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 Temporal Jurisdiction of the Church. parties to accept the arbitration of the bishop. This 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 Roman empire from Constantine. the decrees of the Church. The first trace of system 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 by bishops from various regions, which reversed the original judgment of the synod of Tyre which had condemned Athanasius. A much larger synod at Antioch, gathered only from the East, on the other hand, confirmed that judgment. This last synod did something to systematize the criminal procedure of the Church, and its legislation has been always received.
This legislation marks another step forward. Deposition of a bishop by a synod, or of a priest or deacon by his bishop, is to take effect even pending an appeal, and a cleric continuing his functions after sentence in first instance is to lose all right of appeal. The appeal given by Nicaea I. to clerics and laymen from episcopal excommunications is extended. The synod may restore them if convinced of the justice of their cause (and not merely in cases of ἀηδία). A bishop may appeal to a great assembly of bishops. Any bishop, priest or deacon “importuning” the emperor, instead of exerting his right of appeal to synods, is to lose all right of appeal and never to be restored or pardoned. If a provincial synod be divided as to the guilt of a bishop, the metropolitan is to convene bishops from the neighbouring provinces to decide the cause jointly with the bishops of the original province.
A few years later, in 347, the council of Sardica, a council of practically the whole West save Africa, reversed Tyre and acquitted St Athanasius after a full judicial inquiry. This council endeavoured to set up a system of appeals in the case of bishops, in which the see of Rome was made to play a great part. “Out of honour to the memory of St Peter,” a condemned bishop may ask the intervention of Rome. If this be done, the synod of first instance is to send letters to Julius, bishop of Rome. If that prelate think the cause should be heard again, he is to appoint judges; if otherwise, the original judgment is to be confirmed. Pending appeal, the appellant’s see is not to be filled up. The judges appointed by the bishop of Rome to hear the appeal are to be from the neighbouring provinces. The appellant may, however, request that bishop to send priests from his side to sit with the synod of appeal. If such priests are sent, they are to preside in the court of appeal. These canons were always repudiated in the East, and when, sixty years afterwards, they were, for the first time, heard of in Africa, they were repudiated there also.
A rescript of Gratian in 378 empowered the bishop of Rome to judge bishops with the assistance of six or seven other bishops or, in the case of a metropolitan, of fifteen comprovincial bishops. A bishop refusing to come to Rome was to be brought there by the civil power. The rescript, however, was not incorporated in the Codes and perhaps was only a temporary measure.