IIII

ECCLESIASTICAL COURTS AND JURISDICTION

THE judiciary of all governments has changed form in the course of time to facilitate the handling of litigation. Lawyers practicing in the Federal courts of the United States will remember that an Act of Congress in 1911 made somewhat sweeping changes in the form and jurisdiction of those courts. Similar changes have been made in the courts of various states. All judicial systems have been subject to like mutations.

The ecclesiastical courts are no exception to this rule. Not only have they varied in different ages, but in no age have they been entirely uniform in all countries. But it will be sufficient to state here the general outline of the papal judiciary with sufficient particularity to indicate the relation of the Church courts to those of the civil powers and to one another.

Ecclesiastical courts of general jurisdiction belong to the diocese of every bishop. But it would be almost as impossible for the bishop personally to hear and determine all cases arising in his dominions as for the executive head of a civil government to preside over all courts, or even the superior courts, in his country.
Consequently the judicial prerogatives of the bishop are delegated to subordinate functionaries of his see. His archdeacon in past centuries was usually clothed with power to hear and determine litigation, the bishop reserving to himself both original and appellate cognizance of cases of special importance. But this system gave rise to such rivalries and strife between the bishop and the archdeacon that the system gave place to judges, or "officials," appointed by the bishop and removable at his will as the archdeacon was not.

The contiguous dioceses of several bishops compose a province over which a metropolitan, or archbishop, presides, enjoying appellate and supervisory prerogatives which in our day have ceased to be much more than a primacy of rank. But the archbishop formerly maintained a more elaborate judiciary with both original and appellate jurisdiction.

Above all other tribunals, both civil and ecclesiastical, stands the Pope as the supreme tribunal of last resort for all the litigation of the world. From his decisions there is no appeal. Under the canon law the Pope sits in judgment on all civil powers. Appeals from their highest tribunals go directly to him. But no appeal lies from his decisions, and only God is permitted to judge him. Any attempt to appeal from the judgment of the Pope incurs the severest ecclesiastical penalties.

The famous bull Unam Sanctam of Pope Boniface VIII, which has been reaffirmed by the ablest of later Pontiffs, and is accepted by standard Roman canonists as de fide and therefore infallible, settles that point in this clear declaration of law:

"And if the earthly power deviate; from the right path, it is judged by the spiritual power; but if minor spiritual power deviate from the right path, the lower in rank is judged by the superior; but if the supreme power, the Papacy, deviate, it can be judged not by man, but by God alone."—History of the Christian Church, Schaff, Volume V, Part II, page 25.

Rev. Sebastian B. Smith, D. D., states the law in these words:

"In whatsoever things, whether essentially or by accident, the spiritual end —that is, the end of the Church—is necessarily involved, in those things, THOUGH THEY BE TEMPORAL, the Church may by right exert its power, and the civil state ought to yield."—Elements of Ecclesiastical Law, Volume I, pages 253-4."

No principle of canon law is better established and none has been asserted and enforced with more vigor and persistency than the doctrine of the jurisdictional independence, and supremacy of the Pope in both civil and ecclesiastical matters. The Codex Juris Canonici, enacted by the Holy See and now binding on every Roman Catholic in the world, is replete with that doctrine from end to end.

The foregoing quotation from Dr. Smith, published with the Imprimatur of three reigning prelates of Rome, including the late Cardinal McCloskey of New York, indicates the virtually boundless scope claimed by the canon law for the jurisdiction of ecclesiastical courts. It is declared that in all matters, whether spiritual or temporal, which affect the Church, ecclesiastical authority is supreme and the civil tribunals are subordinate.

The ceaseless and universal strife between civil and ecclesiastical authority in all Roman Catholic lands seeking to maintain government by the people is due fundamentally to that pernicious doctrine. The assertion that supreme jurisdiction is vested in the Pope, in whose election the people have absolutely no voice, can never be reconciled with the principle of popular sovereignty.

Under the papal doctrine as stated there is virtually no limit to the matters over which ecclesiastical courts have claimed jurisdiction. That jurisdiction is both civil and criminal. Prominent among the civil causes which it embraces are marriage, divorce, wills and administration. Jurisdiction of marriage is claimed on the theory that matrimony is one of the seven sacraments and is therefore related to activities of the Church.

Wills and administration are embraced on the ground that they relate to death and the future life over which the Roman clergy assumes to exercise special prerogatives. The customary presence of a priest in the death chamber when wills were usually made and the consequent testamentary benefits which often accrued to him or his ecclesiastical superiors gave both incentive and plausibility to exclusive jurisdiction of wills and administration which the church courts claimed and exercised till recent years.

Canon 1553 of the Codex Juris Canonici reaffirms the doctrine of jurisdiction as stated by Dr. Smith in the foregoing quotation and adds the claim of exclusive jurisdiction of all matters in which prelates, priests or members of religious orders are concerned. As translated by Woywod it reads as follows:

"The Church by her own exclusive right judges:
1. The cases which refer to spiritual matters, or to temporal matters annexed to spiritual;
2. The violation of ecclesiastical laws and all matters in which sin may be committed, in as far as the definition of guilt and the infliction of ecclesiastical punishment for the sins is concerned;
3. All cases of persons who enjoy the privilege of the ecclesiastical forum, in accordance with Canons 120. 614 and 680."

Canons mentioned in the last clause of the preceding quotation specify prelates, priests and members of religious orders as entitled to the privilege of ecclesiastical forum. Any person, whether a private citizen or public official, who causes compulsory process to issue requiring a; cardinal, archbishop, bishop or abbot to attend civil court in any capacity incurs ecclesiastical punishment under the, canon law.

The Official Catholic Directory published annually by the hierarchy lists matrimonial courts as part of the equipment attached to the thrones of Roman prelates in American cities. It thus appears that such prelates continue to judge as to the validity of marriages entered into by American citizens and that they maintain ecclesiastical courts to adjudicate such matters under the law of Rome.
But the criminal jurisdiction of ecclesiastical tribunals is fraught with peculiar interest and startling assumptions. The one outstanding crime in contemplation of canon law is heresy. Under all systems of justice, treason is a grave felony, and the papal authorities have uniformly regarded heresy as a species of treason. That crime is grounded in resistance or disloyalty to government. Heresy is such resistance to the authority of the papal government which claims divine authority and suzerainty over all other governments. Since heresy is resistance to that government, it is at once deemed the blackest of all sins and the most atrocious of crimes.

Consequently it has always incurred torture and death in the most excruciating forms in lands where Rome is permitted to inflict such punishments. Savonarola, Jerome of Prague and John Hus are conspicuous among the millions of exalted and saintly Christians whom the Papacy has tortured and burned for heresy. On page 90 of Elements of Ecclesiastical Law, Volume I, Dr. Sebastian B. Smith states the canon law governing the right of the Church to inflict the death penalty in these words:

"Has the Church power to inflict the penalty of death? Card. Tarquini thus answers: 1. Inferior ecclesiastics are forbidden, though only by ecclesiastical law, to exercise this power directly; 2. It is certain that the Pope and ecumenical councils have this power at least mediately—that is, they can, if the necessity of the Church demands, require a Catholic ruler to impose this penalty; 3. THAT THEY CANNOT DIRECTLY EXERCISE THIS POWER CANNOT BE PROVED."

Such is the canon law as stated by one of the most distinguished of modern Roman Catholic canonists and published with Imprimatur of a cardinal and two other archbishops of the hierarchy of Rome. From and after the time of Innocent III early in the thirteenth century the right of "Denunciation" was added to the criminal procedure of ecclesiastical courts. That terrible engine of injustice simply provided that anyone might secretly file information against an alleged heretic, and the judges offered every inducement to such secret complaints pursuant to the duty laid upon the courts to seek offenders in every possible manner. The accused was not permitted to know who were his accusers nor the nature of the accusation.

The annals of injustice, terrorism and oppression afford no parallel to that revolting procedure which led quickly to the awful scourge of the Inquisition, by which the Papacy sought to exterminate heresy from the earth. Under its operation the accused were locked in dungeons and subjected to torture in every form that diabolical ingenuity could invent to extort confession in addition to the unspeakable methods of secret inquisitorial information. A conservative account of the Inquisition in Spain appears in Prescott's Ferdinand and Isabella, Volume I, page 230 and following.

But the growth of Protestantism and democracy in the last four centuries limits and restrains the criminal vengeance formerly dispensed with fiendish cruelty by the See of Rome. Unless new papal alliances can reestablish the political supremacy of the Pope, the Inquisition will probably never again be able to afflict mankind.