In the apostolic period, the Church exercised such disciplinary jurisdiction as any organization naturally has over its members, expressed in the case of grave faults by exclusion from the Church, with a possibility of restoration to membership on proof of repentance and amendment (I Cor. v. 11; II Cor. ii. 5 sqq.). In the sub-apostolic era this exclusion is not only from the local community but from the whole Church; and the bishop, who now, with the other clergy and the whole body of believers, exercises this jurisdiction, appears as a divinely appointed organ of it, acting in the place of Christ. With the second century appears a stricter principle, denying the possibility of more than one restoration to communion, and of even one in the case of such grievous sins as idolatry, unchastity, and murder. Where restoration was allowed, it followed upon public Penance (q.v.); but this was of the nature of a preliminary voluntarily assumed, not of a penal measure. In the third century deposition and deprivation of income are employed against clerics, in addition to excommunication.
With the recognition of Christianity by the State and the increasing conciliar activity, the system developed in more detail. Against laymen different forms of Excommunication (q.v.) were employed; against clerics, deposition, degradation, or suspension, sometimes with deprivation of clerical income or (in the case of young clerics and those in minor orders) corporal punishment. At first, of course, there was no definite code for these proceedings, but the community (or later the bishop) had to decide the individual case. By degrees, however, legal principles were developed to regulate the life of the Church. Thus the Fathers distinguish between peccatum and delictum or crimen, and it is expressly recognized that a sin of thought alone is not subject to external or legal penalties. By the fourth century a definite basis is reached for the infliction of ecclesiastical penalties; for the severer, certain forms of apostasy, immorality and homicide; for the lighter, some cases of contact with paganism or neglect of Christian duties (e.g., of attendance at public worship). A distinction is drawn between poena vindicativa and poena medicinalis or censura, the latter having the amendment of the offender for its chief purpose and terminating with the removal of the offense. These latter are employed mainly against the clergy; those imposed on laymen, including excommunication, are all practically vindicativae. The exercise of jurisdiction over laymen and clergy, below the rank of bishop belonged to the bishop, who was bound to consult his priests and deacons before pronouncing sentence. A court of appeal (and for bishops of first instance) existed in the provincial synod. The Synod of Sardica (343) provides, in case of the condemnation of a bishop, for an appeal from either party to the Bishop of Rome, who may either confirm the sentence or order a new investigation by neighboring bishops, together with priests delegated by him as assessors. On the basis of this decree, which never obtained ecumenical recognition, the popes based the claim to supreme jurisdiction, and to a right of judging in the first instance all metropolitans, primates, and patriarchs; and such a claim was carried into practical effect throughout a large part of the West, under the sanction of the imperial power.
A similar sanction was given to the competence of other ecclesiastical tribunals; and certain offenses against ecclesiastical law, especially the abandonment of the Catholic faith, were made crimes under secular law; secular penalties were also imposed upon some offenses against discipline on the part of the clergy (such as gambling, illegal marriage, wilful abandonment of the clerical state). By Roman law, however, the clergy were not exempted from secular jurisdiction, except that bishops accused of a breach of secular law were to be tried first by a synod of their peers, who were nevertheless obliged to hand over a convicted offender to the State after the imposition of their owe penalty, until Justinian reserved the right to sanction secular proceedings against a bishop to the emperor alone.
During the Merovingian period, the character of excommunication was changed by the acceptance of the doctrine of the indelibility of baptism, which rendered a complete and absolute separation from the Church impossible, while desertion of the Church's faith was unlawful and punishable. Besides the earlier penalties there were now added flogging for slaves and inferior persons, imprisonment in a monastery, and in the Visigothic kingdom banishment, decalvation (scalping), confiscation of property, money fines, the loss of secular dignities, and reduction to slavery. In this period corporal punishment was applied to clerics in major orders as well as minor. The performance of works of penance was now enforced as a penalty, either alone or with others, for life, for a fixed period, or until amendment or removal by ecclesiastical superiors. The judicial system remained much as before, except that the policy of the Visigothic and Frankish kingdoms left little room for appeals
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From the ninth to the sixteenth century, the system of jurisdiction received its further development, and has remained practically unchanged in the Roman Catholic Church since the latter date. Partly through the Carolingian capituiaries, and then through a long series of papal enactments, a number of further secular penalties were imposed upon offenders, of the most varied kind, including the deposition of kings and princes, the absolution of their subjects from allegiance, the piercing of the tongue for blasphemy, death for sodomy and abortion, withdrawal of all communication with Christians for Jews, etc., etc. The Roman Catholic Church has not yet abandoned the medieval view that it is entitled to inflict secular penalties, though in consequence of the changed relations between Church and State these have fallen into disuse against laymen, except infamy regarded as a ground of irregularity; and the Church is empowered by modern legislation to inflict them upon the clergy only in the forms of money fines and confinement in a house of correction. In the line of purely spiritual penalties, there were added the local Interdict (q.v.), the refusal of Christian burial as a separate penalty, suspension from particular churchly rights, incapacity to hold ecclesiastical offices, and the indignatio of the pope (loss of papal favor and breaking off of communication). Apart from the limitation of the prohibition of intercourse with excommunicated persons (see EXCOMMUNICATION), a distinction was made in the eighteenth century between suspension from the privileges of church membership (for which in this period the terms interdidum personale, interdictum ingressus ecclesiae came into use) and the
By the end of the twelfth century, in connection with the development of the doctrine of the indelibility of holy orders and the struggle of the Church to maintain the privilegium fori for its clergy, the earlier penalty of deposition was distinguished into two classes--what was now called deposition, and degradation. The former deprived the offender of his office and benefice, of the right to exercise his orders, and of the capacity to be again employed in the service of the Church; the latter, in addition took away from him all the privileges of the clerical state, and delivered him over to the jurisdiction of secular tribunals. This was employed only in definitely fixed grave crimes, especially heresy. Deprivation, which does not render the offender incapable of holding another benefice, was seldom used before the twelfth century, but has been frequent since. A modern variation of it is the removal of a cleric from one benefice to another less desirable one. Suspension has also been developed in detail, and may be ab officio, ab ordine, a beneficio, or totalis, from all three. The Council of Trent gave the right to bishops to inflict suspension ab officio or ab ordine for a sin not publicly known without any preliminary hearing; the only recourse lies to the pope.
A distinction, first occurring in the Visigothic kingdom at the end of the sixth century, has since been made between poenae ferendae sententiae and poenae latae sententiae. The latter class take effect immediately upon the commission of the act with which they are connected, without requiring any judicial process. Excommunication and suspension when they are penalties ferendae sententiae, require a threefold or at least a single peremptory admonition before they can be imposed, thus giving the offender an opportunity to avert the penalty by the performance of due penance. From the twelfth century on, both the popes and general and local councils established an inordinate number of penalties latae sententiae; but Pius IX., in the constitution Apostolicae sedis of 1869, abolished all those which rested on the common law, the later general councils, and the papal constitutions, with the exception of such as were established by the Council of Trent, had to do with papal elections and the internal management of orders, congregations, collegiate bodies, and church institutions, or were expressly named in this decree.
In reguard to the development of the matter covered by the offenses legislated against were in large measure those of a grave moral nature, such as sexual immorality, perjury, and robbery. After the eleventh century, the papal legislation is determined predominantly by the hierarchical interests of the Church, and directed against heresy, the invasion of ecclesiastical liberties, the subjection of clerics to secular tribunals, the appropriation by laymen of ecclesiastical property, lay investiture, and the like. It is true, however, that a large number of penalties provided against the neglect of spiritual duties (the keeping of Sunday, the Easter duty, fasting), and against robbery, false coinage, desertion of children, tournaments, false accusation, abuse of power, and so on; and that the Church, by the erection of the "Truce of God" (q.v.) into a general institution, did much to put down a large class of crimes against person and property. But in spite of all these undeniable services to civilazation, it still remanis true that where the criminal legislation of the medieval pope is determined by clear and consistent policy, it is in cases affecting the position of the Church as a hierarchical power.
If the earlier penal legislation of the Church is of
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The principal organ for the exercise of ecclesiastical jurisdiction on this system is the pope, who since the twelfth century has succeeded in maintaining his claim to be the judex ordinarius singulorum. The Council of Trent, however, following the precedents of the Concordat of Basel and the Council of Constance, decreed that controverted questions should come in the first instance before the bishops. The direct jurisdiction of the pope finds its greatest practical significance in regard to the ecclesiastical dignitaries whose immediate superior he is, the cardinals and metropolitans, and outside of these to the bishops. The Council of Trent, in subjecting the latter to his jurisdiction, did but confirm the established medieval law from the end of the eleventh century, that in all cases of serious offenses, for which degradation, deposition or deprivation were the penalties, they should be wholly subject to papal decision, while less grave matters might be dealt with by the provincial councils.
The Council of Trent, again following the two earlier reforming councils, attempted to exclude as far as possible the final decision of cases in Rome, and so provided for the nomination by provincial or diocesan synods of certain clerics to be known as judices synodales to whom the pope might delegate the decision of certain cases brought before him. This arrangement never had much practical significance, as the popes preferred to place appeals in the hands of their nuncios or of archbishops and bishops, or in some cases to give the nuncios the appointment of those who should hear them. At the present time many cases are finally disposed of by the Roman congregations, especially the Congregatio concilii and the Congregatio episcoporum et regularium (see CURIA).
In regard to the competence of ecclesiastical jurisdiction, the Church has always claimed the right to punish any violation of its ordinances either by clergy or by laity, independently of the question whether the offense was also against secular law. As long as it employed purely ecclesiastical penalties, there could be no conflict between the two jurisdictions. This was the case not only under the Roman empire but also in the Merovingian and Carolingian periods--all the more because the Germanic penal code contained but few crimes on which public punishment was inflicted. Up to the twelfth century the Church was thus able to fill up a serious gap in penal legislation by taking cognizance of a number of grave crimes for which the secular law provided no public penalty. When, from the twelfth century on, the latter began to increase the number of crimes which it punished, conflicts could no longer be avoided, and the secular tribunals protested against the invasion of their rights by the Church courts. In practise, then, there developed out of these conditions a distinction of offenses into delicta mere secularia, delicta mere ecclesiastica, and delicta mixta or mixti fori. No general agreement could be or has been reached as to what constitutes the third class, in which both secular and ecclesiastical authorities have competence. Usually it has been held to include the principal offenses against chastity, usury, sorcery, magic, perjury, blasphemy, and the forgery of papal briefs. For modern practice see below, II. The action of the Church against secular offenses is thus confined nowadays almost wholly to the forum internum, i.e., to the imposition of penance in the confessional; and the established ecclesiastical courts only take part in the process in so far as it is a question of cases reserved to the pope or bishop for decision (see CASUS RESERVATI).
The question of secular jurisdiction over the clergy was raised early in the ninth century by ecclesiastical reformers, with the help of the forgeries of Benedictus Levita and the pseudo-Isidore; and they succeeded to a large extent in enforcing their claim of Exemption (q.v.). Throughout the Middle Ages, indeed, secular rulers maintained their right to punish even bishops for a breach of their obligations as vassals, officials, or subjects, with imprisonment or exile; but they made no attempt, except in rare instances, to exercise a power of deposition, which by the eleventh century was recognized as a right reserved to the pope. In respect to the other clergy, the Church's claim was never acknowledged for clerics who were not recognizable as such by the tonsure and clerical garb, and with the fourteenth century a strong reaction began against such exemption, which finally led to its complete abolition in most countries. The Church, however, still held to it in theory, even in the Syllabus of 1864.
The opening of ecclesiastical proceedings was conditioned from the earliest times by the notoriety of the offense, or by self-denunciation on the offender's part, or by the accusation of another; or it might follow ex officio when the authorities had sufficient cause, as in well-grounded suspicion. In all these cases, the bishop might proceed first by a brotherly admonition, on the basis of Matt. xviii. 15-17 (the so-called denunciatio evangelica); if the offender remained obstinate, formal trial and punishment might follow, or in the opposite case he might take upon himself the canonical penance without being shut out of the communion of the Church. From the fourth century the Church adopted the Roman regulations in regard to accusations: the formal charge to be signed by the accuser,
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The jurisdiction exercised at the present time by the churches of western Europe and the United States differs
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The sphere of ecclesiastical jurisdiction exercised by the American churches has been outlined by the supreme court of the United States in the case of Watson vs. Jones (13 Wallace, U. S. Reports 679, as follows:
"in this country the full and free right to entertain any religious belief, to practise any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, is committed to the support of no dogma, the establishment of no sect. The right to organize voluntary religious associations to assist in the expression of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations and officers within the general association is unquestioned. All who unite themselves to such a body do so with an implied consent to this government and are bound to submit to it. But it would be a vain consent and would lead to the total suppression of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decisions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognisance, subject only to such appeals as the organism itself provides for."
This sphere of liberty for the purpose of religion has been defined in detail by principles laid down by the civil power. While modern states have in some cases relinquished the power to legislate in ecclesiastical matters, they have everywhere reserved the power to define the sphere of ecelesiastical jurisdiction; and no matter what may be the desires of a church body for added powers over its members, the rule of the State is absolute. Modern states, in defining the powers of bodies organized for the purposes of religion, have not enacted formal codes stating the jurisdiction of such bodies in detail; but they have laid down general principles in the civil courts in the adjudication of cases brought about through church controversies. The civil courts of the United States have in the century past developed some fundamental principles applicable to all the religious organizations of the land which have become law wherever American sovereignty has been extended. Similar principles have been worked out by the civil courts in all parts of the British empire.
The basic principle of modern ecclesiastical jurisdiction is that all ecclesiastical relations must be voluntary both in their inception and in their duration. This rule applies as well to church membership as to the holding of ecclesiastical office. No ecclesiastical relations are of the nature of a civil contract in law. The closest juridical analogy is to an obligation in equity. Such relations can be severed at any time without incurring civil disabilities. The polity of the denomination and the obligations laid down in a discipline as assumed by a member do not, from the standpoint of the State, change the voluntary character of the relationship. Another elementary principle limiting ecclesiastical jurisdiction is that the law of the land is law for the churches. So much of the civil law as applies must be read into the internal or canon law of all religious organizations. So also the internal law of religious bodies can validly contain nothing that contradicts the principles of the common and statute law of the land. The churches, therefore, may enact no rule overriding, restraining, or curtailing the civil rights of their members. Nor can the churches make a valid attempt to exempt their members from their civil and political obligations. Thus a church body may not validly discipline its members for exercising the elective franchise or serving upon juries or taking up arms in defense of the State. A further limitation of ecclesiastical jurisdiction is found in the principle that church courts can not with legal sanction adjudicate civil controversies among their members, although the parties may have voluntarily submitted their cases to such courts. No decision can be rendered that will bar the parties from their right of appeal to the civil courts.
With these as fundamental principles of limitation found in the polity of all the states of western civilization, modern ecclesiastical jurisdiction and discipline are definitely limited to the conduct of moral and spiritual operations, cooperation for the purposes of religion, propaganda of faith, charity, and education. The churches are at liberty to define their faith and to regulate their own affairs. They may lay down rules of conduct for their members and prescribe what manner of life they shall live. Such a life, however, must be in accord with the prevailing standards of public morality, and such standards are in the last analysis fixed by the exercise of the police power of the State by the civil authorities. In many instances modern religious organizations have endeavored to prescribe for their members modes of life not in accordance with the prevailing standards of public morality. There have peen attempts to institute abnormal relations of the
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The discipline that can be meted out to church members upon the findings of church courts may extend only (1) to admonition, (2) suspension of privileges, (3) penance, (4) excommunication, and (5) expulsion from membership. If the church law provides for an appeal to a higher judicatory, such an appeal may not be refused by the trial court. If an appeal be refused, the higher judicatories may be compelled by the civil courts to entertain it. If the decision of a church court affects the civil rights as well as the ecclesiastical relations of a church member, so much of the decision as relates to the civil rights will be regarded by the civil courts as null and void, while due effect will be given to so much of the decision as affects purely ecclesiastical relations. Where membership in a particular congregation carries with it the right of sepulture in a certain ground, the loss of membership will result in the loss of that right, as the civil courts have held that such a right is a privilege that can be lost with membership. Marriage, the annulment of marriage, and divorce are now matters within the exclusive jurisdiction of the civil courts, so that church discipline in relation to these matters is entirely without legal effect and can affect only the ecclesiastical standings of the parties.
In general the same principles govern the jurisdiction that the churches exercise over their ministers and other officials. Here the modern jurisdiction is in deepest contrast with that of the medieval Church. From the standpoint of civil law the holding of ecclesiastical office is entirely a voluntary matter, no perpetual tenure or obligation being possible. Any ecclesiastical office may be renounced at any time without incurring civil disabilities. One who accepts office in a religious body voluntarily assumes the obligation to obey the rules of that body not only in all matters pertaining to his office but also as to the mode of life required of him. Under the principles of modern ecclesiastical jurisdiction church office is not a civil right, but is in the nature of a vested interest to be enjoyed upon a certain tenure. In several ways the State recognizes the ministry of the churches. Ordained ministers and priests are among those authorized by the State to perform the marriage ceremony, and such church officials are exempt from jury duty and from enforced military service. The civil courts will entertain the case of a church official when deprived of his office in any other manner than according to the law of the organization to which he belongs. The deposed official can appeal to the civil courts for restitution and can compel the church authorities to grant him a trial according to the law of the body. If, however, he has been duly tried and properly deprived of his office, he has no redress in the civil courts, as he has not been deprived of a civil right and his relation to his church was not contractual. Although the discipline of a church body may require that its ordained ministers refrain from secular employment as means of livelihood, an ordained minister or priest has no claim on his church or superior officials for support unless such a claim is specifically recognized by the law of the church. The penalties which may be prescribed by the judgment of an ecclesiastical court rendered against an official are: (1) censure, (2) the temporary suspension of the right to exercise the functions of his office, (3) deprivation of his office, and (4) expulsion from church membership. No financial penalties can be inflicted nor can the defendant be compelled to share the costs of trial. The church courts have no power to compel the attendance of witnesses, but they can compel, with the aid of the civil courts, the production of books and papers in the custody of those over whom they have jurisdiction. The proceedings of ecclesiastical courts need not be made public, but in the event of testimony being given in public or such testimony being subsequently published and proved false on material points, such testimony may constitute libel and an action will lie for damages for defamation of character.
When there is controversy as to the person entitled to a church office, the civil courts will not take the initiative, but if a proper action can be planned involving the title to property, especially in the case of church trustees, the civil courts will take cognizance of the matter collaterally. Such matters come within the equity jurisdiction of the civil courts. The methods employed by the civil courts when they intervene in ecclesiastical matters are usually the issue of writs of mandamus directed to the ecclesiastical authorities compelling certain action, or the issue of writs of injunction restraining certain proposed action. In case a deposed church official has had in his possession funds belonging to the, organization, an action for an accounting will lie in the same manner as against any civil treasurer or trustee.
GEORGE JAMES BAYLES.
BIBLIOGRAPHY: For the early Church consult: Bingham,
Origines, II., iv.-vii.; J. Fulton, Index canonum; Greek
text and Eng. tranal. and Complete Digest of the . . . Code
of Canon Law of the . . . primitive Church, New York,
1883. 274
For the Roman Catholic Church consult: Corpus juris
canonici, ed. A. L. Richter and A. Friedberg, Leipsic,
1879 (best edition); E. Friedberg, De finium inter ecclesiam
et civitatem regundorum judicio, Leipsic, 1861; W.
Molitor, Ueber kanonisches Gerichtsverfahren gegen Kleriker, Mainz, 1856; F. Kober, Die Suspension der Kirchendiener, Tübingen, 1862; idem, Deposition und Degradation
nach den Grundsätzen des kirchlichen Rechts, ib. 1867;
D. Bouix, Tractatus de judiciis ecelesiasticis, 2 vols., Paris,
1866; N. München, Das kanonische Gerichtsverfahren und
Strafrecht, 2 vols., Cologne, 1866; J. F. von Schulte,
Ueber Kirchenstrafen, Berlin, 1872; F. Droste, Kirchliches Disziplinar und Kriminalverfahren gegen Geistliche,
Paderborn, 1881; E. Katz, Grundriss des kanonischen
Strafrechts, Berlin, 1881; Jura sacerdotum vindicata, New
York, 1883; P. Pievantonelli, Praxis fori ecclesiastici,
Rome, 1883; P. Hinschius, Kirchenrecht . . . in Deutschland
vols. iv.-vi., Berlin, 1886-97; A. Nissl, Der Gerichtsstand
des Klerus im fränkischen Reich, Innsbruck,
1886; A. L. Richter, Lehrbuch des . . . Kirchenrechts,
§§ 206-210, 212-226, Leipsic, 1886; R. Sohm, Geistliche
Gerichtsbarkeit im fränkisden Reich, in Zeitschrift für
Kirchenrecht, ix (1889), 193 sqq.; S. B. Smith, Elements
of Ecclesiastical Law, 3 vols., New York, 1893; C. Gross,
Lehrbuch des katholischen Kirchenrecht, Vienna, 1894;
E. Friedberg, Lehrbuch des . . . Kirchenrechts, 100, 101,
103-107 Leipsic 1895; A. T. Wirgman, Constitutional
Authority of the Bishops in the Catholic Church, New York,
1899; J. B. Saegmüller, Lehrbuch des katholischen Kirchenrechts, Freiburg, 1900-04; W. von Brünneck, Beiträge zur
Geschichte des Kirchenrechts in den deutschen Kolonisationslanden, 2 parts, Berlin, 1902-04.
For the German Evangelical Churches consult: O.
Mejer, Kirchenzucht und Konsistorial-Kompetenz, Rostock,
1851; G. Galli, Die lutherischen und calvinistischen
Kirchenstrafen gegen Laien im Reformationszeitalter, Breslau,
1879; A. L. Richter, ut sup., §§ 211, 227-231; R.
Frank, Die neueren Disziplinargesetze der deutsch-evangelischen Landeskirchen, Marburg, 1890; E. Friedberg,
ut sup., §§ 102, 108-109; K. Köhler, Lehrbuch des . . .
Kirchenrechts, pp. 194, 258, Berlin, 1895.
For Protestant Churches in Great Britain consult: J.
Brownhill, Principles of English Canon Law, London;
1883; Constitution and Law of the Church of Scotland,
Edinburgh, 1884; Compendium of the Acts of General Assembly Relating to Procedure in Church Courts, ib. 1886;
H. W. Cripps, Treatise on the Law Relating to the Church
and Clergy, London, 1886; W. Mair, Digest of Laws Relating
to the Church of Scotland, Edinburgh, 1887; F. H.
L. Errington, Clergy Discipline Act, 1892, London, 1892;
T. B. Hardern, Church Discipline, Cambridge, 1892;
J. Chitty, Statutes Relating to Church and Clergy, London,
1894; R. J. Phillimore, Ecclesiastical Law of the Church of
England, 2 vols., ib. 1895; F. W. Maitland, Roman Canon
Law in the Church of England, Cambridge, 1898; H.
Hardy, Ecclesiastical Proceedings under the Clergy Discipline
Acts, London, 1899; H. Miller, A Guide to Ecclesiastical
Law, London, 1899; J. H. Blunt, The Book of Church
Law, ib. 1901; T. E. Smith, Summary of the Law and
Practice in the Ecclesiastical Courts, ib. 1902; J. M. Duncan,
The Parochial Ecclesiastical Law of Scotland, Edinburgh
1903; W. H. Frere, The Relation of Church and
Parliament in Regard to Ecclesiastical Discipline, Oxford,
1903; P. V. Smith, The Law of Churchwardens and Sidesmen, London, 1903; idem, Legal Position of the Clergy, ib.
1905. For the United States: E. Buck, Ecclesiastical
Law, Boston, n.d.; R. H. Tyler, American Ecclesiastical
Law, Albany, 1866; V. Hoffman, Ecclesiastical Law in
New York, New York, 1868; L. T. Townsend, Handbook
upon Church Trials, ib. 1885; C. B. Howell, The Church
and Civil Law, Detroit, 1886; S. B. Smith, ut sup.; also
New Procedure in Criminal and Disciplinary Causes of
Ecclesiastics, New York, 1887 W. D. Wilson, American
Church Law, ib. 1889; H. J. Desmond, The Church and
the Law, Chicago, 1898; and the literature under CHURCH DISCIPLINE.
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