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 Jurisdiction in Anglican communion. 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 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 Modern jurisdiction of Church of Rome. by administrative methods. This practice obtains in all missionary countries, e.g. Ireland and also in Belgium (S.B. Smith, Elements of Ecclesiastical Law, 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, the court of the cardinal vicar-general consists of such vicar-general and four other prelates (Smith, ubi supra). In the Roman communion in England and the United States, there are commissions of investigation appointed to hear in first instance the criminal causes of clerks. They consist of five, or at least three, priests nominated by the bishop in and with the advice of the diocesan synod. In the United States, since 1884, the bishop presides on these commissions. They report their opinions to the bishop, who passes final sentence (ib. ii. 129-131).
“Exemptions” now include all the regular religious orders, i.e. those orders which have solemn vows. Over the members of these orders their superiors have jurisdiction and not the bishop. Otherwise if they live out of their monastery, or even within that enclosure so notoriously offend as to cause scandal. In the first case, they may be punished by the ordinary of the place, acting as delegate of the pope without special appointment (Conc. Trid. Sess. vi. c. 3). In the second case, the bishop may require the superior to punish within a certain time and to certify the punishment to him; in default he himself may punish (Conc. Trid. Sess. xxv. c. 14, cf. Smith, op. cit. i. 204-206). So, regulars having cure of souls are subject to the jurisdiction of the bishop in matters pertaining thereto (ib. p. 206). The exemption of regular religious orders may be extended to religious societies without solemn vows by special concession of the pope, as in the case of the Passionists and Redemptorists (ib. p. 205; Sanguineti, Juris ecc. inst., Rome, 1800, pp. 393, 394).
Appeal lies, in nearly all cases, to the metropolitan (Smith, op. cit. pp. 219-223). Metropolitans usually now have a metropolitan tribunal distinct from their diocesan court (ib. ii. 141), but constructed on the same lines, with the metropolitan as judge and his vicar-general as vice-judge. In some “missionary” dioceses, the metropolitan, qua metropolitan, has a separate commission of investigation, to try the criminal causes of clerks, sentence being passed by himself or his vicar-general (ib. p. 142).
The next step in the hierarchy, that of “primates” (supra), has “in the present state of the Church” ceased to exist for our purpose (Sanguineti, op. cit. p. 334), as a result of Tridentine legislation. The only appellate jurisdiction from the metropolitans is the Roman See. To it also lies a direct appeal from the court of first instance, omisso medio (Smith, op. cit. i. 224). The pope’s immediate and original jurisdiction in every diocese is now expressly affirmed by the Vatican Council (ib. p. 239). That original jurisdiction he reserves exclusively to himself in causis majoribus (ib. pp. 249-250). These are (1) causes relating to elections, translations and deprivations of, and criminal prosecutions against, bishops, and (2) the matrimonial cases of princes (Taunton, op. cit. s.v. “Cause”).
In the Eastern Church, the early system of ecclesiastical judicature long continued. But a sacred character was ascribed to the emperors. They are “anointed lords like the bishops” (Balsamon, in Conc. Ancyr. Can. xii., representing Eastern Church. the view of the 12th and 13th centuries). Bishops were often deposed by administrative order of the emperor; synods being expected afterwards to confirm, or rather accept, such order. The germ of this dealing with a major causa may be found in the practice of the Arian emperors in the 4th century. The cause of Ignatius and Photius was dealt with in the 9th century by various synods; those in the East agreeing with the emperor’s view for the time being, while those in the West acted with the pope. (The details are in Mansi, Conc. in locis, and in Hefele, Conc. in locis, more briefly. They are summarized in Landon, Manual of Councils, s.v. “Constantinople,” “Rome,” and in E.S. Foulkes, Manual of Ecclesiastical History, s.v. “Century IX.”) Since these transactions patriarchs have been deposed by the Byzantine emperors; and the Turkish sultans since the 15th century have assumed to exercise the same prerogative.
The spiritual courts in the East have permanently acquired jurisdiction in the matrimonial causes of baptized persons; the Mahommedan governments allowing to Christians a personal law of their own. The patriarch of Constantinople is enabled to exercise an extensive criminal jurisdiction over Christians (Neale, Hist. of the Eastern Church, i. 30, 31).