Limitations on Ecclesiastical Jurisdiction

Prior to the late eleventh century ecclesiastical jurisdiction -- in the broad sense of legislative and administrative as well as judicial competence-lacked precise boundaries. There was considerable overlapping between the competence of ecclesiastical authorities and that of secular authorities.

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and dominated___ and often overruled____ popes, bishops, and priests. It was the Papal Revolution,

with its liberation of the clergy from the laity and its emphasis upon the separation of the spiritual from the secular, that made it both necessary and possible to place more or less clear limits upon, and hence to systematize, ecclesiastical jurisdiction.

Characteristically -- and here legal science elucidated the positive law -- such jurisdiction was said to be divided into two types: jurisdiction over certain kinds of persons (ratione personanim, "by reason of persons") and jurisdiction over certain kinds of conduct or relationships (ratione materiae, "by reason of subject matter"). The church claimed "personal jurisdiction" over: (1) clergy and members of their households; (2) students; (3) crusaders; (4) personae miserabiles ("wretched persons"), including poor people, widows, and orphans; (5) Jews, in cases against Christians; and (6) travelers, including merchants and sailors, when necessary for their peace and safety.

Clergy were forbidden by canon law to waive the privilege of ecclesiastical jurisdiction; however, in practice they were subjected to secular justice in certain types of crimes and certain types of civil actions. There were also some recognized exceptions to ecclesiastical jurisdiction over crusaders and over students; and they could waive such jurisdiction if they wished. Personae miserabiles, who prior to the Papal Revolution had been treated primarily as wards of emperors and kings, were thereafter subject also to ecclesiastical jurisdiction, principally in cases where the secular authorities did not offer adequate protection to them. The same was true with regard to Jews and travelers (including merchants and sailors): the church did not attempt to eliminate but only to supplement imperial or royal jurisdiction over them.

The personal jurisdiction of the church extended, in principle, to all types of cases in which these six classes of persons were involved, although the principle sometimes yielded to the competing interests of the secular authorities. The "subject-matter jurisdiction" of the church, by contrast, extended in principle to all classes of persons, laymen as well as clerics, in certain types of cases, although -- again -- there were qualifications and exceptions. The principal types of cases over which the church claimed jurisdiction were so-called spiritual cases and cases connected to spiritual cases. Spiritual cases were chiefly those arising out of: (1) administration of the sacraments; (2) testaments; (3) benefices, including administration of church property, patronage of church offices, and ecclesiastical taxation in the form of tithes; (4) oaths, including pledges of faith; and (5) sins meriting ecclesiastical censures. It was on this jurisdictional foundation that legal science in the twelfth century began to

222- develop various branches of substantive law, including family law (on the foundation of jurisdiction over the sacrament of marriage), the law of inheritance (on the foundation of jurisdiction over testaments), property law (on the foundation of jurisdiction over benefices), contract law (on the foundation of jurisdiction over pledges of faith), and criminal and tort law (on the foundation of jurisdiction over sins). Presupposed was the jurisdiction of the church over its own jurisdiction; on this basis it constructed the body of corporation law.

The church also extended its jurisdiction to other kinds of causes by offering it to all who wished to choose it. This was done through a procedure called prorogation, whereby parties to any civil dispute could, by agreement, submit the dispute to an ecclesiastical court or to ecclesiastical arbitration. Such an agreement might take the form of a clause in a contract renouncing in advance the jurisdiction of a secular court and providing for recourse to an ecclesiastical court or to ecclesiastical arbitration in the event of a future dispute arising out of the contract. Because of the primitive character of most secular procedure in the twelfth and thirteenth centuries, parties to civil contracts often wrote in such renunciation clauses.

In addition, according to canon law any person could bring suit in an ecclesiastical court, or could remove a case from a secular court to an ecclesiastical court, even against the will of the other party, on the ground of "default of secular justice." Thus the church ultimately offered its jurisdiction and its law to anyone and for any type of case, but only under exceptional circumstances, that is, when justice itself, in the most elementary sense, was at stake. It was understood that normally there were two distinct kinds of jurisdiction, the ecclesiastical (spiritual) and the nonecclesiastical (secular). Indeed, if all questions had fallen normally within the ecclesiastical jurisdiction, it would have been meaningless to speak of jurisdiction: there would have been nothing with which to contrast it. Even if just all legal questions had fallen within the ecclesiastical -- or any other single -- jurisdiction, it would only have been meaningful to speak of competence (what is and what is not subject to legal regulation), and not of any other aspect of jurisdiction. It was the conscious restriction of ecclesiastical jurisdiction, and therefore of nonecclesiastical jurisdiction as well, to certain classes of persons and certain types of cases that made it both necessary and possible to define jurisdiction and to give it its place as a basic structural element of the system of canon law.

It was, in fact, the limitations placed upon the jurisdiction of each of the polities of Western Christendom, including the ecclesiastical polity, that made it both necessary and possible for each to develop not only laws but also a system of laws, and more than that, a system of law. A ruler whose jurisdiction is unlimited may rule by laws, but he is not

-223- likely to have either the will or the imagination to bring his laws into a coherent, integrated intellectual system, with a complex structure of principles, including principles for regulating the application of principles to specific kinds of cases. In the West, the competition and cooperation of rival limited jurisdictions not only required each to systematize its law but also gave each a basis for doing so. That basis was provided in part by the overarching dialectical unity that held all the individual systems together, however loosely, and in part by the distinct interests and resources of each community having such a system.

Competition and cooperation between rival limited jurisdictions not only made necessary and possible the systematization of law but also led to the legal formulation and resolution of some of the most acute political and moral problems of the time. The tendency to convert political and moral questions into legal questions, which Alexis de Toqueville perceived to be characteristic of America in the early nineteenth century, existed, albeit to a lesser degree, in Western society as a whole after the late eleventh and the twelfth centuries. This has contributed to the excessive legalism of the West, compared with many other civilizations; it has also contributed to its relative success in achieving freedom from political and moral tyranny.

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