bishop, who now, with the other clergy and the whole body of believers, exercises this jurisdiction, appears as a divinely appointed organ of it, acting in the place of Christ. With the second century appears a stricter principle, denying the possibility of more than one restoration to communion, and of even one in the case of such grievous sins as idolatry, unchastity, and murder. Where restoration was allowed, it followed upon public Penance (q.v.); but this was of the nature of a preliminary voluntarily assumed, not of a penal measure. In the third century deposition and deprivation of income are employed against clerics, in addition to excommunication.

2. The Christian Roman Empire.

With the recognition of Christianity by the State and the increasing conciliar activity, the system developed in more detail. Against laymen different forms of Excommunication (q.v.) were employed; against clerics, deposition, degradation, or suspension, sometimes with deprivation of clerical income or (in the case of young clerics and those in minor orders) corporal punishment. At first, of course, there was no definite code for these proceedings, but the community (or later the bishop) had to decide the individual case. By degrees, however, legal principles were developed to regulate the life of the Church. Thus the Fathers distinguish between peccatum and delictum or crimen, and it is expressly recognized that a sin of thought alone is not subject to external or legal penalties. By the fourth century a definite basis is reached for the infliction of ecclesiastical penalties; for the severer, certain forms of apostasy, immorality and homicide; for the lighter, some cases of contact with paganism or neglect of Christian duties (e.g., of attendance at public worship). A distinction is drawn between poena vindicativa and poena medicinalis or censura, the latter having the amendment of the offender for its chief purpose and terminating with the removal of the offense. These latter are employed mainly against the clergy; those imposed on laymen, including excommunication, are all practically vindicativae. The exercise of jurisdiction over laymen and clergy, below the rank of bishop belonged to the bishop, who was bound to consult his priests and deacons before pronouncing sentence. A court of appeal (and for bishops of first instance) existed in the provincial synod. The Synod of Sardica (343) provides, in case of the condemnation of a bishop, for an appeal from either party to the Bishop of Rome, who may either confirm the sentence or order a new investigation by neighboring bishops, together with priests delegated by him as assessors. On the basis of this decree, which never obtained ecumenical recognition, the popes based the claim to supreme jurisdiction, and to a right of judging in the first instance all metropolitans, primates, and patriarchs; and such a claim was carried into practical effect throughout a large part of the West, under the sanction of the imperial power.

A similar sanction was given to the competence of other ecclesiastical tribunals; and certain offenses against ecclesiastical law, especially the abandonment of the Catholic faith, were made crimes under secular law; secular penalties were also imposed upon some offenses against discipline on the part of the clergy (such as gambling, illegal marriage, wilful abandonment of the clerical state). By Roman law, however, the clergy were not exempted from secular jurisdiction, except that bishops accused of a breach of secular law were to be tried first by a synod of their peers, who were nevertheless obliged to hand over a convicted offender to the State after the imposition of their owe penalty, until Justinian reserved the right to sanction secular proceedings against a bishop to the emperor alone.

3. The Merovingian Period.

During the Merovingian period, the character of excommunication was changed by the acceptance of the doctrine of the indelibility of baptism, which rendered a complete and absolute separation from the Church impossible, while desertion of the Church's faith was unlawful and punishable. Besides the earlier penalties there were now added flogging for slaves and inferior persons, imprisonment in a monastery, and in the Visigothic kingdom banishment, decalvation (scalping), confiscation of property, money fines, the loss of secular dignities, and reduction to slavery. In this period corporal punishment was applied to clerics in major orders as well as minor. The performance of works of penance was now enforced as a penalty, either alone or with others, for life, for a fixed period, or until amendment or removal by ecclesiastical superiors. The judicial system remained much as before, except that the policy of the Visigothic and Frankish kingdoms left little room for appeals


to the pope. In regard to the judgment of clerical offenders, the Frankish law was that crimes punishable by death or exile (treason, homicide, robbery) were referred, in the case of bishops, to a provincial or national synod, and when this had pronounced sentence of deposition the offender came under royal jurisdiction for death, banishment, or confiscation. As to the lower clergy, the Church as early as. the sixth century demanded a change in the old Roman law, requiring the secular courts to abstain from all action until the bishop had proceeded against the accused in the way of ecclesiastical discipline. The edict of Clothair II. (614) conceded this in regard to priests and deacons, and forbade the execution of capital punishment upon them until they had first been deposed by ecclesiastical authority.

4. The Carolingian and Later Periods.

From the ninth to the sixteenth century, the system of jurisdiction received its further development, and has remained practically unchanged in the Roman Catholic Church since the latter date. Partly through the Carolingian capituiaries, and then through a long series of papal enactments, a number of further secular penalties were imposed upon offenders, of the most varied kind, including the deposition of kings and princes, the absolution of their subjects from allegiance, the piercing of the tongue for blasphemy, death for sodomy and abortion, withdrawal of all communication with Christians for Jews, etc., etc. The Roman Catholic Church has not yet abandoned the medieval view that it is entitled to inflict secular penalties, though in consequence of the changed relations between Church and State these have fallen into disuse against laymen, except infamy regarded as a ground of irregularity; and the Church is empowered by modern legislation to inflict them upon the clergy only in the forms of money fines and confinement in a house of correction. In the line of purely spiritual penalties, there were added the local Interdict (q.v.), the refusal of Christian burial as a separate penalty, suspension from particular churchly rights, incapacity to hold ecclesiastical offices, and the indignatio of the pope (loss of papal favor and breaking off of communication). Apart from the limitation of the prohibition of intercourse with excommunicated persons (see EXCOMMUNICATION), a distinction was made in the eighteenth century between suspension from the privileges of church membership (for which in this period the terms interdidum personale, interdictum ingressus ecclesiae came into use) and the

5. Deposition, Degradation and Suspension.

By the end of the twelfth century, in connection with the development of the doctrine of the indelibility of holy orders and the struggle of the Church to maintain the privilegium fori for its clergy, the earlier penalty of deposition was distinguished into two classes--what was now called deposition, and degradation. The former deprived the offender of his office and benefice, of the right to exercise his orders, and of the capacity to be again employed in the service of the Church; the latter, in addition took away from him all the privileges of the clerical state, and delivered him over to the jurisdiction of secular tribunals. This was employed only in definitely fixed grave crimes, especially heresy. Deprivation, which does not render the offender incapable of holding another benefice, was seldom used before the twelfth century, but has been frequent since. A modern variation of it is the removal of a cleric from one benefice to another less desirable one. Suspension has also been developed in detail, and may be ab officio, ab ordine, a beneficio, or totalis, from all three. The Council of Trent gave the right to bishops to inflict suspension ab officio or ab ordine for a sin not publicly known without any preliminary hearing; the only recourse lies to the pope.

A distinction, first occurring in the Visigothic kingdom at the end of the sixth century, has since been made between poenae ferendae sententiae and poenae latae sententiae. The latter class take effect immediately upon the commission of the act with which they are connected, without requiring any judicial process. Excommunication and suspension when they are penalties ferendae sententiae, require a threefold or at least a single peremptory admonition before they can be imposed, thus giving the offender an opportunity to avert the penalty by the performance of due penance. From the twelfth century on, both the popes and general and local councils established an inordinate number of penalties latae sententiae; but Pius IX., in the constitution Apostolicae sedis of 1869, abolished all those which rested on the common law, the later general councils, and the papal constitutions, with the exception of such as were established by the Council of Trent, had to do with papal elections and the internal management of orders, congregations, collegiate bodies, and church institutions, or were expressly named in this decree.

6. Matters Calling for Penalty.

In reguard to the development of the matter covered by the offenses legislated against were in large measure those of a grave moral nature, such as sexual immorality, perjury, and robbery. After the eleventh century, the papal legislation is determined predominantly by the hierarchical interests of the Church, and directed against heresy, the invasion of ecclesiastical liberties, the subjection of clerics to secular tribunals, the appropriation by laymen of ecclesiastical property, lay investiture, and the like. It is true, however, that a large number of penalties provided against the neglect of spiritual duties (the keeping of Sunday, the Easter duty, fasting), and against robbery, false coinage, desertion of children, tournaments, false accusation, abuse of power, and so on; and that the Church, by the erection of the "Truce of God" (q.v.) into a general institution, did much to put down a large class of crimes against person and property. But in spite of all these undeniable services to civilazation, it still remanis true that where the criminal legislation of the medieval pope is determined by clear and consistent policy, it is in cases affecting the position of the Church as a hierarchical power.

If the earlier penal legislation of the Church is of


a purely occasional character, with no attempt to build up a thorough-going system, the same is true to a large extent of the period from the fifteenth to the eighteenth century, including the Tridentine alone among general councils. And again, although the council deals with such ethical crimes as dueling, adultery, seduction and forced marriage, and the papal constitutions with such others as bigamy, sodomy, the slave-trade, piracy, wrecking, and the bearing of false witness, they still impose the majority of their penalties upon what may be called hierarchical offenses. It is for these that the latest constitution of the kind, the Apostolicae sedis, maintains the penalties latae sententiae, which it keeps up for dueling and abortion alone among offenses of a general ethical nature.

7. The Organ of Ecclesiastical Jurisdiction.

The principal organ for the exercise of ecclesiastical jurisdiction on this system is the pope, who since the twelfth century has succeeded in maintaining his claim to be the judex ordinarius singulorum. The Council of Trent, however, following the precedents of the Concordat of Basel and the Council of Constance, decreed that controverted questions should come in the first instance before the bishops. The direct jurisdiction of the pope finds its greatest practical significance in regard to the ecclesiastical dignitaries whose immediate superior he is, the cardinals and metropolitans, and outside of these to the bishops. The Council of Trent, in subjecting the latter to his jurisdiction, did but confirm the established medieval law from the end of the eleventh century, that in all cases of serious offenses, for which degradation, deposition or deprivation were the penalties, they should be wholly subject to papal decision, while less grave matters might be dealt with by the provincial councils.

The Council of Trent, again following the two earlier reforming councils, attempted to exclude as far as possible the final decision of cases in Rome, and so provided for the nomination by provincial or diocesan synods of certain clerics to be known as judices synodales to whom the pope might delegate the decision of certain cases brought before him. This arrangement never had much practical significance, as the popes preferred to place appeals in the hands of their nuncios or of archbishops and bishops, or in some cases to give the nuncios the appointment of those who should hear them. At the present time many cases are finally disposed of by the Roman congregations, especially the Congregatio concilii and the Congregatio episcoporum et regularium (see CURIA).

8. Competence of Ecclesiastical Jurisdiction.

In regard to the competence of ecclesiastical jurisdiction, the Church has always claimed the right to punish any violation of its ordinances either by clergy or by laity, independently of the question whether the offense was also against secular law. As long as it employed purely ecclesiastical penalties, there could be no conflict between the two jurisdictions. This was the case not only under the Roman empire but also in the Merovingian and Carolingian periods--all the more because the Germanic penal code contained but few crimes on which public punishment was inflicted. Up to the twelfth century the Church was thus able to fill up a serious gap in penal legislation by taking cognizance of a number of grave crimes for which the secular law provided no public penalty. When, from the twelfth century on, the latter began to increase the number of crimes which it punished, conflicts could no longer be avoided, and the secular tribunals protested against the invasion of their rights by the Church courts. In practise, then, there developed out of these conditions a distinction of offenses into delicta mere secularia, delicta mere ecclesiastica, and delicta mixta or mixti fori. No general agreement could be or has been reached as to what constitutes the third class, in which both secular and ecclesiastical authorities have competence. Usually it has been held to include the principal offenses against chastity, usury, sorcery, magic, perjury, blasphemy, and the forgery of papal briefs. For modern practice see below, II. The action of the Church against secular offenses is thus confined nowadays almost wholly to the forum internum, i.e., to the imposition of penance in the confessional; and the established ecclesiastical courts only take part in the process in so far as it is a question of cases reserved to the pope or bishop for decision (see CASUS RESERVATI).

9. Secular jurisdiction over the Clergy.

The question of secular jurisdiction over the clergy was raised early in the ninth century by ecclesiastical reformers, with the help of the forgeries of Benedictus Levita and the pseudo-Isidore; and they succeeded to a large extent in enforcing their claim of Exemption (q.v.). Throughout the Middle Ages, indeed, secular rulers maintained their right to punish even bishops for a breach of their obligations as vassals, officials, or subjects, with imprisonment or exile; but they made no attempt, except in rare instances, to exercise a power of deposition, which by the eleventh century was recognized as a right reserved to the pope. In respect to the other clergy, the Church's claim was never acknowledged for clerics who were not recognizable as such by the tonsure and clerical garb, and with the fourteenth century a strong reaction began against such exemption, which finally led to its complete abolition in most countries. The Church, however, still held to it in theory, even in the Syllabus of 1864.

10. Method of Procedure.

The opening of ecclesiastical proceedings was conditioned from the earliest times by the notoriety of the offense, or by self-denunciation on the offender's part, or by the accusation of another; or it might follow ex officio when the authorities had sufficient cause, as in well-grounded suspicion. In all these cases, the bishop might proceed first by a brotherly admonition, on the basis of Matt. xviii. 15-17 (the so-called denunciatio evangelica); if the offender remained obstinate, formal trial and punishment might follow, or in the opposite case he might take upon himself the canonical penance without being shut out of the communion of the Church. From the fourth century the Church adopted the Roman regulations in regard to accusations: the formal charge to be signed by the accuser,


the obligation to prove the charge, and the lex talionis, instead of which excommunication was frequently the penalty for accusers who failed to follow up or to prove their charges. Under the influence of Germanic ideas, the Church further adopted the oath of purgation, especially in the case of clergy who had been tried and not convicted, when some suspicion still remained. The compurgators were dropped, and the process was regarded less as a privilege of the accused than as his duty, to clear himself from suspicion. In the Carolingian period the Frankish Church employed still more of the Germanic procedure; the accused had the right to clear himself by an oath, and if it was made with compurgators he went free of either the charge or the suspicion (in case of ex officio proceedings). Under the joint influence of the Roman and Germanic systems, by the end of the eleventh century this had become the common law of the Church, except that the accuser in the case of clerics was always required to prove his charge. The purgatio canonica was opposed to the purgestio vulgesris or Wager of Battle (q.v.), which the popes were endeavoring to suppress. The objection to the use of this method in ex officio proceedings, that it allowed no objective investigation of the offenses suspected to have been committed, and the need of stricter discipline for the clergy, especially in view of the increasing accusations brought against them by the heretical sects, caused Innocent III. to reform the procedure in ex officio cases, distinguishing two courses, per inquisitionem and per denunciationem. The former was rather a disciplinary than a criminal process, and permitted purgation by oath when no positive result had been reached by the investigation, or when the preliminary proceedings had raised a strong presumption in favor of innocence. The other process required the denunciatio evangelica to precede farther action, which followed the course of criminal procedure in case of recalcitrancy. But this method gradually disappeared from the practise of the Church in consequence of the limitation of its power over the laity in criminal cases. There was the less need for it when, as was frequently the case from the fifteenth century, special officials (called promotores or procuratores fiscales) were appointed as assessors to the ecclesiastical courts, to investigate suspected crimes or disciplinary offenses, bring them before the courts, and represent the public interests at the trial. By the seventeenth century, when the denunciatio evangelica had ceased to be practical in view of the office of these promotores, and when the requirement of an insinuatio clamosa or infamia for the opening of a process per inquisitionem had lost its significance, the place of both methods was taken by a modified form of the latter, the purpose of which was to establish the facts, whether they pointed to the guilt or the innocence of the accused. The purgatio canonica, for which in any case it was increasingly difficult to find compurgators, was out of place in this form of procedure, and disappeared with the seventeenth century. Since papal legislation had made no attempt at a universal reconstruction of the penal and disciplinary procedure from the pontificate of Innocent III. until the beginning of the nineteenth century, the newer system developed variously in different places; but there was a general tendency, caused by the limitation of ecclesiastical jurisdiction and by the diminution of the revenues which had formerly supported the courts, to dispense with all but the essential forms. A similar tendency is displayed in the instructions of the Congregation of Bishops and Regulars issued in 1880, which sets forth an improved and simplified form of procedure, to take place privately and in writing, and allows the bishops to use it when the older form is impossible or inexpedient.

2. Administrative and Civil Jurisdiction.

The development of the civil jurisdiction of the Church is described under AUDIENTIA EPISCOPALIS. Besides this, the imperial legislation expressly recognized the competence of the bishops de religione. i.e., in controversies to be decided according to ecclesiastical rules, concerning, for example, the right to the incumbency of Church offices. In Gaul also such matters were under the jurisdiction of the bishops and synods; but since there was a difference of law between Church and State, and the State did not undertake to execute the ecclesiastical decisions, those matters which required state action (matrimonial causes, questions of church property, etc.) came before the secular courts. In 614 the Church succeeded in getting all cases de possessione (questions of property, to be settled by award, not by public penalty) in which the clergy were concerned before its courts. In the Carolingian period the claims of the Church were recognized by the ordinance that disputes between clerics should be settled by the bishop, and that the bishop should sit with the court in any question de possessione between clerics and laymen. In the Middle Ages the Church succeeded to a great extent in enforcing its contention that the laity had no competence in ecclesiastical matters, helped by the contrast between the confusion or weakness of secular courts and its own prompt and thorough execution of its decisions, with the power of excommunication to back them. According to the canon law, the spiritual courts took cognizance of all causae incidentes spirituales (those which touched the sacraments or offices of the Church, especially marriage); the causae spiritualibus annexae (such as the right of patronage, tithes, betrothals, wills, and agreements ratified by oath); causae civiles ecclesiasticis accessoriae (questions of dowry, legitimacy, etc.). Further, all civil proceedings, in so far as the injustice of one party could be construed as sin, might be brought into the church courts; and so might the cases of personae miserabiles (widows, orphans, paupers, pilgrims), as well as those in which secular judges denied justice. Clergy, monks and nuns, all ecclesiastical institutions, crusaders belonged in any case to the ecclesiastical jurisdiction, except in cases of feudal rights. Here also the Roman Catholic Church still clings to these claims in theory, although they have long ceased to be practical in most countries.


II. The Protestant Churches:
1. Modern Trend.

The jurisdiction exercised at the present time by the churches of western Europe and the United States differs


both in nature and extent from the jurisdiction of the ancient and medieval Church. The changes have been brought about very largely by the changed relations of political and ecclesiastical institutions. These modifications have been developing since the sixteenth century and have paralleled the changes in doctrine and forms of worship. They have at times originated with the churches themselves, but more frequently have resulted from the action of the civil power. While the jurisdiction of the medieval Church covered to a varying extent the institution of marriage, the execution and probate of wills, and the descent of property, and included also a considerable minor criminal jurisdiction over the clergy, the modern churches are by the State deprived of such jurisdiction and confined to matters defined by the civil power as purely spiritual in their objects. Where an ecclesiastical body is by law established, as is the case with the Church of England (see ENGLAND, CHURCH OF), the civil power fixes for the Church its organization and jurisdiction. The modifications since the Reformation have been gradual. The changes in jurisdiction have been most radical where, as in the United States, the Church has ceased to be a governmental institution.

2. Fundamental Law in the United States.

The sphere of ecclesiastical jurisdiction exercised by the American churches has been outlined by the supreme court of the United States in the case of Watson vs. Jones (13 Wallace, U. S. Reports 679, as follows:

"in this country the full and free right to entertain any religious belief, to practise any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations and officers within the general association is unquestioned. All who unite themselves to such a body do so with an implied consent to this government and are bound to submit to it. But it would be a vain consent and would lead to the total suppression of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decisions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognisance, subject only to such appeals as the organism itself provides for."

This sphere of liberty for the purpose of religion has been defined in detail by principles laid down by the civil power. While modern states have in some cases relinquished the power to legislate in ecclesiastical matters, they have everywhere reserved the power to define the sphere of ecelesiastical jurisdiction; and no matter what may be the desires of a church body for added powers over its members, the rule of the State is absolute. Modern states, in defining the powers of bodies organized for the purposes of religion, have not enacted formal codes stating the jurisdiction of such bodies in detail; but they have laid down general principles in the civil courts in the adjudication of cases brought about through church controversies. The civil courts of the United States have in the century past developed some fundamental principles applicable to all the religious organizations of the land which have become law wherever American sovereignty has been extended. Similar principles have been worked out by the civil courts in all parts of the British empire.

3. Elementary Principles.

The basic principle of modern ecclesiastical jurisdiction is that all ecclesiastical relations must be voluntary both in their inception and in their duration. This rule applies as well to church membership as to the holding of ecclesiastical office. No ecclesiastical relations are of the nature of a civil contract in law. The closest juridical analogy is to an obligation in equity. Such relations can be severed at any time without incurring civil disabilities. The polity of the denomination and the obligations laid down in a discipline as assumed by a member do not, from the standpoint of the State, change the voluntary character of the relationship. Another elementary principle limiting ecclesiastical jurisdiction is that the law of the land is law for the churches. So much of the civil law as applies must be read into the internal or canon law of all religious organizations. So also the internal law of religious bodies can validly contain nothing that contradicts the principles of the common and statute law of the land. The churches, therefore, may enact no rule overriding, restraining, or curtailing the civil rights of their members. Nor can the churches make a valid attempt to exempt their members from their civil and political obligations. Thus a church body may not validly discipline its members for exercising the elective franchise or serving upon juries or taking up arms in defense of the State. A further limitation of ecclesiastical jurisdiction is found in the principle that church courts can not with legal sanction adjudicate civil controversies among their members, although the parties may have voluntarily submitted their cases to such courts. No decision can be rendered that will bar the parties from their right of appeal to the civil courts.

4. Limits of Ecclesiastical jurisdiction.

With these as fundamental principles of limitation found in the polity of all the states of western civilization, modern ecclesiastical jurisdiction and discipline are definitely limited to the conduct of moral and spiritual operations, cooperation for the purposes of religion, propaganda of faith, charity, and education. The churches are at liberty to define their faith and to regulate their own affairs. They may lay down rules of conduct for their members and prescribe what manner of life they shall live. Such a life, however, must be in accord with the prevailing standards of public morality, and such standards are in the last analysis fixed by the exercise of the police power of the State by the civil authorities. In many instances modern religious organizations have endeavored to prescribe for their members modes of life not in accordance with the prevailing standards of public morality. There have peen attempts to institute abnormal relations of the


sexes, the infliction of physical suffering, cruel penance, exhausting tests of physical endurance, and lewd assemblies, and acts which constitute a disturbance of the public peace. All such acts on the part of religious bodies bring about the intervention of the civil power. No argument based upon any assumed sanction of revealed religion will validate such acts. Within these well-defined limits the churches may exercise a complete and detailed jurisdiction over their members. They can bring members to trial for violations of discipline and for acts and modes of life contrary to the principles of their faith. They are at liberty to prescribe the rules by which their courts shall be organized and the procedure of trials. Such courts are under legal obligation to proceed according to the law of the body that created them, and should they not live up to their own law, their decisions can be set aside by the civil courts.

5. Legal Aspects of Discipline.

The discipline that can be meted out to church members upon the findings of church courts may extend only (1) to admonition, (2) suspension of privileges, (3) penance, (4) excommunication, and (5) expulsion from membership. If the church law provides for an appeal to a higher judicatory, such an appeal may not be refused by the trial court. If an appeal be refused, the higher judicatories may be compelled by the civil courts to entertain it. If the decision of a church court affects the civil rights as well as the ecclesiastical relations of a church member, so much of the decision as relates to the civil rights will be regarded by the civil courts as null and void, while due effect will be given to so much of the decision as affects purely ecclesiastical relations. Where membership in a particular congregation carries with it the right of sepulture in a certain ground, the loss of membership will result in the loss of that right, as the civil courts have held that such a right is a privilege that can be lost with membership. Marriage, the annulment of marriage, and divorce are now matters within the exclusive jurisdiction of the civil courts, so that church discipline in relation to these matters is entirely without legal effect and can affect only the ecclesiastical standings of the parties.

6. Relations of Churches and Officers.

In general the same principles govern the jurisdiction that the churches exercise over their ministers and other officials. Here the modern jurisdiction is in deepest contrast with that of the medieval Church. From the standpoint of civil law the holding of ecclesiastical office is entirely a voluntary matter, no perpetual tenure or obligation being possible. Any ecclesiastical office may be renounced at any time without incurring civil disabilities. One who accepts office in a religious body voluntarily assumes the obligation to obey the rules of that body not only in all matters pertaining to his office but also as to the mode of life required of him. Under the principles of modern ecclesiastical jurisdiction church office is not a civil right, but is in the nature of a vested interest to be enjoyed upon a certain tenure. In several ways the State recognizes the ministry of the churches. Ordained ministers and priests are among those authorized by the State to perform the marriage ceremony, and such church officials are exempt from jury duty and from enforced military service. The civil courts will entertain the case of a church official when deprived of his office in any other manner than according to the law of the organization to which he belongs. The deposed official can appeal to the civil courts for restitution and can compel the church authorities to grant him a trial according to the law of the body. If, however, he has been duly tried and properly deprived of his office, he has no redress in the civil courts, as he has not been deprived of a civil right and his relation to his church was not contractual. Although the discipline of a church body may require that its ordained ministers refrain from secular employment as means of livelihood, an ordained minister or priest has no claim on his church or superior officials for support unless such a claim is specifically recognized by the law of the church. The penalties which may be prescribed by the judgment of an ecclesiastical court rendered against an official are: (1) censure, (2) the temporary suspension of the right to exercise the functions of his office, (3) deprivation of his office, and (4) expulsion from church membership. No financial penalties can be inflicted nor can the defendant be compelled to share the costs of trial. The church courts have no power to compel the attendance of witnesses, but they can compel, with the aid of the civil courts, the production of books and papers in the custody of those over whom they have jurisdiction. The proceedings of ecclesiastical courts need not be made public, but in the event of testimony being given in public or such testimony being subsequently published and proved false on material points, such testimony may constitute libel and an action will lie for damages for defamation of character.

When there is controversy as to the person entitled to a church office, the civil courts will not take the initiative, but if a proper action can be planned involving the title to property, especially in the case of church trustees, the civil courts will take cognizance of the matter collaterally. Such matters come within the equity jurisdiction of the civil courts. The methods employed by the civil courts when they intervene in ecclesiastical matters are usually the issue of writs of mandamus directed to the ecclesiastical authorities compelling certain action, or the issue of writs of injunction restraining certain proposed action. In case a deposed church official has had in his possession funds belonging to the, organization, an action for an accounting will lie in the same manner as against any civil treasurer or trustee.


BIBLIOGRAPHY: For the early Church consult: Bingham, Origines, II., iv.-vii.; J. Fulton, Index canonum; Greek text and Eng. tranal. and Complete Digest of the . . . Code of Canon Law of the . . . primitive Church, New York, 1883.

For the Roman Catholic Church consult: Corpus juris canonici, ed. A. L. Richter and A. Friedberg, Leipsic, 1879 (best edition); E. Friedberg, De finium inter ecclesiam et civitatem regundorum judicio, Leipsic, 1861; W.


Molitor, Ueber kanonisches Gerichtsverfahren gegen Kleriker, Mainz, 1856; F. Kober, Die Suspension der Kirchendiener, Tübingen, 1862; idem, Deposition und Degradation nach den Grundsätzen des kirchlichen Rechts, ib. 1867; D. Bouix, Tractatus de judiciis ecelesiasticis, 2 vols., Paris, 1866; N. München, Das kanonische Gerichtsverfahren und Strafrecht, 2 vols., Cologne, 1866; J. F. von Schulte, Ueber Kirchenstrafen, Berlin, 1872; F. Droste, Kirchliches Disziplinar und Kriminalverfahren gegen Geistliche, Paderborn, 1881; E. Katz, Grundriss des kanonischen Strafrechts, Berlin, 1881; Jura sacerdotum vindicata, New York, 1883; P. Pievantonelli, Praxis fori ecclesiastici, Rome, 1883; P. Hinschius, Kirchenrecht . . . in Deutschland vols. iv.-vi., Berlin, 1886-97; A. Nissl, Der Gerichtsstand des Klerus im fränkischen Reich, Innsbruck, 1886; A. L. Richter, Lehrbuch des . . . Kirchenrechts, §§ 206-210, 212-226, Leipsic, 1886; R. Sohm, Geistliche Gerichtsbarkeit im fränkisden Reich, in Zeitschrift für Kirchenrecht, ix (1889), 193 sqq.; S. B. Smith, Elements of Ecclesiastical Law, 3 vols., New York, 1893; C. Gross, Lehrbuch des katholischen Kirchenrecht, Vienna, 1894; E. Friedberg, Lehrbuch des . . . Kirchenrechts, 100, 101, 103-107 Leipsic 1895; A. T. Wirgman, Constitutional Authority of the Bishops in the Catholic Church, New York, 1899; J. B. Saegmüller, Lehrbuch des katholischen Kirchenrechts, Freiburg, 1900-04; W. von Brünneck, Beiträge zur Geschichte des Kirchenrechts in den deutschen Kolonisationslanden, 2 parts, Berlin, 1902-04.

For the German Evangelical Churches consult: O. Mejer, Kirchenzucht und Konsistorial-Kompetenz, Rostock, 1851; G. Galli, Die lutherischen und calvinistischen Kirchenstrafen gegen Laien im Reformationszeitalter, Breslau, 1879; A. L. Richter, ut sup., §§ 211, 227-231; R. Frank, Die neueren Disziplinargesetze der deutsch-evangelischen Landeskirchen, Marburg, 1890; E. Friedberg, ut sup., §§ 102, 108-109; K. Köhler, Lehrbuch des . . . Kirchenrechts, pp. 194, 258, Berlin, 1895.

For Protestant Churches in Great Britain consult: J. Brownhill, Principles of English Canon Law, London; 1883; Constitution and Law of the Church of Scotland, Edinburgh, 1884; Compendium of the Acts of General Assembly Relating to Procedure in Church Courts, ib. 1886; H. W. Cripps, Treatise on the Law Relating to the Church and Clergy, London, 1886; W. Mair, Digest of Laws Relating to the Church of Scotland, Edinburgh, 1887; F. H. L. Errington, Clergy Discipline Act, 1892, London, 1892; T. B. Hardern, Church Discipline, Cambridge, 1892; J. Chitty, Statutes Relating to Church and Clergy, London, 1894; R. J. Phillimore, Ecclesiastical Law of the Church of England, 2 vols., ib. 1895; F. W. Maitland, Roman Canon Law in the Church of England, Cambridge, 1898; H. Hardy, Ecclesiastical Proceedings under the Clergy Discipline Acts, London, 1899; H. Miller, A Guide to Ecclesiastical Law, London, 1899; J. H. Blunt, The Book of Church Law, ib. 1901; T. E. Smith, Summary of the Law and Practice in the Ecclesiastical Courts, ib. 1902; J. M. Duncan, The Parochial Ecclesiastical Law of Scotland, Edinburgh 1903; W. H. Frere, The Relation of Church and Parliament in Regard to Ecclesiastical Discipline, Oxford, 1903; P. V. Smith, The Law of Churchwardens and Sidesmen, London, 1903; idem, Legal Position of the Clergy, ib. 1905. For the United States: E. Buck, Ecclesiastical Law, Boston, n.d.; R. H. Tyler, American Ecclesiastical Law, Albany, 1866; V. Hoffman, Ecclesiastical Law in New York, New York, 1868; L. T. Townsend, Handbook upon Church Trials, ib. 1885; C. B. Howell, The Church and Civil Law, Detroit, 1886; S. B. Smith, ut sup.; also New Procedure in Criminal and Disciplinary Causes of Ecclesiastics, New York, 1887 W. D. Wilson, American Church Law, ib. 1889; H. J. Desmond, The Church and the Law, Chicago, 1898; and the literature under CHURCH DISCIPLINE.


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