APPEAL
651
APPEAL
rights of ciNnl jurisdiction; and likewise a recourse
to the ecclesiastical forum against tlic usurpation
by the civil forum of the rights of ecclesiastical juris-
diction. Thus defined, the "appeal as from an
abuse" was in itself legitimate, because its object
was to safeguard eiiually the rights both of the State
and of the Church. .\n abu.se would l)e an act on
either hand, without due authority, beyond the limits
of their respective ordinary and natural juri.silictioiis.
The canons (can. " Dilccto", in bk. VI of Decretals,
" De sent, exconi.", in ch. vi) did not exclude a re-
course to the ci\il authority when the acts of an ec-
clesiastical judge invaded the domain of the civil
authority, especially .<is reciprocity gave the ecclesiasti-
cal authority the right to re])el with the same weapons
anv usurpation by the lay judge to the ilainage of the
rightji of the Church. Thus also a recourse to the su-
preme civil ruler w;is not deemeil ami.ss when an ec-
clesiastical court undertook a cause belonging to
the competency of a liigher ecclesiastical court, and
the ruler was asked (can. " Placuit " in Decree of
(iratian, Pt. II, Q. I, ch. xi) merely to forward it
to the proper tribunal without, however, claiming
to delegate to it any jurisdiction. Perhaps the first
formal manifestation of this appeal in the legitimate
sense occurred in the fourteenth century. The
ecclesiastical judges hail ac<iuireil a reputation for
greater learning and equity, and by the good will
of the State, not merely ecclesiastical, but many
civil cases of the laity were ailjudicated by them.
In 1329 complaint was brought to King Philip de
Valois by the advocate general, Peter de Cugnidres,
that the civil tribunals were fast lapsing into con-
tempt, and were being abamlonetl. The purport of
the complaint was to restrict the competency of the
ecclesiastical tribunals to their own legitimate fields.
Bickerings between the two forums were henceforth
frefiuent. ICven the Catholic states, after the be-
ginning of the sixteenth century, advanced far in
the way of frequent ruptures with the Church.
When the Protestant states in the new revolution
had acquired control and supervision over the newly
reformed bodies even in their spiritual relations, the
Catholic states, particularly France, strove to limit
the jurisdiction of the Church xs far:us they coulil
without ciusting .aside the profes-sion of the Catholic
Faith. The Pragmatic Sanction was a serious ag-
gression by France upon the acknowleilged rights
of the Church and of the Holy See. It is in France
that we find the most flagrant series of encroach-
ments upon Church juristliction, through pretence
of appeals as from an abuse, gradually tending to the
elimination of the ecclesiastical forum. During the
se\enteenth century the French clergy presented
frequent memorials against the encroachments made
by their kings and parliaments through constant
recourse to these " ap|)eals as from an al)use", which
resulted in submitting to civil tribun:ds questions of
definitions of faith, the proper administration of the
sacraments, and the like. This brought confusion
into the regulation of spiritual matters by encourag-
ing ecclesiastics to rebel against their lawful eccle-
siastical superiors. The lay tribunals undertook to
adjudicate .as to whether the ministers of the sacra-
ments hail a right to refuse them to those ileemetl
unworthy, or the right to Christian burial of Catho-
lics dj-ing impenitent or under Church cen.surcs;
whether interdicts or suspensions were valid; whether
monastic profes-sions should be annulled; whether
the bishops permi.ssion was necessary for preaching;
whether a specified marriage was contrary- or not to
the Gospel; and also to decide the justice of canonical
privations of benefices. Many other subjects inti-
mately connected with the teaching of the Church
were brought before lay tribunals, and unappealable
decisions rendered in o|)en contradiction to the
canons, as can easily be surmised both from the
absence of theological knowledge, and from the
\'isible animus shown in decisions that undertook
to subject the spiritual fxjwer of the Church to the
dictates of transient iwlitics. A Catholic govern-
ment should respect the ecclesiastical canons. This
evil interference was mostly on-ing to courtier-
canonists who flattered the secular rulers by dwelling
uix)n the right of protection over the Church will-
ingly conceded in early tlays to the Christian Homaii
Emperors. It is true that the latter were occasionally
called guardians of the canons, and that they ofleii
embodied these canons with the civil legislation of
the Empire (see Constantinople, Justinia.n. Nn-
Moc.tNo.v). This did not mean, however, that the
Emperors were the source of the binding jxiwcr of
the canons, which was recognized as inherent in
the pope and bishops as successors to the ix)wer of
the .\postles to bind and loose, but that the duty
of a CatlK)lic empire was to aid in the enforcement
of the ecclesiastical laws by the cixtI authority.
The Churcli was recognized as autonomous in all
things of the divine law and in matters of ecdesiiu-.ti-
cal discipline. We find the oecumenical couucil^
appealing to the emperors to put into force thiir
decrees about the Faith, though no one should inlir
from this that the emperors were recognized:i^
judges of the faith. So, likewise, when Justinian
inserts ecclesiastical disciplinary decrees in the
civil code he ex|)lains (Novella, xlii): "we have
thus decreed, following the canons of the holy
Fathere." When rulers like Charlemagne seemed
to take upon themselves undue authority, insisting
upon certain canons, the bishops claimed their sole
right to govern the Church. Even in mixed as-
semblies of bishops and nobles and princes, the
bishops insisted that the civil power should not
encroach upon the rights of the Church, e. g. in the
Council of Narbonne (788). Zaccaria (Dissert;iz.
28) did not hesitato to recognize, however, that in
his day (the eighteenth century), as well as in
former ages, the Catholic rulers of Catholic States,
in their quality of protectors of the Church, might
receive a recourse from ecclesiastics in ecclcsiasticd
matters, in order that justice might be done them
by their ordinary ecclesiastical judges, not as deputies
of the civil nilers, but as ordinary judges in their
own forum. In her concordats with Catholic states
the Churcli, in view of the changed circumstances
of society, has granted to several tnat the civil cases
of clerics, and such as concern the property and tem-
poral riglits of churches, as well as Ijenefices and
other ecclesiastical foundations, may be brought ite-
fore the civil courts. Nevertheless, all ecclesiastical
causes and those which concern the Faith, the .sacra-
ments, morals, sacred functions, and the rights con-
nected with the sacre<l ministry, belong to the
ecclesiastical forum, both in regard of persons and
of matter (cf. Concordat with Ecuador in 1881). In
the United States, as decreed by the Council of Balti-
more (18.37), the church law is that if any ecclesiast ical
person or member of a religious bodv, male or female,
should cite an ecclesiastic or a religious before a civil
court on a question of a purely ecclesiastical nature,
he sliouUl know that he falls under the censures
decreed by canon law. The Congregation of Propa-
ganda in Its comment explaine<l that, in mixed casl^s.
where the persons may be ecclesiastical, but the
things about which there is question may be temporal
or of one's household, this rule cannot be enforced,
especially in countries in which the civil govern-
ment is not in the hands of Catholics, and where,
unless recourse is had to the civil courts, there is not
the means or the power of enforcing an ecclesiastical
decision for the protection or recovery of one's own.
A s|x>cial proviso was made by Propaganda for the
I'nited States (17 .August, 1886), that if a priest
should bring a cleric before a civil tribunal on an
