The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

Chapter XVI. Church Tribunals

196. Jurisdiction, Privileges.—It is usual for every fraternity to have a tribunal of its own for the trial of members who break its laws or violate its discipline. Within their jurisdiction, the laws of the State give such tribunals great privileges and courts show them great respect. The Freemasons, the Knights of Columbus, etc., and most of the churches, have such courts.[353]

197. Trial, Property, Priest.—In most of the States a court will not interfere with the fair trial of a church tribunal. Neither will the court entertain a controversy concerning the title or right of possession of real or personal property excepting at the instance of some person claiming a right thereto derived from or recognized by the law of the State or of the United States.[354] But when the bishop has deprived a subordinate priest of his authority to officiate as such, he may [pg 115] enjoin the priest from making use of the church property.[355]

198. Doubt, Legal Rights.—The foregoing rule has some doubt cast on it in Delaware and Massachusetts. The investigation of a dispute between members of a church by a committee according to church regulations, consented to by the parties, in which both take part, can have no effect on their legal rights. If the State law provides for cases of the kind, it is superior and must be submitted to. Also, an award or proceeding of a committee is not evidence for or against either party. However, any statement made, or admissions of the parties, if not of a recognized confidential nature, may be given in evidence on the trial in a court of the State.[356] The judgment of a mutual ecclesiastical council legally convoked will not bind either party rejecting it.[357]

199. Bishop, Priest, Redress.—When a bishop removes a priest in the regular way according to the rules and discipline of his church, the priest has no redress.[358] Also, when a priest has submitted his case to the church tribunal according to the discipline of his church, he must abide by its decision, [pg 116] excepting where his civil rights or property rights as a citizen are involved, when he may appeal to the laws of the land.[359]

200. Trial, Counsel.—The question whether a minister on trial in a church tribunal is entitled to be heard by counsel or attorneys depends upon the laws of the church, and it can not be said as a matter of law that he is entitled to counsel.[360]

201. Removal, Suspension, Trial.—In the United States under the laws and discipline of the Catholic Church a priest may be removed from the charge of a congregation at the pleasure of the bishop, without trial; but he can not be suspended from his priestly functions without specific accusation and trial.[361]

202. Charges, Fair Trial, Hearsay Evidence.—When a clergyman or officer is to be removed or a member of the congregation is to be excommunicated, it is necessary to fully state the charges against him and give him an opportunity for a fair trial according to the laws and rules of the religious society before rendering final judgment. All the allegations of the complaint should be made upon positive knowledge of the complainant [pg 117] or upon evidence that is admissible to prove the case in court. Rumor or gossip, known as mere hearsay evidence, is not sufficient to base a charge against the character of any one.[362]

203. Trial, Testimony, Slander.—A church judgment, where there has been a full and fair trial or when members submit to the church tribunal, and the judgment has only been rebuke, censure, suspension, or excommunication, is usually upheld by the courts; and when the testimony given on such trial is concerning immoral or scandalous conduct or crime, if those taking part act in good faith and within the scope of the authority of the church, they are protected by law and not liable to an action for damages for libel or slander.[363]

204. Remedies, Secular Courts.—In cases involving church doctrine and discipline only, all remedies within the church must be exhausted by a member before the secular courts will interfere, if they will interfere at all.[364]

205. Notice, Waiver.—When the laws of the church provide the tribunal and procedure, if the person proceeded against avoids the service of the notice or refuses to submit to the court, the notice of trial required to be served might thereby be considered waived and the tribunal might proceed with the trial in the absence of the accused.[365]

206. Appeal, Decision, Limitation.—The right to appeal from one court to another of higher jurisdiction is generally recognized.[366] If after trial in the lower tribunal of the Church, an appeal is taken, the decision on the appeal is binding upon the parties and also upon the inferior tribunal.[367] In the Anglican and some other churches, there is no limitation as to time when offenses against the discipline of the church may be inquired into.[368]

The Catholic Church has a limitation as to prescriptive rights, to-wit: “Three years in case of movable property; ten years in case of a right, or of immovable property, inter praesentes; twenty years in the same case, inter absentes.”[369] Also, there are limitations in canonical cases, varying from one [pg 119] to twenty years.[370] There is no statute of limitation on lawful debts.

207. Procedure, Judge, Juror, Witness.—If there are no rules of procedure prescribed by the church tribunal, the proper practice is to follow the State courts; as, for example, where the State law forbids an officer of the court who has an interest in the proceeding to sit as judge or juror, the same would apply to the church tribunal, it being the common law of the land. Also, in States where a person who is interested in a matter is not a competent witness, in the absence of a different rule in the church, the same rule would apply in the church tribunal.[371]

208. Catholic Discipline.—A church member has no right to sue any one in holy orders in the civil court without leave. That is, a layman or priest should obtain leave of the bishop to sue a priest. In some countries it is ground for excommunication to violate the rule. This rule is analogous to the general rule that a sovereign state can not be sued without its consent.[372] In this country, where there is no ecclesiastical court recognized in law, leave is rarely asked.[373]

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