THE NEW SCHAFF-HERZOG
JURISDICTION, ECCLESIASTICAL.
The Early and Roman Catholic Churches.
Penal and Disciplinary Jurisdiction.
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.
II. The Protestant Churches. Modern Trend (§ 1). Fundamental Law in the Uoited
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; 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 1. The First Church, with a possibility of restora- Three tion to membership on proof of re- Centuries, pentance and amendment (I Cor. v.
11; II Cor. ii. 5 sqq.). In the subapostolic 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.
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 depriva- 2'.T1^e *i°n °f clerical income or (in the case c^ri^ti^n of young clerics and those in minor
orders) corporal punishment. At first,
Roman Empire.
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 vindicative/, 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 own penalty, until Justinian reserved the right to sanction secular proceedings against a bishop to the emperor alone.
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 sep-
3. The Mer- aration from the Church impossible,
ovingrian while desertion of the Church's faith
Period. 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