The Clergyman"s Hand-book of Law.
by Charles M. Scanlan.
PREFACE
The three learned professions, medicine, law, and theology, overlap; and a man who does not know something of the other two can not be prominent in his own. Laws relating to Church matters are scattered through such a vast array of law books that it would be a burden for a clergyman to purchase them, and without special training he would not know where to look for the law. Therefore a law compendium covering those subjects relating to Church matters must be of great value to a clergyman.
There is another view of this subject. When she was mistress of the world the laws of the Roman Empire were for the Roman citizens, particularly the patricians; the canon law was the law of the Christian people of conquered countries and the Christian plebeians of Rome. In the United States we have the same common law for the President and the hod-carrier, for the multimillionaire and the penniless orphan, for the clergy and the laity.
Consequently, in this practical age a knowledge of the law of the country with which the clergy come constantly in contact is expedient, if not necessary.
The poet says:
"What const.i.tutes a state?...
Men, who their duties know, But know their rights, and knowing, dare maintain."
To insure harmony and good order, every Church should obey the laws of the country; but if any law should impose upon the rights of the Church in any way, the ruling authorities, the cardinal and bishops, if the wrong is national, should unite in a pet.i.tion to the United States Congress, clearly stating the grievance and asking for its redress.(1) If the grievance should be within a State, the bishop or bishops of the State should present the matter to the Legislature of the State. If the President or the Governor has authority to remedy the matter, go direct to him. Such was the practice of the wisest of the Popes.(2) The author never knew of an instance in which a clergyman having a real grievance failed in obtaining a full and fair hearing from the powers that be, from the President downward. This method seems to be more in harmony with the relations of Church and State in a free government, and more intelligent than to have a convention of working men, who have little time to make a study of Church matters, pa.s.s resolutions, the pa.s.sing of which generally ends the action of a convention.
In the chapters that follow, the author has refrained from giving a great mult.i.tude of authorities, but has endeavored to give such as are sufficient to sustain the text. For example, under the first section, and many others, a list of citations covering several pages might be given.
That would add to the expense of the volume and would not be within its compa.s.s. The book will better fulfil its purpose by clear, brief statements of the rules of law, and if a reader desires to investigate further, the citations given will guide his way.
CHARLES M. SCANLAN.
MILWAUKEE, JANUARY 23, 1909.
CHAPTER I. INTRODUCTION
*1.* _Law, Religion._-From the dawn of the science of law it has been influenced by religion or antagonism to religion. This is very evident in the ancient laws of Babylonia, Egypt, Phenicia, Israel, India, and Ireland. It would be impossible to make a study of the law of any of said countries without gaining a knowledge of its religious system, whether pagan or otherwise.(3)
*2.* _Religions._-Ancient nations might be cla.s.sified into pagan and those that worshiped the universal G.o.d. However, some of the nations at one time were pagan and at other times had a fair conception of the supernatural.
Also, in Egypt, the cla.s.s of higher culture and education believed in the one omnipotent and omniscient Being, but the populace, who could be controlled more readily by flattering them in their notions and giving their childish conceptions full sway, worshiped idols.(4)
*3.* _Authority, Right._-In those nations where the ruling authority had the proper conception of the Almighty, there was a strong, persistent growth of law upon the basis of natural right; while in the pagan nations laws were arbitrary and despotic.(5)
*4.* _Philosophical Foundations._-The laws of Greece, down to the time of Plato, were thoroughly pagan. But, following the philosophical foundations laid by Plato and Aristotle, unintentionally and unwittingly the laws of Greece became imbued with the spirit of natural law.(6)
*5.* _Rome, Natural Justice._-Prior to the introduction of Grecian law into Rome, the laws of that nation were pagan. Grecian law from its introduction to the time of Octavius was the civilizing element of the empire. Then it took a turn for the worse, the element of natural justice being reduced and the element of arbitrary rule becoming dominant.(7)
*6.* _Canon Law._-We will now turn to the first period of canon law, which covers the early history of the Church up to the reign of Constantine the Great.(8)
Canon law is composed of the following elements:
1. Holy Scriptures; 2. Ecclesiastical tradition; 3. Decrees of Councils; 4. Bulls and rescripts of Popes; 5. The writings of the Fathers; 6. Civil law.(9)
*7.* _Early Christians._-Owing to the persecutions, the early Christians were, in a sense, isolated from the State; they held their property in common, and were governed in matters among themselves by the canon law.
However, for want of freedom of discussion and publication, they were unable, even within a single nation of the empire, to promulgate a system of canon law. The foundation of canon law being laid, its development upon the manumission of the Church was rapid.(10)
*8.* _Persecutions, Defenses._-During the religious persecutions the Christians almost had law forced into them by surgical operations. The necessity for their making defenses in the Roman tribunals induced many of them to give Roman law a careful study. Also, the great number of Christians held for trial on all sorts of accusations made that branch of the law of the realm very lucrative for lawyers, and called into the field many Christians. Incidently, men studying for the priesthood made a study of Roman law with a view to avoiding its machinations and continuing their functions as clergymen without being caught in the net of persecution.(11)
*9.* _Constantine, Blending the Law._-When Emperor Constantine became a Christian (325 A.D.), there was a great change, and the members of the bar and judges were mostly Christians. It then became necessary for students of law to study the principles of divine right as taught in the Church, and while the books of the civil law were read by students for the priesthood, the Scriptures and the works of the Fathers were read by the students in law, thus blending the law of the two realms to some extent.(12)
*10.* _"__Benefit of the Clergy,__"__ Ecclesiastical Court._-As the old Roman Empire decayed and its power waned, the new one, "The Holy Roman Empire," gradually implanted itself in southwestern Europe. The humiliation that the divine law and the clergy suffered in being brought into the common courts gave rise to a system of courts within the Church for the purpose of enforcing her morals, doctrines, and discipline. Those courts were established in all Christian countries and had jurisdiction of all felonies excepting arson, treason, and a few other crimes that from time to time were put under the special jurisdiction of the state courts.
Whenever a clergyman was arrested for a crime, he pleaded the "benefit of the clergy," and his case was transferred from the state court to the ecclesiastical court. Also, when a clergyman was convicted in the state court of any crime for which the punishment was death, he could plead the "benefit of the clergy," which was a protection against his execution.(13)
*11.* _Estates, Guardianship._-Besides the jurisdiction already referred to, the ecclesiastical court had jurisdiction over the settlement of estates and the guardianship of children, which varied in different countries and was very indefinite in some of them.(14)
*12.* _Middle Ages, Common Law._-During the Middle Ages there was a constant effort on behalf of the ecclesiastical courts to extend their jurisdiction, and a counter-effort on behalf of the state courts to a.s.sume jurisdiction of cases under the ecclesiastical law. In England, from the conquest of William the Conqueror to the Reformation, the extension of the jurisdiction of the ecclesiastical courts brought the new element of English common law into the canon law; and much of the canon law, following the jurisdiction a.s.sumed by the state courts, became the common law of the kingdom of England.(15)
*13.* _Gratian, Reformation._-The canon law reached its full development in the twelfth century, when Gratian, the Blackstone of his age, compiled the system, but it subsequently lost its influence when the Reformation prevailed.(16)
*14.* _Bologna._-The great school of jurisprudence, both of canon and civil law, was located at Bologna, Italy, which reached its zenith in the thirteenth century. To it students flocked from Western Europe, and from it were obtained the professors of law in the universities of England and other countries.(17)
*15.* _Church and State._-In most of the Christian countries, the Church and State were united, and many of the judges in the civil courts were clergymen.(18)
*16.* _England, Roman Law._-On account of England"s being subject to Rome in its earliest age, and afterward because of its being conquered by France, the Roman law was pretty thoroughly intermixed with the native English law in the minor matters of the people, and governed in the more important ones.(19)
*17.* _America, English Law, Civil Law._-The portions of America that were settled by the English, which included the original thirteen colonies, were under the English law. In Virginia the Episcopal Church, which was then the church of England, was made the church of state. Canada and that portion of the United States formerly known as Louisiana were governed by the civil law of France. Wherever the French government had no authority or civil officers, the government was directly under the missionaries of the Church.(20)
*18.* _Religious Tolerance, Established Church._-The English law and English ideals prevailing in the original thirteen colonies,(21) there was a strong effort made by many of the delegates to the const.i.tutional convention to have the Episcopal Church made the established church of the new republic. Thomas Jefferson and James Madison were probably the strongest opponents of the scheme, and outside of the great Carroll of Carrollton, they were the most earnest advocates of religious tolerance.
The necessity for the fathers of this republic to be united, and their being unable to unite upon any church, caused the idea of an established church to be eliminated. Thus was established in our republic the freedom of conscience and the guarantee that no one shall be persecuted on account of his religious convictions.(22)
*19.* _Tribunals._-The ecclesiastical courts as a part of the state system and the "benefit of the clergy," have been abolished in England and America. However, as we shall see further on, tribunals in the nature of the ecclesiastical court exist in churches and fraternities of all kinds in the United States.(23)
CHAPTER II. WHAT IS A CHURCH?
*20.* _Church, Religious Society._-Bouvier"s definition of "Church" is: "A society of persons who profess the Christian religion." Chief Justice Shaw"s definition is: "The church is neither a corporation nor a quasi-corporation, but a body of persons a.s.sociated together for certain objects under the law. An aggregate body of individuals a.s.sociated together in connection with a religious society. The term religious society may with propriety be applied in a certain sense to a church as that of religious a.s.sociation, religious union, or the like; yet in the sense church was and is used in our law, it is synonymous with parish or precinct and designates an incorporated society created and maintained for the support and maintenance of public worship. In this, its legal sense, a church is not a religious society. It is a separate body formed within such parish or religious society whose rights and usages are well known and to a great extent defined and established by law."(24)
*21.* _Doctrine, Const.i.tution._-A church in law is a mere fraternal organization. It may or may not have a written const.i.tution, but it must have some central doctrine as its foundation or const.i.tution.(25) Many of the Protestant denominations claim that the entire Bible is their const.i.tution. The Jews may be said to consider the Old Testament as their const.i.tution. All revealed truths may be said to be the const.i.tution of the Catholic Church,(26) and when a doctrine concerning faith or morals is authoritatively declared by the Church to be a truth, it becomes a dogma.(27) The Apostles" Creed is an example of several dogmatic truths.
The code of the Church is the Ten Commandments. A few sects, by a majority vote, make and change their const.i.tutions at will.
*22.* _By-Laws._-By-laws of the different religious organizations differ widely, from the decrees of the great councils of the Catholic Church down to the vote of the congregation of an independent denomination.
*23.* _Church, Religious Society._-A church in one sense is more limited than a religious society; the latter comprehending all the members of the same faith. Even in the Catholic Church we hear of the Church of France, the Coptic Church, etc., spoken of in this sense. And in a still more limited sense we use the word as a synonym for parish. However, when the word "the" is used before church written with a capital letter, Catholics understand it to apply to the Roman Catholic Church in its entirety, while some non-Catholics apply it to Christendom.