§ 1. This is a great privilege of the Church: the power to erect its own tribunal in the midst of the Roman Empire and of other kingdoms. Yet Paul, the Doctor of the Gentiles, taught us that this is lawful. 1 Corinthians 6:1 and following:
Does any one of you, having a matter against another, dare to be judged before the unjust and not before the saints? Or do you not know that the saints will judge concerning this world? And if the world will be judged by you, are you unworthy to judge concerning the smallest matters? Do you not know that we will judge Angels? How much more secular matters? If, therefore, you have secular judgments, appoint those who are held in contempt in the Church to judge. I speak to your shame. Thus is there no wise man among you who can judge between his brother and his brother? But brother contends with brother in judgment, and this before unbelievers. Now there is indeed altogether a fault among you, because you have judgments among yourselves. Why do you not rather receive injury? Why do you not rather suffer fraud? But you inflict injury and commit fraud, and this against brothers.
The Apostle indeed desires Christians to be so disposed that they prefer to suffer injury rather than to inflict it. Yet because, in a great multitude, there were not lacking those who were accustomed obstinately to defend their own possessions and greedily to seek those of others, there was need of a judge. But lest the suit be conducted among the Gentiles, he judged that judges were to be chosen in the Church. This, therefore, is the royal priesthood before which the laws of Gentile Caesars had to yield. If, therefore, the Apostles could erect tribunals in cities and appoint judges, who would doubt that they also judged, and much more that they could judge? For to give the power of judging is more than to judge; it belongs to architectonic power.
§ 2. The judges of ecclesiastics are ecclesiastics alone. Thus Cause 11, Question 1, canon 15:
By the present authority we command Your Experience that, in causes in which any person holding ecclesiastical office stands in the place of plaintiff and is about to bring an action against any layman, he shall not fail to present his actions before the judge of his province. But in those matters in which a person holding ecclesiastical office is proceeded against, with every obstacle to the accusation removed, he shall resort without distinction to the examination of the bishop, or of the presbyters appointed in the place where the question is at issue.
And canon 2:
Let no judge, on his own authority and without the Pontiff’s permission, constrain or presume to condemn any presbyter, deacon, cleric, or junior servant of the Church.
But if he does so, let him be separated from the Church upon which he is known to have inflicted injury until he acknowledges and amends his deed.
And canon 5:
By a continuous law we decree that no bishop, nor any of those who serve the necessities of the Church, shall be dragged before the courts of either ordinary or extraordinary judges. They have their own judges, and they have nothing in common with public laws.
Likewise the Emperor Constantine, presiding in the holy Synod that had assembled at Nicaea, when he saw that a complaint made by certain persons had been brought before him, said:
You can be judged by no one, because you are reserved for the judgment of God alone.
But this matter belongs to the privilege of exemption, which will be treated in its own place.
§ 3. Those held in contempt are ordered to be appointed as judges in the Church—not so that just anyone may be a judge, for that is not Paul’s meaning. For he requires a wise man who can judge between brother and brother. But he calls him one held in contempt because he speaks to their shame, since it is acknowledged that the least of the saints, though he may appear insignificant, is wiser than the wise men of the Gentiles to whom they brought their lawsuits. And so those of a lower condition can be judges, just as if someone were to say that judges can be appointed from the lower-ranking members of an Academy in towns and villages.
§ 4. In former times Christians tried their cases before clerics. Clement, Constitutions, book 2, chapter 49:
Let your judgments take place on the second day of the week, so that if any controversy arises from your sentence, you may have free opportunity until the Sabbath to settle that controversy and reconcile peace between those who litigate. Let deacons and presbyters, who will judge with integrity, be present at the judgment as men of God, with justice. When each party has come, as the law commands, let both who litigate be stationed in the middle of the tribunal; and, after hearing them, pronounce judgment in holiness, striving to reconcile them before the bishop’s sentence, lest judgment against the sinner go forth over the earth.
Chrysostom explains this excellently, interpreting it as referring to Priests:
Ὃ γὰρ λέγει τοῦτόν ἐστιν· ἴσως ἐρεῖ τις ὅτι οὐδεὶς ἐν ὑμῖν σοφός, οὐδὲ ἱκανὸς διακρῖναι, εὐτελεῖς προήχθησαν πάντες· καὶ τί τοῦτο; κἂν γὰρ μηδεὶς ᾖ σοφός, φησί, τοῖς ἐλαχίστοις ἐπιτρέπετε. Τοῦτο δὲ πρὸς ἐντροπὴν ὑμῶν λέγω· ἐλέγχοντος δὲ τὴν τούτων ἀντίθεσιν, ὡς σκῆψιν οὖσαν περιττήν. Διὸ δὲ ἐπήγαγεν· Οὕτως οὐκ ἔνι σοφὸς ἐν ὑμῖν οὐδὲ εἷς; Τοσαύτη, φησίν, ἀπορία; τοσαύτη σπάνις ἀνδρῶν συνετῶν παρ’ ὑμῖν; Καὶ ἡ ἐπαγωγὴ δὲ μείζονα τὴν πληγὴν ἔχει. Εἰπὼν γάρ, Οὕτως οὐκ ἔνι σοφὸς ἐν ὑμῖν οὐδὲ εἷς; ἐπήγαγεν, ὃς δυνήσεται διακρῖναι μεταξὺ τοῦ ἀδελφοῦ αὐτοῦ. Ὅταν γὰρ ἀδελφὸς δικάζηται μετὰ τοῦ ἀδελφοῦ, οὐδὲ προσδεῖται τῆς συνέσεως, καὶ τῆς δεινότητος τῷ μεσιτεύοντι τὴν δίκην, τῆς διαθέσεως καὶ τῆς εὐπειθείας πολλὰ συμπραττούσης πρὸς τὴν λύσιν τῆς τοιαύτης φιλονεικίας.
Perhaps someone will say that there is no wise man among you, nor anyone fit to discern and adjudicate. And what then? For even if there is no wise man, he says, entrust the matter to the least among you. “I speak to your shame.” This is the language of one refuting their objection as an unnecessary excuse and pretext. And therefore he added: “Thus is there no wise man among you?” Is there, he says, so great a lack, so great a scarcity of intelligent men among you? But what he added inflicts a greater blow. For when he had said, “Thus is there no wise man among you?” he added, “Who can judge between his brother and his brother?” For when brother contends in judgment with brother, intelligence and dexterity are not needed for the arbitration of the suit, since affection and kinship bring great assistance toward resolving a contention of this kind.
Augustine’s opinion is the same in Letter 47 to Proculeianus and in On the Work of Monks, chapter 29:
I call as witness upon my soul that I would prefer, during fixed hours on every single day—as has been established in well-regulated monasteries—to do some work with my hands and to have fixed hours for reading and praying, rather than to endure the most tumultuous perplexities of other people’s causes in secular business, either by deciding them in judgment or by intervening to bring them to an end. The same Apostle afflicted us with these troubles—not according to his own decision, assuredly, but according to the decision of him who spoke in him. Yet we do not read that he himself endured them, for the course of his Apostleship was differently constituted. Nor did he say: “If, therefore, you have secular judgments, bring them to us,” or, “Appoint us to judge”; but: “Those who are held in contempt in the Church,” he says, “appoint these. I speak to your shame. Thus is there no wise man among you who can judge between his brother and his brother? But brother is judged with brother, and this before unbelievers.” He therefore wished wise, faithful, and holy men who remained in their own places—not those who traveled here and there on account of the Gospel—to be examiners of such matters. Hence it is never written of him that he ever had leisure for such matters, from which we cannot excuse ourselves, even if we are held in contempt, because he wished even such men to be appointed.
§ 5. The examples of the most holy and most laborious bishops show us their judicial power. Gregory of Nyssa, in his oration on the virtues of Gregory Thaumaturgus, Bishop of Neocaesarea:
They judged that no other adjudication even of secular and temporal controversies was more valid and firm for them, or of greater authority; but every question and dispute, and every intricate and difficult entanglement of affairs, was resolved and decided by his counsels and admonitions. Hence, through his beneficence, there was both for everyone collectively and for each person individually not only equity and an upright settlement of law, but also peace.
Moreover, by a miracle God showed that the distinction he won in calming disputes was pleasing to him. Yet he was not on that account negligent in prayer, reading, works of mercy, or teaching. He found seventeen Christians when he received the episcopate; when he died, he left seventeen Gentiles.
Ambrose was so occupied in deciding lawsuits that Augustine says he could not breathe, book 3 of the Confessions, chapter 3:
For I could not ask of him what I wished, in the manner I wished, because crowds of busy people, whose infirmities he served, shut me off from his ear and mouth. When he was not with them—which was for only a very small portion of time—he either refreshed his body with necessary sustenance or his mind with reading.
And a little later:
And we conjectured that during that little time which he obtained for restoring his mind, when he was free from the clamor of other people’s causes, he did not wish to be called away to anything else. Perhaps he was taking care that, if an attentive and intent listener were present and the author he was reading had set down something rather obscurely, it should not also become necessary to explain it or to discuss certain more difficult questions, and that, with time spent on this work, he would turn through fewer volumes than he wished.
Yet Ambrose did, said, and wrote so many things that, to one who examines his works, he might seem to have lived in the greatest leisure.
Nor did he voluntarily bind himself to so laborious and so hateful a charge; rather, in Letter 49 to Marcellus, he writes that he was clothed with that necessity by the authority of blessed Paul. Augustine, Ambrose’s disciple, says in the place cited above:
Malicious people clamor for it, or certainly they oppress the weak, so as to compel them to bring their causes before us. We do not dare say to them, “Man, who appointed me judge or divider over you?” For the Apostle appointed ecclesiastics as examiners of such causes.
He frequently complains of the multitude of business; yet he acknowledges that he is not worn away by the faithful through their litigation, but that rather, by obeying him, they console him.
There survives a complaint of Synesius, who was compelled to accept the episcopate, in Letter 57:
He who exercises the priesthood together with Philosophy has need of leisure. I do not condemn Bishops who are engaged in the business of affairs, but rather I admire those who can do both; it is not within my ability to serve two masters. But if there are others who are not harmed by condescension, they will certainly be able both to exercise the priesthood and to be Prefects of cities. For if a ray of the Sun comes into contact with dung, it remains pure and is not defiled; but when I do this same thing, I have need of fountains and of the sea.
Synesius was denied the release he requested, and he excommunicated the governors Andronicus and, afterwards, Tonans. He could not have done this unless he had first investigated and judged the case. See Letter 58.
§ 6. Beza is therefore injurious to the most holy men in his notes on chapter 6 of First Corinthians:
Ministers, whose office is widely different, must by no means be employed to hear disputes of this sort, but rather any others among those who were afterwards called Laymen, who are least occupied of all with other more useful affairs. For thus I interpret those called τοὺς ἐξουθενημένους—“those held in contempt”—hyperbolically, not as those who are most unlearned or who are most base. This, therefore, is that Apostolic doctrine, confirmed in very many places by both the command and example of CHRIST himself: so far was he from granting both swords either to Peter or to any other pastors descended from Peter. But if this had been attentively considered, as it ought to have been, by those ancient Bishops—who were, I acknowledge, far removed from the ambition which presently followed them, yet nevertheless departed from the Apostolic rule—neither would they have wearied themselves with so many labors, of which Augustine complains in some places, nor would they have opened to posterity an entrance for seizing the authority of Magistrates, certainly followed at length by the destruction of the human race.
But those most holy Bishops undertook that laborious and hateful business for the sake of piety and judged that it had been laid upon them by the Apostle.
Yet nothing here is more true than that Calvinist ministers must not be employed to adjudicate controversies. The Apostle nevertheless bound Bishops in this way, not contrary to the precept of Christ or of Peter. They did not judge contrary to the Apostolic rule, much less did they seize a tyranny; rather, they aided the oppressed against the violence of the more powerful. The fact that Silvanus, a most holy man and Bishop of Troas, took the power of judging away from his clerics is proof that they possessed that power. Since they were abusing it, and since suitable clerics were lacking, he appointed trustworthy laymen. For Nicephorus says that they had set up a market; Socrates says that they made profit from the controversies of litigants. Nor is this surprising: that part of Asia was troubled by various heresies, and the Clergy’s integrity and constancy in both faith and morals had been weakened. Nevertheless jurisdiction is not for that reason not owed to the order, merely because one Bishop of a little Church transferred judgments to Laymen because the clerics judged badly. Indeed, I judge that clerical judges must be diligently investigated every year, and, if they depart from justice, punished with the greatest severity.
§ 7. Finally, the Council of Trent (session 13, chapter 1, On Reform) variously constrains those accused of crimes who were striving to escape episcopal judgments. Accordingly, it denies that deference must be shown to a frivolous appeal:
Since, therefore, those accused of crimes very often feign complaints and grievances in order to avoid punishments and evade the judgments of Bishops, and impede the judge’s proceeding by recourse to appeal, lest they abuse, for the defense of iniquity, a remedy instituted for the protection of innocence, and in order that their cunning and evasion of this kind may be forestalled, it has thus established and decreed: in causes of visitation and correction, whether of fitness and unfitness, and also in criminal causes, no appeal shall be made from the Bishop, or from his Vicar General in spiritual matters, before a definitive sentence, from an interlocutory sentence or from any other grievance whatsoever; nor shall the Bishop or Vicar be bound to defer to an appeal of this sort as frivolous.
§ 8. The reasons why this was useful to the state were certainly many, and they remain so today.
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Causes are handled more sincerely by the Lord’s priests and ministers than by profane judges. For they preserve more closely the clearer rule of justice and equity. This is also the reason why the people themselves appealed to the episcopal audience. For just as civil laws ought to be accommodated to ecclesiastical laws, so it is also fitting that secular judges should listen to bishops and priests. The constitutions of emperors possess the force of law, but the canons of the Apostles possess a firmer force. Hence it came about that Innocent said, nearly in these words, that the Church is not constrained by worldly laws; and Jerome in the Epitaph of Fabiola and Letter 30 to Oceanus: “The laws of the Caesars are one thing, the laws of Christ another; Papinian commands one thing, Paul another.” Hence it came about that Constantine decreed that the sentences of governors could be rescinded by Bishops. Ambrose himself is witness, in book 2 of On Duties, chapter 25, that this was done by him.
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Litigation before Bishops was conducted at less expense. For those judges were both distinguished in piety and knowledge and, for the most part, rich and liberal toward the poor; thus it seemed in no way probable that they would conduct themselves so that their possessions increased from lawsuits. Even now they live from the Church and have no heirs for whose sake they might violate justice and sell their sentence.
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The civil power of the Church seems necessary, amid so great a degree of human malice, arrogance, subtlety, and obstinacy, for suppressing errors, and therefore it was deservedly granted to bishops. Before Constantine more heresies arose because they were restrained by no force; and under blasphemous emperors there was the greatest liberty for heretical blasphemies, so that the Church was rent more grievously by domestic dissensions than by persecution.
§ 9. But if civil dominion is rightly granted to the pastors of the Church, as I have proved in The Conclusion of the Jubilees, the judicial power inhering in and connected with it must also be granted. But this dominion was formerly given and accepted by many, and is retained even today—not only by those whose virtue could be called into doubt, but by absolutely all who have obtained those churches. John of Palomar, Archdeacon of Barcelona, treated of them with the greatest learning at the Council of Basel. These are his words; for thus he says:
I shall begin with the Church of Mainz. Behold Saint Boniface, who possessed such authority that in his time it was said that the times of the Apostles had returned; he illuminated many provinces by his preaching. In the same Church was Saint Lullus the Confessor. Likewise Rabanus, a great Doctor, is cited daily. Likewise in the same Church of Mainz was Archbishop Bardo; in the same was Willigisus. In the Church of Trier, which Helena, the mother of Constantine, who was born at Trier, endowed with many relics and temporal goods in addition to its first endowment, there were ninety-nine Archbishops down to the Lord Otto, the last to die; of these, twenty-five are Saints, as is contained in the Calendar of Archbishop Baldwin, which is preserved in that Church.
In the Church of Cologne was blessed Severinus, who was and is renowned for many miracles; likewise Saint Remedius; likewise Saint Cunibert; likewise Saint Haymo; Aglolfus the martyr; likewise Evergissus the martyr; likewise Heribert: all these were holy Archbishops of Cologne. In the Church of Liège, which is most opulent in temporal goods, were Saint Maternus, Saint Hubert, Saint Theodard, Saint Servatius, Saint Lambert the martyr, and Saint Geregisilus, all Bishops. Likewise in the Church of Lorch was Saint Maximianus, consecrated Bishop by Saint Sixtus around the year of the Lord 223; he conferred upon the said Church the patrimony which is now called Enns, with all the neighboring towns and secular jurisdictions, which remains to the present in Austria and is possessed by that Church of Passau. Likewise Saint Adalbert happily governed for many years the magnificently endowed Church of Prague. Likewise Saint Procopius had a most opulent Monastery in Bohemia; those who disturbed its possessions have sometimes experienced divine vengeance upon themselves. Likewise Saint Wolfgang at Regensburg. Likewise Saint Corbinian, Bishop of Freising, acquired estates for that same Church which are known today. Likewise Saint Ulrich of Augsburg governed a Church opulent in estates and civil dominions. Likewise Saint Conrad, Bishop of Constance. Likewise Saint Virgil endowed the Church of Salzburg with dominions. There was also a Saint Virgil, Bishop of the Church of Trent, which was opulent in civil dominion. Nor must Saint Stanislaus, Bishop of Krakow, be passed over: when he suffered a controversy concerning a village of the Church, he raised from the grave a man who had died three years before and led him to the judgment as a witness. Without falsehood, if I had searched well, I could have found many more holy Bishops and Abbots who presided over churches and monasteries possessing temporal goods and civil dominions. Pious ears surely recoil from hearing it called into doubt whether that is lawful which, by so great a multitude of saints through so many courses of time, was held, practiced, and observed as lawful.
And these examples are more recent and transalpine, yet they rest upon the deeds of the most ancient and most holy men. For the same Archdeacon continues thus:
I shall begin with blessed Sylvester, to whose holiness and learning the exaltation of the Catholic faith after the chief men of the Jews had been defeated bears testimony. Under him was the first holy and venerable Council of Nicaea, and it was after the endowment of the Church; from this Constantine’s deed is sufficiently authorized, because, if it had been unlawful, so celebrated a Council would have condemned it. But I also have the testimony of blessed Ambrose, who, speaking on the death of the Emperor Theodosius, says that Constantine was of great merit before God because he was the first of the Emperors to believe and left after him to princes an inheritance of faith and devotion. And our Spaniard Isidore testifies to the same thing in his Chronicles. And the Greeks, who were then Catholics, number Constantine himself in the Catalogue of Saints and celebrate his feast with solemnity on 21 May. Next I shall speak of Saint Mark, under whom the holy Synod of Nicaea was celebrated; and in his time and afterwards Saint Athanasius, Eusebius, Nicholas, Hilary, and John Chrysostom were illustrious. Likewise Saint Leo the Pope, who was the forty-third after Saint Peter. Likewise Felix II, who was crowned with martyrdom. Likewise Damasus I, under whom was the Synod of Constantinople of 150 Fathers; to him Jerome wrote that letter: “Because the ancient East, dashed against itself in fury, tears the Lord’s seamless tunic into tiny pieces.” He was also asking that his confession of faith be approved by him, and wrote many other letters. Likewise Cyriacus, who was crowned with martyrdom at Cologne with eleven thousand virgins. Likewise Saint Symmachus the Pope, concerning whose life and miracles see Vincent in book 23 of the Historical Mirror, chapters 1 and 2. Likewise Saint John the Pope, concerning whom see the same Vincent in the same book, chapter 33. Likewise Saint Agapitus, in the same book, chapter 61. Likewise Saint Gregory, one of the four Doctors of the Church, whose holiness and learning are known. Likewise Saint Martin, concerning whom see Vincent, the same book 23, chapter 84. Likewise Saint Stephen the Pope, concerning whom see the same Vincent, the same book, chapter 167. Likewise Pope Honorius was of wondrous piety; a certain demoniac put on his tunic and was delivered. Likewise Saint Severinus, a kind lover of the clergy and the poor, enlarged the possessions of the Churches. Likewise John IV, after selling the treasures of the Church, redeemed many thousands of people throughout Istria and Dalmatia. Likewise Saint Martin of Todi, whose feast is celebrated on the day after that of Saint Martin of Tours. Eugenius I was kind and lovable to all and of the greatest holiness. When Agatho kissed a certain leper, the man was cleansed. John, a Greek by nation, was crowned with martyrdom. Paul, a most mild and merciful man, used to go by night with a few intimates to visit the poor and sick and minister to them. Leo IV, a man of great patience and great humility, performed wonderful deeds in his life; his feast is celebrated on the seventeenth day before the Kalends of August. Nicholas after him was a most holy man, scarcely equaled in the Roman See by anyone after Gregory the Great. All the aforesaid were holy men, of approved sanctity, in the Roman See after the endowment of the Church. There were also many others illustrious in virtue and knowledge, such as Innocent III, who is so reverently cited in the treatise On the Mass and in other works; Peter of Tarentaise, called Innocent V, a most illustrious Doctor; and many others whom it would be lengthy to name. I wished to name only the aforesaid, who are entitled saints, while omitting many others. But I do not wish to omit this one thing, because it is highly pertinent to the proposal: what Vincent relates in book 25 of the Historical Mirror, chapter 25, concerning Gregory VI. He expended great efforts and labors to recover the Church’s temporal goods occupied by tyrants; and when he could not accomplish this either by exhortations or by censures, he did it by force of arms. Hence, as he lay under the illness from which he died, the Cardinals, calling him a bloodthirsty man, said that he ought not to be buried in the Church of Saint Peter with the other Pontiffs. When he learned this, he summoned the Cardinals and, after holding a conference with them, at last said: “Because both our thoughts and yours can be mistaken, let us commit everything to divine examination. Set my body, prepared according to the custom of my predecessors, before the doors of the Church, and let the doors be secured with locks and bars. If God wills that I enter, applaud the miracle; but if not, do with my corpse as you please.” Thus it was done. And as soon as his body had been placed before the doors of the Church, which had been closed with locks, a mighty whirlwind sent by God shattered the obstacles of the bars and drove the doors themselves, thrown open with violent force, against the wall with a great crash.
For this reason Bernard says in book 4 of On Consideration, to his disciple Eugenius: “In these things you have succeeded not Peter, but Constantine”; and in book 2: “Grant that you claim these things for yourself by any other title, but not by Apostolic right.” That they are possessed by good right is taught both by these things and by the consensus of the Christian world, by which they were defended. When the Romans, with an untimely desire for their former liberty and majesty, strove to bring all the kingdoms once under their dominion back into their power, they also attempted to reduce the Pontiff to order and take away all his royal rights; but the Frankish and German Emperors punished them, as they also punished the Lombards. They saw that the dignity of the scepter and principate was appropriate for the Pontiff who would govern the Church. Barretus, book 2, chapter 1, teaches that the Pontiff possesses his own goods by good right, although he is otherwise a flatterer of kings. Indeed, he adds that the rights are more ancient and more equitable—which must always be regarded. Then he accuses Constantine’s successors rather of having withheld them than he derogates from the Pontiff’s right. Constantine gave wealth and honor. Charles restored them; other things were added:
the Cottian Alps, the Exarchate, the dominion of Benevento, Sicily, Tuscany, Liguria, Apulia, Ferrara, and other dominions.
§ 10. Finally, I conclude that it is to the singular advantage of the state that great power of judging and governing be permitted to Bishops and Priests. The fruit ought to be that those who are capable of amendment may more readily hear the word of God, obey it once heard, and correct their morals, and that the obstinate may be terrified, if the mysteries are administered and doctrine is explained not by a powerless and contemptible Priest but by a regal Pontiff. Constantine himself adduces this cause for his donation: that the Pontifical summit should not be held in contempt, but should be adorned with glory and power more than the dignity of an earthly empire.
Yet that honor is not the primary end, but the safety of the state. For whence can judges more skilled, more equitable, less in need of money, and less desirous of gifts be obtained than from the most honorable assembly of Bishops, from the multitude of the Church’s Prelates? This now obtains in the principal parts of Europe—in Germany, France, and Spain; indeed also in Britain itself, which employs Bishops in the administration of civil affairs.