Judicial power of the Church exercised over her members without interference on the part of civil society
Courts, ECCLESIASTICAL.—I. JUDICIAL POWER IN THE CHURCH.—In instituting the Church as a perfect society, distinct from the civil power and entirely independent of it, Christ gave her legislative, judicial, and executive power to be exercised over her members without any interference on the part of civil society. It does not fall within our scope to prove that the Church is a perfect society, consequently endowed with the above-mentioned power. If one admits the Divine institution of the Church, and the authenticity and authority of the Gospels, he must acknowledge that Christ so constituted His Church as to enable her rulers to make laws and regulations for the faithful conducive to the attainment of eternal happiness. Moreover, as John XXII (1316-34) wisely remarks: “It would be folly to make laws unless there were some one to enforce them” (Cap. un. de Judiciis, II, 1, in Extravag. Comm.). It is evident, therefore, that Christ in conferring legislative power upon the Church also gave judicial and coercive power. In proof of this we have, besides theological arguments, the practice of the Church which explicitly claimed such power, as well in the beginning (II Cor., x, 8; xiii, 2 sqq., etc.) as during the subsequent centuries of her existence; and, moreover, made frequent use of it. Suffice it to recall the institution of canonical penances, the constitutions and laws of so many pontiffs and councils, containing not only positive enactments, but also sanctions to be incurred ipso facto by the rebellious and obstinate, or to be inflicted upon them at the discretion of ecclesiastical superiors.
Now the infliction of punishment certainly presupposes evidence of the crime, since, according to the natural law, no one should be condemned until his guilt has been established. Hence the Church, in making use of her powers of legislation and coercion, must have also exercised judicial power. It is, moreover, historically evident that the Church often exercised these powers either through the Roman pontiff alone, by the agency of his delegates, or through councils, individual bishops, or other judges, ordinary or delegated. St. Paul plainly refers to a perfect judicial procedure when he cautions his disciple Timothy (I Tim., v, 19) not to receive an accusation against a priest except in the presence of two or three witnesses. In the next century, Marcion, after being expelled from the clergy, vainly appealed to the Apostolic See for restoration to his office. In the trial, degradation, and excommunication of Paul of Samosata by the Council of Antioch (c. 268) we meet with a formal ecclesiastical trial. The Council of Elvira (c. 300) threatens with excommunication every accuser of a bishop, a priest, or a deacon who fails to prove his charge. The Third Council of Carthage (3397) discusses regulations regarding appeals, and the Fourth Council of Carthage (398) prescribes the manner in which bishops are to exercise judicial authority. Finally, in the Apostolic Constitutions, which certainly are representative of the ancient practice of the Church, we find that certain days are set for conducting trials; the mode of procedure and other details are also clearly set forth. For later periods evidence abounds.
II. THE HISTORICAL DEVELOPMENT OF THIS POWER.—In the early centuries, when the Christians were still few in number; when their new faith and new moral life constrained the followers of Christ to carry out all His precepts (especially the one by which He wished them to be distinguished from all other men in this period); and when there existed, generally, among the faithful one heart and one soul. it was customary, in case a controversy arose, to appear before the bishop and accept his decision. This was in accordance with the grave admonition of St. Paul (I Cor., vi, 1), who urged the faithful not to appear as litigants before the civil courts. Though in such cases the bishops often assumed the role of friendly arbiters rather than strict judges, we should not infer that they never conducted a strict trial. Tertullian (Apol., xxxix) furnishes us with information on this point in these words addressed to the pagans: “Ibidem [in ecclesia] etiam exhortationes castigationes et censura divina: nam et judicatur magno cum pondere, ut apud certos de Dei conspectu”, i.e. the Church is wont to warn and punish, is a Divinely appointed censor, whose weighty decisions are accepted as rendered in the presence of God. Many similar utterances from the Fathers and the councils could easily be cited. It was, of course, impossible for the ecclesiastical magistrates (the bishops) to make use at that time of the legal solemnities introduced at a later period. Though rather summary, the judicial proceedings of the primitive episcopal tribunals were trials in the strict sense of the word. In the work of Bishop Fessler concerning the early history of canonical procedure (Der kanonische Process . in der vorjustinianischen Periode, Vienna, 1860) may be found details of interest concerning the ecclesiastical trials of Montanus, Origen, Fortunatus, Paul of Samosata, Athanasius, and others.
When the Christians obtained control of the civil power of Rome, the reasons that moved St. Paul to persuade or command the faithful to avoid the civil tribunals were, of course, no longer pertinent. Gradually the Church allowed the faithful to submit their differences either to ecclesiastical or to civil tribunals. From the beginning of the new era the bishops shared with the secular magistrates the power of settling the disputes of the faithful. Constantine the Great published two constitutions (321, 331) wherein he not only permits laymen to have their cases tried before their bishops, but also decrees that all cases which until then were wont to be tried by the praetorian, i.e. by the civil, law should, when once settled before the episcopal courts, be considered as finally adjudicated. It was rightly established, however, that not all cases could be submitted to the civil courts, nor could all persons have recourse to them. To decide a controversy the judge must first have jurisdiction over the matters in question and the parties engaged in the controversy. A private individual, for instance, could not hand down a decision, nor could he compel others to abide by it. In the case of a secular judge, his jurisdiction comes from the civil authority. In purely spiritual matters the latter is powerless, since God has committed them exclusively to the Church. In this domain the civil power has neither legislative nor judicial authority. Whatever, therefore, concerns the Faith, Divine worship, the sacraments, or ecclesiastical discipline is foreign to the civil order. With regard to such matters the Church has ever asserted her exclusive judicial authority [c. 1, dist. 96; c. 8, de arbitriis, X. (I, 43); c. 2, de judiciis, X. (II, 1)]. This solemn contention of the ecclesiastical power was recognized and confirmed by the Roman emperors in their civil constitutions [Cod. Theod., de religione (XVI, 2), an. 399; VII, De episcop. audientia, C. (I, 4)]. Like-wise, not all persons are to be judged by secular courts. The Church could not permit her clergy to be judged by laymen; it would be utterly unbecoming for persons of superior dignity to submit themselves to their inferiors for judgment. The clergy, therefore, were exempt from civil jurisdiction, and this ancient rule was sanctioned by custom and confirmed by written laws. On this point the Church has always taken a firm stand; concessions have been wrung from her only where greater evils were to be avoided. Thus, in Christian antiquity, a Council of Aquileia condemned the bishop, Palladius, for demanding a civil trial, and a Council of Mileve decreed that clerics who strive to bring their lawsuits or disputes before secular judges should be deprived of their clerical dignity and removed from their offices. Innocent III reprehended the Archbishop of Pisa [c. 12, De foro competenti, X. (II, 2)] for maintaining that at least in temporal matters a cleric could renounce his right of exemption and appear before a secular court. Such action, said Innocent, was unlawful even when the conflicting parties agreed to submit the matter to civil magistrates. The ecclesiastical exemption was not a personal privilege; it belonged to the entire ecclesiastical body and could not be renounced by individuals.
Matters purely spiritual, as explained above, fall within the exclusive jurisdiction of ecclesiastical law. In addition to these there were in the past, and are still, cases in which the natural and spiritual elements are so conjoined, as Lega remarks in his excellent work “De judiciis ecclesiasticis”, that they take on juridically another nature and give rise to different rights. To make this clearer, the author, in addition to the example drawn from certain effects of matrimony, borrows from the ancient canonists the illustration of a contract entered into by lay persons and confirmed by oath. Here, to the obligation of justice is added that of religion, and we easily recognize a twofold juridical element, bringing the matter in question, at least as far as the value or execution of the contract is concerned, within the ecclesiastical as well as the civil domain. Were it a question only of the value of the oath, the matter would, of course, be a purely spiritual one. There is another order of cases in which the issues are purely temporal. Over these the Church never claimed an essential ri*ht to the exclusion of civil power. Even in the Middle Ages she recognized the principle that ecclesiastical judges are incompetent in such cases unless urgent necessity or custom should require otherwise. If, in medieval times, the Church exercised jurisdiction in regard to the temporal concerns of orphans, widows, or other persons of unfortunate condition, no equitable mind will see therein a usurpation of civil jurisdiction on the part of the ecclesiastical authorities. The true and adequate explanation lies in the peculiar necessities of the age, the deficient administration of justice, and the undue power exercised by the rich and mighty. Rather does it redound to the honor of the Church that she then assumed the defense of the poor against the wealthy and powerful, and came to the aid of those who were deprived of all human help. It must also be mentioned that in medieval and later times ecclesiastical magistrates were often vested with civil power legitimately acquired, and exercised it, not as ecclesiastics, but as civil magistrates.
III. THE SUBJECT OF JUDICIAL POWER IN THE CHURCH.—Since the judicial power flows from the legislative, it is clear that the former resides primarily and chiefly in those who possess the latter. The common welfare, evidently, does not require that every person endowed with legislative power in a social organization should therefore enjoy the fullness of such power; so also it is obvious that not every one possessed of judicial power in a society has at once the right to exercise it upon all members of that society. It was this exigency of the common welfare that made it necessary to fix the limits of the jurisdiction of magistrates even in civil societies. We know, for instance, that in primitive Roman society there was in every district one magistrate who was supreme, and who had undivided jurisdiction in the province allotted to him, but none beyond its limits [Bks. 1 and 9, De off. proc., D. (I, 16)]. This first limitation of the magistrate’s power was based on territory; later on there followed another limitation based on the importance, or “quantity”, of the case or controversy. Hence, in later Roman law the plaintiff had to inquire not only what territory came under the jurisdiction of his judge, but also what “quantity”, or gravity of matter [Bk. 19 sq., 1, De jurisdict., D. (II, 1)]. In later times these principles have been retained and even partially increased and extended by our civil codes; they serve even yet to justify many special courts, e.g. courts for aqueducts, for commercial disputes, etc. These various arrangements are not altogether foreign to ecclesiastical law; indeed, in many cases it has adopted them outright. Thus, it is not only by Divine disposition that the Roman pontiff is the supreme judge in the Universal Church—as he is also its sovereign legislator—and that the bishops are the law-givers and judges in their respective dioceses; but it is also by ecclesiastical ruling that certain cases are reserved to the Roman pontiff. These were first called by Innocent I (401-17), in his epistle to Victricius of Rouen, causee majores (greater cases); other cases are reserved to the bishops, to the exclusion of inferior magistrates and judges; and others, finally, to the various Roman Congregations. It was likewise by ecclesiastical law that in former times certain matters were reserved to provincial councils, particularly in the African Church (Concil. Hipponense, 393); this custom, however, was never sanctioned by a general law.
Many facts go to prove that this limitation of ecclesiastical authority, a necessary consequence of the primacy conferred by Christ on Peter and his successors, was introduced in the earliest ages of the Church; a brief mention of some will suffice. About the year 96, we find the celebrated letter of the Corinthians to St. Clement of Rome, of which Eusebius makes mention (Hist. eccl., III, xv), and which he calls “in every respect excellent and praise-worthy”. This letter disclosed to St. Clement the causes of the discords in Corinth and asked for a remedy. In the second century the Montanists brought their grievances before the Roman pontiff; deceived at first, he restored them to their standing in the Church, but later condemned them. Many other similar occurrences could be enumerated; let it suffice to mention the letter of Marcellus, Bishop of Ancyra, in which he clears himself before Pope Julius I (337-52) and makes profession of his faith; also the letter of the Arian Bishops, Valens and Ursacius, in which they retract their accusations against Athanasius and sue for pardon. In ecclesiastical law, cases affecting civil rulers or cardinals, also criminal cases of bishops, are still reserved exclusively to the Roman pontiff. In the Church, however, judicial authority is vested (by Divine right) not only in the Roman pontiff and the bishops, but in others also, though in a more or less restricted form. In former times, there was the provincial council, with judicial authority in not a few cases, also the court of the archdeacon, distinct from that of the bishop, and with these the courts of inferior judges, whose authority was based on custom or, more generally, on privilege. In place of these earlier judges we have now the vicars-general (q.v.), who, however, constitute but one court with their bishop and judge-delegates, representative either of bishops or, more particularly, of the sovereign pontiff.
IV. CLASSIFICATION OF ECCLESIASTICAL COURTS.—In every society courts may be classified in two ways, according to the twofold manner in which justice may be administered. Thus it may happen that in a certain society the administration of justice is so established that a controversy is not ended by one sentence, but several appeals may be made. The defendant, if unwilling to abide by the decision of the first tribunal, may then appeal from a lower to a higher court, and this appeal may be renewed as often as the law allows it; thus there may be two, three, or even more courts wherein a case may be tried. It may also happen that any given controversy must be settled by one judicial sentence, even though diverse tribunals exist, because the cases, on account of their “quantity “—to use the terminology of the Roman law—i.e. on account of their varying importance, come under the cognizance of various judges and tribunals. In this case separate tribunals are so arranged that there exists a highest and a lowest, between which there may be a third or even several other tribunals. Or again a mixed system may prevail, in which are found both systems of regulating the administration of justice.
In the Church it is precisely this last intermediate system that prevails. For, as we have already seen, there are certain causce majores reserved to the judgment of the Roman pontiff exclusively; and as he has no superior there can be no higher court of appeal, nor, indeed, is it becoming that his judgment be reconsidered by any other, much less that it be revised. In these cases, therefore, there can be but one court of judgment. Nevertheless it may be well to remark here that, as the Roman pontiff does not generally judge personally, but through delegates who give sentence in his name, he usually allows a hearing of the case by different judges, if it should happen that one of the contending parties, not satisfied with the first judgment, requests this revision from the pontiff himself. All other ecclesiastical cases, however, in which inferior courts give judgment admit of an appeal to higher ecclesiastical authority, and one may appeal not once only, but twice. Hence in ecclesiastical law there are, generally speaking, three courts of judgment, neither more nor less. This assertion admits of one exception, viz., when there is question of the validity of a marriage, or of similarly important matters, appeal to a fourth court is then at times admitted. In the twelfth and thirteenth centuries, however, vicars-general succeeded the archdeacons, and after the Council of Trent, during the seventeenth and eighteenth centuries, the archdeacons’ courts ceased to exist. Consequently the first ecclesiastical court is now regularly that of the bishop or of his vicar-general. The second court is that of the metropolitan. But if it should happen that the bishop who gave judgment in the first court is himself the metropolitan or an exempt bishop, or if the case was, in the first instance, brought before a provincial council, then the tribunal of first appeal is none other than the tribunal of second and last appeal, and this is always and for all parties the tribunal of the Roman pontiff. In this case, therefore, only two appeals are possible. This is the provision made by the common law, though sometimes an approved custom—more frequently an express privilege—provides differently. Thus, for instance, in the Austro-Hungarian Empire the ecclesiastical court of Prague is the court of appeal for the Archdioceses of Vienna and Salzburg; for Prague it is Olmutz; for Olmutz, Vienna. So, too, in Latin America, if the first two sentences do not agree, an appeal may be taken in the third instance to the bishop who resides nearest to the one who first gave judgment. This was decreed by Leo XIII in his Encyclical “Trans Oceanum”, April 18, 1897. It must be borne in mind, however, that, owing to the special pre-eminence of the Roman pontiff, an appeal may always be made from the tribunal of an inferior judge to his tribunal immediately, thus passing over the intermediate courts, to which, according to the general rules, the appeal must otherwise be directed. What has been said above applies to the ecclesiastical discipline now in force. It must be added that in the Eastern Church the title of metropolitan is generally, though not always, a merely honorary title, the metropolitan power being almost entirely in the hands of the patriarch himself; it is consequently to him that an appeal lies from the judgment of the bishop. With regard to the ancient ecclesiastical discipline it is worthy of remark that in former times an appeal was allowed from the tribunal of the metropolitan to that of the primate or patriarch. Actually, with exception of the Primate of Hungary in certain cases, this primate’s court no longer exists. Where appeals are possible, the courts are said to be subordinate one to the other, and are so in fact; hence, for instance, a metropolitan court can, by a genuine order or mandate, require such data from the inferior court as may seem to it necessary for a proper cognizance of the case. Here we must carefully note the difference which oftentimes exists between subordinate courts in ecclesiastical and in civil law. In the latter the superior court frequently exercises a certain, true, disciplinary power over the inferior court, either by instituting an inquiry into its proceedings, or by delegating a substitute, if the inferior judge should be prevented from exercising his office or should be found incapable. All this is foreign to ecclesiastical law, in which the courts of suffragan sees are subject to the metropolitan court in such matters only as regard the appeal actually before the metropolitan. In all other matters the episcopal courts are quite independent of metropolitan authority. Other courts, however, whether metropolitan or episcopal, are in no way subordinate, but are entirely independent of one another, though this does not relieve them from the obligation of mutual assistance. Thus it may often happen that the administration of justice in one locality necessitates proceedings in the territory of another judge. Should this happen, the court which has the case in hand may request the court of the locality in which some proceeding necessary to the administration of justice or to a proper cognizance of the case must be instituted (e.g. the examination of witnesses or the execution of a summons) to see to its performance. And the court to which such a petition has been addressed through requisitional letters by another court is obliged to render this subsidium iuris, or legal assistance, unless the request be evidently unlawful. But the obligation arises, not from the authority of the court requesting assistance, but from the authority of the common law, which so ordains. This is evidently just, for all such courts are courts of one ecclesiastical society, the one Catholic Church, whose welfare demands that in it justice be rightly administered.
V. CONSTITUTION OF THE COURTS.—In ecclesiastical law the Roman pontiff and the bishops, as also the metropolitans in cases of appeal, likewise all those who in their own right (ordinario iure) exercise judicial power in the Church, may pronounce sentence personally in all cases brought before their tribunal. They may also, if they think fit, entrust the hearing of the case to judges delegated by them; and they may thus delegate, not only one person, but also several, either—to use the canonical terms—in solidum or collegialiter. If they were delegated in solidum, or severally, then he who first took the case in hand must examine it and pronounce judgment. But if they are to proceed collegialiter, we have a true college of judges, in which, therefore, everything is to be observed which the law prescribes and the nature of things demands in the exercise of collegiate acts. We have many examples, both in ancient and modern times, of judges who had thus to proceed as a college. We have already made mention of the ancient discipline that prevailed, principally in the African Church, and according to which certain graver cases were to be referred to provincial councils.. This regulation was retained, partially at least, by the Council of Trent. It decreed that the more important criminal cases of bishops should be reserved to the pope, whilst; those of lesser importance are left to the cognizance of provincial councils. This is also the origin of the celebrated tribunal called the Rota Romana.
The Roman congregations themselves are simply collegiate courts whenever they exercise judicial authority. In not a few dioceses the so-called Officialatus (Officialites) exist, which also administer justice as a college. Gregory XVI erected in the various dioceses of the States of the Church courts for criminal cases which were truly collegiate bodies and proceeded as such; though herein the pope acted, not as pope, but as temporal sovereign. Hence this case does not properly belong to canon law. In these courts the number of judges is not definitely fixed, though there are usually, besides the president, two or four judges, seldom more than six. Therefore it is generally the rule that the number of judges be uneven, as the case might otherwise often be left undecided. A majority of votes decides, especially in giving sentence; if the votes for both sides are equal the case (per se) remains undecided. In this event, however, it is often provided that the vote of the president shall be decisive, or that the case shall be decided in favor of the defendant and not of the plaintiff, unless the case be a privileged one, v. g., if the validity of a marriage is in question. What the powers of the president are in a college of judges must be gathered from the decree which established the court in question, or also from the latter’s practice and tradition. It is to be noted that sometimes a court resembles a college of judges without being such in fact. Thus a bishop can order his vicar-general in giving judgment in certain cases, particularly in those of greater moment, to appoint assessors, whose counsel he must hear before pronouncing sentence. In this case it is evident that there is no real college of judges, as only the vicar-general can pronounce sentence; still the case must be examined by the assessors, who can and ought to manifest to the judge all which they think may conduce to a just sentence.
The Judge.—It is evident that in every trial the judge has the leading role, whether this judge be an individual or a college, and his obligation is to apply the law between the two contending parties, or to pronounce what is conformable to established right and equity; and as his office is to see to the execution of the law, he has the right to require from the contending parties reverence and obedience. For this same reason he is empowered to do whatever is necessary to make his jurisdiction effective, and therefore to use moderate coercion towards obtaining the same end. This coercion can be exercised not only against the contending parties, if they are disobedient, but also against others who have an accessory part in the trial, e.g. the procurators and advocates. In his capacity as a public person the judge is worthy of public confidence; hence the presumption is in his favor that the legal formalities have been properly observed in his judicial proceedings, and that what he testifies to as judge is true. Canon law commonly requires that in ecclesiastical tribunals there shall be other persons present besides the judge: thus there are always a notary and a defender of the marriage bond in matrimonial cases, and a fiscal promoter (promotor fiscalis) in the great majority of criminal cases. Ordinarily other persons are admitted, not by mandate, but through permission of the law, for the rapid and better administration of justice, v. g. assessors and auditors.
The Notary (actuarius), whose presence was decreed by Innocent III in the Fourth Lateran Council [cap. 38, c. 11 de probat., X. (II 19)], is a public person whose obligation it is to transcribe with fidelity the acts of the case. As this office is merely that of a clerk, and does not include any judicial power or jurisdiction, it may be held in ecclesiastical courts even by a layman. Still, clerics are not excluded from this office, nor does cap. 8, “Ne clerici vel monachi”, etc., X. (III, 50) contradict this, as there it is a question only of clerics who hold such office for the sake of pecuniary profit; nor is the contrary affirmation of Fagnani of any weight, as it is not supported by conclusive reasons. This is shown also by the actual practice of ecclesiastical courts. It is sufficient here to call to mind the notaries of ancient times who wrote down the acts of the martyrs, those who were employed in the councils, and still more the class of the prothonotaries, who have recently been divided by Pius X (February 21, 1905) into four classes, and rank among the highest prelates.
The Auditor is sometimes a delegated judge, to whom is entrusted a certain amount of jurisdiction, v. g. the formal opening of a case (contestatio litis); in the practice of the present day he would be called an instructing judge. He may also be an ordinary official to whom has been assigned, but without any jurisdiction, a part of the proceedings, e.g. the simple examination of the witnesses; he is then properly called auditor. It follows from all this that the duties and powers of the auditor must be deduced from the mandate itself. It was customary to have auditors even in the Middle Ages, especially in the Roman Curia, and there still remains some vestige of this office in the auditors of the Rota Romana, who after the time of Gregory IX formed a special college (Durandus, in Speculum).
Assessor.—The title of assessor has also a twofold meaning, i.e., he may be a judge in a collegiate tribunal (Dig. I, 22; Cod. I, 51), or one who assists the presiding judge in interpreting the law. In the latter meaning assessors are simply advisers of the judge, who aid him to obtain a full knowledge of the case and by their advice help him to decide justly.
There are some other inferior ministers of the judge in an ecclesiastical court, whose names it will be sufficient to mention, e.g. the apparitores, tabelliones, cursores (sheriffs, reporters, messengers), etc., according to the different customs of the courts.
Fiscal Promoter.—After having spoken of the judges and of those who assist them in the administration of justice in the different courts, it is necessary to say a few words on the fiscal promoter (promotor fiscalis), since he plays an important part, especially in criminal cases. Although not on the side of the judge, as, by public authority, he rather takes the place of accuser or public prosecutor, still he contributes greatly to the end for which the courts were established. The fiscal promoter (fiscus, public treasury)—though perhaps, if we attend to the most important part of his office, a better title would be “promoter of justice “—is a person who, constituted by ecclesiastical authority, exercises in the ecclesiastical courts and in his own name the office of a public prosecutor, especially in criminal cases (Intr. S. C. Episc. et Reg., January 11, 1880, art. 13). If we wish to include in the definition all that is comprehended in his office, he might be defined as a public person legitimately appointed to defend the rights of his church, especially in court. Peries, in his article “Le procureur fiscal ou promoteur” (Revue des sciences ecclesiastiques, April, 1897), rightly says that the whole office of the fiscal promoter may be summed up in three points: solicitude for the observance of discipline, particularly among the clergy; attendance at the processes of beatification and canonization in episcopal courts; and defense of the validity of marriage and of religious profession. All these functions, it is true, are not always carried out by one and the same person; they are all, however, included in the full idea of the promotor fiscalis, for it is this official’s duty to defend the rights of the Church, the decency of Divine service, the dignity of the clergy, the holiness of matrimony, and perseverance in the perfect state of life.
It is unnecessary here to say more about the plaintiff and the defendant in ecclesiastical courts, or about the persons appointed to assist both, e.g. advocates and procurators.
VI. THE COMPETENCE OF ECCLESIASTICAL JUDGES.—As already explained, there are different kinds of judges and courts in the ecclesiastical forum. Nevertheless contending parties cannot choose their judge; the trial must be conducted by the proper judge (proprius judex), i. e. by one who can exert his jurisdiction against the accused: in other words, he must be a competent judge. Moreover, as the accused is brought to court against his will, it is further necessary that the judge have the power to summon him and oblige him to appear. There are four chief titles by which an accused party comes under the jurisdiction of a certain judge: residence or domicile, contract, situation of object in dispute, place of crime committed. It is self-evident that, if in the civil courts it was necessary for the proper administration of justice to place territorial limitations to the exercise of jurisdiction, this same restriction was much more necessary in canon law, since the jurisdiction of the Church extends to the entire world. Otherwise great confusion would have resulted and the administration of justice itself would have suffered, since it would have been very difficult to hear many cases if, as is often the case, the persons and matters concerned were at a great distance from the court. For this reason the famous principle of the Roman law: “He who acts as judge out of his district can be disobeyed with impunity” [extra territorium jus dicenti impune non paretur, §20, De jurisdict., D. (II, 1)], adopted also by modern civil codes, was accepted in canon law. This territorial character of certain courts affects not only persons, but also things (res) and rights (jura); competent judges, therefore, have power not only over persons, but also over things situated in their territory. In both civil and criminal cases, therefore, all persons are subject to the judge of their place of residence (judex domicilii). This residential forum is considered the most natural of all, therefore the ordinary and general forum for all cases, so that a person may be summoned to trial by the judge within whose jurisdiction he resides, whether the offense was committed within that territory or not. Hence it is accepted that the jurisdiction of such a judge always concurs with the jurisdiction of any other judge or any other forum.
A person may also “acquire” forum, i.e. become subject to trial in any place by reason of a crime committed there; in other words, his own act brings him within the jurisdiction of a judge of a given place who can punish him, and of whom he would otherwise be independent. It is easy to see the reasonableness of this; for it is just that where a person has given scandal by his bad conduct he should there make amends for it by accepting the deserved punishment. Again it is much easier to establish the fact and inquire into the authorship of a crime in the very place where it has been committed. Thus a person who makes a contract in a certain place thereby acquires right of forum in the same place, though not one of its citizens nor in any sense a resident, provided, of course, he be present in that locality (c. 1, § 3, De foro competenti, II, 2, in 6°), it being much easier to adjudicate disputes about a contract in the place where it was entered into. Finally the possessor of a chattel (res) may be summoned before the judge of the territory where the object in question is situated, because it is only natural that where a chattel is in question (actio realis), precisely such chattel, and not the person, should be taken chiefly into consideration; thereby, also, the trial becomes more easy and rapid. In addition there are other (extraordinary) ways by which a person can obtain “right of forum” in a certain place; it will suffice to indicate them briefly. Besides the “forum” that everybody is considered to have in the Roman Curia, there is also the “forum” granted by reason of the prorogation or suspension of a case, to which should be added the prevention (quashing of indictment) and transfer of a case.
VII. ECCLESIASTICAL PROCEDURE.—TWO methods of judicial procedure are recognized in canon law: one ordinary, also called full and solemn; the other simple, extraordinary, and summary. In the ordinary procedure all the solemnities prescribed by the law are observed. These are described in the second book of the “Decretals” of Gregory IX, devoted entirely to the conduct of ecclesiastical courts. They may be summarized as follows:—The party intending to bring suit must first send to the judge a written petition manifesting his intention, and setting forth his claim. If the judge thinks the claim reasonable and therefore worthy of a hearing, he issues a summons (citatio) calling the accused before his court. In modern civil codes a private citizen can oblige his fellow-citizen to present himself before the judge for the examination of a case. Though found in the Roman law of the Twelve Tables, the canon law does not recognize in the private individual any such right, and holds to the later procedure of Roman law, that dates from Ulpian and Paulus, and was afterwards confirmed by the laws of Justinian. According to this procedure, the summoning of the accused implies power of jurisdiction, and must therefore proceed from the judge himself. Generally an ecclesiastical judge ought not to be satisfied with one summons; it should be repeated three times before the accused can be considered contumacious. However, if in the summons itself it be clearly stated that it must be considered as final, a repetition of the summons is not necessary. The defendant, being summoned, must appear before the judge, and, unless the case be a criminal one, instituted to bring about the legal punishment of the guilty party, or one of certain other exceptional cases, he may, after hearing the cause of the summons, immediately enter a counter-plea against the plaintiff before the same judge.
When the defendant is summoned, whether it be his wish to enter a counter-plea or not, he must appear along with the plaintiff before the judge, and within the time fixed by the latter. When they have come before the judge, the plaintiff states clearly and precisely what he demands of the defendant, and the defendant on his part either admits the justice of the plaintiff’s demand, in which case he must make complete satisfaction, or he denies it (at least in part), and makes known his wish to contest the matter judicially; we then have a contested case (Us contestata). Such a contestation accomplishes two things: first, it fixes precisely the object of the trial, and, second, the parties bind themselves by a quasi-contract to prosecute the trial, and agree from that moment to accept all the obligations imposed by the sentence, including the obligation of the condemned party to make payment: in a word, they agree to abide by the legitimate finding of the court. Then follows the “oath of calumny” (juramentum calumnite), i. e. if demanded by either party. This oath covers the entire case, and can therefore be taken but once in the course of the same trial. Its object is the credibility which both plain-tiff and defendant are anxious to maintain, convinced as each is that he has a just case. By this oath each party affirms that he will continue the trial solely for the purpose of litigation, and not of calumny; he promises, moreover, to observe good faith throughout the proceedings. To this oath is added another, namely, to tell the truth, and also an oath of malice or fraud (juramentum malittice). This latter would not be called for with reference to the entire case, but only to some part of the proceedings, if ever a presumption arose against one of the litigants as acting from malice or fraud. In modern canonical procedure the “oath of calumny” is no longer called for. At this stage, the judge fixes a period within which the parties must set forth their arguments in defense of their rights; this period can easily be extended by the judge at the request of one of the parties, should he declare that he has not yet been able to produce all his evidence. Thereupon the case is argued, and the judge must weigh all the evidence brought forward by the contestants, whether this evidence be written or oral. If after this the parties, on being questioned, answer that they have no further arguments to make, the judge declares that the time for producing evidence is closed. The aforesaid judicial interrogatory and declaration are known as the conclusio in causd, or the last act of the judicial hearing of the case, and with it expires the time allowed for submission of evidence.
To this period of argumentation succeeds the interval during which the judge studies and weighs the arguments advanced. During this time the judge may ask the parties to supply declarations and explanations of their evidence. If, in spite of this, the judge is unable to form a morally certain judgment as to the rights of the plaintiff or of the defendant, he must request that the proceedings be supplemented by further proofs; if, notwithstanding, the case is still doubtful, he must decide that the plaintiff has not established his claim. If, on the other hand, the judge can arrive at a decision from the proceedings and from the evidence adduced, he must legally acquit or condemn the defendant by a definitive sentence, this being precisely the legal decision of the judge concerning the case proposed by the litigants. What has been said thus far holds good for a solemn ecclesiastical trial. In a summary trial, as already stated, some of these solemnities may be omitted. To begin with, the formal written petition may be omitted. The plaintiff may present his petition orally, and the chancellor of the court makes record of it in the acts of the proceedings. Nor are three judicial summons required; one suffices, even though it be not expressly stated that it must be considered peremptory and final. The solemn declaration of mutual purpose to pursue the case to a legal ending is likewise omitted, being implicitly contained in the articles on which the mutual argumentation of the case is based. The proceedings may continue even on days when the court would not otherwise sit (tern pore feriato). As far as possible, all postponements (dilations) are avoided. The formal declaration of the judge that the hearing is closed is not necessary, and sentence may be pronounced without the usual solemn formalities; it must, however, be written, and the parties must have previously been cited by at least one summons.
Those things, however, which are demanded in all trials by the natural law or the common usage of nations must not be omitted in this summary trial. The promise under oath to speak the truth is never dispensed with. Each litigant may present a full argumentation (positions et articuli) of his case, and may produce his evidence. Finally, the judicial interrogatory of the two parties cannot be omitted, whether it takes place at the request of the litigants, or because the judge considers it his duty.
Summary proceedings are commonly entered upon for one of two reasons: either because the cases are of such a nature as to demand prompt settlement (alimony or necessary support, marriage cases, and many cases of ecclesiastics, e.g. elections, offices and benefices); or because the cases are of minor importance, slight and easily remediable injuries, comparable to civil lawsuits for trifling debts. In all such cases the judge is allowed to base his sentence on evidence somewhat less conclusive than would be called for in cases of greater importance (semiplena probatio). Summary procedure is now frequently employed in criminal cases of clerics; the canon law, however, by an instruction of the Congregation of Bishops and Regulars (June 11, 1880), restricts its use to countries whose bishops have formally obtained the right to proceed according to said instruction, originally granted to the bishops of France. In 1883 the Congregation of Propaganda extended its use to the bishops of the United States of America. (See also the decrees of the First Plenary Council of South America, art. 965-991.)
It may be asked, finally, what influence has the Roman law exercised on the canonical procedure described above? It is certain, on the one hand (Fessler, op. cit.), that the judicial procedure of the canon law was already quite elaborate in form when, early in the sixth century, the Emperor Justinian published his “Institutes”, “Digest”, and “Code”. On the other hand, it is very evident that Roman law, and particularly that of Justinian, has exercised a very great influence upon canon law; it is universally admitted as one of the subsidiary sources (fontes) of canon law, especially in court procedure. The canon law, however, has wisely perfected certain enactments of the Roman law. Thus, the right of provisional possession, institutum possessorium in the Roman law, was amplified and highly developed by canon law, which gave additional legal protection in the case of actual possession obtained by injunction (interdictum) of the magistrate. The possessory interdict (unde vi), it is well known, was granted by Roman law for immovable objects only; the canon law extended it to movable objects, and even to abstract rights (Jura incorporalia). Moreover, whereas by Roman law only a strictly legal suit (actio spolii) was open to a person despoiled of his goods, the canon law allowed him an additional plea in equity (exceptio spolii). In addition, in the Roman law, a suit lay only against the despoiler (spoliantem) or the one who ordered or approved the act (spolium mandantem, ratihabentem), whereas the canon law permitted the entering of suit against any third person found in possession of the plaintiff’s goods, whether such detention were in good faith or not.