§ 144. Church-Judicial Competence in Its Various Changes

1. In the first centuries, when the Church occupied an isolated position amid the heathen peoples of the Roman state, and had to avoid every connection with the heathen state authority, all disputed matters that arose among Christians—whether those matters concerned church relations or the relations of their mutual social life—were argued and settled before the church court. This was required by the very position of the Church in the time of persecution, and it was likewise ordained both by the prescriptions of the New Testament Scripture and by the prescriptions of the church legislation of that age. The Apostle Paul writes to the Corinthians: “Dare any of you, having a matter against another, go to law before the unjust, and not before the saints? Do ye not know that the saints shall judge the world? And if the world shall be judged by you, are ye unworthy to judge the smallest matters?… But ye, when ye have matters of this life, take them and set them to judge who are least esteemed in the church. I speak to your shame. Is it so, that there is not a wise man among you? no, not one that shall be able to judge between his brethren?”[1] In keeping with this admonition of the Apostle, we find among the earliest legislative ordinances of the Church that they must submit to the church court in all matters, not only ecclesiastical but civil as well, both as members of the clergy,[2] and as faithful laymen.[3] In the third century, when it seems some Christians began to disregard the church court and to have recourse to secular ones, we accordingly read a fresh admonition to Christians that they must by no means allow heathen judges to adjudicate the disputes that arise among them.[4] For this reason, besides the ordinary church courts for offences of members of the clergy and their occasional mutual disputes, there existed a special court attached to every bishop, and before that court appeared all the faithful who had some disputed matter, submitting to the judgment which, after the corresponding hearing, the bishop pronounced.[5] This church court, and likewise its judgments, naturally had no significance whatsoever before the state authority of that time, and were valid only within the domain of the Church. But when, in the fourth century, freedom was granted to the Christian Church in the Greco-Roman state, the church court too was then recognized by the state authority, and its decisions were accorded the same weight as the decisions of the other courts in the state.

We have seen that the competence of the church court in matters touching the Church proceeds from divine right, and that accordingly, in the exercise of judgment in those matters, the Church has her own independent jurisdiction, nor does she require anyone’s recognition of it; and we have also seen that jurisdiction in civil relations belongs, or can belong, to her only relatively. The former was recognized as belonging to the Church already from the first Christian emperors, and the civil courts were resolutely forbidden to intrude into matters touching the life of the Church.[6] As regards the latter, it was necessary to establish a definite relation corresponding to the new position which the Church had assumed in the Greco-Roman state: it was necessary to determine for what persons the church court was competent in matters touching outward civil relations, and for what matters the civil court was competent.

As regards persons in holy orders, the canons strictly forbid these persons to have recourse to secular courts for the various disputes that arise among them, and command them to turn, for this purpose, only to the church court.[7] The emperors of the fourth and fifth centuries recognized this competence of the church courts with greater or lesser restrictions.[8] The Emperor Justinian, as in other matters so also in this one, established a corresponding permanent order, precisely determining the relation between the church court and the secular court. He issued several laws in this regard.[9] The substance of these laws consists in the following: 1) All disputed church matters, and likewise those concerning the administration of church property, are subject to the judgment of the local bishop; a cleric dissatisfied with the episcopal judgment may appeal to the metropolitan, and from the metropolitan’s court to the patriarch, as the final court. 2) A layman may seek judgment against a cleric before the bishop; and if the defendant does not, within ten days, transfer the matter to the secular court, the matter is then concluded at the episcopal court, and the secular court merely executes the bishop’s judgment. 3) In criminal matters both the church court and the civil court take part: if a criminal case is heard before the episcopal court and the accused is found guilty, the bishop first strips that guilty person of holy orders, and then hands him over to the civil court; but if such a case is heard before the civil court, that court, having determined the degree of guilt, sends its opinion in writing for the bishop’s judgment, and if the bishop agrees with that opinion, he strips the guilty person of holy orders and returns him to the civil court, while if the bishop does not agree with the opinion of the civil court, the matter then passes to the judgment of the emperor, in whose tribunal, moreover, the patriarch also takes part, and often other high church dignitaries as well.[10] 4) All disputed matters among bishops, whether ecclesiastical or civil, fall under the judgment of the provincial council together with the metropolitan, and from that court an appeal lies to the patriarch. 5) Finally, a bishop may not be summoned before a civil court to give personal testimony about anything, or for any other reason; a judge who should do so loses his office and pays a heavy fine to the church of the bishop whom he sought to try, while one who should assist a judge against a bishop is punished with banishment.[11] In the first half of the seventh century the Emperor Heraclius regulated this differently, and extended the power of the church court still further, recognizing the right of bishops to judge directly the criminal matters of clergy, and, having condemned them and stripped them of holy orders, to hand them over to the civil court for further punishment.[12] In the Epanagoge, the competence of the episcopal court over clergy is recognized for all offences without distinction, except for the single offence of high treason.[13] The Byzantine emperors of the second half of the Middle Ages protected the ecclesiastical courts, by several laws, against secular authorities who might presume to violate the rights of those courts.[14] The chief ordinances of Greco-Roman legislation on this matter passed into the canonical collections of the Orthodox Church.[15]

On the basis of the earlier church practice that all disputed matters and offences of the lay faithful be judged before the church court,[16] church legislation continued, even after the recognition of the Church’s freedom in the Greco-Roman state, to issue prescriptions concerning those disputed matters and the various offences of the laity.[17] These prescriptions were also recognized by the state authority, and thereby, in the main, so too was the competence of the church courts as against the laity. Moreover, given the bond into which the state entered with the Church, and in view of the fact that, from that time, the civil courts too had become permeated with the Christian spirit, the church court, in disputed matters among laymen themselves, or between laymen and clergy, was generally regarded merely as a court of mediation (arbitration).[18] Constantine the Great permitted recourse to the bishop in civil disputes, and recognized the decision of the episcopal court as fully valid, without any further appeal, if both parties agreed to be judged before that episcopal court.[19] Afterward, the same emperor ordained that it was free, in such disputes, to have recourse to the bishop’s court if only one party wished it, regardless of whether the other party agreed.[20] This was, however, revoked by the emperors who followed, and Constantine’s first ordinance was reinstated.[21] As a result of this, and also for the reason that the church courts at that time offered greater assurance that a just judgment would be pronounced than did the civil courts, the episcopal courts were burdened with countless matters of every kind of dispute of the most private nature,[22] so that in the end it became necessary to regulate by law the competence, in such matters, of the church court and the civil court. Leaving to this latter court, in general, all civil disputes, matters of faith, of the holy mysteries and of Christian morals were assigned to the competence of the church court. This was done and finally settled under the Emperor Alexios Komnenos, who by a novel of the year 1086 ordained that all matters touching the soul, and likewise all matrimonial matters, must be subject to episcopal judgment and decision.[23] This novel became, from that time, the governing rule for the relations between the church courts and the civil courts as regards their competence.[24] Besides these matters, the Church was, from the most ancient times and throughout all the following ages, recognized as having the right to hold under her protection all charitable institutions, orphans, widows, and in general all those who were without protection.[25] But even though certain disputed matters were placed outside the competence of the church courts, the oversight of the episcopate over the conduct of judges in the civil courts was not thereby taken away, and every bishop, if some secular judge seemed to him suspect for any reason, had the right to take any disputed matter before his own court.[26] This influence of the church authority upon judicature in general, and especially the Church’s protection of everyone who unjustly fell under a secular court, is seen particularly in the so-called right of sanctuary (jus asyli). By this right, it was enough for anyone pursued by the secular courts to set foot within the enclosure of the church, and thereafter no one might pursue him until the matter in question had been properly resolved.[27] This right of the Church to protect the persecuted was recognized by all the Greco-Roman emperors, with greater or lesser restrictions,[28] and whoever forcibly seized someone from church sanctuary was punished with lifelong banishment.[29] The same right held good for the Church of Hagia Sophia in Constantinople still in the mid-fourteenth century.[30]

As a result of the bond which, in the course of the centuries, became ever closer between the church and state authorities in the Byzantine empire, the boundaries of competence between the church courts and the secular courts became increasingly hard to distinguish. In all matters, whether ecclesiastical or civil, both the church authority and the civil authority took part to a greater or lesser degree: the one influenced the affairs of the other, without this giving rise to any conflict. During the period of Latin domination in Constantinople, the legal sciences among the laity fell almost entirely into neglect, and as a result the civil judiciary fell from its former eminent position, whereas among the clergy everything remained as before, and the church courts maintained their former standing. This circumstance contributed to a broad expansion of the jurisdiction of the church councils, and at those councils—that is, at the higher and lower church courts—there were adjudicated, besides church matters, not only matrimonial affairs and the property side of matrimonial questions, but also questions of inheritance, of property rights, and in general everything that today falls within the competence of civil jurisdiction. And since the old rule always remained in force that it was left to everyone’s choice, in disputed matters, to have recourse either to the civil or to the church court, the state authority accordingly had no grounds to prevent the church courts from developing that activity which they actually did develop in the last period of the existence of the Byzantine empire. When Mehmed II, after the conquest of Constantinople, recognized to the Greek hierarchy those privileges in judicial matters among Christians which it enjoys even today, he thereby only confirmed to the hierarchy what it had already possessed under the last Byzantine emperors.[31]

II. Today, apart from the four Eastern patriarchates, in all the other autocephalous local Orthodox churches, general disputed matters, both of laymen and of clergy, are judged by the civil courts. In view of the advancement of the legal sciences in general, and in particular the good ordering of the civil courts in the Christian states concerned, and consequently the assurance that strict justice is administered in those courts, the Orthodox Church has, without opposition, renounced her former privileges in this regard, and has in fact recognized, for her own domain as well, the jurisdiction of the civil courts for disputed matters.

By present-day law, the church court is competent to judge clergy for offences in the performance of the sacred rites and for bad and unbecoming conduct, then in disputes arising over the enjoyment of church or monastic property and over parish income, and finally in matters arising from insults offered. If, in the course of investigating and adjudicating clerical offences, it is observed that the offence is combined with a crime, the church courts hand the matter over to the civil courts for further judgment.[32] In everything else, clergy fall under the civil court; except that in these cases, when a cleric comes under the civil court, that court, before subjecting the accused to examination, notifies the church authority of this and of the nature of the charge to which that person is subject, and this so that the same church authority may appoint another cleric to perform the sacred rites; and when judgment is pronounced, the civil court communicates that judgment to the church authority, so that this authority may, in such a case, give the appropriate order concerning the sentenced cleric, in accordance with the relevant church laws.[33] As regards laymen, the church court is competent in matters touching marriage, namely: 1) unlawfully contracted marriages, 2) the dissolution and divorce of marriage, and 3) the validity of marriage.[34] Questions of the enjoyment of property arising from matrimonial suits fall within the competence of the civil courts.[35]