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Ecclesiastical court

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.

It is important to note, however, that the above reference is to a book published in the early 1900s. In 1917 the first fully codified Code of Canon Law was issued (courts worked on decretal and precedent law before that), and a total revision of that was published in 1983, so monumental changes have taken place in procedure and statute since the above article at New Advent was written


Catholic Church

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.

Briefly, in each diocese the bishop (or "eparch" in the Eastern Rites) is the legislator, administrator and judge: he makes the laws (in accord with the Code for his rite), administers them, and acts as the judge for his diocese. This last function is normally executed through a priest delegated for this job, whose title is either judicial vicar or officialis ("officialis" is the older title; "judicial vicar" emphasizes that he is the delegate, or vicar, of the bishop for judicial matters).

The diocesan court usually consists of the judicial vicar and two judges who act as a panel. All are normally priests with doctorates, or at least licentiates (master's degrees), in Canon Law. (In large dioceses, there may be a number of vice-officiales who preside over several panels of judges; in smaller dioceses, a single judge with two lay "assessors" may try cases.)

They are assisted by the promoter of justice, who is a priest and canon lawyer whose job is to safeguard the "public good" (acting as something of a watchdog) and to do the equivalent of prosecuting those accused of crimes, and the defender of the bond, whose job is to find reasons why a marriage is valid in cases of alleged nullity (annulment cases are the most common), and why an ordination is valid in the rare cases of alleged nullity of Holy Orders. Also present are the advocates of the parties and notaries.

The case does not follow the British adversarial system. Based on the same Roman civil law that is behind much European law (rather than the British Common Law), the procedure of a canonical court is more akin to an inquest, 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.

The court of the diocese, for the original trial of the case, is called the "court of first instance." "Second instance" is the appeal, which is automatic for some kinds of cases (for instance, when a marriage is found to be null), and is normally taken to the tribunal of the metropolitan -- that is, the archbishop of the nearby archdiocese that has seniority over the region, or "province," which is a cluster of smaller dioceses. Courts of first instance within an archdiocese itself appeal their cases to the metropolitan tribunal of some other archdiocese with which the original archbishop has made an arrangement (so appeals of trials originating in an archdiocese are not heard in that same archdiocese).

Cases are ultimately appealed to Rome, normally to the Rota, a court of 15 judges, called auditors, who take cases in panels of three and serve as the final arbiters of most cases. Certain specialized cases can go automatically to one of the congregations of the Vatican -- the Congregation for the Doctrine of the Faith, the Congregation for the Clergy, etc., which are "cabinet-level departments" under the Pope.

The highest court, the Apostolic Signatura, is a panel of five cardinals who serve as the judges. It is a lawyer's court: it resolves disputes between congregations over jurisdiction, handles complaints of coruption against judges of the Rota, and certain other highly specialized matters, and so rarely has contact with typical ecclesiastical cases (like marriage annulments).

All of the above applies to the "external forum" -- that is, matters which are provable in some public way (as in a marriage). Matters which take place only within the context of confidentiality (as in the Sacrament of Penance, also called the Sacrament of Confession, or in spiritual direction and counseling) are said to be of the "internal forum." These matters follow what is technically a judicial path, though it would be unrecognizable to most people familiar with standard legal systems. Such a matter arising during confession, for instance, would be handled directly by the priest hearing the confession or, if he lacks authority (for instance, to lift an excommunication), he would create an anonymous petition (using pseudonyms) to obtain permission from the Apostolic Penitentiary, a cardinal specially delegated by the Pope to handle such matters.

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. 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 under civil law and canon law.

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.

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 Convocation1. Two further members of each court are appointed by the Chairman of the House of Laity of the General Synod2; 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 Lord Chancellors, 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).


  1. 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).
  2. 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.

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. In each case, two courts are provided, one for trials and one for review (appeals), as well as a Review Committee 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. 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 General Convention provides that this court must be composed only of bishops.

For priests and deacons, initial trial is held by a 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. Dioceses have some discretion about the procedure and membership for the trial court, but most rules and procedure is established church-wide by the Canons of the General Convention. 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.

The Constitution of the General Convention also permits 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.

See also

External links

Catholic history of court

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