(d) The General Assembly is the supreme ecclesiastical court of this system. It meets annually. The king’s “lord high commissioner” attends the sittings; but does not intervene or take part in the court’s decisions. The court consists of ministers and elders, elected from the presbyteries in specified proportions, and of commissioners from the four universities, the city of Edinburgh and the royal burghs. The Presbyterian Church in India sends one minister and one elder. The whole Assembly consists of 371 ministers and 333 elders. The jurisdiction is entirely appellate. The Assembly appoints a commission to exercise some of its functions during the intervals of its session. To this commission may be referred the cognizance of particular matters.
Questions of patronage now (by 37 & 38 Vict. c. 82) belong to the Church courts; but not questions of lapse or stipend. Seats, seat rents, pews, the union and disjunction of parishes and formation of district parishes are of secular jurisdiction. Questions of tithes (or “teinds”) and ministers’ stipends were referred to commissioners by acts of the Scots parliaments beginning in 1607. The commissioners of teinds became a species of ecclesiastical court. By Scots act of 1707, c. 9, their powers were transferred to the judges of the court of session, who now constitute a “teind court” (Brodie-Innes, op. cit. pp. 138, 139). Matrimonial matters and those relating to wills and succession (called in Scotland “consistorial” causes) were in 1563 taken from the old bishops’ courts and given to “commissaries” appointed by the crown with an appeal to the court of session, which by act 1609, c. 6, was declared the king’s great consistory. They have remained matters of secular jurisdiction.
The Scots ecclesiastical courts are entitled to the assistance of the secular courts to carry out their jurisdiction by “due assistance.” Within the limits of their jurisdiction they are supreme. But if a court go outside its jurisdiction, or refuse to exercise powers conferred on it by law, the civil court may “reduce” (i.e. set aside) the sentence and award damages to the party aggrieved.
With the Reformation in the 16th century, Church courts properly speaking disappeared from the non-episcopal religious communities which were established in Protestant continental European states. Holland, in the Protestant states of Switzerland and of Germany, and in the then non-episcopal countries of Denmark and Norway.
Discipline over ministers and other office-bearers was exercised by administrative methods in the form of trials before consistories or synods. To this extent ecclesiastical jurisdiction is still exercised in these countries. Consistories and synods have 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 Roman Catholic countries. Trent took away the jurisdiction of archdeacons in 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.