the Fifth Week of Lent
1911 Encyclopedia Britannica
This phrase in its primary sense imports not jurisdiction over ecclesiastics, but jurisdiction exercised by ecclesiastics over other ecclesiastics and over the laity. " Jurisdiction " is a word borrowed from the jurists 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 superadded 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, in the limited sense defined by an American Court, as " the authority by which judicial officers take cognizance of and decide causes." Such authority in the minds of lay Roman lawyers who first used this word " jurisdiction " was essentially temporal in its origin and in its sphere. The Christian Church trans- Origin of ferred the notion to the spiritual domain as part of the general idea of a Kingdom of God correlative, on the spiritual side of man upon earth, to the powers, also ordained of God, who had dominion over his temporal estate (see Canon Law). As the Church in the earliest ages had executive and legislative power in its own spiritual sphere, so also it had " judicial officers," " taking cognizance of and deciding causes." Only 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 prince. Moreover, even spiritual authority over members of the Church, i.e. baptized persons, could not be exclusively claimed as of 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.
The fundamental principle of ecclesiastical jurisdiction with its sanction " of excommunication will be found in Christ's words in Matt. xviii. '5-18. A very early example of criminal spiritual jurisdiction exercised by St Paul is found in the case of the incestuous Corinthian (1 Cor. v.). We find later the same apostle exercising like jurisdiction in the cause of Hymenaeus and Alexander (i Tim. i. 20). After the time of the Apostles, we find this criminal jurisdiction exercised by the bishops individually over their respective " subjects " - doubtless with the advice of their presbyters according to the precept of St Ignatius (c. i io). As neighbouring dioceses coalesced into " provinces " and provinces into larger districts (corresponding to the civil " dioceses " of the later Roman Empire), the provincial synods of bishops and the synods of the larger districts acquired a criminal jurisdiction, still purely spiritual, of their own. At first this was " original " and mainly (although not exclusively) over bishops (of the province or larger district). The beginnings of an appellate jurisdiction in the cases of clerics and laymen may be traced before the conversion of the Empire. The bishop over whom the synod of neighbouring bishops had exercised jurisdiction had no formal right of appeal; but sometimes bishops in other parts of the Church would refuse to acknowledge the local synodical sentence and would communicate with a bishop whom they deemed unjustly deposed. The theory, as expressed in legal phrase by St Cyprian in the 3rd century, was that the apostolic power of delegated sovereignty from the Lord, alike legislative and judicial, was held in joint-tenancy by the whole body of Catholic bishops. In both capacities, however, a certain undefined pre-eminence was conceded to the occupants of " Apostolic " sees, i.e. sees traditionally founded by Apostles, or of sees with a special secular position.
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 deposition, 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.
Side by side with this which we may call criminal jurisdiction - none the less real or coercive because its sanctions were purely spiritual - there grew up a quasi-jurisdiction in causes jurisdic= entirely temporal, based upon the free consent of the parties to accept the arbitration of the bishop. This system had also its roots in the New Testament (see Matt. xviii. 15-17 and i Cor. vi. 1-8). In the matter of criminal jurisdiction we paused for a moment at the edict of Milan; but we may at once trace this second or civil branch of episcopal judicature or quasi-judicature down as far as the reign of Charlemagne, when it underwent a fundamental change, and became, if either litigant once chose, no longer a matter of consent but of right.
Constantine decreed that judgment in causes might be passed by bishops when litigants preferred their adjudication to that of the secular courts (see his epistle to the Numidian bishops and Cod. Theodos. Tit. de Episcopis). The episcopal judgment was to be equivalent to that of the emperor and irreversible, and the civil authorities were to see to its execution. Saints Ambrose and Augustine both spent days in deciding temporal causes. Honorius, in the West, at the end of the 4th century, made a constitution providing that if any desired to litigate before the bishops they should not be forbidden, but that in civil matters the prelates should render judgment in the manner of arbitrators by consent ( Cod. 1, Tit. iv.). Where the faithful had had recourse to the bishop, no appeal was to be allowed, and the judges were to command execution of the episcopal decree. A quarter of a century later, however, Valentinian III. in the West expressly provided that bishops were not to be permitted to be judges (that is, of course, in temporal causes), save by the consent of the parties. This legislation was, substantially, adopted by Justinian.
On the revival of the Western Empire, however, Charlemagne, in the beginning of the 9th century, under the mistaken belief that he was following the authority of Constantine I. and Theodosius I., took a great step forward, by which the bishop ceased to be a mere legally indicated arbitrator by consent in secular causes, and became a real judge. By a capitulary he provided that either litigant, without the consent of the other party, and not only at the beginning of a suit but at any time during its continuance, might take the cause from lay cognizance and transfer it to the bishop's tribunal. He re-enacted the prohibition of appeal.
It should be remembered that, from the latter part of the 3rd century, the leading bishops had generally been trained in secular learning. St Cyprian, St Ambrose and St Augustine, St Paulinus of Nola and St John Chrysostom had practised law as teachers or advocates. St Ambrose and St Paulinus had even held high administrative and judicial offices.
To return to the evolution of ecclesiastical jurisdiction from the time of Constantine. With the " Nicene period " came a great development on the criminal side. A system begins to be formed, and the secular arm supports empire the decrees of the Church. The first trace of system is in the limited right of appeal given by the first oecumenical council of Nicaea and its provision that episcopal sentences or those of provincial synods on appeal were to be recognized throughout the world. The fifth canon provides that those, whether clerics or laymen, who are cut off from communion in any particular province are not to be admitted thereto elsewhere. Still examination must be had whether persons have been expelled from the congregation by any episcopal small-mindedness (µucpokxia), or contentious spirit, or such-like harshness (evibia). That this may be conveniently inquired into, synods are to be held, three in every year, in each province, and questions of this kind examined. There is to be no " stay of execution "; the episcopal sentence is to prevail until the provincial synod otherwise decide. It will be noticed that as yet no provision is made for appeals by bishops from provincial synods sitting in first instance.
The edicts of Milan had only admitted the Christian Church among the number of lawful religions; but the tendency (except in the time of Julian) was towards making it the only lawful religion. Hence the practice, immediately after Nicaea I., of superadding banishment by the emperor to synodical condemnation. The dogmatic decrees of Nicaea I. were at once enforced in this temporal manner. On the other hand, the Arian reaction at court worked its objects (see Pusey, Councils of the Church) by using the criminal spiritual jurisdiction of synods against the Catholics - often packing the synods for the purpose. The acts of councils of this age are full of the trials of bishops not only for heresy but for immorality and common law crimes. The accusations are frequently unfounded; but the trials are already conducted in a certain regular forensic form. The secular authorities follow the precedent of Nicaea I. and intervene to supplement the spiritual sentence by administrative penalties. Sometimes an imperial officer of high rank (as, e.g. a " count ") is present at the synod, as an assessor to maintain order and advise upon points of procedure. Leading examples may be found in the various prosecutions of St Athanasius, in whose case also there is the germ of an appeal, tanquam ab abusu. It has been contended that, according to later and more formulated jurisprudence, such an appeal would have lain, since the trial at Tyre was not concerned with purely spiritual matters (see. the case in Hefele, Councils, in loc.). The trial of St Athanasius led to extensions of the right of appeal. This was favoured by the development of the greater sees into positions of great administrative dignity, shortly to be called " patriarchal." A synod was held at Rome, attended by bishops from various regions, which reversed the original judgment of the synod of Tyre which had condemned Athanasius. A much larger synod at Antioch, gathered only from the East, on the other hand, confirmed that judgment. This last synod did something to systematize the criminal procedure of the Church, and its legislation has been always received.
This legislation marks another step forward. Deposition of a bishop by a synod, or of a priest or deacon by his bishop, is to take effect even pending an appeal, and a cleric continuing his functions after sentence in first instance is to lose all right of appeal. The appeal given by Nicaea I. to clerics and laymen from episcopal excommunications is extended. The synod may restore them if convinced of the justice of their cause (and not merely in cases of ajbia). A bishop may appeal to a great assembly of bishops. Any bishop, priest or deacon " importuning " the emperor, instead of exerting his right of appeal to synods, is to lose all right of appeal and never to be restored or pardoned. If a provincial synod be divided as to the guilt of a bishop, the metropolitan is to convene bishops from the neighbouring provinces to decide the cause jointly with the bishops of the original province.
A few years later, in 347, the council of Sardica, a council of practically the whole West save Africa, reversed Tyre and acquitted St Athanasius after a full judicial inquiry. 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 condemned bishop may ask the intervention of Rome. If this be done, the synod of first instance is to send letters to Julius, bishop of Rome. If that prelate think 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 judges appointed by the bishop of Rome to hear the appeal are to be from the neighbouring provinces. The appellant may, however, request that bishop to send priests from his side to sit with the synod of appeal. If such priests are sent, they are to preside in the court of appeal. These canons were always repudiated in the East, and when, sixty years afterwards, they were, for the first time, heard of in Africa, they were repudiated there also.
A rescript of Gratian in 378 empowered the bishop of Rome to judge bishops with the assistance of six or seven other bishops or, in the case of a metropolitan, of fifteen comprovincial bishops. A bishop refusing to come to Rome was to be brought there by the civil power. The rescript, however, was not incorporated in the Codes and perhaps was only a temporary measure.
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 (Tillemont, Ecc.). In Africa in the beginning of the 5th century Apiarius, a priest who had been deposed by the bishop of Sicca for immorality, and whose deposition had been affirmed by the " provincial synod," instead of further appealing to a general synod of Africa, carried his appeal to Pope Zosimus. The pope received the appeal, absolved him and restored him to the rank of priest, and sent a bishop and two priests as legates to Africa with instructions to them to hear the cause of Apiarius anew and for execution of their sentence to crave the prefect's aid; moreover, they were to summon the bishop of Sicca to Rome and to excommunicate him, unless he should amend those things which the legates deemed wrong. The upshot of a long conflict was that the papal claim to entertain appeals from Africa by priests and deacons was rejected by the African bishops, who in their final synodical epistle also repudiate in terms any right of appeal by African bishops to " parts beyond the seas " (see Hefele, Councils, bk. viii.).
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 falling 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 instance. The third and fourth oecumenical synods (Ephesus, 43 1; Chalcedon, 451) were primarily tribunals for the trials of Nestorius 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 Ephesus the Count Candidian was commissioned to maintain order, but took little part in the proceedings. 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. But the synod alone judged and pronounced sentence. No oecumenical synod has tried a patriarch of Old Rome while yet in the flesh. The fifth oecumenical council came nearest to so doing, in the case of Vigilius. That pope, 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, sect. 268 ad fin.). He was not, however, charged with direct heresy, as were Nestorius and Dioscorus, and the synod seems to have hesitated to deal stringently with the primate of Christendom. In the seventh session it accepted the suggestion of Justinian, merely to order the name of Vigilius to be removed from the liturgical prayers, at the same time expressing its desire to maintain unity with the see of Old Rome (Hefele, sect. 273). After the council, Justinian banished the pope to Egypt, and afterwards to an island, until he accepted the council, which he ultimately did ( ib. 276). The sixth oecumenical synod decreed that the dead pope Honorius should be " cast out from the holy Catholic Church of God " and anathematized, a sentence approved by the reigning pope Leo II. and affirmed by the seventh oecumenical synod in 787.
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 " old Rome," by judicial pre-eminence. An example of this is found in the ninth canon of Chalcedon, which also illustrates the enforcement upon a clerical plaintiff in dispute with a brother cleric of that recourse to the arbitration of their ecclesiastical superior already mentioned. 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 b a re his cause before him, so that by the sentence of the bishop himself the dispute may be settled by arbitrators acceptable to both parties. Any one acting against these provisions shall be subject to canonical penalties. If any clerk have a complaint against his own bishop, he shall have his cause adjudicated upon by the synod of the province. But if a bishop or clerk have a difference with the metropolitan of his province let him bring it before the exarch of the " diocese " (i.e. the larger district answering to the civil " diocese "), or before the royal see of Constantinople, who shall do justice upon it. An " exarch " means properly a superior metropolitan having several provinces under him. In the next century Justinian (Nov. 123, c. 22) put the other patriarchates on the same footing as Constantinople. In c. 21 he gives either plaintiff or defendant an appeal within ten days to the secular judge of the locality from the bishop's judgment. If there be no appeal, that judge is to give execution to the episcopal award. The growth of a special " original " jurisdiction at Constantinople, which perhaps developed earlier than the corresponding 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 often assemble a synod from these visiting bishops, which acquired the technical name of o voSos ivSnµouQa, the synod of sojourners. This synod frequently decided questions belonging to other patriarchates.
The criminal jurisdiction thus exercised was generally speaking unlimited. It must be remembered that the forum externum of the ecclesiastical jurisdiction, in the sense in which we now use the phrase, of a judge deciding causes, was not then clearly marked off from the forum internum, or what afterwards came to be called the " tribunal of penance " (see Van Espen, Jus ecc. Univ. pars iii. tit. iv. c. i). Ecclesiastical proceedings by way of prosecution are called " criminal," but they are primarily pro salute animae; whereas temporal criminal proceedings are primarily for the protection of the state and its citizens. Hence a Christian might be first punished in the civil courts and then put to public penance by the ecclesiastical jurisdiction, or vice versa: an apparently double system of punishment which the medieval Church, when the forum externum had become quite separated from the forum internum, sometimes repudiated (see Maitland, English Canon Law, 138, 1 39, 144).
Theodosius began the system of giving secular authority to Church tribunals. Thus, in 376, L. 23 Cod. Theodos. de. Episcopis, &c., subjected clerics for small offences pertaining to the observances of religion to bishops and synods. In 399, L. 1 Cod. de Religione provides that, when it is a matter of religion, it beseems the bishop to judge. A rescript of Constantius, in 355, inserted in Cod. Theod. lxii. de Epis. Ecc. et Cler., excluded bishops from accusations before secular judges and commanded such accusations to be speedily brought before the tribunal of other bishops. This law was probably only intended to be of a temporary character. Then comes the law of Gratian already noticed. Then, in 399, a law of Honorius ( Cod. Theod. L. 1 de Religione): " As often as it concerns religion, it is meet that the bishops should judge, but other causes which belong to ordinary jurisdiction or to public law are to be heard in the ordinary courts ( legibus oportet audiri)." L. 3 de Epis. Jud., at the end of the Theodosian Code, seems, spurious (see the comment of Gothofredus in loco). But a constitution of Honorius in 412 ( Cod. Theod. L. xli. de Epis. Ecc. et Cler. ) provides that clerks are not to be accused except before the bishop. Bishops, priests, deacons, and every other " minister of the Christian law " of inferior degree, are taken from secular jurisdiction in criminal cases. The words are quite general; but it has been contended that they apply only to crimes of an ecclesiastical character (see Gothofredus in loc.; Van Espen, pars iii. tit. iii. c. r, io). In 425 a constitution 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." Justinian has a clearer perception of the demarcation between the spheres of spiritual and temporal law. The 83rd Novell provides that if the offence be ecclesiastical, needing ecclesiastical correction, the bishop shall take cognizance of it. The 123rd Novell (c. 21) provides that if a clerk be accused of a secular crime he shall be accused before 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. If the prosecutor have first brought him before the civil judge, the evidence is to be sent to the bishop, and the latter, if he thinks the crime has been committed, may deprive him of his office and order, and the judge shall apply to him the proper legal punishment. But if the bishop think the evidence insufficient, the affair shall be referred to the emperor, by way of appeal both from bishop and judge. If the cause be ecclesiastical, the civil judges are to take no part in the inquiry. The law includes with clerics, monks, deaconesses, nuns, ascetics; and the word " clerics " covered persons in minor orders, down to doorkeepers.
It will be noticed that Justinian supposes that the prosecutor may begin the proceedings before the civil judge. A constitution of Alexius Comnenus I. seems to send him to the special forum of the accused.
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 10th 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 English 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 ( Leges Edg. c. v.) it was provided that " in the most august assembly the bishop and alderman should be present, and the one should interpret to the people the law of God, the other the laws of men." Edgar, in a speech to St Dunstan and the bishops in synod (in 969), said, "I hold in my hands the sword of Constantine, you that of Peter. Let us join right hands and unite sword to sword" (Hardouin, Conc. torn. vi. p. 1, col. 675). The juxtaposition of the judicatures may, however, have led to some confusion between them.
As to appeals the mixed council of Cliff at Hoo (747) said they should go to the synod of the province. The only appeal to Rome in Saxon times was that of St Wilfrid, bishop of York, who appealed from the division of his see and his deposition for refusing to consent to it, and was heard in a Roman synod under the presidency of Pope Agatho. The synod found him unlawfully deposed and ordered his restoration. Upon his return to England, the Roman judgment was refused recognition and he was for a time imprisoned. Ten years later he was recalled to York, but refusing to consent to the division of his see was again deposed and again appealed to Rome. The appeal was heard at great length, in a synod of 703 under John VI., deputies from the archbishop of Canterbury being present. St Wilfrid was justified and was sent back to his see, with papal letters to the kings of Northumbria and Mercia. The Roman decree was again disregarded. At the council of " Nid " he was reconciled to the other bishops of the province, but not restored. In the end he was brought back to York, but not to the undivided see. The details of the case will be found in Wilkins, Concilia, in Mansi, Concilia, under the various councils named, and in Haddan & Stubbs, Councils and Eccl. Documents, vol. iii.
The penalties which the spiritual court could inflict, in the period between the edict of Milan and c. 854, were properly excommunication whether generally or as exclusion from the sacraments for a term of months or years or till the day of death and (in the case of clerics) suspension or deposition. Gradually, however, doubtless by way of commutation of excommunication and of penance, temporal penalties were added, as scourging, banishment, seclusion in a monastery, fines. It is difficult to say how far some of these temporal penalties were penitential only or how far they could be inflicted in invitos. But the secular arm, from the time of Nicaea I., was in the habit of aiding spiritual decrees, as by banishing deposed bishops, and gradually by other ways, even with laymen. Scourging (although it had been a well-known punishment of the synagogue) was at first forbidden. Can. 28 (26) of the Apostolic Canons imposes deposition on any bishop, priest or deacon striking the delinquent faithful. In Africa, however, a contrary practice early sprang up (see St Augustine, Epist. clix. ad Marcellum al. cxxxiii.). The small council of Vannes in Brittany in 465 made it an alternative punishment for clerks convicted of drunkenness (Can. 13). Canon 13 of the first council of Orleans, which has been cited in this matter, seems to have no application. St Gregory the Great seems to assume that scourging and seclusion in a monastery are in the discretion of episcopal tribunals (see Epistles, lib. ii. ep. 11, 40, 42, 44, 45; lib. vii. ep. i 1, 67; lib. xii. ep. 3 1, c. 4). The 6th council of Toledo (in 693) has been cited as if it visited certain very great sinners with scourging as an ecclesiastical punishment. In fact, it only approves the punishment as ordered by the Visigothic laws. An alleged decree of a council of Autun in 670 is part of a code of discipline for monasteries (see authorities cited by Hefele, Councils, sect. 290, towards the end). Banishment does not seem to have been inflicted by the spiritual court in invitum. Seclusion in a monastery seems first to have been used by the civil power in aid of the spiritual. The fifth canon of the council of Macon, in 584, forbids clergy to dress like laymen and imposes a penalty of thirty days' imprisonment on bread and water; but this may be merely penitential. There is little evidence of the imposition of fines as ecclesiastical penalties; but there are references to the practice in the epistles of St Gregory the Great, notably in his instructions to St Augustine. Gregory III. copies from St Gregory I. Probably these also were by way of penance. Isolated examples in the early middle ages of metropolitans dealing with their suffragan bishops by imprisonment in chains were extra-canonical abuses, connected with the perversion of Church law which treated the metropolitan (who originally was merely convener of the provincial synod and its representative during the intervals of sessions) as the feudal " lord " of his comprovincials. With the later 9th century we enter upon a new epoch, and by the time of Gregory VII., in the 11th century, the tribunals have fallen into the hands of a regular class of canonists who are in fact professional church-lawyers in orders. The changes due to the adoption of the False Decretals by Nicholas I. and the application of their principles by Hildebrand (afterwards Gregory VII.) are discussed in the article Canon Law. The later medieval system, thus inaugurated, may be considered (1) in its hierarchy, (2) in the subject matter of its jurisdiction, ( 3 ) in its penalties. 1. (a) It is a system of courts. Much that had been done by bishops, sine strepitu forensi et figura judicii, is now done in the course of regular judicial procedure. Again, the court takes the place of the synod. The diocesan synod P Y Y system. 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.
(b) 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 appoints his seneschal or steward, so the bishop appoints his official.
(c) The archdeacon acquires a concurrent ordinary jurisdiction with the bishop (see Archdeacon). For some time it was considered that he was a mere office-holder dependent on the will of the bishop with a jurisdiction merely " vicarial "; but by the 13th century it was settled that he held a " benefice " and that his jurisdiction over causes was ordinary and independent of the bishop (Van Espen, pars i. tit. xii. c. 1; Fournier, Les Officialites au moyen age, p. 134). It was partly in order to counterpoise the power of archdeacons that bishops created officials (Fournier, p. 8). Archdeacons in course of time created officials who presided in court in their stead. The extent of jurisdiction of archdeacons depended much upon local customs. In England the custom was generally in their favour. Ordinarily, the appeal from an archdeacon or his official lay to the court of the bishop; but by custom the appeal might be to the court of the metropolitan. The Constitutions of Clarendon, in 1164, made the appeal from the court of the archdeacon lie to the court of the bishop.
(d) The official of the bishop might be his official principal, who was his alter ego, or a special officer for a particular locality ( officialis foraneus). The latter was treated as a mere delegate, from whom an appeal could be made to the bishop. The former had one consistory with the bishop, so that appeals from him had to be made to the court of the metropolitan. How far the official principal had jurisdiction in criminal matters by virtue of his office, how far it was usual to add this jurisdiction by special commission, and what were the respective limits of his office and that of the vicar-general, are questions of some nicety. The emphasis in Italy was on the vicar-general ( Sext. de officio Vicarii). In the Low Countries, France and England the jurisdiction of the official principal was wider (Van Espen, pars i. tit. xii. cc. 4, 5; Fournier, p. 21). But he could not try criminal matters unless specially committed to him (Lyndwood, Provinciale, lib. ii. tit. I). Later in Englnd it became usual to appoint one man to the two offices and to call him chancellor, a word perhaps borrowed from cathedral chapters, and not in use for a diocesan officer till the time of Henry VIII. or later (see Chancellor). In Ireland the title, till the church was disestablished, was vicar-general.
The importance of distinguishing the normal functions of an official principal and a vicar-general lies in this: that 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 (see Ridley, View of the Civil and Eccl. Law; Ayliffe, Parergon juris ecclesiastici, p. 161; Godolphin, Abridgement of the Laws Ecclesiastical, p. 8). The " parlements " of France were constantly insisting on the independence and irremovability of the official (Fournier, p. 219). But jurisdiction which was not necessarily incident to the office of the official principal, that is to say voluntary jurisdiction, such as the granting of licences and institution to benefices, and criminal jurisdiction over clerks (and probably over laymen), the bishop could reserve to himself. Reservations of this nature are made in many English patents of chancellors and were held good in R. v. Tristram, 1902, I K.B. 816.
(e) The ecclesiastical and temporal 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 concerns 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 and his spiritual courts were kept by distinct officers (Fournier, p. 2). (f) 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.).
(g) 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 (Fournier, p. 2 19).
(h) Several attempts were made by metropolitans and their officials to take causes arising in the dioceses of their comprovincials in the first instance and not by way of appeal. The officials of primates in their turn made similar attempts. After long struggles this was hindered, in France by the bull Romana (Fournier, p. 218), in England by the Bill of Citations, 23 Henry VIII. c. 9, and Canon 94 of the Canons of 1603. The preamble of the " Bill of Citations " is eloquent as to the mischief which it is framed to prevent. There are, however, a few cases in which the metropolitan is still allowed to cite in the first instance. One of them was in cases of " perplexity." " Perplexity " arose where the suffragans " could not owing to the geographical limitations of their competence do full justice " (Maitland, pp. 118-119). Such was the case of probate where notable goods of the deceased lay in more than one diocese. Hence the origin of the " prerogative court " of Canterbury (cf. Van Espen, pars i. tit. xix.; and for Spain, Covarruvias, Pract. Quaest. c. 9).
(i) Gradually there grew up a mass of peculiar and exempt jurisdictions (Ayliffe, pp. 417, 418; Phillimore, Eccl. Law, pp. 214, 927; de Maillane, Did. du droit canonique, s.v. " Exemptions "). Exempt jurisdictions began with the monasteries and were matter of vehement discussion in the later middle ages. There were no true exemptions before the 11th century (Van Espen, pars iii. tit. xii.). Peculiar or special jurisdiction, equal to that of the bishop, was given to deans and chapters over the cathedral precincts and in places where they had corporate property (see Parham v. Templer, 3 Phil. Ecc. R. 22). Sometimes it was given to deans alone or to prebendaries in the parishes whence they derived their prebends. Where the archdeacon had a jurisdiction co-ordinate with the bishop, it was called a peculiar. The metropolitans had peculiars within the dioceses of their comprovincials wherever they had residences or manors, and some whose origin is uncertain, e.g. that of the fifteen parishes in the deanery of the Arches. The official administering justice for the metropolitan was usually called a dean. From a peculiar jurisdiction ranking as episcopal the appeal lay to the court of the metropolitan. As to metropolitan peculiars, the metropolitan might give an appeal from the dean to his regular official principal. Thus, in Canterbury there was an appeal from the dean of Arches to the official principal of the Arches court. When peculiars were abolished ( vide infra ) the dean of Arches disappeared, and his title, in the 19th century, was erroneously given to the official principal. On peculiars in Spain cf. Covarruvias, Works, tit. i. p. 410. The French parlements, after the middle ages, discouraged them. In exempt convents the head of the monastery or priory exercised jurisdiction subject to an appeal to the pope.
(j) It is said that originally a metropolitan had only one official principal, who, like the metropolitan himself, acted both for the diocese and province. Fournier (p. 219) says that in France it was not till the 17th century that there grew up a custom of having different officials for the metropolitan, one for him as bishop, a second as metropolitan, and even a third as primate, with an appeal from one to the other, and that it was an abuse due to the parlements which strove to make the official independent of the bishop. In England there has been, for a long time, a separate diocesan court of Canterbury held before the " commissary." The word is significant as showing that there was something special and restricted about the position. In York there are two courts, one called the consistory for the diocese, the other called the chancery for the province. But the same person was often official of both courts.
(k) 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 adjudicate upon it. He merely corrects slackness or lack of doing justice (Si archiepiscopus defecerit in justitia exhibenda ) and by his writ (precepto ) directs the controversy to be determined in the metropolitan'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, and 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 Clarendon, 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 jurisdiction 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. Such an appeal lay even in cases where there was a refusal to exercise voluntary jurisdiction (de Maillane, Dictionnaire du droit canonique, tit. " Abus," cf. tit. "Appel "). This writer traces their origin to the 14th century; but the procedure does not seem to have become regularized or common till the reigns of Louis XII. or Francis I. (cf. Dict. eccl., Paris, 1765, titt. " Abus " and " Appel comme d'abus "). On the recursus ad principem and the practice of " cessation " in Belgium, Germany and Spain, cf. Van Espen's treatise under this title ( Works, vol. iv.) and Jus eccles. univ. pars iii. tit. x. c. 4. Louis XIV. forbad the parlements to give judgment themselves in causes upon an appel comme d'abus. They had to declare the proceedings null and abusive and command the court Christian to render right judgment (Edict of 1695, arts. 34, 36, cited in Gaudry, Traite de la legislation des cultes, Paris, 1854, tom. i. pp. 368, 369).
In Catalonia " Pragmatics," letters from the prince, issued to restrain jurisdiction assumed by ecclesiastical judges contrary to the customs of the principality. Thus in 1368 Peter III. evoked to the royal court a prosecution for abduction pending before the archbishop of Tarragona, declaring that the archbishop and the official were incompetent to judge noblemen. See this and other instances collected in Usages y demas derechos de Cataluna, by Vives y Cebria (Barcelona, 1835), tom. iv. p. 137 et seq.
(1 ) 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 (see de appell. c. Dilect. iii. for general rule, and c. 3 de appell. in 6 for different rule in case of the pope, and authorities cited in Van Espen, pars iii. tit. x. c. 2, 5). 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." Appeals to Rome lay from interlocutory as well as final judgments. Causes could even be evoked to Rome before any judgment and there heard in first instance (Van Espen, pars iii. tit. x. c. 1, 8).
There was an alleged original jurisdiction of the pope, which he exercised sometimes by permanent legates, whom Gregory VII. and his successors established in the chief countries of Europe, and to whom were committed the legislative executive and judicial powers of the spiritual " prince " in the districts assigned to them. These Clement IV. likened to " pro-consuls " and declared to have " ordinary " jurisdiction; because they had jurisdiction over every kind of cause, without any special delegation, in a certain defined area or province (c. ii. de Officio Legati in 6). They were expressed to have not merely appellate but original jurisdiction over causes (iii. c. i. de Officio Legati). The occupants of certain sees by a kind of prescription became legates without special appointment, legati nati, as in the case of Canterbury. In the 13th centur y Archbishop Peckham, says Maitland (p. 117), as archbishop "asserted for himself and his official (1) a general right to entertain in the first instance complaints made against his suffragans' subjects, and (2) a general right to hear appeals omisso medio." It was, for the time, determined that the archbishop might himself, in virtue of his legatine authority, entertain complaints from other dioceses in first instance, but that this legatine jurisdiction was not included in the ordinary jurisdiction of his official principal, even if the archbishop had so willed it in his commission. In fact, however, the official did before the end of the later medieval period get the same power as the archbishop (Maitland, pp. 118-, 20; cf. Lyndwood, lib. v. tit. 1), till it was taken from him by the Bill of Citations.
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. Dr Maitland (essay on" The Universal Ordinary ") thinks, but without very much foundation, that great numbers especially of the more important causes were tried before these delegates; although the records have largely perished, since they were the records of courts ' which were dissolved as soon as their single cause had been decided. 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 questions 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 iii. tit. x. c. 2, 12, 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.).
(m) The jurisdiction of a bishop sede vacante passed, by general law, to the dean and chapter; but in England the metropolitans became " guardians " of the spiritualities and exercised original jurisdiction through the vacant diocese (Phillimore, pp. 62-63), except in the case of Durham, and with a peculiar arrangement as to Lincoln.
If the metropolitan see were vacant the jurisdiction was exercised by the dean and chapter through an official (Rothery, Return of Cases before Delegates, Nos. 4, 5). As to France see Fournier, p. 294.
(n) Officials, even of bishops and metropolitans, need not be in holy orders, though Bishop Stubbs in his paper in the Report of the Commission on Ecclesiastical Courts seems to say so. They had to be clerics, that is, to have received the tonsure. Even papal delegates might be simple clerks (Van Espen, pars iii. tit. V. C. 2, 20).
It came, however, to be the practice to impose some restrictions, as on clerks twice married. Thus Archbishop Chichele provided that no clerk married or bigamous (that is, having had two wives insuccession) should exercise spiritual jurisdiction (see Lyndwood, lib. iii. tit. 3). Abroad unsuccessful attempts were made by local councils to enact that officials and vicars-general should be in holy orders (Hefele on Councils of Tortosa in 1429 and Sixth of Milan in 1582). These councils, as will be seen, are late.
(o) With or without the concurrence and goodwill of the national Church, restrictions were imposed by the State on the papal jurisdiction, whether original or appellate. In England the Constitutions of Clarendon (by chap. viii.) prohibited appeals to the pope; but after the murder of St Thomas of Canterbury Henry II. had to promise not to enforce them. The statutes 38 Edw. III. st. 2, 13 Rich. II. st. 2, C. 2, and 16 Rich. II. c. 5 forbid such appeals; but it is suggested that notwithstanding the generality of their language they refer only to cases of temporal cognizance. Cases upon the execution of these statutes are collected in Stillingfleet, On Ecclesiastical Jurisdiction, p. 189; Gibson, Codex, 83. Obstacles were placed in the way of appeals to the pope omisso medio. Thus when a writ of significavit issued on the mandate of a bishop, an appeal to Rome availed not to stay execution; but if there were an appeal to the archbishop it was otherwise. It therefore became the custom to lodge a double appeal: one to the archbishop " for defence," and the other to the pope as the real appeal (" Hostiensis," Super Decret. ii. fol. 169; cf. Owen, Institutes of Canon Law, 1884, pt. i. C. 1 9, 5).
There seems to have been no machinery for assisting the original or appellate jurisdiction of the pope by secular process, - by significavit or otherwise.
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 jurisdiction, 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. 280). 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 - of which infra ), evocation of causes to Rome, appeals to Rome omisso medio, 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 " (Migne, Dict. du droit canonique, " Pragmatique Sanction "). The parlements registered the - Sanction and the effect was permanent 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 Base canon. All causes, except the " greater," were to be terminated in the country where the proper cognizance would lie (Migne, op. cit. " Concordat "). 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 legislation, and their arrets, the conflict of secular and ecclesiastical jurisdictions was settled until the Revolution (Migne, ubi sup.). " Greater causes " came in France to be restricted to criminal prosecutions of bishops. Even in these the original jurisdiction of the pope was taken away. In first instance they were tried by the provincial synod. Thence there was appeal to the pope (de Maillane, op. cit. s.v. " Causes majeures "; Dict. eccl., Paris, 1765, s.v. " Cause "). The only original jurisdiction left to the pope was in the case of the matrimonial causes of princes. But they could only be heard on the spot by judges delegate. Examples are the causes of Louis XII. and Jeanne of France in 1498, and of Henry IV. and Marguerite of Valois in 1599 (Migne, op. cit. s.v. " Causes "). The prohibition of papal interference was enforced if necessary by the appel comme d'abus (vide supra). Out of respect for the pope this appeal was not brought against his decrees but against their execution ( Diet. eccl., Paris, 1765, s.v. " Abus ").
Spain appears to have permitted and recognized appeals to the pope. A royal writ of the 16th century cited by Covarruvias (c. xxxv.) prohibits execution of the sentence of a Spanish court Christian pending an appeal to the pope.
2. The subject matter over which the ecclesiastical courts had jurisdiction was no longer purely " criminal " with a civil quasijurisdiction 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. For England it may be thus classified: (a) Matrimonial. - This arose naturally from the sacred character of Christian marriage. This jurisdiction was exclusive. From it followed the right of the courts Christian to pronounce upon questions of legitimacy. Upon this right an inroad was early made, in consequence of the question of legitimation by subsequent marriage. In the 12th century the Church's rule, that subsequent marriage did legitimize previous issue, was settled (c. 6, x. 4, 17). The king's judges then began to ask the ordinary the specific question whether A. B. was born before or afte,r his parents' marriage. After the inconclusive proceedings at the realm-council of Merton (1236), when spiritual and temporal lords took opposite views, the king's judges went a step further and thenceforward submitted this particular question to a jury. All other questions of legitimacy arising in the king's courts were still sent for trial to the bishop and concluded by his certificate (see Pollock and Maitland, Hist. Eng. Law before Edward I. vol. i. 105-106; Maitland, ubi supra, pp. 53-56) ( b) Testamentary and in regard to succession from intestates. - Real property was not the subject of will or testament in the medieval period. But as to personal property, the jurisdiction of the courts Christian became exclusive in England. The Church, East and West, had long asserted a right to supervise those legacies which were devoted to pious uses, a right recognized by Justinian ( Cod. i. 3.46). The bishop or, failing him, the metropolitan, was to see such legacies properly paid and applied and might appoint persons to administer the funds (Pollock and Maitland, op. cit. ii. 330). This right and duty became a jurisdiction in all testamentary causes. Intestacy was regarded with the greatest horror, because of the danger to the intestate's soul from a death without a fitting part given to pious uses (Maine, Ancient Law, ed. 1906, note by Pollock, p. 230; cf. Pollock and Maitland, op. cit. ii. 354). Hence came the ' jurisdiction of the ordinary in intestacy, for the peace of the soul of the departed. This head of ecclesiastical jurisdiction was in England not transferred to the secular court till 1857.
(c) Church Lands
If undoubtedly held in frankalmoign or " free alms," by a " spiritual " tenure only, the claim of jurisdiction for the ecclesiastical forum seems to have been at first conceded. But the Constitutions of Clarendon (c. 9) reserved the preliminary question, of " frankalmoign " or not, for a jury in the king's court. Then, if the tenure were found free alms, the plea was to be heard in the court Christian. From the 13th century, however, inclusive, the king's courts insisted on their exclusive jurisdiction in regard to all realty, temporal or " spiritual " (Pollock and Maitland, op. cit. i. 106).
(d) Title to present to and possession of benefices
As to the title to present to benefices, the courts Christian at one time had concurrent jurisdiction with the temporal courts. "Advowsons" were, however, looked upon as a species of " real " property in England, and therefore the king's court early claimed exclusive jurisdiction in disputes where the title to present was involved. The Constitutions of Clarendon provided that these causes should be heard only in the king's court (c. 1). This rule was applied even where both litigants were " spiritual." In the 13th century abbots sue each other in the royal court for advowsons (Selden Soc. Select Civil Pleas, i. pl. 245). In 1231, in such a suit, the bishop of London accepts wager of battle (Pollock and Maitland, op. cit. i. 105). In cases, however, where the title to present was not in question, but the fitness of the clerk presented, or, in cases of election to benefices, the validity of the election, there was jurisdiction in the courts Christian.
(e) The recovery of tithes and church dues, including in England church rates levied to repair or improve churches and churchyards. _ (f) Questions concerning fabrics, ornaments,' ritual and ceremonial of churches.
(g) Administration of pious gifts and revenues given to prelates or convents
Their right application could be effectively enforced only in the courts Christian; until the rise in England of the equitable jurisdiction of the court of chancery and the development of the doctrine of " uses " at the end of the middle ages.
(h) Enforcement of contractual promises made by oath or pledge of faith
The breaking of such a promissory oath was called " perjury " (as in classical Latin and in Shakespeare), contrary to modern usage which confines the word to false evidence before a court of justice. In regard to the execution of these promises, the jurisdiction of the ecclesiastical courts was possibly traversed by c. 15 of the Constitutions of Clarendon;
but allowed by the statute 13 Edw. I. st. 4. As just intimated, besides the enforcement of the promise, the " perjury " was treated as an ecclesiastical crime.
The criminal jurisdiction of courts Christian over laymen included, besides these " perjuries," (a) all sexual of f ences not punishable on indictment; ( b) Defamation of character (the king's courts came in time to limit this to such defamation as could not be made the subject of a temporal action); ( c) Offences by laymen against clerks (i.e. against all "tonsured" persons, supra); (d) Offences in regard to holy places - " brawling " and such like; ( e) Heresy, schism, apostasy, witchcraft. In regard to " clerks," there was (1) all the criminal jurisdiction which existed over laymen, and (2) criminal jurisdiction in regard to professional misconduct. Concerning " felonious " clerks the great questions discussed were whether the courts Christian had exclusive jurisdiction or the king's court, or whether there was a concurrent jurisdiction. The subject was dealt with in the Constitutions of Clarendon, formally revoked after the murder of St Thomas of Canterbury. In the 13th century it was recognized that a " clerk " for felony was subject only to ecclesiastical trial and punishment; punishment which might involve lifelong imprisonment. For " misdemeanours," as yet unimportant, he had no exemption from secular jurisdiction (Pollock and Maitland, op. cit. ch. iv.). At some indeterminate later period, the " clerk " was tried for felony by a jury in the king's court and then "pleaded his clergy," after conviction there, and was remitted to the ordinary for ecclesiastical punishment. " Clerks " for the purpose of "benefitof clergy," included not only persons in minor orders, but all " religious " persons, i.e. monks, friars, nuns, &c. Later the custom arose of taking " clerk " to include any " literate, " even if not in orders or " religious" (cf. Stephen, Hist. Crim. Law, i. 461). The statute 4 Hen. VII. c. 13 took away benefit of clergy, if claimed a second time, from persons not " within orders," in certain bad cases. 4 Hen. VIII. c. 2 (a temporary act) took away " clergy," in certain heinous crimes, from all persons not in " holy " orders. This statute was partly renewed by 22 Hen. VIII. c. 1 3. Other changes were introduced by 23 Hen. VIII. c. and later acts. In time, " benefit of clergy " became entirely diverted from its original objects.
In France, till 1329, there seems to have been no clear line of demarcation between secular and ecclesiastical jurisdictions. Beaumanoir ( Coutume de Baulvoisis, ch. xi., cited Gaudry, op. cit. i. 22) had laid down the principle that spiritual justice should meddle only with spiritual things. In the year named the secular courts complained to the king, Philip of Valois, of the encroachments of the courts Christian. The " cause " was solemnly argued before that monarch, who decided to leave things as they were (Migne, Diet. du droit canon., s.v. " Officialites "). In 1371 Charles V. forbade spiritual courts to take cognizance of " real " and "possessory " actions even in regard to clerks (Migne, loc. cit.; cf. Gaudry, ubi sup.). From this period the parlements began the procedure which, after the Pragmatic Sanction of Charles VII., in 1438 took regular shape as the appel comme d'abus (supra; Migne, loc. cit.). Testamentary causes at first were subject to the concurrent jurisdiction of the spiritual and secular courts. After the ,4th century, the latter had exclusive jurisdiction (Van Espen, op. cit. lib. iii. tit. ii. cc. 2, 15, 16). In regard to marriage the secular jurists distinguished between the civil contract and the sacrament, for purposes of separating the jurisdiction ( Diet. eccl.,
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Chisholm, Hugh, General Editor. Entry for 'Ecclesiastical Jurisdiction'. 1911 Encyclopedia Britanica. https://www.studylight.org/​encyclopedias/​eng/​bri/​e/ecclesiastical-jurisdiction.html. 1910.