“sanction” of excommunication will be found in Christ’s words in Matt. xviii. 15-18. A very early example of criminal spiritual jurisdiction exercised by St Paul is found in the case of the incestuous Corinthian (1 Cor. v.). We find later the same apostle exercising like jurisdiction in the cause of Hymenaeus and Alexander (1 Tim. i. 20). After the time of the Apostles, we find this criminal jurisdiction exercised by the bishops individually over their respective “subjects”—doubtless with the advice of their presbyters according to the precept of St Ignatius (c. 110). As neighbouring dioceses coalesced into “provinces” and provinces into larger districts (corresponding to the civil “dioceses” of the later Roman Empire), the provincial synods of bishops and the synods of the larger districts acquired a criminal jurisdiction, still purely spiritual, of their own. At first this was “original” and mainly (although not exclusively) over bishops (of the province or larger district). The beginnings of an appellate jurisdiction in the cases of clerics and laymen may be traced before the conversion of the Empire. The bishop over whom the synod of neighbouring bishops had exercised jurisdiction had no formal right of appeal; but sometimes bishops in other parts of the Church would refuse to acknowledge the local synodical sentence and would communicate with a bishop whom they deemed unjustly deposed. The theory, as expressed in legal phrase by St Cyprian in the 3rd century, was that the apostolic power of delegated sovereignty from the Lord, alike legislative and judicial, was held in joint-tenancy by the whole body of Catholic bishops. In both capacities, however, a certain undefined pre-eminence was conceded to the occupants of “Apostolic” sees, i.e. sees traditionally founded by Apostles, or of sees with a special secular position.
Even before the edict of Milan, at least as early as the latter half of the 3rd century, the spiritual sentences of deposition from office had sometimes indirect temporal consequences recognized by the secular courts. The classical example is the case of Paul of Samosata, bishop of Antioch. It would seem that, in the intervals of persecution, some rights of property were recognized in the Christian Church and its officers; although the Church was an illegal society. After some previous abortive trials, Paul of Samosata was deposed and excommunicated, in 269, by a great synod of the Antiochene district. Paul, notwithstanding his deposition, kept possession of the episcopal residence. The local church sought recovery of it before the tribunals of the Empire. The judicial authorities requested a rescript from the emperor Aurelian for the decision of the cause. Aurelian referred the matter to the bishop of Rome and the bishops of Italy, who gave their award in favour of the Antiochene Church.
Side by side with this which we may call criminal jurisdiction—none the less real or coercive because its sanctions were purely spiritual—there grew up a quasi-jurisdiction in causes entirely temporal, based upon the free consent of the parties to accept the arbitration of the bishop. This Temporal Jurisdiction of the Church.system had also its roots in the New Testament (see Matt, xviii. 15-17 and 1 Cor. vi. 1-8). In the matter of criminal jurisdiction we paused for a moment at the edict of Milan; but we may at once trace this second or civil branch of episcopal judicature or quasi-judicature down as far as the reign of Charlemagne, when it underwent a fundamental change, and became, if either litigant once chose, no longer a matter of consent but of right.
Constantine decreed that judgment in causes might be passed by bishops when litigants preferred their adjudication to that of the secular courts (see his epistle to the Numidian bishops and Cod. Theodos. Tit. de Episcopis). The episcopal judgment was to be equivalent to that of the emperor and irreversible, and the civil authorities were to see to its execution. Saints Ambrose and Augustine both spent days in deciding temporal causes. Honorius, in the West, at the end of the 4th century, made a constitution providing that if any desired to litigate before the bishops they should not be forbidden, but that in civil matters the prelates should render judgment in the manner of arbitrators by consent (Cod. 1, Tit. iv.). Where the faithful had had recourse to the bishop, no appeal was to be allowed, and the judges were to command execution of the episcopal decree. A quarter of a century later, however, Valentinian III. in the West expressly provided that bishops were not to be permitted to be judges (that is, of course, in temporal causes), save by the consent of the parties. This legislation was, substantially, adopted by Justinian.
On the revival of the Western Empire, however, Charlemagne, in the beginning of the 9th century, under the mistaken belief that he was following the authority of Constantine I. and Theodosius I., took a great step forward, by which the bishop ceased to be a mere legally indicated arbitrator by consent in secular causes, and became a real judge. By a capitulary he provided that either litigant, without the consent of the other party, and not only at the beginning of a suit but at any time during its continuance, might take the cause from lay cognizance and transfer it to the bishop’s tribunal. He re-enacted the prohibition of appeal.
It should be remembered that, from the latter part of the 3rd century, the leading bishops had generally been trained in secular learning. St Cyprian, St Ambrose and St Augustine, St Paulinus of Nola and St John Chrysostom had practised law as teachers or advocates. St Ambrose and St Paulinus had even held high administrative and judicial offices.
To return to the evolution of ecclesiastical jurisdiction from the time of Constantine. With the “Nicene period” came a great development on the criminal side. A system begins to be formed, and the secular arm supports the decrees of the Church. The first trace of system Roman empire from Constantine.is in the limited right of appeal given by the first oecumenical council of Nicaea and its provision that episcopal sentences or those of provincial synods on appeal were to be recognized throughout the world. The fifth canon provides that those, whether clerics or laymen, who are cut off from communion in any particular province are not to be admitted thereto elsewhere. Still examination must be had whether persons have been expelled from the congregation by any episcopal small-mindedness (μικροψυχία), or contentious spirit, or such-like harshness (ἀηδία). That this may be conveniently inquired into, synods are to be held, three in every year, in each province, and questions of this kind examined. There is to be no “stay of execution”; the episcopal sentence is to prevail until the provincial synod otherwise decide. It will be noticed that as yet no provision is made for appeals by bishops from provincial synods sitting in first instance.
The edicts of Milan had only admitted the Christian Church among the number of lawful religions; but the tendency (except in the time of Julian) was towards making it the only lawful religion. Hence the practice, immediately after Nicaea I., of superadding banishment by the emperor to synodical condemnation. The dogmatic decrees of Nicaea I. were at once enforced in this temporal manner. On the other hand, the Arian reaction at court worked its objects (see Pusey, Councils of the Church) by using the criminal spiritual jurisdiction of synods against the Catholics—often packing the synods for the purpose. The acts of councils of this age are full of the trials of bishops not only for heresy but for immorality and common law crimes. The accusations are frequently unfounded; but the trials are already conducted in a certain regular forensic form. The secular authorities follow the precedent of Nicaea I. and intervene to supplement the spiritual sentence by administrative penalties. Sometimes an imperial officer of high rank (as, e.g. a “count”) is present at the synod, as an assessor to maintain order and advise upon points of procedure. Leading examples may be found in the various prosecutions of St Athanasius, in whose case also there is the germ of an appeal, tanquam ab abusu. It has been contended that, according to later and more formulated jurisprudence, such an appeal would have lain, since the trial at Tyre was not concerned with purely spiritual matters (see the case in Hefele, Councils, in loc.).
The trial of St Athanasius led to extensions of the right of appeal. This was favoured by the development of the greater sees into positions of great administrative dignity, shortly to be called “patriarchal.” A synod was held at Rome, attended
