. ^ip'ip ?-** -\T4f UHt. V tf^]^~^O?. Y *>i*MiiV -> ^Hfa - ^W' vj& y^r^'ir - - tm v>-^ .>; *^-* - \' *'^ J **H JL * * i*wu^*~ y-- : xv ic" igt^/ftio^ - 4 > CANONICAL PROCEDURE IN DISCIPLINARY AND CRIMINAL CASES OF CLERICS. A Systematic Commentary on the "Instructio S. C. Epp. et Reg., 1880." BY THE REV. FRANCIS DROSTE. U EDITED BY THE REV. SEBASTIAN G. MESSMER, D.D., Professor of Theology. NEW YORK. CINCINNATI, AND ST. Louis : BENZIGER BROTHERS, PRINTERS TO THE HOLY APOSTOLIC SEE. R. WASH BOURNE, M. H. GILL & SON, 18 PATERNOSTER Row.'Losoos. 50 UPPER O'CONNELL STREET, DUBLIN. 1887. istat, H. GABRIELS, S.T.D., Censor Deputatus. Xmprfmatut, * M. A. CORRIGAN, Archiepiscopus Neo-Eboracensis. Datum NEO-EBORACI, Die 24 Maji, 1887. Copyright, 1887, by BENZIOER BROTHERS. EDITOR'S PREFACE. WHEN in the year 1880 the S. Congregation of Bishops and Regulars sent to the Bishops of Italy the now famous Instruction on the summary procedure in disciplinary and criminal causes of clerics, it soon became evident that the reform thus initiated would not remain confined to Italy, but would gradually find its way to other countries. Anti- cipating this, the Rev. FRANCIS DROSTE, a priest of the diocese of Paderborn, wrote a short and simple commen- tary on the new procedure, which he designed more for practical use than legal speculation. In order, how- ever, that the laws themselves on which the several articles of the Instruction are based, may be sufficiently under- stood, the author gives in the first part a short exposition of ecclesiastical jurisdiction and its judicial organs, while in the Introduction he determines the place occupied by the Instruction in the public and historical law of the Church. The Third Plenary Council of Baltimore in 1884, com- plying with the request of the S. C. de Prop. Fide, adopt- ed the same Instruction 1 with a few slight modifications (which may be seen at a glance in the Appendix']. It is a mere question of time when these same provisions shall be extended to all English-speaking missionary coun- tries; and as an English commentary on the Instruction was desired, a German priest of the diocese of Covington, Ky., translated Father DROSTE'S little book. To be of greater service, however, the work needed adaptation to conditions for which it was not originally intended. This labor was intrusted to the present writer, who confesses to having taken very great liberty with the translation as well as with the original work. DROSTE wrote for readers who had gone through a regular course of Canon law and were, moreover, acquainted with the practice of canonical pro- 1 Where this American Instruction differs from the Italian, we refer to it by its initial words. Cum Magnopere; to the other by LOrdinario; and where they agree, simply by Instr. 1880. To the Instr. S. C. de Prop. Fide on the Committee of Investigation (see Appendix) we refer by Instr. 1878. Finally to that on the Tridenline suspension (see Ap- pendix) by Instr. 1884. 8 Editor 's Preface. cedure. The editor hopes to reach a much larger class of readers. Hence explanatory notes have been added and a number of paragraphs of new matter inserted in the text (these being indicated by an asterisk, thus: 97*) to supply more of what he considers useful or even necessary infor- mation; again, for sections dealing witli matters of only local interest, others of a more general bearing have been substituted (thus in pt. i. sec. 3), and subjects too lightly touched upon by the author have been more fully devel- oped (as, e.g., that of judicial evidence). Besides, more system and perspicuity were to be obtained by placing what seemed logically allied subjects under one head, in- stead of leaving them, as originally, scattered in different places (thus were formed chap, i, 3, in pt. n. sec. i). In a word, the original has been so radically changed that the author will hardly recognize his German offspring in this " naturalized " American edition. DROSTE did not consider it necessary to insert copies of judicial formulas or documents, since they can easily be found in Bouix and Monacelli. With regard to legal phraseology the editor has tried to use English rather than Latin, notwithstanding his very imperfect knowledge of the former language. Not being a student of Common law he experienced great difficulty in finding the proper English equivalent for the Latin tech- nical terms and phrases of which Canon law possesses such an abundance. Yet with an English legal vocabulary at hand it did not seem proper to retain the Latin termi- nology in a branch of Catholic science that must become ere long an essential part of theological learning in all English-speaking lands. The editor is fully sensible that he has not given a perfect rendering; still a beginning had to be made. Vivat sequent. A word as to the references. The required series of the Analecta J. P. not being at hand, it was impossible to verify the references thereto made by the author. With the exception of these, however, and those to the Cor- pus J. Can. and the Acta S. S. (which were all verified), the rest are made by the editor to suit those readers who desire a fuller treatment of the subject or some authority for the opinion stated. Frequent reference Editor s Preface. 9 is made to the Commentators, that is to those canonists who have written regular commentaries to the Decre- tals of Gregory IX., the most important part of the Corpus J. C. and " the backbone of authentic Church legislation." ' These commentaries follow exactly the order of the Decretals as to book, title, and chapter. 1 Yet other, especially Roman, writers on Canon law are not neglected. No apology is deemed necessary for referring more frequently to recent than to ancient canonists. Law and discipline must change even in God's Church. Other times demand other laws, and new conditions require new provisions. From the older commentators we may learn the spirit of Canon law, the principles and traditional norms to be observed in its application and execution; but the laws of our own time and the actual practice must be learned from modern teachers. In this connection the Irish Ecclesiastical Record, 1. c., very appropriately remarks: " We need new books on Canon law for two reasons. In the first place each fresh effort helps to push forward the scientific treatment of ecclesiastical legislation beyond the old lines in one or more directions. Secondly, the law it- self, by reason of its daily expansions, requires further ex- planation where additions have been made or changes introduced, in order that we may know what it really im- plies in our own times and surroundings." This leads to another observation, here offered with due deference to learned jurisperitis. The Instruction of 1880 appears like a new creation. It is not a mere furbishing up of old material or putting together of what had once been parts of various canonical processes. It is a new legislation in spirit, character, and form. Although the matter is gathered from older forms of trials, yet there is evidently a new substantial form to unite them into a new canonical procedure that has no like in all the former laws. Roman teachers have already ad- mitted that although being called a summary and econom- ical procedure, yet/ the old rules on summary trials cannot be applied to the new process without further discrimina- 1 Irish Eccl. Record, :886. vol. vii. p 658. 1 De Angflis made an exception by reserving book II.. on trials, for the last volume in connection with book v., on crime and punishment. io Editor s Preface. tion; that although following on the lines of the older inqui- sition, it is yet of an altogether different nature. Hence the lengthy, detailed, and subtile disquisitions of older writers on the various forms of canonical procedure and the rules which they establish cannot be simply transferred to the new form, although they may throw great light on the na- ture and purpose of its several provisions and tell us in what spirit they must be carried out. It is, therefore, quite probable that not only will writers differ in opinion, but also that those whom it concerns will differ in practice. Until Rome, however, shall have decided such doubtful points, as it is anticipated she will (Instr., art. 44), it may be wise to remember that errors in the proceeding will not interfere with the course of law nor render a trial void as long as the substantial rules of justice are observed, and that as to this the law is in favor of the judge. A defend- ant or advocate who should, with Schmalzgruber on his right and Reiffenstuel on his left, enter a plea of nullity on the ground of irregular proceeding would probably discover too late that those learned counsellors referred to " another case." The present Instruction applies not to mere administra- tive measures or civil matters, but only to criminal and disciplinary causes. Discipline 1 here means correction, castigation, and even punishment. This is evident from arts, i, 2 of the Instruction, as well as from the answer of the S. C. de Prop. F., when it says that the Instruction of 1878 was meant for such cases "in quibus ecclesiastica poena seu censura sit infligenda, aut gravi disciplinari coercitioni sit locus." Hence the interesting question arises : How are the bishops to proceed in purely civil cases, as for instance, of a congregation against the rector or vice versa, or of cleric against cleric, when the matter cannot be settled amicably between the parties ? May they proceed on the lines of the present Instruction ? If not, why not ? In conclusion, mindful of the leading title of this work, the editor is tempted to hope (with the permission of the publishers) that the book may never be needed, but may rather remain " on the shelf." SKTON HAI.L COLLEGE, SOUTH ORANGE, N. J., May 1887. 1 See Dti Cangf, Glossarium, s. v. Disciplina. CONTENTS. PREFACE 3 REFERENCES . . . 14 INTRODUCTION. Chapter I. Object of the Ecclesiastical Law of Disciplinary and Criminal Procedure . . . 15 Cli;ipter II. Relation between the Canon and Civil Law of Criminal Procedure 17 Chapter III. Sources of the Present Canonical Criminal Pro- cedure 20 Chapter IV. Plan of this work 25 PART FIRST. ECCLESIASTICAL JUDICA TURE FOR DISCIPLINARY AND CRIMINAL CASES OF CLERICS. SECTION I. ECCLESIASTICAL DISCIPLINARY AND CRIMINAL JURISDICTION. Chapter I. Ordinary and Quasi-ordinary Jurisdiction . . 28 Chapter II. Delegated Jurisdiction 30 Chapter III. Jurisdiction of Vicars-General . . 34 SECTION II. COMPETENCY OF THE ECCLESIASTICAL JUDICIARY. Chapter I. Personal and Appellate Competency . . 37 C'lapter II. Local Competency 43 1 2 Contents. SECTION III. ORGANIZATION OF ECCLESIASTICAL CRIMINAL COURTS. PAGE Chapter I. Personnel of the Court 48 Art. I. The Judge 48 Art. II. The Auditor or Judge of Inquiry . . 52 Art. III. The Chancellor, Secretary or Clerk. . 57 Art. IV. The Apparitor . . . .61 Chapter II. The Parties 62 Art. I. The Prosecution ..... 62 1. The Fiscal Procurator . . .62 2. Other Plaintiffs . . . .70 Art. II. The Defence 71 1. The Accused ..... 71 2. The Advocate or Counsel . . 74 3. The Attorney or Proctor . . 76 PART SECOND. THE CANONICAL PROCEDURE. SECTION I. FORMS AND PARTS OF CANONICAL PROCEDURE. Chapter I. Forms of Procedure 78 Art. I. Judicial and Extrajudicial . . .78 Art. II. Accusatorial and Inquisitorial. The /- structio . . . . . .82 Art. III. Ordinary and Summary . . . .86 Chapter II. Judicial Evidence 91 Art. I. General Remarks ..... 91 Art. II. The Confession . . . . .,96 Art. III. Testimony of Witnesses . . . 101 1. Competency of Witnesses . . 102 2. Weight of their Testimony . . 105 3. Attendance of Witnesses . .no 4. Examination of Witnesses . .116 5. Publication of Testimony . . 119 Art. IV. Miscellaneous Evidence .... 121 1. Expert Opinion . . . .121 2. Written Evidence .... 122 3. Circumstantial Evidence . . 125 Contents. 1 3 PAGE Chapter III. Defensive Proceedings 127 Art. I. Terms and Exceptions .... 127 Art. II. Recusation 132 Chapter IV. Proceeding in Contumacy 136 Chapter V. The Sentence 138 Chapter VI. Various Matters 141 SECTION II. THE CANONICAL PRACTICE. Chapter I. Extrajudicial Acts . . . . . . . 144 Art. I. Canonical Admonitions . . . . 144 Art. II. Canonical Injunctions .... 152 Art. III. The Tridentine Suspension . , . 156 Chapter II. The Judicial Trial . . '. . :'.. . .165 Art. I. The Auditor's Inquest .... 165 Art. II. The Final Pleading and Sentence . . 172 Chapter III. The Appeal . .175 Chapter IV. Extraordinary Means of Redress . . . .187 Chapter V. Execution and Costs 193 APPENDIX. Instructio S. C. Epp. et RR. de Judiciis Ecclesiasticis Sum- mariis (English, Italian, Latin) ' 198 Instructio S. C. de Prop. Fide, circa Causas Clcricorum . . 199 Instructio S. C. de Prop. Fide, de Commissione Investigation is 226 Instructio S. C. de Prop. Fide.de Suspensionibusex Informata Conscientia . ....-* . ; . . 231 Decretum S. C. Epp. et RR. pro Causis Criminalibus . . 234 Extract from the Circular of the S. Congregation of Bishops and Regulars, I Aug. 1851 237 Dispositio Provisoria pro Actis Appellationis in Causis Crimi- nalibus, 26 Martii 1886 , 239 Ex Responso S. C. de Prop. Fide, 13 Julii 1886 .... 240 Constitutio Ad militant is .* 241 INDEX ......,, 259 REFERENCES. ^ The asterisk indicates commentators on the C. J. Can. Acta Sanctae Sedis. Romae. A monthly periodical of Roman docu- ments and decisions. AJP. =Analecta Juris Pontificii. Paris., A French monthly periodical of dissertations and official documents on Canon law and Liturgy. Bizzari, Andr, Collectanea in usum Secretariae S. C. Epp. et RR. Romae, 1886. Bouix. Tractatus de Judiciis Eccl. 2 vols. Paris, Bouvier. Law dictionary. 2 vols. Philadelphia, 1885. C. PI B. 7//.=Acta et Decreta Cone. Plen. Baltimorensis III. Cavagnis. Institutiones Juris Public! Eccl. 3 vols. Romae, 1883. Craisson. Manuale totius Juris Canonici. 4 vols. Pictavii, *De Angelis. Praelectiones Juris Canonici. 4 vols. Romae, 1877 ff. De Montault. Decreta authentica S. C. Immunitatis. Paris. Ferrari. Theorica et praxis regiminis dioecesani, praesertim sede vacante. Parisiis, 1876. Ferraris. Prompta Bibliotheca Canonica, etc. New edition. 9 vols. Romae, 1886. *Grandclaude. Jus Canonicum. 3 vols. Paris, 1882. Henry and Harris. Ecclesiastical Law (Methodist). N. Y., 1872. Hergenrother, Jos. Card. Catholic Church and Christian State. 2 vols. London, 1876. Irish Ecclesiastical Record. Dublin. An excellent theological and pas- toral monthly. Lucidi. De Visitatione SS. Liminum. 3 vols. Romae, 1883. Martin. Collectio documentorum Cone. Vaticani. Paderbornae, 1873. Monacelli. Formularium legale practicum fori eccl. 4 vols. Romae. Pallotini. Pugna Juris Pontificii statuentis suspensiones extrajudicialiter seu ex inf. conscientia, etc. Viennae, 1863. Pastor, 7 he. A monthly journal for priests. N. Y. Pierantonelli. Praxis fori Ecclesiastic!. Romae, 1883. Phillips. Compendium Juris Eccl. Ratisbonae. 1875. Prompsault. Diciionnaire de Droit et Jurisprudence en malifere civile- ecclesiastique. 3 vols. Paris: Migne. *Rciffenstuel. Jus Canonicum Universum. 7 vols. Paris. Richter el Sehulte, Canones et Decreta Cone. Tridentini Accedunt S.C.C. declarationes, etc. Lipsiae, 1853. Rota. Enchiridion Confessarii et Judicis Eccl, Taurlnis, 1884. *Sanli. Praelectiones Juris Canonici. 5 vols, Ratisbonae, 1886. Sanguineti. Juris Eccl. Privati Institutiones. Romae, 1884. * Schmalzgruber. Jus Eccl. Universum. i vols. Romae. Smith. Elements of Ecclesiastical Law. 3 vols. N. Y. 1887. Stremler. Trait6 des Peines cclesiastiques, etc. Paris, 1860. Thotnassini. Vctus Ecclesiae Diecipllna. Van Espen. Jus Ecclesiasticum Universum. CANONICAL PROCEDURE. Sntrottuction. CHAPTER I. OBJECT OF THE ECCLESIASTICAL LAW OF DISCIPLINARY AND CRIMINAL PROCEDURE. I. The right to threaten with punishment certain actions of her members, the Catholic Church received from her Divine Founder at her very origin. 1 She cannot give up this right, for that were to give up her existence ; to deny her this right were to deny her the right to ex- ist. It is, rather, one of her most important duties to ex- ercise this right to punish, and indeed history shows that she has ever, from her foundation to the present day, successfully administered it. In the exercise, however, of this right of discipline and punishment the Church has not only to make disciplinary and penal laws to be observed by her members, but also actually to apply them in a given case. The latter takes place in disciplinary and criminal procedure, the end and object of which is, first, a judgment to determine whether a person by a determinate act has violated a penal law and what punishment he has thereby incurred ; secondly, the infliction of the penalty. The penal precept is laid down by positive law, the violation thereof is determined by means of an inquiry, and the judgment or sentence is then the result of a logical inference, namely: 1 Matt, xviii. 15-18. 1 6 Introduction . Major: The clergyman who forges papal instruments shall be degraded. Minor: But the clergyman " N." has forged a papal instrument. Conclusion : Therefore Rev. ' N." shall be degraded. Criminal law or jurisprudence may be said to comprise two distinct parts, namely, the law concerning the crimes themselves and their corresponding punishments (ma- terial Cr. L. 1 ) ; and the law of determining the existence and nature of crime in a particular case and of applying the right penalty, or the Rules of Criminal Procedure (formal Cr. L. 1 ). 2. Whether a person have actually committed a delict, and if so, what be its disciplinary or criminal nature, in other words, what be the real matter of fact, can only be determined by inquiry and information. But as to how this is to be done, and how the judge may be con- vinced of the commission of such crime by such person, nations have held different views at different times ; in- deed, in every single case those of the judge, accuser, and accused would almost always differ. Hence the very mode and manner of proceeding in a given case, in order to ascertain the criminal character of an act, to refer it to its class in the criminal law and to impose the penalty incurred : the modus proccdendi itself must be regulated by law. The Catholic Church must, therefore, establish legal norms of disciplinary and criminal proced- ure, and in fact she has done so. It is the object of the science of ecclesiastical criminal procedure to establish scientifically, to combine organically, and further to de- velop the positive rules of procedure. 3. Ecclesiastical punishments are by custom divided into corrective and vindictive (simply or strictly called 1 These terms are explained by the fact that the first part treats of the matter (materia) on which judgment is to be given, the other of the form (forma) of it. Canon and Civil Law. 17 punishments), according as the primary object is either the correction (disciplina] of the offender, or retribution and expiation of the offence. 1 According to this, we may distinguish between disciplinary and criminal proceed- ings. By most punishments, however, both objects may be attained, 8 and as in order to establish the matter of fact a more or less formal proceeding takes place in every case, the terms disciplinary punishment and strictly called punishment as well as disciplinary and criminal procedure are often exchanged ; the more as the boundary line be- tween them cannot be easily drawn in practice. There- fore in the following pages we use both terms indiscrim- inately where they are not logically opposite. CHAPTER II. RELATION BETWEEN THE CANON AND CIVIL LAW OF CRIMINAL PROCEDURE. 4. The rights' of the Church in the domain of criminal procedure, abstractly considered, are exactly coextensive with her material criminal law. Besides the Church, the State also exercises criminal jurisdiction over its subjects, many of whom, if not all, are at the same time members of the Catholic Church. 1 There is yet another end of punishment, namely, the preservation of public order and the protection of society and its members. This end, however, may be said to be attained partly by the reform of the offender, partly by upholding the sanctity of the law, the moral sense of the public, and love of order by the expiation of the crime. * Rota, p 549 remarks: "Cerium est quod ecclesia quam caritas materna exercet duo tantum habet proposita in poenis infligendis; primum ut peccator ad bonam frugem redeat, alterum ut cetcri exemplo poenae a crimine deterreantur. Non enim invenies in Ecclesia elatos fas/ort-s qui ruliu-rari potius quam emcndare norunt." (Isid. Hispal.) * On the present chapter cfr. Pierantonelli, tit. I. 2 1 8 Introduction. But the Catholic Church, differing herein from the State, has a twofold criminal tribunal, a forum internum and a forum externum. The State, on the other hand, has only a forum externum, for de intcrnis nonjudicat praetor. In the forum internum the Church views the punishable act as sin and the punishment as penance, whose aim is rather to correct the sinner than to get satisfaction. Church and State, however, share jurisdiction in regard to such criminal acts as belong to the forum externum and for which punishment is inflicted as a retribution. But the question whether the criminal cause belong to the ecclesi- astical or the secular court depends upon the preliminary question whether the particular cause lie within the com- petency of the one or the other legislative power. To solve, in some degree, this preliminary question, eccle- siastical penalties are divided into spiritual and tempo- ral. 1 Spiritual punishments consist in the withdrawal of spiritual goods, rights, and offices. Temporal punishments have the loss of temporal goods and rights for their ob- ject. There is no doubt that the Church has the power to im- pose spiritual punishments. . . . 2 The Church, as history teaches, has in fact, when not prevented by the State, in- flicted all kinds of temporal punishment except those of death and mutilation. The State has not as yet anywhere sought to set aside on principle the right of the Church 1 Moulart, L'Eglise et 1'Etat. 424. * The author in the passage here omitted, having stated that the Church should not, in fact cannot, punish by death or mutilation, and that as regards other corporal or temporal penalties the Church has cer- tainly a historical or prescriptive right to inflict them, maintains that such a right cannot be proved "by principles," i.e., as we understand the phrase, from the very nature and constitution of the Church To us th; affirmative seems, on theological grounds, the only safe opinion. Consult Murray, De Ecclesia, vol. iii. pp. 103, ngff. ; Tapparelli, Saggio theoretico 1483 ff. ; Stremler. p. 13 ff . ; Craissan, n. 5501 ff . ; Schneeman^ Die kirchliche Gewalt, ii.; Cavagnis, I. n. 279 ff. Canon and Civil Law. 19 to institute and carry out disciplinary and criminal pro- ceedings before its own ecclesiastical courts in disciplinary and criminal causes against clerics. 5. The State, however, has but too often invaded the sphere of ecclesiastical jurisdiction, partly by denying and restraining the Church's right to inflict temporal punish- ments and partly by usurping jurisdiction even in purely spiritual matters. The plea for this usually was that the Catholic Church had on her part, as shown by history, invaded the jurisdiction of the State. The truth is that whenever the Church sat in judgment over purely tem- poral matters this right had been conceded to her by the State, as was the case under the Christian Roman em- perors; or the people, unable to get any justice from the shattered and impotent secular authority and its courts, turned to the Catholic Church who had a nicely wrought system of criminal procedure even at the time when in the secular courts the proof of a crime committed was as yet supplied by the wager of battle, the ordeal, and the torture. The Catholic Church can never acknowledge the jurisdiction of the State in purely spiritual matters. She has ever repelled it ; the last time in the bull Apos- tolicce Sedis of Pope Pius IX., October 12, 1869.' In other matters Church and State stand apart from each other as two independent powers who had best regulate their common affairs by a mutual agreement, in a similar way as was done for the courts of the Papal States by the Secretary of State, Cardinal Bernetti, in November, 1831. The best way to solve this difficult problem history and reason have always shown to be this, that the Catholic Church cultivate a wise criminal legislation and practice, and especially provide for a well- regulated criminal procedure ; then, that the State lend her its physical power, wherever she may need it to en- Also in v., vi.. prop. 19, 20, 30, 4:, 44, Syllabus. 2O Introduction. force her criminal laws. The State would thus fulfil its duties as well as better attain its objects. If, however, the Catholic Church and the State, each being independent, cannot agree on this common do- main, a conflict will naturally arise between them. 1 In such a case the Catholic Church, ever inclined to peace, will yield in point of fact and as far as she can without endangering her own existence, founded as she is by God and destined to last to the end ; but at all times she will firmly maintain her inalienable rights. Where these cannot be fully and freely exercised, as is the case at present in many European countries, e.g., in Prussia, she allows them to lie dormant for a time, and is satisfied with imposing such penalties as naturally cannot be grasped by the physical power of the State/ CHAPTER III. SOURCES OF THE PRESENT CANONICAL CRIMINAL PRO- CEDURE. 6. Three elements of a regulated criminal procedure, viz., the accusation, the trial, and the judgment which constitute its essence, belong to the natural law. To these essential elements of every criminal procedure the ecclesiastical judge of the first centuries of Christianity would add, from the Roman law, such rules afnd regula- 1 On the Pre-eminence of the Church over the State see Card. Hergen- roether. Cath. Church and Christian State, vol. ii., essay xiii., part i. ; also Card. Tarqulni, Jus Eccl. Publ., 1. I. n. 33 ff., " De statu conflictus." and again n. 55 ff. ; Cavagnis, I. n. 350 ft.; Allies, Church and State, pp. 70 ff. * Cfr. the pertinent remarks on ihe privilegiutn fori in The Pastor, H. pp. 193. As a historical commentary on this whole chapter read Card, Hergenrotther, \. c.. essay xv,, " Eccl. Jurisdiction." Sources of the Present Procedure. 2 1 tions as appeared to him useful for his purpose. Thus simply by practice was formed the so-called Procedure by way of Accusation, analogous to the Roman, and adopted by Gratian in the Decretum. It remained the usual criminal procedure till the time of Pope Innocent III., whose legislation marks an epoch even in the history of secular criminal law. It was he that brought forth a new work, the Procedure by way of Inquisition. The greater number of Papal ordinances concerning ecclesiastical criminal procedure are contained in the Decretals of Gregory IX., first, second, and fifth books, which modify many older rules contained in the Decre- tum Gratiani. The later Popes down to the Council of Trent have made but few new regulations. The Corpus Juris Canonici does not itself contain a complete system of ecclesiastical criminal law. This has to borrow from the Roman law many maxims, of which only some, i.e., such as could be modified, are received in the canonical law books. For points of criminal procedure which are wanting in the Corpus Juris Canonici, practitioners and canonists of all times refer to the Corpus Juris Civilis as containing a source of valid law for the Roman, i.e., the Catholic Church. Besides, the laws of civil and crimi- nal procedure were formerly not so sharply distinguished as at present, and many rules of civil procedure were ap- plicable in criminal trials. 7. Thus, indeed, the Council of Trent found a complete system of ecclesiastical criminal procedure of which the foundation was the Corpus Juris Canonici, but the com- plement in the Corpus Juris Civilis. The Council of Trent effected many and especially radical changes in criminal jurisdiction, and introduced the important Sen- tentia ex informata conscientia. Since then, however, the development of the law in this particular has not been at a stand-still. It is pre- 2 2 Introduction. cisely the law of criminal procedure, more than any other part of public law, concerning which the views of the times depend upon the existing political conditions, and where the intellectual and moral development of the several nations and states must be taken into considera- tion. But more especially is to be borne in mind that criminal procedure is but a means to an end. This end, indeed, must always necessarily be attained, yet the means thereto are different. Of these now one then another may appear more appropriate according to cir- cumstances and views. Finally, one cannot ignore the fact that science also has made progress upon this field. Since the Council of Trent the Popes by enacting for the whole Church general norms only of criminal pro- cedure, have made little allowance to the needs of the time. We may except the celebrated Constitution of Benedict XIV., Ad militantis? by which he abolished some abuses in appeals and inhibitions. Development of the law in this particular could only proceed by way of custom and special legislation. Yet even the ecclesiasti- cal law of custom, especially after the Church has at- tained her immense international extent, can be only particular or local law. This becomes still more evident when we consider how differently civilization was devel- oped among the nations, and how manifold and various were the relations between Church and State. The Catholic Church has everywhere within the last centuries endured great trials; in Germany, in particular, other ecclesiastical societies combined with the temporal power to oppose her. In many other countries she could not for a long time exercise her criminal jurisdiction in the manner desired by Canon law, much less could she think of further development in the proper sense.* 1 See Appendix. 8 The author gives here a very short sketch of the history of Canonical Sources of tke Present Procedure. 23 Of the highest importance for ecclesiastical jurispru- dence everywhere is the progress of canonical criminal law in Italy. There the Popes themselves continued to legislate on criminal procedure, a duty which they could the less forsake that they had also temporal do- minion over the Papal States. They usually availed themselves of the Congregation of Bishops and Regulars to issue new ordinances for the canonical trial. Clement VIII. and Urban VIII. issued decrees touching appeals and inhibitions, which Benedict XIII. expounded at the Roman Council of 1725, where he also abolished the oath of the accused. After Benedict XIV. had by the afore- mentioned constitution Ad militant is regulated the same matter, Pius VII. by the bull Post diuturnas defined the competency of the Congregation of Bishops and Regu- lars in criminal matters. In fact this Congregation has in the present century issued a series of important de- cisions upon ecclesiastical criminal procedure, e.g., upon the legalization of causes in 1832, on appeals and appel- late courts in 1835 and 1851.' 8. On June nth, 1880, our present gloriously reigning Pope Leo XIII. issued, through the Congregation of Bishops and Regulars, an instruction for ecclesiastical courts on the summary process in disciplinary and criminal cases against clerics, which deals almost exclusively with the mode of procedure and is formal law for Italy only.* This instruction is the more remarkable and important that it comprises the most essential rules of canonical procedure which the Roman Congregations for the last Procedure in Germany. For any one desirous of following the historical development of Ecclesiastical Criminal Law since the Council of Trent, in Austria. France, Germany, and Italy, we know of no better source of information than the famous " Colleclio Lacensis Conciliorum Kecen- twrwn" 5 vols., published by Herder in Freiburg, Baden, 1870 ff. 1 See Appendix. 1 See Preface. 24 Introduction. three centuries have held to be applicable, and have themselves made use of, although not so much for their own tribunals where some departure from ordinary pro- cedure takes place, but rather for the courts of the lower instance, the legal validity of whose causes they have to examine as appellate courts or higher instance. With only a few exceptions that instruction is composed ver- botenus of the numerous rescripts of those Congregations. It is, in one word, the result, compressed into short para- graphs, of the development of ecclesiastical disciplinary and criminal procedure as it progressed in the course of centuries formally and explicitly in Italy, substantially in the whole Catholic Church. 1 It would appear that the result of the growth of par- ticular laws on ecclesiastical procedure, being influenced by so many different agents, should be exceedingly varied and unequal according to different countries, provinces, and dioceses of the Church. Yet if we com- pare them so far as they are accessible to us, we find a remarkably slight difference. This circumstance arises from the fact that the gradual advancement started from an already well-developed and solid foundation, the gen- eral Canon law, and progressed but very slowly. Be- sides, there was Italy and especially Rome, where on account of the larger practice the development was al- ways a few degrees in advance, to serve as a standard. Not only that. The various particular laws found also at Rome their centre of unity; for besides the fact that the positive leges scriptae particulares were to be submitted to the Popes for examination and approbation, there was at Rome the supreme court where all complaints and " It would seem that in this Italian Instruction we have the ground- work of what is destined to become the mode of proceeding in criminal and disciplinary causes of the clergy throughout the universal church." 7 'he Pastor, II, 194. Plan of this Work. 25 recourses relative to criminal trials were finally brought together and acted upon. The decisions of the Roman Congregations, therefore, in regard to disciplinary and criminal procedure continue to be a steadily flowing source and regulating principle of the law of ecclesiastical criminal procedure. CHAPTER IV. PLAN OF THIS WORK. 9. Ecclesiastical criminal procedure cannot be, as ex- perience teaches and as we have already mentioned (n. 3), without just and legally regulated forms, if, on the one hand, the Church would accomplish her object and fulfil her duty of maintaining order and discipline, and, on the other hand, would assure those whom it mostly concerns of the justice of her proceedings. In every criminal procedure we must distinguish between material forms, that is, those whose non-observance would make the proceeding void, and immaterial forms which may be neglected without the proceeding becoming void on that account, a distinction very similar to that between preceptive and mere directive rubrics in Liturgy. 1 The substantial requisites and formalities of procedure must, therefore, be the same in all ecclesiastical tribunals; to depart from, or omit, them altogether as a rule cannot be thought of; for every such proceeding would be eventually amended or simply reversed at least by the highest instance. On the contrary, accidental formalities, mere directive norms may be different in the one and 1 On these material (essential, substantial) and immaterial (non-essen- tial, accidental) forms, cfr. below, n. 50 ff. 26 Introduction. the other court according as either the bishop has laid down or practice established obligatory forms ; their choice, application, or omission depends upon various circumstances and reasons of expediency. Canon law contains many cumbersome and vexatious though in themselves quite immaterial forms, taken from the Roman law, and which the canonical codes no less than the older practice declared essential and obligatory. It was on these forms that disputes continually arose concerning the violations of the rules of procedure ; and the frequent reversals and long delays of causes brought the whole procedure into discredit, until finally those forms went out of use in one court after the other, as they had already in the supreme court at Rome. The progress of the Catholic Church at present is of the kind that while internally she is growing in strength and power, yet in unfolding her external life she is con- fined to the minimum. The ecclesiastical law of criminal procedure also has endeavored to divest itself as much as possible of all empty forms, and instead of them to offer better services to justice. It thus happens that almost everywhere in the Catholic Church criminal procedure puts on a summary character, that is to say, it discards all those unsuitable and troublesome forms just above mentioned. Rome herself and Italy give the example. IO. We intend, in the following pages, to give a short systematic exposition of canonical disciplinary and crim- inal procedure against ecclesiastics. We exclude, there- fore, from our treatise the criminal procedure against laymen. Against these the Church nowadays proceeds only in case of very great necessity, viz., when by their conduct they give great public scandal. In the course of centuries several kinds of canonical criminal procedure against ecclesiastics were contem- poraneously and successively in use, but are no longer at Plan of this Work. 2 7 present. Setting aside the Notorium and the Dcnuntiatio in its canonical technical meaning, the so-called Procedure by Inquisition will be found to be almost the only one in practice. It has, however, nowhere been kept in its purity, but has especially in recent times approached the Procedure by Accusation? We shall occupy ourself with explaining only the ecclesiastical disciplinary and criminal procedure as now in use, and shall keep out long historical discussions, as also the solemnitates et strepitus judicii. Still we do not confine ourself to s\.r\Q\.\y judicial proceedings, but speak likewise of extrajudicial actions. This with a greater right since the latter often stand in relation to, and con- nection with, the former and should, whenever possible, precede it. It is in the nature and spirit of the Catholic Church that, where it will suffice, extrajudicial proceed- ings should be the rule. In regard to the matter to be presently dealt with, we have only to remark that we shall make use of the sources mentioned in the preceding chapter as they deserve. After what was said there we need not explain why we adhere with partiality to the rules of the Instructio of 1880, and why we give it, where it goes beyond the older Canon law, the preference over mere private opinions of canonists. We shall distinctly mark the essential or substantial requirements of the procedure. Directive norms we take, so far as they cannot be found in law books, from decisions of the Roman Congregations. We are ready to hear practitioners object that many things are managed differently with them, and we have no objec- tion if they desire to retain their fond old customs. 1 See below, n. 47 ff. ECCLESIASTICAL JUDICATURE FOR DISCIPLINARY AND CRIMINAL CASES OF CLERICS. SECTION I. ECCLESIASTICAL DISCIPLINARY AND CRIMINAL JUKIS- DICTION. CHAPTER I. ORDINARY AND QUASI-ORDINARY JURISDICTION. ii. The powers of the ecclesiastical judicature are di- vided by canonists of more recent times into jufisdictio ordinaria, quasi ordinaria or vicaria? and delegata. This division, though not entirely satisfactory, may yet be kept in ecclesiastical criminal law. The Pope has jurisdiction over the whole Catholic Church, and each bishop over his diocese. Their juris- diction is ordinary (/. ordinaria), because their offices with and by which they receive jurisdiction are perma- nent institutions of the Church, and consequently their jurisdiction is permanent and regular. The bishop is the Ordinary par excellence. To the ordinaries the instruction LOrdinario is addressed. The Pope and the bishops have ordinary jurisdiction by divine law. In the course of time positive law resulting 1 Cfr. Commentators, in 1. I. tit. 31. Ordina ry Jurisdiction . 2 9 from previous facts gave ordinary jurisdiction also to Archbishops, Patriarchs, Primates, Exarchs, the Papal Vicars of Thessalonica and Aries, and those Papal author- ities in Rome to whom in certain matters the regular power to decide has been granted. 1 Upon a very peculiar legal title, finally, rests the ordi- nary jurisdiction which the exempt Prelates with quasi- episcopal authority, the regular chapters, and the Cardi- nals in respect to their titular churches enjoy. 8 12. Quasi-ordinary or vicarious (vicaria) jurisdiction* has this in common with the ordinary, that it is also united with an office, though not always with a permanent one, and that when not limited by statute or the will of the appointer it is generally of the same extent as the corresponding ordinary jurisdiction. From this, however, it differs in that it can be withdrawn not only by criminal sentence, but even at any time and at pleasure by the Pope or by any other person to whom such right belongs. Quasi-ordinary jurisdiction belongs to the chapter sede vacante, or more correctly to the vicar capitular; 4 also to the bishop's Vicar-general, the Coadjutor Bishop, and the Vicar Apostolic. 1 Decision of Gregory XVI., 1840. AJP. XII , 554, 943. * Cardinals have no longer judicial, but only administrative, power over their churches. See Santi, \. i. tit. 31. n. 36 ff. * See Commentators. 1. I. tit. 28. 4 Although with us the Administrator of the diocese, sede vacante, holds a similar position as elsewhere the Vicar Capitular, yet his jurisdiction is not vicaria or quasi-ordinary, but merely delegated Cfr. C. PI. Bait. II., n. 96 ff. 30 Ecclesiastical Criminal Jurisdiction. CHAPTER II. DELEGATED JURISDICTION. 13. Whoever holds ordinary or quasi-ordinary jurisdic- tion has the right, so far as it is not restricted in the latter case, to transfer his judicial power to another, to delegate it. The delegate (substitute) has then power by transfer, mandate, or commission (y. delegata, also called mandata}. 1 Consequently he does not exercise jurisdic- tion in virtue of his own right, which he originally ob- tained with an office or the like, but in the name of him who has charged him therewith. We distinguish between delegatio a jure (by law) and d. ab homine (by official). 2 Delegated jurisdiction is mostly of the latter kind. An instance of the former we have with bishops who by several statutes of the Council of Trent, therefore by law or a jure, are made once for all either simply or moreover (etiani) delegati Sedis Aposto- licae for various matters which were formerly reserved to the Pope, or at least were generally administered through his legates. In all cases in which the bishops act simply as (tanquairi) delegates of the Apostolic See, they have not ordinary jurisdiction, otherwise a delegation would have no sense. On the contrary, in those cases in which they are empowered to act as being moreover (etiam tan- quant) Apostolic Delegates, ordinary jurisdiction in the matter abstractly considered does generally belong to 1 Phillips, 177, 178. Bouix, t. I. p. 142. Craisson, n. 307 and 5?72 ff. Commentators, \. \. tit. 29. * In the first case the power to act is conferred upon the delegate or deputy by positive law or statute, whereas in the latter it is derived di- rectly from the principal whose agent the delegate becomes. Delegated Jurisdiction. 31 them, but some particular circumstance, some privilege, etc., coming between, the object of their jurisdiction be- comes differently qualified, the person exempted, etc., so that ordinary jurisdiction now no longer suffices, and con- sequently the actual jurisdiction of the bishops in the matter is to be considered as being obtained by papal delegation. This seems to us with Hinschius 1 the only true construction of the phrase etiam tanquam Sedis Ap. delegati? The question whether in a particular criminal matter the bishop exercise jurisdiction as Ordinary or as delegate becomes practically very important in two cases. For in the latter supposition the metropolitan court is dropped from the order of appellate instances ; ' and when the episcopal see becomes vacant, those delegated powers of the bishop do not pass over to the chapter or the vicar capitular. 4 To be capable of obtaining delegation to exercise ec- clesiastical disciplinary and criminal authority, the dele- gate must possess the same qualities which in these matters are required of the ordinary judge and which will be spoken of later (n. 24 ff.). Only by reason of being subject to the delegating person as to his superior 1 Kirchenrecht, I. 178. 1 The ordinary view is that in those cases the bishop has ordinary as well as delegated jurisdiction, and may act by the one or the other. In case of doubt he is supposed to have proceeded by delegated power, that being the more honorable one as coming from the Pope. Craisson, n. 287; Stremler, p. 445; De Angelis, h. t., n. 2; Santi, h. t., n. 3. 3 The appeal will lie directly to the Holy See. 4 There is yet another division of delegated jurisdiction; viz. that ob- tained by special or by general delegation. By the first the delegate is empowered to transact some single, special matter (ad unum negotium); by the latter he is deputed indiscriminately for a whole class or kind, or even several kinds of affairs (ad univfrsitatem causarum). Finally, delega- tion by official may be respectively called official or personal, accordingly as it was given either in view of the office and rank held by the dele- gate, or merely because of his personal qualities. 32 Ecclesiastical Criminal Jurisdiction. can the delegate be bound to accept the delegation. Hence the Pope can effectively delegate every cleric ; but a bishop, as a rule, only his diocesan clergy. However, to decline such delegation, if done so for good reasons, is allowable. A delegate has not, without the express or implied concession of the law or the principal, the right to transfer to a third party his delegated jurisdiction; he has not, as we say, the right to subdelegate. Such right belongs to Papal delegates (except the delegation be personal} and to those who are delegated in universitatcni causarum. Also when two or more are jointly delegated, any one of them may commit his part to some one else or to one of his fellow-delegates. 1 14. The jurisdiction of the delegate begins at the mo- ment he receives the written commission (letters-patent) from his principal. 8 Any strictly jurisdictional acts pre- viously done are void ; not so, however, simple inquiries made for the sake of information. Upon demand of the parties the delegate must show his credentials. His juris- diction expires 8 either with the lapse of the time (term) for which he was delegated, or by the final execution of his charge; also the moment he receives notice of a recall by his principal, which the latter is always entitled to make ; again by a successful recusation, or by declaring himself incompetent because of defective delegation. After the death of his principal the delegate can only then carry the proceedings to the end, if they are already begun, which is done by the citation of the parties. Dele- gates by law, however, do not lose their authority by the death of their principal. 1 c. 6, X.. I. 29. Santi, h. t , n. 25 ff. 1 c. 12, X., II. 28. Santi, h. t.. n. 19 ff. 8 On the cessation of delegated authority see Santi, h. t., n. 33 ff. ; Crais- JOH, n. 490 ff. Delegated Jurisdiction. 33 By the death of the delegate himself the delegation terminates, if he was delegated personally and not as the incumbent of an office of fixed duration ; since in the latter case the delegation usually passes to his successor in office. If several were delegated with collegiate or asso- ciate power, then, by the death of one the commission of the others also terminates, if he did not subdelegate some one else in proper time (provided he could have done so), and if the proceeding was not already under way. 15. The nature and extent of the delegated power is determined by the written commission of the principal. Delegation is in its nature stricti juris (of strict interpre- tation) and cannot, therefore, in case of doubt be pre- sumed to cover other cases and persons. 1 Going beyond the commission will as a consequence void the proceed- ings. If several are delegated, then the special mandate passes over the general, and a later one over the earlier.* Where special commissions of equal date are given to several delegates in solidum, they may agree among them- selves to leave the whole cause to one of them. If any doubts arise among them on the powers conferred, and if they cannot themselves settle the question, they must choose according to Canon law arbiters to do it.' An appeal lies from the delegate to his principal ; but if a Papal delegate has sub-delegated his whole commis- sion, he drops from the order of instances and the appeal is taken immediately to the Pope. Likewise, in case he had given over part only of his commission, if he die or the major excommunication be passed upon him. When 1 S C. C., 22 May 1875; apud Acta S. S. vm. 675. 1 Commentators in 1. I. tit. 3, " de rescriptis." Santi, h. t., n. 26 ff. * c. 16, X., h. t. On Arbiters cfr. Commentators in 1. I. tit. 43. We omit here from the author's text a paragraph on joint delegation. Cfr. on the subject Santi, \. I, tit. 29, n. 25 ; Craisson. n. 5575 ff. 34 Ecclesiastical Criminal Jurisdiction. two of the three delegated judges have transferred part of their authority to two other persons, and now these sub-delegates proceed, in the matter committed to them, jointly with the third delegate, then the appeal from their decision does not lie to the first two delegates, but to the original mandator. 1 Again, an appeal may be made from a sub-delegate in partem on the plea that the principal died before either the delegate or sub-delegate had in any manner begun the action. In this case the appeal would have to go, not to the delegate, whose jurisdiction is denied, but rather to the principal. The same must be observed in all cases where the jurisdiction of the dele- gate is put in question. For by appealing on that plea from the sub-delegate to the delegate the appellant would at the same time admit and yet deny his jurisdiction, and thus contradict himself. 1 CHAPTER III. DISCIPLINARY AND CRIMINAL JURISDICTION OF VICARS GENERAL. 16. The vicar-general* is the ordinary representative of the bishop also in criminal jurisdiction. His jurisdiction, however, ceases when the bishop himself conducts pro- ceedings ; it is suspended, if the bishop or himself be suspended, interdicted, or excommunicated ; it terminates immediately with the death of the bishop, in whatever stage the cause may happen to be. In this, indeed, it 1 c. 3, in 6, i. 14. 3 c. 14, ibid. * Commentators deal with this question under tit. 28, De ojficio vicarii, 1. I. Bouix, I. p. 413 flf. ; Craisson. n. 1162. Jurisdiction of Vicar-General. 35 differs from delegated jurisdiction by which the delegate can at least finish a proceeding already begun. Besides, the vicar-general can be dismissed at any time, at the pleasure of the bishop. This jurisdiction of the vicar-general, however, does in no way extend to all criminal matters. In some acts, as we shall see later, he cannot represent the bishop at all. According to law and custom, general criminal jurisdic- tion is not conferred by the instrument by which one is appointed vicar-general. In fact, he is deprived of al- most all criminal jurisdiction, especially in more weighty matters.' Even those faculties which are otherwise gen- erally contained in such a commission, the bishop can withhold. Criminal judicial powers, however, though not contained in his general commission, may be given to the vicar- general by a special mandate from the bishop, except in the cases reserved by the law. This can be done in two ways, either for all cases that may arise, or only for a single case that has already arisen. In the first case, the transfer will hardly be made otherwise than upon the vicar-general as such, so that in virtue of a special man- date given in his letters of appointment, he exercises criminal jurisdiction in general or with certain restric- tions as vicar-general or representative of the bishop, and not purely as delegate. In the second case, when he is clothed with special power for a particular cause, it may sometimes be doubtful whether it was conferred upon him as vicar-general, or whether he has only become a simple delegate. This question is practically of great importance, for no appeal lies from the vicar- general as such to the bishop; but it does, when he acted only as episcopal delegate. As his commission, however, ir, in every case conferred in writing, recourse must first 1 Santi. 1 i. tit. 28, n. 32. 36 Ecclesiastical Criminal Jurisdiction. be had to that document. If this do not solve the question, the presumption, at all events, is in favor of his being charged as vicar-general, and that, conse- quently, no appeal lies from him to the bishop. Exactly the same principles are applied, mutatis mutandis, when there are several vicars-general. In that case the criminal jurisdiction is often conferred on one of them only, who in some places bears the name of Official. 1 17. The vicar-general, as he is not the Ordinary him- self, and is, therefore, not presumed to have authority in all criminal causes, must in the exercise of his criminal jurisdiction prove his authority to the interested parties, provided it have not already been made officially known. His powers must each be shown from his written man- date, to explain which custom may even of itself suffice. Yet to prevent the proceedings from being subject to abatement, it will generally be better to have recourse to the bishop, that he may himself authentically interpret the commission. In the same manner we must answer the next question, whether the vicar-general can, in a particular case, dele- gate or perhaps even sub-delegate. This question is, as a rule, to be answered affirmatively. In case of the bishop being absent, the vicar-general, if sick or otherwise prevented, has the right to sub-delegate another for the most urgent cases. Such sub-delegate would retain his authority, even if the vicar-general should die, until the bishop shall have further provided.* 1 Cfr. the interesting article s. v. Officially apud Prompsault. 8 S. C. Epp., 12 Aug. 1833. AJP., xni. 69, 899. SECTION II. COMPETENCY OF THE ECCLESIASTICAL JUDICIARY. CHAPTER I. PERSONAL, REAL, AND APPELLATE COMPETENCY. 1 8. All criminal and disciplinary causes of bishops' which are punishable with deposition or privation of the benefice, the Pope himself decides 'in the first instance. If an inquiry is to be made at the place of the delict or delinquent, he can delegate for that purpose an arch- bishop or a bishop only, and that by instrument signed under his own hand; minor transgressions of bishops can be acted upon by provincial councils, who may dele- gate others for the purpose. 9 As we have before observed, the Pope has full jurisdic- tion over all ecclesiastics of the whole Church. There- 1 On the subject of this section cfr. Commentators. 1. n. tit. 2, " de foro .competent!. " Also Bouix, I. p. 242 ; Craisson, n. 5653 ; Smith, n. 781 : Sanguined, n. 547. We use the term competency in the meaning that it has in Roman or French law, in which, however, it seems to be seldom used by American or English writers. They prefer the term jurisdic- tion or the Latin ftrum. See Bottvier, h. v. Real competency is some- times termed jurisdiction of the cause, as distinguished from j. of the person and/, of the place. The same threefold distinction is observed by canonists. " Competentia procedit ex ration f ten itot it . . . vel ex natura causae . . . out ex qualitate personaritm." (Sattti, h. t , n 3.) * Cone Trid., S. xxiv.,c. 5, de Ref. See the report of the trial of Jean Soanen. Bp. of Senez, by the Provincial Council of Embrun, France, 1727 (Coll. Lac. cit., vol. I. pp. 655-742). 38 Judicial Competency. fore his jurisdiction over the clergy who are subject to bishops is, in the first instance, concurrent with that of the bishops. He should, however, according to the de- cree of the Tridentine Council,' only then assume juris- diction in disciplinary and criminal causes in the first instance, and by passing over the episcopal instance, when the proceeding has been pending in the episcopal court already for two years without judgment having been rendered, or when the parties have with the con- sent of the bishop applied to him. For all disciplinary and criminal causes, even the greater ones of his secular clergy, as likewise for transgressions of regulars which have taken place outside of the monastery (provided the superior of the order do not take action in proper time'), cognizance in the first instance belongs to the bishop,' that is, in general to the Ordinary, or to whoever is by law or by mandate his representative. Such are usually the Coadjutor bishop, the vicar-general, or Official, and sede vacante the vicar-capitular. From their sentence, however, no appeal can be taken to the bishop (unless it be quite certain that they acted merely as the bishop's delegates, a rather unusual thing in such matters), be- cause their court and his are but one instance. 4 19. Appellate judges in the second instance * are the 1 S. xxiv., c. 20, de Ref. Cfr. Bened. xiv., Ad militantis, 42. * Cone. Ttid., S. xxv., c. 14. de Regul. et Mon. 3 Ibid., S. xiii., c. 4, de Ref. 4 From a decision of the S. C. C., 20 Dec. 1873, the Acta S. S., vil. 575, argue Episcopum cum suo consistorio sive curia unttm idemque tribunal conslituere. On the vicar-capitular cfr. Ferrari, tit. 7, 21. * Although the Holy See has an unlimited right to receive appeals from the first instance, it is yet a maxim of Canon law also, that appeals should not be made per saltum (Cone. Trid., S. XXII, c. 7, de Ref.), i.e. passing by the intermediate appellate court. Still where this rule cannot be easily observed, an appeal from the Ordinary may be taken immedi- ately to the Holy See. This was customary in the Province of West- minster until 1884, and is still left free to tho clergy of Ireland. (See Personal and Appellate Competency. 39 Metropolitans. In respect to causes which the metro- politan decided in the first instance as Ordinary of his diocese other provisions must be made. 1 In Prussia the PI. Syn. Maynooth, 1875, n. 265.) In the postulate of the French bish- ops at the Vatican Council they say: Appellationes ad S. Sedem omisso medio secnndae instanliae, metropolitans scilicet, nan deberent admitti. Similar requests had been made long before at the Council of Trent. {Martin, p. 155 f.) In tke United States an appeal to the metropolitan in the second instance was first made obligatory by the Provincial Coun- cil of St. Louis, 1855, whose decree was sent by Rome's request to the other American Provinces as a norm to follow. It was again formally adopted by the second plenary Council of Baltimore, 1866, in n. 77. In the same Council the Apostolic Delegate was requested by the S. C. Prop, to insert as one of the rights of the Archbishops (which the fathers had omitted from their enumeration) to receive appeals from the sen- tences of their suffragans (n. 8l, IV.). The same is again implied in the Instruction, art. 33, 41. See Rota, n. 807. 1 By the general law of the Church an appeal from the metropolitan either as such or even as Ordinary lies immediately to the Holv See. Yet that his own subjects might have the same privilege as his suffragan clergy, namely, to carry an appeal to two higher courts, and in order to expedite matters by bringing the case to a nearer tribunal, different ways have been adopted according to various conditions. Three of them deserve special mention. First, the metropolitan has two distinct tri- bunals, one the diocesan (of the first instance), the other the metropoli- tan (of the second instance). To the latter go all appeals whether from his own diocesan or from the suffragan courts. Such an Officialite 1 mttropolUaine (auditorium metropoliticunt) was ordered by the Provincial Councils of Rheims (1849), Albi (1850), and seems to be generally estab- lished in France and in Prussia. Another way is to make the senior suffragan the judge of the second instance for cases from the metropoli- tan 'sown diocese. This, we think, is the case in Bavaria, and has been by decree of the S. C. Prop.. 20 June 1884, made the rule for the diocese of Westminster. A third mode, finally, is to carry the appeal from the metropolitan of the first instance outside of the province to another, mostly neighboring, metropolitan. This happens in Austria and with us in the United States. The third plenary Council of Baltimore, n. 316, has expressly ordered, by special concession of the Holy S&e, that in the present case an appeal shall lie ad Metropolitanum viciniorem. A motion was made at the same Council, if we are rightly informed, lo decide at qnce which one should be considered for earh metropolitan his respec- tively nearest appellate court. But we have never heard of the decision. 4 virot peritot ad cas instituendas deputare, edere decreta pro recta ac- lorum compilatione; uno verbo, omnia praestare tain in disquisitione prac-via quam in processu probatorio, qua judifis propria sunt." Personnel of the Court. 55 The auditor must have the assistance of a secretary or clerk to write the minutes (art. 12). Both must take the oath of office. 1 The auditor is, from the nature of his office, much ex- posed to the danger of becoming prejudiced. Consider his position : unprejudiced he enters upon the inquiry ; convincing proofs of the guilt or innocence of the ac- cused do not immediately appear ; some indications, how- ever, do. Quite unconsciously he forms an opinion be- forehand as to the guilt or innocence of the accused. It is a prejudice. He examines further ; the preconceived opinion may change, but it may also fix itself more firmly on his mind, and often is very strongly settled there even before the inquiry is closed. In such a case there is no other course left than to strictly follow the legal rules of evidence. It is only thus that any prejudice may be set aside and the inquiry be conducted impartially.* How differently with the judge who has to give the final deci- sion ! He is presented not with a mere ex /^restatement, but with all the evidence at once a great assurance of his impartiality. 29. The auditor, provided the vicar-general as such do not investigate, is only a judge delegate; hence an appeal to the bishop against his proceedings is admissible. Yet in causes against clerics the auditor must necessarily be 1 Instr. Cum Magnop., art. 18. The actorum redactor or instructor (il compilatore degli atti) in art. 29 is not the secretary, but the auditor him- self. Such is the rule with the S. C. Epp. " C'est le juge rapporteur, et non pas le secretaire, qui fait 1'abrege du proces qui doit etre livre 1'ac- cuse ou son dcfenseur, pour servir de base la defense. C'est aussi le juge rapporteur qui fait relation de la cause la Congregation des Car- dinaux." (Stremler, p. 608.) 'Rightly say the Ada S. S., xv. p. 385. of the auditor: " Cuiqut patet quanti faciendum sit at Hit. quibus tarn magni momenti opus commit- titur ut de aliorum actionibus inquirant. non modo doctrinae sed et frobitatis, integritatis sanctatque vitae fama ceteris praecellant" 56 Organization of the Courts. himself a cleric, 'as stated above (n. 24), although he is only a delegate and has no right to pass sentence. This rule of Canon law cannot be abrogated by any custom be it ever so old. To a question proposed to the S. C. I mm., 1 8th June 1851, A n episcopus ad conficiendum proccssum possit delegare usque ad sent entiam inclusive judicem laicum? the answer was given, Episcopum non posse delegare judicem. laicum. In 17/5 it decided in a case where a tonsured but married chancellor had conducted part of the inquiry, " Constare de nullitate processuum et minis tri curiac episco- palis consulant conscuntiae suae" The same decision was given again the 24th Oct. 1781, 3Oth June 1732,' 5th March 1855." This principle is confirmed in the Instr., art. 12. A chancellor, if he should happen to be a layman, could not even judicially investigate whether an order of the court have been complied with or not. 3 The Pope alone could by special indult admit laymen as auditors. But the laic also has to conduct the criminal inquiry accord- ing to the rules of Canon law. Should he, however, without violating any substantial forms rather proceed according to civil law, the judge proper and the appellate courts would not thereby be bound to do the same. 4 The inquiry is to be conducted by a single auditor, as it is only in order to collect the material. 5 A whole col- lege of auditors if they would have to act collcgialiter would be exceedingly slow and embarrassed, and there- fore useless. 1 AJP., xin. 45, 46. 51. 2 AJP., xin. 972, 1043, xx. 163. xxi. 8 25 Sept. 1806. AJP., xn. 853, 756. Concerning lay officials in general see supra, p. 52, note I. 4 7 Dec. 1855. AJP., xx. 162. xix. 5 This is no doubt correct, as a rule, and in particular with regard to the Instrnctio. But as a matter of fact judicial cases, where the work of collecting all subject-matter for the court proper was intrusted to a committee of auditors, are not unknown in the history of canonical procedure. In recent times we have had the Commissio Investigationis. Personnel of the Court. 5 7 Art. III. Tlie Chance J lor. Secretary, Clerk. 30. Innocent III. ordained at the fourth Lateran Council that in the inquisitorial procedure introduced by him, and afterwards so famous, all judicial acts should be recorded in writing. He says : "As the innocent litigant is sometimes unable to prove the truth of his denial of the false accusation by an unjust judge (for the mere fact of a denial is in the nature of things not yet a direct proof), hence, that falsehood may not triumph over truth nor iniquity prevail against right, we ordain that in the ordinary as well as extraordinary trial the judge shall always employ either an official person, if possible, or two fit men, who shall faithfully write down all the acts of the trial, viz., citations and terms, recusations and exceptions, petitions and rejoinders, interrogatories and admissions, the depositions of witnesses and documents put forth, in- terlocutory and final appeals, renunciations and conclu- sions, and whatever else may occur. All this they shall write down in proper order, indicating places, times, and persons. And all that has thus been written shall be given to the parties, so, however, that the originals shall be kept by the writers, in order that by these, if any quarrel as to the judge's proceeding should arise, the truth may be shown. By this means the honor of honest and prudent judges will be upheld, while at the same time the just right of inno- cent persons shall not be injured by an imprudent and unrighteous judge." ' This ordinance is in full force to this day.* It was the more necessary in the beginning, since in a purely inquisitorial proceeding the accused would otherwise be confronted with the judge alone. The official appointed for this purpose is called, from his 1 c. ii, X. ii. 19. 9 S. C. Imm.. 3 March 1694; 7 July 1699. 58 Organization of the Courts. writing the acts and documents, Actuary or Clerk 1 of the court; from his abridged style of writing, Notary; from his advancing to the chancel in reading his papers, Chan- cellor; and in many localities, from the place of his em- ployment, Secretary* 1 From clerictts, as in most countries only the clergy were able to read and write, and clerics of the minor orders were then commonly employed as notaries. * No one who has had to deal largely with Roman documents and de- cisions, or to read up old or modern writers on ecclesiastical law and discipline, can be unaware of the most confoundedly confused way of using those different terms. At one time you are certain they all mean the same, at another you are as certain that a notarius is not a secretarius, and a noble cancellarius by no means a simple actuarius. It seems to us that, although now these terms are mostly used quite indiscriminately, they had each, according to Canon law, a distinct meaning. A notary is an officer holding a permanent commission to the effect that all docu- ments, public or private, signed under his own hand and executed in proper form are true instruments in law and valid proof in court. Of this officer commentators generally speak in the preliminary observations on tit. 22, de fide instrumentorum, 1. II. By Canon law every bishop has the' power to create notaries, and although not recognized by our civil courts, their signature would have to be admitted as evidence by every ecclesias- tical court. The Chancellor has charge of the chancery or Archives, i .e. the place where the records, charters, evidences, or any important docu- ments are kept (Archivist, Registrar. Cfr. Reiffensttiel, de fide Archivii, 1. II. tit. 22, n. 102 ff.). He was not necessarily a notary, although custom, supported by very good reasons, soon combined the two offices in one. We have had instances here in the United States where bishops had their chancellors made notaries public by the civil authority. A practical move, we think. The Actuary was a clerk employed to write down the acta of any official and judicial proceedings, to make out the reports, briefs and abstracts, etc. In course of time he was also called Secretary, as one of his sworn duties was to keep the transactions themselves as well as the report or 'minutes thereof secret. One can easily understand how these distinct offices might be filled by the same person, and that in consequence the different titles lost their dis- tinct meaning and came to be used indiscriminately. On the history of these offices (notary, secretary) see the interesting chapters (105. 106) of 7'Aomassiu, Vetus Eccl. Discipl. p. I. 1. 2; Van Espen, p in. tit. 6. c. 4. In regard to the law cfr. Ferraris, sub vv. Personnel of the Court. 59 The Instrnctio uses both terms Actuary (art. 12) and Chancellor (arts. 8, 34).' It expressly requires the presence of the chancellor as well at the examination (art. 8) as at the final proceedings (art. 34), and that of the secretary at the inquest (art. 12). The chancellor may also officiate as notary in all transactions of the so-called voluntary jurisdiction.* Although Innocent III. ordained that eccle- siastics should not be employed as clerks of the court,* yet the Roman Curia itself very often departed from this rule, and clerics are up to this day employed as clerks. Notwithstanding this universal practice, it is even now allowable to employ laymen. 4 For the edification of all whom it may concern we append his remark: Secretarius qui multa scribit probabilius nan excusatur a jejunio. Potest enim secretarius vires habere sujficientes ad multum scribendum, quamvis jfjunct. Immo temperantia et jejunium maxime condutit ad valetudinem sedentarii. Thanks, good old Ferraris ! 1 The Acta S. S., XV. p. 386, maintain that by acltiarius and cancel- laritis the Instruction means the same person. Not necessarily. That in art. 8 and 34 it is the chancellor of the diocese (not the bishop's private secretary, except he be specially commissioned) who is referred to, we have no doubt. Art. 8 treats of an extrajudicial proceeding, while art. 34 refers to the public and final hearing of the case. But art. 12 speaks of the special inquest to be made by the auditor, a proceeding wherewith the court proper has nothing to do till it be finished and the/nvAr verbal (art. 29) handed over to the judge. For this special work the auditor may choose his own clerk or actuary, if so the judge (bishop or vicar- general) allow. Cfr. Kola. n. 654. When the C. PI. B. III., n. 311, adopts the opinion of the Acta S. 6"., we consider it to be a directive norm at most. * S. C. Epp., ii Feb. 1806. AJP , xil. 850. 750. *S. C. Epp., 14 July 1772. AJP., xil. 118. 555. 4 S. C. Imm., 30 June 1832. ATP., xm. 46, 58. This answer refers to a particular case of necessity. The very next month (July) the Archbishop of Bologna asked for the same indult again, because in his whole clergy he could not find two fit subjects for the offices of auditor and notary in his criminal court. The request was granted duraniibus fiiftinistanliis, and in regard to the clerk with the clause: dummodo se abstintat a subscribendii examinibiis et a quocumque exercitio jurisdictionis. Ap. Df Montault, p. 471. The S. Congr. has always been very careful to 60 Organization of the Courts. The notary, however, especially if a layman, has lo make out the acts of the proceedings only materially ; that is, simply to write whatever he is ordered to, either by the law or the judge. He is not allowed, either directly or indirectly, to conduct even a part of the trial ; if he should, for instance, in the absence of the judge- auditor, merely attempt to examine witnesses, the whole proceeding based thereon would be void. 1 31*. We omit a passage by the author on the pay- ment to be given to the clerk. Custom or statute must regulate that with us. But we add a few remarks that o seem to apply to the clerk of our ecclesiastical courts, whether they call him notary, chancellor, or secretary. Reiffcnstuel, \. II. tit. 22, observes that the notary, when writing out an instrument, must write down nothing else but what he has seen with his own eyes and has himself heard (n. 27) ; s that he should always use the same sig- nature, so that, if necessary, it may be authenticated by comparing his signature in other documents (n. 31). Sckmalzgrtiber, ibid., says the notary should know some- thing about law, although he need not be a Doctor in law. He should at least know all that his office de- mands, and how to draw up the different instruments in proper form (n. 5); in writing out the record from his minutes he ought to write the words in full without contractions or abbreviations ; numbers he should write clearly and distinctly, so that they cannot be changed (n. 12) ; and, in general, he must carefully note places, times, and persons (13, 14). We also call attention to the nice discussion on the relative value of the clerk's private distinguish between civil and criminal cases of clerics, and in the latter 10 uphold the principle of absolute immunity. 1 S. C. Epp., 25 Sept. 1806. AJP.. xin. 46, 61. "Caveat actuarius ne in scribendo abundet in sensu suo; hoc enim esset et flagitinsum et ruinac plenum." Rota. Personnel of the Court. 61 notes (ininutae, protocolluni) and the official record or document made out from them (instrumcntmn), apud Reiffenstuel, 1. c., n. 34 ff. Is the secretary in our criminal trial bound to observe the so-called solemnitates instrument orum, i.e. certain formalities by which alone his documents or records become official (publicd) ? The Instructio mentions only the subscription to the act in the extrajudicial precept (art. 8), but nothing concerning the acts belonging to the judicial trial. But the C. PI. B. III., n. 314, demands that not only the accused, but the judge also and the clerk sign the depositions of defendant. The same ought to be observed with the depositions of the witnesses, 1 as re- quired by the Instruction on matrimonial causes, 14. It would be advisable also for the clerk to observe the noting (present at um), that is, to note on every notice, letter, or document offered to the court the exact date when, and the name by whom, it was presented ; more- over, if not his own full name, at least his initials. Again, it is well to date every one of his minutes or notes, not only the record he may afterwards write out. Official copies of the minutes or of the report must be certified by the secretary's signature.* Art. IV. The Apparitor. 32*. The Apparitor, so called in the English ecclesi- astical law, is an officer who appears to others that they may appear in court. He is the official messenger (con- stable) to carry the summons to those whom the judge cites to appear during the trial. He also carries the written sentence to the offender or his advocate that he may, if so he intend, lodge an appeal before the judge. 1 S. C. Epp., 24 July 1832. Pierantonelli. p. 40. * S. C. Epp., 27 July 1759 AJP., xin. 51, in. 62 Organization of the Courts. Canon law supposes the apparitor to be a regular attend- ant and duly sworn officer of the court, so that his affirming of having properly served the summons is evidence in law. Schmalzgruber, 1. II. tit. 3, n. 25, 2, 7. Our ecclesiastical courts in the United States have no such officers. The same appears to be the case in other countries ; for the Instructio, art. 14, provides that in such case necessary writs and notices may be served either by a qualified person who shall afterwards certify to the fact ; or through the mails by registered letters, when the receipt returned will be evidence that the summons has been served. Cfr. also Instr. 1878, art. 4. The Acta S. S., XV., pp. 387, 550, seem to imply that the sentence should, as a rule, be served on the offender or his advocate by an apparitor, and by mail only then when it cannot possibly be done by a person. The apparitor, evidently, may be a layman. 1 Of these messengers (apparitores, cursores, pedelli] commentators generally speak under tit. 3, de libelli oblatione (citatione), 1. II. Cfr. Smith, n. 926. CHAPTER II. THE PARTIES. Art I. The Prosecution. i. THE FISCAL PROCURATOR. 2 33. It is in the nature of things and a rule of ancient law that the same person cannot be accuser and judge in 1 S. C. Epp., 9 Feb. 1710. AJP., xm. 44, 41. s This office is unknown to the Decretals and their commentators. Being of later origin, its history, nature, and duties must be learned from more recent writers. Cfr. Van Espen,-^. HI. tit. 6. c. 5. Bouix \. 470 ff. The Parties. 63 the same cause. In the purely inquisitorial procedure, where the accused is to be examined only, the judge, in- deed, has more or less to sustain the part of a prosecutor, though Innocent III. himself guards against any such view of his new ordinance l by making the rumor (fama) of the crime committed play the part of the accuser. Very soon, therefore, did a third person slip into the courts even of that time, either in a private or a public capacity to begin and carry on the prosecution. To distinguish this proceeding from that by mere inquiry, it was called inquisitio quae fit aliquo promovcnte ipsam* This new arrangement, however, being contrary to the very nature of mere inquisition, was not carried any further in Canon law.' But the secular courts took hold of it and made a most ample use thereof, particularly in England, France, and Italy: and the institution became Craisson, n. 5767 ff. Smith, n. 912 ff. We retain the term "fiscal pro- curator" as more ecclesiastical than "public prosecutor." It is still used in Scotch and French law. For the etymology of the term consult the writers referred to 1 c. 31, X., V. 3: non tanquam sit idem ipse accusator etjudex, sed quasi fama deferente vel denunciante clamore sui ojficii dfbiturn exequatur (prae- latus}, etc. * Hence the public or fiscal promoter . Cfr. Prompsault, s. v. Promateurs des officiaHtis. Promoter is used in a very different sense in American law, meaning a person engaged in establishing a joint-stock corporation. Bout'ier, s. v. 3 This assertion seems too general and can only mean that the public prosecutor or promoter did not then at once become a regular and perma- nent office of the ecclesiastical judicature, but only long after it had become such in the civil courts. It would hardly be correct to say that ecclesiasti- cal prosecutors (promoters) in some particular cases did not appear very- soon after the new procedure introduced by the great Innocent III. At least they seem to be mentioned by later commentators and practitioners of the thirteenth century; and a famous canonist of the fifteenth century, speaking of ecclesiastical public officers, sweetly remarks: did non potest quanta niala ubique fadant UK scelerati exploratores criminum, qttos pro- motores appellant. They are moreover mentioned in the decrees of the councils of Constance and Basel. 64 Organization of the Courts. very famous at the beginning of this century, especially in France, where the State Procurator is chiefly guardian of the law, and therefore takes part as well in civil as in criminal proceedings ; he may even in a civil proceeding, where the law appears to him as having been injured, take an appeal independently of, and against, the will of the parties. This public procurator has at different times and in various countries borne the name of Procurator rcgis, Procurator fiscalis, Promoter fiscalis, or, in short, Fiscalis. 1 Later on, when the office of fiscal procurator in the secular courts had been fully developed and had proved success- ful, most ecclesiastical courts, following the views of the times, adopted it for the trial of criminal causes. 34. The Instructio does not leave it to the bishop whether or not he will have a fiscal procurator for his criminal courts, but it says expressly : Unicuique Curiae opus est procuratore fiscali pro justitiae et legis tutela (art. 13)." Articles 33, 34, 35, of the same instruction make it evident that the fiscal procurator has to officiate as public prosecutor. By this new regulation 3 the Church has abandoned the purely inquisitorial procedure and again approached the accusatorial one. For as soon as the delinquent is confronted with the fiscal procurator, he ap- pears as defendant, and consequently as a party with more or less rights. The fiscal procurator and his duties in canonical criminal procedure cannot be replaced by any other officer. Thus it would be of no co/isequence if a cleric, e.g. a rural dean, should make a formal accusa- 1 In America this officer is called Atlomey-Geneml ; in England also Solicitor- Genera I. 8 Acta S. S., xv. p. 386: Verum non in judiciis tantuin quae ex officio instituuntur sed in omnibus judiciis ejus praesentia est. 3 The Inslructio appears to be the fas\. positive statute in Canon law by which the office of the fiscal procurator, introduced only by custom, is maie a regular and permanent institution and probably desiined to be- come general in the whole Church. The Parties. 65 tion before the bishop, leaving the fiscal procurator aside, nor would it matter at all that the bill of complaint was as correctly and perfectly drawn up as the law could re- quire. 1 Again, the secretary, chancellor, or clerk of the court cannot at the same time discharge the duties of the fiscal procurator. 8 Though it seems but proper that the bishop should appoint an ecclesiastic to this office, yet he may also authorize a layman, because the procurator after all does not exercise any properly so-called jurisdiction.' The fiscal procurator is an officer of the bishop. In committing an offence the delinquent has made himself amenable to the Church, whose duty it is to correct and punish whenever necessary. But the Church is represent- ed by the bishop, who, therefore, becomes the party seek- ing correction and satisfaction, i.e. the complainant against the accused, who is respondent and defendant. Yet, as the bishop himself is also to sit in judgment against the accused, he transfers his right of action or prosecu- tion to the fiscal procurator, and that for two reasons: first, in the interest of justice (projustitiae ac legis tuteld)-, secondly, that he may not even to mere outward appear- ance act as judge in his own cause. The procurator is, 1 S. C. Epp., Dec. 1785. AJP.. xm. 44, 34. We take this to mean that no matter how correct and formal the charge may be, the bishop cannot thereupon begin a formal suitor trial without his fiscal procurator taking the initiative. * S. C. Epp., April 1727. AJP., xill. 44, 33. * S. C. Epp., 2 July 1677. S. C. Imm., 30 June 1832. AJP., xm. 44, 31. 32. There is no doubt that modern writers suppose the fiscal procu- rator to be a cleric, at least in criminal cases against clerics. Thus Rota, n. 652, says: Est autum procurator fiscalis vir ecclesiasticus, etc.; and re- ferring to the statute of St. Charles Borromeo: Sit unus promotor fisci, clfricus ft juris utriusque doctor, while not objecting to the clericus, he ex- plains the J. U. D. by saying that quantum fieri potest, fiscalis promotor sit in jurr doctus ft peritus. The same is imp'tied when the third plenary Council of Baltimore, n. 300, admonishes him : Sit quidem nunquam im- memor st contra fratrem causam cigert. Cfr. supra, note I, n. 27. 66 Organization of the Coiirts. therefore, bound to his general or particular commission received from the bishop, whilst the bishop as judge is bound only to the law. This follows necessarily from the fact that the Instruct embodies two postulates of the administration of criminal law. One is the principle of legality demanding that the rights of the law shall be up- held and therefore strictly executed; the other is the principle of expediency, demanding that the public wel- fare should take precedence over the law where its exe- cution would be injurious to society. According to the first, it is the duty of the bishop to prosecute and to punish his ecclesiastics for every transgression threatened by the law with punishment, as also to correct their evil ways (art. l). According to the second (art. 3), the bishop has often to consider in a particular case what may con- duce more to the salvation of souls and the welfare of the Church, to prosecute the criminal or not. Higher inter- ests and considerations will sometimes make it very ad- visable and even necessary not to institute a criminal pro- ceeding. There are, moreover, in ecclesiastical as in civil law delicts as to which it depends upon the will of a third person whether or not they are to be prosecuted. This third party will probably not desire it if thereby he would receive more injury than satisfaction. Christian charity in such cases forbids the bishop to proceed against the criminal, because a great good which that third person cannot and will not sacrifice would thereby be lost. For instance, a cleric has been intimate with a hitherto blame- less maiden of marriageable age ; the crime has as yet been kept secret, although the proofs are positive ; the girl, however, protests against any judicial proceeding lest she herself fall into bad repute. A criminal proceeding in such a case would be extremely illegal and unchristian. ? 1 S. C. Epp., 23 Mch. 1748. AJP., xi. 1125,437. Cfr. on this point A'o/a, n. 490 ff. ; Stremler, p. 154. The Parties. 67 That such considerations require great pastoral wisdom and cannot be wholly left to the procurator, is evident. The bishop must be solicitous himself about such causes of his clergy. The fiscal procurator having obtained sufficient infor- mation must apply at the episcopal court for an investi- gation of the offences of clerics that have come to his knowledge through notification or otherwise. 1 Should the fiscal upon a general or special episcopal order bring a public action, he must make his motion to that effect in \vriting in the episcopal criminal court, and in his bill of complaint must state the name of the accused, the crime, the evidence, and the names of the witnesses, ac- complices, etc. He must hand in the bill of complaint at the episcopal chancery, where the chancellor will affix thereto \.\\c praesentatum ; all the rest will for the present be left to the court.* After the investigation has been completed and the court has determined upon the fur- ther prosecution of the cause, he cannot change his mo- tions any more, particularly if the accused have already brought in his defence. 1 If the defensive proceedings should prove the materials obtained in the investigation to be insufficient for conviction, a new inquiry can be or- dered only by the court. 4 The fiscal procurator has generally the exclusive right of accusation. This appears at first to be a doubtful matter, for it involves the duty of the procurator actually to make the accusation whenever necessary, a duty which he may easily neglect, particularly when it might be of interest to himself not to bring the suit. Kut it must be remembered that he is an officer of the bishop and must 1 AJP., xin. 44, 29. f AJP., xiv. 971. 35. 1 S. C. Epp., 30 June 1826. AJP., xm. 44. 37, 39. 4 S. C. Epp., 30 June 1826. AJP., xn. 1017, 860. XIII. 44. 38. 68 Organization of the Courts. bring the charge whenever the bishop orders him to do so; that, moreover, he maybe deprived of his office at any moment should he in any manner show neglect or mismanagement of the affairs of his office. 35*. To the objection that such a public prosecutor might be over-zealous in making charges against clerics a like answer may be given ; viz. that he cannot bring a judicial charge without being ordered by the bishop, who must examine first whether there be sufficient cause for it. 1 This officer, besides, must never forget that even while discharging his duty of prosecutor he is to serve the law as well as justice, and that consequently he is bound to respect the rights of the accused, and not to press his charges beyond the bounds of equity, nor use means con- trary to truth or justice. Nay, we do not hesitate to affirm that he must notify the auditor of any evidence favorable to defendant, which he may perchance have found in his endeavors to get proof for the prosecution. The author spoke above (n. 16) of a general mandate by which the bishop appoints his vicar-general nsjudex ordi~ narius (official) for all clerical causes. In the foregoing section the author mentions a general mandate given to the fiscal procurator to prosecute criminal cases. In a later paragraph he deals with the conflict that might in some case eventually arise between the official and the procurator. We omit the paragraph in our edition, as in that event there is but one very simple remedy, viz. recourse to the bishop, who must decide the question. But we desire to call attention to a point which to us seems doubtful. The fiscal procurator, who is always appointed by letters-patent, needs no written commis- sion for special cases if he has a general mandate. In 1 "Quod si Episcopus faciendum esse judicaverit, procurator fiscalis ab eo accipit mandatum causam agendi et processum protnovendi." C. PI. B. ///., n. 301. The Parties. 69 that case the bishop or official will merely give notice that there is a case for prosecution, and the prosecutor will at once draw up the formal charge and demand that judicial investigation or inquiry be made. But does the general mandate imply that he must thus officially proceed even when he is not so notified by the judge, but because he knows of a case through private infor- mation or rumor or private denunciation? Our author clearly thinks so, others apparently. Again, if it be an- swered in the affirmative, is the fiscal not only allowed but bound to institute the summaria facti cognitio (art. 5) even without the bishop's notice or request, simply in virtue of the general mandate? If we presume to state our private opinion, we may be pardoned on the plea that these things with us in the United States are still in fieri, not in facto esse; hence the more uncertainty is removed from the very start, the better. Whatever may have been or still be the custom in Europe, we believe, judging by the general tenor of our last plenary Council (n. 308 ff.) and of the Instructio itself, that the fiscal procurator should not make a formal charge in any case before he has been notified to the effect or requested by the Ordi- nary. Again, we think he should not on his own account and without the bishop's explicit consent undertake any extrajudicial or private special inquiries ;' otherwise he would certainly be liable to be considered too officious by most of our American clergy. However, as no general law prevents the bishop from granting even such full and one might say illimited power to his fiscal procurator, all doubt will be removed if the bishop does fully, minutely, and explicitly state in the letters-patent what rights and duties the procurator shall have. Then let the procura- tor abide by his commission. 1 Van Espen (1. c.. tit. 8, c. I. n. 37) speaking of Belgium says that this rule is fassim ubiqut rtcfplum. 70 Organization of the Courts. 2. OTHER PLAINTIFFS. 36. Under the new law of the Instruct every person has a right to present a complaint or make an accusation which may lead to criminal proceedings against an eccle- siastic. No particular qualifications on the part of such complainants are required, nor may they be confounded with the accusers in the old accusatory proceeding. The Instruction on episcopal courts in the Archdiocese of Prague says on this point : " All irreproachable priests, nay, all members of the Catholic Church, against whom no suspicion of malicious deformation can be brought, may give notice of criminal cases to the court. But the court will pay no attention to anonymous notices or to notices that are sent by unknown persons without giving the place of their residence." (*) In the former proceedings by way of accusation or denunciation not every one was qualified to make the judicial complaint. Commentators (in 1. V. tit. i) gener- ally put down the rule that all those are qualified who are not disqualified by the law. As grounds of such legal disqualification are named the sex, defect of age, infamy, reverence and the tie of blood, hatred and revenge, etc. However, in case of an atrocious crime every one was qualified to complain. That at present such disqualifica- tions are no longer to be considered is clear from the fact that the Instructio admits only the inquisitorial proceed- ing called ex offido. But, as we shall see later, it is the characteristic note of this proceeding that the bishop can- not enter upon it before he has by a strict inquiry satis- fied himself {plena vel semplena probation*) that there is sufficient cause for it. Any complaint or charge or infor- mation against a cleric may open the way to such inquiry, but not directly to the trial as in other proceedings. (Rota, n. 648 ff.) No account should be taken of any The Parties. 71 accusation made either by word of mouth only or by anonymous or imperfect (without place or date or name or residence) letters, or in mere general terms. (Rota, n. 419.) Art. //. The Defence. \. THE ACCUSED. 37*. Whoever is accused of an offence against the laws is entitled by the command of Christian charity and by natural right not to be held guilty, much less to be pun- ished, before the charge has been fully substantiated. If convicted, the criminal still has the further right not to suffer more punishment than the law demands of him ac- cording to the nature, the weight and grievousness of the offence. It is as much to protect these rights of the ac- cused as to vindicate the law, that the Church has insti- tuted those legal forms and methods, the rules of pro- cedure, to prove the fact as well as the special nature of an alleged offence. So strictly does the Church maintain this principle, that should a cleric having committed an offence against her laws freely accuse himself before the bishop and openly confess, the bishop could not pronounce sentence against him. He may act with him as father. To proceed as judge and vindicator of the law, he must first obtain a judicial confession, one made, proved, and judged upon according to legal rules. Not even a canonical admonition may the bishop give to a cleric who is accused, without first obtaining at least a summary information to establish the alleged fact (art. 5). No accused shall be condemned without having had in some way or other his defence. Hence if the accused were willing to waive all defence, or unwilling to engage counsel because he considers the matter too unimportant, or thinks his case evident and defence unnecessary, or believes the decision to go against 72 Organization of the Courts. him whatever the defence might be, or is too poor to pay counsel's fee, still the Instructio commands the bishop to appoint ex officio a defensor for the accused (art. 31).' Various reasons for this provision are assigned by writers. The main one is to avoid doing injustice to the accused. Another one is that a cleric being one of the Church's chosen members is no longer lord over, or absolute possessor of, his good name and reputation. The Church, for the sake of her faithful children and her own honor, has a right to it. Hence he is not at liberty to give it away ; and if he will not defend it himself, the law of the Church appoints another for the purpose. An intelligent and impartial student of the Commenta- tors on the second book of the Decretals will be delight- fully astonished to see how wisely the great legislators of the Church combined in the work of canonical pro- cedure all the thousand different elements by which man may prove the truth (quibus veritas vere demonstrata elucescat; art. 16); thus to maintain on the one hand the majesty of the law (legis tutcla), and on the other the na- tive rights of the defendant (justitiae tuteld). 38. According to the law now in force it is the duty of the accused, upon being summoned, to present himself before the judge for examination and defence (art. 21, 25). The citation* is essential to the whole proceeding; to omit the former will render the latter void. 8 Not even a censure previously threatened may be inflicted without summoning delinquent " ad dicendam cansam qua-re"* According to the Instr., arts. 22, 23, it is not absolutely necessary to specify the particulars of the charge in the 1 S. C Epp.. 30 May 1823. AJP., xx. 90, XLII. n May 1844. AJP., xvn. 444, 1718. * Commentators in I. n. tit. 3. Pierant.. tit. 5. n. 6 ff. Rota, n. 620 ff. * S. C. Epp., 22 Sept. 1741. AJP., xni. 47, 78. 79. 4 S. C. Epp., 29 Sept. 1761. AJP., xi. 1094, 376. The Parties. 73 citation. Whether this be advisable or not in a particu- lar case, is left to the prudence and discretion of the judge. He will not mention the specific charge, much less the particulars, if he believe the accused would in consequence not heed the summons or, if innocent, would be carried so far away by indignation as to create dis- turbance among the people. That omission will not void the proceeding, but merely entitle defendant to a new term for answering the charge after it is made known to him (fnstr., art. 28). If the accused does not obey a per- emptory summons, the court will proceed against him in contuinaciam (fnstr., art. 24), except he offer good reasons for his non-appearance, 1 when a new term will be granted. In most criminal cases of clerics* the accused had better, during the inquiry, withdraw to a religious house, 3 since his influence in public during this time would not, as a rule, be beneficial. 4 The welfare of the Church and the salvation of souls often demand a judicial trial ; canonical procedure, although in its very nature something of a public act, cannot always be avoided, for the ecclesiastical authorities are not omniscient. An accused cleric may therefore find himself compelled, by the love of God and of the souls intrusted to him, patiently to stand a criminal trial, however unjustly thrust upon him. The most ample right of defence is granted to the ac- cused by our instruction, arts. 22, 25, 27 sq., 30 sqq., 36. We call special attention to the confrontation of wit- nesses implied in arts. 27, 32. The processus legitimatio 1 Acta S. S. , XV. 389 sqq. * We omit here as impracticable the author's remarks on the im- prisonment of the accused, his release on bail, his relegation or consign- ment to a certain limited place (county, village, or religious house). Cfr. Stremltr, p. 62 f 1 AJP., XIII. 47, 74. 4 This will depend altogether on the peculiar circumstances of each case. 74 Organization of the Courts. (the legitimizing of the whole proceeding by observing certain requisites of the law) consists mainly in that con- frontation ; without it one of the principal means of an effectual defence would be set aside (see infra, n. 69). For the final pleading a special defensor is granted to the accused (see Instr., art. 30 sq.). ' 2. THE ADVOCATE OR COUNSEL. 39. The Instruct, while granting to the accused the right to conduct the defence himself (art. 27), allows him, if he choose, to employ an advocate or counsel (art. 30).' The advocate plays a most important part in the canonical criminal procedure. Not every ecclesiastic has the re- quired knowledge of criminal laws and criminal procedure, and moreover the coolness and deliberation necessary while defending himself.* Some, however may possess all that and be fit to undertake the defence of another, i.e. act as advocate. The accused is not confined to special persons, to pro- fessional advocates, in the employment of a defender, but has a free choice even when the bishop has appointed permanent advocates at his court. 3 There are excluded, of course, the judge, the chancellor, and the fiscal pro- curator; the last, in particular, would become guilty of prevarication should he officiate as counsel for both parties. (*) According to the Instrnctio (art. 30) the defendant may choose for his advocate an ecclesiastic or a layman, either one to be approved by the bishop. 4 The wording, 1 The Instrnctio calls him defensor. The Decretals call him advocatus. patrouits, and treat of this office in 1. I. tit. 37 de Postulando, where the commentators also may be consulted. Cfr. Van Espen, 1. c., c. 2. ; Crais- son, n. 5642; Smith, n. 766. 8 Rota, n. 726 sqq. 3 S. C. Epp., 3 Jan. 1819. AJP., xx. 457, x. 4 S. C. Imm., 30 June 1832. AJP., xin. 51, 118. T/ie Parties. 75 however, of this article in the Cum Magnop. clearly shows th.it if an able ecclesiastic can be found to conduct the defence, no laymen should be employed. It seems rather incongruous that before a purely ecclesiastical tribunal and in strictly canonical causes lay advocates or lawyers should be admitted to plead whether for or against a cleric. For wise and pious reasons did the fathers of the third plenary Council of Baltimore, notwithstanding that the Instruction requires the bishop's approval for the ad- vocate, ask of the Holy See not to allow laymen, and enact the statute that the advocate must always be an ecclesi- astic. Even a clerical advocate the judge may tor good reasons refuse, and request that another one approved by him shall be engaged (n. 302). No mention of laymen whatever is made in the answer (n. IV.) of the S. C. Prop, concerning the defender at the trial before the Committee of Investigation. It only mentions alium sacerdotem. 40. The advocate must take the oath that he will con- scientiously conduct the defence. Sometimes, as the bishop may deem proper, the oath contains the provision to keep the matter secret (art. 32). If the trial is once begun, the advocate must carry to the end the case he took in hand. In the manner of conducting the defence he is quite independent of the accused. If he should falsely state or admit any facts, the defendant may cor- rect such statements before the final sentence, or after- ward? in the appeal. An error in law on the part of the advocate will not be prejudicial to the defence as long as the court do correct it. .(*) In the manner of conducting the defence the advo- cate must, as the commentators say, observe the laws of propriety and moderation, of truth and of faithfulness (niodcstia, vcritas,fidelitas}. Hence he must abstain from invectives, arrogant and presumptuous insinuations ; ef- fusive verbosity would also be out of place ; exceptions 76 Organization of ike Courts. or protests against the ruling of the court should be made in moderate language. Truth is averse to any trickery, sophistry, ambiguous and misleading statements. Al- though bound to defend his client as much as possible, yet the advocate may not do so per fas et nefas. By faithfulness he is bound to conduct the defence to the utmost of his ability, and to avoid conscientiously what- ever might injure his cause ; also not to betray, nor make improper use of, any secrets confided to him by his client. The advocate, no doubt, has a right to his fee. We do not know if any special provisions on this point have as yet been made in any of our ecclesiastical courts in the United States. The defendant ought to agree before- hand with counsel as to the fee to be paid whether the cause be won or lost. But who is to pay counsel ap-' pointed ex officio, the defendant or the bishop? As we have no " clerical bar," it would seem that one could not be commanded by the bishop to give his services gratis, and that if appointed ex officio he had a right to a fee, to be paid by defendant, if convicted, otherwise by the bishop from the fisc of the diocese (see infra, n. 116). What shall be a just fee for the advocate must, according to the commentators, depend on the importance of the case, the amount of work done, the lawyer's skill and ability, and legal custom. 3. THE ATTORNEY OR PROCTOR. 41. Canon law does not admit representation of the accused in criminal cases. 1 A reason given by canonists is that the attorney becomes in virtue of his commission dominns litis, that is, the case becomes his own personal affair, and sentence will be given upon him personally. Now, this would appear unnatural in case of another's 1 Sanli, 1. II. tit. I, n. 19; De Angelis I*, p. 360. The Parties. 77 ciirr.e or delict. Hence representation is allowed in civil cases only. Another but somewhat poor reason is some- times given ; viz. that if the accused were represented by attorney and could thus remain away, he might easily escape execution of the sentence by flight. We cannot imagine a single case under our circumstances where this reason would prove anything, speaking as we do of crimi- nal cases of clerics before ecclesiastical courts; nor do we think that a difference can be made in the matter between original and appellate courts. The Instnictio, art. 30, does not prove the contrary, as rcpracscntare and defenders are to be referred conjunctively to the same person, who may. therefore, be called either attorney or advocate. This is evident from the wording of the same article in the Cum Magnopere. The case is quite different with the prosecution. The fiscal procurator may, by permission of the bishop, prose- cute through his attorney approved by the bishop, which is evidently nothing else than the appointment of a special prosecutor. Again, the bishop from whose sentence an appeal is made, may defend his part against the appellant by his own fiscal procurator, or depute the metropolitan's procurator as his attorney. 1 The Promotor fi scalis Gene- ralise. Rome, an officer appointed by Benedict XIII. in 1724,10 represent the bishops in any criminal cases brought to Rome by way of appeal or recourse, is simply the attorney-general for those bishops. 1 Commentators treat of attorneys whether in fact or at law under tit. 38. De i'n>curatori6us, \. I. Decret. Cfr. Craisson, n. 5615 ff. ; Smith. n. 756 ff. THE CANONICAL PROCEDURE. SECTION I. FORMS AND PARTS OF CANONICAL PROCEDURE. CHAPTER I. FORMS OF PROCEDURE. Art. I. Judicial and Extrajudicial. 42. We have already remarked above (n. 3) that the division of punishments into corrective ones, whose direct object is the amendment and reformation of the delin- quent, and vindictive ones, whose direct object is mainly the restoration of the disturbed order and retribution, is in most cases rather logical than real. For all punish- ments effect more or less in the offender a change for the better, except capital punishment which the Church does not inflict precisely because it precludes the future reformation ; on the other hand, the least offensive means of correction, a paternal admonition, may, under certain circumstances, appear to delinquent as undeserved casti- gation. From this it will be seen that a strict division of the procedure into disciplinary, i.e. such as applies cor- rective or reformatory means, and criminal, i.e. such as imposes a penalty for the committed offence, is not prac- Forms of Procedure. 79 ticable. The power to impose disciplinary and criminal punishments the Catholic Church, as we remarked in the Introduction, received from her Divine Founder Himself. Upon the occasion of conferring this power He at the same time pointed out, in a manner unsurpassed and as a pattern for all times, the order and course of the discip- linary and criminal procedure: " Si autem peccaverit in te f rater tuus, vade, et corripe eum inter te et ipsum solum : si te auditrit, lucratus eris fratrem tuum. Si antcm te non audierit, adliibe tecum adhuc unum vel duos, ut in ore duornm vel trium testium stet omne vcrbum. Quodsi non audierit eos, die ecclesiae : si autem ecclesiam non audierit, sit tibi sicut etlmicus et publicanus." The Master speaks here first of a private reproof, therefore of a secret extra- judicial procedure, then of a reproof before witnesses, therefore of a more public one, and finally, by intimation, of the regular criminal procedure. The Church still re- tains this division of the canonical procedure against her clergy. In the following pages, therefore, we distinguish between extrajudicial and judicial proceedings,' without entering here more fully into the technical designations, significations, and relations developed in Canon law. 43*. To rightly understand what are judicial and what extrajudicial acts or proceedings it is necessary to know exactly what is ^judicium. Not everything that a judge does is a judicial act, but only what he does in judicio. Commentators in 1. II., " de Judiciis," generally give the following definition : Judicium est legitima controversiae inter Actor em et Rcum ortae apud Judiccm disceptatio et definitio ; that is, the examination and decision of a mat- ter in issue between plaintiff and defendant, made by the judge according to law. All the parts of the definition are essential; there must be a matter at issue between 1 Matt, xviu 15 ff. 8o Forms and Parts of the Procedure. opposing parties; the examination and inquiry must re- veal the truth of the case to be stated in the judgment or sentence; all this, however, must be done by a person invested with the necessary power or jurisdiction, the judge, who must proceed in the whole trial according to the rules and norms set down by the law. All acts of a judge belonging to the conduct of such a trial are judicial ; all others are extrajudicial. It follows from the foregoing that not every jurisdictional proceed- ing is also judicial. In fact, the exercise of the episcopal jurisdiction partakes only to a very small extent of a judicial character. Most of his administration is extra- judicial. 1 Even when he has to guard the laws and dis- cipline of the Church by removing occurrences of abuse, incentives of scandal, wilful occasions and proximate causes of delinquency, the means to be employed are still extrajudicial. In the case of clerics these are mainly, according to the Instructio, art. 4, admonitions paternal as well as canonical, the command to make the spiritual exercises, the special precept, and the extraordinary means of the Tridentine suspension ex informata con- scientia. Nor does it follow that these acts of the bishop should be called judicial because certain rules and norms of the law must be observed. Not all legal acts, acts performed under certain forms of law, are judi- cial proceedings. Nay, more : the bishop might proceed against a cleric for a criminal offence, lay a heavy punish- 1 Pierantonelli, prooem. n. 3. In fact, all the functions which belong to what canonists call the bishop's jurisiiictio administrativa, politiea, correctionalis are properly speaking extrajudicial. With regard to crim- inal jurisdiction the bishop is not bound to proceed judicially, even were the crime fully established, as long as by extrajudicial proceeding the object of the law can be secured. And as concerns civil litigation of clerics, we think the party or parties will always find it to their interest, if the 1'isbop settle the matter extrajudicially. Forms of Procedure. 8 1 mcnt on him, and yet all without judicial former trial, by mere extrajudicial or administrative procedure. True, he can do this only with the free consent of the delinquent, and under special circumstances. 44. There is yet another question to be answered : when shall these different kinds of procedure, the judicial and extrajudicial, be applied ? This question can be fully answered only when we come to treat of each of these procedures in particular. According to the direction of our Lord the first of these, the monitio paterna, should be first employed ; if this does not suffice, then the monitio canonica and the pracceptum may be tried ; finally, as a last remedy, the criminal trial is resorted to. Ordinarily, therefore, the last should not be employed before the second, nor this one before the first has been tried : this is the regular course. The admonitions, however, as special fatherly and official warnings are supplied in many cases by gen- eral laws previously enacted, which thus become constant monitors. Frequently also, from the very nature of the delict, criminal procedure is immediately in order, as in the case of the notorium. Hence, the above question may, in general, be an- swered according to the principle Nulla poena sine Icge. If a certain action of the ecclesiastic was already threat- ened with punishment by a law, then it may be imposed after the proper proceeding; but if no punishment had been annexed, then it is first to be threatened in a special proceeding for that purpose. 1 1 Certain principles from which an answer to the question can be de- rived are generally laid down by canonists, in I. v. tit. i, when speaking of the duties of the judge consequent upon a denunciation. Cfr. also Stremler, p. 163. 82 Forms and Parts of the Procedure. Art. II. Accusatorial and Inquisitorial. The Instruction. 45. The forms of the judicial criminal procedure will greatly depend on what one considers to be the general principles of criminal law. When inquiring for these we must not lose sight of the fact that the procedure is only a means towards a certain end. As to this the Instructio, art. n, observes in a general way: " Processus instruitur . . . et ad finem perducitur eo consilio, ut omni studio atque prudentia veritas detegatur et cognitio turn criminis cum reitatis aut innocentia accusati exurgat." The prin- cipal object of punishment in the criminal system of the Church is the reformation of the offender. If the ulti- mate object of tJie punishment, the amendment of the delin- quent, is not obtained, it is mostly his own fault ; how- ever, we are not now concerned with that, but rather with the object of the criminal procedure, which we have said to be the investigation and discovery of the truth. If this object is not obtained, if the truth is not discovered, the fault lies, independently of accidental circumstances, either in the rules of procedure themselves to which the judge is bound, or in the application of these rules. Two further questions then arise : how must the judi- cial criminal procedure be regulated by the law in order to make the discovery of the truth possible ? and, how can the judge by the aid of these rules of criminal procedure discover the truth ? The second question will be an- swered later ; at present we have only to do with the former. One could reason quite extensively a priori as to the best rules of criminal procedure, but the deductions ob- tained would be the same as the results of experience derived from the history of the criminal procedure. Procedure by accusation and by inquisition are the two Forms of Proccdu re. 8 3 principal forms of strictly judicial criminal proceedings known to Canon law. 1 We may dismiss a third form, that by judicial denunciation, which in some parts is like the accusatorial, in others more like the inquisitorial pro- cedure. 46. In procedure by way of accusation, the plaintiff appears before the judge and fully spreads out before him the evidence already collected: then the accused ap- pears and presents in opposition his materials of defence. Upon all the material thus presented the judge bases his decision without inquiring further whether perhaps any other evidence might be found of the guilt of the accused whom he must acquit, or whether the accused whom he must condemn might not have been able to produce more counter-evidence to obtain his acquittal. At most, he may say non liquet, the matter is not clear to me ; fur- nish me further evidence. In a proceeding by way of inquiry, on the contrary, the judge acts ex ojjlcio. There is no plaintiff in this case whose duty it would be to furnish the evidence. The judge himself has to collect the material, and when he has enough, or can find no more, he passes sentence. Not until after he has himself collected all the material does he enter upon the logical and juridical question as to whether an offence was committed, and if so, what one, and what punishment ought to be inflicted. With regard to the parties, they can be properly spoken of only in the accusatorial proceeding. For it is only here that plaintiff and defendant appear before the judge with equal rights and equal liabilities. The one and the other must support his own cause as well as he can, as the judge will not do anything to furnish evi- dence for either one. Nor does it matter much, as re- 1 Commentators in 1. v. tit. i explain fully the different character of these proceedings. Also Van Esfen, in. tit. 8, c. i. 84 Forms and Parts of the Procedure. gards the form of proceeding, that the plaintiff be a pub- lic officer, the fiscal procurator. But in the purely in- quisitorial proceeding no accuser or prosecutor need appear. Enough that the judge have information of a crime committed, and he must proceed ex officio to a judicial inquiry, in order to collect whatever evidence there may be to prove the crime. True, here also the accused may defend himself, yet not against his equal, but against the judge. Again, the trial will differ quite materially with regard to defendant according as the procedure is accusatory or inquisitory. For, in the first case the accusation is at once laid before the accused and an opportunity of im- mediate defence given to him ; the defence is completely left in his own hands. He may defend himself to the utmost or waive all defence, plead guilty or let plaintiff try to prove the charge without opposition. In the purely inquisitorial proceeding the defence seems to pro- ceed from the judge as much as the charge. It is the judge who must inquire into everything that might prove the accused not guilty. And although in this the accused may assist and help the judge, yet he certainly appears as one to be examined rather than to defend himself. 47. In the course of time many changes were worked out in these kinds of the earlier canonical procedure, so that their characteristic features could hardly be distinguished any more. The new form of canonical trial established by the Instructio of 1880 seems to combine some features of both older procedures.' Technically, indeed, it is called an inquisitorial procedure. Yet, although the judge himself, in order to come as near the truth of the matter as possible, takes the principal part through his auditor in collecting the evidence, nevertheless the fiscal 1 Cfr. our remarks in the Preface. Forms of Procedure. 8 5 procurator appears as the real accuser. On the other hand, such important privileges are granted to the accused in respect to his defence, that as party in a criminal trial he may be very well satisfied with the position allowed him by the Instruct. The Instruction starts from the principle that it is the duty of the bishop to punish and to correct the delinquent. His authority is therefore interposed ex officio. That a suit be instituted depends no longer on a private com- plainant ; nor is it the judge who enters a formal accusa- tion, but the public prosecutor, the fiscal. The further ex officio proceeding, the investigation by the judge, ap- proaches the principle of the Inquisition. In the purely inquisitorial procedure the judge, as before noted, exer- cises two opposite functions, those of accuser and judge; something that modern views do not approve. Hence the judge of inquiry, according to the Instructio, does not proceed any further than to collect all the material ; with this he has performed his part as accuser; 1 he retires from the case leaving this part to the fiscal procurator, who must now continue the prosecution. On this last stage the principle of accusation is again predominant. When giving judgment, the judge is only judge and no longer accuser. The more the inquisitorial form obtains, the greater is the activity of the judge ; while in the litigious or accusatory one he has only to conduct the proceedings and render judgment. That no transgressions may escape the notice of the court, the Instructio introduces the inquisitorial method ; but that the judge may appear as an impartial judge, not as a party, is the object of the accusatorial form. 1 Not exclusively nor mainly as such; for he also collects whatever de- fendant may plead for himself. Cfr. supra, n. 28. 86 Forms and Parts of the Procedure. Art. III. Plenary and Summary. 48. We have repeatedly had occasion to remark that \\ielnstructio regulates only the summary disciplinary and criminal procedure. In the preamble it allows the Ordi- naries in the exercise of their disciplinary jurisdiction over clerics to make use of plainer and more expeditious forms, formas magis oeconomicas adhibere ; and according to art. 10 the judge may proceed formis summariis et absque judicii strepitu. How then are we to conceive this summary proceeding? What is its nature? In civil as in criminal cases canonists distinguish be- tween the plenary and the summary proceeding. The expression summary process in a civil case frequently sug- gests a somewhat hasty proceeding, where the decision is only provisional and subject to a thorough examination and final judgment in a subsequent ordinary trial. Such, however, is not the true sense of the term in Canon law, least of all when referred to a criminal case. The differ- ence between plenary and summary proceeding is thus stated by Ferrante :' " Judiciorum divisio petitur ex diverse modo, quo ilia cxercentur; vcl enim sunt ordinaria in qmbus servant ur solemnitates omncs juris, vel summaria, in quibus ea servant ur, quac nccessaria sunt ad rei veritatem dctc gen- dam, reliquis omissis, quae magis ad solemnitatem judicio- rum, quam ad rei necessitatem pertinent'' Cardinal de Lucca enumerates several of the superfluous solemnities of the trial, which he calls Judaisms, that is Jewish subtleties :" " Ordinarium judicium est illud, quod exigit solemnitatem libelli, et litiscontestationis ac ctiam publicatiotiis ac conclusionis, aliasque solemnitates ab utroque civili et canonico jure praescriptas. . . . Summarium rerum 1 Elcm J. Can., c. 3. * Rei. Curiae R., disc. I. n 25. Forms of Procedure. 87 cst illud, quod dictis solannitatibus non subjacet, sed nullas vel alias respective exigit pro diver sis sty I is" 49*. Commentators explain the nature and characteris- tics of these different trials under tit. 1,1. 1. The plenary proceeding is called plcnarium, because the rules and for- malities prescribed by law are fully observed ; ordinarium, because this full procedure was ordinarily instituted in judicial trials, according to the order of the law; solemne, because most of the formalities to be observed were pre- scribed by the law not directly in the interests of justice, but rather for the solemnity, dignity, and majesty of the court. It is easily understood why such trial was said to be carried on cum strepitu forensi, with public pomp and noise. The other kind of proceeding was called summarifun, because it was so abridged as to exhibit only the sum or substance of a regular trial ; extraordinarium, because it could be used in special cases only indicated by the law ; occonomicum, because it prevented waste of time, work, and expenses by a more expeditious way of arriving at a de- cision ; simpliciter ft de piano, because of its simplicity and plainness as against the pompous display of the plenary ; finally, sine figura et strepitu, for the same reason. We consider the matter important enough to show more clearly yet the difference between both procedures; for, as a great canonist remarked twenty years ago, nearly all ecclesiastical trials may nowadays proceed in forma sutninaria* Any one desirous to get in a moment a general idea at least of all that is implied in a plenary trial, may take Vives' edition of Reiffenstuel and run through the index of vols. 2, 3, or do the same with Professor Santis work, vol. 2. He will probably find more than he desires. For 1 Ada S. S., v. p. 39. The remark is from a dissertation, lighter matter, and gradually come to special and more important points, which may give nearer and more seri- 98 Forms and Parts of the Procedure. ous indications of the crime. If the accused refuse to answer a legitimate question it does not amount to an admission, but will assuredly create a suspicion of his guilt. 1 Finally, the auditor should exercise great charity and never lose patience with the accused. 57. The accused cannot be compelled, like other wit- nesses, to take the oath to tell the truth (juramentum de veritate dicenda). This practice, formerly much used, or rather abused, was abolished by Pope Benedict XIII. at the Council of Rome, I/25; 2 the same Pope, how- ever, declared it admissible when defendant is to con- firm the truth of his statements concerning accomplices. But if he should upon the judge's request have taken such an oath for the statements concerning himself, the whole proceeding and the sentence based thereon would be ipso jure void. The auditor and the judge must be content with admonishing the accused to speak the truth.' 58*. The confession is either judicial or extrajudicial. It is judicial when made before the competent judge while in court. In court means, at least in a mere summary pro- ceeding, in his official capacity as judge, but does not re- fer to the place where the trial or examination gener- ally occurs. In this sense both conditions are necessary. Hence a confession made to the competent judge but not in court is extrajudicial ; the same must be said if made in court yet not to the competent judge but only, say, to the prosecutor or the clerk. Canon law on this point is stricter than Common law. In regard to the question, when is a confession evi- dence in law, one must very carefully distinguish between 1 S. C.. 6 Sept. 1713. AJP., XIII. 29, 94; Acta S.S., XV. 392. 9 The decree is given in the Coll, Lacensis Cone. Rec., I. 364. 3 Notification, 24 Apr. 1728. AJP., XIII. 48 f., 91 f . ; XIV. 972. 39; XX. 449, I. Judicial Evidence. 99 civil and criminal trial. We speak of the latter only. In this case an extrajudicial confession is no proof whatever, not even semi-proof. The conviction of a criminal must be, as the canons say, by evidence clearer than sunshine (probationibus luce meridiana clarioribus). Such a con- fession, when properly brought before, and proved to, the court will make at most presumptive evidence, or furnish grounds for special inquiry. A judicial confession in order to be full proof in court, must have certain qualities expressed by the Gloss in the following verse : Major, sponte, sciens, contra se, ubi jus fit, et hostis; Certum, Usque: favor, jus nee natura repugnet. Major, that is, one considered of full age by the law. Sponte, freely, not by force, threats, fraudulent promises or inducements, even if offered by the judge. Sciens, with clear and full knowledge, and without error in fact. Hence a confession made on the impulse of passion or great provocation would not be proof, except it be con- firmed by the accused after the passion has passed away. Contra se. This in a criminal case can refer only to the qualification in a so-called qualified confession. The confession will always be against the defendant, but the qualification will generally be some circumstance in his favor, e.g. that he committed the delict without proper advertence or deliberation, or in ignorance of the law, or on a necessary occasion. A qualified criminal con- fession is, according to canonists, divisible. While accept- ing the confession, the judge will refuse the qualification favorable to defendant until the truth of it shall have been established. This condition implies, moreover, that the confession shall not be proof against any of his accom- plices, but only against himself. There are, however, loo Forms andParts of the Procedure. some exceptions to this rule, inasmuch as Canon law admits a criminal confession and testimony against his accomplices in the following cases: 1st, in exceptional crimes ;' 2d, in occult cases when, on account of the nature of the crime or circumstances, it is difficult to ob- tain evidence in court ; 3d, in crimes which by their very nature cannot be committed without one or more accom- plices; 4th, in crimes the final execution of which is still left to the accomplices; 5th, in any other crimes, if the confession, i.e. the testimony of the accused against his accomplices be supported by other evidence given in the case. The bare confession of the accused as a rule is no evidence, not even against his accomplices, according to the Gloss : "Nulli ergo de se confesso, super crimine aliorum creditur" Ubijus fit means in court to the judge. Et hostis, in presence of plaintiff or prosecutor, a condition required only in Civil, not in Canon law. Cerium, the confession must be clear and definite ; an ambiguous, un- certain and vague confession is null. Lisque, it must be on. the matter at issue, on the crime of which he is ac- cused ; not on foreign matter, even if that were another crime. As to the last three conditions, it is impossible to explain briefly the meaning of the phrase "favor non re- pugnet." With reference to a criminal confession, how- 1 Exceptional crimes (erimina cxcepta) are those of a more pernicious character, being in effect directly injurious to, and destructive of, the foun- dations of society whether ecclesiastical or civil. Hence, in order the more promptly and effectively to save the public welfare against such at- tacks and the sooner to convict the criminal, the courts in trying those crimes were not bound to observe all the formalities and rules of a crim- inal procedure. And because of these exceptions from the regular pro- ceeding the crimes were themselves called excepta (for which term we are unable to find a better English equivalent than exceptional). Among these crimes the commentators generally enumerate treason, forgery either of money or public documents, highway robbery, assassination ; then heresy, simony, sacrilege, sorcery, etc. Cfr. Rciffenstuel, 1. II. tit. 18, n. 99 ff. Judicial Evidence. \ o r ever, it is not at all pertinent. This may also be said of the other two, which simply mean that the confession must not imply what is impossible either in the nature of things or at least by law. 59*. What is the effect of a valid judicial confession ? It is manifold. First, such a confession is full proof of the charge and makes any further evidence unnecessary, be- cause it renders the delict notorious de jure. All that remains for the judge is to satisfy himself that the con- fession is valid, i.e. has all the necessary qualities, and then pronounce sentence. Secondly, it renders valid any previous defective proceeding. Thirdly, if made after defendant has already been convicted, it deprives him of the right to appeal. May defendant recall his confes- sion? Yes, if he does so in a continent proceeding, in continenti^ as the phrase is, i.e. during the same examina- tion or hearing, but not after an interruption. Is defendant, if guilty, bound to confess it when law- fully asked by the judge ? We limit the question strictly to our subject, the canonical trial of a cleric, and answer in the affirmative without any exception. Cfr. Konings, Theol. Mor. n. 1072. The plea of " not guilty " in American law, with the mental restriction " because not convicted" or the like, is not admitted as yet by any canonical statute. The case of capital punishment, im- prisonment for life, or deportation, in which some famous canonists and moralists allow defendant, not to lie, but to evade a direct confession, has no application in ecclesi- astical courts. Art. III. Testimony of Witnesses. 60*. Among evidence strictly so called, the testimony of witnesses holds the first place. The importance of the matter explains why Canon law no less than Civil and IO2 Forms and Parts of the Procedure. Common law embodies so many rules concerning such evidence, and why canonists have written such extensive commentaries on these titles of the Corpus Juris? For our purpose, and confining ourselves as far as possible to the criminal trial, we shall divide the whole complex mat- ter into five parts; viz. on the competency, the authority, the attendance, the examination of witnesses, and the publication of their testimony. i. THE COMPETENCY OF WITNESSES. Although writers on Common law 2 distinguish between competency and credibility of witnesses, yet we include the second in the first. A witness is admissible in the court (competent) only on the supposition of his credi. bility. The contrary were absurd. Hence we understand by competency the legal fitness and ability of a witness to be heard and believed on the trial of a cause. His testi- mony, if it turn out to be quite improbable and incredi- ble whether in itself or compared with contrary testimony, becomes also incompetent, i.e. of no value in the cause. As the whole object of testimony is to testify to fact (not law), the law can recognize only him as a competent witness whom it supposes to know the fact and willing truthfully to state it. To these two qualifications all the rules of law on the competency of witnesses can be re- duced, and it will be easily perceived that incompetency on the grounds of natural law refers mainly to the first qualification, while incompetency established by positive law refers rather to the second. This, again, explains why the one kind is absolute, no matter whether the trial be civil or criminal, whether the witness be for the de- 1 L. I. tit. 20, 21. For a practical illustration of some of the legal questions see the Causa Mediolan. 1884, in Acta S. S., xvm. 64 ff. * Bouvier, s. v. Competency. Judicial Evidence. 103 fence or the prosecution, while the other is only relative according as the law considers the witness under certain conditions willing to state the truth or not. a. By natural law all those are incompetent witnesses who are deprived of the right exercise of their reason or of their senses either at the time when they testify or at the time of the fact to which they are to testify. The one prevents them from perceiving the fact ; the other, from correctly stating it. To this class therefore belong in- fants, idiots, lunatics, and intoxicated persons; then the blind, the deaf, and the dumb in regard to the sense of which they are deprived. b. By positive law some are absolutely incompetent ; thus on account of age impuberals, i.e. children above seven but not yet fourteen (boys) or twelve (girls) ; again, slaves, on account of their condition ; paupers, because suspect of being bribed ' by the party producing them. A large class of witnesses are incompetent because of the law excluding infamous (infames) persons whether they be such bylaw (inf. juris) or in fact (inf. fact i). Of the first class are those whom the law itself deprives of their honor and political right on account of crime of which they are guilty or judicially accused. Infamous in fact are those who on account of the crime committed by them lost their honor and good reputation in the opinion of good and honest people, although no statute brands them with infamy. 1 Infamy in fact will be re- moved by manifest repentance and amendment, by an honest and becoming life for a longer period ; but infamy 1 Gloss : quod lucri gratia quid fadle admittat, quoting Prov. XXX. 9 Yet Canonists also had an axiom : magis credilur virtuoso pauperi quam di-iti vitioso. Hence if the pauper established his honest character to the satisfaction of the court, he was admitted as witness. * See a detailed exposition in Reifftnstuel, h. t. n. 29 ff. ; Santi, h. t. n. 4 (T IO4 Forms and Paris of the Procedure. by law can be removed by the law only ; i.e. by a posi- tive and authoritative declaration (abolitio, dispensatio). Persons excommunicated and to be avoided (vitandi) are also incompetent. Those who are tolerated, although publicly known to be excommunicated, are also incom- petent if objected to by the opposite party. 61*. Relatively incompetent are those witnesses who may testify in some but not in all cases. 1 Some, again, may be admitted for the defence but not for the prosecution, or vice versa. According to Canon law the following per- sons cannot testify in a criminal case : minors under twenty years; women; if the procedure be accusatorial; persons directly interested in the result of a suit. Per- sons cannot testify against those whom they bitterly hate, nor against their near relations by blood or marriage. Jew or Pagan shall not bear witness against a Christian, nor heretics against those of the fold, nor as a rule lay- man against cleric, nor clerics or religious persons against others in causa sanguinis, i.e. where, in case of conviction, sentence will be for death or cruel mutilation. But neither sex, nor clerical orders, nor religious profes- sion, nor near relationship by blood or marriage can ren- der a witness in a criminal suit incompetent for the de- fence. There is one more class of persons who may be callec in a sense incompetent ; viz. those who are privileged am cannot be called, much less compelled, to testify. Sec below, n. 66. In regard to incompetent witnesses two important ot servations are still to be made. First, the judge is not forbidden to hear their testimony in court, only he must 1 Bouvier, s. v. Witness: "The testimony of such as are general!) qualified and competent under other circumstances or as to other matter is something excluded out of regard for their special relations to the caus in issue or the parties, or from some other circumstances not working a general disqualification." Judicial Evidence. \ 05 not allow it to influence his judgment. For such testi- mony is not legal evidence, nor can any sentence be based on it without becoming eo ipso void ; yet it may give the judge some clues and hints to guide him in the further inquiry. 1 Second, incompetent witnesses must be ad- mitted in the trial of exceptional and of notorious crimes, also in cases where competent testimony cannot be had ; e.g. seduction or solicitation of a child. However, their evidence will not be full proof, except when supported by other evidence. 2. THE AUTHORITY OR WEIGHT OF TESTIMONY.* 62*. In weighing the evidence given by witnesses the judge must consider three things: first, the credibility of the witness ; second, the strength of his testimony when compared with that of other witnesses ; third, the quality of the deposition. With regard to the first, we remarked in the pre- ceding paragraph that incompetent witnesses could give no proof, not even half-proof, but at most so-called indicia or conjectures. Even in cases where the law ad- mits their testimony, it amounts only to the force of a presumption. Full proof is supplied only by competent witnesses. These are sometimes called classical witnesses, and again omni exceptione ma/ores, beyond all exception, 1 Our author says on this point: " If the judge is disposed to consider witnesses as classical who are not such, the accused may enter an excep- tion thereto. . Should the judge administer the oath to witnesses who ought not to be sworn, he is himself responsible therefor. But there is no objection against examining non-classical witnesses, though their testimony is not perfectly valid ; for it may furnish the judge with facts leading to the discovery of fully competent witnesses, or may serve him as circumstantial evidence ; but what weight he may accord to the testi- mony of non classical witnesses in a particular case, be mu$t himself cave- fully consider." * Cfr. AV/a. n. 672 ff. io6 Forms and Parts of the Procedure. which does not mean that no exception has been made against them, but that if made it has not been sustained by the court. Now, it is the general rule of Canon law that in civil as well as criminal trials the concurrent testimony of two classical witnesses, neither more nor less, is required to give judgment accordingly. Hence the axiom : testis unus, testis nullus ; or again, dictum unius, dictum nullius. 1 There were some exceptions to this rule in cases against bishops or clerics, but modern canonists agree that those ancient laws have -gone into desuetude, and that it is now left to the discretion of the court to determine in any particular case whether, and how many, more than two witnesses shall be required for the prosecution before it can conscientiously give sentence against the accused. 63*. In weighing and sifting the depositions made by several witnesses to determine their relative force upon the issue, lies one of the gravest and most difficult duties of the judge. All are agreed that no special rules can be laid down for him in this matter. He must judge of the evidence according to his own knowledge and sense of duty. However, a few general rules may guide him in the difficult task. The depositions of witnesses, whether on the one side only or on both, will either differ or not. Witnesses who make the same or alike depositions are called concordant (testes Concordes, contestes) ; those who differ from one another are called single witnesses (t. singulares). In view of three possible hypotheses in such a case, canonists speak of conflicting, variant, and admin- icular singularity of witnesses. When the different depositions cannot be explained because one necessarily excludes the other, their evidence is conflicting (s. contrarid). Both cannot be true. Evi- 1 This, however, does not apply to expert witnesses. See below, n. 70. Jtidicial Evidence. i o 7 dence is called variant (s. diverstficativa) when there is no connection whatever or mutual relevancy between the several depositions, though they may all state what is true. Hence they are either all or at least some of them altogether irrelevant to the issue, and therefore inadmis- sible. Different depositions of witnesses furnish admin- icular evidence (s. adminiculativa, cumulative?) when they testify to different facts so connected with one another that to prove one is to prove the other. It is clear that this connection of the circumstances or the facts must be first established before such depositions can be called cumulative evidence. Single testimony would give half- proof only, while full proof will be established by con- cordant testimony for the different circumstances or facts. How shall the judge know the relative value of conflict- ing evidence furnished by witnesses? When is it equally strong? and if not, which is weightier? and when is that excess of weight still large enough either by itself or together with other evidence to cause conviction ? No practical answer to these questions can be given here ; it lies with the judge, who must consider not merely the re- spective number of the opposing witnesses, but moreover their intellectual and moral qualities, their position with regard to the matter at issue, and the qualities of their depositions. 64*. The quality of a deposition may refer to its con- tents, and to the manner and form in which it is given. With regard to the first, canonists distinguish four kinds of evidence, viz. evidence of personal knowledge, of opinion, of hearsay, and of rumor. The first is that given by eye-witnesses (testes de scientia] and is the only true witness-evidence ; the rest are not evidence of the fact at issue given by the witnesses themselves, but rather sources opened by these witnesses from which other evi- 1 08 Forms and Parts of the Procedure. dence on the issue may be drawn, such as rumor, declara- tions, authenticated documents, circumstances, and facts established by expert testimony, etc. Evidence of opinion (t. de credulitate) here does not mean expert opinion, nor a lower degree of the mind's assent to its own judgment, " but a belief held as the result of inference and not of direct perception." ' Such evidence is of no more weight than the inferences and conjectures together with the basis upon which they rest. Witness, therefore, must be examined on these points. How much strength may accrue to an opinion from the personal qualities of the witness, is left for the judge to consider. 3 Santi, h. t. n. 30, says of such evidence of opinion, "that if such opinion is supported by good reason, although it may not give a full proof, yet it will be quite an indication of the truth and a strong presumption." Hearsay evidence (t.de audit 11) is not admissible in court except when higher and better evidence cannot be had. The reason is obvious. Such depositions contain only statements and declarations made by others than the wit- ness himself, consequently by persons whom as yet the court knows not. Declarations and statements thus offered carry no more weight than they derive from their authors and the circumstances under which they were made. Such evidence is second-hand only and cannot be worth more than the original. Hence, where there are several 1 E. Robertson, in Encycl. Brit. is. v. Evidence 1 Mr. Robertson, 1. c. . having stated that in Common law evidence of mere opinion is, as a rule, not admissible at all, very truly observes: " In thus excluding opinion on all but technical subjects, the law is stricter than the logic of ordinary life. The opinion of others tells for something in the formation of our own opinions, and no doubt ought to tell for some- thing." Query : Is not this a principle of the Catholic doctrine of Pro- babilism, or, in other words, of that Catholic " examination of the in- fluence of authority in matters of reasoning," as Mr. R. says? Judicial Evidence. \ 09 hearsay witnesses the judge must first inquire after the author of the original statement. Cases are not unknown in ecclesiastical jurisprudence where an amount of hearsay evidence had been offered in court against a defenceless cleric, but through the searching efforts of a conscientious judge that formidable mass of witness shrunk down to the form of one evil-tongued woman. Again, hearsay evi- dence must not be accepted when the declarant himself can be brought into court ; for in this case hearsay evi- dence would be legally suspect and therefore worthless. Evidence of rumor 1 as given by witnesses (t. de fatna) means their depositions in regard only to the existence or non-existence of a rumor relevant to the issue, the origin, extent, and nature of such public report ; but their testi- mony is not to the truth or falsehood of that rumor. Where rumor cannot be traced to a certain origin or defi- nite cause, the court must consider it as idle talk. Depositions made by a witness in the course of a trial may be consistent or not. If they are, it is in favor of his credibility; if they are not, they must either conflict with or only vary from one another. In the first case, if wit- ness corrected himself in the same continent hearing, the court may accept his correction and consider his first as- sertion as an error made in good faith. But if he recall his statement only after other transactions, especially after having seen the party producing him, or if he do not offer any explanation of his conflicting testimony, he will be considered as suborned or at any rate perjured and there- fore not trustworthy nor competent. If his depositions be not substantially at variance, but only in their manner or in minor circumstances, and if he can satisfactorily ex- plain the variance, the prior deposition will be admitted as evidence, except the later be more consistent with 1 Cfr. Rtifffnstu.-!. h. t. xil. 1 10 Forms and Parts of the Procedure. other evidence known to the court. Doubtful, uncertain, vague, and confused testimony is no evidence. Be it re- membered, however, that a witness may be somewhat confused, wavering and shaky in his outer manner, being agitated by excitement, while yet his deposition may be quite clear, definite and firm, and make good evidence. 3. ATTENDANCE OF WITNESSES. 65*. Under this head we shall, as far as our purpose re- quires, treat of the citation, compulsion and produc- tion of witnesses. The citation of witnesses is abso- lutely required, otherwise their depositions cannot be considered as evidence of the court. 1 If a witness should offer himself of his own accord, the auditor might send him a formal summons after having convinced himself of the witness's credibility. It would be advisable to have the summons signed by the auditor and his secretary. According to the Instr,, art. 14, the writ is to be served on the person either by a court messenger or some other qualified person, or even through the mail by regis- tered letter. The fact of its having been duly served should be recorded ; so also should the refusal of witness to obey the summons, as stated in art. 20." The nature of our new procedure does not seem to call for any par- ticular requisites of the summons; but as the inquiry is at first to proceed rather without the knowledge of the accused, it will be enough to state that witness is officially requested by the auditor, rightly appointed, to appear at such a place and at such a time, or, in case of being unable to comply, to state his reasons. Witnesses produced in court either bythe defence or the prosecution need not 1 Gloss: Testimonium a non citato dictum non valet; hujusmodi enifti testis non citatus deponens reJditur suspectus. 8 Cf r. Acta S. S. , xv. 388. Judicial Evidence. ill be formally* summoned, except on request; it is enough to state the fact in the acts. Droste observes that the auditor may sometimes find it advisable not to summon a witness otherwise compellable, but instead of it to go himself to such person in order to obtain his testimony at once and thus prevent any collu- sion with the accused. Such proceeding, too, would have to be recorded. But if a competent witness refuse to obey the summons, can he be compelled to appear and testify in court? 66*. On the compulsion of witnesses ' our author says : "According to Canon law the witness should first be admonished to appear and give testimony. If he decline he must make known and satisfactorily prove his reasons, the same holding true as to those circumstances which relieve him from the duty of taking the oath. But the court will decide whether his reasons are sufficient or not. It has been a matter of great discussion with canonists as to what may be done, if the witness declines without cause to testify against an ecclesiastic. For a time they held that witnesses could not be compelled to testify in criminal trials; 1 in recent times, however, they incline to hold it allowable at least when proof cannot be supplied in any other manner.' The proper way will perhaps be this : the judge admonishes the witness, if indeed he has appeared, to give his testimony ; should he refuse either to appear or to testify, the judge will, according to art. 20 of the Instruct, make a note of it in the acts and try to supply the necessary evidence in some other manner. According to the rules of criminal legal interpretation this art. 20 excludes, in our view, the compulsion of wit- 1 Cfr. Commentators in 1. II. tit. 21: De Ustibus cogendis vel non. 1 This opinion was based on a false interpretation of an incident phrase of Honorius III. (c. 10, X. h. I.). * Cfr. Craisson, n. 5726. 112 Forms and Parts of the Procedure. nesses, even Catholics, although by the rules oT the canons laymen may be compelled by excommunication, and clerics by suspension. Our opinion becomes the more apparent when we consider that the Council of Trent also admon- ishes to great caution in applying such coercive measures. 1 It is another question, indeed, but one which does not belong here, whether the witness is bound in conscience to testify against ecclesiastics" in criminal causes. This question should not be confounded with the judicial com- pulsion of witnesses." So far the author, with whose opinion the Acta S. S. seem to agree. 8 Santi* observes that in regard to compelling witnesses one must not strictly follow Canon law taken in a rigid sense, but rather custom. 5 We need not observe, however, that, any cus- tom to the contrary notwithstanding, the bishop is justi- fied in compelling by ecclesiastical censure witnesses to appear and testify, if the importance and nature of the case or the absence of other evidence make it necessary, of which necessity he alone is to judge. This is the com- mon teaching of canonists based on the principles often expressed in the sacred canons: ne pro defectu testium per eat suajustitia; or again, cum publicae utilitatis inter sit ne crimina maneant impunita. The jurisprudence of the Church as well as the State held it to be a public duty which every member owed to society, to give faithful wit- ness whenever necessary." If without cause he refuse, to ' Sess. xxv., c. 3, de Ref. * Even if not compelled to do so. 3 XV. p. 389. Read ib. the very nice and important remark concern- ing witnesses who, although competent, ought not to be called, quia non licet aut decel eos citare (Cum Magnop., art. 20). 4 L. II.. tit. 21, n. 4. 8 Cfr. Rota, n. 682. * Axiom: Officinm testium est offidum publicum-. A Protestant writer very well says: " Where the witness is guilty of contumacy, and stands in wilful contempt and disobedience to the lawful request of the Church, he maybe arraigned, tried and expelled, which would be nothing but jus Judicial Evidence. 1 1 3 fulfil that fluty, authority will and must compel him. On the other hand Canon law no less than Civil and Common law recognizes cases where the compulsion 'of witnesses for a criminal prosecution would be immoral and unnatu- ral. Such is the relation between parents and children, 1 husband and wife, consanguinity and affinity to the third degree inclusively, and all those cases where on the grounds of public policy a person is bound by a special duty to keep secret whatever knowledge he obtained in virtue of his peculiar relation with the party concerned. The principle that confidential communications made to a person in his professional capacity are in some cases, as e.g. of clergymen, physicians, counsellors, and attorneys, exempt from compulsory testimony, is fully recognized in Canon law.* These and the foregoing are called privileged witnesses in the full sense. 1 In a wider sense those also are called privileged who as a rule will not be compelled to appear in court, but yet must make their deposition to an au- thorized officer of the court (the auditor or a commissioner) either at home or wherever it may be convenient. Such are the old, the sick, the poor, and often women, high dignitaries, persons kept away by official duty or the com- mands of their superiors, and finally those living at too great a distance or under another jurisdiction. By an- tice and right where such a one should be so wilful and disregardful of the well-being of the Church." Henry-Harris. 1 All descendants or ascendants in the direct line. * Ballerini, in his note to Gury, vol. I. n. 470, says: Bonum commune postulat, ut ne metu revelationis homines priventur commodo consilii out auxilii neeessarii quaerendi, quod tamen quaererent nunquam nisi certi de se- treto servando forent. Postulat ergo bonum commune ut quousque commit- tens licile potest suum secretum sen/art, jus retineat ne alter illud prodat. Cfr. Tht Afonth, May 1883, " On Privileged Communications." pp. 27 ff. Henry-Harris, chapt. VI., "The Exclusion of Evidence based on Pub- lic Policy." 1 Cfr. Rei/enstuel. h. t. ii. 8 114 Forms and Parts of the Procedure. alogy the above provision may be observed with those who are willing to testify but refuse for whatever reason to appear in court. 1 If witnesses live at such a distance from the judge or auditor as to render their examination considerably difficult, a capable cleric living in their neigh- borhood may be commissioned to take their depositions. When witnesses are to be summoned and examined who live under another jurisdiction, the court will by letters rogatory request the bishop of the other diocese to have the witnesses duly examined there and an authenticated re- port thereof returned (Instr., art. 19). If persons in the above cases were to offer or send to the court written statements or depositions, although duly signed by their hands, it would at most be extrajudicial evidence. Subtraction or concealment of witnesses is punishable also in Canon law. 67*. Of the s.o-called production of witness little need be said, whether we ask how many witnesses may be brought in and when, or how often the same may testify. Our procedure being summary and by way of inquisition, it is mostly in the power of the judge to determine the number of witnesses to be allowed for the prosecution as well as the defence scrvatis justitiae regulis. These are mainly two : first, to allow as many witnesses as are necessary for both sides to establish the truth of the mat- ter at issue ; secondly, not to allow an unnecessary array of witnesses, 4 which would only delay the decision, confuse the evidence, annoy and vex all others concerned in the trial, and increase the costs. At what stage of the trial may witnesses be offered to the court? Regularly this must be done during the inquiry or informative proceed- ing. After the close of the inquiry (expleto processu, art. 1 Instr. 1878. art. 15, Quodsi nolint. 9 Volentes effrenatam multitudinem testium refrenari (c. 37, X., II. 20). Cfr. Acta S. S.\\., 406. Judicial Evidence. 115 29) or during the final pleading (which, according to the Cum Magnop., art. 33, is not parol \JJOrdinario, arts. 33, 34] but in writing) the court, in our opinion, could not allow new testimony to be given, except it be satisfied that the new witness is a necessary and substantial -one, and has not before been known as such to the party pro- ducing him. In this case the judge could demand of the producent the juramentum malitiae, an oath to affirm that he produces witness in good faith, not with fraudu- lent intent or through chicanery. 1 The same applies in case of re-examining a witness after publication. No more than three terms should be allowed to introduce new witness. How many times may the same witness be "put on the stand? Canonists distinguish two cases: the witness will be examined either on the same matter and points as before, or on new points. In the latter case he may be called to testify as often .as required or allowed by the auditor. In the former he may be re-ex- amined as long as his former depositions have not been made known 1 either by the publication of the inquest or by a violation of the secrecy imposed upon the witnesses. To offer a witness for re-examination after his depositions have become known, makes the law suspect collusion and subornation. Cross-examination, properly so called, has no place in Canon law, as neither the prosecutor nor the attorney examine the witnesses, but only the auditor or the judge or some special commissioner. There is, how- ever, what may be termed the quintessence of cross- examination, inasmuch as the accused may himself or through counsel request the auditor to re-examine the 1 Praestito . . . juramento quod . . . nee per dolum aut artfm aliyuam qnartam productiomm exposeat. sed quid quos desiderat de novo producert prius habere nequivit. c. 55, X., II. 2O. * This is what the phrase quum nondum Ustijitata didicerint (produ- centes) means, c. 46. X.. h. t. 1 1 6 Forms and Parts of the Procedure. witnesses before as well as after the publication on cer- tain points either of the issue, or of witness's competency, or of the testimony published. 4. Examination of Witnesses. 68*. "According to the Instr., art. 18, the witness who is about to testify must be sworn (sub juramento), and that regularly before giving his testimony; to confirm by oath the depositions already made is allowable only when the judge was in doubt whether witness could be sworn at all, or for some other good reason. But if witness should refuse to take that oath his testimony is void." (Droste.) 1 A statement not sworn to is no evidence. The oath must be to the effect that witness will tell (or has told) the whole truth to the best of his knowledge, and nothing else (solam et totain vcritatem). Hence it is called in law 'juramentum veritatis. If necessary, the oath may also contain the promise of secrecy (/. de se- er eto servando ; art. 18). This, we suppose, will generally be the case, with women always ; by the very nature of the inquisitorial procedure it certainly will be advisable in all cases. The oath is to be administered by the audi- tor (commissioner), who should first call the witness's atten- tion to this duty of telling the truth, and to the nature and binding character of an oath. Rota, n. 663. The examination of witnesses must be conducted by the auditor. Even if after the close of the informative proceeding new witness is to be heard, it is generally done by the auditor, not by the bishop or his vicar- general. According to some, the fiscal procurator may be present." The Instr., art. 17," orders the witnesses always to be 1 Axiom: testis nonjuratus non probat. * AJP.. xiv. 971, 35. 1 Cfr. Inslr. 1878, art. n. Judicial Evidence. 1 1 7 separately examined, otherwise the proceeding is void. This certainly implies that they must not communicate to one another either the interrogatories or their depo- sitions before the publication of the process. It will greatly facilitate matters, if the auditor, who has already from the charge and the bishop's preparatory inquest some knowledge of the whole case and the persons therein concerned, will prepare for his private use a schedule of general and special interrogatories. They should be as clear as possible and capable of a definite and direct an- swer. The general questions are on the name, domicile or residence, condition or profession, age and parentage of the witness. " In order to test the witness's accuracy, veracity, credibility and competency, he may be exam- ined as to his relations to either of the parties or the subject-matter in dispute. His interest, his motives, his way of life, his associations, his habits, his prejudices, his physical defects and infirmities, his mental idiosyncrasies, if they affect his capacity; his means of knowledge and powers of discernment, memory and description, may all be" relevant." ' However, great discretion and tact as well as charity, must guide the auditor in these things. The special questions must refer to the corpus delicti, the crime or charge ; they ought all to be material and rele- vant to the fact at issue. Witness may first state in con- tinno all that he knows about it ; then he must be minutely examined on his own depositions, especially how, by what means and ways, he came to that knowl- edge. By this examination the auditor must ascertain how much of the testimony is of personal knowledge, or of hearsay or rumor, or of mere opinion and inference. Then other relevant questions may be put as to circum- stances of place, time, persons, etc., not yet mentioned by witness. It is evident that these special interrogato- 1 Bouvier, s. v. Witness. 1 1 8 Forms and Parts of the Procedure. ries will be quite different in one and another trial. There is, however, a rule which binds under sin and null- ity of the trial. Leading or suggestive questions are not allowed. 1 They are those " which put into the witness's mouth the words to be echoed back, or plainly suggest the answer which the party wishes to get from him. In that case the examiner is said to lead him to the answer. It is not always easy to determine what is or is not a leading question. . . . Questions may be put to lead the mind of the witness to the subject of inquiry, and they are allowed when it appears the witness wishes to conceal the truth ... or where from the nature of the case the mind of the witness cannot be directed to the subject of the inquiry without a particular specification of such subject." " This holds good also in Canon law. After examination the depositions of witness are read to him or by him ; if he wish to correct some statement, he may do it then, but not afterwards. He will then sign his name to the depositions, or, if unable to write, he will make his mark, which must be attested by the clerk or some other person. 3 If he refuse to subscribe, the fact must be noted, together with the reason of it. Finally the record must be signed also by the auditor and the clerk. 1 Questiones suggestivae ac fallaces. Cfr. Rota, n. 667: Santi, h. t. n. 43. 8 Bouvier, s. v. Leading Question. 3 AJP., xx. 88. xxxviii. " Dopo essere steso gli si torni a leggere, e si passi in fine a farglielo sottoscrivere, ovvero in caso d'illeteratura segnare colla croce alia presenza di persona ecclesiastica, o di altri due testimonj," etc. Pius VII., Post Diuturnas, no. Judicial Evidence. 119 5. PUBLICATION OF TESTIMONY. 69*. It is unnecessary here to repeat all that the com- mentators had to say on the conditions and solemnities required for the publication of the testimony. This pub- lication consists in making known to defendant the names of the witnesses and their respective depositions. Now this, according to the Instructio (art. 32), as interpreted by the Council of Baltimore, n. 314,' is to be done only after the closing of the informative proceeding. When the Instr. says that for a full discussion of the issue (art. 26) and a proper defence the accused should know all the evidence against him (art. 27), it merely implies that the different arguments (art. 26, coll. 29) drawn from the testimony and other evidence to prove his guilt, must be clearly and distinctly set before him, but not the full de- positions, much less the names of the witnesses. All this he will fully know when either himself or his counsel shall peruse not only the auditor's brief or abstract (ristretto, art. 29), but also the whole proems-verbal (del processo, art. 32) of all the preceding transactions. Here, indeed, we have the so called confrontation of witnesses with the accused, which is considered by all an essential requisite of criminal justice. 1 " We distinguish, however," says our author, " between personal and verbal confrontation. By the former the witnesses are personally confronted with the accused in presence of the judge, and there obliged orally to repeat their testimony.* In ecclesiastical courts this takes place only in case of most grievous or capital offences. 4 Of itself it is not an essential requisite of 1 The phrase publicato processu, in this n. 314, was explained by the Roman reviser in the parenthesis "(i.e. communicato al defensorc). " * S. C. Epp., i May 1851 ; 17 Dec. 1852. AJP., xnt. 50, 109 sq. 1 They may in such case even be cross-examined in the manner indi- cated by Instr. 1878, art. 12. 4 AJP., xin. 50, 106; xiv. 973, 41. 1 20 Forms and Parts of the Procedure. canonical procedure ; in fact it is nowhere enjoined, and generally will not be advisable. 1 The auditor has the discretional power to order it, whenever it appears nec- essary to him ; the judge can never order it. a But the verbal confrontation is quite indispensable in ecclesiastical criminal procedure. It consists in this, that the names of the witnesses are communicated to the accused, and their testimony either read to him or laid before him for his inspection, as also the conclusions drawn therefrom by the fiscal procurator and the motions made thereon. 3 It cannot be omitted, nor can the accused, as a rule, be represented in this by attorney, except his personal at- tendance be impossible, in which case the attorney must have a special mandate, a general one will not suffice ; moreover, the verbal confrontation must, if possible, still be accorded to the accused himself." 4 Some writ- ers seem to maintain with Rota, n. 659, 715, that if defendant do not expressly acknowledge the testimony as competent and lawful evidence, the judge is bound not only to allow a verbal confrontation but even to re-examine the witnesses (iiecessario repetendi et legiti- mandi sunt) whether the proceeding be summary or not. Others, again, would throw out as irrelevant all the testimony gathered during the inquest, if witnesses be not again sworn in presence of defendant and re- examined during the defensive proceeding although it be a summary trial. These opinions we consider posi- tively false. The whole tenor of the Instructio is against 1 Acta S. S., xv., 395 8 S. C. Epp., 4 Sept. 1834. AJP., XX. 467, xvi. Whatever the meaning of this decree, we think that it is the judge more than the auditor who can order a personal confrontation. What Drosle probably intended to say is that the confrontation should take place before the auditor, not before the judge himself. 3 AJP., xiv. 937, 40. 4 S. C. Epp., 26 March 1823. AJP., xin. 50, 108 ; xx. 89, xin. Judicial Evidence. 121 them and rather conveys what Pier ant onelli ' unhesi- tatingly asserts : Venim in praesenti Ecclcsiae conditione non solnm confrontatio scd ipsa nominis testium publi- catio ut plurimum impossibilis est. The same writer suggests that in order to enable defendant to challenge witnesses for the prosecution, it is enough to mention their names in general without stating what each one had testified (dentur nomina testium confusa et separata a dictis testiwri). If the interests of witness should demand it, his name may be withheld altogether. A full publica- tion in the strict and rigorous sense of the law is not nec- essary for the validity of the trial, as long as the substan- tial evidence against him be made fully known to de- fendant. From this, however, we draw a most important conclusion : whenever the case is such that it would be inadvisable to publish a witness's name, it becomes an ab- solute duty of the court to inquire very closely about the competency and credibility of the witness, whether he be against or for the defence. The court in this case must by anticipation consider whether there be any solid grounds for a possible challenge of such witness. Art. IV. Miscellaneous Evidence. i. EXPERT OPINION. 70. Closely related to the testimony of witnesses is the opinion of experts? If they merely testify to facts as ob- served by them they are simply witnesses, though their testimony would be especially valuable, their observation having been made with an expert knowledge of the mat- ter. They may be, however, especially appointed by the ecclesiastical judge to examine certain matters and to give their expert opinion thereon. They must possess the 'Tit. 5. n. 22, 144. The Acta S. S., xv., 395, say the very same. 1 Reiffemtuel, \. II. tit. 19, n. 22; Schmalzgr., ib. n. 20. Santi, tit. 2O, n. 20. calls expert witnesses tfstts qualificatos. 122 Forms and Parts of the Procedure. qualities of a classical witness and, moreover, the requisite special knowledge, and must be sworn. 1 Their opinion is given in writing called the report. If they are orally ex- amined they must sign their depositions. The accused has under certain circumstances the right to decline their testimony. To make the matter clearer the judicial inspection ' is often of advantage. In such case either the judge repairs with the clerk to the place where the offence was com- mitted, or he orders portable things, instruments, etc., to be produced before him. He may also get information by an extrajudicial personal inspection ; no clerk is then required. Such an extrajudicial information will often give a far better insight into the whole case. 2. WRITTEN EVIDENCE. 71. Evidence in a criminal trial is frequently supplied by means of documents. 8 Persons who are in posses- 1 Cod. Just : "duobus insignibus mechanicis et architectis . . . ss. evangeliis positis definiantur ab architectis." 2 Commentators in 1. n. tit. 19. 3 Commentators in 1. li. tit. 22. De fide instrumentorum. Rota, n. 693 ff ; Smith, n. 863 ff ; Henry-Harris, part iv. Written evidence is also called documentary. " A document in this sense extends to any record whether expressed in writing or symbols, and no matter what may be the nature of the substance on which it is recorded. A gold watch with an inscription on it, or a tombstone, is a document " (Robert- son, 1. c.). This remark holds also in Canon law. See Reiffenstuel, h. t. , de sculpturis, n. 221 ff. There is some difference among writers in using the terms public and private, authentic and genuine writing. Authentic means authoritative ; i.e., a writing the contents of which are reliable and trustworthy, while genuine means that it is the same as written by its author, not spurious, forged, or corrupted. A document may therefore be genuine without being authentic. Public writings are those executed by public authority. Hence documents referring to private affairs are public writings, if executed by an official person recognized as such by the public authorities. Private is any writing executed by a person in his private capacity. It may now be easily understood that all public Judicial Evidence. 123 sion of such documents must therefore, upon a demand by the court, deliver them, but the duty of the accused to produce documents extends no further than that to testify ; he is therefore not obliged to deliver documents which maybe evidence against him.' For a document to serve as evidence, we must first examine whether it is genuine and authentic. Public documents must accordingly bear the name and title of the official issuing them, as well as his official seal. Private documents should be written in the presence of and subscribed by at least three witnesses who can write (testes instrument aril). If the document bears the external marks of authenticity, the further ques- tion arises whether it is really genuine. The genuine- ness will, however, be presumed until called in ques- tion, when it must be proved either by the testimony of those who have signed it, or, if that is impossible, by a comparison with other documents, and if neces- sary by the opinion of experts. But to establish the authenticity of documents through witnesses and ex- perts, the judge must act with the greatest circumspec- tion. He must first ascertain whether the witness or expert is acquainted with the person whose instrument the writing is said to be, whether he has been in corre- spondence with him or only accidentally saw his hand- writing, whether he knows it well and could now recog- nize it. He must then place that document among others of different authors, cover the signatures, and re- quest the witness or expert, who professes to know the handwriting of the author in question, to pick it out. It writings are authentic, and not vice versa; and, again, that a copy (fxemplmm) of a public document must be duly authenticated to become itself public and authentic. 1 Except when they concern the rights of another party. Cfr. Santi, h- t. n 14. 124 Forms and Parts of the Procediire. would be altogether wrong to show the document alone to the witness and ask him whether or not it be in the handwriting of N. 1 72*. There are still some questions concerning written evidence not touched upon by our author, questions that may become important in criminal trials against clerics; e.g. when on a charge of familiarity the correspond- ence between the parties is offered in evidence ; or when in a case of maladministration the account-books or the church-records are produced in court ; or when defendant charged with unlawful exercise of the min- istry appeals to a written faculty which he has lost or thrown away. In such cases the main question will be how to establish or to disprove the genuineness, authenticity, existence, or loss of the documents, etc. Suffice it to say that all these points must be decided by witnesses mostly, either because they are attesting witnesses or parties to the contents of the writing, or because they have seen and read it, or know its hand- writing, or have at least heard of its contents, etc. Parol evidence may also serve to interpret written evidence, to explain doubtful terms of the writing, to rebut presump- tions arising from extrinsic or intrinsic defects, e.g. imper- fect address, erasures, cancellings, interpolations, etc. ; it may even defeat written evidence altogether on the ground of fraud or mistake. All this applies specially to private writings, though not exclusively. There are mainly two objects for which parol evidence may bear directly on written evidence ; namely, either to establish or to deny, first, the genuineness or authenticity of the document ; secondly, the truth of its contents. For a full treatment of the subject consult the Commentators, h. t., Santi, n. 15 ff. 1 On the comparison of handwriting cfr. Reiffenstuel, h. t n. 165, 599- Judicial Evidence. 125 3. CIRCUMSTANTIAL EVIDENCE. 73*. " Facts may be proved in two ways : first, directly and immediately by the testimony of witnesses and docu- ments; or, secondly, indirectly by means of a greater or smaller amount of indications, conjectures and presump- tions that cannot be rationally explained except on the supposition of the fact in question." ' This latter kind of evidence is called presumptive or, because generally furnished by the circumstances of the case, circum- stantial? The rational basis of such evidence lies in the connec- tion of the facts or circumstances known and proved with the fact at issue. That connection is the ground on which the inference is made from the facts known to the unknown or at least unproved. Hence " a presump- tion is more or less strong according as the fact pre- sumed is a necessary, usual or infrequent consequence of the fact or facts seen, known or proven." In the first case the presumption is called violent (vehemens, violenta, gravissimd), because the indications are so strong that they morally force the corresponding infer- ence upon the mind. When, however, the indications are not so strong, but still of such a nature that, judging by the general experience of man, it would be unusual 1 Acta s. s., vi. 422. 1 The C. J. Can. treats of it in 1. II. tit. 23, " De praesumptionibus." Consult Commentators, ibid.; Smith, n. 874 ff. ; Rota, n. 683(1. Canonists always distinguish between praesumptio and indicium, the former being the effect of the latter. A presumption is a reasonable conclusion upon some fact at issue drawn from indications or circumstances generally connected in reality with such fact. An indicium (indication, mark) isa notable sign that may in some doubtful matter lead to the truth. The two terms, however, are often used indiscriminately on account of their close connection; so much so that even the qualifying terms vehemens, gravis, temeraria are equally applied to presumptions as well as indica- tions. 1 26 Forms and Parts of the Procedure* and extraordinary if the inference were not true, the pre- sumption is strong &\\& weighty (gravis, probabilis, magna). Finally, a presumption is slight and rash (levis, tcmerarid) when the facts known do not justify an inference to the matter in doubt, so that it would indeed be unusual if such inference were true. Such an unreasonable pre- sumption, evidently, is no evidence, while a strong pre- sumption gives half-proof; so does a violent presumption against the accused in a criminal suit, although in a civil case it is full proof. Another famous division of presumptions is that in legal (juris] and natural (kominis). The first are those where the law itself draws the conclusion from certain facts. Hence, as soon as these are proved, the judge needs only apply that conclusion. They are of two kinds, conclusive (juris et de jure), against which no direct proof is admitted, for they are as firm as the law itself; and rebuttable (juris simpliciter), which may be set aside by contrary proof. Natural presumptions we call those where the law allows indications or circumstances to exert their natural influence on the judge's (hotninis) mind, and leaves it altogether to himself to make the in- ference that he considers warranted by the facts already proved. The same distinction is sometimes expressed by the terms presumptions of law and presumptions of facts. The former are enumerated by the commentators. The effect of legal presumptions is that they are pre- sumed to be true until the contrary is proved, and that consequently the burden of proof on this point is thrown on the party against whom the presumptions stand. With regard to the relative weight of conflicting pre- sumptions canonists generally lay down the following rules: 1 I. Legal presumptions are stronger than natural, and special presumptions stronger than general ones. 1 Cfr. Santi, h. t. n. 13. Defensive Proceedings. 127 2. Presumptions derived from the ordinary course of nature are stronger than casual ones. 3. Presumptions that stand for the validity of an act are favored. 4. Pre- sumptions in favor of the accused are preferred. It has been asked whether Canon law allows a con- viction in a criminal trial on purely circumstantial evi- dence. It does, and there is no reason why it should not when the degree of that evidence is such as to estab- lish a moral certainty of the crime. Yet canonists are nearly unanimous in saying that in such a case the judge should not impose the full punishment of the criminal code, but, as no direct proof of the crime was given, should modify the sentence according to the degree of the evidence. CHAPTER III. DEFENSIVE PROCEEDINGS. Art. I. Terms and Exceptions. 74*. Although the various special proceedings now to be mentioned may also be used by the prosecution, still they are principally means of defence and are therefore called by canonists the weapons and shields of the accused. By judicial terms we understand here such intervals of time as are granted by a court for a better, more thorough and perfect execution of some judicial act. 1 The whole teaching of Canon law regarding terms is based on two conditions. As applied to the criminal trial they are these : first, the public welfare as well as justice and 1 As the transaction itself is by such terms necessarily delayed, Canon law treats of them under title 8, De Dilationibus (1. n.). Commentators, ancient and modern, use the words indiscriminately. Cfr. Acta S. S n xv. 393 sqq. ; Pierant., tit. 5, n. 18 sqq. ; Smith, n. 1078 ff. 1 28 Forms and Parts of the Procedure. equity demand that the accused, if guilty, shall not with- out cause long remain unpunished ; or if innocent, shall as soon as possible be discharged. Hence the law abhors unnecessary, unreasonable, and especially frustratory or fraudulent delays ; no court may grant terms for such purpose ; and if more than two or three terms for the same object are demanded without urgent and evident cause, the petitioner must make affidavit that he asks without fraudulent intent (jur. malitiae). Secondly, it is generally impossible for the parties, especially the de- fence, to have all the material ready at hand that will be necessary to prove their own allegations or defeat those of the opposition. The judge himself may often be unable with all the evidence, pro et contra, before him to form a certain judgment at once without further con- sideration. Justice therefore demands again that what- ever time may be required for these purposes shall be granted by the court. On the strength of these two principles canonists maintain that most of the former legal terms, i.e. those established and expressed by the Corpus J., have become arbitrary, i.e. dependent on the discretion of the court, at least as regards their length. Whether a short or long, a simple or a peremp- tory term shall be granted, will depend on the nature of the case and the circumstances of persons, places and times. No one doubts that with our improved means and ways of communication terms of three, six and even nine months would be unwarrantable delays; yet notwithstanding " lightning expresses" and " fast mails" and " ocean racers" judicial delays will be unavoidable. To grant all the time required, is a postulate of justice (substantialis j. regula) also in summary trials; and even here, if the term given by the judge should be found in- sufficient, it may be extended (prorogation] as far as the business requires. Defensive Proceedings. 129 75.* With regard to the different kinds of terms, we may for our purpose mention principally five. 1 Citatory is called the time stated in the summons when the accused is to appear in court ; while the time given him to de- liberate whether to plead guilty or put in a declinatory pica or file his answer and let the case be tried, is called the deliberative term. Canonists observe that when the charge was made known to the accused in the citation in such manner as to enable him to prepare his answer, no special deliberative term will be granted. Query. Does our Instruction admit a deliberative term ? \Ve certainly think it does. There is nothing in it to prove such an exception from the general law. The ex- amination mentioned in art. 25 does not necessarily refer to the first appearance of defendant, but to the time when, having decided to contest the charge, he comes to answer. Probatory terms are those given to the prosecution as well as the defence to bring in their evidence, the one to support the charge, the other his answer, both to prove their exceptions (arts. 28, 33).* These terms will gener- ally be granted when new testimony is to be produced. A definitory term is the time after the conclusion, when the court reserves judgment till another day. There is a marked difference in this regard between the \JOrdi- nario and the Cum Magn. The former (art. 35) seems to allow no such terms, for the simple reason that the court was allowed sufficient time (by art. 33) to consider the whole case and form a judgment previous to the final pleading in court (art. 34). But as according to the lat- ter instruction the final pleading is purely in writing to 1 Cfr. Sand, h. t. n. 3 sqq. * These comprise the famous dilationum termini, \* ad articulandum, 2 ad dicendum contra articulos, 3 ad producendum omnia, 4" ad dicen- dum contra producta. By articuli or positiones Canon and Civil law mean the particular specifications of the statement (charge) and the answer. 9 1 30 Forms and Parts of the Procedure. be handed to the Ordinary (art. 33), he will appoint a day for judgment only after having fully informed himself of the merits of the case. An executory term is a delay granted before the sen- tence is to be executed ; a respite. Per se there are no such terms in criminal cases, except one choose to give this name to the time pending an appeal in suspensive. The effect of a judicial term is that during that whole time the court cannot proceed in the particular point or matter for which the delay was granted, and that after the lapse of the term, if peremptory, the court may and ought to proceed, although the petitioner has not yet completed his work. According to the commentators the term must be counted from the day when petitioner is officially noti- fied of it. This, however, supposes that the delay granted is expressed by a certain number of days or months. It may, therefore, be advisable that the judge specify in the writ of delay a certain definite day (terminuiri) of such month and year as the last day of the term. Still the day when the writ was served should be recorded. 76. Exceptions are the strongest weapons of the defence. They are not mere objections to some asertions made in court, but regular pleas by which the defence tries either wholly to defeat or at least to retard the prosecution. The first are called peremptory, because if sustained they positively finish the matter; the prosecution must be stopped and the case dismissed. Such would be the case if the accused prove that what he is charged with is no crime at all, or that there is no cause for action (pleas in bar). Dilatory pleas only delay the proceedings without defeating the whole cause. Such pleas may be directed against the judge himself, challenging him with being in- competent in the case (plea to the jurisdiction} or as being suspect of partiality (rccusation, see n. 77). These are called Defensive Proceedings. 131 declinatory pleas, because the accused declines to have his case tried by that judge or court. Exceptions may also be taken against the testimony on three grounds ; first, against the witnesses themselves as incompetent to testify. This plea, however, may stand over till the conclusion. For it may appear that witness's testimony is to be thrown out as irrelevant, which renders it unnecessary to support or contest the plea. Or the plea may be to the examination of the witnesses, showing that they were not sworn, or were examined in the hearing of one another or in a captious and misleading manner, etc. Again, excep- tion may be made to their depositions as irrelevant, con- flicting or variant, that their evidence is very light: the same may be objected against circumstantial evidence, and moreover that it is unsupported by direct evidence. Pleas against written evidence are to the genuineness and authenticity of the documents or to the credibility or com- petency of the writer. Finally, there are pleas to the proceeding itself in its different parts as irregular, illegal, void, etc. Special mention is to be made of the plea of an alibi {probatio negativa coarctata). By it the accused may show that at the time when charged with having committed the crime in a certain place, or with certain persons, or before certain witnesses, he was in another place or in other company, or that they themselves were in other places, etc. While Canon law grants to defendant the right of valid exceptions even in a summary proceeding, 1 it also strictly obliges the court to strike out all sham picas (cxc. frivolae, f rust rat oriae) entered only for the purpose of delay (malitiosa procrastinated}. It is unnecessary to say that the prosecution may also enter exceptions against the statements or pleas of the defence. But how long such juridical altercations may 1 Rota, n. 730. 132 Forms and Parts of the Procedure. continue lies in the discretion of the court. 1 The same must also decide whether a plea entered has been sus- tained by the pleader or not. With regard to the time when pleas should be entered, no particular time can be assigned in a summary proceed- ing, except that it must be done before the conclusion of the trial, or if new grounds for an exception were dis- covered only after that, at least before the sentence ; after this there remain only the appeal and the plea to the execution. The order in which to enter different pleas is evidently the logical one ; hence, 1st, to the jurisdiction of the court ; 2d, to the person of the judge (recusation) ; 3d, to the ac- tion itself; 4th, to the proceeding ; 5th, to the evidence. Finally, the plea itself should in form be clear, distinct and precise, without argumentation, stating briefly and directly the exception in all its legal force. Art. II. Recusation. 77. There are cases in which the ecclesiastic holding the office of judge in a criminal proceeding is not unfit for the same ; nevertheless the parties, especially the accused, have no real confidence in him, because they fear that his love of justice may, not by any fault of his, but through certain influences be impaired ; they consider the judge to be biased, as it is called in juris- prudence. Following the Roman law, the sacred Canons also gave to the parties the right to challenge (jus recusandi] the judge, if they should have any apprehension of his being biased or prejudiced against them. 2 Many special 1 The terms reflicatio, duplicatio, triplicatio, etc., of canonists are about the same as joinder, rejoinder and surrejoinder in Common law. * Hence recusation is not a plea to the jurisdiction or competency of the judge (exc. jud. inhabilis), but rather to his person, a personal chal- Defensive Proceedings. 133 grounds for a challenge are enumerated in law, but not all, since the matter is of such a subjective and personal nature. Among them are consanguinity or affinity, 1 perhaps to the fourth degree ; enmity," friend- ship, 1 familiarity, 4 fellow-membership with some of the parties in the same society ; * having acted previously in the same or similar cause as counsel or advocate ; ' the subordination of the judge under one of the par- ties, 7 or sometimes vice versa* Recusation is only a dilatory, not a peremptory exception, and must be made in writing 9 to the judge himself, before the pub- lic pleading (contestatio delicti) begins. 10 After that time the recusant can enter this plea only upon making an affidavit that he had no knowledge of the reasons for lenge for cause (exc.jud. suspecti). Recusation may be made not only against a judge-delegate, but also against the Ordinary (Kota, n. 732); not only against one of the associate judges, but against the whole bench. Commentators deal with the subject under tits. 22, 28, 1. n. See an inter- esting case in Acta S. S., XVI., p. 328. 1 c. 36. X., ti. 28. 4 c. 4. X.. II. 6. * c. 15, g 2, C. 3, q. 5. * c. 35. X., i. 29. * c. 25, X., i. 29. ' c. 36, X., n. 28. 1 c. 2. X , n. 6 ; c. 25. X., i. 29. * c. 17, X.. i. 29. All these different reasons are indicated by the Gloss in the following verse : Subjectus, daminus et commensalis, amicus, Incola, canonicus, ac atlingens, inimicus. Si fausam similem detegatus tueatur, Vel si patronus fuit olim, tune amoveatur. * The bill must clearly and in'detail state the reasons or grounds upon which the judge is distrusted, quia judicis recusatio ad siiggilationem exis* timationis et quodammodo injuriam illitts perti net. Schmalzgr., h. t. n. 134. 10 It is the nature of a recusation that it must be made before the person thus challenged begins to exercise his jurisdiction. To let him do this would be to admit his authority. Hence a recusation of the auditor must be made as soon as the recusant is cited by him. To accept his summons is to acknowledge his right to try the case. 1 34 Forms and Parts of the Procedure. the challenge before, 1 or in case the grounds of the challenge arose only afterwards. 2 The sentence passed by a judge who might have been effectively recused but was not challenged at the proper time, is not void, at least on this plea. 9 78. The judge who is challenged will himself examine the grounds and the evidence upon which the recusation is made. If he see at a glance that the reasons for his recusation are good, he ought to retire at once from the trial. But if he clearly perceive that the suspicion is en- tirely unfounded. 4 or if within the reasonable time that must be given to the recusant to establish the challenge, 6 no proof or any weighty reason for challenge can be fur- nished, he himself enters without further delay upon the trial of the cause. 6 A papal delegate, as well as any judge who has the right to delegate another in his place, may commit the trial to another before the plea of recusation is put in, but not after this. 7 " In all cases where the plea is not manifestly a frivolous one and the parties cannot agree with the judge as to his exclusion, we must see first whether the judge officiate individually (judge sole) or collegialiter (j. associate), and whether he be Ordinary or delegate. In a college of more than two judges, the unchallenged judges decide the case of their colleague, provided this 1 c. 41, i, X., 11. 28. 3 c. 28, X., i. 29. 8 S. C. Epp., 2 Aug. 1004. AJP., xx. 85. 4 In which case the recusation is called frivolous and belongs to the class of sham pleas. 6 AJP., xm. 52, 129. ' c. 2, in 6, ii. 15; cc. 41, 61. X.. II. 28. 7 After the plea has been entered, but before it is admitted and in- dorsed by the triors, the judge may delegate another if the recusant con- sent; but even with such consent he could no longer delegate after the recusation has been upheld by the arbiters, c. 5, in 6, I. 14. Defensive Proceedings. 135 right was not withheld from them by being reserved to the bishop himself. If they cannot all agree in their opinions, the majority decides. When only two judges arc to try the cause, the delegate who was not challenged can only then alone decide on the objection against his associate, if they were delegated with the clause that if both could not undertake the trial, one alone of them should proceed in the matter. 1 In case of a challenge against a delegated judge -sole, the delegator decides. When the vicar-general (official) is challenged, the bishop decides, although no appeal lies to him." At present the chapter can no longer decide upon the recusation of the vicar capitular, notwithstanding former practice. 79. Where, however, none of the above cases exist, but where the challenge is made against the bishop or the vicar capitular or any other judge ordinary, there the parties, or the judge and his recusant, are to choose one or more arbiters' who do not reside too far away, and who of course must be clerics. These triors will decide whether the recusation be made on legal grounds, and whether these be clearly proved. If the parties cannot agree as to the arbiters to be chosen, then each party shall choose one. If the arbiters themselves cannot agree, they in turn will choose a third one in order that a deci- sion may be obtained by majority of votes. Should the arbiters declare that no legal reason for challenge exists, or that the one alleged is not proved, the judge may proceed in the cause. 4 But if a party is successful with the recusation, the judge so recused must 1 c. 4. in 6, i. 14. * Ibid. 1 c. 10, X.. II. 2. These arbiters are arbitri juris, not a. compromissarii, nor mere arbitrators. Their power and proceeding is strictly juridical, and their decision is law and can be reversed only on appeal to a higher court. Cfr. 1. i. tit. 43, "de arbitris." In Common law arbiters in case of challenge are called triors (Bouvier, s. v.). 4 c. 61. X . n. 28. 136 Forms and Parts of the Procedure. refrain from any further judicial action ; for, says the Canon, 1 " common-sense teaches that suspected or inimi- cal persons cannot act as judges." In this case another judge should be appointed by the higher court rather than that it should itself try the cause and thus deprive the parties of an appellate instance, if an appeal in the case should afterwards be desirable. 80. A plea of recusation or challenge may also be en- tered against the chancellor for the same or similar causes as against the judge. 3 Some writers maintain the same in regard to the clerk or secretary. 3 CHAPTER IV. PROCEEDING IN CONTUMACY. 8l. By contumacia* is understood an obstinate disobe- dience, and by contumax the person so disobeying. Here, however, we call contumax the person who being accused and summoned to appear for a hearing, refuses to obey the order of the judge.* In the old law censures 1 c. 14. i, X..h. t. * S. C. Epp., 2 Aug. 1804. AJP.. xx. 85. 3 S. C. Epp. Imm., 22 June 1660; 13 Sept. 1692. And we are in- clined to add the fiscal prosecutor and the auditor to the list. In these cases the judge himself will naturally have to decide whether the recusa- tion is to be upheld or dismissed. 4 Cfr. Commentators in 1. II. tit. 14 ; Pierantonelli, tit. V. n. 9 sqq. ; Bouix, II. p. 164 sqq. 6 This is only one kind of contumacy. There are, however, others expressed in the verse: Non veniens, not? restituens, citinsque recedens, Nil dicens, pignusque tenens, jurareque nolens, Obscureque loquens, isti stint jure rebelles, Hence Grandclaude defines contumacy as disobedience against the judge Proceeding in Contumacy. 137 were indeed passed upon such contumacious persons, to compel their appearance ; but the Tridentinum allows the use of censures now only when a person convicted of a grievous offence does not submit to the execution. 1 While Canon law, following the Roman, requires in general one peremptory citation or three simple ones, the Instruction, art. 24, holds the accused as contumacious, if after one simple citation and another but peremptory one he refuse to appear before the auditor without being lawfully excused or hindered from obeying the summons.* The proceeding in case of contumacy is instituted on motion of the fiscal, who will so move after the first in- effectual citation, and again after the peremptory one. When the contumacy is clearly proved, a defender of the contumax is officially appointed by the court, and a term fixed for the trial of the cause.* At the ap- pointed time the court will proceed in the case* against the accused in his absence as if he were present. Being wilfully absent he renounces the privilege of self-defence, and by disobeying the court creates the suspicion of guilt. Yet his disobedience does not prove his guilt, and to be convicted the proof must be just as complete as if he legitime vocantem vel quid fieri praeeipientem. With regard to the citation canonists distinguish between true and fictitious contumacy. The first is when the person simply disobeys the summons received; the other, when he maliciously prevents the summons from being served on him. The consequence is the same in either case. 1 S. xxv. c. 3. de Ref. * If the accused cannot or need not appear, he must notify the judge by stating the reasons. He may do it by an authorized messenger or by registered letter. Pierant., I. c. n. 12. Otherwise he will be presumed contumacious (c. pratsumpta}. If he proves afterward that he had good reasons for disobeying at the time, he is said in Canon law purgare contumaciam, a phrase still used in Common law " to purge the con- tempt of the court." * 13 Apr. 1818. AJP., xin. 47, 74. and XX. 714. 4 Even to the final judgment which will be given in default. 1 38 Forms and Parts of the Procedure. were present ; to be considered contumacious is not the same as being pronounced guilty. 1 The contumacial pro- ceeding differs from the regular proceeding only in omit- ting those acts which require the personal action, or at least presence, of the accused,* as examination, confron- tation, self-defence, etc. The punishment to be imposed in case of guilt is that fixed by law, except it be capital punishment, to which in Canonical law degradation is compared. 1 This, therefore, cannot be inflicted in a con- tumacial proceeding, but deposition, removal and other canonical punishments can. 4 The person proceeded against as contumacious may afterwards demand a new trial, if he can prove the former to be void on account of a falsely presumed contumacy. After the lapse of ten years, however, a dispensation from Rome for that pur- pose will be necessary. 5 CHAPTER V. T II K SENTENCE. 82*. Sentence is the decision or judgment of the court upon a criminal issue tried before it.' Judgments are 1 Cfr. C. PI. B. III., n. 313. 3 The Acta S. S., XV. p. 393, consider it fair and wise on the part of the judge to inform the contumax of the result of the trial before giving sentence, especially if the accused had not before been acquainted with the particulars of the charge against him. Such "grace" (gratiam fecerit ti benignitas judicantis ; 24, X., I. 29) is allowed by the canons. 8 Rota, n. 761 maintains the same of excommunication. 4 13 Apr. 1818. AJP., xx. 714. . ' May 1715. AJP., xm. 47, 75. * Commentators in 1. n. tit. 27, "de sententia et re judicata;" Pierant., 1. c., n. 29 sqq. ; Rota, n. 737 sqq. The Latin term sententia means judg- ment generally whether in civil or criminal cases, whereas the English sentence is more commonly limited to criminal judgments. The Sentence. 139 either interlocutory or final. The former are given in the middle of a cause upon some plea, proceeding or default which is only intermediate and incidental, and do not finally determine or finish the suit, like the lat- ter, which at once decide the main issue and thus put an end to the trial before the same court. Some in- terlocutory judgments may stop any further proceeding and therefore be compared in this regard to final judg- ments (vim sententiae dcfinitivae habeni], e.g. judgment in favor of a plea in bar. An interlocutory judgment differs from a final one also in that it can be recalled or reversed by the judge at any time during the trial, in that it may be given orally provided it is recorded by the clerk, and in that no appeal can be taken from it, except it have the force of a final judgment. 1 83*. The requisites of a legitimate sentence are external as well as internal. The external refer to the time (not on holy-days nor at night), the place (not in loco sacrd) and conditions (in writing ; also having summoned de- fendant to hear judgment, which may, however, be given in his absence). Of the formal or internal requisites the author says: " The judge must not give sentence in haste, as if it were a prejudice formed already during the trial, long before the final discussion; but with deliberation, after having most carefully weighed the arguments for and against the accused. He must render judgment in his official charac- ter as judge, and therefore not allow himself to be led by any extrajudicial opinions formed outside of the regular proceeding, nor by any personal feeling, but notice, only the evidence recorded in the acts, and take into consider- ation what was done before him as judge; in a word, his decision must be a judicial one, and, as far as it lies with- in mere human power, strictly just. To obtain this is the 1 Bouix, u. p. 224 sq. 1 40 Forms and Parts of the Procedure. object of the whole proceeding. By the sentence the judge must either convict or acquit defendant. With regard to the punishment the sentence of condemnation is either merely declaratory, declaring that delinquent has at the very time when committing the criminal act incurred the punishment previously threatened or sanc- tioned either by the law or by the judge ; or it may be actually or properly condemnatory by determining and imposing the penalty only then." If corrective measures in the same matter have already been taken against de- fendant, the judge may make allowance for it in the pen- alty now to be imposed. 1 The reasons for the verdict, if condemnatory, must be clearly expressed," as well as the canonical penalty to be inflicted (Instr., art. 35). It is a privilege of the Roman Congregations not to state the reasons of their decisions. 8 Judgment must be for acquittal whenever defendant has not been fully convicted of the charge. No mere proba- bility, however great, will justify the judge to condemn the accused. Formerly, if the court was not satisfied as to the innocence of the accused, but yet had no sufficient evidence to convict him, the sentence would be non est repertus culpabilis ex hactenns dcductis or stantibus rebus prout stant or ob probationum defectum. By such an acquittal defendant was liable to be called up at any time by the same court for another trial on the self- same charge before that sentence became res judicata? 1 This, however, should be stated in the judgment. 8 Santi, h. t. n. n; Rota, n. 737. The judge must be very careful not to set forth any reasons not fully supported by judicial evidence or giv- ing cause for legal exceptions. 8 AJP., xiil. 53, 135. 4 The C. J. Can., h. t., treats also of the res judicata. This phrase means that the judgment given by a competent court on some issue has become absolutely binding and conclusive; the cause is definitely termi- nated and nothing more can be done in the matter. Hence the axiom in law thit res judicata pro veritate accipitur; no appeal or objection or recourse Various Matters. 141 Droste maintains that at present such a qualified acquittal is no longer customary, but exclusively reserved for case of murder. 1 Hence nowadays such sentence should be by the clause ex capite innocentiae or simpliciter non reper- tus culpabilis, by which defendant is acquitted once for all as non ulterius molestandus? CHAPTER VI. VARIOUS MATTERS. 84. According to the Instruct the procedure is alto- gether a written one. The depositions of witnesses and of the accused are immediately reduced to writing. As each witness and the accused are examined separately and alone by the judge, it appears but just that the judicial acts performed by him from the citation to the sentence be recorded in writing, in order that he be under the con- trol of the accused as well as of the superior court. If the recording is entirely omitted, the proceeding is void. The Instruction* at the same time recognizes the advantages which parol proceeding possesses on account of its direct- against it will be listened to. Only the Pope (princeps) can ex speciali gratia grant a new hearing in the case. Res judicala, as the civilians say, is of such a legal strength ut de ente facial non-ens, de /a/so verum, et de albo nigrum (Keifffitstuel, h. t. IV. n. 105 sqq.)- According to Canon law the condemnatory criminal sentence (verdict of guilty) never becomes res judicata in the sense that the convict would be debarred from having the sentence reversed at any time, when he is able to estab- lish his innocence. But an acquittal does, and becomes a bar to another prosecution on the same charge. ' He refers to a decision of n Sept. 1804 in the AJP., XIII. 53, 137, xx. S6, xxxtv. * S. C. Epp., ii Sept. 1818. AJP., XX. 456; Rota, n. 743. See also StremUr, p. 163 f. L'OrJinario. 142 Forms and Parts of the Procedure. ness. Hence the accused may defend himself not only in writing, but orally too ; his counsel, after filing the written defence, is not prevented from making an oral address; finally, the fiscal prosecutor also may deliver his address orally (arts. 34, 35). An oral address of the defender in addition to the written defence is not usual in the pro- cedure of the Roman Congregations, 1 though in criminal cases exceptions are sometimes allowed. 3 Counsel of the accused may cause the defence to be printed and thus presented to the judge without losing the right of oral argument. 8 Before causing it to be printed, however, he must have the imprimatur of the court ; the latter also determines how many copies shall be printed, takes the copies in charge, distributes them among the judges, and gives a copy to the defender. If, however, the court requires certain passages of the paper to be eliminated before printing, and if, on the other hand, the defender will not submit thereto, tljen the court must send the manuscript to the S. C. of Bishops at Rome, who will decide the matter. 4 85. The sittings and transactions of ecclesiastical courts, even for the purpose of rendering judgment, are as a rule not public. 6 Our Instruction does not directly for- 1 i Dec. 1732. AJP., xi. 791, 289. 9 AJR, xx. 164, xxur. 3 S. C. Epp., 3 Jan. 1820. AJP., xm. 51, 120. 4 S. C. Epp., March 1858. AJP., xm. 1076; xx. 168, xxil. This para- graph remains eruditionis causa. We believe it to be the intention of the Cum Magnopere to keep out from the proceeding any regular parol plead- ing either on the part of the fiscal procurator or on that of defendant. The charge as well as the defence must be in writing. When the Acta S. S., xv. 395, say that the defence may not be handed to the judge in print (typis). because art. 32 expressly mentions a written paper (scriptis foliis), we consider such reasoning hypercritical. In the two Instruc- tions of 1878 and 1880 the term in scriplis is evidently not opposed to typis. but to verbis or parol pleading. To what class would the Acta consign the type-writer's work, to type or writ? 8 AJP., xiv. 973, 41. Various Matters. 143 bid publicity ; but that it contemplated only secret pro- ceedings is shown by the fact that the witnesses (arts. 8, 1 8) as well as the defender (art. 32) may be sworn to secrecy. It is advisable, in the interest of the trial itself, to prevent publicity at least of the offensive proceeding ; but to avoid any possible scandal it is best that the whole proceeding be secret. The language of the court is to be the vernacular ; the witnesses are to be examined in the language in which they are fluent ; in case of necessity an interpreter is to be called, who must however be sworn. In the last century the questions were still put in Latin and then re- peated in the corresponding vernacular. But the custom was abolished in 1800 by Pius VII. 1 As a place of holding court may serve the building erected for that purpose, the bishop's or priest's residence, or any other place enjoying ecclesiastical immunity." But it is also allowable and valid to perform all criminal juris- dictional acts, to examine witnesses, to write the acts, nay, even to give judgment, in any other place, whether exempt or not, provided it be not sacer in the canonical sense.' The auditor may examine witnesses in hospitals, convents, or in privileged places, when the witnesses are not allowed to leave these places. 4 Parochial records and documents may also be examined in the church.* As regards tlie time of the proceeding, the judicial days, the terms must not be set or held upon Sundays and Holy-days. 1 Cst. " Post diuturnas." * S. C. Iram., 3 June 1828. * S. C. Imm., 21 Jan. 1821; 14 July, 1830. 4 S. C. Imm., 9 June 1828. * S. C. Imm., 26 Sept. 1823. See these and other documents on the subjects in AJP., xm. 48, and De Montault. SECTION II. THE CANONICAL PRACTICE. CHAPTER I. EXTRAJUDICIAL ACTS. Art. I. Canonical Admonitions. 86*. Observation. The subject and arrangement of the present chapter require a few explanations. The author, we are convinced, has fallen into a grievous mis- take by making the monitio canonica a strictly judicial proceeding as distinguished from the extrajudicial or paternal admonition. He was probably led to it by con- founding an official and formal or legal proceeding with a judicial one. Moreover, with him the monitio canonica seems to be the same as \.\it praeceptnm, another mistake which may have arisen from confounding such monitio with the monitorium frequently mentioned by canonists, and which corresponds to a mandatory writ of the court or a public episcopal edict commanding something under commination of excommunication. 1 To guard against these mistakes we shall in this article treat of canonical admonitions, whether paternal or legal * (art. 6), and in 1 Cfr. Ferraris, s. v. ; Collet, de censuris, ap. Migne, Curs. Theol. Compl. XVII. p. 144 sqq. 4 We fully agree if some one prefer to call this legal admonition the canonical one par excellence, yet so he do not deny the official or canoni- cal nature of the paternal one. In this sense we read C. PI. B. III. n. 309. Cfr. Stremltr, p. 206 ff. Extrajudicial A cts. \ 4 5 the next of canonical precepts or injunctions, as of extra- judicial although assuredly official and jurisdictional pro- ceedings. Again, the author seems to restrict the use of admonitions and injunctions too much to cases where a crime or at least a delict has already been committed. Now we are far from denying what is held by every one ; viz. that even where the bishop has positive and certain knowledge of a transgression of the law, he is still at liberty according to his good judgment, prudence and charity, not to proceed at once to a judicial trial, but to try admonitions and salutary extrajudicial precepts, or even light corrective penances. This discretion seems to be explicitly granted by the fnstr., art. 3. Nay, even if a cleric were convicted by regular trial, the object of the sentence might be some one of those extrajudicial acts; e.g. an official reprimand, a special injunction the privation of some privilege, some particular pen- ance, or the spiritual retreat. 1 Still the Instr., art. 2, clearly teaches that the main object of those extrajudi- cial acts is to prevent transgressions by removing their occasions and proximate causes. In fact, the author ac- knowledges as much with regard to the paternal admoni- tion. The Instruction, however, makes no such restric- tion ; nor do canonists.* But they allow the bishop to make use of these means also, when he has some well- founded suspicion (indicia hand levid) or pretty good though uncertain evidence (semi-proof} of some delict." 1 Cfr. Rota, n. 613. * Acta S. S., XV. 379; Pieranton., 1. c., n. 5. 13. 3 Cfr. the lucid exposition by Pierantonelli. tit. 3. n. 15 sqq The more we read the more it appears to us that it is a serious mistake to confound our canonical admonitions here spoken of with that famous trina monitio which must be made before an ecclesiastical censure, especially excommunica- tion, can be inflicted as a corrective (mtdicinalis) punishment. We think it equally false to simply apply to our admonitions what canonists require for that one. Such writers forget that what holds in a special case does not thereby apply universally. On that monitio see a full exposition in 10 146 The Practice. Finally, it seems unnecessary to say that these canoni- cal admonitions may, according to the different circum- stances and needs of the case, take the form of advice and counsel, warning and caution, or of correction, re- buke, and reprimand, in a milder or severer manner. 1 87. The remote condition for canonical admonitions is either a delict committed by some cleric, or such mode and habit of life as is inconsistent with the dignity and decorum of clerical orders, or a conduct which is detri- mental to any efficient pastoral work, or, finally, such voluntary occasions that may lead him to scandalous sins. All these are sufficient grounds for the bishop to proceed extrajudicially against such a cleric, as soon as he is suf- ficiently informed of their existence. This knowledge the bishop may obtain in different ways : by information from ecclesiastics or laics; from superiors or subjects of the offender ; through complaints from individuals or from a whole congregation ; or also by immediate per- sonal observation especially upon visitations. How he actually obtains it in each individual case is, therefore, merely a question of fact. Yet the bishop may not pro- ceed at once upon such information. He must first in- quire into the truth of it, 2 or, as the Instructio says, insti- tute a summary inquest (summaria facti cognitio, art. 5). The matter of the fact is to be determined very simply and without any formality ; in many cases the fact is Collet, 1. c., p. 46 sqq. ; a shorter one in Pierantonelli, tit. 6, n. 15 sqq. Commentators may be consulted on canonical admonitions under tit. i, I. v., where they speak of the evangelical denunciation and the consequent duty of the bishop to proceed to paternal corrections. See Schmalzgr., tit. c., n. 148. 1 Corripiantur itaque a praepositis suis subditi fratres corrfptionibus de caiitate venientibus pro ttilparum diversitate diversis, vel minoribus vel amplioribus. c. 17, C. 24, q. 3. In accordance with the foregoing re- marks we have changed some of the author's assertions in the following two articles, others we have omitted as too diffuse. *c. 31, X., V. 3. Extrajudicia I Ads. 147 clear from the very beginning, as when the bishop him- self notices reprehensible acts or a condition of things that is to be censured, for instance, disorder in the records or accounts of the church ; in others, again, the proof is more difficult, and the bishop must examine witnesses and experts. But such examination must not be made in public or in judicial form, as any judicial proceeding must be carefully avoided. 1 In ascertaining the fact as to a supposed delict, the bishop should proceed with great caution, lest he unnecessarily injure an ecclesiastic and from outward appearances consider and treat him as guilty before his offence has been proved. 2 Such a rash proceeding would of itself justify a recourse to Rome which would be successful where the injurious treatment could not be justified by the subsequent conviction of the complainant. Not until the fact has been sufficiently 1 This confirms what we said above in the note on p. 53 ; viz. the In- structio speaks of two different special inquiries, one extrajudicial, which may be compared to the sheriff's or coroner's inquest in our Common law, the other strictly judicial, which corresponds to the trial before the grand jury. If a true bill or indictment be found, then the trial before the court or petit jury begins, to which corresponds the final proceeding of our Instruction, art. 30 ff. We consider it, therefore, as another serious mistake when modern writers, e.g. Rota, apply equally to the preliminary summary inquest (inquisitio pro notitia curiae) what commentators have written per longum et latum on the judicial inquisition o/ the C. J. Can., 1. v. tit. I. Hence Pierantonelli, tit. 3. n. 15. unhesitatingly says : Ex prae- missis trumpit inquisitionem nostram longe differre ab inquisitione de qua agitnr jure Decretalium. See also the A eta S. S., XV. 379. This pre- liminary inquest is also called informatio praeparatjria ( Van Espen. p. in. tit. 8, c. I, n. 37). StremUrvzry properly calls it Fenquete patertielle (P. T38ff.). 1 As regards this preliminary inquest, the bishop may direct it himself or commission a trustworthy, prudent, and impartial ecclesiastic to do it. The whole proceeding must be as quiet and secret as possible, especially with regard to witnesses. The acts with the result of the inquest must be kept in the archives, if any evidence have been found (A eta S. S., XV. 380). If evidence be lacking, or if it be only slight, the acts ought to be destroyed. 148 The Practice. ascertained and determined can the bishop decide how to proceed, whether in extrajudicial or judicial form. As a result the bishop may immediately order his fiscal procura- tor to institute judicial proceedings, or under certain cir- cumstances he may direct his vicar-general to immediately lay a canonical injunction upon the accused, perhaps be- cause he sees periculum in mora ' or knows mere admoni- tions to be useless in the case. On the other hand, he may often be forced by circumstances to confine himself to canonical admonitions, especially when for good reasons, moral or physical, he cannot proceed judicially. 3 88. Though the bishop may have sufficient reasons to officially admonish, correct or reprove a cleric, it will be better first to hear the delinquent himself in regard to his offence. The bishop may tell him the charge pending against him. He may also acquaint him with some of the evidence, although to communicate to him the names and depositions of the witnesses, if any have been ex- amined, would not be advisable. 3 That the accused should be allowed to defend himself is evident. It is in the nature of such informal proceeding that the defence , n. 643. 2 It is evident that in the author's opinion the bishop may at once in- stitute criminal proceedings if he has sufficient proof of the delict, and that he is not bound first to make use of the extrajudicial corrective means. In this he is supported by Pierantonelli, tit. 3, n. 18, 16, 20. It also seems implied in Instr., arts. 3, 10, n; nor is there anything in the Instruction to prove the contrary, although that is maintained by the Acta S. S., 1. c., and Rota, who probably were misled by art. 7. We think the sense of the Instruction is nicely stated by the Council of Baltimore, which says: Si ttlterltts proccdere debet, et natura ac gravitas abusus vel delicti de quo inquirit sinit, non statim ad processutn judicialem transcat, sed modo extrajudiciall media adhibeat praeventiva etc. (n. 309). The rule, therefore, is, that the bishop should not proceed to a trial as long as there is no necessity, or where there is a chance to remedy the evil otherwise. Horret enim Ecclesia judiciorum arma. 3 C. PI. B. III., n. 309; Acta S. S., XV. 380; Pierant., tit. 3 n. 16. Droste maintains the contrary. Extrajudicial Acts. \ 49 may frequently come only after the admonition. In such cases the defence will mostly consist in explaining one's conduct or action; e.g. that under the particular circum- stances he had to act as he did, and perhaps that even in future he cannot do otherwise. If the accused or suspected cleric cannot fully clear himself of the charge, corrective measures are to be used. The first are canonical admonitions. Such warnings, in- structions and corrections are especially appropriate when a fault or delict has not been fully proved, but where a well-founded suspicion still remains ; the more as these measures cannot properly be called punishments. In- structions and admonitions in general can be given even without any previous fault, and spiritual exercises are looked upon rather as good works to be performed than as an evil to be endured. In such cases, however, the bishop must take care lest in his words and manner he presume the guilt of the party concerned. 1 It is evident that every admonition should have its own particular object, and ought to be clear and precise. In some cases it will refer to the proper fulfilment of obligations al- ready existing or to the avoidance of improper conduct ; e.g. to observe the law of canonical residence, not to re- main out too long at nights, to avoid certain places, etc. It is against the nature of canonical admonitions to im- pose any punishments in the proper sense. Their main object is to remove voluntary occasions of delicts, and to repress sinful habits. It is equally against the spirit of ecclesiastical criminal law immediately to inflict strict punishments in these cases, without first having at- tempted milder remedies. 1 It is different, of course, in case of a serious fault or delict fully proved. 1 AJP.. xii. 836, 726. * The admonition should not even threaten punishment. Cfr. n. 309 C. PI. B. III. 1 50 The Practice. 89. It has been remarked above that the Instr., art. 6, distinguishes two different canonical admonitions, one paternal (in forma paterna ct secreta), the other legal (in forma legalis) or strictly canonical. The very distinction indicates that paternal charity and mildness are the char- acteristic features of the first. Hence the bishop will as a rule personally 1 give this admonition, according to the direction of our Divine Master: "If thy brother shall offend against thee, go and rebuke him between thee and him alone." " He will instruct and admonish the delin- quent either in writing or by word of mouth, but as secretly as possible, in order to show by the very form and in his manner that he is acting as father, not as judge. Art. 6 allows the bishops to employ a middle person ; but he should not avail himself of this right, except for rea- sons which make it appear necessary or advisable. 3 He should not employ for that purpose his vicar-general or Official, as the proceeding would by reason of that alone smack too much of the judge. 4 It is also strictly forbid- den, both legally and morally, to enter a paternal admoni- tion on the records of the chancery. The bishop must make a private note of it, 6 in order to justify himself in case of a recourse, but even charity forbids him to make it public. 90*. Formal or strictly canonical admonitions may be given either at once before any paternal monition, if the bishop consider it necessary, 6 or only in case where the 1 AJP., xix. 11 20. 2 Matt. xvui. 15. 8 The Acta S. S., xv. p. 381, remark that the person thus employed should be from among those who by their piety as well as learning and practical knowledge are among the best of the clergy. 4 Rota, 634. * If the admonition was made by another, he must certify to it, and the bishop will keep that certificate. Acta S. S., xv. 381. Extrajudicial Acts. 1 5 1 accused cleric makes light of the paternal correction given to him, or even refuses to accept it. It is not difficult to see wherein these differ from that. There the bishop advises and corrects as father and in secret ; here he corrects and reproves as the custodian of the law, or as civilians would say, qua impcrium habens. Hence the form of such canonical admonition is called legal, i.e. according to law with legal formalities, and therefore no longer secret but before witnesses. There is no difficulty in these points, when the accused appears personally before the bishop or before the person commissioned by the bishop, which commission in this case must be in writing and shown to the party to be reprimanded. But when this admonition is given by letter, the document ought to be formal, i.e. signed by the chancellor or notary (not merely by the private secretary). If sent by messenger, the delivery ought to be sworn to as in case of a judicial citation ; if by mail, it must be registered. The whole transaction is to be recorded in the chancery. This is the reason why it is no longer called a secret admonition, because it becomes known to the law, although it is still to be kept secret from the public. This formal or legal admonition is also to be a mere correction or reproof ; however severe or strong, it should not contain any threat of punishment properly so called in whatever shape. Canonists seem to restrict such commina- tion to the canonical precept or injunction. The sole object of this monitio is to correct the accused and to warn him to beware lest worse ensue. The formalities observed in the proceeding are for the purpose of making it more impressive, and moreover of providing ready proof of his obstinacy, if he refuse to amend. By these it may afterwards be shown that the admonition was formally addressed to the delinquent ; the presence of 152 The Practice. witnesses has really no other object. 1 But in order not to injure unnecessarily the reputation of the person ad- monished, the witnesses may be sworn to secrecy. Finally, we should like to call the attention of all whom it may concern to the beautiful discourse in which Rota, n. 637 sqq., explains the four qualities that St. Liguori demands for such official admonitions. They are charu tableness, prudence, opportuneness, and secrecy, Art. II. Canonical Injunctions. 91. The canonical in junction" is a jurisdictional and pub- lic act like the official admonition. It stands in the same relation to criminal procedure as the general penal law does, except that it is special criminal legislation. When the bishop is informed of the irregular conduct of some cleric or of other faults and dangerous occasions of his clerical inferior, or has found canonical admonitions to be of no avail in correcting him, or positively knows from the outset that they will be disregarded, he will give a special command to that cleric telling him what to do or to avoid or how to shape his conduct in the future, sanc- tioning that command by the commination of a certain and clearly determined punishment in case of disobedience (art. 7). This punishment, however, is always ferendae sententiae ; and even wluere for the fault or delict to be corrected a certain punishment is already fixed by law, the same may be threatened by the injunction whenever 1 c. 48. X., v. 38. a Webster defines an injunction in law to be a writ or process, ordered by authority, whereby a party is required to do or to refrain from doing certain acts. It is, however, more generally used as a preventive than as a restorative process, although not confined to the former. This ex- actly covers the praeceplum canonicum. The Instr. calls it pr. analogum, which only means that the injunction refers to the same object or acts as the previous admonitions. Cfr. on the present subject Rota, n. 6.42 sqq.; Pierantonelli, tit. 3, n. 20. Extra judicial A cts. 1 5 3 it will not ipso facto be incurred, but must be inflicted by the Ordinary. Such special commands will mostly be necessary in cases or conditions that cannot be regulated by general laws in such a way that one could not success- fully circumvent those same laws. Hence the necessity of these special canonical injunctions whether mandatory or prohibitory for special cases according to particular cir- cumstances. If the law forbids a superior to give canonical admoni- tions without good reasons for doing so, it is evident that greater reasons are required to issue a canonical injunc- tion,' and this the more when there is question of other persons on whose account the injunction is laid on the cleric. In such cases the greatest precaution is required,* even when the summary inquest that must precede the action* has revealed good and sufficient grounds. Such would be the case, e.g., if a cleric were forbidden for cause from visiting, except in case of necessity, certain persons, houses or places (the so-called praeceptum de non frequen- tando). If in such a case an injunction has been unneces- sarily and unjustly issued, the S. Congregation will upon appeal deal severely with the appellee/ 92. How the bishop shall proceed in issuing a canoni- cal injunction, the Instr. explains in art. 8. He will first cite (praeventre) the delinquent by an official summons to appear at a stated term to hear the injunction. This does not prevent the accused from defending himself meanwhile, but rather offers him an opportunity to do so, if there be any chance, and thus avoid further proceed- ing. But if he cannot make any good defence, and ap- 1 Rota, 1. c. * The warning given in the histr. 1878 at the end of art. 5 applies here as well. See Appendix. 1 S. C. Epp., 14 Jan. 1817. AJP., xx. 452, v. 4 S. C. Epp., 1731. AJP., xix. 1120, ix. 154 The Practice. pear at the appointed time, the injunction will be read to him by the chancellor in presence of the vicar-general or of two ecclesiastics or two laymen of known integrity. The record or minute of the transaction is to be signed by the parties present, also by delinquent although he is not bound to do so. 1 This record is to be filed in the chancery. The reason of these formalities is evidently the same as in case of formal admonitions. The canonical injunction is to be drawn up in writing. It must contain the name of the person issuing it (the bishop), the name of the guilty party, the precept, i.e. what delinquent must do or omit, and finally the sanction, i.e. the punishment, which will be inflicted upon him if he does not comply with the precept. The sanction, as a rule, will be excommunication, suspension, or recall of faculties, but may also be a pecuniary or other canonical punishment. 11 Punishments in subsidium may at the same time be threatened, for instance, censures in case a pecuniary penalty inflicted should not be paid. 3 Injunctions of this kind, evidently, are not all honorable, especially as the presumption is that delinquent has pre- viously received canonical admonitions in vain. Yet, as it is not intended to dishonor or degrade him before others, but to correct and reform him, the process should be served on him as secretly and privately as possible within the form prescribed. 4 If the accused does not ap- 1 Whether delinquent has a right to demand a copy of the injunction, or whether it would be advisable to give him such a copy, even if not demanded, we dare not decide As the whole proceeding is extrajudicial. we are inclined to answer thus: To the first, distingno: a simple copy or mere memorandum, granted: an authenticated copy, denied. The same answer to the second query. * AJP., xix. 1118, v. 8 S. C. Epp., Dec. 1734. AJP.. xix. 1122. xn. 4 For the same reason the precept itself ought to be of such a nature that by obeying it the person may not give cause for public suspicions and rumors. Pierant., tit. 3, n. 20; Rota, . 645. Extrajudicial A cts. \ 5 5 pear at the appointed term, the reason for his non-appear- ance must in the first place be ascertained. 1 If it appear to be a case of contumacy the injunction may be sent to him in writing. In this case we should indeed try to obtain from him a note certifying that he had received the document ; however, he will most likely refuse to accept the letter, and, of course, give no receipt therefor. In that case the paper may be left at his residence, or, if he have no residence, may be posted on the church door or in some public place.* Like every other law, the canonical injunction has a definite time when and for which it begins to operate. A certain time is given to the delinquent within which he must comply with the precept, otherwise the special pun- ishment will be pronounced and executed, and judicial proceedings begun. 3 Canon law requires that the canonical monition shall be repeated three times before the punish- ment therein fixed be actually inflicted. But if there are reasons which make it proper to give it but once, the monitio itself must expressly state that it is the first and last. Canonists require a term of at least two days for each of the three admonitions, so that in the case of a single peremptory monition six days will have to elapse before the threatened punishment can be inflicted. 4 1 Why not send a second, but peremptory summons? * What an antiquated notion, especially for us Americans ! Why will sensible men still cling to those old methods of canonical procedure, civil or criminal, that are out of all harmony with present times and minds? If with us neither messenger nor registered letter can reach ihe person wanted in proper time, we should conclude at once that there is a casus notorius of something wrong, and further action clear. *C. PI. B HI., n. 309. 4 We remarked in n. 86 that to our mind the canonical admonitions of our Instruction are not of the same nature as the trina monitio here spoken of. The same we hold in regard to the canonical injunction, which seems to us to be peremptory by its very nature, at least when following pre- vious admonitions. 156 The Practice. Art. III. The Tri dentine Suspension. 93. The remedium ex infonnata conscientia, as it is called in our Instruction, art. 9, or the sententia ex inf. consc.* as usually termed by canonists, is that extrajudicial pro- ceeding by which the Ordinary may on account of some secret offence, of whose existence he is personally con- vinced, exclude a cleric from the sacred orders generally, or forbid him from ascending to a higher one, or suspend an ordained cleric. Previous to the Council of Trent the bishop could not refuse to confer Holy Orders on any person who was not convicted of a criminal offence by a legal canonical trial, or at least against whom such a proceeding had not been already begun ; the same was true of the promotion to a higher order, and of suspension from the exercise of such orders. Pope Lucius III., a. 1183, allowed regular prel- ates to refuse the higher orders to their subjects even without previous judicial conviction, when they were sat- isfied in conscience that a secret offence had been com- mitted.* This papal ordinance was by the Council of 1 To avoid in English the continual repetition of that unwieldy phrase ex infonnata conscientia, we presume, at the risk of being charged with forwardness, to suggest the term Tridentine or, what will do as well, ex- trajmiicial suspension. When in matter of marriage a writer mentions the Tridentine decree, every student of Canon law knows exactly that it is none other than the one quoted as Tametri, S. xxiv. c. I, de Kef. tiiatr., because by it a new form of contracting marriage had been cre- ated. Such a new special creation was made in Canon law by the Coun- cil of Trent in the matter of ecclesiastical suspensions, by granting to the prelates of the secular clergy the power to proceed in certain cases ex- trajudicially, or, as the phrase is, ex informata conscientia. Hence if an author, speaking of suspension or in general of canonical criminal pro- ceedings, should mention the Tridentine suspension, we think he would be readily understood to refer to S. xiv. c. i, de Ref., quoted below in the text. * Esse potest quod praelati eoruin commissa secreta noverint ex quibus con- stat eis quod salva conscientia mqucant sitblimari. c. 5, X., I. II. Extra judicial A cts. 1 5 7 Trent, S. XIV. c. I, de Re/., extended to the whole secu- lar clergy. These are the words of the Council: Quum honcstius ac tutius sit subjccto dcbitain praepositis obedient- iam impcndendo in inferiori ministerio deservire, quam cum praepositorum scandalo graduum altiorum appetere digni- tatem, ci, cui ascensus ad sacros ordines a suo praelato ex quacnnque causa, etiam ob occultum crimen quomodolibet , ctiam extrajudicialiter, ftterit interdiclus, aut qui a sitis ordmibus sen gradibus vel dignitatibits ccclfsiaslicis fuerit snspcnsus, nulla contra ipsius praclati voluntatem concessa liccntia de sc promoveri faciendo, aut ad priores ordines, gradus, dignitates sive lionores restitutio suffragetur. 94. From the time of the Council down to our own, canonists have disputed ' much about the precise extent and object of the power thus conferred on bishops and Ordinaries in general. 1 The following positions, how- ever, are certain. This Tridentine suspension may not only prevent one from ascending to sacred orders, but also from exercising those already received, like any other suspension.' The bishop may proceed by extra- judicial suspension only in case of a grievous offence 1 Most of those disputed questions are now cleared up by the concise and ample instruction on this subject addressed by the S. C. Prop. Fide, 20 Oct. 1884, to the secular and regular prelates in missionary countries. See Appendix. In the following notes we refer to it by fnstr. 1884. \Ve omit from the author's text a number of passages that we deem unnecessary. Those desiring a fuller treatment of the subject by modern authors are referred especially to Pierantonelli, tit. vii.; Kota. p. II. sect. 3, n. 509 sqq. ; Bouix, \\. p. 310 sqq. ; Stremler, p. 309 ff . ; Smith, n. 1279 ff. Cfr also the famous Causa Lucionensis given in full by the Ada S. S., XIV. p. 299, sqq. For a short and clear resume of the present teaching of canonists on the Tridentine suspension con- sult Sand, 1. v. tit I. n. II sqq. For the rationale of this Tridentine law consult Caragnis, vol. ii. p 153. and especially Pallotinfs work. ' S. C. C.. 14 Nov. 1654. AJP., xiv. 974. Whether this include also vicars-general is disputed. * Jmtr. 1884, art. I. 158 The Practice. deserving severe chastisement. 1 If there were only a lighter offence (causa levis), Rome in case of recourse will assuredly annul the sentence. 8 The most import- ant condition, however, is that the crime be a secret or occult one. 3 The bishop cannot punish a public of- fence by an extrajudicial suspension. 4 It would be null and void. The particle etiam in occultis, in the Tridentine decree quoted above, has not an extensive but a restric- tive meaning, something like scilicet, namely ; 6 yet that this suspension may be inflicted on some one for an occult crime, although he be at the same time guilty of public delicts, was declared by the S.C.C. on the 2/th Feb. 1875." 95. Here the important question arises, when is an offence occult in the sense contemplated by that Triden- tine decree? Canonists mostly agree on this answer: i. When it is such in the ordinary and common acceptation of the term ; 7 2. When although not being in itself simply secret or occult, yet for certain reasons it cannot be estab- lished by regular trial. 8 Such reasons may be, e.g., the re- fusal of witnesses to testify, or State interference, or other 1 Ibid. art. 6. 8 S. C. C. 1728. AJP., XIX. 1119. 3 Instr. 1884, art. 6; Rota, n. 522 sqq. ; Lucidi, I. C. 3, n. 272 ff. 4 S. C. C., 20 Dec. 1873; Acta S. S., vn. 575. * AJP., XIX. 1228. 6 Ada S.S., vm. 553. This is confirmed by Instr. 1884, art. 8. 1 The Instr. 1884, art. 7, calls a delict occult when it is not yet an ob- ject either of a judicial trial or of public rumor, and when it is known to such few and discreet persons that it cannot be called public. Cfr. the Causa Ugentina, 9 Aug. 1884, ap. Acta S. S., xvn. 368 sqq. 8 This, as Pierant., I.e. n. 21, rightly says, includes our summary trial. By this new form of trial delicts can be much more easily proved than by the former plenary and ordinary judicial proceeding Hence there will undoubtedly be rather few cases where a canonical offence, alihough not simply occult, could not be proved by a summary trial. This may explain why the Instr. 1884 does not mention that second signification of occult, although it is otherwise admitted by all to be within the mean- ing of the Tridentine ordinance, Extrajudicial Acts. \ 59 impossibility of obtaining judicial evidence; and again when a trial, on account of great scandal, would do more harm than good among the faithful. 1 This condition, therefore, implies either that there is actually evidence enough to convict the guilty person, but it cannot be got in the regular judicial way, and hence no judicial conviction can be arrived at ; or that higher considera- tions forbid regular proceedings which are in their very nature public. But how may the bishop be certain, how can he prove, that a regular trial is impossible al- though he has sufficient evidence of the crime? There is no difficulty in case of physical impossibility; as to the moral impossibility, because of the evil arising out of a public or formal trial, the bishop must carefully consider the whole case to satisfy his own conscience, and see if he be able to justify his action if called upon by Rome. As a rule, when delinquent does nothing whatever to create scandal, or when presumably he will do nothing of the kind, if regularly tried ; or especially if he have privately requested of the bishop such a trial, the bishop ought to begin the trial and see how far he may succeed. When bishops proceeded extrajudicially in such cases, Rome had often to remedy it. 1 It must also be observed that where on account of extraordi- nary circumstances even a notorious delict cannot be judicially established, still the Tridentine suspension may not be inflicted. The bishop will have to institute the so-called trial de notorio. May an offence still be considered occult in the sense pointed out, when judicial proceeding has already been instituted against delinquent? We must distinguish: while the process is going on, and after a conviction has been obtained, the offence must be considered public. Not so, however, when the result is acquittal. Taking for 1 AJP., xix 1229. * S. C. C., Mch. 1858. AJP., xx. 166. 160 The Practice. granted that the person acquitted is really guilty, and that he was acquitted only because judicial proof could not be obtained, we must admit that by the acquittal the offence has again become secret, the publicity of the of- fence has been removed, as the judge has publicly de- clared the accused not guilty of the offence laid to his charge. In this case the bishop may still proceed extra- judicially against delinquent if he has positive proof of his guilt. 1 The Tridentine suspension cannot be im- posed for a crime after a judicial conviction of the same, but the punishment publicly decreed by the sentence is to be inflicted. Roman declarations, the teaching of canonists, and the very nature of the Tridentine suspension leave no doubt that the bishop must be fully convinced of the guilt of the person against whom he intends to proceed, before he may use this remedy. He must not act upon impulse and feeling or a mere suspicion however strong, but the evidence of the guilt should be such as may also convince other thinking and sensible men and especially, in case of a recourse, the eminent members of the S. Congrega- tion. 3 A mere assertion by the bishop is not enough. If complainant brings some evidence to the contrary, the Congregation orders the suspension to be removed, at least with the clause cum reicidentia? or, if the reason clearly appear unjust, declares it void. 4 96. The effect of the Tridentine suspension, as said before, is to prevent a person from receiving a sacred order, or, if he be ordained already, from exercising it. The suspension may therefore be ab or dine ct officio. 1 Cfr. Pierantonelli. tit. c., n. 13. * For. in this case the S. C. will require equally strong- reasons to up- hold the extrajudicial suspension that it would in case of appeal from a strictly judicial suspension. Acta S. S., V 22. Cfr. Insir. 1884, art 10. 8 S. C. C, Dec. 1721. AJP., xix. 1117, n. 4 Acta S. S., I.e. Extrajudicial Acts. \ 6 1 But the Council did not in this decree explicitly grant the power to suspend a beneficio, nor is an extensive and liberal interpretation admissible, as it concerns a penal law. 1 The suspension does, however, to a certain extent affect the beneficium of the suspended cleric, as he must pay from his income the honorary of a substitute, if nec- essary." How long may this suspension last? We think the bishop rc\\v\\\. ex infortnata conscientia exclude a candidate forever from receiving higher orders, especially as the latter may himself come to the conclusion that he has no vocation. 1 The bishop, however, should not thus suspend inpcrpctuum from order or office ; 4 nor, as a rule, for an un- limited, indefinite time, to be revoked at pleasure. 6 If the bishop has nevertheless for grievous cause suspended ad beneplacitum, the suspension is temporary and will lapse of itself with his death, or, what in regard to his diocesan jurisdiction amounts to the same, with his trans- lation to another see, etc." Canonists contend that the Tridentine suspension should not continue longer than six months. 7 If it be longer than a year, the S. Congre- gation will, upon petition of the suspended cleric, readily remove it." With regard to a recourse to Rome against the Triden- tine suspension suffice it here to say that it \\asperse 1 Rota, rt. 520, * Thus the Instr. 1884, art. 4. It would appear from this that Sanli's opinion, 1. c., n. 22, is untenable. 1 That is not the question. A clerical candidate may certainly be put off in itidefinitum from receiving higher orders for any good cause whatever. But the author seems to forget here that the Tridentine suspension or in the present case prohibition, is a chastisement for crime only. For this reason we think that in regard to the duration of the Tridentine suspen- sion it makes no difference whether we refer to its first or second effect. 4 Instr. 1884, art. 5. & Rota. n. 519; Lucidi* \. c., n. 264 ff. Instr. 1884, 1. c. * AJP.. xiv. 975. 1 S. C C., Dec. 1733. AJP., xix. 1121. 1 62 The Practice. neither suspensive nor devolutive effect, and the suspen- sion remains in force till removed by the S. Congregation. Such recourse in case of a prohibition from receiving sacred orders has seldom been successful. 1 Candi- dates thus put off have sometimes petitioned Rome to command the bishop to proceed against them judicially in order to show cause why they should not be ordained. The S. Congregation, however, will not grant such re- quests, and rightly so. One may be a good and honest person without being called to the priesthood or sacred orders. Hence the S. C. has generally advised such peti- tioners so to conduct themselves that if they really have a clerical vocation, the bishop may of himself come to such a conviction ; that, moreover, they should address renewed petitions to the bishop himself.* 97. The Tridentine suspension being an extrajudicial act, the bishop is not bound to observe any judicial for- malities or to premise canonical admonitions. 3 Still, as the bishop should in every judicial procedure be guided by the consideration se pastores, non percussores esse (C. Trid.) and never forget the precepts of Christian charity towards their erring brother, so likewise, and for greater reasons, in the present case. The delict to be punished is an oc- cult, a secret one. The bishop is therefore not permitted to make known to others the fault any more than the punishment. As long as the delict remains unknown, the good name of the delinquent is preserved ; he possesses still the respect of the community, and enjoys that ex- ternal honor which is such a great good particularly for an ecclesiastic who has care of souls, and who without a stainless reputation cannot do efficient work. It might seem, though, that by the suspension itself this external honor of the ecclesiastic were already in some degree ' AJP., XI 1105. * S. C. C., 7 Sept. 1759. AJP , xx. 69. 8 Instr. 1884, art. 2. Extrajudicial Acts. 163 jeopardized ; yet the effects of this suspension are such as an ecclesiastic may under circumstances voluntarily im- pose upon himself. He may for reasons of piety, con- science or scrupulosity retire for a while into solitude to collect himself and provide more surely for the salvation of his soul ; or he may for temporal causes, which are not always given out in public, refrain from some public func- tions, or go abroad, etc. Again, a person about to receive orders may from motives of conscience and of his own accord put off being ordained or retire altogether. Hence the consequences of a Tridentine suspension need not necessarily appear to the public as a punishment. On account of the very strict secrecy and caution to which he is bound, the bishop will generally have to act personally throughout the whole case. How he receives the first intimation that an offence subject to this pun- ishment has been committed, is a question of fact. Cut to obtain a full conviction and certainty thereof, he has often to gather all kinds of proof or evidence. Nothing prevents him from examining the delinquent himself. Often he must examine witnesses. Here he must proceed with the greatest caution. It will be advisable to make witnesses promise under oath not to reveal either their depositions or the fact of their examination. A clerk or secretary should not be present. When the bishop is convinced of the offence charged, and if after a careful consideration of all the circum- stances of the case he is of the firm opinion that the offence is a secret one in the sense above explained, he may then pronounce the sentence ex informata conscientia, which may possibly, coming without any previous admo nition or warning, 1 strike the offender like fulgur de coelo sereno. 1 Although the bishop is not bound by law to premise a canonical ad- monition, yet prudence as well as charity seem to demand ii, quotits fieri 164 The Practice. The sentence of the suspension (prohibition) must be in writing; an oral communication alone will not suffice. 1 The bishop must personally deliver it to the delinquent ; nor may he employ the post-office to deliver the writing, although the messenger may not have the least suspicion of the contents. For, this mode affords no absolute certainty of secrecy. Nothing, therefore, is left to the bishop but to cite the person to appear personally, and then intimate the sentence and deliver the writing. 3 It is strictly forbidden to enter it in any manner on the records of the episcopal chancery.' The bishop must make a private note thereof, to serve as evidence before the S. Congregatio Concilii, should the delinquent ap- peal by recourse. If any such notes be found after the bishop's death, they are to be inclosed in an envel- ope addressed to the bishop's successor, and kept in the chancery. The successor, having ascertained their na- ture, must destroy the notes ; but in no case is he al- lowed to make use of them. 4 The vicar-general is ex- pressly forbidden to take possession of these notes, as may even be inferred from the fact that with the bish- op's death he ceases to be vicar-general. The bishop might do well to use fictitious names in these notes, especially as the suspension terminates upon his death. possit nee sit pericuhtm in mora, Pieranton.,l\. t., n. 4. Nothing more than this is proved by the verbose rather than weighty discussion of Kota, 529 sqq., against Bouix. The Instr. 1884, art. 9. only directs the bishop to join paternal admonitions with the suspension, so that it may not re- main a mere repressive remedy, but become at the same time a means of correction and amendment. 1 S. C. C., 5 Sept. 1883. AJP., xx 84. 8 The author asserts that the bishop may not employ another person to communicate the sentence to the delinquent. This opinion can no longer be maintained as the Instr. 1884, art. 3, explicitly states the contrary. 3 S. C. C., it Aug. 1758. AJP., xx. 68. 4 AJP., xix. 1129. The Judicial Trial. 165 The written sentence to be communicated to delin- quent must contain the name of the person suspended ; it must clearly state the nature, extent and duration of the suspension, and that it has been decreed against him in accordance with c. i,S. XIV., C. Trid.' Finally, it must bear the subscription and signature of the bishop. The document need not give the reasons for the suspension, 2 much less need the bishop make known the evidence and testimony of the witnesses. CHAPTER II. THE JUDICIAL TRIAL. Art. I. TJie Auditor s Inquest. 99. By judicial trial we mean here those criminal pro- ceedings where after judicial conviction proper eccle- siastical punishments, especially greater and severer ones, will be inflicted. We certainly do not mean to gainsay the right of the bishop to enforce the observance of di- ocesan statutes or other ordinances by lighter punish- ments, especially pecuniary penalties, to be executed in purely administrative ways. Even in regard to the ad- ministration of church property he may find it necessary to use similar coercive means to keep or restore order in these affairs. Yet such administrative penal policy will be of no consequence unless the delinquent voluntarily submit himself. If he do not, the bishop must after all have recourse to the judicial criminal procedure. The remote condition necessary before criminal pro- ceedings can be instituted, is the violation of some penal law whether general or particular, or of a canonical in- 1 Instr. 1884, art. 3, 45. v Ibid. art. 9. 1 66 The Practice. junction. The common principle Nulla pocna sine lege is also embodied in the Instr., art 10. The next condition is that the authoiities be informed not only of the offence or- crime committed, but also of its author. Without any knowledge as to the probable offender, no regular trial can be instituted. The criminal proceedings will begin upon motion of the fiscal procurator. 1 By what means he ob- tains the required previous information is always a mere question of fact. He may obtain it directly or indirectly through the bishop or other ecclesiastical officials, by way either of a petition or a complaint, by public or private notices, by rumor, or even in the course of some other judicial or extrajudicial investigation. All this is implied in art. 1 1 of the Instr. We are here no further concerned with these questions of mere fact. But we wish to remark that anonymous communications are to be received with the very greatest caution. 2 The honor of the Church and of the clerical state, the good character of the priesthood so indispensable to any beneficial labor for the salvation of souls, the full confi- dence in the priest so necessary to those confided to his charge, are high considerations why the fiscal procurator must in every official act be exceedingly discreet, careful and circumspect. How often does it happen, thus wrote the S. Congregation to the Bishop of Elba, that an eccle- siastic " est poursuivi par un parti hostile qui 1'accuse pour des fins particulieres." ' 100. When the fiscal procurator has a well-founded suspicion or is otherwise sufficiently informed that a crime has been committed, he must first inquire extra- judicially 4 into the actual fact, and thereby ascertain not 1 Pierantonelli, tit. 5, n. 2. 3; Rota, 648 sqq. ; Acta S. S., XV. 384 sq. * Pierantonelli, tit. 3. n. n. See also supra, n. 36. 2 19 Apr. 1858. AJP., xx. 166. 4 AJP., xiv. 971. The Judicial Trial. 167 only those circumstances which tend to criminate the ac- cused, but also those that tend to exculpate him. 1 For this purpose he may interrogate witnesses and experts, and ask the ecclesiastical authorities for help and assist- ance. This extrajudicial and preliminary inquest, which, in order to avoid scandal, must be made in a discreet and forbearing manner, is absolutely necessary, except in case of notoriety, before a judicial criminal proceeding can be instituted. 4 This is expressly required by the lustr., art. 15.' A hasty, inconsiderate beginning of criminal proceed- ings, without a sound and legal basis, justifies a complaint to the higher authorities. 4 The result of this preliminary investigation will be either to begin a public action or to proceed extrajudicially or to leave things in statu gu0, according as the bishop has succeeded in collecting suffi- cient evidence to warrant further proceedings or not. In matters of correction proper in which poenae medicinales are employed, judicial action is barred by limitation in five years.* The fiscal procurator must moreover refrain from bringing suit when the bishop forbids it, upon whose commands of course he entirely depends. What may induce the bishop to discard all criminal proceeding is in most cases a question of fact.* A peculiar case is men- tioned by the Instr., art. 43.' 101*. If sufficient ground has been discovered upon which to institute a criminal trial, the bishop will order his public prosecutor to formulate and bring in the 1 See our remarks on the subject supra, n. 35. * S. C. Epp., 23 July 1831. AJP.. xx. 460. 1 Cfr. Acta S. S., xv. p. 387. On this previous inquest see our re- marks tupra, n. 87. 4 S. C. Epp., 23 July 1831. AJP., xx. 460. *S. C. Epp., 7 May 1830. AJP., XX. 718. 20 June 1831. AJP., xn 1132. ' See supra, n. 34; Stremler, p. 154. 1 Cfr. Acta S. S., xv. p. 397; Rota, n. 857. 1 68 The Practice. charge.' It should be a clear and definite statement of the case, giving the name of the delinquent, the nature and extent of the offence or delict, and the laws that were thus violated. It might also contain a summing up of the evidence gathered in the. previous inquest. A copy of such a specified and at the same time comprehensive charge ought to be given to the auditor, to whom it would be a most serviceable guide during the following judicial inquiry. 2 Having received the charge, the bishop will ap- point or commission an auditor 3 to conduct the informa- tive proceeding, by which all the evidence bearing on the case for the prosecution as well as the defence is to be gathered. 4 The Instr. clearly indicates two phases of this inquest which have been called respectively offensive and defensive proceedings. The first (arts. 17-21) consists main- ly in gathering, especially by witnesses, all the evidence that may prove or establish the charge against the ac- cused (ad cnlpam accusati probandam), although, as we remarked elsewhere (n. 28), the auditor must be careful not to conduct the inquest on the supposition that the accused is really guilty. Even now he must try to find evidence, if there be any, that may exculpate the delin- quent. After the auditor has, under the prosecutor's guidance, obtained all the evidence available for the prosecution, he will begin the defensive proceeding (arts. 21-28), which opens with the citation of the accused. The legal requisites of the citation, examination, and eventual confession of the accused are explained above. 6 The accused may be examined at his own residence if 1 C. PL B. III., n. 311. * This is quite in keeping with the Instr. 1878, arts, i, 2, 6. 8 See Article II., p. 52. * On judicial evidence see Chapter II., p. 92. ' Droste holds that the defensive proceeding begins only with the final pleading. * Article II., p. 96. The Judicial Trial. 169 circumstances allow it. In this case the citation must con- tain the command to remain at home at an appointed time, when the auditor and clerk will call upon him. The accused must be examined in person ; he cannot be repre- sented by attorney. The examination will be conducted by the auditor exclusively, although the fiscal procurator may be present. 1 Defendant is, however, as yet denied counsel or advocate. 8 The accused may answer the ques- tions put to him or may refuse to do it, which, however, will always create suspicion ; he will not be forced to an- swer. Yet courtesy would require him at least to answer the general interrogatories. He is allowed to make any relevant allegations and averments for his defence and to offer any verifications he can possibly give, etc. What- ever evidence for the defence the auditor may thus be able to obtain must be taken, as the Instr., art. 25, de- mands. Against the evidence for the prosecution de- fendant may try to prove it to be conflicting, variant, rather slight and inconclusive. In the later proceeding, after the publication of the testimony, the defence may challenge the opposing witnesses, their credibility and competency ; or if a denial of the charge is impossible, it may put in a plea in avoidance (showing that the action charged is not criminal nor subject to disciplinary correc- tion), or a plea of justification (proving that defendant had aright to act as charged), or a plea in excuse (showing cir- cumstances to extenuate and diminish the grievousness of the charge). 1 All the allegations, exceptions and pleas of the accused are entered on the minutes by the clerk, whom the auditor ought to direct and help in the matter. The minutes are read to the accused or handed to him for inspection. He is then asked whether he wishes any- thing to be changed or added, and any such request of his must as far as possible be complied with. Finally, 1 AJP., xiv. 927. * AJP., XX. 734. * Rota, n. 728. 1 70 The Practice. the accused, if willing, should sign the minutes ; so also must the auditor and the clerk. If defendant demand it, a probatory term must be given, when he may hand in his defence in writing. 1 102. While the auditor was engaged in taking evidence for the prosecution and the defence, the fiscal procurator may have found additional evidence on his side. If so, he may offer it after the hearing of defendant, and the auditor may thus have to examine new witnesses, or the former on new but relevant matter, or to institute other judicial proceedings. The results of this new inquiry must be communicated to defendant the same as before, who thereupon has the right to answer and defend him- self anew, because he or his defender is always entitled to close the case. Several probatory terms may thus become necessary before all the evidence for and against the ac- cused is collected and the inquest may be closed. When neither party has any more evidence or motions to offer, and the auditor himself considers the investiga- tion complete, he will declare the inquest closed, 3 and make out a written resume of the results of the investiga- tion, according to art. 29." This abstract together with the whole proces-verbal (the acts) of the inquest the audi 1 Instr., art. 28. s " Conclusio in causa est actus judicialis quo utrique parti ulterior probationum seu exceptionum productio interdicitur." (Sanguine ti, n. 618) 3 The abstract is to give the main arguments (summarium praecipuorum argumentorum ristretto delle esseiiziali risultanze) pro and contra as derived from the evidence obtained at the inquest. We would advise the auditor for the sake of ready reference to mark the folios or sheets containing the acts or minutes not only by the ordinary numbers for the paging, but also with letters of different type or in different ink (A, b. y, 4), accord- ing to the different kinds and parts of the evidence. By such a device he can easily indicate where the evidence from which he draws the con- clusions is found in the acts or minutes. This resume or abstract by the auditor may be compared to the judge's " charge " (summing up) to the jury in Common law. The Ju dicta I 7 ;-/#/. 1 7 1 tor transmits to the fiscal procurator, notifying him at the same time that he has finished his work and closed the inquest. 1 The fiscal will peruse the documents in order to draw up his last charge and motions (rcqnisitoria fiscalis] for the final pleading, supported by the evidence obtained in the trial. When he has finished he will de- liver the documents (the auditor's abstract and the acts) together with any special motions of his, which, however, he cannot afterwards change, to the bishop or the judge appointed, who, after examining them, will fix a term for the final pleading, to which he must accordingly summon defendant as well as the prosecutor. Instr., art. 35. The time intervening between the close of the inquest and the final proceeding must, however, be sufficient to allow the accused and his counsel to prepare themselves for the defence ; a period of only two days would cause the proceeding to be annulled.* 1 There is some difference between the L'Ordinario and the Cum Mag- nopere with regard to the final proceeding. It mainly consists, as we re- marked supra, p. 142, note 4, in the fact that the American Instruction positively shuts out any parol pleading, so that the accusation as well as the defence must be made and handed to the judge in writing. By an- alogy, though, with the Instr. 1878 for the -Committee of Investigation, arts. 6, 7, which the Cum Magnopere follows in many points, we believe that the court when sitting to give sentence might first allow the fiscal procurator and the counsel for the accused to read respectively the charge and the defence and offer oral explanations. The regular pleading, however, being in writing, the Cum Magnop. orders, in art. 33, that the prosecutor's final charge (tonclusiones) shall be communicated to de- fendant's advocate, thus to enable him to make the defence as full and thorough as he possibly can. The written defence together with the charge is then returned to the bishop (or the vicar-general, if he was ap- pointed to try the case), who in private and at leisure will carefully study and closely examine both until he is able to conscientiously form a judgment and give sentence juxta alU-gata et probata. He will then fix a day to pronounce sentence in court, and summon the parties. On the day appointed, when all are present in court, sentence will be given without any new pleadings or transactions (art. 34). * 20 Aug. 1681. AJP., xni. 51. 172 The Practice. Defendant and his counsel may cither peruse the ab- stract, the proces-verbal and the fiscal's observations (art. 32) in the original at the episcopal chancery ; or they may demand, at their own expense, a copy thereof certi- fied by the chancellor. Counsel may first have to take the oath of secrecy, if the bishop so decide. But it would not be enough to give them a mere extract from the acts. 1 Such an inspection of the acts, however, cannot be allowed to defendant or his counsel before the inquest is closed, as it is virtually the so-called publication of the process. But in no case may the accused or counsel take the original acts home with them, or away from the chancery. Even when the documents may be perused at the chancellor's office, such measures and precautions ought to be taken by him that the acts cannot be ab- stracted or otherwise tampered with. 2 Counsel may hand in the defence either in writing or print, even before the day set for the final pleading (art. 32).' Art. II. The Final Pleading and Sentence. 103. The final pleading of the prosecutor and counsel for defendant must take place in presence of the vicar- general and the chancellor (L'Ordinario, art. 35). There is, however, nothing in the way to prevent several judges from sitting for the final hearing in a criminal case; rather it is to be recommended in order to make more certain that justice will be done. 4 The citation of the accused to this final proceeding (which is just as little 1 15 Mch. 1817. AJP , xin. 51. * Cum Magnop., art. 32, " debitis sub cautelis." Cfr. AJP., xx. 451. 3 According to the Cum Magnop. counsel must do it before the plead- ing. But as that is all in writing, we suppose the judge will fix a day when the defence must be handed in at the latest. 4 See our remarks supra, p. 52, note i. The Judicial Trial. 1 73 public in the sense that the public at large may be ad- mitted as the inquest itself ') is indispensable ; its omission would make the proceeding void. The accused, how- ever, need not appear in person, but may henceforth be represented by his counsel. The final proceeding is opened by the judge or the presiding officer at the time appointed. The pleading begins with the charge of the fiscal procurator, who repeats, explains and substantiates the same identical motions and allegations made by him in writing after he had read the acts and the auditor's ab- stract; he cannot make a new charge or motion or bring in new matter, because the defence is not prepared for it. If he nevertheless insists on doing so, the court will determine whether to allow it, which it may do only under the express condition that if the new matter be in any way material to the defence, it will either be disal- lowed by the court or another term will be given to the defence to prepare an answer. Then follows the defensive pleading. It matters not whether the accused plead first or his counsel ; as each has the privilege of parol pleading, 2 though they may have previously handed in the written defence. The fiscal procurator may possibly reply to the argument of the defence ; in which case the accused or his counsel has the right to rejoin. In fact the proceedings as a rule cannot be closed before defendant or counsel declare that they have nothing more to say ; in other words, the defence has the right to close. 104. When the parties have closed their pleadings, the judge must consider whether the cause is ready for judg- 1 AJP., xx. 467. * This we doubt. To us the Instr. which in arts. 34. 35 makes no men- tion at all of defendant, but only of his advocate or counsel, seems there- by to imply that counsel alone should do the final pleading in behalf of the defence. Nor do those articles necessarily imply parol pleading. 1 74 The Practice. rnent or not. If it is not, because the investigation was defective, and some points remain yet to be cleared up by new testimony of witnesses or experts, he must prolong the definitory term and order an additional inquest to be made by the auditor. In the other case he must render judgment at once. According to the Instructio, art. 35, sentence is pronounced by the judge immediately after the final pleading at the same term, and put in writing by the chancellor. If the court consist of a col- lege of judges, they must first withdraw to deliberate on the verdict, which is given by the majority of votes. The court may also reserve judgment until a later term, but not too long. Judgment must in every case be rendered by the same judge who sat for the final hearing; if ren- dered by any other, it is void. The parties must again be summoned for the day when judgment will be given. They may be cited orally while still present at the final pleading. Sentence is to be given in presence of the same parties that were present at the final hearing, i.e. the judge, chancellor, prosecutor, and counsel of defendant. 1 De- fendant himself must be summoned, but need not appear. The legal requisites of the sentence were explained in n. 83. A certified copy of the sentence is given to the accused or his counsel, who should acknowledge the re- ceipt of it so that the fact may be recorded in the chan eery: 3 If the defendant live in another diocese at the time, the copy of the sentence will be sent to him through the authorities of that diocese. In case of an appeal by the fiscal procurator, a copy will be given to him also;' 1 Acta S. S., XV. 395: " Nequit minori personarum numero causarum criminalium judicium edi." While the L'Ordinario mentions only the vicar- general, the Cum Magnop. mentions also the bishop (art. 34). 3 Acta S. S., XV. 396, 550, note i. 8 15 Dec 1857. AJP., xx. 53. Appeal and Recourse. 1 75 but the original written sentence must always remain in the chancery. 1 In case of a full acquittal, the acts of in- vestigation must all be destroyed, that is to say burned. 8 CHAPTER III. THE APPEAL. 105*. An appeal, in the wider sense, is the calling upon a higher authority for redress against an injury or griev- ance sustained through the act of a lower authority. Such recourse was mostly taken from judicial decisions, and in order to be accepted by the superior court had to be made under certain conditions or legal formalities. Hence the term " appeal " in the language of the law came to be used in a technical sense of the removal of a cause under certain formalities from the lower to a higher jurisdiction 9 in order to obtain redress. This definition while it excludes any other means of redress, whether it be a simple recourse or a plea of nullity, covers all ap- peals judicial and extrajudicial. By the first is meant an appeal from a judicial act or anything done by the judge in his official capacity and in connection with a judicial proceeding, whether it be a final or incidental action. 1 12 June 1858. AJP., XX. 168. *4 Apr. 1775. AJP.. Xin. 53: XX. 74. * The lower jurisdiction is generally called in Latin judex a quo, and the higher judex ad quern. The latter is called in English the appellate court or judge. For the first we choose the term judgt-appellet. Ap- pellee (in Latin afpellatus) means the party against whom an appeal is taken, which in a criminal trial is the state or attorney general (in our case the bishop or the fiscal procurator). In an extrajudicial canonical appeal it is mostly the bishop (judex), again, who is appealed against. Hence, the term judge-appellee sufficiently serves our purpose. 1 76 The Practice. Judicial appeals therefore they would be, if one appeal from a final or interlocutory sentence, from an order of the judge appointing too short or limited terms, from the ruling out of some evidence or plea or challenge, from the admission of incompetent witness, etc. An appeal is extrajudicial when it is made from extrajudicial acts of the superior or judge. 1 In the strict judicial sense this ought never to be called an appeal simply, as that always means a judicial one, but rather informal appeal or provo- catio ad causam, i.e. legal application for redress. To use the word recourse (recursus) for extrajudicial appeal, as a few seem inclined to do, is confusing. Recourse in its legal sense differs from an informal appeal and may be had only where neither a judicial nor an extra- judicial appeal lies. Again, an extrajudicial appeal is a formal proceeding subject to conditions and formalities defined by law, while a recourse is a plain and informal act. Hence an extrajudicial appeal goes through the regular order of the higher instances, but a recourse lies directly to Rome. Finally, an extrajudicial appeal may have de- volutive and suspensive effect, neither of which belongs 1 When reading older Latin canonists a little confusion in this matter of extrajudicial appeals may sometimes arise from the fact that they use the vtorAjudex indiscriminately for one in authority, whether he be at the same \\mejudge in the strict sense or not. Hence Grandclaude in tit. de officio Judicis Ordinarii, X., very opportunely remarks: Judicis nomen hie latius sumitur, scilicet pro eo ontni qui exercet jurisdictionem. Nam judex et jurisdictio, quoad vim nominis, sunt correlativa. Hence to avoid mistakes when studying the canons and their commentators on extra- judicial appeals, we must discard the idea that judex frequently calls forth fn us. Picrantonelli generally uses the. term praelalus instead of judex. Another cause of confusion is the wider and indiscriminate use of the term appellare and even appellatio by which sometimes not only the older commentators bur the sacred canons themselves indicate any recourse, formal or informal, to a higher authority. On appeals consult the Com- mentators, \, II. tit. 28; Bouix, II. p. 246; Rota, n. 787 sqq.; Pierantonelli, tit. V. n. 32 sqq.; Smith, n. 1207, and especially Stremler, p. 369 ff. Appeal a nd Recourse. 177 to a recourse. Devolution in the latter case is merely per ace i dens. 1 The main difference between a judicial and an extra- judicial appeal is in regard to the suspensive effect. By a judicial appeal the jurisdiction and orders of the judge- appellee may often be suspended at once by the mere notice given of the appeal, and any further acts of his be- come thereby attentats ; but an extrajudicial appeal has no such suspensive effect before the appellate jurisdic- tion has ordered the retrial. 2 Hence, the decisions and orders of the inferior authority are valid and may be executed before that time, but not while the case is being renewed. With regard to other conditions and formali- ties, they are substantially the same whether the appeal be of the one or the other kind. 3 106. When either of the parties in a trial is dissatisfied with the judgment he may appeal to the competent higher court for reversal. But the judge himself who rendered the final sentence, can no longer change or re- tract it, except on a plea of nullity (see n. 113). Leaving this aside, the condemned party may claim that the judgment, although formally valid in law, is yet materially unjust or unfair ; that the law itself has been wrongly applied in the case ; that the judgment is not sufficiently 1 For these reasons we choose to follow Pierantonelli ', tit. 5, n. 33, and to distinguish between recourse and extrajudicial appeal. Recursus as a technical term in Canon law seems of recent origin. It is of the same kind as in the language of older canonists the sitpplicatio. a complaint or a grievance with the prayer for redress. See n. 112. * Santi, h. t., n. 3. We suppose, though, that such an effect would follow only upon an inhibition issued, when allowed, by the superior jurisdiction. Canon law and commentators deal extensively with inhibi- tions, by which term is meant an order issued by the higher jurisdiction upon appeal to stay proceedings of the lower one against the appellant. * For this reason and to avoid repetition we omit the author's chapter on extrajudicial appeals. What is here said on judicial appeals applies equally, mutatis mutandis, to extrajudicial ones. 1 78 The Practice. supported by the evidence ; that the sentence is too severe and undeserved, etc. Against such grievances he may seek redress by an appeal to a higher instance only, but never, as is evident, by recourse to a court of the same or perhaps even lower jurisdiction. An appeal is granted only twice as a rule, that is, from the episcopal to the metropolitan, and from this to the papal court, but in no case can there be three appeals. 1 The appeal being a benefit of the law is consequently subject to the restrictions imposed by the law upon the right of using it. 2 Only the highest jurisdiction, the Pope, can declare an appeal inadmissible either in certain causes, or also in a particular case. 3 But where an appeal is allowed, the aggrieved party may renounce this benefit of the lav; either expressly by a written or a sworn oral declaration, or tacitly by default. But the cleric con- victed in case of contumacy cannot avail himself of it in punishment for his contempt of the court. 4 The appeal 1 cc. 39, 65, X., n. 28 ; i Clem., n. n. See, however, p. 40, note 2. 2 These restrictions are tersely expressed in the following verse, which Reiffenstuel, h. t., n. 269 sqq , fully explains : Appellare vetant scelus, excellentia, pactum, Arbitrium, fatale, aut si dilalio nulla, Clausula quae removet, res quae notoria constat, Corrige, contemptus, possessio, jus quoque clarum, Post executio, minima, et res longius acta. 3 Cfr. the Roman answer, 13 July 1886, in Appendix, p. 241. Canonists {Reiffenstuel h. t., n. 279 sqq.; Schmalzgr., h. t. , n. 29 sqq.) dispute much on the force of that famous clause : ornni appellatione remota, whether it occurs in a papal rescript (c. 53, X., h. t.) or in a general statute. A'ota, n. 816, maintains that it does not affect those cases where the right to appeal is expressly stated in law, and that in regard to others it merely does away with the suspensive force of the appeal. Santi, h. t., n. 13, 14, seems to think that it forbids an appeal altogether, whether suspensive or only devolutive, except in the cases mentioned in the law, and that it only leaves the choice of some extraordinary means of re- dress (see infra, 112 ff.). 4 See Acta S. S., iv. 382, nota. Appeal and Recourse. 1 79 is allowed only against a wrong caused by a judicial or extrajudicial decision or order of the superior, but not a wrong done by the law itself. For, this would be the same as to impeach the law which was rightly applied against him, as in itself unjust. The appellant may at most maintain that the law applied in his case is no longer in force, that for some reason or other the present case does not come under this law, or that it falls under another, etc. Although the grievance, the wrong done by the judgment, is somewhat slight, an appeal may be taken against it. 1 Since the Council of Trent an appeal can be taken only from final judgments, or such inter- locutory judgments as have the force of final ones, and from such grievances which cannot be remedied by the final sentence, e.g. imprisonment, etc.* An appeal is al- ways presumed admissible until the contrary is proved No appeal can be taken against a judgment that has ob- tained the force of law, i.e. become res judicata. It is easily understood that where an appeal is legally excluded, e.g. by the lapse of \\\e fat alia or because there is no higher instance, judgments obtain immediately the force of law as regards appeals. 107. The effect of an appeal is twofold, as a rule, suspensive and devolutive. A lawful appeal suspends 1 Alexander III., c. II. X., II. 28. This, however, supposes that the wrong though slight be yet real, not a mere trifle or notion, but worht the while of such legal proceeding as an appeal is. Otherwise the appeal would be what the law calls a frivolous one, unreasonable, not taken on sufficient grounds nor for good cause (justa, legitima). Such sham ap- peals when taken for the purpose of evading the execution of the sen- tence, are called frustratoriae ; when the purpose is simply to vex and incommodate the appellee they are said to proceed ex talumnia. It would be a frivolous undertaking to appeal against the law itself, or against a sentence that is evidently just and fair, or in notorio No appellate court is ever justified in accepting frivolous appeals, but ought to strongly repress them. * C. Trid., S. XXiv. c. 20, de Ref., Bened. XIV. Ad militantis, 43. 180 The Practice. the legal force of an otherwise valid judgment or order, prevents the execution thereof, and hinders the judge from taking any further action in that matter. The de- volution by appeal consists in this, that henceforth the superior jurisdiction, the appellate judge, takes cognizance of the case in question and brings it into his forum, first to pass upon the admissibility and legality of the appeal, and if admitted to decide eventually the issue itself, to affirm, modify or annul the judgment of the lower court. The appeal when admissible has always a devolutive, but not always suspensive effect. In general it may be said that appeals against sentences which impose a purely vindictive punishment have suspensive effect, while ap- peals in matters of mere correction and administration have only a devolutive effect. This important matter is minutely regulated in the bull Ad militantis of Benedict XIV., 1 which is binding and in force to this day (Instr., art. 37). According to that constitution an appeal will have no suspensive effect in the following matters and affairs : 1st. The holy sacrifice of the mass, the sacraments, preaching and Christian doctrine, the care of souls, divine worship and public devotions." 2d. Refusal, recall, suspension, restriction, and limita- tion of the faculty to hear confessions, especially those of regulars and nuns. 3 3d. Suspension and privation on account of incorrigi- bility, and the consequent appointments of substitutes and vicars in spiritualibus ; * censures against concubin- age and violation of the privilege of the clergy ;" censures 1 See Appendix. This famous constitution is truly a codification of all the former laws and decisions in matters of appeal. See 4. * 6, 7. 8, 18. 19, 31. 3 15, 20, 21. 4 % 12. We call special attention here to C. PI. B. III., n. 286. 1 25, 26. Appeal and Recourse. 1 8 1 latafctferendae sentcntiae generally, if not appealed from on account of nullity ;' sequestration and subtraction of venues in case of those who violate the law of resi- ence.* 4th. In general the correctio morum of the clergy, secular and regular, especially when made during the canonical visitation ; * appointment of curates and assistants, or of vicars and substitutes ; 4 division of parishes, erection of new ones, regulation of boundaries between them ; ad- ministration, translation, and union of benefices; restora- tion of church buildings, and all financial affairs.* An important consequence of the suspensive effect of an appeal is that all further proceedings by the lower jurisdiction in the matter appealed against become so many attentats in law* when instituted either within the te-n days allowed for the appeal, or after the notice given of the appeal, or after an inhibition decreed by the ap- pellate superior. A peculiar effect of a judicial appeal is that appellant may recuse as suspect the judge, from whom he appealed, if pending the appeal he should be summoned for trial in the same court to answer upon another charge/ But if he obey the summons and is willing to be tried before the same judge, the proceeding is valid, nor can he afterwards appeal on a plea de judice suspecto. Moreover, proceedings on the principal issue must be stopped upon appeal from an interlocutory judg- ment given on such an incidental question, which if not 1 P 23, 36. * 14. s 1.9. 20, 21, 24. 25, 26. 4 9, 10. IT. 12. 17. ' 13, 16. 17. 22, 28, 29, 30, 32, 34, 35. * c. 7, in 6. h. t. Such acts are called attentats (attentata) to indi- cate that they are mere attempts devoid of any legal force or effect, and that, moreover, they are unlawful attacks upon the safety and immunity of the appellant granted by the law. which demands that pending an ap- peal nihil innovetur. Cfr. Keifffnstuel, h. t.. n. 249 sqq. 1 cc. 6. 24, X., h. t., except in case of a manifest crime. 1 82 The Practice. first decided and settled may prejudice the main issue and materially affect the final judgment. 1 108. The proceedings in 'case of appeal are very simple. The appeal is entered * with the judge-appellee. If entered at the same sitting of the court when judgment is given, the appeal may be entered by word of mouth or in writ- ing, but at any other time it must be in writing. In the first case it is enough to say, " I appeal," or any other words that will clearly and unequivocally express the in- tention of recourse to the higher court. 3 Notice of the appeal so taken must at once be entered on the minutes. But if notice of the appeal be given in writing, appellant must clearly designate himself as such, and in particular give the names of the judges a quo and ad quern, and the judgment, order or decision against which he appeals. Appeals from interlocutory and extrajudicial judgments must be made in writing and moreover state the grounds of the complaint or grievance ; for in this case the judge- appellee himself may at once modify or set aside his former decision. 4 The appeal must be entered within ten days from the moment when judgment was officially intimated to the defendant. 5 This peremptory term has ever been the 1 Rota, n. 8, 14; Santi, h. t. n. 35. 2 To enter an appeal means to give notice to the judge (or to the bishop in extrajudicial appeals) that the matter at issue on which judgment or some ordinance had been given by him, is to be removed to a higher jurisdiction for reversal. Hence, it is always entered with the judge- appellee. Notice of such an appeal already entered must then be giver, to the higher court by the lower one in the so-called apostoli. Only after the higher court has become satisfied that the appeal is lawfully taken in matter as well as in form, may appellant prosecute the appeal, that is, in- stitute, as plaintiff now and no longer defendant, judicial proceedings before the appellate court. 3 cc. 34, 52, X., h. t. 4 c. 59. X., II. 28. 8 Instr,, art. 38. This is the first term in appellate proceedings. The next is a term of thirty days to demand the dimissory letters. The third Appeal arid Recourse. 1 83 same since Justinian till the present day and is the gen- eral rule of Canon la\v.' Attempts have always been made to take appeals after that legal term had expired, but numberless decisions prove that the S. Congregations have uniformly refused to entertain them. The law al- lows exceptions only where it was impossible for de- fendant to enter the appeal within the term fixed, whether the obstacles were of a physical or a moral nature, e.g. error, 2 fear,* etc.* If the inferior judge do not accept the appeal or seek to prevent it by threats or other means, the appellant may lodge the appeal with the higher court upon affi- davit by witnesses that he tried, though without success, to enter the appeal in the lower instance ; or if appellant start within ten days on a journey to the appellate judge, it will be equivalent to an appeal.* The judge with whom the appeal is entered must in- quire only as to certain formalities, whether it be admis- sible in law, whether it was lodged within the ten days, and in writing and with the required data, viz. the names of appellant, appellee, appellate judge, and the judgment appealed from. But he has no authority to examine and decide the matter itself, or whether his judgment be actu- ally based on some error of fact or law, whether appellant may obtain a reversal or not." In fact he must refrain from exercising any further jurisdiction in the case until is the time appointed when appellant must open the case (intraducere appellationent) in the appellate court. The last term is the time when the trial must be ended, that is, one year as a rule, or two at most. These terms were fixed by the law in order to prevent interminable trials, and to secure justice against fraudulent delays. For this reason they are per- emptory. The last moment of any one of these terms, if wilfully neglected, puts an end to the appeal once for all, it is absolutely fatal. Hence, they are called in law fatalia appellationum. Reiffenstuel, h. t., n. 152 sqq. 1 Rota, n. 805. * c. 69. X., h. t. * c. 73. X., h. t. 4 Kola, n. 806. * c. 52, X., h. t. 21 Mch. 1854. AJP., XX. 158. 184 The Practice. settled. If, however, the appeal is merely interlocutory,' the judge may proceed in the matter after having modi- fied or reversed the order to the satisfaction of the appellant. 8 109*. Canon law formerly fixed a term of thirty days from the time appellant was notified of the judgment or decision, within which he had to ask for the apostles. 3 Until a certain day appointed by the lower court he had to present these apostles to the appellate judge. One year was given him to prosecute the appeal and have the cause decided. 4 But the new Instruction, as Rota, n. 851, truly says, differs not a little from the former custom. According to art. 39, appellant need not demand the apostles, but after the appeal is entered the court will at once send all the original (antograpJid) acts, 5 i.e. the proces-verbal, the auditor's summary, the written defence 1 And also if extrajudicial. *c. 60, X., II. 28. 3 Apostoli (libelli dimissorii) are letters to the appellate court by which the judge with whom an appeal is lodged certifies that the appeal was made in proper time and legal form. They may be simply dimissory let- ters by which the judge dismisses the whole cause to the appellate court, because he considers the appeal well taken. Or they may be reverential, stating that he sends the case up on account of his deference and respect towards the higher authority, but not because of the admissibility or any solid ground of the appeal. Finally, these letters may be refutatory, by which he simply attests the appeal entered, but at the same time protests, for reasons assigned, against its being entertained by the higher court. Cfr. Reiffenstuet, h. t., n. 124 sqq. Article 39 of the Instructio does not prevent the bishop in case of appeal from sending letters of the one or other kind, or any other comments and explanations, along with the acts. Cfr. C. Trid., S. XXI v. c. 20, de Ref. 4 These and other rules of the general law are fully explained by Droste, but we omit this part as rendered impracticable by the Instr. 6 Formerly, as Droste observes, a copy or transcript of the original acts was given under seal to the appellant, who would then himself send it to the higher court. By a law of Clement VIII., a. 1600, the originals were to be sent only if a plea was made during the appellate trial that the transcript had be^n forged and could not be relied upon. Appea I and Recourse. \ 8 5 (also, we think, the prosecutor's final charge), and the sen- tence to the appellate judge} who must without delaying too long take proper cognizance of the appeal (art. 40). He must then inquire whether the appeal is admissible in law and made in proper time and form. If satisfied of its full legality he will notify the appellant through the lower court 1 that within twenty days 7 from this notifica- tion he must appoint an attorney for his defence, to be approved, however, by the appellate court. This term is peremptory (art. 41); hence, if allowed by appellant to lapse without having complied with the order, he will be considered as having renounced the appeal. A decree of the appellate court to this effect will moreover lay the costs on him. The appeal then goes by default, and the judgment of the first court becomes res judicata. But if he prosecute the appeal in proper time, the appellate court will fix the time for the opening of the case. no. The judicial trial or procedure in the appellate court is the same as that in the first court (Instr., art. 42). We may remark, moreover, that the whole cause or issue, the same as tried in the first instance, goes up and may be tried again in regard to law as well as fact. Appellant must, therefore, present to the court in writing the reasons and grounds of his appeal together with the evidence to sup- port them.' They must also be communicated to the appellee, who may on his part look for and produce counter-evidence. If the facts as found in the first trial are not denied by the appellant, a review or new trial is not necessary, and judgment may be based upon the former acts. 4 But if appellant demands a new finding 1 Rota, n. 851. * Cum Magnopere, art. 39, gives thirty days. * c. 3. in 6, h. t. ; c. 70, X.. h. t. 4 That is, matters of law merely will be examined, as in Common law, upon a writ of error. 1 86 The Practice. of facts and further testimony, it should ordinarily be granted. The appellate judge may in that case appoint an auditor to institute new proceedings. If the judg- ment of the first instance be declared void on account of essential defects in the procedure, the case must be sent back for a new trial. Otherwise the former judgment is either affirmed or reversed. III. With regard to the absolution from censure in case of appeal made against them, clear and definite rules were laid down by Popes Clement VIII. and Benedict XIII. 1 If the appellate judge find the censures clearly unjust, he will himself absolve the appellant. If the censure is just and deserved, appellant must be sent back in order that, having given signs of amendment, he may humbly ask absolution from the bishop who inflicted the censure. When, however, the justice of the censure is doubtful, then it is more appropriate (honestius) that the appellate judge request the bishop to grant absolution within a definite, short time, though he may also himself absolve the appellant. Should he order the absolution with the clause cum re incident ia (the effect of which is that the person thus absolved will in case of disobedience to the court immediately reincur the censure), the appellant must address himself to his bishop with that order and pray for the absolution. If he is not absolved within three days, as stated in the writ or commission, any ap- proved confessor may absolve him juxla commission** formam. Each case brought before the appellate court should be finally decided in one year if possible; at least they should never drag on over two years. 1 1 In Collect. Lac., vol. I. pp. 427 ff., 529 ff. 4 23 Jan. 1880. Acta S.S., XH. 635. On appellate procedure before the S. C. Epp. at Rome, see the decrees in Appendix, p. 235 ff. Extraordinary Means of Redress. 187 CHAPTER IV. EXTRAORDINARY MEANS OF REDRESS. 112. The object of criminal procedure is to serve truth and justice. In the search for truth, however, man often errs, especially where prejudice and passion reign. To restrain these as much as possible and to do all that man can to come at least near the truth, there are legal rules and norms and forms of judicial procedure, the prosecu- tion and the defence, the examination of witnesses, the legitimation of the process, offensive and defensive plead- ing, and, lastly, the appeal. Neglect of material forms will entail nullity of proceedings. Yet after the canonical trial has wound its way through all these stages and even passed the highest instance, still some one error may be left undiscovered ; judgment may yet be false and the punish- ment imposed unjust. For this reason it has well been said that no criminal sentence ever becomes irrevocably law (res judicata). For no punishment must be inflicted for crime erroneously presumed, or which is not fully deserved. Hence, when we speak of the absolute validity of a criminal sentence, we only mean that it can no longer be set aside by the ordinary means of the law and that consequently it must be executed. What, then, are those other means by which a judgment that has full and abso- lute force in law, can be reversed or its execution stayed ? The first of these extraordinary legal remedies is the recourse* a written petition to the highest authority, the Pope, praying him to order in virtue of his supreme power a rehearing of the cause already decided but now 1 See supra, n. 105. 1 88 The Practice. unappealable. The petition was formerly called suppli- catio, and the retrial or review of the case retractatio ; both are often used indiscriminately. Modern jurists prefer the term rcvisio? A revision of a finally adjudi- cated issue can be granted by the Pope alone, who will do so only for the gravest reasons which are first to be examined in a plenary session of the S. Congregation. 9 A revision of decisions given by the Pope or a general Council will not be granted. Neither the recourse nor the consequent review have any suspensive effect. The first judgment may be exe- cuted ; it may be suspended if within ten days notice of the recourse is given to the judge who tried the case, Revision will be granted only once in the same cause. 3 113. From the recourse we must distinguish the qnercla nullitatis* the complaint of nullity, by which complainant avers that the decision of the bishop, judi- cial or extrajudicial, is simply null and void. 5 This com- plaint can be lodged with the first court, who may, after examining the objections and finding them true, make a declaration to that effect and put things back in statu quo. Or it may at once be taken to the higher court," 1 Reiffenstuel, 1. II. tit. 28, n. 18 sqq. 2 Cfr. the decree S. C. Epp. 1835, art. 14, in Appendiv. 3 Although our modern recursus in Canon law is really the same as Justinian's supplicatio, yet it does not necessarily lead to a retractatio in the strict sense. Rome may take up the matter there, as in case of an appeal, to give it a regular trial or only to review the questions of law implied; she may appoint a referee, residing in Rome or at the place of petitioner, to report on the case; she may provide in any other way that she thinks best under the circumstances. Like our recourse, the suppli- catio was an absolutely informal and extrajudicial proceeding. 4 Reiffenstuel, 1. n. tit. 28, n. 23 sqq.; tit. 27, n. 135 sqq. ' Null and void is every sententia contra leges canonesve prolata (Gloss). Judgment may be void on account of incompetency, or because of ir- regular proceedings, or through a substantial error. See Rota, n. 854. ' This is the prevailing practice. Extraordinary Means of Redress. 189 whose decision will be always conclusive. No special legal forms need be observed in making the complaint, nor is it limited to any certain time. 1 It also has a sus- pensive effect. 1 If the complaint of nullity is sustained, the case will be tried again in the first court. 3 In a wide sense we may class with the complaint of nullity a proceeding exclusively observed in civil mat- ters and known in Canon and Civil law as restitutio in integrum* that is, reinstatement or complete return of things to their former state. A complaint of nullity in disciplinary and criminal cases may have a similar ef- fect. For instance, where judgment in contumacy was rendered against a person being on a distant journey and therefore legally excused because unable to appear ; also when of two witnesses who were considered com- petent and by whose testimony defendant was convicted, one or both are afterwards proved to have sworn falsely; or when the document on whose evidence judgment was based, turns out to be a forgery ; again, when the judge has warped and misused the law ; when the defender has betrayed his client; when the person convicted produces new and full evidence of his innocence, in such cases judgment must be reversed as null and the condemned 1 The judgment being assumed to be null can never obtain force of law; for, says the Gloss, "nothing has no qualities." Cfr. Acta S. S., XVII. 156, 582. * Not exactly. Canonists in 1. H. (Reijfenstuel, tit. 28, n. 26; Schmalzgr., tit. 27, n. 109; Rota, n. 854) commonly teach that the plea of nullity has no suspensive force and consequently will not stay the execution of the judgment, except in case of such a criminal sentence that once executed could not be remedied even if afterwards proved to have been void. * Not necessarily. An examination of the grounds on which the com- plaint of nullity is raised may show that there is no cause at all or no sufficient one to institute a trial, and that things should rather be left as they were before the first proceeding; which might in a sense be called a reinstatement. 4 See Commentators in 1. I. tit. 41. 190 The Practice. party reinstated. 1 Cases of the kind are so various that it is impossible fully to enumerate and classify them. Finally, we may observe that complaints may be made against the judge for denying some right, delaying the proceedings and similar causes ; against the officers of the court for chicanery, etc. Such complaints will ordi- narily be addressed to the immediate superiors of those whom they concern. 114. In connection with our subject we must neces- sarily mention the abolition? by which we understand here the withdrawal or dismissal of a criminal cause on the part of the proper authority. This may be done in three ways : before the formal charge, during the trial, and after the sentence. The Ordinary has always the right to make informal inquiries at any time either in person or through others, cleric or laic. Not to speak of his rights and duties as pastor of the flock, such private inquiries every person, the bishop too, can make ; for every one may inform himself of what another is doing, though that other one happen to be an ecclesiastic. Yet we do not assert that such inquiries can never be wrong or sinful. Thus when 1 Acta S. S., VIII. 614. * Abolition is a term of Civil, not of Canon law. It comes nearest to what in Common law is called "to quash the proceeding." Sometimes its effect is the same as that of an "arrest of judgment," or of a "nolle prosequi;" and when referring to the execution of a sentence it acts like a " pardon." As a kind of abolition we may also take what is called in Civil and Canon law "a transaction," or " a compromise" in Common law. Transaction in the strict sense is "an agreement made for con- sideration (conventio non gratuita) by which parties settle a dispute or a judicial suit between them." In the latter case it had to be made before judgment became conclusive or absolutely final. Commentators in 1. I. tit. 36, de transact., inquire whether Canon law allow such a compromise in a criminal trial (cfr. compounding a criminal offence), and answer by denying it, except the crime be punishable by what Canon law considers equivalent to a capital sentence; e.g. excommunication, degradation, perpetual infamy, etc. Extraordinary Means of Redress. 191 official persons make such inquiries (especially when they have come a great distance for the purpose) it very easily causes excitement and suspicion among the people by which the reputation of the priest may be injured. Against such an inquiry, imprudent and indiscreet and only giving rise to scandal, every priest would rightly complain to higher authority. Private and extrajudicial inquiries the bishop has a right, whatever his reasons be, to stop at any stage and without bringing a charge even where that could be done. This as far as the priest is concerned. But whether as bishop and faster animarum he act wisely in thus arrest- ing further inquiry and possibly a criminal charge, is an- other question. It might even be a case where the rest of the clergy, the congregation, or a private person has a right to demand that disciplinary or criminal proceedings be instituted, and where, if refused, they are bound to lodge a complaint against the bishop with the higher ecclesiastical authority. Criminal proceedings once begun must be carried to the end, to acquit or to condemn. The bishop having opened those proceedings certainly not because defendant ap- peared innocent, but because there were some grounds to suspect him guilty, is in justice bound to carry the mat- ter through ; for, the accused if innocent, as he may be, has now a right to a public judgment in his favor. Be- sides, crimes and criminal procedure are in the Church as in the State objects of the public law. Hence the bishop has no right to stop criminal proceedings begun for cause, even if the accused did consent, except where higher in- terests demand it. By the accusation the honor and good name of the ecclesiastic, which is to him as neces- sary for efficient labor as his life, is attacked. But as life is not at his own disposal, neither is his honor nor his reputation. Higher interests may be involved. If, e.g., 192 The Practice. the State or people threaten to interfere ; or if the bishop himself would be drawn into difficulties and possibly lose the high respect due to his office and authority, such consequences would be far more injurious to the faithful of the diocese than if the reputation of the pastor of some small district were to suffer by leaving his cause untried. In such cases judicial proceedings may be quashed, especially as any injury may be to some extent or even fully repaired by transferring the accused to another place. An unlimited right to arrest criminal proceedings at any stage, even contrary to defendant's wishes, belongs exclusively to the Pope as supreme legislator and judge. This right he has often used for the good of the Church. With regard to the punishment imposed by judicial sentence, the bishop has no power to remit it, for this would be equivalent to a reversal ; * but no court can re- verse its own final sentence ; nor can the bishop do it, even when the matter is not yet definitely adjudicated. 11 Still the bishop has the power to commute one discipli- nary punishment with another, 3 for its purpose is simply 1 Not at all. The sentence may remain on record without being re- versed. But for cause the punishment may be remitted. In giving sentence the bishop would act as judge, in remitting the punishment as legislator. It would simply be a pardon. The question, therefore, is this- can the bishop pardon a cleric legally sentenced ? We distinguish: if the offence was committed against the bishop's own laws or diocesan statutes, he certainly can ; if the offence was against a general law of the Church, he cannot do it. Pardon in this case is reserved to the Pope. Bizzari, p. 181, cites the following decree, 8 Jan. 1858: " SSmus decla- ravit dispensationem a poenis inflictis per sententias latas a tribunalibus criminalibus curiarum episcopalium reservatam esse Summo Pontifici; et idcirco episcopos ab hujusmodi dispensationibus concedendis absti- nere debere." There is no conflict between this decree and the opinion just expressed. * S. C. Epp., 8 Jan. 1858. AJP., xm. 53. 3 26 June 1854. AJP.. XX. 159. Execution and Costs. 193 to correct. When delinquent is thoroughly reformed, the object of the punishment is attained. Such punish- ment is sometimes imposed for an indefinite period ; its remission is therefore shown by the very sentence to be conditional upon the amendment and good conduct of the delinquent. The Pope alone, as sovereign and head of the Church, has the full right to pardon or to stay the execution of any sentence. 1 CHAPTER V. EXECUTION AND COSTS. 115. A criminal sentence should not be executed* until it has obtained full force in law. The execution will be different according to the nature of the punishment im- posed. Censures begin to operate or exert their force at the same time as the sentence by which they are imposed ; censures latae sententiae and those threatened by the judge are ipso facto incurred at the moment of the culpable act or omission. But in order that they may obtain their effect also in the external forum, it requires an official declaration that they have been incurred. By this the punishment is also executed in for o extcrno. Some vin- dictive punishments are executed in the same way, i.e. '2SJunei854. AJP..XX. 159. The A J P., xi. 604 ff., give an interest- ing case of an abolition by Benedict XIII., a. 1724, in the criminal trial of Bishop Andrea de Robertis. 1 On the execution of judgments see Commentators in 1. II. tit. 27; JSouix, ii. 237. On canonical punishments see Commentators in 1. V. tit. 37 sqq. Some good remarks on the subject see ap. A'ota, n. 751 sqq. 194 The Practice. simultaneously when sentence is pronounced. The sen- tence depriving one of Christian burial is put in execu- tion by simply omitting such burial. Suspension, trans- fer, or removal from an office (privatio beneficit) leaving one eligible for another, deposition involving the loss of the rights of the priesthood as well as the jurisdiction but leaving the benefit of the clergy, are actually effected by the sentence, and non-submission is a new or rather continued offence whereby other punishments, e.g. irreg- ularity, are sometimes incurred. All defamatory punish- ments bring irregularity with them. Degradation, i.e. the real degradation in solemn form, can be executed by the bishop only, who must associate with himself other bishops and abbots. 1 116. It is a generally accepted principle that costs fall upon him who has caused them, that is to say, in case of conviction on the person condemned," and in acquittal on the diocesan fisc, i.e. the bishop. The costs of the pre- vious inquest fall likewise on the fisc if no trial followed. Who shall pay the costs is generally stated in the sen- tence ; nor are costs due before the sentence has become law (res judicatd)? Till then each party pays his own 1 C. Trid., S. XIII. c. 4, de Ref. We omit Droste's remarks on banish- ment, prison, and corporal chastisement; also what he says of the ali- ments and pension to be given to a priest who has by the sentence been deprived of his benefice and his income. The matter has not yet been settled by a general law in this country. Cfr., however, C. PI. B. III., n. 72, and the answer of the S. C. de Prop. Fide, 4 Febr. 1873 ad i m (ibid. p. 210). By what means and in what manner bishops may be able to effect the execution of their sentences even where the secular arm is not at their disposal, is stated by Bouix, II. 244; Rota, n. 760. On pecuniary punishments and fines cfr. Lucidi, I., c. 2, n. 206 ff. 8 c. 5, X., II. 14; c. 7, X., V. 37. This principle covers the rule that whoever is condemned in contumacy must bear the costs. Reiffenstucl, h. t., n. 200. Commentators generally treat of the costs in 1. II. tit. 27, de sententia. See also Bouix. II. 242; Pierantonelli, tit. V. n. 31; Smith, II. n. 1201. 8 it June 1833; 5 Sept. 1835. AJP., XX. 465, 468. Execution and Costs. 195 costs. 1 The accused pays the witnesses for the defence and his counsel's fees, while the fisc pays witnesses for the prosecution and other current expenses of the procedure proper. The officers of the court must await the issue before receiving fees, If defendant is acquitted he can recover the amount of his salary that was, perhaps, stopped during the trial ; * in general he may recover for any damages.* The accused ecclesiastic has the right of defence if prosecuted, but if too poor to pay himself, his counsel's fees must be paid by the fisc, whether counsel was appointed ex officio or chosen by defendant. The same holds in case of a poor appellant or appellee. 4 Beside these regular costs there are others & which must be borne without recovery by the party that occasioned them. They are those which are caused by chicanery or carelessness ; e.g. when the accused unnecessarily delays or hinders the proceedings ; when at his request unnecessary and irrelevant witnesses are called ; or when he employs more counsel than he needs, etc. For copies of the acts defendant will have to pay himself, because he as well as his counsel may inspect the originals in the chancery. 6 The costs of an appeal lost are borne by the appellant ; if both parties appealed, costs ought to be divided in pro- portion. Poor ecclesiastics appeal free of costs. 7 Where a criminal conviction leads to a removal in punishment, the ecclesiastic so removed cannot be condemned for costs." 1 With the right to recover if acquitted or successful. * 13 June 1826. AJP., xiii. 53. * 8 Mch. 1748. AJP., xi. 1124. * 15 June 1854. AJP., XX. 160. * Canonists usually distinguish between necessary (legitimae, judidalei) and optional {voluntaries, delicatae) expenses. The former comprise expenses entailed in the procedure as such. e.g. theauditor's. prosecutor's, clerk's, messenger's fees, indemnity of witnesses for travel, board, and loss of wages, fees for certified copies of documents, etc. * i Sept. 1778. AJP., xx. 76. ' Aug. 1721. AJP.. xi. 512. * April 1718. AJP., xi. 492, 156. We suspect that this decree refert 1 96 The Practice. Sometimes those who accuse or denounce others, to have them criminally prosecuted, may be forced to give security first, and in case the accused be acquitted, to pay costs. 1 The fees, fines, and other costs are not the same in all courts, especially in the lower ones. The old customary rates are still used. 2 If the bishop wishes to establish a new rate, which may be quite necessary on account of the general decrease of value in money, he ought as a rule to do it in synod, as Benedict XIII. decreed in 1725. 3 The rate thus established must then be approved in the pro- vincial council, and lastly by Rome. For good reasons the bishop may submit the new rate to Rome at once. 4 In the Roman Congregations the judges draw no fees. The cost of appeal there consists mainly in expenses for postage, printing, and commissions, and in attorney's fees. 6 117*. We do not know whether a regular rate of the necessary judicial fees and costs (also for the defensor matrimonii) has been fixed in any diocese or province of our States since the last plenary Council. Although this canonical "tariff-question" does not demand immediate legislation, it may deserve attention by and by. Such a court tariff, we suppose, would come under decree 294 C. PI. B. III. While the L Or dinar io is absolutely silent on the ques- tion of costs, the Cum Magnopcre, art. 44, reminds ap- pellate courts not too easily to condemn the lower curia to some particular case and does not warrant the general statement by the author. 1 March 1722. AJP., xi. 592. 13 Sept. 1817. AJP., xx. 453. * 15 Jan. 1740. AJP., XI. 1085. 3 Pius VII., by an order of May ist, 1823, instituted a committee of three cardinals to revise the former tariff of judicial fees and taxes in accordance with the conditions of that time. AJP., xn. 999, 831. 4 AJP., xi. 412. B AJP., i. 2423. Execution and Costs. 197 in costs, as no bishop is supposed to begin judicial pro- ceedings except the preliminary inquest have furnished good reasons for doing so. Only if the bishop should put a cleric on a criminal trial exvera et propria calumnia, i.e. rashly or upon a mere suspicion, could he be condemned for costs. 1 1 See Commentators in 1. v. tit. 2, de calumniatoribus. Calumniam et audaciam temere litigantium condemnando in expensis, etc. c. 4, X , V. 37. Such rash procedure is called calumnia because it is a false accusation rashly and therefore maliciously made. Some interesting questions concerning costs in case of male judicantis or tenure litigantis are found in Schmalzgruber, h. t., n. no sqq. APPENDIX. INSTRUCTIO 1880. Istruzione Alle Curie Ecclesiastiche suite forme di procedimento econo- mico nelle cause disciplinary e criminali dei Chierici. . Questa S. Congregazione dei VV. e RR. maturamente considerando la presente condizione della Chiesa, quasi da per tutto impedita di spiegare 1'esterna sua azione sulle materie e per- sone ecclesiastiche, e riflet- tendo anche al difetto dei mezzi atti all'organizza- mento regolare delle Curie, e venuta nella determina- zione di autorizzare espres- samente gli Ordinarii a far uso delle forme piu econo- miche nell* esercizio della loro disciplinare giurisdizi- one sui Chierici. Et affinche resti salvaogni ragione della giustizia, e si mantenga la canonica regolarita ed uni- formita dei procedimenti,re- Instruction for Ecclesiastical Tribunals on the forms of Summary Pro- cedure in Disciplinary and Criminal Causes of Clerics. This Sacred Congregation of Bishops and Regulars, after maturely considering the present condition of the Church, which is impeded on every hand from bring- ing her external action to bear on persons and things ecclesiastical, and taking also into account the lack of proper facilities to organize regular ecclesiastical courts, has come to the conclusion expressly to authorize bish- ops to proceed in a some- what summary manner in the exercise of their discipli- nary jurisdiction on clerics subject to their jurisdiction. But in order that substantial justice may be secured and canonical regularity and APPENDIX. INSTRUCTIO 1880. Instructio fro Ecdesiasticis Curtis quoad modtimprocedendioeconomice in causis disciplinaribus et criminalibus cleticorum. Sacra haec EE. et RR. Congregatio, mature prae- senti Ecclesiae conditione perpensa, quae pene ubique impeditur, quominus exter- nam explicet suam actionem super materias et personas ecclesiasticas, et considerate quoque defecha mediorum aptorum pro regular! curia- rum ordinatione constituit facultatem Ordinariis loco- rum expresse concedere, ut formas magis oeconomicas adhibere valeant in exer- citiosuae disciplinaris iuris- dictionis super clericis. Ut autem tola iustitiae ratio sarta tectaque maneat, ser- vetuique processuum canon- Instructio S. C. de Prop. Fide. De modo servando in cogno- scendis et definiendis causis criminalibus et disciplinari- bus Clericorum in Foederatis Statibus Americae Septentri- onalis. CUM MAGNOPERE hujus S. Consilii intersit in ecclesiasticis judiciis earn me- thodum servari quae et tempo- rum circumstantiis opportune rcspondeat, et regulari justitiae administrationi nee non Prae- latorum auctoritati tuendae querelisque reorum praecaven- dis par omnino sit, placuit iterum ad exainen revocari ea omnia quae in hac re pro eccle- siis Foederatorum Americae Septentrionalis Statuum in In- structione diei 26 Julii a tint 1878, nee non in responsione ad dubia circa eamdem pos- terius proposita continebantur. Itaque S. C. omnibus mature pcrpensis, SSmo. D. N. Leone 200 Appendix. puta opportune di emanare le seguenti norme a cui le Curie devono attenersi. i. L'ORDINARIO ha 1'obbligo pastorale di curare la disciplina e correzionedei Chierici da se dipendenti, vigilando sulla loro con- dotta, ed usando i rimedi canonici per antivenire, ed eliminare disordini fra i medesimi. n. Questi rimedi altri sono preventivi ed altri repressive e medicinali. I primi sono diretti ad impedire che il male avvenga, a rimuovere gl'incentivi di scandalo, le occasioni volontarie, e le cause prossime a delinquere. I secondi hanno per iscopo richiamare i colpevoli a buon sen no, e riparare le conse- guenze del loro reato. in. Sta alia coscienziosa discrezione dell'Ordinario 1'applicar questi rimedi a tenore delle prescrizioni canoniche secondo la gravitd dei casi e delle circostanze. iv. Tra le misure preser- vative si annoverano princi- uniformity maintained in all trials, it is at the same time deemed opportune to pub- lish the following method of procedure as obligatory on all ecclesiastical courts. i. It belongs to the pas- toral duty of the Ordinary to look after the discipline and correction of his clergy, to watch over their conduct and by canonical means to endeavor to prevent or eliminate abuses among them. ii. Of these means some are preventive, some repressive and corrective. The form- er are intended to prevent the occurrence of evils, to forestall scandal, remove voluntary occasions and all proximate cause of delin- quency. The latter are in- tended to bring back the erring to a setise of duty and to repair the evil effects of their misdeeds. in. It is left to the con- scientious discretion of the Ordinary to apply these remedies conformably with canonical rules according to the gravity of the cases and their circumstances. iv. Among the preserva- tive measures are chiefly Appendix. 201 ica regularitas et uniform- itas, opportunum censuit sequentes emanare normas a curiis servandas. i. Ordinario pastorale onus incumbit disciplinam correctionemque clericorum a se depondentium curandi super eorumdem vitae ra- tionem vigilando, remediis- que utendo canonicis ad praecavendas apud eosdem et eliminandas ordiuis per- turbationes. ii. Ex bis remediis alia praeveniunt, alia reprimunt et medelam afferunt. Priora ad hoc diriguntur, ut im- pediant, quominus malum adveniat, ut scandali stimuli, occasiones voluntariae, cau- saeque ad delinquendum proximae removeantur. Al- tera finem habent revocandi delinquentes, ut sapiant re- parentque admissi criminis consequentias. in. Conscieniiae et pru- dentiae Ordinarii horum remediorum iucumbitappli- catio iuxta canonum prae- scriptiones et casuum ad- iunctorumque gravitatem. iv. Mediis, quae praeser- PP. XIII. approbante, haec quae sequuntur observanda decrevit, praecedenti Instruc- tione ac successiva declaratione abrogata, its excfptis quae in hac continentur. i. Ordinarius pro suo pas- torali munere tenetur dis- ciplinam correptionemque clericorum itadiligenter cu- rare, ut circa eorum mores assidue vigilet, ac remedia a cauonibus statuta sive praecavendis sive tollendis abusibus in clerum ali- quando irrepentibus provide adhibeat. ii. Haec vero remedia alia praeventiva sunt, alia repres- siva. Ilia quidem ad prae- pedienda mala, scandalorum stimulos amovendos, volun- tarias occasiones et causas ad delinquendum proximas vitandas ordinantur. Haec veroeum in finem constituta sunt, ut delinquentes ad bo- nam frugem revocentur, ac culparum consectaria e me- dio tollantur. ill. Conscientiae Ordinarii remittitur cujnsque remedii applicatio canonicis prae- scriptionibus servatis pro casuum ac circumstantiarum gravitate. iv. Praeventiva remedia 2O2 Appendix. palmente il ritiro spirituale, le ammonizioni, e i precetti. v. A tali provvedimenti deve precedere una verifica- zione sommaria del fatto; della quale e d'uopo che 1'Ordinario tenga nota per poter procedere, se occorra, ad tilteriora, ed anche per darne conto all'Autorita superiore in caso di legit- timo ricorso. vi. Le canoniche ammoni- zioni si applicano o in forma paterna e segreta (anclie per lettera o per interposta per- sona), ovvero in forma legale, facendone pero sempre ri- sultare da qualche atto la esecuzione. vii. Riuscendo le ammoni- zioni infruttuose, 1'Ordinario prescrive alia Curia che sia ingiunto al delinquente ana- logo precetto, spiegando in esso quello che il precettato debba fare o non fare, colla comminatoria della corri- spondente pena ecclesias- tica, nella quale incorrera in caso dicontravvenzione. vin. II precetto viene inti- mato al prevenuto dal Can- celliere innanzi il Vicario generale; oppure alia pre- to be reckoned the spiritual retreat, admonitions and in- junctions. v. These measures should be preceded by a summary cognizance of the case; and of this the Ordinary shall re- tain a proper minute, so as to be able to proceed ad ulteriora if needs be, and to furnish proper information to superior authority in case of legitimate recourse. vi. The canonical admoni- tions may be made in a paternal and private manner (even by letter or by an in- termediary person), or in legal form, but always in such a way that proof of their having been made shall remain on record. vii. Finding admonitions fruitless, the Ordinary com- mands the officials of his court to enjoin a similar pre- cept on the delinquent, specifying what he is to do or not to do, and stating the corresponding ecclesiastical penalties which he will incur by disobedience. vin. These injunctions are communicated to the ac- cused by the chancellor in presence of the vicar-gen- Appendix. 203 vant, praecipue accensentur spiritualia exercitia, moni- tiones et praecepta. v. Has provisiones prae- cedere debet summaria facti cognitio, quae ab ordinario notanda est, ut ad ulteriora procedere, quatenus opus sit, et certiorem reddere queat superiorem auctori- tatem in casu legitimi re- cursus. vi. Canonicae moniticnes fiunt sive in forma paterna et secreta (etiam per epis- tolani aut per interpositam personam) sive in forma legali, ita tamen ut de earumdem executione con- stet ex aliquo actu. vii. Quatenus infructuo- sae monitiones evadant, Or- linarius praecipit curiae, ut lelinquenti analogum iniun- fatur praeceptum, in quo leclaretur, quid eidem agen- lum aut omittendum sit, :um respondentis poenae :clesiasticae comminatione, [iiam incurret in casu trans- gression is. vin Praeceptum intima- tur praevento a cancellario coram vicario generali; sive sunt praecipue spiritualia exercitia, monitiones, prae- cepta. v. Antequam vero ea ad- hibeantur, summaria fac- torum recognitio praecedat oportet: cujus notitiam Or- dinarius servari curet ut, si opus sit, ad ulteriora proce- dere possit, et ut auctori- tati ecclesiasticae superioris gradus in casu legitimi re- cursus totius rei rationem reddat. vi. Canonicae monitiones vel secreto fiunt (etiam per epistolam vel per interposi- tam personam) ad modum paternae correction is, vel servata forma legali adlii- bentur, ita tamen ut illarum executio ex aliquo actu pa- teat. vii. Quod si monitiones in irritum cedant, Ordinarius jubet, per curiam delin- quent! analogum praecep- tum intimari ita, ut in hoc explicetur quid ipse vel fa- cere vel vitare debeat, add ita respectivae poenae ecclesia- sticae comminatione quam si praeceptum transgredia- tur, incurret. vin. Praeceptum delin- quent! a curiae cancellario coram vicario generali injun- 2O4 Appendix. senza di due testimoni ec- clesiastici, o laici di provata probita. i. L'atto si firma dalle parti che sono presenti, ed anche dal precettato, se vuole. 2. II Vicario generale pud imporre ai testimoni il giuramento di conservare il segreto, se la natura del ti- tolo, di cui trattasi, pru- dentemente lo richieda. ix. In quanto poi alle misure penalt, avvertano i reverendissimi Ordinari, che con la presente istruzione non s'intendono derogate le solennita dei giudizi volute dai sacri Canoni, Costituzi- oni Apostoliche ed altre ecclesiastiche disposizioni, ove queste possano libera- mente ed efficacemente ap- plicarsi; ma le forme econo- miche mirano a provvedere per quei casi e per quelle Curie, in cui non si possa o non si creda espediente at- tuare i solenni procedimenti. Rimane pure nel suo pieno vigore il rimedio stragiudi- ziale ex informata conscientia pei read occulti, decretato dal s. Concilio di Trento nel cap. i. sess. 14. de Reform. eral; or in presence of two witnesses, ecclesiastics or laymen of approved integ- rity. i. The act will be signed by those present and by the accused likewise, if he will. 2. The vicar-general can bind the witnesses under oath to observe secrecy if the nature of the case be such as to require it in prudence. ix. As to the penal meas- ures the Rt. Rev. Ordinaries will observe that it is not in- tended by this Instruction to derogate from the solemnity of judicial proceedings as required by the sacred canons, apostolical constitu- tions, and other ecclesiasti- cal regulations, whenever that can be freely and fully carried out; this summary form is only granted to pro- vide for those cases and those courts in which it would be either impossible or inexpedient to have re- course to the more solemn proceedings. In its full vigor then will remain the extrajudicial remedy ex in- formata conscientia for occult crimes, as decreed by the Appendix. 205 coram duobus testibus eccle- siasticis aut laicis probatae integritatis. i. Actus subsignatur a partibus praesentibus et a praevento quoque, si ve- lit. 2. Vicarius generalis adiicere valet iuramentum servandi secretum, quatenus id prudenter expetat tituli indoles, de quo agitur. ix. Quoad poenalia media, animadvertant reverendis simi Ordinarii, praesenti in- structione baud derogatum esse iudiciorum solemnitati- bus per sacros canones, per apostolicas constitutiones et alias ecclesiasticas disposi- tiones imperatis, quatenus eaedem libere efficaciterque applicari queant; sedoecono- micae formae consulere in- tendunt illis casibus curiis- que, in quibus solemnes pro* cessus, aut adhiberi neque- ant, aut non expedire vide- antur. Plenam quoque vim servat suam extraiudiciale remedium exinformata con- scientia pro criminibus oc- cultis, quod decrevit s. Tridentina Synodus in Sess. 14 cap. i de Reform., adhi- bendum cum illis regulis et gitur, aut etiam coram duo- bus testibus ecclesiasticis vel laicis spectatae probi- tatis. i. Actus injunctionis praecepti signatur a parti- bus praesentibus, et a delin- quente etiam, si velit. 2. Vicarius generalis jus- jurandum testibus imponere potest de secreto servando, si prudenter a natura rei, de qua agitur, id requiratur. ix. Quod vero pertinet ad remedia repressiva seu poe- nas, animadvertant Ordinari in suo pleno vigore manere remedium extrajudiciale ex informata conscientia pro occultis reatibus a S. Con- cilio Tridentino constitutum Sess. xiv., cap i de Reform. 2O6 Appendix. da addottarsi con quelle re- gole e riserve, che ha cos- tantemente osservate nella interpretazione di detto capo la s. Congregazionedel Con- cilio in piu risoluzioni, e in specie nella Bosnien. e Sir- mien t 20 decembre 1873. x. Dovendosi agire crimi- nalmente o per contravven- zione a precetto, o per reati comuni, o per trasgressioni alle leggi della Chiesa, puo essere compilato il processo nelle forme sommariee senza strepho di giudizio, osser- vate sempre le regole sostan- ziali di giustizia. XL II processo s'intra- prende ex officio, o in seguito d'istanza, di querela, e di notizia in altro modo per- venuta in Curia, e si prose- gue fino al termine nello scopo di raggiungere con ogni cautela e riservatezza il discoprimento della verita, edi avercognizione tantodel delitto, che della reitd od innocenza dell'accusato. xn. La compilazione del processo puo commettersi ad un probo ed idoneo Ec- Council of Trent, Sess. xiv. De Reform, c. i., to be used subject to the rules and re- strictions according to which that chapter was always in- terpreted by the S. Congre- gation of the Council in re- peated decisions and es- pecially that of Bosnien. et Sir mien.y Dec. 20, 1873. x. When criminal pro- ceedings are to be taken whether for violation of an injunction, for ordinary de- linquencies, or a violation of the laws of the Church, the summary form without the judicial solemnities can be used, but always observing the essential rules of justice. xi. Proceedings are insti- tuted ex officio or as a result of an accusation, a com- plaint, or of knowledge reaching the diocesan curia by other means ; and they are followed up with all cau- tion and prudence for the purpose only of ascertaining the truth, and that the cer- tainty of the crime as well as the culpability or inno- cence of the accused may be made manifest. xn. The taking of the evidence may be intrusted to any approved and com- Appendix. 207 reservationibus, quas con- stanter servavit pro dicti capitis interpretatione s. Concilii Congregatio in plu- ribus resolutionibus et prae- cipuein Bosnien. et Sirmien. 20 Decembris 1873. x. Quoin procedi oporteat criminal iter, sive infraction is praecepti, aut ctiminum communium, vel legum Ec- clesiae violationis causa pro- cessus confici potest formis summariis et absque iudicii strepitu, servatis semper regulis iustitiae substantia- libus. xi. Processus instruitur ex officio aut in sequelam supplicis libeili et querelae, aut notitiae alio modo a curia habitae, et ad fin em perdiicitur eo consilio, ut omni studio atque prudentia veritas detegatur, et cognitio turn criminis, cum reitatis aut innocentiae accusati ex- urgat. x. In actione criminali vel ob praecepti inobservan- tiatn, vel ob communes re- atus, vel ob ecclesiasticarum legum transgressionem pro- cessus summarie et sine strepitu judicit servatis sem- per in tota sua substantia justitiae regulis conficiatur. xi. Processus ex officio in- struitur, vel accepto sup- plici libello, veJ accusatione, vel nuncio quoquomodo ad curiam perlato, et usque ad terminum perducitureo con- silio, ut omni studio ac pru- dentia veritas detegatur, ac turn de crimine turn de rei- tate vel innocentia accusati causa eliquetur. Xii. Processus confectio xii. Ubi curiae iam con- pommitti potest alicui probo stitutae sunt, compilatio processus committi potest 208 Appendix. clesiastico, assistito dall'At- tuario. petent ecclesiastic, assisted by a clerk (secretary). xm. Ogni Curia e d'uopo che abbia il suo Procuratore fiscale nell'interesse della giustizia e della legge. xiv. Per le occorrenti in- timazioni o notificazioni, se non pud aversi 1'opera dei cursori della Curia, si sup- plisce con farle presentare da persona qualificata, che ne dia discarico ; ovvero trasmettendole raccoman- date per la Posta nei luoghi ove e in uso tale sistema postale, richiedendosene cer- xin. Each episcopal curia should have a fiscal procu- rator in the interest of law and justice. xiv. If there be no mes- sengers attached to the curia whose services could be avail- able for the delivery of the summons and notifications, these can be sent by any suitable person, who must make a return thereof ; or they may be sent by regis- tered letter where such postal system exists, thus Appendix. 209 atque idoneo ecclesiastico, probo ac perito viro ecclesi- adstante actuario. astico, cui assistat actuarius. In dioecesibus vero in qnibiis curiae episcopates nondutn possint institui^ interim observanda est Instructio anni 1878 cum re spon- sions earn subsequent! ad proposita dubia. Videlicet singuli Anti- stites in synodo dioecesana audito clericorum consilio, quod tamen sequi non tenentur, quinque, vel ubi adjuncta rerum id fieri tion sinanf, tres saltern presbyteros ex probatissimis et quantum fieri potent in jure cancnico peritis seligant ad hujusmodi officium, ut in praedicta Instruction declaration exstal, exercendum. Quod si ob aliquam gravem causam synodus luiberi nequeat, quinque vel tres ut supra ecclesiastici viri per episcopum ad idem munus de- putentur. Electi in officio manebunt usque ad proximam dioece- sanae synodi celebrationem, in qua vel confirmentur vel alii eoruin loco designentur. Quod si interdum morte aut renuntialione vel alia causa praescriptus consiliariorum numerus minuatur, JEpis- copus audito consilio cetcrorum ad commissionem pertinetitium alios sufficiet. Porro commissio haec consultorum jurejurando obstricta tenetur ad officium fideliter adimplendum^ et pi ae side Episcopo vel vicario generali rem suam aget. Defcnsio autem rei erit in scriptis exhibenda ad nor mam praesentis Instructions. XIII. Unicuique curiae XIII. In qualibet curia opus est procuratore fiscali episcopal! procurator fiscalis pro iustitiae et legistutela. constituetur, ut justitiae et legi satisfiat. xiv. Quatenus pro intima- xiv. Pro intimationibus tionibus aut notificationibus vel notificationibus, si appa- haud praesto sit opera ritores curiae desint, utatur apparitorum curiae, supple- Episcopus persona aliqua tur exhibitione earumdem qualificata quae eas exhi- explenda per qualificatam beat, ac de hoc ipsum certi- personam, quae de facto orem reddat : vel etiam a certioret ; sive eas trans- curia per publicos tabellarios mittendo ope commenda- commendatae (quibus locis tionis penes tabellariorum hoc systema vigeat) trans- officium, illis in locis in qui- mittantur, exquisita fide ex- 2IO Appendix. tificato di presentazione, di ricevimento, o rifiuto. xv. Labasedelfattodelit- tuoso puo essere stabilita dalla esposizione che se n'e avuta in processo convali- data o da informazioni au- tentiche, o da confession! stragiudiziali, o da testimo- nial! deposizioni: ed in quan- to al titolo di contravven- zione al precetto, risulta dalla riproduzione del de- creto e dell'atto d'intima- zione eseguiti ne' modi es- pressi agli Art. VII. ed VIII. xvi. A ritenere poi in specie la colpabilitzl dell'im- putato e necessario diaverne la prova legale, che deve contenere tali elementi da dimostrare la verita, o alme- no da indurre una morale convinzione, rimosso ogni ragionevole dubbio in con- trario. xvn. Le persone che con- venga di esaminare, si sen- tono sempre separatamente. xvin. I testimoni a prova o a difesa, quando non vi si oppongano legali ostacoli, devono essere intesi con giuramento, estendibile, se occorra, anche all'obbligo del segreto. securing a certificate of their presentation, acceptance, or refusal. xv. The basis of the criminal fact may be estab- lished by the disclosures made during the trial sup- ported by authentic infor- mations, extrajudicial ad- missions, or the depositions of witnesses ; and as re- gards the violation of in- junctions, this is proved by simply producing the writ and the record of its having been served, as provided in Arts. vn. and viu. xvi. Regarding in par- ticular the conviction of the accused, it is neces- sary to have legal proof, which ought to be of sucli a nature as to demonstrate the truth, or at least induce such a moral conviction as to leave no reasonable doubt of the contrary. xvn. The witnesses whom it is expedient to ex- amine, should be all heard separately. xvin. Witnesses for the prosecution or for the de- fence, if there be no legal obstacle, should be put un- der oath, and, if need be, held under oath also to se- crecv. Appendix. 211 bus hoc invaluit systema, exposcendo fidem exhibi- tionis, receptionis aut re- pudii. xv. Basis facti criminosi constitui potest per exposi- tionem in. processu habitam, authenticis roboratam infor- mationibus aut confessioni- bus extraiudicialibus, vel testium depositionibus, et quoad titulum transgres- sionis praecepti constat per novam exhibitionem decreti et actus indictionis, perfec- torum modis enuntiatis Art. vii et viit xvi. Ad retinendam in specie culpabilitatem accu- sati opus est probatione le- gali, quae talia continere debet elemenia. ut veritatem evincat, aut saltern inducat moralem certitudinem, re- moto in contrarium quovis rationabili dubio. xvii. Personae, quas ex- aminare expediat, semper audiuntur separatim. xvin. Testes ad proba- tionem, aut ad defensionem, quoties legalia obstacula baud obsistant, sub iura- tnento audiri debent, quod extendi potest, si opus sit, ad obligationem secreti. hibitionis atque acceptionis vel repudii. Intiinationes et notificatioties semper in scriptis absolute fiant. xv. Delicti fundamentum erui potest ex ipsa exposi- tione habita in processu, quae authenticis informa- tionibus vel confessione ex- trajudiciali, vel testium de- positionibus confirmetur : transgressio vero praecepti ex ipso decreto et actu inti- mationis ad normam art. vn. et vin. factae deducitur. xvi. Ad admittendam ve- ro rei culpabilitatem neces- saria est probatio legalis, quae iis momentis constare debet, quibus veritas vere demonstrata elucescat, vel saltern moralis convictio in- ducatur quocumque rationa- bili dubio oppositi remoto. xvn. Personae quae ex- amini subiiciendae sunt, separatim audiuntur. xvin. Testes ad proba- tionem sive ad defensionem, si legalia impedimenta id non prohibeant, audiantur praestito juramento de veri- tate dicenda, et si res postu- let, etiam de secrete ser- vando. 212 Appendix. xix. I testimoni trovan- dosi lontani o in altra Dio cesi, se ne domanda 1'esame in sussidioall'Autoritaeccle- siastica del luogo con invio alia medesima di un pros- petto del fatto: e 1'Autoritd requisita corrisponde alia richiesta osservando le norme della presente Istru- zione. xx. Qualora vengano in- dicati testimoni per falti e circostanze essenzialmente interessanti al merito della Causa, e non possano aversi in esame, perch non si reputi conveniente d'inti- inarli, ovvero percheinvitati vi si ricusino, se ne fa men- zione in atti, et si procura di supplire alia deficienza di essi con le attestazioni di al- tri testimoni che de relato, o in altro modo, siano infor- mati di quanto si ricerca. xxi. Riunito tutto ci6 che sia necessario a stabilire il fatto et la responsabilita dell'imputato, viene questo intimato all'esame. xix. Witnesses at a dis- tance or in another diocese shall be examined through the intervention of the local ecclesiastical authority, to whom shall be transmitted an abstract of the case ; and the authority called upon, shall comply with the request, observing the norms of the present In- struction. xx. When witnesses are offered to give testimony on facts or circumstances that are very material to the merits of the case, but who cannot be examined either because it is not deemed ex- pedient to summon them, or because they refuse to ap- pear though summoned, mention of such is to be made in the minutes of the proceedings, and care must be taken to supply for their absence by the depositions of other witnesses who, by hearsay or in some other manner, have come by the knowledge sought. xxi. When all has been collected that is necessary to establish the fact of the crime and the culpability of the accused, the latter is cited for examination. Appendix. 213 Itaque antequam testificentur cum de veritate turn de secreto jurent. Eo magis de officio fideliter adimplendo et de secreto, pro rei de qua agitur exigentia, servando onines juramento obstricti sint oportet, qui in instructione processus ex suo munere partem aliquant habeant. xix. Testium absentium aut in alienadioecesi moran- tium exposcitur examen in subsidium ab ecclesiastica loci auctoritate, eidem trans- mittendo prospectum facti; et auctoritas requisita peti- tioni respondet, servando praesentis instructionis nor- mas. xx. Quoties indicentur testes ob facta aut adiuncta essentialiter utilia merito causae, qui examini subiici nequeant, eo quod censeatur baud convenire ut vocentur, aut quia vocati abnuant, mentio eorumdem fit in acti- bus, et curatur supplere eorum defectui per deposi- tiones aliorum testium, qui de relato aut alia ratione noverint id quod exquiritur. xxi. Quum collectum fue- rit quidquid opus sit ad factum et accusati responsa- bilitatem constituendam, vocatur iste ad examen. xix. Testes qui in locis longe dissitis vel in aliena dioecesi degunt, mediante auctoritate ecclesiastica loci in quo manent examinentur, in quern finem specimen fac- torum transmittetur: quae quidem auctoritas in respon- sione normasin hac Instruc- tione contentas observabit. xx. Si indicentur testes qui de factis vel circumstan- tiis ad meritum causae sub- stantiale spectantibus inter- rogandi essent, nee exami- nari possint, vel quia non licet aut decet eos citare in judicium, vel quia rogati adesse recusent, necesse est id in aclis commemorare, eorumque deficientia sup- pletur testimoniis aliorum qui vel de relato vel aliter rem de qua quaeritur, no- verint. xxi. Ubi id omne quod ad veritatem factorum con- stituendam et culpam ac- cusati probandam pertinet absolutum fuerit, imputatus intimatione scripta ad examen vocatur. 2I 4 Appendix. xxn. Nella intimazione, se la prudenza non lo vieti, gli si espongono per esteso le accuse portate a suo cari- co, onde possa prepararsi a rispondervi. XXITI. Quando poi per la qualit^ delle accuse, o per altrecircostanze non sia pru- denziale di esprimerle nella intimazione, in questa gli si accenna soltanto clie e chia- mato all'esame per discol- parsi in una causa die lo riguarda come inquisito. xxiv. Rifiutando egli di presentarsi, si rinnova la in- timazione, nella quale gli si prefigge un congruo termine perentorio acomparire, egli si notifica, che rendendosi ancora disubbidiente, si avra come contumace : e per tale sard effettivamente tenuto, posto che senza dar prova di legittimo impedimento, tras- gredisse pur questa intima- zione. xxv. Presentandosi, si sente in esame : e se fa in- duzioni valutabili, devono queste, per quanto si puo, essere esaurite. xxvi. Si procede indi alia contestazione del fatto delit- tuoso, e delle risultanze che xxn. In this citation, un- less prudence counsel other- wise, the accusations made against him are stated in de- tail, that the accused may have an opportunity to pre- pare his reply to the charges. xxin. When, on account of their nature or other rea- sons, it is not prudent to de- tail the charges in the cita- tion, the accused is simply called on to exculpate him- self in a case that concerns him as defendant. xxiv. If he refuse to ap- pear the citation is repeated, but this time peremptorily fixing a suitable term within which he must present him- self. He must be notified that if disobedient to this summons he shall be held as contumacious, and shall in fact be so treated, if without proof of lawful impediment he disregard this citation. xxv. On presenting him- self he is examined, and if he adduce arguments of any weight they are to be sifted as carefully as possible. xxvi. Next they proceed to contest the delict and the conclusions already arrived Appendix. xxn. In indictione, nisi prudentia id vetet, exponun- tur ei per extensum accusa- tionesadversuseum collatae, ut parari valeat ad respon- dendum. xxni. Ouando autem ob accusationum qualitates, aut ob alia adiuncta prudens non sit in actu intimationis eas patefacere, in hac solum innuitur eundem ad examen vocari ut sese excuset in causa, quae ipsum respicit uti accusatum. xxiv. Si iudiciostitereab- nuat, iteraturindictio, in qua eidem praefigitur congruum peremptorium terminum, eique significatur quod si adhuc obedire renuat, habe- bitur ceu contumax; et pro tali in facto aestimabitur, quatenus absque probato legitimo impedimento, istam quoque posthaberet intima tionem. xxv. Si compareat, audi- tur in examine; et quatenus inductiones facial alicuius moment!, debent istae, quan- tum fieri potest, exhauriri. xxvi. Proceditur inde ad contestationem facti crimi- nosi, et conclusionem habi- xxn. In intimatione, nisi prudentia obstet, accusa- tiones contra reum perlatae per extensum referuntur, ut ad responsionem se prae- parare possit. xxni. Quod si ob accusa- tionum qualitatem vel alia de causa baud expediat ut in intimatione exprimantur, in hac satis erit innuere ipsum ad examen vocari ut in causa, de qua contra eum fit inquisitio, sese defendat. xxiv. Si ad examen ac- cedere recuset, iterum fit intimatio, atque in ea con- gruum tempus perempto- rium praefinitur, intra quod reus coram tribunali se sistere debeat, eique signi- ficatur, si non pareat, con- tumacem esse judicandum: quam intimationem si haud probato legitimo impedi- mento transgrediatur, ut contumax de facto habe- bitur. xxv. Verum si ad examen accedat, audiatur : et ubi inductiones alicuius valoris exliibeat, eae quantum fieri potest accurate discutiantur. xxvi. Dein accedendum est ad contestationem delicti etargumentorum, quae pro- 2l6 Appendix. se ne sono avute, per credere 1'inquisito colpevole, ed in- corso nelle relative penalita canoniche. xxvii. Avendo in questo modo 1'inquisito piena con- tezza di cio che esiste in atti a suo carico, oltre al rispon- dere, pud anche valersi del diritto che ha di difendersi da se stesso. xxvm. Puo altresi, se lo richiede, ottenere la pre- fissione di un termine ad esibire la difesa con memoria scritta, specialmente quando pel disposto dell'Art. XXIII. non avesse potuto prepararsi alle risposte in sua discolpa. xxix. Ultimato il pro- cesso, il compilatore degli atti, forma il ristretto delle essenziali risultanze del me- desimo. xxx. Nel giorno che si propone la Causa, 1'inqui- sito e in facoltadi farsi rap- presentare e difendere da altro Saceidote o da laico Patrocinatore, preventiva- mente approval! dall'Ordi- nario. at that the accused is guilty and has incurred the corre- sponding canonical penal- ties. xxvn. The accused being thus fully informed of all that lies against him in the acts may, besides making a simple answer, further claim the right to make his defence in person. xxvm. He may also, at his request, obtain the fixing of a date for handing in his defence in a written memo- rial, especially if owing to the provisions of art. xxiii. he had had no opportunity to prepare a reply in his de- fence. xxix. When the informa- tive process is concluded, the auditor of the trial will make an abstract of the substantial results obtained. xxx. On the day when the case is called up by the judge, the accused is at lib- erty to be represented and defended by another clergy- man or by a lay-counsel* previously accepted by the bishop. xxxi. Ove il prevenuto si xxxi. If the accused re- ricusi di deputare il Difen- fuse to name counsel, the Appendix. 217 tarum, ad retinendum ac- cusatum criminosum lap- sumque in relativis poenis canonicis. xxvn. Quum accusatus, tali modo, habeat plenam cognitionem eius quod in actis extat contra se, ultra quod respondere possit, iure se defendendi a semetipso etiam uti valet. XXVIH. Potest quoque, si id expetat, obtinere prae- fixionem termini ad exhi- bendam defensionem cum memoria in scriptis, praeci- pue quando ob disposi- tionem art. xxiii nequiverit paratus esse ad responsa pro sua excusatione. xxix. Expleto processu, actorum instructor, restric- tum conficit essentialium conclusionum eiusdem. xxx. In die qua causa proponitur, est in facultate accusati faciendi se reprae- sentare et defendere ab alio sacerdote aut laico patroci- natore, antea approbatis ab Ordinario. xxxi. Quatenus praeven- tus constituere defensorem stant, ut inquisitus et cul- pabilis habeatur et in poenas canonicas incurrisse cen- seatur. xxvn. Inquisitus, ubi ex his noverit quae in actis contra ipsum relata sunt, ad ea respondere potest, ac si velit utetur jure defensionis a seipso in scriptis peragen- dae. xxvni. Potest etiam, si postulet, obtinere ut ter- minus ad defensionem scripto exhibendam prae- figatur : maxime si ob ea quae art. xxm indicata sunt, responsionem ad accusa- tiones contra se latas parare non potuerit. xxix. Absoluto processu redactor actorum summa- rium praecipuorum argu- mentorum, quae ex ipso elucent, conficiat. xxx. Qua die causa pro- ponetur, inquisito fiet facul- tas defensionem suam per alium sacerdotem suo no- mine in scriptis exhibendi. Quod si idoneum non rfperiat, laicum catholicum adhibere potest. Quisque autem ex iis ab Ordinario appro- bandus est. xxxi. Si vero reus defen- sorem deputare recuset, Or- 218 Appendix. sore, 1'Ordinario provvede con destinargliene uno d'of- ficio. xxxn. II Difensore con la dovuta riservatezza prende cognizione del processo e del ristretto in Cancelleria, onde sia in grado di far la difesa, la quale pu6 essere esibita precedentementealla proposizione della Causa in fogli manoscritti. E pur esso soggetto all'obbligo giurato del segreto, qualora a giudizio dell Ordinario la natura della Causa lo esiga xxxin. Si trasmette quin- di al Procuratore fiscale il processo, ed il ristretto perch& adempia alle sue in- combenze di officio: e poi si passa 1'uno e 1'altro all'Or- dinario, il quale presa in- tegra cognizione della Causa, destina il giorno, in cui debba discutersi e deciders!, facendone dare parteci- pazione all'accusato. xxxiv. Nel giorno stabi- lito si propone la Causa in- nanzi al Vicario generate con 1'interventodel Procura- tore fiscale, del Difensore, e del Cancelliere. xxxv. Dopo il parere fiscale, e le deduzioni difen- bishop will provide for the official appointment of one. xxxn. The counsel, sub- ject to due restriction, takes notice of the acts and the abstract thereof at the chan- cellor's office, in order to be in a position to make the de- fence; and he is at liberty to hand in his defence in writ- ing before the trial comes off. Counsel also may be sworn to secrecy, if in the judgment of the Ordinary the nature of the case re- quire it. xxxin. The acts and the abstract are now handed over to the official prosecutor that he may fulfil his official duties; both are then taken to the Ordinary, who, after acquiring a full knowledge of the case, will appoint a day for the hearing thereof and decision, and see that the accused be notified of the same. xxxiv. On the day ap- pointed the case is brought up before the vicar-general in presence of the fiscal procurator, counsel for the defence, and the chancellor. xxxv. After the argu- ments of the official prose- Appendix. 219 renuat, Ordinarius consulit constituendo aliquem ex officio. xxxii. Defensor caute no- titiam haurit processus et restrict! in cancellaria, ut paratus sit ad defensionem peragendam quae ante pro- positionem causae exhiberi potest in scriptis. Ipse quo- que subiicitur oneri secreti iurati, quatenus Ordinario videatur indolem causae id expostulare. xxxin. Transmittiturdein procurator! fiscali processus et restrictus, ut munere suo ex officio fungatur; uterque Ordinario traditur qui plena causae cognitione adepta, diem constituit in qua dis- ceptanda et resolvenda sit, curans ut accusatus certior dc hoc fiat. xxxiv. Dieconstitutapro- ponitur causa coram vicario generali, interessentibus pro- curatore fiscali, defensore et cancellario. xxxv. Post votum procu- ratoris fisci et deductiones defensionis profertur sen- dinarius ilium ex officio designabit. xxxn. Defensor debitis sub cautelis in cancellaria curiae processum ejusque summarium inspiciet, ut reum tueatur ; ac defen- sionem ante causae ipsius propositionem scripto ex- hibebit. Ipse quoque ad juramentum de secreto ser- vando tenetur, quando judex indolem causae id postulare censuerit, xxxiti Processus ejusque summarium ad procurato- rem fiscalem mittitur, ut of- ficio suo fungi possit. Post- quam procurator fiscalis suas conclusiones ediderit, eaedent defensori ret communicandae Stint Jtt ad easdem si placuerit in scriptis respondent; turn omnia ad ordinarium re- mittunturqui, ubi in plenam causae cognitionem deve- nerit, diem constituetin qua sententia dicenda sit. xxxiv. Praestituta die, ab Eplscopo Vel vicario generali praesente procuratore fiscali et defensore sententia pro- nunciatur, ejusque pars dis- positiva cancellario die- tatur, expressa mentione facta, si damnation! sit 22O Appendix. sive si pronunzia la sentenza, dettandosi al Cancelliere la dispositiva, con espressa menzione, in caso di con- danna, della sanzione cano- nica applicata contra 1'im- putato. xxxvi. La sentenza s'in- tima al prevenuto, il quale pud interporne appello all' Autoritd ecclesiastica supe- riore. xxxvn. Per 1'appello si osservano le norme stabilite dalla Costituzione Ad mili- tantis della sa. me. di Bene- detto XIV 30 marzo 1742, e le altre emanate da questa s. Congregazione col De- creto 1 8 decembre 1835 e colla Circolare i agosto 1851. xxxviii. La comparsa per 1'appello deve farsi nel ter- mine di giorni dieci dalla notifica della sentenza; scorso inutilmente questo termine, la sentenza stessa in istato di essere eseguita. xxxix. Interposto 1' ap- pello entro i dieci giorni, la Curia senza ritardo rimette all'Autorit ecclesiastica su- periore, innanzi cui si e ap- 1 See p. 241. * See cutor and those for the de- fence have been heard, sen- tence is pronounced and the decision proper dictated to the chancellor; but, in case of condemnation, explicit mention must be made of the canonical sanction ap- plied to the accused. xxxvi. The sentence is communicated to the ac- cused, who may lodge an ap- peal to higher ecclesiastical authority. xxxvn. In case of appeal the methods laid down by Benedict XIV. of p. m. in the Const. Ad nrilitantis, issued March 30, 1742,* and by this S. Congregation in a decree issued Dec. 18, 1835," and in the circular letter of Aug. i, 185 1, 3 are to be followed. xxxviii. Notice of the ap- peal must be given within ten days after receiving no- tice of the sentence ; this time having passed without any action, the sentence awaits execution. xxxix. If the appeal be made within ten days, the diocesan curia will forward without delay to the higher court, to which appeal has P- 234- See p. 237. Appendix. 221 tentia, dictando dispositi- locus, sanctionis canonicae vam cancellario, cum expli- quae contra imputatum ap- cita mentione, in casu dam- plicatur. nationis, canonicae sanctio- nis, accusato applicatae. xxxvi. Sententia indicitur praevento, qui appellationem interponere potest ad aucto- ritateni ecclesiasticam su- periorem. xxxvii. Pro appellatione servantur normae statutae a constitutione Ad militantis s. m. Bened. XIV. 30 Martii 1742, aliaeqne emanatae ab hac s. Congregatione decreto 18 Decembris 1835 et littera circular! diei i Augusti 1851. xxxvin. Comparitio pro appellatione facienda est in- fra terminum decem dierum a notificatione sententiae; quo termino inutiliterelapso, sententia ipsa in executionis statu reperitur. xxxix. Interposita appel- latione infra decem dies, curia absque mora remittit ad auctoritatem ecclesiasti- cam superiorem, apud quam xxxv. Sententia reo in- timetur, qui potest ad auc- toritatem superioris instan- tiae appellationem inter- ponere. xxxvi. In appellatione observentur normae expres- sae in constit. s. m. Bene- dict i XIV. AJ militantis diei 30 Martii 1742, ac ceterae indictae a S. C. Ep. et RR. decreto diei 18 Decembris 1835, et epistola circular! diei i Aug. 1851. xxxvii. Intra terminum decem dierum a notifica- tione sententiae interpositio appellationis fieri debet, quo ehipso tempore sententiae executio locum habet. xxxvin. Appellatione in- terposita, continuo curia ad auctoritatem ecclesiasticam superioris instantiae omnia acta causae in suis auto- 222 Appendix. pellato, tutti gli atti original! della Causa, cioe il processo, 51 ristretto, le difese, e la sentenza. XL. L'autoritd ecclesias- tica superiore presa cogni- zione dell' atto di appello, fa intimare all' appellante, che nel termine di giorni venti deputi il Difensore, che deve essere approvato dalla me- desima superiore Autorita. XLI. Trascorso 1'enunciato termine perentorio senza ef- fetto, si ritiene che 1'appel- lante abbia rinunziato al benefizio dell'appello, e questo viene in consegnenza dall'Autorita superiore di- chiarato perento. XLII. Producendosi I'.ap- pello dalla sentenza di una Curia vescovile alia Metro- politana, 1'Arcivescovo nella cognizione e decisione della Causa si attiene al metodo di procedura tracciato in questa intruzione. XLIII. Se avvenga che un Cliierico, in onta al privi- legio del foro, sia per reati communi sottoposto a pro- cedura e giudicato dal Potere laico, 1'Ordinario in tal caso prende sommaria informazione del fatto de- littuoso, ed esamina se a been made, all the original acts in the case, namely, the minutes, the abstract, the defence, and the sentence. XL. The higher ecclesiasti- cal authority having taken cognizance of the appeal shall notify the appellant that within twenty days he is to appoint his counsel, who must be accepted by the same higher authority. XLI. If this peremptory limit be allowed to pass without action, the appellant is presumed to have re- nounced the benefit of ap- peal, and the appeal is ac- cordingly by the higher au- thority declared set aside. XLII. When an appeal is taken from an episcopal to the metropolitan court, the archbishop in taking cogniz- ance of and deciding the case will follow the methods set forth in this Instruction. XLIII. If, notwithstanding the benefit of the clergy, a cleric be subjected on ac- count of common delicts to a criminal suit before a civil court, the Ordinary in this case will take summary cognizance of the delict and consider whether, according Appendix. 223 appellatio facta est, omnes actus causae originates, id est processum, restrictum, defensiones et sententiam. XL. Auctoritas ecclesia- stica superior, capta cogni- tione actus appellationis, intimare facit appellant!, ut infra terminum viginti die- rum defensorem constituat, qui approbari debet ab eaclem superiori auctoritate. XLI. Decurso clicto termi- no peremptorio absque effectu, censetur appellan- tem nuntium misisse ap- pellationis beneficio et haec consequenter perempta de- claratur a superiori aucto- ritate. XLII. Quum appellatio producitur a sententia ali- cuius curiae episcopalis ad Metropolitanam, Archiepis- copus pro cognitione et de- cisione causae sequitur nor- mam procedendi in hac in- structione traditam. XLIII. Si contingat quod clericus, non obstante fori privilegio, ob crimina com- munia subiiciatur processui et iudicio laicae potestatis, Ordinarius, hoc in casu, summariam sumit criminosi facti cognitionem, atque perpendit an ipsum, ad tra- graphis, id est processum, ejus summarium, defen- sionem ac sententiam mittit. xxxix. Haec porro su- perioris instantiae auctoritas appellatione cognita appel- lanti injungit, ut intra triginta dies defensorem de- putet, qui ab ipsa appro- band us est. XL. Eo termino peremp- torio frustra elapso, censetur reus beneficio appellationis renuntiasse, quam propterea judex gradus superioris per- emptam declarat. XLI. In appellatione a sen- tentia curiae episcopalis ad metropolitanam Archiepis- copus in causa cognoscenda ac definienda eadem proce- dendi methodo utetur, quae in hac instructiorie indi- catur. XLII. Si clericus ob com- munes reatus a civili potes- tate privilegio fori non ob- stante processui ac judi- cio subjiciatur, Ordinarins summariam informationem criminis assumit, ac inquirit num ad normam sacrorum canonum infamiae, irregu- 224 Appendix. senso de' sacri canoni, esso puo dar luogo ad infamia, ad irregolarita o ad altra ec- clesiastica sanzione. i. Finche pende il giu- dizio o 1'imputato sia de- tenuto, e cosa prudente, che I'Ordinario si limiti a misure provvisionali. 2. Terminate pero il giudizio, e reso libero 1'ac- cusato, la Curia, giusta i risultati delle informazioni come sopra assume, pro- cede analogamente a quan- to e disposto nella presente istruzione. XLIV. Nei casi dubbi, e nelle varie difficolta pratiche in cui possano incontrarsi, git Ordinari prendono con- siglio da questa s. Corigre- gazione per evitare contese e nullita. to the holy canons, infamy, irregularity, or other ecclesi- astical penalty be the result. i. Pending the suit, and while the accused is held, it will be prudent for the Or- dinary to confine himself to provisional measures. 2. After the trial and when accused has been re- leased, the curia, according to the results of informa- tions taken as- above, will proceed according to the norms of this present In- struction. XLIV. In dubious casesand in the various practical diffi- culties that may arise, Ordi- naries will ask advice of this Sacred Congregation to avoid litigation and nullity. Ex aud. SSmi did II Junii 1880. SSmus Dnus Noster LEO div. prov. PP. XIII., audita relatione praesentis Instructionis ab infrascripto Sac. Con- greg. Episcoporum erRegularium Secretario, earn in omni- bus approbare et confirmare dignatus est. Romae die et anno quibus supra. I. CARD. FERRIERI, Praef. I. B. AGNOZZI, Secretarius. Appendix. 225 dita per sacros canones, lo- cum faciat infamiae, irregu- laritati autalii ecclesiasticae sanctioni. i. Donee iudicium pen- deat, aut accusatus detentus sit, prudens est, quod Ordi- narius sese limitet ad media provisoria. 2. Expleto tamen iudi- cio, et libero reddito accu- sato, curia iuxta exitum in- formationum ceu superius assumptarum, procedit ad tramitesdispositionum prae- sentis instructionis. XLIV. In casibus dubiis et in variis practicis difficulta- tibus, qnae contingere pos- sint, Ordinarii constilant hanc s. Congregationem, ad vitandas contentiones, et nullitates. laritati,vel alii ecclesiasticae sanctioni locus esse possit. i. Pendente judicio vel imputato in carcere detento prudens consilium erit, ut Ordinarius ordinationes mere provisorias adhibeat. 2. Judicio absolute, si liber accusatus remittatur, curia episcopalis juxta in- formationes ut supra as- sumptas earatione procedet, quae in hac instructione con- stituitur. XLIII. In casibus dubiis diversisque in praxi difficul- tatibus Ordinarii Sacram hanc Congregationem con- sulant, ut contentiones ac nullitatem actorum devitent. XLIV. Haud ita facile curiae episcopates ad damna vel expensas resarciendas damnari poterunt; qitoties enim ex processu informative indicia sufficientia ad agen- dum contra inquisitum appareant, judex appellationis a talibus damnationibus abstineat, cum ea indicia sufficiant ut in Judice, qui antea processit, ea vera et propria calumnin excludatur, quae ad hnjnsmodi damnationem requiritur. XLV. Concilii PU-natii Bal^ timorensis II. decreta n. 125 quoad naturam v.issionum, et nn. 77, 1 08 quoad juridicos effectus remotionis inissionariorum ab officio, nullatenus innovata seu infirmata. intelliguntur, salris it's quae recentius de parochis seu rectoribus inamcn'ibilibus consti- tula sunt. 226 Appendix. INSTRUCTIO S. CONGREGATIONS DE PROP. FIDE DE COM MISSIONE INVESTIGATIONIS.* Quamvis Concilium Plenarium Baltimorense II. ab Apostolica Sede recognitum, certain quamdam iudicii for- mam, iam antea a concilio provincial! S. Ludovici sanci- tam, in criminalibus clericorum causis ab ecclesiasticis curiis dioecesium Foederatorum Septentrionalis Americae Statuum pertractandis servandam esse decreverit, experi- entia tamen compertum est, statutum iudicii ordinem haud undequaque parem esse ad querelas eorum praecavendas, quos poena aliqua mulctari contigerit. Saepe enim post- remis hisce temporibus accidit, ut presbyteri iudiciis ea ratione initis latisque sententiis damnati, remoti praeser- tim ab officio rectoris missionarii, hue illuc de suis Prae- latis conquesti fuerint et frequenter etiam ad Apostolicam Sedem recursus detulerint. Dolendum autem est, non raro evenire, ut in transmissis actis plura, eaque necessaria desiderentur, atque perpensis omnibus gravia saepe dubia oriantur circa fidem documentis hisce in causis allatis ha- bendam vel denegandam. Quae omnia S. Congregatio fidei propagandae praepo- sita serio perpendens, aliquod remedium hisce incommodis parandum, ac ita iustitiae consulendum esse censuit, ut neque insontes clerici per iniuriam poena afficiantur, neque alicuius criminis rei ob minus rectam iudiciorum formam a promerita poena immunes evadant. Quod quidem facili pacto obtineret, si omnes praescriptiones a sacris canonibus sapienter editas pro ecclesiasticis iudiciis, praesertim crimi- nalibus, ineundis et absolvendis servandas omnino esse praeciperet. Verum animo reputans, in praedictis Foede- * The Latin notes are from the answer of the S. C., given in full in the Appendix C. PI. B. III., p. 296. Appendix. 227 ratorum Ordinum regionibus id facile servari non posse, ea ratione providendum esse duxit, ut saltern illae de admisso crimine accurate peragantur investigationes, quae omnino necessariae existimantur, antequam ad poenam irrogandam deveniatur. 1 Itaque SSmo. Domino Nostro Divina Providentia PP. Leone XIII. approbante, in generalibus comitiis habitis die 25 lunii 1878, S. Congr. decrevit ac districte mandavit, ut singuli memoratae regionis sacrorum Antistites in dioece- sana synodo quamprimum convocanda quinque, aut ubi ob peculiaria rerum adiuncta tot haberi nequeant, tres saltern presbyteros ex probatissimis, et quantum fieri poterit in iure canonico peritis seligant, quibus consilium quoddam iudiciale, seu, ut appellant, Commissio Investigationis con- stituatur, eidemque unum ex electis praeficiant. Quod si ob aliquam gravem causam synodus dioecesana statim ha- beri nequeat, quinque vel tres prouti supra per Episcopum interim ecclesiastici viri ad munus de quo agitur depu- tentur. Commissionis ita constitutae princeps erit officium cri- minales atqtie disciplinares presbyterorum aliorumque clericorum causas, iuxta normam mox proponendam, ad examen revocare, rite cognoscere ac ita Episcopo in ipsis definiendis auxilium praebere. Satagant propterea oportet 1 i. Instructio dit i 20 lulii 1878 lata est de casibu". in quibus ecclesia- stica poena seucensura sit infligenda. aut gravi disci plinari coercitioni sit locus. Hinc C. PI. C. Bait, decreta n. 125 quoad naturam missionum, nn. 77, loS. quoad iuridicos effectus remotionis missionariorum ab officio nullatenus innovataseu infirmata fuerunt. Episcopi vero curent, ne sacerdotes sine gravi et rationabili causa de una ad aliam missionem invitos transferant. Quod si de alicuius rectoris definitiva remotione a munere in poenam delicti infligenda agatur, id Episcopi execution! non mandent, nisi audito prius Consilio iv. Per Instructionem sublata non est Episcopis extraordinaria facul- tas proredendi ad snspensionem ex informata conscientia, quatenus gra- vissimas et canonicas causas concurrere in Domino iudicaverint. aut gravi et urtjente necessitate pro salute animarum, etiam non audito con- silio, remedio aliquo providendum esse ccnsuerint. 228 Appendix. ad hoc munus electi, ut accuratae fiant investigationes, ea proferantur testimonia atque a praesumpto reo omnia ex- quirantur,- quae ad veritatem eruendam necessaria censen- tur ac ad iustam sententiam tuto prudenterque ferendam certa vel satis firma argumenta suppeditent. Quod si de alicuius rectoris missionis remotione agatur, nequeat ipse a credito sibi munere deiici, nisi tribus saltern praedictae Commissionis membris per Episcoputn ad cau- sam cognoscendam adhibitis, eorumque consilio audito. Electi consiliarii in suscepto munere permanebunt ad proximam usque dioecesanae synodi celebrationem, in qua vel ipsi confirmentur in officio vel alii designentur. Quod si interim morte, aut renuntiatione vel alia causa praescrip- tus consiliariorum numerus minuatur, Episcopus extra synodum alios in deficientium locum, prout superius statu- tum est, sufficiat. In causis cognoscendis, iis praesertim in quibus de rec- tore missionario definitive a suo officio amovendo agatur, iudicialis Commissio hanc sequetur agendi rationem. 1. Ad Commissionem investigations non recurratur, nisi prius clare et praecise exposita ab Episcopo causa ad deiec- tionem finalem movente, ipse rector missionarius malit rem ad Consilium deferri, quam se a munere et officio sponte dimittere. 2. Re ad Consilium delata, Episcopus vicario suo gene- ral! vel alii sacerdoti ad hoc ab ipso deputato comittat, ut relationem causae in scriptis conficiat, cum expositione in- vestigationis eo usque peractae, et circumstantiarum, quae causam vel eiusdem demonstrationem specialiter afficiant. 3. Locum, diem, et horam opportunam ad conveniendum iudicet, idque per litteras ad singulos consiliarios. 4. Per litteras etiam rectorem missionarium, de quo agitur, ad locum et diem constitutum ad Consilium haben- dum advocet, exponens, nisi prudentia vetat, uti in casu criminis occulti, causam ad deiectionem moventem, per ex- tensum monensque ipsum rectorem, ut responsum suis ra- tionibus St|ffulfuni ad ea praeparet in scriptis, quae in Appendix. 229 causae expositione vel iam antea oretenus, vel tune in scriptis relata fuerint. 5. Convenientibus consiliariis tempore et loco praefinitis, praecipiat Episcopus silentium servandum de iis, quae in Consilio audiantur; moneat investigationem non esse pro- cessum iudicialem, sed eo fine habitam, et eo modo facien- dam, ut ad cognitionem veritatis diligentiori qua poterit raiione perveniatur, adeo ut unusquisque consiliarius, per- pensis omnibus, opinionem de veritate factorum, quibus causa innititur, efformare quam accurate possit. Moneat etiam ne quid in investigatione fiat, quod aut ipsos, aut alios periculo damni vel gravaminis exponat, praesertim ne locus detur actioni libelli famosi, vel alii cuicumque processui coram tribuiiali civili. 6. Relatio causae legatur coram Consilio ab Episcopi officiali, qui etiam ad interpellationes respondebit a prae- side vel ;ib aliis consiliariis per praesidem faciendas ad uberiorem rei notitiam assequendam. 7. Deinde in Consilium introducatur rector missiona- rius, qui responsum a se confectum leget, et ad interpella- tiones similiter respondebit, facta ipsi plena facultate ea omnia in medium afferendi, intra tempus tamen a Consilio determinandum, quae ad propriam defensionem conferre possunt. 1 8. Si contingat, rectorem missionarium, de cuius causa agitur, nolle ad Consilium accedere, iterum datis litteris vocetur, eique congruum temporis spatium ad compareii- dum praefiniatur, et si ad constitutum diem non comparu- erit, dum modo legitime praepeditus non fuerit, uli conlu- max habeatur. 9. Quibus omnibus rite expletis, consiliarii simul consilia conferant, et si maior pars consiliariorum satis constare de factis arbitretur, sententiam suam unusquisque consilia- rius in scriptis exponat rationibus quibus nititur expressis; 1 iv. Liberum cuique rectori est alium sacerdotem ab Episcopo appro- bandum secum habere coram Consilio sive ad simplicem adsistemiam sive ad suas animadversiones aut defensionem exhibendam. 230 Appendix. conferantur sententiae; acta in Consilio ab Episcopi offi- ciali redigantur, a praeside nomine Consilii subscribantur, et simul cum sententiis singulorum in extenso ad Episco- pum deferantur. 10. Quod si ulterior investigatio necessaria vel congrua videatur, eo ipso die, vel alio ad conveniendum a Consilio constitute, testes vocentur quos opportunos Consilium iu- dicaverit, audito etiam rectore missionario de iis quos ipse advocandos esse voluerit. it. Singuli testes pro causa seorsim et accurate examinen- tur a praeside et ab aliis per praesidem, absente primum rectore missionario. Non requiratur iuramentum, sed si testes ipsi non renuant, et se paratos esse declarent ad ea quae detulerint iuramento, data occasione, confirmanda, fiat adnotatio huiusmodi dispositionis seu declarationis in actis. 12. Consentientibus testibus, et dirigente prudentia Con- silii, repetatur testimonium coram rectore missionario, qui et ipse testes si voluerit interroget per praesidem. 13. Eadem ratione qua testes pro causa, examinentur testes contra causam. 14. Collatis tune consiliis fiat ut supra n. 9. 15. Quod si testes nolint aut nequeant Consilio assistere, veleorum testimonium nondum satis luculentum negotium reddat, duo saltern ex Consilio deputentur, qui testes ad- euntes, loca invisentes, vel alio quocumque modo poterunt, lumen ad dubia solvenda requirentes, relationem suae in- vestigationis ad Consilium deferant, ut ita nulla via inten- tata relinquatur ad verum moraliter certo cognoscendum antequam ad sententiae prolationem deveniatur. 16. Omnia acta occasione iudicii in medium allata accu- rate in curia episcopali custodiantur, ut in casu appellatio- nis commode exhiberi valeant. 17. Si vero contingat, ut a sententia in curia episcopali prolata ad Archiepiscopalem provocetur, Metropolitanus eadem methodo in causae cognitione et decisione pro- cedat. Appendix. 231 Ex aedibus praefatae S. Congregationis die 20 lulii anni 1878. IOANNES CARD. SIMEONI, Prarfectus. IOANNES BAPTISTA AGNOZZI, Secretarius. INSTRUCTIO S. CONGREGATIONIS DE PROP. FIDE SUPRA SUSPENSIONIBUS EX INFORMATA CONSCIENTIA. Omni tempore sollicita fuit Ecclesia ut non solum ascen- sus ad sacros Ordines interdiceretur indignis, verum etiam ab eorumdem exercitio criminosi suspend manerent. Cum autem occultorum quoque criminum, quaeque pro- dere non expediret, facilis et prompta, nempe a iudiciariis formis libera, coercitio aliquando necessaria sit ad sacri ministerii dignitatem, et fidelium ntilitatem tuendam; hinc sapientissimo consilio Tridentini Pat res Sess. xxiv. cap. i. de Reform, decreverunt: "i cut ascensus ad sacros 01 dines a suo Praclato ex quaciimque cat/sa, etinm ob occultuin cHwen, qnoinodolibet, etiam cxtraiudicialiter fuerit interdictus, aut qui a suis oidinibus seu gradibns vel dignitatibus ecclesiasticis fuerit suspenses, nulla contra ipsius Praelati voluntatem concessa licentia de se proinoveri faciendo, aut ad prior es or dines, gradns et digni- tates sive honores restiiutio snffragetitr." Ex hoc provido decreto, in eo quod refertur ad Clerico- rum crimina, quae extraiudicialem suspensionem ab eccle- siasticis officiis merentur, iamdudum in usu fuit suspensi- onis poena ex causis Praelato notis; quae nempe audit suspensio ex informata conscientia. Ad hoc itaque ut in eadem infligenda, cum maiori qua potest cautela et securi- tate Ordinarii catholicarum missionum procedant, S. Con- gregatio de Propaganda Fide praesentem instructionem edendam censuit, cui iideni Ordinarii in adhibendo hoc ex- traordinario remedio sese conformare curabunt. 232 Appendix. 1. Suspensio ex informata conscientia, non secus ac ilia, quae per iudicialem sententiam infligitur, personam eccle- siasticam a suis ordinibus, seu giadibus, vel dignitatibus ecclesiasticis exercendis interdicit. 2. In hoc praecipue ipsa differt a iudiciali suspensione, quod adliibetur tamquam extraordinai him remedium in poenam admissi criminis; ideoque ad eiusdem imposi- tionem non requiruntur nee formae iudiciales, nee canoni- cae admonitiones. Satis erit proinde, si Praelatus hanc poenam infligens, simplici utatur praecepto, quo declaret se suspensionem ab exercitio sacrorum officiorum vel eccle- siasticorum munium indicere. 3. Huiusmodi praeceptum semper in scriptisintimandum est, die et mense designate; ideoque autem fieri debet vel ab ipso Ordinario, vel ab alia persona de expresso ipsius mandate. In eadem tamen intimatione expiimendum est, quod eiusmodi punitio irrogatur in vim Tridentini decreti, Sess. xiv. c. i. de reform., ex informata conscientia vel ex causis ipsi Ordinario notis. 4. Debent insuper exprimi partes exercitii ordinis vel officii, ad quas extenditur suspensio; quod si suspensus in- terdictus sit ab officio, cui alter in locum ipsius substituen- dus est, ut puta Oeconomus in cura animarum, tune substi- tutus mercedem percipiet ex fructibus beneficii in ea por- tione, quae iuxta prudens Ordinarii arbitrium taxabitur. At si suspensus in hac taxatione se gravatum senserit, moderationem provocare poterit apud curiam Archiepisco- palem, aut etiam apud Sedem Apostolicam. 5. Exprimi item debet tempus durationis eiusdem poenae. Abstineant tamen Ordinarii ab ipsa infligenda in perpe- tuum. Quod si ob graviores causas Ordinarius censuerit cam imponere non ad tempus determinatum, sed ad suum beneplacitum, tune ipsa habetur pro temporanea, ideoque cessabit cum iurisdictione Ordinarii suspensionem infli- gentis. 6. Suspension! ex informata conscientia iustam ac legiti- mam causam praebet crimen, seu culpa a suspense com- Appendix. 233 missa. Haec autem debet esse occulta, et ita gravis, ut talem promereatur punitionem. 7. Ad hoc autem ut sit occulta requiritur, ut neque in iudicium, neque in rumores vulgi deducta sit, neque insuper eiusmodi numeroet qualitati personarum cognita sit, unde delictum censeri debeat notorium. 8. Verum tenet etiam suspensio si ex pluribus delictis aliquod fuerit notum in vulgus; aut si crimen, quod ante suspensionem fuerat occultum, deinceps post ipsam fuerit ab aliis evulgatum. 9. Prudenti arbitrio Praelatorum relinquitur suspensi- onis causam, seu ipsam culpam delinquenti aut patefacere, aut reticere. Partes alioquin pastoralis sollicitudinis et charitatis eorumdem erunt, ut si istiusmodi poenam sus- penso manifestare censuerint, ipsa ex paternis, quas inter- ponent, moniiionibus, nedum ad expiationem culpae, verum etiam ad emendationem delinquents, et ad occasionem peccandi eliminandam inserviat. 10. Meminerint vero Praesules, quod si contra decretum, quo irrogata fuit suspensio, promoveatur recursus ad Apostolicam Sedem, tune apud ipsam comprobari debet culpa, quae eidem praebuit occasionem. Consultum idcirco erit, ut antequam haec poena infligatur, probationes illius, quamtumvis extraiudicialiter et secreto colligantur; ita ut eo ipso, quod cum omni certiudine culoabilitatis in punitione inferenda proceditur, si deinceps causa exami- nanda est apud Apostolicam Sedem, probationes criminis in eas difficultates baud impingant, quae ut plurimum oc- currunt in istiusmodi iudiciis. 11. A decreto suspensionis ex informata conscientia non datur appellatio ad tribunal superioris ordinis. Postquam idcirco clericus intimationem suspensionis habuerit, si ni- hilominus appellationem interponere, eiusque obtentu in altari ministrare, seu quovis modo suum ordinem solemni- ter exercere praesumat, statim incidit in irregularitatem. 12. Semper tamen patet aditus ad Apostolicam Sedem; et in casu quo clericus absque sufficient! ac rationabili 234 Appendix. causa se hac poena multatum reputet, recurrere poterit ad Sum mum Pontificem. Interim tumen in vigore permanet decretum suspensionis usque dum ab ipso Pontifice, vel a S. Congregatione, quae de recursu iudicare debet, nou fuerit rescissum aut etiam moderatum. 13. Ceterum ex quo istiusmodi poena est remedium omnino extraordinarium, quod praesertim ad expiationem criminum absque formis iudiciariis adhibetur, prae oculis habeant Praelati id quod sapientissime admonet Summus Pontifex s. m. Benedictus XIV. in suo tractatu de Synodo Dioeces. 1. xii. c. 8. //. 6., quod nimirum reprehensibilis foret Episcopus, si in sua synodo declararet, se deinceps ex pri- vata tantum scientia cum poena suspensionis a divinis animadversurum in clericos, quos graviter deliquisse compererit, quamvis eorum delictum non possit in foro externo concludenter probari, aut illud non expediat in aliorum notitiam deducere. Romae ex Aedibus S. Congregationis de Prop. Fide die 20 Octobris 1884. DECRETUM S. CONGREGATIONIS EPISCOPORUM ET REGU- LARIUM PRO CAUSIS CR1MINALIBUS.* Non ita pridem a S. Congregatione negotiis et consulta- tionibus Episcoporum et Regularium praeposita nonnullae regulae praescriptae fuerunt pro recta et expedita defini- tione causarum criminalium, quae a Curiis Episcoporum vel Ordinariorum ad eamdem S. Congregationem in gradu ap- pellationis deferuntur. 1 Quas quidem praescriptiones, 1 The procedure before the S. Congregation varies according as the issue is more or less important. Ordinary and unimportant cases are brought before the full meeting (in plena] by the secretary, who states the two sides, pro and con, of the case. But when the matter is of great impor- * Cfr. on p. 240 the Dispositio S. C. Epp., 26 Mch. 1886. Appendix. 235 quoniam impedimenta sublata sunt, qn?e aliqua ex parte earum executioni interposha fuerant, visum est Eminen- tissimis Patribus in Conventu liabito XV. Calend. Januar. MDCCCXXXV. uberius explicare, et cum assensu et ap- probatione S. D. N. Oregon i XVI. iterum prormilgare, ut ab omnibus, ad quos pertinent, accuratissime serventur. Sunt autem quae sequuntur. i. Reis a Curiis Episcopalibus criminali judicio damnatis spatium dierum decem conceditur, quo ad S. Congrega- tionem Episcoporum et Regularium appellare possint. ii. Decem dies numerari incipient non a die, quo senten- tia lata est, sed a die, quo reo vel ejus defensori per cur- sorem denuntiata fuit. in. Eo tempore elapso, quin reus vel ejus defensor ap- pellaverit, latam a se sententiam Episcopus exequetur. iv. Interposita intra decem dies appellatione Curia Epis- copalis acta autographa totius Causae ad S. Congrega- tionem continuo transmittat, nempe: 1. Processum ipsum in Curia confectum. 2. Ejus restrictum, seu compendiariam expositionem eonim, quae ex eodem processu emergunL 3. Defensiones pro reo exhibitas. 4. Denique sententiam latam. v. Ipsa Curia reo, ejusque defensori denuntiabit, appel- lationem coram eadem S. Congregatione prosequendam esse. vi. Si nemo compareat aut si appellationis acta negli- tance and requires special investigation, one of the eminent members of the S. C. is appointed referee (juJex rflalor), who may associate with himself one or more of the approved consultors. Gregory XVI. on the 5 Sept. 1834 granted the following request of the S. C., viz.: Emintntissimi Patres . . . rati sunt rem utilem fore, si exemplo aliqnarum Congrcga- tionum majorum nonnulli consultores deligerentur, quorum esset super dubiis seu quaestionibns, de quibus rogarentur, sententiam stiam expo- nere. firmis tamen manentibus antiquis institutionibus, ita ut de nrgctiis alicujus ponderis, deque consultationihus omnibus in pleno Auditorio semper deliberetur et statuatur designato aliquo ex Eminemissimis Pa- tribus " gui videat et rferat." 236 Appendix. genter vel malitiose protrahantur, 1 congruens tempus a S. Congregatione praefinietur, quo inutiliter elapso, causa de- serta censeatur, et sententia Curiae Episcopalis execution! mandetur. vii. Reo aut illi, qui ejus defensionem suscepit, traden- dus est restrictus processus,* qui a Judice relatore confici- tur. vin. Allegationes seu defensiones Eminentissimis Patri- busdistribuendas typis non committantur, nisi Judex relator imprimendi veniam dederit. ix. Causa definietur statuta die ab Eminentissimis Pa- tribus in pleno Auditorio congregatis. x. Eidem Congregationi Procurator Generalis Fisci et Judex relator intererunt. xi. Judex relator de toto statu causae ad Eminentissimos Patres referet, et Procurator Generalis Fisci stabit pro Curia Episcopali, 3 suasque conclusiones explanabit. XII. Post haec Eminentissimi Patres judicium proferent, 1 No definite term is mentioned when the appellant must appear. He is supposed to do it within reasonable time, otherwise a peremptory term will be given him by the S. C., which is rather lenient in this matter, and does sometimes grant several terms before it will throw the appeal out from the docket. Droste thinks that the term of twenty days men- tioned in the Circular of 1851 apply only to cases brought from the epis- copal courts of the Papal States for which the S. C. acts as first appellate court. However, the Instr. 1880, art. 36, and the Decree 1886, art. 6, seem to extend the provisions of 1851 to all episcopal courts to which the Instruction itself was sent; hence the same rules apply in this regard to all appeals whether they go to the metropolitan or to the S. C. Epp. " Cfr. Dispositio 1886. arts. 1-4. Appellant is not furnished with the acts of the former trial, but only with an abstract of them, which the Eminent Referee must supply. This is quite sufficient, as appellant may have got the full acts copied by the chancellor, or by his counsel. These he may now send to his attorney at the tribunal of the S. C. 8 The office of fiscal procurator-general was created by Benedict XIII., a. 1724. This officer was to act as attorney for the bishops in any case? brought by or against them to the S. C. Epp. The Decree 1886 in arts 3, 4 evidently introduces a similar procedure in scriptis before the S. C. as the Cum Magn. orders for the lower courts in arts. 32, 33. Appendix. 237 sententiam Curiae Episcopalis aut confirmando, aut infir- mando, aut etiam reformando. xin. Prolata sententia una cum omnibus Actis causae ad eamdem Curiam Episcopalem remittitur, ut earn exe- quatur. xiv. Revisio, seu recognitio rei judicatae non conceditur, nisi ejus tribuendae potestas a Sanctitate Sua facta fuerit, et subsint gravissimae causae, super quibus cognitio, et judicium ad plenam Congregationem pertinet. xv. Sciant denique Curiae Episcopales per novissimas leges, quae ad investiganda, et coercenda crimina pro Tri- bunalibus laicis promulgatae sunt, nihil detractum esse de formis, et regulis Canonicis, quas proinde sequi omnino debent non modo in conficiendo processu, ad quern spec- tant haec verba Edicti diei 5. Novembris 1831 = Nihil innovetur, quantum ad judicia ecclesiastica pertinet = verum etiam in poenis decernendis, quemadmodum in ap- pendice ejusdem Edicti ita cautum est = Tribunalia juris- dictionis mixtae Clericos et Personas Ecclesiasticas iis poenis mulctabunt, quas secundum Canones et Consti- tutiones Apostolicas Tribunal Ecclesiasticum iisdem irro- garet =. J. A. Card. Sala. Praefectus. J. Patriarcha Constantinopolitanus, Secrelarius. EXTRACT FROM THE CIRCULAR OF THE S. CONGREGATION OF BISHOPS AND REGULARS, i Aug. 1851.* . . . Finally, to hasten the disposal of cases laid on appeal before this S. Congregation, Your Lordship will instruct the members of your court that if within ten days after be- ing informed of the sentence the defendant appeal to this *The original Italian text of the full circular, with a Latin translation, is given by the Acta S. S., xv. 547 ff. 238 Appendix, S. C., and his appeal be admitted, and this being made known to the Ordinary with the usual order to prosecute the appeal within the peremptory term of twenty days, those officers of the Curia must by formal message (per atto cursorile) inform appellant that if he intends to prose- cute the appeal, he must within the peremptory term of twenty days appoint in this city an advocate or attorney accredited in the Roman court; and must moreover assure himself that the advocate chosen by him do actually ac- cept the charge and, upon depositing the necessary sum, demand the acts from the judge-referee (giudice relatore}. If appellant allow this term to lapse without avail, it will be taken for granted that lie has waived the benefit of the appeal, which will consequently be declared off by this S. C. On the other hand, when the prosecutor or representative of the fiscal makes an appeal which is admitted by the S. C., and notice thereof given to the bishop, the appellee also, being now a party to the appeal, must be informed of the appeal taken by the former and admitted by the S. C.; he is at the same time notified that if he do not within the peremptory term of twenty days appoint his defender from among the advocates or attorneys of the Roman Curia, it will be presumed that he declines to take part in the pro- ceedings, and on motion of the prosecutor or the attorney of the fiscal the proceedings will be carried through to judgment and no other appeal allowed. The fame notice is given to the fiscal procurator or his attorney when he takes an appeal to the S. C., as is given to the condemned. The notifications, with the proper certificate of the court apparitor, must be laid before the Congregation. In conclusion it should be remarked that the notification of the sentence and of the appeal being certified to by the court messenger must be made part of the records or acts, which, in virtue of art. 4 of the decree 18 Dec. 1835, are immediately to be supplied with a chronological index, and sent to this S. C., together with an abstract of the proceed- ings, with the defence, and an exact copy of the sentence, Appendix. 239 the original of which remains with the episcopal court, to be kept in the criminal registry of the chancery. . . . Fr. A. F. Cardinal Orioli, Prefect. D. Patriarch of Constantinople, Sec'y. DISPOSITIO PROVISORIA pro actis appellationis in causis criminalibus. Sacra haec C. Epp. et RR. pro certo habens quod modi procedendi oeconomice, ordinati per Instructionem die! n Junii 1880 pro curiis ecclesiasticis in causis criminalibus quae clericos respiciunt, observari quoque debeant in actis appellationis quae apud ipsum Sacrum Consessum inter- ponitur a sententiis ipsarum curiarum, opportunam censuit pubiicationem sequentis dispositionis: ' i. Defensor rei vel reorum eligendus inter advocates a sacris Congregationibus approbates, praevio deposito de more, prudenter notitiam sumit de restrictu et processu coram Judice relatore. ii. Quatenus vero ratione causae expedire censeat Emus. Dominus Card. Praefectus injungitur defensori servare secretum cum jurisjurandi vinculo. in. Exhibitis defensionibus in scriptis, eaedem quatenus Emus. Dom. Card. Praefectus aeque opportunum censeat, communicari queunt procuratori fiscali curiae a qua, ut ille si necesse esse crediderit, in scriptis respondeat. iv. De responso procuratoris fiscalis defensor sub debita cautela cognitionem sumere potest coram Judice relatore, ut replicare ultimo valeat pariter in scriptis. v. Omnino autem excluditur defensoris et procuratoris fisci praesentia in comitiis Cardinalium quando causa re- solvenda proponitur. 1 See the Italian original in Acta S. S., xix. 296; Nouvelle Revue ThM., xix., No. 2, p. 132, with commentary. 240 Appendix. vi. Excepta dispositione praecedentium articulorum, in sua plena vi quoad omnes partes ea omnia permanent quae S. C. constituit per decretum diei 18 Decembris 1835, P er literas circulares diei i Augusti 1851, et per ordinationem diei 6 Junii 1847.* J5x aud. SSmi. diei 26 Martii 1886. SSmus. Dnus. Noster LEO div. prov. PP. XIII. audita relatione praesentis dispositionis ab infrascripto S. C. Epp. et RR. Secretario, earn in omnibus approbare et con- firmare dignatus est. Romae die et anno quibus supra. J. Card. FERRIERI, Praef. Fr. ANT. M. Archp. Palmyren., Secret. Ex RESPONSO S. C. DE PROP. FIDE. 13 Julii 1886. . . . Declarat S. Congregatio nunquam sese fore admis- suram recursum vel appellatioriem sacerdotum, qui ad judices laicos trahere ausi fuerint vel clericum sine venia Ordinarii, vel Episcopum sive venia Apostolicae Sedis, sive in causa ecclesiastica sive non, nisi prius recursum ad civile tribunal interpositum deseruerint. Episcopi vero juxta declarationem capitis Cogentes a Suprema Inquisitionis Congregatione, die 28 Januarii 1886, editam, possunt in praedictum clericum animadvertere poenis et censuris ferendae sententiae, maxime suspensione a divinis, servatis tamen servandis. et pro gravitate causae, si id expedire in Domino judicaverint. . . . J. Card. SIMEONI, Praef. D. Archp. Tyrens., Secret. 1 See ap. Acta S S., XIX. 298 ; Bizzarti, p. 180. Appendix. 241 DE APPELLATIONIBUS et Inhibitionibus concedendis vel denegandis. Benedictus Episcopus Servus Servorum Dei. Ad perpetuam rei memoriam. Ad militantis Ecclesiae regimen nullo meritorum Nos- trorum suffragio, sed imperscrutabilis consilii altitudine evocati, inter graves curas quas assidue pro Nostro munere sustinemus, postrema ilia non est in quam totis viribus Nobis incumbendum esse ducimus, ut graves nimium, diuturnae, nulloque unquam tempore intermissae Epis- coporum aliorumque ordinariam jurisdictionem habentium querelae adversus majora tribunalia atque ilia etiam Nos- trae Romanae Curiae, propositae tandem compescantur. i. Intimo siquidem animi Nostii moerore, cum in mi- noribus adhuc essemus, jamdiu intelleximus plerosque locorum Ordinaries conqueri, sensim abusum irrepsisse, quod ad malitiosam petentium suggestionem a Patriarchis, Metropolitan is, Sanctae Sedis a latere Legatis, et diversis dictae Romanae Curiae judicibus inhibitiones sine delectu causae et rei de qua igitur examine, passim concedantur. Etquamvis in more positum sit dictas inhibitiones indebile expeditas pro causae mentis revocari et aboleri; remedium tamen inflicto vulneri non satis esse dicunt, cum interea oporteat Episcopos aliosque inferiores judices in ipso causarum et judiciorum cursu otiosos immorari, jus suum judicialiter asserere et vindicare, et ad continendos in officio populos gravia saepe incommoda et dispendia subire. 2. E contrario Nobis quoque, dum etiam in minoribus essemus, superiorum judicum responsiones audire contigit asserentium, memoratas querelas inanes esse nee ulli in- nixas fundamento, utpote ex hac unica re causam et originem habentes, quod inferioribus grave est obedien- tiae ac subjectionis iugum erga majora tribunalia, ipsisque 242 Appendix. nimis displicet sibi subditis appellationis beneficio suc- curri. 3. Porro cum facile haec dissidia componi et succre- scentia litium semina avelli possint ; si quae a Sacra Tridentina Synodo, ab Apostolicis constitutionibus, et Congregationum decretis provide sancita sunt, debitae execution! mandentur: Nos idcirco ad conservandam Ecclesiae disciplinam restituendamque tribunalibus for- mam eisdem canonicis legibus consentaneam, pro credito Nobis Apostolicae servitutis Officio opportune duximus consulendum. 4. Inliaerentes itaque decretis ejusdem Sacri Concilii, necnon Congregationis Episcoporum, et Regularium, jussu et approbatione rec. mem. dementis PP. VIII. praede- cessoris Nostri alias editis die 16 Octobris 1600; ' itemque aliis Congregationis particulars, jussu pariter et approba- tione fel. rec. Urbani PP. VIII. similiter praedecessoris Nostri promulgatis die 5 Septembris 1626 a eorumque de- clarationibus nuper superadditis a piae mem. Benedicto XIII. etiam praedecessore Nostro in appendice Concilii Romani, 3 aliisque Apostolicis constitutionibus hac de re alias editis et innovatis, et praesertim constitution! piae mem. Gregorii XV., quae incipit: Inscrutabili* sub datum Romae apud Sanctum Petrum anno Incarnationis Domi- nicae 1622 nonis Februarii : 5. Districte praecipimus et mandamus, ne deinceps ab executione decretorum dicti S. Concilii Tridentini, in om- nibus illis causis et negotiis, in quibus executio hujusmodi Episcopis et locorum Ordinariis, etiam uti Sedis Apostoli- cae Delegatis, ab eodem Sacro Concilio vel dictis Aposto- licis Constitutionibus appellatione vel inhibitione quacum- que postposita commissa est, appellatio aliqua in tribu- nalibus praedictis recipiatur, vel inhibitiones, citationes generates vel speciales, cum commissione inserta, monitoria et alia hujusmodi, per quae dictorum Decretorum executio 1 In Collect. Lac. CC. Rec. I. 427. * Ibid. p. 438. 3 Ibid. p. 529. 4 Apud Kichter ct Sckulte, Cone. Trid. p. 539. Appendix. 243 retardetur aut Processus ad ulteriora in eadem executione suspendatur aut impediatur, quoquo modo concedantur. 6. Itaque a quibuscumque mandatis, prohibitionibus, provisionibus et statutis lam in visitatione quam extra, pro divino cultu consei vando et augendo et praesertim circa ea quae observanda et evitandasunt in celebratione Missae, aut alio quovis modo respiciunt executionem decreti S. Concilii sess. 21. de Ref. c. 8, et sess. 22. in decret. de observ. et evit. in cclebrat. Missae. 7. Item a decretis cogentibus clericos tarn saeculares, quam regulares, etiam monachos, et exemptos, ad publicas processiones, servata tamen forma constitutionis san. mem. Pii V., quae incipit: Etsi Mendicaiitium : prout etiam a de- cretis et provisionibus super praecedentia inter personas ecclesiasticas tam saeculares quam regulares in eisdem processionibus, vel assotiatione defunctorum, delatione um- bellae, et hujusmodi : necnon super observatione censu- rarum, etiam episcopalium, et festorum dioecesis, juxta dis- positionem ejusdem Sacri Concilii sess. 25. de Regular, cc. I2 > X 3- , 8. Item in omnibus iis quae ad curam animarum et Sacramentorum administrationem quoquo modo pertinent, et praesertim adversus monitiones, censuras aut alias pro- visiones, per quas parochi aut alii curam animarum exer- centes diebus saltern dominicis et festis solemnibus plebes sibi commissas salutaribus verbis pascere compelluntur docendo ea quae ad salutem necessaria sunt, iuxta decre- tum Sacri Concilii sess. 5. de Ref. c. 2. 9. Item adversus deputationem vicariorum etiam per- petuorum cum assignatione congruae, per quos cura ani- marum exerceatur, quoties plura beneficia curata ex dis- pensatione apostolica ab aliquo obtineantur; vel quoties eadem beneficia curata cathedralibus, collegiatis, seu aliis ecclesiis, vel monasteriis, beneficiis, seu collegiis, aut piis locis quibuscumque perpetuo unita et annexa reperiuntur; juxta praescriptum dicti Sacri Concilii sess. 7. de Ref. cc. 5, 7, et juxta constitutionem san. mem. Pii V. quae incipit : Ad extqncndum. 244 Appendix. 10. Item adversus visitationem beneficiorum curatorum ut supra perpetuo unitorum, necnon quarumcumque eccle- siarum quomodolibet exemptarum, prout etiam adversus decreta et provisiones ab Ordinario capiendas, ut quae in eis reparatione indigent reparentur, et cura animarum, si qua illis imminet, aliisque debitis obsequiis minime defrau- dentur, juxta dispositionem Sacri Concilii eadem sess. 7 de Ref. c. 8, et sess. 21. c. 7. n. Item a decretis seu mandatis per quae Episcopi, etiam uti Apostolicae Sedis Delegati, in ecclesiis parochi- alibus, aut baptismalibus, in quibus populus ita numerosus est ut unus rector non possit sufficere ecclesiasticis sacra- mentis ministrandis et cultui divino peragendo, cogant rectores, vel alios ad quos pertinet, sibi tot sacerdotes ad hoc munus adjungere quot sufficiant ad sacramenta exhi- benda, et cultum divinum celebrandum: aut etiam invitis rectoribus procedant ad constitutionem novarum parochi- arum cum assignatione competentis portionis, ubi ob locorum distantiam sive difficultatem parochiani sine magno incommodo ad percipienda sacramenta et divina officia audienda accedere non possunt, vel denique propter pauper- tatem et in caeteris casibus a jure permissis deveniant ad uniones perpetuas aliorum beneficiorum simplicium, non tamen regularium, iuxta dispositionem Sacri Concilii sess. 21. de Ref. cc. 4, 5, et sess. 24 similiter de Ref. c. 13. 12. Item a deputatione coadjutoruma ut vicariorum pro tern pore, vel aliis provisionibus ab Episcopo capiendis, etiam tamquam Apostolicae Sedis Delegato, quando illite- rati et imperiti parochialium ecclesiarum rectores sacris minus apti sunt officiis, cum assignatione partis fructuum pro 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, iuxta praescriptum ejusdem Concilii d. sess. 21. de Ref. c. 6. 13. Item a translatione beneficiorum simplicium, etiam jurispatronatus, ex ecclesiis quae vetustate vel alias collap- Appendix. 245 sae sint et ob eorum ipopiatn nequeant instaurari, vocatis iis quorum interest, in matrices aut alias ecclesias, cum omnibus emolumentis et oneribus: prout etiam a decretis cogentibus patronos, rectores, beneficiatos, aut parochianos sive populum, ad refectionem et instaurationem ecclesiarum parochialium servata forma Sacri Concilii d.sess. 21. c. 7. 14. Item a censuris, sequestratione et subtractione fructuum, aut aliis quibuscumque provisionibus, pro cogendis ad residentiam parochis caeterisque omnibus quibus cura animarum incumbit, juxta decretum ejusdem Sacri Concilii sess. 23. de Ref. c. i. 15. Item a denegatione, revocatione, suspensione, vel restrictione et limitatione facultatis audiendi confessiones, respectu eorum qui parochiale beneficium non obtinent, etiam si fuerint regulares, pro excipiendis confessionibus saecularium, juxta ordinationem Sacri Concilii sess. 23. c. 15, et Praedecessorum Nostrorum constitutiones, ac prae- cipue illam fel. rec. Clementis X., quae incipit: Supcrna. 16. Item in illiscivitatibus aut locis, ubivel parochiales ecclesiae certos non habent fines nee earum rectores pro- prium populum quern regant, sed promiscue petentibus Sacramenta administrant, vel etiam nullae sunt parochiales, a divisione sen distinctione parochiarum earumque ordina- tione sive institutione in titulum perpetuum, iuxfi decretum Sacri Concilii sess. 24. de Ref. c. 13. 17. Item a deputatione vicarii vel oeconomi cum assig- natione congruae pro tempore quo vacat ecclesia pa- rochialis: prout etiam ab indictione concursus, relalione examinatorum, necnon praeelectione et provisione Episcopi in eodem concursu iuxta definitionem Sacri Concilii eadem sess. 24. de Ref. c. 1 8. 18. Item a mandatis seu decretis inhibentibus prae- dicationem vel publicas lectiones, aut coercentibus vel punientibus quoscumque, etiam exemptos tarn saeculares quam regulares, qui in alienis ecclesiis quae suorum Ordi- num non sunt absque Episcopi licentia, et in ecclesiis suis aut suorum Ordinum non petita illius benedictione aut 246 Appendix. ipso contradicente praedicare praesumpserint; iuxta decre- tum Sacri Concilii sess. 5. de Ref. c. 2., et sess. 24. similiter de Ref. c. 4., et constitutionem piae mem. Gregorii XV., quae incipit : Inscrntabili, fin., una cum declarationibus con- tentis in constit. Clementis PP. X., quae incipit: Super mi. 19. Et generaliter in omnibus iis quae pertinent ad curam animarum et re c tarn Sacramentorum administra- tionem, adversus visitationem, correctionem, coercitionem et quascumque alias provisiones Episcopi dioecesani, etiam quoad exemptos sive saeculares sive regulares, juxta laudatam consiitutionem Gregorii XV., qnae incipit: ///- scrutabili. 20. Item adversus quascumque provisiones et decreta pro conservanda aut restituenda clausura sanctimonialium, aut pro correctione sen punitioue eorum, qui circa personas intra monasteria degenles aut circa clausuram vel circa bo- norum administrationem deliquerint. Prout etiam ab ex- amine pro approbatione vel reprobatione confessariorum sive regularium sive saecularium, quomodocumque ex- emptorum, et tam ordinariorum quam extraordinariorum, pro excipiendis confessionibus monialium etiam regulari- bus subjectarum. Itidemque a decretis vel aliis quibus- cumque provisionibus cogentibus administratores sive saeculares sive regulares quomodolibet exemptos ad red- dendam singulis annis rationem bonorum ad monasteria sanctimonialium hujusmodi pertinentium : ac demum a quibuscumque decretis super amotione capellanorum, sacristarum, et aliorum quorumcumque officialium et mini- strorum, tam saecularium quam regularium, ipsis moniali- bus vel earum ecclesiis iuservieniium, juxta dispositionem Sacri Concilii sess. 25. tie Regular, ct Monial. cc. 5, 9, 10. scr- vata tamen quoad regulares et exemptos forma praedictae constitutionis rcc. mem. Gregorii XV., quae incipit : Jn- scrutabili. 21. Item adversus pastoralem visitationem dioecesis, et praesertim monasteriorum, commendatorum, abba- tiarum, prioratuum, et praeposiiurarum, in quibus non viget Appendix. 247 Tegularis observantia, necnon beneficiorum tarn curatorum quam non curatorum saecularium et regularium qualiter- cumque commendatorum, etiam exemptorum: prout etiam ab executione eorum quae in ipsa visitatione mandata. de- creta aut judicata fuerint. Necnon similiter a quibus- cumque decretis, provisionibus, etiam extra visitationem, pro conservatione vel reparatione ecclesiasticae disciplinae, quoad vitam, mores et lionestatem quorumcumque cleri- corum, luxum, commessationes, choreas, lusus, crimina et saecularia negotia fugienda atque evitanda; juxta plura decreta dicti Sacri Concilii, et praesertim sess. 6. de Ref. c. 4; sess. 13. c. i; sess. 14. c. 4; sess. 21. cc. 8; sess. 22. cc. i, 8; ft sess. 24. c. 10. ad formam tamen decretorum S. C. Episco porum de mandate san. mem. Clementis VIII. editoriim anno 1600. 22. Item a decretis cogentibus praesentatos, electos, vel nominates a quibusvis ecclesiasticis personis, etiam nostris et Sedis Apostolicae nuntiis, ad quaevis ecclesiastica bene- ficia, ad se subjiciendum examini Ordinarii, antequam in- stistuantur, confirmentur vel admittantur, quemadmodum cavetur sess. 7. de Ref. c. 13. 23. Item a denegatione sacrorum ordinum vel ad- scensus ad alios majores; prout etiam adversus suspensio- nem ab ordinibus jam susceptis ob crimen occultum, sive ex informata conscientia, juxta dispositionem Sacri Concilii sess. 14. de Ref. cc. i., 3.; et sess. 21. c. i.; et sess. 23. c. 16. 24. Item a praefixione termini intra qnem regularis Epi- scopo 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 c^rtior fieri, iuxta decretum Sacri Concilii sess. 25. de Rfgu lai . c. 14., et Const, fel. recor. Clementis PP. VIII., quae incipit: Suscepti muneris ; necnon adversus punitionem et correctionem eonimdem regularium, qui circa personas in- tra septa degentas aut circa clausuram ipsam deliquerint ; juxta praedictam constitutionem Gregorii XV. quae incipit: Inscrutabili. 248 Appendix. 25. Item a censuris aut aliis provisionibus contra concu- binarios, et praesertim clericos etiam retinentes domi aut extra mulieres suspectas, juxta praescriptum Sacri Concilii sess. 24. de Ref. Matrim. c, 8.; et sess. 26. de Ref. c. 14. 26. Item adversus privationem privilegii fori, et alias provisiones contra clericos non incendentes in habitu et tonsura, et in aliis casibus aSacro Concilio praescriptis sess. 14. de Ref. c. 6.; et sess. 23. similiter c. 6. 27. Prout etiam ab examine, approbatione, vel repro- batione patrimonii sacri, pensionis ecclesiasticae, aut bene- ficii, quoad clericos promovendos ad sacros ordines; juxta dispositionem ejusdem Concilii sess. 21. deRef. c. 2. 28. Item adversus convocationem Capituli, quam faciat Episcopus ad aliquid deliberandum et juxta vota ipsorum capitularium concludendum, quoties de re ad suum vel suo- rum commodum spectante non agatur, juxta decretum Sacri Concilii sess. 25. de Ref. c. 6. 29. Item a mandatis seu decretis super conversione tertiae partis fructuum et quorumcumque proventuum et obventionum, tam dignitatum quam canonicatuum, persona- tuum, portionum, et officiorum in distributiones quotidianas, earumque divisiones inter dignitates obtinentes et caeteros divinis interessentes in ecclesiis tam cathedralibus quam collegiatis in quibus nullae sunt distributiones hujusmodi quotidianae, vel ita tenues ut verisimiliter negligantur; juxta constitutionem ejusdem Concilii sess. 21. deRef. c. 3., et sess. 22. similiter de Ref. c. 3 30. Item adversus exercitium facultatum Episcopis competentium super executione omnium piarum disposi- tionum, tam in ultima voluntate quam inter vivos, in casibus a Jure concessis, juxta dispositionem Sacri Concilii sess. 22. de Ref. c. 8. 31. Item a visitatione hospitalium, collegiorum quo- rumcumque, et confraternitatum laicorum, eleemosynarum, montium pietatis sive charitatis,et omnium piorum locorum quomodocumque nuncupatorum, etiamsi eorum cura ad laicos pertineat aut exemptionis privilegio sint munita: ac Appendix. 249 denique a cognitione et executiorie eorum omnium, quae ad Dei cultum aut animarum salutem, seu pauperes susten- tandos instituta sunt, iuxta dictum decretum Sacri Concilii sess. 22. de Ref. c. 8. 32. Item a decretis seu mandatis cogentibus adminis- tratores tarn ecclesiasticos quam laicos, etiam exemptos, fabricae cujusvis ecclesiae etiam cathedralis, hospitalis, con- fraternitatis, eleemosynae, mentis pietatis, et quorumcum- que piorum locorum, ad reddendam singulis annis ipsi Ordinario rationem suae administrationis, nisi aliud in insti- tutione et ordinatione talis ecclesiae seu fabricae expresse cautum fuerit; iuxta decreta Sacri Concilii sess. 7 de Ref. c. 15.; sess. 22. c. 9., et sess. 25. c. 8. 33. Item a decretis compellentibus notaries etiam Apos- tolica, Imperial! aut Regia auctoritate creates, et scribentes in causis ecclesiasticis vel spiritualibus, ad se subiiciendum examini, eorumque remotionevel suspensione in casu delicti vel imperitiae; juxta praescriptum Sacri Concilii dicta sess. 22. c. 10. 34. Item ab erectione seminarii, et taxatione quarum- cumque dignitatum, personatuum, officiorum, praebenda- rum, portionnm, abbatiarum, et prioratuum cujuscumque Ordinis, etiam regularis, hospitalium, quae dantur in titu- sumvel administrationem, et beneficiorum quorumcumque, etiam regularium, etiam jurispatronatus, etiam exemptorum, etiam nnllius dioecesis, vel aliis ecclesiis, monasteriis, hospi- talibus, et aliis quibusvis locis piis, etiam exemptis annexo- rum,ac quorumcumque aliorum ecclesiasticorum redituum seu proventuum ad fabricas ecclesiarum, confraternitates et monasteria omnia, non tamen mendicantium, pertinentium, necnon decimarum quacumque ratione ad laicos atque etiam milites cujuscumque militiae aut ordinis, Hierosolymitano excepto, spectantium, pro ejusdem seminarii manutentione: prout etiam ab unione et applicatione aliquot beneficiorum simplicium; necnon a decretis cogentibus eos. qui scholas- terias obtinent, vel quibus lectionis vel doctrinae munusest annexum ad docendum per se ipsos vel idoneos substitutes; 250 Appendix. et generaliter a mandatis et provisionibus quae quoquo modo respiciunt curam, directioneni et administrationem seminarii, plenamque executionem decreti editi a Sacro Concilio super collegio puerorum in singulis cathedralibus instituendo, sess, 12. de Ref. c. 18. 35. Item a mandatis, seu decretis cogentibus oeco- nomos, vicarios capitulares, ad reddendam rationem ad- ministrationis per eos gestae sede episcopal! vacante, juxta praescriptum Sacri Concilii sess. 24. de Ref. c. 16. 36. Item a comminatione excommunicationis a Jure latae, et a sententia excommunicationis latae ab homine, suspensionis, et interdict!, nisi appellatio fuerit interposita ex capite nullitatis: et e converso a sententia absolutions ab eisdem censuris ecclesiasticis. 37. Et generaliter ab executione aliorum quorumcum- que decretorum dicti Sacri Concilii Tridentini, Episcopis, atque Ordinariis locorum demandata ab ipso Concilio, etin constitutione fel. rrc. Pii Papae IV., quae incipit: Benedic- tus Deus. 38. Volumus, praecipimus et mandamus, quod ab Ar- chiepiscopis, Patriarchis, sen Primatibus, aliisque judici- bus ecclesiasticis, etiam Nostris et Sedis Apostolicae mintiis, vel de latere Legatis, etiam Sanctae Romanae Ecclesiae Cardinalibus, atque etiam Camerae nostrae generali Au- ditore, Signaturae Justitiae Praefecto, caeterisque judicibns Romanae Curiae, eorumque vicariis, et officialibus, cita- tiones generales vel speciales cum commissione inserta, monitoria, et alia hujusmodi cum inhibitione, per quam executio decretorum, mandatorum et provisionum hujus- modi retardetur, suspendatur, ant impediatur minime concedantur, et quatenus nunc aut iniposterum concessa fuerint nullatenus inhibeant atque ab Episcopis aliisque locorum Ordinariis impune sperni possint; quacumque consuetudine etiam immemorabili, velquovis privilegio, aut stylo concedendi inhibitiones in causis praedictis, tametsi temporarias, penitus exclusis. Nos enim citationes, et monitoria aliter quam ut praefertur concessa vel impo- Appendix. 251 sterum concedenda, nulla atque irrita declaramus et pro nullis atque irritis haberi volumus et mandamus: Decer- nentes, quod adversus decreta, mandata, et provisiones ejusmodi, quas vel quae ab Episcopis aliisque locorum Ordinariis fieri vel capi contigerit in causis et negotiis praedictis, vel simplex dumtaxat et extrajudicialis recursus per viam supplicis libelli ad Nos et Successores Nosiios Romanos Pontifices, vel respective et juxta cmisarum naturam et qualitatem appellatio ad quos de jure, in solo devolutivo et sine retardatioue vel praejudicio legitimae executionis, recipi et admitti possit. 39- Quoniam vero in hisce ipsis negotiis et causis in quibus inhibitiones canonicam executionem impedientes aut suspendentes concedi non debent, dari possunt casus qui per ipsum Sacrum Concilium Tridentinum, vel juxta ejus montem per Apostolicas constitutiones et Sacrarum Con- gregatiouum declarationes aut commuuem Doctorum sen- tentiam, a praefata generali regula de non concedendis inhibitionibus eisque posthabendis excipiuntur, quique ut plurimum uon aliter quam prudenti judicis arbitrio secun- dum particulares facti circumstantias aestimari possunt: hiuc Nos, ne sub ejusmodi praetextu inhibitiones ut supra prohibitae vulgo et sine ullo delectu etiam in casibus non exceptis concedantur: Statuimus et mandamus, quod in dictis causis et negotiis superius expressis Metropolitan!, Patriarchae, Primatesaliique judices praedictiet praesertim Camerae nostrae generalis Auditor ejusque Locumtenentes, et Signaturae Justitiae Praefectus ejusque Auditor, ad quos in contingent! casu pro obtinenda inhibitione recursum haberi contigerit, etiamsi asseratur casum ilium a Sacro Concilio, vel Apostolicis constitutionibus quacumque de causa exceptum esse: nihilominus literas citatorias vel monitorias cum inhibitione hujusmodi non concedant, nisi prius ex facti ctrcumstantiis in supplici libello a parte re- currente clare ac dilucide exponendis et cum aliquo docu- mento semiplene saltern verificandis, eisdem sum marie apparuerit casum ilium esse de exceptis et propterea Epii> 252 Appendix. copo vel Ordinario loci inhibendum esse ne ad ulteriora procedat. Tuncenim et non alias, et postquam ipsi judices, quorum conscientiam hac in parte oneramus, super dicti supplici libello manu sua rescripserint quod inhibitio con- cedi potest, libellusque cum rescrrpto ejusmodi in actis productus fuerit diligenter ibidem custodiendus et asser- vandus, liceat eorum notariis sive actuariis literas citatorias cum dicta inhibitione expedire et parti recurrent! tradere, ita tamen ut in earum calce expresse adjiciatur sequens clausula: " Nos enim, attentis juribus et supplici libello Nobis praesentatis atque in actis exhibitis, sic, ut prefertur, inhibendum esse speciali rescripto mandavimus." Alias literae ejusmodi sine tali clausula nullam vim inhibendi habeant in casibus praedictis. 40. Et nihilominus si notarii sine dicto speciali rescrip- to super supplici libello aut sine productione illius in actis aut sine praedicta clausula citationes ullas aut monitoria cum inhibitione sub quocumque praetextu seu colore ex- pedire ac tradere praesumpserint, etiamsi illae aut ilia a judice subscripta fuerint, poenam infamiae et perpetuae in- habilitatis ad officium notarii in causis ecclesiasticis exer- cendum, et quoad illos Camerae Nostrae generalis Audi- toris, aut aliorum Romance Curiae judicum superius ex- pressorum etiam quinquaginta ducatorum auri de Camera, pro una medietate Camerae Nostrae Apostolicae et pro alia ipsi parti recurrent! et in causa interesse habeuti, sin minus alicui ex locis piis, arbitrio Nostro Nostrorumque successorum destinando, applicandam ipso facto incurrant. 41. Ad haec, similiter inhaerentes dispositioni ejusdem Sacri Concilii sess. 7. de Ref. c. 14., et sess. 14. c. 5., necnon etiam decreto piae mem. Benedicti XIII. hac in re promnl- gato inter ejus additiones ad decreta Urban! Papae VIII. in appendice ad Concilium Romanum, volumus et manda- mus quod cleric! saeculares aut regulares extra monaste- rium degentes quomodolibet exempti in civilibus causis mercedum et miserabilium personarum, etiamsi cerium judicem a Sede Apostolica deputatum in partibus habeant : Appendix. 253 in aliis vero, si ipsum judicem non habuerint, coram loco- rum Ordinariis tamquam ab ipsa Sede delegatis conveniri in prima instantia, et jure medio ad solvendum debitum cogi possint. 42. Quo vero ad -personas non exemptas, inliaerendo similiter dispositioni ejusdem Sacri Concilii stss. 13. de Ref. c. i., et sfss. 22. c. 7., et sess, 24. c. 20. necnon supradictis de- cretis generalibus Congregationis Episcoporum editisanno 1600 cum novissimis additioiiibus seu declarationibus piae mem. Benedicti XIII. in appendice Concilii Romani: Volu- mus, statuimus et mandamus quod causae omnes tarn civiles quam criminales ad forum ecclesiasticum pertinen- tes, exceptis privilegiatis quae ex eodem Concilio vel alias juxta canonicas sanctiones apud Nos et Sedem Apostolicam tractari possunt aut debent, coram Ordinariis locorum dumtaxat in prima Instantia cognoscantur, neque a Metro- politanis, Patriarchis, aut Primatibus, aliisque judicibus ecclesiasticis, etiam Nostris et Sedis Apostolicae nuntiis vel de latere legatis, aut Camerae Nostrae general! Audi- tore, et caeteris quibuslibet Curiae Nostrae judicibus ad se avocari vel aliis committi possint, nisi per viam legitimae appellationis et in casibus ut supra non prohibitis ad ip- sorum tribunalia deferantur. 43. Appellationes autem non recipiantur neque inhibt- tiones vigore illarum concedantur, nisi prius constiterit quod uedum per ligitimam personam et intra legitimatem- pora vere appellatum fuerit; sed etiam quod appellatum fuerit a sententia definitiva vel habetite vim definitivae, aut a gravamine quod per definitivam sententiam reparari non possit: idque per publica documenta quae realiter in actis exhibeantur; tune enim et non antea, judici ad quern ap- pellatum fuerit, in causa se intromittere, citationes et inhi- bitiones concedere liceat ; dutnmodo tamen concedantur cum inscriptione tenoris sententiae aut decreti definitivi seu vim definitivae habentis, vel damnum per definitivam irreparabile inferentis ; alias citationes, processus, et inde sequuta quaecumque sint ipso iure nulla atque impune sperni possint. 254 Appendix. 44. Quod si appellans asserat, sententiae aut decreti exemplum authenticum culpa judicis a quo, vel notariisive actuarii habere non posse, turn saltern copiam simplicem sententiae seu decreti in actis producere teneatur, ejusque tenori in literis inhibitorialibus inserto adjicienda erit, prout adjici volumus, et mandamus, in earum corpora ex- pressa conditio: "Quatenus tamen tenor ihsertus vere et in substantialibus cum original! concordet eodemque original! praesentes literae sint in tern pore posteriores, alioquin nullae et irritae censeantur ": Et si secus factum fuerit, inhibitiones aliter concessas nullatenus afficiant, et notarii sive actuarii qui illas expediverint incidant in poenas superius expressas. 45. Cum vero a gravamine quod per definitivam repa- rari nequit appellatam fuerit, si quidem res sit de carcera- tione jam secuta cum mandato verbal!, 'non aliter expediri poterunt inhibitiones vigore appellationis qtiam constito prius de ipsa carceratione per depositionem saltern duorum testium. Interim tamen appellans in eodem quo reperitur carcere permanebit, donee aliter servatis servandis judica- tum fuerit. Ubi vero agatur de censuris jam prolatis, vel de comminatione carcerationis, torturae, aut censurarum, observetur omnino dispositio dictorum decretorum Congre- gationis Episcoporum sub rec. mem. Clemente VIII., juxta additiones et declarations piae mem. Benedict! XIII. 46. Ulterius in praedictis causis in prima instantia pen- dentibus vel aliis superius expressis in quibus non admitti- tur appellatio in suspensive, citationes quae expediri solent coram Cardinal! Signaturae Justitiae Praefecto, vel ad ef- fectum comparendi vel pro adeundo eamdem Signaturam. lametsi ab ejus Auditore subscriptas, vim inhibendi nulla- tenus sortiri posse volumus casque ad praedictos alios dumtaxat effectus, comparendi scilicet vel adeundi Signa- turam, expeditas censeri, non autem ad retardandam exe- cutionem vel suspendendum processum ad ulteriora. 47. Denique quoad causas privilegiatas quae nt prae- fertur in prima etiam instantia apud Nos et Sedem Apos- Appendix. 255 tolicam tractari possunt, nihil ex antique mutandum esse volumus, sed munitoria in illis coram Camerae Noslrae general! Auditore vel ejus locumtenentibus, prout hactenus laudabilher observatum est, expediendu esse, juxta prae- scriptum Aposlolicarum constitutionum, et praesertim fel. rec. Pauli V. Praedecessoris Nqslri in constitutione, qu^ie incipit : Universii necnon praedictarum additionum e-t dc- clarationum Benedicti XIII., exceptis tamen moniipriis inti- mandis ultra monies, in quibus ad evilanda sca^dala et lili- gantium incommoda, volumus omnino renovari et observari stylum, qui olim in eo tribunali vigebai, id est, quod ad ejusmodi mouitoriorum expedillonem non aliter procedatur quam oblato prius ipsi Auditor! vel alter! ex ejus Locumte- nentibus coram quo monitorium expediendum erit supplici libello universam facti speciem clare et dilucide continente, et praevio etiam ejusdem judicis rescripto quod monitorium expediri possit penes causae notarium vel actuarium dili- genter custodiendo. Etsi aliter quam praefertur et absque dicto supplici libello ac speciali judicis rescriptodicta moni- toria ultra monies intimanda expedita fuerint, notarius sive acluarius el subslitutus qui ilia expediverit ipso facto inci- dat in poenas superius expressas. 48. Omnia et singula hactenus a Nobis disposita ad rectam judiciorum methodum restituendam eo impensius ab omnibus exacte custodii i et observari mandamus, quo clarius constat hac noslra constilulione non novas ferri sed anliquas inslaurari leges provide sapienterque inslilutas et lemporum injuria ac hominum fraudc obsoletas, et novo Pontificiae auctoritalis praesidio communiri ordinem pro- cedendi in causis jamdiu praescripttim superioribus et in- ferioribus tribunalibus a Sacra Trideniina Synodo, Congre- galionum decrelis, el Praedecessorum Noslroi um Roma- norum Poniificum consiitulionibus, aliisque ordinationibus Apostolicis. Ideoque si ipsi judices, omni semolo ut par esl, humanae cupiditalis affeclu prae oculis solum habue- rint quae tam maluro tamque saluberrimo sunt constituta elordinala consilio, facile eorum quilibet agnoscel quae sui 256 Appendix. et quae alien! ministerii partes esse debeant in admittendis ac respective rejiciendis causarum appellationibus et inhi- bitionibus : atque ita fiet, ut non solum unicuique in suo ordine debita jurisdictionis et auctoritatis praerogativa ser- vetur, sed etiam ut exstinctis prorsus ac radicitus avulsis omnium contentionum et discordiarum seminibus mutuo charitatis vinculo tribunalia socientur, et inter ilia recte iigendi disciplina Christiano populo utilis et necessaria re- stituatur. 49. Demum ut exemplo Nostro omnes praemissorum executioni caute et pro viribus incumbant, et ut praesertim notariis, tabellionibus et eorum actuariis et substitutis om- nis contraveniendi ansa praecidatur, volurnus et expresse mandamus processus et acta causarum in Nostra Romana Curia coram quovis judice pendentium ac inhibitiones, ap- pellationes, monitoria aliasque citatoriales et inhibitoriales literas, quas ab iisdem notariis eorumque substitutis sci- entibus vel insciis judicibus vel alias quomodolibet in pos- terum expediri contigerit, sedulo recognosci et examinari per fide dignas personas a Nobis opportune deputandas, quae si deprehenderint easdem inhibitiones contra hujus constitutionis formain et ad subterfugienda Ordinariorum et Episcoporum judicia quaesito gravaminis colore fuisse perperam concessas et expeditas, in eosdem notaries et sub- stitutes canonicis poenis aliisque a Nobis supra expressis severe pro modo culpae animadvertant. 50. Decernentes has praesentes literas semper firmas, validas et efficaces existere et fore, suosqtie plenarios et integros effectus sortiri et obtinere, ac ab illis ad quos spec- tat et pro tempore qtiandocumque spectabit inviolabiter et inconcusse observari: sicque et non aliter in praemissis per quoscumque judices ordinaries et delegates, etiam cau- sarum Palatii Apostolici Auditores, ac Sanctae Romae Ec- clesiae praefatae Cardinales, etiam de latere Legates, et ejusdem Sedis Nuntios, aliosve quoslibet quacumque prae- eminentia et potestate fungentes et functuros, sublata eis et eorum cuilibet quavis aliter judicandi et interpretandi Appendix. 257 facultate et auctoritate, judicari et definiri debere, ac irri- tum et inane si secus super his a quoquam quavis auctori- tate scienter vel ignoranter contigerit attentari. 51. Non obstantibus praemissis, ac quatenus opus sit, Nostra et Cancellariae Apostolicae regula de jure quaesito non .tollendo, aliisque constitutionibus et ordinationibus Apostolicis, necnon quibusvis etiam juramento, confirma- tione Apostolica, vel quavis firmitate alia roboratis statutis et consuetudinibus ac usibus et stylis, etiam immemorabi- libus, privilegiis quoque, indultis et Literis Apostolicis, praefatis aliisque quibuslibet judicibus, curiis, tribunalibus, et personis, etiam quantumvis sublimibus et specialissima mentione dignis, sub quibuscumque tenoribus et formis ac cum quibusvis etiam degoratoriarum derogatoriis aliisque efficacioribus, efficacissimis et insolitis clausulis irritanti- busque decretis, etiam motu, scientia, et potestatis plenitu- dine paribus, ac consistorialiter, et alias quomodolibet in contrarium praemissorum concessis, editis, factis, ac pluries iteratis, et quantiscumque vicibus approbatis, confirmatis et innovatis: Quibus omnibus et singulis, etiam si pro il- lorum sufficient! derogatione de illis eorumque totis teno- ribus specialis, specifica, expressa et individua ac de verbo ad verbum, non autem per clausulas generales idem impor- tantes, mentio seu quaevis alia expressio habenda aut aliqua alia exquisita forma ad hoc servanda foret, tenoies hujusmodi, ac si de verbo ad verbum nihil penitus omisso et forma in illis tradita observata exprimerentur et insere- rentur, praesentibus pro plene et sufficietur expressis et in- sertis habentes, illis alias in suo robore permansuris, ad praemissorum effectum hac vice dumtaxat specialiter et expresse derogatum esse volumus, caeterisque contrariis quibuscumque. 52. Ut autem eaedem praesentes literae ad omnium notitiam facilius deveniant, volumus illas seu earum exem- pla ad valvas ecclesiae Lateranensis et basilicae Principis Apostolorum necnon Cancellariae Apostolicae Curiaeque Generalis in Monte Citatorio, ac in Acie Campi Florae de 258 Appendix. Urbe, ut moris est, affigi et publican sicque publicatas et affixas omnes et singulos quos illae concernunt peritide arctare ac afficere, ac si unicuique eorum nominatim et personaliter intimatae fuissent: ipsarum autem literarum transumptis seu exemplis etiam impressis, manu tamen alicuius notarii public! subscripts et sigillo personae in ecclesiastica dignitate constitutae munitis, eamdem pror- sus fidem tarn in judicio quam extra illud ubique locorum haberi, quae haberetur ipsis praesentibus, si forent exhi- bitae vel ostensae. | 53. Nulli ergo omnino hominum liceat hanc paginam Nostri decreti, constitutions, declarationis, annullationis, admonitionis, et voluntatis infringere, vel ei ausu temerario contraire; si quis autem hoc attentare praesumpserit, in- dignationeni Omnipotentis Dei ac Beatorum Petri et Pauli Apostolorum ejus se noverit incursurum. Datum Romae apud Sanctam Mariam Majorem anno In- carnationis Dominicae millesimo septingentesimo quadra- gesimo secundo, tertio Kal. Aprilis. Pontiticatus Nostri Anno II. P. Card. Pro-Datarius. P. Card. Passioneus. Visa de Curia. N. Ant one I his. J. B. Ei/genius. Registrata in Secretaria Brevium. Publicata de 18 Aprilis ejusdem anni. INDEX. The references are to pages and notes, the latter being indicated by superior figures. The main places are distinguished by bold type. ABOLITION, 104. 190 ft. Absence, see Contumacy. Absolution from censures, 186. Abstract, see Auditor. Accomplices, 98 ff. Account-books, 124, 147. Accusation, see Charge ; Pro- cedure. Accused, the, 63 ff.. 71 ff. ; cita- tion, examination, 71, 96 f., 148. 168 ; oath, 98 ; confession, 98 ff ; representation, 77, 169. Acquittal, Hoff. Ada Sanctae Sedis, 38. 44, 55*. 59 l . 62,64'. 97, II 2 1 , 138', H2 4 , M9 1 - Acts of the court. 52, 58", 89, 147*. 172, 237", 239 See also Record. Actuary. 54, 57, 59', 6o a . See also Clerk Address, false, 42 ; imperfect, 124. Administrative acts, measures, 6. 80 f., 165, 1 80. See also Extrajud. Administrator of diocese. 29*. Admissions, see Confession. Admonitions, canonical, 81 ff., 144 ff., 163; paternal. 78, 150, 163'; legal, formal, I5off.; end, 145 ; conditions, 146 ; object, 149 ; qualities. 152. Advocate,6i,7i,74ff., 169,171 ff.; A. approval. 75 ; oath. 75. 172 ; duties, 75 ff. ; fees, 71. 76, 195 ; layman, 74 f. ; in contumacy, 137; in appeal, 185. See also Defence ; Final pleading. Affidavit. 183. Affinity, 113. 133. Age of judge, 48 ; defendant, 99 ; witnesses, 103 f. Allegata el probata, '( 128, 169, Allegations, \ 171'. Alibi, 132. America, sec United States. Analecta Juris /'onttficii. 43*. Anonymous letters, complaints, 70. 1 66. Apostoli. ) K , o. Apostles, f IJ{2 ' l84 ' Apparitor, 6 1 f. Appeal, 50, 60, 90, lor, 145, 175 ff. ; judicial, extrajud., 175 f . ; instances, 31 ff., 39 ff., 178; restrictions, 178; effects, 179 ff . ; sham A., 179'; proce dure, 182 ff. ; terms, 182, 236; costs, 195; per saltum, 38*; from delegate, 33 f. ; from in- junction, 153; before S. C., 234 ff. Appearance, see Citation. Appfllare, appellatio. 176'. Appellate competency , 38 ff. ; A. judge, 38, 175"; third A. court, 40. Appellee, 175". Approval of advocate. 75. Arbiters. 33, 134 f. ; A. compro- missarzi, 135*. See also Triors. Arbitrary terms. 128. Arbitrators, 135*. Archbishop. 29, 39". See also Metropolitan. Architects, 122'. Archives, 58*, 147. 260 Index. Archivist, 58*. Arrest of judgment, 190*; pro- ceeding, 192 f. See also De- prehensio. Articuli et positiones, 1 29'. Assassination, loo 1 . Assessors, 51. Attentata, \ iD1 Attentats, \ '??' 181 ' Attorney, 76 ff., 120 ; A. general, 6 4 \ Auditor, 52 ff., 120"; impartiality, charity, 97 ; layman, 56 ; recu- sation, 133', 136"; abstract, S3 2 , 59% 8 5> * * 8, 120, 165 ft., 170, 237", 239; A. in appeal, 1 86; in matrimonial case, 54". Auditorium metropoliticum, 39". Authenticity, 122". Autographa, 184. Avoidance, plea in, 169. BALTIMORE, II. PI. C, 29*. 39. III. PI. C, 3, 39', 54*. 59', 65 3 , 69, 75, 119, 148*, 196. Bar, a clerical, 76; plea in B., 130. Bench, the judges', 133, 172. Benedict XIII., 23, 77, 98, 196. Benedict XI V., 22 f ., 40. 1 80. Cst. Ad militant is, 241 ff. Benefices, 181. Benefit of the clergy, see Privi- legtum forz. Beneplacitum, ad, suspension, 161. Bias of auditor. 97 ; of judge, 132. Bill of complaint, 67. Bishop as ordinary, 28, 31, 38, 50 f. , 69; as delegate apost., 31 ; duties in criminal cases, 65 f. ; pardon, 192 ; trial of B., 37- Bizzari's collectanea, 43*. Blind witnesses, 103. Books of accounts, 124. Boundaries of parishes, 181. Buildings, eccl., 181. Burden of proof, 95, 127. Burial, Christian, 194. CALUMNIA, 179', 196 f. Canada, 41". Cancellings, 124. Canon and Civil criminal law, 17 ff. Canonry, 41. Capital punishment (sentence), i8 2 , 78, 101, 104, 138, 190". Cardinal's jurisdiction, 29. Casting vote, 51. Caution and discretion, 147, 153, 163, 1 66. Censures, 72, 145', 154, 180 ff. Absolution, 186; execution, 193- Challenge of witnesses, 121 f., 169 ; of auditor, I33 10 ; of judge, 132. See also Recusa- tion. Chancellor, 55, 57, 59', 65, 74; layman, 59; recused, 136. Chancery, 154, 164, 172, 175. See also Record. Change of venue, 47'. Charge (accusation), 20, 65', 67, 69 f., 72, 85, 95, 1 66 f., 192; new C., 173. Church and State, 17 ff., 22. Church records, 124. Circumstantial evidence, 125 f. ; conviction, 127 ; exceptions, 131. See also Presumptions. Citation of accused, 32, 46", 61, 72, 89, 133, I36 5 , 153, 155', 168, 172 f. ; of witnesses, inf. Clauses, legal, 29 f., 87, 89 3 , 90, 140, 141, 158, 160, 178'. Cleric in civil court, 167, 223, 240. Clerk, 55, 57,65, 96, 98, 122, 163; layman, 58 ; fees, 59; recused, 136- Close, right to, 173. Coadjutor bishop, 29, 37. Cognitio summaria facti, 53", 69. See also Inquest. Collections of Roman decisions, 43 1 ' ' ' College of judges, 50 f.. 133 ff., 172, 174; of judges-delegate, 33 ; of auditors, 56. Index. 261 Collusion. 115. Commentators, 5. Commissio Investigationis, 51', 56*. 75, 151, 171'. Instr. S. C, 226 ff. Commission, general and spe- cial, 32, 66, 68 f., 120, 168, 1 86. Common law, 4, 37', 47', 52", 91", 94 f., 98, 102, 147', 170', 185*, 190'. Communications, privileged, "3- Commutation of sentence, 192. Comparison of writings. 123. Competency, judicial. 37 ff. ; of judge, 98 ; of witnesses, 102 ff. Complaints, 190. See also Charge; Querela. Compounding of felony, 190*. Compromise, see Transaction. Conclusion of auditor's inquest, 96, 114, 119, 170; of final pleading, 173. Conclusions procuratoris fisc., 1 20. Conditions for trial, 105 ff. ; pre- vious inquest, 146 f. ; canon. admonitions, 146; injunctions, 152 ff. Confession, judicial, extrajud., 71, 96 ff. ; requisites, 99 ff. ; effect, 101 ; obligation, 101. Confrontation, 73, 120 ff. Congregations, Roman, 42 ff. ; decisions, 23 ff., 27, 90, 140; procedure, 142, 234 ff.; costs, 196. Conjectures, see Indicia. Consanguinity, 113. 133. Contempt of court, see Contu- macy. Contestatio delicti, 31", 95, 133. Continent proceeding, Continentt, in, Contumacy, Conviction by testimony, 104, 107 ; by circumst. evid., 127. Copies (transcript; of acts, sen- tence, defence, injunction, etc., 58", 61, 142, 168, 172, 174, 184, 185', 236'. Correcting statements, 75, 101, 109, 1 1 8, 169. Correction, corrective measures, 17, 78, 140, 145', 148', 149, 151, 167, 182. Correspondence, 124. Costs, judicial. 193 ff. Counsel, see Advocate. Counter-evidence, 83, 85', 185. Credibility of witnesses, 102 ff., 105. Crime, occult or public, 100, 158 ff. Crimina excepta, 100'. Criminal law, formal and mate- rial, 16, 17 ff. Cross examination, 115. 119*. Cum Magnopere, 50', 52', 55', 75, 77, 89, H2 1 , 129, 142*. 171', 172*. 174', 186"; text, I99ff. Cursores, 62. Custom, 16, 22, 27, 52', 56, 60. 69. 112, 185. DEAF AND DUMB, 48, 103. Dean of chapter, 41*. Death of delegator, 32 ; of dele- gate, 33. Decorum, clerical. 146. Deer eta S. C. Epp. on appeals, 234 ff. Decretals, 5. 21, 48', 72. Decretum Gratiani, 21. Default, in, 137*. 139, 178, 185. Defence. 71 ff., 85, 119. 148; manner, 75 f. ; final pleading, 142, 172 ff. ; pleas, 169; pro- ceedings, 127 ff., 1 68. Defendant. 64, 84. Defender, 72. See also Advo- cate. D. ma trim,, 196. Degradation. 93, 138, 190*. 194. Delays, 'see Dilationes, Terms. Delegation, a jure ft ab homine, 30 ff. ; special and general, official and personal, 31' ; sub- delegation, 32; extent, 33; ap- peal. 33; joint D., 33. 262 Index. De Mont ait it, Decreta S. C. Imm., 43 3 . Denuniiatio, 27, 69 f., 83 ; evan- gelical, 145 s . Deposition from office, 138, 194. Depositions, see Witnesses. Deprehensio, see Forum. Devolution, 177 ff. Dignitas, 41". Dilat tones, 88, 127*, 129'. See also Terms. Disciplina, 6, 17. Documents (instruments, writ- ings), 35. 61, 58", 89, 93; in evidence, 123 ff. ; D. authen- tic, genuine, public, private, I23 3 ff. See also Signature. Domicile, 44 f. Doininus litis, 77. Dupltcatio^ 132'. ENGLAND, 41', 63. Enmity, 104, 133, 136. Erasures in documents, 124. Evidence, judicial, 54, 91 ff. ; extrajudicial, 114, 122 ; kinds, 92, 106 f. ; weight, 92 f. ; pre- valence, 94; object, 94 f.; time, 95 ; entry, 96. E. of personal knowledge, 107; opinion, 108; hearsay, 108 f. ; rumor, 109: expert. 121 ; documentary, 122; circumstantial, 125; tak- ing evidence, 168 ff. ; new evi- dence, 170. See also Wit- nesses. Ex abrupto proceeding, 89". Ex infurmata conscientia. see Tridentine suspension. Ex officio inquiry, 70, 83 ff. Examination of accused, 96 ff., 148, 163 ; of witnesses, 1 16 ff. Exceptional crimes, 100, 105. Except tones, ^130 ff. See also Exceptions, j Plea. Excommunication, 33. 49, 104. 112, 138,' 144, 145, 3 190". Execution of sentence, 130, 180, 194 ff ; stay, 190', 193 f. Exercises, spiritual. 80. Expcnsae, \ 96*. See also Costs. Experts, 121, 123, 147. Extrajudicial acts, 27, 80, 144 ff., 176; confession, 98; ap- peal, 175 f. Extraordinary procedure, 87 ; means of redress, 187 ff. FACULTIES, written, 124. Fama, 63, 108; inquisitio, 52". Familiarity, 49. 133. Fatalia, 183". Fees, fines, see Costs. Fictitious contumacy, 137; names, 164. Fisc of diocese, 64. Fiscal, see Procurator, Promotor. Formalities of trial (essential and accidental), 25, 48, 71, 87 ff. ; admonitions, 151 ; appeal, 183. Forms of procedure, 78 ff. Forutn, 43 ; domicilit, 44 f. ; de- licti, deprchensionis, 46 ; prae- ventionis, 46" ; prorogat., 47 ; external, internal, 18, 194. Friendship, 133. GENUINENESS of documents, 122 s ff. Giudice d'istruzione, 52 ; g. re- latore, 239. Gloss. 49*, 99 f., 103, no, 133*, I36 5 , 141, 178', 185", 189'. " Grace," 138% 140*. Gratiani decretum, 21. HANDWRITING, 123 f. Hearsay evidence, 108 f. Heresy, ioo' ; heretics, 104. History, modern, of canonical procedure, 21 ff., 23". Holy-days, 143. Husband and wife, 113. IDIOTS, 103. Illiterate, 48. Immunity, eccl., 43, 6o n , 143. Impartiality, see Recusation. Impuberals, 103. Impunity, 112. 5. H5. Index. 263 Indictment by jury, 147'. Inducements to confess, 100. Infamia juris et facti, 49, 104. Infamy, perpetual, 190". Inferences, sec Presumptions. Informations, 146 ff., 166 ff. Jnhibitienes, 177*. Injunctions, canonical, 144, 147, 151, 152 ff. ; mode, 153 f., requisites, 154; copy, 154'; term, 155. Inquest (preliminary, previous, summary), 53, 69 ff., 117, 146, 147', a . 166 f.; auditor's, 165 ff. ; sheriff's, coroner's, 147'; additional, 174. Inquiry (judicial, extrajud., pri- vate), 15 f., 27, 53,67, 85, 99, 146, 166 f., 190 f. Inquisitio pro notitia curiae, 53, 148'; pro inform, judice, de fania, probatione, 53". Inquisitorial, see Procedure. Insane, the, 48. 103. Inspection, judicial, extrajud., 122. Instances, see Appeal. Instruct io S. C. Epp. 1880, 3. 5, 23. 27. 85 ff. Instructor aclorum, 53", 55' ; I. judex, 53. Instruments, see Documents. Interests, see Welfare. Interpolations, 124. Interpreter in court, 143. Interrogatories, see Questions. Ireland, 38*. Irish Eccl. Record, 5. Irregularity, canonical, 194. JEWISH witness, 104; subtleties, 86. Joinder, 132*. Judex, meaning. 176'; J. in/ia- bilis, suspect us. 49*. 132'. 181 ; y. a quo, ad quern, 175*; J. in- structor, 53; y. relator, 235" f. Judge, qualities and duties 48 ff.; recusation, 132 ff.; J. sole, associate, 51. 54, 134. 172; J. delegate, 30 ff., 55; J. appel- late, appellee, 175'; J. of in- quiry, 53 ff. Judgment, 138 ff.; interlocutory, final, 139, 174 ff., 179; requi- sites, i39f .; copy, 174; day. I29f.; arrest, 190". Set also Nullity; Sentence. Judicature, eccl., 28 ff. Jit dices synodales,prosynod., 40 f. Judiciary, eccl.. 37 ff. Judicium, 79; in J., 79; y. statarium, more belli, 89*; y. fignra, 87. Juge d^ instruct ion, 53"; J. rap- porteur, 55'. Juramentum decisorium, sup- pletorium, 93 ; J. veritatis, 98, 1 16, 122 ; secreti, 1 16 f., 1 53, 172; malitiae, 115, 128. Jurisdiction. 28 ff.; ordinary, quasi-ordinary, 28 f.; delegat- ed. 30 ff.; competent, 37 ff ; ap- pellate, 38 f.; higherand lower, 175- Jurisdictional acts, 32, 87, 145. Jury, eccl., 51 ; grand, petit, 147'; charge to J., 170". Jus domum revocandi, 45. Justitiae tutela, 64 f., 68, 72. LANGUAGE in court, 143. Lapse of terms, 130; of time, 138, 167. Law, criminal, i6ff.; sources. 20 ff.; principles, see Maxims, Rules. Laymen as court officers. 49. 52', 56; lay-advocate. 74 f.; 1. prose- cutor, 65*; laics 7'j. clerics, 104. Leading questions, 97, 118. Legitimate procexsus, 73, 120. Letters paten*, see Commission ; L. rogatory, 1 14 ; L. dimissory. reverential, refutatory. 183 , anonymous, 71 ; L. registered, see Mail. Limitation, see Lapse. Litigation, civil, 80'. Lit is con test at io, 31". Liturgy, rubrics. 25. Local competency, 43 ff. 264 Index. Locus sacer, 139, 143. LOrdinario, 89', 115, 129, 141', 171 ff., I74 1 ; text, 198 ff. MAIL, 62, no, 137*, 151, 155". Malitia, 115. Mandate, see Commission; Writ. Maxims (axioms, principles) of law, 21, 38". 49, 64, 71, 81, 93 f., 1 06, 116', 1 66, 194. Maynooth, Synod, 39. Messenger, 61 f., no, 137*, 151, 155'. Metropolitans, 39 ; appeal from M., 39 1 ' ; Metropoliticum, 39'. Minors as judges, 48 ; witnesses, 104. Minutes (Minutae), see Record. Monti io trina, I45 3 , 155. Monitor mm, 144. Mutilation, 18*, 104. NAMES of witnesses, 119, 121. 148. Negotium itnum, 31*. Nolle proseqiii, I9O 2 . "Not guilty," 101. Notary, 57 ; n. public, 58*. Notes, bishop's private, 1 50. Notice, judicial, 95. Notice (notification) of term, 130; sentence, 138*, 174, 184; appeal, 182. Noting, the, 61. 96. Notoriety, ^27, 81, 89*, 95, 101, Not or turn, \ 1 55 s , 158, 167, 179'. Nullity (null and void) of pro- cess, 49, 71, 89, 98, 105, 121, 138, 141, 173, 187, 189* ; plea of n., 50, 175, 177, 181, 188 ff. OATH, see Juramentum. O. of office, 50, 55, 62, 75. Occult crime, 100, 158 ff. Official, the diocesan, 27, 36, 38, 50, 68. Officialit^, 36', 63". Officium, 41". Opening of case, 95 ; of appellate proceeding, 184" f. Opinion, 108; expert, 121. Oral, see Parol. Ordeal, 19. Order of proceedings, 81, 148*; of examination, 97, 117; of presumptions, 126 f.; of pleas, 132. Orders, holy (prohibition, sus- pension), 157 ff. Ordinary, see Bishop. Organization of court, 48 ff. Originals of documents, 57, 172, 175, 184, 1 8$ 5 , 236", 239. PALLOTINI, Papal delegates, 31, 41, 134. Pardon, I9O 2 , 192. Parent and child, 113. Parish records, 143, 147. See also Benefices. Parol pleading, 115, 141 f., 171*; evidence, 124. Parties in trial, 62, 83. Patriarchs, 29. Patromis, 74'. Paupers, 103. Pedelli, 62. Pension, 195*. Peremptory, see Citation; Terms. Periculum in mora, 148, 164. Perjury, 109. Personal delegation, 31 ; com- petency, 37. Personate, ) . Personatus, \ * ' Personnel of the court, 48 ff. Petition, see Recourse. Place of delict, 46 ; of examina- tion, 113, 168; of trial, 143. Plaintiff. 70 ff., 83 f. Pleading, final, 115, 129, 142, /72ff. See a/so Parol. Pleas, 130 ff. ; kinds, 130 f. ; sham P., 131, 134; time, order, form, 132. ; P. to the juris- diction, 49, 130, 132'; to the judge, 132', 181 ; to the exam- ination, testimony, proceed- ing, execution, 131 ff. ; to the sentence, 177; P. in avoidance, of justification, in excuse, 169. Pope, the, his jurisdiction, 28 ; Index. 265 in first instance, 37 ; appeal. 5 1 *. 33- 38 ; abolition, 192 f. ; pardon, 192' f. Posit tones et arliculi, 1 29'. Postitlando, de, 74'. Practice, canon, crim., 144. Praeceptum, 61, 81, 144, 152*; de non frequentando, 153. See also Injunctions. Praesentatum, 61, 67. Praesumpt tones, \ 93. 96, 125 ff .; Presumptions, f rules, 126. Praeventio(praevenire),dfi % , 153. Prejudice, 28, 139, 187. Preliminary, previous, see In- quest. Principles of legality and expe- diency, 64. See also Maxims; Rules. Printed defence, 142. Privatio beneficii, 194. Privileged causes, 94 ; commu- nications, 113; persons, 104, 113 ; places, 143. Privilegium fori, 20", 1 80. Probabilism, io8 3 . Probatio plena, semiplena, 70, 91 ; artiticialis, inartif., 92 ; Pp. luce clariores, 93 f. ; P. nega- | tiva coarctata, 131. See also Proof. Probatory term, 129. its end, object, 15, 82, 140, 187 ; history and sources, 20 ff. ; mode and rules, 16, 23, 141 ff., 192 (see also Rules); forms and parts, 78 ff. ; judi- cial, extrajud., 27. 53", 78 ff., 147; civil, criminal, 21, 89,99, 102, 106; accusatory, inquisi- tory, 21, 27, 53, 63 f., 82 fi., 85; denunciatory, 83; ordina- ry, plenary, summary, 26, 86 ff. ; informative. 53", 119; of- fensive, defensive, 67, 120, 127, 168; final, 172 ff. ; appel- late, 182 ff. ; rash, 147, 167, 197; essential elements, 20; formalities, 25, 87 ff. ; in writ ing, 141 ; secret, 142 ; place, time, language, 143. See also Arrest; Stay. Prods-verbal, 119, 171. Processus instruct to, 53 ; leg it i- matio, 73 ; publicatio, 1 19. Procrastinatio malitiosa, 131. Proctor, 76 ff. Procurator, fiscal, 62 ff., 64', 85 ; duties, 67 f., 74 ; representa- tion, 77 ; recused, 136*; at ex- aminations, 116, 169; at the trial, 1 66 ff. ; charge and pro- secution, 167 ff. ; his conclu- sions and motions, 120, 171 ; new charge, 173. Production of witness, 114; documents, 123. Promoter fiscalis, 63 f. ; P. /. generalis, 77, 236*. Proof, judicial, 91 ; full, half, 92, 105, 107 ; P. of commission, 32 ; of qualifications, 50 ; of documents. 124; of a negative, 95. Sift? also Evidence. Prorogation of jurisdiction, 47 ; of terms, 128. Prosecution, 62 ff. Protocollutn, 61. Provocatio ad causam, 176. Provost. 41*. Publicatio Processus, Publication of testi mony. Publicity of procedure, 142 f. ; of crime, 1 58 ff. Punishment, its end, 17, 65 f.. 71, 82, 138, 140, 149, 154; cor- rective, vindictive, 16, 78, 149, 1 80; extrajud., 18, 80; spirit- ual, temporal, 18; corporal, capital, i8 3 . 78 (see also Capi- tal) ; in subsidium, \ 54 ; pecu- niary, 154, 165, 194'; commu- tation, 192. See also Correc- tion ; Execution ; Sentence ; Pardon. QUALIFICATIONS of judge, 48; auditor, 53, 55' ; plaintiff, 70 ; witnesses, 102. 121. 266 Index. Qualified persons, 62, no, 121*; witnesses, 121. Quash proceedings, 190", 192. Querela nullttatis, 188. See also Nullify. Questions in examination, 97, 117; schedule, 117; sugges- tivae, 1 19'. REAL COMPETENCY, 37 ff. Receipt, see Return. Recognition, judicial, 95. Record (minutes), 55, 57, 58", 61, 96, in f., 130, 139, 141, 150 f., 154, 164, 169, 174. Recovery of costs, 195. Recusation, 32, 132 ff., 181 ; form, time, 133 ; frivolous, I34 5 - Redactor actorttm, 55'. Redress, extraord. means, 187 ff. Referee, ) c S3 Referendarius, \ 53 ' IJi8 ' 235 ' References, 4. 10 f. Registered letter, see Mail. Registrar, 58". Regulars, 29 ; as witnesses, 104. Rehearing, see Retrial. Reincidentta, 161, 186. Reinstatement, see Restitutto. Rejoinder, 132'. Relations by blood or marriage, 49, 70, 104. Relevancy of testimony, 94 ff. Remission, see Pardon. Removal, 138, 194, 195. Replicatio, 132'. Report, expert, 122. Representation in court, 76, 120. Reputation, 72, 103, 154, 162, 1 66. 191 ff. Requisitoria fi scalt's, 171. Res judicata (conclusive judg- ment, force of law, adjudged matter, definitely settled), I4o 4 , 179, 185, 187, 189', 190", 193 ff. Rcstitutio in integrum, 189. Retractatio, 188. Retreat, spiritual, 81. Retrial, 139, 177, 185, 189. Return of writ, I5o & , 155. Reverential letters, 184". Reversal, 145, 177, 183 ff. * ev i ew ' \ 185, 188. Rev is w, ) y Rzccz's Collectio decretorum, 43 3 - Roman law, 20, 26, 45*, 89, 132, 137, i 88 ff. Rome, 26,45, 77- 9> ^S 3 . Rubrics, 25. Rules of criminal procedure, 16, 23, 66, 71, 82, 128, 165; of justice, 6, 25, 54, 56, 88, 114, 1 28 ; on evidence, 92", 84 f., 102. Rumor, 63, 69, 93. 109, 166. SACRISTAN of cathedral, 41". Salary of substitute, 161. Sanguine's causa, 104. Schedule of questions, 117. Seal, official, 123, 184*. Secrecy, 115, 142 f., 150, 154; oath, 116, 152, 172. Secretary, 57 ff., 65, 136; bish- op's private S., 59', 151. Security, 197. Semi-proof, 92, 99. Sentence, 50 ff., 61. 127, 138 ff., 173 ff. ; requisites, 139 f.; de- claratory, condemnatory, 140; in contumacy, 138. Sententia lata,ferenda, 152, 181 ; ex inf. consc., 156 ff. Sham pleas, 88 ; S. appeals, 179'- Signature to documents, 110, 123, 152, 154, 165; to deposi- tions, 1 1 8, 122, 170; notary's, 58'. Simony, loo 1 . Singularity) f witnesses>lo6 ff . Singularity $ Sittings, judicial, 142 f. Slaves, 103. Index. 267 Sole mm'/ as instrumentorum, 61; judicii, 27, 86. Solicitation, 42, 105. Solicitor-general, 64'. Sources of canon, procedure, 20 ff. Specifications in summons. 72 f.; in charge, 72 (..96, 168. State interference, 19, 193. Stay of proceeding, 181, 191 ff., of execution, 192 f. Strepittis judicii, 27, 86 f. Subdelegatc, 32, 34, 36. Subordination of judge, 133. Subornation, 109, 115. Subscription, see Signature. Subsidium, in, 154. Subtraction of witness, 114. Suffragan, senior, 39'. Sumniaria facti cognitio, 53", 69, 146. Summary, see Abstract. Summary information, see In- quest; Proceeding. Summing up, 168, 170*. Summons, see Citation. Sundays, 143. Supplicatio, 177', 188. Surrejoinder, 132'. Suspension, 49, 112, 180 f., 194. See also Tridentine, extrajud. Suspensive effect in appeal, 130, 177, 180 ff.; plea of nullity, i8o 2 . Suspicion, 99. 134, 137, 149, 160. 166, 191, 198. Synod, diocesan, 197. TARIFF of court fees, taxes, 196. Technical law terms. 4, 16', 37', 41', 46*. 47', 52', 55 1 - 58'. 61, 63, 92', loo 1 . 101, 104, 118, 119', 125'. i2 9 s . 132'- '35'. 175'. '77*. 179'. i8i, 182'. , 184*. 188 f., i go*. Terms (fixed time), 127 ff.; kinds, 128 f., 130, 170; per- emptory, 96. 128, 130; effect, lapse, 130; t. to introduce witness, 115; in injunction, | 155; in appeal, 182 f.. 236'. Testes singular es, etc., 106; de scientia, 107 ; de ctedulitatt, audit a, 108 f. ; de fama, 109; T. instrument arii, \ 23 ; oinni except tone in a j ores, 105 f. Testificata, 115'. Testimony, kinds, 106. Torture, 19. "Transaction," 190''. Transcript, see Copy. Travelling expenses, 195*. Trent, Council, 21, 38, 39", 40, 112, 137, 157 ff., 179. Trial, judicial, 165 ff.; auditor's inquest, 165 ff.; final pleading, sentence, 170 ff. Tridentine suspension, 21, 80, 156 ff. ; conditions, 157 ff.; occult crime, 158 f.; trial im- possible. 159; effect, 160; du- ration, 161 ; mode, 162 f.; sen- tence, 164. Instr. S. C., 231 ff. Triors, 134, 135'. Triplicatio, 132'. Tutela leg is et justitiae, 64, 72. Typewriter, 142*. UNITED STATES, 39, 51*. 52', 58*, 62, 63", 64', 69, 76, 89', 172', 195', 196, 199, 209, 226. Universitas causarum, 31' f. Untersuclmngsrichter, 53". VATICAN COUNCIL. 39*. Venue, change of, 47'. Verses by the Gloss on tlie judge, 49" ; confession, 99 ; recusation, 134'; contumacy, 137*; appeal. 178'. Vicars, substitutes, 186 t. Vicar-apostolic. 29. V. capitu- lar, 29, 31. 38. 13$. Vicar-general, 29, 31 . 34. 3 8 - 4' 1 . 50, 53 f.. 147, 154; his juris- diction, 34 ff.; delegation. 35 f.; commission, 35,68; re- cused, 135; in canon, admoni- tions, 150; injunctions, 154; Trid. suspension, 157*. Vicarious jurisdiction. 29. Void, see Nullity. 268 Index. Vote, decisive, consultative, 51. WAGER OF BATTLE, 19. Warning, see Admonitions. Weight of evidence, 105 ff. Welfare (interests), public, i" 1 , 64, 66, 73, loo 1 , 128, 159. 191 ff. Westminster, 39', 58*. Withdrawal, see Abolition. Witnesses, 101 ff. ; competency, absolute, relative, 102 ff.; by natural or positive law, 103 f. ; observation. 104 f.; classical W., 105; credibility, 105 f., number, 106 ; quality of depo- sitions. 107 ff. ; attendance, no; compulsion, in; duties, 112; privileged W., 113; pro- duction, 114 ff.; subtraction, 114; foreign, distant W., 114; cross-examination, 115; ex- amination, n6ff., 120; publi- cation of testimony, 119 ff., confrontation, 73, 19 ; subor- nation, 109, 115; unnecessary W., 88, 114; W. at formal ad- monitions, 151 ; at injunc- tions, 154; Trid. suspension, 163 ff.; costs, 195 ff. See also Evidence. Women, 104, 114. Writ of error, 50, 185 ; manda- tory, 144. See also Return. Writings, comparison, 123; proof, 124. See also Documents. Written commission, 32, 50, 60, 151 ; pleading, 90, 115 ; 170 f.; evidence, 122 ff.; procedure, 141 ; legal admonition, 151 ; injunction, 154; Trid. suspen- sion, 165; sentence, 139, 174. ZAMBONI, Collectio decretorum S. C. C, 43'- THE LIBRARY UNIVERSITY OF CALIFORNIA Santa Barbara THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW. Series 9482 ' li&*' i c' S * O^L '.- J : A 000916474 o jSk-. ** r<* iv*& ' l te ,. .