Page:Catholic Encyclopedia, volume 8.djvu/644

 JURISDICTION

568

JURISDICTION

here to be made is whether they have to act jointly and severally {collegiately), jointly but individually (solidaTily), or solidarily at least in some given case (c. xvi, xxi, X, De off. jud. deleg., I, xxix; c. viii, in VI°, h. t. I, xiv). The delegate is to fol- low exactly his instructions. He is, however, em- powered to do all that is necessary to execute them (c. i, V, vii, viii, xi, xxi, xxvi, xxviii, X, De off. jud. deleg., I, xxix). If he exceed his power, his act is null (c. xxxvii, X, De off. jud. deleg., I, xxix). When necessary the delegate can himself delegate, i. e. sub- delegate, a qualified person; he can do this especially if he is a papal delegate (c. iii, xxviii, X, De off. jud. deleg., I, xxix), or if he has received permission, or if he has been delegated for a number of cases (Gloss to " Delegatus", c. Ixii, X, De appell., II, xxviii). Since delegation constitutes a new court appeal can be taken from the delegate to the delegator, and in the case of subdelegation to the original delegator (c. xxvii, X, De off. jud. deleg., I, xxix). Delegated jurisdic- tion expires on the death of the delegate, in case the commission were not issued in view of the per- manence of his office, on the loss of office or the death of the delegator, in case the delegate has not acted (re adhiie Integra, the matter being still intact), on recall of his authority by the delegator (even re adhuc nondum Integra, the matter being no longer in- tact), on expiration of the allotted time, on settlement of the matter, on declaration of the delegate that he has no power (c. xiv, xix, iv, xxxviii, X, De off. jud. deleg., I, xxix).

II. Development of Jurisdiction in its Strict Sense. — The t'hurch has the right, as a perfect and independent society provided with all the means for attaining its end, to decide according to its laws dis- putes arising concerning its internal affairs, especially as to the ecclesiastical rights of its members, also to carry out its decision, if necessary, by suitable means of compulsion, fonfentoits or fini jurisdiction. It has, therefore, the right to admonish or warn its members, ecclesiastical or lay, who have not conformed to its laws, and also, if needful to punish them by physical means, that is, coercive jurisdiction. The church has, first, the power to judge sin. This it does in the internal forum. But a sin can be at the same time externally a misdemeanour or a crime {delictum, crimen), when threatened with external ecclesiastical or civil punishment. The Church also judges eccle- siastical crimes in the external forum by infliction of penalties, except when the wrong-doing has remained secret. In this case it contents itself, as a rule, with penance voluntarily assumed. Finally, another dis- tinction is to be drawn between necessary jurisdiction and voluntary jurisdiction; the latter contemplates voluntary subjection on the part of those who seek in legal matters the co-operation of ecclesiastical agencies, e. g. notarially executed instruments, testaments, etc. The judicial power described above, jurisdiction strictly so called, was given by Christ to His Church, was exercised by the Apostles, and transmitted to their successors (Matt., xviii, 15 sqq.; I Cor., iv, 21; v, 1 sqq.; vi, 1 sqq.; II Cor., xiii, 10; I Tim., i, 20; v, 19 sq.).

From the beginning of the Christian religion the ecclesiastical judge, i. e. the bishop, decided matters of dispute that were purely religious in character (causce mere ecclesiasticw). This jurisdiction of the Church was recognized by the civil (imperial) power when it became Christian. But long before this the early Christians, following the exhortation of Saint Paul (I Cor., vi, 14), were wont to submit to ecclesiastical jurisdiction matters which by their nature belonged to the civil courts. As long as Christianity was not recognized by the State it was left to the conscience of the individual whether he would conform to the de- cision of the bishop or not. When, however, Chris- tianity had received civil recognition, Constantine the

Great raised the former private usage to a public law. According to an imperial constitution of the year 321 the parties in dispute could, by mutual agreement, bring the matter before the bishop even when it was already pending before a civil judge, and the latter was obliged to put into effect the decision of the bishop. A further constitution of 331 provided that in any stage of the suit any one of the parties could appeal to the bishop even against the will of the others (Hanel, " De constitutionibus, quas F. Sirmondus, Paris, an. 1631 edidit," 1840). But Arcadius, in 398, and Honorius, in 408, limited the judicial competence of the bishop to those cases in which both parties applied to liim (lex VII, Cod. Just., De audientia episc, I, iv). This arbitral jurisdiction of the bishop was not recognized in the new Teutonic kingdoms. In the Frankish king- doms purely ecclesiastical matters of dispute belonged to the jurisdiction of the bishop, but mixed cases, in which civil interests appeared, e. g. marriage questions, law suits concerning Church property, etc., belonged to the civil courts.

In the course of the Middle Ages the Church suc- ceeded in extending its jurisdiction over all matters that offered an ecclesiastical interest {causie spirituali- bus annexce), all litigation concerning marriages (c. vii, X, Qui fihi sint legit., IV, xvii; c. vii, X, De donat., IV, xx); matters concerning burial (X, De sepult., Ill, xxviii); testaments (X, De testam.. Ill, xxvi); compacts ratified with an oath (c. iii, in VI°, De foro compet., II, ii); matters pertaining to benefices (c. ii, X, De suppl. neglig. pra?lat., I, x); questions of pat- ronage (X, De jur. patron.. Ill, xxxviii); litigation concerning church property and tithes (X, De decim.. Ill, xxx). In addition all civil liligution in which the element of sin was in question (ratin ptcca//) could be summoned before an ecclesiastical court (c. xiii, X, De judic, II, i).

Also, the ecclesiastical court had jurisdiction over the affairs of ecclesiastics, monks, and nuns, the poor, widows, and orphans {persomr miserahiles), also of those persons to whom the civil judge refused legal redress (c. xi, X, De foro compet., II, ii). Owing to the unsatisfactory administration of justice in the medieval world tliis far-reaching civil jurisdiction of the Church was beneficial. However, it eventually overlapped the natural boundaries of Church and State. The result was that the ecclesiastic became too much involved in secular litigation and grew estranged from his proper calling. For these reasons, but further also for selfish ones, a reaction against this condition of affairs arose in England as early as the twelfth cen- tury. The reaction spread to France and Germany and gainetl in influence and justification the more the administration of justice by the State improved. At the end of the long vicissitudinous struggle the Church lost its jurisdiction in res spiritiudibus annexal, not- withstanding the claims of the Council of Trent (Sess. XXIII, De ref., c. vi; sess. XXIV, De sacr. matr., can. xii; sess. XXV, De ref., c. xx), also the privilege of the clergy, and finally jurisdiction in matrimonial causes as far as their civil character was concerned.

In regard to ecclesiastical jurisdiction in criminal matters the Church exercised jurisdiction at first only in purely ecclesiastical offences, and inflicted only ecclesiastical punishments, e. g. excommunication, and in the case of clerics depo.sition. The observance of these penalties had to be left to the conscience of the indiviLlual. But with the formal recognition of the Church by the State and the increase of ecclesias- tical penalties proportioned to the increase of ecclesi- astical offences, came an appeal from the Church to the secular arm for aid in enforcing the said penalties, which aid was always willingly granted. Some of- fences, indeed, especially deviations from the Catholic Faith, were by the State made punishable in civil law and secular penalties were attached to them, also to certain disciplinary misdemeanours of ecclesiastics