§ 146. a) Church-Judicial Procedure in Its Various Changes

Church-judicial procedure passed through several changes before it acquired its present form. Given the position of the Church in the Roman state in the first Christian centuries, it was not possible even to conceive of any formal judicial procedure in disputes among Christians, or in respect of offences in which one of them might be found. The Apostle Paul, as we have seen, reproves the Corinthian Christians for having recourse to heathen courts when they have some dispute among themselves; the Apostolic Constitutions mention this same thing.[1] In view of this, all disputes that arose among Christians, whether clergy or laity, whether those disputes concerned church matters or private ones, were argued by the Christians themselves in whatever manner then seemed best to them, provided only that the truth be established as fully as possible, and a just judgment rendered.

In the canonical sources of the first centuries there is mention, for church matters concerning internal church relations, of the episcopal court, which, as independent and re[…]

pronounced judgment.[2] As can be seen, general legal principles are contained, in the main, in this procedure, and in this it somewhat resembles the Roman judicial procedure existing at that time; but of those formalities which were prescribed for the latter, there is in it almost none.[3]

When the Church entered into a bond with the state, circumstances also changed with regard to judicial procedure in the church courts. It was understood that the then-patriarchal manner of arguing judicial matters merely by moral rules could not satisfy all legal requirements, especially in such disputes as concerned entire churches. Such a court, however just it might be in itself, was nevertheless only a subjective court, having no other guarantee of its fairness than the honesty and skill of those persons who directly took part in it. In view of this, the need arose to establish the church court, too, upon fundamental legal principles with corresponding rational formalities, so that the court’s complete objectivity might be guaranteed. Having entered into a bond with the state, the Church accepted and recognized as authoritative for herself all those legal institutions of the state which concerned good social order and were not contrary to the spirit of Christianity. Finding among these institutions that judicial procedure in the civil courts corresponded to the principles of justice, and that it could of itself ensure the objectivity of judicature, church legislation did not consider it necessary to prescribe for her courts any judicial procedure different from that which existed in the secular courts; rather, having established the main conditions for church judicature in general, she left it to church judges to conduct themselves in court according to the norms that prevailed in the state, and thereby the Church adopted for her own practice the existing Roman judicial procedure, with only those modifications required by the nature of the matters which the church courts argued and judged.

On this subject much has also been written,[4] and therefore, since this does not directly pertain to our science, we do not consider it necessary to go into a description of this Roman judicial procedure. It is enough for us to know that this procedure was, in the main, adopted by the Church; and proof of this is furnished us by the practice of the church court, both at the ecumenical and local councils and in the later period of the Middle Ages.[5] We shall confine ourselves to the general prescriptions in this regard which the canonical sources present to us.

There existed two kinds of suits that were conducted in the secular courts: some that arose from a corresponding complaint which someone brought, and others which the court itself initiated on its own motion. In the former, the principal actor is the plaintiff himself, who is bound to state the grounds of his charge, to produce the necessary evidence, to convince the judges of the justice of the charge, and to answer for the consequences of an unjustified or unproven suit. The accused party must counteract the attack, refute the charge, and produce evidence to demonstrate his innocence. The court in such a suit occupies a more passive position: it hears the evidence and counter-evidence of one side and the other, and pronounces its judgment on the basis of the grounds put forward. In the other, inquisitorial suits, the principal actor is the court itself, which of its own motion raises the case and, availing itself of all the means at its disposal, takes care to gather as much information as possible in order to ascertain the truth of the matter in question. For this reason the chief thing here is the investigation, that is, the thorough inquiry by the court into everything touching the case. The plaintiff is here superfluous, and the court itself takes the plaintiff’s place, employing of itself such measures as will satisfy justice.

Of these two kinds of suits, it is chiefly the first that is reflected in the canons—that is, the one set in motion by the corresponding complaint of a particular person. This is seen from all those particulars which the canons mention with regard to the persons who may be accepted as plaintiffs, what their duties are, how they must support their complaint, what responsibility rests upon them if it is proven that they wished only to slander, and so forth. But just as the investigative side had great significance in the Roman secular court, it had to have that same, and even greater, significance in the church court. The church authority is bound to oversee both the official conduct of the clergy and their life and behaviour. Accordingly, she must have the right, of herself, without needing any plaintiffs, to institute a judicial investigation against any clergyman whom she learns to have transgressed the existing laws. For this reason the canons do not separate the accusatorial side from the investigative side in the church court, but take them together, and recognize in the church authority the right, and indeed the duty, to judge not only what is brought to her attention by some complaint, but also, without a complaint, of herself to subject offenders against the law to her judgment. Indeed, the church court cannot exist without an investigative side, even though it may have begun to argue and judge some matter only as a result of some complaint; nor can the church court hold itself merely passively between disputing parties, as may be the case in the secular court. In every dispute, even one of the most private character, the church court must, insofar as it must have regard to satisfying the party wronged or injured according to law, have regard still more to the Christian law, and must therefore seek, alongside the former, that the offended Christian principle also be satisfied.[6]

Besides this, with regard to the church court in general, and having regard to the prescriptions of Roman law on judicial procedure which the Church adopted, particular attention is paid in the canons to the persons who act before the church court in general, namely the plaintiff, the defendant, the advocate, and the witnesses.

1. As regards the plaintiff, the canons make a distinction between church matters and civil matters that may be the subject of judicial argument. In church matters, only one who is Orthodox and who enjoys a good name in society,[7] may bring a complaint against a clergyman, and consequently cannot be a plaintiff one who is not Orthodox,[8] who is under trial or has been convicted,[9] who does not enjoy a good name in society,[10] who has once brought a complaint against someone and had that complaint rejected,[11] and in general none of those whom the secular courts do not accept as plaintiffs.[12] A complaint must be public; a secret complaint is not accepted even from a bishop.[13] In matters of a private character it is otherwise, and in such matters a complaint is accepted from anyone.[14] Besides these canonical prescriptions regarding the person of the plaintiff, the canons further ordain that he must bring the suit he has begun to a conclusion and, at the court’s request, produce all such evidence as can support his complaint; and for this reason, should he hide himself during the suit, or wilfully refuse to answer the summonses of the court, the accused is then freed from all the consequences of the complaint, and the plaintiff is subjected to the deserved penalty.[15] In case the place where the suit was begun does not offer the plaintiff assurance that the court will be free from external influences, and because of family or other such ties of the accused with the witnesses there is no confidence that the latter will testify truthfully, he has the right to demand that the suit be transferred to some other nearby place where those external influences cannot affect the proper course of the suit.[16] Having lodged the complaint concerned, the plaintiff is bound to state precisely of what he accuses the person concerned and to name two or three witnesses who will prove the well-foundedness of his complaint.[17] Finally, if it becomes known during the suit that the plaintiff himself is under some accusation, his complaint is then rejected altogether, except in a case that concerns a private matter.[15]

2. The accused is bound to appear at the court on the day for which he received his summons; if he does not appear, he is subject to penalty, unless he produces a justified reason why he did not appear. For[…]

those who have testified in the same disputed matter before a lower court, and in general anyone to whom the civil laws deny that right.[18] The testimony of a single person alone, however esteemed he may be, is not accepted.[19]

With the preservation of the church-legislative prescriptions now set forth, in everything else the judicial procedure of Greco-Roman law held good in the church courts, and this down to the most recent times of the Greek Church.