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).
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 Roman Catholic countries.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”).
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 Jurisdiction
in Anglican communion.nearly modelled on the old canonical patterns.
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, Modern jurisdiction
of Church of Rome.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,
