ECCLESIASTICAL JUDGE. - In a very broad sense, an ecclesiastical judge could be said to be anyone who exercises in the name of the Church the power of judging that belongs to it in the exercise of its power of jurisdiction (v.). The power of jurisdiction is then understood in its integral sense, embracing both the external forum and the internal forum, that is, both when it is directed principally to the common good, by regulating the social relations of the members and with public juridical effects, and when it is directed principally to private good, by regulating the relations of consciences with God and with predominantly moral effects.
But such a broad notion of ecclesiastical judge - even if in itself it adheres exactly to the structure of the Church, in whose order, as is well known, an effective division of powers is absent, and it is moreover particularly difficult to establish an exact criterion of distinction between administrative and judicial functions - by its very vastness and the variety and heterogeneity of the elements it embraces, could obviously not be the object of a unified treatment. In fact, the functions it evokes, even if fundamentally reducible to a single expression, that of bringing a judgment on given elements or situations, assume characteristics, extent, and forms altogether peculiar and different according to the multiform aspects under which the power of jurisdiction of the Church is exercised and divided.
Taking the expression instead in a more technical sense - in analogy to state legal orders in which the judge is the person or the body of persons called to decide a process by means of a decision having juridical force - an ecclesiastical judge will be said to be the organ (a single person or a college) to which, in the order of the Church, is assigned the exercise of the judicial power, or jurisdiction in the strict sense, which belongs to the Church itself as a perfect, independent and sovereign society, both through the authentic decision of causes in contentious matters, that is, of disputes arising among subjects concerning a right or the existence of a juridical fact, and through the application, in the penal or criminal sphere, of sanctions against transgressors of the laws.
Mention has already been made of the difficulty of distinguishing in the Church between the different functions, particularly between administrative and jurisdictional ones, inasmuch as such functions and the related powers are for the most part combined in the same organs. Nevertheless - holding firm the fundamental criterion, inherent in the divine organic constitution of the Church, whereby every public power of the Church, including that of jurisdiction, resides in the Pontiff and in the bishops, so that all others participate in it only insofar as these communicate such power to them, and every original separation of functions is excluded - offices and tribunals were instituted by the Church for their exercise, with attributions distributed among them. And even if such a distribution of attributions does not always entail an absolute distinction of the organs to which they are assigned (thus, for example, - to say nothing of the faculty reserved to the Pontiff, to bishops and to superiors of exempt Religious orders of judging personally - in the case of the Congregation of the Holy Office, which is also a true tribunal, and of that of the Religious, which has the task of confirming, so that they may have executory force, the sentences of dismissal pronounced by the tribunal, etc.) nevertheless it allows one to identify in the Church a complete judicial organization with respect to its ends, with a body of well-determined norms regulating the juridical procedural relationship, that is, the relationship that is established by the process between the parties and the judge (v. PROCESS; ECCLESIASTICAL TRIBUNALS).
The competence and hierarchy of ecclesiastical judges are defined by the CIC (l. IV De processibus, I, sect. I). Given that no one can judge the first see (can. 1556) - a logical consequence of the primacy of the Pontiff (cann. 218-21) - it is established that only the Pope can judge heads of state, their children and immediate successors to government, cardinals, legates, and in the criminal sphere all bishops, even titular ones. To the tribunals of the Holy See is reserved the judging in contentious matters of residential bishops, dioceses and moral persons who have the pope as their immediate superior. Causes reserved by the pope to his own judgment will be examined by the judge designated by him. In the aforesaid causes the incompetence of every other judge is absolute (cann. 1557-1558). Independently of this special competence, and of the fact that anyone and at any time can have recourse to the Holy See, but the judgment in progress of the competent judge is not thereby suspended, save by appeal or by reservation to the Holy See (can. 1569), the judge native to each diocese and for all causes that the Holy See does not reserve to itself is the bishop or Ordinary. The latter can judge personally, with the exception of controversies that touch the temporal goods of the mensa of the diocesan Curia and in which therefore the bishop is a party to the cause; but also for all other questions, he is ordinarily invited to remit cognizance of them, especially if they are criminal causes and grave contentious matters, to the ordinary diocesan tribunal (cann. 1572-78). This is directed by an official, whom the bishop is bound to appoint, with ordinary power of judging, in a person distinct from the vicar general (except in small dioceses or those with few causes), and to whom vice-officials may be substituted, as assistants or substitutes. The official and the vice-officials must be priests of unblemished reputation, doctors or experts in canon law, of at least thirty years of age. They are removable ad nutum episcopi, but they do not cease from their functions nor can they be removed during a vacant see. In each diocese there are moreover to be elected judges, in number not exceeding twelve, even from outside the diocesan clergy, who are called synodal or pro-synodal according as they are designated in the synod or nominated directly by the bishop after consultation of the Chapter, and who have delegated power (cann. 1573-74).
The synodal judges can be taken as assessors by the single judge; they then form, together with the official or the vice-official, the judging colleges, in the causes in which these are obligatory by law. Colleges of three judges are in fact prescribed for causes concerning the bond of sacred ordination, for matrimonial causes, for those concerning the rights and goods of the cathedral church, and likewise for criminal causes concerning the deprivation of an irremovable benefice or of excommunication; a college of five judges is instead required for causes relating to crimes involving the penalty of deposition, of perpetual deprivation of the ecclesiastical habit or of degradation. The Ordinary can entrust to the college of three or five judges also other causes, especially if of particular importance or difficulty. The judges, who together with the president constitute the collegiate tribunal, are nominated for individual causes by the same Ordinary, normally by rotation. The collegiate tribunal must proceed collegially under the presidency of the official or vice-official who directs the process, and pronounces the sentence by majority of votes (cann. 1576-77).
Causes for which the collegiate judge is not prescribed are to be decided by the single judge, normally the official.
For exempt clerical religious, the judge is the provincial; for a monastery, its abbot; between two provinces, in first instance, the superior general; between two monasteries, the superior of the monastic congregation; however, between persons of different religious orders and between religious of the same order that is not exempt or is lay, or between religious and secular clerics or laypersons, the judge will be the Ordinary of the place (can. 1576).
The rules thus far set forth for the members of the diocesan tribunal (as indeed those in general for its composition or functioning as a single or collegiate judge in first instance) hold also for the constitution of courts of appeal at metropolitan or suffragan sees with appellate functions (cann. 1595-1596).
As for the Apostolic See, given the general principle that the pontiff is the supreme judge for the entire Catholic world, and that he can pronounce judgment both by himself and through the tribunals established by him or the judges delegated by him (can. 1597), and holding firm the special norms that determine the cases of exclusive competence of the pontiff himself (can. 1557) and of other special organs designated toties quoties by him (can. 1961) or by the law itself (such as the Congregations for certain matters: cann. 666, 247, etc.), the ordinary judicial functions pertaining to it are exercised by two collegial organs, the Sacred Roman Rota (v.) and the Apostolic Signatura (v.). The first is composed of magistrates, called auditors, chosen by the pontiff himself from among priests who hold at least a doctorate in utroque iure; the second is composed of cardinals, one of whom is the prefect, and among other things, it judges violations of secrecy and damages caused by the auditors of the Rota, and objections of suspicion against them.
The conditions and forms in which the judges of the different grades carry out their functions are governed by the norms of procedural law contained in the CIC (v. particularly can. 1608 ff.) and in the special laws issued for certain kinds of trials or for certain organs. Here it will suffice to recall the fundamental common rule according to which no one can be a judge in his own case, that is, exercise judicial power, whether ordinary or delegated, in proprium commodum (can. 202 § 2), as well as the other rule according to which a judge who has heard a case at one grade of trial cannot judge the same case at another grade (can. 1571).
Regarding the extent and the titles of the competence of the ecclesiastical judge in the canonical order, as well as its recognition or non-recognition in the legal orders of States, or the relations between ecclesiastical and civil jurisdiction, v. the entries GIURISDIZIONE; TRIBUNALI ECCLESIASTICI.
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Arnaldo Bertola