THE NEW SCHAFF-HERZOG
7. The Organ of Ecclesiastical Jurisdiction.
significance
a purely occasional character, with no attempt to build up a thorough-going system, the same is true to a large extent of the period from the fifteenth to the eighteenth century, including the Tridentine alone among general councils. And again, although the council deals with such ethical crimes as dueling, adultery, seduction and forced marriage, and the papal constitutions with such others as bigamy, sodomy, the slave-trade, piracy, wrecking, and the bearing of false witness, they still impose the majority of their penalties upon what may be called hierarchical offenses. It is for these that the latest constitution of the kind, the Apostolicae sedis, maintains the penalties latae sententiae, which it keeps up for dueling and abortion alone among offenses of a general ethical nature.
The principal organ for the exercise of ecclesiastical jurisdiction on this system is the pope, who since the twelfth century has succeeded in maintaining his claim to be the judex ordinarius singulorum. The Council of Trent, however, following the precedents of the Concordat of Basel and the Council of Constance, decreed that controverted questions should come in the first instance before the bishops. The direct jurisdiction of the pope finds its greatest practical in regard to the ecclesiastical dignitaries whose immediate superior he is, the cardinals and metropolitans, and outside of these to the bishops. The Council of Trent, in subjecting the latter to his jurisdiction, did but confirm the established medieval law from the end of the eleventh century, that in all cases of serious offenses, for which degradation, deposition or deprivation were the penalties, they should be wholly subject to papal decision, while less grave matters might be dealt with by the provincial councils.
The Council of Trent, again following the two earlier reforming councils, attempted to exclude as far as possible the final decision of cases in Rome, and so provided for the nomination by provincial or diocesan synods of certain clerics to be known as judices synodales to whom the pope might delegate the decision of certain cases brought before him. This arrangement never had much practical significance, as the popes preferred to place appeals in the hands of their nuncios or of archbishops and bishops, or in some cases to give the nuncios the appointment of those who should hear them. At the present time many cases are finally disposed of by the Roman congregations, especially the Congregatio concilii and the Congregatio episcoporum et regular ium (see Curia).
In regard to the competence of ecclesiastical jurisdiction, the Church has always claimed the right to punish any violation of its ordinances either by clergy or by laity, independently of the question whether the offense was also against 8. Compe- secular law. As long as it employed en.ce o pUrely ecclesiastical penalties, there tical Juris- cou^ ^e no conflict between the two diction, jurisdictions. This was the case not only under the Roman empire but also in the Merovingian and Carolingian periods — all the more because the Germanic penal code con-
tained but few crimes on which public punishment was inflicted. Up to the twelfth century the Church was thus able to fill up a serious gap in penal legislation by taking cognizance of a number of grave crimes for which the secular law provided no public penalty. When, from the twelfth century on the latter began to increase the number of crimes which it punished, conflicts could no longer be avoided, and the secular tribunals protested against the invasion of their rights by the Church courts. In practise, then, there developed out of these conditions a distinction of offenses into delicto, mere secularia, delicta mere ecclesiastica, and delicto, mixta or mixti fori. No general agreement could be or has been reached as to what constitutes the third class, in which both secular and ecclesiastical authorities have competence. Usually it has been held to include the principal offenses against chastity, usury, sorcery, magic, perjury, blasphemy, and the forgery of papal briefs. For modern practice see below, II. The action of the Church against secular offenses is thus confined nowadays almost wholly to the forum internum, i.e., to the imposition of penance in the confessional; and the established ecclesiastical courts only take part in the process in so far as it is a question of cases reserved to the pope or bishop for decision (see Casus Reseevati). The question of secular jurisdiction over the clergy was raised early in the ninth century by ecclesiastical reformers, with the help of the forgeries of Benedictus Levita and the pseudo-Isidore; and they succeeded to a large extent 9. Secular m enforcing their claim of Exemption Jurisdiction (q.v.). Throughout the Middle Ages, over the indeed, secular rulers maintained their Clergy, right to punish even bishops for a breach of their obligations as vassals, officials, or subjects, with imprisonment or exile; but they made no attempt, except in rare instances, to exercise a power of deposition, which by the eleventh century was recognized as a right reserved to the pope. In respect to the other clergy, the Church's claim was never acknowledged for clerics who were not recognizable as such by the tonsure and clerical garb, and with the fourteenth century a strong reaction began against such exemption, which finally led to its complete abolition in most countries. The Church, however, still held to it in theory, even in the Syllabus of 1864.
The opening of ecclesiastical proceedings was conditioned from the earliest times by the notoriety of the offense, or by self-denunciation on the offender's part, or by the accusation of another; or it might follow ex officio when the authorities had sufficient cause, as in well-grounded suspicion. In all these cases, the bishop might proceed first by a brotherly admonition, on the basis of Matt. xviii. 15-17 (the so-called denunciatio evangelicay, if the offender remained obstinate, formal trial and punishment might follow, or in the opposite case he might take upon himself the canonical penance without being shut out of the communion of the Church. From the fourth century the Churcli adopted the Roman regulations in regard to accusations: the formal charge to be signed by the ac-
10. Method of Procedure.