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Rh APPEAL

651

APPEAL

rights of ciNnl jurisdiction; and likewise a recourse to the ecclesiastical forum against tlic usurpation by the civil forum of the rights of ecclesiastical juris- diction. Thus defined, the "appeal as from an abuse" was in itself legitimate, because its object was to safeguard eiiually the rights both of the State and of the Church. .\n abu.se would l)e an act on either hand, witliout due authority, beyond the limits of their respective ordinary and natural juri.silictioiis. The canons (can. " Dilccto", in bk. VI of Decretals, " De sent, exconi.", in ch. vi) did not exclude a re- course to the ci\il authority when the acts of an ec- clesiastical judge invaded the domain of the civil authority, especially .<is reciprocity gave the ecclesiasti- cal authority the right to re])el with the same weapons anv usurpation by the lay judge to the ilainage of the rightji of the Church. Thus also a recourse to the su- preme civil ruler w;is not deemeil ami.ss when an ec- clesiastical court undertook a cause belonging to the competency of a liigher ecclesiastical court, and the ruler was asked (can. " Placuit " in Decree of (iratian, Pt. II, Q. I, ch. xi) merely to forward it to the proper tribunal without, however, claiming to delegate to it any jurisdiction. Perhaps the first formal manifestation of this appeal in the legitimate sense occurred in the fourteenth century. The ecclesiastical judges hail ac<iuireil a reputation for greater learning and equity, and by the good will of the State, not merely ecclesiastical, but many civil cases of the laity were ailjudicated by them. In 1329 complaint was brought to King Philip de Valois by the advocate general, Peter de Cugnidres, that the civil tribunals were fast lapsing into con- tempt, and were being abamlonetl. The purport of the complaint was to restrict the competency of the ecclesiastical tribunals to their own legitimate fields. Bickerings between the two forums were henceforth frefiuent. ICven the Catholic states, after the be- ginning of the sixteenth century, advanced far in the way of frequent ruptures with the Church. When the Protestant states in the new revolution had acquired control and supervision over the newly reformed bodies even in their spiritual relations, the Catholic states, particularly France, strove to limit the jurisdiction of the Church xs far:us they coulil without ciusting .aside the profes-sion of the Catholic Faith. The Pragmatic Sanction was a serious ag- gression by France upon the acknowleilged rights of the Church and of the Holy See. It is in France that we find the most flagrant series of encroach- ments upon Church juristliction, through pretence of appeals as from an abuse, gradually tending to the elimination of the ecclesiastical forum. During the se\enteenth century the French clergy presented frequent memorials against the encroachments made by their kings and parliaments through constant recourse to these " ap|)eals as from an al)use", which resulted in submitting to civil tribun:ds questions of definitions of faith, the proper administration of the sacraments, and the like. This brought confusion into the regulation of spiritual matters by encourag- ing ecclesiastics to rebel against their lawful eccle- siastical superiors. The lay tribunals undertook to adjudicate .as to whether the ministers of the sacra- ments hail a right to refuse them to those ileemetl unworthy, or the right to Christian burial of Catho- lics dj-ing impenitent or under Church cen.surcs; whether interdicts or suspensions were valid; whether monastic profes-sions should be annulled; whether the bishops permi.ssion was necessary for preaching; whether a specified marriage was contrary- or not to the Gospel; and also to decide the justice of canonical privations of benefices. Many other subjects inti- mately connected with the teaching of the Church were brought before lay tribunals, and unappealable decisions rendered in o|)en contradiction to the canons, as can easily be surmised both from the

absence of theological knowledge, and from the \'isible animus shown in decisions that undertook to subject the spiritual fxjwer of the Church to the dictates of transient iwlitics. A Catholic govern- ment should respect the ecclesiastical canons. This evil interference was mostly on-ing to courtier- canonists who flattered the secular rulers by dwelling uix)n the right of protection over the Church will- ingly conceded in early tlays to the Christian Homaii Emperors. It is true that the latter were occasionally called guardians of the canons, and that they ofleii embodied these canons with the civil legislation of the Empire (see Constantinople, Justinia.n. Nn- Moc.tNo.v). This did not mean, however, that the Emperors were the source of the binding jxiwcr of the canons, which was recognized as inherent in the pope and bishops as successors to the ix)wer of the .\postles to bind and loose, but that the duty of a CatlK)lic empire was to aid in the enforcement of the ecclesiastical laws by the cixtI authority. The Churcli was recognized as autonomous in all things of the divine law and in matters of ecdesiiu-.ti- cal discipline. We find the oecumenical couucil^ appealing to the emperors to put into force tliiir decrees about the Faith, though no one should inlir from this that the emperors were recognized:i^ judges of the faith. So, likewise, when Justinian inserts ecclesiastical disciplinary decrees in the civil code he ex|)lains (Novella, xlii): "we have thus decreed, following the canons of the holy Fathere." When rulers like Charlemagne seemed to take upon themselves undue authority, insisting upon certain canons, the bishops claimed their sole right to govern the Church. Even in mixed as- semblies of bishops and nobles and princes, the bishops insisted that the civil power should not encroach upon the rights of the Cliurch, e. g. in the Council of Narbonne (788). Zaccaria (Dissert;iz. 28) did not hesitato to recognize, however, that in his day (the eighteenth century), as well as in former ages, the Catholic rulers of Catholic States, in their quality of protectors of the Church, might receive a recourse from ecclesiastics in ecclcsiasticd matters, in order that justice might be done them by their ordinary ecclesiastical judges, not as deputies of the civil nilers, but as ordinary judges in their own forum. In her concordats with Catholic states the Churcli, in view of the changed circumstances of society, has granted to several tnat the civil cases of clerics, and such as concern the property and tem- poral riglits of churches, as well as Ijenefices and other ecclesiastical foundations, may be brought ite- fore the civil courts. Nevertheless, all ecclesiastical causes and those which concern the Faith, the .sacra- ments, morals, sacred functions, and the rights con- nected with the sacre<l ministry, belong to the ecclesiastical forum, both in regard of persons and of matter (cf. Concordat with Ecuador in 1881). In the United States, as decreed by the Council of Balti- more (18.37), the church law is that if any ecclesiast ical person or member of a religious bodv, male or female, should cite an ecclesiastic or a religious before a civil court on a question of a purely ecclesiastical nature, he sliouUl know that he falls under the censures decreed by canon law. The Congregation of Propa- ganda in Its comment explainecial proviso was made by Propaganda for the I'nited States (17 .August, 1886), that if a priest should bring a cleric before a civil tribunal on an