CHAPTER I. INTRODUCTION

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)

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