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An ecclesiastical court (also called "Court Christian") is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the middle ages in many areas of Europe these courts had much wider powers than before the development of nation states as they were experts in interpreting Canon law the basis of which was the Corpus Juris Civilis of Justinian which is considered the source of the civil law legal tradition.
Roman Catholic Church
Roman Catholic courts are governed by the Code of Canon Law in the case of the Western Church (Latin or Roman Rite), and the Code of Canons of the Oriental Churches in the case of the Eastern Church (Byzantine, Ukrainian, Maronite, Melkite, etc., Rites). Both systems of canon law recently underwent massive revisions, resulting in the new code for the Latin Rite in 1983, and the compilation for the first time of the Eastern Rite Code in 1991.
Original jurisdiction
Cases normally originate in the tribunal of the particular church (i.e. the diocese or eparch) of the parties to the case. This tribunal in canon law is called the tribunal of first instance. The bishop of the church posesses the power to judge for his church; however, since the bishop has many different duties in his diocese, most cases are handled by judges whom he appoints, led by a priest known as the judicial vicar or officialis.Cases are either tried by one judge or, in more serious cases (such as penal cases or annulment cases), a panel of three or five judges. The judicial vicar assigns cases to the judges and, in those cases which require three or more judges, presides over the panel or assignes one of his assistant judicial vicars to preside, if there are any. The judicial vicar and the assistant judicial vicars must be priests with doctorates or at least licenses in canon law. The other judges need only be clerics with licenses, but the episcopal conference can permit properly qualified members of the laity to serve as judges.
There are other officers of the tribunal. The promoter of justice, for instance, is a canon lawyer whose job is to represent the diocese as the prosecutor in penal cases and who also can intervene in contentious cases if they concern the "public good", acting as a watch dog for the people of the diocese. Another important officer is the defender of the bond, another canon lawyer whose job is to present reasons to the tribunal why a marriage is valid in cases of alleged nullity and why an ordination is valid in the rare cases of alleged nullity of Holy Orders. The tribunal also has notaries who swear in witnesses and commit their testimony to writing. Like any good legal system, parties in a case have the right to appoint an advocate who can argue for them at the tribunal. If a person cannot afford an advocate, the tribunal can assign one to them free of charge.
Unlike courts of common law tradition, ecclesiastical tribunals do not follow the adversarial system. Based on the same Roman civil law that is behind much European law, the procedure of a canonical court is more akin to the inquisitorial system, with the judges leading the investigation. There is no presumption of guilt or innocence, for instance, but there are presumptions of the validity of an act unless proven otherwise.
Some matters cannot cannot be introduced at the diocesan level and can only be introduced before the following:
- Appellate tribunal for the diocese: cases against the diocese itself or an institution represented by the diocesan bishop
- Sacred Roman Rota: cases against the heads of religious orders, cases against dioceses or church institutions that are immediately subject to the Holy See, and non-penal cases against bishops
- The Pope himself: any case where a cardinal, Eastern rite patriarch, papal legate, or head of state is a defendant and any penal case involving a bishop.
Appeal
The appellate tribunal is known as the tribunal of second instance. Normally the second instance tribunal is the tribunal of the metropolitan bishop. In the case where the appeal is from a first instance decision of the metropolitan's tribunal, the appeal is taken to a court which the metropolitan designated with approval of the Holy See, thus ensuring that appeals from one diocese are never heard by the same diocese. Some cases are automatically appealed (for instance, when a marriage is found to be null). The appealing party does not need to appeal to the metropolitan; the party can instead appeal to Rome, in which case the Sacra Rota Romana would hear the case in the second instance. If the case was before the Rota in the first instance, then a different panel of the Rota hears it in the second instance.With the exception of annulment cases, if the first instance and second instance tribunals agree on the result of the case, then the case becomes res judicata and there is no further appeal. If they disagree, then the case can be appealed to Rome, which serves as the tribunal of third instance. The tribunal that hears the case is the Sacred Roman Rota, a court of fifteen judges called auditors who take cases in panels of three and serve as the final arbiters of most cases.
There is no appeal from a case which the Pope has decided personally.
Other tribunals
The Roman Curia has two other tribunals which either deal with specialized cases or which do not deal with cases at all. The first is the Apostolic Signatura, a panel of five cardinals which serves as the highest court in the Roman Catholic Church. Normal cases rarely reach the Signatura, the exception being if a party appeals to the Pope and he assigns the case to them or if the Pope on his own initiative pulls a case from another court and gives it to them. The court mainly handles cases regarding the use of administrative power, including penal cases which were decided using executive instead of judicial power, which is the usual case. It also handles disputes between dicasteries and other tribunals over jurisdiction, complaints that a Rotal decision is null and should be retried, and matters regarding advocates and inter-diocesan tribunals.Like the Pope, there is no appeal from the decision of the Apostolic Signatura.
The other tribunal is the Apostolic Penitentiary. This tribunal has no jurisdiction in the external forum, which means that it cannot decide cases between known parties. It instead receives pseudonymous petitions from persons, usually written through their confessor, which ask to be dispensed from an impediment to marriage or released from an automatic excommunication which were reserved to the Holy See. In these cases, no ecclesiastical court has adjudicated whether the person cannot marry or whether the person is excommunicated; the person instead knows that he or she had done something which incurs an automatic excommunication or that does not allow them to marry and thus seeks the help of the Penitentiary.
Church of England
In the Church of England, the Ecclesiastical Courts are a system of courts, held by authority of the Crown, whose holder is the Supreme Governor of the Church of England. The courts have jurisdiction over matters dealing with the rights and obligations of church members, now limited to controversies in areas of church property and ecclesiastical disciplinary proceedings. In England these courts, unlike common law courts, are based upon and operate along civil law procedures and Canon law-based jurisprudence.
Offences against ecclesiastical laws are dealt with differently based on whether the laws in question involve church doctrine. For non-doctrinal cases, the lowest level of the court is the Archdeaconry Court, which is presided over by the local Archdeacon. The next court in the hierarchy is the Bishop's Court, which is in the archdiocese of Canterbury called the Commissiary Court and in other dioceses the Consistory Court. The Commissiary Court is presided over by a commissiary-general; a Consistory Court is presided over by a chancellor. The chancellor or commissiary-general must be thirty years old and either have been legally qualified for seven years or have held high judicial office.
Specialist courts in the Province of Canterbury are the Court of Faculties, the Court of Peculiars and the Court of the Vicar-General of the Province of Canterbury. In the northern province there is the Court of the Vicar-General of the Province of York.
The next court is the Archbishop's Court, which is in Canterbury called the Arches Court, and in York the Chancery Court. Each court includes five judges; one judge is common to both courts. The common judge is called the Dean of Arches in Canterbury and the Auditor in York; he is appointed jointly by both Archbishops with the approval of the Crown, and must either have been legally qualified for seven years or have held high judicial office. Two members of each court must be clergymen appointed by the Prolocutor of the Lower House of the provincial Convocation.Canterbury and York each have a bicameral Convocation, made up of the Upper House (composed of bishops) and the Lower House (composed of representatives of the clergy). Two further members of each court are appointed by the Chairman of the House of Laity of the General Synod;The General Synod, a tricameral body, is the highest governing body of the Church. The House of Bishops is composed of the Upper Houses of the two Convocations; the House of Clergy is composed of the Lower Houses of the two Convocations; the House of Laity includes representatives of lay members of the Church. these must possess such legal qualifications as the Lord High Chancellor of Great Britain requires.
In cases involving church doctrine, ceremony or ritual, the aforementioned courts have no jurisdiction. Instead, the Court of Ecclesiastical Causes Reserved hears the case. The Court is composed of three diocesan bishops and two appellate judges; it has jurisdiction over both of the provinces of Canterbury and York. The Court, however, meets very rarely.
Appeal from the Arches Court and Chancery Court (in non-doctrinal cases) lies to the Queen-in-Council. In practice, the case is heard by the Judicial Committee of the Privy Council, which includes present and former Lords Chancellor, a number of Lords of Appeal and other high judicial officers. The Queen-in-Council does not have jurisdiction over doctrinal cases from the Court of Ecclesiastical Causes Reserved, which instead go to an ad hoc Commission of Review, composed of two diocesan Bishops and three Lords of Appeal (who are also members of the Judicial Committee).
Commissions of Convocation are appointed by the Upper Houses of both Convocations to try an Archbishop or Bishop. Both Convocations make the appointment if an Archbishop is involved. This would comprise four diocesan bishops and the Dean of the Arches.
Episcopal Church (in the United States)
Ecclesiastical courts in the American Episcopal Church have jurisdiction only over disciplinary cases involving clergy, and are divided into two separate systems, one for trials of bishops, the other for trials of priests and deacons. (At least one diocese, however (Diocese of Minnesota), has provided in its canons (i.e., church law) for a court with broader jurisdiction over a wide range of canonical issues, although such a court has not yet been implemented.) In each disciplinary case, two courts are provided, one for trials and one for appeals. When a charge is first made, it is brought before an initial review committee (similar to a grand jury in secular criminal law) whose job is to determine when a case should be brought, and to supervise the Church Attorney who acts as a sort of "Prosecutor."
Courts and procedure for trials of bishops are provided for by the Canons of the General Convention (the triennial legislative body of the national church). There is one Court for the Trial of a Bishop, composed of nine bishops (though there have been proposals to include lay persons and lower clergy in this court). Appeals are heard by the Court of Review for the Trial of a Bishop, also composed of nine bishops. The Constitution of the national Episcopal Church provides that this court must be composed only of bishops.
For priests and deacons, initial trial is held by an ecclesiastical court established by the diocese in which the cleric is canonically resident, and appeals are taken to the Court of Review for the Trial of a Priest or Deacon, one of which is established in each of the nine provinces of the church (a province is a geographic combination of dioceses). Dioceses have some discretion about the procedure and membership for the ecclesiastical court, but most rules and procedure is established church-wide by the national canons. Trial courts are made up of lay persons and of priests or deacons, with the latter to have a majority by one. The various Courts of Review are composed each of one bishop, three priests or deacons, and three lay persons.
Since the 18th century the Constitution of the national Episcopal Church has permitted the creation of a Court of Appeal, which would be "solely for the review of the determination of any Court of Review on questions of Doctrine, Faith, or Worship," but no such court has ever been created, though proposals have occasionally been made to establish the House of Bishops itself as such a court.
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Anglicanism | Canon law | Court systems | Religious law | Legal occupations
"Ecclesiastical court"