LIBRARY s*^- V^F"Tr'y4 *"v ' THE NEW PROCEDURE IN- CRDIINAL AND DISCIPLINARY CAUSES -- OF- ECCLESIASTICS TJ :&T 1 1 1 E 3D Or a dear and full explanation of the Instruction " Cum Magnopere," issued Try the 8, Congr. de Prop. Fide, in 1884, for the United States, REV. S. B. SMITH, D. D... FORMERLY PROFESSOR OF CANON LAW, AUTHOR OF " NOTES, '' " ELEMENTS OF ECCLESIASTICAL LAW," " COUNTER POINTS, " ETC. Second Edition, Revised and Enlarged. FR. PUSTET, PRINTER TO THE HOLT SEE, AND THE S. CONGREGATION OF RITES. FR. PUSTET & CO., XEW YORK AND CINCINNATI. 1888. H. GABRIELS, S. T. D. Censor Deputatus. % m p r i m a t u r . iii MICHAEL AUGUSTINUS, Archiepiscopus Neo-Eboracensis. DATUM NKO-EBORACI, DIE 23 MARTII, 1887. COPYHIGIIT, 1887. E. STEISBACK. Letter from Card. Simeoni. S. CONGREGATIONS DI PROPAGANDA, SEGRETARIA. KEY. SIGNORE . Ho ricevuto il nuovo libto cla Lei teste dato alia luce, intorno alia procedure legale delle cause criminali contro gli Ecclcsiastici. Ringrazio scntitamente la S. V. del cortese pensiero d' avermene inviata una copia. Desiderava leggere il suo lavoro, ma fino ad ora le mie occupa- zioni me lo hanno impedito. Se avro qualche ritagliodi tempo disponibile, non manchero di esaminarlo. Intan- to esprimo alia S. V. la fiducia che questo suo scritto abbia a riuscire niolto utile al clero degli Stati Uniti. Prego poi il Signcre che la conceda ogni bene. Di V. S. Affmo. GIOVANNI, CARD. SIMEOXI, Prefetto. Pro Segrctario, ZEFIRINO ZITELLT, Min., Rev. D. Scbastiano B. Smith, D. D., Rettore della chiesa di S. Guisseppe, Diocesi di Newark. ROMA, li 7 Agosto 1887. REV. SIR: I have received the new book recently published by jou, relative \ to the legal procedure in criminal ; causes of ecclesiastics. I thank you j very sincerely for your courtesy in ' sending me a copy. I wished to read your Vork, but, up to the present, my occupations have hin- dered me from so doing. If I have : any spare moments, I shall not fail to examine it. Meanwhile I assure you that I trust that this, your book, -will be very useful to the clergy of the United States. I pray the Lord to grant you every blessing. Yours, most affectionately, JOHN CARD. SIMEONI, Prefect. For the Secretary. ZEPHYRINO ZEFELLI, Minutante, To Rev. S. B. SMITH, D. D., Rector of St. Joseph's Church, Diocese of Newark. iv Testimonials. Letter from Card. Gibbons. CARDINAL'S RESIDENCE, 408 N. CHAKLKS ST. Baltimore, June 13, 1887. REV. DEAR SIR: I have to thank you for the copy of the New Procedure, which you wore kind enough to send me. The Imprimatur of his Grace of New York, the letter of Father Gabriels, as well as your merited reputation for learning and patient research, lead me to hope that your commentary will be read with profit and interest by the Bishops and Clergy of the country. A decision has recently emanated from the Propaganda which throws some light on one of the points treated in your work. Faithfully yours in Christ, J. CARD. GIBBONS, ArMp. of Bait. Rev. S. B. Smith, D. D. Letter from Card. Mazella. ROMA, July 5, 1887. Rev. S. B. Smith, D. D., Paterson, N. J. REV. 'AND DEAR SIR : I thank you very cordially for the copy of the Xeio Procedure, which you had the goodness to send me, and my thanks are due also to the kind words with which it was accompanied. Your labor, I trust, will be productive of lasting good; it is Undoubtedly of very much practical utility, and I hope that God may grant you many years of usefulness to continue the good work begun so favorably. Thanking you once more for your kindness, I remain, Your Servant in Christ, C. CARD. MAZET>LA. TESTIMONIAL. Letter of the Very Rev. Dr. Gabriels, President of the^Provin- clal Seminary, Troy, JV. Y. ST. JOSEPH'S PROVINCIAL SEMINAKT, Troy, N. Y., March 4, 1887. DEAR DOCTOR : I have carefully read your Treatise on the Instruction Cum Magnopere, which is now in force in most of our dioceses as the rule for criminal and disciplinary trials of Clerics, and after the few changes you told me you would make in the work will have been introduced, I feel safe in saying that your dissertation will be a inost useful, xwactical guide for all persons connected with said trials. Your doctrine strikes me as truly orthodox and sincerely loyal to all the degrees of ecclesiastical authority, and it is at the same time proposed in the methodical order, and the clear language which are so desirable, but not always found, in books on Canon Law. I remain sincerely yours in J. C. H. GABRIELS. REV. S. B. SMITH, D. D. PREFACE. The Instruction Cum Magnopere of the S. C. de Prop. Fide supersedes the Instruction of the same Congregation, dated July 20, 1878, and forms the present law for he United States. Its main features were discussed at the conferences held in Rome, between the Cardinals of the Propaganda and our Archbishops, during the month of November, 1883. After these conferences, it was promul- gated as a law of the Holy See, and sent to the Third Plenary Council of Baltimore, held in November 1884. It is now obligatory all over the country, excepting in a few dioceses, where by Papal dispensation, the Instruction of 1878 is allowed to remain in force, until the curia can be properly established. The Instruction Cum Magnopere which we explain in this treatise, is almost an exact copy or transcript of the In- struction of the S. C. EE. et. RR. issued on June n, 1880. These two documents differ only in a few points. These differences are explained in the present work. Hence it may be said that our judicial procedure is now the same as that which exists in Catholic countries where the Canon law obtains. vi Preface. The present Instruction Cum Magnopere prescribes the manner in which our Prelates are bound to proceed when they are about to impose preventive or repressive reme- dies or punishments. Preventive measures are extrajudicial or paternal remedies, and therefore must be preceded by an extrajudicial investigation. Repressive remedies are pun- ishments proper, and consequently must be preceded by a judicial inquiry. The object of the inquiry, judicial or ex- trajudicial is to obtain a certainty of the offence charged. The Instruction which is before us, outlines, the manner in which both these investigations namely the extrajudi- cial, and the judicial, or trial proper must be conducted. Yet, like most laws, the Instruction merely outlines the main features of the procedure, and presupposes a full and ac- curate knowledge of the Canon law bearing on the subject. We have endeavored in these pages to fill up this out- line. Hence we explain, in plain and simple terms, the various parts of the Instruction ; the consecutive order in which the different stages of the trial follow upon each other ; and the connection of each article or part with the whole Instruction. We have thus endeavored to make it easy for all Ecclesiastics to understand our " New Pro- cedure," even though they have not studied Canon law. PATERSON, N. J. May I, 1887. PREFACE TO THE SECOND EDITION. The first edition of this work, though published but a short time ago, has already become exhausted. In the present edition we have made a number of corrections, though mostly of a typographical character. We have also added, in the appendix, several important documents, such as the latest decisions of the S. C. de Prop. Fide, concern- ing the dismissal and transfer of our Rectors who are not irremovable, the manner in which appeals, also from this country, are heard at Rome, etc. We refer with unfeigned pleasure to the gracious letters of commendation from their Eminences, Cardinal Simeoni, Prefect of the Propaganda, Cardinal Gibbons, and Cardinal Mazella. These letters will be found on the front pages of this volume. PATERSON March N, N. J., ) ch 20, 1 888. ) CONTENTS. PAGE. Title Page, i Imprimatur and Testimonials, 2 Preface, . . - 4 PART I. The INSTEUCTIO CUM MAGNOPERE in general. CHAPTER I. Heading and Preamble of the Instruction CUM MAG- NOPERE. ART. I. Rules for explaining and understanding the Instruc- tion, 7 ART. II. Nature of the trial outlined in the Instruction, . . 12 ART. III. Aim or scope of the Instruction, . . . . 13 ART. IV. Causes or matters to which the Instruction extends, . 16 ART. v. Synopsis of the Instruction and of the trial, . . 20 viii Contents. PART II. PAGE. Tbe INSTRUCTIO CUM MAG-NOPEUE in detail. CHAPTER I. Preventive Remedies Manner of Imposing them. ART. I. Right and Duty of the Ordinary to inflict Canonical Remedies, 24 ART. II. The various kinds of Canonical Remedies, . . 25 ART. III. Discretionary power of the Ordinary in inflicting punishments, 25 ART. IV. What are the Preventive Remedies ? . . . . 28 ART. V. When and how are the Preventive Remedies Im- posed? 28 ART. VI. How the Canonical Admonitions are given, . . 30 ART. VII. When the Formal Precept is Imposed its tenor, . 32 ART. VIII. How the Precept is Communicated to the delinquent, 33 CHAPTER II. The Canonical Summary Trial, or mode of proceed- ing, which must be observed in the United States, in inflicting Repressive Punishments. Contents. ix ART. IX. PAGE. Is a trial always necessary before a Repressive Pun- ishment can be inflicted ? . . . . 37 i. Procedure ex informata conscientia, . . 37 2. Procedure ex notorio, 42 ART. X. Form of trial. Various classes of crimes, . . . * 48 i. Different classes of crimes punishable, . . 49 2. Nature of the trial, . . . . . 51 ART. XI. Manner of beginning the trial, ... . . . 55 ART. XII. The preliminary trial which precedes the citation of the accused, 63 ART. XIII. The Diocesan Prosecutor, 75 ART. XIV. Mode of serving judicial notices and citations, . . Si ART. XV. Groundwork or basis of the Prosecutor's charges, . 82 ART. XVI. What kind of proof is required for the citation and eventual conviction and condemnation of the ac- cused? 85 ART. XVII. How witnesses are examined pro informatione curias, prior to the citation of the accused, ... 94 ART. xvin. The oath taken by the witnesses and by others who take any part in the trial, . . . . no x Contents. ART. XIX. PAGE. How witnesses are examined who are in a distant part of the diocese, or out of it altogether, . . 103 ART. xx. Admissibility of hear-say or indirect witnesses, . . 109 i. Witnesses de credulitate, . . . .no 2. Witnesses de auditu alieno, . . . 1 1 1 3. Hear-say Witnesses Testes de fama, de Re- -lato, 113 CHAPTER III. The Trial continued From the citation to the de- fence of the accused. ART. XXI. Citation of the accused, . . . * . .119 ARTS. XXII., XXIII. Contents of the Citation, 122 ART. XXIV. Contumacy of the accused, or his refusal to obey the citation 123 ART. XXV. The hearing given the accused as soon as he appears on due citation. Exceptions proposed by him, . 127 ART. XXVI. The Plea or issue and the Production of the Proofs of guilt, . .I3 1 i. The " Contestatio delicti," . . . -131 2. Manner in which the Prosecutor produces the proofs of guilt. " Processus Publicatio," 137 Contents. xi CHAPTER IV. PAGE. The defence. Close of the Trial. ART. XXVII. The Defence. Mode of conducting it, . . .153 ART. XXVIII. Delays given during the trial, . . . . .159 ART. XXIX. Close of the Trial and Resume of the auditor, . . 161 CHAPTER V. The summing-up, and the final sentence. ART. XXX. The Defendant's Advocate. Appointment, Rights, and Duties, 165 ART. XXXI. When the judge appoints an advocate for the accused, 171 ART. XXXII. The summing up of the case by the Defendant's ad- vocate, . . . . . . .172 ART. xxxni. The summing up by the Diocesan Prosecutor, . 174 ART. XXXIV. The final sentence Its form and tenor, . . . 176 ART. XXXV. How the sentence is delivered to the accused, . 178 xii Contents. CHAPTER VI. PACK. Appeals. ART. XXXVI. Nature, object and effect of appeals, . . . 181 i. Nature and object of appeals, . . .182 2. Who can, and who cannot appeal ? . . 184 3. To whom should appeals be made ? . . 185 4. In what cases is it allowed to appeal ? In what cases is it forbidden to appeal? . 186 I. Cases which do not admit of any appeal whatever, . . . . .187 II. Cases which admit only of a devolutive ap- peal, or even only of a simple recourse, 189 III. Cases which admit of a suspensive appeal, 198 ART. XXXVII. When the appeal must be interposed, . . 203 ART. XXXVIII. Duties of the judge " a quo," with regard to appeals, 206 ART. xxxix. Right and duties of the judge ".ad quern," in regard to receiving appeals, issuing inhibitions, and re- voking attentates, . ..... 209 i. Admission of the appeal, . . . . 209 2. Inhibitions, . . . . * . .215 3. Attentates, . . . . . .218 ART. XL. Extinction of the appeal, 221 ART. XLI. Mode of adjudicating appeals, .... 223 i. Procedure before the Metropolitan, . . 223 Contents. xiii PAGE. 2. Procedure before the S. C. de Prop. Fide, . 228 3. How the Sacred Congregation hears and de- cides appeals, . . . . . .231 CHAPTER VII. Several other questions treated by the Instruction. ART. XLII. How the ordinary is to act, when an ecclesiastic is placed on trial before the civil court, . . 237 ART. XLIII. When ordinaries should consult the Holy See Nul- lity ol the proceedings, 238 i. Questions addressed to the Holy See, . 238 2. Nullity of the proceedings Complaint of nullity, . . 239 3. Reinstatement, 241 4. Recourse, 242 ART. XLIV. When can an episcopal court be condemned to pay costs and damages ? 242 CHAPTER VIII. Present status of our Rectors who are not irremov- able under the Instruction " Cum Magnopere." ART. XLV. Dismissal and transfer of our Rectors who are not irremovable, ........ 246 i. Dismissal of our removable Rectors, . . 246 2. Transfer of our Rectors, who are not irre- movable, .251 INDEX TO APPENDIX. I. PAGE. The Instruction of the S. C. de Prop. Fide, " Cum Magnopere " of 1884. Latin text, with an accur- ate English translation. . . . . .255 II. The constitution ad Militantis of Pope Benedict XIV., concerning appeals and inhibitions. . 265 III. Decrees issued by the Sacred Congregation of Bish- ops, in 1600, respecting appeals and inhibitions. 276 IV. Decrees of Pope Urban VIII., issued in 1626, in re- gard to appeals and inhibitions. . . . 278 V. Additions to, and explanations of, some of the above decrees made by Pope Benedict XIII. . . 279 VI. Appointment of a promoter gcneralis at Rome to rep- resent and defend Episcopal courts, in cases ap- pealed. ........ 285 Contents, xv VII. PAGE. Decree issued by the S. C. EE. et RR. on Dec. 18, 1835, for criminal causes 287 VIII. Circular issued by the S. C. EE. et RR. on Aug. i, 1851, respecting criminal causes. . . . 288 IX. Formulas of trials in criminal causes made obligatory in the circular of the C. S. EE. et RR. of Aug. i, 1851. . ' . 290 X. Resolution taken by the S. C. EE. et RR. on Feb". 22, 1839, regarding appeals. ..... 292 XI. Decree of Pope Benedict XIII., forbidding the oath to be administered to the accused. . . 293 XII. Provisional Regulation concerning the hearing of Appeals at Rome 294 XIII. Decree of the S. C. de Prop. Fide, issued in 1884, regarding Suspensions " ex inf. conscientia." . 295 XIV. Resolution of the Propaganda, in 1887, respecting the Dismissal and Transfer of our Rectors who are not Irremovable 297 XV. The Repetition of Witnesses 298 , PART I. THE INSTRUCTIO, IN GENERAL. CHAPTER I. HEADING AND PREAMBLE OF THE INSTRUCTION CUM MAGNOPERE. 1. The title or heading of the Instruction points out the cases in which the trial prescribed by it must take place. The preamble explains the aim which the S. C. de Prop. Fide had in view in issuing the document. We shall, therefore, under the present chapter, discuss (a) the rules which serve as guides in explaining and understanding the Instruction; (b) the nature of the trial prescribed in it; (c) the cases to which it extends ; (d) its aim and scope ; (c) fi- nally, we shall give a brief synopsis of the entire proceed- ings. ART. I. Rules for Explaining and Understanding the Instruction. 2. The celebrated canonist, Avanzini, in his explanation of the Const. Apost. Sedis of Pope Pius IX., says (p. 6) that all laws, even the wisest, have this peculiar feature, that when there is question of their application, they easily give rise to doubts and difficulties, according to the nature of the cases to which, and the circumstances in which, they are to be applied. Hence the necessity of explaining laws. 8 Heading and Preamble of the 3. These explanations are made (a) either by the law-giver himself i.e., by the superior who made the law, or by his successor, or by his higher superior ; (b) or by private per- sons, namely, learned men and authors, or also by a law- giver who is inferior to the one who made the law. The former kind of explanations is called authentic; the latter doctrinal. 4. Force and effect of explanations. An authentic explan- ation has the force of law ; it therefore creates law and has to be obeyed like the law itself, which it explains. Hence it is termed interpretatio ncccssaria. A doctrinal explanation, on the other hand, has indeed not the force of law, yet it creates a probability as to the meaning of the law. ' There- fore it is called interpretatio probabilis ; it need not be followed, save when it is endorsed by the common consent of approved authors, or unless it is based upon arguments which are better than those adduced against it. 8 5. Who has the right to give an authentic explanation of the law? Only the superior who made the law, or his succes- sor, or higher superior. From this it follows that as the In- struction is a law made by the Holy See, it can be authenti- cally explained by the Holy See only, and not by any other ecclesiastical superior. 6. Who has the right to explain laics doctrinally? Any person, theologian or canonist whatever has a right to ex- plain a law, provided, of course, he does so according to the rules laid down by canonists. * This right of private persons or authors to explain laws doctrinally is not only useful but necessary. For, on the one hand, laws are never so explicit and clear as to remove ambiguity and doubts ; and, on the other, it is not always possible or even expedient to have these doubts solved by the law-giver himself. 4 The i Leur ., For. Eccl., 1. i., t. 2, q. 152. * Ib. * Ib., q. 155. Ib., 1. c. Instruction Cum Magnopere. 9 Holy See itself, when applied to for an authentic explan- ation of a law, sometimes refuses to give it and refers the applicants to approved authors by the formula: Consulat probates anctores. The explanation of private authors cre- ates, as we have seen, a probability as to the meaning of the law ; hence it may be prudently and safely followed, as long as it is not shown to be false or improbable. ' Some- times this private explanation creates not merely a probabil- ity, but also a certainty as to the meaning of the law. This is chiefly the case when it is supported by the consensus com- nninis DD. 7. Q. What are the chief rules which private persons such as teachers, authors, etc. should follow when they ex- plain laws, and therefore also the present Instruction ? A. These: Rule I. Vcrba clara non admit tunt interprcta- tioncm. In other words, when the words of the law are clear, they do not admit of any explanation or conjecture as to the will of the law-giver. 2 Hence it is not allowed, in explaining a law, to recede from the plain and obvious sense of its words, unless it is manifest, from other sources, that the law-giver wished to convey a different meaning. 8. Rule II. TJtc explanation should agree with the intention or mind of the law-giver, rather than the naked words of the law. 3 This rule is in accordance with the axiom : Ratio legis, est anima legis. That is, the mind or intention of the law-giver is to the law what the soul is to the body. For, as the soul governs the body, so the intention of the law-giver governs the words of the law. Now this intention is to be gathered (a) from the reason stated in the law itself ; (b) or from the circumstances which gave rise to the law. How- ever, as we have seen, it is not allowed to recede from the 1 Avanz., 1. c., p. 9. 2 Leur., 1, c., q. 158. 3 Can. 24, q. 5; 1., 16 ff. de Leg. ; Reg. 88, de Reg. jur. in 6. i o Heading and Preamble of the plain sense of the wording of a law, unless it is beyond doubt that the law-giver wished to convey a different mean- ing. ' 9. Rule III. The ivords of the law are to be taken in tlieir natural signification, unless the subject-matter of the law plainly shows the contrary. The justice of this rule is apparent from the fact that if it were allowed to recede from the ordinary and natural meaning of words, no law would be secure or free from cavils. s 10. Rule IV. Where the words of the law are general and make no exception, the interpreter should not make any exception.* This is in accordance with the axiom : " Ubi lex non distin- guit, neque nos distinguere debemus." 4 This rule is evi- dently sound. For where the law itself speaks in general terms, and does not except any person or case from its provisions, it does not behoove the interpreter to make any exception. 11. Rule V. Where, however, the law itself except s a certain ease from its provisions, it is, by that very fact, considered as explaining and confirming its provisions, in everything else, ac- cording to the axiom : exceptio format regulam. And justly so. For it is plain that whoever makes a law, and expressly provides that it shall not apply to a certain case, by that very fact declares that it shall apply to all other cases, save the one excepted. 5 Let us apply this rule to the Instruction. This law, in art. ix., expressly excepts from its provisions sentences ex informata conscientia. From this exception it follows that in all other cases, where a punishment is to be inflicted, the trial laid down in the Instruction must be made use of. 12. Rule VI. The next rule is thus stated by canonists: Ubi eadem est ratio, cadcm est juris dispositio. The meaning i Reiff., 1. i., t. 2., n 386-390. - Reiff., 1. c., n. 395. 3 Cap. 22, de Priv. 1 L. de Pretio., ff. de Public, in act. * Reiff., 1. c., n. 405. Instruction Cum Magnopcre. 1 1 of this rule is, that it is allowed, generally speaking, to ex- tend a law from the case to which it applies to other cases which are similar to it, and have the same or a similar ob- ject. In other words, a law can be extended by a private interpreter to cases not expressly or directly included in the law, whenever it is found that the object or motive which the law-giver had in view applies to these cases. Thus the Roman law, as adopted by the Church, says : " Semper quasi hoc legibus inesse credi oportet, ut ad eas quoque personas et ad eas res pertineant, quae quandoque similes crimf." The reason is thus given by the sacred canons: Cum de similibus idem cst judicium. This is called the argnmcntnm a simili or a part. 13. Nor can it be objected against this rule, that by giving such an explanation, a private author or person would create a law, that is, make a new law. Reiflfenstuei 1. I., t. 2, n. 412, and Leurenius, 1. c., q. 159, n. 5, in common with canonists in general, answer that the objection does not hold. For, say they, it is, as we have already seen, the intention of the law-giver that his law should extend to all similar cases. In fact, a law-giver cannot fore- see or expressly comprise every case in his law ; hence, he is always presumed as wishing that his law should extend to all other cases, to which the motives, purpose, and inten- tion apply, that induced him to make the law. 1 14. Rule VI L In all causes, equity slwuld rather be attended to tlian strict laiv? Thus the Roman law, as adopted by the Church, says: " In omnibus quidem, maxime tamen in jure, nsquitas spectanda est." : By equity is here meant justice tempered with mercy, in accordance with the dictates of natural reason. There are two kinds of equity : written and unwritten. Written equity is that which is indicated in and, therefore, inferrible from the law itself. Unwritten 1 Leur., 1. c., q 159, n. 5. - Reiff ., 1. c., n. 415. 3 L. i ff. de Reg. jur. 1 2 Heading and Preamble of the equity is that which is based upon the general feelings of mankind. Now, by the equity of which our present rule speaks, is understood primarily written equity. We say primarily ; for, secondarily i.e., where there is no written equity, unwritten equity is also meant. 1 15. Rule VIII. Laivs which derogate from the " jus com- mune " of the Church must be strictly construed ; and that for t\vo reasons : first, because, being a derogation from the general law, they are looked upon by the law as odious ; second, because they are regarded as privileges and dis- pensations. 2 16. Rule IX. When there is question of a law which corrects or amends a former law, the following rule obtains : The former law is changed neither more nor less than is ex- pressly stated in the new law. How this rule applies to the Instruction Cum Magnopere as corrective of the Instruction Quamvis of 1878, we shall see further on.. ART. II. Nature of the Trial Outlined in the Instruction. 17. A trial, speaking in general, is the legitimate hearing, discussion and decision, in the presence of a judge, of a matter which is controverted between two contending parties. 3 Trials, thus defined, are divided into secular and ecclesiastical, according as they take place before a secular or an ecclesiastical judge. (Our Elements, Vol. II., n. 696.) 1 8. Ecclesiastical trials are subdivided as follows: I. By reason of their subject matter, into civil and criminal. Criminal trials are those where offences are punished. Civil trials are those where there is question v.g., of the validity of a marriage, the jurisdiction of a prelate, and the like. 2. By reason of their formalities, into ordinary or formal and 1 Reiflf., 1. c., n. 416, 417. - Leur., 1. c., q. i6r. 3 Ferraris, V. Judicium, n. i. Instruction Cum Magnopcrc. 13 extraordinary. For the other divisions, see our Elements, Vol. II., n. 699 sq. 19. The trial laid down and prescribed by the Instruction is a canonical trial, which is (a) criminal (processus canonicus criminalis], (b) and summary, as we shall show further on. ART. III. Aim or Scope of the "Instruction." 20. We have seen that the intention or aim of the law- giver is the soul of the law. Hence, a law should be ex- plained in accordance with the purpose of the law-giver, rather than the naked words of the law. What, then, is the intention or scope which the S. C. de Prop. Fide had in view, when it issued the Instruction? The preamble of the Instruction gives the answer. Here are the words : " Cum magnopere hujus S. Consilii intersit in judiciis ecclesiasticis earn methodum servari, quae et temporum cir- cumstantiis opportune respondeat, et regulari justitiae ad- ministrationi, necnon Praslatorum auctoritati tuendas, querelisque reorum prascavendis par omnino sit, placuit iterum ad examen revocari . . . ." 21. Here, then, the S. Congregation clearly explains the aims it had in view in issuing the Instruction. These aims are : To establish such a mode of hearing and deciding criminal and disciplinary causes of ecclesiastics, (a) as would be adapted to the wants of our time ; (U) be wholly ade- quate to the regular administration of justice ; (c) protect the authority of prelates ; (d} and prevent complaints on the part of the accused. 22. Let us briefly explain each of these ends of the Sacred Congregation. The first is to establish cam mcthodnm quce ct temporum circumstantiis opportune respondent i.e., such a mode of proceeding as is adapted to the times. According to the general law of the Church, criminal and disciplinary 14 Heading and Preamble of the causes must always be tried by a formal or ordinary canoni- cal trial ; they can never be heard and decided by a sum- mary canonical trial. 1 Now it would be scarcely possible, at the present day, to observe in this country all the for- malities of the proccssus ordinarius or formal canonical trial. Accordingly the Sacred Congregation, as it expressly states in article x., prescribes that mode of procedure which is called the canonical summary trial proccssus sum- marius. Consequently the Sacred Congregation grants, for this country, an unconditional dispensation from the obli- gation of observing the ordinary canonical trial, in the hearing of criminal causes, and allows absolutely and un- conditionally of the summary process. This is a larger concession than that granted by the Holy See to Bishops of European countries, in the Instruction of the S. C. EE. et RR. issued June 11, 1880. For this latter Instruction dis- penses bishops of European countries from the obligation of observing the formal canonical process and allows of the summary trial in criminal causes of ecclesiastics, only on condition that it is impossible or inexpedient to carry out the ordinary trial. 23. The second aim. of the Sacred Congregation is to es- tablish " earn methodum, quae rcgulari justifies administra- tioni par omnino sit" In other words, the Holy See, while allowing of the summary trial, wished, nevertheless, to pro- vide such a mode of proceeding as would be wholly and in every respect par omnino adequate to the regular admin- istration of justice. Hence, also, the S. Congregation, while dispensing with certain accidental formalities of solemn ca- nonical trials, nevertheless retains and prescribes, in the Instruction (art. x), each and every substantial formality of justice. (See our Elements, Vol. II., n. 692, 693, 694, 698, 704.) 1 Our Elements, vol. ii., n. 1275, sq. Instruction Cum Magnopcrc. 15 24. By the phrase rcgularis justifies administratio is here meant the legitimate administration of vindicative justice, that is, of that justice which metes out just and merited punishment to the offender. Consequently, wherever a punishment is to be inflicted v.g., the dismissal of a rector who is not irremovable, in punishment of crime the trial laid down in the Instruction must be given. 25. The third end of the S. Congregation is to provide 'earn methodum quae Prcelatoru m auctoritati tucnda par om- nino sit." The reason upon which this aim is based is ap- parent. For, law is the securest and strongest support of authority. Hence, when the authority of superiors is exer- cised in accordance with law, it is respected by all, and is thus strengthened. But when it is exercised not in accord- ance with the rules of law, and consequently when it is exercised arbitrarily, it makes itself odious, is hated by sub- jects, and is thus weakened. 26. The fourtJi intention of the S. Congregation is to es- tablish " earn methodum quee qucrclis reorum pr&cavendis par omnino sit." Nothing is better calculated to stop complaints, on the part of those who are tried and condemned, than the observance of due forms of law. When the accused receives a fair, full and impartial trial; when the fullest lib- erty is given him to defend himself; when every possible means is afforded him to show his innocence ; and when, notwithstanding all this, he is found guilty, then his guilt becomes established publicly, that is, in such a manner that it will convince not merely the judge, but everybody else. Consequently, the accused cannot complain if he is punished after such a trial. And if he, nevertheless, does complain, the justice or injustice of his sentence is a mat- ter of public record and can be ascertained by any one. Besides, people will all know that he has had a fair trial and that consequently he has no just cause of complaint. In accordance with its aim, the Sacred Congregation has 1 6 Heading and Preamble of the given the accused, in the trial laid down by it, the fullest liberty to defend himself. 27. We have said above, that the aim of the law-giver may also be gathered from the circumstances under which he issues the law. Now the circumstances under which the Sacred Congregation issued the Instruction are well known. The mode of procedure laid down in the Instruc- tion Quamvis, of July 20, 1878, and in the subsequent an- swer ad Dubia, had been found inadequate in a number of respects. Thus it was not a canonical trial. The appeal permitted by it was not suspensive. Hence it did not work satisfactorily. It was to remedy these inconveniences, and thus to provide a trial or mode of proceeding which would be wholly adequate to attain the above ends, that the Sacred Congregation re-examined the Instruction of 1 878, and also the subsequent answer ad Dubia ; and that, having materially weighed all things, it decreed that the present Instruction should be observed in future, and that consequently the Instruction of July 20, 1878, together with the subsequent explanations ad Dubia, were abrogated, ex- cept in so far as they were retained by the present Instruc- tion. 28. Here the question arises: How far is the Instruction of 1878 and the subsequent response retained in the present Instruction ? The answer will be given by us, when we come to discuss articles xii. and xlv. of the Instruction. ART. IV. Causes or Matters to which the Instruction Extends. 29. What are the causes to which the Instruction extends? In other words, what are the cases in which the mode of proceeding outlined in the Instruction must be observed? This question is answered by the very title or heading of the Instruction. This title reads: " Instructio Sacra? Con- Instruction Cum Magnopere. 1 7 gregationis de Propaganda Fide, de modo servando in cognoscendis et definiendis causis criniinalibus et disciplinari- bns clericorum, in Foederatis Statibus Americas Septen- trionalis ? The translation of this heading is : The present Instruction of the S. C. de Prop. Fide prescribes the manner of proceeding which must be observed by the. Bishops of the United States of America, when there is question of hearing and deciding criminal and disciplinary causes of ec- clesiastics. Consequently all criminal and disciplinary causes of ecclesiastics must be disposed of in the manner outlined by the Instruction; otherwise the action of the superior is ipso jure null and void. Nay, his action becomes invalid, not only when he omits the entire proceedings, but also when he sets aside any of the prescribed formalities of the proceedings.' 30. What, then, is meant by causes criminates and causes dis- ciplinarcs ? For the answer we refer the reader to the third volume of our Elements of Ecclesiastical Law, where we fully explain these phrases. Suffice it here to say that they mean all cases where (a) an ecclesiastical punishment (pcena), (b) or a censure (cens-urd), (c) or a grave disciplinary correction (grai'is disciplinaris coercitid), is to be inflicted. This is also expressly stated by the TJiird Plenary Council of Baltimore. (n. 310) as follows: " Animadvertant autem Episcopi, hoc uno casu excepto (scilicet remedium extrajudiciale ex in- formata conscientici), nullam poenam repressivam adhiberi debere, nisi praevio processu judiciali, ita ut etiam in causis. quae dicuntur ex notorio, omnino consultius sit processum summarium de delicti notorietate instruere, antequam pcena infligatur." 31. Against this argument, taken from the title of the Instruction, it may be objected that the title of a law, decree, or Instruction, does not form part of the law itself, and 1 Instr., art. xliii. 1 8 Heading and Preamble of the therefore has little or no weight. This objection does not hold. For all canonists teach that when the title or head- ing of a law is authentic, that is, when it proceeds from the law-giver himself, it has these four effects : First, it has the full force of law, no less than the text itself or body of the law to which it is prefixed, whenever it makes up a sentence which has complete sense by itself, like the following head- ings : " Ut beneficium ecclesiasticum sine diminutione con- feratur : " or, " ne sede vacante aliquid innovetur." We say, which has complete sense ; for when a title has but an im- perfect meaning, is composed merely of a word or two, and reads, for instance, thus : " De Summa Trinitate," it has no force of law, though, in case it is authentic, it has, like headings with full sense, a declarative force. 32. Second, it has a declarative force, so that where the law to which it is prefixed is obscure or ambiguous, it can and should be explained by the heading. From this rule canon- ists infer that when a law or instruction seems to admit of two meanings, or appears in some of its provisions to con- tradict its heading, that meaning is to be preferred which is more in harmony with the title or heading. 1 33. Third, a heading or title which has complete sense, and is more comprehensive than the enactment to which it is prefixed, generally extends and enlarges the meaning of the law. 2 34. Let us now apply these rules to the title of the Instruction. This title was undoubtedly prefixed by au- thority of the Holy See, and is therefore authentic : it con- tains, moreover, as is apparent, full sense. Consequently, it has all the effects and force above described. Accordingly it is, beyond doubt, that the Instruction extends to the causes indicated above. 35. Finally, if there could be any doubt on the matter, it 1 Schmalzg., 1. c. , n. 301. 2 Ib., n. 300. Instruction Cum Magnopere. 19 has been removed by the Holy See itself. For the S. C. de Prop. Fide, in its answer to the questions (ad Dubid) ad- dressed to it by bishops of the United States, concerning the Instruction of July 20, 1878, has expressly declared that the latter applies to all cases where an ecclesiastical punish- ment, or censure, or a grave disciplinary correction is to be inflicted. Here are the words of the Sacred Congrega- tion: " Instructio diei 20 July 1878 lata est de casibus, in quibus ecclesiastica poena seu censura sit infligenda, aut gravi disciplinari coercitioni sit locus." Now, the title of the present Instruction, Cum Magnopere, is precisely the same as the title of the Instruction of 1878. Hence the re- sponse of the Holy See ad Dubia also applies fully to the present Instruction. 36. All this is confirmed by article ix. of the Instruction. This article expressly excepts sentences ex informata con- scientia from the provisions of the Instruction. Now, as we have seen, cxccptio fir mat regulam. Hence, by the very fact of making this exception, the Instruction decrees that in all other cases where any repressive punishment is to be inflicted, the trial outlined in the Instruction must pre- cede the punishment. Lastly, the intention of the Sacred Congregation corroborates our teaching. One of its aims, as already shown, was to provide an adequate mode of pro- cedure for the administration of justice i.e., for the inflic- tion of punishments. 37. The Instruction applies only to ecclesiastics, not to laics. In fact, at the present day, the Church, also with us, finds it almost impossible to proceed judicially against laics, even when they commit offences strictly ecclesiastical. The Instruction, besides laying down the procedure for in- flicting repressive punishments, also gives the manner of imposing preventive remedies, as we shall see. 2O Heading and Preamble of the ART. V. Synopsis of the Instruction. 38. Before entering upon the details of the Instruction we shall here give a brief outline of it. The Instruction gives, as we have seen, the procedure which must be observed prior to the infliction of punishments. Now, ecclesiastical punishments are of two kinds : preventive and repressive. ' The chief preventive remedies are : Spiritual exercises, admonitions and the precept. 2 Before any of these can be imposed, an extrajudicial investigation must be made and put in writing. s As to the manner of giving the canonical warnings, the Instruction allows them to be given either in a paternal or legal form. * When the warnings prove use- less, the formal injunction (pratccptiuii) is given, in the man- ner stated by the Instruction. 5 When even the precept is disregarded, nothing remains for the Ordinary but to pro- ceed to the judicial process or trial proper, for the purpose of juridically establishing the guilt of the accused and in- flicting punishment. 6 39. By repressive punishments, as we shall show fullv in the third volume of our Elements, are meant chiefly dismis- sals from parish or mission, penal transfers, suspensions, etc. A canonical trial, or proccssus judicialis, must precede all repressive punishments, save in the one case of suspension ex informata conscicntia. " This trial, which is summary, is begun by the judge ex officio. * The court conducting the trial is composed of the bishop, or auditor delegated by him, as judge ; of the diocesan prosecutor, and a secretary. The first step of the trial is the formal charge of the dioce- san prosecutor. This charge called libcllus accusationis 1 Instr., art. ii. : Ib., art. iv. 3 Ib., art. v. * Il>., art. vi. 5 Ib., art. vii., viii. fi Cone. PI. Bait., in., n. 309. T Instr., art. ix. 8 Ib., art. x., xi. Instruction Cum Magnopere. 21 should be clear and specific. The charges or statements contained in it should be based upon reliable and trust- worthy data, or information obtained beforehand by the Bishop or prosecutor, even though in an extrajudicial manner. ' 40. The second step is the preliminary trial, called proccs- sns informations. When the prosecutor has handed in his charge, the Bishop, or auditor delegated by him, proceeds to institute the proccssus informations, for the purpose of ascertaining whether there exists probatio legalis against the accused. 2 It takes place prior to the citation of the ac- cused, as its object is to prevent the accused from being cited and thus disgraced, without sufficient legal proof of his guilt. It is conducted in a strictly judicial, though summary manner. Hence it takes place (a) at the instance of the prosecutor, (b) before the judge or auditor, (c) who is attended by a secretary. The witnesses are examined under oath, apart from each other. 41. When this preliminary trial is over, and it is found that there is a sufficient legal proof of the guilt of the ac- cused, the latter is cited for trial ; otherwise the case is dis- missed. 3 If the accused, upon being cited, refuses con- tumaciously to appear, he is first declared contumacious, and then the trial proceeds in his absence. * But if he ap- pears, he is first invited to make whatever statement he desires concerning the charges ; or also to make his excep- tions, etc. 5 42. Next the contestatio delicti takes place ; that is, the prosecutor presents the specifications or counts of the charge, and the accused admits or denies them. Then all the proofs collected in the proccssus informations are com- municated to the accused. This is called legit imatioprocessus? 1 Instr., art. xv. 2 Ib., art. xvi.-xxi. n lb., art. xxi.-xxiii. 4 Ib., art. xxiv. 5 Ib., art. xxv. fi Ib. , art. xxvi. 22 Heading and Preamble of the 43. After this, the accused is allowed the fullest right of defending himself ; that is, to produce witnesses, documents, etc., and also a full written defence. 1 44. When the judge or auditor has admitted all the wit- nesses and other proofs produced by the accused, he closes the trial, and makes a synopsis of all the evidence submitted on both sides. This entire proceeding, thus far outlined, is called compila- tio processes. Where the curia is not yet established, this compilatio proccssus is made by the Commission of Investiga- tion, acting under the presidency of the Bishop. 2 45. After the close of the trial as just stated, the final defence or final summing up takes place, in the following manner: The advocate of the accused is given full access to all the evidence and records extant in the curia or chancery. He may copy these documents if he chooses. 3 Then these records are sent to the prosecutor, who, having examined them, sums up the case against the accused, in writing. His summing up is communicated to the advocate of the accused. The latter, having thus before him the entire case, prepares a careful and exhaustive summing up, in writing. Whereupon, all the papers, documents, etc., are given to the ordinary, who fixes a day for the sentence, notifying the accused of the day appointed. 4 46. On the day fixed, the sentence is pronounced, and afterwards an authentic copy of it given the accused, who can appeal against it. 5 The appeal has a suspensive effect, except in the cases enumerated by Pope Benedict XIV. Const. Ad Militant is. 6 47. The appeal must be made within ten days from the time the accused receives proper notice of it.' As soon as the appeal has been made, the judge a quo sends all the acts 1 Instr.. art. xxvii., xxviii. Ib., art. xii. 3 Ib., art. xxx., xxxi. Ib., art. xxxiii. * Ib., art. xxxiv., xxxv. 6 Ib., art. xxxvi. " Ib., art. xxxvii. Instruction Cum Magnopere. 23 of the case to the judge ad qucm, who thereupon commands the appellant to appoint an advocate within thirty days. 1 Then the judge ad qtiem i.e., the metropolitan, proceeds to adjudicate the case, observing the same form of trial as outlined in the Instruction for the court of the first instance. 2 48. If the appeal is made to the Holy See, either from the judge of the first instance, or from the judge of the second instance, the appellant must observe the regulations contained in the decree of the S. C. EE. et. RR. Dec. 18, 1835, and the latter's circular, dated Aug. i,i85i. 3 That is, the appellant must, within the time fixed by the Sacred Congregation, appoint an advocate resident in the Roman curia to conduct his case, and take the other steps indi- cated by us below, under article xli. 1 Instr., art. xxxviii., xxxix., xl. 2 Ib., art. xli. 3 Ib., art. xxxvi. PART II. THE INSTRUCTION, IN DETAIL. 49. The entire Instruction may be divided into four parts : the first from article* i. to article ix. decrees the manner of imposing preventive remedies ; the second from article ix. to article xxxv. prescribes the trial proper i.e., mode of inflicting the repressive remedies or punishments ; the third from article xxxv. to article xli. lays down the mode of procedure in appeals; the fourth from article xli. to article xlv. regulates several other matters connected with the trial. Accordingly we shall divide this treatise into a number of chapters to correspond to this division. CHAPTER I. PREVENTIVE REMEDIES MANNER OF IMPOSING THEM. 50. The mode of procedure, given in this first part of the Instruction, is an extrajudicial one. Because the remedies which are imposed by this procedure are paternal correc- tions rather than punishments proper. ART. I. Right and Duty of the Ordinary to Inflict Canonical Remedies. I. " Ordinarius pro suo pastorali munere tenetur disciplinam correptio- nemque clericorum ita diligenter curare, ut circa eorum mores assidue vigilet, ac remedia a canonibus statuta sive praecavendis, sive tollendis abusibus in clerum aliquando irrepentibus provide adhibeat." Preventive Remedies Manner of Imposing Them. 25 51. This article inculcates two principles: one, that it is the bishop's right and duty to watch over the conduct of his clergy, and to prevent or punish crimes and abuses among them ; the other that he can inflict only such punish- ments as are established by the sacred canons. 1 Both these principles are too well known to need any further explana- tion ; we, therefore, pass to the next article. ART. II. The Various Kinds of Remedies or Punishments Established by the Sacred Canons. II. " Haec vero remedia, alia praeventiva sunt, alia repressiva. Ilia qui- dem ad prsepedienda mala, scandalorum stimulos amovendos, voluntarias occasiones et causas ad delinquendum proximas vitandas ordinantur. Haec vero eum in finem constituta sunt, ut delinquentes ad bonam frugem revocentur, ac culparum consectaria de medio tollantur." 52. This article points out the two classes of remedies or punishments which are authorized by the sacred canons, for the prevention or punishment of offences among ecclesias- tics. For the explanation of this article, we refer the reader to the third volume of our Elements of Ecclesiastical Law, which will be published at an early day, and treat ex pro- fcsso of the ecclesiastical punishments, both preventive and repressive, mentioned in the present article of the Instructio. ART. III. Discretionary Power of the Ordinary in Inflicting Punishments. III. " Conscientiae Ordinarii remittitur cujusque remedii applicatio, canonicis praescriptionibus servatis pro casuum ac circumstantiarum gravitate." 53. The law of the Church is : " Poena non irrogatur, nisi quse quaque lege, vel quo alio jure specialiter huic delicto 1 Cap. i, de Off. Ord. 26 Preventive Remedies Manner of Imposing Them. imposita est." l In other words, no crime or offence can be punished, unless it is designated by laiu as punishable. Hence the Instruct, art. xxxiv., enacts that the bishop or vicar- general, when pronouncing sentence of condemnation, shall expressly state the sanctio canonica, that is, the law of the Church which authorizes the infliction of the punishment in the case. 54. Now, as we shall show more fully in the third volume of our Elements of Ecclesiastical Law, there are two ways in which ecclesiastical law designates a crime as punishable. First, the law expressly annexes a specific penalty to a certain unlawful act or omission. Thus the canon si quis suadentc diabolo, 29, c. 17, q. 4, enacts that if any one maliciously mal- treats an ecclesiastic, he shall incur excommunication. Second, the law states indeed that an act or omission is pun- ishable and therefore attaches a general penal sanction to it, but does not express what specific penalty is annexed to it, leaving the ecclesiastical judge free to inflict whatever punisJi- ment he may deem just. 55. Where the law itself clearly states what punishment shall be incurred for a certain offence, the ecclesiastical judge should, as a rule, inflict this punishment and no other. We say, as a rule ; for, where there are extenuating circum- stances, the judge can and should mitigate the punishment. Where the law leaves the judge free to inflict whatever punishment seems fair and equitable, he must be guided in his action by the rules of equity, that is, he should inflict such punishments as will be regarded fair and just by all good and intelligent persons, considering the gravity of the offence and its extenuating or aggravating circumstances. 56. Thus it is evident that an offence i.e., a violation of a la\v, will be punishable in a greater or less degree, accord- ing as the law which is violated is of greater or less import- 1 L. Aliud. 131, ff. de Y. S. (50, 16) ; Miinchen, Can. Trial, vol. i., p. 97. Preventive Remedies Manner of Imposing T/iem. 27 ance or gravity. Next, the same offence or the violation of the same law may deserve greater or less punishment, ac- cording to the circumstances under which it is committed. Thus an offence which is committed not merely once, but repeatedly, and after due admonition, with cool premedita- tion and full malice, is more punishable than the same offence committed v.g., in the heat of passion, on the impulse of the moment, or under the influence of fear, and consequently without full deliberation. All these aggravating or extenu- ating circumstances are laid down in the sacred canons. ' 57. Again, sometimes there may be weighty reasons for not prosecuting a criminal or inflicting any punishment at all. The punishment might cause more harm than good : drive the delinquent to despair instead of causing him to amend ; give scandal, by making an offence public which is still secret ; or implicate a third party v.g., where an eccle- siastic has had illegitimate intercourse with a young lady, of good character and unmarried. For if the young lady should protest against the trial, on the ground that she would be defamed thereby and lose her chances of marriage, it would be wrong for the judge to proceed any farther in the case. 2 It is plain, therefore, that it is left to the conscien- tious discretion of the Ordinary to determine whether or not it is best, in a given case, to proceed against the offender or to take no action at all. Hence, also, as we shall see further on, the diocesan prosecutor cannot prefer official charges against a supposed delinquent, unless he is authorized by the bishop to do so. 58. From what has been said, it is apparent that the Ordi- nary is the judge as to the opportuneness of inflicting the canonical remedies, and also, generally speaking, as to the amount or degree of punishment. This is the meaning of the words : " Conscientice ordinarii remittitur cujusque 1 Mfinchen, 1. c., vol. ii., p. 94. sq. " Droste, p. no. 28 Preventive Remedies Manner of Imposing Them. remedii applicatio, canonicis prsescriptionibus servatis pro casuum ac circumstantiarum gravitate." ART. IV. What are the Preventive Remedies ? IV. " Praeventiva remediasunt praecipue spiritualia exercitia, raoni- tiones, praecepta." 59. The Instruct here enumerates the chief preventive remedies namely, spiritual exercises, admonitions and pre- cepts. It is to be noted that these are the chief, not the only preventive punishments. For a full explanation of each of these preventive remedies, see our Elements of Ecclesiasti- cal Law, Vol. III., Part II., Chapter I. ART. V. When and How are the Preventive Remedies Imposed f V. " Antequam vero ea adhibeantur, summaria factotum recognitio praecedat oportet : cujus notitiam Ordinarius servari curet ut, si opus sit, ad ulteriora procedere possit, et ut auctoritati ecclesiastics superioris gradus in casu legitimi recursus totius rei rationem reddat." 60. The Instructio now (art. v.-ix.) prescribes when and how the various preventive measures are to be applied. We therefore ask : When can these remedies be imposed ? The Instructio itself gives the answer, in article ii., as follows: Ilia (remedia preeventiva) ad prsepedienda mala scandalorum stimulos amovendos, voluntarias occasiones et causas ad delinquendum proximas vitandas ordinantur." In other words, these remedies can be imposed upon an ecclesiastic when he is guilty of actions which are the proximate voluntary occasions of sin, or which give scandal. For a fuller explanation, see our Elements, Vol. III., Part II., Chapter I. 61. The next question is: How are these remedies im- posed ? The Instructio answers : " Antequam vero ea adhi- Preventive Remedies Manner of Imposing Them. 29 beantur, summaria factorum recognitio praecedat oportet." In other words, before applying any of these remedies, the Bishop is bound to institute a summary investigation into the facts of the case. This is the authentic explanation of the phrase summaria factorum recognitio, given by the Holy See itself. For, in the conferences held in ' Rome, in No- vember, 1883, between the Propaganda and our Prelates, one of the latter asked : " Quid significent verba ilia articuli v. deve preccdcrc una sommaria verificazione deV fatto ? " The Cardinals replied : " Significare Episcopum acquirere debere certam cognitionem facti seu criminis, de quo quis accusa- tur ; sed non esse necessarium ut talis cognitio acquiratur modo judiciali, et sufficere documenta extrajudicialia." This answer also gives the aim or object of the investigation, namely, to obtain a moral certainty of the existence of the offence, or reprehensible acts calling for the preventive remedies, lest, otherwise, a person who is not guilty of such offence or acts should be unjustly visited with preventive punishments. 62. As to the manner in which this investigation is to be conducted, it is as follows : It should be made (a) in a pa- ternal, not judicial way ; (b) informally i.e., in a plain, simple manner, without judicial formalities ; (c) non citato nee consti- tute rco ; (d) with great prudence, so that it will not attract publicity ; (e) a written record of the whole investigation shall be kept by the Ordinary, so that he may, in case the preventive remedies produce no effect, proceed even to repressive measures, or give an account of the whole matter to the higher ecclesiastical authority, in case the accused appeals to the latter against the preventive measures of his Ordinary. 63. We say, so that he may, in case the preventive remedies produce no effect, proceed even to repressive ones. For, as we shall show later on, this extrajudicial investigation, though not sufficient to authorize the Ordinary to cite the 3 sons by whom they are committed, 1 into (a) dclicta communia or reatus communes, namely, those which can be committed alike by ecclesiastics and laics v.g., drunkenness, immo- rality ; (b) and dclicta specialia, that is, those which can be committed by ecclesiastics only. Thus the Church has made various enactments regulating the manner in which eccle- siastics should perform the duties of the ecclesiastical offices 1 Canonists also divide crimes, by reason of the forum in which they are justiciable, into ecclesiastical, secular, and mixed. By ecclesiastical, they mean those which offend directly against faith, religion, and ecclesiastical discipline v.g., apostasy, profanation of the sacraments, and which are punishable only in the ecclesiastical forum. Purely secular or civil offences are those which offend against the civil or secular law, and are punishable by the secular power. Finally, mixed offences are those which are injurious both to the Church and State v.g., drunkenness, and which, in consequence, are punishable both by the Church and State. (Prsel. S. Sulp., n. 717; Munchen, vol. ii., p. 73.) In the light of this division, it is possible that the Instruction may mean, by reatits communes, those offences which are called mixed ; and by transgrcssio kgiini ccclesiaslicarum, those which are ecclesiastical. 50 Mode of Proceeding which must be Observed committed to them, administer the sacraments, etc. She has also laid down salutary rules which they are bound to observe in their life and conduct. For instance, she forbids them to frequent theatres, to carry arms, to go hunting in too noisy and public a manner, to wear a secular dress, etc. A violation of these laws is indeed a violatio Icgum Ecclcsice, though not a reatns communis. Thus it will be seen that what is allowed in laics is often forbidden, and therefore criminal, in ecclesiastics. 1 By communis reatns, then, the Instruction seems to understand the offences which are common to laics and ecclesiastics, as just explained. 119. II. Ecclcsiasticarum Icgum transgressio. By the viola- tion of ecclesiastical laws, the Instruction appears to mean the delicta specialia just explained, namely, the violation of those laws of the Church which relate peculiarly and solely to ecclesiastics, as such namely, to their manner of living, to the rights and duties of their state. 1 20. III. Pracepti inobservantia. The precept here meant is that which is described under articles vii. and viii. We have already seen that the precept cannot be imposed ex- cept upon an ecclesiastic who is already on the direct road to crime, or is guilty of scandal. Yet there may be a violation of a precept, and still there may be no other crime, in the legal and canonical acceptation of the term. Thus an ecclesiastic may be in the proximate danger of be- coming a drunkard, because he is in the habit of visiting a certain saloon or house. Certainly the Bishop can warn and command him, in the manner laid down in articles v., vi., vii., viii., not to go there again, and he can punish him if he disobeys, even though he does not get drunk. Here there is a transgression of the precept, if the ecclesiastic disobeys, and yet there is no crime, in the canonical acceptation of the term, apart from the disobedience in the case. Of J See devita ethonestatecltricorum, 1. 3, t. i.; in 6, 1. 3, t. i.; Clem. Eoi, 1. 3, t. i. in Inflicting Repressive Punishments. 5 i course in this case the punishment could not be as severe as if the delinquent had actually become drunk. 121. Still, as a rule, the violation of the precept or injunc- tion will be found combined either with the commission of the rcatus communes, or with the transgressio legum ecclesiasti- carum. For, as has been seen, an ecclesiastic who is guilty of these offences must, before being put on a criminal trial, be given the canonical warnings and the precept. And if he obeys, and repairs the scandal or injury he has given, nothing else should be done. It is only when he disobeys the warning and the precept, as we have shown, that he can be put on trial, and, if convicted, punished. 122. From what has been said, it will be understood in what sense the Instruction states that the Ordinary may in- stitute a criminal action or trial disjunctively for the violation of the precept, or common crimes, or the transgression of ecclesiastical laws. 2. Nature of the Trial. 123. Having explained the first part of the article under consideration, we come now to the second, which states that the trial shall be conducted in a summary manner. As we say in our Elements (Vol. II., n. 1275), apart from a special mandate of the Pope, the formalities of solemn or ordinary canonical trials must always be observed in criminal and dis- ciplinary causes, the summary trial being applicable only to civil causes. Thus Pope Clement V., who in his Constitu- tion Sape (Clem. V. 1 1) describes and defines the manner in which the summary trial is to be conducted, also enumerates, in his Decree Dispcndiosam (II. i) the various causes which can be disposed of in a summary way. These causes refer to ecclesiastical elections, appointments to ecclesiastical offices and the like, but not to the punishment of offences. See our Elements, Vol. II., n. 1273, sq. 52 Mode of Proceeding which must be Observed 124. From this rule of canon law, as established by Pope Clement V., which is still in force, the Holy See, by the In- struction of the S. C. EE. et RR., June 11, 1880, ( ix.) granted a conditional dispensation, by allowing ecclesiastical courts of non-missionary countries to make use of the sum- mary and simple form of trial outlined in the Instruction, wherever the formalities of ordinary trials could not be freely and effectively observed. 1 125. In the present Instruction of the S. C. de P. F. for the United States, the Holy See goes a step farther, and grants an unconditional dispensation from the general law, by authoriz- ing our Bishops to make use of the summary canonical trial in criminal and disciplinary causes of ecclesiastics, without making this concession dependent upon the impossibility or impracticability of carrying out the formalities of formal trials. It may therefore be said that, so far as the formalities of the proceedings are concerned, the trial laid down in the In- struction is substantially the same as that given by Pope Clement V., s but that so far as regards the causes triable by it, it differs from the summary canonical trial of Pope Clement V., in this, that it applies to criminal causes, whereas the former extends only to civil. 126. Hence we do not agree with the Acta S. Sedis* when it holds that owing to this difference the trial of the Instruction of 1880 is entirely different from the summary trial, as denned in canon law, namely, in the two above decretals of Pope Clement V. 127. Q. What is meant by a summary canonical trial? What are the formalities of ordinary trials that can be omitted or must be observed in summary trials ? A. For the answer, we must refer the reader to our Ele- 1 Instr. cit., art. ix. ; our Elements, vol. ii., n. 1277. The Instruction of 1880 is given in full in our Elements, vol. ii., p. 424, sq. * Rota, Enchir., p. 400, sq. 3 Vol. xv., p. 384. in Inflicting Repressive Punishments. 53 incuts. Vol. II., n. 1265, where we discuss these questions ex profcsso. Suffice it here to repeat that in the summary trial only certain accidental formalities can be omitted, but that nothing can be set aside which is substantial or essential to judicial proceedings, as pointed out in our Elements, Vol. II., n. 693, 694, 696, 698, 704, 1267.' 128. Accordingly, in summary trials, as defined by Pope Clement V., and understood in the present Instruction of the S. C. de P. F., it is allowed to omit the formalities of ordi- nary trials respecting (a) the formal tendering of the charge oblatio libclli, (b) and the plea or lit is contcstatio, both of which can be made informally, as we shall see ; (c] the eccle- siastical judge can abbreviate the terms or delays usually granted to the parties v.g., either to propose or to deny the specifications of the crime ; to produce or reply to the proofs, etc. ; (d} he can also repress or restrain within due bounds the too prolix and diffuse discussions of the prose- cutors and advocates ; (e) and decline to admit too great a multitude of witnesses. For other omissions, see our Ele- ments, Vol. II., n. 1269. 129. But the ecclesiastical judge cannot leave out any- thing which is essential to judicial proceedings. In other words, he must, as the Instruction (art. x.) says, always ob- serve, in their entirety, intotasuasubstantia the rules of jus- tice. Consequently, both according to the Constitution of Pope Clement V., and also the Instruction, he is bound (a) to cite the accused for trial ; (b) while no formal accusation or oblatio libclli is necessary, as just seen, an informal one is required. In other words, it is sufficient and necessary that the plaintiff, or diocesan prosecutor, in the beginning of the proceedings, states or presents his petition, demand, com- plaint, or accusation before the judge, without any formal- This is plainly stated in the Instruction, when it says : " Servatis semper in tota sua substantia justitiae regulis." 54 Mode of Proceeding which must be Observed ity, though in a clear, distinct, and specific manner, and that either in writing or orally. If he does so orally, it must be forthwith written down by the secretary of the court, and filed among the acts of the case. 130. (c) Though no formal lit is contestatio is prescribed, as seen, an informal one is essential ; that is, the complaint or accusation must be divided into distinct heads, counts or specifications, called positiones in civil causes, and capitula, in criminal, and these must be communicated to the defendant for his denial or admission. The answer of the defendant to these counts forms the litis contestatio. (//) Unless the litigants agree otherwise, the judge can assign one and the same day or term to the plaintiff or diocesan promoter and to the defendant " ad exhibendum omnia acta et muni- menta " i.e., he can order that the prosecution shall produce all its proofs, witnesses, etc., and the accused his counter- witnesses, documents, etc., within one and the same term. 131. (e) The proofs submitted by the prosecution must be as full and complete as in solemn canonical trials. (/) The right of defence remains as unimpaired as in formal canon- ical trials, (g} The judge can ask questions at any time during the trial. (/*) He must pronounce sentence in writing. 1 See our Elements, Vol. II., n. 1270. A cursory glance will show that all these enactments of the Clementine Constitu- tion are fully confirmed and retained by the Instruction. The ecclesiastical judge, then, should never refuse to admit any testimony or acts, whether submitted by the prosecution or the defence, that are calculated to throw light on the case or clear up the facts in dispute. 132. From what has been said, it is plain (a) that the trial laid down in the present Instruction is a processus canonicus, or canonical trial proper, in the full sense of the term. This is evident, among other proofs, from the fact that the In- 1 Clem. Ssepe 2, de V. S. (v. II.) in Inflicting Repressive Punishments. 5 5 struction expressly calls it a proccssus, and moreover, enacts that appeals shall have a suspensive, not merely a devolutive effect. Herein lies one of the main differences between the trial or rather judicial investigation, prescribed by the Instruction of July 20, 1878, and the trial outlined in the present Instruction. The latter is, as we have just said, a trial proper, or proccssus canonicus, since it complies with all the essential formalities of trials prescribed by the sacred canons. The former is, indeed, as we show in our Elements, Vol. II., n. 730, a judicial procedure, but yet is lacking- in some of the substantial forms prescribed by canon law for trials proper, and is therefore not a canonical trial, formal or summary. ART. XL Manner of Beginning the Trial. XI. " Processus ex officio instruitur, vel accepto supplici libello, vel ac- cusatione, vel nuncio quoquomodo ad Curiam perlato, et usque ad terminum perducitur eo consilio ut omni studio ac prudentia veritas delegatur, ac turn de crimine turn de reitate vel innocentia accusati causa eliquetur." 133. In the preceding article we have discussed the dif- ferent categories of offences for which an ecclesiastic can be placed on trial, and also the form of trial. The present article goes a step farther and shows how the trial is actu- ally commenced. It enacts that the ecclesiastical judge can begin the trial ex officio, as soon as sufficient reasons for so doing are furnished either by denunciations, accusations and complaints, or by any other means. 1 The judge, therefore, proceeds ex officio. Consequently the trial is begun and conducted per viam inquisitionis, and not per viam accnsationis. However, while it is true that the ecclesiastical judge proceeds ex officio, it is nevertheless also true that he does 1 Cf. Prague Instruction, $ 55. 56 Mode of Proceeding which must be Observed not proceed absolutely or wholly ex officio, since he proceeds only at the instance of the diocesan prosecutor, who takes the place of the accuser throughout the entire trial. Con- sequently the mode of procedure of the Instruction holds the mean between that of accusation and inquiry. In other words, it is the summary canonical trial by way of inquiry, blended with tJiat of accusation. It is the procedure by way of inquiry, not indeed ex mero officio, but instantc promotorc fiscali. See our Elements, Vol. II., n. 954, sq. 134. This mode of procedure appears more in harmony with the nature of things than that of pure, absolute inquiry. Justice seems to require that the judge should be so placed as to be left perfectly unbiassed in his judgment. He should resemble the statue of justice, having its eyes blindfolded and holding in its hands the scale of justice evenly balanced, inclining neither one way nor the other. Accordingly it seems proper that the accuser and the judge should not be one and the same person. Even Pope Inno- cent III., who brought the procedure by way of inquiry into prominence, acknowledges this principle, by enacting that fama or common report shall be regarded as taking the place of the accuser. It is no wonder, then, that soon after the time of Pope Innocent III. the practice of having a third person, either a private individual or a public official, to intervene at trials, as accuser, became again universally prevalent in ecclesiastical courts. 135. The Instruction, as we shall explain more fully under article xiii., makes it absolutely necessary that a public official, called diocesan prosecutor {procurator fiscalis), shall be appointed in every episcopal court, whose right and duty it shall be to act as accuser in criminal and disciplinary causes of ecclesiastics. Private individuals have still, even according to the Instruction, the right to make complaints or accusations. But these complaints are regarded merely as information upon which the diocesan in Inflicting Repressive Punishments. 5 7 prosecutor may base his official charges, and which may move the Ordinary to begin the trial. The making of the formal chance or accusation, with all its legal effects, is now reserved, at least practically speaking, to the procurator fiscalis. 1 136. The meaning, then, of article xi. now under discussion is, that the bishop or ecclesiastical judge, having extra- iudicially received information, either through complaints, denunciations, accusations, or through other sources, that a certain ecclesiastic, after having been warned and given the precept, is guilty of a crime punishable by ecclesiastical law ; and having, moreover, ascertained, in an extrajudicial manner, that there exists common fame, fama communis, in regard to the alleged offence ; and having also informally and extrajudicially obtained full or at least half proof of guilt, can, ex officio, begin the special judicial inquiry, by ordering the diocesan prosecutor to draw up the formal charges and thus to commence judicial proceedings. 137. We say first, either through complaints, etc. ; here it is plain that, before taking any action on these complaints or accusations, the Ordinary should carefully examine whether the persons making the complaints are good and trust- worthy, or whether they are animated by ill-will or other unworthy motives. 138. We say, moreover, after having been warned, etc. ; for, as we have seen, the Bishop cannot, as a rule, institute judicial proceedings looking toward the infliction of remedia rcpressiva, until he has first imposed the remedia preventiva. 139. We say, is guilty of a crime punishable, etc.; for, unless such an offence were charged, no punishment could be in- flicted, and the trial would be absolutely null and void and worse than useless. The various classes of punishable crimes are enumerated above, under article x. 1 De Brabandere, vol. ii., n. 121 1. 58 Mode of Proceeding which must be Observed 140. We say again, and having also ascertained that there exists common fame ; for, as we show in our Elements of Ecclesiastical Law, Vol. II., n. 955, the ecclesiastical judge cannot, except in a few cases enumerated in our Elements, Vol. II., n. 957, begin ex officio a special judicial inquiry or inves- tigation against any one who has not been previously desig- nated by public opinion or common report (infamia facti) as the party guilty of the crime for which the inquiry is to be in- stituted. In other words, the fama communis or infamia facti must precede a special judicial investigation made ex officio. This holds so strictly that when the Ordinary begins such an inquiry, where there is no previous common report, all his acts and proceedings are null and void. Our Elements, Vol. II., n. 958. Here it should also be observed that complaints or denunciations do not supply the place of common report : and the infamia facti is required also, where a complaint is lodged. Acta S. Sedis, Vol. XVIII., p. 60; our Elements, Vol. II., n. 944. 141. The reason is obvious. For, so long as the crime committed by an ecclesiastic is occult, such ecclesiastic re- mains in possession of his good name, and therefore has the right not to have this good name taken away from him. Consequently the ecclesiastical superior has no right to destroy this good name by ordering a trial and thus defaming him, 1 save, perhaps, in the few cases given in our Elements, Vol. II., n. 957. This will become still more apparent when we remember that, according to the Roman law,* adopted by the Church, a good reputation is to be preferred to any tem- poral emolument, nay, it should be as dear as life itself. 3 Hence the poet very justly writes : " Omnia si perdas, famam servare memento; Qua semel amissa, postea nullus eris." 142. If this is true of every person, it holds true especially 1 Our Elements, vol. ii., n. 956 ; Rota, 1. c. , p. 278. 9 L. Julianus, 26 ff. (29, 4). 3 L. Justa., 9 ff. de Man. vind. (40, 2). in Inflicting Repressive Punishments. 59 of ecclesiastics and priests. For, in their case, the loss of good name is not merely hurtful to themselves, but detri- mental to religion, and destroys their usefulness. ' Hence the law of the Church is based on justice and equity, when it enacts that, except, perhaps, in a few cases, the Ordinary can- not ex officio begin a special judicial investigation against an ecclesiastic, where there exists no previous common fame, and where, consequently, the ecclesiastic has not, as yet, lost his good name. 143. This entire teaching concerning the necessity of pre- vious fauia communis is fully confirmed and applied to trials conducted under both the Instruction of June 1 1, 1880, and the Instruction for this country, by a recent celebrated decis- ion of the Holy See, given by the S. C. C. on April 18, 1885. The case decided was the following: A certain priest of Milan, named David, was accused before the Archbishop of Milan of having said mass after he had taken his break- fast. Thereupon the Archbishop instituted judicial proceed- ings against him. The curia found him guilty. He appealed to the S. C. C. against the final sentence of the Metropolitan Court. His advocate at Rome urged, among other things, that the whole trial was null and void, because, although David had been accused before the Archbishop of the above offense by two persons, yet there existed no previous common report or infamiafacti. The S. C. C. decided twice, first on 20 Dec., 1884, and then again on the i8th of April, 1885, that the sentence pronounced by the curia of Milan must be reversed. See Acta S. Sedis, Vol. XVIII., p. 56, sq., 1885. 144. We say also, and having, moreover, obtained full or at least half proof of guilt ; for, as we show in our Elements, Vol. II., n. 994, a common report is of itself not sufficient to authorize the Ordinary to proceed to a special judicial inquiry. He cannot proceed to such an inquiry unless 1 Rota, 1. c., p. 279. 60 Mode of Proceeding which must be Observed there exists, besides fama communis, also at least half proof of guilt. 1 Only when the Ordinary has found that there is common report, and also at least half proof, can he begin a special judicial investigation by ordering the prose- cutor to prefer charges. All this is fully and clearly brought out in the above case decided by the Holy See. See Acta S. Sedis, 1. c., pp. 60, 74. 145. We also say, informally and extrajudicially ; because, as we have seen, in speaking of the information gathered by the Bishop, prior to imposing preventive remedies, the Bishop, or diocesan prosecutor, acting by order of the Bishop, is not bound to observe any judicial formality in as- certaining whether there is sufficient cause for ordering the first steps of the trial, namely, the drawing up of the charge and the processus informativiis. From what has been said it follows that a trial or special judicial inquiry should not be ordered or begun except for crimes which are very grave and also give public scandal ; that, consequently, the superior should dissemble and overlook the lighter offences and those which give no scandal, rather than institute judicial pro- ceedings and inflict repressive punishments on their account. - 146. We say, orders the diocesan prosecutor to draw itp the official charges. The first step in all judicial proceedings, whether by way of accusation or investigation, is the pre- senting to the judge the charges or bill of complaint, and demanding that he shall proceed against the accused. See our Elements, Vol. II., n. 985. This is done by the diocesan prosecutor. This is proper. For, whatever is done against the accused, should be done at the instance of this public official, lest, otherwise, if the judge proceeds proprio niotu, 1 We say, at least, for, as appears from the decision of the S. C. C., 18 April. 1885, there should be the fullest proofs possible, probationes certissinuc ; they should be so strong that nothing else but the confession of the accused seems necessary. (Acta S. Sedis, vol. xviii., p. 60; Schmalzg. , 1. c., t. i. , n. 224.) - Arg. Cap. Inquis. 21 (v. i.) ; L. levia, 6 ff. de inq. ; Schmalzg., 1. 5,1. 5., n. iS6. in Inflicting Repressive Punishments. 6 1 he would seem to act both as plaintiff or accuser and judge, and thus perform two kinds of incompatible functions. 147. While, however, the formal or legal charge (libellns dcmmciatorius, accusatorius) is formulated or framed and pre- sented by the prosecutor, and by him alone for he alone is the officially recognized accuser yet he cannot do so, unless he has either a general or a special mandate to that effect from the Bishop. The reason is that, as we have seen, the Ordinary alone has discretionary power to decide whether and when judicial proceedings shall be begun against an ecclesiastic. 148. Where, then, the fiscal procurator, whether by special or general mandate of the Ordinary, is about to present charges, he should naturally, before doing so, go over all the evidence in hand, and, if necessary, make further in- quiries, carefully indeed, but discreetly, extrajudicially and unostentatiously, in order that he may be able to make the charges in a clear, specific, and detailed manner. He should frame the bill of charges with care, since it forms the basis of the whole trial, and can, indeed, be changed prior to the lit is contestatio, but not after that. See our Elements, Vol. II., n. 991. 149. As to the formalities required in making the charge, suffice it here to remind the reader that the trial of the In- struction is a summary, not a formal one ; that, therefore, the prosecutor need not make the charge with the formalities prescribed for ordinary trials ; that, in fact, all that is necessary is, that he shall make the charge either orally * or in writing, and that the charge, no matter in what form it is made or presented, or in what terms it is couched, shall set forth the offence charged in a clear and specific manner. He concludes his official, though informal, charge by asking that the judge shall proceed against the accused 1 If made orally, it must be forthwith written down by the chancellor, as dic- tated by the prosecutor. 62 Mode of Proceeding which must be Observed pront de jure ; but he does not specify the punishment to be inflicted. It is advisable, also, though not necessary, for the prosecutor to conclude his charge with this or a similar general formula : " Isto, et omni alio meliori modo, etc. " l 150. Having drawn up the charge (libellus accusationis), he presents it at the episcopal chancery, where the chancellor writes on it the date of its presentation, and then files it among the acts of the case. 2 The subsequent steps the prose- cutor must leave in the hands of the Bishop. 151. Here it is well to remember that the diocesan prose- cutor represents the diocese and the interests of religion and justice ; that it is just as much in the interest of the diocese, religion and justice to protect and acquit the innocent, as it is to punish the guilty. Consequently, while the onus pro- bandi delictum lies upon the prosecutor, he should collect not only what is damaging, but also what is favorable to the accused. Hence also the Prague Instruction correctly or- dains : " The ecclesiastical court is also bound, in criminal causes, to order and perform ex officio all those things which may serve to arrive at a complete knowledge of the truth." 3 Consequently the Instruction says (art. xi.) that the object and aim of the trial is to find out the truth, that is, whether the accused is innocent or guilty. Accordingly, both the prosecutor and the ecclesiastical judge should try to establish the innocence of the accused, no less than his guilt. 1 Pellegr., P. iv., Sect, i., n. 52. * Droste, p. 112. 3 Art. Ivi. in Inflicting Repressive Punishments. 63 ART. XII. The Preliminary Trial, or Special Judicial Inquiry which Pre- cedes the Citation of the Accused. (Processus pro Informationc Curies.} XII. " Ubi Curiae jam constituta sunt, compilatio processus committi potest probo ac perito viro ecclesiastico, cui assistat actuarius. In dioecesibus vero, in quibus Curiae Episcopales nondum possint institui, interim observanda est Instructio anni 1878, cum responsione earn sub- sequenti ad proposita dubia. Defensio autem rei erit in scriptis exhibenda ad normam praesentis Instructions. Videlicet singuli Antitites in Synodo Dioecesana audito clericorum consilio, quod tamen sequi non tenentur, quinque, vel ubi adjuncta rerumid fieri non sinant, tres saltern presbyteros ex probatissimis et, quantum fieri poterit, in jure canonico peritis seli- gant ad hujusmodi officium, ut in praedicta Instructione declaratum exstat, exercendum. Quod si ob aliquam gravem causam Synodus haberi ne- queat, quinque vel tres, ut supra, ecclesiastici viri per Episcopum ad idem munus deputentur. Electi in officio manebunt usque ad proximam Dioecesanae Synodi celebrationem, in qua. vel confirmentur, vel alii eorum loco designentur. Quod si interdum morte aut renuntiatione vel alia causa praescriptus consiliariorum numerus minuatur, episcopus au- dito consilio caeterorum ad commissionem pertinentium alios sufficiet. Porro commissio haec consultorum jurejurando obstricta tenetur ad officium fideliter adimplendum, et praeside Episcopo vel Vicario Generali rem suam aget." 152. The Instruction, in the present article, indicates what is to be done after the diocesan prosecutor has handed in his charge, as explained in the preceding article. We have seen, in the foregoing article, that the Ordinary, before be- ginning judicial proceedings, by ordering the prosecutor to make the charge, is obliged to ascertain extrajudicially, (a) the nature of the charges (b) and the fundament um delicti, that is, the reliability of the sources whence they emanate. J 153. The information thus gathered v.g., from the wit- nesses and documents examined is, as was seen, extrajudi- ciai, and consequently, though sufficient to authorize the making of the official charge and the beginning of the trial, 1 Instr., art. xv. 64 Mode of Proceeding which must be Observed is yet without any judicial force, and therefore wholly inade- quate to warrant the issuing of the citation to the accused. For, the judge cannot proceed to cite the accused for trial. unless he has at least a judicial, ' not merely an extrajuridical. half proof of guilt. The reason is plain. A person who is cited as a defendant in a criminal cause, becomes thereby suspected of guilt among the people. Now, the very law of nature dictates that no one shall be thus treated with- out a sufficient cause i.e., without sufficient grounds for believing him guilty. See our Elements, Vol. II., n. 993, sq. 154. Consequently, when the Ordinary or judge conducts the trial per viam inquisitionis, 2 as he does according to the Instruction, in the sense already explained, he must, be- fore he can issue the citation to the accused, examine in a judicial though summary manner, both the evidence which was collected extrajudicially by the Bishop or prosecutor, prior to the making of the official charge, and also all other relevant testimony which he may be able to gather. Thus he will verify or substantiate judicially what was already verified extrajudicially. We say in a judicial though sum- mary way ; thus the witnesses who are examined must be examined in the presence of a notary, who takes down the testimony, under oath, and in the manner laid down in the Instruction under articles xvii., xviii., xix., xx. This pre- liminary judicial investigation or trial is called /r0fifttf infor- mations or processus pro informations Curies, because it takes place nonduni constitute ncc citato rco and chiefly for the purpose of informing the Bishop's court whether there are 1 We say, at least ; for the judge should try to obtain all the proofs attainable therefore full proof, if possible, before he cites the accused. Hence the processus informativus should be as thorough as possible. - When the trial is per viam accitsationis, no such informative proceedings are required. For it is the duty of the accuser, not of the judge, to see whether there is sufficient reason to proceed to the citation (our Elements, vol. ii., n. 994). in Inflicting Repressive Punishments. 65 sufficient grounds, juridically speaking, for citing the ac- cused. 1 155. When the judge has thus juridically ascertained, through witnesses, or other authentic and legal sources of information, that there is at least &probatio semi plena of crime, he can issue the citation. When the accused appears, on citation, and has been fully informed of all the evidence collected against him, he has the full right to answer, that is, to defend himself. After the judge or auditor has ad- mitted all the witnesses, documents, etc., produced by the defendant, he closes the trial and makes a synopsis of all the evidence submitted on both sides. 156. This whole procedure, namely, ti\Q processus informa- tions, the citation, the receiving of the defence, in a word, the whole trial, exclusive of the summing up by the prose- cutor, and the defendant's advocate, and the final sentence, is called by the Instruction compilatio processns? And justly so. For the word compilatio means the gathering together of various objects. Now it is evident, from what has been said, that the office of the judge, in the above proceedings, is to collect, arrange and prepare all the proofs for and against the accused, so that he may be able to pronounce a just sentence. 157. The Instruction enacts that in those dioceses of the United States, where the curia has been organized in the manner indicated by the Instruction, the compilatio processes, as above explained, may be committed to a worthy eccle- siastic learned in canon law, who shall always be assisted 1 The Third Plenary Council of Baltimore (Nos. 299, 311) uses the phrase pro- cessus inforniativus to signify the entire trial, exclusive only of the final defence or summing up, as described in article xxxii. The Council therefore employs the phrase in a much wider sense than canonists, who generally use it to denote merely the special judicial inquiry that precedes the citation of the accused, as we explain above. However, it is merely a question of words, not of law. - Cf. Pellegr., P. iv., Sect, xii., n. 41. 66 Mode of Proceeding which must be Observed by a notary or secretary. In other words, the Bishop can authorize or delegate an ecclesiastic to make the proccssns informativus, summon the accused, hear and admit- his en- tire defence, and close the case. 158. This official is called auditor, or actorum redactor, or also investigating judge, in contradistinction to the deciding judge who pronounces the decision or final sentence. * For the auditor, as we say in our Elements, Vol. II., n. 900, " has indeed, according to the Instruction, delegated jurisdiction so far as the hearing or taking cognizance of the cause is concerned, so that he can issue the citation to the accused, admit witnesses, proofs, etc., but he cannot pronounce final sentence." Hence it will be also observed that the office and functions of the auditor are similar to those exercised by the commissions of investigation according to the In- struction of July 20, 1878, and the subsequent authentic explanations of the Holy See. See our Elements, Vol. II., n. 901. 159. Q. Can the auditor be challenged as suspected, and what is the effect of such challenge ? A. We have seen, in our Elements, Vol. II., n. 1035, that a person who is otherwise perfectly competent may be challenged as suspected. We also show in our Elements, Vol. II., Nos. 904-908, 1042, that auditors, assessors, and commissions of investigation with us, may be objected to as suspected. Hence it is certain that the auditors of whom we speak may be challenged by the accused as suspected. * This is the common teaching of canonists, and is now placed beyond a shadow of doubt by the famous decision recently given by the S. C. C., Apr. 18, 1885. (See the ActaS. Sedis, Vol. XVIII., p. 56, sq., 1885.) 160. Q. How is the challenge to be made? A. Before answering, we premise : When a person chal- 1 Cf. Cone. PI. Bait, iii., n. 323. * Cap. Super quastionem 27 (I. 29); Bouix, de Jud., vol. i., p. 461. in In/lie ting Repressive Punishments. 67 lenges an ordinary judge as suspected, he must allege and prove the motives on which the challenge is based. * If he does, the Ordinary thus challenged must withdraw from the case, on pain of nullity of the proceedings. 2 If he does not prove the challenge, the latter has no effect whatever. 161. We now answer: The auditor is but a delegated judge. Now, it is certain that a delegated judge, or an assessor, s or an auditor who is appointed merely for a par- ticular cause, that is, to preside or assist at a particular trial only, and not at trials in general, can be challenged peremp- torily, in the same manner as members of juries in our civil courts can be challenged. In other words, the accused can, in the case, challenge the auditor without alleging or proving any cause whatever. * The effect of this peremptory chal- lenge is that the auditor, assessor or delegated judge thus challenged becomes at once incompetent, so that if he does not retire from the case, the whole proceedings are null and void. 5 This argument is clearly brought out in the case decided by the celebrated decree of the S. C. C. above mentioned. 162. But where the assessor, auditor or delegated judge is appointed ad universitatem causarum, that is, where he is appointed to try or assist at the trial of any cause that may come up, and not merely of this or that particular cause, he can be challenged only for cause ; and consequently the person challenging must allege and prove the cause of the challenge, just as in the case of an ordinary judge. 6 163. From this it will be seen that where the auditor, under the present Instruction, is appointed only to conduct a particular trial, he can be challenged as suspected, without cause ; but where he is permanently appointed i.e., to con- 1 Card, de I.nca, lib. 15, de Jud., disc. 3, n. 63. 2 Ib., n. 71. 3 Ib., disc. 4, n. 6, 7, 12, 14. * Ib., disc. 3, n. 63; cf. Acta S. Sedis, vol. xviii., p. 58, an. 1885. 5 Ib., n. 71. e Tb., n. 63. 68 til ode of Proceeding which must be Observed duct all trials, he can be challenged only for cause. In like manner, where commissions of investigation still exist among us, by Papal dispensation, the members of these bodies can be challenged only for cause, at least, according to the letter of the law, since they are permanently appointed as assessors, and not merely for this or that particular trial. For fuller information on this head, see our Elements, Vol. II., 164. We say, at least, according to tJie letter of the A?r*.' ; for as Card, de Luca teaches, if the contrary custom pre- vails in a place, it should be followed. Thus, as a matter of fact, in the Roman Curia, ordinary, and delegated judges, auditors and assessors who are appointed " ad universita- tem causarum " may be challenged peremptorily and with- out cause, just like delegated judges, auditors or assessors, appointed only for a particular case. In fact, in Rome, as Card, de Luca says, there is scarcely ever any occasion for challenging a judge, assessor or auditor, since the latter, even though he be a Cardinal, usually retires from the case, of his own accord, whenever there is any ground what- ever for a challenge. 165. It will be observed that we state that assessors or advisers of the judge may be challenged as suspected in the same manner as the judge himself. This principle is held by canonists in general, and admits of no doubt. See Card, de Luca, de Jud., disc. 4, n. 5, 6, 11, 12, 13; Pelle- grino, P. 2, Sect. I., Subs. 6, Inters. 4, n. 59, 60 ; Bouix, de Jud., Vol. I., p. 468, 469. 1 66. Consequently the Pastor seems to have fallen into an inadvertence when it asserts in its December number for 1885, p. 51 : " David had objected to the assessor even as such. His objection was overruled by the S. C. C. on the ground that the assessor teas no judge." For, as appears clearly from the Acta S. Sedis, Vol. XVI., p. 328-337, the S. C. C., in its decision of July 7, 1883, clearly admitted, on the one hand, David's right to challenge the assessor, and on in Inflicting Repressive Punishments. 69 the other overruled David's challenge because Jie had not slwii'ii that there lucre sufficient reasons for considering the as- sessor in the case as suspected. 167. That this was the reason why the S. C. C. in the case overruled David's challenge, is evident from a simple state- ment of the facts. On the trial before the curia of Milan, in the first instance, David, the accused priest, objected to Joseph R., one of the assessors of the court, as suspected, on account of enmity. The curia of Milan overruled this objection ; against this ruling David appealed to the S. C. C. His appeal was admitted and a stay of proceedings granted by the S. C. C. Having, upon examination, found that the alleged enmity of the assessor was not proven by David, the S. C. C. decided that the assessor need not be excluded from acting as such in the case. From this, then, it will be seen that the S. C. C. overruled David's objection or challenge, not on the ground that the assessor is no judge; but because David had failed to prove that there were any sufficient reasons for his challenge. For if the Sacred Con- gregation had been of opinion that it is unlawful to chal- lenge an assessor, then it would not have admitted David's appeal at all. * In fact, according to the Acta S. Sedis, 1884, p. 328, sq., the principle that auditors, assessors, etc., can be challenged, was reaffirmed by the S. C. C., as lately as July 7, 1883, Deer, et Appell. 1 68. From what has been said, it will be seen that the duties of the auditor, or judicial commissioner, may be di- vided into those which precede and those which follow the citation of the accused. 169. I. Duties of the auditor prior to the citation of the accused. Prior to the citation, he must, in a juridical manner, collect all the proofs and documents, etc., which go to 'show the guilt or innocence of the accused, in order that it may 1 Acta S. Sedis, vol. xvi., p. 336. jo ^lodc of Proceeding which must be Observed appear juridically whether there is sufficient ground for the citation, and that the accused may not be able to accuse the curia of malicious prosecution or calumnia. This preliminary investigation, which canonists usually term proccssus in/or- mativus,proccssuspro informatione curies, should be as thorough as possible, as we explain in OUT Elements, Vol. II., ^969, 983. Hence he should juridically, though summarily, examine documents, witnesses and all other evidence produced by the diocesan prosecutor or by other parties. In examining witnesses, etc., he must do so in the manner laid down in the Instruction, under articles xvii., xviii., xix., xx. In other words, he should cite the witnesses, examine them separate- ly, one by one, under oath, and in the presence of the secre- tary or chancellor, who must take down the testimony. 170. However, this examination of witnesses, etc., taking place, as it does, in the absence of, and prior to the citation of the accused, non constituto rco, has not, of itself, such force of legal proof as will suffice for conviction, but is chiefly for the information of the court, to enable it to find out whether there is sufficient cause for citing the accused, and thus to avoid the danger of being accused of calumnia or malicious prosecution. 171. We say, of itself ; for if constituto reo, that is, if the ac- cused, after being cited, is duly informed of the examination and testimony of the witnesses, and then declares that he is satisfied with the examination-in-chief of the witnesses as made before his citation, and does not desire it to be re- peated, then it obtains the same force as though it had been made after the citation and in the presence of the accused. 172. II. Duties of the auditor after the citation of the ac- cused. When the auditor has thus collected all the testi- mony which is available, he closes the processes informa- tivus, 1 and issues the citation to the accused, provided he 1 Instr., art. xxi. in Inflicting Repressive Punishments. 71 finds there is at least a juridical half proof of guilt. After citing the accused, the auditor must communicate to him the accusations, unless this had been done already in the cita- tion, and the proofs, etc., extant in the curia against him ; admit his defence i.e., hear and examine the witnesses and other evidence adduced by him, as we state. In a word, he does what the commission of investigation is empowered to do, according to the Instruction of 1878. This is clear from articles xxii. to xxx. of the Instruction. 173. Should the accused contumaciously fail to appear be- fore the auditor, on due citation, the latter will proceed in the manner laid down in article xxiv., as we shall explain below. 174. When the hearing or trial is over, the auditor writes out a report or synopsis of the proceedings and of the proofs submitted on both sides. This report plainly resem- bles the verdict or opinion given by the commission of in- vestigation, according to n. 9 of the Instruction of 1878. The auditor, like a master in chancery in our civil courts, gives in his report to the court. Here his duties end. 175. Appointment of the auditor. According to the gener- al law of the Church, the Bishop is not, generally speaking, obliged to appoint an auditor for his court, as we show in our Elements, Vol. II., n. 902. The article under consider- ation likewise says that the " compilatio processus " can, not that it should be entrusted to an ecclesiastic as auditor. However, according to commentators on the Instruction of 'June 11, 1880, the phrase " committi potest " contains an im- plied recommendation that an auditor be appointed ; that the judge (called auditor) conducting the trial shall be differ- ent from the judge giving the final sentence ; that is, that the trial shall be conducted by one judge, and the final deci- sion rendered by another. In fact, the auditor, acting, as he does, more or less in the capacity of inquisitor, is, by the very nature of his functions, easily accessible to prejudices. 72 Mode of Proceeding which must be Observed Let us imagine ourselves in his place. He begins the inves- tigation free from all bias. As a rule he will not imme- diately find full and conclusive proofs, whether of guilt or innocence. He will first discover indications of guilt. And he will gradually, though perhaps unconsciously, form in his mind an opinion as to the guilt or innocence of the accused, even before he has found sufficient proof of either. As he proceeds in his investigation, his preconceived opinion or prejudice may change, but it may also grow stronger and stronger, even though the proofs do not warrant it. 176. On the other hand, the deciding judge, when different from the investigating judge, has all the materials or proofs laid before him at once. He does not go in search of them. This fact constitutes a strong guarantee of his not prejudg- ing the case and consequently of his impartiality and freedom from preconceived opinions. It is needless here to say that the office of auditor and procurator fiscalis cannot be discharged by one and the same person. The auditor acts as judge ; the prosecutor as accuser. 1 Now it is evident that these two functions cannot be exercised by the same person. We have said that the auditor must be attended in all his proceedings by a notary or secretary, who shall write down and file all the acts, evidence, etc., as we explain in our Elements, Vol. II., n. 924. If the auditor or judge proceeds without the assistance of the secretary, the whole proce- dure is null and void. The secretary can be challenged as suspected, just like the auditor, assessor or judge himself. - It has been repeatedly decided by the Holy See that the. procurator fiscalis cannot discharge the duties of the notary : that the two offices must be filled by two different persons. 3 Our Elements, Vol. II., n. 1146, sq. 177. Commissions of Investigation. These are the functions 1 Ct., art. xxxtii. and xxxv. ; Droste, p. 48; our Elements, vol. ii., n. 912, sq. * Droste, p. 42, 43. * Cf. S. C. EE., et RR., 7 Feb., 1677; Droste. p. 49. in Inflicting Repressive Punishments. 73 of the auditor, in those dioceses where the Bishop's curia is organized in accordance with the Instruction. In those dioceses, however, where the Bishop's curia cannot as yet be established in the above manner, the Instruction of the S. C. de Prop. Fide, dated July 20, 1878, together with the subsequent authentic explanations of the same Congrega- tion, and certain modifications laid down in the present Instruction (art. xii.), continues in full force, and is to be observed until the court can be organized in accordance with the present Instruction. In other words, where it is impossible to establish the curia in the manner indicated by the Instruction, and set forth in the Third Plenary Council of Baltimore (n. 299, sq.) and also in our Elements, Vol. II., n. 896, the compilatio processus, or the trial, though only from the citation of the accused to the final sentence exclusive, is conducted by the commission of investigation and not by the auditor. We say, though only, etc.; for the processus informativus proper that precedes the citation, seems not to be conducted by the commission, since this body is con- vened only after the citation has been already issued to the accused. 178. The mode of procedure of commissions of investi- gation is somewhat modified by the present Instruction (art. xii.). Thus formerly the members of the commission were not sworn ; now they must take the oath to discharge their duties faithfully. Moreover, according to the In- struction of 1878, they were presided over by one of their own number ; now they conduct their proceedings under the presidency of the Bishop or Vicar-general. Again, the summing up for the defence, as outlined in the Instruction of 1878, could be made orally or in writing; now it must be made in writing, in the manner laid down under articles xxx.- xxxiv. Apart from these alterations, the mode of procedure to be followed by commissions of investigation, where they still exist ad interim, by Papal dispensation, is the 74 Mode of Proceeding which must be Observed same as that laid down in the Instruction of 1878, and the subsequent Responsum ad Dubia, and fully explained in the second volume of our Elements. 179. We have just said, by Papal dispensation; for the Third Plenary Council of Baltimore (n. 297 and n. 298), in accordance with the resolutions of the Roman Conferences held in 1883, enacts: " Statuimus ac omnino prsescribimus ut in singulis Nostrarum Provinciarum dioecesibus curice Episcopales quamprimum constituantur vel saltern ultra triennium post Concilii promulgationem hasc curiarum con- stitutio non differatur sine S. Congr. cle Prop. Fide dispen- satione obtinenda pro dicecesibus in quibus intra hoc tempus id fieri nequeat." 1 80. Consequently Bishops are bound to establish the curia, as soon as possible, and at the latest, within three years after the promulgation of the Third Plenary Council of Baltimore. Where a Bishop cannot establish the curia within this period, he is obliged to have recourse to the S. Congr. de Prop. Fide and obtain permission to defer the establishment of the curia ; where this permission has been obtained, the Instruction on Commissions of Investigation, dated July 20, 1878, together with the response of the Holy See, ad Diibia, as modified in article xii. of the present Instruction, must be observed ad interim i.e., until the curia can be and is established in accordance with the present Instruction. Thus the Third Plenary Council of Baltimore (n. 298) enacts : " Interim vero, quamdiu ex dispensatione S. Sedis curia in aliqua dicecesi constituta non est, illic ob- servari debet Instructio de Commissione Investigationis 20 Julii, 1878, cum responsione subsequenti ad proposita dubia ; necnon ea quas hac de re in nuperrima Instructione S. Congregationis de Prop. Fide super clericorum causas dis- ciplinares, articulo xii. notantur." in Inflicting Repressive Punishments. 75 ART. XIII. The Diocesan Prosecutor. XIII. " In qualibet Curia Episcopal! procurator fiscalis constituetur, ut justitiae et legi satisfiat." 181. We have just seen, that it is obligatory to establish the curia in every diocese, except where a dispensation is granted by the Holy See to continue the commission of investigation ad interim. The question now presents itself : what is here meant by the Curia Episcopalis ? What is its personnel? By the Bishop's court (Curia Episcopalis] is here understood the body of persons who, either with the Bishop, or in his name, and by his authority, exercise contentious juris- diction. 1 According to the Instruction, as explained by the Third Plenary Council of Baltimore, (p.. 299, sq.) this curia is necessarily composed (a) of the Bishop or Vicar-general, or his delegate, as judge ; 2 (b} of the chancellor of the diocese as secretary, 3 (c) and of the diocesan prosecutor, as plaintiff or accuser. To these the Bishop may, if he finds it ex- pedient, add an auditor for the processus compilatio ; special or additional notaries or secretaries; messengers. 1 This organization or personnel of the Bishop's court for the ad- judication of criminal and disciplinary causes of ecclesiastics, is in accord with the prescription of the general law, as we show in our Elements, Vol. II., n. 896-927. 182. Observe, according to the Third Plenary Council of Baltimore, (n. 311) the chancellor of the diocese should act as the secretary. According to the general law of the Church, the chancellor of the diocese is not necessarily the secretary of the curia ; the Bishop can appoint any other competent person to be the secretary. It seems probable, therefore, that when the Third Plenary Council of Baltimore 1 Bouix, de Jud. vol. i., p. 343; Craisson, n. 5752. - Cone. PL Bait, iii., n. 300. s Ih.,n. 311. ' Ib., 11.323. 76 Mode of Proceeding which must be Observed (n. 311) says " Compilatio processus committi potest probo ac perito viro ecclesiastico, cui assistat actuarius, qui sit cancellarius diceceseos " it simply recommends that the chan- cellor be made the secretary. The secretary, whether the chancellor of the diocese or any other person acts as such, can be challenged or objected to, as suspected. 1 183. We have already, in this treatise, incidentally touched upon the duties of the judge, and of the chancellor or sec- retary. Moreover, we fully explain the functions of the judge in our Elements, Vol. II., n. 711, sq.,and n. 897, sq.; and those of the secretary, ib., n. 918, sq. Here, then, it but remains to say a few words in regard to the procurator fiscalis. However, as we also speak at some length of this official, in our Elements, Vol. II., n. 912, sq., we shall here add only a few explanatory remarks. 184. The present article enacts that a diocesan prosecutor shall be appointed in every Episcopal Curia. This is in full harmony with the general law of the Church. 2 In fact, as in all criminal proceedings of the secular courts of the United States, the government or state is a party to the prosecution, 3 so likewise is the diocese or the diocesan government always a party to the prosecution in all criminal proceedings of the ecclesiastical courts. This is but proper. For it is the interest of the diocese that crime shall be pun- ished. Hence the necessity of a special law officer to attend to the interests of the diocese and to conduct all criminal proceedings. So necessary is it that a diocesan prosecutor shall be appointed and be invited to intervene at the proceedings or trial, that the trial is otherwise null and void. 4 Cf. our Elements, Vol. II., n. 915. 185. Rights arid duties of the prosecutor. As we shall discuss 1 S. C. C., 7 Julii, 1883; Acta S. Sedis, 1884, p. 328, sq.; Droste, p. 42. Our Elements, vol. ii., n. 915. 3 Walker, American Law, p. 114. 4 C. PI. Bait, iii., n. 325 ; Pellegr., P. iv., Sect. I., n. 18. iii Inflicting Repressive Punishments. 7 7 them incidentally in the course of this commentary, as occa- sion offers, we shall only touch upon them briefly in this arti- cle. It is the right and duty of the prosecutor to intervene at all judicial proceedings, whenever any step is to be taken against the accused. Consequently, he must, on pain of nullity, be cited to be present at the proceedings. The reason is, that being the official prosecutor, he takes the place of the accuser. Now the ecclesiastical judge should not take any step against the accused, except at the instance of the prosecutor or accuser. Otherwise, if he proceeded proprio motu, he would appear to act as judge and accuser at the same time. Since then, whatever steps are taken against the accused v.g., the informative process, the citation, etc., can be taken only at the demand of the prosecutor, it is plain that he must necessarily be present at all these pro- ceedings, and, consequently, must also, on pain of the nullity of the proceedings, be notified to attend. 1 From this it fol- lows that it is his right and duty to draw up and present the charges, and to ask that the trial be begun, that the prelimi- nary inquiry or the proccssus informattvus be instituted ; to produce before the auditor, both before and after the cita- tion, witnesses, documents, etc., to sustain the charges and the like. 2 (Cone. PL Bait. III., n. 301.) The Acta S. Scdis? commenting on the Instruction of the S. C. EE. et RR. Sacra Jicec of June n, 1880, article xi., which is almost word for word the same as article xi. of the Instruction Cum Magno- pere, says : " Articulus xi., ante omnia, quatuor exhibet modos processum instruendi ; iique sunt : I. ex officio ; 2. in sequelam supplicis libelli ; 3. in sequelam querelas ; 4. in sequelam notitise quae alia quavis ratione ad curiam perve- nerit. . . Processus ex notitia quae alio quovis modoad curiam 1 Card. Kutschker, Eher., vol. v. , p. 493. - Pellegr., p. iv., sect, i., n. 18-20 ; Acta Eccl. Mediolan., vol. i., p. 22-9$, 233-566. 3 Vol. xv., p. 385 7& Mode of Proceeding which must be Observed pervenerit, turn prassertim instituitur, cum notorimn cst rei crimcn, notorietate facti. Verum quOniam hie etiam modus, persona eget quae actoris seu accusatoris partes suscipiat ex officio, et persona nulla alia esse potest quam promoter fis- calis, cum primo, hoc est cum modo processum instruendi ex* officio confunditur." The Acta, therefore, seems also to hold that even in notorious crimes, the trial laid down in the Instruction must be given to the accused. 1 86. Of course, the diocesan prosecutor can exercise the functions of his office only in the curia for wJiicJi lie is appointed, and not in any other curia. Outside of his own curia he has no status whatever as prosecutor. Consequently, when, for instance, an accused ecclesiastic, who is tried and con- demned by the curia, appeals to the Metropolitan or Holy See, the prosecutor of the curia from which he appeals be- comes simply the appellee in the court of the second or third instance, and has no status whatever as prosecutor in this curia. In fact, every Metropolitan court has a prosecutor of its own, who performs the duties of prosecutor also in cases appealed to it. 187. Likewise, in Rome, there is a procurator general at- tached to the S. C. EE. et RR., whose office is to act as prosecutor for, and to represent and defend the diocesan curia against which the appeal is interposed. 1 The other Sacred Congregations also have officials of their own to represent and defend the diocesan curia against which the appeal is lodged. 1 88. From this it follows that the functions of the diocesan prosecutor cease at once, so far as a particular case is con- cerned, as soon as the accused on trial is either condemned or absolved. Consequently, if, for instance, an ecclesiastic, condemned in the first instance, appeals to the Metropolitan or Holy See, and if the prosecutor of the curia of the first 1 Decret. S. C. EE. et RR., 1835, art. x., xi in Inflicting Repressive Punishments. 79 instance, presumes to appear in the role of a prosecutor in the curia to which the case has been appealed, the proceed- ings would be null and void, since the action of such prose- cutor would be that of one who is not a persona legitinia standi in judicio. For, according to article xiii. of the In- struction, each curia has its own prosecutor, who alone is qualified to perform the functions of prosecutor in his curia, even in cases of appeal. 189. This principle of law. was admirably brought out and fully confirmed in the oft-quoted causa Mediolan. fractionis jcjnnii, 'decided by the Holy See, April 18, 1885. The pros- ecutor of the curia of Milan had, it seems, attempted to ar- rogate to himself the role of prosecutor before the S. C. C., to whom the case had been appealed from Milan. The Roman advocate of David, the appellant, however, promptly and cleverly pointed out the arrogance of this role, and con- tended that in consequence the proceedings were invalid. The decision of the Sacred Congregation of Council sus- tained this view, according to the Acta S. Scdis. 1 190. In this celebrated case, which is of the greatest prac- tical consequence, also for us, the principle was clearly and unequivocally established, as the Acta S. Scdis teaches that whatever is done in violation of the forms of trial, as laid down in the Instruction of June II, 1880, is null and void, even though the Instruction nowhere expressly decrees that the violation shall nullify the proceedings. For, as the Roman advocate of the priest David A., the appellant, well argued, it is a general principle or axiom of law that whatever is done against the law is, not merely illicit, but also mill and void, even though the law does not expressly so declare. This axiom is expressly laid down in the Roman law, enacted by the emperors Theodosius and Val- entinian, 2 and is fully adopted by the Church, in the rcgula 1 Acta S. Sedis, vol. xviii., pp. 73-75. : L. 5, C. de Leg. (I. 14.) So Mode of Proceeding which must be Observed 64, de reg. jur. in 6, which says : " Quae autem contra jus fiunt, debent utique/r^ infectis haberi"* 191. The reason is that the forms of procedure prescribed by the law are intended by the law to serve as the necessary means for finding out the truth and thus rendering justice to the parties. Hence these forms and rules pertain to the very substance of justice itself. 2 Consequently a violation of these forms of justice .and law not unfrequently inflicts greater injury than the violation, of justice and law itself, as was ably argued by the Roman advocate of David, the ap- pellant in the case, and is also observed by the editors of the Acta S. Sedis, Vol. XVIII., p. 74. 192. We have said that according to the Acta S. Sedis, this axiom of law has been confirmed in the above decision of the Holy See, and applied to the form of trial, as outlined in the Instruction of 1880. For, the trial of this case, which took place in the curia of Milan, acting as the curia of the first instance, was conducted under the rule laid down in the Instruction of the S. C. EE. et RR., dated June n, 1880, of which our Instruction is almost an exact copy. Consequent- ly, the above decision of the S. C. C., and the inferences drawn from it by the Acta S. Sedis, are of the greatest prac- tical importance also for this country. 193. Appointment and removal of the prosecutor. He is appointed ad beneplacitum? Consequently he is removable indeed without a cause specified in canon law, and without a formal trial, though not without a grave and sufficient cause. He is entitled to a salary from the Bishop, even though no agreement to that effect was made beforehand. 4 194. It is needless here to add that the prosecutor cannot act as secretary, nor, inversely, the secretary as prosecutor ; 1 Cf. Acta S. Sedis, vol. xviii., p. 61. - Ib., p. 59. 3 For the formula of appointment, see Bouix, de Jud., vol. ii., p. 482. 4 Bouix, de Jud., vol. ii., p. 475. in Inflicting Repressive Punishments. 8 1 neither can the prosecutor act as, or perform the functions of the auditor. These three officials must be distinct per- sons, since their offices are such as cannot be united in one and the same person. See our Elements, Vol. II., n. 914. ART. XIV. Mode of Serving Judicial Notices and Citations. XIV. " Pro intimationibus et nbtificationibus, si apparitores curiae de- sint, utatur episcopus persona aliqua qualificata quae eas exhibeat, ac de hoc ipsum certiorem reddat : vel etiam a curia per publicos tabellarios commendatae (quibus locis hoc systema viget) transmittantur, exquisita fide exhibitionis atque acceptionis vel repudii. Intimationes et notifica- tiones semper in scriptis absolute fiant." 195. Once the judicial proceedings have begun, as ex- plained under article xi., it will become necessary for the auditor or judge conducting the compilatio processus to cite witnesses, and the accused, and to send other notices to the parties. The present article provides for the proper serv- ing or delivery of these notices and citations. It establishes three ways of serving or executing them : first, by official messengers of the curia ; second, by any trustworthy or suitable person, in case there are no official messengers at- tached to the curia ; 1 third, by registered mail, where this postal system exists. Any of these three modes can be adopted in the United States. The main object of these provisions is to obtain a reliable proof of the delivery of the citation of notices. When the notice or citation is served on the party by the official messenger or any other suitable person, the latter shall inform the curia i.e., the auditor or judge that he did serve the notice ; and such affirmation or statement, taken down by the notary and 1 Thus it will be seen that in ecclesiastical trials, citations and notices may be de- livered not merely by official messengers, but also by private persons. (Pierantonelli, Praxis, p. 128.) 82 Mode of Proceeding which must be Observed filed among the acts, shall constitute full proof of the ser- vice. When the delivery is by registered mail, the receipt or refusal of the letter on the part of the person to whom it is addressed, which is returned by the Post Office to the sender, is full proof of the execution or delivery of the notice. 196. When a messenger or person is employed to deliver these notices, the auditor of the " Praslectiones S. Stilpitii " advises that only ecclesiastics be made use of, l as far as pos- sible, in order that many things which effect the dignity and honor of ecclesiastics and the ecclesiastical state, may thus be kept from the laity. For further information re- garding official messengers, see our Elements, Vol. II., n. 926. Concerning the delivery of citations, see our Elements, Vol. II., n. 1007. 197. The Instruct adds in the article under discussion : " Intimationes et notificationes semper in scriptis absolute fiant." Consequently the proceeding will be ;///// and void, unless the notices and citation are made in writing. This seems to apply not merely to citations and notices directed to the accused, but also to those addressed to witnesses and others who appear in the proceedings. For, the above paragraph speaks of notices in general, and not merely of notices to the accused. ART. XV. Groundwork or Basis of the Prosecutor s Charges. XV. " Delicti fundamentum erui potest ex ipsa expositione habita in processu, quae authenticis informationibus vel confessione extrajudiciali, vel testium depositionibus confirmetur : transgressio vero praecepti ex ipso decreto et actu intimationis ad normam art. vii. et viii. factas. deducitur." 198. We have seen, under article xi., that the first step of the trial or special judicial inquiry instituted ex officio is 1 Vol. iii., pp. 9, 10. in Inflicting Repressive Punishments. 83 the preferring of the charge by the fiscal prosecutor. It has also been shown that in this official charge or indict- ment, the diocesan prosecutor must state clearly and speci- fically (a} the nature of the offence charged : its chief or substantial details ; the time and place of its commission ; (b) as a rule, also that the accused was duly warned accord- ing to article vi. of the Instruction ; (c) and also given the formal precept, according to articles vii. and viii. of the Instruction ; (d] and that he spurned the warnings and precept and is consequently incorrigible. 199. Now, how is he to obtain this information, or these particulars which form the foundation or groundwork of his charge (Jvndameutum delicti)"* The present article of the Instruction answers that the details in question, so far as they relate to the crime itself, can be obtained from the extrajudicial statement of the facts or alleged offence received by the Bishop or fiscal prosecutor when the offence was first brought to his notice, whether by com- plaints, accusations or otherwise, as explained under article xi., or also from the summariafacticogititio which precedes the imposing of preventive remedies ; that, however, this state- ment of the alleged facts must always be corroborated extra- judicially (a) by authentic informations gathered by the Bishop or fiscal prosecutor, (b) or by the extrajudicial confession of the accused, (<:) or by the depositions, even though extrajudicial, of witnesses. 200. The Instruction furthermore answers that the details relating to the giving of the precept namely, the date and manner of its having been given its tenor, etc., can be ob- tained by the prosecutor from the authentic copy of the precept or decree itself, and the minutes showing when and how it was given, extant in the episcopal archives. The par- ticulars as to the violation of the precept, on the part of the accused, the prosecutor will obtain in the same manner as in the case of the main offence, namelv, bv authentic infor- 84 Mode of Proceeding which must be Observed mations, or by the extrajudicial confession of the accused, or by the extrajudicial testimony of witnesses. We have said, extrajudicially; for the first step of judicial proceedings, is the presenting of the charge by the prosecutor. Conse- quently all the steps which precede it can be and are done in an extrajudicial manner. 201. The meaning, then, of this article (xv.) is : i. That the prosecutor, whose duty it is to prefer the charge, must base his libcllus or official charge on information received either by himself or by the Bishop v.g., already in the summaria facti cognitio (art. v.), and corroborated, even though extra- judicially, by inquiries from authentic sources, etc. 2. That before the prosecutor draws up and presents the charge, he, or the Bishop ordering him to prefer the charge, must extrajudicially ascertain v.g., by examining witnesses, documents, letters, or making other inquiries in authentic quarters; (a) what the alleged offence or corpus delicti is, and whether it is one that is punishable according to the sacred canons, otherwise it may be found at the end of the trial that although it was true and proven, yet the offence is not punishable ; (b] whether there are sufficient grounds for the charge. For if the prosecutor prefers the charge with- out having a solid foundation, or good reasons for believing the accused guilty, the latter would have the right to ap- peal to the Metropolitan or Holy See. 1 202. If it is found, upon the conclusion of this extra- judicial investigation, that there are good reasons for believing the accused guilty of the charge, and that there is consequently a fundamcntum delicti, the prosecutor draws up and presents the official charges ; otherwise, the charges should be dropped. These rules are just. For the law of nature itself dictates that such grave and official and public imputations as accusations, as the charges of the prosecutor, 1 Droste, p. no. in Inflicting Repressive Punishments. 85 shall not be made against any one, especially an ecclesiastic, except when they are based on solid reasons. 203. The prescriptions of the article (xv.) are similar to those which obtain also in the secular courts of the United States. Thus, in our secular courts, the formal charges or true bill, or indictment, is presented by the grand jury in all criminal causes. Now, as Walker says ; l the rule is that they (the grand jury) ought not to find a bill or indictment un- less the evidence be such as, if uncontradicted, would induce them on the trial to convict. ART. XVI. What Kind of Proof is Required for the Citation and Eventual Conviction and Condemnation of the Accused f XVI. " Ad admittendam vero rei culpabilitatem, necessaria est probatio legalis quae iis momentis constare debet, quibus veritas vere demonstratu elucescat, vel saltern moralis convictio inducatur quocunque rationabili dubio oppositi remoto." 204. The previous article defines, as we have seen, what kind of proof of guilt must be on hand before the prose- cutor can draw up and present the charges. The present article goes a step farther and shows what sort of proof is required, in order that the judge or auditor, after receiving the prosecutor's charges, may be able to issue the citation to the accused, or at the end of the trial pass sentence of condemnation upon him. 205. When the prosecutor has presented the charges, the Bishop, or auditor delegated by the Bishop to conduct the compilatio processes, cannot forthwith proceed to cite the accused for trial. He must first institute a juridical in- quiry or investigation into the charges presented by the prosecutor, in order to find out whether they are based 1 Walker, Am. Law, p. 715. 86 Mode of Proceeding which must be Observed upon probatio legalist This is the meaning of the present article of the Instruction. This preliminary judicial inquiry- is called processus informativus, and is always necessary prior to the citation of the accused, 2 as is plainly indicated by articles xvi. and xxi. of the Instrnctio, and also by the Third Plenary Council of Baltimore, n. 311, 312. 206. This is but just. For to summon him to appear be- fore the judge, in order to answer to the charges preferred against him by the prosecutor, is tantamount to assuming juridically that the accused is prinia facie guilty of the charges. Hence to summon the accused without having as- certained whether the charges are based upon legal proof, would be to assume him priina facie guilty of the charges, and thus to disgrace him without a sufficient cause, and would therefore render the curia liable to calumnia or false prosecution, and to damages for such false prosecu- tion. 8 Consequently the present article very properly pre- scribes, that in order to cite the accused and thus assume him guilty, legal proof is necessary. The words are : " Ad admittendam vero rei culpabilitatem, necessaria est probatio legalis." 207. We have said that this processus informations is a juridical investigation. In order to understand this better, it is necessary to distinguish between the preliminary in- vestigation (a) which precedes the imposing of the preven- tive remedies, or also the presenting of the prosecutor's charge, (b) and that which follows the libellus or charge of the prosecutor, but yet precedes the citation of the accused. The latter is judicial, the former extrajudicial. Now the extrajudicial investigation, while sufficient to enable the Bishop to impose preventive or paternal remedies, and if these prove of no avail, to order the prosecutor to prefer official charges, and thus take the first step in criminal J Cone. Plen, Bait. iii. n. 311. 8 Reiff, 1. 5, t. i., n. 361, 403; Bouix, de Jud. 1. c., p. 153. * Instr. art. xliv. in Inflicting Repressive Punishments. 8 7 proceedings, is not sufficient to warrant the judge to issue the citation to the accused, and thus to assume him prima facie guilty, as we have already shown. 208. Here the question presents itself : What is meant by probatio legalis ? By a proof (probatio] in general, is under- stood any legitimate means or argument, by which the ex- istence or truth of some controverted fact or thing is shown. Proofs are of two kinds : judicial and extrajudicial. A judicial proof (probatio judicialis) and we speak here of judicial proofs only is any legitimate means or argument, by which the truth of a disputed or doubtful fact is demon- strated before the judge. 1 209. Let us briefly explain this definition. We say first, means or arguments. These terms are taken in a broad sense, and mean witnesses, documents, etc. We say, legiti- mate ; that is, the proof, in order to have any force in ju- dicial proceedings, must be such as the law prescribes. In other words, it must (a) be one of those arguments which the law sanctions and admits as proof ; (b} it must have all the requirements and formalities prescribed by law. If it lacks any of these conditions, it is not legitimate or legal proof, and is of no force in judicial proceedings. 210. Here, then, two questions present themselves: First, What are the various legal proofs or probationes legates? Second, What are the requirements and formalities prescribed by law for legal proof? In answer to the first question, we observe that in order to avoid uncertainty and confusion, the law itself determines what shall be competent proofs in judicial proceedings. 1 What are they? They are of two kinds : perfect or full, and imperfect or half-full. What are, according to the sacred canons, perfect proofs? See our 1 Schmalzg, 1. c., t. 19, n. 2; Bouix, de Jud., vol. i., p. 302; Santi, 1. c., t. 19, n. I ; Sanguineti, n. 594; Grandeclaude, 1. c., t. 19, vol. ii.; p. 102. - Sanguineti, 1. c. , 587, c. ; Santi, 1. c., 1 2, t. 19, n. 3. 88 Mode of Proceeding which must be Observed Elements, Vol. II., n. 815. What are, according to ecclesi- astical law, imperfect proofs? See our Elements, Vol. II., n. 816. 211. Our answer to the second question is that, speaking in general, the law of the Church determines not only what means or arguments shall constitute legal proofs, as we have just seen, but also what qualifications it should possess and in what form or manner it must be produced. 1 Thus the law of the Church enacts that the testimony of two competent witnesses shall, as a rule, constitute full proof in judicial proceedings. It says, moreover, what is required in order that a witness may be competent. It establishes, moreover, the form or manner in which he must give his testimony, namely, separately, under oath, before the judge and a notary. 212. Speaking in particular, the following are the chief conditions or qualifications or formalities which the law re- quires or prescribes for all juridical proofs : i. A judicial proof must be made before the judge and a notary whose duty it is to write it down. If nobody is present, the proof is not legal or juridical, and will consequently have no effect in judicial proceedings. 2 2. It must be clear and determi- nate, not vague or obscure. 3. It must be conformis libello, or to the point ; that 1 is, it must have reference to the charge as set forth in the prosecutor's official charge. In other words, it must either prove or disprove the charges, as contained in the prosecutor's indictment ; otherwise it will have no effect. For only those things are to be proved or disproved which have been properly brought before the judge (or which are in court), or which are being tried in court. Hence other proofs, not referring to the charges made, are to be rejected as vain and superfluous. 3 1 Sanguineti, 1. c., n. 598, c.; Santi., 1. c., n. I.; Grandeclaude, vol. ii., p. 103, b. 3 Sanguineti, 1. c., p. 422. :! Samti, 1. c., 5. in inflicting Repressive Punishments. 89 4. It must be made in judicio i. e., during the trial /. t\, after the lit is cont. and in the presence, real or verbal, of the adversary. This rule, however, admits of exceptions. Thus in trials, per viam inquisitionis, as is ours, the proofs can be submitted before the citation of the accused and the litis contestatio. But in this case they will have indeed the effect to authorize the curia to proceed to the citation ; but they will not have the force of legal proof to authorize the conviction of the accused, unless they have been legitimized as we shall explain. 1 213. These conditions are required in all your proofs and are therefore common to all. Besides these formalities, which all proofs must have, the law also lays down the special conditions which are peculiar to each kind of proof in particular. Thus it enacts, in regard to witnesses, (a) that they shall be heard separately, (b) under oath, etc. 214. Hence the law determines (i) the qualifications of each kind of proof ; thus it enacts, in regard to witnesses, (a) that two unexceptionable witnesses are required ; (ft) that witnesses are unobjectionable, when they have none of the defects or disqualifications pointed out in law ; (c) that their testimony must agree, etc. ; (2) the form peculiar to each kind of proof i.e., the manner in which each kind of proof must be made. Thus, in regard to witnesses, it says : they shall be heard (a) separately, (d) under oath, (c) by the judge himself or his delegate, (d) in the presence of a notary who shall write out the testimony. All these conditions and formalities are full}- given and explained in our Elements, Vol. II., n. 824, sq. 215. The Instruction requires not only frobatio legalis, but tisQprobatio plena, that is, such legal proof, qua Us momentis con- stare dcbet, quibits -ccritas vcrc dcmonstrata elucescat, vel saltern moralis convict io indncatur quocnnqnc rationabili dubio oppositi 1 Grandeclaude, 1. c., 103; Sanguineti, 1. c., 421, 422. 90 Mode of Proceeding which must be Observed remoto. This is also the teaching of canonists. See our Elements, Vol. II., n. 817, 8 1 8, 880. 216. Only when the judge or auditor, at the conclusion of the processus informativus, finds there is a prima facie full and legal proof of guilt, that is, such proof as, if not overthrown by the accused afterwards, will suffice for his conviction, can he cite the accused for trial ; otherwise he cannot ; and if he does nevertheless cite him, he renders himself liable to calumnia or false prosecution. ' 217. We have said that for conviction in criminal and dis- ciplinary causes full proof {probatio plena, probatio legalis) of guilt is required. We also show, in our Elements, Vol. II., n. 833, sq., that as a rule, two witnesses, who are above all ob- jection, constitute full proof also in criminal causes. This is the rule ; for there are several cases where more than two witnesses are required for conviction. Thus, according to the sacred canons, more than two or even three witnesses are necessary, in criminal and disciplinary causes, for the conviction and condemnation of priests and other ecclesi- astics. a 218. The reason is that the stronger the presumption is in favor of a person, the greater must be the proofs of guilt, before he can be punished. Now ecclesiastics are strongly presumed by ecclesiastical law to be of good morals and to lead exemplary lives. Another reason is that, as Pope Inno- cent III., in the Cap. 24, de ace., says: Pastors of churches, and ecclesiastics in general, can, in the legitimate discharge of their duties, easily offend ill-disposed people, and thus it will not be difficult to find a number. of such persons who will readily testify against rectors and other ecclesiastics from motives of revenge or ill-will. 219. Hence, also, laics are not, as a rule, competent wit- 1 Reiff., 1. 5, t. i., n. 361, 362. Bouix, de Jud., vol. ii., pp. 155, 536, sq. 2 Can. I. 2, C. 2, Q. iv , vi. ; S. Alph., 1. 5, Cap. 3, n. 259. 3 Fr. Sincti, Praelectiones Jur. Can., lib 2, t. 2% n 17 Romre, 1886. in Inflicting Repressive Punishments. 9 1 nesses against ecclesiastics, in criminal and disciplinary causes, as we show in our Elements, Vol. II., n. 828. 220. These principles of ecclesiastical law are well brought out by the Act a S. Sedis, and applied to trials con- ducted in accordance with the Instruction of the S. C. EE. et RR. of 1880, in the above case of the priest David A. against the Curia of Milan, decided by the S. C. C., April 18, 1885. x 221. Lay persons cannot, as we have just said, be witnesses against priests and other ecclesiastics, in criminal and dis- ciplinary causes, z also as tried at present in this country, according to the Instruction Cum Magnopere, now under discussion. s This law was made partly on account of the great respect which laics owe ecclesiastics, who are ambassadors for Christ, * the ministers of Christ, and the dispen- sers of the mysteries of God on earth, 5 the fathers and teachers of the faithful. 6 See also our Elements, Vol. II., n. 828. 222. Nor can it be objected that laics may accuse, de- nounce or lodge judicial complaints before the Bishop against ecclesiastics, and that consequently they are also competent to act as witnesses against them. The objection does not hold. For the effect of a complaint or denunci- ation is to enable the Bishop to begin the judicial inquiry, whereas the effect of the testimony of witnesses is to au- thorize him to condemn the accused. 7 We have said, in criminal and disciplinary causes ; since lay persons are com- petent witnesses against ecclesiastics in civil causes pertain- ing to the ecclesiastical forum. 8 223. We have, moreover, said, also as tried at present in our country, according to the Instruction Cum Magnopere. The Ada S. Scdis contends that the principle in question was 1 See Acta S. Sedis, vol. xviii., p. 63. * Cap. 14, de test. (II., 20). 3 Our Elements, vol. ii., n. 828. * II. Cor. v. 2O. 6 I. Cor. iv. i. 6 Can. 9, 10, dist. 96. 7 Schmalzg., 1. 2, t. 20, n. 49. 8 Cap. 33, de test. ; Schmalzg., 1. c. 92 Mode of Proceeding which must be Observed clearly brought out and confirmed in the above celebrated case of the Priest David versus the Curia of Milan, decided by the S. C. C, April 18, 1885. The trial of this case, which took place in the curia of Milan, was conducted according to the Instruction of the S. C. EE. et RR., dated June n, 1880, of which the Instr. Cum Magnopere is a copy. Lay witnesses were allowed to testify against David at this trial. The Roman advocate contended that the trial was' null and void on that account. According to the Act a S. Scdis the decision of the S. C. C. sustained this view. As the In- struction Cum Magnopere is the same as that of 1880, the inferences and deductions of the Acta S. Sedis apply, of course, also to our Instruction. In fact, the law of the Church, as still in force, is that lay people are not compe- tent witnesses against ecclesiastics in any judicial proceed- ing or trial, where there is question of inflicting a censure, punishment, or grave disciplinary correction upon an ec- clesiastic. This holds true, no matter whether the pro- ceedings are per viam accusationis or inquisitionis, and therefore applies also to our trials conducted according to the present Instruction. From this it will be seen that when we say in our Elements, Vol. II., n. 828, that laics can testify against ecclesiastics, in case the proceed- ings are per viam inquisitionis, we do not refer to the case where a regular ecclesiastical punishment, or censure, or grave disciplinary correction is to be inflicted, but only to cases where a slight punishment, or a mere paternal and pre- ventive remedy is to be imposed. 224. The above rule that laics cannot be witnesses against ecclesiastics, however, has some exceptions, as we show in our Elements of Ecclesiastical Law, Vol. II., n. 828. Thus laics 1 can testify against ecclesiastics, also in criminal 1 Provided they are above the age of twenty ; for nobody can testify in a criminal cause who is under that age. Our Elements, vol. ii., n. 829. in Inflicting Repressive Punishments. 93 causes, (a) where the interests of such laymen are involved. Thus parishioners can bear testimony against their parish priest, because it is to their interest and spiritual welfare to have a good rector. J (b} Where, owing to time, place and circumstances, ecclesiastics cannot be had as witnesses. But even in this case, before laics can be admitted as wit- nesses, it is necessary to prove, not merely that, as a matter of fact, there were no ecclesiastics actually present when the crime was committed, but also that none could have been present v-g., because the accused ecclesiastic lives and committed the alleged offence in a solitary place, or in a remote country village, where there are no other ecclesi- astics besides himself. This argument is ably developed by the Roman advocate of the appellant, David A., in the case decided by the S. C. C, April 18, 1885.' 225. Finally, even in these exceptional cases, where laics may be admitted as witnesses against ecclesiastics, the)* are not regarded as witnesses who are above all objection (tcstes omni exccptionc majores) and consequently, no matter how numerous, will not suffice for conviction, unless their testi- mony is corroborated by a competent witness who is an ecclesiastic of good fame, or by other legal evidence. 3 226. While laics cannot be witnesses against ecclesiastics, they are fully competent, by the law of the Church, to be witnesses for them. In other words, not only laymen but also women are competent witnesses for the defence, and to prove the innocence of an accused ecclesiastic. 4 1 Schmalzg., 1. c., n. 50. - Acta S. Sedis, 1. c., p. 64. 3 Schmalzg., 1. c., n. 50. * Ib., 1. c., n. 52. 94 Mode of Proceeding which must be Observed ART. XVII. How the Witnesses arc Examined " Pro Information* Curies" Before tlie Citation. XVII. " Personae quae examini subjiciendae sunt, separatim audiuntur." 227. We have seen, under articles xii. and xv., that before the auditor can cite the accused, he must institute a pro- cessus informath'us, and. thus gather, in a judicial manner, all possible information, examine witnesses, etc. In fact, in nearly all cases, he will be obliged to obtain his information or proofs by hearing and questioning competent witnesses. How, then, does he examine the witnesses in the case ? The Instruction distinctly says that the witnesses shall be ex- amined separately, that is, one by one, apart from each other, and not in each other's hearing. The chief object of this is to prevent collusion. They must, moreover, be ex- amined under oath, as we shall see in the following article. See our Elements, Vol. II., n. 839. 228. We remark that the auditor or ecclesiastical judge, or the diocesan prosecutor, must carefully avoid asking the witnesses any leading question (qu&stio suggcstivd), as we show in our Elements of Ecclesiastical Law, Vol. II., n. 847. Such questions are strongly reprobated and strictly pro- hibited by the law of the Church. 1 For, such questions easily cause the witness to assent to the suggestion made in the question and to give the answer which is suggested, and of which he never dreamt before, rather than his own statement, for fear of otherwise displeasing the auditor or judge. Thus he will be led into making false statements. - Hence, if a leading question is put to a witness, his deposi- tion is ipso jure null and void. * 1 L. I, $ 21, qni quoestionem, ff. de qucest. (48, 18). * Reiff., 1. 2, t. 20, n. 516. 3 Reg. 64, jur., in 6 = ; Leur. For. Eccl., 1. ii., t. 20, qu. 651. in Inflicting Repressive Punishments'. 95 229. The same rule obtains also in our secular courts. Thus Hilliard, in his Summary of American Civil Jurispru- dence y p. 305, writes : " In the examination of a witness, leading questions are not allowed that is, questions which suggest to him the answer he is to make, or questions to which the simple reply of " yes " or " no " would be suffi- cient. Violations of this rule, however, are sometimes nec- essary, in order to direct the witness' attention to the particular subject of inquiry. And less strictness is re- quired when he shows an evident disposition to conceal the truth or favor the other party." This author, then, points out when leading questions may be asked on cross- examination. His words are : " After the examination-in- chief, or even after the witness has been sworn but not examined, the adverse party has the privilege of cross- examining. And he may propose leading questions" 230. This is also taught by Walker, in American Law, p. 633, as follows : " The party who calls him (witness) first examines him. And this is called the examination-in-chicf. During this examination, no leading questions can be asked ; that is, no questions so framed as to indicate the answer desired. But the witness may refresh his memory as to names and dates by consulting his own memoranda. The cross-examination by the adversary may be by leading ques- tions, and as searching and particular as he pleases ; for this is often the only way to detect a false witness. But cross-examination applies only to the matter brought out in chief. As to any new matter, the party makes the witness his own, and becomes an examiner-in-chief. When this examination is closed, the examiner-in-chief may cross- examine as to any new matter brought out on the other side. But he can bring out no new matter himself, because this might make the alternation endless." 231. What has been said as to questions put to witnesses holds true, also, of questions put to the accused himself 'in re- 96 Mode of Proceeding which must be Observed gard to crime imputed to him. 1 Consequently, the auditor or judge, or the diocesan prosecutor, can never, in a crimi- nal trial, when examining the accused, put any leading ques- tion to him. If, nevertheless, the accused is asked leading questions, and is thereby led into confessing his guilt, this confession has no effect and does not suffice for his condem- nation ; nay, the entire proceedings are ipso jure null and void. 2 232. This whole teaching is fully brought out by the Roman advocate in the case decided by the Holy See, and quoted already several times by us. s In this case, which was appealed from the Archdiocese of Milan, acting as the court of the first instance, to the S. C. C., the Roman advo- cate employed by the appellant, the Rev. David A., pointed out to the S. C. C. that his client had, in the curia of Milan, been asked leading questions, and that these questions had been of such a captious nature that, no matter what way his client answered, he would criminate himself ; that the wit- nesses against the accused had, in like manner, been asked leading or suggestive questions. From this the advocate argued that the entire proceedings were null and void. The Act a S. Scdis infers that the Sacred Congregation sus- tained these views by the fact that it reversed the sentence of the curia of Milan, and thus gave its decision in favor of the accused. 4 233. Can a person ivho bears but a "slight enmity'" against tlic accused be a witness against hint in a criminal cause ? In our Elements, Vol. II., n. 828, we show that one who is an enemy of, or ill-disposed against the accused, cannot testify against him. For such a person is easily led by his feelings to make false statements, in order to avenge himself on and injure the one against whom he bears the enmity or ill-will. 1 See our Elements, vol. ii., n. 847. - Reg. 64, Jur. in 6; Leur., 1. c. ; Reiff., 1. c., n. 520, 521. 3 See above, article xi. 4 Acta S. Sedis, vol. xviii., p. 65, 1885. in Inflicting Repressive Punishments. 97 Hence, the law of the Church presumes his testimony to be false. 1 In civil causes, the enmity must, as a rule, be of a grave character (inimicitia gravis) in order to incapacitate or exclude a witness. But in criminal causes, namely, where a punishment is to be inflicted slight enmity (inimicitia levis) unfits the witness to testify, so that if he is, nevertheless, allowed to testify, his testimony is of no value? According to the Acta S. Scdis, this teaching- is distinctly brought out, confirmed and applied to trials as conducted in accordance with the Instruction of June n, 1880 (and, therefore, also of 1884), in the case, already quoted several times, of the priest David, decided by the Holy See, April 18, i885- 3 234. Another remark is that the persons who make the complaint, accusation, or denunciation to the Bishop or ecclesi- astical judge cannot be witnesses on the criminal trial which is instituted on occasion of their complaint in order to inflict punishment upon the person complained of. 4 This principle is also, according to the Acta 5. Scdis, well brought out and confirmed in the above case of the priest David. 5 The reason is that nobody can be at the same time an accuser or complainant and a witness. Moreover, such persons are re- garded as showing a desire to have the person punished against whom they lodge the complaint, and as volunteering their testimony against him. Now, persons of this kind are inadmissible as witnesses, as we show in our Elements, Vol. II., n. 836. Finally, one who lodges a complaint is put on the same footing with an accuser (accusator) or plaintiff (actor). Now a plaintiff should prove his accusation not by his own testimony (for that would be giving testimony in his own cause), but by the testimony of others. 6 235. Here it should be observed that the testimony of the 1 Can. si testes, . testium fides, c. 4, q. 3; Reiff., 1. 2., t. 20, n. 132. 2 Ib., 1. c., n. 136. * Acta S. Sedis, vol. xviii., p. 65. 4 Schmalzg., 1. 2, t. 20, n. 64. 5 Acta S. Sedis, vol. xviii., p. 65. 6 Leur., For. Eccl., 1. 2, t. 20, qu. 585. 98 Mode of Proceeding which must be Observed witnesses, even though there are more than a thousand, thus examined by the auditor or judge, in the proccssus informa- tivus, prior to the citation of the accused, and, therefore, in his absence, or as the technical phrase is, nondum citato et constituto reo, is simply regarded as information which may authorize the curia to issue the citation, but can never, of itself, have the force of legal or canonical proof sufficient for conviction or condemnation. For the law of the Church enacts, as we have seen, that the testimony or evidence which is submitted, has legal force only when it is produced before the ecclesiastical judge, after the lit is contcstatio, and therefore after the citation of the accused, and in his pres- ence. 236. Consequently, while, according to the universal prac- tice of ecclesiastical courts, the witnesses for the information of the curia -pro informatione curies are admitted and exam- ined, as soon as the charge has been handed in by the dioc- esan prosecutor, and that, non citata parte, that is, before the accused is cited, and, therefore, in his absence, 1 yet their deposition will not have the force of legal proof, at least of itself. We say, at least of itself ; that is, unless it is ratified or accepted by the accused. Hence, if the accused, after being cited, refuses to declare that he considers the wit- nesses, who were examined prior to his citation, in the proccssus inforuiativus, properly and lawfully examined, it will become necessary to repeat their examination after the citation of the accused, that is, citata parte or constitute? reo. Otherwise the testimony will have no legal force what- ever. 2 237. The witnesses who are produced, or who repeat their testimony after the citation of the accused, must be exam- ined in the same manner as in the processus informativus to wit, separately, under oath, etc. As to the manner in which 1 Pellegr., p. iv., sect, iv., n. 3. - Ib., sect, ix., n. I, 2, 3. in Inflicting Repressive Punishments. 99 the questions are put to and the answers given by the witness, in this repetition, see the formula given in Pellegrino, P. IV., Sect, xi., n. 41, p. 417. Suffice it here to say, that the questions must be put to and answered by them, as though they had not given any testimony before. 1 238. Questions p2it to the witnesses, First, certain general questions are asked, to find out the age, occupation, resi- dence, etc., of the witness. These should not be omitted, even though the facts to be elicited by them are well known to the judge ; for these facts are not merely for the infor- mation of the judge of the first instance, but also for that of the higher judge to whom an appeal may be made. 2 239. Next, specific questions relating to the cause are ad- dressed to the witness. As to the order in which these questions should follow one another, see our- Elements, Vol. II., n. 846, 847. See also the formula of examining witnesses which we subjoin in the appendix. In these forms, as given by Bouix 3 and Reiffensteul, 4 it will be noticed that the first specific question is : " An sciat articulum esse verum ? " That is, do you know whether the count or specification (articulus) just read to you is true ? To enable the reader to understand this better, it is necessary to recall to mind that when the trial is per viam accusationis, or dcnunciationis, or inquisitionis ad instantiam procuratoris fiscalis? the accuser, denouncer, or diocesan prosecutor presents, as a rule, a libellus articulatus, that is, a specific bill of charges, or one which not only states the charge, but also enumerates, under distinct heads, the various specifications or counts (articitli) of the charge. See our Elements, Vol. II., n. 988. 240. Here, then, it may be asked : Can the judge, auditor or diocesan prosecutor begin the special interrogatory by Pellegr., p. iv., s. xi. - Reiff., 1. 5, t. i., n. 373. 3 De Jud., vol. ii., p. 539. 4 L. 5, t. i., n. 380. 6 This latter mode is the one prescribed by our Instruction. TOO Mode of Proceeding which must be Observed reading to the witness the specification upon which he wishes to examine him, and asking him whether he knows it to be true ? It is certain that the judge cannot do so, when he proceeds to a special judicial inquiry ex inero officio. For, in the case, the question would be a leading question, as the judge or prosecutor, by the very fact of put- ting such a question in the very beginning of the examination and before having asked questions more general, would plainly indicate or suggest the desired answer. 1 241. Does the same hold true, when the trial is conducted per viam accusationis, or as in our case, per viam inquisitionis ad instantiam procuratoris fiscalis? There are two opinions. Reiffenstuel holds the negative and says that, in the case, the special interrogatory is begun thus : The specification upon which the witness is to be examined is first read to him ; and he is then forthwith asked whether he knows it to be true.- Afterwards the other questions are put. The reason upon which he bases his opinion is, that under the circumstances the question, even though asked in the beginning, is not a lead- ing question, since the crime and the criminal are already judi- cially manifested by the proceedings that have gone before. 242. The affirmative, however, is the opinion commonly held by canonists. For, as we have seen, they teach unani- mously that the judge or prosecutor can, in no case, ask any question that indicates the desired answer. Now it is plain that by asking the witness forthwith, and in the begin- ning of the special interrogatory, whether he knows the specification to be true, he suggests thereby the answer. Consequently, as we say in our Elements, Vol. II., n. 847, the examination of the witnesses must, also according to the Instruction Cum Magnopere, be by general questions, ascend- ing gradually to the more particular facts in the case. See the formula given by Bouix, cle Jud., Vol. II., p. 537; Reiff., lib. 5, t. i, n. 372, sq. 1 Reiff., 1. 5, 1. c. I, n. 377. : Ib., n. 380. in Inflicting Repressive Punishments. 101 ART. XVIII. TJie OatJi taken by the Witnesses, and by Others ivJio take any Part in the Trial. XVIII. " Testes ad probationem, sive ad defensionem, si legalia imped- imenta id non prohibeant, audiantur praestito juramento de veritate dicenda et si res postulet, etiam de secreto servando. Itaque antequam testificen- tur, cum de veritate turn de secreto jurent. Eo magis de officio fideliter adimplendo et de secreto, pro rei de qua agitur exigentia, servando omnes juramento abstricti sint oportet, qui in instructione processus ex suo munere partem aliquam habeant." 243. The auditor or judge conducting the compilatio pro- cessus must not only hear the witnesses one by one, as ex- plained above, but he is, moreover, obliged to administer the oath to them, and that in the informative process which takes place prior to the citation and therefore nonduin constitute reo, as well as after the citation of the accused. 1 This is in accord with the general law of the Church, which declares the testimony of witnesses null and void, unless it is given under oath, as we show more fully in our Elements, Vol. II., nos. 840, sq. The Instruction enacts that the witnesses shall not only swear that they will tell the truth, but also, if need be, that they will not divulge their testimony. 2 244. In the Instruction of July 20, 1878 ( n. Singuli ; Cf. our Elements, Vol. II., n. 843), it was prescribed that the oath should not be administered to the witnesses. The law was perhaps made, owing to the fact that the administering of oaths by ecclesiastics was considered contrary to the law of our country. We show, in our Elements, Vol. II., nos. 1344, 1345, 1426, and on page 444, that the laws of the United States, whether state or federal, are perfectly neutral and indifferent in regard to oaths administered by Bishops and ecclesiastical superiors. Consequently the ecclesiastical judge is perfectly free, with us, to administer oaths to wit- 1 Cf. Bouix, de Jud., vol. ii., p. 520. 2 Our Elements, 1. c., n. 845. IO2 Mode of Proceeding which must be Observed nesses and others taking part in the trial. As a matter of fact, in all the ecclesiastical trials of Protestant denomina- tions in this country, the oath is always administered to the witnesses and others taking part in the proceedings. And yet no one has ever said that this was against the laws of the land. 245. The Instruction, therefore, rightly assumes, in the present article, that there are no legal obstacles in the way of administering the oath in our ecclesiastical trials, and consequently makes the oath obligatory, not only upon witnesses, but also upon all who take any part in the trial by virtue of their office. Consequently, besides the witnesses and experts, the following officials must also take the oath : The auditor, the diocesan prosecutor and his assistant, if he has any ; the secretary ; the messenger of the court, if there is one. These officials must swear that they will discharge their duties faithfully, and also, if the case requires, to main- tain secrecy concerning the proceedings. Where, by Papal dispensation, commissions of investigation continue to exist ad. interim, their members must take the same oath. 1 The oath is obligatory on all the above persons, on pain of nullity of the proceedings, even of the informative process. Hence they must take the oath before the beginning of the processus informations which precedes the citation. For the form of this oath, see Monacetli Form., P. I., pp. 245, 247. 246. The advocate of the accused may also be obliged by the judge to swear that he will maintain secrecy, if the judge thinks that the nature of the case on trial demands it.' 247. In England, Ireland, and perhaps in the other do- minions of the British Empire, it is forbidden by the civil law for any one to administer an oath, except he be au- thorized by law to do so, as we show in our Elements, 1 Instr., art. xii. - Ib., art. xxxii. in Inflicting Repressive Punishments. 103 Vol. II., p. 444. Consequently it would there be an illegal and punishable act for a Bishop to administer an oath to witnesses or others in ecclesiastical trials. In prescribing the oath, as explained above, the Instruct and the sacred canons are in full accord with the laws of the secular au- thorities all over the world. Thus, so far as concerns the United States, Hilliard writes : a " To secure the veracity and to determine the ability and knowledge of witnesses, the law has provided two general tests, viz : an oath and cross- examination." ART. XIX; How Witnesses are Examined ivho are in a Distant Part of the Diocese, or out of it altogether. XIX. "Testes qui in locis longe dissitis vel in aliena dioecesi degunt, mediante auctoritate ecclesiastica loci in quo manent, examinentur, in quern finem specimen factorum transmittetur : quae quidem auctoritas in responsione normas in hac Instructione contentas, observabit." 248. Sometimes the auditor or ecclesiastical judge con- ducting the trial or " compilatio processus," finds that the witnesses, who are to be examined, whether during the in- formative process which takes place prior to the citation of the accused, or during the process which follows the ci- tation, are indeed in the diocese, but too far away to come without great expense, inconvenience and delay, or that they are in a different diocese. The Instruction enacts, in the present article, that in the first case, the witnesses shall be examined, (a) in the place where they are, (b) and that by an ecclesiastic living there or near by v.g., by the rural dean to be delegated by the judge to that effect. For the formula of delegation, see Bouix, de Jud., Vol. II., p. 529. The letter of delegation is called litter cs commissionales. Bouix (1. c., p. 528) teaches that witnesses of the diocese 1 Summary of American Jurispr., p. 301. IO4 Mode of Proceeding wJiich nmst be Observed may be thus examined, not only when they are far away from the curia, but also when they are nearby, but when the judge considers it inopportune to cite them to come to the curia. 249. In the second case, namely, when the witnesses are in a different diocese, the Instruction directs that they shall be examined by the ecclesiastical authority of such diocese that is, by the Bishop, Vicar-general, or his delegate. For this purpose, the Bishop, Vicar-general, or auditor writes to the Bishop or Vicar-general of the place, where they are, requesting him to examine the witnesses. For the formula of this letter, which is styled littcrcs rcmissoriales, see Bouix, 1. c., p. 527. 250. In both cases, however, the curia is obliged to send, together with its request for the examination of the wit- nesses, a summary statement of the facts in the case, and also the questions to be put to the witnesses. The eccle- siastic thus deputed, or the authority thus requested, will examine the witnesses in the manner laid down in the In- struction, and, consequently, with the assistance of a notary to take down the depositions, one by one, under oath. 1 251. Observe that, as Pellegrino correctly says, this mode of examining witnesses who are absent, or distant, or out of the diocese, applies not merely to witnesses for the pros- ecution, but also to those of the defence. 2 Hence, if the accused asks that witnesses in his favor, who are far away, or live in a different diocese, be examined as above, the Ordinary or judge is bound to comply with his request, and act according to article xix. of the Instruction. Otherwise, an appeal would lie against his refusal. 3 252. Q. Has the opposite party i.e., the party against whom the witnesses are produced, a right to be present at 1 Cf. Pellegr., p. iv., sect, iv., n. 90. - Ih. , n. 65, 66. 3 Ib., n. 66. in Inflicting Repressive Punishments. 105 the examination of the above witnesses, who are either dis- tant or out of the diocese ? A. We must distinguish : These witnesses are examined either during the informative process which precedes the citation, or during the trial proper which follows the cita- tion of the accused. In the first case, namely, when they are examined prior to the citation, the opponent i.e., the defendant, has no right to be present either verbally or per- sonally, since the examination is merely for the information of the court. But, in this case, the depositions have no value as legal proof of guilt, unless they are afterwards legalized, as we shall explain under article xxvi. Conse- quently, if the accused desires it, these witnesses must repeat their testimony, after the citation of the accused, and then the latter has the right to be present either verbally or personally at their examination, as we shall explain below in article xxvi. See also our Elements, Vol. II., n. 838, sq. ; n. 1117. 253. In the second case, namely, where the examination takes place, Constitute jam rco, or after the citation of the accused, the opponent (i.e., either the diocesan prosecutor or the accused and his advocate) has always a right to be present, either verbally or personally, as we show below in article xxvi., and our Elements, 1. c. 254. Witnesses examined " ad pcrpctuam memoriam" In connection with the examination of witnesses who are far off, or in a different diocese, it may not be amiss to discuss here the practical case of what is called the examination of witnesses in pcrpctuam rei mcmoriam. As a rule, witnesses cannot be produced before the ecclesiastical judge and examined, with any legal effect, that is, in such a manner that their deposition will have the force of legal proof of guilt or innocence, until after the accused has been cited, and the litis contcstatio taken place. 1 The reason is, that 1 Cap. Quoniam 5, ut lit. non. cont. (II. 6). 1 06 JMode of Proceeding which must be Observed the testimony of witnesses and all other evidence has no legal or canonical force of proof, except it (a) be produced during the trial, and (b) touches on matters which are prop- erly in court ; for the judge can pronounce sentence only secundum allegata et probata in judicio. Now no cause or matter is considered as being in court or on trial, until the lit is contestatio has taken place. 1 Hence, also, as we have seen, the deposition of witnesses in the United States, ad- mitted and examined, even though under oath, by the auditor, in the informative proceedings prior to the citation, has simply the force of informing him whether he can issue the citation or not, but not the force of legal or canonical proof, sufficient for conviction and condemnation. 255. We say, as a rule. Now this rule, as all rules, has its exceptions. Thus an accused person or a defendant can, at any time, and before the trial or the litis contestatio, and in all causes, not only civil, but also criminal and disciplinary, produce before the ecclesiastical judge any witnesses he may choose, and have them examined ad perpetuam vic- moriam, and in futuram sui defensionem, z so that their deposi- tion will, upon being published or communicated to the adverse party after the litis contestatio, or joining of issue, have the same effect as though it had been taken after the litis contestatio. 256. We say at any time : that is, the accused can produce his witnesses ad perpetuam mcmoriam, (a) not merely when he is actually about to be put on trial, but also when he is merely afraid lest he may be called to trial at some future time; (b) nor simply when there is danger that the evi- dence will be lost v.g., because the witnesses are in danger of death by reason of sickness, old age, etc., but also when there is no such cause. 1 Cap. unic. de lit. cont. (II. 5) ; De Angeiis. 1. 2., t. 6, n. 2. 2 Schmalzg., 1. 2, t. 6, n. 3. in Inflicting Repressive Punishments. 107 257. Herein the defendant's condition is more favorable than that of the plaintiff or prosecutor, whether official or private. For the latter (actor) can have his witnesses ex- amined ad pcrpetnam memoriam, prior to the plea or lit is contcstatio, (a) only when there is danger that the testimony will be lost before the litis contestatio has taken place ; for instance, when the witnesses are old, or sick, and therefore likely to die ; or when they are about to move far away ; (b) and even then, only jn civil, not in criminal and disciplinary causes. 258. The reason of the more favorable condition of the accused is, that it is not in his power to be put on trial when he is ready or when he chooses, while the com- plainant or prosecutor can choose his own good time and bring on the trial at such time as is most convenient. If, therefore, the accused could not present his witnesses for the examination, until after his citation, and the litis contes- tatio, it is manifest that the plaintiff or prosecutor could maliciously delay the trial and the litis contestatio until the witnesses for the accused or defendant had either died, moved far away, or gone out of reach, and thus deprive him of his legal proofs and legitimate means of defence. 259. Application of the above principles to the U. S. From what has been said, it follows that also, according to the present Instructio, the accused in the United States can have his witnesses examined ad perpetuam memoriam by the ecclesiastical judge at any time and before the trial. In order that the accused may be able to produce witnesses, and that the ecclesiastical judge may be able and obliged to examine them prior to the litis contestatio, nothing more is required, as we have seen, than that the accused should be actually about to be tried, or that he should fear lest he may be called to trial at some future time. If the ecclesiastical judge refuses to admit the witnesses, an appeal lies to the higher ecclesiastical judge. 1 08 Mode of Proceeding which must be Observed It follows, moreover, that the diocesan prosecutor, with us, can indeed have his witnesses examined, prior to the " litis contestatio," for the information of the court ; but the testimony in the case will not have the force of legal proof of guilt, since the prosecutor has no right whatever to have his witnesses examined, ad perpctuam mcnioriavi, in criminal and disciplinary causes, as noted above. 260. Q. In what manner are witnesses examined in perpet- uam memoriam ? A. In the same manner as that laid down above, in articles xvii. and xviii., for the examination of witnesses in general. Accordingly, when an accused person also with us requests witnesses to be examined ad pcrpetnam memoriam y the mode of procedure is this: The Bishop or Vicar- general presides at the examination, or deputes an auditor to do so. The witnesses are cited if need be. On the day appointed, they are examined, either by the judge himself, or, with his permission, by the accused or his advocate, and that one by one, under oath, and in the presence, personal or verbal, of the diocesan prosecutor, who has the right to cross-examine. The entire testimony must be taken down by the secretary or chancellor. In those causes, namely, in civil causes, where the plaintiff has a right to have witnesses examined ad pcrpetuam memoriam, the defendant must be notified to be present, either in person, or to send his in- terrogatories. 1 Cf. our Elements, Vol. II., n. 837, 844. 1 Schmal/g., 1. c., n. 12. in Inflicting Repressive Punishments. 109 ART. XX. Admissibility of Hearsay, or Indirect Witnesses. XX. " Si indicentur testes, qui de factis vel circumstantiis ad meritum causae substantiale spectantibus interrogandi essent, nee examinari pos- sint, vel quia non licet aut decet eos citare in judicium, vel quia rogati adesse recusent, necesse est id in actis commemorate, eorumque deficien- tia suppletur testimoniis aliorum, qui vel de relato vel aliter rem de qua quaeritur, noverint." 261. It may sometimes happen, especially at the present day, that the auditor or ecclesiastical judge, either in his informative inquiry, prior to the citation, or in the proceed- ings which follow the citation, will find that witnesses are mentioned as being personally and directly cognizant of the substantial facts in the case, and who yet cannot be ex- amined, either because it is unlawful or unbecoming to call them as witnesses v.g., when they are wicked or adverse to the Catholic Church and would gladly divulge the offences of ecclesiastics, if occasion offered itself 1 or be- cause they have been cited or asked to come as witnesses, and yet have refused to do so. What is to be done in this case? The Instruction prescribes that the auditor or judge shall cause the notary to record the above facts among the minutes of the cause, and then endeavor to gain the requisite information from others, who know the facts not from personal or direct knowledge, but (a) from hearsay, de relato i.e., from rumor, or from other persons who are personally cognizant of the facts, (b) or in any other way. 262. In order to understand this article more fully, it is necessary to observe that witnesses are of two kinds : (a) those who have a personal and direct knowledge of the facts v.g., those who testify to what they have directly seen with their own eyes or heard with their own ears ; they are called testes de scientia : (&) those who have a knowledge of 1 Acta S. Sedis, vol. xv., p. 389. no Mode of Proceeding which must be Observed the facts in the case from sources other than their own senses and therefore possess but an indirect knowledge. 263. These latter witnesses are subdivided into three classes : i. Testes de credulitate i.e., those who testify under oath that they believe a thing to be true, not indeed because they have seen the offence or act itself, but because they have seen certain suspicious facts or things which lead them to infer and believe that a certain thing is true, or that a certain crime has been committed. Such are wit- nesses who testify that they have seen " solum cum sola, et nudum cum nuda in eodem lecto," and that therefore they be- lieve that these parties have committed adultery. 2. Testes de auditu alieno i.e., those who testify under oath that they have heard a certain fact from other persons worthy of be- lief. 3. Testes de fama, or those who testify under oath that a certain commjon fame or public opinion is spread among the people. 1 We shall say a few words in regard to each of the three classes. I. Witnesses " de Credulitate.'" 264. Q. When are witnesses de credulitate admissible, and what force has their testimony, in case they can and are admitted, also according to the present Instruction ? A. The rule is that they are not to be admitted as wit- nesses and do not prove anything, especially in criminal and disciplinary causes. 2 The reason is that they base their belief on conjectures, presumptions, or suspicions, but not on personal knowledge. Now these conjectures, sus- picions and indications of facts or of guilt may indeed point more or less strongly to the guilt. But they nevertheless remain mere suspicions and indications. Consequently they cannot, no matter how numerous, remove all reasonable doubt of guilt. Hence they cannot give that moral cer- 1 Santi, 1. c., 1. 2, t. 20, n. 28. * Reiff., 1. 2, t. 20, n. 348, sq. in Inflicting Repressive Punishments. 1 1 1 tainty which is necessary, also according to our Instruction, for conviction. 265. We say, the rule is, for these witnesses are admissi- ble also in criminal causes (a) when they are produced for the defence of the accused i.e., in order to testify to his innocence ; 1 (b) when there is question of crimes v.g., fornication, which are usually committed in so secret a manner as not to be witnessed directly by any third party. For direct witnesses can scarcely ever be obtained in these cases. Consequently, unless indirect testimony were admitted, such crimes could never be proved. 2 This teaching is also clearly contained in our Instruction. For the present article indicates that witnesses of this kind can be admitted only where direct witnesses cannot be had. 266. But even in this second case, where such witnesses are admissible against the accused, their testimony is worth neither more nor less than are the conjectures, signs, indica- tions upon which they base their belief. Thus, if they testi- fy to very violent indications of guilt v.g., if they state that they saw nudum cum nuda in eodum Iccto, and therefore believe the parties to be guilty of fornication, their testimony at least, if sufficiently corroborated by their circumstantial evidence, constitutes, according to some canonists, full proof of guilt, 3 according to others, only a presumption of guilt. See our Elements, Vol. II., n. 880. 2. Witnesses " de Auditu Alieno." 267. Here the following questions present themselves : First, when are these witnesses de anditu alicno admissible, in criminal and disciplinary causes, also according to the present Instructio ? Second, what is the value of their testi- mony, where they are admissible ? 1 Cap. quoties, et Cap. de tcstibus, de Purg. can. Reiff., 1. 2, t. 20, n. 353. 2 Reiff., 1. c., n. 350, sq. 3 Santi, 1. e, 1.2, t. 20, n. 30. 1 1 2 Mode of Proceeding which must be Observed 268. In answer to the first question, we remark, these witnesses are admissible (a) as witnesses for tJic defence, that is, they are always allowed to testify in fai-or of the innocence of the accused ; 1 (&) they are admissible against the accused, only when the eye or ear-witnesses from whom they have received their information cannot be had v.g., where they are dead, or out of reach physically or morally, namely, when they are too far away or refuse to testify. This holds so true that if the prosecutor attempted to produce witnesses de auditu alieno, even where the direct witnesses are alive and can be produced, he would at once lay himself open to suspicion. 2 Consequently, also, the party producing such witnesses must prove, not merely state, that the eye or ear-witnesses cannot be had. 269. As to the second question, namely, what is the value of the testimony of these witnesses, where they are admis- sible, also in criminal and disciplinary causes with us, we answer that these witnesses are not witnesses in the proper sense of the term, and no matter how numerous, do not prove anything against the accused. For, it is expressly enacted in the law of the Church, as we show elsewhere, that only those are competent witnesses and therefore con- stitute probatio legalis, who have received the knowledge of the facts in the case, through their own senses, and not from others. (Our Elements, Vol. II., n. 853). 270. However, when their testimony is strengthened not only by public fame, but also by other indications of guilt, they, constitute a presumption of guilt, more or less strong, according to circumstances. Now canonists generally teach that mere presumptions, no matter how numerous, can indeed, like all other indirect or circumstantial evidence, throw light on the facts of the case, or furnish indications of guilt, but never constitute full proof of guilt. Therefore, 1 Reiff, 1. c., n. 368. * Ib., n. 372. in Inflicting Repressive Punishments. 113 it can never suffice for conviction and condemnation in criminal and disciplinary causes. Consequently, it seems to us that the present article, in allowing witnesses de anditu to testify, simply implies that their testimony is to be re- garded as indications, not proofs of guilt. (See our Elements, Vol. II., n. 880). 3. Hearsay Witnesses " Testes de Fama, de Relato" 271. We have already spoken at some length of common fame in our Elements, Vol. II., nos. 954, sq. Here we shall but add a few explanatory remarks, and apply what we say in our Elements to the proceedings which are conducted in accordance with the present Instructio. 272. Q. When are hearsay witnesses (testes dc famd] admis- sible, also in our criminal and disciplinary trials, and what is the value of their testimony, when admitted ? A. Before answering, we must make a few prefatory re- marks. Public opinion (fama communis) regarding the guilt of a certain person is of three kinds : (a) That which is but an empty rumor among the people, does not proceed from determinate persons, and has no solid foundation. This kind of defamation is to be completely despised. 1 (b) That which proceeds from determinate persons, who, however, are ani- mated by malice or selfish motives. This sort of public opinion is also to be wholly disregarded. 2 (c). Finally, that which originates with persons who are worthy of belief, of good character and whose interests are not involved in the case. 3 Of this third or last kind of public opinion only .do we here speak, since it alone has any weight whatever. However, in order that this kind of public opinion may have any weight, the following conditions are required : i. It must be uniform, solid, constant, unchanging, not 1 L. de Arrionum, C. de Poenis; cap. 24 de ace. - Cap. 24 de ace. 3 Ib., Reiff, 1. 2, t. 20, n. 391. 114 Mode of Proceeding which imist be Observed vague, light or conflicting. 2. It must be proved that it does in reality exist, and that it has arisen from facts and circum- stances which justly led the people to believe and speak of the offence or facts. We say, it must be proved that it does, etc. How, then, can the existence of fama be proved ? By the testimony of two witnesses, who are above all sus- picion or objection. 1 These are the kind of witnesses of whom we now speak. By testes de fama, therefore, we here mean those who testify to the existence and characteristics of the third kind of public opinion. 2.73. We now answer : There is question of admitting these witnesses either before the trial begins, for the purpose of authorizing the Ordinary to begin the trial, or after the trial has begun, in order to prove the guilt of the accused. In the first case, these witnesses are admissible uncondition- ally, provided they are above all objection : and the sworn testimony of two such witnesses establishes the existence of fama communis, and consequently authorizes the Ordinary to commence a special judicial inquiry. But it has no fur- ther weight whatever as proof. 274. In the second case, these witnesses can be allowed to testify only when other witnesses who are competent in law namely, direct eye and ear-witnesses, cannot be had. For the law of the Church justly requires that, especially in criminal and disciplinary causes, the proofs and consequent- ly also the witnesses shall be without any defect or flaw ; that, consequently, defective witnesses, such as the hearsay wit- nesses in question, are not admissible, except when it is proved that perfect and qualified witnesses cannot be ob- tained. But even in the case where these witnesses are ad- missible, their testimony has only the same force as the common fame itself. Now, common fame has not, in crim- inal and disciplinary causes, the force of even a semi-full 1 Cap. 21 de ace. ; Reiff., 1. c., n. 393, sq. in Inflicting Repressive Punishments. 115 proof (probatio semi-plena) but merely of an indication of guilt. Hence the testimony of witnesses de fama, no mat- ter how numerous, cannot convict the accused. 1 In this sense only does the present Instructio allow them to be ad- mitted as witnesses, as is plain from the wording of the article now under discussion. 275. However, where these witnesses cannot be admitted against the accused, save in the exceptional cases given, they must always be admitted when they are produced in favor of the accused ; for the law accepts even such defective wit- nesses as competent witnesses to prove the innocence of the accused. 2 276. Lastly, as the article under discussion speaks of the citation of witnesses, we ask : Is it necessary to cite the witnesses, in order that their testimony may be legal and have the force of proof ? The rule is that a witness who presents himself spontaneously, whether in the informative inquiry that precedes the citation of the accused, or in the trial which follows the latter's citation, is suspected of falsehood and therefore does not prove anything. We say spontaneously ; now, a witness is said to present himself spontaneously, when he appears either without having been juridically cited, or without having been requested to come by the judge or the party. 3 Hence, when it is proba- ble or certain that a witness will appear, if asked, it is not necessary that he should be juridically cited : it is sufficient, in the case, if the judge (or litigant) requests him by private letters to appear as a witness. The formula for such private letters is given by Bouix, de Jud., Vol. II., p. 521. 277. Where the witness, however, refuses to comply with these private letters, or where the judge or auditor thinks that private letters will not obtain the desired result, 1 Santi, 1. c. 2 Cf. Schmalzg., 1. 2, t. 20, n. 112. 3 Pellegr., Praxis, p. iv., sect, iv., n. 3. 1 1 6 Mode of Proceeding which must be Observed the proper mode of procedure will be to issue a formal ju- ridical citation to the witness at the request of the party wish- ing to produce him. For the formula of this citation, see Bouix, de Judic., Vol. II., p. 521, 522; Pellegrino, Praxis Vicar, p. iv., sect, iv., n. 96. See our Elements of Ecclesiasti- cal Law, Vol. II., n. 836. 278. A copy of the citation or request should, moreover, be filed among the acts, so that it may juridically appear that the witness did not come of his own accord. 1 279. We have said above, the rule is ; for where the party against whom a spontaneous witness testifies is present and does not appear, the latter's testimony becomes that of a competent witness. 2 280. Sometimes witnesses, even though cited, refuse to appear for examination, or if they appear, they refuse to answer, and that either through fear, hatred, etc. Can the ecclesiastical judge, also in the United States, compel them, even by punishments, to comply with the citation ? For the answer see our Elements, Vol. II., n. 860, 86 1. 281. We merely add, it is beyond doubt that \n civil causes of the ecclesiastical forum, witnesses can be compelled to appear and to answer. Can they be compelled to do so also /;/ criminal and disciplinary causes ? There are three opin- ions. The first denies absolutely, on the ground that even though the truth be concealed, in a criminal cause, the only effect will be that the guilty person will not be pun- ished ; and consequently no special injury is done to any person. The second affirms, chiefly because the public good of the faithful requires that crimes shall not go unpunished. The third opinion holds a middle course, and teaches that witnesses can be compelled to testify in criminal causes, in the following cases : i. Where otherwise the truth cannot be known. 2. Where the witness maliciously evades giving 1 Pellegr., 1. c., p. iv., sect, iv., n. 3. 2 Reiff., 1. c., t. 20, n. 416, 417. in Inflicting Repressive Punishments. 1 1 7 his testimony ; or where the adverse party v.g., the prose- cution, maliciously hinders the production of the witness. 3. Where, in a criminal or disciplinary cause, the witness is pro- duced by tJic accused to prove his innocence ; for in this case, the witness is bound to testify, even though not asked. 4. When there is question of crimes which are injurious to others, and therefore cannot be concealed without danger to the public ; such are simony, heresy, etc. 5. Finally, in all cases where the truth cannot be withheld without a grievous sin. This third opinion is sustained by Schmalz- grueber, 1. 2, t. 21, n. 17. 282. It should be observed, however, with Pellegrinus, that while, according to the written law of the Church, as laid down in the sacred canons, it does not seem that wit- nesses can be compelled to testify in ecclesiastical causes of a criminal nature, yet, by universal custom, the contrary practice has been introduced into all the ecclesiastical curias. By virtue of this general custom, which now has the force of law, it is at present lawful for ecclesiastical curias, also in the United States, to compel witnesses to appear also in criminal causes, and that by pecuniary fines, and if need be, also by censures. * 283. We have seen above, under article xii., that when the compilatio processus is entrusted to an auditor, the latter cites and examines the witnesses. Here it may be asked : Has he also, by virtue of his office, the power to compel witnesses, even by punishments, to testify ? On general principles, he would seem to possess this power. For, a person who is ap- pointed to discharge certain functions has, by this very appointment, all that power and authority which are neces- sary to enable him to perform his duties properly, unless where the contrary is expressly stated. On the other hand, the infliction of censures, or other punishments, upon refrac- 1 Pellegr., 1. c., p. iv., sect, v., n. 4. 1 1 8 Mode of Proceeding which must be Observed. tory witnesses is such a grave and delicate matter, espec- ially at the present day, that it seems safer to hold that the power in question is reserved to the Bishop, and becomes vested in the auditor only when it is expressly delegated to him by the Bishop. CHAPTER III. THE TRIAL CONTINUED FROM THE CITATION TO THE DEFENCE OF THE ACCUSED. (FROM ART. xxi. TO ART. xxvii. ART. XXI. Citation of the Accused. XXI. "Ubi id omne quod ad veritatem factorum constituendam et cul- pam accusati probandam pertinet, absolutum fuerit, imputatus intimatione scripta, ad examen vocatur." 284. In the preceding articles (art. xi.-xxi.), we have chiefly discussed the duties and functions of the auditor or investigating judge prior to issuing the citation to the ac- cused. We have seen that before issuing the citation, he should collect all the proofs which go to show the guilt or innocence of the accused, in order that it may appear juridi- cally whether there is sufficient ground for issuing the ci- tation. It has also been shown that, for this purpose, he can and should cite and examine witnesses, and also receive and examine all other proofs which are presented or submitted to him by the diocesan prosecutor. We have, moreover, seen how he is to examine the witnesses. Finally, it has been re- marked that this preliminary investigation should be as full and impartial as possible, since its object is not merely to find out the guilt, but also the innocence of the accused. 285. When the auditor has finished this preliminary inves- tigation, or processus informations, he must carefully weigh the evidence and see whether there is sufficient ground for citing the accused. If he does not find at least half proof of I2O The Trial Continued guilt, all further proceedings must be stopped. But if he finds there is complete, or, at least, half proof of guilt, he can proceed to the citation. This is evidently also the mean- ing of the present article of the Instruction, when it says : " Ubi id omne quod . . . ad culpam accusati probandam per- tinet, collectum fuerit, ad examen vocatur. " The Third Plenary Council of Baltimore, n. 312, very justly adds: " Cavendum est ne vocetur antequam omnia collecta fuerint, quae facti existentiam atque imputati culpam ostendant." 286. In regard to the nature of the citation, its conditions, mode of service, necessity, and effects, see our Elements, Vol. II., nos. 994-1010. 287. Here we shall briefly call attention to a provisional measure which the auditor or judge may sometimes adopt, after the processus informativus is completed, and that either before or after the citation of the accused. It has been seen that when it appears, at the end of the informative process, that there is a probatio legalis which amounts at least to a half proof of guilt, the accused can be cited for trial. In this case, that is, where the probatio legalis has been ob- tained, the accused may sometimes be commanded by the auditor or judge to retire into a monastery or other suitable place, during- the time tJie trial goes on. The auditor may issue this command either before or after the citation. 288. We say sometimes ; for this provisional measure is equivalent to ecclesiastical imprisonment (carceratid), and therefore always inflicts great disgrace upon the accused. Hence it is considered a very serious punishment, nay, a dam- num irreparabile, like a censure, to which it bears a strong resemblance. 1 Consequently it cannot be inflicted by the auditor or judge, save (a) when there are extant legitimate proofs of guilt, obtained, not extrajudicially, but judicially i.e., during the }\\r\&\c.-& processus informativus, as explained ;* 1 Pellegr., part.iv., sect, vi., n. 18. * Pellegr., 1. c., n. n. From the Citation to the Defence of the Accused. 121 () when the crime in question is very grave and atrocious, and moreover, causes great scandal, so that the accused can- not continue to exercise the sacred ministry publicly and in the midst of those among whom his offence is known, without grave scandal and injury to religion. 289. Pellegrinus teaches that, owing to the disgrace en- tailed by this constructive imprisonment, the ecclesiastical judge who orders it, without the above conditions, renders himself liable to heavy damages to the accused. 1 290. This assignment to a religious house or other suit- able place is called preventive or provisional imprisonment, and is to be distinguished from afflictive imprisonment, which is sometimes inflicted as a regular punishment, after the trial is entirely over, and sentence of condemnation has been passed. 2 (See our Elements, Vol. III.) 291. In connection with this matter, it may not be out of place to refer briefly to a mode of procedure which was formerly in use, but is now abolished, namely, the purgatio canonica. It has been seen that, at the present day, when, at the conclusion of thefrocessus informativus, no legal half proof of guilt is obtained, the accused cannot be cited, tried or punished. In former days, especially in the twelfth and thirteenth centuries, a different practice existed. For when, in those days, it was found, upon due investigation, that there was public defamation imputing a certain atrocious crime to a certain ecclesiastic, and when it was, moreover, found that there were strong indications of guilt, but yet that the guilt could not be fully and juridically proven, the procedure called the purgatio canonica took place. That is, the accused, if the public fame continued, was first sus- pended ob officio, and then commanded by the ecclesiastical judge to swear on the holy gospels that he did not commit the crime. This oath had to be supplemented by a similar 1 Pellegr., 1. c., n. 15, 16. 2 Stremler, 1. c., p. 62. 122 The Trial Continued oath of a certain number of other persons, called compurga- tores. 292. When he had thus purged or cleared himself (pnrga- tio canonicd] of the suspicion of guilt, the suspension was re- mitted, and he was fully reinstated. If he failed to purge himself as above, sentence of condemnation was pronounced, by which he could be deprived of his office and benefice and consigned to a monastery. x This procedure is no longer in use.* ART. XXII., XXIII. Contents of the Citation. XXII. " In intimatione, nisi prudentia obstet, accusationes contra reum perlatae, per extensum referuntur. ut ad responsionem se parare possit." XXIII. "Quod si ob accusationum qualitatem vel alia de causa baud expediat, ut in intimatione exprimantur, in hoc satis erit innuere, ipsum ad examen vocari ut in causa, de qua contra eum fit inquisitio, sese defendat." 293. Both these articles, showing that, as a rule, the ac- cusations must be in full communicated to the accused simultaneously with the citation, are plain, and, moreover, sufficiently explained in our Elements, Vol. II., Nos. 1002, 1003. 294. Here we merely remark that when the auditor, or investigating judge, sends the charges to the accused, together with the citation, he can do so by simply enclosing a copy of the bill of charges, made out by the diocesan prosecutor, and amended or altered by him, if need be, at the end of the preliminary investigation, prior to the 1 Cap. 6, 10, de Purg. Can. (v., 34). 3 Reiff., 1. 5, t. 34, n. 20 ; Giraldi, Exp. Jur. Pont, ad tit. de purg. can. ; Moli- tor, Trials, p. 237. From the Citation to the Defence of the Accused. 123 citation. We say, amended or altered ; for the accuser or prosecutor may change his libcllus or indictment until the lit is contestatio has taken place, as we show in our Elements, Vol. II., n. 991. ART. XXIV. Contumacy of the Accused, or his Refusal to Obey the Citation. XXIV. " Si ad examen accedere recuset, iterum fit intimatio, atque in ea congruum tempus peremptorium praefinitur intra quod reus coram tribunali se sistere debeat, eique significatur, si non pareat, contumacem esse judicandum ; quam intimationem si baud probato legitimo impedi- mento transgrediatur, ut contumax de facto habebitur." 295. This article outlines the mode of procedure to be followed in case the accused refuses to obey the citation. The Instructio enacts that a simple citation shall first be issued to the accused ; * that if he refuses to obey this cita- tion, and fails to appear in court, he shall be cited a second time, and that peremptorily ; that if he contemns even this second citation, he shall be adjudged contumacious, un- less he can prove that he was lawfully hindered from coming. 296. Accordingly, when the accused fails to obey the second citation, the diocesan prosecutor moves that he be juridically declared contumacious. Before making this declaration, the auditor or judge should, by a summary in- vestigation, ascertain whether the disobedience of the accused is excusable or not. For this purpose, he should carefully weigh the excuses, which the accused himself may have sent, or which may otherwise appear, as we show in our Elements, Vol. II., N. 1023. If he finds that there is no sufficient excuse for the disobedience, he formally declares the accused contumacious. 2 For the causes excusing from 1 Art. xxi. 2 Arg. Cap. Cum Dilecti 6, de dol. et cont. (ii. 14); Reiff., 1. 2, t. 14, n. 122. 124 The Trial Continued contumacy, see our Elements, 1. c., n. 1013. For the formula of this declaration, see Bouix, de Jud., Vol. II., p. 559. 297. After this declaration of contumacy, the auditor or judge appoints ex officio an advocate to represent and de- fend the absent and contumacious accused, and then a day is set for the trial to go on in the absence of the accused. On the day appointed, the trial goes on as though the accused were present in person. The diocesan prosecutor conducts the prosecution, and the advocate appointed ex officio for the accused, takes charge of the defence. 1 See our Elements, Vol. II., n. 1016. 298. It should be observed here, as the Third Plenary Council of Baltimore, n. 313, teaches, and as we show in our Elements, Vol. II., Nos. 1016, 1021, that the contumacy of the accused constitutes a strong presumption, but not a full proof 'of guilt. Consequently, the guilt of the accused who is contumacious must be established by legal proof, just as though he were present at the trial. 299. As to the punishments which may be inflicted upon the accused for his contumacy, apart from the question of his guilt or innocence of the crime for which he was cited for trial, see our Elements, 1. c., nos. 1020, 300, sq. Under No. 1022 (Elements, Vol. II.) we say, in common with all canonists, that " an accused who is in contempt can be excommunicated for such crime of contempt." 2 This must, however, be understood in the light of the following enact- ment of the Council of Trent: 3 "As regards judicial causes, it is enjoined on all ecclesiastical judges, of whatsoever dig- nity they may be, that both during the proceedings (or trial), and in giving judgment, they abstain from ecclesiastical censures or interdict, as often as an execution on the person or property can, in each stage of the process, be effected by them of their own authority. ... In like manner, in criminal 1 Prague Instruction, 62, 64, 65; Dfoste, p. 131. : Cap. TUJC fraternitatis 3 (ii. 6}. 3 Sess. 25, Cap. 3 de Ref. From the Citation to the Defence of the Accused. 125 causes, wherein an execution can, as above, be effected upon the person or goods, the Judge shall abstain from censures ; but if that execution cannot easily be made, it shall be law- ful for the judge to employ the said spiritual sword against delinquents ; provided, however, the character of the offence so require, and after two monitions at least." 301. Canonists interpret this decree to mean that cen- sures can be inflicted only in the one case, where the accused, after having been condemned for a grave offence, eludes the execution of the sentence ; that consequently they cannot be imposed for the contumacy in question. 1 Thus Pierantonelli 2 says it plainly follows from the above decree of the Council of Trent (sess. 25, c. iii., de Ref.) that the ecclesiastical judge must abstain from inflicting censures for contumacy, not only when he can punish the contumacy by temporal punishments, such as pecuniary fines, but also when it is in his power to go on with the trial and to exe- cute his final sentence of condemnation. In the same sense Reiffenstuel, 3 speaking of the infliction of censures for contumacy, teaches : " Quinimo Concilium Trid., sess. 25, c. iii., de Ref., saluberrime mandat omnibus judicibus ecclesi- asticis, quod ad poenam excommunicationis non procedant, quantocunque executio realis vel personalis adversus reos fieri poterit." 302. The second condition of inflicting censures for con- tumacy, is that the ecclesiastical judge must give the ac- cused who is contumacious, at least two warnings before- hand that he will inflict censure, unless he appears and obeys the citation. This is expressly stated by the Council of Trent. 4 303. Pierantonelli 5 remarks, moreover, that the laws and regulations which govern citations, their execution, and the contumacy of the party cited, apply not only to the citation 1 Droste, p. 130. - P. 134. 3 L. ii., t. 14, n. 141. 4 Sess. 25, c. iii., de Ref. 5 P. 135. 126 The Trial Continued calling the accused to trial, but also to all the other citations or notifications which are made during the progress of the trial, so that a stubborn disobedience to these authorizes the judge, at any stage of the trial, to open contumacy proceed- ings, that is, to go on with the trial in the absence of the contumacious party, etc., in the manner explained. 304. Q. Can the two citations prescribed by the Instruction be sometimes contracted into one ? A. The affirmative would appear to follow, from the fact that the general law of the Church, though it prescribes three simple citations, 1 yet allows the ecclesiastical judge to contract them into one peremptory, where the circumstances of the case require it. See our Elements, Vol. II., n. 997. Notwithstanding this, the negative seems the true opinion. For it appears to us that the argument taken from the general law of the Church does not hold. In fact, the com- mon law of the Church, while prescribing three simple citations, also expressly authorises the ecclesiastical judge to contract them into one peremptory, where there is sufficient reason for so doing, whereas the Instructio, while expressly requiring two citations one simple, the second peremptory does not say a single word about contracting them into one. 2 305. For fuller information concerning contumacy, its effects, mode of procedure, etc., also in the United States, see our Elements, Vol. II., n. 1010-1026. 306. For the mode of procedure in case of contumacy, to be followed by commissions of investigations, where they shall exist. See our Elements, 1. c., n. 1017, 1024, 1025. 1 Can. de illicita, 6, $ quicunque, causa 24, q. 3. 8 Cf. Cone. PI. Bait, iii., n. 313. From the Citation to the Defence of the Accused. 1 27 ART. XXV. The Hearing Given the Accused as soon as he Appears on due Citation Exceptions Proposed by him. XXV. "Verum si ad examen accedat, audiatur ; et ubi inductiones alicujus valoris exhibeat, eae, quantum fieri potest, accurate discutiantur." 307. Having, in the preceding article, outlined the mode of procedure in case the accused fails to come into court, the Instruction now describes what is to be done when he obeys the citation and appears in court. Accordingly, as soon as the accused appears before the auditor or ecclesi- astical judge, conducting the compilatio proccssus, the latter should at once, and before proceeding to the lifts contcstatio, admit him to a hearing, in order to give him a chance to establish his innocence forthwith, and without any further proceedings, and also to make legitimate exceptions. 1 This hearing is called the constitutum, from the word constitutus, with which the notary begins the minutes of the proceed- ings. - Our Elements, Vol. II., n. 1026, sq. 308. How is this first hearing conducted? Either the indictment or charges were sent to the accused, together with the citation, as directed in article xxii., or not. If not, the auditor directs the diocesan prosecutor to read the charges to the accused and to give him a copy of them. Then, if the accused desires it, a delay must be granted him to enable him to prepare statements and exceptions which he may wish to make in his first hearing. 3 At the expira- 1 Todeschi, 12, 13, p. 504. - The formula: in which the notary generally begins these minutes is : " Consti- tutus personaliter in curia coram Rmo Vicario Generali, etc., meque actuario, assistente Rmo Promotore fiscal! curice episcopalis, D. N. fuit per eundem Vicarium gen. interrogatus, etc.' 1 (Acta S. Sedis, vol. xv.,p. 391). 3 This seems to follow clearly from art. xxviii. of the Instrudio. Consequently the teaching of Pellegrino (p. ii., sect, i., subs, v., n. 20) that this deliberative delay is granted only in civil, but not in criminal causes (Ib., p. iv., sect, ix., n. 44) does not appear applicable in our procedure. 128 The Trial Continued tion of this term or delay, the hearing takes place in the manner which we shall presently describe. 309. If the charges were sent to the accused simultane- ously with the citation, the auditor, though not obliged, will yet laudably direct the prosecutor to read the indictment to the accused ; then he will ask the latter to make any statement or answer he may wish. Of course the auditor is at liberty, not only now, but at any stage of the trial, to ask him proper questions for the purpose of bringing out more fully and clearly the facts in the case. The accused may or may not make any statement or answer, as he pleases. Nor is he bound to confess his guilt, even though the auditor interrogates him lawfully, at least when he has reason to believe that a grave punishment will be inflicted upon him, if he confesses. 310. If, however, he desires to make any observations, he should be heard patiently, and allowed freely and fully to give his own version of the facts in the case, without being interrupted in his narrative. His entire statement and all his answers must be accurately and truthfully written down by the notary. When the first hearing is over, these minutes are read to the accused, and may be signed by him after they have been corrected, if need be, according to- his suggestions. They are also signed by the auditor and the notary. Rota, p. 470, n. 709, advises the accused to speak but sparingly, according to the poet : " Nulli tacuisse nocet, nocet esse locutum." 311. The Instructio justly ordains that if the accused, in the first hearing, makes statements which are of som weight, they should be fully discussed and considered. For it may happen that already, in this first hearing, and be- fore the plea is entered, the innocence or guilt of the accused will be established and thus all necessity for further pro- ceedings ended. Thus the accused may at once, by letters or documents, prove an alibi ; or he may also show that al- From the Citation to the Defence of the Accused. 129 though he committed the offence materially, he did not formally ; in other words, that he acted from ignorance, not from malice, etc. Or again, inversely, he may make dam- aging statements, criminating himself. 312. The auditor, as we have said, is at liberty to ask him questions, for the purpose of clearing up the alleged facts in the case, and that both in this hearing, and at any sub- sequent stage of the proceedings. Here, then, it may be asked : Is the accused, when asked by the auditor, bound to confess his guilt? For the answer, see our Elements, Vol. II., n. mo, sq. Here we shall merely remark that, in former days, great stress was laid upon the preliminary examination or hearing of the accused which took place prior to the litis contest atio. 1 The accused was obliged to swear, at the beginning of the hearing, that he would tell the truth, upon being lawfully interrogated by the judge. Hence, also, as we show in our Elements, 1. c., n. 1112, sq., it was the more general opinion of canonists that the ac- cused was bound to confess his guilt, in answer to legiti- mate questions put by the judge. 313. At present, however, it may be said that the oppo- site opinion, which holds that the accused is not bound to tell the truth and confess his guilt in answer to lawful ques- tions of the judge, is perfectly true and safe. 2 This is inferable from the fact that although, at present, the auditor, or ecclesiastical judge, can and should exhort the accused to tell the truth, he is strictly forbidden to oblige or even allow him to take the oath that he will tell the truth (juramentum rcritatis dicendce), as we show in our Elements, Vol. II., n. 1077. 3 In fact, all modern legislation, ecclesiastical as well as secular, is based on the principle that the prosecutor must 1 Pellegr., part.iv., sect, ix., n. I. - Rota, p. 466, n. 704. 3 The object is to prevent the accused from perjuring himself. Consequently, though he cannot be allowed to take the oath when testifying or answering in his own behalf, he can be sworn when he acts as witness for or against other persons. 130 The Trial Continued prove the guilt, and that consequently the accused is not bound to confess his guilt, and thus become himself the in- strument of his own conviction. Accordingly, the Church has at present abolished not only the oath, as just stated, but also the torture, both of which were used formerly, in order to compel the accused to answer. 314. Besides being allowed, in this first hearing, to give his own version of the accusations made against him, he must also be heard in regard to any exceptions he may wish to propose. For, as we say in our Elements, Vol. II., n. 1026, " after the citation has been issued, and the ac- cused comes into court, he may, without joining issue, and before entering upon the cause, or into the merits of the charges, make various exceptions or objections, which either throw the case altogether out of court, or at least delay it." These exceptions, if dilatory, should be fully and accurately discussed before the lit is contest atio takes place. We say, if dilatory ; for peremptory exceptions may, nay, should, as a rule, be made also after the litis contestatio, as we show in our Elements, Vol. II., n. 1033. 315. Here it should be observed that the dilatory ex- ceptions against the auditor or judge should be proposed before any other dilatory exception ; otherwise the party is presumed to have accepted the judge -or auditor. See our Elements, Vol. II., n. 1052. The accused should, there- fore, before all else, make the exception against the judge, if he sees fit. For the various kinds of exceptions, the mode of discussing, proving and deciding them, see our Elements, 1. c., n. 1026-1055. From the Citation to the Defence of the Accused, 131 ART. XXVI. The Plea or Issue and the Production of the Proofs of Guilt. XXVI. " Deinde accedendum est ad contestationem delicti et argumen- torum quae prostant, ut inquisitus et culpabilis habeatur et in poenas canonicas incurisse cense at ur." I. The " Contest at io Delicti." 316. When the first or preliminary hearing is over, that is, after the statements made by the accused have been heard, and his exceptions fully discussed, and either wholly or partially admitted or rejected, or decision on them re- served, in order to be given together with the final sentence, the entering of the plea, or the litis contcstatio, takes place, 1 as is stated in the article under discussion. The joining of issue or the contestatio delicti or litis consists in the affirma- tion of the crime and all its specifications by the diocesan prosecutor, and the denial of them by the accused made in court, after the first hearing. See our Elements, Vol. II., n. 1065. 317. The manner in which it takes place is this : The audi- tor or judge first assigns a term to the diocesan prosecutor to formulate or frame the various specifications or counts (cap- ituld] of the charges. 2 Next the accused is cited to hear and to reply to them on a fixed day. 3 On the day appointed they are read to the accused in court by the prosecutor, and the defendant is asked by the auditor, in regard to each specification, whether he admits or denies it. His answer is carefully noted in the minutes or acts of the case. 4 318. We say, "the auditor first assigns a term to the prosecutor " ; this is to be understood with the proviso, if 1 Pellegr., Praxis Vicar., p. 68, Venetiis, 1706. 2 This term or delay is called terminus ad articulandum or capitulandum. 3 This term is styled terminus ad dicendum contra capitula. 4 Rota, 1. c., p. 471 ; Pellegr., 1. c., p. iv., sect, ix., n. 57; Ib., sect x., n. 86. 132 The Trial Continued the prosecutor desires it. For the first hearing may not have brought out any new facts, and, consequently, he may not find it necessary to add to, change, or drop any of the charges and specifications which were sent to the accused simultaneously with the citation, or read to him on first ap- pearing in court. In this case he would be ready to proceed forthwith to the contestation, that is, to present his specifi- cations, and, therefore, would not be in need of any delay. In like manner, the accused, if he has been informed of all the charges and specifications, either when the citation was sent, or as soon as he appeared in court, and if no changes are made in these by the prosecutor after the first hearing, may be ready for the litis contcstatio as soon as the first hearing is over, without asking for or being granted a new delay. 319. Where, however, the prosecutor finds that the re- sults of the first or preliminary hearing make it necessary for him to modify his charges and specifications, and he can, as we have seen, alter them until after the litis contcsta- tio he can, if he wishes, obtain a delay to enable him to frame the specifications which he wishes to present for the litis contestatio, in accordance with the results of the first hearing. In this case, the changes made by the prosecutor must be communicated to the accused and a suitable delay allowed him to prepare his categorical replies. Observe that the above delays are substantial, and, consequently, must be granted to the parties, if they ask for them, on pain of nullity of the proceedings, and that also in criminal causes, which are tried in a summary manner, as laid down in the Instruction? 320. Here it will be seen that we interlink the litis con- testatio with the capitnla. Strictly speaking, however, the two are distinct and separate. For the litis contcstatio con- 1 Pellegr., p. iv., sect, ix., n. 56; Rota, p. 476. Front the Citation to the Defence of the Accused. 133 sists in the general plea, that is, in the general denial of the charges by the accused, whereas the capitula and the answer thereto consist in the specific plea, or in the specific denial by the accused or defendant of the specific deeds or details of the general charge or complaint. Consequently, in civil causes of the ecclesiastical forum, the litis contestatio, or general plea, is always distinct from, and, as a rule, precedes the positiones? In other words, the defendant first denies the complaint in general, or in toto, and thus contests the case. Then the plaintiff presents his specifications (posi- tiones), and the defendant gives his specific answer to each. 2 321. But in criminal causes, also as tried in accordance with our Instruction, the two the general (litis contestatio) and the specific plea (capitula) are interwoven in such a manner as to constitute but one and the same act. Of course, before the accused is asked to give his specific answer to the specifications, he should be asked and allowed to put in his general answer or denial. And this general denial forms, properly speaking, the litis contestatio, also un- der the Instruction Cum Magnopere. The specific answers to the various counts, though pertaining to the " litis con- testatio," are rather its complement than its constituent part, and, therefore, pertain rather to its completeness than its essence. 322. These specifications (positiones, capitula, articuli} should be framed by the litigants themselves or their advo- cates, and not by the auditor or ecclesiastical judge. 3 The reason is that they are considered as prooj ~s ; for, if not de- nied by the accused, they are regarded as admitted or con- fessed by him, and, therefore, have the force of full proof against him. Now the proofs for or'against a case must be 1 The reason is that the capitula are regarded as proofs. Now proofs should not, as a rule, be produced until after the litis contestatio. ' 2 Cap. i, ii., de Confessis in 6; Reiff., 1. 2., t. 18, n. 186, 231. 3 Ib., 1. c., n. 219. 134 The Trial Continued presented by the litigants themselves, not by the judge, whose duty it is, not to prove, but to judge the case. Hence, in criminal and disciplinary causes, as conducted also under the Instruction Cum Magnopere, the specifications of the charge are made out by the diocesan prosecutor {procurator fiscalis). The accused or his advocate has the right to sub- mit defensive specifications. 323. Nevertheless, these counts must be submitted in writing to the auditor or judge, whose right and duty it is to reject or admit them, not arbitrarily, but in accordance with the prescriptions of the sacred canons. 1 Once they have been presented to the auditor or judge, and filed by him among the acts, they can no longer be changed. 2 324. When the specifications are properly framed and presented by the diocesan prosecutor, the accused is obliged to give a specific answer to each, provided he is commanded by the auditor or judge to answer ; and if he refuses to answer without alleging a reasonable excuse, he is looked upon as having admitted the specifications which he declines to answer. This, however, needs explanation. 325. We say, luhcn the specifications are properly framed. In what manner, then, must they be drawn up, in order that the accused may be bound to answer them ? i. They must be to the point i.e., they must bear on the crime charged ; otherwise the accused need not answer. 2. They must be clear, not vague nor obscure. If they are somewhat equivo- cal, the accused has a right to ask for an explanation before he answers. 3. Each specification should contain but one item, not two or three. 4. They should state facts, but not propound questions of, law. 5. They should be made as- sertively, not interrogatively. 6. Finally, they should not be captious i.e., framed for the purpose of entrapping the ac- 1 Reiff., 1. c., n. 222, sq. 2 Ib. 3 Cap. 2 de Conf. in 6 ; Reiff., 1. c., n. 197. From tkc Citation to the Defence of the Acc:iscd. 135 cused, and, therefore, worded in such a manner, that no matter what way he answers, he will criminate himself. 1 326. This latter requisite was brought out in the oft- quoted case of the Priest David A., who appealed to the S. C. C. from the sentence of the curia of Milan. The Roman Advocate, who pleaded before the Sacred Congregation in behalf of the appellant David, showed that the specifications and questions to which David was commanded to make the categorical reply of yes or no (credo, or non credo) were cap- tious and framed in such a manner that no matter how he answered, he would hurt his cause. Now, continued the Roman Advocate, such specifications and* questions are vehemently reprobated by the law of the Church, and if put to the accused, render the proceedings null and void? The Sacred Congregation, in April 18, 1885, reversed the sentence of the curia of Milan, and decided in favor of the appellant David. This decision seems thus to confirm the above argument. 327. We say also, provided he is commanded, etc. ; for, unless the accused is commanded by the auditor or judge in person to answer, he can refuse to do so. 3 Finally, we say, if he refuses to answer, he is looked upon as having admitted, etc. ; this is true only when the accused has taken the oath to tell the truth, before he answers the specifications. 4 Conse- quently it does not apply to our trial. For, according to the present law, the accused is not allowed to take the oath. Hence, he is not to be regarded as having admitted his guilt, if he refuses to reply to the specifications, even though the auditor or judge commands him to answer. 328. The positiones in civil causes of the ecclesiastical forum are worded thus : Ponet et probare intendit N. quod die mensis anni consignavit in manus A. adversarii 1 Reiff., 1. c., n. 206; Leur. For. Eccl., 1. 2, tit. 20, q. 644. " Acta S. Sedis, vol. xviii., p. 65. 3 Cap. 2 de Conf. in 6 C ; Reiff., L c., n. 199. 4 Cap. 2 de Conf. in 6 ; Reiff.. 1. c., n. 200. 130 The Trial Continued libellas 50, etc. 1 The capitula in criminal causes are worded thus : " Inquirendum est quod N. fecit hoc vel hoc." : 329. Q. Is the contestatio delicti, as prescribed in the present article of the Instruction, absolutely necessary, in such a manner that its omission will cause the proceedings to be null and void ? A. We premise : There are two kinds of litis contestatio: one formal or solemn ; the other simple and informal. The formal is that which is made in certain set words or phrases, contained in the formula of the respective curia. The in- formal is that which is made in a simple manner and without any set form of words or phrases. 3 It matters not how it is worded. All that is required is that the prosecutor shall clearly and fully set forth and affirm the offence and all its details and specifications. 4 We now answer: It appears certain that the informal litis contestatio is sufficient, and also, at the same time, absolutely necessary, on pain of nullity of the proceedings. That it is sufficient, follows from the fact that the trial, as outlined by the Instruction, is conducted in a summary and informal manner. 5 That it is absolutely necessary is asserted by Rota (p. 471), and is in accordance with the teaching of all canonists, as we show in our Elements, Vol. II., n. 1066, 1069. In fact, the litis contestatio is the basis, foundation, and corner-stone of the whole trial. Con- sequently, when it is wanting, no judicial superstructure can be raised. 6 330. From what has been said, it will also be seen that the object of the " litis contestatio " is twofold : The first and chief is to fix clearly and unalterably the points at issue or the charges preferred and thus have a specific and unchange- able basis for the trial. We say, unalterably ; for, as we have seen, the prosecutor cannot alter the charge after the litis 1 Pierantonelli, 1. c., p. 141. * Pellegr., part, iv., sect. \., n. 84. 3 Todeschi, 1. c., 507, 15 ; Pellegr., 1. c., p. ii., sect, ii., subs. 21, n. 2. 4 Rota, p. 471. 6 Art. x.; cf. Schmalzg., 1. 2, t. 5> n. 3. b Schmalzg., I.e., n. 4. From the Citation to the Defence of the Accused. 137 contestatio. The second object is to shorten the trial. For, as \ve say in our Elements, Vol. II., n. 1072, " if the prosecuting official, for instance, proposes ten specifications, and the de- fendant admits six, it will be necessary only to prove the four remaining." For fuller information regarding the litis contestatio and also the capitnla or specifications of the charges, see our Elements, Vol. II., 1. c.,Nos. 1064, 1074. ;j 2. Manner in winch the Prosecutor Produces the Proofs of Guilt. Probatio Delicti. Proccssus Publicatio. 331. After the litis contestatio or plea, it becomes the duty of the diocesan prosecutor to prove those charges and speci- fications which have been denied by the accused in the litis contestatio. Those which are admitted by him need evidently not be proved. The prosecutor, then, at this stage of the proceedings, 1 produces before the auditor, and in the presence of the accused, all the witnesses, documents and other evidence upon which he bases the guilt of the ac- cused. For this purpose, he now submits as evidence or proof the entire record or minutes and acts of the proceed- ings which have taken place prior to the citation of the ac- cused namely, the testimony of the witnesses then examined pro infonnatione curia ; the documents then submitted ; the records or minutes of the proceedings all of which is read to the accused and a copy given him, provided, however, he has previously declared that he regards the witnesses ex- amined in the informative process as lawfully examined. Where these records are very voluminous and where, conse- quently, it would consume too much time to read them all to the accused, it is sufficient to give him a copy of them, or to ; If he is not ready, as yet, he can obtain a suitable delay to enable him to get ready. This delay is called terminus ad producendum omnia, because within this term the prosecutor can and should, at least as far as possible, produce all his wit- nesses and other evidence or proofs, that is, not only the proofs collected during the informative proceedings, but also others that he may have obtained afterwards. 138 The Trial Continued allow him to inspect and, if he desires, copy them. 1 This is called the publicatio processus offensive or informativi, as we show in our Elements, Vol. II., n. 855, 1120, sq. It is a sub- stantial part of all criminal trials, 2 and is therefore also pre- scribed, and that on pain of nullity, by the Instruction, when it say.s : Deinde accedendum est ad contestationem delicti, et argumentorum, quce prostant" 3 332. We have just said, provided he has previously declared, etc. ; for, before the informative proceedings and the proofs collected in these proceedings, are read or communicated to the accused, in the manner stated, the latter is asked whether he considers the witnesses who were then ex- amined, in the informative process, as lawfully cited and properly examined or not. If he replies in the affirmative, their testimony becomes legalized by this declaration ; that is, by fiction of law, it is regarded as having been taken after the " litis contestatio," and consequently jam constitute ct citato reo, and having therefore the same legal force as proof of guilt, as though the witnesses had been in reality examined after the citation of the accused, and after the litis contestatio. In other words, the above declaration of the accused gives the testimony the force of probatio legalis. 333. Hence, as soon as he has made this declaration, the entire testimony of the witnesses is forthwith published to him, in the manner stated. Thus the Third Plenary Council of Baltimore, n. 314, explaining the present article (xxvi.) of the Instructio^ says : " Itaque coram accusato legendae sunt testium depositiones, et conclusiones ex illis deductee." 334. In the second, namely, where the accused refuses to make this declaration and thus to legalize the testimony of the witnesses, as taken during the informative process, the witnesses must all be cited and examined over again (repetitio testium}, at this stage of the trial, just as though 1 Rota, p. 472. - Pellegr., part, iv., sect, x., n. 18. 3 Rota, 1. c., p. 472. From the Citation to the Defence of the Accused, 139 they had not been examined as yet, and only when they have been examined over again after the litis contestatio, does the auditor or judge order the above publication to take place. 335. Here the question arises : are the names of the wit- nesses also to be communicated to the accused, together with 1 their testimony at the fltbh'catw flrocessiis informativi or litis contcstatio in question ? According to the general law of the Church, as generally interpreted by canonists, and prescinding at present from the Instrnctio, it is necessary to distinguish between two cases : i. Where the accused legal- izes the informative process, by his declaration, as explained ; 2. Where he declines to make this declaration. In the first case, the names and surnames, as well as the testimony of the witnesses, must be forthwith communicated to the accused. In the second case, the names as well as the testimony of the witnesses need not be published to him, until after the witnesses have been examined over again, as explained already. 336. Bouix 1 gives the above teaching thus : " Peracto rei examine . . . Judex decernit publicari, et publicat process- urn (offensivum) hue usque peractum. Dicitur autem pro- cessus offcnsivus tota ea pars processus criminalis, quae prjecedit decretum judicis, quo reo copiam actorum conce- dit, ut sese defendere possit. Et vocatur offensivus, quia hucusque omnia peraguntur contra reum, ad detegendum nempe ipsius delictum ; et nondum ad sese defendendum admissus est. Fit autem pnblicatio, legendo totam seriem processus hucusque habiti. . . Quamvis Judex, publicato processu offensive, teneatur reo petenti concedere ejusdem processus copiam, non tenetur ad manifestanda ipsi testium nomina antequam testes repetantur ; nisi reus velit process- urn hue usque habitum Icgitimarc, id est, nisi deelaret se 1 De Jud., vol. ii., pp. 215, 216. 140 The Trial Continued habere testes in informative processu receptos, pro rite ct recte citatis et examinatis" 337. This is apparent also from the formula of this publi- cation, as given by canonists in general, and especially by Pellegrino, 1. c., P. iv., Sect, x., n. 83 ; Bouix, de Jud., Vol. II., p. 570. 338. The reason why the names of the witnesses may be withheld from the accused until after their testimony has be- come legalized either by the defendant's declaration or their repetition, as explained, is, that until the testimony of the witnesses examined in the informative process which pre- ceded the citation of the accused, has been legalized either by the declaration of the accused (legit imatio proccssus per declarationem), or by the repetition (legitimatio proccssus per rcpctitioncm tcstiuni), it is looked upon by the law of the Church as of no force whatever as against the accused, or as proof of his supposed guilt. In fact, these witnesses are regarded as not having given their testimony at all, as yet, against the accused. 339. If therefore their names were made known to the accused before their testimony became legalized, either by declaration or repetition, he might by persuasion, by threats, money or even violence, cause them to refuse to repeat their testimony, or at least, to tell the truth, and thus he might frustrate the ends of justice. It is to prevent this con- tingency or danger of intimidation or bribery, that the law of the Church enacts that the names of the witnesses need not be communicated to the accused, until after their testimony has been legalized, as above explained. We say, " need not ;" for where there is no such danger, the names of the witnesses may be made known to the accused at any stage of the proceedings. For, while the judge need not, he may, if he wishes, communicate their names to the accused, even before their testimony has been legalized. J A fortiori the 1 Bouix, de Jud., vol. ii., p. 570. From the Citation to the Defence of the Accused. 141 testimony of the witnesses, without their names, may be communicated to the accused at any stage of the trial, even before the legalization of their testimony or the processus publicatio. 340. The above teachings, to wit, that the names of the witnesses must be communicated to the accused, together with their testimony, in the publication of the informative process to the accused, which takes place according to article xxvi. of the Instructio, is also maintained by recent canonists who wrote after and commented upon the In- structio of the S. C. EE. et RR., dated June 11, 1880, of which the Instruction Cum Magnopcre is a copy. These can- onists apply the teaching in question to article xxvi. of the Instructio now under discussion. Thus Rota, * explain- ing article xxvi. of the Instructio of 1880, which is the same as article xxvi. of our Instructio says : " Contestatio delicti (art. xxvi.), exigit processus publicationem. . . Ast imprimis recte cognoscendum est, quas ista publicatio re- quirat, et in quo prsecipue consistat. . . Igitur oportet im- primis, ut reus declaret (et de hoc constare debet in actis), se habere testes pro rite et recte receptis, et legitime ex- aminatis, salvis exceptionibus et repetitionibus qure occurre- re possint." Hac a reo emissa declaratione, et in Actis recepta, Judex debet Acta processus offensivi publicare, mandando ut omnia alta et clara voce legantur, et postea copiam ipsorum dando. . . Quaeres forsan, an danda sit co- pia actorum, cum nominibus ct cognominibus testium, ubi hasc reus petierit. Ad solvendam hanc questionem, opus est distinctione : vel enim agitur de reo examinato, qui de- claravit sc habere testes pro rite cxaminatis ct receptis, vel non . . . In primo casu copia est concedenda omnium reper- torum cum nominibus ct cognominibus testium, ut possit non tantum contra eorum dicta, sed etiam contra eorum pcrsonas 1 Enchir., p. 471, n. 713, 714, 715. 142 The Trial Continued excipere, puta si fuerint inimici, socii, inliabilcs etc. Patet quod hoc ad defensionem pertinet, et denegari a judice nequit." 341. In the second case, namely, where the accused de- clines to make the above declaration, Rota teaches that the names of the witnesses need not be given to him until after their testimony has been legalized by repetition. 342. In like manner, Droste, * having described the exam- ination of the accused, as pointed out in article xxv. of the Instructio, says : The confrontation of the witnesses with the accused, though distinct from, is yet, as a matter of fact, connected and interlinked with the above examination of the accused. This confrontation, where the accused appears for the examination prescribed in article xxv. of the Instruc- tio, is so essential in criminal proceedings, that its omission renders the proceedings wholly null and void, 2 and makes it necessary to begin the trial over again ex intcgro. 3 This is also indicated by article -xxvi. of the Instruct of June 11, 1880, which says: " Proceditur indc ad contest at ioncvi facti criminosi, et conclusioncm habit arum, ad retinendnm accusatum criminosum lapsumquc in rclativis pccnis canonicis" 343. Droste 4 next explains what is meant by this confron- tation. In common with all canonists, he says there are two kinds of confrontation ; one personal; the other verbal. After stating that it is discretionary with the judge to allow of the personal confrontation, he continues: "But the ver- bal confrontation is obligator}-. It consists in this, that the names of the witnesses are read or given to the accused, to- gether with their testimony, as also the conclusions drawn from them by the procurator fiscalis. It cannot be omitted ; and the accused must, as a rule, be present at it, in person. . . This verbal or personal confrontation is called legitimatio 1 P. 120, 121, Paderborn, 1882. - S. C. EE. et RR. litterce circulares, 1851. 3 S. C. EE. et RR , 1852. < L. c., p. 121. From the Citation to the Defence of the Accused. 143 proccssus. . . The accused has the right to attack, in every possible manner, the person of the witnesses, as also their testimony. This is the meaning of article xxvii. of the In- struct io : " Qunm accusatus tali modo habeat plena m cognition- cm cjus quod in actis cxtat contra sc, ultra quod rcspondcre possit, jure sc dcfcndcndi a scmctipso etiain uti valet." This author reiterates the same teaching on page 56 of his work. 344. The Third Plenary Council of Baltimore, n. 314, takes a different view, and teaches that the names of the witnesses are made known to the accused, or rather to his advocate, not at the present stage of the proceedings as described in article xxvi. of the Instructio, but only when the trial proper is entirely over, and when the final summing up is to take place, as described in article xxxii. of the Instructio. The words of the Council, in explaining article xxvi. of the In- structio, are : " Itaque coram accusato legendse sunt tes- tium depositiones ; et conclusiones ex illis deductee. Inquisitus, ubi ex his noverit, quse in actis contra ipsum relata sunt, ad ea respondere potest ac, si velit, utetur jure defensionis a se ipso in scriptis peragendse (a. xxvii.) Xom- ina autc'm tcstium durante proccssus confectionc non prodantur, sed tantum publicato processu (i.e., defensoris inspection! submisso, juxta a. xxxii.), ut possint exceptiones contra eos fieri." 345. The inconvenience which this interpretation put up- on article xxvi. of the Instructio, by the Tliird Plenary Coun- cil of Baltimore might cause, is that the accused or his advo- cate, to whom the names of the witnesses are revealed only at that late stage of the proceedings, would even then, as the Tliird Plenary Council (n. 314) also expressly states, have the right to except against the persons of the witnesses ; that is, he would have the right to produce witnesses to show that the opposing witnesses were, for instance, his enemies, etc. Hence the judge would be obliged, at that late stage, to admit and examine the witnesses of the accused, and 144 The Trial Continued thus, so to say, re-open the trial, after it had been already closed according to article xxix. of the Instruct. 346. Observe, however, that while the explanation of arti- cle xxvi. of the Instruct, as given by the Third Plenary Coun- cil of Baltimore, does not make it obligatory upon the auditor or Bishop to disclose the names of the witnesses, prior to that publication which takes place according to article xxxii. of the Instruct to, neither does it forbid these names to be made known before this time. In other words, the explanation of article xxvi., as made by the Third Plenary Council, gives the judge discretionary power to reveal the names of the wit- nesses to the accused, either at the publication which takes place according to article xxvi., or only at the publication prescribed in article xxxii. of the Instrnctio. 347. However, from the fact that the names of the wit- nesses need not be communicated to the accused until after the Icgitimatio processus offcnsivi or infonnatiri, it would be a mistake to infer that they need not be made known to him at all. For, the law of the Church, as still in full force, ex- pressly enacts that in all criminal and disciplinary causes, " non solum dicta, sed etiam noinina ipsa testium sunt ei treo. ut quid, et a quo sit dictum, appareat) publicanda. . . ne per suppressionem nominum infamandi audacia prasbeatur." 1 348. This is in accord with the natural law itself, since the publication of these names is necessary to a legitimate de- fence, guaranteed by the very law of nature. In fact, it is plainly an essential part of a legitimate defence to show that the witness of the prosecution is either actuated by personal motives, such as enmity, jealousy, revenge, or is otherwise unworthy of belief v.g., because he is known to be a liar, or given to crime, or excommunicated. The cred- ibility of a witness depends, in the estimation of all mankind, mainly upon his character. If that is good, honorable, and 1 Innoc. iii. Cap. Qualiter et quando 24 tie accus, (v. i) 1216. From the Citation to the Defence of the Accused. 145 disinterested, his testimony is worthy of belief. If it is not, his testimony, no matter how good apparently, has generally speaking, no weight. For, who will believe a person desti- tute of virtue, religion, morality, or honor? 349. It is, therefore, of the greatest importance for the accused to show up the character of the witnesses, and thus to overthrow their credibility. But this he cannot do, unless he knot's their names and tcho they are. Consequently, it is certain that except in causes of heresy, the names of the witnesses must always be communicated to the accused or his advocate, so that he may be able to overthrow their credibleness, by producing other witnesses and proofs show- ing the character of the witnesses of the prosecution. 350. Nor is this rule or law to be violated even where it is feared that harm may come to the witnesses. For in most cases, this fear is imaginary rather than real. Thus, so far as regards the danger of a libel suit in the secular courts, it is certain that no witness who testifies before an ecclesiastical court, can be sued for libel or damages, in a secular court, unless it is clear and notorious, that he has with malice prepense given false testimony. The reason is that our secular courts recognize the laws and regulations of the Church as having the force of contracts between the Church and its members, and will enforce them as contracts freely entered into by the parties. Hence, our secular courts will not interfere with the right of our ecclesiastical tribunals to summon and examine witnesses, and the obliga- tion of the latter to testify. Consequently, our secular courts will regard the testimony of such witnesses as privi- leged communications or acts, and will, therefore, refuse to entertain any libel suit, except perhaps where malice is notoriously shown to exist. If the latter were the case, a witness would fully deserve to be prosecuted. 351. Again, it must be borne in mind that the common good of all must be preferred to the private good of indi- 146 The Trial Continued viduals. Now the common good requires that an accused shall not be deprived of a legitimate means of defence, since otherwise, no person, however innocent, could be secure against conviction or condemnation. From all this it will be seen that the names of the witnesses must always be com- municated to the accused or his advocate, except in causes of heresy ; that, however, this publication need not be made until after the testimony has been legalized as stated above. 352. We have just said, except in causes of heresy : for the law of the Church expressly excepts these causes from the above law requiring the publication of the witnesses' names, and enacts that in causes of heresy, which are tried before the Holy Office or tribunals of the inquisition, the names of the witnesses, though not their testimony, may, as a rule, be altogether withheld from the accused. 1 See our Elements, Vol. II., n. 1323. In causes of sollicitatio also, the name of the person so- licited and making the denunciation, cannot be manifested to the accused, owing to the danger of thereby causing -the violation of the sigillum sacranicntalc? 353. We have seen that the proccssns informations is legal- ized either by the declaration or waiver of the accused, or by the repetition of the witnesses ; that after the process is legalized, its publication takes place. We shall here add a few explanations respecting both the above modes of legal- ization and also the publication. In regard to the legalization by the declaration of the ac- cused, it must be borne in mind that even when the accused makes this declaration or waiver,* he nevertheless retains the full right to object both against \hz persons and the tcsti- 1 Cap. 20, de hoeret. in 6 (v. 2.) - Instr. S. Officii, 1867, given in Konings, vol. I., p. Ixiv. 3 Todeschi, in his Manual, pp. 508, 509, says this declaration is now seldom or never made ; but that the repetition of the witnesses always takes place. Rota (p. 472), however, says the opposite. From the Citation to the Defence of the Accused. 147 mony of the witnesses, and also to cross-examine them. For, by this declaration, the accused simply declares that though the witnesses were examined prior to the contestatio delicti, yet he consents to look upon them as though they had been examined after the contestatio, but not that he considers either their persons or their testimony as unobjectionable. Hence, too, he should, for greater safety, when he makes the above declaration, expressly state that he reserves to him- self the full right to except against the persons and testi- mony of the witnesses, and also to cross-examine them. 1 354. Concerning the legalization of the informative process by the repetition of the witnesses, we have but one or two explanatory remarks to subjoin here. We have said above that if the accused refuses to legalize the informative pro- cess by his waiver, the witnesses must all be examined over again. The reason is, because otherwise their testimony will have no legal force whatsoever, so far as concerns the proving of the crime. 2 For, as we have shown above, under article xix., no evidence has any legal effect, as proof, unless it is produced in court, after the lit is contestatio, and conse- quently after the citation of the accused. Now the wit- nesses who were examined in the proccssus inforniativus, were produced and examined nondnm constitute nee citato reo. Consequently it is the unanimous opinion of canonists that these witnesses, no matter how numerous, prove nothing whatever against the accused, unless they are ex- amined over again, or the accused waives his right to have them repeat their testimony. 3 355. There are two ways in which the witnesses ex- amined in the informative proceedings may repeat their 1 For the formula in which he may do this, see Pellegrino, P. iv. Sect, x., n. 79. - The Ada S. Sedis, vol. xv., p. 394, thinks it safest always to examine the wit- nesses over again, after the citation of the accused and the contestatio delicti. 3 Bouix, de Jud., vol. ii., p. 218. 148 The Trial Continued testimony, after the litis contcstatio : one, in the presence, the other, in the absence of the accused. The first takes place in this manner : The accused is cited and allowed to be present, not only when the witness takes the oath prior to testifying, but also at the examination itself, and to cross- examine. This is called the personal confrontation (confron- tatio personalis), because the accused and witness confront each other in person. See our Elements, Vol. II.. n. 839, HI/, 1122. 356. The second mode takes place thus: The accused is cited and allowed to see the witnesses take the oath before being examined, and also to except against their persons. But he is not permitted to be present at the examination itself ; however, after the examination is over, the entire testimony, together with the names of the witnesses, must be communicated to him. Hence, this mode of examining witnesses is termed verbal confrontation (confront at io rerbalis\, because the accused is confronted, so to say, only with the words (verbd) or testimony of the witness. See our Ele- ments,Vo\. II., nos. 838, sq., and no. 1118. 357. The law of the Church, as in force at present, also with us, under the Instruction Cum Magnopcrc, allows of both modes, namely of the personal and the verbal confron- tation. * However, usage and custom favor the personal, ex- cept where grave inconveniences would result from it. In fact, the mere verbal confrontation is a long, tedious, in- direct and withal unsatisfactory procedure. It makes a cross-examination in the proper sense of the term scarcely possible. For the party against whom the witnesses testify being excluded from the hearing, can merely hand in his questions for cross-examination, before the beginning of the examinations. But how frame cross-questions before it is known what the witness will answer ? And yet a fair and 1 Pellegr., 1. c., p. 4, 5, II, n. 26. From the Citation to the Defence of the Accused, 149 full cross-examination is the best crucible of the veracity, ac- curacy and reliability of the testimony given by a witness. 358. Hence, the confronting of the witnesses with the party against whom they testify is at present the rule in all secular courts, not only of the United States, but of the whole civilized world. Thus, as Walker * says, " in the United States, every prisoner has a right to meet his wit- ness face to face." After the examination-in-chief, says Hilliard, 2 or even after the witness has been sworn, but not yet examined, the adverse party has the privilege of cross- examining. And he may propose leading questions. The chief object of the cross-examination is to detect misstate- ments and inaccuracies. 3 This holds so strictly in our secu- lar courts, that the testimony of witnesses has no value whatever, unless the adverse party has been allowed to cross-examine. 359. For these reasons, no doubt, the personal confronta- tion has been universally introduced in the ecclesiastical courts of France, and some other Catholic countries. 4 It is allowed in the United States, according to the Instructions of the S. C. de P. F. dated respectively 1878 and i884. 5 In reality, this method, or the personal confrontation is the simplest, most natural, expedite and satisfactory mode of procedure. 360. Yet there w r ill be cases, especially in the ecclesiastical courts, where the personal confrontation may be unbecom- ing, nay, even hurtful. 6 Consequently, it must be left to the conscientious discretion of the auditor or judge to per- mit the personal, or merely the verbal confrontation. As to the mode of procedure either when the personal con- frontation or only the verbal takes place, see our Elements, Vol. II., n. 1118-1123. 1 American Law. p. 727. " Elements of Law, p. 305. ^ Ib. Cf, Todeschi , p. 509. 5 Droste, p. 121 ; Rota, p. 471. 6 Pellegrino, Part.iv., Sect, xi., n. 26. 150 The Trial Continued 361. However, in either case i.e., whether the personal or only the verbal confrontation takes place, the witnesses of the processus informativus, must repeat their testimony with all the formalities laid down in articles xvii., xviii., xix., and therefore in the same manner, in which they would be obliged to testify, if they had not testified already. In other words, they must be cited ; then sworn ; heard separately, etc. 362. After the processus informativus has been thus le- galized (legitimatio processus), either by the declaration of the accused, or by the repetition of the witnesses, as de- scribed, the publicatio processus takes place, as we have seen : in other words, the entire proceedings of the informative process are communicated to the accused. In this publicatio, both the names and the testimony of the witnesses must be given the accused, as we have shown, so that he may be able to prepare for his defence. See our Elements, Vol. II., nos. 855, 1120, 1 121, 1124, 1126. 363. The nature and extent of this publication is thus described by Pope Innocent III., in his constitution Quo- niav? (anno. 1216): " Judex semper adhibeat publicam personam, aut duos viros idoneos qui fideliter universa judicii acta conscribant : videlicet citationes, dilationes, recusationes, exceptiones, petitiones, responsiones, interrogationes, con- fessiones, testium depositiones, instrumentorum productio- nes. Et omnia sic conscripta partibus tribuantur" * 364. We observe that the diocesan prosecutor is at liberty to produce, after the lifts contestatio, and before the publicatio processus, and within the probatory term or terminus ad produccndum omnia, assigned him by the auditor or judge, other witnesses, documents and proofs, besides those al- ready produced and examined in the informative process. 3 1 Cap. ii, de prob. (II. 19). * Cf. Prael. S. Sulp., vol. iii., n. 678. 3 Pellegr., 1. c., Part.iv., Sect, ix., n. 59. From the Citation to the Defence of the Accused. 151 We say before the publicatio processes infonnativi. Can he also do so after the publication of the processus informath-i or offcnsivi ? We must distinguish between direct witnesses and proofs, and rebutting witnesses. He certainly can pro- duce new rebutting witnesses for the purpose of breaking down the testimony of the witnesses for the defence, as we show in our Elements, Vol. II., n. 1132-1133, p. 253. Whether he can also produce new direct witnesses and evidence, to corroborate his charges, is controverted, some canonists affirming, others denying. Those who hold the negative, contend that the defence alone can produce such evidence, once the informative process has been published. 1 The safest course, therefore, is for the prosecutor to produce all his direct evidence prior to the publication of the pro- cessus infortnativus. 365. If any such new evidence is produced by the prose- cutor, it must be, of course, communicated to the accused, either simultaneously with, or subsequently to the publica- tion of the processus informativus, according as it is submitted by the prosecutor, either before or after the publication of the informative process. For whatever evidence or proof is advanced by the prosecution, must be communicated to the defendant for his defence. See our Elements, Vol. II., n. 1126, sq. 366. This communication of all the evidence of the prose- cution to the defendant is a necessary condition and part of a legitimate defence, and therefore, is absolutely obligatory, even in summary trials; hence if it is omitted, the entire pro- ceedings are null and void. 2 It is clearly prescribed by the present Instruction in articles xxvi. and xxvii. 8 See our Elements, Vol. II., n. 1120-1126. 367. We observe here, in passing, that there are two 1 Pellegr., 1. c., Part iii., Sect, x., n. 20. * Pellegr., Partiv., Sect, x., n. 8. 3 Rota, p. 472; Drbste, pp. 56, 120, sq. 152 The Trial Continued : kinds of publicatio processus : one is the communication of the evidence of the prosecution made to the defendant for his defence. This is called publicatio processus informativi or also offcnsivi and takes place as soon as, and whenever the prosecutor has presented all his evidence after the lit is con- testatio. The other is the communication of the entire evidence both of the prosecution and of the defence to the prose- cutor as well as the accused, to enable both parties to make their final summing up. This is termed the publicatio totins processus, turn offcnsivi, turn defensivi, or rather the publicatio processus defensivi, and takes place after the conclusio in causa in the manner laid down by the present Instruction, in articles xxxii. and xxxiii. 368. We observe, also in passing, that the auditor or judge, either in the same decree in which he orders the publicatio processus offensivi, or immediately afterwards, assigns the accused a suitable delay (at least, if the accused so desires,) v.g., five or eight days, to prepare for, and pre- sent his defence, i.e., to produce his witnesses, documents, etc. 1 For the formula of this decree, See Pellegr., P. iv., S. x., n. 79. 1 Cf. Pellegr., Part.iv., Sect, x., n. 79. CHAPTER IV. THE DEFENCE CLOSE OF THE TRIAL. (FROM ART. xxvu. TO ART. xxix.) ART. XXVII. The Defence. Mode of Conducting it. XXVII. " Inquisitus, ubi ex his noverit, quae in actis contra ipsum relata sunt, ad ea respondere potest, ac si velit, utetur jure defensionis a se ipso in scriptis peragendae." 369. The preceding article discusses the manner of prov- ing or establishing the guilt of the accused. The present and subsequent articles (xxvii., xxviii.) speak of the de- fence, and give an outline of what the accused can. do, be- fore the trial is ended or closed (processus clausris), in the manner stated in article xxix. In accordance with the general law of the Church, and the very law of nature, the present and subsequent articles give the accused the right (a) to be fully informed of all the charges and proceedings which are on record in the curia against him ; (ft) to answer these ^charges : that is, to produce counter-evidence, such as witnesses, documents, and the like. 1 This is meant by the words ad ea respondere potest. (c] Also, to present a full defence in writing, (a 7 ) to obtain the necessary delays, in order to enable him to prepare properly to exercise these rights of defence. Accordingly, as soon as the legalization of the processes inf or via tints has taken place, the auditor or judge, as we have shown, proceeds at once to publish or communicate to the 1 Acta S. Sedis, vol. xv., p. 393. 154 The Defence Close of the Trial. accused, the entire acts, proceedings and proofs of the pro- cessus informativus or offcnsivus, and at the same time grants the accused a suitable delay to prepare his defence, 1 and consequently to present all his witnesses, documents, or other evidence he may wish to produce. This delay is called terminus ad producendum omnia, or terminus ad alle- gandum quidquid vult, ne condemnetur, or also terminus ad omnes suas defensiones faciendas" 370. When the accused thus knows all the charges and proofs that stand against him on record, he has the right, as the present article says, to defend himself respondere potcst. Observe here that this phrase respondere potest does not mean simply the right to make answers personally, or to make a speech or oral argument. It signifies, and is em- ployed by canonists to signify, particularly in reference to criminal and disciplinary causes, the whole defence or the complete answer, whether by oral argument, or by witnesses, documents, etc., which the accused opposes to the charges and proofs of the prosecution. 2 The Ada S. Sedis, Vol. XV., p. 393, in commenting upon the Instruction of 1880, expressly interprets the clause respondere potest, as giving the accused the full right to produce witnesses, documents, etc. 371. This full right of defending himself, which the In- struction grants the accused, is in harmony with all laws, natural, human and divine. For, as we say, in our Elements, Vol. II., n. 1128, "not only positive and human, but also natural and divine law, gives the accused the right to defend himself," and therefore, imposes upon the ecclesiasti- cal judge the obligation of granting him the fullest oppor- tunities to make use of this right. Consequently not even the Pope himself can take away this right. For, proceeding 1 Prael. S. Sulp., vol. iii., n. 678, p. 73. 2 Schmalzgr., 1. 2, t. 3, n. 10; Rota, p. 415. The Defence Close of the Trial. 155 as it does from natural law, it cannot be taken away by any power on earth. Thus Pope Clement V., says : " Nee de- fensionis (quas a jure provenit naturali) facultas adimi valuisset : cum ilia Imperatori (Papae) tollere non licuerit, quag juris naturalis existunt." * 372. Wherefore the auditor or judge conducting the com- pilatio processus * is bound ex officio to give the accused the fullest right to defend himself, and to assign him a suitable term for that purpose, even though he does not ask for it. 3 Nay, the accused cannot, even though he wishes, absolutely or unconditionally renounce the right of defending himself, especially in a criminal cause where he is liable to a severe punishment ; and the auditor or judge cannot allow of such renunciation, since it would be null and void. This is also plainly indicated in our Instruction, article xxxi., which enacts, that when the accused refuses to select an advocate for himself, the auditor or judge shall ex officio designate one for him. We have said simply ; for if the accused, after being given a term to produce his defence, deliberately waives the right of defence, saying that he does so, knowing for certain that he has no defence whatever to make, then such renunciation is valid, and therefore admissible by the judge ; otherwise not. 4 374. The law of the Church goes even a step farther and enacts that even where the accused has confessed his guilt, he cannot be allowed to renounce his defence ; but that he must be given a term to defend himself even against his own con- fession. This is the unanimous opinion of canonists. Thus Pellegrinus teaches : 8 " An defensiones sint reo examinato necessario dandas, sive confessus fuerit delictum, sive non ? Notandum erit, quod communis et certa conclusio Doctor- 1 Clem. Pastoralis 2. (II. 11); Cf. Clem. Saepe, de V. S. 2 Pellegr., Fart.iv., p. 417, also uses this phrase as meaning the whole trial. 3 Rota, 1. c., p. 474. 4 Pellegr., Part.iv., Sect, x., n. 88; Rota, p. 475. 5 Ib., n. 21. 156 The Defence Close of the Trial. um, nemine prorsus discrepante est, quod nemo qualiter cunque confessus in criminalibus condemnari potest, nisi prius assignetur illi terminus ad faciendas suas defensiones." The reason is that the accused can defend himself against his own confession in many ways *v.g., by showing that it was extrajudicial ; or made inconsiderately, or under fear, compulsion, or, other undue pressure or excitement. 375. Finally the law of the Church favors the right of de- fence to such a degree, (a) that the accused must be allowed to produce witnesses, documents and the like, in his own de- fence, even after the case is closed, nay, even after condem- natory sentence has been already passed upon him : and if he is found innocent, even at this stage, the execution of the sentence must be stopped ; () that witnesses who are not free from objection and are not altogether trustworthy, and who consequently cannot be produced by the prosecution, may yet be produced by the defence to disprove the charge ; (c] that while laics cannot, as a rule, testify against eccle- siastics and for the prosecution, they can do so for the defence ; (d) that while, especially in criminal causes, the testimony of men is preferable to that of women, this does not hold where the testimony of men is against and that of women for the accused ; since, in this latter case, the testimony of women should be preferred to that of men. s 376. Having shown that the accused has an inalienable right to defend himself, let us now see in what this right consists. It is plain that the chief way of defending one's self, consists in overthrowing the arguments, proofs, etc., which have been brought forward by the prosecutor to establish the guilt. Now the force of these proofs v.g., of the testimony of the witnesses for the prosecution, cannot be broken by the mere contrary assertion of the accused, but rather by witnesses, documents, or other proofs which show the con- 1 Pellegr., Part.iv., Sect, x., n. 22. = Ib., n. 74. 3 Ib., n. 75, 76, 77. The Defence Close of t lie Trial. 157 trarv. The right of self-defence, therefore, means that the accused has the right to produce and the auditor or judge the duty to receive and examine all witnesses, documents and other proofs which are adduced by the defence, and which can, in any way, weaken or break down the proofs adduced by the diocesan prosecutor. 1 377. Nay, the auditor or judge is obliged ex officio to admit not only those witnesses and documents, which are pro- duced by the accused, but also all others, whom he may know to be conducive to the defence, even though they are not submitted by the defence. This is the teaching of can- onists, 2 and is clearly confirmed by our Instruction, when it says, in article xi.: " Processus ex oflficio instruitur. . . et us- que ad terminum perducitur eo consilio, ut omni studio ac prudentia veritas detegatur, ac turn de reitate vel innocentia accusati causa, eliquetur." 378. Having seen what is included in the right of self- defence, we shall now discuss the manner in which the de- fence is conducted. As we explain this subject fully in our Elements, Vol. II.,Nos. 1128-1134, we shall here but give an outline of what we there discuss. After the prosecution rests and the whole proceedings have been communicated to the accused, as above stated, the auditor or judge assigns the accused a term for the defence i.e., a suitable time for producing all his witnesses, documents, and the like. 3 Thereupon the accused, either in person or through his advocate, draws up and presents to the auditor a writ- ten outline of the defence, setting forth its heads (articuli dcfcnsorii] and promising to produce the requisite witnesses, documents, etc. 4 379. On the da}- appointed for the opening of the defence, 1 Bouix, de Jud., vol. ii., p. 222. " Pellegr., Part, iv., Sect, x, n. 72.- 3 Bouix, de Jud., vol. ii., pp. 570, 578. 4 For the formula of this outline, see our Elements, vol. ii., n. 1130, and also Bouix, de Jud., vol. ii. , p. 579, or also Pellegrinus, p. 411. 158 The Defence Close of the Trial. the accused or his advocate should produce his witnesses, one by one, and also all other evidence by which he wishes to establish his innocence. The witnesses are examined in the manner already described, and also explained in our Elements, 1. c., nos. 1132-1133. After the accused has pro- duced all his witnesses and other means of defence, * he can also hand in a complete written defence, covering the entire case. * He can, if he wishes, obtain a suitable delay to enable him to prepare this written defence with great care. 3 380. To all this evidence submitted by the defence, the diocesan prosecutor can reply i.e., submit rebutting testi- mony : and consequently he can produce new witnesses, documents, etc., in order to rebut the defence of the ac- cused. 4 These new proofs must be communicated to the accused, who can, in turn, answer, and produce further evidence or witnesses, etc. The last presentation of proofs is alway made by the accused. 5 If the parties i.e., the prose- cution and the defence desire it, they must be given a suitable delay to enable them to produce this rebutting evidence. This delay is called terminus ad dicenduin contra producta, as we shall presently see. See our Elements, Vol. II., n. 1133-1141. 381. Finally, when the accused or his advocate has ex- hausted all the means of the defence at his command, and moreover expressly declares that he has -no further defence to make, the auditor or judge closes the case (conclusio in causa), as we shall explain in our next article. After the close of the case, the accused can produce any new or ad- ditional evidence he may possess, 6 although the prosecutor cannot, as we shall see. 1 After the auditor has closed the 1 Instr., art. xxvii. 2 Ib., art. xxvii. 3 Ib., art. xxviii. 4 C f . Schmalzg., 1. 2, t. 20, n. 122, sq. 5 Bouix, de Jud., vol. ii., pp. 583, 584; R. de M. Instit, vol. ii. ; p. 498. 6 Pellegr., Part, iv., Sect, xiii., n. I. 7 Ib., Sect, xii., n. 2; Instit., R. de M., vol. ii., p. 498. The Defence Close of the Trial. 159 case and made a synopsis of it, the publicatio totius proccssus turn offcnsivi ct defcnsivi takes place as enacted in articles xxxii. and xxxiii. of the Instruction : in other words, all the acts of the case, and the entire evidence, both of the prose- cution and of the defence, together with the resume of the auditor or judge, is communicated to the parties, or rather submitted to the inspection of both parties, namely, the diocesan prosecutor and the accused or his advocate, to en- able them to prepare for the summing up of the case, as we shall explain below, under articles xxxii. and xxxiii. ART. XXVIII. Delays Given During the Trial. XXVIII. " Potest etiam, si postulet, obtinere ut terminus ad defensionem scripto exhibendam praefigatur: maxime si ob ea-quae art. xxviii. indicata sunt, responsionem ad accusationes contra se latas parare non potuerit." 382. We have just seen that according to article xxvii. of the Instruction, the accused can obtain a suitable term or delay (terminus, dilatid) to enable him to prepare his written defence. Here, then, it is proper to say a few words respect- ing the various delays which must be granted in trials, also according to the present Instruction. According to all can- onists, there are four necessary or substantial delays, 1 namely : first, the term assigned to the diocesan prosecutor to frame his specifications or various counts of the crime (terminus ad articulandum or capitulanduni) ; second, the term or delay given to the accused, to prepare and make categorical an- swers to the above specifications (terminus ad dicendum con- tra articulos or capitula) ; third, the delay assigned to the prosecutor to prove the charges and specifications, and therefore to produce all his witnesses and other proofs, and likewise the delay given to the accused to produce counter- 1 Pellegr., 1. c., p. 117, n. 31, 32. 160 The Defence Close of the Trial. proofs, such as witnesses, documents, and consequently to make his defence. This third delay, whether given to the prosecutor or the defence, is equally called terminus ad pro- ducendum omnia, because both parties are required to pro- duce all their proofs i.e., witnesses, documents, etc., within the term respectively assigned them. The fourth term is called terminus ad dicendum contra producta, and is that which is assigned both to the prosecution and the defence, in order to overthrow the proofs submitted by the adversary in the third term. 383. These terms are called substantial (termini substan- tiates]^ because they must be granted on pain of nullity of the icJiolc trial, in all criminal and disciplinary trials, even though conducted modo summario? and consequently also in our trials, as is expressly taught by Rota, 2 the Acta S. Sedis 3 and Pierantonelli, 4 in their commentaries on the Instruction S.C. EE. et. RR. of 1880. Therefore, the auditor or judge, also with us, has no power whatever to refuse to grant these terms or delays. Nevertheless he has power to shorten or lengthen them ; to give the third and fourth successively in- stead of simultaneously to both parties ; that is, to assign first a term for the diocesan prosecutor to produce his proofs, etc., and then a later term to the defence, instead of assigning the same term to both. 8 In other words, each of these two terms may run either simultaneously or consecutively for both parties. For, so far as concerns the length of the terms, or their succession, etc., a great deal depends upon the prudent discretion of the judge or auditor, and the mu- tual agreement of the prosecutor and defendant. 6 384. It will be seen that the first and second terms refer to the litis contestatio ; the third and fourth to the proofs of the prosecution and the counter-proofs of the defence. 7 This 1 Clem. Snepe 2 de V. S. 2 P. 476. 3 Vol. xv., p. 393, sq. 4 P. 140, sq. ' 1 Arg. Clem. Soepea, de V. S. ; Pellegr., 1. c., p. 119, n. 3. * Pierantonelli, p. 144; Rota, 1. c., p. 476. 7 Pierait., Ib., p. 145. The Defence Close of the Trial. 1 6 1 order of terms, however, is not to be understood in the sense that the proofs of exceptions which either quash the charge of the diocesan prosecutor altogether, or at least transfer the case to some other time, place or judge, or that those proofs which decide the case forthwith and without any further proceedings, are not to be produced in the very be- ginning of the trial, or at whatever time they may be ready for production. 1 For fuller information regarding judicial delays, see our Elements, Vol. II., Nos. 1078, 1093. ART. XXIX. Close of the Trial and Resume of the A uditor. XXIX. " Absolute processu redactor actorura summarium pracipuorum argumentorum, quae ex ipso elucent, conficiat." 385. When the trial is over (absoluto proc essu), that is, when the accused, having been fully and freely allowed to produce all his witnesses, documents and other proofs, declares that he has no further testimony or evidence to offer in his own behalf, and when, moreover, the auditor or investigating judge himself is of opinion that the trial is complete and that no further investigation is needed, he closes the case or trial, and proceeds to make a synopsis (summarium) of the principal arguments, witnesses, documents and other proofs submitted on both sides during the trial. 2 386. Here we deem it proper to make two remarks : The first is that the closing of the case or trial (Conclusio in causa] by the auditor is not taken as a conclusio in causa in the pro- per and strict sense of the word. For by the closing of a cause, strictly speaking, is meant the act of both the con, tending parties declaring that they have no further testimony to submit in the case, and thus giving up their right to pro- duce any more evidence, exceptions or defences. 3 Conse- 1 Piernntonelli, p. 143. - Droste. p. 123. 3 Arg. cap. cum dilectus; Pellegr., Part.ii., Sect, ii., subs, xii., n. 3. 1 62 The Defence Close of the Trial. quently the effect of such a closing of a case is that, as a rule, no further testimony whatever can be produced, either by the plaintiff or the defendant. 1 387. Now the closing of a case in this strict sense can take place only in civil causes falling under the ecclesiastical forum, but not in criminal and disciplinary causes. For, as we have seen, in criminal and disciplinary causes, the accused has the right to produce and submit additional witnesses and proofs at any time, before the final sentence is pro- nounced, nay, even after it has been pronounced, 2 and that (a) either for the purpose of weakening or overthrowing the evidence adduced by the prosecutor, during the trial ; (b) or of establishing new points (articuli novi, capitula nova) show- ing his innocence. 388. We say first, for the purpose of weakening, etc. Thus where, for instance, the names of the witnesses are communi- cated to the accused or his advocate, only at the publicatio processus, as prescribed in article xxxii. of the Instruction? the accused or his advocate has the fullest right to produce, even at this stage of the proceedings, new witnesses and evidence to show the witnesses of the prosecution are perjurers, liars possessed of a bad reputation, or are enemies of the accused, or in some other way disqualified. 389. We say secondly, " or of establishing new points ; " for the accused has the right, after the close of the trial, to produce any new testimony he may possess, in proof of his innocence. The prosecution, however, cannot, after the close of the trial, 4 produce any additional witnesses or proofs against the accused, 5 save for the purpose of answering the new witnesses or proofs adduced by the defendant, after the 1 Our Elements, vol. ii., n. 1348. 2 Pellegr., 1. c., n. 7 ; Bouix, de Jud., vol. ii., p. 223, n. 7. 3 Cf. Cone. PI. Bait, iii., n. 143. Instr., a-t. xxix. 5 Arg. Cap. 6. de prob. (ii. 19) ; Cap. 17 de tet. (ii. 20). The Defence Close of the Trial. 163 close of the trial, to establish new points in support of his innocence. 1 This principle of law was clearly brought out in the oft-quoted famous case of the Rev. David A. of Milan, decided by the S. C. C. on April 18, 1885. This Sacred Con- gregation, to which David had appealed, reversed the sen- tence of the curia of Milan, by resolution dated Dec. 20, 1884. Thereupon the prosecutor of the Diocese of Milan asked the Sacred Congregation for a new hearing on the ground that he could and would produce additional wit- nesses to prove David's crime. 390. The Roman advocate of David opposed the new hearing on several grounds, and among others, on the ground that after a criminal and disciplinary case is closed (post conclnsionem in causa) the prosecutor cannot produce any ad- ditional witnesses or proofs, though the accused can. For if the case were different, the prosecution would easily be turned into a persecution. The Sacred Congregation de- cided, on the 1 8th of April, 1885, in favor of the accused, and thus, according to the Acta S. Sedis, confirmed the above principle and applied it to trials conducted according to the Instructions of 1880 and 1884.* 391. Our second observation refers to the nature and con- tents of the auditor's resume. This synopsis should first state briefly, though clearly, all the steps or judicial pro- ceedings that have taken place, such as the processus informa- tions, the citation, repetition of witnesses, etc., in order that it may appear, so to say, at a glance, that the prescribed judi- cial formalities were observed.' Next, it should briefly give or review the evidence, both of the diocesan prosecutor and of the accused, in this manner : first the auditor reviews the proofs submitted by the prosecutor, and states what conclusions would seem legally to follow from them. Then 1 Pellegr., Part.iv., Sect, xii., n. 2. Acta S. Sedis, vol. xviii., p. 72. 3 Pellegr., 1. c. , Part.ii., Sect, ii., subs. 14, n. I, sq. 164 The Defence Close of the Trial. he likewise goes over the testimony produced by the de- fence and shows whether and how far, according to law, it breaks down the prosecution's evidence. 392. We say. what conchisions seem legally to follow ; for the auditor should not give his own personal opinion for or against the accused. He should merely state, and that with the utmost impartiality, the legal conclusions, or the conclusions warranted by law which appear to follow, on the one hand, from the proofs submitted by the prosecution, and on the other, from those produced by the defence. He should, therefore, give the same impartial consideration to the proofs of the defence as he gives to those of the prose- cution. 393. Thus it will be seen that our sunimarium resembles . the rcstrictus juris et facti always made out by the secretary of the respective sacred congregations in Rome or by an auditor appointed to take evidence, prior to the day fixed for the decision of the case. For, whenever a case is to be decided by any of the sacred congregations, it is the custom of such congregation to have the evidence in the case tak- en and a synopis or restrictus of it drawn up, either by its respective secretary or by some other official, usually called judex relator. This document is printed and distributed among the Cardinals composing the congregation, eight days before the general meeting takes place in which the case is to be decided. 1 This restrictus, like our sunimarium. should merely state the facts and proofs as presented by both litigants and the legal deductions flowing from them, but not the personal views of \hejudcx relator or secretary. It will also be seen that the sunimarium resembles the opin- ion or the verdict given by the commission of investigation according to no. 9 of the Instruction of 1878. ; Bar. gen, The Roman Curia, 1. c., 169. CHAPTER V. THE SUMMING UP, AND THE FINAL SENTENCE. (FROM ART. xxx. TO ART. xxxvi.) ART. XXX. The Defendant's Advocate Appointment, Rights and Duties. XXX. " Qua die causa proponetur, inquisito fiet facultas defensionem suam per alium sacerdotem suo nomine in scriptis exhibendi. Quod si idoneum non reperiat, laicum Catholicum adhibere potest. Quisque au- tem ex iis ab Ordinario approbandus est." 394. In the preceding articles, the Instruction gives the manner in which the trial is conducted from its beginning to its end, so far as the taking of evidence on both sides is con- cerned. In the present and five succeeding articles, it treats of the final sentence, which is pronounced at the end of the trial. As we have already seen under article xii., the trial, or compilatio processus, as described thus far, is usually con- ducted by one person namely the auditor, while the sen- tence itself or final decision is given by another, namely the Bishop or his Vicar-general. 395. Lest the Bishop or Vicar-general should fall into the danger of acting without mature consideration and full information, in a matter fraught with such grave conse- quences for the accused, he is obliged, before proceeding to pass the final sentence, to notify and cite both the prosecu- tor and the accused or his advocate to make their final ar- guments or summing up in the case (inonitio or citatio ad al- legandum injure et in facto), and thus to inform him finally and fully of the case. This right of making the final sum- 1 66 The Summing Up, and the Final Sentence. ming up, prior to the passing of sentence, is, so far as the accused is concerned, jure divino ct naturali. For it is plain- ly a material part of a just defence, as will be seen better a little further on. Hence the accused must, on pain of nul- lity of the proceedings, be cited to make this final argument and given a proper term or delay to prepare it. 1 396. Consequently this right is also guaranteed by the present Instruct, in articles xxx. to xxxiv. Hence, after the case has been closed in the manner explained under the foregoing article, a suitable term or delay is assigned to the prosecutor and the defence, by the Bishop or Vicar- general (not by the auditor, since his duties end as soon as he has given in his synopsis), within which they may pre- pare and present their summing up of the whole case. The manner in which this final pleading must be made, will be described below under articles xxxii., xxxiii. 397. The present article says that the accused has the right to make this final summing up which the Instructio justly calls defensionem suam, for it is, as we have observed, a material part of a just defence through an advocate, who is a priest, or in default of a learned priest, through a Cath- olic layman. The words of the Instructio are : " Inquisito fiet facultas defensionem suam per alium sacerdotem exhiben- di. Quod si idoneum non reperiat, laicum Catholicum adhibercpo- test" * Herein the Instruction Cum Magnopere differs some- what from the Instructio of the S. C. EE. et RR., dated June n, 1880. The latter allows the accused liberty to 1 Pellegr., Part, iv., Sect, xv., n. 2. Art. xxx.; Cf. Cone. PI. Bait, iii., p. 291. At the conferences held at Rome in 1883, some of our Prelates requested that lay advocates should be excluded, and also that no otal summing up should be permitted. The Cardinals replied to the first request that the right of defence was already restricted in part, by the fact that the Tnstrue- tio provides that the advocate shall be approved by the Bishop : to the second, that only a written summing up should be allowed, and that consequently the Instnutio, which in its first draft admitted of an oral summing up, should be modified so as to permit only a written summing up. The Summing Up, and the Final Sentence. 167 choose equally either a priest or a layman for his advocate. Thus it says in art. xxx. : " Est in facultate accusati faciendi se repraesentare et defendere ab alio sacerdote aut laico pa- trocinatore." The Instruction Cum Magnoperc restricts this liberty of choice in such a manner, that the accused can select a Catholic layman for his advocate, only when he does not find a competent priest, who will act as his advocate. 398. However, the TJiird Plenary Council of Baltimore, n. 302, by express authorization of the Holy See, interprets article xxx. of the Instrnctio in this sense : " Defensorem, qui semper sit i'ir ccclesiasticns, ut S. Congregatio, petenti- bus Episcopis, expresse declaravit, sibi eligendi accusato jus est." The Third Plenary Council, n. 302, adds: " Judex tamen electum (defensorem) ex just a causa recusare, et alteri- us a se approbandi substitutionem exigere potest." For the just causes which authorize the Bishop to reject the advo- cate selected by the accused, see our Elements, Vol. II., n. 769. 399. Here, then, it may be asked : Is the accused allowed to be assisted by an advocate, not merely at the final sum- ming up, but also during the trial which precedes the final summing up? The reason of the question is that the In- strnctio, by expressly allowing the accused to have an ad- vocate for the summing up, would appear tacitly to exclude him at all the other proceedings. However, a closer exam- ination of the present article (xxx.) of the Instructio will show that this inference is incorrect. For, what does the article say ? " Qua die causa proponetur, inquisito net fac- ultas defensionem suam per alium sacerdotem suo nomine in scriptis exhibendi," which translated, means : The ac- cused has the right to make his summing up or final defence through an advocate. In other words, he can be replaced, not merely assisted by his advocate, in the summing up and final sentence. Hence the accused can appear and act by proxy and need not appear in person, at this stage of the pro- 1 68 The Summing Up, and the Final Sentence. ceedings. Thus the Third Plenary Council of Baltimore (n. 315), commenting on this article, justly says: " Reus igitur ipse comparere non tenetur, sed potest." His counsel ap- pears and acts for him. Consequently the advocate himself and not the accused signs the written summing up. 400. From this it follows indeed by the argument a scnsu contrario? that in the trial which is outlined in articles xxv. to xxix. of the Instructio and which precedes the final sum- ming up, the accused cannot, as a rule, be absent and appear merely by his advocate, but that he must appear /;/ person ; that therefore he must obey the citation in person, that in the examination and subsequent litis contcstatio, he must an- swer in person ; that he must sign the written defence, which he makes in accordance with articles xxvii. and xxviii., in person ; in a word, that in all the acts and proceedings which make up the compilatio processus or taking of evi- dence, he cannot be absent, and appear, answer or act, mere- ly by proxy, but that he must be present and answer in per- son. 401. But it does not follow that the accused, while obliged to appear in person during the trial, cannot be accompanied and assisted by an advocate. For according to the rules of interpretation, given by canonists, the Instructio must be interpreted according to the general law of the Church, ex- cept where the contrary is expressly stated. This holds es- pecially in so odious a matter as the restricting of the right of defence. Now the law of the Church clearly distinguishes between the right of the accused to be assisted, when present in court, and that of being represented when absent. And while it authorizes the ecclesiastical judge to refuse, in certain causes or at certain stages of the trial, to allow the accused to be absent and to appear merely by proxy, or by his advocate, 1 Reiff., 1. c., t. 2, n. 406. The Summing Up, and the Final Sentence. 1 69 it always requires him to permit the accused, when he ap- pears in person, to be accompanied and assisted by an ad- vocate, and that during the entire trial, that is, from the ci- tation of the accused to the final sentence. See our Elements, Vol. II., Nos. 754, 755, 757, 761, 774. 402. This principle of law was fully confirmed and ap- plied to our country, by the S. C. de Prop. Fide, in its answer ad Dnbia respecting- the Instruction of July 20, 1878. See our Elements, Vol. II., p. 424. 403. Consequently, it is certain, that whether the Instruc- tion of 1878 is still in force by Papal dispensation, the ac- cused can be accompanied and assisted by an advocate, during the entire trial, and also represented or replaced by him in the final summing up. 1 Wherefore, if this right were curtailed in the present Instruction, it would have to be said that in the larger dioceses where the present Instruction ob- tains, the status of the defendant would be worse than in the smaller and less favored dioceses, where the Instruction of 1878 is still in force. 404. Again, as we have shown, one of the aims of the present Instruction is to provide a means, which would be adequate in every respect, to stop complaints of defend- ants. Thus the Instruction says : " Cum magnopere hujus S. Concilii intersit in ecclesiasticis judiciis earn methodum servari, quae. . . . quaerelisque reorum praecavendis par om- nino sit." But, would not the accused have a just cause of complaint, if he were denied the right to be accompanied and assisted by an advocate, not merely at the final sum- ming up, but also during the whole trial ? Finally, the In- struction nowhere expressly takes away this right, but seems rather to grant it in article xxvii. when it says : " Inquisitus ubi ex his noverit . . . ad ea respondcrc potest, ac, si ve- lit." . . . For, according to canonists, the terms respondere 1 Cf. Instr. Cum Magnopere, art. xii. 1 70 The Summing Up, and the Final Sentence. potest mean the entire right of defence. Now all canonists maintain that this right essentially includes the right to be assisted by an advocate. 405. Hence the unanimous teaching of canonists that the accused can be accompanied and assisted by an advo- cate from the very beginning of the trial to its end, 1 does not appear to be curtailed by the Instruct. A learned theologian, however, whom we have consulted, thinks differently, and holds that no advocate need be ad- mitted, even to assist the accused, until the summing up of the case, which takes place according to articles xxx., xxxiv. of the Instruction. 406. These principles are set forth with remarkable clear- ness in the Instruction for the arch-diocese of Prague, 1869, on the mode of procedure in ecclesiastical trials. 2 Thus, article xvii. of this Instruction says : " The parties (namely, the plaintiff and the defendant) have the right to make use of and be assisted by an advocate learned in the law, during the trial, to consult with him, to have the requisite papers or documents made out by him, and to be accompanied by him, during the trial or the hearing of the cause. Yet all the papers handed in by a party (v.g., by the accused) must be signed by such party himself ; and the latter must also give his answers in person ; and no regard shall be paid to an- swers made by the advocate. Nevertheless, the party can always consult with his advocate, before giving an answer. Should the advocate act obstreperously so as to disturb the proceedings, the investigating judge (i.e., the auditor con- ducting the compilatio processus) can cause him to be excluded from the proceedings." 407. The other principle, to wit, that a party cannot ap- 1 Cf. Bouix, de Jud., vol. ii., p. 570. 2 This Instruction bears a striking resemblance both to the Instruction S. C. EE.et RR., June u, 1880, and to the Instr. Cum Magnopere, and appears to have served as a model for them. The Summing Up, and the Final Sentence. 171 pear by proxy at the trial is thus enunciated in this Instruc- tion, art. xviii. : " That a party (the accused) may be repre- sented by a procurator or an advocate, without appearing personally in court . . . can be allowed by the court, only for grave reasons." 1 See also article Ixvi. of the same Instruc- tion, 2 where the above rules are expressly applied to the ad- vocates of the accused, in criminal proceedings. ART. XXXI. IVJicn is the Judge Bound ex officio to Appoint an Advocate for the Accused? XXXI. " Si vero reus defensorem deputare recuset, Ordinarius ilium ex officio designabit." 408. The accused can, as we have seen, select as his ad- vocate any worthy and learned ecclesiastic, either of the same or of a different diocese. The nomination is subject to the Bishop's approval. Where, however, the accused de- clines to choose an advocate, either because he considers himself capable of conducting his own defence, or because he does not regard the case of sufficient importance, or looks upon the defence as useless, or is too poor to pay an advocate, the court will appoint one ex officio? as the pre- sent article directs. 409. This enactment is in full accord with the common law of the Church. Thus the Roman or civil law, as adopted by the Church, enacts : " Si (partes) non habebunt advocatum, ego (Prastor, Judex) dabo." 4 The reason of this law is, as we have seen, that the judge is bound ex officio to do all in his power to procure a full defence for the accused, and therefore, also to assign him an advocate, when he himself fails to select one, and is careless in the 1 Apud Droste, p. 170. 2 Ib., p. 179. 3 Cf. Droste, p. 125. 4 I.. I, 4, ff. de Postal.; Cf. Perezii Prael., in 1. 2, Cod. t. 7, de advoc. n. 6. 1 72 The Summing Up, and the Final Sentence. management of his defence. In regard to the Bishop's ap- proval of the advocate chosen by the accused, see our Ele- ments, Vol. II., n. 769. For fuller information concerning the rights and duties of advocates, see our Elements, 1. c., Nos. 766-781. ART. XXXII. Rights and Duties of the Defendant's Advocate, in the Sum- ming up of the Case. XXXII. " Defensor debitis sub cautelis in cancellaria curise processum ejusque summarium inspiciet, ut reum tueatur : ac defensionem ante causae ipsius propositionem scripto exhibebit. Ipse quoque ad juramen- tum de secreto servando tenetur, quando judex indolem causae id postu- late censuerit." 410. This article describes the duties of the defendant's advocate in relation to the summing up of the case for the accused, or the allegare in jure et in facto. Moreover, the present and succeeding articles define the manner in which these final arguments are to be made. According to the general law and the universal practice of ecclesiastical courts, the two parties, that is, the prosecution and the de- fence, have a right to make their summing up, botJi orally and in writing. This appears also from the wording of the for- mula by which the ecclesiastical judge cites the parties to make the summing up. The formula reads thus: Rmus Dominus V. G. monuit ambas partes ad deducendum quidquid volunt et possunt, tarn verbo quam scriptis, et tarn in jure quam in facto. . ." 1 Thus also the Instruction of the S. C. EE. et RR., of June n, 1880, expressly gives the ad- vocate of the accused the right to make the summing up or final defensive arguments, first in writing, 2 and then orally, or by speech before the court. 3 1 Pellegr., Part, ii., Sect, ii., subs. 13, n. ii; idem, Part. iv., Sect, xv., n. 29. 2 Art. xxxii. 3 Art. xxxv. The Summing Up, and the Final Sentence. \ 73 411. Originally the present Instruction for the United States, as presented by S. C. de Prop. Fide, to our Prelates assembled in Rome in November, 1883, was identical, in this respect, as in fact in all other respects, with the Instruction of 1880, and therefore, allowed both the oral and written summing up for the defence. But the oral summing up was objected to by some of our Prelates, at these Roman Con- ferences, chiefly on the ground that if advocates, lay or clerical, were permitted to appear personally in the Bishop's court to make the final defence orally or by speeches, there would be danger that gradually an odious class of ecclesias- tical advocates would arise in the United States whose interest it would be to multiply litigations and protract them "ad indefinitum." In deference to these objections, the Holy See changed articles xxxii., xxxiii., xxxiv., and xxxv. of the Instruction, in such a manner as to allow only of the written and not of the oral summing up. 412. Accordingly the present article enacts that the de- fendant shall make his summing up or final defensive ar- guments in writing only, and that he shall present it to the judge, before the day on which the sentence is to be pro- nounced. For the purpose of enabling him to make this final defence cover the whole cause, the Instruction gives the defendant's advocate the right, not only to inspect or copy, at the diocesan chancery, the whole trial and the synopsis of the auditor, but also the right to secure a copy of the final summing up of the diocesan prosecutor, as we shall see in the next article. 413. From this it will be seen that while our Instruction does away with the oral summing up, it does not infringe upon any material right of the accused. For, it simply en- acts, that what can be done orally, according to the general law of the Church and the Instruction of 1880, shall be done in writing with us. Thus, as we have shown, according to the general law of the Church and the Instruction of 1880, 1 74 The Summing Up, and the Final Sentence. the advocates, besides handing in a written summing up, can also make final speeches or an oral summing up, and that in this order: first the prosecutor or his advocate speaks : next the accused or his advocate, having heard the prosecutor's speech, addresses the court. * Now, in the In- struction for the United States, the defendant is expressly allowed, nay, his advocate is enjoined, to hand in a written summing up, just in the same manner as provided in the general law of the Church and in the Instruction of 1880. But instead of the oral summing up by the prosecutor, and the oral reply or summing up by the defendant's advocate, our Instruction enjoins that the prosecutor shall merely make a written argument and the defendant a written reply. 414. Here we observe that in this summing up, as in the trial itself, the accused or his advocate must always be al- lowed to have the last word or to make the last reply. Hence the Instruction also enjoins that the written summing up of the prosecutor shall be communicated to the advocate of the accused, in order to enable him to reply and thus to have the last word. See our Elements, Vol. II., Nos. 1134, 1142, 1348. ART. XXXIII. The Summing up by the Diocesan Prosecutor. XXXIII. "Processus ejusque Summarium ad procuratorem fiscalem mit- titur, ut officio suo fungi possit. Postquam procurator fiscalis suas con- clusiones ediderit, eaedem defensori rei communicandae sunt ut ad easdem si placuerit in scriptis respondeat ; turn omnia ad Ordinarium remittuntur qui, ubi in plenam causae cognitionem devenerit, diem constituet, in qua sententia dicenda sit." 415. We have seen in the preceding article that the ac- cused or his advocate has full access to all the documents of the trial at the episcopal chancery, to enable him to prepare 1 Cf. Pellegr., 1. c., n. 13; Droste, 1. c., p. 126. The Summing Up, and the Final Sentence. 175 for the summing up or final defence. The present article grants the same right to the diocesan prosecutor, and con- sequently ordains that the whole trial and the synopsis of the auditor or investigating judge shall be sent to him, so that he may be able to make up his final arguments in writ- ing. The present article furthermore enacts that the sum- ming up of the prosecutor shall be sent to the defendant's advocate, so that the latter may reply. Finally, when the defendant's advocate has handed in his written answer to the prosecutor's final argument, all the acts of the whole cause namely the trial, the auditor's summary, the sum- ming up both of the prosecution and the defence, shall be remitted to the Ordinary, so that he may examine them thoroughly and thus be prepared to pronounce a just sen- tence. After the Ordinary has carefully and practically weighed all the documents and thus obtained a complete knowledge of the case, he fixes a day for the sentence, no- tifying the prosecutor and the accused, or his advocate, to that effect. 416. We have already, in the foregoing article, explained all these steps or proceedings. Here it remains but to say a few words respecting the tenor, contents and form of the summing up, whether of the prosecution or of the defence. The summing up is called allegare in jure et in facto. 1 Now the phrase allegare injure et 'in facto, means nothing else than to show that the facts in the case (allegare in facto), that is, the proofs produced during the trial, and the law bearing on these facts or proofs (allegare in jure], fully establish either the guilt or the innocence of the accused. Of course the prosecutor's summing up will endeavor to prove the Lcuilt of the accused ; that of the accused his innocence. It is therefore the duty of the advocate summing up, to review the entire evidence and all the facts brought out at the trial, 1 Pellegr., 1. c., pp. 147. 436. 1 76 The Summing Up> and the Final Sentence. and to show how the evidence and facts are to be construed in the light of the law, and how they show either the in- nocence or guilt of the accused. Above all, should the advocate of the accused bestow the greatest care upon the preparation of his summing up. He should therefore go over the whole trial ; carefully analyze all the evidence, and endeavor to demonstrate the innocence of his client. Hence this summing up for the defence is justly called by canonists, the final defence ultima defensio? and by the Instruction, simply dcfensio. And it is an integral part of a just defence, as we say in our Elements, Vol. II., no. 1142. ART. XXXIV. The Final Sentence. Its Form and Tenor. XXXIV. " Praestituta die, ab Episcopo vel Vicario general! praesente procuratore fiscal! et defensore sententia pronunciatur, ejusque pars dis- positiva Cancellario dictatur, expressa mentione facta, si damnationi sit locus, sanctionis canonicae quae contra imputatum applicatur." 417. When the Ordinary has fully weighed the entire case, he appoints a day for the final sentence and notifies the prosecutor and the accused, or his advocate to that effect, as we have seen in the preceding article. On the day ap- pointed, he pronounces the final sentence, in presence of the prosecutor, the defendant's advocate, and the chancellor. Where the common law and the Instruction of 1880 obtain, both parties make their oral summing up on the clay set apart for the sentence, and that immediately before the sentence is pronounced. With us, however, no such oral summing up takes place, as has been shown. Hence on the day fixed for sentence, the judge simply pronounces the sentence. 418. The sentence must be either condemnatory or absolutory. Whenever the guilt of the accused has not 1 Bouix, de Jucl., 1. 2, p. 224, 586. The Summing Up, and the Final Sentence. 177 been juridically preyed, he must be declared completely innocent, that is, he must be simply absolved, 1 and all the acts of the trial must be entirely destroyed. 2 As to the indemnity to be paid to the accused in this case, we shall explain the matter later on. 419. Where the sentence is condemnatory, it must first state clearly and explicitly the chief reasons on which it is based ; 3 in other words, it must set forth the particular crime, or the specific criminal acts, on account of which the punishment is inflicted ; 4 otherwise the sentence is null and void. 5 Next, it must expressly give the sanctio canonica, that is, the ecclesiastical law or enactment authorizing the infliction of the punishment, as we show more fully in the Third Volume of our Elements of Ecclesiastical Law. 6 420. Third, the judge must necessarily pronounce the sentence, not according to his own private and extrajudicial information, but only according to the evidence produced at the trial, or as canonists say, secundum allcgata et probata.' This is plain from article xvi. of the present Instruction, \vhich requires legal or canonical proof for conviction. Now the sacred canons, as we have seen, enact that a proof is legal or competent (probatio legalis), only when it is sub- mitted at the trial, after the litis contestatio ; that otherwise it has no legal force whatever as proof. This is so true that, as we show in our Elements, n. 728, the ecclesiastical judge cannot pronounce a person guilty, whom, of his own private knowledge, he certainly knows to be guilty, but who by the 1 S. C. EE. et RR., Oct. n, 1818. 2 Droste, p. 129. 3 The Roman Congregations alone have the privilege of omitting the reasons upon which their sentence is based in criminal causes ; chiefly because there is no appeal from their decisions. Droste, p. 130. 4 Our Elements, vol. ii., n. 1182. 6 Droste, 1. c., p. 130. 6 There we observe that no crime is punishable unless it is designated by law as punishable, ~ Can. 18, Caus. 2, Q. II, noluitenim; Rota, 1. c., p. 485; Pierantonelli, p. 149; Droste, p. 128. 178 The Summing Up, a^id the Final Sentence. judicial evidence, is not proved guilty. 1 Card, de Luca as- signs, as one of the reasons of this law, the following: " Ea enim dignoscitur differentia inter forum internum et exter- num, quod in primo, cujus Deus est judex, qui corda et mentes hominum videt, sola veritas, quamvis intrinseca et hominibus occulta, attenditur. In altero autem, cujus judex est homo, qui videt in facie, non autem in corde, requiritur extrinseca justificatio publica in act is, adeo ut veritas, non solum sibi, sed omnibus pat 'eat ." 2 For the other reasons given by St. Ambrose and St. Thomas, see our Elements, Vol. II., n. 728, sq. 421. Fourth, it must be absolutely in writing; and should be read by the judge himself, and dictated to the chancellor, in the presence of the prosecutor and the accused or his advocate. Consequently the accused or his advocate must be cited for sentence, on pain of nullity of the proceedings. One simple citation is sufficient. For fuller information on final sentences, see our Elements, Vol. II., Nos. 1169-1193. See also the Third Volume of the same works. ART. XXXV. How the Sentence is Delivered to the Accused. XXXV. " Sententia reo intimetur, qui potest ad auctoritatem superi- oris instantiae appellationem interponere." 422. Although, as we have seen in the preceding article, the accused or his advocate is present when the sentence is pronounced, yet the present article justly prescribes that a written notification i.e., an authentic copy of the sentence shall be served on the accused (sententia rco intimetur] in order that he may be able to frame his appeal and introduce it to the higher ecclesiastical judge. For, as -we shall show further on, \hsjudcx ad quern cannot receive a suspensive 1 De Luca, de Jud., disc. 22, n. 2, sq. 3 L. c. The Summing Up, and the Final Sentence. i 79 appeal, except when the appellant has shown by public documents, namely, by an authentic copy of the sentence and other public documents, that the appeal is interposed by (a) the proper person, (b) within the proper time, (c) from a final sentence, or one having the force of a final sentence, or from a gravamen, which cannot be undone by a final sentence. See Const, ad Militantis, Bened. XIV., 30 March, 1742, 43.44- 423. But in what way must this written notification of the sentence be made to the accused ? According to some, the answer is given in article xiv. of the present Instruc- tion, which enacts that all intimations and notifications shall be made (a) absolutely in writing, () and be delivered either by the regular official messenger of the curia, or if there be none, by any qualified i.e., worthy or reliable person, or also by registered mail. 424. According to others v.g., the Acta S. Sedis, Vol. XV., p. 396, the notification in the case must necessarily be made through a messenger, and therefore cannot be made by regis- tered mail. The reason given by the Acta S. Sedis for its opinion, is that article xxxvi. prescribes, that in appeals, the decree of the S. C. EE. et RR., dated Dec. 18, 1835, shall be observed. Now this decree enacts : " I. Reis. . . . spatium decem dierum conceditur, quo. . . . appellare possint." II. Decem dies numerari incipient non a die, quo sententia lata est, sed a die, quo reo vel ejus defensori per cursorcm denun- tiata fuit." The Acta infers also, from the words reo vel ejus defensori, that the sentence can be delivered either to the accused or to his advocate. 425. Whatever may be said on this head, it is, no doubt, better and safer to deliver the authentic copy of the sentence to the accused, by a messenger rather than by registered mail. For, as we shall see under article xxxvii., the accused must make his appeal within ten days from the time he received the notification of the sentence, and not from 1 8o The Summing Up, and the Final Sentence. the time sentence was pronounced. And if he culpably fails to do so, he loses his right of appeal ; consequently, it is of the utmost importance that no room be left for doubting- as to whether the notification was really served upon the ac- cused, and as to what precise time it was done. 426. The second paragraph of the present article states that the accused can appeal to the higher ecclesiastical authority against the decision of the court. We shall speak of appeals in the following articles. CHAPTER VI. APPEALS. ART. XXXVI. Nature, Object, and Effects of Appeals. XXXVI. " In appellatione observentur normae expressae in Const. Sa Me. Benedict! XIV., Ad Militantis, diei 30 Martii 1742 ac coeterae indictae a S. C. Episcoporum et Regularium, decreto diei 18 Decembris, 1835, et epistola circulari diei i Aug. 1851." 427. This article ordains that in appeals, the rules shall be observed which are laid down in the Const. Ad Militantis, is- sued by Pope Benedict XIV., March, 1742, and to the decree of the S. C. EE. et RR. of Dec. 18, 1835, and the circular letter of the same Congregation, dated Aug. n, 1851. Now the Const. Ad Militantis enumerates the cases where appeals have a suspensive and where they have only a devolutive ef- fect, and also states the manner in which suspensive ap- peals are interposed and adjudicated. The decrees of 1835 and 1851, lay down some additional rules respecting the manner in which the appeal is interposed and adjudicated. Hence, it may be said, that the present article comprises, so to say, the whole law of the Church concerning appeals and their effects. It therefore expressly applies to the United States the normal law of the Church in regard to appeals, as we shall explain farther on. This is a radical change in our discipline. For, up to the present time, no appeal whatever, even though it was against a final judi- cial sentence, has, practically speaking, had a suspensive effect. 428. We have already discussed most of the questions re- 1 82 Appeals. lating to appeals, in our Elements of Ecclesiastical Law, Vol. I., Nos. 443, sq. ; Vol. II., Nos. 1207, sq. Here we shall merely touch upon the principal questions bearing upon the matter, and discuss under separate headings the nature, ad- missibility, effects, etc., of appeals. i . Nature and Object of Appeals. 429. What is an appeal ? It is the act of a person having recourse against his superior to the higher superior or judge, on account of a grievance, either already inflicted or about to be inflicted. 1 We say, on account of a grievance either al- ready inflicted or about to be inflicted ; for it is allowed to ap- peal against a grievance, judicial or extrajudicial, not only when it is already inflicted, but also, when a person has rea- son to fear that it will be inflicted.* 430. How many kinds of appeals are there ? Two : judi- cial and extrajudicial. The judicial appeal (appellatio judicialis) is that which is interposed against judicial acts or proceedings, and can be made during three different stages of the trial : first, before the "litiscontestatio" v.g., when the judge assigns too brief a space of time for appearing in court ; next, after the " litis contestatio," but before the sentence ; such is the appeal against interlocutory sentences : finally, after the final sentence, namely when the appeal is made against the sen- tence or its execution. The extrajudicial appeal (appellatio extrajudicialis, called also provocatio ad causani) is that which is interposed against extrajudicial acts or decrees, by which a person feels aggrieved. 3 431. What is meant by a simple recourse (snpplicatio,recur- sus, querimonice] and how does it differ from appeals, judicial and extrajudicial ? The recourse, as here understood, is an humble request addressed to the supreme judge i.e., to the 1 "Appellatio est ab inferiore ad superiorem judicem provocatio facta ratione illati vel inferendi gravaminis." Schmalzg., 1. 2, t. 28, n. I. Schmalzg., 1. 2, t. 28, n. I. 3 Ib., 1. c., n. 4. Appeals. 183 Pope, praying him to redress a grievance or revoke a sen- tence, against which it is not allowed to appeal. 1 We say, against tshich it is not allowed to appeal. This is to be un- derstood in three ways. i. The law of the Church denies the right of appeal, in some cases, absolutely v.g., where a person has boi^jnridicall}' confessed his guilt, and also been juridical- ly conticted of it. 2. In other cases, the law admits of the appeal and that either in suspensive, or at least, in dcvolutivo, but yet provides that if the appellant fails to interpose it within ten days, he shall forfeit this right. 3. Finally, in other cases, which exclude the appeal, the law forbids the appeal even /;/ devolutivo, as is the case in sentences ex in- fonnata conscientia. Now, in all these cases, the law of the Church, following the rules of equity rather than of strict justice, authorizes the party who feels himself wronged, to have recourse to the Holy See, in order to have the matter examined and decided. 3 See our Elements, Vol. I., n. 443. 432. This recourse differs from appeals, judicial and extra- judicial, in several respects. Thus, first, the appeal usually suspends the sentence or its execution ; the recourse does not. Second, the appeal judicial, and extrajudicial, must be made within ten days ; the recourse can be made to the Supreme Pontiff within two years. Third, the appeal is an ordinary remedy, and granted to all, as a right, being one of the legitimate means of a defence ; the recourse is given as an extraordinary remedy, and as a favor, not as a right? Fourth, appeals, judicial and extrajudicial, may be made to the Met- ropolitan ; recourse only to the Holy See. Why are appeals established? Chiefly, i. In order to remove the grievance unjustly inflicted. 2. To correct the injustice, inexperience, want of knowledge, or other defect of the judge in the first instance. 3. To enable the litigant, who either through 1 Schmalzg., 1. c., n. 2; Stremler, p. 371. : Reiff., 1. 2, t. 28,n. 20. 3 Schmalzg., 1. c.; Stremler, 1. c. 1 84 Appeals. ignorance or negligence has failed to establish his case properly in the first instance, to remedy this defect in the second instance. See our Elements, Vol. II., n. 1228. 433. From this, it will be seen how salutary and necessary . a remedy is the right of appeal. The Holy Ghost himself assures us, that every man can err ; omnis homo mcndax (Ps. cxv.). Consequently every ecclesiastical judge is liable to error, in his actions, judgments or decisions. The right of appeal is founded on this truth. For, if it is possible that the ecclesiastical superior may fall into mistakes, and thus wrongfully condemn a person, the latter must have the right of calling upon the higher superior for protection. Hence the right of appeal is called by the sacred canons remedium defensionis. It is a legitimate means of defence, and is, therefore, so far as its substance is concerned, granted by the very law of nature. We say, so far as its substance, etc. ; for its formalities, that is, the manner in which it is in- terposed, etc., are established by the positive law of the Church. 1 2. Who Can, and ivlio Cannot Appeal? 434. In order that an appeal may be lawful and ad- missible, it must be interposed by the proper person per legit imam personam. Who then is allowed to appeal ? Speaking in general, the rule is that all persons whatever, can appeal judicially or extrajudicially, as the case may be, whenever they consider themselves unjustly aggrieved by the action of the superior. 2 The reason is that, as we have seen, the appeal is a means of defence, 3 and therefore granted by the very law of nature to all persons who feel themselves injured. 435. Speaking in particular, the following persons can ap- 1 Schmalzg., 1. c., n. 6. 3 Reiff., 1. 2, t. 28, n. 32. 3 Cap. Cum speciali, 61, $ Porro (ii. 28). Appeals. 185 peal: i. The person upon whom the gravamen is inflicted. 2. All other persons who, though not directly t affected by the gravamen or sentence, yet are indirectly affected by it and therefore consider themselves wronged by it. 1 Thus, where an ecclesiastic is condemned v.g., for incontinence with a certain woman, the latter, though not condemned by the sentence, can nevertheless appeal against it, as well as the ecclesiastic himself, who is condemned. For her good name is injured by the sentence. 3. Hence those who are not affected by the sentence, cannot appeal. 3. To Whom Should the Appeal be Made ? 436. As a rule, the appeal from a judge or superior must be made to the next higher judge, or immediate superior. This holds true not only of judicial appeals, but also of ap- peals against extrajudicial grievances. 2 Consequently ap- peals from the Bishop or his Vicar-general should be made to the Metropolitan ; from the Metropolitan to the Primate or Patriarch ; from the Primate or Patriarch to the Holy See. See our Elements, Vol. I., n. 452. 437. We say, as a rule. For, it is always allowed to ap- peal directly to the Hoi}' See, without first appealing to the intermediate superior. 3 Yet it seems to be the mind and de- sire of the Holy See that except in certain cases, appeals, especially in countries which are far away from Rome, should be made first to the immediate superior i.e., to the Metro- politan and only afterwards to the Holy See. We say: except in certain cases ; namely, where the immediate superior is either morally or physically hindered or incapacitated from hearing and deciding the appeal v.g., where he is suspected, or excommunicated, or suspected. 4 438. We have said that the appeal from the Metropolitan 1 Can. non solent, c. 2, q. 6. - Bouix, de Jud., vol. ii., p. 251. 3 Can. 4, 5, 6, 7, 8, 15, 16, C. ii., q. 6. * Can. 16, c. 2, q. 6; Santi, 1. 2, t. 28, n. 9. 1 86 Appeals. should be made to the Patriarch or Primate. This needs ex- planation. Formerly Primates and Patriarchs possessed jur- isdiction over Metropolitans, and consequently could receive appeals from their sentence or acts. 1 At present, however, they no longer possess this power. Hence it is not allowed, at present, to appeal from the Metropolitan to the Primate or Patriarch. A fortiori, it is not allowed to appeal from one Metropolitan to another, since Metropolitans have no juris- diction over each other, except where they receive it by special delegation from the Holy See. 439. As a matter of fact, both in the United States and elsewhere, the Holy See at present deputes neighboring Metropolitans to hear and decide appeals made from other Metropolitans, acting as a court of the first instance. Thus, as far as concerns us, the TJiird Plenary Council of Baltimore (n. 316) decrees: "Quod si a judicio curise Metropolitans primes instantics ad aliam curiam appellandum sit, appellatio ex speciali concessione S. Sedis (ut etiam in Instr. S. C. pro causis matrim., 26, determinatum est) fiet ad Metropolita- num viciniorem" With us, therefore, subjects of a Metropoli- tan, can appeal from the sentence of the latter, acting in his capacity as judge of the first instance, to the nearest Metro- politan, as the judge of the second instance, and of course, also from the latter to the Holy See. 4. In wJiat Cases is it Allowed to Appeal? In what Cases is it Forbidden to Appeal? 440. In what cases can appeals be made ? Generally speaking, it is allowed to appeal, except where canon law expressly prohibits it, against any gravamen, whether judicial or extrajudicial. See our Elements, Vol. I., nos. 4/1/1, sq. The reason is that the appeal, as we have seen, is a legitimate 1 Our Elements, vol. I., n. 527, 528. Appeals, 187 means of a just defence against any act whatsoever, by which a party feels aggrieved. 1 441. We have just said, except where canon law expressly prohibits it ; hence, in order that a person may have the right to appeal in a particular case, it is not necessary that the law should expressly grant the appeal for such case. It is sufficient if it does not expressly exclude the case. 8 Consequently the onus probandi that the law expressly for- bids an appeal in a particular case, lies upon the one oppos- ing the appeal, not upon the appellant. Hence the appeal must always be admitted, whenever it is not shown by the ad- versary v.g., by the diocesan prosecutor, that the appeal in the case is expressly forbidden by law. 3 Now the law of the Church expressly forbids appeals in some cases alto- gether, that is, both " quoad effectum suspensivum " and " quoad effectum devolutivum :" in others, only as to the sus- pensive effect. /. Cases which do not Admit of any Appeal Whatever. 442. Q. In what cases does the law of the Church express- ly prohibit appeals altogether ? A. In the following: I. Where a person approves the sentence pronounced against him, either expressly or tacitly i:g., by not appealing within the ten days, and thus re- nounces the right of appeal. 4 443. II. Where a person is truly contumacious, vere contu- viax that is, where a person having been, according to the present Instruction, cited to appear for trial, first in a simple and then in a peremptory manner, yet refuses to appear for trial, and that without alleging any sufficient excuse ; and where such person is therefore tried in his absence, found 1 Leur., For. Eccl., 1. 2, 1. 28, q. 1082. * Bouix, de Jud., vol. ii., p. 249. 5 DeLuca, dejud. Disc, xxxvii., n. 2. 4 Cap. 54, de app. (ii. 28.) ; Cap. 20., de off. Deleg. (i. 29). 1 88 Appeals. guilty and condemned. From this condemnatory sentence there is no appeal. 1 For a person thus stubbornly disobe- dient makes himself unworthy of the benefit of appeal. We say truly contumacious ; for presumptive or fictitious contu- macy does not deprive of the right of appeal. 2 /\/\<\. III. Where a person has both confessed his guilt spon- taneously and in court, and has also been at the same time convicted of it by full legal proof or probatio plena. Hence a person who has merely confessed his crime, but not been also convicted of it by legal proof, has the right to appeal ; for he is allowed to revoke his confession, at least, when he alleges and proves that he made it from error, etc. 3 445. IV. Where three sentences of the same tenor or im- port have been pronounced against a person, in the same cause and in the same particular points of such cause. For it is allowed to appeal twice, but not three times in the same cause. Thus a person can appeal from his Ordinary to the Metropolitan ; then from the Metropolitan to the Holy See. 4 But he cannot appeal a third time, lest, other- wise, the proceedings should never end. Besides, the pre- sumption militates against a person who succumbs or is condemned, not only in the court of the first instance, but also successively in two courts of appeal. 5 However, though it is not allowed to appeal a third time in the same case, yet it is lawful, after the third adverse sentence, to supplicate the Holy See for a new hearing, that is, to have recourse to the Pope to review the case, not as a matter of right, but as a favor. For the other cases, which do not admit of appeals, see our Elements, Vol. I., n. 445, 448. 446. Here it should be observed that in all these causes 1 L. Ex consensu ff. de app; L. contumacia ff. de rejudicat. 2 Reiff., 1. 2, t. 28, n. 303. 3 Schmalzg. 1. c., n. 11. 4 L. un. C. Ne liceat in una Cvii. 70) ; Cap. sua nobis 65 de app. (ii. 28); Pellegr., 1. c., p. iii, Sect. I, n. 15. xxxiv. 6 Reiff., 1. c., n. 312. Appeals. 1 89 which do admit of an appeal, even indevolutivo, it is allowed to have recourse to the Holy See for redress. This re- course, however, does not, as a rule, suspend the action of the superior, a quo. IL Cases iL'/iich admit only of a devolutive appeal, or even only of a simple recourse. 447. Q. In what cases does the law of the Church, as in force at present also in the United States, expressly forbid appeals in suspensivo, though not in devolutivo ? A. In the cases just enumerated, the appeal is forbidden altogether, that is, both " in suspensivo," and " in devolu- tivo." There are other cases where the Church allows the appeal indeed, but yet gives it merely a devolutive, not a suspensive effect. 1 These cases, which are laid down in the sacred canons, the Council of Trent and the Apostolic Constitutions, are all summed up in the Const, ad Militantis, issued by the great Pontiff Benedict XIV., March 30, 1742. This Constitution, which is now the general law of the Church in regard to appeals, is made obligatory also in the United States, by article xxxvi. of the Instructio, now under consideration. Now Pope Benedict XIV., in the above Const, ad Militantis, decrees that no suspensive but only a devolutive appeal, or also, as the case may be, only a simple recourse to the Holy See is allowed, against the following decrees or acts. 448. i. Against any decrees of the Bishop, which regu- late divine worship, and the celebration of the Mass. (C. Trid. sess. 21, c. 8, de Ref . ; sess. 22, decret. de obs. et evit. in celebr. Missse). 449. 2. Against ordinances of the Bishop requiring the clergy, secular and regular, to assist at public processions, and regulating the precedence among ecclesiastics secular 1 Pierant., p. 161. 1 90 Appeals. and regular, who intervene at these processions. (C. Trid. sess. 25, c. 13, de Reg. ; Const. Etsi Mendicantium S. Pii V., 70 450. 3. Against decrees that determine the manner in which rectors and others having charge of souls, should perform their parochial duties, or administer the sacra- ments, or preach the word of God, according to the dis- position of the Council of Trent, sess. 5, c. 2, de Ref. ; sess. 24, c. 4, de Ref. 45 1. 4. Against the appointment of a pro-rector or vicarius curatus in churches which have the care of souls annexed, and which are at the same time united to chapters, colleges, monasteries, etc., according to the Council of Trent, sess. vii., c. 5 and 7, de Ref. ; and the Const, ad Exequendam of Pius V. 452. 5. Against the decree or injunction of the Bishop, by which he obliges the rector of a parish which is too large to be administered by himself alone, to take one or more assistant priests. (C. Trid. sess. 21, c. 4 and 5, de Ref.) 453. 6. Against the decree of the Bishop, by which he divides a parish, in order to form a new one. (C. Trid. sess. 21, c. 4, de Ref. ; sess. 24, c. 13, de Ref.) 454. 7. Against the appointment of a coadjutor or assist- ant priest, for a rector or parish priest, who, though of a blameless character, is yet ignorant and unskilful to such a degree as to be unable to govern his parish : J against the suspension or even dismissal from a parish, inflicted upon a parish priest who is juridically convicted of incorrigible im- morality. We say juridically convicted, that is, convicted upon a trial, which, however, may be summary. We say again, of incorrigible, etc. ; 3 for, as the Council of Trent expressly enacts, dismissal can be inflicted in the case only as a last resort, and consequently, after the milder punish- 1 C. Trid. sess. 21, c. 6 de Ref. * Cf. Bouix, de Paroch., p. 389, 393. Appeals. 191 ments, such as suspension have been vainly tried. (C. Trid. sess. 21, c. 6, de Ref.) When the Bishop thus inflicts suspension or dismissal, no suspensive appeal lies against his sentence. And justly so ; for it is manifestly improper and ruinous to souls to allow a rector, who is convicted of incorrigible immorality, to remain in charge of souls, pending the adjudication of the appeal. 455. 8. Against the decree of the Bishop obliging rectors or parishioners to repair a parochial church, which stands in need of repairs, in the manner laid down by the Council of Trent, sess. 21, c. 7, de Ref. 456. 9. Against censures, or the sequestration and sub- traction of the ecclesiastical income, and other legal reme- dies, even dismissal from parish, inflicted by the Bishop upon a parish priest or others having the care of souls, after due trial and judicial proceedings, for stubbornly re- fusing to reside in their parish or church, according to the decree of the Council of Trent, sess. xxiii., c. i, de Ref. 457. 10. Against the act or decree of the Bishop deny- ing, revoking, suspending, or restricting the faculty to hear the confessions of seculars, in regard to priests who are not rectors or parish priests, according to the prescrip- tion of the Council of Trent, sess. 23, c. 15, de Ref.; and the Const. Snperna of Pope Clement X. 458. ii. Against the Bishop's decree, establishing fixed limits between the various parishes, and making the parish priests irremovable, according to the decree of the Council of Trent, sess. 24, c. 13, de Ref. 459. 12. Against the appointment of a priest to act as administrator of a vacant parish, till the new rector is properly appointed ; against the holding of the concursus ; against the appointment of a new rector, according to the disposition of the Council of Trent, sess. 24, c. 18, de Ref. 460. 13. Against the Bishop's decree forbidding ecclesias- tics, secular or regular, to preach the Word of God, in 192 Appeals. opposition to his will (C. Trid. sess. 5. c. 2, de Ref. ; sess. 24, c. 4, de Ref. ; Const. Inscrutabili Gregorii XV. ; Const. Su- pcrna dementis X.) 461. 14. Against the visitation and correction of abuses, in all things relating to the care of souls, and the adminis- tration of the sacraments, according to the Const. Inscriita- bili of Pope Gregory XV. 1 462. 15. Against decrees and ordinances respecting the enclosure of nuns, and the administration, spiritual and temporal, of convents of nuns, according to the enactment of the Council of Trent, sess. 25, de Reg. et mon., cap. 5, 9 and 10, and the Const. Inscrutabili of Gregory XV. S 463. 16. Against the pastoral visitation of the diocese, and especially of monasteries where the religious discipline is not being observed ; against the execution of those things which have been enjoined and decreed in these visitations ; against the decrees made even out of visitation, concerning the life, propriety of conduct, dress, etc., of ecclesiastics, in accordance with many decrees of the Council of Trent, especially sess. 6, c. 4, de Ref.; sess. 13, c. 8, de Ref. ; sess. 22, c. i and 8, de Ref. ; sess. 24, c. 10, de Ref. This, how- ever, must be understood in accordance with the decree of the S. C. EE. et RR., issued by command of Pope Clement VIII. in 1600, which enacts that when the Bishop, in mak- ing his visitation, or in correcting the manners of his subjects, proceeds judicially, or inflicts, even though extra- judicially, regular ecclesiastical penalties, or an irreparable gravamen, a suspensive appeal lies against his acts and decisions. Hence the appeal " in suspensive " is forbidden in the case, only when the Bishop proceeds paternally, i.e., when he imposes paternal remedies, such as warnings, etc., but not when he inflicts penalties proper, or censures, or grave disciplinary correction. 1 Const, ad Mililantis, 19. 2 Ib., 20. Appeals. 193 464. 17. Against sentences inflicted by the Bishop "ex informata conscientia " according to the Council of Trent, sess. 14., c. i et 3, deRef. Observe that against these senten- ces the only remedy is a recourse to the Holy See, as no appeal whatever, even " in devolutivo " to the Metropolitan lies against them. See our Elements, Vol. I., n. 445 : Vol. II., n. 1283. 465. 1 8. Against the fixing of the term or time, within which a regular, who has notoriously transgressed outside of the monastery, shall be punished by his own superior. 1 Against the punishment and correction itself of these religi- ous, as defined in the Const. Inscrutabilioi Pope Gregory XV. 466. 19. Against censures or other punishments inflicted upon laics, men and women, and especially upon ecclesias- tics, who have been found guilty, on due trial, of concubi- nage, according to the Council of Trent, sess. 24., c. 8, de Ref. Matr. ; sess. 25, c. 14, de Ref. The meaning of this law is not that the Ordinary can impose censures or other pun- ishments upon concubinary ecclesiastics, without a previous trial. For the Council of Trent, in the place here quoted, expressly teaches that a summary trial must precede the punishment. The meaning is that from the punishment, in- flicted after due trial, there is only a devolutive appeal. 467. 20. Against the examination, approval or rejection of the title of Patrimony, Ecclesiastical Pension or Benefice, required for promotion to sacred orders, according to the disposition of the Council of Trent, sess. 21, c. 2, de Ref. 468. 21. Against the execution on the part of the Bishop, in the cases permitted by the law of the Church, of all pious dispositions, whether made by last will and testament, or between the living, according to the Tridentine enactment, sess. 22, c. 8, de Ref. 469. 22. Against the Bishop's making the visitation of 1 C. Trid. sess. 25., c. 14, de Reg. ; Const. Susccfti Mnneris of Clem. VIII. 1 94 Appeals. charitable institutions, or of any pious place by whatsoever name designated, of colleges, schools, confraternities, etc., according to the disposition of the Council of Trent, sess. 22, c. 8, de Ref. 470. 23. Against decrees of the Bishop obliging persons who administer the ecclesiastical property of churches, or of charitable and religious institutions, to render annually an account of their administration, except in cases where, in the foundation and rules of any church or fabric, the contrary is expressly set forth, according to the Council of Trent, sess. 7, c. 15, de Ref. ; sess. 22, c. 9, de Ref. ; sess. 25, c. 8, de Ref. 471. 24. Against decrees compelling notaries, even though apostolic, who write out the acts of ecclesiastical causes or trials, to undergo an examination ; against their removal or suspension from their office of notary in case they are found incompetent or guilty of delinquency in the discharge of their office, in accordance with the Council of Trent, sess. 22, c. 10, de Ref. 472 25. Against the erection of the seminary ; the taxa- tion for its support ; the regulations concerning its govern- ment, according to the enactments of the Council of Trent, sess. 23, c. 1 8, de Ref. 473. 26. Against the mandate or decree ordering the vicar-capitular or administrator of a vacant diocese, to render an account of his administration of the vacant dio- cese, in harmony with the Tridentine prescription, sess. 24, c. 1 6, de Ref. 474. 27. Against the tJireat of the ecclesiastical judge that he will proceed to pronounce declaratory sentence, that is, that he will declare that a person has incurred " ipso facto " excommunication, suspension or interdict, which is a jure, that is, imposed by the law itself and " latas sen- tentiae." Against the censures of suspension, excommu- nication or interdict, which are inflicted ab hominc, once they have been already imposed by the ecclesiastical Appeals. 195 judge. 1 To understand this better, it is necessary to bear in mind that censures are divided into two kinds ; first, those which are a jure ; secondly, those which are ab homine. When the Ordinary threatens to declare officially that a person has incurred a censure which is a jure and latce sententia, no sus- pensive appeal lies against such a threat ; since, as Stremler says, it is allowed to appeal " in suspensivo " against the declaratory sentence itself, after it has been pronounced. But the case is different with censures ab homine. They do not admit of a suspensive appeal after they are once inflicted. Hence it is just that they should allow of a suspensive ap- peal, before the}' are inflicted. See our Elements, Vol. I., n. 445 ; Vol. II., n. 1279, sq. ; and Vol. III., where we speak " ex professo " of appeals against censures. 475. In all the above cases, and matters which are, with one or two exceptions, extrajudicial acts of the superior, it is allowed indeed to appeal " in devolutivo " to the Metropol- itan or judge ad quern, or as the case may be, to have extraju- dicial recourse to the Holy See, but it is not permitted to lodge a suspensive appeal unless the Ordinary exceeds his powers. Thus Pope Benedict XIV. expressly declares : " Vo- lumus quod ab archiepiscopis aliisque judicibus ecclesiasticis . . . citationes cum inhibitione, per quam executio decretorum mandatorum ct proi'isionum hnjusmodi retardetur, suspendatur ant impcdiatur, mininic conccdantur . . . Decernentes quod adversus decreta, mandataet provisiones ejusmodi, quas, vel quae, ab episcopis, aliisque locorum Ordinariis fieri, vel capi contigerit in causis et negotiis praedictis, vel simplex dumtax- at, et extrajudicialis recursus per viam supplicis lib c Hi ad Nos et successores nostros Romanes Pontifices, vel respective, et juxta causarum naturam et qualitatcm, appellatio ad quos de jure, in solo devolutivo, et sine retardatione vel praejudicio legitimse executionis, recipi et admitti possit." z 1 Const adMilitantis, $ 45; Deer. S. C. EE. et. RR., 1600, $ ix. - Const, ad Militantis, Bened. XIV. $ 38. 1 96 Appeals. 476. Now the effect of the devolutive appeal in these cases is that it confers upon the superior ad qucin, or the Metropolitan to whom the appeal is made, the right and duty to take cognizance of and inquire into the whole mat- ter or alleged grievance, and to give his decision on the merits of the case, either confirming or reversing in whole or in part the action or decision of the superior a quo. We say duty, etc. ; for the superior ad qucin cannot remit the case to the superior a quo, but is obliged himself to take cognizance of and decide it. 1 477. We have said, however, unless the Ordinary exceeds his powers ; for if he does overstep the limits of the powers granted him by the laws of the Church, in the above cases, a suspensive appeal lies against him, even in the above cases. 2 To understand this better, we observe that the Const, ad Mili- tantis, in so far as it enumerates the cases not admitting of a suspensive appeal, may be divided into three parts : The first gives the decrees of Bishops respecting the pastoral admin- istration of the diocese, namely, divine worship, the adminis- tration of the sacraments, the preaching of the Word of God ; the second, the decrees or ordinances of the Bishop made during or in connection with the visitation of the diocese, whether they relate to the official duties of ecclesiastics or their personal conduct ; the third, the regulations or decrees, which have for their object the correction of morals of eccle- siastics, and are made out of visitation.* 478. Now against these decrees themselves there is only a devolutive, but no suspensive appeal. Consequently, even though a person appeals against such ordinances, he must carry them out, pending his appeal. But suppose an ecclesiastic, against whom the Bishop makes such a decree, refuses to obey the decree or violates it ? Can the 1 Cap. 59, de app. ; Reiff., 1. 2, t. 28, n. 234. 2 Cap. Irrefragabili, 13, de off. ord- 3 Cf. Prael. S. Sulp., torn. 3, p. 128. Appeals. 197 Bishop enforce his decree by punishments ? He certainly can inflict paternal corrections in the case, such as admoni- tions, spiritual retreats, small pecuniary fines, and that with- out any trial, though not without a previous summaria facti cognitio. Against these paternal remedies, it is allowed to appeal " in devolutivo," but not " in suspensivo." The Bishop can, of course, also inflict regular punishments and censures, if the nature of the case so demands. But he must give the delinquent a trial, before inflicting such punish- ments ; * and it is allowed to appeal, not merely " in devo- lutivo " but also " in suspensivo " against these punishments in all the cases enumerated in the Const, ad Militantis, save in the one or two cases indicated in this Constitution. 2 See our Elements, Vol. I., n. 447 and 555. 479. It should also be borne in mind that the Const, ad ]\ I Hit ant is makes no new regulations or enactments what- ever, and does not, in any way, change the decrees of the Council of Trent, the previous declarations of the S. C. EE. et RR., or the teaching of canonists, either in regard to the effect of appeals, or the manner in which they are inter- posed and adjudicated. Thus Pope Benedict XIV. ex- pressly says : 3 " Constat hac nostra constitutione non novas ferri sed antiquas instaurari leges." In fact, so far as con- cerns the effect of appeals, the cases which do not admit of a suspensive appeal are already sufficiently set forth by Pope Innocent IV., .in the Cap. Romana 3, de app. in 6 (ii. 1 5), the Council of Trent, and in the decrees of the S. C. EE. et RR. of Oct. 16, 1600, confirmed by Pope Clement VIII., 4 and of Sept. 5, 1626, approved by Urban VIII., and in the decree of the S. C. C., May 15, i7oo. 5 All that the Const, ad Militantis does is to group together, in one complete list, all the cases which do not allow of a suspensive appeal, and 1 Droste., p. 107. - Cf. Prcel. S. Sulp., torn. 3, n. 707, p. 129. 3 Const, ad Alilitantis, 48. 4 See Giraldi, Part.i., Sect. 308, p. 204. 5 Monacelli, Form. leg. p. 2, t. 15, form. 2, n. 8, p. 210. 1 98 Appeals. which are found scattered through the above sacred canons and apostolic constitutions. 1 480. Finally, as Pope Benedict XIV. remarks in his Const. ad Militantis, 39, there may be particular cases, which though they apparently fall under the rule excluding suspensive appeals, are yet, owing to particular circum- stances, exempt from it, and admit of a suspensive appeal, and that in accordance with the mind of the Council of Trent, the Pontifical Constitutions and with the common teaching of canonists. These cases or exceptions to the rule, continues the Pontiff, can, as a rule, be determined only by the prudent judgment of the judge. However, even in these exceptional cases, the judge ad quern cannot admit the appeal " in suspensive " and issue the inhibitions, except it appears to him, after a summary inquiry, that the particular circum- stances of the case, as set forth clearly and in writing by the appellant, and verified by a document which constitutes at least a half-proof, that the case is excepted from the general rule. Only then can the judge " ad quern " issue the inhi- bitions to the Bishop or judge " a quo," being obliged, on pain of nullity, to insert in his letters of inhibition this clause : " Nos enim, attentis juribus, et supplici libello nobis praesentatis, atque in actis exhibitis, sicut prsefertur, inhi- bendum esse speciali rescripto mandavimus." 2 ///. Cases which Admit of a Suspensive Appeal. 481. Q. In what cases does the law of the Church, as in force at present, and as applied also to the United States by the present Instruction, give a person the right to appeal " in suspensive " ? In other words, in what cases has the appeal a suspensive effect also with us ? A. Having seen in what cases appeals are absolutely for- 1 Rota, 1. c., p. 530. 2 Const, ad Militantis, 39; Rota, p. 530; Giraldi, Expos. J. P., p. 212, n. xxxv. Appeals. 199 bidden, and in what cases they are indeed allowed, though only /// devolutivo, it follows that in all other cases, not men- tioned above, it is allowed to appeal both " in devolutivo " and " in suspensive." For it is certain that unless the con- trary is expressly stated, the appeal has always a suspensive effect, no matter whether the appeal is from a judicial or an extrajudicial grievance. To understand this teaching better, it is necessary to recall the division of appeals into judicial and extrajudicial. Judicial appeals are subdivided into those which are interposed against a final judicial sentence, and those which are against an intermediate or interlocutory judicial decision. 482. I. It is certain that it is allowed to appeal against all final judicial sentences, except in the few cases expressly stated in law, and enumerated by us above, n. 442, sq. and that such appeal produces a suspensive effect. 1 For the law of the Church expressly enacts that an appeal from a final sentence suspends the jurisdiction of the judge a quo, so that he has no power to execute his sentence. 2 This law is also clearly applied to the United States by the recent Instruction of 1884, in article xxxvii. 483. However, the Third Plenary Council of Baltimore, n. 286, decrees : " Cum in pluribus provinciis nostris rectores ecclesiarum ipsa lege constituantur ex officio ecclesiarum suarum aeditui, caute nobis providendum est ne, quando necesse fuerit rectorem aliquem munere suo privare, ipse per interjectam appellationem sententiae executionem impe- diat, et sic officium aeditui coram potestate civili conservet. Statuimus ergo, annuente Apostolica Sede, nullum rectorem etiam inamovibilem juridice remotum, depositum, vel mu- nere suo privatum, contra sententiam Ordinarii in suspensive, ut aiunt, appellare posse, sed in devolutivo tantum, ita ut de- sinat esse sedituus ecclesise cujus rector erat, vel perpetuo, 1 Cap. 7 et 10, de app. in 6 (ii. 15); Reiff., 1. 2, t. 28, n. 210. a Ib. 2OO Appeals. vel usque ad tempus quo judex ad quern, definitive litem ter- minans, eum in munus suum redintegret. Quapropter usque ad litis terminationem non definitive alius rector, sed admin- istrator cum juribus competentibus instituetur, et Episcopus interim utriusque, turn amoti rectoris turn administratoris honestse sustentationi providebit." 484. We say "final judicial sentences;" since the rule is that in judicial causes or proceedings it is not allowed to appeal either " in suspensive " or " in devolutivo," until after the final sentence has been pronounced. Thus the Council of Trent expressly ordains : " There shall be no appeal, before the definitive sentence, from the Bishop or his Vicar-general in spirituals, against any interlocutory sentence, etc." 1 For, according to the new law, as defined by the Council of Trent, all causes must, in the first instance, be tried before and de- cided by the Ordinary. 2 Hence, before the Ordinary has ren- dered his final decision in a case, the latter cannot be carried before the higher judge on appeal, except where the Ordi- nary fails to render his final decision within two years from the time the suit was instituted. 485. II. We have just said, the rule is ; for there are three exceptions. Thus it is allowed to appeal, in suspcnsivo, before :the final sentence is pronounced, and during the course of the trial or judicial proceedings, against intermediate or in- terlocutory decisions, resolutions or acts of the ecclesiastical judge in these three cases : (a) when the intermediate decis- ion or act is, in reality, equivalent, in its effects, to a final sen- tence ; (U) when it inflicts a damnum irreparabile, that is, a grievance which cannot be remedied by a final sentence or by an appeal from a final sentence ; (c] when it is not allo'<.ved to appeal from the final sentence itself. 3 In these three cases, it is allowed to appeal, not only " in devolutivo," but 1 Sess. xiii. C. I de Ref. ; sess. 24. c. 20, de Ref. 2 C. Trid. sess. 24, c. 20 de Ref. 3 Trid. sess. xiii., c. i. de Ref. ; sess. xxiv., c. 20 de Ref. ; Stremler, p. 404. Appeals. 20 1 also " in suspensive " against an intermediate decision and before the final sentence is pronounced. 1 But from all other interlocutory decisions, which are given prior to the final sentence, there is no appeal whatever, not even " in devolu- tivo." This is but just and necessary. For, if it were allowed to appeal, even though only " in devolutivo," against intermediate decisions or acts, which do not materially affect the main cause on trial, nor inflict an irremediable gravamen, there would be no end to trials or judicial proceedings. However, a person has the right to enter a protest against such intermediate decisions. This protest must be noted in the minutes, but has not the legal effect of an appeal. 486. This teaching concerning appeals from intermediate decisions, as enacted by the Council of Trent, has been con- firmed by subsequent legislation, especially by the decree of the S. C. EE. et RR., ad tollcndas, iii., v., viii., ix., and by Pope Benedict XIII., 2 and especiallyby Pope Benedict XIV., in his Const, ad Militant is, 1742, 43, 45, and consequently is the law to be followed at present all over the world, and also in the United States. 487. Stremler observes that the disposition of the Council of Trent restricting appeals against interlocutory decisions, does not apply to ecclesiastical causes of a civil, but only to those of a criminal character. 3 Here the question arises : When is an intermediate decision or sentence regarded as having the force of a final sentence, or inflicting an irre- mediable grievance ? For the answer, see our Elements of Ecclesiastical Law, Vol. II., Nos. 1159, sq. 488. III. When does the appeal against cxtrajudicial acts or decisions produce a suspensive effect ? It is certain that an appeal in suspensive lies against extrajudicial acts or decisions, which inflict a grievance that cannot be remedied or 1 Decretum adtottendas, S. C. EE. et RR. 1600, $ viii. - Ad Deer. ix. Clem. VIII., ad tolZendas. 3 S'.remler, p. 405. 2O2 Appeals. undone. 1 With regard to appeals from other extrajudicial acts or sentences, the rule is, that they also have not only a devolutive, but, moreover, a suspensive effect, unless the contrary is expressly stated. For the law of the Church expressly gives a person the right to appeal against ex- trajudicial grievances. Thus Pope Alexander III. enacts :* " Quoniam sacri canones etiam extra judicium passim ap- pellare permittunt." ! Now, by the right of appeal, the sacred canons mean the right to appeal in suspcnsivo, unless the contrary is expressly stated. (See our Eleme?its, Vol. II., Nos. 1244, sq.) Professor Santi, however, observes that the appeal against extrajudicial grievances, which are not irremediable, pro- duce a suspensive effect, not at once, but only after the superior ad quern, having seen the cause or reason of the appeal, given by the appellant, admits the appeal and begins to examine into the merits of the case. 4 489. We have said that the extrajudicial appeal has a suspensive effect, unless the contrary is expressly stated in law. Now, the law of the Church, as enforced at pres- ent, and embodied in the Const, ad Militantis of Benedict XIV., and therefore also in force with us, enacts that the appeal against the extrajudicial acts or decrees, which are enumerated in said Constitution and given by us above, shall have no suspensive effect. For fuller information on this point, see our Elements, Vol. II., n. 1249, 1250. We sum up as follows : According to the law of the Church, as em- bodied in the Const, ad Militantis, of Benedict XIV., and therefore also in force with us, the appeal has a suspensive effect, whenever it is interposed against a final sentence, or an interlocutory sentence which has the force of a final sen- 1 Bened. XIV., Const, ad Milit,, 45. - Cap. 51 de app. (ii. 28) ; Pierantonelli, p. 160 ; Prael. S. Sulpitii, vol. iii., p. 141. 3 Cap. 5, de app. (ii. 28). < Santi, 1. 2, t. 28, n. 3; arg. cap. 46 de app. (ii. 28). or Appeals. 2CT tence, or inflicts an irreparable injury, or against any act decision, even though extrajudicial, of the superior which imposes an irremediable gravamen. ART. XXXVII. When the Appeal must be Interposed. XXXVII. " Intra terminura decem dierum a notificatione sententiae interpositio appellationis fieri debet, quo elapso tempore sententiae exe- cutio locum habet." 490. Having seen, in the preceding article, what is meant by appeals ; in what cases they can be made ; what is there effect ; it now remains to discuss the manner in which they are made. This mode of appealing is set forth in the de- cree of the S. C. EE. et RR., 1835, and its circular letter of 1851. In accordance with the general law of the Church, * the present article states that the appeal must be interposed before the a quo, within ten days from the time the appellant has received official notification of the sentence. This holds true, not only with regard to appeals from final judicial sen- tences, ol which we here speak, but also of appeals against interlocutory decisions, which either have the force of a fi- nal sentence or inflict an irremediable grievance, and of ap- peals from extrajudicial grievances. 2 491. We sa.y,frotii the time the appellant has received official notification, etc. ; consequently, the ten days are not com- puted from the day the sentence was pronounced, even though the accused was present when it was pronounced, but from the day the official notice of it was served. Thus the decree of the S. C. EE. et RR. of 1835, which the In- struction (art. xxx vi.) lays down as the rule to be followed, says : " Decem dies numerari incipient non a die, quo sen- tentia lata est, sed a die, quo reo vel ejus defensori per cur- 1 Cap. 15 de Sent, et rejud. (ii. 27) ; Cap. 8 de app. in 6 (ii. 15). ; Schamlzg., 1.2, t. 28, n. 71 ; Pellegr., Part, iii., Sect, i., n. 70. 204 Appeals. sorem denuntiata fuit." ( ii.). Observe that these ten days are to be counted as beginning at the very hour the notice was received and as ending at the same hour ten days after- wards, so that if a person were notified of the sentence, for instance, on Dec. 10, at 9 A. M., the ten days would expire on Dec. 20, at 9 A. M. 1 Moreover, these ten days run con- tinuously and without any interruption, and consequently include even Sundays and holidays ; and justly so ; for it is allowed to appeal also on Sundays and holidays of obli- gation. 3 492. We say, even though the accused was present wJien the sentence was pronounced. Here it will be seen that the In- struction has changed the law and custom of former years. For nearly all canonists formerly held that the ten days be- gan to run f rom the very moment the sentence was pronounced, when the accused was present and heard it pronounced.* The Instruction, however, enacts that in all cases, even where the accused is present and hears the sentence, the ten days shall be computed, not from the day the sentence was passed, but from the time an authentic copy or official notice of the sentence was properly delivered to the accused. This is just. For, before a person appeals, he ought to know, not simply the general tenor of the sentence, but also its specific nature, and the reasons upon which it is based. 4 493. If no appeal is interposed within ten days, the appel- lant is regarded as having abandoned his appeal and the sentence becomes resjudicata, and may be forthwith executed. If, however, the appellant can show that he was hindered by a just cause v.g., sickness, poverty, etc., from making the ap- peal within the ten days, he should not be cut off from the 1 Schmalzg., 1. c., n. 72. * Ib. 3 Arg. Cap. 15, de Sent, et re jud. ; Cap. 8 de app. in 6; Bouix, de T u d., vol. ii., p. 282. * S. C. C. in Aritana, Particip. 17 Sep. 1859 ; Pallotini, Coll. v. appellatio, ^ iii., n. 12-15. Appeals. 205 right of appealing, even after the lapse of the above term. 1 For fuller information, see our Elements, Vol. I., nos. /]/|/|, sq. ; Vol. II., Nos. 1207, sq. 494. The appeal must be interposed within ten days before the judge " a quo" that is, before the judge from whose sen- tence the appeal is made, so that he may not proceed any farther in the case, nor execute his sentence. Is it neces- sary that the appeal should be interposed before the judge " a quo " in writing ? Here we must distinguish between two kinds of appeals : First, those which are made against final judicial sentences and also against interlocutory sentences having the force of a final sentence. Second, those which are against interlocutory sentences, that inflict a gravamen which cannot be undone by a final sentence, and also those which are against extrajudicial grievances. Now, appeals of the first kind, namely, against final or quasi-final sentences, can be made viva vocc, when they are interposed the same day the sentence is pronounced ; when they are made after- wards, they must be in writing. This writing or letter to the judge a quo need not assign the grievance or cause of the appeal, nor state anything else but the simple fact that an appeal is taken against the final or quasi-final sentence. For the formula of appeal from final sentences, see Bouix, de Jud., Vol. II., p. 596. 495. But when the appeal belongs to the second class, that is, when it is against an interlocutory sentence, inflict- ing a damnum irrcparabile, or against extrajudicial griev- ances, the appellant must always interpose his appeal in writing, and state (though not prove) at the same time the grievance or reasons on account of which the appeal is made, in order that the judge a quo may himself, if he chooses, redress the grievance. For, as we show in our 1 De Luca, de Jud., disc. 37, n. 29; Pierant., p. 35 ; Pellegr., Part iii., Sect, i., n. 72. 206 Appeals. " Elements," Vol. II., Nos. 1209, the judge " a quo " may him- self correct interlocutory decisions, inflicting an irreparable injury, and redress extrajudicial grievances, even after an appeal has been interposed. And after he has done so, he can proceed in the case, notwithstanding the appeal. The case is different with final or quasi-final decisions. These the judge " a quo " cannot himself reverse or change, since he is functus officio, once he has pronounced them. ART. XXXVIII. Diitics of the Judge " a quo " with Regard to Appeals. XXXVIII. " Appellations interposita, continue Curia ad auctoritatem Ecclesiasticam superioris instantiae omnia acta causae in suis autogra- phis, id est, processum, ejus summarium, defensionem ac sententiam mit- tit." 496. When the Ordinary, that is, the Curia or judge " a quo, " has thus been notified of an appeal against his sen- tence, whether final or interlocutory, in the sense explained, he must suspend the execution of such sentence, and, as the present article expressly enacts, he must forthwith transmit to the superior or judge to whom the appeal is made, all the acts and documents of the cause or trial of the first in- stance, namely, the acts of the trial itself, both informative and probative, its synopsis, the defence, and the sentence. He must send the originals themselves and not merely a copy. 497. Here, then, it will be seen that the procedure marked out by the Instruction, in the present article, differs some- what from that laid down by the sacred canons. First, no mention whatever is made of the apostoli. According to the general law of the Church, as contained in the sacred canons, 1 the appellant was always obliged to ask the judges quo for the apostoli, and that within thirty days, on pain of 1 Can. post appellationem 31, c. 2, q. 6; Cap. 6 de app. in 6 C ; Clem. 2, de app. Appeals. 207 forfeiting his right of appeal, 1 as we show in our Elements, Vol. II., n. 121 1. 498. The judge " a quo" was bound to give the appellant the apostoli or certificate of appeal, and also a copy of all the acts of the cause, which the appellant himself forwarded to the judge ad qucm, or the judge to whom he had appealed. Thus the Council of Trent, sess. 24, c. 20 de Ref., ordains : " Furthermore, should any individual appeal in those cases allowed by law, or lodge a complaint touching any griev- ance, or have recourse, as aforesaid, to a judge. . . . he shall be bound to transfer, at his oiun expense, all the acts of the pro- ceedings that have taken place before the Bishop. . . . Moreover, the notary shall be bound to furnish the appellant, upon payment of a suitable fee, with a copy of the proceedings, as soon as may be, and within a month at the furthest" 499. Instead of all this, the Instruction simply enacts that the judge " a qua " (or curia " a qua,") shall himself forward, and that at once, to the judge ad quern, the entire original acts of the case, thus doing away with the necessity of asking for or giving the apostoli. Consequently these apostoli seem to be entirely abolished by the present Instruction* In fact, as we say elsewhere, these apostoli had long ago fallen into disuse, if not universally, at least in many ecclesiastical courts. Our Elements, Vol. I., p. 425. 500. Secondly, in former times, the judge " a quo " was obliged to send merely a copy of the acts : now he is bound to forward the originals themselves. Observe, the Instruction says that " omnes actus causoe," must be sent to the judge ad quern. Hence, as Cardinal de Luca teaches, 3 the entire acts and proceedings of the first instance, and consequently, not only those which are material and relevant, but also those which are immaterial or irrelevant, provided, of course, they 1 Schmalzg., 1. 2, t. 28, n. 75. * Rota, 1. c., p. 536. 3 De Jud. Disc. 35.37, n. 37, 38. 208 Appeals. belong to the case, must be forwarded, in their entirety, to the jndcx ad qucm. In accordance with this rule, the Instruction not only says " omnia acta," but moreover specifies the various acts themselves, which must be forwarded to the judge ad quern, namely, (a) the processum, that is, all the acts of the trial, 1 namely, the citations, delays asked and granted, challenges against the judge, exceptions made by the ac- cused, the indictment or charges preferred by the diocesan prosecutor, the plea or contestation of the accused, the proofs submitted on both sides, such as the testimony of the witnesses, 3 and all the other steps or proceedings of the trial ; 8 (b) the synopsis of the trial made out by the auditor ; (<:) the defence ; (a 7 ) the sentence. 501. Q. Can the metropolitan or judge, to whom an appeal has been interposed, proceed to hear and decide the case appealed, even though the acts of the first instance have not been forwarded to him ? A. The rule is, that he cannot, and that if he, nevertheless, does proceed without these acts, his whole procedure is null and void. 4 The reason is, that he should principally judge from the acts of the first instance, whether the sentence or decree or decision of the judge a quo is to be confirmed, or amended, or reversed. We say, 5 the rule is ; for where the judge a quo is guilty of culpable delay in sending the acts, or in any other way raises obstacles against the entire acts being delivered to the judge ad qucm, or even refuses to send them, the metropolitan or judge ad qucm can con- demn him to pay double the cost of the trial, 6 and proceed to adjudicate the case appealed to him, without the acts, and solely on the ex parte papers or proofs submitted by the appellant. 1 1 Arg. Cap. quoniam II de prob. * Leur. For. Eccl., 1. 2, t. 28, q. 1081. 3 Our Elements, vol. ii., n. 925. Card, de Luca, de Jud. Disc. 37, n. 34. 5 Leur., 1. c., q. 1081. c Cone. Trid., sess. 24, c. 20 de Ref. 7 Const, ad Militanlis, 44; Card, de Luca, 1. c., n. 41. Appeals. 209 502. Observe also that the Ordinary or superior a quo is bound to forward the acts of the case to the metropolitan or judge " ad quern," not only when the appeal is judicial and suspensive, but also when it is extrajudicial and merely dci'olutivc. This is plainly stated by the Council of Trent, sess. 24, c. 20, de Ref. ART. XXXIX. Rights and Duties of the Judge " ad quern" in Regard (a) to Receiving the appeal; (U) Issuing Inhibitions ; (c) Revoking A ttentates. i. Admission of the Appeal. XXXIX. " Haec porro superioris instantiae auctoritas appellations cognita appellant! injungit, ut intra triginta dies defensorem deputet, qui ab ipsa approbandus est." 503. This and the two succeeding articles point out the rights and duties of the judge to whom the appeal is made. When the judge " ad quern " has received the above acts and documents from the judge " a quo," or also the letters of appeal, together with an authentic copy of the sentence, from the appellant, and has ascertained, by an inspection of these documents, that the appeal is in form, 1 that is, has been interposed (a) by the proper person, () within ten days, (c} against a final sentence, (d} or one having the force of a final sentence, (e) or from a gravamen which cannot be remedied by a final sentence, he shall forthwith admit the appeal, and that " in suspensivo," and then notify the appel- lant that within thirty days he must appoint his counsel, who is to be approved by this same judge "ad quern." 504. From this it will be seen that the rights and duties of the judge " ad quern," as outlined in the Instruction, vary in several respects from the rights and duties of the same 1 Card. Kutschker, Eher. vol. v., p. 947. 2io Appeals. judge, as defined in the sacred canons. Thus according to the common law of the Church, the judge " ad quern," has no power to fix the time within which the appellant must introduce the appeal before him or his court. 1 On the con- trary, the law vests this power in the judge " a quo," or in case the latter does not fix the time, leaves the appellant free to introduce his appeal before the judge " ad quern," at any time within a year, or according to some, six months from the date the appeal was first made, as we show in our Elements, Vol. II., n. 1213. 505. The Instruct rescinds all this, and vests the judge " ad quern " with the right and duty to fix the time- namely, thirty days, within which the appellant must ap- point his advocate, and thus introduce his appeal before him. Hence the appellant is no longer free, as he was formerly under the common law, to choose his own time, within a year, nor does the judge " a quo " seem to have, any longer, the right to fix the term for introducing the ap- peal before the judge " ad quern." 506. We have said, when the judge " ad quern "... has ascertained by an inspection of these documents, etc. ; for it is plain that he cannot admit a suspensive appeal except in those cases where, as we have shown above, it is allowed to make such appeals. Now, how is the judge " ad quern " to find out whether the appeal brought before him is in reality made against a final sentence, or a quasi-final sentence, or an irreparable gravamen? Evidently from the public docu- ments submitted to him, namely, from the acts of the case sent him by the judge " a quo," or from the authentic copy of the sentence forwarded to him by the appellant. All this is expressly enacted by Pope Benedict XIV., in his Const, ad Militant is, which is, word for word, to be regarded as our law, in these words : " Appellationes (i.e., in suspen- 1 Schmalzg., 1. 2, t. 28, n. 87. Appeals. 2 1 1 sivo) autem non recipiantur, neque inhibitiones vigore il- larum concedantur, nisi prius constiterit, quod nedum per legitimam personam, et intra legitima tempore vere appella- tum fuerit ; sed etiam, quod appellatum fuerit a sententia definitiva, vel habente vim definitivEe, aut a gravamine quod per definitivam sententiam reparari non possit : idque per publica documenta, quas realiter in Actis exhibentur. Tune enim, et non antea, judici, ad quern appellatum fuerit, in causa se intromittere, liceat." 1 The same is enacted also by the decree ad tollendas of the S. C. EE. et RR., 1600, III., which decree is re-enacted in the Const, ad Militantis, 45. 507. Observe it is here expressly decreed that the judge " ad quern " shall, before admitting the appeal, ascertain, by the inspection of public documents, that the appeal is from a final sentence, etc. These public documents consist, as we have seen, in the acts of the case transmitted by the judge " a quo," or also in the authentic copy of the sentence for- warded by the appellant. But suppose the judge " a quo " fails to send the acts of the case, and the appellant asserts that he has been refused an authentic copy of the sentence, what is to be done ? It is sufficient for the appellant to pre- sent to the judge " ad quern " a simple unauthentic copy of the sentence or decree. Whereupon the judge " ad quern " can admit the appeal " in suspensive," and if need be, issue inhibitions to the judge " a quo." This is expressly enjoined in the Const, ad Militantis, 44 : " Quod si appellans asserat, sententiae aut Decreti exemplum authenticum culpa judicis a quo, vel Notarii, sive actuarii, habere non posse, tune sal- tern copiam simplicem sententias seu Decreti, in actis pro- ducere teneatur, ejusque tenori, in literis inhibitorialibus in- serto adjicienda erit, prout adjici volumus et mandamus, in earum corpore expressa conditio : Quatenus tamen tenor insertus vere, et in substantialibus cum Originali concordet, ! 43- 2 1 2 Appeals. eodemque Original! prassentes literas sint in tempore pos- teriores, alioquin nullas, et irritse censeantur." 508. In order to understand the rights and duties of the judge " ad quern " more fully, it is necessary to bear in mind that appeals are either judicial or extrajudicial ; that judicial appeals are subdivided into those which are made against (a) a final sentence, (ft) or an interlocutory sentence having the force of a final sentence, (c] or inflicting an irreparable gravamen. 509. When a judicial appeal is made to the judge " ad quern " against a final sentence or an interlocutory decision, which is equivalent to and therefore has the force of a final sentence, the duty of the judge " ad quern " is simply to in- spect the public documents submitted to him, namely, the acts of the case forwarded by the judge " a quo " or the copy of the sentence transmitted by the appellant, and to see whether the decision complained of in the appeal is really a final or quasi-final sentence. As soon as he finds that the sentence is final or quasi-final, he can and should at once admit the appeal, and notify the appellant to appoint his advocate within thirty days. He can also forthwith, if need be, issue the inhibitions to the judge " a quo " and revoke all attentates. Hence, in making this kind of appeal the appellant need not express, either to the judge a quo or judge ad quern, the grievance or cause on account of which he appeals. All that he need say is that he appeals from such or such a sentence. Nor is the judge " ad quern " obliged to examine whether there is reasonable cause or ground for appealing. See our Elements, Vol. II., n. 1215. 510. But when an appeal is made against an interlocutory decision which it is claimed by the appellant inflicts an irreparable grievance, the case is somewhat different. Here the judge " ad quern " must ascertain from the public documents submitted, namely, the acts of the case, or the authentic copy of the decree, or in default of these, a simple unauthentic copy Appeals. 2 1 3 of the sentence first, that the grievance alleged to have been inflicted by the intermediate decision is " de jure " an irrep- arable one i. e., one which the law, either expressly or tacitly, regards as irreparable ; second, that the grievance has been in reality inflicted. Hence, also the person who appeals against such interlocutory sentences must, in his letter of appeal to the judge " ad quern," state (a) the cause of his appeal i.e., he must name the grievance ; (b) he must show that the law, either expressly or tacitly, regards it as an irreparable one ; (c) he must also prove that it was really inflicted. 511. When the judge " ad quern " finds and decides that the interlocutory grievance in the case subsists in law and in fact i.e., has been really inflicted and is one of those con- templated in law as irreparable, the whole case, that is, not only the interlocutory grievance, but also the entire main cause itself, devolves upon him, in such a manner that the jurisdiction of the judge " a quo " becomes suspended, and he cannot proceed any farther in the case. 1 512. Finally, when the appeal is interposed against an extra- judicial act or grievance, it is necessary to distinguish be- tween those grievances which inflict an irreparable grava- men i'.g., the threat of inflicting a censure and which con- sequently admit of a suspensive appeal, and those which do not inflict an irreparable grievance and therefore admit only of a devolutive appeal, namely, the cases enumerated in the Const, ad Militantis of Benedict XIV. Now the judge " ad quern " cannot admit a suspensive appeal interposed against an alleged irreparable extrajudicial grievance, until after he has inspected the acts or documents of the case, and ascer- tained from them that the grievance has really been inflicted and is irreparable. For this purpose he can and should ask, and if need be, order the judge or superior " a quo " to send 1 Cap. 59 de app. ; Ruff., 1. 2, t. 28, n. 235. 214 Appeals. him the acta of the case, and meanwhile forbid him to proceed any farther in the case. This is expressly ordained by Pope Benedict XIV. in his Const, ad Militantis? which is at present obligatory, also with us. The words of the Constitution ( 45) of the immortal Pontiff, are : " Cum vero a gravamine, quod per definitivam reparari nequit, appellatum fuerit . . . ubi agatur de censuris jam prolatis, vel de cumminatione carcerationis, 2 Torturas, 8 aut censurarum, obsevetur omnino dispositio Decretorium Congregationis Episcoporum sub rec. mem. Clemente VIII. , juxta additiones, et declarationes piae mem. Benedict! XIII." 513. The decrees of the S. Congregation of Bishops and Regulars here referred to, are : " VIII. In causis vero Visitationis Ordinariorum aut cor- rectionis morum appellationes quoad effectum devolutivum tantum admittantur, nisi de gravamine per definitivam irre- parabili agatur ; vel, cum Visitator, citata Parte, et adhibita causae cognitione, Judicialiter procedit : tune enim appella- tioni locus erit, etiam quoad effectum suspensivum." " IX. Cum a gravamine, quod per definitivam reparari nequit, ut indebitae carcerationis vel torturae, aut excommu- nicationis, etiam comminatas, appellatur : nonnisi visis actis, ex quibus evidenter appareat de gravamine, appellatio admittatur, aut inhibitio vel provisio aliqua concedatur." The additions and declarations of Pope Benedict XIII., mentioned in 45 of the Constitution ad Militantis are given in the additions ad IX. Decrctum, and quoted by us below. 514. We have said, has been really inflicted and is irreparable ; for, the question as to whether the grievance has beenjustfy 1 45 ; Decr.S. C. EE. et RR., 1600, $ ix.; Add. Bened. XIII. ad ix. Deer. 2 Ecclesiastical imprisonment is not, strictly speaking, in vogue with us. We say, strictly speaking ; for confinement in a monastery, which is equivalent to carceratio, may be and is in use with us. 3 Torture proper is now out of use, in ecclesiastical proceedings, almost every- where. Appeals. 2 1 5 inflicted or not, that is, the question whether the offence or cause for which it was inflicted was really committed, and if so, whether it was sufficiently grave to warrant the grava- men, is reserved for the consideration of the judge " ad quern " after he has admitted the appeal, and which is de- cided by him only after the appeal has been tried and when final sentence is to be pronounced upon the merits of the case appealed. 515. Before admitting an extrajudicial appeal which has merely a drcohttive effect, the judge "ad quern" should in- deed be certain that the case appealed to him is one that admits of such appeal, but it is not prescribed that he must derive this certainty from the Act a of the cause, or other public documents, as in the case of suspensive appeals. All this will be better understood by a glance at the formulas of appeals against interlocutory sentences and irreparable grievances, as given in Pellegrino, p. 262, and Bouix, de Jud., Vol. II., p. 594, 599, 2. Inhibitions. 516. As soon as the metropolitan or judge "ad quern" has ascertained, by a simple summary and extrajudicial in- spection of the above public documents, or of a simple, un- authentic copy of the sentence, or decree where, owing to the fault of the judge " ad quo," the public documents can- not be had, that the sentence or decree, against which the appeal is interposed, is really final or an interlocutory de- cree which has the force of a final sentence, or inflicts an irremediable grievance, or is an extrajudicial irreparable gravamen, he can forthwith issue inhibitions (inhibit ioncs, litterce inhibitorialcs) to the judge " a quo," forbidding him to proceed any farther in the case, or to execute his sentence or decree. 1 Nay, he has not only the right, but also the 1 Cap. Romana 3, de app. in 6 C , 3614; Cf. Schmalzg., 1.2, t. 28, n. 100. 2 1 6 Appeals. duty and obligation of sending this prohibition, whenever the appellant, in the above cases, fearing lest the judge " a quo," notwithstanding the suspensive appeal interposed, will pro- ceed further in the case, and therefore petitions the judge " ad quern " to issue the inhibitions. 1 From this it will be seen that the same conditions which authorize the judge " a quern " to receive the appeal " in suspensive," empower him also to grant the inhibitions. This is plainly laid down in the Con- stitution ad Militantis of Benedict XIV. 43, 44, as follows : " Appellationes (in suspensive) autem non recipiantur, nequc inhibitiones vigore illarum concedantur, nisi prius constiterit, quod nedum per legitimam personam, et intra legitima tem- pora vere appellatum fuerit : sed etiam, quod appellatum fuerit a sententia definitiva," etc. 517. When there is question of an appeal from an extra- judicial gravamen, which is irremediable v.g., the threat of the Ordinary to inflict a censure upon a subject the judge " ad quern " can admit the appeal and issue the inhibi- tions only visis actis i.e., only after he has inspected the public and authentic acts or proceedings of the superior " a quo." Thus the Decree of S. C. EE. et RR. 1600, which Pope Benedict XIV. " re-enacts, says : 3 " Cum a gravamine quod per definitivam reparari nequit, ut excommunicationis etiam comminatas, appellatur nonnisi visis acti sex quibus evidenter appareat de gravamine, appellatio admittatur, ant inhibitio vel provisio aliqua concedatur." 518. For this purpose, the judge " ad quern " has the right to compel the judge " a quo " to forward him the Acta- Thus Pope Benedict XIII. ordained in the Roman Council, held in 1725 : " In causis vero comminatce . . . excommuni- cationis, sanctitas sua declarat et mandat, ut non expedian- tur inhibitiones generates indefinitse, scdtantnm compulsoriales pro transmissionc copice actoruin, ad effectum cognoscendi an 1 Bouix, 2 > 3- 244 Other Questions Treated by the Instruction. be not shown that he was actuated by malice or ill-will. 1 For a person who calls another into court for crime, ought to have sufficient proofs ready, and not to rush into court without good and solid reasons for believing the accused guilty. Hence, all persons who make a judicial charge, except, where they do so by virtue of their office, and who fail to prove it, are by that very fact, and without any further proof whatever, regarded by the law of the Church, as guilty of malicious accusation, and unless they can legally prove (and the burden of proof lies upon them) the absence of malice, they incur the same penalties as though they had been legally shown to be guilty of malice. 3 579. We say, except where they do so by virtue of 'their office ; consequently a diocesan prosecutor (pro curator fiscalis) who fails to establish the charge preferred by him is not pre- sumed by the law of the Church guilty of malicious prose- cution from the sole fact of his having failed to prove the guilt of the accused. For, the fact that he makes the charge, not altogether of his own free choice, but rather be- cause he is obliged to do so by virtue of his office excuses him from presumptive calumny (calumnia pr&sumptd) though not from real or true calumny (calumnia verd)? Hence, in order that an episcopal curia, or ecclesiastical judge, or dio- cesan prosecutor can be regarded as guilty of malicious prosecution, and punished accordingly, v.g., obliged to pay the expenses of the trial, and also damages it is not sufficient that they should fail to prove the guilt of the ac- cused ; it must, moreover, be shown that they were actu- ated by ill-will, or that they made the charge inconsiderate- ly and rashly, i.e., without having previously, namely in theflrocessus informativus, obtained sufficient proof for be- 1 Such a one is styled calumniator prasiimptus, and his accusation calumnia pre juridically established. This principle is founded upon natural justice. For, the dismissal, even of a removable rector is a privation of office, and consequently also of the honor, position, dignity, and emoluments connected with the office. Hence the dismissal inflicts plainly both disgrace and pecuniary loss, and is therefore a. punishment, nay, a punishment of the gravest kind. Now, as a rule, there can be no punishment where there is no crime ; and no crime has any existence, in the eyes of the law of the church, unless its existence has been estab- lished by a trial. See our Elements, Vol. I., n. 418. sq. 6th. Edition. We have said, as a rule ; for the exception, see our Elements, Vol. I., n. 419. Edition 6th. 592. Against this, it may be objected that if our teaching is correct, there would be seen to be no longer any differ- ence between our removable and irremovable rectors. For the answer to this objection, see our Elements, Vol. I., n. 418, Sixth Edition, thoroughly revised in accordance with the Third Plenary Council of Baltimore. 2. Transfer of Rectors, who are not Irremoi>able. 593. It is certain, as we have seen, from the aim of the Sacred Congregation, and the title of the present Instruc- tion, as compared with the title of the Instruction of July 20, 1878, that the former extends to the same cases as those to which the latter applied. Consequently the Instruction of 1884 has the same bearing upon the transfer of our re- movable rectors, which the Instruction of 1878 possessed. Now the bearing of the latter document upon the transfer 1 See our Elements, vol. I., n. 418. Ed. 6th. 1887. 252 Present Status of Our Rectors. in question is thus stated by the Holy See itself : ' Episcopi vero curent, ne sacerdotes sine gravi et rationabili causa de una ad aliam missionem invitos transferant." J This con- clusion is also based on the fact that; the S. C. de Prop. Fide, in the present Instruction, (art. xlv.) defines the status of our removable rectors, in the very same terms in which it defined it in the authentic explanation of the Instruction of July 20, 1878." 594. This law, to wit, that even removable rectors should not be transferred, withoiit grave and reasonable cause, is in harmony with the entire legislation of the church. For as we show elsewhere, the sacred canons enact that ecclesi- astics, even though they are amovibiles and even though they are not rectors of souls, shall not be transferred without grave cause. While this law applies to all ecclesiastics, it applies with peculiar force to a rector of souls, who should knozc his people, be a father to them, and who should therefore be changed or transferred as little as possible. See our Elements, Vol. I., n. 395. Sixth Edition. 595. This law holds good, especially when the transfer is against the will of the incumbent. For, to one who is willing, everything is easy ; whereas to one who is unwilling every- thing is impossible. Hence such a transfer without grave and sufficient cause would be beneficial neither to the person transferred, nor to the church to which he is transferred. And yet the law of the church expressly ordains that trans- fers, especially involuntary, are allowed only when they are either necessary or useful either to the person transferred or to the place to which he is transferred. See our Elements, Vol. I., n. 392. Sixth Edition. 596. It is moreover certain that the transfer of rectors who are amovibiles, when made for grave and reasonable causes of utility and necessity, which are not crimes, must take place in 1 S. C. de P. F. Responsum ad dubia. 2 See our Elements, Vol. II., n. 1536. Present Status of Our Rectors. 253 such a manner as not to inflict dishonor, humiliation, dis- grace, pecuniary loss or other grave injury upon the person transferred. 1 In the estimation of all mankind, a transfer to a worse or inferior place is regarded as a humiliation and a disgrace, just as the transfer to a better place is looked upon by all 2&2i promotion and an honor. Moreover such transfer naturally brings with it also a diminution of income ; for the smaller the place is, the smaller will naturally be the salary or perquisites of its incumbent. Now to inflict dishonor and disgrace and pecuniary loss is a. punishment, and should, as a rule, be inflicted only for crimes, or offences, which make a person unworthy of his reputation, and of the esteem of others. Consequently the transfer to an inferior congre- gation of a removable rector should take place, as a rule, only in punishment of delinquencies. See our Elements, Vol. I., N. 394. Sixth Edition. See also the third volume of our Elements, which will soon be published, and treat at length of dismissals, transfers and other ecclesiastical punishments. 597. This teaching is clearly pointed out by the Second Plenary Council of Baltimore, in decree N. 125. where it ex- horts Bishops to transfer rectors, only for grave causes, and according to their merits or demerits. It is also contained in the following enactment of the Fourth Provincial Council of New York : 2 " Juxta mentem sacrorum canonum, atque ratione habita recentiorum dicisionum S. Cong, de Propa- ganda Fide, decernimus, praster alias causas sufficientes ad transferendos rectores, (amovibiles) ab una missione ad aliam, etiam minoris nem. Benedicto XIII. etiam Prsedecessore Xostro in Appendice Concilii Romani ; aliisque Apostolicis Constitutionibus, hac de re alias editis, et innovatis, et praesertim Constitutioni pias mem. Gregorii XV., quse incipit : Inscrutabili, sub Datum Romae apud Sanctum Petrum Anno Incarnationis Dominicae MDCXXII. nonis Februarii. 5. Districte pnecipimus, et mandamus, ne deinceps ab exequutione Decretorum dicti Sac. Concilii Tridentiui, in omnibus illis causis, et negotiis, in quibus exequutio, liujusmodi Episcopis, et Locorum Ordinariis, etiam uti Sedis Apostolicfe Delegatis, ab eodem Sacro Concilio, vel dictis Apostolicis Constitutionibus, appellatioue, vel inhibitione quacumque postposita commissa est, appellatio aliqua in Tribunalibus prte- dictis recipiatur, vel Inhibitiones, Citationes generales, vel speciales, cum Commissi- one inserta, Monitoria, et alia hujusmodi, per quae dictorum Decretorum exequutio retardetur, aut Processus ad ulteriora in eadem exequutione supendatur, aut impediatur, quoquo modo concedantur. Appendix, 267 6. Itaque a quibuscumque Mandatis, prohibitionibus, provisionibus, et statutis tarn in Visitatione, quam extra, pro Divino Cultu conservando, et augendo et preesertim circa ea quse observanda, et evitanda sunt in celebratione Missse, aut alio quovis modo respiciunt exequutionem Decreti Sac. Concilii Sess. 21 de Reform, cap. 8., et sess. 22. in Decret. de observ. et evit. in celebrat. Miss. Item a Decretis cogeutibus Clericos tarn Saeculares, quam Regulares, etiam Monachos, et exemptos ad publicas Processiones, servata tamen forma Constitutionis san. mem. Pii V., quae incipit : Et si Mendicantium : Prout etiam a Decretis. et provisionibus super praecedentia inter Personas Ecclesiasticas, tarn Sseculares, quam Regulares in eisdem Processionibus, vel associatione Defunetoruin, delatione Umbel- la?, et hujusmodi : Xecnon super observations Censurarum, etiam Episcopalium, et Festorum Dioacesis, juxta dispositionem ejusdem Sacri Concilii sess. 25, de Regular. cap. 12 et cap. 13. 8. Item in omnibus iis, quae ad curam Animarum, et Sacramentorum adminis- trationem quoquo modo pertinent, et prsesertirn adversus Monitiones, Censuras, aut alias provisiones, per quas Parochi aut alii Curam animarum exercentes, diebus saltern Dominicis, et Festis Solemnibus Plebes sibi commissas salutaribus verbis pascere compelluntur, docendo ea, quae ad salutem necessaria sunt, juxta Decretum - : Concilii sess. 5. de Reform, cap. 2. 9. Item adversus deputationem Yicariorum etiam perpetuorum, cum assig- natione congruse. per quos Cura Animarum exerceatur, quoties plura Beneficia curata ex Dispeusatione 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 pnescriptum dicti Sacri Concilii sess, 7. de Reform, cap. 5., et cap. 7., et juxta Constitutionem san. mem. Pii V., quae incipit : Ad exequendum. j; 10. Item adversus Yisitationem Beneficiorum Curatorum, ut supra, perpetuo unitorum, necnon quammcumque Ecclesiarum quomodolibet exemptarum, prout etiam adversus Decreta, et provisiones ab Ordinario capiendas, ut quae in eis repara- tione indigent, reparentur, et Cura Animarum, si qua illis imminet, aliisque debitis obsequiis minime defraudentur, juxta dispositionem Sacri Concilii eadem sess. 7. de Reform, cap. 8., et sess. 21. cap. 7. 11. Item a Decretis, seu Mandatis, per quaj Episcopi, etiam uti Apostolicte Sedis Delegati, in Ecclesiis Parochialibus, aut Baptismalibus, in quibus Populus ita numerosus est, ut unus Rector non possit sufficere Ecclesiasticis Sacramentis ministrandis, et Cultui Divino peragendo, cogant Rectores, vel alios, ad quos pertinet, sibi tot Sacerdotes ad hoc munus adjungere, quot:sufficiant ad Sacramenta exhibenda, et Cultum Divinmn celebrandum : Aut etiam invitis Rectoribus, proce- dant ad constitutionem novarum Parochiarum, cum assignatione competentis portionis, ubi ob locorum distantiara, sive difficultatem, Parochiani, sir.e magno iucommodo, ad percipienda Sacramenta, et Divina Officia audienda accedere non possunt. vel denique propter paupertatem, et in creteris casibus a jure pennissis, deveniant ad uniones perpetuas aliorum Beneficiorum simplicium, non tamen Regu- 268 Appendix. larium, juxta dispositionem Sacri Concilii sess. 21. de Reform, cap. 4., et cap. 5.. et sess. 24. similiter de Reform, cap. 13. 12. Item a deputatione Coadjutorum, aut Yicariorum pro tempore, vel aliis provisionibus ab Episcopo capiendis, etiam tamquam Apostolicae Sedis Delegate, quando illiterati, et imperiti Parochialium Ecclesiaram Rectores sacris minus apt! sunt officiis, cum assignatione partis fructuum pro sufficient! illorum victu : Necnon a suspensione, atque etiam a privatione illorum, qui turpiter et scandalose vivunt, et postquam praemoniti sunt, in sua nequitia incorrigibiles perseverant, juxta prsescrip- tum ejusdem Concilii sess. 21. de Reform, cap. 6. 13. Item a translatione Beneficiorum simplicium, etiam Jurispatronatus, ex Ec- clesiis, quae vetustate, vel alias collapsa? sint, et ob eorum inopiam nequeant install - rari, 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 Ec- clesiarum Parochialium servata forma Sacri Concilii sess. 21. cap. 7. 14. Item a censuris, sequestratione, et subtractione fructuum, aut aliis quibus- cumque provisionibus, pro cogendis ad residentiam Parochis, cancrisque omnibus, quibus Cura Animarum incumbit, juxta Decretum ejusdem Sacri Concilii sess. 2?>. de Reform, cap. 1. 15. Item a denegatione, revocatione, suspensione, vel restrictione, et limitatione facultatis audiendi Confessiones, respectu eorum, qui Parocliiale Beneficium non obtinent, etiam si fuerint Regulares, pro excipiendis Confessionibus Saeculariura, juxta ordinationem Sacri Concilii sess. 23. cap. 15., et Prcedecessorum Xostrorum Constitutiones, ac praecipue illam f el. rec. Clementis X., quae incipit : Superna. 16. Item in illis Civitatibus aut locis, ubi vel Parochiales Ecclesise certos non habenl fines, nee earum Rectores proprium Populum, quem regant, sed promiscue petentibus Sacramenta administrant, vel etiam nullse sunt Parochiales, a divisione, seu distinctione Parochiarum earumque ordinatione, sive institutione in titulum perpetuum juxta Decretum Sacri Coucilii sess. 24. de Reform, cap. 13. 17. Item a deputatione Vicarii, vel Oeconomi, cum assignatione Congruje, pro tempore, quo vacat Ecclesia Parochialis : Prout etiam ab indictione Concursus, relatione examiuatorum, necnon prseelectione, et provisione Episcopi in eodem Con- cursu juxta definitionem Sacri Concilii eadem sess. 24. de Reform, cap. 18. 18. Item a Mandatis, seu Decretis inhibentibus praxlicationem, vel publicas lectiones, aut coercentibus, vel punientibus quoscumque, etiam exemptos tarn Siecu- lares, quam Regulares, qui in alienis Ecclesiis, quae suorum Ordinum non sunt, abs- que Episcopi licentia, et in Ecclesiis suis, aut suorum Ordinum, non petita illius benedictione, aut ipso contradicente, praadicare praesumpserint ; juxta Decretum Sacri Concilii sess. 5. de Reform, cap. 2., et sess. 24. similiter de Reform, cap. 4., et constitutionem pise mem. Gregorii XV., quae incipit : Inscrutabili fin. una cum declarationibus contends in Constit. Clementis PP. X., quae incipit: Superna. 19. Et generaliter in omnibus iis, qua; pertinent ad Curam Animarum, ct rectam Sacramentorum administrationem, adversus visitationem, correctionem, ccercitionem Appendix. 269 et quascumque alias provisiones Kpiscopi Dioecesani, etiam quoad exemptos, sive Sseculares, sive Regulares, juxtalaudatamConstitutionem Gregorii XV., qureincipit: Instructabili. 20. Item adversus quascumque Provisiones, et Decreta pro conservanda, aut restituenda clausura Sanctimonialium, aut pro correctione, seu punitione eorum, qui circa Pcrsonas intra Monasteria degentes, aut circa Clausuram, vel circa Bonormn administrationera deliquerint. Prout etiam ab examine pro approbatione, vel repro- batione Confessariorum sive Regularium, sive Sajcularium, quomodocumque exempt- orum, ct tarn ordinariorum, quam extraordinariorum, pro excipiendis confessionibus Monialium, etiam Regularibus subjectarum. Itidemque a Decretia vel aliis quibus- cumque provisionibus cogentibus Administratores, sive Sajculares, sive Regulares quomodolibet exemptos, ad reddeudam singulis anuis rationem Bonorum ad Monaa- teria Sancti-Monialium hujusmodi pertinentium : Ac demum a quibuscumque De- cretis super amotione Capellanorum, Sacristarum, et aliorum quorumcumque Officialium, et Ministrorum, tarn Ssecularium, quam regularium ipsis Monialibus, ve] eorum Ecclesiis inservientium, juxta dispositiouem Sacri Concilii sess. 25. de Regu- lar, et Monial. cap. 5., cap. 9., et cap. 10. servata tamen, quoad Regulares, et exemp- tos, forma prredictaa Constitutionis rec. mem. Gregorii XV., quae incipit: Inscruta- bili. 21. Item adversus pastoralem Visitationem Dioacesis, et prsesertim Monasteri- orum, Commendatorum. Abbatiarum, Prioratuum, et Praepositurarum, in quibus non viget Regularis Obscrvantia, necnon Beneficiorum, tarn Curatorum, quam non Cura- torum, Stecularium et Regularium qualitercumque commendatorum, etiam exemp- tomm: Prout etiam ab exequutione eorum, quse in ipsa Visitatione maudata, decreta, aut judicata fuerint. Necnon similiter a quibuscumque Decretis, Provision- ibus, etiam extra Visitationem, pro conservatione vel Reparatione Ecclesiasticae Discipline, quoad vitam, mores, et honestatem quorumcumque Clericorum, luxuir., commessationes, choreas, lusus, crimina, et saecularia negotia fugienda, atque evitauda ; juxta plura Decreta dicti Sacri Concilii, et pnesertim sess. 6. de Reform, cap. 4. sess. 13. cap. 1. sess. 14. cap. 4. sess. 21. cap. 8. sess. 22. cap. 1., et cap. 8., et sess. 24. cap. 10. ad formam tamen Decretorum Sac. Congr. Episcoporum de mandate san. mem. dementis VIII. editorum Ann. MDC. ?: 22. Item a Decretis cogentibus Pra?sentatos, electos, vel nominates a quibusvis Ecclesiasticis Personis, etiam Nostris et Sedes Apostolicie Nuntiis, ad qufevis Ec- clesiastica Beneficia, ad se subjiciendum examini ordinarii, antequam instuantur, confirmentur, vel admittantur, quaemadmodum cavetur sess. 7. de Reform, cap. 13. .5 23. Item a denegatione Sacrorum Ordinum, vel adscensus ad alios majores ; prout etiam adversus suspensionem ab Ordinibus jam susceptis, ob crimen occultum, sive ex informata conscientia, juxta dispostionem Sacrii Concilii sess. 14. de Reform, cap. 1., et cap. 3., et sess. 21. cap. 1., et sess. 23. cap. 16. 24. Item a pra?fixione termini, intra quern Regularis Episcopo non subditus, qui intra claustra Monasterii degat, et extra ea ita notorie deliquerit, ut Populo scandalo sit. a suo Superiore puniri debeat, ac de punitione ipse Episcopus certior fieri, juxta 2 70 Appendix. Decretum Sacri Concilii sess. 25. de Regular, cap. 14., et Const, fel. recor. dementis PP. Till., qua; incipit: Suscepti muneris: Necnon adversus punitionem, et cor- rectiouem eorumdem Regularium, qui circa Personas intra septa degentes, aut circa Clausuram ipsain deliquerint; juxta prjedictam Constitutionem Gregorii XT., quae incipit : Inscrutabili. 25. Item a Censuris, aut aliis provisionibus contra Concubinarios, et prsesertim Clericos etiam retinentes domi, aut extra, Mulieres suspectas, juxta prsescriptum Sacri Concilii sess. 24. de Reform. Matrim. cap. 8., sess 26. de Reform, cap. 14. 26. Item adversus privationem Privilegii Fori, et alias provisiones contra Cleri- cos non incedentes in habitu, et tonsura, et in aliis casibus a Sacro Concilio prae- scriptis sess. 14. de Reform, cap. 6., et sess. 23. similiter cap. 6. 27. Prout etiam ab examine, approbatione, vel reprobatione Patrimonii Sacrii, Pensionis Ecclesiasticse, aut beneficii, quoad Clericos protnovendos ad Sacros Ordi- nes ; juxta dispositionem ejusdem Concilii sess. 21. de Reform, cap. 2. 28. Item adversus convocationem Capituli, quarn faciat Episcopus ad aliquid de- liberandum, et juxta vota ipsorum Capitularium concludendum, quoties de re ad su- um, vel suorum commodum spectante non agatur, juxta Decretum Sacri Concilii sess. 25. de Reform, cap. 6. 29. Item a Mandatis, seu Decretis super conversione tertiaj partis fructuum, et quorumcumque proventuum, et obventionum, tarn Dignitatum, quam Canonicatuum Personatuum, portionum, et officiorum, in distributiones quotidianas, earumque divi- siones inter Dignitates obtinentes, et cseteros Divinis interessentes, in Ecclesiis tarn Cathedralibus, quam Collegiatis, in quibus nullse eunt distributiones hujusmodi quo- tidiana;, vel ita tenues, ut versimiliter negligantur ; juxta Constitutionem ejusdem Concilii sess. 21. de Reform, cap. 3., et sess. 22. similiter de Reform, cap. 3. 30. Item adversus exercitium facultatum Episcopis competentium super execu- tione omnium piarum dispositionum, tarn in ultima voluntate, quam inter vivos. in casibus a Jure concessis, juxta dispositionem Sacrii Concilii sess. 22. de Reform. cap. 8. 31. Item a Tisitatione Hospitalium, Collegionim quorumcumque, et Confrater- nitatum Laicorum, Eleemosvnarum, Montium Pietatis, sive Charitatis, et omnium Piorum Loconun, quomodocumque nuncupatorum, etiamsi eorum Cura ad Laicos pertineat, aut exemptionis Privilegio sint nmnita : Ac denique a cognitione, et exe- quutione eorum omnium, qua? ad Dei Cultum, aut animarum salutem, seu Pauperes sustentandos institute sunt juxta dictum Decretum Sacri Concilii sess. 22. de Re- form, cap. 8. 32. Item a Decretis, seu Mandatis cogentibus Administratores, tarn Ecclesiasti- cos, quam Laicos, etiam exemptos. Fabrica? cujusvis Ecclesia?, etiam Cathedralis Hospilalis, Confraternitatis. Eleemosyna;, Montis Pietatis. et quorumcumque Piorum locorum, ad reddendam singulis annis ipsi Ordinario rationem sure admiuistrationis, nisi aliud in institutione et ordinatione talis Ecclesia?, seu Fabric* expresse cautum fuerit; juxta Decreta Sacri Concilii sess. 7. de Reform, cap. 15., sess. 22. cap. 9, et sess. 25. cap. 8. Appendix. 271 33. Item a Decretis compellentibus Notaries, etiam Apostolica, Imperiali, aut Regia auctoritate creates, et scribentes in Causis Ecclesiasticis, vel Spiritualibus, ad se subjiciendum examini, Eorumque remotione, vel suspensione in casu delicti, vel irnperitite ; juxta prsescriptum Sacri Concilii dicta sess. 22. cap. 10. 34. Item ab erectione Seminarii, et taxations quarumcumque Dignitatum, Per- sonatuum, Officiorum, Prsebendarum, Portionum, Abbatiarum, et Prioratuum cujus- cumque Ordinis, etiam Regularis, Hospitalium, quse dantur in titulum, vel adminis- trationem, et Beneficiorum quorumcumque, etiam Regularium, etiam Jurispatronatus, etiam exemptorum, etiam nullius Dicecesis, vel aliis Ecclesiis Monasteriis, Hospita- libus, et aliis quibusvis Locis piis, etiam exemptis, annexorum, ac quorumcumque aliorum Ecclesiasticorum redituum, seu proventuum ad Fabricas Ecclesiarum, Con- fraternitates, et Monasteria omnia, non tamen Mendicautium, pertinentium, necnon Decimarum quacumque ratione ad Laicos, atque etiam Milites cujuscumque Militije aut Ordinis, Hierosolymitano excepto, spectantium, pro ejusdem Seminarii manuten- tione : prout etiam ab unione. et applicatione aliquot Beneficiorum simplicium ; nec- non a Decretis cogentibus eos, qui Scholasterias obtinent, vel quibus lectionis, vel Poctrinse munus est annexum, ad docendum per se ipsos, vel idoneos substitutes ; et generaliter a Mandatis et provisionibus, quse quoquo modo respiciunt Curam, direc- tionem, et administrationem Seminarii, plenamque exequutionem Decreti editi a Sacro Concilio super Collegio Pueroruin in singulis Cathedralibus instituendo, sess. 23. de Reform, cap. 18. 35. Item a Mandatis, seu Decretis cogentibus Oeconomos, Yicarios Capitulares, ad reddendam rationem Administratiouis per eos gestae Sede Episcopali vacante, juxta prrescriptum Sacri Concilii sess. 24. de Reform, cap. 16. 36. Item a comminationeexcommunicationis a Jure latse, et a Sententia excom- municationis late ab homine suspensionis, et interdicti, nisi appellatio fuerit inter- posita ex capite nullitatis : Et e converso a Sententia absolutionis ab eisdem Censu- ris Ecclesiasticis. 37. Et generaliter ab exequutione aliorum quorumcumque Decretorumdicti Sacri Concilii Tridentini, Episcopis, atque Ordinariis locorum demandata ab ipso Concilio, et in Constitutione fel. rec. Pii Papaj IV., quaj incipit: Benedictus Deus. 38. Yolumus, prsecipimus et mandamus, quod ab Archiepiscopis, Patriarchis, seu Primatibus, aliisque Judicibus Ecclesiasticis, etiam Xostris et Sedis Apostolicae Ximtiis, vel de latere Legatis, etiam Sanctfe Romanae Ecclesise Cardinalibus. atque etiam Camerse nostne general! Auditore, Signature Justitise Pnefecto, caeterisque Judicibus Romante Curi;c, eorumque Vicariis, et officialibus, Citatioues generales, \~el speciales cum Commissione inserta, Monitoria, et alia hujusmodi cum Inhibitione per quam exequutio Decretorum, Mandatorum et provisionum hujusmodi retardetur, suspendatur, aut impediatur, minime concedantur, et quatenus nunc, aut imposte- rum concessa fuerint, nullatenus inliibeant, atque ad Episcopis, aliisque Locorum Ordinariis impuue sperni possint ; quacumque consuetudine etiam immemorabili, vel quovis Privilegio. aut stylo concedendi Inhibitiones in Causis pra?dictis, tametsi temporarias, penitus exclusis. Xos enim Citationes, et Monitoria, aliter quam ut 272 Appendix. pnefertur, concessa, vcl imposterum concedenda. nulla, atqse irrita declaramus, et pro nullis, atque irritis haberi volumus, et mandamus : Decernentes, quod adversus Decreta, Mandata, et Provisiones ejusmodi, quas, vel quse ab Episcopis, aliisque Lo- corum Ordinariis fieri, vel capi contigerit in Causis, et negotiis pnedictis, vel simplex dumtaxat, et extra judicial is Kecursus per viam supplicis libelli, ad Xos, et Successo- res Nostros Romanes Pontifices, vel respective, et juxta Causarum naturam, et qualitatem, Appellatio ad quos de Jure, in solo devolutivo, et sine retardatione. vel praejudicio legitimse exequutionis, recipi, et admitti possit. 39. Quoniam vero in hisce ipsis negotiis, et Causis, in quibus Inhibitiones Can- onicam exequutionem impedientes, aut suspendentes, concedi non debent, dari pos- sunt casus, qui per ipsum Sacrum Concilium Tridentinum, vel juxta ejus Mentem, per Apostolicas Constitutiones, et Sacrarum Congregationum declarationes. aut communem Doctorum Sententiam, a preefata general! regula de non concedendis Inhibitionibus, eisque posthabendis. excipiuntur, quique ut plurimum non aliter. quam prudenti Judicis arbitrio secundum particulares Facti circumstantias ffistimari possunt : Hinc Nos, ne sub ejusmodi praetextu, Inhibitiones, ut supra prohibitee, vulgo et sine ullo delectu etiam in Casibus non exceptis concedantur : Statuimus t ma ndamns, quod in dictis Causis, et negotiis superius expressis, Metropolitani, Patriarchs, Primates aliique Judices predicti, et pnesertim Cameras nostne generalis Auditor, ejusque Locumtenentes, et Signatures Justitite Prfefectus. ejusque Auditor, ad quos in contingenti casu pro obtinenda Inhibitione Recursum haberi contigerit, etiamsi asseratur, casum ilium a Sacro Concilio, vel Apostolicis Constitutionibus, quacumque de Causu exceptum esse : Xihilominus literas Citatorias, vel Monitorias cum Inhibitione hujusmodi non concedant. nisi prius ex facti circumstantiis. in sup- plici libello a Parte recurrente clare ac dilucide exponendis, et cum aliquo documento semiplene saltern verificandis, eisdem summarie apparuerit, casum ilium esse de ex- ceptis, et propterea Episcopo, vel Ordinario Loci inhibendum esse, ne ad ulteriora procedat ; Tune enim, et non alias, et postquam ipsi Judises. quorum consientiam hac in parte oneramus, super dicti supph'ci libello manu sua rescripserint, quod Inhi- bitio concedi potest, libellusque cum rescripto ejusmodi in Actis productus fuerit, diligenter ibidem custodiendus, et asservandus, licet eorum Xotariis. sive Actuariis literas Citatorias cum dicta Inhibitione expedire et Patri recurreuti tnulciv. i:a ta- men, ut in earum calce expresse adjiciatur sequens clausula ; " Nos enim. attends Juribus, et supplici libello Xobis praesentatis atque in Actis exhibitis. sic. ut pnefer- tur, inhibendum esse, speciali Rescripto mandavimus." Alias litera? ejusmodi sine tali clausula nullam vim inhibendi habeant in casibus pra?dictis. 40. Et nihilominus si Notarii, sine dicto speciali Rescripto super supplici libello, aut sine productione illius in actis, aut sine prsedicta clausula, Citationes ullas, aut Monitoria cum inhibitione. sub quocnmque prajtextu, seu colore, expedire ac tradere prsesumpserint, etiamsi illfe, ant ilia a Judice subscripta fuerint, poenam infamise, et perpetua? inhabQitatis, ad Officium Notarii in Causis Ecclesiasticis exer- cendum et quoad illos Camerse Nostne generalis Auditoris, aut aliorum Romanes Curiae Judicum superius expressorum, etiam quinquaginta ducatonim auri de Camera, Appendix. 273. pro una medietate Camera Nostrse Apostolicse, et pro alia ipsi Parti recurrent!, et iu causa interesse habenti, sin minus alicui ex Locis Piis, arbitrio Nostro, Xostrorum- que Successorum destinando, applicandam, ipso facto incurrant. 41. Ad haec, similiter inJiaerentes disposition! ejusdem Sacri Coneilii sess. 1. de Reform, cap. 14., et sess. 14. cap. 5., necnon etiam decreto Piae mem. Benedict! XIII. hac in re promulgate inter ejus additiones ad Decreta Urbani Papae VIII. in appendice ad Concilium Romanum, volumus, et mandamus, quod Clerici Saeculares. aut Regulares extra Monasterium degentes, quomodolibet exempti, in Civilibus Causis Mercedum. et miserabilium Personanim, etiamsi certum Judicem a Sede Apostolica deputatum in partibus habeant : In aliis vero, si ipsum Judicem non habuerint, coram Locorum Ordinariis, tamquam ab ipsa Sede delegatis, conveniri in prima in, ut per Roma- nes Pontifices in provisionibus haberi valeat respectus ad servitia presuta in tarn pio opere. Itidem Sanctitas Sua quoad Tribunal A. C. mandavit, inviolabilitcr servari refor- mationem Pauli Papas V. in Constitutione incipiente : Universi agri 20., videlicet, ut pauperibus dentur gratis extractus, registra, instrumenta, etiam publica, copia3 et ali:e qiuecumque expeditiones et scriptura?, tarn Civiles quam Criminales, et osten- dantur etiam orisrinalia Paupenim Advocate et Procurator! similiter gratis et absque ulla impensa: et si quando contigerit, probandum esse paupertatem, testes similiter gatis et summarie examinentur, et de paupertate stetur arbitrio Judicis; addito pec Sanctitatem Suam, quod in casu gravaminis Judicis, quoad paupertatem non admis- 284 Appendix. sam, reeurri valeat ad Auditorem pro temporo Summi Pontificis, qui debita cluiritate servari faciat, quod sequum erifc ; praedictaque omnia mandat Sanctissimus servari in quibuscumque Curiis Urbis inviolabiliter. Quia in Causis infra sammam scutorutn quinquaginta monetae Romans, in quibus a Judicibus de partibus appellatur ad Urbcm, juxta stylum et Apostolicas Ordina- tiones non debet in Curia procedi in gradu appellationis, sed per viam recursus deputantur Judices in partibus ; cum ex pcnuria tcmporum videatur gravans appellantibus in Causis etiam ultra dictam summam scutorura 50 Causas prosequi appellationum in Curia : idco Sanctitas Sua extendit dictam summam scutorum quinquaginta monetae usque ad centum ejusdem monetae Romanse, ita ut, si summa causae non sit ultra quantitatem scutorum centum, ut supra, Causa non dicatur curia- lis et appellabilis per viam appellationis, sed tantum deputandos esse Judices in partibus, qui procedant per viam recursus, quorum deputatio fieri debeat per Tribunalia Urbis, ad qua; pertinet. Mandat rursus Sanctitas Sua, ut in Causis mercedum miserabilium personarum recursus et appellationes respective non admittantur a quocumque Judico appella- tionum, nisi in devolutivo pro rata scutorum quinquaginta monetse Romanae, et ultra dictam summam admitti debeant in suspensive vel devolutivo, prout juris est, firmis tamen remanentibus Apostolicis ordinationibus, stylis et privilegiis, quae forsan existerent in Tribunalibus Urbis et districtus ejusdem, in quibus nihil innovari inteudit. Demum ad conservandam debitam reverentiam Pontificali dignitati Alexander Papa IY. Decretalem edidit, relatam in cap. Quia Pontificali de Ofilc. et Potest. Judic. deleg. in 6.; ibi: " Quia Pontificali dignitate pneditis ob reverentiam sacri officii plurimum deferri convenit, et eos plus aliis honorari decet, ut, cum a Judicibus vel Conservatoribus, a Sede Apostolica deputatis, contra eos ad coactiones aliquas sive pcenas fuerit procedendum, gradus et modestia in hujusmodi processu servetur, ita quod (eis quadam condigna reverentia supportatis) ingressus primo ipsius Ecclesiae vel sacerdotale interdicatur ministerium, ac deinde ab officio suspendantur, et subsequenter aggravetur censura Ecclesiastica contra eos, nisi forte aliter fieri suaserit nimia contumacia. protervitas sive culpa." Hanc itaque Decretalem Sanc- titas Sua inviolabiter servari mandavit in quibuscumque Curiis Judicum appella- tionum tarn C. A. quam Metropolitanorum et etiam Xuntiorum Apostolicorum et aliorum quonimcumque. F. A Archiepisc. Episc. Abellineu. et Frequentius Sacri Concilii Secretarius. Appendix. 285 vi. Chirographus Domini Nostri Benedicti Papas XIII., vi cujus decernitur Promoter Fiscalis Generalis, qui pro Curiis Ecclesiasticis palrocinium causarum criminalium suscipiat, assignato in singulos menses salario viginti quinque scutorum, a Camera Apostolica persolvendorum. 12 Julii 1724. Postquam mature perpendiraus atque ctiam propria, dum adhuc in Minoribus constituti eramus, experientia cognovimus, quam intolcrabilis cum Ecclesiasticis turn Regularibus Praelatis oueris existeret necessitas sustinendi et prosequendi in hac Curia Romana lites et Controversias, qme a Reis inquisitis per viam recursus aut ap*pellatiom's ab illorum Decretis et sententiis isthinc introducuntur : ita quidem, ut plerique illorum ad evitanda ha3C suis Dioecesibus et pauperibus Dicecesanis ac Religionibus respective damnosa dispendia Causas in secundis ct ulterioribus in- stantiis indcfensas derelinquant, ex quo dein sequitur, quod, cum a dictis Curiis necessarise informationes Judicibus non suppeditentur, ssepius delinqueutibus suc- cedat absolutorias extorquere sententias in publicum justitise detrimentum necnon scandalum illorum, qui, in Dioecesibus et Religionibus de veritate criminis bene informati, delicta impune transire rnirantur, quae malis perseverantiaj in malo bonis autem subversions causa existit: quam ob rem his tarn perniciosis in bonorum morum et discipline Ecclesiastica3 eversionem, quibus tamen conservandis omnes Superiores omne studium et vigilantiam suam impendere deberent, vergentibus exemplis opportunum poni obicem semper et summopere desiderabamus. Postquam igitur Pivinae placuit Provident!* Nos, nullo licet meritorum Xostrorum suffragio, ad supremuin Apostolatus apicem elevare, partcm Pastoralis solic-itudinis Nostne in ilia consistere vigilantia reputantcs, ut delinquentium sujiplino ca-tcri emendentur, et vitia, bonorum contages, eradicentur: post maturam delibcrationein determinavimus pra?dictis perniciosis exemplis debitum afferre remedium, libernndo Prselatos et Superiores tarn Ecclesiasticos quam Regulares a dispendioso onere pro- sequendi in hac Curia actiones Fiscales in suorum Judicatorum defensionem et providendo iisdem Ministrum capacitate, integritate et exj)erientia pra?ditum, qui tamquam Promoter Fiscalis Generalis supra dictarum Curiarum mtiones in Judicio deducere simulque id omne pnestjire dcbeat, quoct ad bonam et Canouicam defen- sionem necessarium et opportunum videbitur. Itaque ad effectum hujus Xostrae detcrminationis ex motu Xostro proprio certe scientia et plenitudine potestatis Nostrae absolute creamus, instituimus et staliUmvs in perpetuum officium Promotoris Fiscalis Generalis pro prcefatis Curiis Ecclesiasticis, quod dehinc administrabit deputanda a Nobis et Successoribus Nostris persona, supradictis ornata qualitatibus, quas tota attentione impendere teneatrr nomine et vice pnetcctarum Curianim in patrocimum Causarum Criminalium, per viam appella- tionis aut rccursus ad Tribunalia aut alias Congregationcs competentes hujus Civi- tatis Xostrae Romas devolutarum ct ibi adhuc pendentiiim aut imposterum devolven- 286 Appendix. itaruin. Proinde ut dictus Promoter FIscalis Genoralis omnimoda cum applicatione liuic suo muneri vacare possit et debcat, destinamus et assignamus illi pro einolu- meiito et salaria menstruo viginti quinque scuta singulis mensibus a Xostra Camera Apostolica pcrsolvenda ex mandate Thesaurarii Xostri Generalis ; quo salario ipsum contentum esse nee a Prselatis Sascularibus aut Eegularibus aliam quamcumque remuneratiouem, etiam titulo aut praetextu honorariorum, pro f unctionibus et labori- bus suis pmetendere posse volumus. solis literarum hinc inde mittendarum expensis exceptis : quodsi secus fecerit, gravibus atque etiam gravissimis pcenis ad Xostram Nostrorumque Successorum arbitrium obnoxius erit. Porro, cum intentio Xostra eo collimet, ut ad eflScacius et validius dictarum cau- sanim patrocinium Promotor Fiscalis Generalis omnibus illis, quibus Procurator Generalis Fisci et Cameras Xostrae Apostolicae fruitur, subsidiis necessariis et opportunis adjuvetur: volumus et ordinamus, quod intervenire et assistere debcat Congregationi Criminali Auditoris Generalis ejusdeni Xostraj Camerse, in cujus Tribunali similes causse specialiter agitari et judicari solent, Similiter volumus. dicto Promotori Fiscal! Proccssus et omnia acta gratis communicari, sicut etiam cita- tioncs gratis expediri, expensas quoque pro describendis exemplis aut scripturis typo edendis necessarias ab Apostolica Camera Xostra suppeditari, eo prorsus modo, quo IUEC omnia ex parte Fisci a Procuratore Fiscali Generali fieri etobscrvari solent Ut denique saepe dictus Promotor Fiscalis in qualicumque actu et negotio audiatur, volumus, ipsum in omnibus et singulis hujusmodi causis in judicium citandum, citationesque ab ipso subscribendas esse eo modo et forma, quibus a Procuratore fiscali subscribuntur, ea prorsus lego ut, si dictus Promotor non fuerit citatus, neque \illa citatio subscripta, actus ex citation is defectu nullitatis vitio subjaceat. Declaramus autem, quod praesens Xoster Motus proprius quoad orr.nes et singulas dispositioues locum habere debeat in illis tantum -causis, in quibus fient iustantiaj nomine toloi'um Pro-motorum Fiscalium ex prcescripto officii sui, nullo modum autem, quando adhrcrentes Fisco in judicio stare et pro defendendis Juribus propriis alle- gare et scribere vellent; intalibus enim causibus dictus Promotor Fiscalis Generalis nullam navare operam, neque Camera Xostra Apostolica ullos facere sumptus, aut alius quicumque qualecumque ones aut incommodum subire tenebitur. Postremo volumus et decernimus, Congregationem Episcoporum et Regularium necnon Auditorum Generalem Xostrae Camene Apostolicse plena? omnium a Xobis in hoc Motu proprio dispositarum et ordinatarum rerum observar.tire invigilare, ac insuper hunc Motum proprium (qui a supradicto Auditore Camera? in Codices ac- torum referendus et a Xotario Congregationis Episcoporum et Regularium in suis libris signandus est) plenum omni tempore effcctum, vigorem et executionem sortiri debere, nunquam vero obreptionia vitio aut intentionis Xostne vel alio quopiam specialem, individuam et expressaoi mentionem requirente defectu notari et impug- nari, neque in contrarium interpretari aut judicari posse, declarantes irritum et inane, si sccus a quolibet scienter vel ignorantor attentasi contigerit: non obstantibus, quatenus ratione omnium et singulorum praemissorum opus sit, quod in prremissis intxjressc habentes seu habere prstendentes ad ea non fuerint vocati nee audit!, ne- Appendix. 287 que Regula Xostne Cancellarise de Jure quaesito non tollendo, aliisque facultatibus et privilegiis pnefatis quibiiscumquo concessis, Bulla reformations Pauli V. et omnibus quibuscumque aliis Constitutionibus et Ordinationibus Apostolicis Nos- trorum Pnedeccssorum, Legibus Civilibus et Canonids, Statutis, Reformationibus, Usibus, Stylis, Consuetudinibus cseterisque contrariis quibuscumque, quibus omnibus et singulis, illorum tenorcs prsesentibus pro plene expressis et de verbo ad verbum insertis habentes, ad prajmissorum effectum hac vice duntaxat specialiter derogamus, quoniam talis est Xostra certa, expressa et determinata mens atque voluntas. Datum ex Palatio nostro Apostolico in monte Quirinali die 12. Julii 1724. Benedictus Papa XIII. VII. Decretum S. Congregations Episcoporum et Regularium pro Causis Criminalibus, issued Dec. 18, 1835. Non ita pridem a S. Congregatione negotiis et consultationibus Episcoporum et Regularium praposita nonnullae regulse proescriptic fueruut pro recta et expedita definitione causarum criminalium, quse a Curiis Episcoporum, vel Ordinariorum ad eamdem S. Congregationem in gradu ap[)ellationis deferuntur. Quas quidem prae- scriptiones, quoniam impedimenta sublata sunt, qute aliqua ex parte earum exe- quutioni interposita fuerant, visum est Eminentissimis Patribus in Conventu habito XV. Calend. Januar. MDCCCXXXV, uberius explicare, et cum assensu, et approba- tione S. D. N. Gregorii XVI. iterum promulgare, ut ab omnibus, ad quos pertinent, accuratissime serventur. Sunt autem qua3 sequuntur. I. Reis a Curiis Episcopalibus criminali judicio damnatis spatium dierum decem conceditur, quo ad S. Congregationem Episcoporum et Regnlarium appellare possint. II. Decem dies numerari incipient non a die, quo sententia lata est, sed a die, quo reo vel ejus defensori per Cursorem denuntiata fuit. III. Eo tempore elapso, quin reus, vel ejus defensor appellaverit, latam a se sen- tentiam Episcopus exequetur. IV. Interposita intra decem dies appellatione Curia Episcopalis acta autographa totius Causse ad S. Cor.gregationem continue transmittat, nempe : 1. Processum ipsum in Curia confectum. 2. Ejus restrictum, seu compendiarum expositionem eorum, qua? ex eodum pro- cessu emergunt. 3. Dcfensiones pro rco exhibitas. 4. Denique sententiam latam. V. Ipsa Curia reo, ej usque defensori denuntiabit, appellationem coram eadem S. Congregalione prosequcndam esse. VI. Si nemo compareat aut si appellationis acta negligenter vel malitiose protra- haniur, congruens tempus a S. Congregatione pnefimetur, quo inutiliter elapso, causa deserta censeatur, et sententia Curia; Episcopalis executioni mandetur. 288 Appendix. VII. Rco ant illi, qui ejus defcnsionem suscepit tradendus est restrictus proccssus, qui a Judico ralatore conflcitur. VIII. Allegations, seu defensiones Emmentissimis Patribus distribuendas tjpis non committantur, nisi Judex relator imprimendi veniam dederit. IX. Causa definietur statuta die ab Eminentissimis Patribus in pleno Auditorio congregatis. X. Eidem Congregation! Procurator Generalis Fisci, et Judex relator intererunt. XI. Judex relator de toto statu causae ad Eminentissimos Patres referet, et Pro- curator Generalis Fisci stabit pro Curia Episcopali, suasque conclusiones explanabit. XII. Post base Kminentissimi Patres judicium proferunt, sententiam Curise Epis- copalis aut confirmando, aut infirmando, aut etiam reformando. XII L Prolata sententia una cum omnibus Actis causse ad eamdem Curiam Epis- copalem remittitur, ut earn exequatur. XIV. Revisio, seu recognitio rei judicatffi non conceditur, nisi ejus tribuendie potestas a Sanctitate Sua facta fuerit, et subsint gravissima3 causaj, super quibus cognitio et judicium ad plenam Congregationem pertinet. XV. Sciaut denique CurUe Episcopales per novissimas leges, qu;e ad investiganda, et coercenda crimiua pro Tribunalibus laicis promulga'.se sunt, nihil detractum csse de formis et regulis Canonicis, quas proinde sequi omnino dcberit non modo in con- ficiondo processu, ad quern spectant hsec verba Edicti diei 5. Xovembris 1831.= Nihil innovetur, quantum ad judicia ecclesiastica pertinet=verum etiam in poenis decernendis, quemadmodum in appendice ejusdem Edicti ita cautum est=Tribunalia jurisdictionis mixtae Clericos et Personas Ecclesiasticas iis poenis mulctubunt, quas secundum Canones, et Constitutiones Apostolicas Tribunal Ecclesiaslicum iisdem irrogaret.= J A. Card. Sala Prsefectus. J. Patriarclu Constantinopolitaiuis Secrctarius. VIII. Circular of the S. C. EE. et 7?7?., dated Aug. 1, 1851, addressed to Bishops, con- cerning criminal causes of Episcopal Curice. (FXGLISH TRANSLATION ) MOST REV. SIR AND BROTHER: His Holiness, Pope Pius VII., ordained in his Constitution Post diuturnas of Oct. 30, 1800, under the title De Juris diet ionibus tri- bunalium et Judicum criminalium, Judiciorum forma et ordine, in 24, the following: " In future, the abbreviated forms which are already in use in the government of the city of Rome, will be employed in all the ecclesiastical courts of the city of Rome arid of the rest of the pontifical territory." These formulas, particularly those of the legalization of the process (processus legitimatio) are absolutely necessary in processes or trials which take place in Episcopal courts, according to the old mode of proceeding, and according to the Appendix. 289 Decree ef the Sacred Congregation of Bishops and Regulars dated Dec. 18, 1835. Yet they are not known to some episcopal chancellors, as this Sacred Congregation has found out from a number of criminal causes adjudicated by Episcopal courts in the first instance For this reason, it has been deemed opportune to have these formulas printed anew and sent to the various Ordinaries, so that each Episcopal chancery may possess a copy. I have the honor to enclose you a copy. * At the same time I forward you a copy of the Decree of Dec. 18, 1835, in order that it may be posted in the Episcopal chancery, and carefully observed. 3 . . . . Furthermore, in order that the instigators aud adherents of the Fisc (namely the accusers, the complainants, denouncers, etc., \vlio are on the side of the official procurator fiscalis), in case they feel themselves aggrieved by the sentence of the first instance, and in consequence appeal to this Sacred Congregation, may know their obligations, I enclose you herewith a copy of the resolution taken in a full meeting of the Sacred Congregation, held Feb. 22, 1839. 4 Again, in order to expedite the hearing of causes appealed to this Sacred Congrega- tion from Episcopal courts, you will kindly inform the members of your Curia, that when the accused, who has been condemned, appeals within ten days after receiving official notice of his sentence, to this Sacred Congregation, and his appeal is admitted by the Congregation, and this admission has been made known to the Bishop, with the direction to cause the ulterior steps to be taken within the peremptory term of twenty days, the members of the Curia are then bound to formally notify the appell- ant that if he wishes to prosecute his appeal before the Sacred Congregation, he must within the peremptory term of twenty days, appoint in this city of Rome, an advocate or procurator, approved in the Roman Curia, and also make sure that this advocate will undertake the case, and will, upon having deposited with the judex relator, the customary sum of money to pay the costs, in case of defeat, ask for the Acts of the cause at the rooms of the judex relator ; that if the appellant fails to do this within the twenty days, he will be looked upon as having renounced his appeal, and the Sacred Congregation will issue a formal declaration to that effect. "Where, on the other hand, the parties representing, urging or adhering to the procurator fiscalis appeal, and that appeal is admitted by the Sacred Congregation, and this admission made known to the Bishop ; the appellee must also become a party to the appeal, and consequently, he must be informed of the above interposi- tion and admission of the appeal, and be enjoined by the Bishop's court to appoint within the peremptory term of twenty days, an advocate or procurator from among those approved in the Roman Curia, and if he fails to do so, it will be assumed that he does not desire to take part in the appeal ; and consequently, the pro- ceedings in the appeal will at the instance of the adherents of the fisc, be continued to the final sentence inclusive, without any further interpellation of the appellee. The same notification must also be sent to the adherents or instigators of the diocesan prosecutor. 1 See Appendix VII. * See this copy below in Appendix IX. 3 See Appendix VII. 4 See Appendix X. 2 go Appendix. These notifications, together with the report of the messenger delivering them, must be sent to this Sacred Congregation. Finally, you are reminded that the acts or minutes concerning the serving of the sentence upon the accused and the latter's appeal, together with the report of the messenger must be inserted in the Acta of the trial or proceedings ; that these acts should be provided with a chronological index, and should, in accordance with the Decree of Dec. 18, 1835, art. iv., be sent without delay tc this Sacred Congregation, together with the synopsis of the auditor, the defence and an accurate copy of the sentence, the original of which remains in the Episcopal Cuiia. Have the goodness, Most Rev. Sir, to acknowledge the receipt of this circular. Fr. .A. F. CARD. OKIOLI, PREFECT. D. Patriarch of Constantinople, Secretary. Home, Aug. 1, 1851. IX. formulas of trials in criminal and disciplinary causes, as prescribed by Pope Pius Vff, and made obligatory in the circular of the S. C. EE. et RR. Aug. 1, 1851. (English Translation). In order to expedite the hearing of the causes of accused persons, it is deemed nec- essary to shorten some of the formulas which have been hitherto used in the compilatio processus. First, the entire acts of the trial or proceedings, such as those relating to the " Corpus delicti," the admonitions, the " litis contestatio " etc., of whatsoever kind or nature they may be, are to be given, in future, in the vernacular language. This will save the repetitions which formerly had to be laid in the mouth of the accused on occasion of admonitions, of the " litis contestatio " and other acts of a similar character. For, as these acts or formulas were made in Latin, it became necessary, for the purpose of proving that they were understood by the accused, who for the most part was ignorant of Latin, that the accused should each time repeat in the vernacular, the Latin words, or formula laid in his mouth by the auditor or judge. As, in future, the vernacular language will be used in all these proceedings, wheth- er they regard the accused or the witnesses, it will be sufficient for the notary, to write down merely the answers, just as they are given. Second, the acts (acta) in regard to the " Corpus delicti," the opinion of experts of all kinds, the finding of tools, of clothes, and other things or indicia, are all to be simply drawn up and signed by the notary, so that it will not be net to examine the witnesses intervening or also the experts individually. Tftird, in order that the legalization of the piocess (kgitimatio procespus), especial- ly the legalization per confrontationem may be less complicated and less tedious, it will be advisable that, in case the accused refuses to legitimate the process per de- darationem, no personal, but only a verbal confrontation of the witnesses take Appendix. 291 ftlace ; that is, that instead of the witnesses being personally placed in the presence ft the accused, only their deposition be read to him by the judge (auditor)' and fcotary, and he be allowed to make, and have put on record, whatever exceptions he desires to make against the persons and the depositions of the witnesses. 1 For this purpose, there is added at the end of this enactment, the respective formula of the legalization of the process, which contains the substantial parts of the act The iudge should endeavor to cause the legalization to be made in as brief and sim- ple a manner as possible. "U'itli this act (the kgitimatio), the process becomes legitimized in all things what- soever, whether they are already begun, or are yet to be begun, even though the written defences have been already handed in, and that wiih all the legakeffects of a true and real legitimation. Although for trials or processes, where there is question not merely of the ac- cusation of a capital offence, but where, also, considering the nature of the proofs ex- tant, sentence inflicting capital punishment may be pronounced and executed, 2 a new regulation may be issued, should it be found opportune; yet it may be left to the honest, impartial and truthful judgment of the advocates of the parties, in this case, to demand the legalization in the proper sense of the term. In case they de- mard this legitimatio, it will be discretionary with the court to grant it either by way of personal confrontation of the witnesses, or by way of their formal repetition. The formula of the personal confrontation, used at present, is also to be made shorter, and for this purpose there is added at the end of this enactment, an abrev- iated formula of personal confrontation. The above practical rules and formulas shall be introduced into all the tribunals of the city of Rome and of the Pontifical Territory, those places not excepted, which have hitherto not possessed the privilege of granting the personal confronta- tion, in the legalization of the process. "Whenever a doubt arises as to the application of these rides and formulas, it will be the right and duty of the procurator fiscalis to give the required explanations. A. Formula of leyalizat' on by way of verbal confrontation. Date The accused, X. X., having appeared before the auditor (judge) and me, the notary . . was again admonished to tell the truth respecting himself, and was sworn on the 1 Therefore according to this enactment, the processes informations becomes legalized by this simple reading of the testimony, to the accused ; and the formal repetition of the witnesses need not take place, even where the accused refuses to legalize the proceedings per dcclara- tioncm. 2 This has reference to the ecclesiastical courts of Rome and of the Pontifical territory, where these courts, owing to the privilege of immunity, formally took cognizance of capital offences of ecclesiastics. At present, however, the privilege of immunity is scarcely anywhere ,;:ed by the civil government. Hence, capital offences are adjudicated solely by the secular courts. Dismissal from office or parish inflicted by the ecclesiastical court is compared by canonists to a capital punishment of the secular court. 292 Appendix. holy Gospels to tell the truth in regard to other parties. Thereupon, for the pur- pose of legalizing the process, the testimony of the witnesses N N., examined un- der date of was read to the accused, in full, and word for word. Being then asked whether he had anything to say against the persons or depositions of the wit- nesses, and being informed at the same time, that by this act, he was deprived of all right to have the witnesses repeat their testimony, 1 answered : After you the (auditor or judge), have caused the notary here present to read for me the deposi- tion of the witnesses N. N., examined under date of , and having full}' un- derstood it, I have to say etc. (Here follow his answers, which must be accurate- ly taken down by the notary.) Afterwards etc., etc. B. Formula of legalization by ivay of Personal confrontation. Date The accused N. N. having appeared before the auditor and me the notary . . . was again admonished. '. . (as in the preceding formula). Thereupon, the witness N. N. was \called in, and again took the oath to tell the truth. Then, for the pur- pose of legalizing the process, the previous deposition made by the witness, under date of was read to him in full, and word for word. Being asked whether he now confirmed his previous statements, or whether he wished to change them in any point, he answered : (Here follow his answers, which must bo carefully and accurately written down by the notary). After this the accused was asked whether he had anything to say against the per- son or testimony of the witness, and being informed at the same time ... (as in the preceding formula), answered: After you have caused the testimony of Jhe wit- ness N. N. here present . . . (as in the preceding formula) I have to say: (Here fol- lows his answer. )~ Afterwards, etc. Resolution of the Sacred Congregation of Bishops and Regulars, adopted in the meet- ing held Feb. 22, 1839. In the Curia of the exempted abbey of Pubiaco, there was instituted, at the in- stance of the surgeon Aloysius A., and his daughter A., a criminal proceeding against Aloysius M., for rape, and for being the cause of the girl's pregnancy, and 1 Where there are several witnesses, the testimony of each must be read In full to the ac- cused. But the above declaration need not be repeated. 2 The witness has a right, If he wishes, to reply to the accused. The accused may In turn answer the witness, and so on. The accused has the riffht to make the last answers. Appendix. 293 for attempted abortion. After the proceedings had been closed and the allegations of both parties handed in, the case was decided by the criminal court of His Emmi- nence Cardinal and Abbot Spinola, on Jan. 3. 1839, as follows: " Non constare de stupro, ideoqwe Aloysium J/. . . es-se dimittendum ex hadenus deductis : in reliquis provideat Emiitentissimus Abbas ad mentem." This mens consisted in prudential measures for the purpose of preventing farther excitement and animosities between the contending parties, and in strictures upon the advocate C., for having used cer- tain unbecoming expressions in his written allegations. After receiving notice of this resolution, the accuser A., and his daughter A., gave formal notice to court of the Abbey of Subiaco, that they appealed against the above sentence. "Whereupoa His Eminence, the Abbot, sent to this Sacred Congregation of Bishops and Regulars, all the acts of the process, together with the synopsis of the procurator facali-s, and the allegations or deductions of both parties, as made in the Curia of the first instance, and at the same time, proposed the following question: "vHiether the appeal interposed in the case was admissible or not? The judex relator then considered it his duty to inform each of the Cardinals of this Sacred. Congregation of the proposed question, in order that it might be sub- mitted to their Eminences, for their decision in the meeting of Feb. 22, 1839. Resolution : In the meeting of the Congregation held in the Apostolic Palace of the Vatican, on the 22d, of Feb. 1839, their Eminences decided as follows : ' Affirmative ad primam partem, negative ad secundam, prasstita fide ju-ssione per in^tltorem de reficiendis expensis tarn primi quam ulterius judicii in eventu succum- bentice et certioretur Eminentissimus albas, etiam pro intimatione ad constiiuendum de- Jensorem intra viginti dies." Pncsens resolutio aduotetur in libro decretorum. A. Bizzarri, Sub-Secretarius. XI. DECREE OF THR ROMAN COUNCIL HKLD BY BENEDICT XIII.. IN 1725, CONCERNING THE OATH ADMINISTERED TO THE ACCUSED. Tit. XIII: Dsjfirejurando. Cap. II. Juramentum alias exigi solitum a Reis criminaliter inquisitis, riiiin judic- ialiter uti Principales cxaminantur, in posterum ne ullo modo ab iis in quocunque Tribunali exigatur. pnesenti, constitutione inhibetur. Reprehensibile judicari non debet, si secundum temporum varietates, ubi id neccs- sitas vel utilitas exposcat, consuetudines et leges quandoque varicntur humanit; ipse enim Deus et Dominus, Aeternus Legifer noster, ex iis, qu;e veteri in Testamento statuerat, multa postmodum mutavit in novo. Stylum itaque in quibusdam Curiis Sccularibus et Ecclesiasticis, nullo unquam jure prseceptum, inolevisse perpendunus, 294 Appendix. ut Judices sive eoruui Notarii aut ScribiB, Reos criminali facinoro accusatos examina- turi, juramentum ab his prajstari jubcant de veritate dicenda. Quia tamea ex hoc, quoiidiana sicuti est experieiitia compertum, nee in Fisci favorem HOC contra Reos ipsos, qui ut plurimum patrata a se negant delicta, utilitatis aliquid elici non igno- ratur, adeo ut peculiar! in hac facti contiugentia nedum talia deinceps jurarnenta exigendi necessitas non adesse probetur, imo potius, no ilia pcnitus cxigantur, sacri ipsa juramenti ratio postulet ac suadeat : hinc est, quod Nos, rationibus utrinque perpensis, et quam plurium inluerentes insignium Tribunalium praxi, juramontum ipsum per Reos sic criminaliter inquisitos prajstandum consulto, dum uti Pnncipalts tantummodo constituuntur, tollendum et submovendum ducimus ; prout, sacro etiain approbante Concilio, praesenti hac constitutione pmnino tollimus ac submoveraus : nee juramentum hujusmodi ullatenus a Reis eisdem, nisi tamenut testes quoad alios exam- inentur, in futurum per quoscunque Judices et Ministros sub quovis prsetextu, causa ct qusesito colore, volumus, exigatur; alias examen sive constitutum et Acta omnia nulla sint eo ipso et irrita omnique careant contra Reos effectu. XII. DECREE OF THE S. C. EE. ET RR., REGARDING APPEALS MADE TO THE HOLY SEE, IX CRIMINAL AND DISCIPLINARY CAUSES OF ECCLESIASTICS, ADJUDICATED IN THE MANNER LAID DOWN IN THE INSTR. OF JUNE 11, 1880, AND CUM MAGNOPERE, OF 1884. DISPOSITIO PROVISOIUA pro actis appdlationis in causis criminalibus. Sacra hsec C. Epp. et RR. pro certo liabens quod modi procedendi oeconomice, ordinati per Instruotioncm dioi 11 Junii 1880 pro curiis ec'clcsiasticis in causis criminalibus qnae clericos respiciunt, observari quoque debeant in actis appellationis quse apud ipsum Sacrum Consessum interponitur a sentcntiis ipsarum curiarum, opportunam censuit publicationem sequentis dispositionis : ' I. Defcnsor rei vel reorum eligendus inter advocates a sacris Congregationibus approbatos, prscvio deposito de more, prudenter notitiam sumit de restrictn ct processu corarn Judico relatore. ii. Quatcnus vero rationo causte expedire censeat Emus. Dominus Card. Pra3fectus injungitur dofensori sorvaro socretum cum jurisjurandi vinculo. in. Exhibitis dcfensionibus in scriptis, eaidem quatenus Emus. Dom. Card- 1 Acta S.S., Vol. xix. p. 290. Appendix. 2 95 Pncfectus aeqne opportunum censcat. communicari queunt procurator! nscali curiaj a (j'/a. r,t ille si nccessc esse crediderit, in scriptis respomleat. iv. DC responso procuratoris fiscalis defensor sub dcbita cautela cognitionem -sumcre potest coram Judice relatore, ut replicare ultimo valeat paritcr in scriptis. v. Oiiiniuo autcm cxcluditur defensoris et procuratoris fisci pnesentia in comitiis Cordinatium qnando causa resolvonda proponitur. vi. Excepta dispositione pnecedentium articulorum, in sua plena vi quoad omnes partes ea omnia permanent qtire S. C. constituit per decretnm diei 18 Decembris 1835, per literas circulares diei 1 Augusti 1831, ct per ordinationem diei 6 Junii 1847.' Ex. and. SSmi diei 26 Martii 188G. SSmus. Onus. Xoster LEO div. prov. PP. XIII. audita relatione pncsentis dispo.si- tionis ab infrascripto S. C. Epp. et RR. Secretario, cam in omnibus approbate ct confirmare dignauis est. Romtc die et anno quibus supra. J. Card. FERRIES:;, /' Fr. AXT. M. Archp. Palmy ren., Secret. IXSTRCCTIO S. CON'GREGATIOXIS DE PROP. FlDE SCPUA SL'SPEXSIONIBUS EX IXFORMATA COXSCIEXTIA. Omni tempore sollicita fuit Ecclcsia ut non soluin ascensus ad sactos Ordines intcrdiccrctur indignis, verum etiam ab corumdem cxcrcitio criniiuosi suspend inanerent. Cum autem occultorum quoque criminum. qiueque proderenon cxpediret. facilis et prompta. nempe a judiciariis formis libera, coercitio aliquando necessaria sit ad sacri rninisterii dignitatem, et fidelium utilitatem tuendam ; hinc sapientissimo consilio Tridentini Patres Sess. xxiv. cap. 1. de Reform, decrevermit : il Ei cui ascensus ad sacros ordines a suo Prcelato ex quacumque cavsa, etiam ob occnltam cri/nen, quoinodo- UM. etiam extrajudidaliter fuerlt intenlictits, aid qui a suls ordinibu.s seu gradibus vd dignitatibus ecclesiasticis ftierit suspensus, nullu contra ips!us Prcelaii volunlatem co itcessa Ik-entia de se promoter if aciendo, aut ad priors ordinen, gradus et dlgnitates sire honores restitulio suffragetw" Ex hoc provido decreto, in co quod rcferttir ad Clericnrum crimina, qi:a3 extrajn- dicialem suspensionem ab ecclesiasticis omciis morentur. iamdiidnni in usu f;;;t snspensionis poenaex causis Prrelato notis ; qua; nempe audit suspensio ex informata consrientia. Ad hoc itaquc ut in cadem infligenda, cum rnajori qua potest cautela, et securitate Ordit arii catholicarum missionum procedant, S. Congregatio de 1 Acta S. S., Vol. xix., p, 298. 296 Appendix. Propaganda Fide prsesentem instructionem cdendam censnit, cui iidem Ordinarii in adhibendo hoc extraordinario remedio sese couformare curabunt. I. Suspensio ex iuformata- consdentia, non secus ac ilia, qiue per judicialem scntentiara infligitur, personam ecclesiasticam a suis ordinibus, seu gradibus, vel dignitatibus ecclesiasticis exercendis interdicit. II. In hoc prrecipue ipsa differt a judicial! suspensiore, quod adhibetur tamquam extraordinarium remedium in pcenam admissi criminis ; ideoque ad ejusdem imposi- tionem non requirunttir nee forma? judiciales, nee canonical admonitiones. Satis erit proinde, si Pnelatus hanc poenara infligens, simplici ututiir praecepto, quo declaret se suepensionem ab exercitio sacrorum officiorum vel ecclesiaaticorum munium indicere. IIL Hujusmodi prseceptum semper in scriptis iutimandum est, die et mense desig- nate ; ideoque autem fieri debet vel ab ipso Ordinario, vel ab alio expresso ipsius mandate. In eadem tamen intimatione cxprimendum est, quod ejusmodi punitio irrogatur in vim Tridentini decreti, Sess. xiv.. c. 1 de reform., ex informata conscientia vel ex causis ipsi Ordinario notis. iv. Debent insuper exprimi partes exercitii ordinis vel officii, ad quas extenditur suspensio ; quod si suspensus interdictus sit ab officio, cui alter in locum ipsius substituendus est, ut puta (Econonnis in cura animarum, tune substitutus mercedem percipiet ex fructibus beneficii in ea portione, que juxta prudens Ordinarii arbitrium taxabitur. At si suspensus in hac taxatione se gravatum senserit, moderationem provocare poterit apud curiam Archiepiscopalem, aut etiam apud Sedem Apostolicam. v. Exprimi item debet tempus duratiouis ejusdem pcenju. Abstineant tamen Ordinarii ab ipsa infligenda in perpetuum. Quod si ob graviores causas Ordinarius censuerit cam imponere non ad tempos dotcrniinatum, sed ad suum beneplacitum, tune ipsa habetur pro temporanea, ideoque cessabit cum jurisdictione Ordinarii suspensionem infligentis. vi. Suspensioni ex informata conscientia justam ac legitimam causam prrcbet crimen, seu culpa a suspense commissa. HJBC autem debet esse occulta, et ita gravis, ut talem promereatur punitionem, vn. Ad hoc autem ut sit occulta requiritur, ut ncque in judicium, neque in rumores vulgi deducta sit, neque insuper ejusmodi numero et qualitati personarum cognita sit, undo delictam censeri debeat notorium. vm. Verum tenet etiam suspensio si ex pluribus delictis aliquod fuerit notum in vulgus: ant si crimen, quod ante suspensionem fuerat occultum, deinceps post ipsam fuerit ab aliis evulgatum, IX. Prudenti arbitrio Prrclatorum relinquitnr suspensionis causam, seu ipsam eulpam delinquent! aut patefaccre, autreticere. Partes alioquin pastoralis sollicitu- dinis et charitatis eorumdcm erunt. ut si istiusmodi poenam suspense manifestare censuerint, ipsa ex paternis, quas interponent, monitionibus, nedum ad expiationem culpa?, verum etiam ad emendationem deliuqueutis, et ad occasionem pcccandi eliminandam inserviat. Appendix. 297 x. Meminerint vero Pntsules. quod si contra deeretum, quo irrogata fiiit euspen- sio. promoveatur recurstis ad Apostolieam Sedein, tune apud ipsam comprobari debet culpa, qua 1 eidera pnebuit oeeasioneni. Consultant idcirco erit, ut aritoquam haec poena iufiigatur, probationes illius, qnaiitumvis extrajudicialiter et sccreto colli- gantur; ita ut eo ipso, quod cum omni ccrtitudine culpabilitatis in punitione inferenda proceditur, si deinccps causa exaniinanda est apud Apostolicam Sedem. probationes erimii'is iu eas diffictil tales liaud impiugaiit, quse ut plimmmn occurrunt in istiusmodi judiciis. XL A decreto suspensionis ex iuformata oonscientia noti datur appellatio ad tribunal superioris ordinis, Postquara idcireo elericus intimalionem suspensionis habuerit, si nihilomiuus appdlatiouem interpouere, ojusque obtcutu in altare ininistrare, sen quovis modo suuin oivdinem solemniter exercere prajsuinafc, statim incidit in irregularifciteBi, XIL Semper tamea patet aditus ad Apostolieam Scdem ; ct in easti qvjo elericus absque sufficieuti ae raiionabili eau^a se hac poena multatura reptet, rocurrere poterit ad Summum Puiitiiieem. Ijiterira tamea in vigore permanet deeretum sus- pensionis us<{ue diini ab ipso Pontifice, vel a S. CougregaUonc, qujg de reeursu judicare debet. non fttcrit rescissutn aut etiam moderatum. XIIL Ceterum ex qinj istiusmodi jxeua est remedium omnino extraordinarium, quod prajsertini ad expiationera critainum absque formis judiciariis adlubetur, prse oculis liabcajit Pr.tlati id quod eapienttssime admooet Sumrnus Pontifox s. m. Beuedietus XIV, in sno tract;itu de Synodo D'ueces. 1. xiL, c, 8, n. 6, quod niruirum reprehensibiUs foret ttpiseopus, si ia sa synodo deelararet, si deinecps ex privata tantuin scientia cum posna suspensiouis a diviais amraadversurura ia elerieos, quos gravitcr deliqiiisse compcrerit. quamvis eortim delietum non possit ;n foro externo eoncludenter probari, ant illud non ex\diat in aliorum notitiam deducere. Booue ex ^Edibus S. CongregaUonis de Prop. Fide die 20 Octobris 1884 XIV. Recent Decision of the S. C. de Prop. Fide concerning the Dismissal and Transfer of our Rectors who are not Irremovable. a CONGREGATIONS DI PROPAGANDA, SEGRETARIA. N. 2311. ROMA, li 20 Maggio, 1887. OGGETTO. Sid modo di proeedere nel eambiare i Rettori amovibilu Erne ac Rme Dne Dne Obne. In Concilio Plenario Baltimorensi III., Tit. X., Cap. 3, 1, 2. nee non in Instruc- tions hu jus S. Congregationis, qua? ineipit "Cum Maguopere " circa causas Cleri- 298 Appendix- corum, normrje ac reguke prsescribuntur circa modum, quo procedi debet in causis Clericornm. Porro non adhuc apprime determinatum ac statutum erat quibus in casibus Episcopi ad legalis processus confcctionem tcncrcntur, cum de Rectoribus Missionum aut ab officio privanclis, aut ad aliud officium transferendis agerotur, ubi de amovilibus sermo sit. Jamvero Emi Patres S. Consilio Christiano nomini propagando pra?positi in Comitiis Gencralibus die 28 Martii 1887 habitis sequcntia decrcvcruiit : " Tu casibus remotionis peragenda;, sen privationis totalis ab officio Rectoris, iu poenam criminis vel reatus disciplinaris canonicus procossus juxta pnefato Instructionis ' Cum Magnopere ' et Concilii III. Plenarii decreta, confici debet. Cum vero agatur de translatione Rectoris ab una Missione ad aliam aut ad aliud officium etiam informs, Ordinarii non tencntur ad canonic! processus instructionem ; opus cst autcm ut hoc fiat graves ob causas, et habita meritorum ratione juxta disposilionem Concilii Plenarii Baltimorensis III.. Tit. II., Cap. V., 32. Si in casu translation!* fiat rc- cursus ad S. Congregationem, S. Congregatio remittet rccursum ad Metropolitan!, vel si agatur de Metropolita, ad Metropolitan! viciniorem." Rogo autcm E. T. ut lianc Sacraj Congregationis resolutioncm omnibus Archicpis- copis Statuum Foederatorum comnnuiicare velit. Interim manus tuas humillime doosculor. Eminentue TUJB, Humillimus Addictissimus Servus vcrus, JOAXXES CARD. SIMEOXI, Pt-wfectus, D. AUCHIEP. TYREX., Seer. Emo ac Rmo. Dno CARD. JACOBO GIBBOXS, Archiepiscopo Baltimorensi. ' Legalization of the Proceedings. (Supra, n. 236 232, 334, 354, 355, 361.) Canonists unanimously teach that the leyiiimalio processus is made either per decla- rationem ret, or per testiumrepetitionem. They hold that, when the accused declines to legalize the informative process by his declaration, it will be necessary to examine the witnesses over again, and that either in the presence or absence of the accused. If this repetition takes place in his presence, it is called confrontatio personalis ; if in his absence, confrontatio verbalix. The Circular of the S. C. EE. et RR.. dated August 1, 1851, appears to leave it optional with the judge either to grant or refuse to allow this repetition of the witnesses, even where the accused declines to declare the informative proceedings legitimate. According to this circular, all that seems necessary, in case the accused refuses to make this dcclara ion, is to read to him the depositions of the witnesses Appendix. > 299 given in the informative proceedings, and allow him to hand in his cross questions and objections. Here it should be noted that this mode of legalizing the informative process was originally laid down only for the city of Rome and the Pontifical Territory ; that the Circular of che S. C. EP1 et RR. of August 1, 1850, wliich, among other regulations, prescribes the above form of legalization, was not made obligatory, outside of the Poiititical Territory, either by the Instruction of June 11, 1880, or by the Instruction Cum Magnopere of 1834, except in so far as it relates to appeals, and therefore not in so far as it relates to the legalization of the process. ' Hence it is that even those canonists who wrote after the date of the circular of August 1, 1851, teach that, when the accused declines to declare the proceedings legitimate, the formal repetition of the witnesses must take place. For it cannot be supposed that they were all ignorant of this circular. They evidently considered it as obligatory only in Rome and the Pontifical Territory. They do not agree with a recent writer, who asserts the contrary, and that without any proof. While, therefore, the form of legalization prescribed in the above circular does not appear to be obligatory with us, at least until the Holy See so declares, it may nevertheless be safely adopted. 1 Instr. June 11, 1S80. art- xxxxii.; Instr. Cum Magnopere, art. xxxvl. ALPHABETICAL IN'DEX. (The figures indicate the marginal numbers, not the papes.) Accusations, 150. Accused, the 284, 307. Ad perpetuam, witnesses. 254. Advocate, 397 408. Advocate, Roman, 48. Admonitions, 50; Paternal, 69; legal, 70, 79. Ad Militantis. const, see appendix II. Allegare in Jure et in facto, 416. Appeal, 46, 47, 427, sq., 442. 490. sq., 526, sq. Approval of the advocate. 530. Apostoli, 493. Assignment to a monastery, 287. Attentates, 521 to 525. Auditor, 158, sq. ; challenge. 150; duties, 169, 172 ; appointment, 175; functions. 283, 556. B Benedict XIV., const, "ad Militan- tis," 447-477 ; appendix II. Bishop, Discretionary power to punish. 53, sq. c Calumnia, 206, 216. 577, 580. Capitula, or criminal specifications, 320, 321. Charges, 146, 149, 199. Challenges, 16G. Civil Court, 562, 563. Citation, 41, 195, pq. Citation of the accused. 284, 293, 304. Citation of witnesses, 276. Close of the trial, 44, 45. 381, 385, 393. Complaint of Nullity, 566, sq. Compilatio processus, 44-. 156. 157. Commission of Investigation, 153, 177. Common fame, 143. Constitution ad Militantis, 447, 479, 480, appendix II. Consultations, 565. Canonical trial, 17, sq., 38. sq. Contumacy, 41 ; of tho accused, 295 306. Contumacy of the witnesses, 281, sq. Confrontation, 342, 343. Contestatio delicti, 42, 316-330. Conclusio in causa, 381, 3SG. 302 Alphabetical Index. Contentious matters, 555. Correctional punishments, 79, sq. Costs of the trial, 580. Counts of the charge, 321, 322. Crimes, different classes of, 53, 117. Cross-examination, 247. Cum Magnopere, Instr. its heading 31, sq.; aim, 20, sq. ; extent, 29 sq. ; Synopsis, 38. Curia episcopalis, 180, 181. D Damages, 580. Decree of the S C. EK. et RR. 1835. Appendix VII.; 382, 384. 536. Defence, 310, 369, sq. Defamation, 140. Delays, 369, 382-384, 536. Delicti contestatio, 318-330. Devolutive effect, 447, 480. Discretionary power of Bishop, 53, sq. Dismissal of rectors, 581, sq. E Ecclesiasticarum legum trans- gressio, 119. England, oath, 247. Ex informata conscientia, 82. 84, 85. 89, 90. Ex Notorio, 102, sq. Explanation, 1-10 ; Rules of 1-16. Examination of the accused, 307-315. Exceptions, 314, 316, 535, 574. Extinction of the appeal, 526-531. Extrajudicial appeal, 430, 431, 488. Extrajudicial investigation, 38, 145. 148, 153, 200. F Fama communis, 140. False accusation, 578. Final defence, 416, sq. Final sentence, 417, sq. Fundamentum delicti, 199, 202. H Hearsay witnesses, 261, 267. Imprisonment, erdcsiaxliml, 287. Inferential witnesses, 267. Instruction " Cum Maguopere," 38. sq. appendix I. Instruction of 1878, 35, 278. Instruction of June 11, 1880, 124, 143, 192. Investigation, extrajudicial, 146; ju- dicial, 205. Intimations, 422. Inhibitions, 516, 517, sq. Ireland, oath in, 247. Judge, investigating and deciding, 158, 176. Judge a quo, 496. Judge ad quern, 503, sq. Judex relator, 556, 558, 559, 560. Judicial appeal, 430. Judicial investigation, 205. Leading questions, 228, 21". 241, Legal proof, 210-214. Legalization of the process, :'">-!. Legitimatio processus, 338, 354. Litis contestatio, 307-317. Alphabetical Index. 303 M Metropolitan, 503, 532, sq. Milan, decision of the Holy See, in MedMan., 166, 167, 189, 223, 232, 326, 390, 547. Mode of hearing appeals, 538, sq. Monitio, ad allegandurn, 395, 410. Names of witnesses, 335. New York, Fourth Prov. Council, 597 ; Synod, 597. Notoriety, 97, 98, 100, 102, 110. Notary, 182. Notices, 195. Notifications, 422. Nullity of proceedings, 190, 566-574. o Oath of witnesses, 243 ; of officials of the curia. 245 ; of advocate, 245 ; in England and Ireland, 247. Personal Confrontation, 355. Plea, 316. Positiones, 328. Perpetuam Memoriam, witnesses. 254, 260. Preventive Remedies, 38, 50, 52, 59, 60, sq. Precept, 72, 74, 75, 76, 78. Praeceptum, 72, sq. Praecepti inobservantia, 120. Processus canonicus, 132, 133. Privilegium fori, 562. Processus compilatio, 157. Processus informativus, 40, 154, 205, 235. 285. Procurator fiscalis, 135, 176, 182, 185, 198, sq. Procurator generalis fisci at Rome, 557, 560. Prosecutor, diocesan, 176, sq. Prosecution, malicious, 576, sq. Probatio legalis, 210, 214. Probatio plena, 215. Proof, 144, 155, 205, 208, 209, 210. Production of proofs, 376. 387. Procedure in appeals, 532, sq. Publicatio processus, 331, 362, 367. 381. Publication of witnesses names, 344, 352. Punishments, 38, 39, 53. Purgatio canonica, 291. K Recourse, 575. Recursus, 575. Reatus communes, 118. Rectors, 483; dismissal of, 581 sq. ; transfer 693. sq. Removable rectors, 581, sq. Removal of rectors, 483. Repetition of witnesses, 334, 354, :;5r., 361. Repressive punishments, 38, 80, sq. Respondere potest, 370. Resume of the auditor, 391, 393. Restrictus juris et facti, 558. Retreat, 59. Roman Advocate, 551. Rules of interpretation, 1-16. s Sacred congregation, do Prop. Fide, 553. Sanctio canonica, 53 sq. Alphabetical Index. Secretary of the curia* It6> 182. Sentence, 46, 417, 422, sq. Spiritual exercises, 59. Specifications of the charge* 322^ 323, 325. Spontaneous witnesses, 216. Summary trial, 19. 127, sq. ; 12.9, Summarium, 385. sq. Summaria facti cognitio, 61, 6,2, 201. Summing up, 45 394, 410-416. Suspension ex inf. consc., 82, 85,. sqv Suspensive appeals, 481-438, Synopsis of the trial, 44, 391-333;. Terms of trials, 382-384, 53&, 53*. Third Plenary Council of Balti- more, 154, 177, 179, 180, 181, 182,. Transfers of removable rectors, 593, sq. Trial, ecclesiastical, 17, 18, 123. Verbal confrontation, 356. Vindicatory punishments, 79, 80 81. w Warnings, 59. Witnesses, number 217; laics 219; pro informatione curue 227: enemies 233; repetition 236; examination 238 ; in a distant part of the diocese 248 ; out of the diocese 249. Witnesaes de relato, 267-271. UCS8 LIBRA mm