Comprehensive view of the positive legislation of the Church on appeals belonging to the ecclesiastical forum
Appeals. —The purpose of this article is to give a comprehensive view of the positive legislation of the Church on appeals belonging to the ecclesiastical forum; but it does not treat of the nature of the ecclesiastical forum itself nor of the rights of the Church and its supreme head, the pope, to receive appeals in ecclesiastical matters. For these and other similar questions see Pope, Primacy, Councils, Gallicanism, Ecclesiastical Forum.
I. DEFINITION, KINDS, AND EFFECTS., An appeal is “a legal application to a higher authority for redress against an injury sustained through the act of a lower authority.” The lower authority is called judex a quo (judge appellee); the higher authority, judex ad quem (appellate judge or court). Appeals are judicial and extrajudicial. A judicial appeal is one made against such acts as are performed by the lower authority, acting in the official capacity of judge at any stage of the judicial proceedings. Hence a judicial appeal is not only one taken from a final sentence, but such is also an appeal taken from an interlocutory sentence, viz. from a sentence given by the judge before pronouncing the final judgment. An extrajudicial appeal is one made against acts performed by the inferior authority when not acting as judge, such as for instance a bishop’s order to build a school, the election of a candidate to an office, and the like. Every appeal, when admissible, has an effect called devolutive (appellatio in devolutivo), consisting in this, that through the law there devolves on the appellate judge the right to take cognizance of, and also to decide, the case in question. Appeals have often also a suspensive effect, which consists in suspending the legal force of a judgment or an order so that the judge appellee is prevented from taking ally further action in the case unless his action tends to favor the appellant in the exercise of his right of appeal.
II. APPEALS IN CHURCH HISTORY.—The right of appeal is founded on the law of nature, which requires that a subject, bound as he is to abide by the action of a superior liable to err, should be supplied with some means of defense in case the latter, through ignorance or malice, should violate the laws of justice.
Accordingly, the sacred canons as early as the first ecumenical council allow clerics who believe themselves to have been wronged by their bishops to have recourse to higher authorities (Council of Nice, 325, can. 5). In the same century and in the following centuries the same right is insisted upon in other councils, both local and universal. In the East mention of it is made in the councils of Antioch (341, c. 6, 11), and Chalcedon (451, can. 9). In the West it is met with in the councils of Carthage (390, can. 8; 397, can. 10; and 398, can. 66), Mileve (can. 22), Vannes (465, can. 9), Viseu (442), Orleans (538, can. 20). According to these canons the court of appeal was that of the neighboring bishops of the provincial synod; and there is mention of the metropolitan with the other bishops in documents of the eighth and ninth centuries (VIII Ecumenical Council, 868, c. 26; Council of Frankfort, 794). But as the provincial councils came to be held less frequently, the right of receiving appeals from any bishop of a province remained with the metropolitan alone; a practice which was repeatedly sanctioned in the Decretals (c. 11, X, De off. ord., I, 31; c. 66, X, de appell., II, 28), and has never since been abandoned. Though the right of appeal was never denied, it had to be kept within the proper bounds in order that what was allowed as a means of just defense should not be used for evading or putting obstacles to the administration of justice.
In this, canonical legislation followed several of the rules laid down in the Roman civil law (Corpus Juris Civilis), e.g. those prescribing the limits of the time available for entering an appeal (November 23, C. 1; c. 32, X, De elect., I, 6), or finishing the case appealed (I, 5, De temporibus… appellationum, c. VII, 63). The same is true of laws excluding certain appeals which are rightly presumed to be made for no other reason than in order to retard the execution of a sentence justly pronounced (1, un. C. Ne liceat in una eademque causa, VII, 70; c. 65, X, De appell., II, 28).
In several points, however, the sacred canons were less rigorous, either by leaving more to the discretion of the judge appellee in cases of laws intended for his benefit or interpreting more liberally laws imposing strictures on the appellant in the exercise of his right (c. 2, De appell. Clem., II, 12; 1, 24, c. De appell., VII, 62; 1, un D. De libellis dimissoriis, XLIX, 6). Moreover, if abuses crept in, they were checked by the sacred canons, as appears from the enactments of popes and councils of the twelfth and thirteenth centuries, embodied in the authentic collections of the “Corpus Juris Canonici”, in the title “De appellationibus”. Thus we see, in 1181, the Third Lateran Council (c. 26, X, De appell., II, 28) forbidding subjects to appeal from ecclesiastical discipline, and at the same time preventing bishops and other prelates from taking undue measures against their subjects when the latter were about to use their right of appeal. Again, in 1215, we see the Fourth Lateran Council (c. 13, De off. ord., I, 31) insisting that appeal should not interfere with bishops while taking legal action for correcting or reforming morals.
These and other similar wise regulations were enforced again by the Council of Trent (Sess. 22, c. 7, De reform; c. 3, De appell., in 6). Especially did this council provide that the regular administration of a diocese should not suffer from appeals. Thus, besides forbidding (Secs. 22, c. 1, De ref.) that appeals should suspend the execution of orders given for the reformation of morals and correction of abuses, it mentioned explicitly several acts of pastoral administration which were not to be hampered by appeals (c. 5, Sess. 7, De ref.; c. 7, Sess. 21, De ref.; c. 18, Sess. 24, De ref.), and it ordained that appeals should not interfere with decrees made by a bishop while visiting his diocese (c. 10, Sess. 24, De ref.).
Moreover, in order to protect the authority of local ordinaries, it prescribed that if cases of appeals of a criminal nature had to be turned over to judges outside the Roman Curia by pontifical authority, they should be delegated to the metropolitan or to the nearest bishop (c. 2, Sess. 13, De ref.). Finally, this council provides that appeals should not cause unnecessary delays in the course of a trial, where it forbade (as the Roman law had done) appeals from interlocutory sentences, admitting only a few necessary exceptions (c. I, Sess. 13, De ref.; c. 20, Sess. 24, De ref.). The decrees of the Council of Trent and other pontifical laws, framed for the purpose of reconciling freedom of appeal with the prompt exercise of episcopal jurisdiction in matters admitting of no delay, were too important to be allowed to go into desuetude, and were embodied by Benedict XIV in his constitution “Ad militantis”, March 30, 1742.
After this brief reference to the main sources of the laws concerning ecclesiastical appeals—the “Corpus Juris Canonici”, the “Corpus Juris Civilis”, the Council of Trent, the Const. “Ad militantis”,—it only remains to mention the Instruction of June 11, 1880, sent to the Italian hierarchy by the Sacred Congregation of Bishops and Regulars, containing rules for a summary procedure (also in the matter of appeals) to be used by bishops in trying criminal cases. This same Instruction with a few changes was sent a few years later by the Sacred Congregation of Propaganda to the hierarchy of the United States of North America. In the following paragraphs we shall refer to these two documents by calling them respectively Instr. Sacra, and Instr. Cum magnopere.
III. PRESENT LEGISLATION.—
1. Persons possessing the right of appeal. The right of appeal is granted to all, except such as are excluded by the law. The law excludes: (1) Those who have renounced their right, either expressly, or tacitly, for instance by not appealing within the prescribed time. (2) Those who have been condemned in their absence, when such absence was due to contumacy. (3) Whoever has disregarded the rights granted by the law to his adversary, while the appeal of the latter was pending. (4) Those against whom three sentences (all in the very same case) have been passed. (5) Those who besides having confessed their crime in court have been also fully convicted by legal proofs. (6) The party who, of his own accord chose to have his case settled by means of the proof called juramentum litis decisorium (decisive oath). (7) Excommunicated persons are forbidden to appeal from extrajudicial acts; though, unless they are vitandi (see Excommunication), their appeal can be admitted if in court nobody objects; and moreover, all, even the vitandi, are admitted when their contention is that their excommunication was invalid, and in a few more cases in which equity or the common good requires that they should be heard.
2. Cases in which appeals are admitted.—Appeals are admitted in all cases not excepted by the law. The law admits no appeal: (1) When the crime is evidently notorious. (2) Against an interlocutory sentence or order, except in the following cases: (a) when the interlocutory judgment is equivalent to a final sentence, because it is such that a final sentence cannot be expected, for instance when the judge admits a peremptory exception; (b) when such interlocutory decision or order takes place during a trial which admits no appeal from its final sentence, as happens in the case of one against whom two sentences have already been passed; (c) when, in general, the injury is such that it cannot be remedied by the final sentence or by an appeal from the final sentence, as is the case when the penalty inflicted is such that no further action can annul its effects. To distinguish the interlocutory sentences under (a) from those under (b) and (c), the former will be called quasi-final sentences, and the latter purely interlocutory sentences. (3) From an invalid sentence (see below, 7-A). (4) From sentences pronounced ex informata conscientia. (5) In cases settled by transaction (compromise), or decided by arbitrators to whom the parties had of their own accord referred the settlement of their disputes. (6) Whenever the appeal is evidently a frivolous one, being altogether groundless.
3. When appeals have a suspensive effect.—In cases not excepted in the preceding paragraphs the general rule is that judicial appeals, besides having the devolutive effect common to all appeals, have also a suspensive effect. Some authors hold the same principle with regard to extrajudicial appeals, and base their assertion on e. 10, De appell., in sexto (II, 15) and on c. 51, 52, X, De appell. (II, 28). Others deny that an extrajudicial appeal (as such, has a suspensive effect, because it is not an appeal properly so called, but they hold that it has this effect as a provocatio ad causam (a legal application for a cause or suit). Hence extrajudicial appeal has this suspensive effect only while the r:aose or suit is pending, that is, from the time when the appellate judge admits the appeal and begins to examine the case (Ut life pendente nihil innovetur, Decretals of Gregory IX, Book II, tit. 16) But neither judicial nor extrajudicial appeals have a suspensive effect in cases expressly excepted by the law. Accordingly:-
(1) An appeal has no suspensive effect (a) when it is taken from any act which inflicts a censure properly so called (viz., a censure having the character of a medicinal punishment), depriving a cleric of benefits of a spiritual character, (b) if the appeal is entered after the censure has already been incurred. Hence this prohibition does not extend: (a) to a declaration of a censure; (b) nor to a censure inflicted as a vindicative punishment; (c) nor to a censure depriving a cleric of benefits of a temporal character, such as a suspension from his right to a salary; (d) nor, finally, to the case when the censure either has only been threatened, or it has been inflicted conditionally, and the condition under which it would be incurred has not yet been verified.
(2). An appeal has also only a devolutive effect when the judge appellee has acted in virtue of powers granted to him with the clause appellation remota, provided the case is not one of those expressly mentioned by the law as admitting an appeal. In these cases the appeal may have also a suspensive effect.
(3). Appeals have no suspensive effect in the cases laid down in the Const. “Ad militantis” of Benedict XIV. With regard to this document the following points are worthy of notice: (a) This constitution does not contain new laws, but only confirms already existing enactments and restores them to their former vigor, if obsolete (§ 48). (b) In the cases which it enumerates it forbids in general that appeals should have a suspensive effect, but it does not do away with the devolutive effect, unless a case, even according to the preceding legislation, would admit of no appeal at all (§ 38). (c) Not even the suspensive effect is forbidden, where, in matters referred to in this constitution, the preceding legislation allowed it. Thus it has been authoritatively declared that if a bishop, whether in performing his diocesan visitation or in taking measures for correcting morals at any other time, proceeds against a cleric judicially, the appeals from such judicial acts have a suspensive effect [Decrees of. Clement VIII, October 16, 1600, n. viii; Sacred Congreg. of the Council, reported by Pallottini (Collectio Decretorum S. C. C. vol. LI, Appellatio, -§ I, nn. 98 sq.)]. Besides these universal laws, there may be particular enactments forbidding, with the sanction of the Holy See, suspensive appeals (Third Plenary Council of Baltimore, n. 286).
4. The Appellate Judge. (1) The appellate judge must belong to a higher court than that of the judge appellee. Hence no appeal is possible from the pope or, an ecumenical council. From the Roman Congregations, appeals properly so called are not admitted. Again, one cannot appeal to a bishop from his vicar-general acting as ordinary, because when acting as such the vicar-general is an official not judicially distinct from the bishop; nor can one appeal to a metropolitan, either from bishops exempt from metropolitan jurisdiction or from bishops acting in virtue of powers, conferred upon them only as delegates of the Apostolic See. (2) Moreover, an appeal has to be taken to the judge who is immediately superior to the judge appellee, except when this immediate superior is unable, physically or morally, to receive the appeal, and also when the appellant wishes to appeal to the pope’s representative (a legate, or, a nuncio, or a delegate apostolic having the power of a legate) or directly to the Holy See (that is, to the Sacred Congreg. of the Propaganda, from missionary countries; to the Sacred Congreg. of Extraordinary Ecclesiastical Affairs from South America and countries subject to this Congregation; and, from any other country, to the Congregation competent in the matter in question). ‘However, the Holy See does not always admit appeals’ in cases not yet tried on first appeal before the metropolitan.
According to this rule: (a) From a bishop and, during the vacancy of a see, from the vicar-capitular or administrator the appeal has to be made to the metropolitan. (b) From the sentence passed by a metropolitan in second instance the appeal has to be made either to the Holy See or to its representative as above. The same holds good for an appeal taken from the sentence pronounced by a metropolitan in first instance, unless, by privilege, appeal is allowed to the nearest metropolitan (Third Plen. Council of Baltimore, n. 316). In the case of a metropolitan subject to a patriarch possessing patriarchal rights, the court of appeal from the metropolitan will be the court of the patriarch. (c) From a legate or a papal representative having the power of a legate, no appeal lies except to the Holy See. (d) In the case of a sentence passed by a judge acting in virtue of delegated jurisdiction, the appeal has to be made to the judge by whom the jurisdiction was delegated
5. The Appeal itself.—A. Time. For entering an appeal the peremptory term of ten days is allowed, after which term the appeal is not admitted. In judicial: eases the ten days are counted from the time when the sentence was pronounced, if the party was there present, or from the moment when the party knew of if the sentence was passed in his absence. The Intr. Sacra and Cum magnopere count the ten days from the moment when an official written notification of the sentence was given to the party. In extrajudicial cases the ten days begin from the time when the appellant becomes aware of the wrong done to him.—B. Manner. (1) The appeal must be made in writing except when a judicial appeal is entered in court immediately after the sentence has been pronounced, in which case it may be made by word of mouth. (2) When the appeal is in writing, it is necessary to state who the appellant is, from what sentence or order he appeals, and against whom the appeal is directed. Moreover, it is customary to insert the names of the judge appellee and of the appellate judge. When the appeal is made by word of mouth it is sufficient to express clearly the act of appealing to a higher court by saying, “I appeal”, or using similar words. (3) The reason of the complaint ought to be stated in appeals from a purely interlocutory sentence or from extrajudicial acts; but it is not necessary to express it in judicial appeals from final or quasifinal sentences; the reason is that in the former case the judge appellee may himself at once modify or set aside his former decision or order, whereas in the latter case he is not allowed to change his sentence. (4) The appeal ought to be interposed in the presence of the judge appellee, unless the appellant is prevented by fear or some other obstacle from having access to him, in which case the appeal ought to be interposed in presence of the appellate judge; and should this also be difficult, the appellant should go before some trustworthy persons, or before a notary and two witnesses, and have a document drawn up with a statement that the appellant has declared his will in their presence on account of difficulties that prevented him from going before either of the two judges. In either case the judge appellee should be notified of the appeal. (5) The judge appellee must on the appellant’s request furnish him with letters called Apostoli, in which he notifies the appellate judge that the appeal has been duly entered, and with a copy of all the acts of the case, to be forwarded by the appellant to the appellate court. The appellant should ask for these letters within thirty days (unless the term was shortened by the judge appellee) from the time he became aware of the sentence or grievance, and if he fails to do this the law presumes that he has renounced his right to appeal. The appellant having received these letters must give them to the appellate judge within the time established by the judge appellee. This term also is peremptory, so that if the appellant fails to give them he forfeits his right as before. According to the Instr. Sacra, art. 39, and Cum magn., art. 38, as soon as the appeal has been entered, the judge appellee has to forward the entire original acts of the case to the appellate court. In these instructions no mention is made of the Apostoli, or letters containing the certificate of appeal. Hence the appellant is not required to ask for them, and consequently there can be no question of the peremptory term of thirty days available for demanding them, nor of the next peremptory term for presenting them. On the other hand, in keeping with the same instructions, the appellate judge, having received the acts and taken cognizance of the appeal, has to notify the appellant that within twenty days (according to the Instr. Sacra, art. 40). or thirty days (according to the Intr. Cum magn., art. 39) he must appoint his counsel, to be approved by the same appellate judge; and this term is peremptory, so that if the appellant does not make the said appointment in time the appellate judge will formally pronounce the right of appeal to be forfeited.—C. Judgment on the admissibility of the appeal. The appellate judge, on receiving the said documents, must, before trying the case, examine whether the appeal is legitimate; hence he should make sure: (a) that the case is not one of those in which appeal is not permitted; (b) that the appellant is not one of those persons excluded by the law; (c) that he has appealed within the prescribed time; (d) that there are sufficient grounds for the appeal.—D. Inhibitions. Once the appellate judge has ascertained that the appellant has legitimately appealed, and that the appeal is not one of those that have only a devolutive effect, he has the right to send to the judge appellee letters called inhibitory, forbidding him to take further action in the case.—E. Attentates. Finally, it is the duty of the appellate judge to reverse what are called attentates (attentata), if there are any; by which term is meant whatever (in the case of an appeal having a suspensive effect) the judge appellee may have done prejudicial to the appeal during the time when his jurisdiction was suspended.—F. Withdrawal of the appeal. Prior to the time when the appellate court begins to try the case, the appellant is allowed by the law to withdraw his appeal, even if the appellee does not consent. Once, however, the appellate court has begun to try the case, the appellant is no longer free to renounce his appeal unless the appellee agrees to it.—G. Judgment of the case on appeal. The appellant having done what is required on his part for introducing his appeal, the appellate judge allows him a fixed time for presenting whatever he wishes to allege in his own favor, and at the same time notifies the appellee of the admission of the appeal and of the term granted to the appellant. In this trial the law does not allow new actions, that is, claims which are different from the main point at issue in the first instance and which would rather constitute a new controversy not yet tried by the judge appellee. In an appeal from a final or quasifinal sentence the judge is allowed to admit new evidence, whether to prove what was already alleged but not sufficiently proved, or to prove a new allegation, provided this has a close bearing on the main point at issue in the first trial and is not equivalent to a new action; the same right should be granted to the appellee in his reply. In an appeal from a purely interlocutory sentence new evidence is not allowed, and the court in forming its decision must confine itself to the evidence deduced from the acts of the first trial. The formalities to be observed in the trial of the case on appeal do not differ from those of the first instance. The case ought to be tried and finished within one year from the time when the appeal was interposed, or within two years where there is sufficient cause for delay. If the appellant through his own fault does not prosecute his appeal during this time he will be considered as having abandoned his appeal. This time fixed by law cannot be shortened by the appellate court except for some reason of common good, nor can it be extended except with the consent of both parties. The sentence by which the second instance is ended must contain a declaration as to the justice or injustice of the previous judgment, by which declaration. that judgment is confirmed or reversed.
6. Appeals to the Roman Congregations.—In appeals to the Roman Congregations, substantially the same rules are observed. Within the peremptory term of ten days the appellant must interpose his appeal before the judge appellee, who will immediately send the acts of the process to the Congregation. Before the case is discussed in the Congregation, a judge-referee (ordinarily one of the cardinals) is appointed, whose duty is to report the case to the Congregation for decision. He fixes the day when the Congregation will consider and decide the case. Before this day comes, the judge-referee and the cardinals receive a summary of the acts of the whole case together with the written defenses prepared by the lawyers or procurators of the parties. These lawyers and procurators are also allowed to explain by word of mouth their written information. At the appointed day the case is proposed to the Congregation, and decided by it, after the cardinals have heard the report of the judge-referee. The decision has the force of a judicial sentence. Against it there is no true appeal; but the Congregation grants another means of redress called beneficium novae audientiae (the benefit of a new hearing). Should, however, the Congregation add to its decision the words et amplius (a clause meaning that the case should not be presented again), it is more difficult to obtain a new hearing, which is granted only for new and very strong reasons. Finally, when the time within which the petition for a new hearing must be presented has elapsed without the petition having been made, or when a new hearing is not granted, the Congregation, on request made by the parties, will forward to them a rescript containing an official communication of the sentence. Cases are sometimes tried in the Roman Curia in a simpler form (economica). This is done for the sake of the parties, whose expenses are thus reduced, since in this kind of process they are not required to have lawyers, but whatever can be alleged in support of their rights is brought to the notice of the cardinals in a report officially drawn up, and to this report, in more important cases, is added the opinion of two consulters of the Congregation.
7. Means of redress available where appeals are not admitted.—A. Querela nullitatis (Complaint of nullity). Against a sentence which is invalid the legal remedy is not appeal, which is made only against an unjust sentence, but the complaint of nullity. This complaint of nullity differs from the appeal in the following points: (a) It can be proposed within thirty years, nay, indefinitely, if the sentence be such that its enforcement happens to be an occasion to sin (such as would be the sentence treating as valid a marriage contracted with an impediment which cannot be removed by the consent of the parties). (b) One is allowed to make this complaint to the same judge who passed the sentence, unless this judge has been delegated for a particular case. (c) It has no suspensive effect, unless the nullity is evident. B. Restitutio in integrum (Restoration to the original condition). When one has failed to lodge an appeal within the time prescribed, and this has happened because it was impossible for him to act, the law grants what is called restitutio in integrum. This restitutio is, in general, that remedy by means of which one who has suffered damage, because prevented from acting, is reinstated by a judge in the condition in which he was before the damage took place. (See Commentators on the Decretals, Book I, title 41.) C. Recursus (Recourse). In all cases when appeals are forbidden, one can make use of the remedy called recursus, which, strictly speaking, is an act by which one petitions the Holy See to grant him redress in. a case in which the law does not recognize the right of appeal. This recourse differs from an appeal in the following points: (a) it is an extraordinary remedy; (b) it can be granted only by the Holy See; (c) it has no suspensive effect.