jurisdiction or to public law are to be heard in the ordinary courts
(_legibus oportet audiri_)." L. 3 _de Epis. Jud._, at the end of the
Theodosian Code, seems spurious (see the comment of Gothofredus in
loco). But a constitution of Honorius in 412 (_Cod. Theod._ L. xli. _de
Epis. Ecc. et Cler._) provides that clerks are not to be accused except
before the bishop. Bishops, priests, deacons, and every other "minister
of the Christian law" of inferior degree, are taken from secular
jurisdiction in criminal cases. The words are quite general; but it has
been contended that they apply only to crimes of an ecclesiastical
character (see Gothofredus in loc.; Van Espen, pars iii. tit. iii. c. 1,
10). In 425 a constitution of Theodosius II. provides that a recent
decree of the usurper John should be disregarded and that clerks whom he
had brought before secular judges should be reserved for the episcopal
jurisdictions, "since it is not lawful to subject the ministers of the
divine office to the arbitrament of temporal powers." Justinian has a
clearer perception of the demarcation between the spheres of spiritual
and temporal law. The 83rd Novell provides that if the offence be
ecclesiastical, needing ecclesiastical correction, the bishop shall take
cognizance of it. The 123rd Novell (c. 21) provides that if a clerk be
accused of a secular crime he shall be accused before his bishop, who
may depose him from his office and order, and then the competent judge
may take him and deal with him according to the laws. If the prosecutor
have first brought him before the civil judge, the evidence is to be
sent to the bishop, and the latter, if he thinks the crime has been
committed, may deprive him of his office and order, and the judge shall
apply to him the proper legal punishment. But if the bishop think the
evidence insufficient, the affair shall be referred to the emperor, by
way of appeal both from bishop and judge. If the cause be
ecclesiastical, the civil judges are to take no part in the inquiry. The
law includes with clerics, monks, deaconesses, nuns, ascetics; and the
word "clerics" covered persons in minor orders, down to doorkeepers. It
will be noticed that Justinian supposes that the prosecutor may begin
the proceedings before the civil judge. A constitution of Alexius
Comnenus I. seems to send him to the special forum of the accused.

  Anglo-Saxon courts.

Certain enactments of later Saxon times in England have been sometimes
spoken of as though they united together the temporal and spiritual
jurisdictions into one mixed tribunal deriving its authority from the
State. In the latter part of the 10th century, laws of Edgar provided
that the bishop should be at the county court and also the alderman, and
that there each of them should put in use both God's laws and the
world's law (Johnson's _English Canons_, i. 411). This probably was, as
Johnson suggests, that the bishop might enforce secular laws by
ecclesiastical censure and the alderman ecclesiastical laws with secular
punishment. But the two jurisdictions were kept separate; for by another
law of Edgar (_Leges Edg._ c. v.) it was provided that "in the most
august assembly the bishop and alderman should be present, and the one
should interpret to the people the law of God, the other the laws of
men." Edgar, in a speech to St Dunstan and the bishops in synod (in
969), said, "I hold in my hands the sword of Constantine, you that of
Peter. Let us join right hands and unite sword to sword" (Hardouin,
_Conc._ tom. vi. p. 1, col. 675). The juxtaposition of the judicatures
may, however, have led to some confusion between them.

As to appeals the mixed council of Cliff at Hoo (747) said they should
go to the synod of the province. The only appeal to Rome in Saxon times
was that of St Wilfrid, bishop of York, who appealed from the division
of his see and his deposition for refusing to consent to it, and was
heard in a Roman synod under the presidency of Pope Agatho. The synod
found him unlawfully deposed and ordered his restoration. Upon his
return to England, the Roman judgment was refused recognition and he was
for a time imprisoned. Ten years later he was recalled to York, but
refusing to consent to the division of his see was again deposed and
again appealed to Rome. The appeal was heard at great length, in a synod
of 703 under John VI., deputies from the archbishop of Canterbury being
present. St Wilfrid was justified and was sent back to his see, with
papal letters to the kings of Northumbria and Mercia. The Roman decree
was again disregarded. At the council of "Nid" he was reconciled to the
other bishops of the province, but not restored. In the end he was
brought back to York, but not to the undivided see. The details of the
case will be found in Wilkins, _Concilia_, in Mansi, _Concilia_, under
the various councils named, and in Haddan & Stubbs, _Councils and Eccl.
Documents_, vol. iii.

  Penalties inflicted by ecclesiastical courts.

The penalties which the spiritual court could inflict, in the period
between the edict of Milan and c. 854, were properly excommunication
whether generally or as exclusion from the sacraments for a term of
months or years or till the day of death and (in the case of clerics)
suspension or deposition. Gradually, however, doubtless by way of
commutation of excommunication and of penance, temporal penalties were
added, as scourging, banishment, seclusion in a monastery, fines. It is
difficult to say how far some of these temporal penalties were
penitential only or how far they could be inflicted _in invitos_. But
the secular arm, from the time of Nicaea I., was in the habit of aiding
spiritual decrees, as by banishing deposed bishops, and gradually by
other ways, even with laymen. Scourging (although it had been a
well-known punishment of the synagogue) was at first forbidden. Can. 28
(26) of the Apostolic Canons imposes deposition on any bishop, priest or
deacon striking the delinquent faithful. In Africa, however, a contrary
practice early sprang up (see St Augustine, _Epist._ clix. _ad Marcellum
al._ cxxxiii.). The small council of Vannes in Brittany in 465 made it
an alternative punishment for clerks convicted of drunkenness (Can. 13).
Canon 13 of the first council of Orleans, which has been cited in this
matter, seems to have no application. St Gregory the Great seems to
assume that scourging and seclusion in a monastery are in the discretion
of episcopal tribunals (see _Epistles_, lib. ii. ep. 11, 40, 42, 44, 45;
lib. vii. ep. 11, 67; lib. xii. ep. 31, c. 4). The 16th council of
Toledo (in 693) has been cited as if it visited certain very great
sinners with scourging as an ecclesiastical punishment. In fact, it only
approves the punishment as ordered by the Visigothic laws. An alleged
decree of a council of Autun in 670 is part of a code of discipline for
monasteries (see authorities cited by Hefele, _Councils_, sect. 290,
towards the end). Banishment does not seem to have been inflicted by the
spiritual court _in invitum_. Seclusion in a monastery seems first to
have been used by the civil power in aid of the spiritual. The fifth
canon of the council of Macon, in 584, forbids clergy to dress like
laymen and imposes a penalty of thirty days' imprisonment on bread and
water; but this may be merely penitential. There is little evidence of
the imposition of fines as ecclesiastical penalties; but there are
references to the practice in the epistles of St Gregory the Great,
notably in his instructions to St Augustine. Gregory III. copies from St
Gregory I. Probably these also were by way of penance. Isolated examples
in the early middle ages of metropolitans dealing with their suffragan
bishops by imprisonment in chains were extra-canonical abuses, connected
with the perversion of Church law which treated the metropolitan (who
originally was merely convener of the provincial synod and its
representative during the intervals of sessions) as the feudal "lord" of
his comprovincials.

With the later 9th century we enter upon a new epoch, and by the time of
Gregory VII., in the 11th century, the tribunals have fallen into the
hands of a regular class of canonists who are in fact professional
church-lawyers in orders. The changes due to the adoption of the False
Decretals by Nicholas I. and the application of their principles by
Hildebrand (afterwards Gregory VII.) are discussed in the article CANON
LAW. The later medieval system, thus inaugurated, may be considered (1)
in its hierarchy, (2) in the subject matter of its jurisdiction, (3) in
its penalties.

  Later medieval system.

1. (a) It is a system of courts. Much that had been done by bishops,
_sine strepitu forensi et figura judicii_, is now done in the course of
regular judicial procedure. Again, the court takes the place of the
synod. The diocesan synod ceases to have judicial work. The court of the
metropolitan takes the place of the provincial synod, except possibly
for the trial of bishops, and even this becomes doubtful.

(b) At first the bishop was the only judge in the diocesan court and he
always remains a judge. But just as the king appoints judges to hear
_placita coram rege ipso_, and the feudal lord appoints his seneschal or
steward, so the bishop appoints his official.

(c) The archdeacon acquires a concurrent ordinary jurisdiction with the
bishop (see ARCHDEACON). For some time it was considered that he was a
mere office-holder dependent on the will of the bishop with a
jurisdiction merely "vicarial"; but by the 13th century it was settled
that he held a "benefice" and that his jurisdiction over causes was
ordinary and independent of the bishop (Van Espen, pars i. tit. xii. c.
1; Fournier, _Les Officialités au moyen âge_, p. 134). It was partly in
order to counterpoise the power of archdeacons that bishops created
officials (Fournier, p. 8). Archdeacons in course of time created
officials who presided in court in their stead. The extent of
jurisdiction of archdeacons depended much upon local customs. In England
the custom was generally in their favour. Ordinarily, the appeal from an
archdeacon or his official lay to the court of the bishop; but by custom
the appeal might be to the court of the metropolitan: The Constitutions
of Clarendon, in 1164, made the appeal from the court of the archdeacon
lie to the court of the bishop.

(d) The official of the bishop might be his official principal, who was
his _alter ego_, or a special officer for a particular locality
(_officialis foraneus_). The latter was treated as a mere delegate, from
whom an appeal could be made to the bishop. The former had one
consistory with the bishop, so that appeals from him had to be made to
the court of the metropolitan. How far the official principal had
jurisdiction in criminal matters by virtue of his office, how far it was
usual to add this jurisdiction by special commission, and what were the
respective limits of his office and that of the vicar-general, are
questions of some nicety. The emphasis in Italy was on the vicar-general
(_Sext. de officio Vicarii_). In the Low Countries, France and England
the jurisdiction of the official principal was wider (Van Espen, pars
i. tit. xii. cc. 4, 5; Fournier, p. 21). But he could not try criminal
matters unless specially committed to him (Lyndwood, _Provinciale_, lib.
ii. tit. 1). Later in England it became usual to appoint one man to the
two offices and to call him chancellor, a word perhaps borrowed from
cathedral chapters, and not in use for a diocesan officer till the time
of Henry VIII. or later (see CHANCELLOR). In Ireland the title, till the
church was disestablished, was vicar-general.

The importance of distinguishing the normal functions of an official
principal and a vicar-general lies in this: that it was gradually
established that as a king should not hear causes but commit them to his
judges, so a bishop should not hear causes but appoint an official to
hear them (see Ridley, _View of the Civil and Eccl. Law_; Ayliffe,
_Parergon juris ecclesiastici_, p. 161; Godolphin, _Abridgement of the
Laws Ecclesiastical_, p. 8). The "parlements" of France were constantly
insisting on the independence and irremovability of the official
(Fournier, p. 219). But jurisdiction which was not necessarily incident
to the office of the official principal, that is to say voluntary
jurisdiction, such as the granting of licences and institution to
benefices, and criminal jurisdiction over clerks (and probably over
laymen), the bishop could reserve to himself. Reservations of this
nature are made in many English patents of chancellors and were held
good in _R._ v. _Tristram_, 1902, 1 K.B. 816.

(e) The ecclesiastical and temporal courts are kept distinct. The
charter of William the Conqueror abrogated the laws of Edgar. No bishop
or archdeacon "shall any longer hold pleas in the Hundred concerning
episcopal law nor draw a cause which concerns the rule of such to the
judgment of men of the world" (Stubbs, _Select Charters_, part iii.). In
France, where the bishop was a temporal baron, his feudal and his
spiritual courts were kept by distinct officers (Fournier, p. 2).

(f) From the bishop, or his official, appeal lay to the metropolitan,
who again could hear causes by his official. The Constitutions of
Clarendon recognize this appeal (c. viii.).

(g) An appeal lay from the court of the metropolitan to that of the
primate. There were many disputes as to the existence of these primates
(see Maitland, _Canon Law in the Church of England_, p. 121). In England
the dispute between Canterbury and York was settled by making them both
primates, giving Canterbury the further honour of being primate of all
England. In France the primatial sees and the course of appeals to them
were well established (Fournier, p. 219).

(h) Several attempts were made by metropolitans and their officials to
take causes arising in the dioceses of their comprovincials in the first
instance and not by way of appeal. The officials of primates in their
turn made similar attempts. After long struggles this was hindered, in
France by the bull _Romana_ (Fournier, p. 218), in England by the Bill
of Citations, 23 Henry VIII. c. 9, and Canon 94 of the Canons of 1603.
The preamble of the "Bill of Citations" is eloquent as to the mischief
which it is framed to prevent. There are, however, a few cases in which
the metropolitan is still allowed to cite in the first instance. One of
them was in cases of "perplexity." "Perplexity" arose where the
suffragans "could not owing to the geographical limitations of their
competence do full justice" (Maitland, pp. 118-119). Such was the case
of probate where notable goods of the deceased lay in more than one
diocese. Hence the origin of the "prerogative court" of Canterbury (cf.
Van Espen, pars i. tit. xix.; and for Spain, Covarruvias, _Pract.
Quaest._ c. 9).

(i) Gradually there grew up a mass of peculiar and exempt jurisdictions
(Ayliffe, pp. 417, 418; Phillimore, Eccl. Law, pp. 214, 927; de
Maillane, _Dict. du droit canonique_, s.v. "Exemptions"). Exempt
jurisdictions began with the monasteries and were matter of vehement
discussion in the later middle ages. There were no true exemptions
before the 11th century (Van Espen, pars iii. tit. xii.). Peculiar or
special jurisdiction, equal to that of the bishop, was given to deans
and chapters over the cathedral precincts and in places where they had
corporate property (see _Parham_ v. _Templer_, 3 Phil. Ecc. R. 22).
Sometimes it was given to deans alone or to prebendaries in the parishes
whence they derived their prebends. Where the archdeacon had a
jurisdiction co-ordinate with the bishop, it was called a peculiar. The
metropolitans had peculiars within the dioceses of their comprovincials
wherever they had residences or manors, and some whose origin is
uncertain, e.g. that of the fifteen parishes in the deanery of the
Arches. The official administering justice for the metropolitan was
usually called a dean. From a peculiar jurisdiction ranking as episcopal
the appeal lay to the court of the metropolitan. As to metropolitan
peculiars, the metropolitan might give an appeal from the dean to his
regular official principal. Thus, in Canterbury there was an appeal from
the dean of Arches to the official principal of the Arches court. When
peculiars were abolished (_vide infra_) the dean of Arches disappeared,
and his title, in the 19th century, was erroneously given to the
official principal. On peculiars in Spain cf. Covarruvias, _Works_, tit.
i. p. 410. The French parlements, after the middle ages, discouraged
them. In exempt convents the head of the monastery or priory exercised
jurisdiction subject to an appeal to the pope.

(j) It is said that originally a metropolitan had only one official
principal, who, like the metropolitan himself, acted both for the
diocese and province. Fournier (p. 219) says that in France it was not
till the 17th century that there grew up a custom of having different
officials for the metropolitan, one for him as bishop, a second as
metropolitan, and even a third as primate, with an appeal from one to
the other, and that it was an abuse due to the parlements which strove
to make the official independent of the bishop. In England there has
been, for a long time, a separate diocesan court of Canterbury held
before the "commissary." The word is significant as showing that there
was something special and restricted about the position. In York there
are two courts, one called the consistory for the diocese, the other
called the chancery for the province. But the same person was often
official of both courts.

(k) In England the Constitutions of Clarendon added a provision for
appeal to the king, "and if the archbishop shall have failed in doing
justice recourse is to be had in the last resort (_postremo_) to our
lord the king, that by his writ the controversy may be ended in the
court of the archbishop; because there must be no further process
without the assent of our lord the king." The last words were an attempt
to limit further appeal to Rome. It will be observed that the king does
not hear the cause or adjudicate upon it. He merely corrects slackness
or lack of doing justice (_Si archiepiscopus defecerit in justitia
exhibenda_) and by his writ (_precepto_) directs the controversy to be
determined in the metropolitan's court. As bishop Stubbs says (_Report
of Eccl. Comm._ vol. i. _Hist. App._ i.): "The appeal to the king is
merely a provision for a rehearing before the archbishop, such failure
to do justice being not so much applicable to an unfair decision as to
the delays or refusal to proceed common at that time" (cf. Joyce, _The
Sword and the Keys_, 2nd ed. pp. 19-20). The _recursus ad principem_, in
some form or other of appeal or application to the sovereign or his lay
judges, was at the end of the middle ages well known over western
Europe. This recourse in England sometimes took the form of the appeal
to the king given by the Constitutions of Clarendon, just mentioned, and
later by the acts of Henry VIII.; sometimes that of suing for writs of
_prohibition_ or _mandamus_, which were granted by the king's judges,
either to restrain excess of jurisdiction, or to compel the spiritual
judge to exercise jurisdiction in cases where it seemed to the temporal
court that he was failing in his duty. The _appellatio tanquam ab abusu_
(_appel comme d'abus_) in France was an application of a like nature.
Such an appeal lay even in cases where there was a refusal to exercise
voluntary jurisdiction (de Maillane, _Dictionnaire du droit canonique_,
tit. "Abus," cf. tit. "Appel"). This writer traces their origin to the
14th century; but the procedure does not seem to have become regularized
or common till the reigns of Louis XII. or Francis I. (cf. _Dict.
eccl._, Paris, 1765, titt. "Abus" and "Appel comme d'abus"). On the
_recursus ad principem_ and the practice of "cassation" in Belgium,
Germany and Spain, cf. Van Espen's treatise under this title (_Works_,
vol. iv.) and _Jus eccles. univ._ pars iii. tit. x. c. 4. Louis XIV.
forbad the parlements to give judgment themselves in causes upon an
_appel comme d'abus_. They had to declare the proceedings null and
abusive and command the court Christian to render right judgment (Edict
of 1695, arts. 34, 36, cited in Gaudry, _Traité de la législation des
cultes_, Paris, 1854, tom. i. pp. 368, 369).

In Catalonia "Pragmatics," letters from the prince, issued to restrain
jurisdiction assumed by ecclesiastical judges contrary to the customs of
the principality. Thus in 1368 Peter III. evoked to the royal court a
prosecution for abduction pending before the archbishop of Tarragona,
declaring that the archbishop and the official were incompetent to judge
noblemen. See this and other instances collected in _Usages y demas
derechos de Cataluña_, by Vives y Cebriá (Barcelona, 1835), tom. iv. p.
137 et seq.

(l) Lastly there was the appeal to the patriarchs, i.e. in the West to
Rome. The distinguishing feature of this appeal was that the rule of the
other appeals did not apply to it. In the regular course of those
appeals an appellant could not leap the intermediate stages; but he
could at any stage go to this final appeal, _omisso medio_, as it was
technically called (see _de appell. c. Dilect._ iii. for general rule,
and c. 3 _de appell._ in 6 for different rule in case of the pope, and
authorities cited in Van Espen, pars iii, tit. x. c. 2, 5). Van Espen
says: "The whole right of appeal to the Roman pontiff _omisso medio_ had
undoubtedly its origin in this principle, that the Roman pontiff is
ordinary of ordinaries, or, in other words, has immediate episcopal
authority in all particular churches, and this principle had its own
beginning from the False Decretals."

Appeals to Rome lay from interlocutory as well as final judgments.
Causes could even be evoked to Rome before any judgment and there heard
in first instance (Van Espen, pars iii. tit. x. c. 1, 8).

There was an alleged original jurisdiction of the pope, which he
exercised sometimes by permanent legates, whom Gregory VII. and his
successors established in the chief countries of Europe, and to whom
were committed the legislative executive and judicial powers of the
spiritual "prince" in the districts assigned to them. These Clement IV.
likened to "pro-consuls" and declared to have "ordinary" jurisdiction;
because they had jurisdiction over every kind of cause, without any
special delegation, in a certain defined area or province (c. ii. _de
Officio Legati_ in 6). They were expressed to have not merely appellate
but original jurisdiction over causes (iii. c. i. _de Officio Legati_).
The occupants of certain sees by a kind of prescription became legates
without special appointment, _legati nati_, as in the case of
Canterbury. In the 13th century Archbishop Peckham, says Maitland (p.
117), as archbishop "asserted for himself and his official (1) a general
right to entertain in the first instance complaints made against his
suffragans' subjects, and (2) a general right to hear appeals _omisso
medio_." It was, for the time, determined that the archbishop might
himself, in virtue of his legatine authority, entertain complaints from
other dioceses in first instance, but that this legatine jurisdiction
was not included in the ordinary jurisdiction of his official principal,
even if the archbishop had so willed it in his commission. In fact,
however, the official did before the end of the later medieval period
get the same power as the archbishop (Maitland, pp. 118-120; cf.
Lyndwood, lib. v. tit. 1), till it was taken from him by the Bill of
Citations.

After legates came special delegates appointed by the pope to hear a
particular cause. It was the general practice to appoint two or three to
sit together (Van Espen, pars iii. tit. v. c. 2, 37). These might
sub-delegate the whole cause or any part of it as they pleased, ibid.
9-18. Dr Maitland (essay on "The Universal Ordinary") thinks, but
without very much foundation, that great numbers especially of the more
important causes were tried before these delegates; although the records
have largely perished, since they were the records of courts which were
dissolved as soon as their single cause had been decided. These courts
were convenient, since it was the custom to appoint delegates resident
in the neighbourhood, and the power of sub-delegation, general or
limited, simplified questions of distance. In Belgium causes appealed
to Rome had to be committed to local delegates (Van Espen, pars iii.
tit. v. c. 3, tit. x. c. 2).

There could be an appeal from these delegates to the pope and from the
pope himself to the pope "better informed" (Van Espen, pars iii. tit. x.
c. 2, 12, 13). So personal had the system of jurisdiction become that
even the trials of bishops ceased to be necessarily conciliar. Generally
they were reserved to the pope (Van Espen, pars iii. tit. iii. c. 5,
17-19); but in England the archbishop, either in synod, or with some of
his comprovincial bishops concurring, tried and deposed bishops (see
case of Bishop Peacock and the other cases cited in _Read_ v. _Bishop of
Lincoln_, 14 P.D. 148, and Phillimore, _Eccl. Law_, pp. 66 et seq.).

(m) The jurisdiction of a bishop _sede vacante_ passed, by general law,
to the dean and chapter; but in England the metropolitans became
"guardians" of the spiritualities and exercised original jurisdiction
through the vacant diocese (Phillimore, pp. 62-63), except in the case
of Durham, and with a peculiar arrangement as to Lincoln.

If the metropolitan see were vacant the jurisdiction was exercised by
the dean and chapter through an official (Rothery, _Return of Cases
before Delegates_, Nos. 4, 5). As to France see Fournier, p. 294.

(n) Officials, even of bishops and metropolitans, need not be in holy
orders, though Bishop Stubbs in his paper in the _Report of the
Commission on Ecclesiastical Courts_ seems to say so. They had to be
clerics, that is, to have received the tonsure. Even papal delegates
might be simple clerks (Van Espen, pars iii. tit. v. c. 2, 20).

It came, however, to be the practice to impose some restrictions, as on
clerks twice married. Thus Archbishop Chichele provided that no clerk
married or bigamous (that is, having had two wives in succession) should
exercise spiritual jurisdiction (see Lyndwood, lib. iii. tit. 3). Abroad
unsuccessful attempts were made by local councils to enact that
officials and vicars-general should be in holy orders (Hefele on
Councils of Tortosa in 1429 and Sixth of Milan in 1582). These councils,
as will be seen, are late.

(o) With or without the concurrence and goodwill of the national Church,
restrictions were imposed by the State on the papal jurisdiction,
whether original or appellate. In England the Constitutions of Clarendon
(by chap. viii.) prohibited appeals to the pope; but after the murder of
St Thomas of Canterbury Henry II. had to promise not to enforce them.
The statutes 38 Edw. III. st. 2, 13 Rich. II. st. 2, c. 2, and 16 Rich.
II. c. 5 forbid such appeals; but it is suggested that notwithstanding
the generality of their language they refer only to cases of temporal
cognizance. Cases upon the execution of these statutes are collected in
Stillingfleet, _On Ecclesiastical Jurisdiction_, p. 189; Gibson,
_Codex_, 83. Obstacles were placed in the way of appeals to the pope
_omisso medio_. Thus when a writ of _significavit_ issued on the mandate
of a bishop, an appeal to Rome availed not to stay execution; but if
there were an appeal to the archbishop it was otherwise. It therefore
became the custom to lodge a double appeal: one to the archbishop "for
defence," and the other to the pope as the real appeal ("Hostiensis,"
_Super Decret._ ii. fol. 169; cf. Owen, _Institutes of Canon Law_, 1884,
pt. i. c. 19, 5).

There seems to have been no machinery for assisting the original or
appellate jurisdiction of the pope by secular process,--by
_significavit_ or otherwise.

The matrimonial cause between Henry VIII. and Catharine of Aragon was
the most famous English cause tried by delegates under the "original"
jurisdiction of the pope, and was ultimately "evoked" to Rome. The
foreseen adverse termination of this long-drawn cause led to Henry's
legislation.

When the temporal courts interfered to prevent excess of jurisdiction,
they did so by prohibiting the ecclesiastical court from trying and the
suitor from suing in that court. The pope could not be effectively
prohibited, and no instance is recorded of a prohibition to papal
delegates. But suitors have been prohibited from appealing to the pope
(see per Willes, J., in _Mayor of London_ v. _Cox_, L.R. 2 H.L. 280).
Whatever may have been the law, it is certain that, notwithstanding the
statutes of Edw. III. and Rich. II., appeals to Rome and original trials
by papal delegates did go on, perhaps with the king's licence; for the
statute 24 Hen. VIII. c. 12 recites that the hearing of appeals was an
usurpation by the pope and a grievous abuse, and proceeds to take away
the appeal in matrimonial, testamentary and tithe causes, and to hinder
by forbidding citation and process from Rome, all original hearings
also. The statute 25 Hen. VIII. c. 19 follows this up by taking away
appeals in all other subjects of ecclesiastical jurisdiction.

In 1438 the council of Basel took away all papal original jurisdiction
(save in certain reserved cases--of which _infra_), evocation of causes
to Rome, appeals to Rome _omisso medio_, and appeals to Rome altogether
in many causes. Such appeals when permissible, except the "greater,"
were to be tried by delegates on the spot (31st Session; Mansi,
_Concilia, in loco_). These proceedings at Basel were regarded at Rome
as of no effect. Nevertheless this decree and others were adopted by a
French national council at Bourges and promulgated by the king as a
"Pragmatic Sanction" (Migne, _Dict. du droit canonique_, "Pragmatique
Sanction"). The parlements registered the Sanction and the effect was
permanent in France. Louis XI. and Charles VIII. sought to revoke it;
but both parlements and states-general refused to recognize the revoking
decrees. In 1499 Louis XII. ordered the Pragmatic to be inviolably
observed. The parlements thereupon condemned several private persons for
obtaining bulls from Rome. In 1516 a Concordat between Leo X. and
Francis I. settled all these questions in the sense of the Pragmatic,
substantially according to the Basel canon. All causes, except the
"greater," were to be terminated in the country where the proper
cognizance would lie (Migne, op. cit. "Concordat"). By this Concordat,
by an ordinance of Francis I. in 1539, by two or three other royal
edicts, and (above all) by the practice of the parlements, explanatory
of this legislation, and their _arrêts_, the conflict of secular and
ecclesiastical jurisdictions was settled until the Revolution (Migne,
_ubi sup._). "Greater causes" came in France to be restricted to
criminal prosecutions of bishops. Even in these the original
jurisdiction of the pope was taken away. In first instance they were
tried by the provincial synod. Thence there was appeal to the pope (de
Maillane, op. cit. s.v. "Causes majeures"; _Dict. eccl._, Paris, 1765,
s.v. "Cause"). The only original jurisdiction left to the pope was in
the case of the matrimonial causes of princes. But they could only be
heard on the spot by judges delegate. Examples are the causes of Louis
XII. and Jeanne of France in 1498, and of Henry IV. and Marguerite of
Valois in 1599 (Migne, op. cit. s.v. "Causes"). The prohibition of papal
interference was enforced if necessary by the _appel comme d'abus_
(_vide supra_). Out of respect for the pope this appeal was not brought
against his decrees but against their execution (_Dict. eccl._, Paris,
1765, s.v. "Abus").

Spain appears to have permitted and recognized appeals to the pope. A
royal writ of the 16th century cited by Covarruvias (c. xxxv.) prohibits
execution of the sentence of a Spanish court Christian pending an appeal
to the pope.

  Civil jurisdiction.

2. The subject matter over which the ecclesiastical courts had
jurisdiction was no longer purely "criminal" with a civil
quasi-jurisdiction by way of arbitration. In the later middle ages these
courts had jurisdiction over most questions, except indeed the then most
important ones, those relating to real property. This civil jurisdiction
was sometimes concurrent with that of the secular courts, sometimes
exclusive. For England it may be thus classified:--

(a) _Matrimonial._--This arose naturally from the sacred character of
Christian marriage. This jurisdiction was exclusive. From it followed
the right of the courts Christian to pronounce upon questions of
legitimacy. Upon this right an inroad was early made, in consequence of
the question of legitimation by subsequent marriage. In the 12th century
the Church's rule, that subsequent marriage did legitimize previous
issue, was settled (c. 6, x. 4, 17). The king's judges then began to ask
the ordinary the specific question whether A. B. was born before or
after his parents' marriage. After the inconclusive proceedings at the
realm-council of Merton (1236), when spiritual and temporal lords took
opposite views, the king's judges went a step further and thenceforward
submitted this particular question to a jury. All other questions of
legitimacy arising in the king's courts were still sent for trial to the
bishop and concluded by his certificate (see Pollock and Maitland,
_Hist. Eng. Law before Edward I._ vol. i. 105-106; Maitland, _ubi
supra_, pp. 53-56).

(b) _Testamentary and in regard to succession from intestates._--Real
property was not the subject of will or testament in the medieval
period. But as to personal property, the jurisdiction of the courts
Christian became exclusive in England. The Church, East and West, had
long asserted a right to supervise those legacies which were devoted to
pious uses, a right recognized by Justinian (_Cod._ i. 3. 46). The
bishop or, failing him, the metropolitan, was to see such legacies
properly paid and applied and might appoint persons to administer the
funds (Pollock and Maitland, op. cit. ii. 330). This right and duty
became a jurisdiction in all testamentary causes. Intestacy was regarded
with the greatest horror, because of the danger to the intestate's soul
from a death without a fitting part given to pious uses (Maine, _Ancient
Law_, ed. 1906, note by Pollock, p. 230; cf. Pollock and Maitland, op.
cit. ii. 354). Hence came the jurisdiction of the ordinary in intestacy,
for the peace of the soul of the departed. This head of ecclesiastical
jurisdiction was in England not transferred to the secular court till
1857.

(c) _Church Lands._--If undoubtedly held in _frankalmoign_ or "free
alms," by a "spiritual" tenure only, the claim of jurisdiction for the
ecclesiastical _forum_ seems to have been at first conceded. But the
Constitutions of Clarendon (c. 9) reserved the preliminary question, of
"frankalmoign" or not, for a jury in the king's court. Then, if the
tenure were found free alms, the plea was to be heard in the court
Christian. From the 13th century, however, inclusive, the king's courts
insisted on their exclusive jurisdiction in regard to all realty,
temporal or "spiritual" (Pollock and Maitland, op. cit. i. 106).

(d) _Title to present to and possession of benefices._--As to the title
to present to benefices, the courts Christian at one time had concurrent
jurisdiction with the temporal courts. "Advowsons" were, however, looked
upon as a species of "real" property in England, and therefore the
king's court early claimed exclusive jurisdiction in disputes where the
title to present was involved. The Constitutions of Clarendon provided
that these causes should be heard only in the king's court (c. 1). This
rule was applied even where both litigants were "spiritual." In the 13th
century abbots sue each other in the royal court for advowsons (Selden
Soc. _Select Civil Pleas_, i. pl. 245). In 1231, in such a suit, the
bishop of London accepts wager of battle (Pollock and Maitland, op. cit.
i. 105). In cases, however, where the title to present was not in
question, but the fitness of the clerk presented, or, in cases of
election to benefices, the validity of the election, there was
jurisdiction in the courts Christian.

(e) _The recovery of tithes and church dues,_ including in England
church rates levied to repair or improve churches and churchyards.

(f) Questions concerning _fabrics, ornaments, ritual and ceremonial_ of
churches.

(g) _Administration of pious gifts and revenues given to prelates or
convents._--Their right application could be effectively enforced only
in the courts Christian; until the rise in England of the equitable
jurisdiction of the court of chancery and the development of the
doctrine of "uses" at the end of the middle ages.

(h) _Enforcement of contractual promises made by oath or pledge of
faith._--The breaking of such a promissory oath was called "perjury" (as
in classical Latin and in Shakespeare), contrary to modern usage which
confines the word to false evidence before a court of justice. In regard
to the execution of these promises, the jurisdiction of the
ecclesiastical courts was possibly traversed by c. 15 of the
Constitutions of Clarendon; but allowed by the statute 13 Edw. I. st. 4.
As just intimated, besides the enforcement of the promise, the
"perjury" was treated as an ecclesiastical crime.

The _criminal jurisdiction of courts Christian over laymen_ included,
besides these "perjuries," (a) all _sexual offences_ not punishable on
indictment; (b) _Defamation of character_ (the king's courts came in
time to limit this to such defamation as could not be made the subject
of a temporal action); (c) _Offences by laymen against clerks_ (i.e.
against all "tonsured" persons, supra); (d) _Offences in regard to holy
places_--"brawling" and such like; (e) _Heresy, schism, apostasy,
witchcraft_.

In regard to "clerks," there was (1) all the criminal jurisdiction which
existed over laymen, and (2) criminal jurisdiction in regard to
professional misconduct. Concerning "felonious" clerks the great
questions discussed were whether the courts Christian had exclusive
jurisdiction or the king's court, or whether there was a concurrent
jurisdiction. The subject was dealt with in the Constitutions of
Clarendon, formally revoked after the murder of St Thomas of Canterbury.
In the 13th century it was recognized that a "clerk" for felony was
subject only to ecclesiastical trial and punishment; punishment which
might involve lifelong imprisonment. For "misdemeanours," as yet
unimportant, he had no exemption from secular jurisdiction (Pollock and
Maitland, op. cit. ch. iv.). At some indeterminate later period, the
"clerk" was tried for felony by a jury in the king's court and then
"pleaded his clergy," after conviction there, and was remitted to the
ordinary for ecclesiastical punishment. "Clerks" for the purpose of
"benefit of clergy" included not only persons in minor orders, but all
"religious" persons, i.e. monks, friars, nuns, &c. Later the custom
arose of taking "clerk" to include any "literate," even if not in orders
or "religious" (cf. Stephen, _Hist. Crim. Law_, i. 461). The statute 4
Hen. VII. c. 13 took away benefit of clergy, if claimed a second time,
from persons not "within orders," in certain bad cases. 4 Hen. VIII. c.
2 (a temporary act) took away "clergy," in certain heinous crimes, from
all persons not in "holy" orders. This statute was partly renewed by 22
Hen. VIII. c. 13. Other changes were introduced by 23 Hen. VIII. c. 1
and later acts. In time, "benefit of clergy" became entirely diverted
from its original objects.

In _France_, till 1329, there seems to have been no clear line of
demarcation between secular and ecclesiastical jurisdictions. Beaumanoir
(_Coutume de Baulvoisis_, ch. xi., cited Gaudry, op. cit. i. 22) had
laid down the principle that spiritual justice should meddle only with
spiritual things. In the year named the secular courts complained to the
king, Philip of Valois, of the encroachments of the courts Christian.
The "cause" was solemnly argued before that monarch, who decided to
leave things as they were (Migne, _Dict. du droit canon._, s.v.
"Officialités"). In 1371 Charles V. forbade spiritual courts to take
cognizance of "real" and "possessory" actions even in regard to clerks
(Migne, loc. cit.; cf. Gaudry, _ubi sup._). From this period the
parlements began the procedure which, after the Pragmatic Sanction of
Charles VII., in 1438 took regular shape as the _appel comme d' abus_
(_supra_; Migne, loc. cit.). Testamentary causes at first were subject
to the concurrent jurisdiction of the spiritual and secular courts.
After the 14th century, the latter had exclusive jurisdiction (Van
Espen, op. cit. lib. iii. tit. ii. cc. 2, 15, 16). In regard to
_marriage_ the secular jurists distinguished between the civil contract
and the sacrament, for purposes of separating the jurisdiction (_Dict.
eccl._, Paris, 1765, s.v. "Mariage"). The voluntary jurisdiction as
regards dispensations was kept for the Church. The contentious
jurisdiction of the courts Christian was confined to promises of
marriage, nullity of marriage caused by "diriment" impediments only,
validity or invalidity of the sacrament, divorce _a thoro_ (ibid.).
Questions in regard to the _property in a benefice_ were for the courts
Christian; in regard to its _possession_, for the king's courts. But if
a "possessory" action had been brought in the latter, a subsequent suit
in the courts spiritual for the property was deemed "abusive" and
restrained (ib., s.v. "Pétitoire") _Breach of faith or of promise
confirmed by oath_ was matter for the court Christian (Fournier, pp. 95,
99, 109, 125). This branch of jurisdiction was larger and more freely
used than in England (cf. Pollock and Maitland, op. cit., as to
Normandy). The only other remaining civil jurisdiction of the
ecclesiastical courts was in _personal actions where clerks were
defendants_ (Migne, op. cit., s.v. "Officialités," Fournier, pp.
65-125); or, after the 14th century, where both parties were clerks. In
regard to crimes delicts (_délits_) were divided into classes for
purposes of jurisdiction. Clerks were punishable only in the court
Christian, except in cases of grave crimes such as murder, mutilation
(Fournier, p. 72), and cases called "royal cases" (_vide infra_). Laymen
were punishable in the court Christian for the _délits_ following:
injury to sacred or religious places, sacrilege, heresy (except where it
was a "royal case"), sorcery, magic, blasphemy (also punishable in the
secular court), adultery, simony, usury and infractions of the truce of
God (Fournier, pp. 90-93). What were called "privileged delicts" were
judged in the case of the clergy conjointly by the spiritual judge and
the king's judge. Bishops had no exemption (_Dict. ecc._, s.v. "Délits,"
"Cas privilégié," "Causes majeures"). "Royal cases" included such crimes
as touched the prince, as all forms of treason; or the dignity of his
officers; or the public safety. In this class were also included such
heresies as troubled the state, as by forbidden assemblies, or by
teaching prohibited doctrine. Among these heresies were reckoned
idolatry, atheism, Protestantism, relapse (_ib. et_ "Cas royaux,"
"Hérésie"). These were of exclusive royal jurisdiction as against both
spiritual courts and the courts of feudal lords. A similar claim was
made by Pombal for Portugal (_vide infra_).

The parlements, in order to have a ready means of enforcing all these
restrictions by _appel comme d'abus_, compelled the bishops to appoint
officials, Frenchmen, graduates, and (as it seems) "seculars" (_Dict.
eccl._, Paris, 1765, s.v. "Official"). This last qualification was
disputed (see Fevret, _Traité de l'abus_).

3. _Punishments._--Ecclesiastical sanctions were divided into
_punishments_ (_poenae_), either purely temporal in character or else of
a mixed spiritual and temporal character, and _censures_ (_censurae_),
purely spiritual and remedial (see Van Espen, pars iii. tit. xl. cc. 1,
3; Phillimore, _Ecclesiastical Law_, p. 1064). In the book last cited
_censurae_ and _poenae_ are classed together as "censures" (which is the
modern use).

_Poenae._--(a) Fines sprang from the older custom of directing alms by
way of penance in the internal forum (Van Espen, _ubi sup._ c. 1, 5-10).
They were to be applied to pious uses. (b) _Reclusion in a monastery_
continued from former period, and might be either temporary or perpetual
(loc. cit. 17-19). (c) _Imprisonment_, in the bishop's prison, might be
in chains, or on bread and water, and temporary or perpetual. In its
severer forms it was only inflicted for more atrocious crimes which the
secular law would have punished with death (loc. cit. 21-27). The act 23
Henry VIII. c. 11 made special provision for convicted clerks who broke
out of the prisons of the ordinary. (d) _Fustigation_, as in former
period, was hardly an ecclesiastical punishment. If given, it was to be
of a paternal character (loc. cit. 39-45). Punishments of a mixed nature
were: (e) _Suspension_ either from office alone or from office and
benefice; (f) _Deprivation_ of benefice; (g) _Deposition_ or
_Degradation_ (a more solemn and ceremonial form) from the ministry; (h)
_Irregularity_--not always a punishment--a state of incapacity to be
ordained, or, being ordained, to execute the ministry; this might result
from some defect of mind and body, but was also incurred by some grave
offences.

_Censures_ were as follows: (i) _Suspension_ from attending divine
offices or _ab ingressu ecclesiae_, more appropriate for a layman. A
clerk in like case might be suspended from office. (j) _Interdict_ was
another form of partial or total suspension from the benefit of the
rites and sacraments of the Church. An interdict might be personal or
local (see INTERDICT). (k) _Excommunication_ was either greater or less.
The greater separated entirely from the Church. It might be pronounced
under anathema. The less deprived of participation in the sacraments,
and made a clerk incapable of taking a benefice.

On the European continent the courts Christian often carried out their
decrees by their own apparitors who could levy pecuniary penalties on a
defendant's goods (Van Espen, pars iii. tit. ix. c. 4). They could
arrest and imprison. In England, except in the peculiar case of
imprisonment pending trial for heresy, or in the case of a clerk
convicted of crime, these things could not be. The sentence of the court
Christian had in all other cases to be enforced by the secular arm.
Early in Henry II.'s time it had become the custom of England for the
court Christian to "signify" its sentence of excommunication to the king
and to demand from him a writ of _significavit_ to the sheriff, to
imprison the person excommunicated. The writ apparently issued for no
court inferior to the bishop's, unless upon the bishop's request. In
some sense the king's writ of _significavit_ was discretionary; but its
issue could be enforced by excommunication or interdict.

In the cases of heresy, apostasy and sorcery, the spiritual courts
sought the aid of the secular jurisdiction to superadd the punishment of
death. Incorrigible offenders on these matters were "left" to the
secular power, to be corrected with due "animadversion." This provision
of the fourth Lateran Council in 1215 was always interpreted to mean
death (see Van Espen, _Observ. in Conc. Lat. IV. Canones_, and the
decree in the _Sext. ut inquisitionis negotium_; and, as to English law
and practice, Maitland, op. cit., Essay vi., and pp. 161, 176; 2 Hen.
IV. c. 15; Fitzherbert, _Natura brevium_, 269; 2 Hen. V. st. 1, c. 7).
The "capital" punishment was generally (always in England) by burning.
Burning was an English punishment for some secular offences.

The Concordat with Francis I. by which the pope gave up the right of
hearing appeals from France was not many years before the legislation of
Henry VIII. in England. Both monarchs proceeded on the same lines; but
Francis I. got the pope's consent: Henry VIII. acted _in invitum_, and
in time went rather further.

  Ecclesiastical jurisdiction in England.

The Statute of Appeals (24 Hen. VIII. c. 12) takes away appeals to Rome
in causes testamentary and matrimonial and in regard to right of tithes,
oblations and obventions. A final appeal is given to the archbishop of
the particular province; but in causes touching the king a final appeal
is given to the Upper House of Convocation of the province. The statute
is aimed at appeals; but the words used in it concerning "citations and
all other processes" are wide enough to take away also the "original"
jurisdiction of the pope. No appeal was yet given to the crown.
Canterbury, York, Armagh, Dublin, Cashel and Tuam are put in the place
of Rome. The English and Irish provinces are treated as self-contained.
All ends there.

The "Act of Submission of the Clergy" (25 Hen. VIII. c. 19) took away
_all_ appeals to Rome and gave a further appeal, "for lack of justice,"
from the several courts of the archbishops to the king in chancery.
Thence a commission was to issue to persons named therein to determine
the appeal definitely. This was copied from the then existent practice
in admiralty appeals and was the origin of the so-called court of
delegates. It is a moot question whether this statute took away the
appeal to the Upper Houses of the various convocations in causes wherein
the king was concerned (see _Gorham_ v. _Bishop of Exeter_, 15 Q.B. 52;
_Ex parte Bishop of Exeter_, 10 C.B. 102; _Re Gorham_ v. _Bishop of
Exeter_, 5 Exch. 630). 37 Hen. VIII. c. 17 provided that married laymen
might be judges of the courts Christian if they were doctors of civil
law, created in any university. This qualification even was considered
unnecessary in Charles I.'s time (_Cro. Car._ 258). Canon 127 of 1603
provided that the judges must be learned in the civil and ecclesiastical
laws and at least masters of arts or bachelors of laws. Canon Law as a
study had been practically prohibited at the universities since 1536
(Merriman, _Thomas Cromwell_, i. 142-143; _Cal. State Papers_, vol. ix.
p. xxix. 117; Owen, _Institutes of Canon Law_, viii.). The substitution
of "civilians," rather than common lawyers, for canonists (civilians,
hitherto, not an important body in England) had important consequences
(see Maitland, op. cit. 92 et seq.).

Henry VIII. had exercised his jurisdiction as Supreme Head through a
vicar-general. Edward VI. exercised original jurisdiction in spiritual
causes by delegated commissions (see Archdeacon Hale, _Precedents in
Criminal Cases_, p. xlviii.). Unless the king was to be regarded as an
ecclesiastical person, they were not properly ecclesiastical courts;
although spiritual persons might sit in them, for they sat only as royal
commissioners. The same point has been taken by large bodies of clergy
and laity in regard to the court of final appeal created by 25 Hen.
VIII. c. 19 and its present successor the judicial committee of Privy
Council (_infra: Rep. Com. Ecc. Discipline_, pp. 9, 94 et seq.). At any
rate the "original" jurisdiction claimed for the monarch personally and
his delegates, under Henry VIII. and Edward VI., has not permanently
remained. In theory, Hooker's contentions have been conceded that "kings
cannot in their own proper persons decide questions about matters of
faith and Christian religion" and that "they have not ordinary spiritual
power" (_Ecc. Pol._ vii. 8, 1, 6; cf. _XXXIX. Articles_, Art. 37).

Under Henry VIII. a system began of making certain crimes, which
previously had been only of spiritual cognizance, felonies (25 Hen.
VIII. c. 6), excluding thereby spiritual jurisdiction (Stephen, _Hist.
Crim. Law_, ii. 429). Bigamy (in its modern sense) was thus made felony
(1 Jac. I. c. 11). In this reign and the next, temporal courts were
sometimes given jurisdiction over purely spiritual offences. A trace of
this remains in 1 Edw. VI. c. 1 (still on the statute book; Stephen,
_Hist. Crim. Law_, ii. 439). Other traces occur in the Acts of
Uniformity, which make offences of depraving the Book of Common Prayer
triable at Assizes (between 23 Eliz. c. 1 and 7 & 8 Vict. c. 102--also
at Sessions) as well as in the courts Christian.

During Edward VI.'s time the courts Christian seem practically to have
ceased to exercise criminal jurisdiction (Hale, _Precedents in Criminal
Cases_, p. xlix.). But they sat again for this purpose under Mary and
Elizabeth and (save between 1640 and 1661) continued regular criminal
sessions till towards the end of the 17th century as continuously and
constantly as the king's courts (op. cit.).

The "ordinary" ecclesiastical tribunals of the later middle ages still
subsist in England, at least as regards the laity. This is hardly the
case elsewhere in the Western Church, though some exceptions are noted
below. Nevertheless, their exercise of criminal jurisdiction over the
laity is now in practice suspended; although in law it subsists (see
Stephen, _Hist. Crim. Law_; _Ray_ v. _Sherwood_, 1 Curt. R. 193; 1 Moore
P.C.R. 363; the observations of Kelly, C.B., in _Mordaunt_ v.
_Moncrieffe_, L.R. 2 Sc. & Div. 381, and of Lord Coleridge in _Martin_
v. _Mackonochie_, L.R. 4 Q.B.D. 770, and, on the other hand, of Lord
Penzance in _Phillimore_ v. _Machon_, L.R. 1 P.D. 480). Theoretically
still, in cases of sexual immorality, penance may be imposed. Monitions
to amend may be decreed and be enforced by _significavit_ and writ _de
contumace capiendo_, or by excommunication with imprisonment not to
exceed six months (53 Geo. III. c. 127). The tribunals thus subsisting
are the courts of the bishop and archbishop, the latter sometimes called
the court of appeal of the province. Peculiar jurisdictions have been
gradually taken away under the operation of the acts establishing the
ecclesiastical commissioners. The appeal given to delegates appointed by
the crown has been transferred, first by 2 & 3 Will. IV. c. 92 to the
privy council, and then by 3 & 4 Will. IV. c. 41 to the judicial
committee of the privy council. Bishops may now be summoned as assessors
by 39 & 40 Vict. c. 59.

There was in the time of Elizabeth, James I. and Charles I. a "Court of
High Commission" with jurisdiction over laity and clergy, based on 1
Eliz. c. i. s. 15, which was reckoned as an ecclesiastical judicature (5
R. 1, _Cawdrey's case_) concurrent with the ordinary court Christian. It
was created by virtue of the royal supremacy, and was taken away by 16
Car. I. c. 11. As to its history see Stephen, _Hist. Crim. Law_, ii.
414-428.

In regard to clerical offences, 3 & 4 Vict. c. 86 (the "Church
Discipline Act") creates new tribunals; and first a commission of
inquiry appointed by the bishop of five persons, of whom the
vicar-general, or an archdeacon, or a rural dean of the diocese must be
one. If they report a _prima facie_ case, the bishop may (with the
consent of parties) proceed to sentence. In the absence of such
consent, the bishop may hear the cause with three assessors, of whom one
shall be a barrister of seven years' standing and another the dean of
the cathedral, or one of the archdeacons, or the chancellor. This court
is called the "consistory" court, but is not the old consistory. Both
these tribunals are new. But the bishop may instead send the cause, in
first instance, to the old provincial court, to which appeal lies, if it
be not so sent.

The Public Worship Regulation Act (37 & 38 Vict. c. 85) gave criminal
jurisdiction over beneficed clerks (concurrent with that of the tribunal
under 3 & 4 Vict. c. 86) to the judge under the act in matters of the
fabric, ornaments, furniture and decorations of churches, and the
conduct of divine service, rites and ceremonies. The "judge" under the
act is to be a barrister of ten years' standing, or an ex-judge of a
superior secular court, appointed by the archbishops of Canterbury and
York, with the approval of the crown, or, if they fail to appoint, by
the crown. Proceedings under this act are to be deemed to be taken in
the appropriate ancient ecclesiastical courts (_Green_ v. _Lord
Penzance_, 6 A. C. 657). The judge under this act became (upon vacancies
occurring) _ex officio_ official principal of the arches court of
Canterbury and of the chancery court of York. This provision caused
grave doubts to be entertained as to the canonical position of this
statutory official principal.

Finally, the Clergy Discipline Act 1892 (55 & 56 Vict. c. 32) creates
yet a new court of first instance for the trial of clerical offences
against morality in the shape of a consistory court, which is not the
old court of that name, but is to comprehend the chancellor and five
assessors (three clergymen and two laymen chosen from a prescribed
list), with equal power with the chancellor on questions of fact. In
many instances the conviction of a temporal court is made conclusive on
the bishop without further trial. In regard to moral offences,
jurisdiction under this act is exclusive. But it only applies to clerks
holding preferment. Under all these three acts there is a final appeal
to the judicial committee of the privy council.

None of these acts applies to the trial of bishops, who are left to the
old jurisdictions, or whatever may be held to be the old jurisdictions
(with that of the Roman See eliminated). As to suffragan bishops in the
province of Canterbury, see _Read_ v. _Bishop of Lincoln_, 13 P.D. 221,
14 P.D. 88. (On general questions see Phillimore, _Ecc. Law_, 65, 73.)
Despite the bishop of Lincoln's case, the law is in some uncertainty.

Dilapidations are now not made matters of suit before the court, but of
administrative action by the bishop.

The subject matter of ecclesiastical jurisdiction has been gradually
reduced in England, &c., by various causes. (1) The taking away of all
matrimonial, testamentary and _ab intestate_ jurisdiction by 20 & 21
Vict. c. 77 (testamentary, &c., England), c. 79 (testamentary, &c.,
Ireland), c. 85 (matrimonial, England); 33 & 34 Vict. c. 110
(matrimonial, Ireland). Matrimonial jurisdiction was taken from the
bishop of Sodor and Man in 1884. (2) Since 6 & 7 Will. IV. c. 71, tithe
has become, except in a few rare cases, tithe rent charge, and its
recovery has been entirely an operation of secular law. Most kinds of
offerings are now recoverable in secular courts. (3) Administration of
pious gifts has passed to the court of chancery. (4) The enforcement of
contractual promises has long been abandoned by the courts Christian
themselves. (5) Church rates can no longer be enforced by suit (31 & 32
Vict. c. 109). (6) _Defamation_ was taken away in England by 18 & 19
Vict. c. 41, and in Ireland by 23 & 24 Vict. c. 32. (7) Laymen can no
longer be tried in the spiritual courts for offences against clerks. (8)
The jurisdiction for "brawling" in church, &c., is taken away by 23 & 24
Vict. c. 32 in the case of the laity. In the case of persons in holy
orders there is a concurrent jurisdiction of the two tribunals
(_Valancy_ v. _Fletcher_, 1897, 1 Q.B. 265). This was an offence very
frequently prosecuted in the courts Christian (see A.J. Stephens,
_Ecclesiastical Statutes_, i. 336).

The existing ecclesiastical jurisdiction in England is therefore now
confined to the following points. (1) Discipline of the clergy. (2)
Discipline of the laity in respect of sexual offences as already
stated. (3) Control of lay office-bearers, church-wardens, sidesmen,
organists, parish clerks, sextons. (4) Protection of the fabrics of
churches, of churchyards, ornaments, fittings, &c., sanctioning by
licence or faculty any additions or alterations, and preventing or
punishing unauthorized dealings by proceedings on the criminal side of
the courts. (5) Claims by individuals to particular seats in church or
special places of sepulture. (6) Rare cases of personal or special
tithes, offerings or pensions claimed by incumbents of benefices. In the
Isle of Man and the Channel Islands courts Christian have now
jurisdiction substantially as in England. In Jersey and in Guernsey
there are courts of first instance with appeal to the bishop of
Winchester. Ecclesiastical jurisdiction in Ireland was as in England
till the Irish Church was disestablished in 1869 by 32 & 33 Vict. c. 42.

  Ecclesiastical jurisdiction in non-established churches.

The position of a disestablished or an unestablished Church is
comparatively modern, and has given rise to new jural conceptions. These
Churches are _collegia licita_ and come within the liberty of
association so freely conceded in modern times. The relations of their
bishops, priests or other ministers and lay office-bearers _inter se_
and to their lay folk depend upon contract; and these contracts will be
enforced by the ordinary courts of law. A consensual ecclesiastical
jurisdiction is thus created, which has to this extent temporal
sanction. _In foro conscientiae_ spiritual censures canonically imposed
are as binding and ecclesiastical jurisdiction is as powerful as ever.

Into the British-settled colonies no bishops were sent till 1787; and
consequently there were no regular courts Christian. The bishop of
London was treated as the diocesan bishop of the colonists in North
America; and in order to provide for testamentary and matrimonial
jurisdiction it was usual in the letters patent appointing the governor
of a colony to name him ordinary. In New York state there is still a
court called the surrogates court, surrogate being the regular name for
a deputy ecclesiastical judge. In Lower Canada, by treaty, the Roman
Catholic Church remained established.

Throughout the United States, whatever may have been the position in
some of them before their independence, the Church has now no position
recognized by the State, but is just a body of believers whose relations
are governed by contract and with whom ecclesiastical jurisdiction is
consensual.

The position is the same now through all the British colonies (except,
as already mentioned, Lower Canada or Quebec). From 1787 onwards,
colonial bishops and metropolitans were appointed by letters patent
which purported to give them jurisdiction for disciplinary purposes. But
a series of cases, of which the most remarkable was that _Re the Bishop
of Natal_ (3 Moore P.C. N.S. A.D. 1864), decided that in colonies
possessing self-governing legislatures such letters patent were of no
value; and soon after the crown ceased to issue them, even for crown
colonies.

In India the metropolitan of Calcutta and the bishops of Madras and
Bombay have some very limited jurisdiction which is conferred by letters
patent under the authority of the statutes 53 Geo. III. c. 155 and 3 & 4
Will. IV. c. 85. But the other Indian bishops have no position
recognized by the State and no jurisdiction, except consensual.

  Ecclesiastical jurisdiction in Scotland.

The Church had the same jurisdiction in Scotland, and exercised it
through similar courts to those which she had in England and France,
till about 1570. As late as 1566 Archbishop Hamilton of Glasgow, upon
his appointment, had restitution of his jurisdiction in the probate of
testaments and other matters (Keith, _History of the Scottish Bishops_,
Edinburgh, 1824, p. 38). There was an interval of uncertainty, with at
any rate titular bishops, till 1592. Then parliament enacted a new
system of Church courts which, though to some extent in its turn
superseded by the revival of episcopacy under James VI., was revived or
ratified by the act of 1690, c. 7, and stands to this day. It is a
Presbyterian system, and the Scottish Episcopal Church is a
disestablished and voluntary body since 1690.

The Presbyterian courts thus created are arranged in ascending order:--

(a) _Kirk Session_ consists of the minister of the parish and the
"ruling elders" (who are elected by the session). It has cognizance of
scandalous offences by laymen and punishes them by deprivation of
religious privileges. It does not judge ministers (Brodie-Innes,
_Comparative Principles of the Laws of England and Scotland_, 1903, p.
144).

(b) The _Presbytery_ has jurisdiction, partly appellate and partly
original, over a number of parishes. There are now eighty-four
presbyteries. These courts consist of every parochial minister or
professor of divinity of any university within the limits, and of an
elder commissioned from every kirk session. A minister is elected to
preside as moderator. These courts judge ministers in first instance for
scandalous conduct. As civil courts they judge in first instance all
questions connected with glebes and the erection and repair of churches
and manses. They regulate matters concerning public worship and
ordinances, and have appellate jurisdiction from the kirk session.

(c) The _Provincial Synod_ consists of a union of three or more
presbyteries with the same members. There are now sixteen. They meet
twice a year to hear appeals from presbyteries. No appeal can go direct
to the General Assembly, _omisso medio_, unless the presbytery have so
expressly directed, or unless there be no meeting of synod after the
decision of the presbytery before the meeting of General Assembly.

(d) The _General Assembly_ is the supreme ecclesiastical court of this
system. It meets annually. The king's "lord high commissioner" attends
the sittings; but does not intervene or take part in the court's
decisions. The court consists of ministers and elders, elected from the
presbyteries in specified proportions, and of commissioners from the
four universities, the city of Edinburgh and the royal burghs. The
Presbyterian Church in India sends one minister and one elder. The whole
Assembly consists of 371 ministers and 333 elders. The jurisdiction is
entirely appellate. The Assembly appoints a commission to exercise some
of its functions during the intervals of its session. To this commission
may be referred the cognizance of particular matters.

Questions of _patronage_ now (by 37 & 38 Vict. c. 82) belong to the
Church courts; but not questions of _lapse_ or _stipend_. Seats, seat
rents, pews, the union and disjunction of parishes and formation of
district parishes are of secular jurisdiction. Questions of tithes (or
"teinds") and ministers' stipends were referred to commissioners by acts
of the Scots parliaments beginning in 1607. The commissioners of teinds
became a species of ecclesiastical court. By Scots act of 1707, c. 9,
their powers were transferred to the judges of the court of session, who
now constitute a "teind court" (Brodie-Innes, op. cit. pp. 138, 139).
Matrimonial matters and those relating to wills and succession (called
in Scotland "consistorial" causes) were in 1563 taken from the old
bishops' courts and given to "commissaries" appointed by the crown with
an appeal to the court of session, which by act 1609, c. 6, was declared
the king's great consistory. They have remained matters of secular
jurisdiction.

The Scots ecclesiastical courts are entitled to the assistance of the
secular courts to carry out their jurisdiction by "due assistance."
Within the limits of their jurisdiction they are supreme. But if a court
go outside its jurisdiction, or refuse to exercise powers conferred on
it by law, the civil court may "reduce" (i.e. set aside) the sentence
and award damages to the party aggrieved.

  Protestant continental European states.

With the Reformation in the 16th century, Church courts properly
speaking disappeared from the non-episcopal religious communities which
were established in Holland, in the Protestant states of Switzerland and
of Germany, and in the then non-episcopal countries of Denmark and
Norway.

Discipline over ministers and other office-bearers was exercised by
administrative methods in the form of trials before consistories or
synods. To this extent ecclesiastical jurisdiction is still exercised in
these countries. Consistories and synods have exercised discipline of a
penitential kind over their lay members; but in later times their
censures have generally ceased to carry temporal consequences.
Ecclesiastical jurisdiction on the civil side for the trial of causes
soon disappeared. Heresy has been treated as a crime to be tried in and
punished by the ordinary courts of the country, as in the cases of
Servetus (q.v.) and Grotius (q.v.).

For the episcopal churches of Sweden and Finland the first constitution
or "Church order" was formed in 1571. It provided for the visitation of
the clergy by the bishop, and for the power of the clergy to exclude
their lay folk from the Holy Communion, subject to appeal to the bishop.
Both minor and major excommunication had been in use, and for a long
time public penance was required. The procedure underwent great
modification in 1686; but public penance was not taken away till 1855,
and then confession to and absolution by the priest in the presence of
witnesses was still required. Civil jurisdiction in causes appears to
have been given up early (Cornelius, _Svenska Kirkaus Historia_, Upsala,
1875, pp. 146, 186, 189, 285).

  Roman Catholic countries.

Over the rest of western continental Europe and in the colonies of
Spain, Portugal and France, ecclesiastical jurisdiction remained
generally in the state which we have already described till near the end
of the 18th century. The council of Trent took away the jurisdiction of
archdeacons in marriage questions. The testamentary jurisdiction
disappeared (as already stated) in France. Disputed cases of contract
were more often tried in the secular courts. Recourse to the secular
prince by way of _appel comme d'abus_, or otherwise, became more
frequent and met with greater encouragement. Kings began to insist upon
trying ecclesiastics for treason or other political crimes in secular
courts. So under the advice of his minister (the marquis of Pombal),
King Joseph of Portugal in 1759-1760 claimed that the pope should give
him permission to try in all cases clerics accused of treason, and was
not content with the limited permission given to try and execute, if
guilty, the Jesuits then accused of conspiring his death (_Life of
Pombal_, by Count da Carnota, 1871, pp. 128, 141). But there was no
sudden change in the position of the courts Christian till the French
Revolution.

In France a law of the Revolution (September 1790) purported to suppress
all ecclesiastical jurisdictions. On the re-establishing of the Catholic
religion on the basis of the new Concordat, promulgated 18 Germinal,
year X. (April 8, 1802), no express provision was made for
ecclesiastical jurisdictions; but several bishops did create new
ecclesiastical tribunals, "officialities" (Migne, _Dict. de droit
canon._, s.v.). The government in some cases recognized these tribunals
as capable of judging ecclesiastical causes (Migne, _ubi sup._). In 1810
the diocesan official of Paris entertained the cause between Napoleon
and Josephine, and pronounced a decree of nullity (Migne, _ubi sup._
s.v. "Causes"). Such litigation as still continued before the spiritual
forum was, however, confined (save in the case of the matrimonial
questions of princes) to the professional conduct of the clergy.

Such neighbouring countries as were conquered by France or
revolutionized after her pattern took the same course of suppressing
their ecclesiastical jurisdictions. After 1814, some of these
jurisdictions were revived. But the matter is now determined for all
countries which have adopted codes, whether after the pattern of the
Code Napoléon or otherwise. These countries have created a hierarchy of
temporal courts competent to deal with every matter of which law takes
cognizance, and a penal code which embraces and deals with all crimes or
delicts which the state recognizes as offences. Hence, even in countries
where the Roman Church is established, such as Belgium, Italy, the
Catholic states of Germany and cantons of Switzerland, most of the Latin
republics of America, and the province of Quebec, and _a fortiori_ where
this Church is not established, there is now no discipline over the
laity, except penitential, and no jurisdiction exercised in civil suits,
except possibly the matrimonial questions of princes (of which there was
an example in the case of the reigning prince of Monaco). In Spain
causes of nullity and divorce _a thoro_, in Portugal causes of nullity
between Catholics, are still for the court Christian. In Peru, the old
ecclesiastical matrimonial jurisdiction substantially remains (Lehr, _Le
Mariage dans les principaux pays_, 1899, arts. 362, 797, 772, 781).
Otherwise these three countries are Code countries. In Austria, the
ancient ecclesiastical jurisdiction was taken away by various acts of
legislation from 1781 to 1856; even voluntary jurisdiction as to
dispensations. The Concordat of 1856 and consequent legislation restored
matrimonial jurisdiction to the courts Christian over marriages between
Roman Catholics. In 1868 this was taken away. The Austrian bishops,
however, maintain their tribunals for spiritual purposes, and insist
that such things as divorce _a vinculo_ must be granted by their
authority (Aichner, _Compendium juris ecclesiastici_, pp. 551-553).

By consent and submission of her members, the Roman Church decides _in
foro conscientiae_ questions of marriage, betrothal and legitimacy
everywhere; but no temporal consequences follow except in Spain,
Portugal and Peru.

The position in France was the same as that in Belgium, Italy, &c., till
1906, when the Church ceased to be established. The only Latin countries
in which conflict has not arisen appear to be the principality of
Andorra and the republic of San Marino (Giron y Areas, _Situación
jurídica de la Iglesia Católica_, Madrid, 1905, p. 173 et seq.).

Even as to the discipline of the Roman clergy it is only in certain
limited cases that one can speak of ecclesiastical jurisdiction. Bishops
and beneficed incumbents (_curés_) must be regularly tried; and where
the Church is established the canonical courts are recognized. But the
majority of parishes are served by mere _desservants_ or _vicaires_, who
have no rights and can be recalled and dismissed by mere administrative
order without trial (Migne, _ubi sup._ s.v. "Inamovibilité,"
"Desservants").

The Napoleonic legislation re-established the _appel comme d'abus_
("_Articles organiques_," art. 6). The recourse was now to the council
of state (see Migne, _ubi supra_, "Officialité"). But the revocation of
a _desservant_, and the forbidding him the execution of his ministry in
the diocese, was not a case in which the council of state would
interfere (Migne, _ubi sup._ "Appel comme d'abus," "Conseil d'état").

  Jurisdiction in Anglican communion.

In those provinces of the Anglican communion where the Church is not
established by the state, the tendency is not to attempt any external
discipline over the laity; but on the other hand to exercise consensual
jurisdiction over the clergy and office-bearers through courts nearly
modelled on the old canonical patterns.

  Modern jurisdiction of Church of Rome.

In the Roman communion, on the other hand, both where the Church is
established and where it is not, the tendency is to reduce the status of
_curé_ to that of _desservant_, and to deal with all members of the
priestly or lower orders by administrative methods. This practice
obtains in all missionary countries, e.g. Ireland and also in Belgium
(S.B. Smith, _Elements of Ecclesiastical Law_, New York, i. 197 et seq.;
p. 403 et seq.; Tauber, _Manuale juris canonici_, Sabariae, 1904, p.
277). In the United States, the 3rd plenary council of Baltimore in 1884
provided that one rector out of ten should be irremovable (Smith, op.
cit. i. 197, 419). In England there are few Roman "benefices" (E.
Taunton, _Law of the Church_, London, 1906, s.v. "Benefice"). A
_desservant_ has an informal appeal, by way of recourse, to the
metropolitan and ultimately to the pope (Smith, op. cit. p. 201). The
bishop's "official" is now universally called his vicar-general (except
in France, where sometimes an _official_ is appointed _eo nomine_), and
generally exercises both voluntary and contentious jurisdiction (op.
cit. i. 377). As of old, he must be at least tonsured and without a wife
living. At the Vatican Council, a desire was expressed that he should be
a priest (ib.). He should be a doctor in theology or a licentiate in
canon law (ib. p. 378). Whether a bishop is bound to appoint a
vicar-general is still disputed (ib. p. 380; cf. _supra_; _contra_,
Bouix, _Inst. Juris Canon. De Judic._ i. 405). In 1831 the pope enacted
that in all the dioceses of the then Pontifical States, the court of
first instance for the criminal causes of ecclesiastics should consist
of the ordinary and four other judges. In the diocese of Rome, the
court of the cardinal vicar-general consists of such vicar-general and
four other prelates (Smith, _ubi supra_). In the Roman communion in
England and the United States, there are commissions of investigation
appointed to hear in first instance the criminal causes of clerks. They
consist of five, or at least three, priests nominated by the bishop in
and with the advice of the diocesan synod. In the United States, since
1884, the bishop presides on these commissions. They report their
opinions to the bishop, who passes final sentence (ib. ii. 129-131).

"Exemptions" now include all the regular religious orders, i.e. those
orders which have solemn vows. Over the members of these orders their
superiors have jurisdiction and not the bishop. Otherwise if they live
out of their monastery, or even within that enclosure so notoriously
offend as to cause scandal. In the first case, they may be punished by
the ordinary of the place, acting as delegate of the pope without
special appointment (_Conc. Trid. Sess._ vi. c. 3). In the second case,
the bishop may require the superior to punish within a certain time and
to certify the punishment to him; in default he himself may punish
(_Conc. Trid. Sess._ xxv. c. 14, cf. Smith, op. cit. i. 204-206). So,
regulars having cure of souls are subject to the jurisdiction of the
bishop in matters pertaining thereto (ib. p. 206). The exemption of
regular religious orders may be extended to religious societies without
solemn vows by special concession of the pope, as in the case of the
Passionists and Redemptorists (ib. p. 205; Sanguineti, _Juris ecc.
inst._, Rome, 1800, pp. 393, 394).

Appeal lies, in nearly all cases, to the metropolitan (Smith, op. cit.
pp. 219-223). Metropolitans usually now have a metropolitan tribunal
distinct from their diocesan court (ib. ii. 141), but constructed on the
same lines, with the metropolitan as judge and his vicar-general as
vice-judge. In some "missionary" dioceses, the metropolitan, _qua_
metropolitan, has a separate commission of investigation, to try the
criminal causes of clerks, sentence being passed by himself or his
vicar-general (ib. p. 142).

The next step in the hierarchy, that of "primates" (_supra_), has "in
the present state of the Church" ceased to exist for our purpose
(Sanguineti, op. cit. p. 334), as a result of Tridentine legislation.
The only appellate jurisdiction from the metropolitans is the Roman See.
To it also lies a direct appeal from the court of first instance,
_omisso medio_ (Smith, op. cit. i. 224). The pope's immediate and
original jurisdiction in every diocese is now expressly affirmed by the
Vatican Council (ib. p. 239). That original jurisdiction he reserves
exclusively to himself in _causis majoribus_ (ib. pp. 249-250). These
are (1) causes relating to elections, translations and deprivations of,
and criminal prosecutions against, bishops, and (2) the matrimonial
cases of princes (Taunton, op. cit. s.v. "Cause").

  Eastern Church.

In the Eastern Church, the early system of ecclesiastical judicature
long continued. But a sacred character was ascribed to the emperors.
They are "anointed lords like the bishops" (Balsamon, in _Conc. Ancyr.
Can._ xii., representing the view of the 12th and 13th centuries).
Bishops were often deposed by administrative order of the emperor;
synods being expected afterwards to confirm, or rather accept, such
order. The germ of this dealing with a _major causa_ may be found in the
practice of the Arian emperors in the 4th century. The cause of Ignatius
and Photius was dealt with in the 9th century by various synods; those
in the East agreeing with the emperor's view for the time being, while
those in the West acted with the pope. (The details are in Mansi, _Conc.
in locis_, and in Hefele, _Conc. in locis_, more briefly. They are
summarized in Landon, _Manual of Councils_, s.v. "Constantinople,"
"Rome," and in E.S. Foulkes, _Manual of Ecclesiastical History_, s.v.
"Century IX.") Since these transactions patriarchs have been deposed by
the Byzantine emperors; and the Turkish sultans since the 15th century
have assumed to exercise the same prerogative.

The spiritual courts in the East have permanently acquired jurisdiction
in the matrimonial causes of baptized persons; the Mahommedan
governments allowing to Christians a personal law of their own. The
patriarch of Constantinople is enabled to exercise an extensive
criminal jurisdiction over Christians (Neale, _Hist. of the Eastern
Church_, i. 30, 31).

The empire of Russia has in the matter of ecclesiastical jurisdiction
partly developed into other forms, partly systematized 4th century and
later Byzantine rules. The provincial system does not exist; or it may
be said that all Russia is one province. An exception should be made in
the case of Georgia, which is governed by an "exarch," with three
suffragans under him. In the remainder of the empire the titles of
metropolitan, save in the case of the metropolitan of all Russia, and of
archbishop, were and are purely honorary, and their holders have merely
a diocesan jurisdiction (see Mouravieff, _History of the Russian
Church_, translated Blackmore, 1842, translator's notes at pp. 370, 390,
416 et seq.). So in Egypt the bishop or "pope" (afterwards patriarch) of
Alexandria was the only true metropolitan (Neale, _History of the
Eastern Church_, Gen. Introd. vol. i. p. 111). The metropolitan of
Russia from the time of the conversion (A.D. 988) settled at Kiev, and
his province was part of the patriarchate of Constantinople, and appeals
lay to Constantinople. Many such appeals were taken, notably in the case
of Leon, bishop of Rostov (Mouravieff, op. cit. p. 38). The
metropolitical see was for a short time transferred to Vladimir and then
finally to Moscow (Mouravieff, chs. iv., v.). After the taking of
Constantinople in 1452, the Russian metropolitans were always chosen and
consecrated in Russia, appeals ceased, and Moscow became _de facto_
autocephalous (Joyce, ubi sup. p. 379; Mouravieff, op. cit. p. 126). The
tsar Theodore in 1587 exercised the power of the Byzantine emperors by
deposing the metropolitan, Dionysius Grammaticus (Mouravieff, p. 125).
In 1587 the see of Moscow was raised to patriarchal rank with the
consent of Constantinople, and the subsequent concurrence of Alexandria,
Antioch and Jerusalem (ib. c. vi.). Moscow became the final court, in
theory, as it had long been in practice. Certain religious houses,
however, had their own final tribunals and were "peculiars," exempt from
any diocesan or patriarchal jurisdiction for at least all causes
relating to Church property (ib. p. 131).

The subject matter of ecclesiastical jurisdiction in Russia during the
whole patriarchal period included matrimonial and testamentary causes,
inheritance and sacrilege, and many questions concerning the Church
domains and Church property, as well as spiritual offences of clergy and
laity (ib.). The bishops had consistorial courts; the patriarchs,
chanceries and consistories (ib.). Bishops were judged in synod (see,
e.g. the case of the archbishop of Polotsk in 1622, ib. p. 179) and only
lawfully judged in synod (ib. p. 215).

Clerks and the dependants of the metropolitan (afterwards the patriarch)
appear to have been immune from secular jurisdiction, except in the case
of crimes against life, from the time of Ivan the Terrible (ib. pp.
180-181). The tsar Michael, in the earlier 17th century, confirmed these
immunities in the case of the clergy of the patriarch's own diocese, but
provided that in country places belonging to his diocese, monasteries,
churches and lands should be judged in secular matters by the Court of
the Great Palace, theoretically held before the tsar himself (ib. p.
181). This tsar limited the "peculiar" monasteries to three, and gave
the patriarch jurisdiction over them (ib.). The next tsar, Alexis,
however, by his code instituted a "Monastery Court," which was a secular
tribunal composed of laymen, to judge in civil suits against spiritual
persons, and in matters arising out of their manors and properties (ib.
p. 193). This court was not in operation during the time when the
patriarch Nikon was also in effect first minister; but upon his decline
exercised its full jurisdiction (ib. p. 216). Nikon was himself tried
for abdicating his see, causing disorder in the realm, oppression and
violence, first before a synod of Moscow composed of his suffragans and
some Greek bishops, and afterwards before another synod in which sat the
patriarchs of Alexandria and Antioch, the metropolitans of Servia and
Georgia, the archbishops of Sinai and Wallachia, and the metropolitans
of Nice, Amasis, Iconium, Trebizond, Varna and Scio, besides the Russian
bishops. This synod in 1667 deposed Nikon, degraded him from holy
orders, and sentenced him to perpetual penance in a monastery (ib. pp.
220-232). The next tsar, Theodore, suppressed the secular "monastery
court," and directed that all suits against spiritual persons should
proceed only in the patriarchal "court of requests" (ib. p. 264). There
was, however, a species of _appel comme d'abus_. Causes could be evoked
to the tsar himself, "when any partiality of the judges in any affair in
which they themselves were interested was discovered" (ib.).

The old system was swept away by Peter the Great, who settled
ecclesiastical jurisdiction substantially on its present basis. The
patriarchate was abolished and its jurisdiction transferred by a council
at St Petersburg in 1721 to a Holy Governing Synod. The change was
approved by the four patriarchs of the East in 1723 (ib. chs.
xv.-xvii.). Peter permanently transferred to the secular _forum_ the
testamentary jurisdiction and that concerning inheritance, as also
questions of "sacrilege" (ib. p. 264). As the result of a long series of
legislation, beginning with him and ending with Catherine II., all
church property of every kind was transferred to secular administration,
allowances, according to fixed scales, being made for ministers, monks
and fabrics (op. cit. translator's appendix i. p. 413 et seq.). There
remain to the spiritual courts in Russia the purely ecclesiastical
discipline of clerks and laity and matrimonial causes.

The court of first instance is the "consistorial court" of the bishop.
This consists of a small body of ecclesiastics. Its decisions must be
confirmed by the bishop (op. cit. translator's appendix ii. pp.
422-423). In the more important causes, as divorce (i.e. _a vinculo_),
it only gives a provisional decision, which is reported by the bishop,
with his own opinion, for final judgment, to the Most Holy Governing
Synod.

The governing synod is the final court of appeal. It consists of a small
number of bishops and priests nominated by the tsar, and is assisted by
a "procurator," who is a layman, who explains to it the limits of its
jurisdiction and serves as the medium of communication between it and
the autocrat and secular authorities. It deals with the secular crimes
of spiritual persons, if of importance and if not capital (these last
being reserved for the secular forum), and with heresy and schism. It is
the only court which can try bishops or decree divorce. The tsar
formally confirms its judgments; but sometimes reduces penalties in the
exercise of the prerogative of mercy (see Mouravieff, op. cit. ch. xvii.
translator's app. ii.).

The governing synod now sits at St Petersburg, but appoints delegated
commissions, with a portion of its jurisdiction, in Moscow and Georgia.
The latter commission is presided over by the "exarch" (_supra_).

Since the War of Independence, the kingdom of Greece has been
ecclesiastically organized after the model of Russia, as one
autocephalous "province," separated from its old patriarchate of
Constantinople, with an honorary metropolitan and honorary archbishops
(Neale, op. cit. Gen. Introd. vol. i.). The Holy Synod possesses the
metropolitical jurisdiction. It sits at Athens. The metropolitan of
Athens is president, and there are four other members appointed by the
government in annual rotation from the senior bishops. There is attached
to it a government commissioner, with no vote, but affixing his
signature to the synodical judgments (Joyce, op. cit. p. 35).

The subject matter of the jurisdiction of Hellenic courts Christian
seems to be confined to strictly spiritual discipline, mainly in regard
to the professional misconduct of the clergy. Imprisonment may be
inflicted in these last cases (ib.). All matrimonial causes are heard by
the secular tribunals (Lehr, op. cit. sec. 587).

The bishop's consistorial court, consisting of himself and four priests,
has a limited jurisdiction in first instance. Such a court can only
suspend for seven days unless with the sanction of the Holy Synod
(Joyce, op. cit.).

The Holy Synod can only inflict temporary suspension, or imprisonment
for fifteen days, unless with the sanction of the King's ministry.
Deprivation, or imprisonment for more than two months, requires the
approval of the king (ib.). The king or the ministry do not, however,
rehear the cause by way of appeal, but merely restrain severity of
sentence (ib.).

The Church of Cyprus has been autocephalous since at any rate the
oecumenical synod of Ephesus in 431. The episcopate now consists of an
archbishop and three suffragans (Hackett, _Orthodox Church in Cyprus_,
1901, ch. v. _et passim_). The final court is the island synod, which
consists of the archbishop, his suffragans and four dignified priests.
It has original and exclusive cognizance of causes of deposition of
bishops (op. cit. pp. 260, 262).

Each bishop is assisted by at least two officers with judicial or
quasi-judicial powers, the "archimandrite" who adjudicates upon causes
of revenue and the archdeacon who adjudicates on questions between
deacons (op. cit. pp. 272-273). The "exarch" of the archbishop, who is a
dignitary but not a bishop, has a seat in the provincial synod.

In the Balkan States, the system--inherited from Byzantine and Turkish
times--of ecclesiastical jurisdictions prevails, except that they are
now autocephalous, and independent of the patriarch of Constantinople.
Matrimonial causes in Servia are of ecclesiastical cognizance (Lehr, op.
cit. sect. 901).

  AUTHORITIES.--St Augustine, _Epistles_; _Codex Theodosianus_, edited
  by Th. Mommsen and P.M. Meyer (1905); _Code and Novells of Emperor
  Justinian_, ed. J. Gothofredus (1665); T. Balsamon, "In Conc. Ancyr."
  in the _Corpus juris canonici_ (1879-1881); "_Hostiensis_" _Super
  Decretum_; W. Lyndwood, _Provinciale_ (Oxford, 1679); Sir A.
  Fitzherbert, _Natura brevium_ (1534); Sir T. Ridley, _View of the
  Civile and Ecclesiastical Law_ (1607); J. Ayliffe, _Parergon juris
  ecclesiastici_ (1726); J. Godolphin, _Abridgement of the Laws
  Ecclesiastical_ (London, 1687); E. Gibson, _Codex juris ecclesiastici_
  (Oxford, 1761); D. Covarruvias, _Opera omnia_ (Antwerp, 1638); Jean
  Hardouin, _Concilia_ (1715); J.D. Mansi, _Concilia_ (1759-1798); E.
  Stillingfleet, _Ecclesiastical Jurisdiction_ (1704); L.S. le Nain de
  Tillemont, _Mémoires pour servir à l'histoire ecclésiastique_
  (1701-1712); P.T. Durand de Maillane, _Dictionnaire du droit
  canonique_ (1761); _Dictionnaire ecclésiastique et canonique_, par une
  société de religieux (Paris, 1765); Z.B. van Espen, _Jus
  ecclesiasticum universum_ (Louvain, 1720), _De recursu ad Principem,
  observationes in Concilium Lateranense iv._; L. Thomassin, _Vetus et
  nova disciplina ecc._ (1705-1706); W. Beveridge, _Synodicon_ (Oxford,
  1672); J.A.S. da Carnota, _Life of Pombal_ (1843); J.P. Migne,
  _Dictionnaire de droit canon._ (Paris, 1844); R. Keith, _History of
  the Scottish Bishops_ (Edinburgh, 1824); P.N. Vives y Cebriá, _Usages
  y demas derechos de Cataluña_ (1832); C.A. Cornelius, _Svenska Kyrkaus
  Historia_ (Upsala, 1875); Mouravieff, _History of the Russian Church_
  (trans. Blackmore, 1842); Ffoulkes, _Manual of Ecclesiastical History_
  (1851); E.H. Landon, _Manual of Councils of the Church_ (1893); W.H.
  Hale, _Precedents in Criminal Cases_ (London, 1847); E.B. Pusey,
  _Councils of the Church_ (Oxford, 1857); C.J. von Hefele,
  _Conciliengeschichte_ (Freiburg, 1855-1890); M. Gaudry, _Traité de la
  législation des cultes_ (Paris, 1854); W. Stubbs, _Select Charters_
  (Oxford, 1895); A.W. Haddan and W. Stubbs, _Councils and
  Ecclesiastical Documents_ (Oxford, 1869); A.J. Stephens,
  _Ecclesiastical Statutes_ (1845); H.C. Rothery, _Return of Cases
  before Delegates_ (1864); J.W. Joyce, _The Sword and the Keys_ (2nd
  ed., 1881); _Report of Ecclesiastical Courts Commission_ (1888); P.
  Fournier, _Les Officialités au moyen âge_ (1880); S.B. Smith,
  _Elements of Ecclesiastical Law_ (New York, 1889-1890); S. Sanguineti,
  _Juris ecc. inst._ (Rome, 1890); J.F. Stephen, _History of the
  Criminal Law of England_ (London, 1883); Pollock and Maitland,
  _History of English Law before Edward I._ (1898); F.W. Maitland,
  _Roman Canon Law in the Church of England_ (1898); R. Owen, _Canon
  Law_ (1884); Sir R.J. Phillimore, _Ecclesiastical Law_ (2nd ed.,
  1895); J.W. Brodie-Innes, _Comparative Principles of the Laws of
  England and Scotland_ (1903); R.B. Merriman, _Life and Letters of
  Thomas Cromwell_ (1902); S. Aichner, _Compendium juris ecclesiast._
  (8th ed., Brixen, 1905, especially in regard to Austro-Hungarian
  Empire); J. Hackett, _History of the Orthodox Church in Cyprus_
  (1901); Tauber, _Manuale juris canonici_ (1906); E.L. Taunton, _Law of
  the Church_ (London, 1906); _Report of Royal Commission on
  Ecclesiastical Discipline_ (1906).     (W. G. F. P.)

ECCLESIASTICAL LAW, in its broadest sense, the sum of the authoritative
rules governing the Christian Church, whether in its internal polity or
in its relations with the secular power. Since there are various
churches, widely differing alike in their principles and practice, it
follows that a like difference exists in their ecclesiastical law, which
is the outcome of their corporate consciousness as modified by their
several relations to the secular authority. At the outset a distinction
must be made between churches which are "established" and those that are
"free." The ecclesiastical laws of the latter are, like the rules of a
private society or club, the concern of the members of the church only,
and come under the purview of the state only in so far as they come in
conflict with the secular law (e.g. polygamy among the Mormons, or
violation of the trust-deeds under which the property of a church is
held). In the case of "established" Churches, on the other hand,
whatever the varying principle on which the system is based, or the
difference in its practical application, the essential conditions are
that the ecclesiastical law is also the law of the land, the decisions
of the church courts being enforced by the civil power. This holds good
both of the Roman Catholic Church, wherever this is recognized as the
"state religion," of the Oriental Churches, whether closely identified
with the state itself (as in Russia), or endowed with powers over
particular nationalities within the state (as in the Ottoman empire),
and of the various Protestant Churches established in Great Britain and
on the continent of Europe.

Writers on the theory of ecclesiastical law, moreover, draw a fundamental
distinction between that of the Church of Rome and that of the Protestant
national or territorial Churches. This distinction is due to the claim of
the Roman Catholic Church to be the _only_ Church, her laws being thus of
universal obligation; whereas the laws of the various established
Protestant Churches are valid--at least so far as legal obligation is
concerned--only within the limits of the countries in which they are
established. The practical effects of this distinction have been, and
still are, of enormous importance. The Roman Catholic Church, even when
recognized as the state religion, is nowhere "established" in the sense
of being identified with the state, but is rather an _imperium in
imperio_ which negotiates on equal terms with the state, the results
being embodied in concordats (q.v.) between the state and the pope as
head of the Church. The concordats are of the nature of truces in the
perennial conflict between the spiritual and secular powers, and imply in
principle no surrender of the claims of the one to those of the other.
Where the Roman Catholic Church is not recognized as a state religion, as
in the United States or in the British Islands, she is in the position of
a "free Church," her jurisdiction is only _in foro conscientiae_, and her
ecclesiastical laws have no validity from the point of view of the state.
On the other hand, the root principle of the ecclesiastical law of the
established Protestant Churches is the rejection of alien jurisdiction
and the assertion of the supremacy of the state. The theory underlying
this may vary. The sovereign may be regarded, as in the case of the
Russian emperor or of the English kings from the Reformation to the
Revolution, as the vicar of God in all causes spiritual as well as
temporal within his realm. As the first fervent belief in the divine
right of kings faded, however, a new basis had to be discovered for a
relation between the spiritual and temporal powers against which Rome had
never ceased to protest. This was found in the so-called "collegial"
theory of Church government (_Kollegialsystem_), which assumed a sort of
tacit concordat between the state and the religious community, by which
the latter vests in the former the right to exercise a certain part of
the _jus in sacra_ properly inherent in the Church (see PUFENDORF,
SAMUEL). This had great and lasting effects on the development of the
theory of Protestant ecclesiastical law on the continent of Europe. In
England, on the other hand, owing to the peculiar character of the
Reformation there and of the Church that was its outcome, no theory of
the ecclesiastical law is conceivable that would be satisfactory at once
to lawyers and to all schools of opinion within the Church. This has been
abundantly proved by the attitude of increasing opposition assumed by the
clergy, under the influence of the Tractarian movement, towards the civil
power in matters ecclesiastical, an attitude impossible to justify on any
accepted theory of the Establishment (see below).

Protestant ecclesiastical law, then, is distinguished from that of the
Roman Catholic Church (1) by being more limited in its scope, (2) by
having for its authoritative source, not the Church only or even mainly,
but the Church in more or less complete union with or subordination to
the State, the latter being considered, equally with the Church, as an
organ of the will of God. The ecclesiastical law of the Church of Rome,
on the other hand, whatever its origin, is now valid only in so far as
it has the sanction of the authority of the Holy See. And here it must
be noted that the "canon law" is not identical with the "ecclesiastical
law" of the Roman Catholic Church. By the canon law is meant,
substantially, the contents of the _Corpus juris canonici_, which have
been largely superseded or added to by, e.g. the canons of the council
of Trent and the Vatican decrees. The long projected codification of the
whole of the ecclesiastical law of the Church of Rome, a work of
gigantic labour, was not taken in hand until the pontificate of Pius X.
(See also CANON LAW and ECCLESIASTICAL JURISDICTION.)

The ecclesiastical law of England is in complete dependence upon the
authority of the state. The Church of England cannot be said, from a
legal point of view, to have a corporate existence or even a
representative assembly. The Convocation of York and the Convocation of
Canterbury are provincial assemblies possessing no legislative or
judicial authority; even such purely ecclesiastical questions as may be
formally commended to their attention by "letters of business" from the
crown can only be finally settled by act of parliament. The
ecclesiastical courts are for the most part officered by laymen, whose
subordination to the archbishops and bishops is purely formal, and the
final court of appeal is the Judicial Committee of the Privy Council. In
like manner changes in the ecclesiastical law are made directly by
parliament in the ordinary course of legislation, and in point of fact a
very large portion of the existing ecclesiastical law consists of acts
of parliament.

The sources of the ecclesiastical law of England are thus described by
Dr. Richard Burn (_The Ecclesiastical Law_, 9th ed., 1842):--"The
ecclesiastical law of England is compounded of these four main
ingredients--the civil law, the canon law, the common law, and the
statute law. And from these, digested in their proper rank and
subordination, to draw out one uniform law of the church is the purport
of this book. When these laws do interfere and cross each other, the
order of preference is this:--'The civil law submitteth to the canon
law; both of these to the common law; and all three to the statute law.
So that from any one or more of these, without all of them together, or
from all of them together without attending to their comparative
obligation, it is not possible to exhibit any distinct prospect of the
English ecclesiastical constitution.' Under the head of statute law Burn
includes 'the Thirty-nine Articles of Religion, agreed upon in
Convocation in the year 1562; and in like manner the Rubric of the Book
of Common Prayer, which, being both of them established by Acts of
Parliament, are to be esteemed as part of the statute law.'"

The first principle of the ecclesiastical law in England is the
assertion of the supremacy of the crown, which in the present state of
the constitution means the same thing as the supremacy of parliament.
This principle has been maintained ever since the Reformation. Before
the Reformation the ecclesiastical supremacy of the pope was recognized,
with certain limitations, in England, and the Church itself had some
pretensions to ecclesiastical freedom. The freedom of the Church is, in
fact, one of the standing provisions of those charters on which the
English constitution was based. The first provision of Magna Carta is
_quod ecclesia Anglicana libera sit_. By the various enactments of the
period of the Reformation the whole constitutional position of the
Church, not merely with reference to the pope but with reference to the
state, was definitely fixed. The legislative power of convocation was
held to extend to the clergy only, and even to that extent required the
sanction and assent of the crown. The common law courts controlled the
jurisdiction of the ecclesiastical courts, claiming to have "the
exposition of such statutes or acts of parliament as concern either the
extent of the jurisdiction of these courts or the matters depending
before them. And therefore if these courts either refuse to allow these
acts of parliament, or expound them in any other sense than is truly and
properly the exposition of them, the king's great courts of common law
may prohibit and control them."

The design of constructing a code of ecclesiastical laws was entertained
during the period of the Reformation, but never carried into effect. It
is alluded to in various statutes of the reign of Henry VIII., who
obtained power to appoint a commission to examine the old ecclesiastical
laws, with a view of deciding which ought to be kept and which ought to
be abolished; and in the meantime it was enacted that "such canons,
institutions, ordinances, synodal or provincial or other ecclesiastical
laws or jurisdictions spiritual as be yet accustomed and used here in
the Church of England, which necessarily and conveniently are requisite
to be put in ure and execution for the time, not being repugnant,
contrarient, or derogatory to the laws or statutes of the realm, nor to
the prerogatives of the royal crown of the same, or any of them, shall
be occupied, exercised, and put in ure for the time with this realm" (35
Henry VIII. c. 16, 25 c. 19, 27 c. 8).

The work was actually undertaken and finished in the reign of Edward VI.
by a sub-committee of eight persons, under the name of the _Reformatio
legum ecclesiasticarum_, which, however, never obtained the royal
assent. Although the powers of the 25 Henry VIII. c. 1 were revived by
the 1 Elizabeth c. 1, the scheme was never executed, and the
ecclesiastical laws remained on the footing assigned to them in that
statute--so much of the old ecclesiastical laws might be used as had
been actually in use, and was not repugnant to the laws of the realm.

The statement is, indeed, made by Sir R. Phillimore (_Ecclesiastical
Law_, 2nd ed., 1895) that the "Church of England has at all times,
before and since the Reformation, claimed the right of an independent
Church in an independent kingdom, to be governed by the laws which she
has deemed it expedient to adopt." This position can only be accepted if
it is confined, as the authorities cited for it are confined, to the
resistance of interference from abroad. If it mean that the Church, as
distinguished from the kingdom, has claimed to be governed by laws of
her own making, all that can be said is that the claim has been
singularly unsuccessful. From the time of the Reformation no change has
been made in the law of the Church which has not been made by the king
and parliament, sometimes indirectly, as by confirming the resolutions
of convocation, but for the most part by statute. The list of statutes
cited in Sir R. Phillimore's _Ecclesiastical Law_ fills eleven pages. It
is only by a kind of legal fiction akin to the "collegial" theory
mentioned above, that the Church can be said to have deemed it expedient
to adopt these laws.

The terms on which the Church Establishment of Ireland was abolished, by
the Irish Council Act of 1869, may be mentioned. By sect. 20 the present
ecclesiastical law was made binding on the members for the time being of
the Church, "as if they had mutually contracted and agreed to abide by
and observe the same"; and by section 21 it was enacted that the
ecclesiastical courts should cease after the 1st of January 1871, and
that the ecclesiastical laws of Ireland, except so far as relates to
matrimonial causes and matters, should cease to exist as law. (See also
ENGLAND, CHURCH OF; ESTABLISHMENT; &c.)

  AUTHORITIES.--The number of works on ecclesiastical law is very great,
  and it must suffice here to mention a few of the more conspicuous
  modern ones: Ferdinand Walter, _Lehrbuch des Kirchenrechts aller
  christlichen Konfessionen_ (14th ed., Bonn, 1871); G. Phillips,
  _Kirchenrecht_, Bde. i.-vii. (Regensburg, 1845-1872) incomplete; the
  text-book by Cardinal Hergenröther (q.v.); P. Hinschius, _Kirchenrecht
  der Katholiken und Protestanten in Deutschland_, 6 Bde. (Berlin, 1869
  sqq.), only the Catholic part, a masterly and detailed survey of the
  ecclesiastical law, finished; Sir Robert Phillimore, _Eccl. Law of the
  Church of England_ (2nd ed., edited by Sir Walter Phillimore, 2 vols.,
  London, 1895). For further references see CANON LAW, and the article
  "Kirchenrecht" in Herzog-Hauck, _Realencyklopädie_ (ed. Leipzig,
  1901).

ECCLESIASTICUS (abbreviated to _Ecclus._), the alternative title given
in the English Bible to the apocryphal book otherwise called "The Wisdom
of Jesus the son of Sirach." The Latin word _ecclesiasticus_ is,
properly speaking, not a name, but an epithet meaning "churchly," so
that it would serve as a designation of any book which was read in
church or received ecclesiastical sanction, but in practice
Ecclesiasticus has become a by-name for the Wisdom of Sirach. The true
name of the book appears in the authorities in a variety of forms, the
variation affecting both the author's name and the description of his
book. The writer's full name is given in 1. 27 (Heb. text) as "Simeon
the son of Jeshua (i.e. Jesus) the son of Eleazar the son of Sira." In
the Greek text this name appears as "Jesus son of Sirach Eleazar"
(probably a corruption of the Hebrew reading), and the epithet "of
Jerusalem" is added, the translator himself being resident in Egypt. The
whole name is shortened sometimes to "Son of Sira," _Ben Sira_ in
Hebrew, _Bar Sira_ in Aramaic, and sometimes (as in the title prefixed
in the Greek cod. B) to _Sirach_. The work is variously described as the
_Words_ (Heb. text), the _Book_ (Talmud), the _Proverbs_ (Jerome), or
the _Wisdom_ of the son of Sira (or Sirach).

Of the date of the book we have only one certain indication. It was
translated by a person who says that he "came into Egypt in the 38th
year of Euergetes the king" (Ptolemy VII.), i.e. in 132 B.C., and that
he executed the work some time later. The translator believed that the
writer of the original was his own grandfather (or ancestor, [Greek:
pappos]). It is therefore reasonable to suppose that the book was
composed not later than the first half of the 2nd century B.C., or (if
we give the looser meaning to [Greek: pappos]) even before the beginning
of the century. Arguments for a pre-Maccabean date may be derived (a)
from the fact that the book contains apparently no reference to the
Maccabean struggles, (b) from the eulogy of the priestly house of Zadok
which fell into disrepute during these wars for independence.

In the Jewish Church Ecclesiasticus hovered on the border of the canon;
in the Christian Church it crossed and recrossed the border. The book
contains much which attracted and also much which repelled Jewish
feeling, and it appears that it was necessary to pronounce against its
canonicity. In the Talmud (Sanhedrin 100 b) Rabbi Joseph says that it is
forbidden to read (i.e. in the synagogue) the book of ben Sira, and
further that "if our masters had not hidden the book (i.e. declared it
uncanonical), we might interpret the good things which are in it"
(Schechter, _J. Q. Review_, iii. 691-692). In the Christian Church it
was largely used by Clement of Alexandria (c. A.D. 200) and by St
Augustine. The lists of the Hebrew canon, however, given by Melito (c.
A.D. 180) and by Origen (c. A.D. 230) rightly exclude Ecclesiasticus,
and Jerome (c. A.D. 390-400) writes: "Let the Church read these two
volumes (Wisdom of Solomon and Ecclesiasticus) for the instruction of
the people, not for establishing the authority of the dogmas of the
Church" (_Praefatio in libros Salomonis_). In the chief MS. of the
Septuagint, cod. B, Ecclesiasticus comes between Wisdom and Esther, no
distinction being drawn between canonical and uncanonical. In the
Vulgate it immediately precedes Isaiah. The council of Trent declared
this book and the rest of the books reckoned in the Thirty-nine Articles
as apocryphal to be canonical.

The text of the book raises intricate problems which are still far from
solution. The original Hebrew (rediscovered in fragments and published
between 1896 and 1900) has come down to us in a mutilated and corrupt
form. The beginning as far as iii. 7 is lost. There is a gap from xvi.
26 to xxx. 11. There are marginal readings which show that two different
recensions existed once in Hebrew. The Greek version exists in two
forms--(a) that preserved in cod. B and in the other uncial MSS., (b)
that preserved in the cursive codex 248 (Holmes and Parsons). The former
has a somewhat briefer text, the latter agrees more closely with the
Hebrew text. The majority of Greek cursives agree generally with the
Latin Vulgate, and offer the fuller text in a corrupt form. The Syriac
(Peshitta) version is paraphrastic, but on the whole it follows the
Hebrew text. Owing to the mutilation of the Hebrew by the accidents of
time the Greek version retains its place as the chief authority for the
text, and references by chapter and verse are usually made to it.

Bickell and D.S. Margoliouth have supposed that the Hebrew text
preserved in the fragments is not original, but a retranslation from the
Greek or the Syriac or both. This view has not commended itself to the
majority of scholars, but there is at least a residuum of truth in it.
The Hebrew text, as we have it, has a history of progressive corruption
behind it, and its readings can often be emended from the Septuagint,
e.g. xxxvii. 11 (read [Hebrew: umira] for the meaningless [Hebrew:
umerer]). The Hebrew marginal readings occasionally seem to be
translations from the Greek or Syriac, e.g. xxxviii. 4 ([Hebrew: bara
shamaym] for [Greek: ektisen pharmaka]). More frequently, however,
strange readings of the Greek and Syriac are to be explained as
corruptions of our present Hebrew. Substantially our Hebrew must be
pronounced original.

The restoration of a satisfactory text is beyond our hopes. Even before
the Christian era the book existed in two recensions, for we cannot
doubt, after reading the Greek translator's preface, that the translator
amplified and paraphrased the text before him. It is probable that at
least one considerable omission must be laid to his charge, for the hymn
preserved in the Hebrew text after ch. li. 12 is almost certainly
original. Ancient translators allowed themselves much liberty in their
work, and Ecclesiasticus possessed no reputation for canonicity in the
2nd century B.C. to serve as a protection for its text. Much, however,
may be done towards improving two of the recensions which now lie before
us. The incomplete Hebrew text exists in four different MSS., and the
study of the peculiarities of these had already proved fruitful. The
Syriac text, made without doubt from the Hebrew, though often
paraphrastic is often suggestive. The Greek translation, made within a
century or half-century of the writing of the book, must possess great
value for the criticism of the Hebrew text. The work of restoring true
Hebrew readings may proceed with more confidence now that we have
considerable portions of the Hebrew text to serve as a model. For the
restoration of the Greek text we have, besides many Greek MSS., uncial
and cursive, the old Latin, the Syro-Hexaplar, the Armenian, Sahidic and
Ethiopic versions, as well as a considerable number of quotations in the
Greek and Latin Fathers. Each of the two recensions of the Greek must,
however, be separately studied, before any restoration of the original
Greek text can be attempted.

The uncertainty of the text has affected both English versions
unfavourably. The Authorized Version, following the corrupt cursives, is
often wrong. The Revised Version, on the other hand, in following the
uncial MSS. sometimes departs from the Hebrew, while the Authorized
Version with the cursives agrees with it. Thus the Revised Version (with
codd. [Hebrew: alef]*, A, B, C) omits the whole of iii. 19, which the
Authorized Version retains, but for the clause, "Mysteries are revealed
unto the meek," the Authorized Version has the support of the Hebrew,
Syriac and cod. 248. Sometimes both versions go astray in places in
which the Hebrew text recommends itself as original by its vigour; e.g.
in vii. 26, where the Hebrew is,

  Hast thou a wife? abominate her not.
  Hast thou a hated wife? trust not in her.

Again in ch. xxxviii. the Hebrew text in at least two interesting
passages shows its superiority over the text which underlies both
English versions.

                _Hebrew._                _Revised Version (similarly
                                             Authorized Version)._

  ver. 1.  Acquaint thyself with a       Honour a physician according
           physician before thou have    to thy need of him with the
           need of him.                  honours due unto him.

  ver. 15. He that sinneth against his   He that sinneth before his
           Maker will behave himself     Maker, let him fall into the
           proudly against a physician.  hands of the physician.

In the second instance, while the Hebrew says that the man who rebels
against his Heavenly Benefactor will _a fortiori_ rebel against a human
benefactor, the Greek text gives a cynical turn to the verse, "Let the
man who rebels against his true benefactor be punished through the
tender mercies of a quack." The Hebrew text is probably superior also in
xliv. 1, the opening words of the eulogy of the Fathers: "Let me now
praise favoured men," i.e. men in whom God's grace was shown. The Hebrew
phrase is "men of grace," as in v. 10. The Greek text of v. 1, "famous
men," seems to be nothing but a loose paraphrase, suggested by v. 2,
"The Lord manifested in them great glory."

In character and contents Ecclesiasticus resembles the book of Proverbs.
It consists mainly of maxims which may be described in turn as moral,
utilitarian and secular. Occasionally the author attacks prevalent
religious opinions, e.g. the denial of free-will (xv. 11-20), or the
assertion of God's indifference towards men's actions (xxxv. 12-19).
Occasionally, again, Ben Sira touches the highest themes, and speaks of
the nature of God: "He is All" (xliii. 27); "He is One from everlasting"
(xlii. 21, Heb. text); "The mercy of the Lord is upon all flesh" (xviii.
13). Though the book is imitative and secondary in character it contains
several passages of force and beauty, e.g. ch. ii. (how to fear the
Lord); xv. 11-20 (on free-will); xxiv. 1-22 (the song of wisdom); xlii.
15-25 (praise of the works of the Lord); xliv. 1-15 (the well-known
praise of famous men). Many detached sayings scattered throughout the
book show a depth of insight, or a practical shrewdness, or again a
power of concise speech, which stamps them on the memory. A few examples
out of many may be cited. "Call no man blessed before his death" (xi.
28); "He that toucheth pitch shall be defiled" (xiii. 1); "He hath not
given any man licence to sin" (xv. 20); "Man cherisheth anger against
man; and doth he seek healing from the Lord?" (xxviii. 3); "Mercy is
seasonable ... as clouds of rain" (xxxv. 20); "All things are double one
against another: and he hath made nothing imperfect" (xlii. 24, the
motto of Butler's _Analogy_); "Work your work before the time cometh,
and in his time he will give you your reward" (li. 30). In spite,
however, of the words just quoted it cannot be said that Ben Sira
preaches a hopeful religion. Though he prays, "Renew thy signs, and
repeat thy wonders ... Fill Sion with thy majesty and thy Temple with
thy glory" (xxxvi. 6, 14 [19], Heb. text), he does not look for a
Messiah. Of the resurrection of the dead or of the immortality of the
soul there is no word, not even in xli. 1-4, where the author exhorts
men not to fear death. Like the Psalmist (Ps. lxxxviii. 10, 11) he asks,
"Who shall give praise to the Most High in the grave?" In his maxims of
life he shows a somewhat frigid and narrow mind. He is a pessimist as
regards women; "From a woman was the beginning of sin; and because of
her we all die" (xxv. 24). He does not believe in home-spun wisdom; "How
shall he become wise that holdeth the plough?" (xxxviii. 25). Artificers
are not expected to pray like the wise man; "In the handywork of their
craft is their prayer" (v. 34). Merchants are expected to cheat; "Sin
will thrust itself in between buying and selling" (xxvii. 2).

  BIBLIOGRAPHY.--The literature of Ecclesiaticus has grown very
  considerably since the discovery of the first Hebrew fragment in 1896.
  A useful summary of it is found at the end of Israel Levi's article,
  "Sirach," in the _Jewish Encyclopedia_. Eberhard Nestle's article in
  Hastings's _Dictionary of the Bible_ is important for its
  bibliographical information as well as in other respects. A complete
  edition of the Hebrew fragments in collotype facsimile was published
  jointly by the Oxford and Cambridge Presses in 1901. J.H.A. Hart's
  edition of cod. 248 throws much light on some of the problems of this
  book. It contains a fresh collation of all the chief authorities
  (Heb., Syr., Syr.-Hex., Lat. and Gr.) for the text, together with a
  complete textual commentary.

  The account given in the _Synopsis_ attributed to Athanasius (Migne,
  _P.G._, iv. 375-384) has an interest of its own. The beginning is
  given in the Authorized Version as "A prologue made by an uncertain
  author."     (W. E. B.)

ECGBERT, or ECGBERHT (d. 839), king of the West Saxons, succeeded to the
throne in 802 on the death of Beorhtric. It is said that at an earlier
period in his life he had been driven out for three years by Offa and
Beorhtric. The accession of Ecgbert seems to have brought about an
invasion by Æthelmund, earl of the Hwicce, who was defeated by Weoxtan,
earl of Wiltshire. In 815 Ecgbert ravaged the whole of the territories
of the West Welsh, which probably at this time did not include much more
than Cornwall. The next important occurrence in the reign was the defeat
of Beornwulf of Mercia at a place called Ellandun in 825. After this
victory Kent, Surrey, Sussex and Essex submitted to Wessex; while the
East Anglians, who slew Beornwulf shortly afterwards, acknowledged
Ecgbert as overlord. In 829 the king conquered Mercia, and Northumbria
accepted him as overlord. In 830 he led a successful expedition against
the Welsh. In 836 he was defeated by the Danes, but in 838 he won a
battle against them and their allies the West Welsh at Hingston Down in
Cornwall. Ecgbert died in 839, after a reign of thirty-seven years, and
was succeeded by his son Æthelwulf. A somewhat difficult question has
arisen as to the parentage of Ecgbert. Under the year 825 the Chronicle
states that in his eastern conquests Ecgbert recovered what had been
the rightful property of his kin. The father of Ecgbert was called
Ealhmund, and we find an Ealhmund, king in Kent, mentioned in a charter
dated 784, who is identified with Ecgbert's father in a late addition to
the Chronicle under the date 784. It is possible, however, that the
Chronicle in 825 refers to some claim through Ine of Wessex from whose
brother Ingeld Ecgbert was descended.

  See _Anglo-Saxon Chronicle_, edited by Earle and Plummer (Oxford,
  1899); W. de G. Birch, _Cartularium Saxonicum_ (London, 1885-1893).
  Also a paper by Sir H.H. Howorth in _Numismatic Chronicle_, third
  series, vol. xx. pp. 66-87 (reprinted separately, London, 1900), where
  attention is called to the peculiar dating of several of Ecgbert's
  charters, and the view is put forward that he remained abroad
  considerably later than the date given by the Chronicle for his
  accession. On the other hand a charter in Birch, _Cart. Sax._,
  purporting to date from 799, contains the curious statement that peace
  was made between Coenwulf and Ecgbert in that year.

ECGBERT, or ECGBERHT (d. 766), archbishop of York, was made bishop of
that see in 734 by Ceolwulf, king of Northumbria, succeeding Wilfrid II.
on the latter's resignation. The pall was sent him in 735 and he became
the first northern archbishop after Paulinus. He was the brother of
Eadberht, who ruled Northumbria 737-758. He was the recipient of the
famous letter of Bede, dealing with the evils arising from spurious
monasteries. Ecgberht himself wrote a _Dialogus Ecclesiasticae
Institutionis_, a _Penitentiale_ and a _Pontificale_. He was a
correspondent of St Boniface, who asks him to support his censure of
Æthelbald of Mercia.

  See Bede, _Continuatio_, sub. ann. 732, 735, 766, and _Epistola ad
  Ecgberctum_ (Plummer, Oxford, 1896); _Chronicle_, sub ann. 734, 735,
  738, 766 (Earle and Plummer, Oxford, 1899); Haddan and Stubbs,
  _Councils and Ecclesiastical Documents_ (Oxford, 1869-1878), iii.
  403-431; _Proceedings of Surtees Society_ (Durham, 1853).

ECGFRITH (d. 685), king of Northumbria, succeeded his father Oswio in
671. He was married to Æthelthryth, daughter of Anna of East Anglia,
who, however, took the veil shortly after Ecgfrith's accession, a step
which possibly led to his long quarrel with Wilfrid archbishop of York.
Ecgfrith married a second wife, Eormenburg, before 678, the year in
which he expelled Wilfrid from his kingdom. Early in his reign he
defeated the Picts who had risen in revolt. Between 671 and 675 Ecgfrith
defeated Wulfhere of Mercia and seized Lindsey. In 679, however, he was
defeated by Æthelred of Mercia, who had married his sister Osthryth, on
the river Trent. Ecgfrith's brother Ælfwine was killed in the battle,
and the province of Lindsey was given up when peace was restored at the
intervention of Theodore of Canterbury. In 684 Ecgfrith sent an
expedition to Ireland under his general Berht, which seems to have been
unsuccessful. In 685, against the advice of Cuthbert, he led a force
against the Picts under his cousin Burde, son of Bile, was lured by a
feigned flight into their mountain fastnesses, and slain at
Nechtanesmere (now Dunnichen) in Forfarshire. Bede dates the beginning
of the decline of Northumbria from his death. He was succeeded by his
brother Aldfrith.

  See Eddius, _Vita Wilfridi_ (Raine, _Historians of Church of York_,
  Rolls, Series, London, 1879-1894), 19, 20, 24, 34, 39, 44; Bede,
  _Hist. Eccl._ (Plummer, Oxford, 1896), iii. 24, iv. 5, 12, 13, 18, 19,
  21, 26.

ECGONINE, in chemistry, C9H15NO3, a cycloheptane derivative with a
nitrogen bridge. It is obtained by hydrolysing cocaine with acids or
alkalis, and crystallizes with one molecule of water, the crystals
melting at 198° to 199° C. It is laevo-rotatory, and on warming with
alkalis gives iso-ecgonine, which is dextro-rotatory. It is a tertiary
base, and has also the properties of an acid and an alcohol. When boiled
with caustic baryta it gives methylamine. It is the carboxylic acid
corresponding to tropine, for it yields the same products on oxidation,
and by treatment with phosphorus pentachloride is converted into
anhydroecgonine, C9H13NO2, which, when heated to 280° C. with
hydrochloric acid, splits out carbon dioxide and yields tropidine,
C8H13N. Anhydroecgonine melts at 235° C., and has an acid and a basic
character. It is an unsaturated compound, and on oxidation with
potassium permanganate gives succinic acid. It is apparently a tropidine
monocarboxylic acid, for on exhaustive methylation it yields
cycloheptatriene-1·3·5-carboxylic acid-7. Sodium in amyl alcohol
solution reduces it to hydroecgonidine C9H15NO2, while moderate
oxidation by potassium permanganate converts it into _norecgonine_. The
presence of the heptamethylene ring in these compounds is shown by the
production of suberone by the exhaustive methylation, &c., of
hydroecgonidine ethyl ester (see POLYMETHYLENES and TROPINE). The above
compounds may be represented as:

  CH2--CH----CH COOH   CH2--CH----CH COOH   CH2--CH------CH COOH
  |    |     |         |    |     |         |    |       |
  |    N CH3 CH OH     |    N CH3 CH        |    N CH3 CH2
  |    |     |         |    |     ||        |    |       |
  CH2--CH----CH2       CH2--CH----CH        CH2--CH------CH2