YALE UNIVERSITY LIBRARY 1936 Canonical Procedure IN DISCIPLINARY AND CRIMINAL CASES OF CLERICS. A Systematic Commentary on the "Instruetio S. C. Epp. et Reg., 1880." BY THE Rev. FRANCIS DROSTE. EDITED BY THE Rev. SEBASTIAN G, MESSMER, D.D., Professor of Theology. New York. Cincinnati, and St, Louis : BENZIGER BROTHERS, printers to the HOLY APOSTOLIC SEE. R, WASHBOURNE, M. H, GILL & SON, iS Pateknostbr Row, London, 50 Upper O'Connell Street, Dublin, 1887. ySif)il ®fistat, H, GABRIELS, S,T.D,, Censor Deputatus. Kntjirtmatur, ?:- M. A. CORRIGAN, Archiepiscopus Neo-Eboracensis. Datum Neo-Eboraci, Die 24 Maji, 1887. P«5S Copyright, 1887, by Benzigek Brothers. EDITOR'S PREFACE. When in the year 1880 the S. Congregation of Bishops and Regulars sent to the Bishops of Italy the now famous Instruction on the summary procedure in disciplinary and criminal causes of clerics, it soon became evident that the reform tlius initiated would not remain confined to Italy, but would gradually find its vvay to other countries. Anti cipating this, the Rev. Francis Droste, a priest of the diocese of Paderborn, wrote a short and simple commen tary on the new procedure, which he designed more for practical use than legal speculation. In order, how ever, that the laws themselves on which the several articles of the Instruction are based, niay be sufficiently under stood, the autlior gives in the first part a short exposition of ecclesiastical jurisdiction and its judicial organs, while in the Introduction he determines the place occupied by the Instruction in the public and historical law of the Church. The Third Plenary Council of Baltimore in 1884, com plying with the request of the S. C. de Prop. Fide, adopt ed the same Instruction' with a few slight modifications (which may be seen at a glance in the Appendix). It is a mere question of time when these same provisions sliall be extended to all English-speaking missionary coun tries; and as an English commentary on the Instruction was desired, a German priest of the diocese of Covington, Ky., translated Father Droste's little book. To be of greater service, however, the work needed adaptation to conditions for which it was not originally intended. This labor was intrusted to the present writer, who confesses to having taken very great liberty with the translation as well as with the original work. Droste wrote for readers who had gone through a regular course of Canon law and were, moreover, acquainted with the practice of canonical pro- ' Where this American Instruction differs from the Italian, we refer to it by its initial words, Cum Magnopere; to the other by L'Ordinario; and where they agree, simply hy Instr. 1880. To the Instr. S, C, de Prop. Fide on the Committee of Investigation (see Appendix) we refer by Instr. 1878. Finally to that on the Tridentine suspension (see Ap pendix) by Instr. xHi^. 8 Editor's Preface. cedure. The editor hopes to reach a much larger class of readers. Hence explanatory notes have been added and a number of paragraphs of new matter inserted in the text (these being indicated by an asterisk, thus: 97*) to supply more of what he considers useful or even necessary infor mation; again, for sections dealing with matters of only local interest, others of a more general bearing have been substituted (thus in pt. i. sec. 3), and subjects too lightly touched upon by the author have been more fully devel oped (as, e.g., that of judicial evidence). Besides, more system and perspicuity were to be obtained by placing what seemed logically allied subjects under one head, in stead of leaving them, as originally, scattered in different places (thus were formed chap, i, 3, in pt. 11. sec. 1). In a word, the original has been so radically changed that the author will hardly recognize his German offspring in this " naturalized " American edition. Droste did not consider it necessary to insert copies of judicial formulas or documents, since they can easily be found in Souix and Moiiacelli. With regard to legal pliraseology the editor has tried to use English rather than Latin, notwithstanding his very imperfect knowledge of the former language. Not being a student of Common law he experienced great difficulty in finding the proper English equivalent for the Latin tech nical terms and phrases of which Canon law possesses such an abundance. Yet with an English legal vocabulary at hand it did not seem proper to retain the Latin termi nology in a branch of Catholic science that must become ere long an essential part of theological learning in all English-speaking lands. The editor is fully sensible that he has not given a perfect rendering; still a beginning had to be made. Vivat sequens. A word as to the references. Tiie required series of the Analecta J. P. not being at hand, it was impossible to verify the references thereto made by the author. With the exception of these, however, and those to the Cor pus J. Can. and tlie Acta S. S. (which were all verified), the rest are made by the editor to suit those readers who desire a fuller treatment of the subject or some authority for the opinion stated. Frequent reference Editor s Preface. g is made to the Commentators, that is to those canonists who have written regular commentaries to the Decre tals of Gregory IX., the most important part of the Corpus f. C. and " the backbone of authentic Church legislation." ' These commentaries follow exactly the order of the Decretals as to book, title, and chapter." Yet other, especially Roman, writers on Canon law are not neglected. No apology is deemed necessary for referring more frequently to recent than to ancient canonists. Law and discipline must change even in God's Church. Other times demand other laws, and new conditions require new provisions. From the older commentators we may Iearn the spirit of Canon law, the principles and traditional norms to be observed in its application and execution; but the laws of our own time and the actual practice must be learned from modern teachers. In this connection the Iiish Ecclesiastical Record, 1. c, very appropriately remarks: " We need new books on Canon law for two reasons. In the first place each fresh effort helps to push forward the scientific treatment of ecclesiastical legislation beyond the old lines in one or more directions. Secondly, the law it self, by reason of its daily expansions, requires further ex planation where additions have been made or changes introduced, in order that we may know what it really im plies in our own times and surroundings." This leads to another observation, here offered with due deference to learned jurisperitis. The Instruction of 1880 appears like a new creation. It is not a mere furbishing up of old material or putting together of what had once been parts of various canonical processes. It is a new legislation in spirit, character, and form. Although the matter is gathered from older forms of trials, yet there is evidently a new substantial form to unite them into a new canonical procedure that has no like in all the former laws. Roman teachers have already ad mitted that although being called a summary and econom ical procedure, yet the old rules on summary trials cannot be applied to the new process without further discrimina- ' Irish Eccl. Record, 1886, vol, vii. p 658. ' De Angelis made an exception by reserving book II., on trials, for the last volume in connection with book v., on crime and punishment. IO Editor s Preface. tion; that although following on the lines of the older inqui sition, it is yet of an altogether different nature. Hence the lengthy, detailed, and subtile disquisitions of older writers on the various forms of canonical procedure and the rules which they establish cannot be simply transferred to the new form, although they may throw great light on the na ture and purpose of its several provisions and tell us in what spirit they must be carried out. It is, therefore, quite probable that not only will writers differ in opinion, but also that those whom it concerns will differ in practice. Until Rome, however, shall have decided such doubtful points, as it is anticipated she will (Instr., art. 44), it may be wise to remember that errors in the proceeding will not interfere with the course of law nor render a trial void as long as the substantial rules of justice are observed, and that as to this the law is in favor of the judge. A defend ant or advocate who should, with Sclimalzgruber on his right and Reiffenstuel on his left, enter a plea of nullity on the ground of irregular proceeding would probably discover too late that those learned counsellors referred to " another case." The present Instruction applies not to mere administra tive measures or civil matters, but only to criminal and disciplinary causes. Discipline' here means correction, castigation, and even punishment. This is evident from arts. I, 2 of the Instruction, as well as from the answer of the S. C. de Prop. F., when it says that the Instruction of 1878 was meant for such cases "/« quibus ecclesiastica poena seu censura sit infligenda, aut gravi disciplinari coercitioni sit locus." Hence the interesting question arises : How are the bishops to proceed in purely civil cases, as for instance, of a congregation against the rector or vice versa, or of cleric against cleric, when the matter cannot be settled amicably between the parties ? May they proceed on the lines of the present Instruction ? If not, why not ? In conclusion, mindful of the leading title of this work, the editor is tempted to hope (with the permission of the publishers) that the book may never be needed, but may rather remain " on the shelf." Seton Hall College, South Orange, N. J., May 1887. ' See Du Cange, Glossarium, s. v. Disciplina. CONTENTS. Preface 3 References 14 INTRODUCTION. Chapter I. Object of the Ecclesiastical Law of Disciplinary and Criminal Procedure . . . -15 Chapter II. Relation between the Canon and Civil Law of Criminal Procedure . . ... 17 Chapter III. Sources of the Present Canonical Criminal Pro cedure ........ 20 Chapter IV. Plan of this work 25 PART FIRST. ECCLESIASTICAL JUDICA TURE FOR DISCIPLINARY AND CRIMINAL CASES OF CLERICS. Section I. ecclesiastical DISCIPLINARY AND CRIMINAL JURISDICTION. Chapter I. Ordinary and Quasi-ordinary Jurisdiction . . 28 Chapter II. Delegated Jurisdiction 30 Chapter III. Jurisdiction of Vicars-Geiieral . . . .34 Section II, COMPETENCY OF THE ECCLESIASTICAL JUDICIARY. Chapter I. Personal and Appellate Competency . . 37 Chapter II. Local Competency 43 1 2 Contents. Section III. ORGANIZATION OF ECCLESIASTICAL CRIMINAL COURTS. PAGE Chapter I. Personnel of the Court 48 Art. I. The Judge 48 Art. II. The Auditor or Judge of Inquiry . . 52 Art. III. The Chancellor, Secretary or Clerk . . 57 Art. IV. The Apparitor 61 Chapter II. The Parties 62 Art. I. The Prosecution 62 I. The Fiscal Procurator , . .62 2. Other Plaintiffs . . . .70 Art. II. The Defence 71 I. The Accused 71 2. The Advocate or Counsel . . 74 3. The Attorney or Proctor . . 76 PART SECOND. THE CANONICAL PROCEDURE. Section I. FORMS AND PARTS OF CANONICAL PROCEDURE, Chapter I. Forms of Procedure 78 Art. I, Judicial and Extrajudicial . . .78 Art. II. Accusatorial and Inquisitorial. The In struetio ...... 82 Art. III. Ordinary and Summary . . . .86 Chapter II. Judicial Evidence 91 Art. I. General Remarks 91 Art. II. The Confession 96 Art. III. Testimony of Witnesses . . . loi I. Competency of Witnesses . . 102 2. Weight of their Testimony . . 105 3. Attendance of Witnesses . .110 4. Examination of Witnesses . .116 5, Publication of Testimony . ,119 Art, IV. Miscellaneous Evidence .... 121 I, Expert Opinion . , . .121 2. Written Evidence .... 122 3. Circumstantial Evidence . . 125 Contents. 1 3 PAGE Chapter III. Defensive Proceedings 127 Art. I. Terms and Exceptions .... 127 Art. II. Recusation 132 Chapter IV, Proceeding in Contumacy 136 Chapter V. The Sentence 138 Chapter VI. Various Matters 141 SECTION II. THE CANONICAL PRACTICE. Chapter I. Extra) iidicial Acts Art. I. Canonical Admonitions . Art, II. Canonical Injunctions Art. III. The Tridentine Suspension Chapter II. The Judicial Trial Art. I. The Auditor's Inquest . Art. II, The Final Pleading and Sentence Chapter III. The Appeal Chapter IV. Extraordinary Means of Redress . Chapter V. Execution and Costs .... 144144152 156165165172175 187 193 APPENDIX. Instruetio S. C. Epp, et RR, de Judiciis Ecclesiasticis Sum- mariis (English, Italian, Latin) 198 Instruetio S. C. de Prop, Fide, circa Causas Clericorum , . J99 Instruetio S, C, de Prop. Fide, de Commissione Investigationis 226 Instruetio S, C. de Prop, Fide.de Suspensionibusex Informata Conscientia . 231 Decretum S. C. Epp, et RR. pro Causis Criminalibus , , 234 Extract from the Circular of the S, Congregation of Bishops and Regulars, i Aug, 1851 . 237 pispositio Provisoria pro Actis Appellationis in Causis Crimi nalibus, 26 Martii 1886 239 Ex Responso S. C. de Prop. Fide, 13 Julii 1886 .... 240 Constitutio Ad militantis 241 Index 259 REFERENCES. The asterisk indicates commentators on the C. J. Can, Acta Sanctae Sedis. Romae. A monthly periodical of Roman docu ments and decisions. AJP.^ Analecta Juris Pontificii. Paris. A French monthly periodical of dissertations and official documents on Canon law and Liturgy. Bizzari, Andr. Collectanea in usum Secretariae S. C. Epp. et RR. Romae, 1886. Souix. Tractatus de Judiciis Eccl. 2 vols. Paris. Bouvier. Law dictionary. 2 vols. Philadelphia, 1885. C. PI. B. ///,:=Acta et Decreta Cone, Plan. Baltimorensis III. Cavagnis. Institutiones Juris Publici Eccl. 3 vols. Romae, 1SS3. Craisson. Manuale totius Juris Canonici, 4 vols, Pictavii, *De Angelis. Praelectiones Juris Canonici. 4 vols. Romae, 1877 ff. De Montault. Decreta aulhentica S, C, Immunltatis. Paris. Ferrari. Theorica et praxis regiminis dioecesani, praesertim sede vacante. Parisiis, 1S76. Ferraris. Prompta Bibliotheca Cannnica, etc. New edition. 9 vols. Romae, 1S86. * Grandclatide . Jus Canonicum, 3 vols. Paris, 1882. Henry and Harris. Ecclesiastical Law (Methodist). N. Y., 1872. Hergenrother, Jos. Card. Catholic Church and Christian State. 2 vols. London, 1876. Irish Ecclesiastical Record. Dublin. An exceUent theological and pas toral monthly. Lucidi. De Visitatione SS. Liminiim. 3 vols. Romae, 1883. Martin. Collectio documentorum Cone. Vaticani. Paderbornae, 1873. Monacelli. Formularium legale practicum fori eccl. 4 vols. Romae. Pallotini. Pugna Juris Pontificii statuentis suspenslones extrajudicialiter seu ex inf conscientia, etc. Viennae, 1863. Pastor, The. A monthly journal for priests. N. Y. Pierantonelli. Praxis fori Ecclesiasticl. Romae, 1883, Phillips. Compendium Juris Eccl, Ratisbonae, 1875. Prompsault. Dictionnaire de Droit et Jurisprudence en malifere civile- 6cclesiastlque. 3 vols. Paris: Migne. ^Reiffenstuel. Jus Canonicum Universum. 7 vols. Paris. Richter et Schulte. Canones et Decreta Cone. TridentinI Accedunt S.C.C. declarationes, etc. Lipsiae, 1853. Rota. Enchiridion Confessarii et Judicis Eccl. Taurinis, 1884. *Santi. Praelectiones Juris Canonici. 5 vols. Ratisbonae, 1886. Sanguineti. Juris Eccl. Privati Institutiones. Romae, 1884, * Schmalzgruber. Jus Eccl. Universum. 12 vols. Romae. Smith. Elements of Ecclesiastical Law. z vols. N. Y, 1887. Stremler. Traitfe des Peines Ecclesiastiques, etc. Paris, i860. Thomassini. Vetus Ecclesiae Disciplina. Van Espen. Jus Ecclesiasticum Universum. CANONICAL PROCEDURE. )(ntrotructton. CHAPTER I. OBJECT OF THE ECCLESIASTICAL LAW OF DISCIPLINARY AND CRIMINAL PROCEDURE. I. The right to threaten with punishment certain actions of her members, the Catholic Church received from her Divine Founder at her very origin." She cannot give up this right, for that were to give up her existence; to deny her this right were to den}- her the right to ex ist. It is, rather, one of her most important duties to ex ercise this right to punish, and indeed history shows that she has ever, from her foundation to the present day, successfully administered it. In the exercise, however, of this right of discipline and punishment the Church has not only to make disciplinary and penal laws to be observed by her members, but also actually to apply them in a given case. The latter takes place in disciplinary and criminal procedure, the end and obj'ect of which is, first, a judgment to determine whether a person by a determinate act has violated a penal law and what punishment he has thereby incurred ; secondly, the infliction of the penalty. The penal precept is laid down by positive law, the violation thereof is determined by means of an inquiry, and the judgment or sentence is then the result of a logical inference, namely: ' Matt, xviii. 15-18. 1 6 Introduction. Major: The clergyman who forges papal instruments shall be degraded. Minor: But the clergyman " N." has forged a papal instrument. Conclusion : Therefore Rev. "' N." shall be degraded. Criminal law or jurisprudence may be said to comprise two distinct parts, namely, the law concerning the crimes themselves and their corresponding punishments (ma terial Cr. L.'); and the law of determining the existence and nature of crime in a particular case and of applying the right penalty, or the Rules of Criminal Procedure (formal Cr. L.'). 2. Whether a person have actually committed a delict, and if so, what be its disciplinary or criminal nature, — in other words, what be the real matter of fact, — can only be determined by inquiry and information. But as to how this is to be done, and how thfe judge may be con vinced of the commission of such crime by such person, nations have held different views at different times ; in deed, in every single case those of the judge, accuser, and accused would almost always differ. Hence the very mode and manner of proceeding in a given case, in order to ascertain the criminal character of an act, to refer it to its class in the criminal law and to impose the penalty incurred : the modus procedendi itself must be regulated by law. The Catholic Church must, therefore, establish legal norms of disciplinary and criminal proced ure, and in fact she has done so. It is the object of the science of ecclesiastical criminal procedure to establish scientifically, to combine organically, and further to de velop the positive rules of procedure. 3.. Ecclesiastical punishments are by custom divided into corrective and vindictive (simply or strictly called ' These terms are explained by the fact that the first part treats of the matter {materia) on which judgment is to be given, the other of the form t^forma) of it. Canon and Civil Law. 17 punishments), according as the primary object is either the correction {disciplina) of the offender, or retribution and expiation of the offence." According to this, vve may distinguish between disciplinary and criminal proceed ings. By most punishments, however, both objects may be attained," and as in order to establish the matter of fact a more or less formal proceeding takes place in every case, tbe terms discipli?iary punishment and strictly called punishment as well as disciplinary and criminal procedure are often exchanged ; the more as the boundary line be tween them cannot be easily drawn in practice. There fore in the following pages we use both terms indiscrim inately where they are not logically opposite. CHAPTER II. RELATION BETWEEN THE CANON AND CIVIL LAW OF CRIMINAL PROCEDURE. 4. The rights' of the Church inthe domain of criminal procedure, abstractly considered, are exactly coextensive with her material criminal law. Besides the Church, the State also exercises criminal jurisdiction over its subjects, many of whom, if not all, are at the same time members of the Catholic Church. ' There is yet another end of punishment, namely, the preservation ot public order and the protection of society and its members. This end, however, may be said to be attained partly by the reform of the offender, partly by upholding the sanctity of the law, the moral sense of the public, and love of order by the expiation of the crime. ^ Rota, p. 549, remarks: "Certum est quod ecclesia quam caritas raaterna exercet duo tantum habet proposita in poenis infligendis; primum ut peccator ad bonam frugem redeat, alterum ut ceteri exemplo poenae a crimine deterreantur. Non enim invenies in Ecclesia elatos pastores qui vulnerari potius quam emendare norunt." (Isid. Hispal,) •' On the present chapter cfr. Pierantonelli, tit, i. 2 1 8 Introduction, But the Catholic Church, differing herein from the State, has a twofold criminal tribunal, ^ forum internum and a forum externum. The State, on the other hand, has only a forum externum, for de internis nonjudicat praetor. In the forum internum the Church views the punishable act as sin and the punishment as penance, whose aim is rather to correct the sinner than to get satisfaction. Church and State, however, share jurisdiction in regard to such criminal acts as belong to the forum externum and for which punishment is inflicted as a retribution. But the question whether the criminal cause belongto the ecclesi astical or the secular court depends upon the preliminary question whether the particular cause lie within the com petency of the one or the other legislative power. To solve, in some degree, this preliminary question, eccle siastical penalties are divided into spiritual and tempo ral." Spiritual punishments consist in the withdrawal of spiritual goods, rights, and offices. Temporal punishments have the loss of temporal goods and rights for their ob ject. There is no doubt that the Church has the power to im pose spiritual punishments. . . ^ The Church, as history teaches, has in fact, when not prevented by the State, in flicted all kinds of temporal punishment except those of death and mutilation. The State has not as yet anywhere sought to set aside on principle the right of the Church ' Moulart. L'Eglise et I'Etat. 424. ° The author in the passage here omitted, having stated that the Church should not, in fact cannot,' punish by death or mutilation, and that as regards other corporal or temporal penalties the Church has cer tainly a historical or prescriptive right to inflict them, maintains that such a right cannot be proved "by principles," i.e., as we understand the phrase, from the very nature and constitution of the Church. To us tho affirmative seems, on theological grounds, the only safe opinion. Consult Murray, De Ecclesia, vol, iil. pp. 103, 119 ff.; Tapparelli, Saggio theoretico § 1483 ff. ; Stremler, p. 13 ff. ; Craisson, 11. 5501 ff. ; SchneemOf^, Die kirchliche Gewalt, § il.; Cavagnis, I. n. 279 ff. Canon and Civil Law. 1 9 to institute and carry out disciplinary and criminal pro ceedings before its own ecclesiastical courts in disciplinary and criminal causes against clerics. 5. The State, however, has but too often invaded the sphere of ecclesiastical jurisdiction, partly by denying and restraining the Church's right to inflict temporal punish ments and partly by usurping jurisdiction even in purely spiritual matters. The plea for this usually was that the Catholic Church had on her part, as shown by history, invaded the jurisdiction of the State. The truth is that whenever the Church sat in judgment over purely tem poral matters this right had been conceded to her by the State, as was the case under the Christian Roman em perors; or the people, unable to get any justice from the shattered and impotent secular authority and its courts, turned to the Catholic Church who had a nicely wrought system of criminal procedure even at the time when in the secular courts the proof of a crime committed was as yet supplied by the wager of battle, the ordeal, and the torture. The Catholic Church can never acknowledge the jurisdiction of the State in purely spiritual matters. She has ever repelled it ; the last time in the bull Apos- toliccB Sedis of Pope Pius IX., October 12, 1869." In other matters Church and State stand apart from each other as two independent powers who had best regulate their common affairs by a mutual agreement, in a similar way as was done for the courts of the Papal States by the Secretary of State, Cardinal Bernetti, in November, 1831. The best way to solve this difificult problem history and reason have ahvays shown to be this, that the Catholic Church cultivate a wise criminal legislation and practice, and especially provide for a well- regulated criminal procedure ; then, that the State lend her its physical power, wherever she may need it to en- Also In §§ v., vi., prop, ig, 20, 30, 41, 44, Syllabus. 20 Introduction. force her criminal laws. The State would thus fulfil its duties as well as better attain its objects. If, however, the Catholic Church and the State, each being independent, cannot agree on this common do main, a conflict vvill naturally arise between them." In such a case the Catholic Church, ever inclined to peace, will yield in point of fact and as far as she can without endangering her own existence, founded as she is by God and destined to last to the end ; but at all times she will firmly maintain her inalienable rights. Where these cannot be fully and freely exercised, as is the case at present in many European countries, e.g., in Prussia, she allows them to lie dormant for a time, and is satisfied with imposing such penalties as naturally cannot be grasped by the physical power of the State." CHAPTER III. SOURCES OF THE PRESENT CANONICAL CRIMINAL PRO CEDURE. 6. Three elements of a regulated criminal procedure, viz., the accusation, the trial, and the judgment which constitute its essence, belong to the natural law. To these essential elements of every criminal procedure the ecclesiastical judge of the first centuries of Christianity would add, from the Roman law, such rules and regula- ' On the Pre-eminence of the Church over the State see Card. Hergen' roether. Cath. Church and Christian State, vol. ii., essay xiii., part i.; also Card. Tarquini, Jus Eccl, Publ,, 1, I.n. 33 ff., " De statu conflictus," and again n. 55 ff, ; Cavagnis, i, n, 350 ft.; Allies, Church and State, pp. 70 ff. ''¦ Cfr. the pertinent remarks on i'he privilegium fon in The Pastor, ii. pp. 193. — As a historical commentary on this whole chapter read Card, Hergenroether, 1. c, essay xv,, " Eccl, Jurisdiction," Sources of the Present Procedure. 2 1 tions as appeared to him useful for his purpose. Thus simply by practice was formed the so-called Procedure by way of Accusation, analogous to the Roman, and adopted by Gratian in the Decretum. It remained the usual criminal procedure till the time of Pope Innocent III., whose legislation marks an epoch even in the history of secular criminal law. It was he that brought forth a new work, the Procedure by way of Inquisition. The greater number of Papal ordinances concerning ecclesiastical criminal procedure are contained in the Decretals of Gregory IX,, first, second, and fifth books, which modify many older rules contained in the Decre tum Gratiatti. The later Popes down to the Council of Trent have made but few new regulations. The Corpus Juris Canonici does not itself contain a complete system of ecclesiastical criminal law. This has to borrow from the Roman law many maxims, of which only some, i.e., such as could be modified, are received in the canonical law books. For points of criminal procedure which are wanting in the Corpus Juris Canonici, practitioners and canonists of all times refer to the Corpus Juris Civilis as containing a source of valid law for the Roman, i.e., the Catholic Church. Besides, the laws of civil and crimi- nal procedure were formerly not so sharply distinguished as at present, and many rules of civil procedure were ap plicable in criminal trials. 7. Thus, indeed, the Council of Trent found a complete system of ecclesiastical criminal procedure of which the foundation was the Corpus Juris Canonici, but the com plement in the Corpus Juris Civilis. The Council of Trent effected many and especially radical changes in criminal jurisdiction, and introduced the important Se7t- tentia ex informata conscientia. Since then, however, the development of the law in this particular has not been at a stand-still. It is pre- 22 Introduction. cisely the law of criminal procedure, more than any other part of public law, concerning vvhich the views of the times depend upon the existing political conditions, and where the intellectual and moral development of the several nations and states must be taken into considera tion. But more especially is to be borne in mind that criminal procedure is but a means to an end. This end, indeed, must always necessarily be attained, yet the means thereto are different. Of these now one then another may appear more appropriate according to cir cumstances and views. Finally, one cannot ignore the fact that science also has made progress upon this field. Since the Council of Trent the Popes by enacting for the whole Church general norms only^of criminal pro cedure, have made little allowance to the needs of the time. We may except the celebrated Constitution of Benedict XIV,, Ad militajttis^ by which he abolished some abuses in appeals and inhibitions. Development of the law in this particular could only proceed byway of custom and special legislation. Yet even the ecclesiasti cal law of custom, especially after the Church has at tained her immense international extent, can be only particular or local law. This becomes still more evident when we consider how differently civilization was devel oped among the nations, and how manifold and various were the relations between Church and State. The Catholic Church has everywhere within the last centuries endured great trials ; in Germany, in particular, other ecclesiastical societies combined with the temporal power to oppose her. In many other countries she could not for a long time exercise her criminal jurisdiction in the manner desired by Canon law, much less could she think of further development in the proper sense." ' See Appendix. ' The author gives here a very short sketch of the history of Canonical Sources of the Present Procedure. 23 Of the highest importance for ecclesiastical jurispru dence everywhere is the progress of canonical criminal law in Italy. There the Popes themselves continued to legislate on criminal procedure, a duty which they could the less forsake that they had also temporal do minion over the Papal States. They usually availed themselves of the Congregation of Bishops and Regulars to issue new ordinances for the canonical trial. Clement VIII. and Urban VIII. issued decrees touching appeals and inhibitions, which Benedict XIII. expounded at the Roman Council of 1725, where he also abolished the oath of the accused. After Benedict XIV. had by the afore mentioned constitution Ad militantis regulated the same matter, Pius VII. by the bull Post diuturnas defined the competency of the Congregation of Bishops and Regu lars in criminal matters. In fact this Congregation has in the present century issued a series of important de cisions upon ecclesiastical criminal procedure, e.g., upon the legalization of causes in 1832, on appeals and appel late courts in 183S and 185 1." 8. On June nth, 1880, our present gloriously reigning Pope Leo XIII. issued, through the Congregation of Bishops and Regulars, an instruction for ecclesiastical courts on the summary process in disciplinary and criminal cases against clerics, which deals almost exclusively with the mode of procedure and is formal law for Italy only." This instruction is the more remarkable and important that it comprises the most essential rules of canonical procedure which the Roman Congregations for the last Procedure in Germany. For any one desirous of following the historical development of Ecclesiastical Criminal Law since the Council of Trent, in Austria. France, Germany, and Italy, we knovv of no better source of information than the famous " Collectio Lacensis Conciliorum Recen- tiorum," 5 vols., published by Herder in Freiburg, Baden, 1870 ff, ¦ See Appendix. ' See Preface. ' 24 Introduction. three centuries have held to be applicable, and have themselves made use of, although not so much for their own tribunals where some departure from ordinary pro cedure takes place, but rather for the courts of the lower instance, the legal validity of whose causes they have to examine as appellate courts or higher instance. With only a few exceptions that instruction is composed ver- botenusoi the numerous rescripts of those Congregations. It is, in one word, the result, compressed into short para graphs, of the development of ecclesiastical disciplinary and criminal procedure as it progressed in the course of centuries formally and explicitly in Italy, substantially in the whole Catholic Church." It would appear that the result of the growth of par ticular laws on ecclesiastical procedure, being influenced by so many different agents, should be exceedingly varied and unequal according to different countries, provinces, and dioceses of the Church. Yet if we com pare them so far as they are accessible to us, we find a remarkably slight difference. This circumstance arises from the fact that the gradual advancement started from an already well-developed and solid foundation, the gen eral Canon law, and progressed but very slowly. Be sides, there was Italy and especially Rome, where on account of the larger practice the development was al ways a few degrees in advance, to serve as a standard. Not only that. The various particular laws found also at Rome their centre of unity; for besides the fact that the positive leges script ae par ticular es were to be submitted to the Popes for examination and approbation, there was at Rome the supreme court where all complaints and ' " It would seem that in this Italian Instruction we have the ground work of what is destined to become the mode of proceeding in criminal and disciplinary causes of the clergy throughout the universal church." — The Pastoi, II, 194. Plan of this Work. 25 recourses relative to criminal trials were finally brought together and acted upon. The decisions of the Roman Congregations, therefore, in regard to disciplinary and criminal procedure continue to be a steadily flovving source and regulating principle of the law of ecclesiastical criminal procedure. CHAPTER IV. PLAN OF THIS WORK, 9. Ecclesiastical criminal procedure cannot be, as ex perience teaches and as we have already mentioned (n. 3), without just and legally regulated forms, if, on the one hand, the Church would accomplish her object and fulfil her duty of maintaining order and discipline, and, on the other hand, would assure those whom it mostly concerns of the justice of her proceedings. In every criminal procedure we must distinguish between material forms, that is, those whose non-observance would make the proceeding void, and immaterial forms which may be neglected without the proceeding becoming void on that account, — a distinction very similar to that between preceptive and mere directive rubrics in Liturgy." The substantial requisites and formalities of procedure must, therefore, be the same in all ecclesiastical tribunals ; to depart from, or omit, them altogether as a rule cannot be thought of; for every such proceeding would be eventually amended or simply reversed at least by the highest instance. On the contrary, accidental formalities, mere directive norms may be different in the one and ' On these material (essential, substantial) and immaterial (non-essen tial, accidental) forms, cfr. below, n. 50 ff. 26 Introduction. the other court according as either the bishop has laid down or practice established obligatory forms ; their choice, application, or omission depends upon various circumstances and reasons of expediency. Canon law contains many cumbersome and vexatious though in themselves quite immaterial forms, taken from the Roman law, and which the canonical codes no less than the older practice declared essential and obligatory. It was on these forms that disputes continually arose concerning the violations of the rules of procedure ; and the frequent reversals and long delays of causes brought the whole procedure into discredit, until finally those forms went out of use in one court after the other, as they had already in the supreme court at Rome, The progress of the Catholic Church at present is of the kind that while internally she is growing in strength and power, yet in unfolding her external life she is con fined to the minimum. The ecclesiastical law of criminal procedure also has endeavored to divest itself as much as possible of all empty forms, and instead of them to offer better services to justice. It thus happens that almost everywhere in the Catholic Church criminal procedure puts on a summary character, that is to say, it discards all those unsuitable and troublesome forms just above mentioned. Rome herself and Italy give the example. ID. We intend, in the following pages, to give a short systematic exposition of canonical disciplinary and crim inal procedure against ecclesiastics. We exclude, there fore, from our treatise the criminal procedure against laymen. Against these the Church nowadays proceeds only in case of very great necessity, viz., when by their conduct they give great public scandal. In the course of centuries several kinds of canonical criminal procedure against ecclesiastics were contem poraneously and successively in use, but are no longer at Plan of this Work. 27 present. Setting aside the Notorium and the Denuntiatio in its canonical technical meaning, the so-called Procedure by Inquisition will be found to be almost the only one in practice. It has, however, nowhere been kept in its purity, but has especially in recent times approached the Procedure by Accusation^ We shall occupy ourself with explaining only the ecclesiastical disciplinary and criminal procedure as now in use, and shall keep out long historical discussions, as also the solemnitates et strepitus judicii. Still we do not confine ourself to strictly judicial proceedings, but speak likewise of extrajudicial actions. This with a greater right since the latter often stand in relation to, and con nection with, the former and should, whenever possible, precede it. It is in the nature and spirit of the Catholic Church that, where it will sufifice, extrajudicial proceed ings should be the rule. In regard to the matter to be presently dealt with, we have only to remark that we shall make use of the sources mentioned in the preceding chapter as they deserve. After what was said ther6 we need not explain why we adhere with partiality to the rules of the Instruetio of 1880, and why we give it, where it goes beyond the older Canon law, the preference over mere private opinions of canonists. We shall distinctly mark the essential or substantial requirements of the procedure. Directive norms we take, so far as they cannot be found in law books, from decisions of the Roman Congregations. We are ready to hear practitioners object that many things are managed differently with them, and we have no objec tion if they desire to retain their fond old customs. ' See below, n. 47 ff. ECCLESIASTICAL JUDICATURE FOR DISCIPLINARY AND CRIMINAL CASES OF CLERICS. SECTION L ECCLESIASTICAL DISCIPLINARY AND CRIMINAL IURIS DICTION. CHAPTER I. ORDINARY AND QUASI-ORDINARY JURISDICTION. II. The powers of the ecclesiastical judicature are di vided by canonists of more recent times into jurisdictio ordinaria, quasi ordinaria or vicarial and delegata. This division, though not entirely satisfactory, may yet be kept in ecclesiastical criminal law. The Pope has jurisdiction over the whole Catholic Church, and each bishop over his diocese. Their juris diction is ordinary if. ordinarid), because their offices with and by which they receive jurisdiction are perma nent institutions of the Church, and consequently their Jurisdiction is permanent and regular. The bishop is the (Ordinary /(7r excellence. To the ordinaries the instruction '\L Ordinario is addressed. The Pope and the bishops have ordinary jurisdiction by divine law. In the course of time positive law resulting ' Cfr. Commentators, in 1. I. tit. 31. Or dina ry Ju risdiction . 2 9 from previous facts gave ordinary jurisdiction also to Archbishops, Patriarchs, Primates, Exarchs, the Papal Vicars of Thessalonica and Aries, and those Papal author ities in Rome to vvhom in certain matters the regular power to decide has been granted." Upon a very peculiar legal title, finally, rests the ordi nary jurisdiction which the exempt Prelates with quasi- episcopal authority, the regular chapters, and the Cardi nals in respect to their titular churches enjoy." 12. Quasi-ordinary or vicarious {vicaria) jurisdiction' has this in common with the ordinary, that it is also united with an office, though not always vvith a permanent one, and that when not limited by statute or the will of the appointer it is generally of the same extent as the corresponding ordinary jurisdiction. From this, however, it differs in that it can be withdrawn not only by criminal sentence, but even at any time and at pleasure by the Pope or by any other person to whom such right belongs. Quasi-ordinary jurisdiction belongs to the chapter sede vacante, or more correctly to the vicar capitular ;* also to the bishop's Vicar-general, the Coadjutor Bishop, and the Vicar Apostolic. ' Decision of Gregory XVI., 1840. AJP. XII., 554, 943. ' Cardinals have no longer judicial, but only administrative, power over their churches. See Santi, 1. I. tit. 31. n. 36 ff. ' See Commentators, 1. I. tit. 28. ¦* Although with us the Administrator of the diocese, sede vacante, holds a similar position as elsewhere the Vicar Capitular, yet his jurisdiction is not vicaria or quasi-ordinary, but merely delegated Cfr. C. PI. Bait. II. , n, 96 ff. 30 Ecclesiastical Criminal Jurisdiction. CHAPTER IL DELEGATED JURISDICTION. 13. Whoever holds ordinary or quasi-ordinary jurisdic tion has the right, so far as it is not restricted in the latter case, to transfer his judicial power to another, to delegate it. The delegate (substitute) has then power by transfer, mandate, or commission {J. delegata, also called mandatd).^ Consequently he does not exercise jurisdic tion in virtue of his own right, which he originally ob tained with an office or the like, but in the name of him who has charged him therewith. We distinguish between delegatio a jure (by law) and d. ab homine (by official). ° Delegated jurisdiction is mostly of the latter kind. An instance of the former we have with bishops vvho by several statutes of the Council of Trent, therefore by law or a jure, are made once for all either simply or moreover {etiam)) delegati Sedis Aposto- licae for various matters which were formerly reserved to the Pope, or at least were generally administered through his legates. In all cases in vvhich the bishops act simply as {tanquam) delegates of the Apostolic See, they have not ordinary jurisdiction, otherwise a delegation would have no sense. On the contrary, in those cases in which they are empowered to act as being moreover {etiam tan quam) Apostolic Delegates, ordinary jurisdiction in the matter abstractly considered does generally belong to ' Phillips, §§ 177, 178. Bouix, t. i. p. 142. Craisson, n. 307 and 5572 ff. Commentators, 1. I. tit. 29. ^ In the first case the power to act is conferred upon the delegate or deputy by positive lavv or statute, whereas in the latter it is derived di rectly from the principal whose agent the delegate becomes. Delegated Jurisdiction. 3 1 them, but some particular circumstance, some privilege, etc., coming between, the object of their jurisdiction be comes differently qualified, the person exempted, etc., so that ordinary jurisdiction now no longer suffices, and con sequently the actual jurisdiction of the bishops in the matter is to be considered as being obtained by papal delegation. This seems to us with Hinschius' the only true construction of the phrase etiam tanquam Sedis Ap. delegati^ The question whether in a particular criminal matter the bishop exercise jurisdiction as Ordinary or as delegate becomes practically very important in two cases. For in the latter supposition the metropolitan court is dropped from the order of appellate instances ; ^ and when the episcopal see becomes vacant, those delegated powers of the bishop do not pass over to the chapter or the vicar capitular.' To be capable of obtaining delegation to exercise ec clesiastical disciplinary and criminal authority, the dele gate must possess the same qualities which in these matters are required of the ordinary judge and which will be spoken of later (n. 24 ff.). Only by reason of being subject to the delegating person as to his superior ' Kirchenrecht, I, 178. * The ordinary view is that in those cases the bishop has ordinary as well as delegated jurisdiction, and may act by the one or the other. In case of doubt he is supposed to have proceeded by delegated power, that being the more honorable one as coming from the Pope. Craisson, n. 287; Stremler, p. 445; De Angelis, h. t., n. 2; Santi, h. t., n. 3. * The appeal will lie directly to the Holy See. "* There is yet another division of delegated jurisdiction; viz. that ob tained by special or by general delegation. By the first the delegate is empowered to transact some single, special matter {ad unum negotium); by the latter he is deputed indiscriminately for a whole class or kind, or even several kinds of affairs {ad universitatem causarum). Finally, delega tion by official may be respectively called official or personal, accordingly as it was given either In view of the office and rank held by the dele gate, or merely because of his personal qualities. 32 Ecclesiastical Criminal Jurisdiction. can the delegate be bound to accept the delegation. Hence the Pope can effectively delegate every cleric ; but a bishop, as a rule, only his diocesan clergy. However, to decline such delegation, if done so for good reasons, is allowable. A delegate has not, without the express or implied concession of the law or the principal, the right to transfer to a third party his delegated jurisdiction; he has not, as we say, the right to subdelegate. Such right belongs to Papal delegates (except the delegation be personal) and to those who are delegated in universitatem causarum. Also when two or more are jointly delegated, any one of them may commit his part to some one else or to one of his fellow-delegates.' 14. The jurisdiction of the delegate begins at the mo ment he receives the written commission (letters-patent) from his principal." Any strictly jurisdictional acts pre viously done are void ; not so, however, simple inquiries made for the sake of information. Upon demand of the parties the delegate must show his credentials. His juris diction expires' either with the lapse of the time (term) for which he was delegated, or by the final execution of his charge ; also the moment he receives notice of a recall by his principal, which the latter is always entitled to make ; again by a successful recusation, or by declaring himself incompetent because of defective delegation. After the death of his principal the delegate can only then carry the proceedings to the end, if they are already begun, which is done by the citation of the parties. Dele gates by law, however, do not lose their authority by the death of their principal. ' c. 6, X., I. 29. Santi, h. t , ji. 25 ff. ' c. 12, X.,1l. 28. Santi, h. t., n. 19 ff. * On the cessation of delegated authority see Santi, h. t., n. 33 ff. • Crais son, n. 490 ff. Delegated Jurisdiction. 33 By the death of the delegate himself the delegation terminates, if he was delegated personally and not as the incumbent of an office of fixed duration ; since in the latter case the delegation usually passes to his successor in office. If several were delegated with collegiate or asso ciate power, then, by the death of one the commission of the others also terminates, if he did not subdelegate some one else in proper time (provided he could have done so), and if the proceeding was not already under way. 15. The nature and extent of the delegated power is determined by the written commission of the principal. Delegation is in its nature stricti juris (of strict interpre tation) and cannot, therefore, in case of doubt be pre sumed to cover other cases and persons." Going beyond the commission will as a consequence void the proceed ings. If several are delegated, then the special mandate passes over the general, and a later one over the earlier.' Where special commissions of equal date are given to several delegates in solidum, they may agree among them selves to leave the whole cause to one of them. If any doubts arise among them on the powers conferred, and if they cannot themselves settle the question, they must choose according to Canon law arbiters to do it.° An appeal lies from the delegate to his principal ; but if a Papal delegate has sub-delegated his whole commis sion, he drops from the order of instances and the appeal is taken immediately to the Pope. Likewise, in case he had given over part only of his commission, if he die or the major excommunication be passed upon him. When ' S. C. C, 22 May 1875; apud Acta S. S. vm, 675. "•' Commentators in 1. i. tit, 3, '' de rescriptis." Santi, h, t,, n. 26 ff. ^ c. 16, X., h. t. On Arbiters cfr. Commentators in 1, I, tit. 43. We omit here from the author's text a paragraph on joint delegation, Cfr. on the subject Santi, 1, I, tit. 29, h. 25 ; Craisson, n. 5575 ff. 34 Ecclesiastical Criminal Jurisdiction. two of the three delegated judges have transferred part of their authority to two other persons, and now these sub-delegates proceed, in the matter committed to them, jointly with the third delegate, then the appeal fiom their decision does not lie to the first two delegates, but to the original mandator." Again, an appeal may be made from a sub-delegate in partem on the plea that the principal died before either the delegate or sub-delegate had in any manner begun the action. In this case the appeal would have to go, not to the delegate, whose jurisdiction is denied, but rather to the principal. The same must be observed in all cases where the jurisdiction of the dele gate is put in question. For by appealing on that plea from the sub-delegate to the delegate the appellant vvould at the same time admit and yet deny his jurisdiction, and thus contradict himself.' CHAPTER IIL DISCIPLINARY AND CRIMINAL JURISDICTION OF VICARS GENERAL. i6. The vicar-general' is the ordinary representative of the bishop also in criminal jurisdiction. His jurisdiction, however, ceases when the bishop himself conducts pro ceedings ; it is suspended, if the bishop or himself be suspended, interdicted, or excommunicated ; it terminates immediately with the death of the bishop, in whatever stage the cause may happen to be. In this, indeed, it ' c. 3, in 6°, I. 14. ^ c. 14, ibid, ' Commentators deal with this question under tit. 28, De officio vicarii 1. I. Bouix, I. p. 413 ff. ; Craisson, n. 1162. Jurisdiction of Vicar-General. 35 differs from delegated jurisdiction by which the delegate can at least finish a proceeding already begun. Besides, the vicar-general can be dismissed at any time, at the pleasure of the bishop. This jurisdiction of the vicar-general, however, does in no way extend to all criminal matters. In some acts, as we shall see later, he cannot represent the bishop at all. According to lavv and custom, general criminal jurisdic tion is not conferred by the instrument by vvhich one is appointed vicar-general. In fact, he is deprived of al most all criminal jurisdiction, especially in more weighty matters." Even those faculties which are otherwise gen erally contained in such a commission, the bishop can withhold. Criminal judicial powers, however, though not contained in his general commission, may be given to the vicar- general by a special mandate from the bishop, except in the cases reserved by the law. This can be done in two ways, either for all cases that may arise, or only for a single ca.se that has already arisen. In the first case, the transfer will hardly be made otherwise than upon the vicar-general as such, so that rn virtue of a special man date given in his letters of appointment, he exercises criminal jurisdiction in general or with certain restric tions as vicar-general or representative of the bishop, and not purely as delegate. In the second case, vvhen he is clothed with special power for a particular cause, it may sometimes be doubtful whether it was conferred upon him as vicar-general, or whether he has only become a simple delegate. This question is practically of great importance, for no appeal lies from the vicar- general as siich to the bishop; but it does, when he acted only as episcopal delegate. As his commission, however, is in every case conferred in writing, recourse must first ' Santi, 1. I. tit. 28, n. 32. 36 Ecclesiastical Criminal Jurisdiction. be had to that document. If this do not solve the question, the presumption, at all events, is in favor of his being charged as vicar-general, and that, conse. quently, no appeal lies from him to the bishop. Exactly the same principles are applied, mutatis mutandis, when there are several vicars-general. In that case the criminal jurisdiction is often conferred on one of them only, who in some places bears the name of Official^ 17. The vicar-general, as he is not the Ordinary him- self, and is, therefore, not presumed to have authority in all criminal causes, must in the exercise of his criminal jurisdiction prove his authority to the interested parties, provided it have not already been made officially known. His powers must each be shown from his written man date, to explain vvhich custom may even of itself suffice. Yet to prevent the proceedings from being subject to abatement, it will generally be better to have recourse to the bishop, that he may himself authentically interpret the commission. In the same manner we must answer the next question, whether the vicar-general can, in a particular case, dele gate or perhaps even stjb-delegate. This question is, as a rule, to be answered affirmatively. In case of the bishop being absent, the vicar-general, if sick or otherwise prevented, has the right to sub-delegate another for the most urgent cases. Such sub-delegate would retain his authority, even if the vicar-general should die, until the bishop shall have further provided.' ' Cfr, the interesting article s. v. Off cialit/ apud Prompsault. ' S. C. Epp., 12 Aug. 1833. AJP., XIII. 69, Sgg. SECTION II. COMPETENCY OF THE ECCLESIASTICAL JUDICIARY. CHAPTER I. PERSONAL, REAL, AND APPELLATE COMPETENCY. 18. All criminal and disciplinary causes of bishops' which are punishable with deposition or privation of the benefice, the Pope himself decides in the first instance. If an inquiry is to be made at the place of the delict or delinquent, he can delegate for that purpose an arch bishop or a bishop only, and that by instrument signed under his own hand; minor transgressions of bishops can be acted upon by provincial councils, who may dele gate others for the purpo.se.' As we have before observed, the Pope has full jurisdic tion over all ecclesiastics of the whole Church. There- ' On the subject of this section cfr. Commentators. 1. 11, tit, 2, " de foro competenti," Also .5(;«2.*, I. p.242 ; Craisson, u. 5653; Smith, n. 781 ; Sanguineti, n. 547. We use the term competency in the meaning that it has in Roman or French law, in which, however, it seems to be seldom used by American or English writers. They prefer the term jurisdic tion or the Latin forum. See Bouvier, h, v. Real competency is some times termed jutisdiction of the cause, as distinguished from /, of the person and/, of the place. The same threefold distinction Is observed by canonists. " Competentia procedit ex ratione tenitotii . . . vel ex natura causae . . . aut ex qualitate personarum." {Santi, h. t., n. 3,) ' Cone. Trid., S, xxiV,,c. 5, de Ref. See the report of the trial of Jean Soanen, Bp. of Senez, by the Provincial Council of Embrun, France, 1727 {Cell. Lac. cit., vol, I. pp. 655-742), 38 Judicial Competency. fore his jurisdiction over the clergy who are subject to bishops is, in the first in.stance, concurrent with that of the bishops. He should, however, according to the de cree of the Tridentine Council," only then assume juris diction in disciplinary and criminal causes in the first instance, and by passing over the episcopal instance, when the proceeding has been pending in the episcopal court already for two years without judgment having been rendered, or when the parties have vvith the con sent of the bishop applied to him. For all disciplinary and criminal causes, even the greater ones of his secular clergy, as likewise for transgressions of regulars which have taken place outside of the monastery (provided the superior of the order do not take action in proper time'), cognizance in the first instance belongs to the bishop,' that is, in general to the Ordinary, or to whoever is by law or by mandate his representative. Such are usually the Coadjutor bishop, the vicar-general, or Official, and Sede vacante the vicar-capitular. From their sentence, however, no appeal can be taken to the bishop (unless it be quite certain that they acted merely as the bishop's delegates, a rather unusual thing in such matters), be cause their court and his are but one instance.' 19. Appellate judges in the second instance " are the ' S. XXIV., c. 20, de Ref, Cfr. Bened. xiv.. Ad militantis, § 42, ^ Co7tc. Trid., S. XXV,, c, 14, de Regul, et Mon. « Ibid., S. xni., c. 4, de Ref. * From a decision of the S. C. C, 20 Dec. 1873, the Acta S. S., VII. 575, argue Episcopum cum sua consistorio sive curia unum idemque tribunal constituere. On the vicar-capitular cfr. Ferrari, tit. 7, 21. ' Although the Holy See has an unlimited right to receive appeals from the first instance, it is yet a maxim of Canon lavv also, that appeals should not be made per saltum (Cone. Trid,, S. XXII, c, 7, de Ref.), i.e, passing by the intermediate appellate court. Still where this rule cannot be easily observed, an appeal from the Ordinary may be taken immedi ately to the Holy See. This vvas customary in the Province of West minster until 18S4, and is still left free to the clergy of Ireland. (See Personal and Appellate Competency. 39 Metropolitans. In respect to causes which the metro politan decided in the first instance as Ordinary of his diocese other provisions must be made." In Prussia the PI. Syn. Maynooth, 1875, n. 265.) In the postulate of the French bish ops at the Vatican Council they say: Appellationes ad S. Sedem omisso medio secundae instantiae, metropolitani scilicet, non deberent admitti. Similar requests had been made long before at the Council of Trent. {Martin, p. 155 f.) In the United States an appeal to the metropolitan in the second instance was first made obligatory by the Provincial Coun cil of St. Louis, 1855, whose decree was sent by Rome's request to the other American Provinces as a. norm to follow. It was again formally adopted by the second plenary Council of Baltimore, 1866, in n. 77. In the same Council the Apostolic Delegate was requested by the S. C. Prop, to insert as one of the rights of the Archbishops (vvhich the fathers had omitted from their enumeration) to receive appeals from the sen tences of their suffragans (n. 81, IV.). The same is again implied in the Instruction, art. 33, 41. See Rota, n. 807. ' By the general law of the Church an appeal from the metropolitan either as such or even as Ordinary lies imraediately to the Holv See. Yet that his own subjects might have the same privilege as his suffragan clergy, namely, to carry an appeal to two higher courts, and in order to expedite matters by bringing the case to a nearer tribunal, different ways have been adopted according to various conditions. Three of them deserve special mention. First, the metropolitan has two distinct tri bunals, one the diocesan (of the first instance), the other the metropoli tan (of the second instance). To the latter go all appeals whether from his own diocesan or frora the suffragan courts. Such an Officiality nUtropolitaine {auditorium metropoliticum) was ordered by the Provincial Councils of Rheims (1849), Albi (1850), and seems to be generally estab lished in France and In Prussia. Another way is to make the senior suffragan the judge of the second instance for cases from the metropoli tan's own diocese. This, we think, is the case in Bavaria, and has been by decree of the S. C. Prop.. 20 June 1884, made the rule for the diocese of Westminster. A third mode, finally, is to carry the appeal from the metropolitan of the first instance outside of the province to another, mostly neighboring, metropolitan. This happens in Austria and with us in the United States. The third plenary Council of Ballimore, n. 316, has expressly ordered, by special concession of the Holy See, that in the present case an appeal shall lie ad Metropolitanum viciniorem. A motion was made at the same Council, if we are rightly informed, to decide at once which one should be considered for each metropolitan his respec tively nearest appellate court. But we have never heard of the decisioh. 40 Judicial Competency. metropolitans of Cologne, Breslau, and Enneland have their own courts of the second instance, Gnesen and Posen are assigned to each other as such. In Bavaria, Augsburg is delegated in this respect for Munich- Freising, and Wurzburg for Bamberg. In Austria, Prague is the court of second instance for Vienna and Salzburg, Olmutz for Prague, and Vienna for Olmutz." For disciplinary and criminal causes of bishops, which the provincial council decided in the first instance, Rome, of course, would be the next appellate court. 20, Judge in the third and last instance in disciplinary and criminal causes of clerics is the Pope,' who for that purpose avails himself either of his Curia at Rome, or of delegated judges in the several dioceses. The conditions for the delegation of the latter are specially regulated. The Council of Trent, namely, ordained ' that at every provincial and diocesan synod at least four qualified ecclesiastics should be chosen, and their names presented to the Pope {judices synodales).* Later on, Benedict XIV., Quamvis paterna, August 26, 1741, §§ 3-6, ordered further that where for some time no synod could be convened, the bishop, after having consulted the chapter, shall choose and present to the Pope such qualified clerics {judices If geographical distance were to decide, Chicago, e.g., would be appellate court for Cincinnati. Milwaukee, and St. Louis; St, Louis vvould be such for Santa F6, and New Orleans; Philadelphia, for Baltimore and New York, etc. Boston, New Orleans, and Santa F6 would be free. ' Phillips, § 179, note ii. ' In some countries the Holy See has recently, by special delegation, established permanent appellate courts of the third instance. Such a one is, e.g., the metropolitan court of Prague for all causes being carried there from the second instance at Olmutz and Lemberg, Thus in Bavaria, Munich and Bamberg are for each other courts of the third in stance. ' S. xxv., c. 10, de Ref. (with decisions of S. C. C. ap, Richter and Schulte, p. 457). * Cfr. Bened. XIV,, deSyn. D., 1. iv. c. 5: Santi, I. i. tit. 29, n. 145. Personal and Appellate Competency. 41 prosy nodales). These synodal and prosynodal judges do not as yet by their election and presentation obtain any kind of jurisdiction, but they are for each particular case delegated by the Pope himself, and are then Papal dele gates. Here, however, arises a difficulty. In the first instance the bishop himself, possibly, was the judge ; in the second instance it was the metropolitan ; but for the third in stance inferior clerics are delegated bythe Pope, and may, perhaps, reverse or annul the episcopal and metropolitan sentence. That this would impair the judicial authority of the bishop is evident. In view of this the Tridentine Council had in the beginning prescribed that the Pope should delegate an archbishop, or at least a neighboring bishop." But as this was for the most part not practi cable, the Council abandoned it by the aforementioned enactment concerning synodal judges. Yet, where pos sible, only such clerics should be elected who hold a dignity, a personate, or a canonry.' 21. This mode, however, is not much in practice at ' S. XIII., c. 2, de Ref, ^ c. II, de Rescript, in 6°, I-. 3. — As the English equivalent for the latin Personatus we retain the noun Personate, used by Waterworth and Walcott, The term persona (person), used in Civil law, would rather in dicate the holder of a personate than that itself. To understand the mean ing of the term one must remember that at least since the twelfth cen tury the different ranks among the diocesan clergy, especially that of the cathedral church, used to be characterized respectively as dignitas. per sonatus, and officium. Dignity meant a benefice to whiih jurisdiction and pre-eminence of honor were annexed — e.g. ihe vicar-general ; per sonate, a benefice with which honorary pre-eminence but no jurisdiction was joined — e.g. a canon; office finally, a benefice without jurisdic tion and any special honor — e g. the sacristan of the cathedral. In modern times, however, what zreperse mere personates have been made dignities by papal privilege. Such is the case vvith the provost {praeposittis) of cathedral chapters in England and, we suppose, in Canada. Cfr. IrishEccl. Record, III. Series, vm. 399. 42 Judicial Competency. present, but when an appeal is carried to the Pope, the Roman Curial authorities decide the cause, and even they do not delegate special judges of inquiry, if the facts in the case are not yet sufficiently clear ; but they will send to the bishop very definite instructions how to conduct a further inquiry." The real competency (jurisdiction of the cause) of the various papal courts is not regulated according to precise and uniform principles, but rests throughout on an his torical basis. We cannot, however, give here the history of their competency, which is connected with the history of their institution.' We are content to enumerate some of the disciplinary and criminal causes, to decide which the several Congregations are competent. In case of doubt they themselves must of course decide as to their competency. A wrong address in an appeal would not indeed be prejudicial, as the Congregation addressed will send the cause to the competent one. To the competency of the Congregatio Inquisitionis (S. C. Inq. or S. Off.) belong: heresy, polygamy, solicitation in the confessional, keeping of prohibited books, offend ing against abstinence, celebration of Mass or hearing confessions by one not a priest, public veneration of one not canonized or not beatified, astrology, and divination. This Congregation has, however, a peculiar procedure, adapted to the nature of the matters belonging to its competency. To the Congregatio Episcoporum et Regularium (S. C. Epp.) are assigned all other disciphnary and criminal mat ters of clerics ; and in particular aLso, by the bull Post diuturnas of Pius VIL, 30 Oct. 1800, all complaints or re- ' S. C. Epp,, 24 Nov. 1814. AJP., XII. 865, 772; XX. 87. * Consult Stremler, 1. c, p. s'™^, "Des Congregations Romaines;" Haine, La Cour Romaine ; Bouix, De Curia Romana ; Bangen Die Rcimlsche Curie; Dublin Revie-.o. O. S., xxvi. p. 338. ~' Local Competency. 43 courses in criminal proceedings, so far as they do not per chance belong to the next Congregation." The Congregatio Concilii{S. C. C.) is competent for those disciplinary and criminal matters which are regulated by the Council of Trent.' The Congregatio Immunitatis (S. C. Imm.) has to decide between ecclesiastical and civil jurisdictions.' CHAPTER II. LOCAL COMPETENCY, 22. No question can be raised as to the local compe tency of the Holy See. It alone embraces the whole world. There are, however, many jurisdictions of the second instance and a great many of the first. The ques tion therefore is, which one of these is individually com petent for the particular case to the exclusion of all other similar authorities? This individual competency of a judicial authority, which forms t\\e. forum, the tribunal in the proper sense, is now usually determined geographically. By the forum of the accused or defendant we understand his duty to answer to the charge before a stated court, and the right not to answer before any other. ' Decisions of this famous and important Congregation were collected by Bizzarri, and over a thousand d^crels in/dits are published in the AJP., s^rie Xi. ff,, lo which Droste so often refers, ^ There are two famous collections of the decisions given by this Con gregation — a summary one, very handy for quick reference, by Zamboni (nfew edition, i860, 4 vols.); the other, full and extensive, by Pallotini, still in course Of publication (Rome). ' The famous collection by Ricci of the decisions of this Congregation ¦was republished with additions and supplementary documents by Canon Dc Montault (see list of authors). 44 Judicial Competency . The territory which the members of the Catholic Church and in particular their clergy inhabit is divided in regard to the administrative as well as jurisdictional power into many districts, defined by local limits, i.e. dioceses, at the head of vvhich are the Ordinaries, each of whom exercises jurisdiction over his whole district. Hence it follows that the Ordinary is the judge over all clerics who live in his district, if they are not exempt from his jurisdiction by law or privilege. By reason of their domicile they are subject to him ; their forum lies with him, particularly in disciplinary and criminal matters. How the dependence of the cleric upon his bishop goes on increasing from his birth to his admission into a benefice is beautifully expressed by the Acta S. S., VI. 587, in reference to a decision of the S. C. C., 12 Sept. 1 87 1. They say: " I. Fundamentum legitiml exercitil episcopalis auctoritatis in certum populum certumque Clerum esse ipsum terrltorium dioecesanum, cui Episcopus canonice praesideat, II. Quare omnes, qui cum territorio sint aliqua stabili ratione colligati, sive ratione originis et domicilii, sive ratione tantum domicilii, obnoxios regulariter esse eidem episcopal! auc toritati, III. Arcedente sacra Ordinatione aliud vinculum cum episco- pali auctoritate obstringi, Ita nt non solum ratione territorii sint clerici eidem sublecti, sed etiam ratione s. Ordinationis, qua membra evadunt dioecesanae hierarchlae. IV. Fortius eiusmodi secundum vinculum esse, si Clericus cum peculiar! ecclesiastico officio seu beneficio in bonum dioecesis erecto, colligetur," The Instruetio, art. i, also alludes to t\\t forum domicilii when it says that to the bishop belongs the discipline an4 correction of clerics who are subject to him {a se depen- dentium). Even from this it appears sufficiently that now at least in disciplinary and criminal cases the /, domicilii must be admitted. It has been maintained that formerly it had no apphcation; that for criminal matters Canon law knows only they, delicti commissi. This is false. Canonists agree in teaching that jurisdiction of Local Competency. 45 the domicile is concurrent with the other kinds of general forum. And the Acta S. S.,\l, 141, draw the following conclusion from a decision S. C. C, 28 Jan. 1865 : Quam vis regulariter quis forum sortiri dicatur , juxta caput Licet de for., comp., ratione delicti, contractus, domicilii, rei sitae; tamen domicilii forum dici et esse naturalem et ordinarium, et cum ceteris concurrentem. Hence we hold that the f. domicilii concurs electively with the other jurisdictions in ecclesiastical disciplinary as well as criminal causes." To establish a domicile, we briefly observe, two constitu ents are required : the intention to make a certain place the centre of one's activity, and the actual residence there. Numberless times have the Roman Congregations de clared (to use the words of the Acta S. S., IX. 414): Locum domicilii alicujus esse ilium in quo facto et animo manendi moratur. A cleric has his domicile usually where he has a benefice entailing his obligation to reside there. The_/". domicilii does not, however, suffice for disciplinary and criminal cases ; circumstances may arise which de mand another jurisdiction. A mere stay, short or long, in a diocese does not effect a forum there, except in Rome. This latter and, assuredly, exceptional way of acquiring a forum by mere presence is an old remnant from that time when the Papal jurisdiction, even in the first instance, did very commonly concur with that of the bishops in the whole Church.' But if official business or his own affairs with the Curia brought the cleric to Rome, he has the fus domum revocandi, the right of demanding to be dismissed to the jurisdiction of his domicile, there to receive his sentence.' ' Bouix, II. p. 30c, explains the following thesis: A foro delicti non tollitur forum^ domicilii, sed ambo cumulative coexistunt ^ The same special privilege for Rome is found in the Roman lavv under the Emperors. "0.20, X., h. t., U.S. 46 Judicial Competency. 23, Besides the f. domicilii, the place where the act was committed establishes another forum for the delin quent, they, delicti commissi. According to this the bishop can bring before his own court the cleric who has com mitted an offence in his diocese, although he belong to and reside in another diocese. The only difficulty here may arise by the question, which is in face of the law the place of the act ? which, e.g. in an offence through the press ? ' According to the correct view the f. delicti is in the place where the offender acted and not where the effect appeared.' The /. domicilii and the f. delicti will often be the same, though not always. In the latter case they are concur rent, i.e., either the bishop in whose diocese the offender has his domicile can try the case, or he in whose diocese the act was committed. But as one can be tried only once for the same offence, prevention' must in his case determine the competent forum. Sometimes the judge by prevention will try the case and give sentence, but yet, either by the law or from the nature of the case or by agreement, will leave the execution to the concurrent jurisdiction. A /. deprehensionis, the jurisdiction of the place where the criminal is arrested, the Church does not need.' It would moreover be useless at present, since the Church has no longer 2, familia armata. ' The author living at a different place from where his book is pub lished, ' Cfr. Grandclaude, II. p. 25. ^Forum praeventionis is the right, obtained by prevention, of a judge to try a cause over vvhich he has concurrent jurisdiction with another judge. The judge who first takes hold of the case, which is done by the citation (summons), is said to prevent (get the start of, or stop) the other. Again, as soon as the offender is summoned for the trial, he is said to be praeventus, i.e. hindered ar.d stopped from evading the summoning court, Cfr. Schmalzgruber, h.t , n. 136. ^ There are not a fevv vvho hold that Canon law does not recognize snch a forum, Justinian abolished it from the Roman law. Local Competency. 47 A so-called forum prorogatum,^ in which the parties may by agreement choose any judge competent in 4:he matter, is in its nature excluded from the criminal pro cedure. If, with the consent of the bishop and the parties, the trial of a criminal case is committed to a judge who has per se no jurisdiction over the cause, such a forum is not to be called prorogated, but simply delegated. The court itself must decide as to its personal, real, and local competency. In case of conflict between several courts, the decision rests with the common next higher jurisdiction. But where judicial proceedings have once rightfully commenced, the forum there acquired re mains.' ' Schmalzgruber, h.t., n. 143. — In the Scotch law it is called Prorogated Jurisdiction. It is not the same as Prorogation in our Common law, but in part corresponds to its Change of venue. " c. 19, X. h. t. SECTION III. ORGANIZATION OF ECCLESIASTICAL CRIMINAL COURTS. CHAPTER L .^ Is: PERSONNEL OF THE COURT, Art. I. The fudge. 24, The chief official in ecclesiastical disciplinary and criminal courts is the judge." The qualifications neces sarily required for the judicial office are determined partly by the nature of such office, partly by positive law.' The insane as well as minors are unfit for the judicial office, because they lack the necessary mental faculties. The same applies to the deaf and dumb, and the illiterate. A person under the age of eighteen cannot be appointed judge except by the Pope ; if aged from eighteen to twenty, he could be appointed only with the ' The judge, whether ordinary or delegate, and his office, dutie', and qualifications are the subject-matter of titles 23-33 '" the first book of the Decretals. Commentators must be consulted under those titles. Of other writers, cfr. Bouix, vol. i. p. 120 ff. ; Craisson. n. 5540 ff. ; Smith, n. 710 ff. On the moral obligations of all the higher and lower officers of the court consult the treatise de statibus particularibus by St. Liguori, 1. v, n. 192 ff. ; Scavini, vol. I, n. 518 ff. ; Konings, n. 1052 ff. For an interesting historlco-canonical treatise on Ecclesiastical Courts and their proceedings, we refer to Van Espen, p. Ill, ^ Sanguineti, n. 542, tersely states these qualities by saying that a judge must be idoneous (being fit for the office), legitimate (having got jurisdiction by lawful way), and competent (having jurisdiction in the very cause he tries). Personnel of the Court. 49 consent of the parties," Further, a person suspended, interdicted, or excommunicated shall not be judge. •/«- famia juris ox facti also disqualify for the judicial office.' According to the rules of Canon law, the judge in disciplinary and criminal causes of ecclesiastics must be himself a cleric' Canonists maintained this to be required by divine law ; but theologians denied it." The latter are undoubtedly right, as the Pope not only can, but did in fact, dispense' from such rule. But a cleric who married, although he had previously received only minor orders, is no longer qualified ;" nor can he again become so even by episcopal delegation.' As is evident, the bishop can much less make use of the civil courts against his clerics.' The above-mentioned defects render a judge in all cases incapable of acting in criminal causes against eccle siastics. There are still others which render him incapable only in particular cases or in certain circumstances. Most of these cases are covered by the axiom that no person shall be judge in his own cause. Therefore a judge is excluded if he or his nearest relations or his household are either plaintiffs or defendants ; for the causes of his relations or of his household are considered as personal causes of the judge.' ' c. 14. X , I. 29. * The verse embodying the quality of a judge delegate may be, with the exception of the seventh, properly applied to the ordinary judge. Thus: Liber, mas, gnarus, cui sit mens, Integra fama, Aetas, qui subsit: committitur huic bene causa. ' c. 2, X. II. i; c. 18, X, II. 2. See infra, n. 29, and note, i, p. 52. ¦* AJP., XI. 412. » 7 Dec. 1855. AJP., XX. 162. " S. C. Imm., 1775, and 24 Sept. 1781. AJP., xm. 45, 49, 50. ' S, C. Imm., 30 June 1832. AJP., Xill, 45, 51. 6 S. C. Epp., Dec. 1737. AJP., xi. 822, 338. ' The circumstance of near relationship or familiarity does not exactly render the judge unfit {inhabilem), but rather suspect. Cfr, Santi, 1. i, tit. 29, n. 40. See, infra, the article on Recusation, n. 77 ff. 50 Organization of the Courts. 25. A criminal sentence which is brought about by the co-operation of an incompetent judge is liable to be annulled; and the parties may have it reversed bythe higher jurisdiction on the plea of nullity. A judge should ex officio xeix^m. from exercising the judicial office in a cause for which he is naturally or legally disqualified. If he do not, the parties have the right, which they can assert at any stage of the proceeding, to demand his ex clusion by a declinatory exception de judice inhabili. 26. Every person who appears as judge in a criminal proceeding against ecclesiastics must prove that he possesses the requisite natural and legal qualifications for the office. This he does either by showing that he holds such an office or position, etc., to which ordinary juris diction over the defendant or the present cause is annexed, or by exhibiting his written delegation. That he will, moreover, be a just and impartial judge is presumed on the strength of the testimony implied in his appointment to the respective office, or in his commission. Besides, there is his oath of office. An unrighteous judge who warps the law makes himself criminally responsible ; but against a violation of the law through his ignorance there is a remedy in the appeal or writ of error. 27. The decision, i.e. the passing of sentence in discip linary and criminal proceedings against ecclesiastics, as the very pith of jurisdiction, appertains in the first in stance to the bishop. The bi.shop may, if he so chooses, alwa}'s pronounce judgment himself; but he may also either expressly or, as far as allowed by law, even tacitly intrust it to his vicar-general;" or he may appoint a special judge with such full power for all criminal cases (oflficial); or he may create a more or less numerous college of judges as a court of final sentence. Again, this right of passing sentence the Ordinary may commit to others ' Instr. Cum Magnop., art. 34. Personnel of the Court. 5 1 without any restrictions at all, or he may qualify it in such a manner that the sentence, together with the rea sons for it, as also the whole proceedings, shall be first submitted to him before being given in court, to the ef fect that a sentence not previously submitted to him and by him confirmed shall be void. In the last case those judges appear only as assistants, assessors, councillors of the episcopal court, with only a consultative voice ; ' whereas in the former they are judges proper with decisive vote. Again, in a college of judges (associate court) the decisive vote may belong to the presiding officer (the chief justice) alone, the vicar-general, official, or whatever he be called, while the rest act only as his advisers ; or, on the contrary, the presiding judge has a casting vote in case of a tie only, whilst his associates alone have the right of decision. In some courts, for instance at Prague, as many priests as there are assessors in the court are summoned by the bishop for the final proceedings, and, although they are not jurisconsulti, obtain decisive vote. These priests are chosen by him from a certain number previously appointed from among the diocesan clergy. They are a kind of ec clesiastical jury. Besides these, others learned in Canon law may by the bishop be called to the proceedings, but only with a consultative voice. The Holy See even per mitted the Bishop of Bertinoro, on account of very par ticular circumstances, to organize his criminal court with the vicar-general, two of the most learned clergymen from his own and the neighboring dioceses, and two lay lawyers ' Such, indeed, is the case with the Commissio Investigationis intro duced in our American ecclesiastical law by the Instr. S. C. de Prop. F., 20 July 1878. These commissioners are called consilium judiciale, con. siliarii; they help the bishop tanquam assessores; their vote is semper con- sultivum, while the final sentence is reserved exclusively {unice) to the bishop. See the Instruction infra in Appendix; the same with the later explanations in Appendice C. PI, B, III., pp. 292 ff. Cfr. Smith, n, 907 52 Organization of the Courts. {deux jurisconsultes laiques) ; these laymen were to have a consultative vote ; a decisive vote only in case that the two clerical assessors should differ in their opinion from that of the vicar-general." Art. IL The Auditor or Judge of Inquiry^ 28. Trial and sentence constitute the regular business of a criminal court. By trial or inquiry, however, we are ' S. C. Imm,, 12 Dec. 1832. AJP., xni. 52, 125. — We have kept this paragraph in the present edition, not because we think that the norms and customs therein stated should all be introduced in America, but only for the historical and legal consideration they deserve. Nor are vve pre pared to assert positively that our bishops may choose assessors or coun cillors to advise them in a trial coming before their court, as the instruc tion Cum Magnop. is absolutely silent on the point. Still we can see no other reason why they could or should not do so. It would rather seem to be in keeping with the spirit of the Instruetio, 1878, In fact, all the episcopal courts in Italy, Austria, and Germany have their assessors and councillors, generally to the number of four, following the example of the Roman States. Cfr. the circulars of the Papal Secretary of State, 1831, 1832 (ap. De Montault, 1. c), and that of the S, C. Epp,, i Aug. 1851 (ap. Acta S. S., XV. 547). As to the question how far the Church allows laymen to take part in canonical criminal procedure against clerics, the circular sttiX. by the S. C. Imm. to the Ordinaries of the Pontifical States, 3 Oct. 1832, begins with these very words: "It is a principle established by law and con stantly applied in practice that neither laymen nor married clerics can act as judges in criminal cases of clerics, nor can they exercise over them any jurisdictional act whatever, even if that jurisdiction had been dele gated to them by a competent judge. The reason Is that such delegation must fall on a subject capable of ecclesiastical jurisdiction; but of that laymen as well as married clerics are incapable, except in case of a strictly formal indult by the Apostolic See." In a letter to the Archbp, of Bologna, 4 Aug. 1832, the same S. Congr. says that in this matter " custom, however old we suppose it to be, were it even immemorial, can never become lawful and derogate canonical rules." Many like decisions, see apud De Montault, pp. 430 ff., 467 ff. ; the above circular ap. Acta S. S., XV. 540. ' We retain the term auditor ("' audire partes") in the meaning which it has in Canon lavv, and which is quite different from that in Common law. An office very similar to that of the auditor in the ecclesiastical court is Personnel of tke Court, 53 not to understand only a logical inquiry, i.e. a scrutiny and sifting of the evidence produced, but moreover in most cases an inquiry or search to collect evidence in order to find the true state of the case and thus arrive at a sen tence. To understand this rightly one must keep in view the difference between accusatorial and inquisitorial pro cedure. In a proceeding by way of accusation the judge of inquiry, if indeed we can here speak of such a one, and the judge who gives sentence are one and the same. In a proceeding by way of inquisition we can not only logically distinguish between the one and the other, but in fact those two judicial acts, the inquiry and the sentence, often do belong to different officials. The bishop or the vicar-general, if he be the bishop's official, may either personally conduct the investigation or he may commit it to some upright and capable cleric, who thus becomes the auditor of the case and invested with all the rights and powers necessary to inquire into the whole issue. It is, however, advisable that in more dif- that of the referee {referendarius) in some civil courts. The auditor's duties are perhaps more clearly Indicated by the phrase "Judge of In quiry," which corresponds to the French " Juge d'Instruction" (5/«'«/.?>-, p. 159), ihe Italian " Giudice Istruttore," and the German " Untersuch ungsrichter." Rota, n. 614, calls him "judex inquirens," and "judex Instructor" (cfr. Instr., art. 11, " processus instruitur;" art. 29, " actorum instructor"). Why these auditors, although not appointed to decide the cases, but only to examine and report, were yet from olden times called "judges," Is very interestingly told in the Irish Eccl. Record, lii. p. 356 ff., iv. p. 379 ff. — It may be Vifell to call attention at once that the Instrue tio speaks of two distinct inquiries. The first Is the summaria facti cog nitio (art. 5), also called inquisitio pro notitia curiae, and is extrajudicial. See belovv, n. 87. 99. The other is a judicial inquiry, being the beginning" of the strictly judicial procedure. Ic is c^X^A processus informativus or also inquisitio pro informando judice ot s\mp\y processus, art. 10 ff. See below, n. 100, Bouix, ii. p. 153, calls the first informatio de fama, the other inf. de probatione. The second inquiry is conducted by the auditor. To it refer the arts 10-29 Instr., the last four referring also to the plead ing or the contestatio delicti. Cfr. C, PI. B. III., n. 308. 54 Organization of the Courts. ficult and important cases the bishop or vicar-general should personally conduct the inquiry. The Instruction, art. I2, says : "Processus confectio com- mitti potest alicui probo atque idonco Ecclesiastico adstante Actiiario." This does not only mean that the bishop may, ad hoc, appoint an auditor, but seems moreover to suggest the idea how wise it would be to charge different judges witli the inquiry and with the decision. We find the same thought in the regulations for ecclesiastical criminal courts in the Papal States, 5 Nov. 1831, according to which the vicar-general himself, although he did person ally conduct the inquiry, may afterwards preside over his associate judges; but another judge could not preside if he had been auditor in the case." The auditor's duty is to collect all possible evidence bearing on the case, not only that which may convict the accused, but also that by which he may be exonerated from the charge (art. 1 1). He should be especially anxious to obtain evidence of the latter kind vvhen it is of such a nature that if not procured at once it may become un available by delay.' At the investigation the auditor may proceed summarily, that is, he need observe only the essential rules of justice so that guilt or innocence be clearly proved. It is, how ever, impossible to give definite and minute rules for the mode of proceeding applicable in all cases. The auditor will materially depend on the actual circumstances of the case. Where positive rules are wanting, counsel and com mon-sense must be the auditor's guides. ' S. C. Epp., June 18, 1855. AJP., xiii. 52, 126; xx. 163. '' What the C. PI. B. III. says of the auditor in matrimonial cases, n. 305, II., applies to him also in criminal proceedings: " Audi tori s seu moderatoris esi tribunal convocare, paries et testes citare, ordinare investiga- tiones, viros peritos ad eas insiituendas deputare, edere decreta p7-o recta ac torum conipilatione; uno verbo, omnia praestare tam in disquisitione praevia quam in processu probatorio, qua judicis propria sunt." Personnel of the Court. 55 The auditor must have the assistance of a secretary or clerk to write the minutes (art. 12). Both must take the oath of office." The auditor is, from the nature of his office, much ex posed to the danger of becoming prejudiced. Consider his position : unprejudiced he enters upon the inquiry ; convincing proofs of the guilt or innocence of the ac cused do not immediately appear ; some indications, how ever, do. Quite unconsciously he forms an opinion be forehand as to the guilt or innocence of the accused. It is a prejudice. He examines further ; the preconceived opinion may change, but it may also fix itself more firmly on his mind, and often is very strongly settled there even before the inquiry is closed. In such a case there is no other course left than to strictly follow the legal rules of evidence. It is only thus that any prejudice may be set aside and the inquiry be conducted impartially.' How differently with the judge who has to give the final deci sion ! He is presented not with a mere ex parte statement, but with all the evidence at once — a great assurance of his impartiality. 29, The auditor, provided the vicar-general as such do not investigate, is only a judge delegate; hence an appeal to the bishop against his proceedings is admissible. Yet in causes against clerics the auditor must necessarily be ' Instr. Cum Magnop., art. i8. — The actorum redactor ox instructor (il compilatore degli atti) in art. 29 is not the secretary, but the auditor him self. Such is the rule with the S. C, Epp. " C'est le juge rapporteur, et non pas le secretaire, qui fait I'abrdgd du procds qui doit etre livre k I'ac- cuse ou % son defenseur, pour servir de base k la defense. C'est aussi le juge rapporteur qui fait relation de la cause k la Congregation des Car- dinaux." (Stremler, p. 608.) ''¦ Rightly say the Acta S. S., xv. p. 385, of the auditor: " Cuique patet quanti faciendum sit ut illi, quibus tam magni momenti opus commit titur ut de aliorum actionibus inquirant, non modo doctrinae sed et probitatis , integritatis sanctaeque vitae fama ceteris praecellant. " 56 Organization of the Courts. himself a cleric, as stated above (n. 24), although he is only a delegate and has no right to pass sentence. This rule of Canon law cannot be abrogated by any custom be it ever so old. To a question proposed to the S. C. Imm., i8th June 1851, An episcopus ad conficiendum processum possit delegare usque ad sententiam inclusive judicem laicumf the answer was given, Episcopum non posse delegare judicem laicum. In 1775 it decided in a case where a tonsured but married chancellor had conducted part of the inquiry, ¦' Constare de nullitate processuum et ministri curiae episco palis consulant conscientiae suae." The same decision was given again the 24th Oct. 1781, 30th June 1732," 5th March 1855.' This principle is confirmed in the Instr., art. 12. A chancellor, if he should happen to be a layman, could not even judicially investigate whether an order of the court have been complied with or not.' The Pope alone could by special indult admit laymen as auditors. But the laic also has to conduct the criminal inquiry accord ing to the rules of Canon law. Should he, however, without violating any substantial forms rather proceed according to civil law% the judge proper and the appellate courts would not thereby be bound to do the same.' The inquiry is to be conducted by a single auditor, as it is only in order to collect the material.* A whole col lege of auditors if they would have. to act collegialiter would be exceedingly slow and embarrassed, and there fore useless, ' AJP., XIII. 45, 46, 51. ^ AJP., XIII. 972, 1043, XX. 163. XXI. '25 Sept. 1806. AJP., XII. 853, 756, Concerning lay officials in general see supra, p. 52, note i. •• 7 Dec. 1855. AJP., XX. 162, XIX. ' This is no doubt correct, as a rule, and in particular with regard to the Instruetio. But as a matter of fact judicial cases, where the work of collecting all subject-matter for the court proper was intrusted to a committee of auditors, are not unknown in the history of canonical procedure. In recent times we have had the Commissio Investigationis Personnel of the Court. 5 7 Art. Ill The Chancellor, Secretary, Clerk. 30. Innocent III. ordained at the fourth Lateran Council that in the inquisitorial procedure introduced by him, and afterwards so famous, all judicial acts should be recorded in writing. He says : "As the innocent litigant is sometimes unable to prove the truth of his denial of the false accusation by an unjust judge (for the mere fact of a denial is in the nature of things not yet a direct proof), hence, that falsehood may not triumph over truth nor iniquity prevail against right, we ordain that in the ordinary as well as extraordinary trial the judge shall always employ either an official person, if possible, or two fit men, who shall faithfully write down all the acts of the trial, viz., citations and terms, recusations and exceptions, petitions and rejoinders, interrogatories and admissions, the depositions of witnesses and documents put forth, in terlocutory and final appeals, renunciations and conclu sions, and whatever else may occur. All this they shall write down in proper order, indicating places, times, and persons. And all that has thus been written shall be given to the parties, so, however, that the originals shall be kept by the writers, in order that by these, if any quarrel as to the judge's proceeding should arise, the truth may be shown. By this means the honor of honest and prudent judges will be upheld, while at the same time the just right of inno cent persons shall not be injured by an imprudent and unrighteous judge." ' This ordinance is in full force to this day.' It was the more necessary in the beginning, since in a purely inquisitorial proceeding the accused would otherwise be confronted with the judge alone. The official appointed for this purpose is called, from his ' c. 11, X. II. ig. ' S. C. Imm., 3 March 1694; 7 July 1699. 58 Organization of the Courts. writing the acts and documents, Actuary or Clerk^ of the court ; from his abridged style of writing. Notary ; from his advancing to the chancel in reading his papers, Clian cellor; and in many localities, from the place of his em ployment, Secretary^ ' From clerictts, as in most countries only the clergy were able to read and write, and clerics of the minor orders were then commonly employed as notaries. ^ No one who has had to deal largely with Roman documents and de cisions, or to read up old or modern writers on ecclesiastical lavv and discipline, can be unaware of the most confoundedly confused way of using those different terms. At one time you are certain they all mean the same, at another you are as certain that a notarius is not a secretarius, and a noble cancellarius by no means a simple actuarius. It seems to us that, although now these terms are mostly used quite indiscriminately, they had each, according to Canon law, a distinct meaning. A notary is an officer holding a permanent commission to the effect that all docu ments, public or private, signed under his own hand and executed in proper form are true instruments In law and valid proof in court. Of this officer commentators generally speak in the preliminary observations on tit. 22, de fide instrumentorum, 1. II. By Canon law every bishop has the power to create notaries, and although not recognized by our civil courts, their signature would have to be admitted as evidence by every ecclesias tical court. The Chancellor has charge of the chancery or Archives, i .e. the place where the records, charters, evidences, or any important docu ments are kept (Archivist, Registrar. Cfr. Reiffenstuel, de fide Archivii, 1. II. tit. 22, n. 102 ff.). He was not necessarily a notary, although custom, supported by very good reasons, soon combined the two offices in one. We have had instances here in the United States where bishops had their chancellors made notaries public by the civil authority. A practical move, we think. The Actuary was a clerk employed to write down the acta of any official and judicial proceedings, to make out the reports, briefs and abstracts, etc. In course of tirae he was also called. Secretary, as one of his sworn duties was to keep the transactions themselves as vvell as the report or minutes thereof secret. One can easily understand hovv these distinct offices might be filled by the same person, and that in consequence the different titles lost their dis tinct meaning and came to be used indiscriminately. On the history of these offices (notary, secretary) see the interesting chapters (105, 106) of Thomassin, Vetus Eccl. Discipl. p. i. 1. 2; Van Espen, p. III. tit. 6, c. 4. In regard to the law cfr, Ferraris, sub vv. Personnel of the Court. 59 The Instruetio uses both terms Actuary (art. 12) and Chancellor (arts. 8, 34)," It expressly requires the presence of the cliancellor as well at the examination (art, 8) as at the final proceedings (art. 34), and that of the secretary at the inquest (art. 12). The chancellor may also officiate as notary in all transactions of the so-called voluntaiy jurisdiction.' Although Innocent III. ordained that eccle siastics should not be employed as clerks of the court,' yet the Roman Curia itself very often departed from this rule, and clerics are up to this day employed as clerks. Notwithstanding this universal practice, it is even now allowable to employ laymen.* For the edification of all vvhom it may concern vve append his remark: Secretarius qui multa scribit probabilius non excusatur a jejunio. Potest enim secretarius vires habere sufficientes ad multum scribendum, quamvis. jejunet. Immo temperantia et jejunium maxime conducit ad valetudinem sedentarii. Thanks, good old Ferraris ! ' The Acta S. S., XV. p. 386, maintain that by actitaiins and cancel larius the Instruction means the same person. Not necessarily. That in art. 8 and 34 it is the chancellor of the diocese (not the bishop's private secretary, except he be specially commissioned) who is referred to, we have no doubt. Art. 8 treats of an extrajudicial proceeding, while art. 34 refers to the public and final hearing of the case. But art. 12 speaks of the special inquest to be made by the auditor, a proceeding wherewith the court proper has nothing to do till it be finished and theproces verbal (art. 29) handed over to the judge. For this special work tbe auditor may choose his ovvn clerk or actuary, if so the judge (bishop or vicar- general) allow. Cfr. Rota. n. 654. When the C. PI. B. III., n. 311, adopts the opinion of the Acta S. S., we consider it to be a directive norm at most. 2 S. C. Epp., II Feb. 1S06. AJP., xii. 850, 750. 2 S. C. Epp., 14 July 1772. AJP., XII. 118. 555. " S! C. Imm., 30 June 1832. AJP., xm. 46, 58. This answer refers to a particular case of necessity. The very next month (July) the Archbishop of Bologna asked for the same indult again, because in his whole clergy he could not find two fit subjects for the offices of auditor and notary in his criminal court. The request was granted durantibus circumstantiis, and in regard to the clerk vvith the clause: dummodo se abstineat a szibscribendis examinibus et a quocumque exercitio jurisdictionis, Ap. De Montault, p. 471. The S. Congr. has always been very careful to 6o Organization of ihe Courts. The notary, however, especially if a layman, has to make out the acts of the proceedings only materially ; that is, simply to write whatever he is ordered to, either by the law or the judge. He is not allowed, either directly or indirectly, to conduct even a part of the trial ; if he should, for instance, in the absence of the judge- auditor, merely attempt to examine witnesses, the whole proceeding based thereon would be void." 3r--- We omit a passage by the author on the pay ment to be given to the clerk. Custom or statute must regulate that with us. But we add a few remarks that seem to apply to the clerk of our ecclesiastical courts, whether they call him notary, chancellor, or secretary. Reiffenstuel, I. II. tit. 22, observes that the notary, vvhen 'writing out an instrument, must write down nothing else but what he has seen with his own eyes and has himself heard (n. 27) ;' that he should always use the same sig nature, so that, if necessary, it may be authenticated by comparing his signature in other documents (n. 31). Schmalzgruber, ibid., says the notary should know some thing about law, although he need not be a Doctor i; ¦'¦a in law. He should at least know all that his office de mands, and how to draw up the different instruments in proper form (n. 5) ; in writing out the record from his minutes he ought to write the words in full without contractions or abbreviations ; numbers he should write clearly and distinctly, so that they cannot be changed (n. 12) ; and, in general, he must carefully note places, times, and persons (13, 14). We also call attention to the nice discu-ssion on the relative value of the clerk's private distinguish between civil and criminal cases of clerics, and in the latter 10 uphold the principle of absolute immunity. ' S. C. Epp., 25 Sept. 1806. AJP.. XIII. 46, 61. "^ "Caveat actuarius ne in scribendo abundct in sensu suo; hoc enim esset et fiagitlosum et ruinae plenum." — Rota. Personnel of the Court. 6 1 notes {minutae, protocollum) and the official record or document made out from them {instrumentuni), apud Reiffenstuel, 1. c, n. 34 ff. Is the secretary in our criminal trial bound to observe the so-called solemnitates instr umeritorum, i,e. certain formalities by which alone his documents or records become official {publica)! The /?w^r2^c^2'(9 mentions only the subscription to the act in the extrajudicial precept (art, 8), but nothing concerning the acts belonging to the judicial trial. But the C. PL B, IIL, n. 314, demands that not only the accused, but the judge also and the clerk sign the depositions of defendant. The same ought to be observed with the depositions of the witnesses," as re quired by the Instruction on matrimonial causes, § 14. It would be advisable also for the clerk to observe the noting {prceseniatum), that is, to note on every notice, letter, or document offered to the court the exact date vvhen, and the name by whom, it was presented ; more over, if not his own full name, at least his initials. Again, it is well to date every one of his minutes or notes, not only the record he may afterwards write out. Official copies of the minutes or of the report must be certified by the secretary's signature.' Art. IV. The Apparitor. 32*. The Apparitor, so called in the English ecclesi astical lavv, is an officer who appears to others that they may appear in court. He is the official messenger (con stable) to carry the summons to those whom the judge cites to appear during the trial. He also carries the written sentence to the offender or his advocate that he may, if so he intend, lodge an appeal before the judge, ' S. C. Epp., 24 July 1832. Pierantonelli. p. 40. 2 S. C. Epp., 27 July 1759. AJP., XIII. 51, III. 62 Organization of the Courts. Canon law supposes the apparitor to be a regular attend ant and duly sworn ofificer of the court, so that his affirming of having properly served the summons is evidence in law. Schmalzgruber, 1, II, tit, 3, n. 25, 2°, 7°. Our ecclesiastical courts in the United States have no such officers. The same appears to be the case in other countries ; for the Instruetio, art. 14, provides that in such case necessary writs and notices may be served either by a qualified person who shall afterwards certify to the fact ; or through the mails by registered letters, when the receipt returned will be evidence that the summons has been served, Cfr. also Instr. 1878, art. 4. The Acta S. S., XV., pp. 387, 550, seem to imply that the sentence should, as a rule, be served on the offender or his advocate by an apparitor, and by mail only then when it cannot possibly be done by a person. The apparitor, evidently, may be a layman." Of these messengers {apparitores, cursores, pedelli) commentators generally speak under tit. 3, de libelli oblatione {citatione), 1. II. Cfr. Smith, 11. 926. CHAPTER II. THE PARTIES. Art I The Prosecution. I. The Fiscal Procurator.'' 33. It is in the nature of things and a rule of ancient law that the same person cannot be accuser and judge in ' S. C. Epp., 9 Feb, 1710. AJP., xm. 44, 41. ^ This office is unknown to the Decretals and their commentators. Being of later origin, its history, nature, and duties must be learned from more recent writers. Cfr. Van Espen, p. in, tit. 6, c. 5. Bouix i. 470 ff. The Parties. 63 the same cause. In the purely inquisitorial procedure, where the accused is to be examined only, the judge, in deed, has more or less to sustain the partof a prosecutor, though Innocent III, himself guards against any such view of his new ordinance " by making the rumor {fama) of the crime committed play the part of the accuser. Very soon, therefore, did a third person slip into the courts even of that time, either in a private or a public capacity to begin and carry on blie prosecution. To distinguish this proceeding from that by mere inquiry, it was called inquisitio quae fit aliquo promov ent e ipsam.'' This new arrangement, however, being contrary to the very nature of mere inquisition, was not carried any further in Canon law.' But the secular courts took hold of it and made a most ample use thereof, particularly in England, France, and Italy; and the institution became Craisson, u. 5767 ff. Smith, n. 912 ff. We retain the term "fiscal pro curator" as more ecclesiastical than "public prosecutor.'' It is still used in Scotch and French law. For the etymology of the term consult the writers referred to. ^ c. 31, X., V. 3: non tanquam sit idem ipse accusator et judex, sed quasi fama deferenle vel dcnunciante clamors sui officii debitum exequatur {prae- latus), etc. ''- Hence \.\\^'^\i\X\c ox fiscal promoter. Cfr. Prompsault, s.v. Promoteurs des officiallte's. Promoter is used In a very different sense in American law, meaning a person engaged in establishing a joint-stock corporation. Bouvier, s. v. ' This assertion seems too general and can only mean that the public prosecutor or promoter did not then at once become a regular and perma nent office of the ecclesiastical judicature, butonly long after it had become such in the civil courts. It would hardly be correct lo say that ecclesiasti cal prosecutors (promoters) in some particular cases did not appear very soon after the new procedure introduced by the great InnocSnt III. At least they seem to be mentioned by later commentators and practitioners of the thirteenth century; and a famous canonist of the fifteenth century, speaking of ecclesiastical public officers, sweetly remarks: dici non potest quanta mala ubique faciant illi scelerati exploratores criniinum, quos pxo- motores appellant. Tliey are moreover mentioned in the decrees of the councils of Constance and Basel. 64 Organization of the Courts. very famous at the beginning of this century, especially in France, where the Siate Procurator is chiefly guardian of the law, and therefore takes part as well in civil as in criminal proceedings ; he may even in a civil proceeding, where theiaw appears to him ash.wing been injured, take an appeal independently of, and against, the will of the parties. This public procurator has at different times and in various countries borne the name of Procurator regis. Procurator fiscalis, Promotor fiscalis, or, in short, Fiscalis} Later on, when the office of fiscal procurator in the secular courts had been fully developed and had proved success ful, most ecclesiastical courts, following the views of the times, adopted it for the trial of criminal cause.s. 34. The Instruetio does not leave it to the bishop vvhether or not he will have a fiscal procurator for his criminal courts, but it says expressly: Unicuique Curiae opus est procuratore fiscali pro justitiae et legis tutela (art. 13).' Articles 33, 34, 35, of the same instruction make it evident that the fiscal procurator has to officiate as public prosecutor. By this new regulation ' the Church has abandoned the purely inquisitorial procedure and again approached the accusatorial one. For as soon as the delinquent is confronted with the fiscal procurator, he ap pears as defendant, and consequently as a party with more or less rights. The fiscal procurator and his duties in canonical criminal procedure cannot be replaced by any other officer. Thus it would be of no consequence if a cleric, e.g. a rural dean, should make a formal accusa- ' In America this officer Is called Attorney-General ; in England also Solicitor-Genernl. ^ Acta S. S., XV. p. 386: Verum non in judiciis tantum quae ex officio instituuntur sed in omnibus judiciis ejus praesentia est. ' The Instruetio appears to be the fixs\. positive statute In Canon 'aw by vvhich the office of the fiscal procurator, introduced only by custom, is made a regular and permanent institution and probably des. ined to be come general in the whole Church. The Parties. 65 tion before the bishop, leaving the fiscal procurator aside, nor would it matter at all that the bill of complaint vvas as correctly and perfectly drawn up as the law could re quire." Again, the secretary, chancellor, or clerk of the court cannot at the same time discharge the duties of the fiscal procurator.' Though it seems but proper that the bishop should appoint an ecclesiastic to this office, yet he may also authorize a layman, because the procurator after all does not exercise any properly so-called jurisdiction.' The fiscal procurator is an officer of the bishop. In committing an offence the delinquent has made himself amenable to the Church, whose duty it is to correct and punish whenever necessary. But the Church is represent ed bythe bishop, who, therefore, becomes the party seek ing correction and satisfaction, i,e. the complainant against the accused, who is respondent and defendant. Yet, as the bishop himself is also to sit in judgment against the accused, he transfers his right of action or prosecu tion to the fiscal procurator, and that for two reasons : first, in the interest of justice {pro justitiae ac legis tutela); secondly, that he may not even to mere outward appear ance act as judge in his own cause. The procurator is, ' S. C. Epp., Dec. 1785. AJP., xiii. 44, 34. We take this to mean that no matter how correct and formal the charge may be, the bishop cannot thereupon begin a formal suitor trial without his fiscal procurator taking the Initiative. " S. C. Epp., April 1727. AJP., XIII. 44, 33- 2 S. C. Epp., 2 July 1677. S. C. Imm., 30 June 1832. AJP., xm. 44, 31, 32. There is no doubt that modern writers suppose the fiscal procu rator to be a cleric, at least in criminal cases against clerics, Thus./?oto, n, 652, says: Est autum procurator fiscalis vir ecclesiasticus, etc.; and re ferring to the statute of St. Charles Borromeo: Sit unus promotor fisci, clericus et juris utriusque doctor, while not objecting to the clericus, he ex plains' the J. U. D. by saying that quantum fieri potest, fiscalis promotor sit in jure doctus et peritus. The same is implied when the third plenary Council of Baltimore, n. 300, admonishes him : Sit quidem nunquam im memor se contra fratrem causam agere. Cfr. supra, note I, n. 27. 66 Organization of the Courts. therefore, bound to his general or particular commission received from the bishop, whilst the bishop as judge is bound only to the law. This follows necessarily from the fact that the Instruetio embodies two postulates of the administration of criminal law. One is the principle of legality demanding that the rights of the law shall be up held and therefore strictly executed ; the other is the principle of expediency, demanding that the public wel fare should take precedence over the law where its exe cution would be injurious to society. According to the first, it is the duty of the bishop to prosecute and to punish his ecclesiastics for every transgression threatened by the law with punishment, as also to correct their evil ways (art. i). According to the second (art. 3), the bishop has often to consider in a particular case what may con duce more to the salvation of souls and the welfare of the Church, to prosecute the criminal or not. Higher inter ests and considerations will sometimes make it very ad visable and even necessary not to institute a criminal pro ceeding. There are, moreover, in ecclesiastical as in civil law delicts as to which it depends upon the will of a third person whether or not they are to be prosecuted. This third party will probably not desire it if thereby he would receive more injury than satisfaction. Christian charity in such cases forbids the bishop to proceed against the criminal, because a great good which that third peison cannot and will not sacrifice would thereby be lost. For instance, a cleric has been intimate with a hitherto blame less maiden of marriageable age; the crime has as yet been kept secret, although the proofs are positive ; the girl, however, protests against any judicial proceeding lest she herself fall into bad repute. A criminal proceeding in such a case would be extremely illegal and unchristian.' ' S. C. Epp., 23 Mch. 1748. AJP., XI. 1125, 437. Cfr. on this point Rota, n. 490 ff. ; Stremler, p. 154. The Parties. 67 That such considerations require great pastoral wisdom and cannot be wholly left to the procurator, is evident. The bishop must be solicitous himself about such causes of his clergy. The fiscal procurator having obtained sufficient infor mation must apply at the episcopal court for an investi gation of the offences of clerics that have come to his knowledge through notification or otherwise." Should the fiscal upon a general or special episcopal order bring a public action, he must make his motion to that effect in writing in the episcopal criminal court, and in his bill of complaint must state the name of the accused, the crime, the evidence, and the names of the witnesses, ac complices, etc. He must hand in the bill of complaint at the episcopal chancery, where the chancellor will affix thereto the praesentatum ; all the rest will for the present be left to the court.' After the investigation has been completed and the court has determined upon the fur ther prosecution of the cause, he cannot change his mo tions any more, particularly if the accused have already brought in his defence.' If the defensive proceedings should prove the materials obtained in the investigation to be insufficient for conviction, a new inquiry can be or dered only by the court." The fiscal procurator has generally the exclusive right of accusation. This appears at first to be a doubtful matter, for it involves the duty of the procurator actually to make the accusation whenever necessary, a duty which he may easily neglect, particularly vvhen it might be of interest to himself not to bring the suit. But it must be remembered that he is an officer of the bishop and must 'AJP., XIII. 4.1, 29. ^ AJP., XIV. 971, 35. 3 S. C. Epp., 30 June 1826. AJP., xm. 44, 37, 39, ¦•S. C. Epp,, 30 June 1826, AJP., xn. 1017, 860, xm. 44, 38. 68 Organization of the Courts. bring the charge whenever the bishop orders him to do so ; that, moreover, he may be deprived of his office at any moment should he in any manner show neglect or mismanagement of the affairs of his office. 35*- To the objection that such a public prosecutor might be over-zealou.s in making charges against clerics a like answer may be given ; viz, that he cannot bring a judicial charge without being ordered by the bishop, who must examine first whether there be sufficient cause for it." ,This officer, besides, must never forget that even while discharging his duty of prosecutor he is to serve the law as well as justice, and that consequently he is bound to respect the rights of the accused, and not to press his charges beyond the bounds of equity, nor use means con trary to truth or justice. Nay, we do not hesitate to affirm that he must notify the auditor of any evidence favorable to defendant, which he may perchance have found in his endeavors to get proof for the prosecution. The author spoke above (n. i6) of a general mandate by which the bishop appoints his vicar-general a.s judex ordi- narius (official) for all clerical causes. In the foregoing section the author mentions a general mandate given to the fiscal procurator to prosecute criminal cases. In a later paragraph he deals with the conflict that might in some case eventually arise between the official and the procurator. We omit the paragraph in our edition, as in that event there is but one very simple remedy, viz. recourse to the bishop, who must decide the question. But we desire to call attention to a point which to us seems doubtful. The fiscal procurator, who is always appointed by letters-patent, needs no zvritten commis sion for special cases if he has a general mandate. In ' "Quod si Episcopus faciendum esse judlcaverit, procurator fiscalis ab eo accipit mandatum causam agendi et processum promovendi." C. PI. B. III., n. 301. The Parties. 6g that case the bishop or official will merely give notice that there is a case for prosecution, and the prosecutor will at once draw up the formal charge and demand that judicial investigation or inquiry be made. But does the general mandate imply that he must thus officially proceed even when he is not so notified by the judge, but because he knows of a case through private infor mation or rumor or private denunciation ? Our author clearly thinks so, others apparently. Again, if it be an swered in the affirmative, is the fiscal 'not only allowed but bound to institute the summaria facti cognitio (art. 5) even without the bishop's notice or request, simply in virtue of the general mandate? If we presume to state our private opinion, we may be pardoned on the plea that these things with us in the United States are still in fieri, not in facto esse; hence the more uncertainty is removed from the very start, the better. Whatever may have been or still be the custom in Europe, we believe, judging by the general tenor of our last plenary Council (n. 308 ff.) and of the Instruetio itself, that the fiscal procurator should not make a formal charge in any case before he has been notified to the effect or requested by the Ordi nary. Again, we think he should not on his own account and without the bishop's explicit consent undertake any extrajudicial or private special inquiries ;" otherwise he would certainly be liable to be considered too officious by most of our American clergy. However, as no general law prevents the bishop from granting even such full and one might say illimited power to his fiscal procurator, all doubt will be removed if the bishop does fully, minutely, and explicitly state in the letters-patent what rights and duties the procurator shall have. Then let the procura tor abide by his commission. ' Van Espen (1. c, tit. 8, c. r, n. 37) speaking of Belgium says that this rule is passim ubique receptum. 70 Organization of the Courts. 2. Other Plaintiffs. 36. Under the new law of the Instruetio every person ¦has a right to -present a complaint or make an accusation which may lead to criminal proceedings against an eccle siastic. No particular qualifications on the part of such complainants are required, nor may they be confounded with the accusers in the old accusatory proceeding. The Instruction on episcopal courts in the Archdiocese of Prague says on this point : " All irreproachable priests, nay, all members of the Catholic Church, against whom no suspicion of malicious deformation can be brought, may give notice of criminal cases to the court. But the court will pay no attention to anonymous notices or to notices that are sent by unknown persons without giving the place of their residence." (*) In the former proceedings by way of accusation or denunciation not every one was qualified to make the judicial complaint. Commentators (in 1. V. tit. i) gener ally put down the rule that all those are qualified who are not disqualified by the law. As grounds of such legal disqualification are named the sex, defect of age, infamy, reverence and the tie of blood, hatred and revenge, etc. However, in case of an atrocious crime every one was qualified to complain. That at present such disqualifica tions are no longer to be considered is clear from the fact that the Instruetio admits only the inquisitorial proceed ing called ex officio. But, as we shall see later, it is the characteristic note of this proceeding that the bishop can not enter upon it before he has by a strict inquiry satis fied himself {plena vel semplena probatione) that there is sufficient cause for it. Any complaint or charge or infor mation against a cleric may open the way to such inquiry, but not directly to the trial as in other proceedings. {Rota, n. 648 ff.) No account should be taken of any The Parties. 7 r accusation made either by word of mouth only or by anonymous or imperfect (without place or date or name or residence) letters, or in mere general terms. {Rota, n. 419.) Art. II. The Defence. I. The Accused, 37*. Whoever is accused of an offence against the laws is entitled by the command of Christian charity and by natural right not to be held guilty; much less to be pun ished, before the charge has been fully substantiated. If convicted, the criminal still has the further right not to suffer more punishment than the law demands of him ac cording to the nature, the weight and grievousness of the offence. It is as much to protect these rights of the ac cused as to vindicate the law, that the Church has insti tuted those legal forms and methods, the rules of pro cedure, to prove the fact as well as the special nature of •an alleged offence. So strictly does the Church maintain this principle, that should a cleric having committed an offence against her laws freely accuse himself before the bishop and openly confess, the bishop could not pronounce sentence against him. He may act vvith him as father. To proceed as judge and vindicator of the law, he must first obtain a judicial confession, one made, proved, and judged upon according to legal rules. Not even a canonical admonition may the bishop give to a cleric who is accused, without first obtaining at least a summary information to establish the alleged fact (art. S). No accused shall be condemned without having had in some way or other his defence. Hence if the accused were willing to waive all defence, or unwilling to engage counsel because he considers thc matter too unimportant, or thinks his case evident and defence unnecessary, or believes the decision to go against 72 Organization of the Courts. him whatever the defence might be, or is too poor to pay counsel's fee, still the Instruetio commands the bishop to appoint ex officio a defensor for the accused (art. 31).' Various reasons for this provision are assigned by writers. The main one is to avoid doing injustice to the accused. Another one is that a cleric being one of the Church's chosen members is no longer lord over, or absolute possessor of, his good name and reputation. The Church, for the sake of her faithful children and her own honor, has a right to it. Hence he is not at liberty to give it away ; and if he will not defend it himself, the law of the Church appoints another for the purpose. An intelligent and impartial student of the Commenta tors on the second book of the Decretals will be delight fully astonished to see how wisely the great legislators of the Church combined in the work of canonical pro cedure all the thousand different elements by which man may prove the truth {quibus Veritas vere demonstrata elucescat; art. 16); thus to maintain on the one hand the majesty of the lavv {legis tutela), and on the other the na tive rights of the defendant {justitiae tutelci). 38. According to the law now in force it is the duty of the accused, upon being summoned, to present himself before the judge for examination and defence (art. 21, 25). The citation' is essential to the vvhole proceeding; to omit the former will render the latter void.' Not even a censure previously threatened may be inflicted without summoning delinquent " ad dicendam causam quare."* According to the Instr., arts. 22, 23, it is not absolutely necessary to specify the particulars of the charge in the ' S. C. Epp.. 30 May 1833. AJP., xx. go, xlii. ii May 1844. AJP., XVII. 444, 1718. '' Commentators in I. 11. tit. 3. Pierant.. tit. 5. n. 6 ff. Rota, n. 620 ff. ^ S. C. Epp., 22 Sept. 1741. AJP., XIII. 47, 78, 79. * S. C. Epp., 2g Sept, 1761. AJP., xi. 1094, 376. The Parties. 73 citation. Whether this be advisable or not in a particu lar case, is left to the prudence and discretion of the judge. He will not mention the specific charge, much less the particulars, if he believe the accused would in consequence not heed the summons or, if innocent, would be carried so far away by indignation as to create dis turbance among the people. That omission vvill not void the proceeding, but merely entitle defendant to a new term for answering the charge after it is made known to him {Instr., art, 28). If the accused does not obey a per emptory summons, the court vvill proceed against him in contumaciam {Instr., art. 24), except he offer good reasons for his non-appearance," when a new term will be granted. In most criminal cases of clerics" the accused had better, during the inquiry, withdraw to a religious house,' since his influence in public during this time would not, as a rule, be beneficial.* The welfare of the Church and the salvation of souls often demand a judicial trial ; canonical procedure, although in its very nature something of a public act, cannot always be avoided, for the ecclesiastical authorities are not omniscient. An accused cleric may therefore find himself compelled, by the love of God and of the souls intrusted to him, patiently to stand a criminal trial, however unjustly thrust upon him. The most ample right of defence is granted to the ac- cu.sed by our Instruction, arts. 22, 25, 27 sq., 30 sqq., 36. We call special attention to the confrontation of wit nesses implied in arts. 27, 32. The processus legitimatio ' Acta S.S., XV, 389 sqq. ' We omit here as impracticable the author's remarks on the im prisonment of the accused, his release on bail, his relegation or consign ment to a certain limited place (county, village, or religious house). Cfr. Stremler, p. 62 f ^ AJP., XIII. 47, 74. * This will depend altogether on the peculiar circumstances of each case. 74 Organization of the Courts. (the legitimizing of the whole proceeding by observing certain requisites of the law) consists mainly in that con frontation ; without it one of the principal means of an effectual defence would be set aside (see infra, n. 69). For the final pleading a special defensor is granted to the accused (see Instr., art. 30 sq.). 2. The Advocate or Counsel. 39, The Instruetio, while granting to the accused the right to conduct the defence himself (art. 27), allows him, if he choose, to employ an advocate or counsel (art. 30).' The advocate plays a most important part in the canonical criminal procedure. Not every ecclesiastic has the re quired knowledge of criminal laws and criminal procedure, and moreover the coolness and deliberation necessary while defending himself.' Some, however may possess all that and be fit to undertake the defence of another, i.e. act as_ advocate. The accused is not confined to special persons, to pro fessional advocates, in the employment of a defender, but has a free choice even when the bishop has appointed permanent advocates at his court.' There are excluded, of course, the judge, the chancellor, and the fiscal pro curator; the last, in particular, would become guilty of prevarication, should he officiate as counsel for both parties, (*) According to the Instruetio (art. 30) the defendant may choose for his advocate an ecclesiastic or a layman, either one to be approved by the bishop.* The wording, ' The Instruetio calls him defensor. The Decretals call him advocatus, patronus, and treat of this office in 1. I. tit. 37 de Postulando, where the commentators also may be consulted. Cfr. Van Espen, 1. c, c. 2. ; Crais son, n. 5642; Stnith, n. 766. "^ Rota, 11. 726 sqq. 'S, C. Epp., 3 Jan. 1819. AJP., xx, 457, x. * S. C, Imm., 30 June 1832. AJP., xm. 51, 118. The Parties. 75 however, of this article in the Cum Magnop. clearly shows that if an able ecclesiastic can be found to conduct the defence, no laymen should be employed. It seems rather incongruous that before a purely ecclesiastical tribunal and in strictly canonical causes lay advocates or lawyers should be admitted to plead vvhether for or against a cleric. For wise and pious reasons did the fathers of the third plenary Council of Baltimore, notwithstanding that the Instruction requires the bishop's approval for the ad vocate, ask of the Holy See not to allow laymen, and enact the statute that the advocate must always be an ecclesi astic. Even a clerical advocate the judge may for good reasons refuse, and request that another one approved by him shall be engaged (n. 302). No mention of laymen whatever is made in the answer (n.IV.) of the S. C. Prop. concerning the defender at the trial before the Committee of Investigation. It only mentions alium sacerdotem. 40. The advocate must take the oath that he will con scientiously conduct the defence. Sometimes, as the bishop may deem proper, the oath contains the provision to keep the matter secret (art. 32). If the trial is once begun, the advocate must carry to the end the case he took in hand. In the manner of conducting the defence he is quite independent of the acciised. If he should falsely state or admit any facts, the defendant may cor rect such statements before the final sentence, or after wards in the appeal. An error in law on the part of the advocate will not be prejudicial to the defence as long as the court do correct it. (*) In the manner of conducting the defence the advo cate must, as the commentators .say, observe the laws of propriety and moderation, of truth and of faithfulness {modestia, Veritas, fidelitas). Hence he must abstain from invectives, arrogant and presumptuous insinuations ; ef fusive verbosity would also be out of place ; exceptions 76 Organization of the Courts. or protests against the ruling of the court should be made in moderate language. Truth is averse to any trickery, sophistry, ambiguous and misleading statements. Al though bound to defend his client as much as possible, yet the advocate may not do so per fas et tie fas. By faithfulness he is bound to conduct the defence to the utmost of his ability, and to avoid conscientiously what ever might injure his cause ; also not to betray, nor make improper use of, any secrets confided to him by his client. The advocate, no doubt, has a right to his fee. We do not know if any special provisions on this point have as yet been made in any of our ecclesiastical courts in the United States. The defendant ought to agree before hand with counsel as to the fee to be paid whether the cause be won or lost. But who is to pay counsel ap pointed ex officio, the defendant or the bishop? As we have no " clerical bar," it would seem that one could not be commanded by the bishop to give his services gratis, and that if appointed ex officio he had a right to a fee, to be paid by defendant, if convicted, otherwise by the bishop from the fisc of the diocese (see infra, n, ii6). What shall be a just fee for the advocate must, according to the commentators, depend on the importance of the case, the amount of work done, the lawyer's skill and ability, and legal custom, 3. The Attorney or Proctor, 41, Canon law does not admit representation of the accused in criminal cases." A reason given by canonists is that the attorney becomes in virtue of his commission dominus litis, that is, the case becomes his own personal affair, and sentence will be given upon him personally. Now, this would appear unnatural in case of another's ' Santi, I. II. tit. I, n. 19; De Angelis P. p. 360. TJie Parties. "j'J ciime or delict. Hence representation is allowed in civil cases only. Another but somewhat poor reason is some times given ; viz. that if the accused were represented by attorney and could thus remain away, he might easily escape execution of the sentence by flight. We cannot imagine a single case under our circumstances where this reason would prove anything, speaking as we do of crimi nal cases of clerics before ecclesiastical courts; nor do we think that a difference can be made in the matter between original and appellate courts. The Instruetio, art. 30, does not prove the contrary, as repraesentare and defendere are to be referred conjunctively to the same person, who may, therefore, be called either attorney or advocate. This is evident from the wording of the same article in the Cum Magnopere. The case is quite different with the prosecution. The fiscal procurator may, by permission of the bishop, prose cute through his attorney approved by the bishop, which is evidently nothing else than the appointment of a special prosecutor. Again, the bishop from whose sentence an appeal is made, may defend his part against the appellant by his own fiscal procurator, or depute the metropolitan's procurator as his attorney." The Promotor fiscalis Gene ralis at Rome, an officer appointed by Benedict XIIL in 1724, to represent the bishops in any criminal cases brought to Rome by way of appeal or recourse, is simply the attorney-general for those bishops. ' Commentators treat of attorneys whether in fact or at law under tit. 38, De rrocuratoribus, 1. I. Decret, Cfr. Craisson, n. 5615 ff. ; Smith, n. 756 ff. Seconlf part THE CANONICAL PROCEDURE. SECTION I. FORMS AND PARTS OF CANONICAL PROCEDURE. CHAPTER I. FORMS OF PROCEDURE. Art. I. f udicial and Extrajudicial. 42. We have already remarked above (n. 3) that the division of punishments into corrective ones, whose direct object is the amendment and reformation of the delin quent, and vindictive ones, whose direct object is mainly the restoration of the disturbed order and retribution, is in most cases rather logical than real. For all punish ments effect more or less in the offender a change for the better, except capital punishment which the Church does not inflict precisely because it precludes the future reformation ; on the other hand, the least offensive means of correction, a paternal admonition, may, under certain circumstances, appear to delinquent as undeserved casti gation. From this it will be seen -that a strict division of the procedure into disciplinary, i.e. such as applies cor rective or reformatory means, and criminal, i.e. such as imposes a penalty for the committed offence, is not prac- Forms of Procedure. 79 ticable. The power to impose disciplinary and criminal punishments the Cathohc Church, as we remarked in the Introduction, received from her Divine Founder Himself. Upon the occasion of conferring this power He at the same time pointed out, in a manner unsurpassed and as a pattern for all times, the order and course of the discip linary and criminal procedure: "Si autem peccaverit in te frater tuus, vade, et corr ipe eum. inter te et ipsum solum : si te audierit, lucratus eris fratrem tuum. Si autem te non audierit, adhibe tecum adhuc unum vel duos, ut in ore duorum vel trium testium stet omne verbum. Quodsi non audierit eos, die ecclesiae : si autem ecclesiam non audierit, sit tibi sicut ethnicus et publicanus." ' The Master speaks here first of a private reproof, therefore of a secret extra judicial procedure, then of a reproof before witnesses, therefore of a more public one, and finally, by intimation, of the regular criminal procedure. The Church still re tains this division of the canonical procedure against her clergy. In the following pages, therefore, we distinguish between extrajudicial and judicial proceedings, without entering here more fully into the technical designations, significations, and relations developed in Canon law. 43*. To rightly understand what are judicial and what extrajudicial acts or proceedings it is necessary to know exactly what is a. judicium. Not everything that a judge does is a judicial act, but only what he does in judicio. Commentators in I. II., " de Judiciis," generally give the following definition : fudicium est legitima controversiae inter Actorem et Reum or tae apud fudicem disceptatio et definitio ; that is, the examination and decision of a mat ter in issue between plaintiff and defendant, made by the judge according to law. All the parts of the definition are essential; there must be a matter at issue between ' Matt. XVIII. 15 ff. 8o Forms and Parts of the Procedure. opposing parties ; the examination and inquiry must re veal the truth of the case to be stated in the judgment or sentence; aU this, however, must be done by a person invested with the necessary power or jurisdiction, the judge, who must proceed in the whole trial according to the rules and norms set down by the law. All acts of a judge belonging to the conduct of such a trial are judicial ; all others are extrajudicial. It follows from the foregoing that not every jurisdictional proceed ing is also judicial. In fact, the exercise of the episcopal juri3diction partakes only to a very small extent of a judicial character. Most of his administration is extra judicial.' Even when he has to guard the laws and dis cipline of the Church by removing occurrences of abuse, incentives of scandal, wilful occasions and proximate causes of delinquency, the means to be employed are still extrajudicial. In the case of clerics these are mainly, according to the Instruetio, art. 4, admonitions paternal as well as canonical, the command to make the spiritual exercises, the special precept, and the extraordinary means of the Tridentine suspension ex informata con scientia. Nor does it follow that these acts of the bishop should be called judicial because certain rules and norms of the law must be observed. Not all legal acts, acts performed under certain forms of law, are judi cial proceedings. Nay, more : the bishop might proceed against a cleric for a criminal offence, lay a heavy punish- ' Pierantonelli, prooem. u. 3. In fact, all the functions vjfhich belong to what canonists call the bishop's jurisdictio administrativa, politico, correctionalis axe properly speaking extrajudicial. With regard to crim inal jurisdiction the bishop is not bound to proceed judicially, even were the crime fully established, as long as by extrajudicial proceeding the object of the law can be secured. And as concerns civil litigation of clerics, we think the party or parties will always find it to their interest, :£ the bishop settle the matter extrajudicially. Forms of Procedure. 8 1 ment on him, and yet all without judicial form or trial, by mere extrajudicial or administrative procedure. True, he can do this only with the free consent of the delinquent, and under special circumstances. 44. There is yet another question to be answered : when shall these different kinds of procedure, the judicial and extrajudicial, be applied? This question can be fully answered only when vve come to treat of each of these procedures in particular. According to the direction of our Lord the first of these, the monitio paterna, should be first employed ; if this does not suffice, then the monitio canonica and the praeceptum may be tried ; finally, as a last remedy, the criminal trial is resorted to. Ordinarily, therefore, the last should not be employed before the second, nor this one before the first has been tried : this is the regular course. The admonitions, however, as special fatherly and official warnings are supplied in many cases by gen eral laws previously enacted, which thus become constant monitors. Frequently also, from the very nature of the delict, criminal procedure is immediately in order, as in the case of the notorium. Hence, the above question may, in general, be an swered according to tiie principle Nulla poena sine lege. If a certain action of the ecclesiastic was already threat ened with punishment by a law, then it may be imposed after the proper proceeding ; but if no punishment had been annexed, then it is first to be threatened in a special proceeding for that purpose." ' Certain principles from which an answer to the question can be de rived are generally laid down by canonists, in 1. v. tit. i, when speaking of the duties of the judge consequent upon a denunciation. Cfr. also Stremler, p. 163, 82 Forms and Parts of the Procedure. Art. II. Accusatorial and Inquisitorial. TJie Instruction. 45, The forms of the judicial criminal procedure will greatly depend on vvhat one considers to be the general principles of criminal law. When inquiring for these we must not lose sight of the fact that the procedure is only a means towards a certain end. As to this the Instruetio, art. II, observes in a general way: "Processus instruitur . . . et ad finem perducitur eo consilio, ut omni studio atque prudentia Veritas detegatur et cognitio tum criminis cum reitatis aut innocentia accusati exurgat." The prin cipal object of punishment in the criminal system of the Church is the reformation of the offender. If the ulti mate object of the punishment, the amendment of the delin quent, is not obtained, it is mostly his own fault ; how ever, we are not now concerned with that, but rather with the object of the criminal procedure, which we have said to be the investigation and discovery of the truth. If this object is not obtained, if the truth is not discovered, the fault lies, independently of accidental circumstances, either in the rules of procedure themselves to which the judge is bound, or in the application of these rules. Two further questions then arise : how must the judi cial criminal procedure be regulated by the law in order to make the discovery of the truth possible ? and, how can the judge by the aid of these rules of criminal procedure discover the truth? The second question wiU be an swered later; at present we have only to do vvith the former. One could reason quite extensively a priori as to the best rules of criminal procedure, but the deductions ob tained would be the same as the results of experience derived from the history of the criminal procedure. Procedure by accusation and by inquisition are the two Forms of Procedure. 83 principal forms of strictly judicial criminal proceedings known to Canon law." We may dismiss a third form, that by judicial denunciation, which in some parts is like the accusatorial, in others more like the inquisitorial pro cedure. 46. In procedure by way of accusation, the plaintiff appears before the judge and fully spreads out before him the evidence already collected : then the accused ap pears and presents in opposition his materials of defence. Upon all the material thus presented the judge bases his decision without inquiring further whether perhaps any other evidence might be found of the guilt of the accused vvhom he must acquit, or whether the accused whom he must condemn might not have been able to produce more counter-evidence to obtain his acquittal. At most, he may say twn liquet, the matter is not clear to me ; fur nish me further evidence. In a proceeding by vvay of inquiry, on the contrary, the judge acts ex officio. There is no plaintiff in this case whose duty it would be to furnish the evidence. The judge himself has to collect the material, and vvhen he has enough, or can find no more, he passes sentence. Not until after he has himself collected all the material does he enter upon the logical and juridical question as to whether an offence was committed, and if so, what one, and what punishment ought to be inflicted. With regard to the parties, they can be properly spoken of only in the accusatorial proceeding. For it is only here that plaintiff and defendant appear before the judge with equal rights and equal liabilities. The one and the other must support his own cause as well as he can, as the judge will not do anything to furnish evi dence for either one. Nor does it matter much, as re- ' Commentators in 1. v. tit. i explain fully the different character of these proceedings. Also Van Espen, iii. tit. 8, c. i. 84 Forms and Parts of the Procedure. gards the form of proceeding, that the plaintiff be a pub lic officer, the fiscal procurator. But in the purely in quisitorial proceeding no accuser or prosecutor need appear. Enough that the judge have information of a crime committed, and he must proceed ex officio to a judicial inquiry, in order to collect whatever evidence there may be to prove the crime. True, here also the accused may defend himself, yet not against his equal, but against the judge. Again, the trial will differ quite materially with regard to defendant according as the procedure is accusatory or inquisitory. For, in the first case the accusation is at once laid before the accused and an opportunity of im mediate defence given to him ; the defence is completely left in his own hands. He may defend himself to the utmost or waive all defence, plead guilty or let plaintiff try to prove the charge without opposition. In the purely inquisitorial proceeding the defence seems to pro ceed from the judge as much as the charge. It is the judge who mu.st inquire into everything that might prove the accused not guilty. And although in this the accused may assist and help the judge, yet he certainly appears as one to be examined rather than to defend himself. 47. In the course of time many changes vvere worked out in these kinds of the earlier canonical procedure, so that their characteristic features could hardly be distinguished any more. The new form of canonical trial established by the Instruetio of 1880 seems to combine some features of both older procedures." Technically, indeed, it is called an inquisitorial procedure. Yet, although the judge himself, in order to come as near the truth of the matter as possible, takes the principal part through his auditor in collecting the evidence, nevertheless the fiscal ' Cfr. our remarks in the Preface. Forms of Procedure. 85 procurator appears as the real accuser. On the other hand, such important privileges are granted to tlie accused in respect to his defence, that as party in a criminal trial he may be very well satisfied with the position allowed him by the Instruetio. The Instruction starts from the principle that it is the duty of the bishop to punish and to correct the delinquent. His authority is therefore interposed ex officio. That a suit be instituted depends no longer on a private com plainant ; nor is it the judge who enters a formal accusa tion, but the public prosecutor, the fiscal. The further ex officio proceeding, the investigation by the judge, ap proaches the principle of the Inquisition. In the purely inquisitorial procedure the judge, as before noted, exer cises two opposite functions, those of accuser and judge; something that modern views do not approve. Hence the judge of inquiry, according to the Instruetio, does not proceed any further than to collect all the material ; with this he has performed his part as accuser ;" he retires from the case leaving this part to the fiscal procurator, who must now continue the prosecution. On this last stage the principle of accusation is again predominant. When giving judgment, the judge is only judge and no longer accuser. The more the inquisitorial form obtains, the greater is the activity of the judge ; while in the litigious or accusatory one he has only to conduct the proceedings and render judgment. That no transgressions may escape the notice of the court, the Instruetio introduces the inquisitorial method ; but that the judge may appear as an impartial judge, not as a party, is the object of the accusatorial form. ' Not exclusively nor mainly as such; for he also collects whatever de fendant may plead for himself. Cfr. supra, n. 28. 86 Forms and Parts of the Procedure. Art. III. Plenary and Summary. 48. We have repeatedly had occasion to remark that the Instruetio regulates only the summary disciplinary and criminal procedure. In the preamble it allows the Ordi naries in the exercise of their disciplinary jurisdiction over clerics to make use of plainer and more expeditious ioxms, formas magis oeconomicas adhibere ; and according to art. xo the judge may proceed formis summariis et absque judicii strepitu. How then are we to conceive this summary proceeding? What is its nature? In civil as in criminal cases canonists distinguish be tween the plenary and the summary proceeding. The expression summary process in a civil case frequently sug gests a somewhat hasty proceeding, where the decision is only provisional and subject to a thorough examination and final judgment in a subsequent ordinary trial. Such, however, is not the true sense of the term in Canon lavv, least of all when referred to a criminal case. The differ ence between plenary and summary proceeding is thus stated by Ferrante :' " Judiciorum divisio petitur ex diverso modo, quo ilia exercentur; vel enim sunt ordinaria in quibus servant ur solemnitates omnes juris, vel summaria, in quibus ea servantur, quae tiecessaria sunt ad rei veritatem detegen- dam, reliquis omissis, quae magis ad solemnitatem judicio rum, quam ad rei necessitatem pertinent^ Cardinal de Lucca enumerates several of the superfluous solemnities of the trial, which he calls Judaisms, that is Jewish subtleties :' " Ordinarium judicium est illud, quod exigit solemnitatem libelli, et litiscontestationis ac etiam publicationis ac conclusionis, aliasque solemnitates ab utroque civili et canonico jure praescriptas. . . . Summarium verum ' Elem J. Can., c. 3. '' Rei. Curiae R., disc. I. n 25. Form,s of Procedure. 87 est illud, quod dictis solemnitatibus non subjacet, sed nullas vel alias respective exigit pro diversis sty lis." 49*. Commentators explain the nature and characteris tics of these different trials under tit. i,l. I. The plenary proceeding is ca.\\ed plenarium, because the rules and for malities prescribed by law are fully observed ; ordinarium, because this full procedure was ordinarily instituted in judicial trials, according to the order of the law; solemne, becau.se most of the formalities to be observed were pre scribed by the law not directly in the interests of justice, but rather for the solemnity, dignity, and majesty of the court. It is easily understood vvhy such trial was said to be carried on cum strepitu forensi, with public pomp and noise. The other kind of proceeding was called summarium, because it was so abridged as to exhibit only the sum or substance of a regular trial; extraordinarium, because it could be used in special cases only indicated by the law ; oeconomicum, because it prevented waste of time, work, and expenses by a more expeditious way of arriving at a de cision ; simpliciter et de piano, because of its simplicity and plainness as against the pompous display of the plenary ; finally, sine figura et strepitu, for the same reason. We consider the matter important enough to show more clearly yet the difference between both procedures; for, as a great canonist remarked twenty years ago, nearly all ecclesiastical trials may nowadays proceed in forma summaria.'' Any one desirous to get in a moment a general idea at least of all that is implied- in a plenary trial, may take Vivfes' edition of Reiffenstuel and run through the index of vols. 2, 3, or do the same with Professor 5«;«/2'j work, vol. 2. He vvill probably find more than he desires. For ' Acta S. S., V. p. 39. The remark is from a dissertation, de judiciis sifmmariis, \. u., by Avanzini, the founder of the Acta. 88 Forms and Parts of the Procedure. a fuller exposition let him read Dr. Smiths work, vol. 2, p. II. ch. III. It is impossible here to indicate all those formalities. Suffice it to explain shortly what formalities may be left out in the summary proceeding, whicii is clearly and distinctly described by Clement V. (Clem. Saepe 2, de verb, signif., V. Ii). According to this con stitution the judge need not demand a bill of complaint, nor insist on a formal contest over the issue ; he may hold court on legal holidays ; he should cut off delays, and as far as possible shorten the trial by refusing to admit un necessary and dilatory pleas and appeals, and by putting a check to contentions and quarrels between the parties, the advocates and attorneys, and a superfluous production of witnesses. On the other hand, he must be careful not to exclude any necessary evidence or lawful defence. More over the summons must be served, nor shall the oath against malice and slander, or the oath of true testimony be omitted. From the foregoing statute canonists conclude that in tiie summary proceeding all those formalities, subtleties, and nice points may be omitted which are only the work of human will ; but that such means, rules, and proceed ings which are by natural or divine law required to serve truth and justice, or which Canon law declares to be sub stantial and- essential to every judicial trial, cannot be set aside without rendering the whole proceeding void. As the Instruetio puts it, the judge may proceed in a sum mary manner servatis semper regulis justitiae substantiali- bus (art. lo). Yet these are only general rules subject to widely diverging interpretations, and as various applica tion in practice. In order, therefore, to guarantee the full rights of justice, and to insure at the same time a regular and uniform canonical procedure (preamble to Instr.), the Sacred Congregation has expressly laid down those sub stantial norms in its now famous Instruction. They are Forms of Procedure. 8g enumerated by Rota, n. 603, under eight heads, as follows : I. The summons ; 2. All relevant evidence for the prose cution as well as the defence ; 3. The oath against malice, and that for true evidence ; 4. The right of defendant to file his articles ; 5. A sufficient term given him to do so ; 6. Exceptions and interlocutory appeals; 7. The summons to defendant to hear the sentence ; 8. Sentence to be given in writing. Craisson, n. 6005, adds another; viz. that any petition of defendant shall at once be put on rec ord. This is also implied in the more general rule given by Pierantonelli, prooem., n. 2, that all such documents shall be filed with the acts as may be required afterwards to prove to the interested -parties or to the higher au thority that the essential forms of a just trial have been observed. Here we suspect to see the reason why the Cum Magnopere demands so much writing, in scriptis.^ 50. The summary proceeding, evidently, is just as thoroughly conducted as the ordinary, and nothing is omitted therein that may be useful or serviceable in the discovery of the truth. Only the non-essential formalities, which Canon law drew to a considerable extent from the Roman, may be omitted ; their omission does not make the proceeding null.' We must pass by the history of this procedure. That its importance, however, may be ' We call attention to the remarkable difference of art. 9 in VOrdina- rio from the same article in Cum Magnopere (see appendix). We Infer therefrom that in Italy and France the solemn proceeding is still to be considered the normal or ordinary one, and where it can be freely and successfully carried out, it must be done. Rota, n. 607. For the bishops of the United States, however, no other procedure is made obligatory or even left elective than the summary one, as established by the Instruc tion, ^ Rota, n. 611, pertinently remarks that the two clauses to proceed summarie, simpliciter et de piano, and the other, to proceed sola facti veritate inspeeta must not be confounded. The first simply Implies our sum mary procedure, whereas the other refers to a kind of trial without any proper order or form, and which canonists call a strange, odiou'. and ter- go Forms and Parts of the Procedure. thoroughly appreciated, we wish to observe that the greal Innocent III. prepared its introduction ; Boniface VIIL granted it first to the Dominicans, and later to the other orders. Gradually, under the furtherance of Popes Clem ent v., Sixtus v., Pius v., and Clement VIIL, it found admission into the ecclesiastical courts for the secular clergy. It became more and more evident that too many formalities only conduced to lengthen the proceeding, to furnish numerous grounds of nullity, and to serve chican ery, while justice and truth would be forced to retire. In the plenary trial they clung more to the letter of the law, as the Pharisees did at the time of Christ, whilst in the summary one they strove to grasp the spirit and sub stance of the law. At Rome the summary procedure has enjoyed the greatest favor" for more than a century, whereas the ordinary one has gone almost entirely out of use. In the S. Congregation of Bishops and Regulars, to whom the appeal lies in criminal cases of ecclesiastics, the summary procedure is exclusively employed ;' and in appeals on account of errors of procedure, it passes sen tence of nullity only when an essential form has been violated.' Note*. — As this work treats only of criminal procedure, it is unnecessary to explain the distinctive features of both the civil and criminal trial. Suffice it to call atten tion to the notable distinction by canonists between a civil suit against crime {de crimine civiliter) and a crim inal trial {de crimine criminaliter). rible proceeding. It is also called judicium statarium, ex abrupto, more belli, and takes place when, on account ot the notoriety, atrocity, and cruelty of the crime, the judge Is content with any solid proof of the fact in order to pronounce sentence at once. The difference is evident. ' De Lucca, 1. c, disc, 34. n. 6. ' See Appendix. ' De Lucca, 1. c, disc. 38, n. 22. Judicial Evidence. 9 1 CHAPTER IL JUDICIAL EVIDENCE. Art. I. General Remarks. 51*. Judicial evidence," in the modern acceptation of. the term, is all that is offered and admitted in court as tending to prove or disprove the matter in issue, f udicial proof is the clear and evident demonstration of the mat ter at issue, made in court by judicial evidence. There is no proof without evidence, but there may be evidence without proof. Canon law and canonists, when speaking de Probationibus (1. II. tit. 19), treat only of the general questions concerning evidence, leaving it to succeeding titles to treat in detail of the special kinds of evidence. The treatise on evidence and its use in criminal courts is evidently of the highest importance. The whole and sole object of criminal procedure is to prove the exist ence of the crime, to demonstrate the truth of the charge. Whether the fact be proved or not depends on the evi dence admitted in court. Hence the many questions concerning its nature, legal character and weight, effect, object, and the modes or methods of introducing it. It is plainly impossible, in a little work like the present, to develop these questions as fully as they deserve, and we must refer our readers for fuller information to the com mentators and authors generally quoted.' A fevv of the ' Bouix, t. I. p. I. sec. VI.; Craisson, n. 5698 ff. ; Smith, n. 813 ff ; San guineti, n. 587 ff. — Nearly all of this second chapter is written by the editor. " We cannot suppress the remark that to get acquainted with some compendious writer on the Common law of Evidence such as. e.g. Sir J. Stephen, H. Roscoe, T. Starkie, would prove not only very interesting. 92 Forms and Parts of the Procedure. more important preliminary remarks may find a place here. Different Kinds of Evidence. — We distinguish direct {inartificialis) and indirect {artificialis) evidence. The first is such that it tends of itself directly and imme diately, without the intervention of proof of another fact, to establish the existence or non-existence of the fact in question. Indirect (presumptive, circumstantial) evidence is that which tends to prove a fact by proving directly the existence of another or others from vvhich the first may be inferred (see n. 84). Again, we distinguish parol (depositions of witnesses, admissions of the accused) and documentary (written) evidence (see n. 85). The distinction observed in Common law between primary and secondary evidence becomes useless when speaking of Canonical criminal procedure. 52*. Tlie Weight of Evidence. — Here we have first to explain the important distinction between /^r/rr/ and im perfect evidence," or such that will establish a full proof {probatio plena), or only semi-proof (/. semiplena). Per fect or full evidence is that which is of itself sufficient to convince the judge of the existence of the crime ; in other words, evidence sufficient to establish the trutli of the matter previously at issue. The judgment, consequently, must always correspond with perfect evidence. Canon ists sometimes speak of the fullest or clearest evidence or proof {probationes appertissimae, evident issimae, luce but highly instructive for our future clerical advocates and jurisconsulti. They will certainly gain a clearer insight into the rationale of some rules of the Canon law on Evidence. For like reasons we refer to Henry atid Harris, where the part on evidence (pp. 106-365) is undoubtedly the most interesting for a clerical reader. If an able Catholic lawyer would give us a book on Ecclesiastical Trials in the nature and style of the one just named, it would be a great boon. ' Not exactly the same as prima-facie and conclusive evidence in Com mon law. Judicial Evidence. 93 clariores), meaning proofs so evidently establishing a fact that even to suspect any possible proof to the contrary must appear unreasonable. This highest degree of evi dence is required in criminal cases to justify sentence by which any of the severer punishments, e.g. degradation, is to be laid on defendant, on the principle that " Satius est impunitum relinqui facinus nocentis. quam innocentem damnari." ' However, to give sentence even for some slighter punishment, the judge must be sustained by full evidence of the crime. Imperfect evidence, if it be not offered in such abundance as to make a full proof, cannot convict the accused. The judge must in every case be at least morally certain of the crime, without any reasonable doubt to the contrary.' — Semi-proof arises from imperfect or insufficient evidence. Such evidence merely estab lishes a probability, greater or less, but no certainty of the crime. Bouix' enumerates six kinds of perfect evidence : i. The depositions of at least two classical witnesses to the same point ; 2. An oflficial or otherwise authentic docu ment ; 3. Conclusive presumptions of lavv {juris et de jure); 4. In civil actions the oath {juramentum deciso- rium) made by one party on the request of the other; 5. The judicial confession ; 6, The evidence or notoriety of the fact. Imperfect evidence is furnished — i. By the depo sition of one witness, or of several single witnesses, or of two non-classical witnesses ; 2. By writings of a private character; 3. By a document admitted as authentic only on the strength of the handwriting; 4. In civil actions by the oath {fur. suppletorium) demanded by the judge in confirmation of a statement ; 5. By inconclusive presump tion ; 6. In civil actions by public rumor when legally proved. Another important question concerning the weight of ' C. J. Civ. ' Instruetio, art. l6. ' Vol 11. p. 303. 94 Forms and Parts of the Procedure. evidence arises in case of opposite or contrary evidence ; viz, the question of its prevalence. Santi' very nicely explains the question.' We give his rules.' In case of conflicting evidence the judge must see first whether it be a true or only an apparent conflict. If there be real opposition, the evidence is either equally strong or it is not. If not, the principle is major proba tio praefertur minori and consequently plena probatio absorbet semiplenam. If the evidence appear equally weighty on both sides, it is neutralized, and judgment in a civil case will be non liquet, in a criminal non est reper- tus culpabilis. In privileged causes, however, the judge would pronounce in favor of that cause. Other prin ciples to be observed are that direct evidence is better than indirect ; that specific and particular evidence is stronger than general ; that two or even more half- proofs will not establish full proof against a criminal de fendant except their combined weight tend towards the same point so strongly as to produce positive certainty. 53*. The Object of Evidence.' — The general rules as commonly stated by writers on Common law* agree with those of Canon law. They are mainly the following: 1st. The evidence must be confined to the point in issue. Truth and justice demand the observance of this rule ; the first, in order to avert confusion and obscurity which would arise from irrelevant matter freely introduced ; the second, in order that, the true state of the case being established, justice may be more effectually done either as regards the law or the accused. Hence only such evi dence can be admitted which bears directly or at least in directly (collateral facts) on the issue ; all irrelevant, ' h. t. n. 24 ff. ^ Cfr also Reiffenstuel. h. t. n. 73 ff. ^ Reiffenstuel, h. t. n. 31 ff. " Cfr. Bouvier, s. v. Evidence. Judicial Evidence. 95 foreign and useless evidence, no matter by whom it may be offered, must be rigidly excluded. Whether the evi dence offered be relevant to the issue or not, the court will decide. 2d, The substance of the issue must be proved. Consequently in a criminal process it is abso lutely necessary, but at the same time quite sufficient, to bring evidence of such a nature as will prove that de fendant has substantially committed the crime as speci fied in the charge. If the evidence vvould show him guilty of substantially another, although very similar, crime than the one he is indicted for, the judge could not pass sentence upon him for this crime without a new charge and trial. 3d. The affirmation of the issue must be proved. In a criminal case, therefore, the prosecution must bear the burden of proof. There is an axiom, how ever, that reus excipiendo fit actor; i.e. defendant must give evidence in support of his pleas. From the curious rather than learned disquisitions of older commentators on the proof of a negative we gather the simple rule that a negative pure and simple admits of no proof whatever, whereas a so called pregnant negative, which implies an afifirmative, can be proved indirectly by proving the im plied affirmative. 4th. What is evident needs no proof. This axiom can be applied only, at least in criminal law, to vvhat is evident in law {notorietas juris), and what ac cording to Common law is known hy judicial notice or recognition. But evidence of fact {notorietas facti) ad mits of proof. Under this fourth rule come a great many cases covered by another canonical rule : non pro batur cui favet praesumptio juris. 54*. Time to Introduce Evidence — The general rules of Canon law are few. 1st. Evidence cannot be offered before the judge opens the case by hearing the charge of the prosecutor and the answer of defendant {contestatio delicti). This rule does not apply when thc court pro- 96 Forms and Parts of the Procedure. ceeds either summarily or by inquisition. 2d. No evi dence will be admitted after the conclusion. This, however, does not hold in matrimonial and more impor tant criminal cases. Evidence may sometimes be ad mitted after the conclusion at the discretion of the court ; but if a peremptory term has been fixed by the court for the purpose, no further evidence can be admitted after the lapse of that term. 55*. Entry of Evidence. — Evidence must be given to the court {judici), that is, to the judge or a person com missioned by him to receive or collect evidence, e.g. the auditor or even the clerk. All the evidence given must be carefully and truly recorded by him who receives it or by his clerk, documents by the noting, parol evidence by his minutes, etc. Evidence not given to the court or in court is no evidence. Art. II. The Confession. 56*. The judicial confession" has ever been the regina probationum. Especially in the earlier inquisitorial pro cedure every conceivable effort was made to obtain a confession from the accused. But now no kind of coer cive means, physical or moral, is employed to procure it ; nay, art. 24 leaves it doubtful whether or not the accused should be forced, vvhere that is stih possible, to appear before the court. The examination of the accused'' follows immediately after his appearance in court {Instr., art. 25). The word ing itself of the article shows that the purpose of this examination is not to sustain the prosecution, but rather to exculpate the defendant if possible. Hence the audi tor must especially here be on his guard against any mere ' Cfr. Commentators in 1. II. tit. 18. De Confessis. ^ Pierantonelli, 1 t., n. 17 ; Rota, n. 698 sqq. Judicial Evidence. 9 7 prejudice that may have taken root in his mind during the preceding inquiry. He must not forget that he is neither prosecutor nor counsel, but' an impartial inquirer after truth {ut Veritas pateat). The author well remarks: " He must take care not to appear biassed, much less to disclose by the manner of examining his conviction of defendant's guilt. Even if he were convinced, he ought still to discharge his unpleasant duty in a generous, re spectful and gentle manner towards his erring brother. It is only thus that the accused, if guilty, will acknowl edge his fault at once; it certainly is the only way to get, not a one-sided, but a full and impartial view of the whole case." The questions or interrogatories to be put to the accused may be divided into general and special, as in the examination of witnesses. The special questions must be, at least in some respect, relevant and material to the issue. Yet no leading or suggestive questions are allowed. Even when inquiring about particular circum stances or details, the question must be put in such a way that the accused is not thereby forced or unavoid ably led to directly commit himself. Leading questions, however, are allowed if the auditor has already manifest proofs of the defendant's guilt. According to the Acta S. S., XV. p. 391 sq., the auditor in examining ought to follow the order as given by the charge or the nature of the case. He should carefully avoid passing suddenly from one subject to another only to return as unexpect edly ; this manner of questioning is mere trickery and a snare even for the innocent. Again, his interrogatories should be short and simple, and no one question should include things to be asked severally and separately. Moreover, it is advisable to begin with more general and lighter matter, and gradually come to special and more important points, which may give nearer and more seri- gS Forms and Parts of the Procedure. ous indications of the crime. If the accused refuse to answer a legitimate question it does not amount to an admission, but will assuredly create a suspicion of his guilt." Finally, the auditor should exercise great charity and never lose patience with the accused. 57. The accused cannot be compelled, like other wit nesses, to take the oath to tell the truth {juramentum de veritate dicenda). This practice, formerly much used,— or rather abused, — was abolished by Pope Benedict XIII. at the Council of Rome, 1725;' the same Pope, how ever, declared it admissible when defendant is to con firm the truth of his statements concerning accomplices. But if he should upon the judge's request have taken such an oath for the statements concerning himself, the whole proceeding and the sentence based thereon would h^ ipso jure vo\dL. The auditor and the judge must be content with admonishing the accused to speak the truth.' 58*. The confession is either judicial or extrajudicial. It is judicial when made before the competent judge while in court. In court means, at least in a mere summary pro ceeding, in his official capacity as judge, but does not re fer to the place where the trial or examination gener ally occurs. In this sense both conditions are necessary. Hence a confession made to the competent judge but not in court is extrajudicial ; the same must be .said if made in court yet not to the competent judge but only, say, to the prosecutor or the clerk. Canon law on this point is stricter than Common law. In regard to the question, when is a confession evi dence in law, one must very carefully distinguish between ' S. C. 6 Sept. 1713. AJP., xm. 29, 94; Acta S.S., xv. 392. ^ The decree Is given in the Coll. Lacensis Cone. Rec., 1. 364. ^Notification, 24 Apr. 1728. AJP., xm. 48 f., 91 f. ; xiv. 972, 39; xx. 449. I- Judicial Evidence. gg civil and criminal trial. We speak of the latter only. Li this case an extrajudicial confession is no proof whatever, not even semi-proof. The conviction of a criminal must be, as the canons say, by evidence clearer than sunshine {probationibus luce meridiana clarioribus). Such a con fession, vvhen properly brought before, and proved to, the court will make at most presumptive evidence, or furnish grounds for special inquiry. A judicial confession in order to be full proof in court, must have certain qualities expressed by the Gloss in the following verse : Major, sponte, sciens, contra se, ubi jus fit, et hostis; Certum, lisque: favor, jus nec natura repugnet. Major, that is, one considered of full age by the law. Sponte, freely, not by force, threats, fraudulent promises or inducements, even if offered by the judge. Sciens, with clear and full knowledge, and without error in fact. Hence a confession made on the impulse of passion or great provocation would not be proof, except it be con firmed by the accused after the passion has passed away. Contra se. This in a criminal case can refer only to the qualification in a so-called qualified confession. The confession will always be against the- defendant, but the qualification will generally be some circumstance in his favor, e.g. that he committed the delict without proper advertence or deliberation, or in ignorance of the law, or on a necessary occasion. A qualified criminal con fession is, according to canonists, divisible. While accept ing the confession, the judge will refuse the qualification favorable to defendant until the truth of it shall have been established. This condition implies, moreover, that the confession shall not be proof against any of his accom plices, but only against himself. There are, however. IOO Forms andParts of the Procedure. some exceptions to ll:i.s rule, inasmuch as Canon lavv admits a criminal confession and testimony against his accomplices in the following cases: 1st, in exceptional crimes ;" 2d, in occult cases when, on account of the nature of the crime or circumstances, it is difficult to ob tain evidence in court ; 3d, in crimes which by their very nature cannot be committed without one or more accom plices; 4th, ih crimes the final execution of which is still left to the accomplices; 5th, in any other crimes, if the confession, i.e. the testimony of the accused against his accomplices be supported by other evidence given in the case. The bare confession of the accused as a rule is no evidence, not even against his accomplices, according to the Gloss : "Nulli ergo de se confesso, super crimitie aliorum creditur." Ubi jus fit means in court to the judge. Et hostis, in presence of plaintiff or prosecutor, a condition required only in Civil, not in Canon law. Certum, the confession must be clear and definite; an ambiguous, un certain and vague confession is null. Lisque, it must be on the matter at issue, on the crime of which he is ac cused ; not on foreign matter, even if that were another crime. As to the last three conditions, it is impossible to explain briefly the meaning of the phrase "favor non re pugnet." With reference to a criminal confession, how- ' Exceptional crimes {crimina excepta) are those of a more pernicious character, being in effect directly injurious to, and destructive of, the foun dations of society whether ecclesiastical or civil. Hence, in order the more promptly and effectively to save the public welfare against such at tacks and the sooner to convict the criminal, the courts in trying those crimes were not bound to observe all the formalities and rules of a crim inal procedure. And because of these exceptions from the regular pro ceeding the crimes were themselves called excepta (for which term we are unable to find a better English equivalent than exceptional). Among these crimes the commentators generally enumerate treason, forgery either of money or public documents, highway robbery, assassination ; then heresy, simony, sacrilege, sorcery, etc. Cfr. Reiffenstuel, 1. 11. tit, 18, n. 99 ff. Judicial Evidence. i o i ever, it is not at all pertinent. This may also be said of the other two, which simply mean that the confession must not imply what is impossible either in the nature of things or at least by law. 59*. What is the effect of a valid judicial confession? It is manifold. First, such a confession is full proof of the charge and makes any further evidence urjnecessary, be cause it renders the delict notorious de jure. All that remains for the judge is to satisfy himself that the con fession is valid, i.e. has all the necessary qualities, and then pronounce sentence. Secondly, it renders valid any previous defective proceeding. Thirdly, if made after defendant has already been convicted, it deprives him of the right to appeal. May defendant recall his confes sion ? Yes, if he does so in a continent proceeding, in continenti, as the phrase is, i.e. during the same examina tion or hearing, but not after an interruption. Is defendant, if guilty, bound to confess it when law fully asked by the judge ? We limit the question strictly to our subject, the canonical trial of a cleric, and answer in the afifirmative without any exception. Cfr. Konings, Theol. Mor. n. 1072. The plea of " not guilty " in American lavv, with the mental restriction "because not convicted" or the like, is not admitted as yet by any canonical statute. The case of capital punishment, im prisonment for life, or deportation, in which some famous canonists and moralists allow defendant, not to lie, but to evade a direct confession, has no application in ecclesi astical courts. Art. III. Testimony of Witnesses. 60*- Among evidence strictly so called, the testimony of witnesses holds the first place". The importance of the matter explains vvhy Canon law no less than Civil and I02 Forms and Parts of the Procedure. Common lavv embodies so many rules concerning such evidence, and why canonists have written such extensive commentaries on these titles of the Corpus Juris' For our purpose, and confining ourselves as far as possible to the criminal trial, we shall divide the whole complex mat ter into five parts; viz. on the competency, the authority, the attendance, the examination of witnesses, and the publication of their testimony. I. The Competency of Witnesses. Although writers on Common law' distinguish between competency and credibility of witnesses, yet we include the second in the first. A witness is admissible in the court (competent) only on the supposition of his credi. bility. The contrary were absurd. Hence we understand by competency the legal fitness and ability of a witness to be heard and believed on the trial of a cause. His testi mony, if it turn out to be quite improbable and incredi ble whether in itself or compared with contrary testimony, becomes also incompetent, i.e. of no value in the cause.. As the whole object of testimony is to testify to fact (not law), the law can recognize only him as a competent witness whom it supposes to know the fact and willing truthfully to state it. To these two qualifications all the rules of law on the competency of witnesses can be re duced, and it will be easily perceived that incompetency on the grounds of natural law refers mainly to the first qualification, while incompetency established by positive law refers rather to the second. This, again, explains why the one kind is absolute, no matter whether the trial be civil or criminal, vvhether the witness be for the de- ' L. I. tit. 20, 21. For a practical Illustration of some of the legal questions see the Causa Mediolan. 1884, in Acta S. S., xvm. 64 ff. ' Bouvier, a, v. Competency. Judicial Evidence. 1 03 fence or the prosecution, while the other is only relative according as the law considers the witness under certain conditions willing to state the truth or not. a. By natural law all those are incompetent witnesses who are deprived of the right exercise of their reason or of their senses either at the time when they testify or at the time of the fact to which they are to testify. The one prevents them from perceiving the fact ; the other, from correctly stating it. To this class therefore belong in fants, idiots, lunatics, and intoxicated persons ; then the blind, the deaf, and the dumb in regard to the sense of which they are deprived. b. By positive law some are absolutely incompetent ; thus on account of age impuberals, i.e. children above seven but not yet fourteen (boys) or twelve (girls) ; again, slaves, on account of their condition ; paupers, because suspect of being bribed " by the party producing them. A large class of witnesses are incompetent because of the law excluding infamous {infames) persons whether they be such bylaw {inf. juris) or in fact {inf . facti). Of the first class are those whom the law itself deprives of their honor and poUtical right on account of crime of which they are guilty or judicially accused. Infamous in fact are those who on account of the crime committed by them lost their honor and good reputation in the opinion of good and honest people, although no statute brands them with infamy.' Infamy in fact will be re moved by manifest repentance and amendment, by an honest and becoming life for a longer period ; but infamy ' Gloss : quod lucri gratia quid facile admittat, quoting Prov. xxx. 9 Yet Canonists also had an axiom : magis creditur virtuoso pauperi quam diviti vitioso. Hence if the pauper established his honest character to the satisfaction of the court, he was admitted as witness. ^ See a detailed exposition in Reiffenstuel, h. t. n. 29 ff. ; Santi, h. t. n. 4ff. I04 Forms and Parts of the Procedure. by law can be removed by the law only ; i.e. by a posi tive and authoritative declaration {abolitio, dispensatio). Persons excommunicated and to be avoided {vitandi) are also incompetent. Those who are tolerated, although publicly known to be excommunicated, are also incom petent if objected to by the opposite party, 6i*- Relatively incompetent are those witnesses who may testify in some but not in all cases." Some, again, may be admitted for the defence but not for the prosecution, or vice versa. According to Canon law the following per sons cannot testify in a criminal case : minors under twenty years; women, if the procedure be accusatorial; persons directly interested in the result of a suit. Per sons cannot testify against those whom they bitterly hate, nor against their near relations by blood or marriage. Jew or Pagan shall not bear vvitness against a Christian, nor heretics against those of the fold, nor as a rule lay man against cleric, nor clerics or religious persons against others in causa sanguinis, i.e. where, in case of conviction, sentence will be for death or cruel mutilation. But neither sex, nor clerical orders, nor religious profes sion, nor near relationship by blood or marriage can ren der a witness in a criminal suit incompetent for the de fence. There is one more class of persons who may be called in a sense incompetent ; viz, those who are privileged and cannot be called, much less compelled, to testify. See below, n. 66. In regard to incompetent witnesses two important ob servations are still to be made. First, the judge is not forbidden to hear their testimony in court, only he must ' Bouvier, s. V. Witness: " The testimony of such as are generally qualified and competent under other circumstances or as to other matters is something excluded out of regard for their special relations to the cause in issue or the parties, or from some olher circumstances not working a general disqualification.'' Judicial Evidence. 1 05 not allow it to influence his judgment. For such testi mony is not legal evidence, nor can any sentence be based on it without becoming eo ipso void ; yet it may give the judge some clues and hints to guide him in the further inquiry." Second, incompetent witnesses must be ad mitted in the trial of exceptional and of notorious crimes, also in cases where competent testimony cannot be had ; e.g. seduction or solicitation of a child. However, their evidence will not be full proof, except when supported by other evidence. 2. The Authority or Weight of Testimony,^ 62*. In weighing the evidence given by witnesses the judge must consider three things: first, the credibility of the witness; second, the strength of his testimony when compared with that of other witnesses ; third, the quality of the deposition. With regard to the first, we remarked in the pre ceding paragraph that incompetent witnesses could give no proof, not even half-proof, but at most so-called indicia or conjectures. Even in cases where the law ad mits their testimony, it amounts only to the force of a presumption. Full proof is supplied only by competent witnesses. These are sometimes called classical witnesses, and again omni exceptione majores, beyond all exception, ¦ Our author says on this point; " If the judge is disposed to consider witnesses as classical who are not such, the accused may enter an excep tion thereto. Should the judge administer the oath to witnesses who ought not to be sworn, he is himself responsible therefor. But there is no objection against examining non-classical witnesses, though their testimony is not perfectly valid ; for it may furnish the judge with facts leading to the discovery of fully competent witnesses, or may serve him as circumstantial evidence ; but what weight he may accord to the testi mony of non classical witnesses in a particular case, he must himself care fully consider." "^ Cfr. Rota. n. 672 ff. io6 Forms and Parts of the Procedure. which does not mean that no exception has been made against them, but that if made it has not been sustained by the court. Now, it is the general rule of Canon law that in civil as weh as criminal trials the concurrent testimony of two classical witnesses, neither more nor less, is required to give judgment accordingly. Hence the axiom : testis unus, testis nullus ; or again, dictum unius, dictum nullius.' There were some exceptions to this rule in cases against bishops or clerics, but modern canonists agree that those ancient laws have gone into desuetude, and that it is now left to the discretion of the court to determine in any particular case whether, and how many, more than two witnesses shall be required for the prosecution before it can conscientiously give sentence against the accused. 63*. In weighing and sifting the depositions made by several witnesses to determine their relative force upon the issue, lies one of the gravest and most diificult duties of the judge. All are agreed that no special rules can be laid down for him in this matter. He must judge of the evidence according to his own knowledge and sense of duty. However, a few general rules may guide him in the difficult task. The depositions of witnesses, whether on the one side only or on both, will either differ or not. Witnesses who make the same or alike depositions are called concordant {testes Concordes, contestes) ; those who differ from one another are called single witnesses (/. singulares). In view of three possible hypotheses in such a case, canonists speak of conflicting, variant, and admin icular singularity of witnesses. When the different depositions cannot be explained because one necessarily excludes the other, their evidence is conflicting {s. contraria). Both cannot be true. Evi- ' This, however, does not apply to expert witnesses. See below, n. 70. Judicial Evidence. 107 dence is called variant {s. diverstfieativa) when there is no connection whatever or mutual relevancy between the several depositions, though they may all state what is true. Hence they are either all or at least-some of them altogether irrelevant to the issue, and therefore inadmis sible. Different depositions of witnesses furnish admin icular evidence {s. adminiculativa, cumulativa) when they testify to different facts so connected with one another that to prove one is to prove the other. It is clear that this connection of the circumstances or the facts must be first established before such depositions can be called cumulative evidence. Single testimony would give half- proof only, while full proof vvill be established by con cordant testimony for the different circumstances or facts. How shall the judge know the relative value of conflict ing evidence furnished by witnesses? When is it equally strong? and if not, which is weightier? and when is that excess of weight still large enough either by itself or together with other evidence to cause conviction ? No practical answer to these questions can be given here ; it lies with the judge, who must consider not merely the re spective number of the opposing witnesses, but moreover their intellectual and moral qualities, their position with regard to the matter at issue, and the qualities of their depositions. 64*. The quality of a deposition may refer to its con tents, and to the manner arid form in which it is given. With regard to the first, canonists distinguish four kinds of evidence, viz. evidence of personal knowledge, of opinion, of hearsay, and of rumor. The first is that given by eye-witnesses {testes de scientia) and is the only true witnes.s-evidence ; the rest are not evidence of the fact at issue given by the witnesses themselves, but rather sources opened by these witnesses from which other evi- io8 Forms and Parts of the Procedure. dence on the issue may be drawn, such as rumor, declara tions, authenticated documents, circumstances, and facts established by expert testimony, etc. Evidence of opinion {t. de credulitate) here does not mean expert opinion, nor a lower degree of the mind's assent to its ovvn judgment, " but a belief held as the result of inference and not of direct perception." " Such evidence is of no more weight than the inferences and conjectures together vvith the basis upon which they rest. Witness, therefore, must be examined on these points. How much strength may accrue to an opinion from the personal qualities of the witness, is left for the judge to consider.' Santi, h. t. n. 30, says of such evidence of opinion, " that if such opinion is supported by good reason, although it may not give a full proof, yet it will be quite an indication of the truth and a strong presumption." Hearsay evidence {t. de auditu) is not admissible in court except when higher and better evidence cannot be had. The reason is obvious. Such depositions contain only statements and declarations made by others than the wit ness himself, consequently by persons whom as yet the court knows not. Declarations and statements thus offered carry no more weight than they derive from their authors and the circumstances under which they were made. Such evidence is second-hand only and cannot be worth more than the original. Hence, where there are several ' E. Robertson, in Eneycl. Brit., s. v. Evidence. * Mr. Robertson, 1. c. , having stated that in Common law evidence of mere opinion is, as a rule, not admissible at all, very truly observes: " In thus excluding opinion on all but technical subjects, the law is stricter than the logic of ordinary life. The opinion of others tells for something In the formation of our own opinions, and no doubt ought to tell for some thing," Query : Is not this a principle of the Catholic doctrine of Pro- babilism, or, in other words, of that Catholic "examination of the in fluence of authority in matters oi reasoning," as Mr. R. says? Judicial Evidence. \ og hearsay witnesses the judge must first inquire after the author of the original statement. Cases are not unknown in ecclesiastical jurisprudence where an amount of hearsay evidence had been offered in court against a defenceless cleric, but through the searching efforts of a conscientious judge that formidable mass of witness shrunk down to the form of one evil-tongued woman. Again, hearsay evi dence must not be accepted when the declarant himself can be brought into court ; for in this case hearsay evi dence would be legally suspect and therefore worthless. Evidence of rumor ' as given by witnesses {t. de fama) means their depositions in regard only to the existence or non-existence of a rumor relevant to the issue, the origin, extent, and nature of such public report ; but their testi mony is not to the truth or falsehood of that rumor. Where rumor cannot be traced to a certain origin or defi nite cause, the court raust consider it as idle talk. Depositions made by a witness in the course of a trial may be consistent or not. If they are, it is in favor of his credibility; if they are not, they must either conflict with or only vary from one another. In the first case, if wit ness corrected himself in the same continent hearing, the court may accept his correction and consider his first as sertion as an error made in good faith. But if he recall his statement only after other transactions, especially after having seen the party producing him, or if he do not offer any explanation of his conflicting testimony, he vvill be considered as suborned or at any rate perjured and there fore not trustworthy nor competent. If his depositions be not substantially at variance, but only in their manner or in minor circumstances, and if he can satisfactorily ex plain the variance, the prior deposition will be admitted as evidence, except the later be more consistent with ' Cfr. Reiffenstuel, h. t. § xii. I IO Forms and Parts of the Procedure. other evidence known to the court. Doubtful, uncertain, vague, and confused testimony is no evidence. Be it re membered, however, that a witness may be somewhat confused, wavering and shaky in his outer manner, being agitated by excitement, while yet his deposition may be quite clear, definite and firm, and make good evidence. 3. Attendance of Witnesses. 65*- Under this head vve shall, as far as our purpose re quires, treat of the citation, compulsion and produc tion of witnesses. The citation of witnesses is abso lutely required, otherwise their depositions cannot be considered as evidence of the court," If a witness should offer himself of his own accord, the auditor might send him a formal summons after having convinced himself of the witness's credibility. It vvould be advisable to have the summons signed by the auditor and his secretary. According to the Instr., art. 14, the writ is to be served on the person either by a court messenger or some other qualified person, or even through the mail by regis tered letter. The fact of its having been duly served should be recorded ; so also should the refusal of witness to obey the summons, as stated in art. 20.' The nature of our new procedure does not seem to call for any par ticular requisites of the summons; but as the inquiry is at first to proceed rather without the knowledge of the accused, it will be enough to state that witness is officially requested by the auditor, rightly appointed, to appear at such a place and at such a time, or, in case of being unable to comply, to state his reasons. Witnesses produced in court either by the defence or the prosecution need not ' Gloss: Testimonium a non citato dictum non valet; hujusmodi enim testis non citatus deponens redditur suspectus. ''Cix. Acta S. S., xv. 3S8. Judicial Evidence. 1 1 1 be formally summoned, except on request ; it is enough to state the fact in the acts. Droste observes that the auditor may sometimes find it advisable not to summon a witness otherwise compellable, but instead of it to go himself to such person in order to obtain his testimony at once and thus prevent any collu sion with the accused. Such proceeding, too, would have to be recorded. But if a competent witness refuse to obey the summons, can he be compelled to appear arid testify in court ? 66*. On the compulsion of witnesses ' our author says : " According to Canon law the witness should first be admonished to appear and give testimony. If he decline he must make known and satisfactorily prove his reasons, the same holding true as to those circumstances which relieve him from the duty of taking the oath. But the court will decide whether his reasons are sufficient or not. It has been a matter of great discussion with canonists as to what may be done, if the witness declines without cause to testify against an ecclesiastic. For a time they held that witnesses could not be compelled to testify in criminal trials;' in recent times, howev-er, they incline to hold it allowable at least when proof cannot be supplied in any other manner.' The proper way will perhaps be this : the judge admonishes the witness, if indeed he has appeared, to give his testimony ; should he refuse either to appear or to testify, the judge will, according to art. 20 of the Instruetio, make a note of it in the acts and try to supply the necessary evidence in some other manner. According to the rules of criminal legal interpretation this art. 20 excludes, in our view, the compulsion of wit- ' Cfr. Commentators in 1. II. tit. 2i; De testibus cogendis vel tion. " This opinion was based on a false interpretation of an incident phrase gf Honorius III. (c. lo, X. h. t.). ? Pfr. Crftissen, ». 5726. 1 1 2 Forms and Parts of the Procedure. nesses, even Catholics, although by the rules of the canons laymen may be compelled by excommunication, and clerics by suspension. Our opinion becomes the more apparent when we consider that the Council of Trent also admon ishes to great caution in applying such coercive measures." It is another question, indeed, but one which does not belong here, whether the witness is bound in conscience to testify against ecclesiastics' in criminal causes. This question should npt be confounded with thf judicial conk pulsion of witnesses." So far the author, vvith whose opinion the Acta S. S. seem to agree.' Santi* observes that in regard to compelling witnesses one must not strictly follow Canon law taken in a rigid sense, but rather custom.' We need not observe, however, that, any cus tom to the contrary notwithstanding, the bishop is justi fied in compelling, by ecclesiastical censure witnesses to appear and testify, if the importance and nature of the case or the absence of other evidence make it necessary, of whicii necessity he alone is to judge. This is the com mon teaching of canonists based on the principles often expressed in the sacred canons : ne pro defectu testium pereat sua justitia; or a. Cix. Acta S. S., XV. p. 397; Rota, n. 857. 1 68 The Practice. charge." It should be a clear and definite statement of the case, giving the name of the delinquent, the nature and extent of the offence or delict, and the laws that were thus violated. It might also contain a summing up of the evidence gathered in the previous inquest. A copy of such a specified and at the same time comprehensive charge ought to be given to the auditor, to whom it would be a most serviceable guide during the following judicial inquiry.' Having received the charge, the bishop will ap point or commission an auditor" to conduct the informa tive proceeding, by which all the evidence bearing on the case for the prosecution as well as the defence is to be gathered.* The Instr. clearly indicates two phases of this inquest which have been called respectively offensive and defensive proceedings. The first (arts. 17-21) consists main ly in gathering, especially by witnesses, all the evidence that may prove or establish the charge against the ac cused {ad culpam accusati probandani), although, as we remarked elsewhere (n. 28), the auditor must be careful not to conduct the inquest on the supposition that the accused is really guilty. Even now he must try to find evidence, if there be any, that may exculpate the delin quent. After the auditor has, under the prosecutor's guidance, obtained all the evidence available for the prosecution, he will begin the defensive proceeding (arts. 21-28), which opens with the citation of the accused." The legal requisites of the citation, examination, and eventual confession of the accused are explained above.' The accused may be examined at his ovvn residence if ' C. PI. B. III., n. 311. ^ This is quite In keeping with the Instr. 1878, arts. I, 2, 6. ' See Article IL, p. 52. * On judicial evidence see Chapter II. , p. 92. ' Droste holds that the defensive proceeding begins only with the final pleading. » Article 1 1., p. 96, The Judicial Trial. 169 circumstances allow it. In this case the citation must con tain the command to remain at home at an appointed time, when the auditor and clerk will call upon him. The accused must be examined in person ; he cannot be repre sented by attorney. The examination will be conducted by the auditor exclusively, although the fiscal procurator may be present." Defendant is, however, as yet denied counsel or advocate.' The accused may answer the ques tions put to him or may refuse to do it, which, however, will always create suspicion ; he vvill not be forced to an swer. Yet courtesy would require him at least to answer the general interrogatories. He is allowed to make any relevant allegations and averments for his defence and to offer any verifications he can possibly giv^e, etc. What ever evidence for the defence the auditor may thus be able to obtain must be taken, as the Instr., art. 25, de mands. Against the evidence for the prosecution de fendant may try to prove it to be conflicting, variant, rather slight and inconclusive. In the later proceeding, after the publication of the testimony, the defence may challenge the opposing witnesses, their credibility and competency ; or if a denial of the charge is impossible, it may put in a plea in avoidance (showing that the action charged is not criminal nor subject to disciplinary correc tion), or a plea of justification (proving that defendant had a right to act as charged), or a plea in ^.rf«i-^ (showing cir cumstances to extenuate and diminish the grievousness of the charge).' All the allegations, exceptions and pleas of the accused are entered on the minutes by the clerk, whom the auditor ought to direct and help in the matter. The minutes are read to the accused or handed to him for inspection. He is then asked whether he wishes any thing to be changed or added, and any such request of his must a* far as possible be complied with. Finally, ' AJP,, XIV, 927, ' AJP., XX. 734. » Rota, u. 72S. 1 70 The Practice. the accused, if willing, should sign the minutes ; so also must the auditor and the clerk. If defendant demand it, a probatory term must be given, when he may hand in his defence in writing." 102. While the auditor was engaged in taking evidence for the prosecution and the defence, the fiscal procurator may have found additional evidence on his side. If so,' he may offer it after the hearing of defendant, and the auditor may thus have to examine new witnesses, or the former on new but relevant matter, or to institute other judicial proceedings. The results of this new inquiry must be communicated to defendant the same as before, who thereupon has the right to answer and defend him self anew, because he or his defender is always entitled to- close the case. Several probatory terms may thus become necessary before all the evidence for and against the ac cused is collected and the inquest may be closed. When neither party has any more evidence or motions to offer, and the auditor himself considers the investiga tion complete, he vvill declare the inquest closed,' and make out a written rdsumi of the results of the investiga tion, according to art. 29.' This abstract together with the whole prods-verbal (the acts) of the inquest the audi- ' Instr., art. 28. ' ¦' Conclusio in causa est actus judicialis quo utrique parti ulterior probationum seu exceptionum productio interdicitur,"' {Sanguineti, n. 618) ^ The abstract is to give the raain arguments (summarium praecipuorum argumentorum — ristretto delle essenziali risultanze) pro and contra as derived from the evidence obtained at the inquest. We would advise the auditor forthe sake of ready reference to raark the folios or sheets containing the acts or minutes not only by the ordinary numbers for the paging, but also with letters of different type or In different ink (A, b, y, 4), accord ing to the different kinds and parts of the evidence. By such a device he can easily indicate where the evidence from which he draws the con clusions is found In the acts or minutes. This resumd or abstract by the auditor may be compared to the judge's " charge " (sumnfing up) to the jury in Common law. The Judicial Trial. 171 tor transmits to the fiscal procurator, notifying him at thc same time that he has finished his work and closed the inquest." The fiscal will peruse the documents in order to draw up his last charge and motions {requisitoria fiscalis) for the final pleading, supported by the evidence obtained in the trial. When he has finished he will de liver the documents (the auditor's abstract and the acts) together with any special motions of his, which, however, he cannot afterwards change, to the bishop or the judge appointed, who, after examining them, will fix a term for the final pleading, to which he must accordingly summon defendant as vvell as the prosecutor. Instr., art. 35. The time intervening between the close of the inquest a-nd the final proceeding must, however, be suflficient to allow the accused and his counsel to prepare themselves for the defence ; a period of only two days would cause the proceeding to be annulled.' ' There is some difference between the V Ordinario and the Cum Mag nopere with regard to the final proceeding. It mainly consists, as we re marked supra, p. 142, note 4, in the fact that the Araerican Instruction positively shuts out any parol pleading, so that the accusation as well as the defence raust be made and handed tothe judge in writing. By an alogy, though, with the Instr. 1878 for the Committee of Investigation, arts. 6, 7, which the Cum Magnopere follows in many points, we believe that the court when sitting to give sentence might first allow the fiscal procurator and the counsel forthe accused to read respectively the charge and the defence and offer oral explanations. The regular pleading, however, being in writing, the Cum Magnop. orders, in art. 33, that the prosecutor's final charge {conclusiones) shall be communicated to de fendant's advocate, thus to enable him to make the defence as full and thorough as he possibly can. The written defence together with the charge is then returned to the bishop (or the vicar-general, if he was ap pointed to try the case), who in private and at leisure will carefully study and closely examine both until he is able to conscientiously form a judgment and give sentence /ajr/a allegata et probata. He will then fix a day to pronounce sentence in court, and summon the parties. On the day appointed, when all are present in court, sentence will be given without any new pleadings or transactions (art. 34). ' 20 Aug. 1681. AJP., XIII. 51, 172 The Practice. Defendant and his counsel may either peruse the ab stract, the procfes-verbal and the fiscal's observations (art, 32) in the original at the episcopal chancery ; or they may demand, at their own expense, a copy thereof certi fied by the chancellor. Counsel may first have to take the oath of secrecy, if the bishop so decide. But it would not be enough to give them a mere extract from the acts.' Such an inspection of the acts, however, cannot be allowed to defendant or his counsel before the inquest is closed, as it is virtually the so-called publication of the process. But in no case may the accused or counsel take the original acts home with them, or away from the chancery. Even when the documents may be perused at the chancellor's oflfice, such measures and precautions ought to be taken by him that the acts cannot be ab stracted or otherwise tampered with.' Counsel may hand in the defence either in writing or print, even before the day set for the final pleading (art, 32).' Art. II. The Final Pleading and Sentence. 103. The final pleading of the prosecutor and counsel for defendant must take place in presence of the vicar- general and the chancellor {U Ordinario, art. 35). There is, however, nothing in the way to prevent several judges from sitting for the final hearing in a criminal case; rather it is to be recommended in order to make more certain that justice will be done.* The citation of the accused to this final proceeding (which is just as little ' 15 Mch. 1817. AJP., XIII. 51. " Cum Magnop., art. 32, " debitis sub cautells." Cfr. AJP., xx. 451. ' According to the Cum Magnop. counsel must do it before the plead ing. But as that is all in writing, we suppose the judge will fix a day when the defence must be handed in at the latest, * See our remarks supra, p. 52, note i. The Judicial Trial. 173 public in the sense that the public at large may be ad mitted as the inquest itself ') is indispensable ; its omission would make the proceeding void. The accused, how ever, need not appear in person, but may henceforth be represented by his counsel. The final proceeding is opened by the judge or the presiding ofificer at the time appointed. The pleading begins with the charge of the fiscal procurator, who repeats, explains and substantiates the same identical motions and allegations made by him in writing after he had read the acts and the auditor's ab stract; he cannot make a new charge 01 motion or bring in new matter, because the defence is not prepared for it. If he nevertheless insists on doing so, the court will determine whether to allow it, which it may do only under the express condition that if the new matter be in any way material to the defence, it will either be disal lowed by the court or another term will be given to the defence to prepare an answer. Then follows the defensive pleading. It matters not whether the accused plead first or his counsel ; as each has the privilege of parol pleading,' though they may have previously handed in the written defence. The fiscal procurator may possibly reply to the argument of the defence; in which case the accused or his counsel has the right to rejoin. In fact the proceedings as a rule cannot be closed before defendant or counsel declare that they have nothing more to say ; in other words, the defence has the right to close. 104. When the parties have closed their pleadings, the judge must consider whether the cause is ready for judg- ' AJP., xx. 467. ¦^ This we doubt. To us the Instr. which in arts. 34. 35 makes no men tion at all of defendant, but only of his advocate or counsel, seems there by to imply that counsel alone should do the final pleading in behalf of the defence. Nor do those articles necessarily imply /aro/ pleading. 1 74 The Practice. ment or not. If it is not, because the investigation was defective, and some points remain yet to be cleared up by new testimony of witnesses or experts, he must prolong the definitory term and order an additional inquest to be made by the auditor. In the other case he must render judgment at once. According to the Instruetio, art. 35, sentence is pronounced by the judge immediately after the final pleading at the same term, and put in writing by the chancellor. If the court consist of a col lege of judges, they must first withdraw to deliberate on the verdict, which is given by the majority of votes. The court may also reserve judgment until a later term, but not too long. Judgment must in every case be rendered by the same judge who sat for the final hearing; if ren dered by any other, it is void. The parties must again be summoned for the day when judgment will be given. They may be cited orally while still present at the final pleading. Sentence is to be given in presence of the same parties that were present at the final hearing, i.e. the judge, chancellor, prosecutor, and counsel of defendant." De fendant himself must be summoned, but need not appear. The legal requisites of the sentence were explained in n, 83. A certified copy of the sentence is given to the accused or his counsel, who should acknowledge the re ceipt of it so that the fact may be recorded in the chan cery.' If the defendant live in another diocese at the time, the copy of the sentence will be sent to him through the authorities of that diocese. In case of an appeal by the fiscal procurator, a copy will be given to him also ; ' ' Acta S. S., XV. 395; "Nequit minori personarum numero causarum criminalium judicium edi." While the V Ordinario raentions only the vicar-general, the Cum Magtiop. mentions also the bishop (art. 34). "^ Acta S. S., XV. 396, 550, note I. " 15 Dec. 1857, AJP., XX. 53, Appeal and Recourse. 1 75 but the original written sentence must always remain in the chancery." In case of a full acquittal, the acts of in vestigation must all be destroyed, that is to say burned.' CHAPTER III. THE APPEAL. 105*. An appeal, in the wider sense, is the calling upon a higher authority for redress against an injury or griev ance sustained through the act of a lower authority. Such recourse was mostly taken from judicial decisions, and in order to be accepted by the superior court had to be made under certain conditions or legal formalities. Hence the term " appeal " in the language of the law came to be used in a technical sense of the removal of a cause under certain formalities from the lower to a higher jurisdiction ' in order to obtain redress. This definition while it excludes any other means of redress, vvhether it be a simple recourse or a plea of nullity, covers all ap peals judicial and extrajudicial. By the first is meant an appeal from a judicial act or anything done by the judge in his official capacity and in connection with a judicial proceeding, whether it be a final or incidental action. ' 12 June 1858. AJP,, XX, 168. « 4 Apr, 1775, AJP., xm. 53; xx, 74, ' The lower jurisdiction is generally called in Latin judex a quo, and the higher judex ad quem. The latter is called in English the appellate court or judge. For the first we choose the term judge-appellee. Ap pellee (in Latin appellatus) means the party against whom an appeal is taken, which in a criminal trial is the state or attorney-general (in our case the bishop or the fiscal procurator). In an extrajudicial canonical appeal it is mostly the bishop {judex), again, who is appealed against. Hence, the term judge-appellee sufiSciently serves our purpose. 1 76 The Practice. Judicial appeals therefore they would be, if one appeal from a final or interlocutory sentence, from an order of the judge appointing too s-hort or limited terms, from the ruling out of some evidence or plea or challenge, from the admission of incompetent witness, etc. An appeal is extrajudicial when it is made from extrajudicial acts of the superior or judge." In the strict judicial sense this ought never to be called an appeal simply, as that always means a judicial one, but rather informal appeal ox provo- catio ad causam, i.e. legal application for redress. To use the word recourse {recursus) for extrajudicial appeal, as a few seem inclined to do, is confusing. Recourse in its legal sense differs from an informal appeal and may be had only where neither a judicial nor an extra judicial appeal lies. Again, an extrajudicial appeal is a formal proceeding subject to conditions and formalities defined by law, while a recourse is a plain and informal act. Hence an extrajudicial appeal goes through the regular order of the higher instances, but a recourse lies directly to Rome. Finally, an extrajudicial appeal may have de volutive and suspensive effect, neither of which belongs ' When reading older Latin canonists a little confusion in this matter of extrajudicial appeals may sometimes arise from the fact that they use the -woxd judex indiscriminately for one in authority, whether he be at the same tixae judge In the strict sense or not. Hence Grandclaude In tit. de officio Judicis Ordinarii, X., very opportunely remarks: Judicis nomen hic latius sumitur, scilicet pro eo omni qui exercet jurisdictionem. Nam judex et jurisdictio, quoad vim nominis, sunt eorrelativa. Hence to avoid mistakes when studying the canons and their commentators on extra judicial appeals, we must discard the Idea that /Ka'fj; frequently calls forth in us. Pierantonelli generally uses the \.exxx\ praelatus Instead oi judex. — Another cause of confusion is the wider and Indiscriminate use of the term appellare and even appellatio by which sometimes not only the older commentators but the sacred canons themselves indicate any recourse, formal or informal, to a higher authority. On appeals consult the Com mentators, 1. 11. tit. 28; Bouix, II. p. 246; Rota, n, 7S7 sqq.; Pierantonelli, tit. V. n. 32 sqq. ; Smith, II. 1207, and especially iitremler, p. 369 ff. Appeal and Recourse. 1 7 7 to a recourse. Devolution in the latter case is merely per accidens' The main difference between a judicial and an extra judicial appeal is in regard to the suspensive effect. By a judicial appeal the jurisdiction and orders of the judge- appellee may often be suspended at once by the mere notice given of the appeal, and any further acts of his be come thereby attentats ; but an extrajudicial appeal has no such suspensive effect before the appellate jurisdic tion has ordered the retrial.' Hence, the decisions and orders of the inferior authority are valid and may be .executed before that time, but not while the case is being renewed. With regard to other conditions and formali ties, they are substantially the same whether the appeal be of the one or the other kind.' 106. When either of the parties in a trial is dissatisfied with the judgment he may appeal to the competent higher court for reversal. But the judge himself who rendered the final sentence, can no longer change or re tract it, except on a plea of nullity (see n. 113). Leaving this aside, the condemned party may claim that the judgment, although formally valid in law, is yet materially unjust or unfair ; that the law itself has been wrongly applied in the case ; that the judgment is not sufificiently ' For these reasons we choose to follow Pierantonelli, tit. 5, n. 33, and to distinguish between recourse and extrajudicial appeal. Recursus as a technical term in Canon law seems of recent origin. It is of the same kind as in the language of older canonists the supplicatio, a complaint or a grievance with the prayer for redress. See n. 112. '¦^ Santi, h. t., n. 3. We suppose, though, that such an effect would follow only upon an inhibition issued, when allowed, by the superior jurisdiction. Canon law and commentators deal extensively with inhibi tions, by which terra is meant an order Issued by the higher jurisdiction upon appeal to stay proceedings of the lower one against the appellant. * For this reason and to avoid repetition we omit the author's chapter on extrajudicial appeals. What is here said on judicial appeals applies equally, mutatis mutandis, to extrajudicial ones. 178 The Practice. supported by the evidence ; that the sentence is too severe and undeserved, etc. Against such grievances he may seek redress by an appeal to a higher instance only, but never, as is evident, by recourse to a court of the same or perhaps even lower jurisdiction. An appeal is granted only twice as a rule, that is, from the episcopal to the metropolitan, and from this to the papal court, but in no case can there be three appeals." The appeal being a benefit of the law is consequently subject to the restrictions imposed by the law upon the right of using it.' Only the highest jurisdiction, the Pope, can declare an appeal inadmissible either in certain causes, or also in a particular case.' But where an appeal is allowed, the aggrieved party may renounce this benefit of the lav/ either expressly by a written or a sworn oral declaration, or tacitly by default. But the cleric con- yicted in case of contumacy cannot avail himself of it in punishment for his contempt of the court.* The appeal ' cc. 39, 65, X., II, 28 ; I Clem., 11. 11. See, however, p. 40, note 2. ^ These restrictions are tersely expressed in the following verse, which Reiffenstuel, h. t., n. 269 sqq , fully explains : Appellare vetant scelus, excellentia, pactum, Arbitrium, fatale, aut si dilatio nulla. Clausula quae removet, res quae notoria constat, Corrige, contemptus, possessio, jus quoque clarum, Post executio, minima, et res longius acta, ^ Cfr, the Roraan answer, 13 July 1886, in Appendix, p, 241, Canonists {Reiffenstuel \i. t., n. 279 sqq.; Schmahgr., h. t., n. 29 sqq.) dispute much on the force of that famous clause : omni appellatione remota, whether it occurs in a papal rescript (c. 53, X., h. t.) or In a general statute. Rota, n. 816, maintains that it does not affect those cases where the right to appeal is expressly stated in law, and that in regard to others it merely does away with the suspensive force of the appeal. Santi, h, t., n. 13, 14, seeras to think that it forbids an appeal altogether, whether suspensive or only devolutive, except in the cases raentioned in the law, and that it only leaves the choice of some extraordinary means of re dress (see infra, 112 ff.), ¦* See Acta S. S., IV. 382, nota. Appeal and Recourse. 1 79 is allowed only against a wrong caused by a judicial or extrajudicial decision or order of the superior, but not a wrong done by the law itself. For, this would be the same as to impeach the law which vvas rightly applied against him, as in itself unjust. The appellant may at most maintain that the law applied in his case is no longer in force, that for some reason or other the present case does not come under this law, or that it falls under another, etc. Although the grievance, the wrong done by the judgment, is somewhat slight, an appeal may be taken against it." Since the Council of Trent an appeal can be taken only from final judgments, or such inter locutory judgments as have the force of final ones, and from such grievances which cannot be remedied by the final sentence, e.g. imprisonment, etc' An appeal is al ways presumed admissible until the contrary is proved No appeal can be taken against a judgment that has ob tained the force of law, i.e. become res judicata. It is easily understood that where an appeal is legally excluded, e.g. by the lapse of the f alalia or because there is no higher instance, judgments obtain immediately the force of law as regards appeals. 107. The effect of an appeal is twofold, as a rule, suspensive and devolutive. A lawful appeal suspends ' Alexander ITI., c. 11, X., II. 28. This, however, supposes that the wrong though slight be yet real, not a mere trifle or notion, but worht the while of such legal proceeding as an appeal is. Otherwise the appeal would be what the law calls a frivolous one, unreasonable, not taken on sufficient grounds nor for good cause {justa, legitima). Such sham ap peals when taken for the purpose of evading the execution of the sen tence, are called frustratoriae ; when the purpose is simply lo vex and incommodate the appellee they are said to proceed ex calumnia. It would be a frivolous undertaking to appeal against the law itself, or against a sentence that is evidently just and fair, or iti notorio. No appellate court is ever justified in accepting frivolous appeals, but ought to strongly repress them. ' C. Trid., S. XXIV. c. 20, de Ref., Bened. XlV. Ad militantis, § 43. 1 80 The Practice. the legal force of an otherwise valid judgment or order, prevents the execution thereof, and hinders the judge from taking any further action in that matter. The de volution by appeal consists in this, that henceforth the superior jurisdiction, the appellate judge, takes cognizance of the case in question and brings it into his forum, first to pass upon the admissibility and legality of the appeal, and if admitted to decide eventually the issue itself, to affirm, modify or annul the judgment of the lower court. The appeal when admissible has always a devolutive, but not always suspensive effect. In general it may be said that appeals against sentences which impose a purely vindictive punishment have suspensive effect, while ap peals in matters of mere correction and administration have only a devolutive effect. This important matter is minutely regulated in the bull Ad militantis of Benedict XIV.,' which is binding and in force to this day {Instr., art. 37). According to that constitution an appeal will have no suspensive effect in the following matters and affairs : 1st. The holy sacrifice of the mass, the sacraments, preaching and Christian doctrine, the care of souls, divine worship and public devotions.' 2d. Refusal, recall, suspension, restriction, and limita tion of the faculty to hear confessions, especially those of regulars and nuns' 3d. Suspension and privation on account of incorrigi bility, and the consequent appointments of substitutes and vicars in spiritualibus ;" censures against concubin age and violation of the privilege of the clergy;" censures ' See Appendix. This famous constitution is truly a codification of all the forraer laws and decisions in matters of appeal. See § 4. ' §§ 6, 7. 8, 18, 19, 31. ' §§ 15, 20, 21. ¦• § 12. We call special attention here to C. PI. B. III., n. 286. ' §§ 25. 26. Appeal and Recourse, 1 8 1 latae et ferendae sententiae generally, if not appealed from on account of nullity;' sequestration and subtraction of revenues in case of those who violate the lavv of resi dence.' 4th. In general the correctio morum of the clergy, secular and regular, especially when made during the canonical visitation ; ' appointment of curates and assistants, or of vicars and substitutes ; * division of parishes, erection of new ones, regulation of boundaries between them ; ad ministration, translation, and union of benefices; restora tion of church buildings, and all financial affairs.' An important consequence of the suspensive effect of an appeal is that all further proceedings by the lower 'jurisdiction in the matter appealed against become so many attentats in law ° when instituted either within the ten days allowed for the appeal, or after the notice given of the appeal, or after an inhibition decreed by the ap pellate superior. A peculiar effect of a judicial appeal is that appellant may recuse as suspect the judge from whom he appealed, if pending the appeal he should be summoned for trial in the same court to answer upon another charge.' But if he obey the summons and is willing to be tried before the same judge, the proceeding is valid, nor can he afterwards appeal on a plea de judice suspecto. Moreover, proceedings on the principal issue must be stopped upon appeal from an interlocutory judg ment given on such an incidental question, which if not ' §§ 23, 36, ' § 14- ' §§ 19- 20, 21, 24, 25, 26, " §§ 9, 10, II, 12. 17. ' §§ 13, 16, 17. 22, 28, 29, 30, 32, 34, 35. " c. 7, in 6°, h. t. Such acts are called attentats {attentata) to indi cate that they are mere attempts devoid of any legal force or effect, and that, moreover, they are unlawful attacks upon the safety and Immunity of the appellant granted by the law. which demands that pending an ap peal nihil innovetur. Cfr. Reiffenstuel, h. t., n. 249 sqq. '.cc. 6, 24, X., h. t., except in case of a manifest crime. 1 82 The Practice. first decided and settled may prejudice the main issue and materially affect the final judgment." 1.08. The proceedings in case of appeal are very simple. The appeal is entered ' with the judge-appellee. If entered at the same sitting of the court when judgment is given, the appeal may be entered by word of mouth or in writ ing, but at any other time it must be in writing. In the first case it is enough to say, " I appeal," or any other words that will clearly and unequivocally express the in tention of recourse to the higher court.' Notice of the appeal so taken must at once be entered on the minutes. But if notice of the appeal be given in writing, appellant must clearly designate himself as such, and in particular give the names of the judges a quo and ad quem, and the judgment, order or decision against which he appeals. Appeals from interlocutory and extrajudicial judgments must be made in writing and moreover state the grounds of the complaint or grievance ; for in this case the judge- appellee himself may at once modify or set aside his former decision,* The appeal must be entered within ten days from the moment when judgment was ofificially intimated to the defendant.' This peremptory term has ever been the ' Rota, n. 8, 14; Santi, h, t. n. 35, ^ To enter an appeal means to give notice to the judge (or to the bishop in extrajudicial appeals) that the matter at issue on which judgment or some ordinance had been given by him, is to be removed to a higher jurisdiction for reversal. Hence, it is always entered with the judge- appellee. Notice of such an appeal already entered must then be given to the higher court by the lower one in the so-called apostoli. Only after the higher court has become satisfied that the appeal is lawfully taken in matter as well as in form, may appellant /wj^ca^e the appeal, that is, in stitute, as plaintiff now and no longer defendant, judicial proceedings before the appellate court. " cc. 34, 52, X., h. t. * c. 59, X„ II, 28. ° Instr., art. 38. This is the first term in appellate proceedings. The next is a term of thirty days to demand the dimissory letters. The third Appeal and Recourse. 1 83 same since Justinian till the present day and is the gen eral rule of Canon law.' Attempts have always been made to take appeals after that legal term had expired, but numberless decisions prove that the S. Congregations have uniformly refused to entertain them. The law al lows exceptions only where it was impossible for de fendant to enter the appeal within the term fixed, whether the obstacles were of a physical or a moral nature, e.g. error,' fear,' etc.* If the inferior judge do not accept the appeal or seek to prevent it by threats or other means, the appellant may lodge the appeal with the higher court upon afifi davit by witnesses that he tried, though without success, to enter the appeal in the lower instance ; or if appellant start within ten days on a journey to the appellate judge, it will be equivalent to an appeal.' The judge with whom the appeal is entered must, in quire only as to certain formalities, whether it be admis sible in law, whether it was lodged within the ten days, and in writing and with the required data, viz. the names of appellant, appellee, appellate judge, and the judgment appealed from. But he has no authority to examine and decide the matter itself, or vvhether his judgment be actu ally based on some error of fact or law, whether appellant may obtain a reversal or not.' In fact he must refrain from exercising any further jurisdiction in the case until is the time appointed when appellant must open the case {intraducere (tppellaticnem) in the appellate court. The last term is the tirae when the trial must be ended, that is, one year as a rule, or two at most. These terms were fixed by the law In order to prevent interminable trials, and to secure justice against fraudulent delays. For this reason they are per emptory. The last moment of any one of these terms, if wilfully neglected, puts an end to the appeal once for all, it is absolutely fata). Hence, they are called in \a.w fatalia appellationum. Reiffenstuel, h. t., n. 152 sqq. " /("ote, n. 805. ¦¦'c. 69, X., h. t. »c. 73. X., h. t. ^ Rota, n. 806. * c. 52, X., li, L * 21 Mch. 1854. AJP., XX. 158. 184 The Practice. settled. If, however, the appeal is merely interlocutory,' the judge may proceed in the matter after having modi fied or reversed the order to the satisfaction of the appellant.' 109*. Canon law formerly fixed a term of thirty days from the time appellant was notified of the judgment or decision, within which he had to ask for the apostles.' Until a certain day appointed by the lower court he had to present these apostles to the appellate judge. One year was given him to prosecute the appeal and have the cause decided.* But the new Instruction, as Rota, n. 851, truly says, differs not a little from the former custom. According to art. 39, appellant need not demand the apostles, but after the appeal is entered the court will at once send all the original {autographd) acts,' i.e. the procfes-verbal, the auditor's summary, the written defence ' And also if extrajudicial. * c. 60, X., II. 28. * Apostoli {libelli dimissorii) are letters to the appellate court by which the judge with whom an appeal is lodged certifies that the appeal was made in proper time and legal form. They may be simply dimissory let ters by which the judge dismisses the whole cause to the appellate court, because he considers the appeal well taken. Or they may be reverential, stating that he sends the case up on account of his deference and respect towards the higher authority, but not because of the admissibility or any solid ground of the appeal. Finally, these letters may be refutatory, by which he simply attests the appeal entered, but atthe same time protests, for reasons assigned, against Its being entertained by the higher court. Cfr. Reiffenstuel, h. t., n. 124 sqq. — Article 39 of the Instruetio does not prevent the bishop In case of appeal from sending letters of the one or other kind, or any other comments and explanations, along wilh the acts. Cfr. C. Ttid., S. xxiv. c. 20, de Ref. ^ These and otherrules of the general law are fully explained hy Droste, but we omit this part as rendered impracticable by the Instr. ^ Formerly, as Droste observes, a copy or transcript of the original acts was given under seal to the appellant, who would then himself send it to the higher court. Bya lawof Clement VIIL, a.i6oo, the originals were to be sent only if a plea was made during the appellate trial that the transcript had be^n forged and could not be relied upon. Appeal and Recourse. 1 85 (also, we think, the prosecutor's final charge), and the sen tence to the appellate judge, who must without delaying too long take proper cognizance of the appeal (art, 40). He must then inquire whether the appeal is admissible in law and made in proper time and form. If satisfied of its full legality he will notify the appellant through the lower court' that within twenty days' from this notifica tion he must appoint an attorney for his defence, to be approved, however, by thc appellate court. This term is peremptory (art. 41); hence, if allowed by appellant to lapse without having complied with the order, he will be considered as having renounced the appeal. A decree of the appellate court to this effect will moreover lay the costs on him. The appeal then goes by default, and the judgment of the first court becomes res judicata. But if he prosecute the appeal in proper timej the appellate court will fix the time for the opening of the case. IIO. The judicial trial or procedure in the appellate court is the same as that in the first court {Instr., art. 42). We may remark, moreover, that the whole cause or issue, the same as tried in the first instance, goes up and may be tried again in regard to law as well as fact. Appellant must, therefore, present to the court in writing the reasons and grounds of his appeal together with the evidence to sup port them.' They must also be communicated to the appellee, vvho may on his part look for and produce counter-evidence. If the facts as found in the first trial are not denied by the appellant, a review or new trial is not necessary, and judgment may be based upon the former acts.* But if appellant demands a new finding " Rota, n. 851. ^ Cum Magnopere, art. 39, gives thirty days. » c. 3, in 6°, h. t. ; c. 70, X., h. t. * That is, matters of law raerely will be exarained, as in Common law, upon a writ of error. 1 86 The Practice. of facts and further testimony, it should ordinarily be granted. The appellate judge may in that case appoint an auditor to institute new proceedings. If the judg ment of the first instance be declared void on account of essential defects in the procedure, the case must be sent back for a new trial. Otherwise tha former judgment is either affirmed or reversed. III. With regard to the absolution from censure in case of appeal made against them, clear and definite rules were laid down by Popes Clement VIII. and Benedict XIII.' If the appellate judge find the censures clearly unjust, he will himself absolve the appellant. If the censure is just and deserved, appellant must be sent back in order that, having given signs of amendment, he may humbly ask absolution from the bishop who inflicted the censure. When, however, the justice of the censure is doubtful, then it is more appropriate {honestius) that the appellate judge request the bishop to grant absolution within a definite, short time, though he may also himself absolve the appellant. Should he order the absolution with the clause cum reincidentia (the effect of which is that the person thus absolved will in case of disobedience to the court immediately reincur the censure), the appellant must address himself to his bishop with that order and pray for the absolution. If he is not absolved within three days, as stated in the writ or commission, any ap proved confessor may absolve him juxta commissionis formam. Each case brought before the appellate court should be finally decided in one year if possible; at least they should never drag on over tvvo years.' ' In Collect. Lac, vol, i. pp. 427 ff., 529 ff. '' 23 Jan. 1880. Acta S.S., XII. 635. On appellate procedure before the S. C. Epp. at Rome, see the decrees in Appendix, p. 235 ff. Extraordinary Means of Redress, 187 CHAPTER IV. EXTRAORDINARY MEANS OF REDRESS. 112. The object of criminal procedure is to serve truth and justice. In the search for truth, however, man often errs, especially where prejudice and passion reign. To restrain these as much as possible and to do all that man can to come at least near the truth, there are legal rules and norms and forms of judicial procedure, the prosecu tion and the defence, the examination of witnesses, the legitimation of the process, offensive and defensive plead ing, and, lastly, the appeal. Neglect of material forms will entail nuUity of proceedings. Yet after the canonical trial has wound its way through all these .stages and even passed the highest instance, still some one error may be left undiscovered ; judgment may yet be false and the punish ment imposed unjust. For this reason it has well been said that no criminal sentence ever becomes irrevocably law {res judicata). For no punishment must be inflicted for crime erroneously presumed, or which is not fully deserved. Hence, when we speak of the absolute validity of a criminal sentence, we only mean that it can no longer be set aside by the ordinary means of the law and that consequently it must be executed. What, then, are those other means by which a judgment that has full and abso lute force in law, can be reversed or its execution stayed ? The first of these extraordinary legal remedies is the recourse,' a written petition to the highest authority, the Pope, praying him to order in virtue of his supreme power a rehearing of the cause already decided but now ' See supra, n. 105, 1 88 The Practice. unappealable. The petition was formerly called suppli catio, and the retrial or review of the case retractatio ; both are often used indiscriminately. Modern jurists prefer the term revisio.' A revision of a finally adjudi cated issue can be granted by the Pope alone, who will do so only for the gravest reasons which are first to be examined in a plenary session of the S. Congregation." A revision of decisions given by the Pope or a general Council will not be granted. Neither the recourse nor the consequent review have any suspensive effect. The first judgment may be exe cuted ; it may be suspended if within ten days notice of the recourse is given to the judge who tried the case. Revision will be granted only once in the same cause.' 113. From the recourse we must distinguish the querela nullitatis,' the complaint of nullity, by which complainant avers that the decision of the bishop, judi cial or extrajudicial, is simply null and void,' This com plaint can be lodged with the first court, who may, after examining the objections and finding them true, make a declaration to that effect and put things back in statu quo. Or it may at once be taken to the higher court," ' Reiffenstuel, 1, II. tit. 28, n. 18 sqq. ^ Cix. the decree S, C. Epp. 1835, art. 14, in Appendix. ' Although our modern recursus in Canon law is really the same ag Justinian's supplicatio, yet it does not necessarily lead to a retractatio in the Strict sense. Rome may take up the raatter there, as in case of an appeal, to give it a regular trial or only to review the questions of law implied; she may appoint a referee, residing in Rome or at the place cf petitioner, to report on the case; she may provide in any other way that she thinks best Under the circumstances. Like our recourse, the suppli catio was an absolutely informal and extrajudicial proceeding. '^Reiffenstuel, 1. It. tit. 28, n. 23 sqq.; tit. 27, n, I35 sqq, ' Null and void is every sententia contra leges canonesve prolata (Gloss). Judgment may be void on account? of incompetency, or because of ir regular proceedings, or through a substantial error. See Rota, n. 854, * Thia is the prevailing practice. Extraordinary Means of Redress. i8g whose decision will be always conclusive. No special legal forms need be observed in making the complaint, nor is it limited to any certain time," It also has a sus pensive effect.' If the complaint of nullity is sustained, the case will be tried again in the first court.' In a wide sense we may class with the complaint of nullity a proceeding exclusively observed in civil mat ters and known in Canon and Civil law as restitutio in integrum^ that is, reinstatement or complete return of things to their former state. A complaint of nullity in disciplinary and criminal cases may have a similar ef fect. For instance, where judgment in contumacy was rendered against a person being on a distant journey and therefore legally excused because unable to appear; also when of two witnesses who were considered com petent and by whose testimony defendant was convicted, one or both are afterwards proved to have sworn falsely ; or vvhen the document on whose evidence judgment was based, turns out to be a forgery ; again, when the judge has warped and misused the law; when the defender has betrayed his client ; when the person convicted produces new and full evidence of his innocence, — in "such cases judgment must be reversed as null and the condemned ' The judgment being assumed to be null can never obtain force of law; for, says the Gloss, "nothing has no qualities." Cfr, Acta S. S., XVII. 156, 582. '^ Not exactly. Canonists ini. 11. (Reiffenstuel, tit. 28, n. 26; Schmahgr., tit. 27, n. 109; Rota, n. 854) commonly teach that the plea of nullity has no suspensive force and consequently will not stay the execution of the judgment, except In case of such a criminal sentence that once executed could not be remedied even if afterwards proved to have been void. ¦" Not necessarily. An examination of the grounds on which the com plaint of nullity is raised may show that there is no cause at all or no sufficient one to institute a trial, and that things should rather be left as they were before the first proceeding; which might In a sense be called a reinstatement. ¦* See Commentators in 1. i. tit. 41. 1 90 The Practice. party reinstated." Cases of the kind are so various that it is impossible fully to enumerate and classify them. Finally, we may observe that complaints may be made against the judge for denying some right, delaying the proceedings and similar causes ; against the oflficers of the court for chicanery, etc. Such complaints will ordi narily be addressed to the immediate superiors of those whom they concern. 114. In connection with our subject we must neces sarily mention the abolition^ by which we understand here the withdrawal or dismissal of a criminal cause on the part of the proper authority. This may be done in three ways : before the formal charge, during the trial, and after the sentence. The Ordinary has always the right to make informal inquiries at any time either in person or through others, cleric or laic. Not to speak of his rights and duties as pastor of the flock, such private inquiries every person, the bishop too, can make ; for every one may inform himself of what another is doing, though that other one happen to be an ecclesiastic. Yet we do not assert that such inquiries can never be wrong or sinful. Thus when ' Acta S. S., VIII. 614. "^ Abolition is a term of .Civil, not of Canon law. It comes- nearest to what in Common law is called " to quash the proceeding." Sometimes its effect is the same as that of an "arrest of judgment," or of a " nolle prosequi;" and when referring to the execution of a sentence it acts like a " pardon." As a kind of abolition we may also take what is called in Civil and Canon law "a transaction," or " a compromise'' in Comraon law. Transaction In the strict sense is "an agreement made for con sideration {conventio non gratuita) by which parties settle a dispute or a judicial suit between them." In the latter case it had to be made before judgment became conclusive or absolutely final. Commentators in 1. 1. tit. 36, de transact., inquire whether Canon law allow such a compromise in a criminal trial (cfr. compounding a criminal offence), and answer by denying it, except the crime be punishable by what Canon law considers equivalent to a capital sentence; e.g. excommunication, degradation, perpetual infamy, etc. Extraordinary Means of Redress. 191 oflficial persons make such inquiries (especially vvhen they have come a great distance for the purpose) it very easily causes excitement and suspicion among the people by which the reputation of the priest may be injured. Against such an inquiry, imprudent and indiscreet and only giving rise to scandal, every priest would rightly complain to higher authority. Private and extrajudicial inquiries the bishop has a right, whatever his reasons be, to stop at any stage and without bringing a charge even where that could be done. This as far as the priest is concerned. But whether as bishop and pastor animarum he act wisely in thus arrest ing further inquiry and possibly a criminal charge, is an other question. It might even be a case where the rest of the clergy, the congregation, or a private person has a right to demand that disciplinary or criminal proceedings be instituted, and where, if refused, they are bound to lodge a complaint against the bishop with the higher ecclesiastical authority. Criminal proceedings once begun must be carried to the end, to acquit or to condemn. The bishop having opened those proceedings certainly not because defendant ap peared innocent, but because there were some grounds to suspect him guilty, is in justice bound to carry the mat ter through ; for, the accused if innocent, as he may be, has now a right to a public judgment in his favor. Be sides, crimes and criminal procedure are in the Church as in the State objects of the public law. Hence the bishop has no right to stop criminal proceedings begun for cause, even if the accused did consent, except where higher in terests demand it. By the accusation the honor and good name of the ecclesiastic, which is to him as neces sary for efificient labor as his life, is attacked. But as life is not at his own disposal, neither is his honor nor his reputation. Higher interests may be involved. If, e.g., 192 The Practice. the State or people threaten to interfere ; or if the bishop himself would be drawn into difificulties and possibly lose the high respect due to his ofifice and authority, — such consequences would be far more .injurious to the faithful of the diocese than if the reputation of the pastor of some small district were to suffer by leaving his cause untried. In such cases judicial proceedings may be quashed, especially as any injury may be to some extent or even fully repaired by transferring the accused to another place. An unlimited right to arrest criminal proceedings at any stage, even contrary to defendant's wishes, belongs exclusively to the Pope as supreme legislator and judge. This right he has often used for the good of the Church. With regard to the punishment imposed by judicial sentence, the bishop has no power to remit it, for this would be equivalent to a reversal ; ' but no court can re verse its own final sentence ; nor can the bishop do it, even when the matter is not yet definitely adjudicated.' Still the bishop has the power to commute one discipli nary punishment with another,' for its purpose is simply ' Not at all. The sentence raay remain on record without being re versed. But for cause the punishment may be remitted. In giving sentence the bishop would act as judge, in remitting the punishment as legislator. It would simply be a pardon. The question, therefore, is this- can the bishop pardon a cleric legally sentenced ? We distinguish: if the offence was committed against the bishop's own laws or diocesan statutes, he certainly can; if the offence was against a general law of the Church, he cannot do it. Pardon in this case is reserved to the Pope. Bizzari, p. i8l, cites the following decree, 8 Jan. 1858: " SSmus decla- ravlt dispensationem a poenis inflictis per sententias latas a tribunalibus criminalibus curiarum episcopalium reservatam esse Summo Pontlfici; et idcirco episcopos ab hujusmodi dispensationlbus concedendls absti nere debere." There is no conflict between this decree and the opinion just expressed. « S. C. Epp., 8 Jan. 1858. AJP., xni. 53. ' 26 June 1854. AJP.. XX. 159. Execution and Costs. 193 to correct. When delinquent is thoroughly reformed, the object of the punishment is attained. Such punish ment is sometimes imposed for an indefinite period ; its remission is therefore shown by the very sentence to be conditional upon the amendment and good conduct of the delinquent. The Pope alone, as sovereign and head of the Church, has the full right to pardon or to stay the execution of any sentence.' CHAPTER V. EXECUTION AND COSTS. 115. A criminal sentence should not be executed' until it has obtained full force in law. The execution will be different according to the nature of the punishment im posed. Censures begin to operate or exert their force at the same time as the sentence by which they are imposed ; censures latae sententiae and those threatened by the judge are ipso facto incurred at the moment of the culpable act or omission. But in order that they may obtain their effect also in the external forum, it requires an ofificial declaration that they have been incurred. By this the punishment is also executed in foro externo. Some vin dictive punishments are executed in the same way, i.e. '28 June 1854. AJP., XX. 159. The AJP., xi. 604 ff., give an interest ing case of an abolition by Benedict XIIL, a. 1724, in the criminal trial of Bishop Andrea de Robertis. " On the execution of judgments see Commentators in 1. 11, tit, 27; Bouix, II, 237, On canonical punishments see Commentators in 1. v. tit, 37 sqq. Some good remarks on the subject see ap. Rota, u. 751 sqq. 194 The Practice. simultaneously when sentence is pronounced. The sen tence depriving one of Christian burial is put in execu tion by simply omitting such burial. Suspension, trans fer, or removal from an oflfice {privatio beneficii) leaving one eligible for another, deposition involving the loss of the rights of the priesthood as well as the jurisdiction but leaving the benefit of the clergy, are actually effected by the sentence, and non-submission is a new or rather continued offence whereby other punishments, e.g. irreg ularity, are sometimes incurred. All defamatory punish ments bring irregularity with them. Degradation, i.e, the real degradation in solemn form, can be executed by the bishop only, who must associate with himself other bishops and abbots." n6. It is a generally accepted principle that costs fall upon him who has caused them, that is to say, in case of conviction on the person condemned,' and in acquittal on the diocesan fisc, i.e. the bishop. The costs of the pre vious inquest fall likewise on the fisc if no trial followed. Who shall pay the costs is generally stated in the sen tence ; nor are costs due before the sentence has become law {res judicata)." Till then each party pays his own ' C. Trid., S. XIII, c. 4, de Ref. We omit Droste's remarks on banish ment, prison, and corporal chastisement; also what he says of the ali ments and pension to be given to a priest who has by the sentence been deprived of his benefice and his income. The matter has not yet been settled by a general law in this country. Cfr., however, C. PI. B. III., n. 72, and the answer of the S. C. de Prop. Fide, 4 Febr. 1873 ad I" {ibid. p. 210). By what means and in what manner bishops may be able to effect the execution of their sentences even where the secular arm is not at their disposal, is stated by Bouix, II, 244; Rota, n. 760. On pecuniary punishments and fines cfr. Lucidi, 1., c, 2, n, 206 ff. '' c. 5, X., II. 14; c. 7, X., V. 37. This principle covers the rule that whoever Is condemned in contumacy must bear the costs. Reiffenstuel, h. t., n. 200. — Commentator generally treat of the costs in 1. II. tit. 27, de sententia. See also Bouix, 11. 242; Pierantonelli, tit. V, n. 31; Smith, II. u. 1201. " II June 1833; 5 Sept. 1835. AJP., XX, 465, 468. Execution and Costs. 195 costs.' The accused pays the witnesses for the defence and his counsel's fees, while the fisc pays witnesses for the prosecution and other current expenses of the procedure proper. "The oflficers of the court must await the issue before receiving fees. If defendant is acquitted he can recover the amount of his salary that was, perhaps, stopped during the trial ; ' in general he may recover for any damages.' The accused ecclesiastic has the right of defence if prosecuted, but if too poor to pay himself, his counsel's fees must be paid by the fisc, whether counsel was appointed ex officio or chosen by defendant. The same holds in case of a poor appellant or appellee.* Beside these regular costs there are others ' vvhich must be borne without recovery by the party that occasioned them. They are those which are caused by chicanery or carelessness ; e.g. whert the accused unnecessarily delays or hinders the proceedings ; when at his request unnecessary and irrelevant witnesses are called ; or when he employs more counsel than he needs, etc. For copies of the acts defendant will have to pay himself, because he as vvell as his counsel may inspect the originals in the chancery.' The costs of an appeal lost are borne by the appellant ; if both parties appealed, costs ought to be divided in pro portion. Poor ecclesiastics appeal free of costs.' Where a criminal conviction leads to a removal in punishment, the ecclesiastic so removed cannot be condemned for costs.' ' With the right to recover if acquitted or successful. » 13 June 1826. AJP., xin. 53. ' 8 Mch, 1748. AJP., XI. 1124. * 15 June 1854. AJP., XX. 160. ' Canonists usually distinguish between necessary {legitimae, judiciales) and optional {voluntariae, delicatae) expenses. The former comprise expenses entailed in the procedure as such, e. g. the auditor's, prosecutor's, clerk's, messenger's fees, indemnity of witnesses for travel, board, and loss of wages, fees for certified copies of documents, etc. ' I Sept. 1778, AJP,, XX. 76. ' Aug. 1721. AJP., xi. 512, ' April 1718. AJP., XI. 492, 156, We suspect that this decree refers 196 The Practice. Sometimes those who accuse or denounce others, to have them criminally prosecuted, may be forced to give security first, and in case the accused be acquitted, to pay costs.' The fees, fines, and other costs are not the same in all courts, especially in the lower ones. The old customary rates are still used.' If the bishop wishes to establish a new rate, which may be quite necessary on account of the general decrease of value in money, he ought as a rule to do it in synod, as Benedict XIII. decreed in 1725.' The rate thus established must then be approved in the pro vincial council, and lastly by Rome. For good reasons the bishop may submit the new rate to Rome at once.* In the Roman Congregations the judges draw no fees. The cost of appeal there consists mainly in expenses for postage, printing, and commissions, and in attorney's fees." 117*. We do not know whether a regular rate of the necessary judicial fees and costs (also for the defensor matrimonii) has been fixed in any diocese or province of our States since the last plenary Council. Although this canonical " tariff-question" does not demand immediate legislation, it may deserve attention by and by. Such a court tariff, vve suppose, would come under decree 294 C. PI. B. III. While the L Ordinario is absolutely silent on the ques tion of costs, the Cum Magnopere, art. 44, reminds ap pellate courts not too easily to condemn the lower curia to some particular case and does not warrant the general statement by the author. ' March 1722. AJP., XI. 592. 13 Sept. 1817, AJP., XX, 453. '•' 15 Jan. 1740. AJP., XI. 1085, * Pius VIL, by an order of May ist, 1823, instituted a comraittee of three cardinals to revise the former tariff of judicial fees and taxes in accordance with the conditions of that time, AJP., XII. 999, 831. * AJP., XI. 412. ' AJP., I. 2423. Execution and Costs. 197 in costs, as no bishop is supposed to begin judicial pro ceedings except the preliminary inquest have furnished good reasons for doing so. Only if the bishop should put a cleric on a criminal trial ex vera et propria calumnia, i.e. rashly or upon a mere suspicion, could he be condemned for costs.' ' See Commentators in I. v. tit. 2, de calumniatoribus. Calumniatn et audaciam temere litigantium condemnando in expetisis, etc. c. 4, X., v. 37. Such rash procedure is called calumnia because it is a false accusation rashly and therefore maliciously made. Some interesting questions concerning costs in case of male judicantis or temere litigantis are found in Schmalzgruber, h. t., n. no sqq. APPENDIX. INSTRUCTIO 1880. Instruction For Ecclesiastical Tribunals on the Forms of Summary Pro cedure in Disciplinary and Criminal Causes of Clerics. This Sacred Congregation of Bishops and Regulars, after maturely considering the present condition of the I^fuzione Alle Curie Ecclesiastiche suite forme di procedimento econo- niico neile cause disciplinari e crimiiiali dei Chierici. Questa S. Congregazione dei VV. e RR. maturamente considerando la presente condizione della Chiesa, quasi da per tutto impedila Chuich, which is impeded di spiegare I'esterna sua on every hand from bring- azione sulle materie e per- ing her external action to sone ecclesiastiche, e riflet- bear on persons and things tendo anclie al difetto dei ecclesiastical, and taking mezzi atti all'organizza- also into account tlie lack of mento regolare delle Curie, proper facilities to organize e venuta nella determina- regular ecclesiastical courts, zione di autorizzare espres- has come to the conclusion samente gli Ordinarii a far expressly to autliorize bish- uso delle forme piu econo- ops to pioceed in a some- miche nell' esercizio della loro disciplinare giurisdizi- one sui Cliierici. Et affinche resti salva ogni ragione della giustizia, e si mantenga la canonica regolarit^ ed uni formity dei procedimenti, re- what summary manner in the exercise of their discipli nary jurisdiction on clerics subject to their jurisdiction. But in order that substantial justice may be secured and canonical regularity and APPENDIX. INSTRUCTIO 1880. Instruetio Pro Ecclesiasticis Curiis quoad modum procedendi oeconomice in causis disciplinaribus et criminalibus clericorum. Sacra haec EE. et RR. Congregatio, mature prae- senti Ecclesiae conditione perpensa, quae pene ubique impeditur, quominus exter- nam explicet suam actionem super materias et personas ecclesiasticas, et considerate quoque defectu mediorum aptorum pro regulari curia- rum ordinatione constituit facultatem Ordinariis loco rum expresse concedere, ut formas magis oeconomicas adhibere valeant in exer citio suae disciplinaris iuris- dictionis super clericis. Ut autem tota iustitiae ratio sarta tectaque maneat, ser- veturque processuum canon- Instructio S. C. de Prop, Fide. De modo servando in cogno sce ndis et definiendis causis criminalibus et disciplinari bus Clericorum in Foederatis Statibus Americae Septentri- onalis. CUIH MAGNOPERE hujus S. Consilii intersit in ecclesiasticis judiciis eam me- thodum servari quae et tempo- rutn circumstantiis opportune respondeat, et regulari justitiae administrationi nec non Prae- latorum auctoritati tuendae qu'erelisque reorum praecaven- dis par omnino sit, placuit iterum ad exainen revocari ea omnia quae in hac re pro eccle siis Foederatoritm Americae Septentrionalis Statuum in In- structione diei ,26 fulii anni 1878, nec non in responsione ad dubia circa eamdem pos terius proposita continebantur, Itaque S. C. omnibus mature perpensis, SSmo. D. N. Leone 200 Appendix. puta opportuno di emanare le seguenti norme a cui le Curie devono attenersi. 1. L'ORDINARIO ha I'obbligo pastorale di curare la disciplina e correzione dei Chierici da se dipendenti, vigilando sulla loro con dotta, ed usando i rimedi canonici per antivenire, ed eliminare disordini fra i medesimi. II. Questi rimedi altri sono preventivi ed altri repressivi e medicinali. I primi sono diretti ad impedire che il male avvenga, a rimuovere gl'incentivi di scandalo, le occasioni volontarie, e le cause prossime a delinquere, I secondi hanno per iscopo richiamare i colpevoli a buon senno, e riparare le conse- guenze del loro reato. III. Sta alia coscienziosa discrezione deH'Ordinario I'applicar questi rimedi a tenore delle prescrizioni canoniche secondo la graviti dei casi e delle circostanze. IV. Tra le misure preser vative si annoverano princi- uniformity maintained in all trials, it is at the same time deemed opportune to pub lish the following method of procedure as obligatory on all ecclesiastical courts. I. It belongs to the pas toral duty of the Ordinary to look after the discipline and correction of his clergy, to watch over their conduct and by canonical means to endeavor to prevent or eliminate abuses among them, II. Of these means some a.Yt preventive, some repressive and corrective. The form er are intended to prevent the occurrence of evils, to forestall scandal, remove voluntary occasions and all proximate cause of delin quency. The latter are in tended to bring back the erring to a sense of duty and to repair the evil effects of their misdeeds. III. It is left to the con scientious discretion of the Ordinary to apply these remedies conformably with canonical rules according to the gravity of the cases and their circumstances. IV. Among the preserva tive measures are chiefly Appendix. 20I ica regularitas et uniform- itas, opportunum censuit sequentes emanare normas a curiis servandas. I. Ordinario pastorale onus incumbit disciplinam correctionemque clericorum a se dependentium curandi super eorumdem vitae ra tionem vigilando, remediis- que utendo canonicis ad praecavendas apud eosdem et eliminandas ordinis per- turbationes. II. Ex his remediis alia praeveniunt, alia reprimunt et medelam afferunt. Priora ad hoc diriguntur, ut im- pediant, quominus malum adveniat, utscandali stimuli, occasiones voluntariae, cau- saeque ad delinquendum proximae removeantur. Al tera finem habent revocandi delinquentes, ut sapiant re- parentque admissi criminis consequentias. III. Conscientiae et pru- dentiae Ordinarii horum remediorum iucumbit appli- catio iuxta canonum prae- scriptiones et casuum ad- iunctorumque gravitatem. IV. Mediis, quae praeser- PP. XIII. approbante, haec quae sequuntur observanda decrevit, praecedenti Instruc- tione ac successiva declaratione abrogata, iis exceptis quae in hac continentur. I. Ordinarius pro suo pas- torali munere. tenetur dis ciplinam correptionemque clericorum ita diligenter cu rare, ut circa eorum mores assidue vigilet, ac remedia a caiionibus statuta sive praecavendis sive tollendis abusibus in clerum ali quando irrepentibus provide adhibeat. .II. Haec vero remedia alia praeventiva sunt, alia repres- siva. Ilia quidem ad prae- pedienda mala, scandalorum stimulos amovendos, volun- tarias occasiones et causas ad delinquendum proximas vitandas ordinantur. Haec vero eum in finem constituta sunt, ut delinquentes ad bo nam frugem revocentur, ac culparum consectaria e me dio tollantur. Ill, Conscientiae Ordinarii remittitur cujusque remedii applicatio canonicis prae- scriptionibus servatis pro casuum ac circumstantiarum gravitate. IV. Praeventiva remedia 202 Appendix. palmente il ritiro spirituale, le ammonizioni, e i precetti. V. A tali provvedimenti deve precedere una verifica- zione sommaria del fatto; della quale e d'uopo che rOrdinario tenga nota per poter procedere, se occorra, ad ulteriora, ed anche per darne conto all'Autorita superiore in caso di legit- timo ricorso. VI, Le canoniche ammoni zioni si applicano o in forma paterna e segreta (anclie per lettera o per interposta per sona), ovvero in forma legale, facendone peto sempre ri- sultare da qualche atto la eseciizione. VII. Riuscendo le ammoni zioni infruttuose, I'Ordinario prescrive alla Curia che sia ingiunto al delinquente ana- logo precetto, spiegando in esso quello che il precettato debba fare o non fare, colla comminatoria della corri- spondente pena ecclesias tica, nella quale incorrerjl in caso di contravvenzione. VIII. II precetto viene inti- mato al prevenuto dal Can- celliere innanzi il Vicario generale; oppure alia pre- to be reckoned the spiritual retreat, admonitions and in junctions, V, These measures should be preceded by a summary cognizance of the case; and of this the Ordinary shall re tain a proper minute, so as to be able to proceed ad ulteriora if needs be, and to furnish proper information to superior authority in case of legitimate recourse. VI, Tlie canonical admoni tions may be made in a paternal and private manner (even by letter or by an in termediary person), or in legal form, but always in such a way that proof of their having been made shall remain on record, VII. Finding admonitions fruitless, the Ordinary com mands the officials of his court to enjoin a similar pre cept on the delinquent, specifying what he is to do or not to do, and stating the corresponding, ecclesiastical penalties which he will incur by disobedience. VIII. These injunctions are communicated to the ac cused by the chancellor in presence of the - vicar-gen- Appendix. 203 vant, praecipue accensentur spiritualia exercitia, moni- tiones et praecepta. V. Has provisiones prae- cedere debet summaria facti cognitio, quae ab ordinario notanda est, ut ad ulteriora procedere, quatenus opus sit, et certiorem reddere queat superiorem auctori- tatem in casu legitimi re cursus. VI. Canonicae moniticnes fiunt sive in forma paterna et secreta (etiam per epis- tolam aut per interpositam personam) sive in forma legali, ita tamen ut de earumdem executione con- stet ex aliquo actu. VII. Quatenus infructuo- sae monitiones evadant, Or dinarius praecipit curiae, ut delinquenti analogum iniun- gatur praeceptum, in quo declaretur,quid eidem agen dum aut omittendum sit, cum respondentis poenae ecclesiasticae comminatione, quam incurret in casu trans- gressionis. VIII Praeceptum intima- tur praevento a cancellario coram vicario generali; sive sunt praecipue spiritualia exercitia, monitiones, prae cepta. V. Antequam vero ea ad hibeantur, summaria fac- torum recognitio praecedat oportet: cujus notitiam Or dinarius servari curet ut, si opus sit, ad ulteriora proce dere possit, et ut auctori tati ecclesiasticae superioris gradus in casu legitimi re cursus totius rei rationem reddat. VI. Canonicae monitiones vel secreto fiunt (etiam per epistolam vel per interposi tam personam) ad modum paternae correptionis, vel servata forma legali adhi- bentur, ita tamen ut illarum executio ex aliquo actu pa teat. VII. Quod si monitiones in irritum cedant, Ordinarius jubet, per curiam delin quenti analogum praecep tum intimari ita, ut in hoc explicetur quid ipse vel fa cere vel vitare debeat, addita respectivae poenae ecclesia sticae comminatione quam si praeceptum transgredia- tur, incurret. VIII. Praeceptum delin quenti a curiae cancellario coram vicario generali injun- 204 Appendix. senza di due testimoni ec clesiasticl, o laici di provata probitd. § I. L'atto si firma dalle parti che sono presenti, ed anche dal precettato, se vuole. § 2, II Vicario generale pud imporre ai testimoni il giuramento di conservare il segreto, se la natura del ti- tolo, di cui trattasi, pru- dentemente lo richieda. IX. In quanto poi alle misure penali, avvertano i reverendissimi Ordinari, che con la presente istruzione non s'intendono derogate le solennitd dei giudizi volute dai sacri Canoni, Costituzi- oni Apostoliche ed altre ecclesiastiche disposizioni, ove queste possano libera- mente ed efficacemente ap- plicarsi; ma le forme econo- miche mirano a provvedere per quei casi e per quelle Curie, in cui non si possa o non si creda espediente at- tuare i solenni procedimenti. Rimane pure nel suo pieno vigore il rimedio stragiudi- ziale ex informata conscientia pei reati occulti, decretato dal s, Concilio di Trento nel cap. r. sess. 14. de Reform. eral; or in presence of two witnesses, ecclesiastics or laymen of approved integ rity. § I. The act will be signed by those present and by the accused likewise, if he will. § 2. The vicar-general can bind the witnesses under oath to observe secrecy if the nature of the case be such as to require it in prudence. IX, As to the penal meas ures the Rt. Rev. Ordinaries will observe that it is not in tended by this Instruction to derogate from the solemnity of judicial proceedings as required by the sacred canons, apostolical constitu tions, and other ecclesiasti cal regulations, whenever that can be freely and fully carried out; this summary form is only granted to pro vide for those cases and those courts in which it would be either impossible or inexpedient to have re course to the more solemn proceedings. In its full vigor then will remain the extrajudicial remedy ex in formata conscientia for occult crimes, as decreed by the Appendix, 205 coram duobus testibus eccle siasticis aut laicis probatae integritatis, § I. Actus subsignatur a partibus praesentibus et a praevento quoque, si ve lit, § 2. Vicarius generalis adiicere valet luramentum servandi secretum, quatenus id prudenter expetat tituli indoles, de quo agitur. IX. Quoad poenalia media, animadvertant reverendis simi Ordinarii, praesenti in- structione haud derogatum esse iudiciorum solemnitati bus per sacros canones, per apostolicas constitutiones et alias ecclesiasticas disposi- tiones imperatis, quatenus eaedem libere efficaciterque applicari queant; sedoecono- micae formae consulere in- tendunt illis casibus curiis- que, in quibus solemnes pro- cessus, aut adhiberi neque- ant, aut non expedire vide antur. Plenam quoque vim servat suam extraiudiciale remedium ex informata con scientia pro criminibus oc cultis, quod decrevit s, Tridentina Synodus in Sess. 14 cap. I de Reform,, adhi- bendum cum illis regulis et gitur, aut etiam coram duo bus testibus ecclesiasticis vel laicis spectatae probi tatis. 1°. Actus injunctionis praecepti signatur a parti bus praesentibus, et a delin quente etiam, si velit. 2". Vicarius generalis jus jurandum testibus imponere potest de secreto servando, si prudenter a natura rei, de qua agitur, id requiratur. IX. Quod vero pertinet ad remedia repressiva seu poe nas, animadvertant Ordinari in suo pleno vigore manere remedium extrajudicial ex informata conscientia pro occultis reatibus a S. Con cilio Tridentino constitutum Sess. XIV., cap i de Reform. 2o6 Appendix. da addottarsi con quelle re- gole e riserve, che ha cos- tantemente osservate nella interpretazione di detto capo la s. Congregazione del Con cilio in piii risoluzioni, e in specie nella Bosnien. e Sir- mien, 20 decembre 1873. X. Dovendosi agire crimi- nalmente o per contravven zione a precetto, o per reati comuni, o per trasgressioni alle leggi della Chiesa, puo essere compilato il processo neile forme sommariee senza strepito di giudizio, osser vate sempre le regole sostan- ziali di giustizia, XI. II processo s'intra- prende ex officio, o in seguito d'istanza, di querela, e di notizia in altro modo per- venuta in Curia, e si prose- gue fino al termine nello scopo di raggiungere con ogni cau tela e riservatezza il discoprimento della verita, edi aver cognizione tanto del delitto, die della reitd od innocenza dell'accusato. XII. La compilazione del processo puo commettersi ad un probo ed idoneo Ec- Council of Trent, Sess. xiv. De Reform, c. i., to be used subject to the rules and re strictions according to which that chapter was always in terpreted by the S. Congre gation of the Council in re peated decisions and es pecially that of Bosnien. et Sir mien., Dec, 20, 1873. X. When criminal pro ceedings are to be taken whether for violation of an injunction, for ordinary de linquencies, ora violation of the laws of the Church, the summary form without the judicial solemnities can be used, but always observing the essential rules of justice. XI. Proceedings are insti tuted ex officio or as a result of an accusation, a com plaint, or of knowledge reaching the diocesan curia by otlier means ; and they are followed up with all cau tion and prudence for the purpose only of ascertaining the truth, and that the cer tainty of the crime as well as the culpability or inno cence of the accused may be made manifest. XII. The taking of the evidence may be intrusted to any approved and com- Appendix. 207 reservationibus, quas con stanter servavit pro dicti capitis interpretatione s. Concilii Congregatio in plu ribus resolutionibus et prae cipue in Bosnien. et Sirmien. 20 Decembris 1873. X. Quum pmcedi oporteat criminaliter, sive inf ractionis praecepti, aut criminum communium, vel legum Ec clesiae violationis causa pro cessus confici potest formis summariis et absque iudicii strepitu, servatis semper regulis iustitiae substantia- libiis. XI. Processus instruitur ex officio aut in sequelam supplicis libelli et querelae, aut notitiae alio modo a curia habitae, et ad finem perducitur eo consilio, ut omni studio atque prudentia Veritas detegatur, et cognitio tum criminis, cum reitatis aut innocentiae accusati ex urgat. X. In actione criminali vel ob praecepti inobservan- tiam, vel ob communes re atus, vel ob ecclesiasticarum legum transgressionem pro cessus summarie et sine strepitu judicii servatis sem per in tota sua substantia justitiae regulis conficiatur. XI. Processus ex officio in struitur, vel accepto sup- plici libello, vel accusatione, vel nuncio quoquomodo ad curiam perlato, et usque ad terminum perducitur eo con silio, ut omni studio ac pru dentia Veritas detegatur, ac tum de crimine tum de rei- tate vel innocentia accusati causa eliquetur. XII. Processus confectio xii. Ubi curiae iam con- committi potest alicui probo stitutae sunt, compilatio processus committi potest 208 Appendix. clesiastico, assistito dall'At- tuario. petent ecclesiastic, assisted by a clerk (secretary). XIII. Ogni Curia ^ d'uopo che abbia il suo Procuratore fiscale nell'interesse della giustizia e della legge. XIV. Per le occorrenti in- timazioni o notificazioni, se non puo aversi I'opera dei cursor! della Curia, si sup- plisce con farle presentare da persona qualificata, che ne dia discarico ; ovvero trasmettendole raccoman- date per la Posta nei luoghi ove h in uso tale sistema postale, richiedendosene cer- xnr. Each episcopal curia should have a fiscal procu rator in the interest of law and justice. XIV, If there be no mes sengers attached to the curia whose services could be avail able for the delivery of the summons and notifications, these can be sent by any suitable person, who must make a return thereof ; or they may be sent by regis tered letter where such postal system exists, thus Appendix. 209 atque idoneo ecclesiastico, probo ac perito viro ecclesi- adstante actuario. astico, cui assistat actuarius. In dioecesibus vero in quibus curiae episcopates nondum possint instit ui, interim observanda est Instruetio anni 1878 cum respon sione eam subsequenti ad proposita dubia. Videlicet singuli Anti stites in synodo dioecesana audito clericorum consilio, quod tamen sequi non tenentur, quinque, vel ubi adjuncta rerum id fieri non sinant, tres saltem presbyteros ex probatissimis et quantum fieri poterit in jure canonico peritis seligant ad hujusmodi officium, ut in praedicta Instructione declaratiim exstat, exercendum. Quod si ob aliquafn gravem causam synodus haberi nequeat, quinque vel tres ut supra ecclesiastici viri per episcopum ad idem munus de- putentur. Electi in officio manebunt usque ad proximam dioece sanae synodi celebrationem, in qua vel confirmentur vel alii eorum loco designentur. Quod si interdum morte aut renuntiatione vel alia causa praescriptas consiliariorum numerus minuatur, Epis copus audito consilio eeterorum ad commissionem pertinentiutn alios sufficiet. Porro commissio haec consultorum jurejurando obstricta tenetur ad officium fideliter adimplendum, et praeside Episcopo vel vicario generali rem suam aget. Defensio autem rei erit in scriptis exhibenda ad normam praesentis Instructionis. XIII. Unicuique curiae xm. In qualibet curia opus est procuratore fiscali episcopali procurator fiscalis pro iustitiae et legis tutela. constituetur, ut justitiae et legi satisfiat, XIV. Quatenus pro intima- xiv. Pro intimationibus tionibus aut notificationibus vel notificationibus, si appa- haud praesto sit opera ritores curiae desint, utatur apparitorum curiae, supple- Episcopus persona aliqua tur exhibitione earumdem qualificata quae eas exhi- explenda per qualificatam beat, ac de hoc ipsum certi- personam, quae de facto orem reddat : vel etiam a certioret ; sive eas trans- curia per publicostabellarios mittendo ope commenda- commendatae (quibus locis tionis penes tabellariorum hoc systema vigeat) trans- ofHcium, illis in locis in qui- mittantur, exquisita fide ex- 210 Appendix. tificato di presentazione, di ricevimento, o rifiuto. XV. La base del fatto delit- tuoso puo essere stabilita dalla esposizione che se n'e avuta in processo convali- data o da informazioni au- tentiche, o da confessioni stragiudiziali, o da testimo- niali deposizioni: ed in quan to al titolo di contravven zione al precetto, risulta dalla riproduzione del de creto e dell'atto d'intima- zione eseguiti ne' modi es- pressiagli Art. VII. ed VIII. XVI. A ritenere poi in specie la colpabilitEl dell'im- putato e necessario di averne la prova legale, die deve contenere tali dementi da dimostrare la veritjl, o alme- no da indurre una morale convinzione, rimosso ogni ragionevole dubbio in con- trario. XVII. Le persone che con- venga di esaminare, si sen- tono sempre separatamente, XVIII, I testimoni a prova o a difesa, quando non vi si oppongano legali ostacoli, devono essere intesi con giuramento, estendibile, se occorra, anche all'obbligo del segreto. securing a certificate of their presentation, acceptance, or refusal, XV. The basis of the criminal fact may be estab lished by the disclosures made during the trial sup ported by authentic infor mations, extrajudicial ad missions, or the depositions of witnesses ; and as re gards the violation of in junctions, this is proved by simply producing the writ and the record of its having been served, as provided in Arts. VII. and vm. XVI. Regarding in par ticular the conviction of the accused, it is neces sary to have legal proof, which ought to be of such a nature as to demonstrate the truth, or at least induce such a moral conviction as to leave no reasonable doubt of the contrary. XVII. The witnesses whom it is expedient to ex amine, should be all heard separately. xvm. Witnesses for the prosecution or for the de fence, if there be no legal obstacle, should be put un der oath, and, if need be, held under oath alsp tq sst crecv. Appendix. 211 bus hoc invaluit systema, exposcendo fidem exliibi- tionis, receptionis aut re- pudii. XV, Basis facti criminosi constitui potest per exposi tionem in processu habitam, authenticis roboratam infor- mationibus aut confessioni- bus extraiudicialibus, vel testium depositionibus, et quoad titulum transgres- sionis praecepti constat per novam exhibitionem decreti et actus indictionis, perfec- torum modis enuntiatis Art, vii et viii, XVI. Ad retinendam in specie culpabilitatem accu sati opus est probatione le gali, quae talia continere debet elementa, ut veritatem evincat, aut saltem inducat moralem certitudinem, re- moto in contrarium quovis rationabili dubio, XVII. Personae, quas ex- aminare expediat, semper audiuntur separatim. XVIII. Testes ad proba- tionem, aut ad defensionem, quoties legalia obstacula haud obsistant, sub iura- mento audiri debent, quod extendi potest, si opus sit, ad obligationem secreti. hibitionis atque acceptionis vel repudii. Intimationes et notificationes semper in scriptis absolute fiant. XV. Delicti fundamentum erui potest ex ipsa exposi- tione habita in processu, quae authenticis informa- tionibus vel confessione ex trajudiciali, vel testium de positionibus confirmetur : transgressio vero praecepti ex ipso decreto et actu inti- mationis ad normam art. VII. et VIII. factae deducitur. XVI. Ad admittendam ve ro rei culpabilitatem neces saria est probatio legalis, quae iis momentis constare debet, quibus Veritas vere demonstrata elucescat, vel saltem moralis convictio in- ducatur quocumque rationa bili dubio oppositi remoto. XVII. Personae quae ex- amini subiiciendae sunt, separatim audiuntur. xvm. Testes ad proba- tionem sive ad defensionem, si legalia impedimenta id non prohibeant, audiantur praestito juramento de veri tate dicenda, et si res postu- let, etiam de secreto ser vando. 212 Appendix. XIX. I testimoni trovan- dosi lontani o in altra Dio- cesi, se ne domanda I'esame in sussidioall'Autorit^ eccle siastica del luogo con invio alia medesima di un pros- petto del fatto: e I'Autoritil requisita corrisponde alla richiesta osservando le norme della presente Istru zione, XX, Qualora vengano in- dicati testimoni per fatti e circostanze essenzialmente interessanti al merito della Causa, e non possano aversi in esame, perche non si reputi conveniente d'inti- marli, ovvero perche invi tati vi si ricusino, se ne fa men- zione in atti, et si procura di supplire alia deficienza di essi con le attestazioni di al tri testimoni che de relato, o in altro modo, siano infor- mati di quanto si ricerca. XXI. Riunito tutto ci6 che sia necessario a stabilire il fatto et la responsabilitEl dell'imputato, viene questo intimato all'esame. XIX. Witnesses at a dis tance or in another diocese shall be examined through the intervention of the local ecclesiastical authority, to whom shall be transmitted an abstract of the case ; and the authority called upon, shall comply with the request, observing the norms of the present In struction. XX. When witnesses are offered to give testimony on facts or circumstances that are very material to the merits of the case, but who cannot be examined either because it is not deemed ex pedient to summon them, or because they refuse to ap pear though summoned, mention of such is to be made in the minutes of the proceedings, and care must be taken to supply for their absence by the depositions of other witnesses who, by hearsay or in some other manner, have come by the knowledge sought. XXI. When all has been collected that is necessary to establish the fact of the crime and the culpability of the accused, the latter is cited for examination. Appendix. 213 Itaque antequam testificetitur cum de veritate tum de secreto jurent. Eo magis de officio fideliter adimplendo et de secreto, pro rei de qua agitur exigentia, servando omnes juramento obstricti sint oportet, qui in instructione processus ex suo munere partem aliquam ha.beant. XIX. Testium absentium aut in aliena dioecesi moran- tium exposcitur examen in subsidium ab ecclesiastica loci auctoritate, eidem trans- mittendo prospectum facti; et auctoritas requisita peti tion! respondet, servando praesentis instructionis nor mas. XX. Quoties indicentur testes ob facta aut adiuncta essentialiter utilia merito causae, qui examini subiici nequeant, eo quod censeatur haud convenire ut vocentur, aut quia vocati abnuant, mentio eorumdem fit in acti bus, et curatur supplere eorum defectui per deposi- tiones aliorum testium, qui de relato aut alia ratione noverint id quod exquiritur. XXI. Quum collectum fue rit quidquid opus sit ad factum et accusati responsa- bilitatem constituendam, vocatur iste ad examen. XIX. Testes qui in locis longe dissitis vel in aliena dioecesi degunt, mediante auctoritate ecclesiastica loci in quo manent examinentur, in quem finem specimen fac- torum transmittetur: quae quidem auctoritas in respon sione normas in hac Instruc tione contentas observabit. XX. Si indicentur testes qui de factis vel circumstan tiis ad meritum causae sub- stantiale spectantibus inter rogandi essent, nec exami- nari possint, vel quia non licet aut decet eos citare in judicium, vel quia rogati adesse recusent, necesse est id in actis commemorare, eorumque deficientia sup- plelur testimoniis aliorum qui vel de relato vel aliter rem de qua quaeritur, no verint. XXI. Ubi id omne quod ad veritatem factorum con stituendam et culpam ac cusati probandam pertinet absolutum fuerit, imputatus intimatione scripta ad examen vocatur. 214 Appendix. XXII. Nella intimazione, se la prudenza non lo vieti, gli si espongono per esteso le accuse portate a suo cari- co, onde possa prepararsi a rispondervi, XXIII. Quando poi per la qualitsL delle accuse, o per altre circostanze non sia pru- denziale di esprimerle nella intimazione, in questa gli si accenna soltanto die e chia- mato all'esame per discol- parsi in una causa che lo riguarda come inquisito. XXIV. Rifiutando egli di presentarsi, si rinnova la in timazione, nella quale gli si prefigge un congruo termine perentorio acomparire, egli si notifica, che rendendosi ancora disubbidiente, si avrel come contumace : e per tale sard effettivamente tenuto, posto che senza dar prova di legittimo impedimento, tras- gredisse pur questa intima zione. xxv. Presentandosi, si sente in esame : e se fa in- duzioni valutabili, devono queste, per quanto si puo, essere esaurite. XXVI. Si procede indi alla contestazione del fatto delit- tuoso, e delle risultanze che XXII. In this citation, un less prudence counsel other wise, the accusations made against him are stated in de tail, that the accused may have an opportunity to pre pare his reply to the charges. XXIII. When, on account of their nature or other rea sons, it is not prudent to de tail the charges in the cita tion, the accused is simply called on to exculpate him self in a case that concerns him as defendant, XXIV. If he refuse to ap pear the citation is repeated, but this time peremptorily fixing a suitable term within which he must present him self. He must be notified that if disobedient to this summons he shall be held as contumacious, and shall in fact be so treated, if without proof of lawful impediment he disregard this citation. xxv. On presenting him self he is examined, and if he adduce arguments of any weight they are to be sifted as carefully as possible. XXVI. Next they proceed to contest the delict and the conclusions already arrived Appendix. 215 XXII. In indictione, nisi prudentia id vetet, exponun- tur ei per extensum accusa- tiones adversus eum collatae, ut parari valeat ad respon dendum. xxm. Quando autem ob accusationum qualitates, aut ob alia adiuncta prudens non sit in actu intimationis eas patefacere, in hac solum innuitur eundem ad examen vocari ut sese excuset in causa, quae ipsum respicit uti accusatum. XXIV. Si iudiciostitereab- nuat, iteraturindictio, in qua eidem praefigitur congruum peremptorium terminum, eique significatur quod si adhuc obedire renuat, habe bitur ceu contumax; et pro tali in facto aestimabitur, quatenus absque probato legitimo impedimento, istam quoque posthaberet intima tionem. XXV. Si compareat, audi- tiir in examine; et quatenus inductiones faciat alicuius momenti, debent istae, quan tum fieri potest, exhauriri. XXVI, Proceditur inde ad contestationem facti crimi nosi, et conclusionem habi- xxn. In intimatione, nisi prudentia obstet, accusa- tiones contra reum perlatae per extensum referuntur, ut ad responsionem se prae- parare possit. xxm. Quod si ob accusa tionum qualitatem vel alia de causa haud expediat ut in intimatione exprimantur, in hac satis erit innuere ipsum ad examen vocari ut in causa, de qua contra eum fit inquisitio, sese defendat. xxiv. Si ad examen ac cedere reciiset, iterum fit intimatio, atque in ea con gruum tempus perempto rium praefinitur, intra quod reus coram tribunali se sistere debeat, eique signi ficatur, si non pareat, con- tumacem esse judicandum: quam intimationem si haud probato legitimo impedi mento transgrediatur, ut contumax de facto Tiabe- bitur. xxv. Verum si ad examen accedat, audiatur : et ubi inductiones alicuius valoris exhibeat, eae quantum fieri potest accurate discutiantur. XXVI. Dein accedendum est ad contestationem delicti et argumentorum, quae pro- 2l6 Appendix. senesono avute, per credere I'inquisito colpevole, ed in- corso neile relative penalitsl canoniche. XXVII, Avendo in questo modo I'inquisito piena con- tezza di cio che esiste in atti a suo carico, oltre al rispon- dere, puo anche valersi del diritto che ha di difendersi da se stesso. XXVIII, Puo altresi, se lo richiede, ottenere la pre- fissione di un termine ad esibire la difesa con memoria scritta, specialmente quando pel disposto dell'Art. XXIII. non avesse potuto prepararsi alle risposte in sua discolpa. XXIX. Ultimato il pro cesso, il compilatore degli atti, forma il ristretto delle essenziali risultanze del me- desimo. XXX. Nel giorno che si propone la Causa, I'inqui sito e in facoltidi farsi rap- presentare e difendere da altro Sacerdote o -da laico Patrocinatore, preventiva- mente approvati dall'Ordi- nario. at that the accused is guilty and has incurred the corre sponding canonical penal ties. XXVII. The accused being thus fully informed of all that lies against him in the acts may, besides making a simple answer, further claim the right to make his defence in person. XXVIII. He may also, at his request, obtain the fixing of a date for handing in his defence in a written memo rial, especially if owing to the provisions of art. xxiii, he had had no opportunity to prepare a reply in his de fence. XXIX. When the informa tive process is concluded, the auditor of the trial will make an abstract of the substantial results obtained. XXX. On the day when the case is called up by the judge, the accused is at lib erty to be represented and defended by another clergy man or by a lay-counsel, previously accepted by the bishop. XXXI. Ove il prevenuto si xxxi. If the accused re- ricusi di deputare il Difen- fuse to name counsel, the Appendix. 217 tarum, ad retinendum ac cusatum criminosum lap- sumque in relativis poenis canonicis. XXVII. Quum accusatus, tali modo, habeat plenam cognitionem eius quod in actis extat contra se, ultra quod respondere possit, iure se defendendi a semetipso etiam uti valet. XXVIII. Potest quoque, si id expetat, obtinere prae- fixionem termini ad exhi- bendam defensionem cum memoria in scriptis, praeci pue quando ob disposi- tionem art, xxiii nequiverit paratus esse ad responsa pro sua excusatione. XXIX. Expleto processu, actorum instructor, restric- tum conficit essentialium conclusionum eiusdem. xxx. In die qua causa proponitur, est in facultate accusati faciendi se reprae sentare et defendere ab alio sacerdote aut laico patroci natore, antea approbatis ab Ordinario. xxxi. Quatenus praeven tus constituere defensorem stant, ut inquisitus et cul pabilis habeatur et in poenas canonicas incurrisse cen seatur. XXVII. Inquisitus, ubi ex his noverit quae in actis contra ipsum relata sunt, ad ea respondere potest, ac si velit utetur jure defensionis a seipso in scriptis peragen- dae. XXVIII. Potest etiam, si postulet, obtinere ut ter minus ad defensionem scripto exhibendam prae- figatur : maxime si ob ea quae art. xxm indicata sunt, responsionem ad accusa- tiones contra se latas parare non potuerit. XXIX. Absolute processu redactor actorum summa rium praecipuorum argu mentorum, quae ex ipso elucent, conficiat. xxx. Qua die causa pro- ponetur, inquisito fiet facul tas defensionem suam per alium sacerdotem suo no mine in scriptis exhibendi. Quod si idoneum non reperiat, laicum catholicum adhibere potest, Quisque autem ex iis ab Ordinario appro- bandns est. xxxi. Si vero reus defen sorem deputare recuset, Or- 2l8 Appendix. sore, I'Ordinario provvede con destinargliene uno d'of- ficio. xxxii, II Difensore con la dovuta riservatezza prende cognizione del processo e del ristretto in Cancelleria, onde sia in grado di far la difesa, la quale pud essere esibita precedentementealla proposizione della Causa in fogli manoscritti, E pur esso soggetto all'obbligo giu rato del segreto, qualora a giudizio dell Ordinario la natura della Causa lo esiga XXXIII. Si trasmette quin- di al Procuratore fiscale il processo, ed il ristretto perche adempia alle sue in- combenze di officio: e poi si passa I'uno e I'altro all'Or- dinario, il quale presa In tegra cognizione della Causa, destina il giorno, in cui debba discutersi e decidersi, facendone dare parteci- pazione all'accusato, XXXIV. Nel giorno stabi- lito si propone la Causa in nanzi al Vicario generale con I'interventodel Procura tore fiscale, del Difensore, e del Cancelliere. XXXV. Dopo il parere fiscale, e le deduzioni difen- bishop will provide for the official appointment of ohe. XXXII. The counsel, sub ject to due restriction, takes notice of the acts and the abstract thereof at the chan cellor's office, in order to be in a position to make the de fence; and he is at liberty to hand in his defence in writ ing before the trial coines off. Counsel also may be sworn to secrecy, if in the judgment of the Ordinary the nature of the case re quire it. XXXIII. The acts and the abstract are now handed over to the official proseciltor that he may fulfil his official duties; both are then taken to the Ordinary, who, after acquiring a full knowledge of the case, will appoint a day for the hearing thereof and decision, and see that the accused be notified of the same. XXXIV. On the day ap pointed the case is brought up before the vicar-general in presence of the fiscal procurator, counsel for the defence, and the chancellor. xxxv. After the argu ments of the official prose- Appendix. 219 renuat, Ordinarius consulit constituendo aliquem ex officio. XXXII. Defensor caute no titiam haurit processus et restrict! in cancellaria, ut paratus sit ad defensionem peragendam quae ante pro- positionem causae exhiberi potest in scriptis. Ipse quo que subiicitur oneri secreti iuraii, quatenus Ordinario videatur indolem causae id expostulare. XXXIII. Transmittiturdein procuratori fiscali processus et restrictus, ut munere suo ex officio fungatur; uterque Ordinario traditur qui plena causae cognitione adepta, diem constituit in qua dis- ceptanda et resolvenda sit, curans ut accusatus certior dc hoc fiat. XXXIV. Die constituta pro ponitur causa coram vicario generali, interessentibus pro curatore fiscali, defensore et cancellario. XXXV. Post votum procu- ratoris fisci et deductiones defensionis profertur sen- dinarius ilium ex officio designabit. XXXII. Defensor debitis sub cautelis in cancellaria curiae processum ejusque summarium inspiciet, ut reum tueatur ; ac defen sionem ante causae ipsius propositionem scripto ex- hibebit. Ipse quoque ad juramentum de secreto ser vando tenetur, quando judex indolem causae id postulare censuerit, XXXIII Processus ejusque summarium ad procurato rem fiscalem mittitur, ut of ficio suo fungi possit. Post quam procurator fiscalis suas conclusiones ediderit, eaedem defensori rei comniunicandae sunt ut ad easdem si placuerit in scriptis respondeat; tum omnia ad_ ordinarium re mittuntur qui, ubi in plenam causae cognitionem deve- nerit, diem constituetin qua sententia dicenda sit. XXXIV. Praestituta die, ab Episcopo vel vicario generali praesente procuratore fiscali et defensore sententia pro- nunciatur, ejusque pars dis- positiva cancellario dic- tatur, expressa mentione facta, si damnation! sit 220 Appendix. sive si pronunzia la sentenza, dettandosi al Cancelliere la dispositiva, con espressa menzione, in caso di con- danna, della sanzione cano nica applicata contra I'ini- putato. XXXVI, La sentenza s'in- tima al prevenuto, il quale pud interporne appello all' Autoriti ecclesiastica supe riore, XXXVII. Per I'appello si osservano le norme stabilite dalla Costituzione Ad mili tantis della sa. me. di Bene detto XIV 30 marzo 1742, e le altre emanate da questa s. Congregazione col De creto 18 decembre 1835 e colla Circolare i agosto 1851. xxxvm. La comparsa per I'appello deve farsi nel ter mine di giorni died dalla notifica della sentenza; scorso inutilmente questo termine, la sentenza stessa e in istato di essere eseguita. XXXIX. Interposto 1' ap pello entro i died giorni, la Curia senza ritardo rimette all'Autorita ecclesiastica su periore, innanzi cui si h ap- ' See p. 241. » See cutor and those for the de fence have been heard, sen tence is pronounced and the decision proper dictated to the chancellor; but, in case of condemnation, explicit mention must be made of the canonical sanction ap plied to the accused. XXXVI. The sentence is communicated to the ac cused, who may lodge an ap peal to higher ecclesiastical authority. XXXVII. In case of appeal the methods laid down by Benedict XIV. of p. m. in the Const. Ad militantis, issued March 30, 1742,' and by this S. Congregation in a decree issued Dec. 18, 1835,'' and in the circular letter of Aug. i, 1851,'' are to be followed. xxxvm. Notice of the ap peal must be given within ten days after receiving no tice of the sentence ; this time having passed without any action, the sentence awaits execution. XXXIX. If the appeal be made within ten days, the diocesan curia will forward without delay to the higher court, to which appeal has p. 234. ' See p. 237. Appendix. 221 tentia, dlctando disposi ti- locus, sanctionis canonicae vam cancellario, cum expli- quae contra imputatum ap- cita mentione, in casu dam- plicatur. nationis, canonicae sanctio nis, accusato applicatae. XXXVI. Sententia indicitur praevento, qui appellationem interponere potest ad aucto ritatem ecclesiasticam su periorem. XXXVII. Pro appellatione servantur normae statutae a constitutione Ad militantis s. m. Bened, XIV. 30 Martii 1742, aliaeque emanatae ab hac s. Congregatione decreto 18 Decembris 1835 et littera circular! diei i Augusti 185 1. XXXV. Sententia reo in- timetur, qui potest ad auc toritatem superioris instan tiae appellationem inter ponere. XXXVI. In appellatione observentur normae expres- sae in constit. s. m. Bene dicti XIV. Ad militantis diei 30 Martii 1742, ac ceterae indictae a S. C. Ep. et RR. decreto diei 18 Decembris 1835, et epistola circular! diei I Aug. 1851. xxxvm. Comparitio pro appellatione facienda est in fra terminum decem dierum a notificatione sententiae; quo termino inutiliterelapso, sententia ipsa in executionis statu reperitur. xxxix. Interposita appel latione infra decem dies, curia absque mora reinittit ad auctoritatem ecclesiasti cam superiorem, apud quam xxxvu. Intra terminum decem dierum a notifica tione sententiae interpositio appellationis fieri debet, quo elapso tempore sententiae executio locum habet. xxxvm, Appellatione in terposita, continuo curia ad auctoritatem ecclesiasticam superioris instantiae omnia acta causae in suis auto- 222 Appendix. pellato, tutti gli atti originali della Causa, doe il processo, il ristretto, le difese, e la sentenza. XL. L'autoritd ecclesias tica superiore presa cogni zione deir atto di appello, fa intimare all' appellante, die nel termine di giorni venti deputi il Difensore, che deve essere approvato dalla me desima superiore Autoriti. XLI. Trascorso I'enunciato termine perentorio senza ef- fetto, si ritiene che I'appel- lante abbia rinunziato al benefizio dell'appello, e questo viene in consegiienza dall'Autoritd superiore di- chiarato perento. XLII. Producendosi I'ap pello dalla sentenza di una Curia vescovile alia Metro politana, I'Arcivescovo nella cognizione e decisione della Causa si attiene al metodo di procedura tracciato in questa intruzione. XLIII. Se avvenga che un Chierico, in onta al privi- legio del foro, sia per reati communi sottoposto a pro cedura e giudicato dal Potere laico, I'Ordinario in tal caso prende sommaria informazione del fatto de- littuoso, ed esamina se a been made, all the original acts in the case, namely, the minutes, the abstract, the defence, and the sentence. XL. The higher ecclesiasti cal authority having taken cognizance of the appeal shall notify the appellant that within twenty days he is to appoint his counsel, who must be accepted by the same higher autliority. XLI. If this peremptory limit be allowed to pass without action, the appellant is presumed to have re nounced the benefit of ap peal, and the appeal is ac cordingly by the higher au thority declared set aside. XLIL When an appeal is taken from an episcopal to the metropolitan court, the archbishop in taking cogniz ance of and deciding the case will follow the methods set forth in this Instruction, XLIII. If, notwithstanding the benefit of the clergy, a cleric be subjected on ac count of common delicts to a criminal suit before a civil court, the Ordinary in this case will take summary cognizance of the delict and consider vvhether, according Appendix. 223. appellatio facta est, omnes actus causae originales, id est processum, restrictum, defensiones et sententiam. XL. Auctoritas ecclesia stica superior, capta cogni tione actus appellationis, intimare facit appellant!, ut infra terminum viginti die rum defensorem constituat, qu! approbari debet ab eadem superiori auctoritate. XLI. Decurso dicto termi no peremptorio absque effectu, censetur appellan- tem nuntium misisse ap pellationis beneficio et haec consequenter perempta de- claratur a superior! aucto ritate. XLII. Quum appellatio producitur a sententia ali cuius curiae episcopalis ad Metropolitanam, Archiepis copus pro cognitione et de cisione causae sequitur nor mam procedendi in hac in structione traditam. XLIII, Si contingat quod clericus, non obstante fori privilegio, ob crimina com munia subiiciatur processu! et iudicio laicae potestatis, Ordinarius, hoc in casu, summariam sumit criminosi facti cognitionem, atque perpendit an ipsum, ad tra- graphis, id est processum, ejus summarium, defen sionem ac sententiam mittit. XXXIX. Haec porro su perioris instantiae auctoritas appellatione cognita appel lant! injungit, ut intra triginta dies defensorem de- putet, qui ab ipsa appro- bandus est. XL, Eo termino peremp torio frustra elapso, censetur reus beneficio appellationis renuntiasse, quam propterea judex gradus superioris per- emptam declarat. XLI. In appellatione a sen tentia curiae episcopalis ad metropolitanam Archiepis copus in causa cognoscenda ac definienda eadem proce dendi methodo utetur, quae in hac instructione indi ca tur.XLII. Si clericus ob com munes reatus a civili potes tate privilegio fori non ob stante processu! ac judi cio subjiciatur, Ordinarius summariam informationem criminis assumit, ac inquirit num ad normam sacrorum canonum infamiae, irregu- 124 Appendix. senso de' sacri canoni, esso puo dar luogo ad infamia, ad irregolaritd o ad altra ec clesiastica sanzione. § I. Finche pende il giu dizio o I'imputato sia de- tenuto, e cosa prudente, che I'Ordinario si limit! a misure provvisionali. § 2. Terminato pero il giudizio, e reso libero I'ac- cusato, la Curia, giusta i risultat! delle informazioni come sopra assume, pi-o- cede analogamente a quan to e disposto nella presente istruzione. XLIV. Nei casi dubbi, e neile varie difficolti pratiche in cui possano incontrarsi, gli Ordinari prendono con siglio da questa s, Congre gazione per evitare contese e nullita. to the holy canons, infamy, irregularity, or other ecclesi astical penalty be the result. § I. Pending the suit, and while the accused is held, it will be prudent for the Or dinary to confine himself to provisional measures. § 2. After the trial and when accused has been re leased, the curia, according to the results of informa tions taken as above, will proceed according to the norms of this present In struction. XLIV, In dubious casesand in the various practical diffi culties that may arise. Ordi naries will ask advice of this Sacred Congregation to avoid litigation and nullity. Ex aud. SSmi diei \i Jutiii i88o, SSmus Dnus Noster LEO div. prov. PP. XIIL, audita relatione praesentis Instructionis ab infrascripto Sac. Con- greg. Episcoporum et Regularium Secretario, eam in omni bus approbare et confirmare dignatus est. Romae die et anno quibus supra. I. Card. Ferrieri, Praef. I. B. Agnozzi, Secretarius. Appendix. 225 dita per sacros canones, lo cum faciat infamiae, irregu- laritat! aut alii ecclesiasticae sanction!. § I. Donee indicium pen deat, aut accusatus detentus sit, prudens est, quod Ordi narius sese limitet ad media provisoria. § 2. Expleto tamen iudi cio, et libero reddito accu sato, curia iuxta exitum in- fonnationum ceu superius assumptarum, procedit ad tramites dispositionum prae sentis instructionis. XLIV. In casibus dubiis et in variis practicis difficulta- tibus, quae contingere pos sint, Ordinarii consulant hanc s. Congregationem, ad vitandas contentiones et nullitates. laritati, vel alii ecclesiasticae sanctioqi locus esse possit. 1°. Pendente judicio vel imputato in carcere detento prudens consilium erit, ut Ordinarius ordinationes mere provisorias adhibeat. 2°. Judicio absoluto, si liber accusatus remittatur, curia episcopalis juxta in- formationes ut supra as- sumptas ea ratione procedet, quae in hac instructione con stituitur. XLIII. In casibus dubiis diversisque in praxi difficul- tatibus Ordinarii Sacram hanc Congregationem con sulant, ut contentiones ac nullitatem actorum devitent. XLIV. Haud ita facile curiae episcopates ad. damna vel expensas resarciendas damnari poterunt; quoties enim ex processu informativo indicia sufficientia ad agen dum contra inquisitiim. appareant, judex appellationis a talibus damiiationibus abstineat, cum ea indicia sufficiant ut in judice, qui antea processit, ea vera et propria calumnia excludatur, quae ad hujusmodi damnationem requiritur. XLV. Concilii Plenarii Bal timorensis II. decreta n. 125 quoad naturam rdssionum, et nn. 77, 108 quoad juridicos effectus remotionis missionariorum ab officio, nuUatenus innovata seu infirmata intelliguntur, salvis iis quae recentius de parochis seu rectoribus inamovibilibus consti tuta sunt. 226 Appendix. Instructio S. Congregationis de Prop. Fide de Com MissioNE Investigationis.* Quamvis Concilium Plenarium Baltimorense II. ab Apostolica Sede recognitum, certam quamdam iudicii for mam, iam antea a concilio provinciali S. Ludovici sanci- tam, in criminalibus clericorum causis ab ecclesiasticis curiis dioecesium Foederatorum Septentrionalis Americae Statuum pertractandis servandam esse decreverit, experi entia tamen compertum est, statutum iudicii ordinem haud undequaque parem esse ad querelas eorum praecavendas, quos poena aliqua mulctari contigerit. Saepe enim post- remis hisce temporibus accidit, ut presbyteri iudiciis ea ratione initis latisque sententiis damnati, remoti praeser tim ab officio rectoris missionarii, hue illuc de suis Pracr latis conquest! fuerint et frequenter etiam ad Apostolicam Sedem recursus detulerint. Dolendum autem est, non raro evenire, ut in transmissis actis plura, eaque necessaria desiderentur, atque perpensis omnibus gravia saepe dubia oriantur circa fidem documentis hisce in causis allatis ha- bendam vel denegandam. Quae omnia S. Congregatio fidei propagandae praepo- sita serio perpendens, aliquod remedium hisce incommodis parandum, ac ita iustitiae consulendum esse censuit, ut neque insontes clerici per iniuriam poena afficiantur, neque alicuius criminis rei ob minus rectam iudiciorum formam a promerita poena immunes evadant. Quod quidem facili pacto obtineret, si omnes praescriptiones a sacris canonibus sapienter editas pro ecclesiasticis iudiciis, praesertim crimi nalibus, ineundis et absolvendis servandas omnino esse praeciperet. Verum animo reputans, in praedictis Foede- * The Latin notes are from the answer of the S. C, given in full in the Appendix C. PI. B. IIL, p. 296. Appendix. 227 ratorum Ordinum regionibus id facile servari non posse, ea ratione providendum esse duxit, ut saltem illae de admisso crimine accurate peragantur investigationes, quae omnino necessariae existimantur, antequam ad poenam irrogandam deveniatur.' Itaque SSmo. Domino Nostro Divina Providentia PP. Leone XIII. approbante, in generalibus comitiis habitis die 25 lunii 1878, S. Congr. decrevit ac districte mandavit, ut singuli memoratae regionis sacrorum Antistites in dioece sana synodo quamprimum convocanda quinque, aut ubi ob peculiaria rerum adiuncta tot haberi nequeant, tres saltem presbyteros ex probatissimis, et quantum fieri poterit in iure canonico peritis seligant, quibus consilium quoddam iudiciale, seu, ut appellant, Commissio Investigationis con- stituatur, eidemque unum ex electis praeficiant. Quod si ob aliquam gravem causam synodus dioecesana statim ha beri nequeat, quinque vel tres prouti supra per Episcopum interim ecclesiastici viri ad munus de quo agitur depu- tentur. Commissionis ita constitutae princeps erit officium cri minates atque disciplinares presbyterorum aliorumque clericorum causas, iuxta normam mox proponendam, ad examen revocare, rite cognoscere ac ita Episcopo in ipsis definiendis auxilium praebere. Satagant propterea oportet ' i. Instruetio diel 20 lulii 1878 lata est de casibus, in quibus ecclesia stica poena seu censura sit infligenda, aut gravi disciplinari coercitioni sit locus. Hinc C, PI. C. Bait, decreta n. 125 quoad naturam missionura, nn. 77, loS, quoad iuridicos effectus remotionis missionariorum ab officio nuUatenus innovata seu infirmata fuerunt. Episcopi vero curent, ne sacerdotes sine gravi et rationabili causa de una ad aliara missionem invitos transferant. Quod si de alicuius rectoris definitiva remotione a munere in poenam delicti infligenda agatur, id Episcopi execution! non mandent, nisi audito prius Consilio. iv. Per Instructlonem sublata non est Episcopis extraordinaria facul tas procedendi ad suspensionem ex Informata conscientia, quatenus gra- vissimas et canonicas causas concurrere in Domino iudicaverint. aut gravi et urgente necessitate pro salute animarum, etiam non audito con silio, remedio aliquo providendum esse censuerint. 228 Appendix. ad hoc munus electi, ut accuratae fiant investigationes, ea proferantur testimonia atque a praesumpto reo omnia ex- quirantur, quae ad veritatem eruendam necessaria censen tur ac ad iustam sententiam tuto prudenterque ferendam certa vel satis firma argumenta suppeditent. Quod si de alicuius rectoris missionis remotione agatur, nequeat ipse a credito sibi munere deiici, nisi tribus saltem praedictae Commissionis membris per Episcopum ad cau sam cognoscendam adhibitis, eorumque consilio audito. Electi consiliarii in stiscepto munere permanebunt ad proximam usque dioecesanae synodi celebrationem, in qua vel ipsi confirmentur in officio vel alii designentur. Qtiod •si interim morte, aut renuntiatione vel alia causa praescrip- tus consiliariorum numerus minuatur, Episcopus extra synodum alios in deficientium locum, prout superius statu tum est, sufficiat. In causis cognoscendis, iis praesertim in quibus de rec tore missionario definitive a suo officio amovendo agatur, iudicialis Commissio hanc sequetur agendi rationem. I. Ad Commissionem investigationis non recurratur, nisi prius clare et praecise exposita ab Episcopo causa ad deiec- tionem finalem movente, ipse rector missionarius malit rem ad Consilium deferri, quam se a munere et officio sponte dimittere. 2. Re ad Consilium delata, Episcopus vicario suo gene rali vel alii sacerdoti ad hoc ab ipso deputato comittat, ut relationem causae in scriptis conficiat, cum expositione in vestigationis eo usque peractae, et circumstantiarum, quae causam vel eiusdem demonstrationem specialiter afficiant. 3. Locum, diem, et horam opportunam ad conveniendum indicet, idque per litteras ad singulos consiliarios. 4, Per litteras etiam rectorem missionarium, de quo agitur, ad locum et diem constitutum ad Consilium haben dum advocet, exponens, nisi prudentia vetat, uti in casu criminis occulti, causam ad deiectionem moventem, per ex tensum monensque ipsum rectorem, ut responsum suis ra tionibus suffultum ad ea praepatet in scriptis, quae in Appendix. 229 causae expositione vel iam antea oretenus, vel tunc in scriptis relata fuerint. . 5. Convenientibus consiliariis tempore et loco praeflnitis, praecipiat Episcopus silentium servandum de iis, quae in Consilio audiantur; moneat iiivestigationem non esse pro cessum iudicialem, sed eo fine habitam, et eo modo facien- dam, ut ad cognitionem veritatis diligentiori qua poterit ratione perveniatur, adeo ut unusquisque consiliarius, per pensis omnibus, opinionem de veritate factorum, quibus causa innititur, efformare quam accurate possit. Moneat etiam ne quid in investigatione fiat, quod aut ipsos, aut alios periculo damni vel gravaminis exponat, praesertim ne locus detur actioni libelli famosi, vel alii cuicumque processui coram tribunali civili. 6. Relatio causae legatur coram Consilio ab Episcopi official!, qui etiam ad ititerpellationes respondebit a prae side vel ab aliis consiliariis per praesidem faciendas ad uberiorem rei notitiam assequendam, 7. Deinde in Consilium introducatur rector missiona rius, qui responsum a se confectum leget, et ad interpella- tiones similiter respondebit, facta ipsi plena facultate ea omnia in medium afferendi, intra tempus tamen a Consilio determinandum, quae ad propriam defensionem conferre possunt.' 8. Si contingat, rectorem missionarium, de cuius causa agitur, nolle ad Consilium accedere, iterum datis litteris vocetur, eique congruum temporis spatium ad comparen dum praefiniatur, et si ad constitutum diem non comparu- erit, dummodo legitime praepeditus non fuerit, uti contu max habeatur. 9. Quibus omnibus rite expletis, consiliarii simul consilia conferant, et si maior pars consiliariorum satis constare de factis arbitretur, sententiam suam unusquisque consilia rius in scriptis exponat rationibus quibus nititur expressis; ' iv. Liberum cuique rectori est alium sacerdotem ab Episcopo appro- bandura secum habere coram Consilio sive ad simplicem adsistentiam sive ad suas animadverslones aut defensionem exhibendam. 230 Appendix. conferantur sententiae; acta in Consilio ab Episcopi offi- ciali redigantur, a praeside nomine Consilii subscribantur, et simul cum sententiis singulorum in extenso ad Episco pum deferantur. 10, Quod si ulterior investigatio necessaria vel congrua videatur, eo ipso die, vel alio ad conveniendum a Consilio constituto, testes vocentur quos opportunos Consilium iu- dicaverit, audito etiam rectore missionario de iis quos ipse advocandos esse voluerit, 11. Singuli testes /re causa seorsim et accurate examinen tur a praeside et ab aliis per praesidem, absente primum rectore missionario. Non requiratur iuramentum, sed si testes ipsi non renuant, et se paratos esse declarent ad ea quae detulerint iuramento, data occasione, confirmanda, fiat adnotatio huiusmodi dispositionis seu declarationis in actis. 12, Consentientibus testibus, et dirigente prudentia Con silii, repetatur testimonium coram rectore missionario, qui et ipse testes si voluerit iiiterroget per praesidem, 13, Eadem ratione qua testes pro causa, examinentur testes contra causam. 14. Collatis tunc consiliis fiat ut supra n. 9. 15, Quod si testes nolint aut nequeant Consilio assistere, vel eorum testimonium nondum satis luculentum negotium reddat, duo saltem ex Consilio deputentur, qui testes ad- euntes, loca invisentes, vel alio quocumque modo poterunt, lumen ad dubia solvenda requirentes, relationem suae in vestigationis ad Consilium deferant, ut ita nulla via inten- tata relinquatur ad verum moraliter certo cognoscendum antequam ad sententiae prolationem deveniatur. 16. Omnia acta occasione iudicii in medium allata accu rate in curia episcopali custodiantur, ut in casu appellatio nis commode exhiberi valeant. 17. Si vero contingat, ut a sententia in curia episcopali prolata ad Archiepiscopalem provocetur, Metropolitanus eadem methodo in causae cognitione et decisione pro- cedat. Appendix. 231 Ex aedibus praefatae S. Congregationis die 20 lulii anni 1878. loANNES Card. Simeoni, Praefectus. loANNES Baptista Agnozzi, Secretarius. Instructio S. Congregationis de Prop. Fide supra SUSPENSIONIBUS EX InFORMATA ConSCIENTIA. Omni tempore soUicita fuit Ecclesia ut non solum ascen sus ad sacros Ordines interdiceretur indignis, verum etiam ab eorumdem exercitio criminosi suspensi manerent. Cum autem occultorum quoque criminum, quaeque pro- dere non expediret, facilis et prompta, nempe a iudiciariis formis libera, coercitio aliquando necessaria sit ad sacri ministerii dignitatem, et fidelium utilitatem tuendam; hinc sapientissimo consilio Tridentini Patres Sess. xxiv. cap. i. de Reform, decreverunt: "Ei cui ascensus ad sacros ordines a suo Praelato ex quacumque causa, etiam ob occultum crimen, quomodolibet, etiam extraiudicialiter fuerit interdictus, aut qui a suis ordinibus seu gradibus vel dignitatibus ecclesiasticis fuerit suspensus, nulla contra ipsius Praelati voluntatem concessa licentia de se promoveri faciendo, aut ad priores ordines, gradus et digni tates sive honores restitutio suffragetur." Ex hoc provido decreto, in eo quod refertur ad Clerico rum crimina, quae extraiudicialem suspensionem ab eccle siasticis officiis merentur, iamdudum in usu fuit suspensi- onis poena ex causis Praelato notis; quae nempe audit suspensio ex informata conscientia. Ad hoc itaque ut in eadem infligenda, cum maiori qua potest cautela et securi- tate Ordinarii catholicarum missionum procedant, S. Con gregatio de Propaganda Fide praesentem instructlonem edendam censuit, cui iidem Ordinarii in adhibendo hoc ex- traordinario remedio sese conformare curabunt. 232 Appendix. I. Suspensio ex informata conscientia, non secus ac ilia, quae per iudicialem sententiam infligitur, personam eccle siasticam a suis ordinibus, seu gradibus, vel dignitatibus ecclesiasticis exercendis interdicit. 2. In hoc praecipue ipsa differt a iudiciali suspensione, quod adhibetur tamqtiam extraordinarium remedium in poenam admissi criminis; ideoque ad eiusdem imposi tionem non requiruntur nec formae iudiciales, nec canoni cae admoiiitioiies. Satis erit proinde, si Praelatus hanc poenam infligens, simplici utatur praecepto, quo declaret se suspensionem ab exercitio sacrorum officiorum vel eccle- siasticorum munium indicere. 3. Huiusmodi praeceptum semper in scriptis intimandum est, die et mense designato; ideoque autem fieri debet vel ab ipso Oi"dinario, vel ab alia persona de expresso ipsius mandato. In eadem tamen intimatione exprimendum est, quod eiusmodi punitio irrogatur in vim Tridentini decreti, Sess. xiv. c. I. de reform., ex informata conscientia vel ex causis ipsi Ordinario notis. 4. Debent insuper exptimi partes exercitii ordinis vel officii, ad quas extenditur suspensio; quod si suspensus in terdictus sit ab officio, cui alter in locum ipsius substituen- dus est, ut puta Oeconomus in cura animarum, tunc substi- tutus mercedem percipiet ex fructibus beneficii in ea por tione, quae iuxta prudens Ordinarii arbitrium taxabitur. At si suspensus in hac taxatione se gravatum senserit, moderationem provocare poterit apud curiam Archiepisco palem, aut etiam apud Sedem Apostolicam, 5, Exprimi item debet tempus durationis eiusdem poenae. Ahstineant tamen Ordinarii ab ipsa infligenda in perpe tuum. Quod si ob graviores causas Ordinarius censuerit eam imponere non ad tempus determinatum, sed ad suum beneplacitum, tunc ipsa habetur pro temporanea, ideoque cessabit cum iurisdictione Ordinarii suspensionem infli- gentis. 6. Suspensioni ex informata conscientia iustam ac legiti- mam causam praebet crimen, seu culpa a suspehso com- Appendix. 233 missa. Haec autem debet esse occulta, et ita gravis, ut talem promereatur punitionem. 7. Ad hoc autem ut sit occulta requiritur, ut neque in indicium, neque in rumores vulgi deducta sit, neque insuper eiusmodi numero et qualitati personarum cognita sit, unde delictum censeri debeat notorium. 8. Verum tenet etiam suspensio si ex pluribus delictis aliquod fuerit notum in vulgus; aut si crimen, quod ante suspensionem fuerat occultum, deinceps post ipsam fuerit ab aliis evulgatum. 9. Prudenti arbitrio Praelatorum relinquitur siispensi- onis causam, seu ipsam culpam delinquenti aut patefacere, autreticere. Partes alioquin pastoralis sollicitudinis et charitatis eorumdem erunt, ut si istiusmodi poenam sus- penso manifestare censuerint, ipsa ex paternis, quas inter- ponent, monitionibus, nedum ad expiationem culpae, verum etiam ad emendationem delinquentis, et ad occasionem peccandi eliminandam inserviat, 10. Meminerint vero Praesules, quod si contra decretum, quo irrogata fuit suspensio, promoveatur recursus ad Apostolicam Sedem, tunc apud ipsam comprobari debet culpa, quae eidem praebuit occasionem. Consultum idcirco erit, ut antequam haec poena infligatur, probationes illius, quamtumvis extraiudicialiter et secreto colligantur; ita ut eo ipso, quod cum omni certiudine culoabilitatis in punitione inferenda proceditur, si deinceps causa exami- nanda est apud Apostolicam Sedem, probationes criminis in eas difficultates haud impingant, quae ut plurimum oc currunt in istiusmodi iudiciis, II. A decreto suspensionis ex informata conscientia non datur appellatio ad tribunal superioris ordinis. Postquam idcirco clericus intimationem suspensionis habuerit, si ni hilominus appellationem interponere, eiusque obtentu in altari ministrare, seu quovis modo suum ordinem solemni- ter exercere praesumat, statim incidit in irregularitatem. 12. Semper tamen patet aditus ad Apostolicam Sedem; et in casu quo clericus absque sufficienti ac rationabili 234 Appendix. causa se hac poena multatum reputet, recurrere poterit ad Summum Pontificem. Interim tamen in vigore permanet decretum suspensionis usque dum ab ipso Pontifice, vel a S. Congregatione, quae de recursu iudicare debet, non fuerit rescissum aut etiam moderatum. 13. Ceterum ex quo istiusmodi poena est remedium omnino extraordinarium, quod praesertim ad expiationem criminum absque formis iudiciariis adhibetur, prae oculis habeant Praelati id quod sapientissime admonet Summus Pontifex s. m. Benedictus XIV. in suo tractatu de Synodo Dioeces. I. xii. c. 8. n. 6., quod nimirum reprehensibilis foret Episcopus, si in sua synodo dedararet, se deinceps ex pri vata tantum scientia cum poena suspensionis a divinis animadversurum in clericos, quos graviter deliquisse compererit, quamvis eorum delictum non possit in foro externo concludenter probari, aut illud non expediat in aliorum notitiam deducere. Romae ex Aedibus S. Congregationis de Prop. Fide die 20 Octobris 1884. Decretum S. Congregationis Episcoporum et Regu larium PRO Causis Criminalibus.* Non ita pridem a S. Congregatione negotiis et consulta- tionibus Episcoporum et Regularium praeposita nonnullae regulae praescriptae fuerunt pro recta et expedita defini tione causarum criminalium, quae a Curiis Episcoporum vel Ordinariorum ad eamdem S. Congregationem in gradu ap pellationis deferuntur.' Quas quidem praescriptiones, ' The procedure before the S. Congregation varies according as the issue is more or less important. Ordinary and unimportant cases are brought before the full meeting {in pleno) by the secretary, who stales the two sides, pro and con, of the case. But when the matter is of great irapor- * Cfr. on p. 240 the Dispositio S. C. Epp., 26 Mch. 1886. Appendix. 235 quoniam impedimenta sublata sunt, quee aliqua ex parte earum executioni interposita fuerant, visum est Eminen- tissimis Patribus in Conventu habito XV, Calend. Januar. MDCCCXXXV. uberius explicare, et cum assensu et ap- probatione S. D. N. Gregorii XVI. iterum promulgare, ut ab omnibus, ad quos pertinent, accuratissime serventur. Sunt autem quae sequuntur. L Reis a Curiis Episcopalibus criminali judicio damnatis spatium dierum decem conceditur, quo ad S. Congrega tionem Episcoporum et Regularium appellare possint. n. Decem dies numerari incipient non a die, quo senten tia lata est, sed a die, quo reo vel ejus defensori per cur- sorem denuntiata fuit. m. Eo tempore elapso, quin reus vel ejus defensor ap- pellaverit, latam a se sententiam Episcopus exequetur. IV. Interposita intra decem dies appellatione Curia Epis copalis acta autographa totius Causae ad S. Congrega tionem continuo transmittal, nempe: I. Processum ipsum in Curia confectum. 2. Ejus restrictum, seu compendiariam expositionem eorum, quae ex eodem processu emergunt. 3, Defensiones pro reo exhibitas. 4, Denique sententiam latam. V. Ipsa Curia reo, ejusque defensori denuntiabit, appel lationem coram eadem S. Congregatione prosequendam esse. VI, Si nemo compareat aut si appellationis acta negli- tance and requires special investigation, one of the eminent members of the S. C. is appointed referee {judex relator), who may associate with himself one or more of the approved consultors. Gregory XVI, on the 5 Sept. 1834 granted the following request of the S. C, viz. : Eminentissimi Patres . . , rati sunt rem utilem fore, si exemplo aliquarum Congrega- lionum majorum nonnuUi consultores deligerentur, quorum esset super dubiis seu quaestionlbus, de quibus rogarentur, sententiam suam expo- nere, firrals tamen manentibus antiquis institutlonibus, ita ut de negotiis alicujus ponderis, deque consultationlbus oranibus in pleno Auditorio semper deliberetur et statuatur designato aliquo ex Eminentissimis Pa tribus '¦ Qui videat et referat." 236 Appendix. genter vel malitiose protrahantur,' congruens tempus a S, Congregatione praefinietur, quo inutiliter elapso, causa de- serta censeatur, et sententia Curiae Episcopalis executioni mandetur, VII. Reo aut illi, qui ejus defensionem suscepit, traden- dus est restrictus processus,^ qui a Judice relatore confici- tur, vm. AUegationes seu defensiones Eminentissimis Patri bus distribuendas typis non committantur, nisi Judex relator impriraendi veniam dederit, IX. Causa definietur statuta die ab Eminentissiniis Pa tribus in pleno Auditorio congregatis. X. Eidem Congregation! Procurator Generalis Fisci el Judex relator intererunt. XL Judex relator de toto statu causae ad Eminentissimos Patres referet, et Procurator Generalis Fisci stabit pro Curia Episcopal!,' suasque conclusiones explanabit. XII. Post haec Eminentissimi Patres judicium proferent, ' No definite term is mentioned when the appellant must appear. He is supposed to do it within reasonable time, otherwise a peremptory term will be given him by the S. C, which is rather lenient in this matter, and does sometimes grant several terms before it will throw the appeal out from the docket. Droste thinks that the term of twenty days men tioned in the Circular of 1851 apply only to cases brought from the epIs' copal courts of the Papal States for which the S. C. acts as first appellate court. However, the Instr. 1880, art. 36, and the Decree 1886, art. 6, seem to extend the provisions of 1851 to all episcopal courts to which the Instruction itself was sent; hence the same rules apply in this regard to all appeals whether they go to the metropolitan or to the S. C, Epp. ^ Cfr. Dispositio 1886, arts. 1-4. Appellant is not furnished with the acts of the former trial, but only with an abstract of them, which the Eminent Referee must supply. This is quite sufiicient, as appellant may have got the full acts copied by the chancellor, or by his counsel. These he may now send to his attorney at the tribunal of the S, C. 'The office of fiscal procurator-general was created by Benedict XIII,, a. 1724. This officer was to act as attorney for the bishops in any cases brought by or against them to the S. C. Epp. The Decree 1886 in arts 3, 4 evidently introduces a similar procedure in scriptis before the S. C. as the Cum Magn. orders for the lower courts in arts. 32, 33. Appendix. -237 sententiam Curiae Episcopalis aut confirmando, aut infir- mando, aut etiam reformando. XIII. Prolata sententia una cum omnibus Actis causae ad eamdem Curiam Episcopalem remittitur, ut eam exe quatur. XIV. Revisio, seu recognitio rei judicatae non conceditur, nisi ejus tribuendae potestas a Sanctitate Sua facta fuerit, et subsint gravissimae causae, super quibus cognitio, et judicium ad plenam Congregationem pertinet. XV. Sciant denique Curiae Episcopales per novissimas leges, quae ad investiganda, et coercenda crimina pro Tri bunalibus laicis promulgatae sunt, nihil detractum esse de formis, et regulis Canonicis, quas proinde sequi omnino debent non modo in conficiendo processu, ad quem spec tant haec verba Edictidiei 5. Novembris 1831 = Nihil innovetur, quantum ad judicia ecclesiastica pertinet = verum etiam in poenis decernendis, quemadmodum in ap pendice ejusdem Edicti ita cautum est = Tribunalia juris dictionis mixtae Clericos et Personas Ecclesiasticas iis poenis mulctabunt, quas secundum Canones et Consti tutiones Apostolicas Tribunal Ecclesiasticum iisdem irro- garet =. J. A. Card. Sala, Praefectus. J. Patriarcha Cotistantinopolitanus, Secretarius. Extract from the Circular of the S. Congregation OF Bishops and Regulars, i Aug. 185 1.* . . . Finally, to hasten the disposal of cases laid on appeal before this S. Congregation, Your Lordship will instruct the members of your court that if within ten days after be ing informed of the sentence the defendant appeal to this *The original Italian text of the full circular, with a Latin translation, is given by the Acta S. S., xv. 547 ff. 238- Appendix. S. C, and his appeal be admitted, and this being made known to the Ordinary with the usual order to prosecute the appeal within the peremptory term of twenty days, — those officers of the Curia must by formal message {per atto cursorile) inform appellant that if he intends to prose cute the appeal, he must within the peremptory term of twenty days appoint in this city an advocate or attorney accredited in the Roman court; and must moreover assure himself that the advocate chosen by him do actually ac cept the charge and, upon depositing the necessary sum, demand the acts from the judge-referee {giudice relatore). If appellant allow this term to lapse without avail, it will be taken for granted that he has waived the benefit of the appeal, whicii will consequently be declared off by this S. C. On the other hand, when the prosecutor or representative of the fiscal makes an appeal which is admitted by the S. C, and notice thereof given to the bishop, the appellee also, being now a party to the appeal, must be informed of the appeal taken by the former and adraitted by the S. C. ; he is at the same time notified that if he do not within the peremptory term of twenty days appoint his defender from among the advocates or attorneys of the Roman Curia, it will be presumed that he declines to take part in the pro ceedings, and on motion of the prosecutor or the attorney of the fiscal the proceedings will be carried through to judgment and no otlier appeal allowed. The same notice is given to the fiscal procurator or his attorney when he takes an appeal to the S. C, as is given to the condemned. The notifications, with the proper certificate of the court apparitor, must be laid before the Congregation. In conclusion it should be remarked that the notification of the sentence and of the appeal being certified to by the court messenger must be made part of the records or acts, which, in virtue of art. 4 of the decree 18 Dec. 1835, are immediately to be supplied with a chronological index, and sent to this S. C„ together with an abstract of the proceed ings, with the defence, and an exact copy of the sentence, Appendix. 239 the original of which remains with the episcopal court, to be kept in the criminal registry of the chancery. . , . Fr. A. F. Cardinal Orioli, Prefect. D. Patriarch of Constantinople, Sec'y. Dispositio Provisoria pro actis appellationis iti causis criminalibus. Sacra haec C. Epp. et RR. pro certo habens quod modi procedendi oeconomice, ordinati per Instructlonem diei 11 Junii 1880 pro curiis ecclesiasticis in causis criminalibus quae clericos respiciunt, observari quoque debeant in actis appellationis quae apud ipsum Sacrum Consessum inter- ponitur a sententiis ipsarum curiarum, opportunam censuit publicationem sequentis dispositionis:' I. Defensor rei vel reorum eligendus inter advocatos a sacris Congregationibus approbates, praevio deposito de more, prudenter notitiam sumit de restrictu et processu coram Judice relatore. II. Quatenus vero ratione causae expedire censeat Emus. Dominus Card. Praefectus injungitur* defensori servare secretum cum jurisjurandi vinculo. III. Exhibitis defensionibus in scriptis, eaedem quatenus Emus. Dom. Card. Praefectus aeque opportunum censeat, communicari queunt procuratori fiscali curiae a qua, ut ille si necesse esse crediderit, in scriptis respondeat. IV. De responso procuratoris fiscalis defensor sub debita cautela cognitionem sumere potest coram Judice relatore, ut replicare ultimo valeat pariter in scriptis. V. Omnino autem excluditur defensoris et procuratoris fisci praesentia in comitiis Cardinalium quando causa re solvenda proponitur. 'See the Italian original in Acta S. S., xix. 2g6; Nouvelle Revue ThM., XIX., No. 2, p, 132, with commentary. 240 Appendix. VI. Excepta dispositione praecedentium articulorum, in sua plena vi quoad omnes partes ea omnia permanent quae S. C. constituit per decretum diei 18 Decembris 1835, per literas circulares diei i Augusti 1851, et per ordinationem diei 6 Junii 1847.' Ex aud. SS/nt. diei 26 Martii 1886. SSmus. Dnus. Noster Leo div. prov. PP. XIII. audita relatione praesentis dispositionis ab infrascripto S. C. Epp. et RR, Secretario, eam in omnibus approbare et con firmare dignatus est. Romae die et anno quibus supra. J. Card. Ferrieri, Praef. Fr. Ant. M. Archp. Palmyren., Secret. Ex Responso S. C. de Prop. Fide. 13 Julii 1886. . . . Declarat S. Congregatio nunquam sese fore admis- suram recursum vel appellationem sacerdotum, qui ad judices laicos trahere ausi fuerint vel clericum sine venia Ordinarii, vel Episcopum sive venia Apostolicae Sedis, sive in causa ecclesiastica sive non, nisi prius recursum ad civile tribunal interpositum deseruerint. Episcopi vero juxta declarationem capitis Cogentes a Suprema Inquisitionis Congregatione, die 28 Januarii 1886,' editam, possunt in praedictum clericum animadvertere poenis et censuris ferendae sententiae, maxime suspensione a divinis, servatis tamen servandis, et pro gravitate causae, si id expedire in Domino judicaverint. . . . J. Card. Simeoni, Praef. D, Archp. Tyrens., Secret. ' See.ap. Acta S. S., XIX. 2gS; Bizzarti, p. 180. Appendix. 241 De Appellationibus et Inhibitionibus coneedendis vel denegandis. Benedictus Episcopus Servus Servorum Bei. Ad perpetuam rei memoriam. Ad militantis Ecclesiae regimen nullo meritorum Nos trorum suffragio, sed imperscrutabilis consilii altitudine evocati, inter graves curas quas assidue pro Nostro munere sustinemus, postrema ilia non est in quam totis viribus Nobis incumbendum esse ducimus, ut graves nimium, diuturnae, nuUoque unquam tempore intermissae Epis coporum aliorumque ordinariam jurisdictionem habentium querelae adversus majora tribunalia atque ilia etiam Nos trae Romanae Curiae, propositae tandem compescantur. § I. Intimo siquidem animi Nostri moerore, cum in mi noribus adhuc essemus, jamdiu intelleximus plerosque locorum Ordinarios conqueri, sensim abusum irrepsisse, quod ad malitiosam petentium suggestionem a Patriarchis, Metropolitanis, Sanctae Sedis a latere Legatis, et diversis dictae Romanae Curiae judicibus inhibitiones sine delectu causae et rei de qua igitur examine, passim concedantur. Et quamvis in more positum sit dictas inhibitiones iudebite expeditas pro causae meritis revocari et aboleri; remedium tamen inflicto vulneri non satis esse dicunt, cum interea oporteat Episcopos aliosque inferiores judices in ipso causarum et judiciorum cursu otiosos immorari, jus suum judicialiter asserere et vindicare, et ad continendos in officio populos gravia saepe incommoda et dispendia subire. § 2. E contrario Nobis quoque, dum etiam in minoribus essemus, superiorum judicum responsiones audire contigit asserentium, memoratas querelas inanes esse nec ulli in- nixas fundamento, utpote ex hac unica re causam et originem habentes, quod inferioribus grave est obedien- tiae ac subjectionis iugum erga majora tribunalia, ipsisque 242 Appendix. nimis displicet sibi subditis appellationis beneficio suc- curri, § 3. Porro cum facile haec dissidia componi et succre- scentia litium semina avelli possint ; si quae a Sacra Tridentina Synodo, ab Apostolicis constitutionibus, et Congregationum decretis provide sancita sunt, debitae executioni maiidentur: Nos .idcirco ad conservandam Ecclesiae disciplinam restituendamque tribunalibus for mam eisdem canonicis legibus consentaneam, pro credito Nobis Apostolicae servitutis Officio opportune duximus consulendum. § 4. Inhaerentes itaque decretis ejusdem Sacri Concilii, necnon Congregationis Episcoporum, et Regularium, jussu et approbatione rec, mem. Clementis PP. VIII. praede- cessoris Nostri alias editis die 16 Octobris 1600; ' itemque aliis Congregationis particularis, jussu pariter et approba tione fel. rec. Urbani PP, VIII. similiter praedecessoris Nostri promulgatis die 5 Septembris 1626" eorumque de- clarationibus nuper superadditis a piae mem. Benedicto XIII. etiam praedecessore Nostro in appendice Concilii Romani,' aliisque Apostolicis constitutionibus hac de re alias editis et innovatis, et praesertim constitutioni piae mem. Gregorii XV., quae incipit: Inscrutabili,'' sub datum Romae apud Sanctum Petrum anno Incamationis Domi- nicae 1622 nonis Februarii : § 5. Districte praecipimus et mandamus, ne deinceps ab executione decretorum dicti S. Concilii Tridentini, in om nibus illis causis et negotiis, in quibus executio hujusmodi Episcopis et locorum Ordinariis, etiam uti Sedis Apostoli cae Delegatis, ab eodem Sacro Concilio vel dictis Aposto licis Constitutionibus appellatione vel inhibitione quacum que postposita commissa est, appellatio aliqua in tribu nalibus praedictis recipiatur, vel inhibitiones, citationes generales vel speciales, cum commissione inserta, monitoria et alia hujusmodi, per quae dictorum Decretorum executio ' In Collect. Lac. CC. Rec. i. 427. * Ibid. p. 438. ' Ibid, p, 529, * Apud Richter et Schulte, Cone. Trid. p. 539. Appendix. 243 retardetur aut Processus ad ulteriora in eadem executione suspendatur aut impediatur, quoquo modo concedantur. § 6. Itaque a quibuscumque mandatis, prohibitionibus, provisionibus et statutis tam in visitatione quam extra, pro divino cultu conservando et augendo et praesertim circa ea quae observanda et evitandasunt in celebratione Missae, aut alio quovis modo respiciunt execiitionem decreti S. Concilii sess. 21. de Ref. c. 8, et sess. 22. in decret. de observ. et evit. in celebrat, Missae. § 7. Item a decretis cogentibus clericos tam saeculares, quam regulares, etiam monachos, et exemptos, ad publicas processiones, servata tamen forma constitutionis san. mem. Pii v., quae incipit: Etsi Mendicantium : prout etiam a de cretis et provisionibus super praecedentia inter personas ecclesiasticas tam saeculares quam regulares in eisdem processionibus, vel assotiatione defunctorum, delatioiie um- bellae, et hujusmodi : necnon super observatione censu- rarum, etiam episcopalium, et festorum dioecesis, juxta dis- positionem ejusdem Sacri Concilii sess. 25. de Regular, cc. 12, 13. § 8. Item in omnibus iis quae ad curam animarum et Sacramentorum administrationem quoquo modo pertinent, et praesertim adversus monitiones, censuras aut alias pro visiones, per quas parochi aut alii curam animarum exer- centes diebus saltem dominicis et festis solemnibus plebes sibi commissas salutaribus verbis pascere compelluntur docendo ea quae ad salutem necessaria sunt, iuxta decre tum Sacri Concilii sess. 5, de Ref. c. 2, § 9. Item adversus deputationem vicariorum etiam per- petuorum cum assignatione congruae, per quos cura ani marum exerceatur, quoties plura beneficia curata ex dis- pensatione apostolica ab aliquo obtineantur; vel quoties eadem beneficia curata cathedralibus, collegiatis, seu aliis ecclesiis, vel monasteriis, beneficiis, seu collegiis, aut piis locis quibuscumque perpetuo unita et annexa reperiuntur; juxta praescriptum dicti.Sacri Concilii ,f«j'. 7. de Ref. cc, 5, 7, et juxta constitutionem san. mem. Pii V. quae incipit : Ad exequendum. 244 Appendix. § lo. Item adversus visitationem beneficiorum curatorum ut supra perpetuo unitorum, necnon quarumcumque eccle siarum quomodolibet exemptarum, prout etiam adversus decreta et provisiones ab Ordinario capiendas, ut quae in eis reparatione indigent reparentur, et cura animarum, si qua illis imminet, aliisque debitis obsequiis minime defrau- dentur, juxta dispositionem Sacri Concilii eadem sess. 7 de Ref. c. 8, et sess. 21, c. 7, § II. Item a decretis seu mandatis per quae Episcopi, etiam uti Apostolicae Sedis Delegati, in ecclesiis paroclii- alibus, aut baptismalibus, in quibus populus ita numerosus est ut unus rector non possit sufficere ecclesiasticis sacra mentis ministrandis et cultui divino peragendo, cogant rectores, vel alios ad quos pertinet, sibi tot sacerdotes ad hoc munus adjungere quot sufficiant ad sacramenta exhi benda, et cultum divinum celebrandum: aut etiam invitis rectoribus procedant ad constitutionem novarum parochi- arum cum assignatione competentis portionis, ubi ob locorum distantiam sive difficultatem parochiani sine magno incommodo ad percipienda sacramenta et divina officia audienda accedere non possunt, vel denique propter pauper- tatem et in caeteris casibus a jure permissis deveniant ad uniones perpetuas aliorum beneficiorum simplicium, non tamen regularium, iuxta dispositionem Sacri Concilii sess. 21. de Ref. cc. 4, 5, et sess. 24 similiter de Ref. c. 13, § 12. Item a deputatione coadjutoruma ut vicariorum pro tempore, vel aliis provisionibus ab Episcopo capiendis, etiam tamquam Apostolicae Sedis Delegato, quando illite- rati et imperiti parochialium ecclesiarum rectores sacris minus apti sunt officiis, cum assignatione partis fructuum pro sufficienti illorum victu: necnon a suspensione atque etiam a privatione illorum qui turpiter et scandalose vivunt et postquam praemoniti sunt in sua nequitia incorrigibiles perseverant, iuxta praescriptum ejusdem Concilii d. sess. 21. de Ref. c. 6. § 13. Item a translatione beneficiorum simplicium, etiam jurispatronatus, ex ecclesiis quae vetustate vel alias coUap- Appendix. 245 sae sint et ob eorum inopiam nequeant instaurari, vocatis iis quorum interest, in matrices aut alias ecclesias, cum omnibus emolumentis et oneribus: prout etiam a decretis cogentibus patronos, rectores, beneficiatos, aut parochianos sive populum, ad refectionem et instaurationem ecclesiarum parochialium servata forma Sacri Concilii d.sess. 21. c. 7. § 14. Item a censuris, sequestratione et subtractione fructuum, aut aliis quibuscumque provisionibus, pro cogendis ad residentiam parochis caeterisque omnibus quibus cura animarum incumbit, juxta decretum ejusdem Sacri Concilii sess. 23. de Ref. c. i. § 15. Item a denegatione, revocatione, suspensione, vel restrictione et limitatione facultatis audiendi confessiones, respectu eorum qui parochiale beneficium non obtinent, etiam si fuerint regulares, pro excipiendis confessionibus saecularium, juxta ordinationem Sacri Concilii sess. 23. c. 15, et Praedecessorum Nostrorum constitutiones, ac prae cipue illam fel. rec. Clementis X., quae incipit: Superna. § 16. Item in illis civitatibus aut locis, ubi vel parochiales ecclesiae certos non habent fines nec earum rectores pro prium populum quem regant, sed promiscue petentibus Sacramenta administrant, vel etiam nullae sunt parochiales, a divisione seu distinctione parochiarum earumque ordina tione sive institutioiie in titulum perpetuum, iuxta decretum Sacri Concilii sess. 24. de Ref. c. 13. § 17. Item a deputatione vicarii vel oeconomi cum assig natione congruae pro tempore quo vacat ecclesia pa rochialis: prout etiam ab indictione concursus, relatione examinatorum, necnon praeelectione et provisione Episcopi in eodem concursu iuxta definitionem Sacri Concilii eadem sess. 24. de Ref. c. 18. § 18. Item a mandatis seu decretis inhibentibus prae- dicationem vel publicas lectiones, aut coercentibus vel punientibus quoscumque, etiam exemptos tam saeculares quam regulares, qui in alienis ecclesiis quae suorum Ordi num non sunt absque Episcopi licentia, et in ecclesiis suis aut suorum Ordinum non petita illius benedictione aut 246 Appendix. ipso contradicente praedicarepraesumpserint; iuxta decre tum Sacri Concilii sess. 5. de Ref. c. 2., et sess. 24. similiter de Ref. c. 4,, et constitutionem piae mem. Gregorii XV., quae incipit : Inscrutabili, § fin., una cum declarationibiis con- tentis in constit. Clementis PP. X., quae incipit: Superna. § 19. Et generaliter in omnibus iis quae pertinent ad curam animarum et rectam Sacramentorum administra tionem, adversus visitationem, correctionem, coercitionem et quascumque alias provisiones Episcopi dioecesani, etiam quoad exemptos sive saeculares sive regulares, juxta laudatain constitutionem Gregorii XV., quae incipit: In scrutabili. § 20, Item adversus quascumque provisiones et decreta pro conservanda aut restituenda clausura sanctimonialium, aut pro correctione seu punitione eorum, qui circa personas intra monasteria degentes aut circa clausuram vel circa bo norum administrationem deliquerint. Prout etiam ab ex amine pro approbatione vel reprobatione confessariorum sive regularium sive saecularium, quomodocumque ex- emptorum, et tam ordinariorum quam extraordinariorum, pro excipiendis confessionibus monialium etiam regulari- bus subjectarum. Itidemque a decretis vel aliis quibus cumque provisionibus cogentibus administratores sive saeculares sive regulares quomodolibet exemptos ad red- dendam singulis annis rationem bonorum ad monasteria sanctimonialium hujusmodi pertinentiura : ac demum a quibuscumque decretis super araotione capellanorum, sacristarura, et aliorum quorumcumque officialiura et mini strorum, tam saecularium quam regularium, ipsis moniali- bus vel earum ecclesiis inservientium, juxta dispositionem Sacri Concilii sess. 25. de Regular, et Monial. cc. 5, 9, 10, ser vata tamen quoad regulares et exemptos forma praedictae constitutionis rec, mera. Gregorii XV,, quae incipit: In scrutabili. § 21. Item adversus pastoralera visitationem dioecesis, et praesertim monasteriorum, comraendatorura, abba- tiarum, prioratuum, et praeposituiarum, in quibus non viget Appendix. 247 regularis observantia, necnon beneficiorum tam curatorum quam non curatorum saecularium et regularium qualiter- cumque commendatorum, etiam exemptorum: prout etiam ab executione eorum quae in ipsa visitatione mandata, de creta aut judicata fuerint. Necnon similiter a quibus cumque decretis, provisionibus, etiam extra visitationem, pro conservatione vel reparatione ecclesiasticae disciplinae, quoad vitam, mores et honestatem quorumcumque cleri corum, luxum, commessationes, choreas, lusus, crimina et saecularia negotia fugienda atque evitanda; juxta plura decreta dicti Sacri Concilii, et praesertim sess. 6, de Ref. c. 4; sess. 13. e. i; sess. 14. f. 4; sess. 21. cc. 8; sess. 22. ce. 1,8; et sess. 24. c. 10. ad formam tamen decretorum S. C, Episco porum de mandato san. mem. Clementis VIII. editorum anno 1600. § 22. Item a decretis cogentibus praesentatos, electos, vel nominatos a quibusvis ecclesiasticis personis, etiam nostris et Sedis Apostolicae nuntiis, ad quaevis ecclesiastica bene ficia, ad se subjiciendum examini Ordinarii, antequam in- stistuantur, confirmentur vel adraittantur, quemadmodum cavetur sess. 7. de Ref. c. 13. § 23. Item a denegatione sacrorum ordinum vel ad- scensus ad alios majores; prout etiam adversus suspensio- nera ab ordinibus jam susceptis ob crimen occultum, sive ex informata conscientia, juxta dispositionem Sacri Concilii sess. 14. de Ref. cc. i., 3.; et sess. 21. c. i.; et sess. 23. c. 16. § 24. Item a praefixione termini intra quem regularis Epi scopo non subditus, qui intra claustra raonasterii degat et extra ea ita notorie deliquerit ut populo scandalo sit a suo Superiore puniri debeat, ac de punitione ipse Episcopus certior fieri, iuxta decretura Sacri Concilii sess. 25. de Regu lar, c. 14., et Const, fel. recon Clementis PP. VIII., quae incipit: Suscepti muneris ; necnon adversus punitionem et correctionem eorumdem regularium, qui circa personas in tra septa degentas aut circa clausuram ipsara deliquerint ; juxta praedictam constitutionem Gregorii XV. quae incipit: Inscrutabili. 248 Appendix. § 25. Item a censuris aut aliis provisionibus contra concu- binarios, et praesertim clericos etiam retinentes domi aut extra mulieres suspectas, juxta praescriptum Sacri Concilii sess. 24. de Ref. Matrim. c. 8.; et sess, 26, de Ref. c. 14. § 26. Item adversus privationem privilegii fori, et alias provisiones contra clericos non incendentes in habitu et tonsura, et in aliis casibus a Sacro Concilio praescriptis sess. 14. de Ref. c. 6.; et sess. 23, similiter c. 6. § 27. Prout etiara ab examinej approbatione, vel repro batione patrimonii sacri, pensionis ecclesiasticae, aut bene ficii, quoad clericos promovendas ad sacros ordines; juxta dispositionem ejusdera Concilii sess. 21. deRef. c. 2, § 28. Itera adversus convocationemCapituli, quam faciat Episcopus ad aliquid deliberandura et juxta vota ipsorura capitulariura concludendum, quoties de re ad suum vel suo- "rura commodum spectante non agatur, juxta decretum Sacri Concilii sess. 25. de Ref. e. d.. § 29. Itera a mandatis seu decretis super conversione tertiae partis fructuura et quorumcumque proventuura et obventionum, tam dignitatum quara canonicatuum, persona- tuum, portionum, et officiorura in distributiones quotidianas, earuraque divisiones inter dignitates obtinentes et caeteros divinis interessentes in ecclesiis tara cathedralibus quam collegiatis in quibus nullae sunt distributiones hujusmodi quotidianae, vel ita tenues ut verisirailiter negligantur; juxta constitutionem ejusdera Concilii sess,. ii. deRef. e. 3., et sess. 22. similiter de Ref. f. 3 § 30. Itera adversus exercitiura facultatum Episcopis corapetentium super executione omnium piarum disposi tionum, tam in ultiraa voluntate quam inter vivos, in casibus a Jure concessis, juxta dispositionem Sacri Concilii sess. 22. deRef c.Z. § 31. Item a visitatione hospitalium, coUegiorura quo- ruracumque, et confraternitatum laicorum, eleemosynarum, montiura pietatis sive charitatis, et oranium piorura locorum quomodocumque nuncupatorum, etiamsi eorura cura ad laicos pertineat aut exemptionis privilegio sint munita: ac Appendix. 249 denique a cognitione et executione eorum oraniura, quae ad Dei cultum aut animarum salutem, seu pauperes susten- tandos instituta sunt, iuxta dictura decretura Sacri Concilii sess. 22. deRef. c. 8. § 32. Item a decretis seu mandatis cogentibus adminis tratores tam ecclesiasticos quam laicos, etiam exemptos, fabricae cujusvis ecclesiae etiam cathedralis, hospitalis, con- fraternitatis, eleemosynae, montis pietatis, et quorumcura- que piorum locorum, ad reddendam singulis annis ipsi Ordinario rationem suae adrainistrationis, nisi aliud in insti- tutione et ordinatione talis ecclesiae seu fabricae expresse cautum fuerit; iuxta decreta Sacri Concilii sess, 7 de Ref. c. 15.,; sess. 22. c. 9,, et sess. 25, c. 8. § 33. Item a decretis compellentibus notarios etiam Apos tolica, Imperiali aut Regia auctoritate creatos, et scribentes in causis ecclesiasticis vel spiritualibus, ad se subiiciendurn examini, eorumque reraotione vel suspensione in casu delicti vel imperitiae; juxta praescriptura Sacri Concilii dicta sess. 22. c. 10. § 34. Item ab erectione seminarii, et taxatione quarum cumque dignitatura, personatuura, officiorum, praebenda- rutn, portionura, abbatiarum, et prioratuura cujuscumque Ordinis, etiam regularis, hospitalium, quae dantur in titu^ sura vel adrainistrationem, et beneficiorum quorumcuraque, etiam regularium, etiara jurispatronatus, etiam exemptorura, etiam nullius dioecesis, vel aliis ecclesiis, monasteriis, hospi- talibus, et aliis quibusvis locis piis, etiam exemptis annexo- rum,ac quorumcumque aliorum ecclesiasticorum redituura seu proventuum ad fabricas ecclesiarum, confraternitates et monasteria omnia, non taraen mendicantium, pertinentiura, necnon decimarum quacumque ratione ad laicos atque etiam milites cujuscumque militiae aut ordinis, Hierosolymitano excepto, spectantium, pro ejusdem seminarii manutentione: prout etiam ab unione et applicatione aliquot beneficiorum simplicium; necnon a decretis cogentibus eos, qui scholas- terias obtinent, vel quibus lectionis vel doctrinae raunusest annexum ad docendum per se ipsos vel idoneos substitutos; 250 Appendix. et generaliter a mandatis et provisionibus quae quoquo modo respiciunt curara, directionem et administrationem seminarii, plenamque executionem decreti editi a Sacro Concilio super collegio puerorum in singulis cathedralibus instituendo, sess. 12. de Ref. c. 18. § 35. Item a raandatis, seu decretis cogentibus oeco- noraos, vicarios capitulares, ad reddendara rationem ad rainistrationis per eos gestae sede episcopali vacante, juxta praescriptum Sacri Concilii sess. 24. de Ref. c. 16, § 36, Item a coraminatione excommunicationis a Jure latae, et a sententia excommunicationis latae ab homine, suspensionis, et interdicti, nisi appellatio fuerit interposita ex capite nullitatis: et e converso a sententia absolutionis ab eisdem censuris ecclesiasticis. § 37. Et generaliter ab executione aliorura quorumcura que decretorura dicti Sacri Concilii Tridentini, Episcopis, atque Ordinariis locorum demandata ab ipso Concilio, etin constitutione fel. rec. Pii Papae IV,, quae incipit: Benedic tus Deus. § 38. Volumus, praecipimus et mandamus, quod ab Ar- chiepiscopis, Patriarchis, seu Primatibus, aliisque judici bus ecclesiasticis, etiam Nostris et Sedis Apostolicae nuntiis, vel de latere Legatis, etiam Sanctae Romanae Ecclesiae Cardinalibus, atque etiam Camerae nostrae generali Au- ditore, Signaturae Justitiae Praefecto, caeterisque judicibus Romanae Curiae, eorumque vicariis, et officialibus, cita tiones generales vel speciales cum commissione inserta, monitoria, et alia hujusmodi cum inhibitione, per quara executio decretorum, mandatorum et provisionura hujus modi retardetur, suspendatur, aut impediatur minirae concedantur, et quatenus nunc aut imposterum concessa fuerint nuUatenus inhibeant atque ab Episcopis aliisque locorum Ordinariis impune sperni possint; quacumque consuetudine etiam immemorabili, vel quovis privilegio, aut stylo concedendi inhibitiones in causis praedictis, tametsi tem porarias, penitus exclusis. Nos enim citationes, et monitoria aliter quam ut praefertur concessa vel impo- Appendix. 251 sterum concedenda, nulla atque irrita declaramus et pro nullis atque irritis haberi volumus et mandamus: Decer- nentes, quod adversus decreta, raandata, et provisiones ejusmodi, quas vel quae ab Episcopis aliisque locorum Ordinariis fieri vel capi contigerit in causis et negotiis praedictis, vel simplex durataxat et extrajudicialis recursus per viam supplicis libelli ad Nos et Successores Nostros Romanos Pontifices, vel respective et juxta causarum naturam et qualitatem appellatio ad quos de jure, in solo devolutivo et sine retardatione vel praejudicio legitimae executionis, recipi et adraitti possit. § 39- Quoniam vero in hisce ipsis negotiis et causis in quibus inhibitiones canonicam executionem impedientes aut suspendentes concedi non debent, dari possunt casus qui per ipsum Sacrum Concilium Tridentinum, vel juxta ejus montem per Apostolicas constitutiones et Sacrarura Con gregationum declarationes aut communem Doctorum sen tentiam, a praefata generali reguia de non coneedendis inhibitionibus eisque posthabendis excipiuntur, quique ut plurimum non aliter quam prudenti judicis arbitrio secun dum particulares facti circumstantias aestimari possunt: hinc Nos, ne sub ejusmodi praetextu inhibitiones ut supra prohibitae vulgo et sine ullo delectu etiam in casibus non exceptis concedantur: Statuimus et mandaraus, quod in dictis causis et negotiis superius expressis Metropolitani, Patriarchae, Primates aliique judices praedicti et praesertim Camerae nostrae generalis Auditor ejusque Locumtenentes, et Signaturae Justitiae Praefectus ejusque Auditor, ad quos in contingenti casu pro obtinenda inhibitione recursum haberi contigerit, etiamsi asseratur casum ilium a Sacro Concilio, vel Apostolicis constitutionibus quacuraque de causa exceptura esse: nihilominus literas citatorias vel monitorias cum inhibitione hujusmodi non concedant, nisi prius ex facti circumstantiis in supplici libello a parte re- currente clare ac dilucide exponendis et cura aliquo docu- mento seraiplene saltem verificandis, eisdera suramarie apparuerit casum ilium esse de exceptis et propterea Epis- 2 52 Appendix. copo vel Ordinario loci inhibendum esse ne ad ulteriora procedat. Tunc enim et non alias, et postquara ipsi judices, quorum conscientiam hac in parte oneramus, super dicti supplici libello manu sua rescripserint quod inhibitio con cedi potest, libellusque cum rescripto ejusraodi in actis productus fuerit diligenter ibidem custodiendus et asser- vandus, liceat eorum notariis sive actuariis literas citatorias cum dicta inhibitione expedire et parti recurrenti tradere, ita tamen ut in earura calce expresse adjiciatur sequens clausula: " Nos enim, attentis juribus et supplici libello Nobis praesentatis atque in actis exhibitis, sic, ut prefertur, inhibendum esse speciali rescripto mandaviraus." Alias literae ejusraodi sine tali clausula nullam vim inhibendi habeant in casibus praedictis. § 40. Et nihilominus si notarii sine dicto speciali rescrip to super supplici libello aut sine productione illius in actis aut sine praedicta clausula citationes ullas aut monitoria cum inhibitione sub quocumque praetextu seu colore ex pedire ac tradere praesumpserint, etiamsi illae .aut ilia a judice subscripta fuerint, poenara infamiae et perpetuae in- liabilitatis ad officium notarii in causis ecclesiasticis exer cendum, et quoad illos Camerae Nostrae generalis Audi- loris, aut aliorum Romanae Curiae judicum superius ex- pressorura etiam quinquaginta ducatorum auri de Camera, pro una medietate Caraerae Nostrae Apostolicae et pro alia ipsi parti recurrenti et in causa interesse habenti, sin minus alicui ex locis piis, arbitrio Nostro Nostrorumque successorum destinando, applicandam ipso facto incurrant. § 41. Ad haec, similiter inhaerentes dispositioni ejusdem Sacri Concilii sess. 7. de Ref. c. 14., et sess. 14. c. 5., necnon etiam decreto piae mem. Benedicti XIII. hac in re proraiil- gato inter ejus additiones ad decreta Urbani Papae VIII. in appendice ad Concilium Romanum, voluraus et manda mus quod clerici saeculares aut regulares extra monaste rium degentes quomodolibet exempti in civilibus causis raercedura et raiserabilium personarura, etiarasi certum judicem a Sede Apostolica deputatum in partibus habeant : Appendix. 253 in aliis vero, si ipsum judicem non habuerint, coram loco rum Ordinariis tamquam ab ipsa Sede delegatis con veni ri in prima instantia, et jure medio ad solvendum debitum eogi possint. § 42. Quo vero ad personas non exemptas, inhaerendo similiter dispositioni ejusdem Sacri Concilii sess. 13, de Ref. c. I., et sess. 22. c. 7., et sess. 24, e. 20. necnon supradictis de cretis generalibus Congregationis Episcoporum editis anno 1600 cum novissimis additionibus seu declarationibus piae mem, Benedicti XIII. in appendice Concilii Romani: Volu mus, statuimus et mandamus quod causae oranes tam civiles quam criminales ad forum ecclesiasticum pertinen tes, exceptis privilegiatis quae ex eodem, Concilio vel alias juxta canoiiicas sanctiones apud Nos et Sedem Apostolicam tractari possunt aut debent, coram Ordinariis locorum durataxat in prima Instantia cognoscantur, neque a Metro politanis, Patriarchis, aut Primatibus, aliisque judicibus ecclesiasticis, etiam Nostris et Sedis Apostolicae nuntiis vel de latere legatis, aut Caraerae Nostrae generali Audi- tore, et Caeteris quibuslibet Curiae Nostrae judicibus ad se avocari vel aliis committi possint, nisi pei- viam legitimae appellationis et in casibus ut supra non probibitis ad ip sorum tribunalia deferantur, § 43, Appellationes autem non recipiantur neque inhibi tiones vigore illarum concedantur, nisi prius constiterit quod nedum per ligitimam personam et intra legitima tem pora vere appellatum fuerit; sed etiara quod appellatum fuerit a sententia definitiva vel habente vim definitivae, aut a gravamine quod per definitivam sententiam reparari non possit: idque per publica documenta qiiae realiter in actis exhibeantur; tunc enim et non antea, judici . ad quem ap pellatum fuerit, in causa se intromittere, citationes et inhi bitiones concedere liceat; dummodo tamen concedantur cum inscriptione tenoris sententiae aut decreti definitivi seu vim definitivae habentis, vel damnum per definitivam irreparabile inferentis ; alias citationes, processus, et inde sequuta quaecumque sint ipso iure nulla atque impune sperni possint. 254 Appendix. § 44. Quod si appellans asserat, sententiae aut decreti exemplura authenticum culpa judicis a quo, vel notarii sive actuarii habere non posse, tura saltem copiam simplicera sententiae seu decreti in actis producere teneatur, ejusque tenori in literis inhibitorialibus inserto adjicienda erit, prout adjici voluraus, et mandamus, in earum corpore ex pressa conditio: "Quatenus tamen tenor insertus vere et in substantialibus cum originali concordet eodemque originali praesentes literae sint in tempore posteriores, alioquin nullae et irritae censeantur": Et si secus factum fuerit, inhibitiones aliter concessas nuUatenus afficiant, et notarii sive actuarii qui illas expediverint incidant in poenas superius expressas. § 45. Cum vero a gravaraine quod per definitivam repa rari nequit appellatam fuerit, si quidem res sit de carcera- tione jam secuta cum mandato verbali, non aliter expediri poterunt inhibitiones vigore appellationis quam constito prius de ipsa carceratione per depositionera saltem duorura testium. Interim tamen appellans in eodem quo reperitur carcere permanebit, donee aliter servatis servandis judica tum fuerit. Ubi vero agatur de censuris jara prolatis, vel de coraminatione carcerationis, torturae, aut censurarum, observetur omnino dispositio dictorum decretorura Congre gationis Episcoporum sub rec. mem, Clemente VIII., juxta additiones et declarationes piae mem, Benedicti XIII, § 46. Ulterius in praedictis causis in prima instantia pen- dentibus vel aliis superius expressis in quibus non adraitti- tur appellatio in suspensivo, citationes quaeexpediri soient coram Cardinali Signaturae Justitiae Praefecto, vel ad ef fectum comparendi vel pro adeundo eamdera Signaturam, tametsi ab ejus Auditore subscriptas, vim inhibendi nuUa tenus sortiri posse volumus easque ad praedictos alios durataxat effectus, comparendi scilicet vel adeundi Signa turam, expeditas censeri, non autem ad retardandam exe cutionem vel suspendendum processum ad ulteriora, § 47. Denique quoad causas privilegiatas quae ut prae fertur in prima etiara instantia apud Nos et Sedera Apos- Appendix. 255 tolicam tractari possunt, nihil ex antiqiio rautandum esse volumus, sed monitoria in illis coram Caraerae Nostrae generali Auditore vel ejus locumtenentibus, prout hactenus laudabiliter observatum est, expedienda esse, juxta prae scriptum Apostolicarum constitutionum, et praesertim fel, rec. Pauli V. Praedecessoris Nostri in constitutione, quae incipit : Universi, necnon praedictarum additionum et de- darationum Benedicti XIII., exceptis tamen monitoriis inti- mandis ultra montes, in quibus ad evitanda scandala et liti gantium incomraoda, volumus omnino renovari et observari stylum, qui olim in eo tribunali vigebat, id est, quod ad ejusmodi monitoriorum expeditionem non aliter procedatur quam oblato prius ipsi Auditori vel alteri ex ejus Locumte nentibus coram quo monitorium expediendum erit supplici libello universam facti speciem clare et dilucide continente, et praevio etiara ejusdem judicis rescripto quod monitorium expediri possit penes causae notarium vel actuarium dili genter custodiendo. Etsi aliter quara praefertur et absque dicto supplici libello ac speciali judicis rescriptodicta moni toria ultra montes intimanda expedita fuerint, notarius sive actuarius et substitutus qui ilia expediverit ipso facto inci- dat in poenas superius expressas. § 48, Omnia et singula hactenus a Nobis disposita ad rectam judiciorum methodum restituendam eo irapensius ab omnibus exacte custodiri et observari mandaraus, quo clarius constat hac nostra constitutione non novas ferri sed antiquas instaurari leges provide sapienterque institutas et temporum injuria ac hominum fraude obsoletas, et novo Pontificiae auctoritatis praesidio communiri ordinera pro cedendi in causis jaradiu praescriptum superioribus et in ferioribus tribunalibus a Sacra Tridentina Synodo, Congre gationum decretis, et Praedecessorum Nostrorum Roma norum Pontificum constitutionibus, aliisque ordinationibus Apostolicis. Ideoque si ipsi judices, omni semoto ut par est, humanae cupiditatis affectu prae oculis solum habue rint quae tam maturo tamque salubenimo sunt constituta etordinata consilio, facile eorum quilibet agnoscetquae sui 256 Appendix. et quae alieni ministerii partes esse debeant in admittendis ac respective rejiciendis causarura appellationibus et inhi bitionibus : atque ita fiet, ut non solum unicuique in suo ordine debita jurisdictionis et auctoritatis praerogativa ser vetur, sed etiam ut exstinctis prorsus ac radicitus avulsis omnium contentionum et discordiarum serainibus rautuo charitatis vinculo tribunalia socientur, et inter ilia recte agendi disciplina Christiano populo utilis et necessaria re stituatur. § 49. Demura ut exemplo Nostro omnes praemissorum executioni caute et pro viribus incumbant, et ut praesertim notariis, tabellionibus et eorura actuariis et substitutis ora nis contraveniendi ansa praecidatur, volumus et expresse mandaraus processus et acta causarum in Nostra Romana Curia coram quovis judice pendentium ac inhibitiones, ap pellationes, monitoria aliasque citatoriales et inhibitoriales literas, quas ab iisdem notariis eoruraque substitutis sci- entibus vel insciis judicibus vel alias quomodolibet in pos- terum expediri contigerit, sedulo recognosci et examinari per fide dignas personas a Nobis opportune deputandas, quae si deprelienderint easdem inhibitiones contra hujus constitutionis formam et ad subterfugienda Ordinariorum et Episcoporum judicia quaesito gravaminis colore fuisse perperam concessas et expeditas, in eosdem notarios et sub stitutos canonicis poenis aliisque a Nobis supra expressis severe pro modo culpae animadvertant. § 50. Decernentes has praesentes literas semper firmas, validas et efficaces existere et fore, suosque plenarios et integros effectus sortiri et obtinere, ac ab illis ad quos spec tat et pro terapore qtiandocumque spectabit inviolabiter et inconcusse observari: sicque et non aliter in praeraissis per quoscumque judices ordinarios et delegatos, etiam cau sarum Palatii Apostolici Auditores, ac Sanctae Romae Ec clesiae praefatae Cardinales, etiam de latere Legatos, et ejusdem Sedis Nuntios, aliosve quoslibet quacumque prae- erainentia et potestate fungentes et functuros, sublata eis et eorum cuilibet quavis aliter judicandi et interpretandi Appendix. 257 facultate et auctoritate, judicari et definiri debere, ac irri tum et inane si secus super his a quoquam quavis auctori tate scienter vel ignoranter contigerit attentari. § 51, Non obstantibus praeraissis, ac quatenus opus sit. Nostra et Cancellariae Apostolicae reguia de jure quaesito non tollendo, aliisque constitutionibus et ordinationibus Apostolicis, necnon quibusvis etiam juramento, confirma- tione Apostolicaj vel quavis-firmitate alia roboratis statutis et consuetudinibus ac usibus et stylis, etiam immemorabi- libus, privilegiis quoque, indultis et Literis Apostolicis, praefatis aliisque quibuslibet judicibus, curiis, tribunalibus, et personis, etiam quantumvis sublimibus et specialissima raentione dignis, sub quibuscumque tenoribus et formis ac cum quibusvis etiam degoratoriarura derogatorlis aliisque efficacioribus, efficacissimis et insolitis clausulis irritanti^ busque decretis, etiam motu, scientia, et potestatis plenitu- dine paribus, ac consistorialiter, et alias quoraodolibet in contrariura praemissorum concessis, editis, factis, ac pluries iteratis, et quantlscumque vicibus approbatis, confirmatis et innovatis: Quibus omnibus et singulis, etiam si pro il lorum sufficienti derogatione de illis eorumque totis teno ribus specialis, specifica, expressa et individua ac de verbo ad verbum, non autem per clausulas generales idem impor tantes, mentio seu quaevis alia expressio habenda aut aliqua alia exquisita forma ad hoc servanda foret, tenoies hujusmodi, ac si de verbo ad verbum nihil penitus omisso et forma in illis tradita observata exprimerentur et insere- rentur, praesentibus pro plene et sufficietur expressis et in- sertis habentes, illis alias in suo robore permansuris, ad praemissorura effectura hac vice durataxat specialiter et expresse derogatura esse volumus, caeterisque contrariis quibuscumque. § 52. Ut autem eaedem praesentes literae ad omnium notitiam facilius deveniant, volumus illas seu earum exem pla ad valvas ecclesiae Lateranensis et basilicae Principis Apostolorum necnon Cancellariae Apostolicae Curiaeque Generalis in Monte Citatorio, ac in Acie Campi Florae de 258 Appendix. Urbe, ut moris est, affigi et publicari sicque publicatas et affixas omnes et singulos quos illae concernunt perinde arctare ac afficere, ac si unicuique eorura nominatim et personaliter intiraatae fuissent: ipsarum autem literarum transumptis seu exemplis etiam impressis, manu tamen alicuius notarii publici subscriptis et sigillo personae in ecclesiastica dignitate constitutae munitis, eamdera pror sus fidera tara in judicio quara extra illud ubique locorum haberi, quae haberetur ipsis praesentibus, si forent exhi- bitae vel ostensae. § 53. Nulli ergo omnino hominum liceat hanc paginam Nostri decreti, constitutionis, declarationis, annuUationis, admonitionis, et voluntatis infringere, vel ei ausu temerario contraire; si quis autem hoc attentare praesumpserit, in- dignationem Omnipotentis Dei ac Beatorum Petri et Pauli Apostolorum ejus se noverit incursurum. Datum Romae apud Sanctam Mariam Majorem anno In camationis Dominicae millesimo septingentesimo quadra- gesirao secundo, tertio Kal. Aprilis, Pontificatus Nostri Anno II. P. Card. Pro-Datarius. P. Cafd. Passioneus. Visa de Curia. N. Antonellus. f. B. Eugenius. Registrata in Secretaria Brevium. Publicata de 18 Aprilis ejusdem anni. INDEX. The references are to pages and notes, the latter being indicated by superior figures. The main places ar-e distinguished by bold type. Abolition, 104, 190 ff. Absence, sec Contumacy, Absolution frotn censures, 186, Abstract, see Auditor. Accomplices, 98 ff. Account-books, 124, 147. Accusation, sec Charge ; Pro cedure. Accused, the, 63 ff., 7/ff. ; cita tion, examination, 71, 96 f., 14S, 16S ; oath, 98 ; confession, 98 ff ; representation, 77, 169. Acquittal, 1401! Act^t Sanctae Sedis, 38, 44, a", 59\ 62, 64\ 97, 112', 138^ 142', 149'- Acts of the court, 52, 5S'\ 89, 147*, 172, 237^ 239. 6W also Record, ActuaiMj;, 54, S7, S9'. 6o^ Sec also Clerk. Address, false, 42 ; imperfect, 124, Administrative acts, measures, 6, 80 f., 165, l8o. See also Exttaiuti. Administrator of diocese, 29'. Admissions, scy Confession. Admonitions, canonical, 81 ff., 144 ff„ 163; paternal, 78, 150, 163' ; legal, formal, 1 50 ff,; end, 145 ; conditions, 146 ; object, 149; qualities, 152. Advocate,6i, 7i,74ff„ 169, 171 ff,; A, approval, 75 ; oath, 75, 172 ; duties, 7$ ff. : fees, 71, 76, 195 ; layman, 74 f. ; in contumacy, 137; in appeal, 1S5. Sec also Defence; Final pleading. Affidavit, 183. Affinity, 113, 133. Age of'judge, 48 ; defendant, 99 ; witnesses, 103 f. Allegata et probata, \ 128, 169, Allegations, ( 171'. Alibi, 132. America, see United States. Analecta fiiris Pontificii, 43^ Anonymous letters, complaints, 70, 166. Apostoli, / o 3 OS Apostles, [ 'S^ ' '8+ • Apparitor, 61 f. Appeal, 50, 60, 90, IOI, 145, 775 ff. ; judicial, extrajud., 175 f . ; instances, 31 ff., 39 ff., 178; restrictions, 178; effects, 179 ff. ; sham A., 179' ; proce dure, 182 ff, ; terms, 182, 236 ; costs, 195; per saltum, 38°; from delegate, 33 f. ; from in junction, 153; before S. C, 234 ff. Appearance, sec Citation. Appellare, appellatio, 176', Appellate competency, 38 ff. ; A. judge, 38, 175^; third A. court, 40. Appellee, 175'. Approval of advocate. 75. Arbiters, 33, 134 f. ; A. compro missarii, 13s'. 5f*aAff Triors, Arbitrary terms, 128. .Arbitratores, 135'. .'Vrchbisliop, 29, 39°. See also Metropolitan. Architects, 122'. Archives, sS'', 147. 26o Index. Archivist, 58°. Arrest of judgment, 190'; pro ceeding, 192 f. See also De- prehensio. Articuli et positiones, 1 29', Assassination, 100', Assessors, 51. Attentata, \ ,„. Attentats, \ '77. '»'• Attorney, 7ff ff., 120 ; A. general, 64'. Auditor, S2ff., 120''; impartiality, charity, 97 ; layman, 56 ; recu sation, 133'°, 136°; abstract, 53N 59". 85, 118, 120, /seff,, no, 237^ 239; A. in appeal, 186; in matrimonial case, 54^ Auditorium metropoliticum, 39°. Authenticity, 122'. Autographa, 184. Avoidance, plea in, 169. Baltimore, II. PI, C, 29*, sg". III. PLC, 3, 39', 54^ 59', 65=, 69, 75. ii9> 148', 196- Bar, a clerical, 76; plea in B., 130, Bench, the judges', 133, 173. Benedict XIIL, 23, 77, 98, 1 96. Benedict XI v., 22 i.,^o.\&o. Cst. Ad militantis, 241 ff. Benefices, 181. Benefit of the clergy, see Privi- legium fori. Beneplacitum, ad, suspension, i6i. Bias of auditor, 97 ; of judge, 132, Bill of complaint, 67. Bishop as ordinaiy, 28, 31, 38, 50 f., 69; as delegate apost., 31 ; duties in criminal cases, 65 f. ; pardon, 192 ; trial of B., 37- Bizzarz 's collectanea, 43'. Blind witnesses, 103. Books of accounts, 124, Boundaries of parishes, 181. Buildings, eccl., 181. Btirden of proof, 95, 127. Burial, Chnstian, 194. Calumnia, 179', 196 f, Canada, 41'. Cancellings, 124. Canon and Civil criminal law, 17 ff. Canonry, 41. Capital punishment (sentence), 18", 78, 101, 104, 138, I90^ Cardinal's jurisdiction, 29. Casting vote, 51, Caution and discretion, 147, 153, 163, i66. Censures, 72, 145', 154, 180 ff. Absolution, "186 ; execution, I93-' Challenge of witnesses, 121 f., 169 ; of auditor, 133'° ; of judge, 132. See also Recusa tion. Chancellor, 55, 57, 59', 65, 74; layman, 59; recused, 136. Chancery, 154, 164, 172, 175. See also Record. " Change of venue, 47'. Charge (accusation), 30, 65', 67, 69 f., 72, 85, 95, 166 f,, 192; new C, 173. Church and State, /7 ff., 22i ¦ Church records, 124. Circumstantial evidence, 125 f. ; conviction, 127 ; exceptions, 131. See also Presumptions. Citation of accused, 32, 46", 61, 72,89, 133. 136', 153. 155'. 168, 172 f. ; of witnesses, 11 1 f. Clauses, legal, 29 f., 87, 89^ 90/ 140, 141, 158, 160, 178^. Cleric in civil court, 167, 223, 240. Clerk, 55, 57,65, 96, 98, 122, 163; hiyman, 58 ; fees, 59 ; recused, 136, Close, right to, 173. Coadjutor- bishop, 29, 37. Cognitio summaria facti, 53", 69. See also Inquest. Collections of Roman dedsions, 43',=,=. College of judges, 50 f., 133 ff,, 172, 174; of judges-delegate, 33 ; of auditors, 56. Index. 261 Collusion, 115. Commentators, 5. Commissio Investigationis, 51', 56^ 75, 151, 171'- Instr, S. C, 226 ff. Commission, general and spe cial, 32, 66, 68 {., 1 30, 168, 186. Common law, 4, 37", 47', 52', 9l^ 94 f., 98, 102, 147', 170', 185*, l9o^ Communications, privileged, 113- Commutation of sentence, 192. Comparison of writings, 123. Competency, judicial, 37 ff. ; of judge, 98 ; of witnesses, 102 ff. ' Complaints, 190. 5^1? «/.?(? Charge; Querela. Compounding of felony, 190'. Compromise, see Transaction. Condusion of auditor's inquest, 96, 114, 119, 170; of final pleading, 173. Conclusiones procuratoris fisc, 120. Conditions'for trial, 105 ff. ; pre vious inquest, 146 f. ; canon. admonitions, 146 ; injunctions, 152 ff. Confession, judicial, extrajud., 71, 90 ff.; requisites, 99 ff. ; effect, loi ; obligation, loi. Confrontation, 73, 120 ff. Congregations, Roman, 42 ff. ; decisions, 23 ff,, 27, 90, 140; procedure, 142, 234 ff. ; costs, 196, Conjectures, see Indicia. Consanguinity, 113, 133, Contempt of court, see Contu macy. Contestatio delicti, 31", 95, 133. Continent proceeding, [ Continenti, in, Conittmacia, loi, 109 73,112', 155,178, /-- . ^189, I94''; pro- Contumacy, ^ ^gg^j.^^ jjg ff Conviction by testimony, 104, ,107 ; by circumst, evid., 127. Copies (transcript) of acts, sen tence, defence, injunction, etc, 58^ 61, 142, 168, 172, 174, 184, I85^ 236'. Correcting statements, 75, loi, 109, 1 18, 169. Correction, corrective measures, 17, 78, 140, 145', l48^ 149, 151, 167, 182. Correspondence, 124, Costs, judicial, 193 ff. Counsel, see Advocate. Counter-evidence, 83, 85', 185. Credibility of witnesses, 102 ff., 105, Crime, occult or public, 100, 158 ff. Crimina excepta, 100'. Criminal law, formal and mate rial, 16, 17 ff. Cross-examination, 115, 119^ Cum Magnopere, 50', 52', 55', 75, 77, 89, 112', 129, 142*, 171', 172^ 174', 186'' ; text, 199 ff. - Cursores, 62. Custom, 16, 22, 27, 52', 56, 60. 69, 112, 185. Deaf and dumb, 48, 103. Dean of chapter, 41'. Death of delegator, 32 ; of dele gate, 33. Decorum, clerical, 146. Decreta S. C. Epp. on appeals, 234 ff. ¦Decretals, 5, 31, 48', 72. Decretum Gratiani, 21. Default, in, 137*, 139, 178, 185. Defence, 71 ff., 85, 119, 148; manner, 75 f , ; final pleading, 143, 172 ff. ; pleas, 169 ; pro ceedings, 127 ff., 168. Defendant, 64, 84. Defender, 72. See also Advo cate, D. matrim., 196. Degradation, 93, 138, l90^ 194. Delays, see Dilationes, "Terms. Delegatiorl, a jure et ab hotnine, 30 ff. ; special and general, official and persotial, 31' ; sub- delegation, 32; extent, 33 ; ap peal, 33 ; joint D., 33. 262 Index. De Montault, Decreta S- C. Imm., 43^ Denuntiatio, 27, 69 f,, 83 ; evan gelical, 145'. Deposition from office, 138, 194. Depositions, see Witnesses. Deprehensio, see Forum. Devolution, 177 ff. Dignitas, i,\'. Dilationes, 88, 127°, 129'. See also Terms. Disciplina, 6, 17. Documents (instruments, writ ings}. 35. 61, 58', 89, 93; in evidence, 123 ff. ; D. authen tic, genuine, public, private, 123'ff. See also Signature. Domicile, 44!. Dominus litis, 77. Duplicatio, 132'. England, 4I^ 63. Enmity, 104, 133, 136. ''' ' " Erasures in documents, 124. Evidence, judicial, 54, 91 ff, ; extrajudicial, 114, 122 ; kinds, 92, 106 f. ; weight, 92 f. ; pre valence, 94 ; object, 94 f.; time, 95 ; entry, 96. E, of personal knowledge, 107 ; opinion, 108 ; hearsay, 108 f, ; rumor, 109; expert, 121; documentary, 122; circumstantial, 125; tak ing evidence, 168 ff, ; new evi dence, 170. See also Wit nesses, Ex abrupto proceeding, 89'. Ex informata conscientia. see Tridentine suspension. Ex officio inquiry, 70, 83 ff. Examination of accused, 96 ff., 148, 163; of witnesses, 116 ff. Exceptional crimes, 100, 105, Exceptiones, ) 130 ff. See also Exceptions, j Plea. Excommunication, 33, 49, 104, 112, 138,' 144, 145,' I9o^ Execution of sentence, 130, 180, 194 R; stay, 190', 193 f. Exercises, spiritual, 80. Expensae, 196*. See also Costs. Experts, 171, 123, 147. Extrajudicial acts, 27, 80, 144 ff,, 176; confession, 98; ap peal, 175 f. Extraordinary procedure, 87 ; means of redress, 187 ff. Faculties, written, 124, Fama, 63, 108 ; inquisitio, 52". Familiarity, 49, 133. Fatalia, i83». Fees, fines, see Costs. Fictitious contumacy, 137"" ; names, 164. Fisc of diocese, 64, Fiscal, see Procurator, Promotor. Formalities of trial (essential and accidental), 25, 48, 71, 87 ff. ; admonitions, 151 ; appeal, 183, Forms of procedure, 78 ff. Forum, 43 ; domicilii, 44 f. ; de licti, deprehensionis, 46 ; prae ventionis, 46°; prorogat., 47; external, internal, 18, 194. Friendship, 133. Genuineness of documents, I22» ff. Giudice d'istruzione, 52° ; g. re latore, 239. Gloss, 49^, 99 f., 103, no, 133"°, l36^ 141", l78^ 185', 189'. " Grace," 138*, 140*. Gratiani decretum, 21. Handwriting, 123 f. Hearsay evidence, 108 f. Heresy, 100'; heretics, 104. History, modern, of t:anonical procedure, 21 ff., 23°. Holy-days, 143. Husband and wife, 113. Idiots, 103. Illiterate, 48. Immunity, eccl., 43, 60°, 143, Impartiality, see Recusation. Impuberals, 103. Impunity, 112, Indications, \ .„, ,„o ,,, ,,_ Indicia, \ '°S. '08, 125. 145. Index. 263 Indictment by jury, 147*. Inducements to confess, 100. Inf amia juris et facti, 49, 104. Infamy, perpetual, ixyo^. Inferences, see Presumptions, Informations, 146 ff., 166 ff. Inhibitiones, 177'^- Injunctions, canonical, 144, 147, 151, 152 ff, ; mode, 153 f„ requisites, 1 54 ; copy, 1 54' ; term, 155. Inquest (preliminary, previous, summary), 53^ 69 ff,, 117, 146, 147', ^ 166 f.; auditor's, 165 ff. ; sheriff's, coroner's, 147' ; additional, 174. Inquiry (judicial, extrajud., pri vate), 15 f., 27, 53, 67, 85, 99, 146, 166 f., 190 f. Inquisitio pro notitia curiae, 53", 148' ; pro infortn. judice, de fama, probatione, 53°. Inquisitorial, see Procedure. Insane, the, 48, 103, Inspection, judicial, extrajud., 122. Instances, see Appeal. Instructio S. C. Epp. 1880, 3, 5, 23, 27, 85 ff. Instructor actorum, 53°, 55' ; I. judex, 53°. Instruments, see Documents, Interests, see Welfare, Interpolations, 124. Interpreter in court, 143, Interrogatories, see Questions. Ireland, 38^ Irish Eccl. Record, 5. Irregularity, canonical, 194. Jewish witness, 104; subtleties, 86. Joinder, 132', Judex, meaning, 176'; f. inha bilis, suspectus, 49", 132', 181 ; J. a quo, ad quem, 175^; J. in struc tor, 53"; J. relator, 235° f. Judge, qualities and duties, 48 ff,; recusation, 132 ff.; J. sole, associate, 51, 54, 134. 172; J- delegate, 30 ff., 55; J. appel late, appellee, 175"; J. of in quiry, 53 ff. Judgment, 1386.; interlocutory, final, 139, 174 ff., 179; requi sites, 139 f.; copy, 174; day, I29f.; arrest, I90^ See also Nullity; Sentence. Judicature, eccl., 28 ff, Judices synodales,prosynod., 40 f. Judiciary, eccl., 37 ff. Judicium, 79; in J., 79; J. statarium, more belli, Zxf; J. figura, 87. Juge d'' instruction, 53°; J. rap porteur, 55'. Juramentum decisoriutn, sup- "pletorium, 93 ; J. veritatis, 98, 116, 122 ; secreti, 116 I., 153, 172; malitiae, 115, 128. Jurisdiction, 28 ff.; ordinary, quasi-ordinary, 28 f.; delegat ed, 30 ff.; competent, 37 ff. ; ap pellate, 38 f,; higher and lower, 175- Jurisdictional acts, 32, 87, 145. ury, eccl., 51 ; grand, petit, 147'; charge to J., 170°. Jus domum revocandi, 45. Justitiae tutela, 64 f , , 68, 72. Language in court, 143. Lapse of terms, 130; of time, 138. 167- Law, criminal, 16 ff.; sources, 20 ff.; principles, J^« Maxims, Rules, Laymen as court officers, 49, 52', 56; lay-advocate, 74 f . ; 1. prose cutor, 65'; laics vs. clerics, 104, Leading questions, 97, 118, Legitimatio processus, 73, 120. Letters patent, sce Commission ; L, rogatory, 114; L. dimissory, reverential, refutatory, .183^; anonymous, 71 ; L. registered, see Mail. Limitation, see Lapse. Litigation, civil, 80'. Litis contestatio, 31°. Liturgy, rubrics, 25. Local competency, 43 ff. 264 Index. Locus sacer, 139, 143. L'Ordinario, 89', 115, 139, 141', 171 ff., 174'; text, 198 ff. Mail, 63, iio; 137", 151, 155". Malitia, 115, Mandate, see Commission; Writ. Maxims (axioms, principles) of law, 21, 38^ 49, 64, 71, 81, 93 f., 106, 116', 166, 194. Maynooth, Synod, 39°, Messenger, 61 f,, no, 137', 151, 155=. Metropolitans, 39; appeal from M., 39' ¦ ; Metropoliticum, 39'. Minors as judges, 48 ; witnesses, 104, Minutes {Minutae), see Record. Monitio trina, 145', 155, Monitorium, 144. Mutilation, 18", 104. Names of witnesses, 119, 121, 148. Negotium unum, 31'. Nolle prosequi, \o/b\ "Not guilty," IOI, " > Notary, 57 ; n. public, 58". Notes, bishop's private, 1 50. Notice, judicial, 95. Notice (notification) of term, 130; sentence, I38^ 174, 184; appeal, 182. Noting, the, 61, 96. Notoriety, ) 27, 81, 89', 95, loi, Notorium, \ 1 5 5', 1 58, 1 67, 179'. Nullity (null and void) of pro-^ cess, 49, 71, 89, 98, 105, 121, 138, 141, 173, 187, 189' ; plea of n., 50, 175, 177, 181, /5Sffi Oath, see furamentum. O, of office, 50, 55, 62, 75. Occult crime, 100, /6Sff, Official, the diocesan, 27, 36, 38, 50, 68. Officiality 36', 63^ Officium, 41^. Opening of case, 95 ; of appellate proceeding, i84°f. Opinion, 108 ; expert, 121. Oral, see Parol. Ordeal, 19. Order of proceedings, 81, 148'; of examination, 97, 117; of presumptions, 126 f.; of pleas, 132, Orders, holy (proliibition, sus pension), 1 57 ff. Ordinary, see Bishop. Organization of court, 48 ff. Originals of documents, 57, 172, 175, 184, 185', 236', 239. Pallotini, Thesaurus, tte, t^-^^. Papal delegates, 31, 41, 134. Pardon, igd', iga. ' Parent and child, 113. Parish records, 143, 147. See also Benefices. Parol pleading, 1 1 5, 141 f., 171'; evidence, 134, Parties in trial, 62, 83. Patriarchs, 39. Patronus, 74'. Paupers, 103. Pedelli, 62. Pension, 195'. Peremptoiy, see Citation; Terms. Periculum in mora, \i^, 164". Perjury, 109. Personal delegation, 31°; com petency, 37. Personate, ) j Personatus, \ Personnel of the court, 48 ff. ¦ " Petition, see Recourse. Place of delict, 46 ; of examina tion, 113, 168; of trial, 143J Plaintiff, 70 ff., 83 f. Pleading, final, 115, 129, 142, /72ff, See also V&xo\. Pleas, 130 ff. ; kinds, 130 f. ; sham P., 131, 134; time, order, form, 132. ; P. to the juris diction, 49, 130, 132'; to the judge, 132', 181 ; to the exam ination, testimony, proceed ing, execution, 131 ff. ; tothe sentence, 177; P. in avoidance, of justification, in excuse, 169. Pope, the, his jurisdiction, 28 ; Index. 265 in first instance, 37 ; appeal. 3l^ 33, 38 ; abolition, 192 f. ; pardon, 192' f. Positiones et articuli, 1 29°. Postulando, de, 74'. Practice, canon, crim., 144. Praeceptum, 61, 81, 144, 152'; denonfrequentando,!^. See also Injunctions. Praesentatum, 61, 67. Praesumptiones, \ 93. 96,/25ff.; Presumptions, f rules, 126. Praeventio {praevenire), t^d^, 153. Prejudice, 28, 139, 187. Preliminary* previous, see In quest. Principles of legality and expe diency, 64. See also Maxims ; . Rules. Printed defence, 142. Privatio beneficii, 194. Privileged causes, 94 ; commu nications, 113; persons, 104, 1 13 ; places, 143. Privilegium. fori, 20^, 180. Probabilism, Io8^ Probatio pietta, semiplena, 70, 91 ; artificialis, inartif,. 92 ; Pp. luce clariores, 93 f. ; P. nega tiva coarctata, 131. See also Proof. Probatory term, 129. Procedure, ) jj- • 1 Proceeding, ["""•^"'^d'^'^'P^- its end, object, 15, 82, 140, 187 ; history and sources, 3o ff. ; mode and rules, 16, 23, 141 ff., 192 {see also Rules) ; forms and parts, 78 ff. ; judi cial, extrajud., 27, 53", 78 ff., 147; civil, criminal, 21, 89,99, I03, 106 ; accusatory, inquisi- ;tory, 31; 27, 53, 63 f,, 82 ff., 85 ; denunciatory, 83 ; ordina ry, plenary, summary, 26, 86 ff. ; informative, 53", 119; of fensive, defensive, 67, 120, 127, 168; final, 172 ff. ; appel late, 182 ff. ; rash, 147, 167, 197; essential elements, 20; forraalities, 25, 87 ff. ; in writ ing, 141 ; secret, 142 ; place, tirae, language, 143, See also Arrest; Stay. Proch-verbal, 119, 171. Processus instructio, 53 ; legiti matio, 73 ; puhlicatio, 119. Procrastinatio malit iosa, 131. Proctor, 76 ff. Procurator, fiscal, 62 ff., 64", 85 ; duties, 67 f„ 74 ; representa tion, 77 ; recused, 136^; at ex aminations, 116, 169; at the trial, 166 ff. ; charge and pro secution, 167 ff. ; his conclu sions and motions, 120, 171 ; new charge, 173. Production of witness, 114; documents, 123. Promotor fiscalis, 63 f. ; P. f. gener alls,, 77,, 236°. Proof, judicial, 91 ; full, half, 92, 105, 107 ; P. of commission, 32; of qualifications, 50; of documents, 124; ofa negative, 95. 5^.? ffl/.s(? Evidence. Prorogation of jurisdiction, 47 ; of terms, 128. Prosecution, 62 ff, Protocollum, 61. Provocatio ad causam, 176. Provost, 41". Publicaiio processus, ) Publication of testi [¦ f'^'gf^' mony. } Publicity of procedure, 142 f. of crime, 1 58 ff. Punishment, its end, 17, 65 f., 71 82, 138, 140, 149, 154; cor rective, vindictive, 16, 78, 149, 180; extrajud., 18, 80; spirit ual, temporal, 18 ; corporal capital, 18", 78 {see a/w Capi tal) ; in subsidium, 1 54 ; pecu niary, 154, 165, 194'; commu tation, 192. See also Correc tion ; Execution ; Sentence ; Pardon. Qualifications of judge, 48 ; auditor, 53, 55" ; plaintiff, 70 ; witnesses, 102, 121, 266 Index. Qualified persons, 62, no, 121'; witnesses, 121. Quash proceedings, 190', 192. Querela nullitatis, 188, See also Nullity. Questions in examination, 97, 117 ;¦ schedule, 117; sugges tivae, 119'. Real competency, 37 ff. Receipt, see Return. Recognition, judicial, 95. Record (minutes), 55, 57, 58', 61, 96, in f., 130, 139, 141, 150!,, 154, 164, 169, 174. ?r;;j:'h6if..:75./«7ff. Recovery of costs, 195, Recusation, 32, 132 ff., 181 ; form, time, 133 ; frivolous, 134'- Redactor actorum, 55'. Redress, extraord. means, 187 ff. Referendarius, j 53 > > 35 • References, 4, 10 f. Registered letter, see Mail. Registrar, 58'. Regulars, 29 ; as witnesses, 104. Rehearing, see Retrial. Reincidentia, 161, 186. Reinstatement, see Restitutio. Rejoinder, 132'. Relations by blood or marriage, 49, 70, 104, Relevancy of testimony, 94 ff. Remission, see Pardon. Removal, 138, 194, 195. Replicatio, 132'. Report, expert, 122. Representation in court, 76, 1 20. Reputation, 72, 103, 154., 162, 166, 191 ff. Requisitoria fiscalis, Vjl. Res judicata (conclusive judg ment, force of law, adjudged matter, definitely settled), 140^ 179, 185, 187, 189', 190', 193 ff. Restitutio in integrum, 189. Restrictus, \ a hgtract Resumi, \ ^"" -^-DSiract, Retractatio, 188. Retreat, spiritual, 81. Retrial, 139, 177, 185, 189. Return of writ, 150', 155. Reverential letters, 184'. Reversal, 145, 177, 1835. ^^^i^'^' \ 185, 188. Revisio, \ -* Ricci's Collectio decretorum, 43'. Roman law, 20, 26, 45'', 89, 132, 137, 188 ff. Rome, 26, 45, 77, 90, 188'. Rubrics, 25. Rules of criminal procedure, 16, 23, 66, 71, 82, 128, 165; of justice, 6, 25, 54, 56, 88, 114, 1 28 ; on evidence, 92°, 84 f., 102. Rumor, 63, 69, 93, 109, 166. Sacristan of cathedral, 41°. Salary of substitute, 161. Sanguinis causa, 104. Schedule of questions, 117. Seal, official, 123, 184'. Secrecy, 115, 142 f., 150, 154; oath, 116, 152, 172. Secretary, 57 ff., 65, 136; bish op's private S., 59', 151. Security, 197. Semi-proof, 92, 99. Sentence, 50 ff., 61. 127, 138 &., 173 ff.; requisites, 139 f.; de claratory, condemnatory, 140; in contumacy, 138. Sententia lata, ferenda, 152, 181 ; ex inf. conse, 1 56 ff. Sham pleas, 88 ; S. appeals, 179'. Signature to documents, no, 123, 152, 154, 165; to deposi tions, 118, 132,170; notary's, 58^ Simony, 100'. |5^;5^^jofwitnesses.io6ff. Sittings, judicial, 142 f. " Slaves, 103. Index. 267 Solemnitas instrumentorum, 61; judicii, 27, 86. Solicitation, 42, 105. Solicitor-general, 64'. Sources of canon, procedure, 20 ff. Specifications in summons, 72 f.; in charge, 73 f.,96, 168. State interference, 19, 193. Stay of proceeding, 181, 191 ff., of execution, 192 f. Strepitus judicii, 27, 86 f. Subdelegate, 32, 34, 36. Subordination of judge, 133. Subornation, 109, 115. Subscription, see Signature. Subsidium, in, 154. Subtraction of witness, 114. Suffragan, senior, 39'. Summaria facti cognitio, 53", 69, 146. Summary, see Abstract. Summary information, see In quest; Proceeding. Summing up, 168, 170'. Summons, see Citation. Sundays, 143. Supplicatio, 177', 188. Surrejoinder, 132'. Suspension, 49, 112, 180 I., 194. See alsoTxiA&aXAxit., extrajud. Suspensive effect in appeal, 130, 177, 180 ff.; plea of nullity, ^89^ Suspicion, 99, 134, 137, 149, 160, 166, 191, 198, Synod, diocesan, 197. Tariff of court fees, taxes, 196. Technical law terms, 4, 16', 37", 4I^ 46', 47', 52^ 55', 58', 61, 63^93', 100', loi, 104, 118, 119', I^5^ I29^ 132', 135", 175'. 177'. 179', 181", 182".', 184^ 188 f., 190". Terms (fixed time), 127 ff.; kinds, 128 f., 130, 170; per emptory, 96, 128, 130; effect, lapse, 130; t. to introduce witness, 115; in injunction, 155; in appeal, 182 f., 236'. Testes singulares, etc., 106 ; de scientia, 107 ; de credulitate, audita, 108 f. ; de fama, 109; T. instrument arii, 123; omni exceptione majores, 105 f. Testificata, 115'. Testimony, kinds, 106. Torture, 19. "Transaction," 190", Transcript, see Copy, Travelling expenses, 195*. Trent, Council, 3i, 38, 39°, 40, 113, 137, 157 ff-. 179- Trial, judicial, 165 ff.; auditor's inquest, 165 ff.; final pleading, sentence, 170 ff. Tridentine suspension, 21, 80, 156 ff. ; conditions, 157 ff.; occult crime, 158 f.; trial im possible, 159; effect, 160; du ration, i6j ; mode, 162!.; sen tence, 164. Instr. S. C, 231 ff. Triors, 134, 135=. Triplicatio, 132'. Tutela legis et justitiae, 64, 72. Typewriter, 142*, United States, 39°, 51', 52', 58=, 62, 63=, 64', 69, 76, 89', 172', 195', 196, 199, 209, 226, Universitas causarum, 31' f. Untersuchungsrichter, 53°. Vatican Council, 39°. Venue, change of, 47' Verses by the Gloss on the judge, 49'; confession, 99; recusation, 134'° ; contumacy, 137'; appeal, 178^ Vicars, substitutes, 186 f. Vicar-apostolic, 29. V. capitu lar, 29, 31, 38, 135, Vicar-general, 29, 31, 34, 38, 4l^ 50, 53 f., 147, 154; his juris diction, 34 ff.; delegation, 35 f.; commission, 35,68; re cused, 13s ; in canon, admoni tions, 150; injunctions, 154; Trid. suspension, 157". Vicarious jurisdiction, 29. Void, see Nullity. 268 Index. Vote, decisive, consultative, 51, Wager of battle, 19. Warning, see Admonitions. Weight of evidence, 105 ff. Welfare (interests), public, i,"^', 64, 66, 73, ioo', 128, 159, 191 ff. Westminster, 39', 58'. Withdrawal, see Abolition. Witnesses, 101 ff.; competency, absolute, relative, 102 ff.; by natural or positive law, 103 f.; observation, 104 f.; classical W., 105; credibility, 105 f., number, 106 ; quality of depo sitions. 107 ff.; attendance, no; compulsion, in ; duties, 112; privileged W., 113; pro duction, 114 ff.; subtraction, 114 ; foreign, distant W., 114; cross-examination, 115; ex amination, 116 ff., 120; publi cation of testimony, 119 ff., confrontation, 73, 19 ; subor nation, 109, 115; unnecessary W., 88, 114 ; W. at forraal ad monitions, 151 ; at injuncr tions, 154; Trid. suspension, 163 flf.; costs,. 19; ff. See also Evidence. Women, 104, 114. Writ of error, 50, 185 ; manda tory, 144. See also Return. Writings, comparison, 123; proof, 124. See also Docuraents, Written comraission, 32, 50, 60, 151 ; pleading, 90, 115 ; 170 f.; evidence, 122 ff.; procedure, 141 ; legal admonition, 151 ; injunction, 154; Trid. suspen sion, 165 ; sentence, 139, 174. Zamboni, Collectio decretorum S. C. C„ 43". 3 9002 00709 2456