The Clergyman’s Hand-book of Law
The Law of Church and Grave
By
Charles M. Scanlan, LL.B.
Author of “Scanlan’s Rules of Order,” “Law of Fraternities,” “Law of
Hotels,” etc.
New York, Cincinnati, Chicago
Benziger Brothers
1909
CONTENTS
Imprimatur
Preface
Chapter I. Introduction
Chapter II. What Is A Church?
Chapter III. Constitutional Law
Chapter IV. Statutory Law
Chapter V. Unincorporated Church Societies
Chapter VI. Incorporated Religious Societies
Chapter VII. Superior Authority
Chapter VIII. Inferior Authority
Chapter IX. Membership
Chapter X. Heresy And Secession
Chapter XI. Excommunication
Chapter XII. Elections
Chapter XIII. Officers
Chapter XIV. Meetings
Chapter XV. Church Records
Chapter XVI. Church Tribunals
Chapter XVII. State Courts
Chapter XVIII. Evidence
Chapter XIX. Contracts
Chapter XX. Pews
Chapter XXI. Property
Chapter XXII. Religious Services
Chapter XXIII. Bequests, Devises, And Gifts
Chapter XXIV. Taxation
Chapter XXV. Eleemosynary Institutions
Chapter XXVI. Schools
Chapter XXVII. Parent And Child
Chapter XXVIII. Husband And Wife
Chapter XXIX. Indians
Chapter XXX. Juvenile Courts
Chapter XXXI. Libel And Slander
Chapter XXXII. Crimes
Chapter XXXIII. Cemeteries
Chapter XXXIV. Miscellaneous
Index
Footnotes
IMPRIMATUR
_Nihil Obstat._
REMY LAFORT,
_Censor Librorum_.
_Imprimatur._
John M. Farley,
[cross] _Archbishop of New York_.
NEW YORK, January 15, 1909.
COPYRIGHT, 1909, BY BENZIGER BROTHERS.
PREFACE
The three learned professions, medicine, law, and theology, overlap; and a
man who does not know something of the other two can not be prominent in
his own. Laws relating to Church matters are scattered through such a vast
array of law books that it would be a burden for a clergyman to purchase
them, and without special training he would not know where to look for the
law. Therefore a law compendium covering those subjects relating to Church
matters must be of great value to a clergyman.
There is another view of this subject. When she was mistress of the world
the laws of the Roman Empire were for the Roman citizens, particularly the
patricians; the canon law was the law of the Christian people of conquered
countries and the Christian plebeians of Rome. In the United States we
have the same common law for the President and the hod-carrier, for the
multimillionaire and the penniless orphan, for the clergy and the laity.
Consequently, in this practical age a knowledge of the law of the country
with which the clergy come constantly in contact is expedient, if not
necessary.
The poet says:
“What constitutes a state?...
Men, who their duties know,
But know their rights, and knowing, dare maintain.”
To insure harmony and good order, every Church should obey the laws of the
country; but if any law should impose upon the rights of the Church in any
way, the ruling authorities, the cardinal and bishops, if the wrong is
national, should unite in a petition to the United States Congress,
clearly stating the grievance and asking for its redress.(1) If the
grievance should be within a State, the bishop or bishops of the State
should present the matter to the Legislature of the State. If the
President or the Governor has authority to remedy the matter, go direct to
him. Such was the practice of the wisest of the Popes.(2) The author never
knew of an instance in which a clergyman having a real grievance failed in
obtaining a full and fair hearing from the powers that be, from the
President downward. This method seems to be more in harmony with the
relations of Church and State in a free government, and more intelligent
than to have a convention of working men, who have little time to make a
study of Church matters, pass resolutions, the passing of which generally
ends the action of a convention.
In the chapters that follow, the author has refrained from giving a great
multitude of authorities, but has endeavored to give such as are
sufficient to sustain the text. For example, under the first section, and
many others, a list of citations covering several pages might be given.
That would add to the expense of the volume and would not be within its
compass. The book will better fulfil its purpose by clear, brief
statements of the rules of law, and if a reader desires to investigate
further, the citations given will guide his way.
CHARLES M. SCANLAN.
MILWAUKEE, JANUARY 23, 1909.
CHAPTER I. INTRODUCTION
*1.* _Law, Religion._—From the dawn of the science of law it has been
influenced by religion or antagonism to religion. This is very evident in
the ancient laws of Babylonia, Egypt, Phenicia, Israel, India, and
Ireland. It would be impossible to make a study of the law of any of said
countries without gaining a knowledge of its religious system, whether
pagan or otherwise.(3)
*2.* _Religions._—Ancient nations might be classified into pagan and those
that worshiped the universal God. However, some of the nations at one time
were pagan and at other times had a fair conception of the supernatural.
Also, in Egypt, the class of higher culture and education believed in the
one omnipotent and omniscient Being, but the populace, who could be
controlled more readily by flattering them in their notions and giving
their childish conceptions full sway, worshiped idols.(4)
*3.* _Authority, Right._—In those nations where the ruling authority had
the proper conception of the Almighty, there was a strong, persistent
growth of law upon the basis of natural right; while in the pagan nations
laws were arbitrary and despotic.(5)
*4.* _Philosophical Foundations._—The laws of Greece, down to the time of
Plato, were thoroughly pagan. But, following the philosophical foundations
laid by Plato and Aristotle, unintentionally and unwittingly the laws of
Greece became imbued with the spirit of natural law.(6)
*5.* _Rome, Natural Justice._—Prior to the introduction of Grecian law
into Rome, the laws of that nation were pagan. Grecian law from its
introduction to the time of Octavius was the civilizing element of the
empire. Then it took a turn for the worse, the element of natural justice
being reduced and the element of arbitrary rule becoming dominant.(7)
*6.* _Canon Law._—We will now turn to the first period of canon law, which
covers the early history of the Church up to the reign of Constantine the
Great.(8)
Canon law is composed of the following elements:
1. Holy Scriptures;
2. Ecclesiastical tradition;
3. Decrees of Councils;
4. Bulls and rescripts of Popes;
5. The writings of the Fathers;
6. Civil law.(9)
*7.* _Early Christians._—Owing to the persecutions, the early Christians
were, in a sense, isolated from the State; they held their property in
common, and were governed in matters among themselves by the canon law.
However, for want of freedom of discussion and publication, they were
unable, even within a single nation of the empire, to promulgate a system
of canon law. The foundation of canon law being laid, its development upon
the manumission of the Church was rapid.(10)
*8.* _Persecutions, Defenses._—During the religious persecutions the
Christians almost had law forced into them by surgical operations. The
necessity for their making defenses in the Roman tribunals induced many of
them to give Roman law a careful study. Also, the great number of
Christians held for trial on all sorts of accusations made that branch of
the law of the realm very lucrative for lawyers, and called into the field
many Christians. Incidently, men studying for the priesthood made a study
of Roman law with a view to avoiding its machinations and continuing their
functions as clergymen without being caught in the net of persecution.(11)
*9.* _Constantine, Blending the Law._—When Emperor Constantine became a
Christian (325 A.D.), there was a great change, and the members of the bar
and judges were mostly Christians. It then became necessary for students
of law to study the principles of divine right as taught in the Church,
and while the books of the civil law were read by students for the
priesthood, the Scriptures and the works of the Fathers were read by the
students in law, thus blending the law of the two realms to some
extent.(12)
*10.* _“__Benefit of the Clergy,__”__ Ecclesiastical Court._—As the old
Roman Empire decayed and its power waned, the new one, “The Holy Roman
Empire,” gradually implanted itself in southwestern Europe. The
humiliation that the divine law and the clergy suffered in being brought
into the common courts gave rise to a system of courts within the Church
for the purpose of enforcing her morals, doctrines, and discipline. Those
courts were established in all Christian countries and had jurisdiction of
all felonies excepting arson, treason, and a few other crimes that from
time to time were put under the special jurisdiction of the state courts.
Whenever a clergyman was arrested for a crime, he pleaded the “benefit of
the clergy,” and his case was transferred from the state court to the
ecclesiastical court. Also, when a clergyman was convicted in the state
court of any crime for which the punishment was death, he could plead the
“benefit of the clergy,” which was a protection against his execution.(13)
*11.* _Estates, Guardianship._—Besides the jurisdiction already referred
to, the ecclesiastical court had jurisdiction over the settlement of
estates and the guardianship of children, which varied in different
countries and was very indefinite in some of them.(14)
*12.* _Middle Ages, Common Law._—During the Middle Ages there was a
constant effort on behalf of the ecclesiastical courts to extend their
jurisdiction, and a counter-effort on behalf of the state courts to assume
jurisdiction of cases under the ecclesiastical law. In England, from the
conquest of William the Conqueror to the Reformation, the extension of the
jurisdiction of the ecclesiastical courts brought the new element of
English common law into the canon law; and much of the canon law,
following the jurisdiction assumed by the state courts, became the common
law of the kingdom of England.(15)
*13.* _Gratian, Reformation._—The canon law reached its full development
in the twelfth century, when Gratian, the Blackstone of his age, compiled
the system, but it subsequently lost its influence when the Reformation
prevailed.(16)
*14.* _Bologna._—The great school of jurisprudence, both of canon and
civil law, was located at Bologna, Italy, which reached its zenith in the
thirteenth century. To it students flocked from Western Europe, and from
it were obtained the professors of law in the universities of England and
other countries.(17)
*15.* _Church and State._—In most of the Christian countries, the Church
and State were united, and many of the judges in the civil courts were
clergymen.(18)
*16.* _England, Roman Law._—On account of England’s being subject to Rome
in its earliest age, and afterward because of its being conquered by
France, the Roman law was pretty thoroughly intermixed with the native
English law in the minor matters of the people, and governed in the more
important ones.(19)
*17.* _America, English Law, Civil Law._—The portions of America that were
settled by the English, which included the original thirteen colonies,
were under the English law. In Virginia the Episcopal Church, which was
then the church of England, was made the church of state. Canada and that
portion of the United States formerly known as Louisiana were governed by
the civil law of France. Wherever the French government had no authority
or civil officers, the government was directly under the missionaries of
the Church.(20)
*18.* _Religious Tolerance, Established Church._—The English law and
English ideals prevailing in the original thirteen colonies,(21) there was
a strong effort made by many of the delegates to the constitutional
convention to have the Episcopal Church made the established church of the
new republic. Thomas Jefferson and James Madison were probably the
strongest opponents of the scheme, and outside of the great Carroll of
Carrollton, they were the most earnest advocates of religious tolerance.
The necessity for the fathers of this republic to be united, and their
being unable to unite upon any church, caused the idea of an established
church to be eliminated. Thus was established in our republic the freedom
of conscience and the guarantee that no one shall be persecuted on account
of his religious convictions.(22)
*19.* _Tribunals._—The ecclesiastical courts as a part of the state system
and the “benefit of the clergy,” have been abolished in England and
America. However, as we shall see further on, tribunals in the nature of
the ecclesiastical court exist in churches and fraternities of all kinds
in the United States.(23)