Ecclesiastical court

"Religious courts" redirects here. For Jewish rabbinical courts, seeBeth din.

Anecclesiastical court,also calledcourt Christianorcourt spiritual,is any of certaincourtshavingjurisdictionmainly in spiritual or religious matters. In theMiddle Ages,these courts had much wider powers in many areas of Europe than before the development ofnation states.They were experts in interpretingcanon law,a basis of which was theCorpus Juris CivilisofJustinian,which is considered the source of thecivil lawlegal tradition.

Catholic Church

The tribunals of theCatholic Churchare governed by the1983 Code of Canon Lawin the case of the Western Church (Latin Church), and theCode of Canons of the Eastern Churchesin the case of theEastern Catholic Churches(Byzantine, Ukrainian, Maronite, Melkite, etc.). Both systems of canon law underwent general revisions in the late 20th century, resulting in the new code for the Latin Church in 1983, and the compilation for the first time of the Eastern Code in 1990.

First instance

Cases normally originate in the tribunal of theparticular church(i.e. thedioceseoreparchy) of the parties to the case. This tribunal in canon law is called thetribunal of first instance.The bishop of the church possesses the power to judge for his church; however, since the bishop has many different duties in his diocese, most cases are handled byjudgeswhom he appoints, led by a priest known as thejudicial vicarorofficialis.

A single judge can handle normal contentious and penal cases. A college of at least three judges, however, must try cases involving an excommunication, the dismissal of acleric,or the annulment of the bond of marriage or of sacred ordination (can. 1425 §1). The bishop can assign up to five judges to a case that is very difficult or important (can. 1425 §2). Otherwise, the judicial vicar assigns cases to the judges and, in those cases which require three or more judges, presides over the panel or assigns one of his assistant judicial vicars to preside, if there are any. The judicial vicar and the assistant judicial vicars must bepriestswithdoctoratesor at leastlicentiatesincanon law.The other judges need only beclericswith licentiates, but theepiscopal conferencecan permit members of thelaitywith the same academic qualifications to serve as judges on a panel.

There are other officers of the tribunal. The promoter of justice, for instance, is a canon lawyer whose job is to represent the diocese as the prosecutor in penal cases and who also can intervene in contentious cases if they concern the "public good", acting as a watch dog for the people of the diocese. Another important officer is the defender of the bond, another canon lawyer whose job is to present reasons to the tribunal why amarriageis valid in cases of alleged nullity and why anordinationis valid in the rare cases of alleged nullity ofHoly Orders.The tribunal also has notaries who swear in witnesses and commit their testimony to writing. Parties in a case have the right to appoint an advocate who can argue for them at the tribunal. If a person cannot afford an advocate, the tribunal can assign one to them free of charge.

Unlike courts ofcommon lawtradition, ecclesiastical tribunals do not follow theadversarial system.Based on the same Romancivil lawthat is behind much European law, the procedure of a canonical court is more akin to theinquisitorial system,with the judges leading the investigation. As a general rule, the defendant has the favorable presumption of law, which means that the defendant will win by default unless a majority of the judges is convinced with moral certainty of the petitioner's case (can. 1608).This presumption also applies in penal cases (can. 1728). There are few exceptions to this rule; in those cases, the burden shifts to the defendant.

Some matters cannot be introduced at the diocesan level and can only be introduced before the following:

• Appellate tribunal for the diocese: cases against the diocese itself or an institution represented by the diocesan bishop
• Roman Rota:cases against the heads of religious orders, cases against dioceses or church institutions that are immediately subject to theHoly See,and non-penal cases against bishops
• ThePopehimself: any case where acardinal,Eastern ritepatriarch,papal legate,orhead of stateis a defendant and any penal case involving abishop.

Appeal

Theappellate tribunalis known as thetribunal of second instance.Normally the second instance tribunal is the tribunal of themetropolitan bishop.In the case where the appeal is from a first instance decision of the metropolitan's own tribunal, the appeal is taken to a court which the metropolitan designated with approval of theHoly See,usually another nearby metropolitan, thus ensuring that appeals from one diocese are never heard by the same diocese. As an example, a case in theDiocese of Springfield, Massachusetts,would be appealed to the tribunal of theArchdiocese of Boston,but a case originating in the Archdiocese of Boston would be appealed to the tribunal of theArchdiocese of New York,by agreement between the archbishops of New York and Boston.

Some cases are automatically appealed (for instance, when amarriage is found to be null). The appealing party does not need to appeal to the metropolitan; the party can instead appeal to theHoly See,in which case theRoman Rotawould hear the case in the second instance. If the case was before the Rota in the first instance, then a different panel of the Rota hears it in the second instance.

With the exception of cases regarding personal status, if the first instance and second instance tribunals agree on the result of the case, then the case becomesres judicataand there is no further appeal. If they disagree, then the case can be appealed to the Roman Rota, which serves as thetribunal of third instance.The Rota is a court of fifteen judges calledauditorswho take cases in panels of three and serve as the final arbiters of most cases.

There is no appeal from a court case that thePopehas decided personally.

Other tribunals

TheRoman Curiahas two other tribunals which either deal with specialized cases or which do not deal with cases at all. The first is theApostolic Signatura,a panel of fivecardinalswhich serves as the highest court in the Roman Catholic Church. Normal cases rarely reach the Signatura, the exception being if a party appeals to the Pope and he assigns the case to them or if the Pope on his own initiative pulls a case from another court and gives it to them. The court mainly handles cases regarding the use of administrative power, including penal cases which were decided using executive instead of judicial power, which is the usual case. It also handles disputes betweendicasteriesand other tribunals over jurisdiction, complaints that a Rotal decision is null and should be retried, and matters regarding advocates and inter-diocesan tribunals.

There is normally no right of appeal from the decision of the Apostolic Signatura (can. 1629 #1); however, laypersons and clerics have, on rare occasions, convinced the Pope to hear their case afterwards. This is usually reserved for cases where they are facingexcommunicationor some other form of severe censure, such as the loss of the right to teachtheologyor to administer thesacraments.Facingcensure,a theologian and priest gotPope John Paul IIto hear his case and even asked the Pope to alter his own decision, though the Pope did not reverse the ruling in either case.

The other tribunal is theApostolic Penitentiary.This tribunal has no jurisdiction in what is known as "the external forum", meaning cases and events which are publicly known, only matters of the "internal forum", which involve entirely confidential and secret matters, including (but not limited to) what is confessed in theSacrament of Penance.It primarily deals with cases that arise only within the confessional and which by their nature are private, confidential or whose facts are secret. Such cases are normally brought before the court by a person's confessor, who writes up the relevant facts of the cases, but only what is absolutely necessary, using standardized Latin pseudonyms. The confidentiality of the person, and the priest's absolute obligation to preserve the secrecy of the Sacrament of Penance, are still in force in such cases. This court, under the authority of the Cardinal Major Penitentiary, who acts in the Pope's name, answers the confessor and empowers him to impose a penance and lift a penalty. For instance, the act of desecrating theEucharistis one which incurs an automatic excommunication for the person who so acts (an excommunication from the moment of the act, which no court need actually meet to impose), and the power to lift this excommunication is reserved by the Pope to himself. Should this person then approach a priest in confession, repentant, and explain his act and the fact that he acted in secret, the confessor would write to the tribunal laying out the simplest outline of facts, keeping the person's identity secret, and would most likely be empowered to lift the excommunication and impose some private act of penance on the person.

Anglican Communion

Church of England

In theChurch of England,the ecclesiastical courts are a system of courts, held by authority of theCrown,who isex officiotheSupreme Governor of the Church of England.The courts have jurisdiction over matters dealing with the rights and obligations of church members, now limited to controversies in areas of church property and ecclesiastical disciplinary proceedings. In England these courts, unlike common law courts, are based upon and operate alongcivil lawprocedures andCanon law-based jurisprudence.

The ecclesiastical courts formerly had jurisdiction over thepersonalestates of deceased personsto grantprobateoradministration.This jurisdiction of the Ecclesiastical Courts was transferred to theCourt of Probateby theCourt of Probate Act 1857.

Offences against ecclesiastical laws are dealt with differently based on whether the laws in question involve church doctrine. For non-doctrinal cases, the lowest level of the court is theArchdeaconry Court,which is presided over by the local archdeacon. The next court in the hierarchy is the bishop's court, which is in theDiocese of Canterburycalled theCommissary Courtand in other dioceses theconsistory court.The Commissary Court is presided over by a commissary-general; a consistory Court is presided over by a chancellor. The chancellor or commissary-general must be thirty years old and either have a seven-year general qualification under theCourts and Legal Services Act 1990section 71 or have held high judicial office.

Specialist courts in the Province of Canterbury are theCourt of Faculties,theCourt of Peculiarsand theCourt of the Vicar-General of the Province of Canterbury.In the northern province there is theCourt of the Vicar-General of the Province of York.

The next court is the archbishop's court, which is in Canterbury called theArches Court,and in York theChancery Court.Each court includes five judges; one judge is common to both courts. The common judge is called theDean of Archesin Canterbury and the Auditor in York; he or she is appointed jointly by both archbishops with the approval of the Crown, and must either hold a ten-yearHigh Courtqualification under theCourts and Legal Services Act 1990,s 71, or have held high judicial office. Two members of each court must be clergy appointed by the Prolocutor of the Lower House of the provincial convocation.Two further members of each court are appointed by the Chairman of the House of Laity of the General Synod;these must possess such legal qualifications as theLord High Chancellor of Great Britainrequires.

In cases involving church doctrine, ceremony or ritual, the aforementioned courts have no jurisdiction. Instead, theCourt of Ecclesiastical Causes Reservedhears the case. The Court is composed of three diocesan bishops and two appellate judges; it has jurisdiction over both of the provinces of Canterbury and York. The Court, however, meets very rarely.

Appeal from the Arches Court and Chancery Court (in non-doctrinal cases) lies to theKing-in-Council.In practice, the case is heard by theJudicial Committee of the Privy Council,which includes present and formerLords Chancellor,a number ofLords of Appealand other high judicial officers. TheKing-in-Councildoes not have jurisdiction over doctrinal cases from theCourt of Ecclesiastical Causes Reserved,which instead go to anad hocCommission of Review,composed of two diocesan bishops and three Lords of Appeal (who are also members of the Judicial Committee).

Commissions of Convocationare appointed by the Upper House of theConvocationof Canterbury or of York to try a bishop for an offence (except for an offence of doctrine). Both Convocations make the appointment if an archbishop is prosecuted. This would comprise four diocesan bishops and the Dean of the Arches.

The Ecclesiastical Courts Acts 1787 to 1860is thecollective titleof the following Acts:

• TheEcclesiastical Suits Act 1787(27 Geo. 3.c. 44) – repealed byStatute Law Revision Act 1948,
• TheEcclesiastical Courts Act 1813(53 Geo. 3.c. 127) – repealed byStatute Law (Repeals) Act 1971,
• TheProctors (Ireland) Act 1814(54 Geo. 3.c. 68) – repealed byStatute Law Revision Act (Northern Ireland) 1954,
• TheEcclesiastical Courts Act 1829(10 Geo. 4.c. 53) – repealed byEcclesiastical Jurisdiction Measure 1963,
• ThePrivy Council Appeals Act 1832(2 & 3 Will. 4.c. 92) – repealed byEcclesiastical Jurisdiction Measure 1963,
• TheEcclesiastical Courts (Contempt) Act 1832(3 & 4 Will. 4.c. 93) – repealed byEcclesiastical Jurisdiction Measure 1963,
• TheEcclesiastical Courts Act 1840(3 & 4 Vict.c. 93) – repealed byEcclesiastical Jurisdiction Measure 1963,
• TheEcclesiastical Courts Act 1844(7 & 8 Vict.c. 68) – repealed byStatute Law Revision Act 1959,
• TheEcclesiastical Jurisdiction Act 1847(10 & 11 Vict.c. 98) – repealed byChurch of England (Miscellaneous Provisions) Measure 1992,
• TheEcclesiastical Courts Act 1854(17 & 18 Vict.c. 47) – repealed byEcclesiastical Jurisdiction Measure 1963,
• TheEcclesiastical Courts Act 1855(18 & 19 Vict.c. 41) – repealed byEcclesiastical Jurisdiction Measure 1963,
• TheEcclesiastical Jurisdiction Act 1858(21 & 22 Vict.c. 50) – repealed byStatute Law Revision Act 1950,
• TheEcclesiastical Courts Jurisdiction Act 1860(23 & 24 Vict.c. 32) – amended.

Guernsey

TheEcclesiastical Court in Guernseypredates its first written evidence from the 13th Century. Its powers have been reduced over the centuries but it still meets weekly to prove wills and to grant marriage licences.

Episcopal Church in the United States of America

Ecclesiastical courts in the AmericanEpiscopal Churchhave jurisdiction only over disciplinary cases involving clergy and are divided into two separate systems: one for trials of bishops (at the level of the national Episcopal Church) and the other for trials of priests and deacons (at the level of the diocese for original jurisdiction and at the provincial level for appeals).(At least one diocese, however,Diocese of Minnesota,has provided in its canons for a court with broader jurisdiction over a wide range of canonical issues, although such a court has not yet been implemented by the convention of that diocese.) In each disciplinary case, two courts are provided, one for trials and one for appeals. When a charge is first made, it is brought before an initial review committee (similar to agrand juryin secular criminal law) whose job is to determine when a case should be brought and to supervise the Church Attorney who acts as a sort ofprosecutor.

Courts and procedure for trials of bishops are provided for by the Canons of theGeneral Convention(the triennial legislative body of the national church).There is one Court for the Trial of a bishop, composed of nine bishops (though there have been proposals to include lay persons and lower clergy in this court). Appeals are heard by the Court of Review for the Trial of a bishop, also comprising nine bishops. The Constitution of the national Episcopal Church provides that this court must be composed only of bishops.

For priests and deacons, initial trial is held by an ecclesiastical court established by the diocese in which the cleric is canonically resident.Appeals are taken to the Court of Review for the Trial of a Priest or Deacon, one of which is established in each of the nine provinces of the Episcopal Church (a province is a geographic combination of dioceses).Dioceses have some discretion about the procedure and membership for the ecclesiastical court, but most rules and procedure are established church-wide by the national canons. Trial courts are made up of lay persons and of priests or deacons, with the clergy to have a majority by one. The various courts of review comprise one bishop, three priests or deacons, and three lay persons.

Since the 18th century the Constitution of the national Episcopal Church has permitted the creation of a national Court of Appeal, which would be "solely for the review of the determination of any Court of Review on questions of Doctrine, Faith, or Worship".No such court has ever been created, though proposals have occasionally been made to establish theHouse of Bishopsitself as such a court.

Other denominations

Eastern Orthodox churches

The dioceses of many Eastern Orthodox denominations, such as theRussian Orthodox Church,have their own ecclesiastical courts. In addition, the Russian Orthodox Church has a General Ecclesiastical Court with jurisdiction throughout the Russian Orthodox Church, as well as the Court of the Bishops’ Council which serves as the court of final appeal.Under theRussian Empire,Russian Orthodox ecclesiastical courts held jurisdiction over cases ofadultery,incest,bestiality,andblasphemy.They also held responsibility for divorce, which could only be obtained in cases of adultery.

The Greek Eastern Orthodox churches have ecclesiastical courts. For example, theArchdiocese of Thyateira and Great Britainunder the spiritual jurisdiction of thePatriarchate of Constantinoplehas such courts for determining whether to grant divorce after the State has.

United Methodist Church

The Judicial Council is the highest court in theUnited Methodist Church.It consists of nine members, both laity and clergy, elected by theGeneral Conferencefor an eight-year term. The ratio of laity to clergy alternates every four years.The Judicial Council interprets theBook of Disciplinebetween sessions of General Conference, and during General Conference the Judicial Council rules on the constitutionality of laws passed by General Conference. The Council also determines whether actions of local churches, annual conferences, church agencies, and bishops are in accordance with church law. The Council reviews all decisions of law made by bishopsThe Judicial Council cannot create any legislation; it can only interpret existing legislation. The Council meets twice a year at various locations throughout the world. The Judicial Council also hears appeals from those who have been accused of chargeable offenses that can result in defrocking or revocation of membership.

Presbyterian Church USA

ThePresbyterian Church (U.S.A.)has Permanent Judicial Commissions for each synod, presbytery and theGeneral Assemblyof the denomination, all of which are elected by members and are composed of ministers and elders subject to its jurisdiction. The PJC of the General Assembly consists of one member from each of the sixteen synods which compose the denomination and the PJC has original jurisdiction over remedial cases and appeals.

The Church of Jesus Christ of Latter-day Saints

Main article:Church membership council

Inthe Church of Jesus Christ of Latter-day Saints,church courts are formally known aschurch membership councils.Church courts consider possible membership withdrawal or restriction based on a member's violation of church standards. Anystake,ward,ormissionof the church may convene a church court.

TheCommon Council of the Church—which has only been convened twice—is a church court which has the authority to remove apresident of the churchor one of his counselors in theFirst Presidencyfor misbehavior.

See also

• Acta Curiae
• Courts of England and Wales
• Ecclesiastical crime
• Ecclesiastical ordinances
• Ecclesiastical prison
• Trial by ordeal

External links

• Catholic history of court
• Courts of the Church of England (brief)
• Courts of the Church of England, detailed (archive link)
• Archives of the Court of Arches at Lambeth Palace Library