User:CanonLawJunkie/Competence (canon law)

In the canon law of the Catholic Church, competence is the legal authority to deal with the matter in question, whether of a legislative, executive, or judicial nature. The phrase "competent authority" is frequently used in the 1983 Code of Canon Law but is not usually specified. An authority may be competent because of their office, or because of delegated power, or because of the person subject to them in the matter (personal/territorial), or because of the subject matter itself (material). Different authorities are competent at different levels of ecclesiastical hierarchy. Incompetence is the lack of authority over a given matter.

The Roman Pontiff, and the College of Bishops in communion with its head—the pope—are subjects of "supreme authority" in the church, meaning that the pope alone, or the college of bishops acting in communion with the pope, is competent in all areas of ecclesiastical law, be it legislative, executive, or judicial power of governance.

Concept of competence

Competency is the specific and objective capacity possessed by each agency of jurisdiction (office holder, tribunal, dicastery) and the extent of the power of governance which each is allowed to exercise in practice.

Theological foundations

Main articles: Philosophy, theology, and fundamental theory of canon law and Catholic ecclesiology

The Church founded by Christ for the salvation of men needs, like every society, a regulating power (the authority of the Church). The Decree "Lamentabili sane", of 3 July 1907, rejects the doctrine that Christ did not desire to found a permanent, unchangeable Church endowed with authority. In the Catholic theology of canon law, Christ gave the church a share in his sacred power, in the offices (munera) of teaching (munus docendi), sanctifying (munus sanctificandi), and governing (munus regendi). This share in the office of governing is called the "power of governance" (under the 1917 Code of Canon Law, it was called the "power of jurisdiction"). The power of governance is further distinguished by the legislative, executive, and judicial powers of governance.

It is customary to speak of a threefold office of the Church: the office of teaching (prophetic office), the priestly office (sanctifying office) and the pastoral office (governing office), and therefore of the threefold authority of the Church: the teaching authority, sanctifying authority and ruling authority. Since the teaching of the Church is authoritative, the teaching authority was traditionally included in the ruling authority; then only the ministerial authority and the ruling authority were distinguished. Since the Second Vatican Council and the 1983 Code of Canon Law, the teaching, sanctifying, and ruling authorities are each considered distinguished offices, and yet they are ultimately united in the one sacred power (sacra potestas) given to the church by Christ.

General concept and classification

By ministerial authority, which is conferred by an act of consecration, is meant the inward, and because of its indelible character permanent, capacity to perform acts by which Divine grace is transmitted. By ruling authority, which is conferred by the Church (missio canonica, canonical mission), is understood the authority to guide and rule the Church of God. Jurisdiction, insofar as it covers the relations of man to God, is called jurisdiction of the internal forum or jurisdiction of the forum of Heaven (jurisdictio poli). (See Ecclesiastical Forum); this again is either sacramental or penitential, so far as it is used in the Sacrament of Penance, or extra-sacramental, e.g. in granting dispensations from private vows. Jurisdiction, insofar as it regulates external ecclesiastical relations, is called jurisdiction of the external forum, or briefly jurisdictio fori. This jurisdiction, the actual power of ruling is legislative, judicial or coactive. Jurisdiction can be possessed in varying degrees. It can also be held either for both fora, or for the internal forum only, e.g. by the parish priest.

Jurisdiction can be further sub-divided into ordinary, quasi-ordinary and delegated jurisdiction. Ordinary jurisdiction is that which is permanently bound, by Divine law or human law, with a permanent ecclesiastical office. Its possessor is called an ordinary judge. By Divine law the pope has such ordinary jurisdiction for the entire Church and a bishop for his diocese. By human law this jurisdiction is possessed by the cardinals, officials of the Roman Curia and the congregations of cardinals, the patriarchs, primates, metropolitans, archbishops, the praelati nullius and prelates with quasi-episcopal jurisdiction, the chapters of orders or the superior generals of orders, cathedral chapters in reference to their own affairs, the archdiaconate in the Middle Ages, and parish priests in the internal forum.

If however jurisdiction is permanently connected with an office, but the office itself is said to be quasi-ordinary, or jurisdictio vicaria. This form of jurisdiction is possessed, for example, by a vicar-general. Temporary exercise of ordinary and quasi-ordinary jurisdiction can be granted, in varying degrees, to another as representative, without conferring on him an office properly so called. In this transient form jurisdiction is called delegated or extraordinary, and concerning it canon law, following the Roman law, has developed exhaustive provisions. This development began when the popes, especially since Alexander III (1159–81), found themselves obliged, by the enormous mass of legal business which came to them from all sides as the "judices ordinarii omnium" to hand over, with proper instruction, a large number of cases to third parties for decision, especially in matters of contentious jurisdiction.

Jus vigens

• understanding @ Vatican II/1983 Code/1990 CCEO

Scope of ecclesiastical competence

Development of jurisdiction in the strict sense

The Catholic Church considers to have has the right, as a perfect and independent society provided with all the means for attaining its end, to decide according to its laws disputes arising concerning its internal affairs, especially as to the ecclesiastical rights of its members, also to carry out its decision, if necessary, by suitable means of compulsion, contentious or civil jurisdiction. This implies the right to admonish or warn its members, ecclesiastical or lay, who have not conformed to its laws, and if needful to punish them by physical means, that is, coercive jurisdiction.

The church has the power to judge sin, in the internal forum, but a sin can be at the same time externally a misdemeanour or a crime (delictum, crimen), when threatened with external ecclesiastical or civil punishment. The Church also judges ecclesiastical crimes in the external forum by infliction of penalties, except when the wrongdoing has remained secret. In this case it contents itself, as a rule, with penance voluntarily assumed.

A last distinction is to be drawn between necessary jurisdiction and voluntary jurisdiction; the latter contemplates voluntary subjection on the part of those who seek in legal matters the co-operation of ecclesiastical agencies, e.g. notarially executed instruments, testaments, etc. The judicial power described above, jurisdiction strictly so called, was given by Christ to His Church, was exercised by the Apostles, and transmitted to their successors (Matthew 18:15 sqq.; 1 Corinthians 4:21; 5:1 sqq.; 2 Corinthians 13:10; 1 Timothy 1:20; 5:19 sq.).

From the beginning of the Christian religion the ecclesiastical judge, i.e. the bishop, decided matters of dispute that were purely religious in character (causae mere ecclesiasticae). This jurisdiction of the Church was recognized by the civil (imperial) power when it became Christian. But long before this the early Christians, following the exhortation of Saint Paul (1 Corinthians 6:14), were wont to submit to ecclesiastical jurisdiction matters which by their nature belonged to the civil courts. As long as Christianity was not recognized by the State, it was left to the conscience of the individual whether he would conform to the decision of the bishop or not. Once Christianity had received civil recognition, Constantine the Great raised the former private usage to a public law. According to an imperial constitution of the year 321, the parties in dispute could, by mutual agreement, bring the matter before the bishop even when it was already pending before a civil judge, and the latter was obliged to put into effect the decision of the bishop. A further constitution of 331 provided that in any stage of the suit any one of the parties could appeal to the bishop even against the will of the others But Arcadius in 398, and Honorius in 408, limited the judicial competence of the bishop to those cases in which both parties applied to him. This arbitral jurisdiction of the bishop was not recognized in the new Teutonic kingdoms. In the Frankish kingdoms, purely ecclesiastical matters of dispute belonged to the jurisdiction of the bishop, but mixed cases, in which civil interests appeared, e.g. marriage questions, lawsuits concerning Church property etc., belonged to the civil courts.

In the Middle Ages the Church succeeded in extending its jurisdiction over all matters that offered an ecclesiastical interest (causae spiritualibus annexae), all litigation concerning marriages; matters concerning burial; testaments; compacts ratified with an oath; matters pertaining to benefices; questions of patronage; litigation concerning church property and tithes. In addition, all civil litigation in which the element of sin was in question (ratio peccati) could be summoned before an ecclesiastical court.

Also the ecclesiastical court had jurisdiction over the affairs of ecclesiastics, monks and nuns, the poor, widows and orphans (personae miserabiles, the needy) and those persons to whom the civil judge refused legal redress. This far-reaching civil jurisdiction of the Church eventually overlapped the natural boundaries of Church and State. A reaction against this condition of affairs arose in England as early as the twelfth century, spread to France and Germany and gained in influence and justification the more the administration of justice by the State improved. At the end of the long vicissitudinous struggle, the Church lost its jurisdiction in res spiritualibus annexal, notwithstanding the claims of the Council of Trent, also the privilege of the clergy, and finally jurisdiction in matrimonial causes as far as their civil character was concerned.

In regard to ecclesiastical jurisdiction in criminal matters, the Church exercised jurisdiction at first only in purely ecclesiastical offences, and inflicted only ecclesiastical punishments, e.g. excommunication, and in the case of clerics deposition. The observance of these penalties had to be left to the conscience of the individual, but with the formal recognition of the Church by the State and the increase of ecclesiastical penalties proportioned to the increase of ecclesiastical offences, came an appeal from the Church to the secular arm for aid in enforcing the said penalties, which aid was always willingly granted. Some offence, especially deviations from the Catholic Faith, were by the State made punishable in civil law and secular penalties were attached to them, also to certain disciplinary misdemeanours of ecclesiastics. Conversely, the Church in the Middle Ages increased its penal jurisdiction in the civil domain by infliction of varied penalties, some of them purely secular in character.

Above all, by means of the privilegium fori it withdrew the so-called "criminous clerks" from the jurisdiction of the civil courts. Then it obtained for the court held by the bishop during his diocesan visitation (the send) not only the punishment of those civil misdemeanours which involved the element of sin and consequently affected both Church and State, but it also punished, and as such, purely civil offences. The penal jurisdiction of the medieval Church included, therefore, first the merely ecclesiastical offences, e.g. heresy, schism, apostasy etc.; then the merely civil offences; finally the mixed offences, e.g. sins of the flesh, sacrilege, blasphemy, (diabolical 'black') magic, perjury, usury etc.

In punishing offences of a purely ecclesiastical character the Church disposed unreservedly of the aid of the State for the execution of the penalty. When in the aforesaid send court held by the bishop during his visitation, it inflicted punishment on the civil offences of the laity, the penalty, as a rule, was enforced by the imperial count (Graf) who accompanied the bishop and represented the civil power. The principle prevailed later that an offence already punished by a secular judge was no longer punishable by the ecclesiastical judge.

When the send began to disappear, both ecclesiastical and secular judges were in general held equally competent for mixed offences. Prevention (previous adjudication of the case by one judge or the other) was decisive. If the matter were brought before the ecclesiastical judge he inflicted at the same time the civil penalty, not, however, corporal punishments such as the death penalty. If the accusation was brought before the secular judge, the civil penalty was inflicted by him and the action of the Church was limited to the imposition of a penance. The Church eventually lost by far the greater part of its criminal jurisdiction for the same reasons which, since the end of the Middle Ages, led to the loss of most of its contentious jurisdiction, and in the same manner. Moreover, from the fifteenth century on, the recursus ab abusu which first arose in France (appel comme d'abus), that is the appeal from an abuse of power by an ecclesiastical authority, did much to weaken and discredit ecclesiastical jurisdiction.

Scope of jurisdiction in a strict sense

Today the only objects of contentious ecclesiastical jurisdiction (in which, however, the State often takes part or interferes) are: questions of faith, the administration of the sacraments, particularly the contracting and maintenance of marriage, the holding of church services, the creation and modification of benefices, the appointment to and the vacation of ecclesiastical offices, the rights of beneficed ecclesiastics as such, the ecclesiastical rights and duties of patrons, the ecclesiastical rights and duties of religious, the administration of church property.

As to the criminal jurisdiction of the Church it now inflicts on the laity only ecclesiastical penalties, and solely for ecclesiastical offences. If ever civil consequences ensue, only the civil authority can take cognizance of them. As regards ecclesiastics, the power of the Church to punish their disciplinary offences and maladministration of their offices, is widely acknowledged by the State. Where Church and State are not separated, the State aids in investigating these offences, as well as in executing the canonically rendered decisions of the Church.

As to the civil offences of ecclesiastics, ecclesiastical jurisdiction carries with it no secular consequences, though the Church is free to punish such offences by ecclesiastical penalties. According to the Papal Bull "Apostolicae Sedis moderationi" (12 October 1869), those persons fall under the excommunication reserved to the pope speciali modo, who directly or indirectly hinder the exercise of ecclesiastical jurisdiction in the external forum or in the internal forum, as well as those who appeal from ecclesiastical to civil jurisdiction; finally every legislator or person in authority who directly or indirectly compels a judge to cite ecclesiastical persons before a civil tribunal. In various concordats with the civil power, the Church has more or less abandoned the privilegium fori of ecclesiastics.

Legislative competence

The pope is competent to legislate on all matters of Church governance at every level of competence in virtue of his universal primacy of jurisdiction. Other legislators and legislative bodies have limited competence, according to their sphere of activity in the Church.

Universal law

Pope and college of bishops in communion with its head

• Pope may delegate legislative competence, or reserve competence of lower hierarchs to himself.
• Patriarchs (???)

Particular law

• Territorial vs. personal
• Legislative competence of lower legislators may not be delegated.
• A lower legislator cannot contradict a higher legislator.
• Legislative competence of the episcopal conference

Proper law

• Personal particular law of religious institute made by general chapter

Executive competence

Dicasteries of the Roman Curia

• General executory decrees and instructions, based upon their grant of competence through Pastor Bonus or other special or universal law, based upon subject matter.
• For example, in the case of the ordination of a bishop, the Congregation for Divine Worship and the Discipline of the Sacraments is competent to issue an instruction on the rite of ordination itself, the Congregation for the Doctrine of the Faith is competent to rule on what constitutes the valid reception of the sacrament, and the Congregation for Bishops is competent to present a ternus of candidates to the pope, who then authorizes the ordination of the bishop. The three dicasteries are only competent within their sphere by subject matter, even though the ordination of a bishop is a single fact event.
• Favors: rescripts, indults, dispensations

Diocesan bishop

• Him alone, not VG & EV. Decrees of eretion of public juridic persons, decrees of appointment to offices. Everything that local ordinaries can do.

Local ordinary

• Diocesan bishop, vicar general, episcopal vicar. Not major superior or clerical religious institute of pontifical right (personal ordinary, not local). Singular administrative acts: precepts, singular executory decrees, dispensations, rescripts

Personal ordinary

• Military ordinary, Anglican ordinary, major superior of clerical religious institute of pontifical right

Religious institutes

Not "executive power of governance" per se unless clerical religious institute of pontifical right; similar principles.

Pastor (parochus)

• dispensation from penitential observances in an individual case to satisfy the scrupulous
• delegation of authority to witness marriages within his territory (habitual or case-by-case)

Confessor

• dispensation from matrimonial impediments in occult case

Judicial competence

Roman Pontiff

The Roman Pontiff is the supreme judge of the entire Catholic Church and so can judge any cause of any Catholic at any grade of the process, can reserve certain causes to himself, and can call certain causes to himself even if they have already been initiated at a lower grade. Since he is competent in all causes, the concept of "competence" doesn't apply to the pope per se. No one is competent to judge the pope, since according to the ancient maxim, "Prima sedes a nemine judicatur", that is "the First See is judged by no one". The Code of Canons of the Eastern Churches specifically states that the Roman Pontiff is judged by no one, a technical improvement over the language of both the 1917 and 1983 Codes for the Latin Church, since it is only the person of the pope who is supreme judge and therefore can be judged by no other authority on earth; the "Apostolic See" or "first see", since the term includes the various dicasteries of the Roman Curia, is sometimes subject to judgement, since the acts of such dicasteries, unless they have been approved specifically by the pope (in forma specifica), are subject to hierarchical recourse or appeal.

Competent forum

Below the level of the pope as supreme judge, there are various levels or "grades" of competent fora or tribunals. A cause can be brought before a tribunal based upon a title of competence.

In addition to his jurisdiction, which can be ordinary, quasi-ordinary, or delegated, the judge must also have certain physical and moral qualities. It is further necessary to have full use of his senses and understanding, and suitable legal knowledge; The judge must also have a good reputation, must not be excommunicated, suspended from office, or under an interdict Above all he must be impartial; a suspicion of partiality attaches to the judge who is personally interested in a case, or is related by blood within the fourth degree to one of the parties, or connected with one by marriage (c. xxxvi, cit.), or who lives in the same house, or dines at a common table, or is otherwise friendly, or on the other hand inimical, towards one of the parties (c. xxv, X, De off. jud. deleg., I, xxix), and he may be rejected (recusari, exceptio judicis suspecti) by the accused or by both parties as prejudiced (suspectus) If objection be raised against a judge on the ground of prejudice, which must be done in writing and if possible before the beginning of the action (c. xx, X, De sent. et re jud., II, xxvii), arbitrators are to pass on the objection (c. xxxix, X, De off. jud. deleg., I, xxix); if, however, objection be raised against the delegate of the bishop, the decision rests with the bishop (c. iv, X, De foro compet., II, ii) If the objection be declared well-founded, the judge transfers the case, with the concurrence of the party who brought the accusation, to another or to a higher judge (c. lxi, X, De appell., II, xxviii) If the judge lack the necessary qualifications, and this be known to the parties in the suit, the decision is invalid If, however, his unfitness be unknown to the parties, and he follow statute law, the Church supplements the deficiency, even if the judge have acted in bad faith.

Ecclesiastical jurisdiction is exercised over all baptized persons In order, however, that an ecclesiastical judge may be permitted to exercise de facto his judicial power he must also be competent, i.e. must be authorized to pass judgment on a given person in a given case Proceedings held before a judge without competence are null and void Those subject to the jurisdiction of a certain judge are said to be within the competence (competentia) of his court, or have their forum in him. The forum is either the free, voluntary choice of the parties (forum prorogatum), or it is defined by law (forum legale) But in criminal and matrimonial cases there is no forum prorogatum (c. ix, X, De in integr. restit., I, xli). Ecclesiastics can choose another judge only with the permission of the bishop, and in this case he must be an ecclesiastic (c. xii, xviii, X, De foro compet., II, ii) The legal forum (forum legale) is either ordinary, if the proper course of the regular courts is followed, or extraordinary, if, for legal reasons, a regular court is passed over Moreover, the forum legale is either general (commune), corresponding to the universally valid law, or special or privileged(speciale sive privilegiatum), resting on privilege, as in the case of ecclesiastics on account of the privilegium fori which they cannot renounce As the jurisdiction of a judge is generally limited to a defined locality, the forum commune is fixed by the domicile or quasi-domicile of the accused The axiom holds: Actor sequitur forum rei, the plaintiff goes to the court of the accused (c. v, viii, X, De foro compet., II, ii). Domicile (q.v.) is that place where one actually resides with the intention of always remaining there Quasi-domicile is determined by actual residence at the place and the intention to remain there at least the greater part of the year There is also a domicile by operation of law, legal or fictitious domicile (domicilium legale sive fictitium) Thus a wife is subject to the jurisdiction of the domicile of the husband, children to that of the parents, religious to that of the place where the monastery is situated, persons having no fixed abode to that of the present place of residence A process can be instituted at Rome against an ecclesiastic who is only accidentally there (c. xx, X, De foro compet., II, ii) Besides the forum domicilii, the usual one, there is also that of the object (forum rei sitae, where the thing is situated), i.e. complaint can be brought before the judge in whose district the controverted object is (c. iii, X, De foro compet., II, ii); the forum where the contract is made (forum contractus), i.e. the parties can bring action before the judge in whose district the disputed contract has been made (c. xcii, X, De foro compet., II, ii); that of the offence (forum delicti), within the jurisdiction where the offence was commited (c. xiv, X, De foro compet., II, ii). There is also a forum arising from the connection of matters (forum connexitatis sive continentiae causarum), if the matters in dispute are so interrelated that one cannot be decided without the other (c. i, X, De causa possess., II, xii); also the forum of a counterplea (forum reconventionis sive reaccusationis), i.e. in a criminal suit the defendant can, on his side, accuse the plaintiff in the court of the judge before whom he himself is to be tried (c. ii, X, De mut. petit., II, iv) If the judge himself wishes to bring an accusation the superior appoints the judge who is to hear it (c. i, c. xvi, Q. vi) The decision of an incompetent judge is valid if by common error (error communis) he is held to be competent In civil disputes the parties can entrust the decision to any desired arbiter (X, De transact., I, xxxvi; X, De arbitr., I, xliii).

If the judge render a defective decision appeal can be taken to the next higher judge This relation of the courts to one another and the successive course of appeals (gradus) is called succession of instances, and follows the order of superiority From the beginning the bishop, or his representative, the archdeacon, or the "official" (officialis), or the vicar-general, was the judge in first instance for all suits, contentious or criminal, which arose in the diocese or in the corresponding administrative dirstrict, so far as such suits were not withdrawn from his jurisdiction by the common law. The court of second instancewas originally the provincial synod, later the metropolitan [c. iii (Syn. of Nicaea, an. 325, c. v), iv (Syn. of Antioch, an. 341, c. xx), D. XVIII]. The court of the third instance was that of the pope. The court of the first instance for bishops was the provincial synod, the metropolitan, the exarch, or the patriarch; the court of second instance was that of the pope [c. xxxvi (Syn. of Sardica, an. 343, c. vii), c. II, Q. vi] Only the pope could be the judge of first instance for exarchs and patriarchs Since the Middle Ages the pope is the judge of first instance in all more important episcopal causes (causae maiores, graviores, difficiliores, arduae), the number and extent of which are in no way exactly definable, but to which above all belong the causae criminales graviores contra episcopos—-more serious criminal charges against bishops (c. i, X, De translat. episc., I, vii) Conformably to this the diocesan bishop or his representative (the vicar-general, or officialis, or some other diocesan authority) is now the judge of the court of first instance, so far as connom law has not withdrawn from him this jurisdiction (Council of Trent, Sess. XXIV, De ref., c. xx). If the see is vacant the vicar-capitular is judge of the court of first instance The judge of the second instance is the metropolitan (c. lxvi, X, De appell., II, xxviii) For archdioceses, as a rule, the judge of second instance is a neighbouring archbishop or bishop appointed by the Holy See (Concil. plenar. Baltimor., III, an. 1884, n. 316; Leo XIII, "Trans Oceanum", 18 April, 1897, n. 14) The same ordinance also applies to exempt bishoprics (Sacr. Congr. pro negot. eccles. extraord., 11 September, 1906) The court of the third instance is the Apostolic See, but in the causae maiores it is the court of first instance As, however, the pope is the judex ordinarius omnium, the ordinary ecclesiastical judge of all, ecclesiastical suits without exception can be brought or summoned before the papal forum as the court of first instance (Council of Trent, Sess. XXIV, De ref., c. xx; Vatic., Sess. III, De eccl., c. iii).

BOUIX, Tractatus de judiciis ecclesiasticis, I (Paris, 1885), 120 sqq.; REIFFENSTUEL, Jus canonicum universum (Paris, 1864-70), I, xxxii sqq.; II, i sqq.; DE ANGELIS, Praelectiones juris canonici (Rome, 1877-91), II, i sqq.; FERRARRIS, Bibliotecha canonica (Rome, 1885-99), s.v. Judex; LEGA, Praelectiones de judiciis ecclesiasticis, I (2nd ed., Rome, 1905), n. 38 sqq.; HERGENROTHER-HOLLWECK, Lehrbuch des katholischen Kirchenrechts (Freiburg im Br., 1905), 495 sqq.; LAURENTIUS, Institutiones juris ecclesiastici (2nd ed., Freiburg im Br., 1908), n. 310 sqq.; SAGMULLER, Lehrbuch des katholischen Kirchenrechts (2nd ed., Freiburg im Br., 1909), 749 sqq.

JOHANNES BAPTIST SAGMULLER.

Titles of competence

A title of competence gives the tribunal the authority to judge the cause as introduced.

Ratione gradus

The Roman Rota is the only tribunal competent in third instance matrimonial causes, with the sole exception of the so-called "Spanish Rota", which, because of an ancient privilege of the Holy See, is designated as a third instance tribunal for Spain. The Roman Rota is still competent, however, so an appeal from a Spanish 2nd instance matrimonial tribunal may be appealed to either the Roman Rota or to the Spanish Rota. For the rest of the world, only the Roman Rota is competent in to hear appeals in third instance matrimonial causes.

Incompetence

Absolute incompetence

• rationibus personarum, gradus, aut materiae

Relative incompetence

• personal/territorial. Sanation ipso jure.

Conflict of competence

Extension of competence

• Singular indult
• Stable entrustment

WIKI ARTICLE Ecclesiastical jurisdiction

History

Jurisdiction

The power of governance is the Jurisdiction is a word borrowed from the legal system which has acquired a wide extension in theology, wherein, for example, it is frequently used in contradistinction to order, to express the right to administer sacraments as something added onto the power to celebrate them. So it is used to express the territorial or other limits of ecclesiastical, executive or legislative authority. Here it is used as the authority by which judicial officers investigate and decide cases under Canon law.

Such authority in the minds of lay Roman lawyers who first used this word jurisdiction was essentially temporal in its origin and in its sphere. The Christian Church transferred the notion to the spiritual domain as part of the general idea of a Kingdom of God focusing on the spiritual side of man upon earth.

It was viewed as also ordained of God, who had dominion over his temporal estate. As the Church in the earliest ages had executive and legislative power in its own spiritual sphere, so also it had judicial officers, investigating and deciding cases. Before its union with the State, its power in this direction, as in others, was merely over the spirits of men. Coercive temporal authority over their bodies or estates could only be given by concession from the temporal ruler. Moreover, even spiritual authority over members of the Church, i.e. baptized persons, could not be exclusively claimed as a right by the Church tribunals, if the subject matter of the cause were purely temporal. On the other hand, it is clear that all the faithful were subject to these courts (when acting within their own sphere), and that, in the earliest times, no distinction was made in this respect between clergy and laity.

Delegation

Delegated jurisdiction rests either on a special authorization of the holders of ordinary jurisdiction (delegatio ab homine), or on a general law (delegatio a lege, a jure, a canone). Thus, the Council of Trent transferred a number of papal rights to the bishops "tanquam Apostolicae Sedis delegati", i.e. also as delegates of the Apostolic See, and "etiam tanquam Apostolicae Sedis delegati", i.e. also as delegates of the Apostolic See. In the first class of cases, bishops do not possess ordinary jurisdiction. The meaning of the second expression is disputed, but it is generally taken as purely cumulative. If the delegation applies to one or several designated cases only, it is special delegation; if it applies to an entire class of subjects, it is then general delegation or delegation for the universality of causes. Delegated jurisdiction for the total of a number of matters is known as delegatio mandata. Only those can be appointed delegates who are competent to execute the delegation. For an act of consecration the delegate must have himself the necessary sacred orders. For acts of jurisdiction he must be an ecclesiastic, though the pope could also delegate a layman. Papal delegation is usually conferred only on ecclesiastical dignitaries or canons. The delegate must be twenty years old, but eighteen years suffices for one appointed by the pope. He must also be free from excommunication. Those placed under the jurisdiction of the delegator must submit to the delegation. Delegation for one matter can also be conferred upon several. The distinction to be made is whether they have to act jointly and severally (collegiately), jointly but individually (solidarily), or solidarily at least in some given case. The delegate is to follow exactly his instructions, but is empowered to do all that is necessary to execute them. If he exceed his power, his act is null.

When necessary the delegate can himself delegate, i.e. subdelegate, a qualified person; he can do this especially if he is a papal delegate, or if he has received permission, or if he has been delegated for a number of cases. Since delegation constitutes a new court, appeal can be taken from the delegate to the delegator, and in the case of subdelegation to the original delegator. Delegated jurisdiction expires on the death of the delegate, in case the commission were not issued in view of the permanence of his office, on the loss of office or the death of the delegator, in case the delegate has not acted (re adhuc integra, the matter being still intact), on recall of his authority by the delegator (even re adhuc nondum integra, the matter being no longer intact), on expiration of the allotted time, on settlement of the matter, on declaration of the delegate that he has no power.

References

Bibliography

• Beal, John P., et al., eds. New Commentary on the Code of Canon Law (New York/Mahwah, NJ: Paulist Press, 2000).
• Coriden, James et al., eds. The Code of Canon Law: A Text and Commentary (New York/Mahwah, NJ: Paulist Press, 1985) ISBN 0809103451 xviii-xxiii.
• Della Rocca, Fernando, Manual of Canon Law (Milwaukee: The Bruce Publishing Company, 1959) translated by Rev. Anselm Thatcher, O.S.B.
• Faris & Abbass, eds. A Practical Commentary to the Code of Canons of the Eastern Churches (Montréal: Librairie Wilson & Lafleur, 2019) ISBN 9782924974032 xix-xxxiv.
• Spiteri, Msgr. Laurence J., JCD, Ph.D., Canon Law Explained: A Handbook for Laity (Manchester, NH: Sophia Institute Press, 2013). ISBN 9781622821785
•  This article incorporates text from a publication now in the public domain: Herbermann, Charles, ed. (1913). "Ecclesiastical Jurisdiction". Catholic Encyclopedia. New York: Robert Appleton Company.
• This article incorporates text from a publication now in the public domain: Phillimore, Walter George Frank (1911). "Ecclesiastical Jurisdiction". In Chisholm, Hugh (ed.). Encyclopædia Britannica. Vol. 8 (11th ed.). Cambridge University Press. pp. 853–866. The bulk of this article, pages 854ff., conists of a detailed history of the development of the concept, in all branches of Christianity, from the early church to the 18th century.
•  This article incorporates text from a publication now in the public domain: Johannes Baptist Sägmüller (1913). "Ecclesiastical Judge". In Herbermann, Charles (ed.). Catholic Encyclopedia. New York: Robert Appleton Company. BOUIX, Tractatus de judiciis ecclesiasticis, I (Paris, 1885), 120 sqq.; REIFFENSTUEL, Jus canonicum universum (Paris, 1864-70), I, xxxii sqq.; II, i sqq.; DE ANGELIS, Praelectiones juris canonici (Rome, 1877-91), II, i sqq.; FERRARRIS, Bibliotecha canonica (Rome, 1885-99), s.v. Judex; LEGA, Praelectiones de judiciis ecclesiasticis, I (2nd ed., Rome, 1905), n. 38 sqq.; HERGENROTHER-HOLLWECK, Lehrbuch des katholischen Kirchenrechts (Freiburg im Br., 1905), 495 sqq.; LAURENTIUS, Institutiones juris ecclesiastici (2nd ed., Freiburg im Br., 1908), n. 310 sqq.; SAGMULLER, Lehrbuch des katholischen Kirchenrechts (2nd ed., Freiburg im Br., 1909), 749 sqq.

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