Catholic canonical jurisdiction Ecclesiastical jurisdiction

1 catholic canonical jurisdiction

1.1 general concept , classification
1.2 delegation
1.3 development of jurisdiction in strict sense
1.4 scope of jurisdiction in strict sense

catholic canonical jurisdiction
general concept , classification

the church founded christ salvation of men needs, every society, regulating power (the authority of church). decree lamentabili sane , of 3 july 1907, rejects doctrine christ did not desire found permanent, unchangeable church endowed authority

it customary speak of threefold office of church: office of teaching (prophetic office), priestly office , pastoral office (governing office), , therefore of threefold authority of church: teaching authority, ministerial authority , ruling authority. since teaching of church authoritative, teaching authority traditionally included in ruling authority; ministerial authority , ruling authority distinguished.

by ministerial authority, conferred act of consecration, meant inward, , because of indelible character permanent, capacity perform acts divine grace transmitted. ruling authority, conferred church (missio canonica, canonical mission), understood authority guide , rule church of god. jurisdiction, insofar covers relations of man god, called jurisdiction of internal forum or jurisdiction of forum of heaven (jurisdictio poli). (see ecclesiastical forum); again either sacramental or penitential, far used in sacrament of penance, or extra-sacramental, e.g. in granting dispensations private vows. jurisdiction, insofar regulates external ecclesiastical relations, called jurisdiction of external forum, or briefly jurisdictio fori. jurisdiction, actual power of ruling legislative, judicial or coactive. jurisdiction can possessed in varying degrees. can held either both fora, or internal forum only, e.g. parish priest.

jurisdiction can further sub-divided ordinary, quasi-ordinary , delegated jurisdiction. ordinary jurisdiction permanently bound, divine law or human law, permanent ecclesiastical office. possessor called ordinary judge. divine law pope has such ordinary jurisdiction entire church , bishop diocese. human law jurisdiction possessed cardinals, officials of roman curia , congregations of cardinals, patriarchs, primates, metropolitans, archbishops, praelati nullius , prelates quasi-episcopal jurisdiction, chapters of orders or superior generals of orders, cathedral chapters in reference own affairs, archdiaconate in middle ages, , parish priests in internal forum.

if jurisdiction permanently connected office, office said quasi-ordinary, or jurisdictio vicaria. form of jurisdiction possessed, example, vicar-general. temporary exercise of ordinary , quasi-ordinary jurisdiction can granted, in varying degrees, representative, without conferring on him office called. in transient form jurisdiction called delegated or extraordinary, , concerning canon law, following roman law, has developed exhaustive provisions. development began when popes, since alexander iii (1159–81), found obliged, enormous mass of legal business came them sides judices ordinarii omnium hand over, proper instruction, large number of cases third parties decision, in matters of contentious jurisdiction.

delegation

delegated jurisdiction rests either on special authorization of holders of ordinary jurisdiction (delegatio ab homine), or on general law (delegatio lege, jure, canone). thus, council of trent transferred number of papal rights bishops tanquam apostolicae sedis delegati , i.e. delegates of apostolic see, , etiam tanquam apostolicae sedis delegati , i.e. delegates of apostolic see. in first class of cases, bishops not possess ordinary jurisdiction. meaning of second expression disputed, taken purely cumulative. if delegation applies 1 or several designated cases only, special delegation; if applies entire class of subjects, general delegation or delegation universality of causes. delegated jurisdiction total of number of matters known delegatio mandata. can appointed delegates competent execute delegation. act of consecration delegate must have himself necessary sacred orders. acts of jurisdiction must ecclesiastic, though pope delegate layman. papal delegation conferred on ecclesiastical dignitaries or canons. delegate must twenty years old, eighteen years suffices 1 appointed pope. must free excommunication. placed under jurisdiction of delegator must submit delegation. delegation 1 matter can conferred upon several. distinction made whether have act jointly , severally (collegiately), jointly individually (solidarily), or solidarily @ least in given case. delegate follow instructions, empowered necessary execute them. if exceed power, act null.

when necessary delegate can himself delegate, i.e. subdelegate, qualified person; can if papal delegate, or if has received permission, or if has been delegated number of cases. since delegation constitutes new court, appeal can taken delegate delegator, , in case of subdelegation original delegator. delegated jurisdiction expires on death of delegate, in case commission not issued in view of permanence of office, on loss of office or death of delegator, in case delegate has not acted (re adhuc integra, matter being still intact), on recall of authority delegator (even re adhuc nondum integra, matter being no longer intact), on expiration of allotted time, on settlement of matter, on declaration of delegate has no power.

development of jurisdiction in strict sense

the catholic church considers have has right, perfect , independent society provided means attaining end, decide according laws disputes arising concerning internal affairs, ecclesiastical rights of members, carry out decision, if necessary, suitable means of compulsion, contentious or civil jurisdiction. implies right admonish or warn members, ecclesiastical or lay, have not conformed laws, , if needful punish them physical means, is, coercive jurisdiction.

the church has power judge sin, in internal forum, sin can @ same time externally misdemeanour or crime (delictum, crimen), when threatened external ecclesiastical or civil punishment. church judges ecclesiastical crimes in external forum infliction of penalties, except when wrongdoing has remained secret. in case contents itself, rule, penance voluntarily assumed.

a last distinction drawn between necessary jurisdiction , voluntary jurisdiction; latter contemplates voluntary subjection on part of seek in legal matters co-operation of ecclesiastical agencies, e.g. notarially executed instruments, testaments, etc. judicial power described above, jurisdiction strictly called, given christ church, exercised apostles, , transmitted successors (matthew 18:15 sqq.; 1 corinthians 4:21; 5:1 sqq.; 2 corinthians 13:10; 1 timothy 1:20; 5:19 sq.).

from beginning of christian religion ecclesiastical judge, i.e. bishop, decided matters of dispute purely religious in character (causae mere ecclesiasticae). jurisdiction of church recognized civil (imperial) power when became christian. long before christians, following exhortation of saint paul (1 corinthians 6:14), wont submit ecclesiastical jurisdiction matters nature belonged civil courts. long christianity not recognized state, left conscience of individual whether conform decision of bishop or not. once christianity had received civil recognition, constantine great raised former private usage public law. according imperial constitution of year 321, parties in dispute could, mutual agreement, bring matter before bishop when pending before civil judge, , latter obliged put effect decision of bishop. further constitution of 331 provided in stage of suit 1 of parties appeal bishop against of others arcadius in 398, , honorius in 408, limited judicial competence of bishop cases in both parties applied him. arbitral jurisdiction of bishop not recognized in new teutonic kingdoms. in frankish kingdoms, purely ecclesiastical matters of dispute belonged jurisdiction of bishop, mixed cases, in civil interests appeared, e.g. marriage questions, lawsuits concerning church property etc., belonged civil courts.

in middle ages church succeeded in extending jurisdiction on matters offered ecclesiastical interest (causae spiritualibus annexae), litigation concerning marriages; matters concerning burial; testaments; compacts ratified oath; matters pertaining benefices; questions of patronage; litigation concerning church property , tithes. in addition, civil litigation in element of sin in question (ratio peccati) summonded before ecclesiastical court.

also ecclesiastical court had jurisdiction on affairs of ecclesiastics, monks , nuns, poor, widows , orphans (personae miserabiles, needy) , persons whom civil judge refused legal redress. far-reaching civil jurisdiction of church overlapped natural boundaries of church , state. reaction against condition of affairs arose in england twelfth century, spread france , germany , gained in influence , justification more administration of justice state improved. @ end of long vicissitudinous struggle, church lost jurisdiction in res spiritualibus annexal, notwithstanding claims of council of trent, privilege of clergy, , jurisdiction in matrimonial causes far civil character concerned.

in regard ecclesiastical jurisdiction in criminal matters, church exercised jurisdiction @ first in purely ecclesiastical offences, , inflicted ecclesiastical punishments, e.g. excommunication, , in case of clerics deposition. observance of these penalties had left conscience of individual, formal recognition of church state , increase of ecclesiastical penalties proportioned increase of ecclesiastical offences, came appeal church secular arm aid in enforcing said penalties, aid willingly granted. offence, deviations catholic faith, state made punishable in civil law , secular penalties attached them, disciplinary misdemeanours of ecclesiastics. conversely, church in middle ages increased penal jurisdiction in civil domain infliction of varied penalties, of them purely secular in character.

above all, means of privilegium fori withdrew so-called criminous clerks jurisdiction of civil courts. obtained court held bishop during diocesan visitation (the send) not punishment of civil misdemeanours involved element of sin , consequently affected both church , state, punished, , such, purely civil offences. penal jurisdiction of medieval church included, therefore, first merely ecclesiastical offences, e.g. heresy, schism, apostasy etc.; merely civil offences; mixed offences, e.g. sins of flesh, sacrilege, blasphemy, (diabolical black ) magic, perjury, usury etc.

in punishing offences of purely ecclesiastical character church disposed unreservedly of aid of state execution of penalty. when in aforesaid send court held bishop during visitation, inflicted punishment on civil offences of laity, penalty, rule, enforced imperial count (graf) accompanied bishop , represented civil power. principle prevailed later offence punished secular judge no longer punishable ecclesiastical judge.

when send began disappear, both ecclesiastical , secular judges in general held equally competent mixed offences. prevention (previous adjudication of case 1 judge or other) decisive. if matter brought before ecclesiastical judge inflicted @ same time civil penalty, not, however, corporal punishments such death penalty. if accusation brought before secular judge, civil penalty inflicted him , action of church limited imposition of penance. church lost far greater part of criminal jurisdiction same reasons which, since end of middle ages, led loss of of contentious jurisdiction, , in same manner. moreover, fifteenth century on, recursus ab abusu first arose in france (appel comme d abus), appeal abuse of power ecclesiastical authority, did weaken , discredit ecclesiastical jurisdiction.

scope of jurisdiction in strict sense

today objects of contentious ecclesiastical jurisdiction (in which, however, state takes part or interferes) are: questions of faith, administration of sacraments, particularly contracting , maintenance of marriage, holding of church services, creation , modification of benefices, appointment , vacation of ecclesiastical offices, rights of beneficed ecclesiastics such, ecclesiastical rights , duties of patrons, ecclesiastical rights , duties of religious, administration of church property.

as criminal jurisdiction of church inflicts on laity ecclesiastical penalties, , solely ecclesiastical offences. if ever civil consequences ensue, civil authority can take cognizance of them. regards ecclesiastics, power of church punish disciplinary offences , maladministration of offices, acknowledged state. church , state not separated, state aids in investigating these offences, in executing canonically rendered decisions of church.

as civil offences of ecclesiastics, ecclesiastical jurisdiction carries no secular consequences, though church free punish such offences ecclesiastical penalties. according papal bull apostolicae sedis moderationi (12 october 1869), persons fall under excommunication reserved pope speciali modo, directly or indirectly hinder exercise of ecclesiastical jurisdiction in external forum or in internal forum, appeal ecclesiastical civil jurisdiction; every legislator or person in authority directly or indirectly compels judge cite ecclesiastical persons before civil tribunal. in various concordats civil power, church has more or less abandoned privilegium fori of ecclesiastics.